Unit-2

Environmental Policy and Law: Pre & Post Independence Period-

Constitutional provision on Environment and its protection: Right to
Environment-Duty to protect environment-Public interest litigation and
environment-Role of Judiciary on Environmental issues-Doctrine of
Environmental pollution-Precautionary Principle-Inter generational equity
principle-Public trust doctrine.

 ENVIRONMENTAL POLICY AND LAW: PRE & POST INDEPENDENCE

PERIOD
1. Environmental Protection in Ancient Period:-

Forests, Wildlife and more particularly trees were held in high esteem and
held a place of special reverence in Hindu theology. The vedas, Puranas,
Upanishads and other scriptures of the Hindu religion gave a detailed
description of trees, plants and wildlife and their importance to the people.

The Rig Veda highlighted the potentialities of nature in controlling the climate,
increasing fertility and improvement of human life emphasizing for intimate
kinship with nature.

During the Vedic period, cutting of live trees was prohibited and punishment
was prescribed for such acts.

In Srimad Bhagavatam, it has been rightly pointed out that a man who with
exclusive devotion offers respect to sky, water, earth, heavenly bodies, living
beings, trees, rivers and seas and all created beings and considers them as a
part of the body of the Lord attaints the state of supreme peace and God’s
grace.

Yajnavalkya smriti has declared cutting of trees and forests as a punishable

offence.
It appears that the civilization of Mohenjodaro, Harappa and Dravidian
civilization lived in consonance with its ecosystem and their small population
and their needs maintained the harmony with the environment.

The Mauryan period was perhaps the most glorious chapter of the India.
It was in this period that we find detailed and perceptive legal provisions
found in kautalaya’s Arthashastra written between 321 B.C. and 300 B.C.

Law concerning to forest in Arthashastra.

State to maintain forests:-

1. The ruler shall protect produce-forest, elephant forests and shall also
set up new ones.
2. Fines were levied for cutting the tender sprouts of trees in city parks
that bear flowers on fruits or yield shade the fine shall be 6 panas, for
cutting small branches 12 panas ; for cutting stout branches 24 panas.
3. The superintendent shall fix adequate fines and compensation to be
levied on those who cause any damage to any productive forests.
4. With regard to protection of wild life, there were prohibition on killing
of animals and birds.
5. The officer incharge was authorized to impose a fine up to 1000 panas
on those who were found guilty of killing deers, birds, and fish declared
to be under state protection.
6. Wild life in sanctuaries enjoyed complete protection from being killed
except when they turned harmful.

Arthashastra also prescribed punishment for causing pollution and uncivic

sanitation.

Those who threw waste on the roads were fined 1/8 pana, for causing
muddy water the fine was ¼ pana and if person throwed any waste on near
temple, pond or well were levied fines of one pana.

The King Ashoka in his pillar edict has expressed his view point about
the welfare of creatures in his state.
 Totally it can be stated that protection of environment was given must
concern and most importance in ancient period.

HINDU MYTHOLOGY ON ENVIRONMENT PROTECTION.

Hindu religion is one of the oldest religion of the world. Ever since Vedic
times, the main motto of social life was to have in harmony with the nature.
Sages, saints and the great philosophers of India lived in forest and on
mountains where they meditate and expressed in to form, of Vedas,
Upanishads and Smriti.

Accordingly felling of trees, polluting air, water and desert land was regarded
as sin as these were to be respected and regarded as God and Goddesses.

Some of the trees associated with the Gods and Goddesses.

Lotus Laxmi
(goddess of wealth)
Banyan Brahma (creator of
Universe)
Ashoka Buddha
Kadamb Krishna
Palasa Brahma
Neem Sitala
Mango Laxmi
Pipal Vishnu.

Planting of trees was also treated as sacred religious duty and work of great
virtue and regarded one tree to equal ten sons.

One who plant one pipal, one neem, one ber, ten flowering plants creepers,
two pomegranates, two organges and five mango trees will not go to hell.

Similarly, several Hindu Gods and Goddesses have animals and birds as their
associates.

Durga Lion
Brahma Wildgoose
Indra Elephant
Ganesh Elephant, rat
Shiva Bull, serpent, snake
Saraswati Swan, peacock
Vishnu Eagle
Kama Fish
Rama, Hanuman Monkey
Kartikeyan Peacock
Laxmi Owl
Ganga Crocodile
Sitla Ass
Bharirava Dog
Vayu Deer

2. ENVIRONMENTAL PROTECTION IN MEDIEVAL INDIA

From the point of view of environment conservation, a significant

contribution of Moghul emperors has been the establishment of magnificent
gardens, fruit orchards and green park, round about their places, central and
provincial headquarters, public places, on the banks of rivers and in the valley
and dales which they used as holiday resorts or places or temporary
headquarters during the summer season.

