HYPOTHETICAL/PROBLEM BASED QUESTION.
I Year B.B.A. L.L. B (Hons) Semester- 2 (2022)
2nd - Internal Assessment
Subject – ENVIRONMENT LAW
TOPIC – Hypothetical/Problem Based Question.
NAME: Jaideep Singh
DIVISION: C
PRN: 21010126249
COURSE: B.B.A. LL.B. (H)
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HYPOTHETICAL/PROBLEM BASED QUESTION.
PROBLEM 1
INTRODUCTION
In Stockholm, Sweden, the first worldwide conference on climate change was held in 1972.
In 1992, the United Nations Framework Convention on Climate Change (UNFCCC) was
founded in Rio de Janeiro, Brazil, after several years of talks and agreements. As a result, it is
a multilateral convention that governs the behaviour of signatories in combating climate
change and reducing greenhouse gas emissions. The Kyoto Protocol is an international
convention that aims to put the UNFCCC's goals of reducing greenhouse gas concentrations
in the atmosphere into action. COP 26 was recently held at Glasglow, United Kingdom.
The right to a healthy environment has been understood as an element of the right to life
under Article 21 of the Indian Constitution. The country's economic development, on the
other hand, is as vital. Synergies Pvt Ltd.'s growth near Denkin Lake, it is argued, may have a
harmful impact on the area's biodiversity. While the corporation says that this development
would result in more jobs and tourism in the area, the opposite might be said.
Offences:
Assessment of the Environmental Impact
An environmental impact assessment (EIA) is used to identify the project's environmental,
social, and economic effects before making a decision. In order to safeguard biological
resources1, the Convention on Biological Diversity also underlines the significance of a
complete EIA procedure.
Environmental Impact Assessment is required by legislation 2 in India. The EIA Notification,
2020 forbids the growth or modernization of any operation in any region of India unless prior
environmental clearance has been granted by the central or state governments. Environmental
clearances are a must-have for any mining activity.3
According to the court, the goal of performing an EIA before a project is to issue approval to
ensure that no development takes place without a thorough assessment of the risks and
damages to the environment that would come from the project's construction and
development. 4
1
Convention on Biological Diversity, [Link] (last visited May 29, 2022)
2
Environment Protection Act, 1986, § 3(2)(v), Acts of Parliament, 1986 (India)
3
Common Cause and Ors. Vs. Union of India (UOI) and Ors., Writ Petition (Civil) Nos. 114 and 194 of 2014 2
4
Ranubha vs Union 2012 SCC OnLine Guj 3281
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Synergies Pvt Ltd, on the other hand, failed to complete the essential and secure
environmental permission before beginning their activities on land near Denkin Lake,
resulting in a 'environmental law breach.' It should also be noted that the company cannot
seek post-facto environmental clearance because courts have ruled that even projects that are
completely violating environmental norms may be required to be legalised, which would be
illegal, defeat the purpose of environmental laws, and leave the company unable to prevent
environmental and ecological5 damage.
Wildlife Protection: The state should make every effort to save and improve wildlife.
6
Habitat loss and vegetation degradation are the most evident effects of mining on
biodiversity, affecting wildlife's availability to food and shelter. Mining has the ability to
impact biodiversity on a greater scale through changing species mix and structure. The
corporation failed to take the essential safeguards to protect and maintain wildlife that is
harmed by the cement manufacturing industry in some way.
Biodiversity loss: Land within 10 kilometres of national park limits is an eco-fragile zone
where companies must obtain special permission to operate. Mining operations can
contaminate the environment and impair biodiversity, both of which are good for the
economy and help mitigate the effects of climate change and natural disasters. According to
the Indian Constitution7, every citizen has a fundamental obligation to maintain and improve
the natural environment.
Position of the company:
Synergies Pvt Ltd. is committed to the economic prosperity of the country. The cement sector
is a major contributor to economic prosperity. Shutting down the operation, according to the
corporation, would result in more job losses and endanger the trust of workers hired during
the company's initial phase of EGS.
In the Pahwa Plastic case8, the Supreme Court held that the manufacturing units, which
employed 8,000 people and contributed to the economy, could not be shut down. In this
situation, the company aspires to create more than 10,000 jobs, and closing it down now
would be disastrous for the economy. The court also concluded in this case that, in
extraordinary circumstances, an environmental clearance could be issued after the industry
has been functioning.