Among the officials empowered for administration of justice by the sultans

and the emperors of India, Muhtasibs’ were vested with the duty of
prevention of pollution.

His main duty among others was to remove obstructions from the streets and
to stop the commission of nuisance in public places.

The instructions were given to a newly appointed muhtasib by the emperor

Aurangazed throws a flood of light on the functions of this officer.

In the bazaars and lanes observe if anyone, contrary to the regulations and
customs has screened off a part of the street, or closed the path or thrown dirt
and sweepings on the traffic and opened his shops, there you should in such
cases urge them to remove the violation of regulations.
 3. ENVIRONMENTAL PROTECTION DURING THE BRITISH RULE IN INDIA.

The early days of British rule in India were days of plunder of natural
resources. There was a total indifference to the needs of forest conservancy.

They caused a ‘fierce onslaught’ on India’s forests mainly due to the increasing
demands for military purposes, for British navy, for local construction, supply
of teak and sandalwood for export trade and extension of agriculture in order
to augment revenue.

The British Government started exercising control over forests in the year
1806 when the commission was appointed to enquire into the availability of
teak in Malabar and Travancore by way of appointment of Conservator of
Forests.

The Second half of the 19th Century marked the beginning of an organized
forest management in India with some administrative steps taken to conserve
forest.

The formulation of forest policy and the legislation to implement the policy
decisions. The systematic management of forest resources began with the
appointment of first Inspector General of Forest in 1864.

In 1865 the Forest Act was enacted:- it was the first step of the British
Government to assess state Monopoly right over the forest .

In 1935 the British Parliament through the Government of India Act 1935
created provincial legislatures and the subject of the forest was included in
the provincial legislative list.

Apart from the management of forest resources the British Government also
concentration on certain other areas like water pollution, air pollution, wild
life and land use by enacting numerous legislations.

1. The Shore Nuisance (Bombay and Kolaba ) Act of 1853

2. Oriental Gas Company act 1857
3. The Indian Penal Code 1860
4. The Indian Easement Act of 1862
 5. The Indian Fisheries Act 1897.
6. Smoke Nuisance Act 1905
7. Bombay smoke Nuisance Act 1912.
8. The Elephant preservation Act 1879
9. The wild Birds and Animals Protection Act 1912
10. The Forest Act 1927

4. ENVIRONMENTAL PROTECTION DURING THE POST INDEPENDENCE

ERA.

The post-independence era witnessed a lot of changes in the policies and

attitudes of the Governments with respect to environmental protection.

Under the constitution various provisions directly or indirectly deals with

environmental protection.

 Article 39(b), 47, 48, 49,

 In 1952 the country adopted the National Forest Policy.
 In 1972 the wild life Protection Act was enacted
 In 1973 the Project Tiger
 In 1974 the water(Prevention and control of pollution)Rules
 Under 42nd Amendment of the constitution in 1976 Art 48-A and 51(A)
(g) was inserted
 Forest conservation Act in 1980.
 In 1981 Air (Prevention and control of pollution) Act
 In 1983 the wild life (protection)
 In 1986 the Environment (protection) Act

And many rules and regulation for the control, prevention and abatement of
the pollution was formulated in post-independence era.

From STOCKHOLM TO JOHANNESBURG DECLARATION

1. STOCKHOLM CONFERENCE ON HUMAN ENVIRONMENT

This conference took place at Stockholm from 5 th -16 June 1972 with the main
objective

1. Planning and management of human settlement for environmental

quality.
2. Environmental aspects of natural resources management
3. Identification and control of pollutants and nuisance of broad
international significance
4. Educational, informational, social and cultural aspects of
environmental issues
5. Development and environment.
6. International organizational implications of action proposals.

The declaration is divided into 2 parts

 Ist part proclaims 7 truths about man in relation to his environment.

 IInd part enunciates 26 principles.

The Action plan for the human environment

The declaration on Human environment was also accompanied by an

“Action Plan” which was intended for practical realization of the declaration.

Broadly the Action Plan may be categorized under the following 3 heads.

1. The global environmental assessment programme or an earth watch

programme
2. Environment management activities.
3. International measure to support the national and international
actions of assessment and management.

THE UNITED NATIONS ENVIRONMENT PROGRAMME [UNEP]

On the basis of the recommendations of the Stockholm conference. The

UNEP was created and adopted by General Assembly of the United states on
December 15 1972. Its headquarters is at Nairobi, Kenya.

58 members governing council for the environmental programme was

set up and it was directed to keep under review the world environmental
situation in order to ensure that emerging environmental problems of wide
international significance receive appropriate and adequate consideration by
government.

UNEP, is the designated authority of U.N.System in in environmental

issues at global and regional level. Its mandate is to co-ordinate the
development of environmental policy consensus by keeping the global
environment under review and bringing emerging issues to the attention of
governments and the international community for action.

The following are some of the important conventions adopted after

Stockholm Conference which was subsequently ratified by a number of states
thus making a significant era from the point of view of environmental
protection.

1. The Convention for the protection of Marine pollution by dumping of

wastes and other wastes and other matter 1972.
2. The convention for the protection of the world culture and Natural
Heritage 1972.
3. The convention on International trade in endangered species of wild fauna
and flora 1973.
4. The international convention for the prevention of marine pollution by
dumping from ships and Aircrafts 1973.
5. The U.N convention on the prevention of Marine pollution form land based
sources 1974.
6. Convention on long –range trans-boundary Air-pollution 1979.
7. The united nations convention on the law of the sea, 1982.
8. The habitat conference 1976.
9. United nations conference on desertification 1977.
10. The 10th Anniversary of Stockholm Conference.

The UNEP convened an International conference at Nairobi in

May 1982. In this conference which was held from 10 th to 18 th May
1982 , 105 nations participated.
 The conference adopted a declaration to frame long term environmental
strategies for achieving sustainable development upto to year 2000 and
beyond.

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WATER POLICY

THE NATIONAL WATER POLICY 1987:-

NEED FOR A NATIONAL POLICY

Water is a prime natural resources , a basic human need and precious asset.
Planning and development of water resources need to governed by national
perspectives.

It is estimated that out of the total precipitation of around 400 million

hectare meters in the country.

The surface water available is about 178 million hectare meters. Out of this
about 50% can be put to beneficial use because of topographical and other
constraints.

The availability of water is highly uneven in both time and space.

Precipitation is confined to only about three or four months a year. Further,
water does not respect state boundaries, not only rivers and even ground
waters also.

Water as a resource is one and indivisible; rainfall , river waters, surface

ponds, lakes and ground waters are all part of one system.

Even the planning and implementation of individual irrigation or multi-

purpose projects, though done at state level, involve a number of aspects and
issues such as environmental protection, rehabilitation of project-affected
people and livestock, public health consequences of water impoundment ,
dam safety etc. On these matter common approaches and guidelines are
necessary.
 There are also complex problems of equity and social justice in regard
to water distribution.

The development and exploitation of country’s ground water resources

also give rise to questions of judicious and scientific resource management
and conservation. All these questions need to be tackled on the basis of
common policies and strategies.

The growth process and the expansion of economic activities inevitably

lead to increasing demands for water for diverse purpose; domestic,
industrial, agricultural, hydro-power, navigation, recreation etc.,

International drinking water supply and sanitation Decade programme

1981-1991.

In keeping the objectives of this programme, the drinking water needs

of people and livestock have also to be met.

Adequate water facilities have to be provided to the entire population in both

urban and rural areas and sanitation facilities to 80% to the urban population
and 25% of the rural population by the end of the decade.

Domestic and industrial water needs have largely been concentrated in

or near the principal cities, but the demand from rural society is expected to
increase sharply as the development programmes improve economic
conditions in the rural areas.

The demand for water for Hydro and thermal power generation and for other
industrial uses is also likely to increase substantially.

The water utilization and a public awareness of the importance of its

conservation. The innovation of new techniques resting on a strong science
and technology base will be needed to eliminate the pollution of surface and
ground water resources, to improve water quality and to step up the
recycling and re-use of water. Science and technology and training have also
important roles to play in water resources development in general.
Efforts to develop, conserve, utilize and manage this important resources
have to be guided by national perspectives.

The need for a national water policy is thus abundantly clear.

INFORMATION SYSTEM

The prime requisite for resource planning is a well-developed information

system. A standardized national information system should be established
with a network of data banks and data bases. Integrating and strengthening
the existing central and state level agencies and improving the quality of data
and the processing capabilities.

MAXIMIZING AVAILABILITY:-

The water resources available to the country should be brought within the
category of utilizable resources to the maximum possible extent. The
resources should be conserved and the availability augmented by measures
for maximizing retention and minimizing losses.

Recycling and re-use of water should be an integral part of water resources

development.