5
S.P. Muthuraman v. Union of India, 2015 SCC OnLine NGT 169. Alembic Pharmaceuticals Ltd. v. Rohit
Prajapati, 2020 SCC OnLine SC 347
6
I NDIA CONST. art. 48-A
Environment Protection Act, 1986, § 3, Acts of Parliament, 1986 (India)
7
INDIA CONST. art. 51-A
8
CIVIL APPEAL NO. 4795 OF 2021
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As a result, the company will simply have to pay a fee for the delayed environmental
clearance, but it will not be fully shut down.
Conclusion:
The courts have recognised the necessity for sustainable development as a balancing notion.
While industries are vital for a country's prosperity, the damage they cause to the
environment must not be neglected. In the country's basic jurisprudence, a person's right to a
pollution-free environment is enshrined. Life, public health, and the environment, according
to the Supreme Court, take precedence above unemployment and financial loss. 9 Synergies
Pvt Ltd should therefore be shut down immediately.
9
M. C. Mehta v. Union of India, (1987) 4 SCC 463
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HYPOTHETICAL/PROBLEM BASED QUESTION.
PROBLEM 2
MONETARY HELP TO RENTICA
Rentica's government, in this scenario, seeks a USD 10 billion credit line to rebuild its
economy, which is heavily reliant on tourism. As a result, it is reasonable to assume that
tourism will be one of the government's priorities. Given that the tourism industry would be
impacted by global warming and rising sea levels, Rentinca's economic reorganisation should
ideally focus on steps to mitigate the situation. The government can cite the Rio Declaration,
the UNFCCC, the Kytoto Protocol, and other international agreements.
The Stockholm Declaration of 197210 set the groundwork for the acknowledgement of
environmental responsibility, which was followed by the Rio Declaration on Environment
and Development in 1992. The Rentican government can point to the Rio Declaration, which
promotes a cooperative and open approach to environmental issues on a global scale. It calls
for financial assistance from foreign partners to enable economic growth and long-term
development. Furthermore, Agenda 21 calls for global cooperation and mutually beneficial
initiatives to maintain long-term viability and economic progress. It also aims to provide
economic assistance to underdeveloped countries while also addressing issues that stymie
economic growth and development. Article 11 of the Kyoto Protocol covers financial
assistance provided by industrialised countries to third parties.
The Mexican government can also look to the 2001 IPCC report, 11 which looked at the
importance of "everyone's responsibility" and how wealthier countries should assist
developing countries in combating global warming and climate change. Furthermore, the
most recent IPCC report has extensively emphasised the significant damages and irreversible
losses in freshwater resources, marine and terrestrial ecosystems, which will result in
biodiversity losses in the coming decade. In this context, the Supreme Court case Research
Foundation for Science v. Union of India 12is significant because it affirmed the notion of
10
StockholmDeclaration, [Link]
sequence=1&isAllowed=y, last visited: 29 May,2020.
11
TAR Climate Change, 2001, [Link] , last visited : 29 May, 2020.
12
Research Foundation for Science v. Union of India,(2005) 10 SCC 510.
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sustainable development and stated that specific risks and hazards must be avoided or
mitigated if they are known. The National Green Tribunal of India (re Court on its own
motion v. State of Himachal Pradesh and Qrs,17) upheld a similar concept, ordering the
authorities to take steps to safeguard the environment from harms exacerbated by climate
change. This is precisely what the government of Rentican is attempting.
The government of Rentican claims that as a developing island nation, they are a victim of
'climate apartheid.' "Climate apartheid," according to UN Special Rapporteur Philip Alston, is
a new trend in which the wealthy industrialised world avoids the climate catastrophe due to
their affluence, while the poorer countries pay the brunt of the burden. In terms of climate
change, the United Nations Framework Convention on Climate Change (UNFCCC) of 1992
is critical because it attempts to reduce greenhouse gas emissions and thereby mitigate the
threat of global warming. The Vienna Convention of 1985 and the Montreal Protocol of 1987
13
both addressed the issue of ozone depletion and aggravated global warming.
There are several cases of international jurisdiction that all relate to the government's
responsibility to protect civilians from the negative effects of climate change. It was
contended in Union of Swiss Senior Women for Climate Change Protection v. Swiss
Federal Council14 that the government had breached the right to life by failing to implement
policies or take steps to reduce global temperature. Sheikh Asim Farooq v. Federation of
Pakistan15 and Mataatua District Maori Council v. New Zealand 16 are two more notable
cases in which the government has been held accountable for failing to execute climate
change and sustainability regulations.
Thus, the Rentican government can argue along these lines that it owes it to its residents to
keep a close eye on climate change and global warming in and around coastal areas, and that
13
Montreal Protocol, [Link] Last Visited:
29 May,2022.
14
Union of Swiss senior Union of Swiss Senior Women for Climate Change Protection v. Swiss Federal Council
Application no. 53600/20.