PROJECT PLANNING

Water resource development projects should as far as possible be planned

and developed as multipurpose projects.

Provisions for drinking water should be a primary consideration.

The projects should provide for irrigation, flood mitigation, hydro-electric

power generation, navigation, and recreation wherever possible.

The study of the impact of a project during construction and later on human
lives, settlements, occupation, economic and other aspects should be an
essential component of project planning.

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RIGHT TO ENVIRONMENT-CONSTITUTIONAL PROVISIONS ON
ENVIRONMENT AND ITS PROTECTION.

The Indian constitution is amongst the few in the world that contains
specific provisions on environment protection. The directive principles of
state policy and the fundamental duties chapters explicitly enunciate the
national commitment to protect and improve the environment.

ARTICLE 47

It imposes a duty upon the state to raise the level of nutrition and the
standard of living of its people and improve public health.

MUNICIPAL COUNCIL, RATLAM V/S VARDHICHAND AIR 1980 SC 1622

The state will realize that Art 47 makes it a paramount principle of

governance that steps are taken for the improvement of public health as
amongst its primary duties.

Article 48

It directs the state to take to organize agriculture and animal husbandry on

modern and scientific line.

In particular it is directed to take steps for preserving and improving the

breeds and prohibiting the slaughter of cows, calves and other milch (milk
giving) and draught cattle.

Article 253:- it empowers the parliament to make any law for the whole or
any part of the territory of India for implementing any treaty, agreement or
convention with any other country or countries or any decision made at any
international conference, association or other bodies.

In 1972 India’s Prime Minister Late Mrs. Indira Gandhi attended the United
Nations Conference on Human Environment at Stockholm. India is one of the
signatories of Stockholm Declaration which is known as the Magna Carta on
human environment.
The 42nd amendment Act 1976

A new article was added to the constitution,

Article 48A

Which directs the state to protect and improve the environment and to
safeguard forest and wild life.

M.K.JANARDHANAM V. DISTRICT COLLECTOR, TIRUVALLUR (2003)

It was observed that ‘the phrase used in Art 48A is protect and improve
which implies that the phrase appears to contemplate affirmative
governmental action to improve the quality of the environment and not just to
preserve the environment in its degraded form.

SHRI SACHIDANAND PANDEY V. STATE OF W.B (AIR 1987 SC 1109)

The Hon’ble Supreme Court held that whenever a problem of ecology was
brought before the court, the court was bound to bear in mind Article 48 A
and 51 A(g) of the constitution.

T. Damodhar Roa V. S.O. Municipal Corporation Hyderabad. ( AIR 1987

AP 171)

It was pointed out by the court that in view of Articles 48A and 51A(g) it is
evident that the protection of environment is not only the duty of citizens but
it is also the obligation of the state and all other state organs including courts.

The Madras High court held that the ‘phrase ‘protect and improve implies
government affirmative governmental action to improve the quality of the
environment and not just to preserve the environment in its degraded form.

Article :- 49

To protect every monument or place or object or artistic or historic interest

(declared by or under law made by parliament) to be of national importance
from spoliation, disfigurement, destruction, removal, disposal or export.

Article 51
That the state should strive to foster respect for international law and treaty
obligation.

Article 51A (g)

It shall be the fundamental duty of a citizen of India to protect and improve

the natural environment including forests, lakes, rivers, and wildlife to have
compassion for living creatures.

Vijay Singh Puniya v. state of Rajasthan (AIR 2004 RAJ 1)

It was observed that ‘any person who disturbs the ecological balance or
degrades, pollutes and thinkers with the gifts of the nature such as air, water,
river, sea and other elements of the nature, he not only violates the
fundamental right guaranteed under Article 21 of the constitution but also
breaches the fundamental duty to protect the environment under Art 51A(g).
this observation was made in a writ petition filed against dyeing and printing
units, which were discharging effluents and polluting the water sources used
for agricultural effluents and polluting the water sources used for agricultural
and drinking purposes.

Shri. Sachidanand pandey vs state of W.B. AIR 1987 SC 1109

The supreme court remarked that whenever a problem of ecology was

brought before the court, the court was bound to bear in mind Art 48 A and
Art. 51A(g).

KINKRI DEVI V/S STATE OF HIMACHAL PRADESH [AIR 1988 HP 4]

The H.P High court laid down the view of Art 48 A and Art. 51A(g) there is
both a constitutional pointer to the state and a constitutional duty to the
citizens not only to protect but also to improve the environment and to
preserve and safeguard the forest, flora and fauna, the river, lakes, and other
water resources of the country.