15
Sheikh Asim Farooq v. Federation of Pakistan,W.P. No. 192069/2018.
16
Mataatua District Maori Council [Link] Zealand, WAI 2607.
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once this is done, the tourism business will boom once more. The government would be able
to repay the IMF loan if the economy boomed as expected.
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HYPOTHETICAL/PROBLEM BASED QUESTION.
PROBLEM 3
List down the violations committed by Mr. Ekos under the Biodiversity Act 2002.
The Naluga tribe is known as the "benefit claimers" because they are the keepers and keepers
of knowledge about the appetite suppressing characteristics of the Hoodia cactus, which is a
"biological resource."
Informed Consent Isn't Given Ahead Of Time
Any company or individual with a "foreign element" must acquire prior authorisation from
the National Biodiversity Board before "obtaining a biological resource" from India's
17
territory. Mr. Ekos shall obtain Hoodia Cactus, a "genetic resource," from a "Provider
party,"18 which, according to CBD, should be either a country of origin or an acquired party.
He is not allowed to even get Hoodia cactus as a present, as it is a prohibited plant. He did not
seek authorization from the chief wildlife warden to obtain Hoodia cactus for scientific
research19 without first obtaining permission from the State government 20, as it is government
property. As a result of Divya Pharmacy v UOI and ors, it is now essential to notify and
obtain consent from NBA.
Mr. Ekos did not fill out an application or pay any costs; instead, he grabbed it from tribal
people without permission from the NBB. Even Mipla India, an Indian corporation, "did not
give prior intimation," in violation of NBA21 Section 24.
As a result, the term 'Commercial Utilization' was coined.
Mr Ekos violated Section 4 by not only transferring the results of his research but also
making money with a third party, Mipla India Ltd. There is no joint research project
approved by the Indian government with a foreign institute, but a foreign individual is not
approved by the Indian government without any mutual support.
Benefits must be shared, according to clause 5(5) of the Nagoya Protocol. Benefit sharing is a
rational act that puts countries' and communities' rights ahead of genetic resources.
17
National Biodiversity Act(2002), §3(1), 2002, India
18
Nagoya Protocol, Article 6 (1), 2010
19
Wildlife Protection Act(1972), §17A, India
20
United Nations General Assembly Resolution 64/292; The Human Right to Water and Sanitation. U.N. Doc.
A/RES/64/292. 2010. [Link]
21
2018 SCC Online Utt. 1035
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Violation of the National Biodiversity Act's Overarching Goals
Mr Ekos applied for a patent for the formula of an anti-obesity drug with a pharma company
without the permission of the National Biodiversity Authority and did not inform them even
after 90 days of receiving the patent, negating the Naluga tribe's earned royalties because he
persuaded the tribe that the research would be for their benefit and they gifted him only for
research purposes. 22Mr. Ekos went against the "mutually agreed terms." The goal of
informing NBA is for it to conduct investigations, consult an expert committee, and, if
appropriate, give approval with some royalty terms and conditions for the benefit of
Indigenous and local communities. Even those who have been granted consent are not
permitted to transfer any biological resource knowledge without first obtaining approval from
the NBA, which is also ratified in the United Nations Declaration on the Rights of Indigenous
Peoples.
Section 3(1) of Scheduled tribes act ensures control and ownership rights to communities23.
Article 39 of Constitution guides the state to preserve the ownership and control of resources
of community.
The lack of a fair and equal sharing system infringes on the rights of the Naluga tribes.
The purpose of the BDAct was to ensure that knowledge was shared in a sustainable, fair, and
equitable manner. After Mr Ekos' deposition, the Naluga 24 tribes are entitled to grants, shared
ownership of IP, monetary compensation (Section 21(2)), and non-monetary advantages
through the national biodiversity fund, but nothing has been done. The conservation of
biological diversity is one of the fundamental objectives of the aforesaid act, and the Naluga
tribes are the ones who are protecting the Hoodia cactus by yielding, maintaining, and
managing it,25 as stated in Article 1 of the Rio De Janeiro Convention 1992.
Since Article 15 (7) of the Biodiversity Convention requires all parties to take actions to
ensure equitable sharing, and Article 5, paragraphs 5 and 7, clearly states that any benefit
22
National Biodiversity Act(2002), §6, 2002, India
23
Scheduled Tribes And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006, S 3(1),
India
24
Kavalappara Kottarathil Kochuni v. State of Madras and Kerala, 1960 AIR 1080
25
World Conservation Strategy, International Union of Conservation of Nature and Natural Resources, May 26,
2022
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arising from the commercialization of genetic resources must be shared fairly and equally
with the party providing such resources in the indigenous country.