Intellectuals Forum, Tirupathi V/S State Of Andra Pradesh (2006) 3 SCC

549
The case is related to cleanliness at Tirupathi and the authorities had failed to
maintain the required cleanliness in the city of religion importance.

The court was required to deal with the question at the jurisprudential level
as it related to the conflict between the competing interests of protecting the
environment and social environment.

Hence, the court held that; the responsibility of the state to protect the
environment is now a well-accepted notion in all documents. Thus there is a
responsibility bestowed upon the government to preserve and protect the
natural resources, under Article 48 A.

L.K.Koolwal v/s state of Rajasthan [AIR 1988 Raj 2)

The petitioner L.K.Koolwal moved a writ petition under Art 226 of the
constitution before the Rajasthan High court that the municipality has failed
to discharge its

Article 21

Right to healthy environment, it states that no person shall be deprived of his

right to life and personal liberty expect according to procedure established by
law.

Right to life was never regarded to include right to whole some or pure
environment.

The I st case to indicate Art 21 and environment

RURAL LITIGATION AND ENTITLEMENT KENDRA, DEHRADUM V/S

STATE OF UTTAR PRADESH. AIR 1985 S.C 652

In this case illegal lime stone mining in Mussorie –Dehradum region was
devastating the fragile ecosystem in the area.

The supreme court in an application under Art 32 has ordered the closure of
some of these quarries on the ground that their operations were upsetting
ecological balance.
Although Art 21 is not referred to in these judgements of the supreme court,
those judgements can only be understood on the basis that the supreme court
entertained these environmental complaints under Art 32 of the constitution
as involving of Art 21 ie “RIGHT TO LIFE”

Subhash kumar v/s state of Bihar

In this case the court held that the right to life, Includes the right to enjoy
unpolluted air and water, if anything endanger to impair the quality of life is
against law.

A citizen has right to move to the supreme court under Art 32 of constitution.

VIENDAR GAUR V/S STATE OF HARAYAN [1995(2) SCC 577]

In this case the court held that,

Any activities which cause environmental pollution should be regarded as

amounting to violation of Art 21 therefore hygiene environment is a integral
part of right to healthy life and it would be impossible to live with human
dignity without a healthy environment.

Hence Art 21 guarantees fundamental right to life – a life of dignity to be lived

in a proper environment free from danger of disease and infection.

It is an established fact that there exists a close link between life and
environment.

Rights to life would become meaningless if there is no healthy environment.

NARMADA BACHAO ANDOLAN V. UNION OF INDIA (2000)

The Hon’ble Supreme court held that ‘water is the basic need for the survival
of human being s and is part of right to life and human rights as enshrined in
Article 21 of the constitution of India.

It is a matter of great concern that eve after half a century of freedom, water is
not available to all citizens even for their basic drinking necessity violating
human right resolution of UNO and Article 21 of the constitution of India.
ARTICLE 14 AND ENVIRONMENT

Apart from art-21 the right to equality guaranteed in Art-14 of the

constitution may also be infringed by governmental decision that have an
impact on the environment.

Art-14 may also be invoked to challenge government sanctions for mining and
other activities with high environmental impact on the environment.

Thus urban environmental groups frequently resort to Art 14 to quash

“arbitrary municipal permission for construction that are contrary to
development regulation.

Art- 14 may also be invoked to challenge government sanctions for mining

and other activities with high environmental impact.

FREEDOM OF TRADE AND ENVIRONMENTAL PROTECTION

ARTICLE 19(1) (g):-

It states “all citizen shall have the right to practices any profession or to carry
on any occupation, trade or business.

As environmental regulations grow more stringent and its enforcement

becomes more vigorous, industrial challenge is likely to increase.

In such a situation the court will need to balance environmental interest with
fundamental right to carry on any trade, occupation or business guaranteed in
Art 19(1) (g).

ABHILASH TEXTILE V/S RAJKOT MUNICIPAL CORPORATION (AIR 1988

GUJ 57)

In this case the petitioner were discharging dirty water from the factory on
public road and in public drainage without purifying the same, thereby
causing damage to the public health.

In this case the court held that one cannot carry on the business in the manner
by which the business activity becomes a health hazard to the entire society.
Conclusion.

The constitution being supreme law of the land shall be binding on not only te
citizens and non-citizens but also on the state itself.

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EVOLVING OF NEW PRINCIPLES

CHIEF JUSTICE BHAGWATI:-

M.C.METHA V. UNION OF INDIA [AIR 1987 SC 1086 ],

Declared that unambiguous terms that “we have to evolve new principles and
lay down new norms , which would adequately deal with the new problems
which arise in a highly industrialized economy.