Parties must comply with domestic laws under Article 15 of the Nagoya Protocol, and
domestic rules on access and benefit sharing for traditional knowledge connected with
genetic resources are covered under Article 16.
The 1992 Rio De Janeiro Convention and the case of Kavalappara Kottarathil Kochuni v.
State of Madras and Kerala emphasise the importance of FEBS.
Article 21 aims to improve awareness of genetic resources and materials among Indigenous
and local populations.
Measures by NBA-
1) The San Community of South Africa, in collaboration with the CSIR, experienced a
similar situation.
Royalties from the completed product, knowledge exchange, official conservationist status,
and job creation with payment for the cultivation of indigenous plants were among the
solutions inspired by their situation.
2) Section 58 (Cognizable and "non-bailable" offences)
Mr. Ekos can be arrested without an arrest warrant, and bail is granted at the discretion of the
judge. The court will take notice of the offence if the complaint is brought by a "authorised
officer."
3) Penalties and Imprisonment
Mr Ekos (a foreign national) has broken the provisions of sections 3, 4, 6, 20, and 21 and
committed "Biopiracy." He will be sentenced to five years in prison or a stiff punishment of
ten thousand dollars under Section 55(1). Because Section 7 is for industries, he cannot be
held accountable. ABS norms were imposed by the Indian legislation, requiring that 95% of
payments to NBA go to LICs. If this is Mr. Ekos's first offence, he should be held
accountable under Section 56 for violating NBA directives and charged with a least of one
lack.
4) Patent revocation with post-grant opposition actions pursuant to Sections 25(1) and 25 (2)
The patent could be revoked in the present situation, as it was in the cases of Indian wheat,
26
neem, turmeric, and basmati rice. Because Section 4(D) of the Patents Act 1970 requires
"mandatory disclosure of source and geographical origin of biological material," the patent
will be revoked under Section 64,27 because the link between the product (formula here) and
26
Research Foundation for Science, Technology & Ecology & Another V. U.O.I & Other - WP (Civil) No. 64
of 2004
27
SAVA HEALTHCARE LIMITED AND OTHERS VERSUS KARNATAKA BIODIVERSITY BOARD LNIN
DORD 2019 KANT 12367
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the region is essential for the quality and reputation of the good, as stated in Article 22.1 of
the TRIPS agreement. WTO members are required to protect against misleading use under
Section 3.
Infringement of the FEBS is punishable under Article 15(7) of the CBD, which allows parties
to pursue legislative and administrative action.
Article 8(j) of the Vienna Convention requires parties to protect and preserve the expertise
and innovations of ILCs with legal standing.
"The United Nations Charter, the International Covenant on Economic, Social, and Cultural
Rights, the International Covenant on Civil and Political Rights, and the Vienna Declaration
and Programme of Action all affirm the fundamental importance of all peoples' right to self-
determination, which allows them to freely determine their political status and pursue their
economic, social, and cultural development."
There must be a transfer of technology and a venture capital fund should be established.
Remedies Mr. Ekos can avail
Mr. Ekos will undoubtedly be given a fair hearing to explain why the Naluga tribe was not
compensated. He might argue that the Central Government issued an extra Office
Memorandum 2019 under Section 48 of the BD Act, allowing people to get clearance in 60
days, and he was ignorant of it.
The Naluga tribe has given him "Prior Informed Consent" by willingly gifting him 250
samples. Furthermore, there is no potential for Fair and Equitable benefit sharing if there is
no formal consent from NBA under Section 19 and 20 because it only emerges when NBA
grants permission. There was never a contract between them establishing parameters of
benefit sharing and intellectual property, putting the reasoning to rest.
He teamed up with Mipla Ltd's Indian scientists and experts. To avoid legal problems, he can
also contribute royalties to the Naluga tribe as part of "Benefit sharing."
However, since he disobeyed NBA and federal government orders, charges will be brought
against him. He can take his case to the High Court of Gauhati, which has jurisdiction under
Section 28(1)(b) of the Government of India Act 1935 for matters pertaining to the state of
Arunachal Pradesh, as well as the National Green Tribunal under Section 52A for profit-
sharing decision.
Mr. Ekos can argue that the phrase "fair and equitable sharing" is vague. Its meaning can be
deduced from other legislation sections.
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SUGGESTIONS
Unlike the Indian Forest Act (Chapter 9) and the Wildlife Protection Act (Chapter 6), the BD
Act only provides a penalty clause, and section 61 leaves it up to interpretation. As a result, a
penalty chapter in the Biodiversity Act is required.
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