 We cannot allow our judicial thinking to be constricted by reference to

the law as it prevails in England or for the matter of that in any other
foreign country.
 We no longer need the crutches of a foreign legal order.
 Thereafter the formulation of certain new principles and
pronouncements of new doctrines ‘as a part of law of this country’ for
protection of environment is a remarkable achievement of the Indian
judiciary.
 Some of the principles and doctrines propounded by the Indian
judiciary are as follows,

The organization of economic cooperation and development

For the first time agreed to base their environmental policies on

“polluter pays principle” and it was recommended as an “essentially
economic efficiency measure to internalize environmental costs.”

PPP:- POLLUTER PAY PRINCIPLE

Means that the polluter should bear the expenses of carrying out the
measures which resulted in the damage.
 The harm caused to the environment not only extends to compensate the
victims of pollution but also the cost to restore the damaged environment.

It involves 2 aspects, one is that the cost to compensate the victims of

pollution and the other one is that the cost of restoring the environment
damaged to its previous state.

Polluter pays principle means that absolute for harm to the environment
extends not only to compensate the victims of pollution, but also the cost of
restoring the environmental degradation.

Hence the polluter is liable not only to pay the cost to the individual users
but also to the cost of reversing the damaged ecology.

RIO-DECLARATION

PRINCIPLE 16:-

Proclaims that national authorities should endeavor to promote the

internalization of environmental costs and the use of economic instruments
taking into account the approach that the polluter should in principle, bear the
cost of pollution with due regard to the public interest and without distorting
international trade and environment.

PPP:- which was originally considered as an economic and administrative

measure to restrain and control the pollution problem has recently been
recognised as a powerful legal tool to combat environmental pollution and
associated problems.

The Indian courts also applied the polluter pays principle for compensating
and repairing the damage caused by the omission of the polluting industries.

INDIAN COUNCIL FOR ENVIRO LEGAL ACTION V. UNION OF INDIA [1996]

3 SCC 212.

The Hon’ble Supreme court for the Ist time applied the polluter pays
principle in this case.
 The court held that the polluting industries are absolutely liable to
compensate for the harm caused by them to the villagers in the affected areas
to the soil and to the under-ground water and hence they are bound to take all
necessary measures to remove sludge and other pollutants lying in the
affected areas.

VELLORE CITIZENS WELFARE FORUM V/S UNION OF INDIA [1996] 5

SCC 647 TO 658

In this case the supreme court has declared that the polluter pays principle
is an essential feature of sustainable development.

The court declared that this principle has been accepted as part of the law
of the land and also customary international law and hence it becomes a part
of the law of this country.

The court directed the central government to constitute an authority to

assess the damages caused to the environment by the tanneries.

In accordance to this direction, the “loss of ecology authority” was

constituted.

The authority was also directed to determine the compensation to be

recovered from the polluters as cost of reversing the damaged environment.

The authority shall compute the compensation under 2 heads namely, for
reversing the ecology and for payment to individuals.

S.JAGANATH V. UNION ON INDIA [AIR 1997 SC 811]

In this case, it was found that the shrimp culture industry in and around
chilka and pulikat lakes, adjacent to the East coast was causing salinity of the
soil and the drinking water.

This industry also caused effects on the local flora and fauna.

Hence the supreme court ordered for the closure of the shrimp culture
industries.
It also directed the industries to compensate the individual for reversing the
damage caused to the ecology.

M.C.MEHTA V/S KAMALNATH (1997) 1 SCC 388.

In this case the supreme court held that the Span Hotel interfered, into the
natural flow of the river Beas by trying to block the natural relief/spill channel
of the river.

Hence, the hotel was directed to pay compensation by way of cost for the
restitution of the environment and ecology of the area by applying the
polluter pay principle.

PRECAUTIONARY PRINCIPLE

Before 1972 at the international level, it was the concept of assimilative

capacity which was there in operation.

The theory of assimilative capacity.

According to this theory the environment having assimilative process, the

environment absorbs itself the shock of pollution, but beyond certain limit
the pollution may cause damage to the environment requiring the efforts to
repair it.

Thus according to assimilative theory, the role of the law will begin only
when the limit is crossed.

But pollution cannot wait for action to be postponed for investigation of its
quality, concentration and boundaries.

So, there was a shift from the principle of ‘assimilative capacity’ to the
‘precautionary principle’.

RIO-DECLARTION

It proclaims that “in order to protect the environment the precautionary

approach shall be widely applied by states according to their capabilities.
 Where there is threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost effective
measures to prevent environmental degradation.

VELLORE CITIZENS WELFARE FORUM V. UNION OF INDIA

The Supreme Court declared that the precautionary principle is an

essential feature of sustainable development.

The Supreme Court has also supplied meaning to the precautionary

principle in the context of the Municipal law.

According to which it means,

i) Environmental measures:- by the state government and the statutory

authorities – must anticipate, prevent and attack the causes of environmental
degradation.

(ii) Where there are threats of serious and irreversible damage, lack of
scientific certainty should not be used as a reason for postponing measures
to prevent environmental degradation.

(iii) The ‘onus of proof’ in on the actor or the developer/industralist to show

that his action is environmentally benign.

The supreme court stated that “the precautionary principle suggest that
where there is an identifiable risk of serious and irreversible harm, including ,
for example extinction of species, wide spread toxic pollution , major threats
to essential ecological processes, it may be appropriate to place the burden of
proof on the person or entity proposing the activity that is potentially harmful
to the environment.

M.C.METHA V. UNION OF INDIA (AIR 1996 SC 2715) OR TAJ MAHAL CASE

In this case the Supreme Court for protecting the Taj Mahal from air
pollution, directly applied precautionary principle.
 In 1984, M.C.Metha, a conscentious advocate, place a case before the court
the material he had gathered and warned of damage to the Taj Mahal from
air pollutants.

According to the petitioner, the foundries, chemical/hazardous industries

and the refinery at Mathura were the major sources of damage to the Taj.

The sulphur dioxide emitted by the Mathura Refinery and the industries
when combined with oxygen- with the aid of moisture- in the atmosphere
forms sulphuric acid called “ACID RAIN’, which has a corroding effect on the
gleaming white marble.

Industrial /refinery emissions, bricks kilns, vehicular traffic and generator-

sets are primarily responsible for polluting the ambient air around Taj
Trapezium Zone (TTZ).

The petition states that the white marble has yellowed and blackened in
places.

It is inside the Taj that the decay is more apparent. Yellow pallor pervades
the entire monument. The court stated that the ‘Taj, apart from being a
cultural heritage, is an industry by itself. More than two million tourists visit
the Taj every year. It is a source of revenue for the country.

This court has monitored this petition for over three years. Experts studies
proved that emissions from coke/coal based industries in the Taj trapezium
zone had damaging effect on the Taj Mahal.

The court observed that “the atmospheric pollution in TTZ has to be

eliminated at any cost. Not even 1% chance can be taken when-human live
apart-the preservation of a prestigious monument like the Taj is involved.

The court held that the industries , identified by the pollution control board
as potential polluters, had to change over to natural gas as an industrial fuel
and those who were not in a position to obtain gas connection should stop
functioning in TTZ.
 A.P. POLLUTION CONTROL BOARD V. PROF M.V.NAYUDU (AIR 1999 SC
912)

The Supreme court referred to the formulation of the precautionary principle

and the new burden of proof. The court observed ‘the principle of precaution
involves the anticipation of environmental harm and taking measures to avoid
it or to choose the least environmentally harm and taking measures to avoid it
or to choose the least environmentally harmful activity.

It is based on scientific uncertainty. Environmental protection should not only

aim at protecting health, property and economic interest but also protect the
environment for its own sake. Precautionary duties must not only be triggered
by the suspicion of concrete danger but also by justified concern or risk
potential.

To give effect to the precautionary principle the Ministry of Environment and

forests, Government of India, published a notification, which states that the
expansion or modernization of any existing industry or new projects listed in
Schedule I or Schedule II shall not be undertaken in any part of India, unless it
has been accorded environmental clearance by the Central Government or as,
the case may be the state Government concerned in accordance with the
procedure hereinafter specified in this notification.

The object of this notification is that development projects should be carried

on within the carrying capacity of the ecosystem, which will otherwise come
under stress, so as to ensure that the development activity takes place in
harmony with the environment.

This could be achieved only by careful assessment of a project proposed to be

located in any area, on the basis of an environmental Impact Assessment (EIA)
of each project and the necessary Environment Management Plan for the
prevention, elimination or mitigation of the impact, right from the inception
stage of the project.
PUBLIC TRUST DOCTRINE

It is a principle that certain resources are preserved for public use, and that
the government is required to maintain them for the public’s reasonable use.

Who owns the Earth and its resources? To what extent may the general public
claim the purity of water, clean air, rich soil, and the myriad services Earth
provides to sustain human life?

The public Trust Doctrine primarily rest on the principle that certain
resources like air, sea, water and forests have such a great importance to the
people as a whole that it would be wholly unjustified to make them subject of
private ownership. The said resources being a gift of nature, they should be
made freely available to everyone irrespective of the status in life.

The doctrine enjoins upon the Government to protect the resources as

trustees for the enjoyment of the general public rather than to permit their
use for private ownership or commercial purposes.

Article 48A and 51 A of the constitution also furnish the principles of

jurisprudence. Under this doctrine, the state has a duty as a trustee under
Article 48 A to protect and improve the environment and safeguard the
forests and wildlife of the country.

This public trust doctrine serves two purposes.

1. It mandates affirmative state action for effective management of

resources and
2. Empowers citizen to question ineffective management of natural
resources.

The Stockholm Declaration of Unites Nations on Human Environment

evidences this seminal proposition:

The natural resources of the earth, including the air, water, land, flora and
fauna and especially representative samples of natural system, must be
safeguarded for the benefit of present and future generation through careful
planning or management as appropriate.

M.C.METHA V/S KAMALNATH (1997) 1 SCC 388

Facts of the case.

A news item appeared in Indian Express stating that a private company Span
Motels Pvt. ltd in which the family of Kamal Nath (the former Minister of
environment and forest) had built a club at the bank of River Beas by
encroaching land including substantial forest land which was later regularized
and leased out to the company when Kamal Nath was the minister.

It was stated that the Motel used earth movers and bulldozers to turn the
course of the river Beas.

The effort on the part of the motel was to create a new channel by diverting
the river flow.

The main news was that the diversion of the river flow to save the Motel from
future floods.

In this case the Doctrine of Public trust was applied by,

The court.

Justice Kuldip Singh: - tracing the origin of this Doctrine stated that “ the
Roman Empire developed a legal theory known as the Doctrine of Public
Trust”.

It was founded on the ideas that certain common properties such as

rivers, seashores, forests, and the air were held by government in Trusteeship
for the free and unimpeded use of the general public.

The supreme court stated that “The state is the trustee of all natural
resources, which are by nature meant for public use and enjoyment.

Public at large is the beneficiary of the sea shore, running waters, airs,
forest and ecologically fragile lands. The state as a trustee is under a legal duty
to protect the natural resources.
These resources meant for public use cannot be converted into private
ownership. This doctrine primarily rests on the principle that certain
resources like air sea, waters and the forests have such a great importance to
the people. The said resources being the gift of nature, they should be made
freely available to everyone irrespective of the status of life.

So such properties shall not be permitted for commercial ownership.

Three types of restrictions on governmental authority.

1. Such type of property shall be used for a public purpose.

2. The property shall not be sold even for a fair cash equivalent.

3. The property shall be used for particular types only.

BANGALORE MEDICAL TRUST V/S B.S MUDAPPA [AIR 1991 SC 1902]

In this case, the Bangalore development authority, had allotted a piece of

land in the blue print in a upcoming layout for a public park.

But later on the same piece of land, was given for a private hospital.

A conscious citizen filed a case against the hospital and authorities that
allotting the public place for a private hospital is illegal.

A hospital may serve the society, but a private hospital essential has
commercial business.

The importance of public parks and its impact of the health of the people was
stated in this case.

And the land was used for Public Park.

Here also the public trust doctrine was explained and implemented.

K.M. CHINNAPPA V. UNION OF INDIA (AIR 2003 SC 724)

This was a petition challenging the renewal of mining lease granted to

Kudremukh Iron Ore Company in the Kudremukh National Park.
The Supreme Court held that the pristine glory of the natural resources
cannot be allowed to be eroded or encroached unless the courts find it
necessary in good faith for public good and in the public interest.

FORMENTO RESORTS AND HOTELS LTD V. MINGUEL MARTINS (2009) 3

SCC 571.

The court has reiterated the doctrine and observed that the natural resources
including forest, water bodies, rivers etc are held by the State as a trustee on
behalf of public and especially for future generations.

The above discussions on the Doctrine of Public Trust and various cases laws
makes it evident that the state is not the owner of the natural resources in the
country but a trustee who holds fiduciary relationship with the people.

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ROLE OF JUDICIARY IN PROTECTION OF ENVIRONMENT

Indian judiciary has played a vital role to control the problem of

environmental pollution.

It has brought remarkable changes in Indian legal system by promoting public

interest litigation as a useful apparatus for redressal of public grievances
arising out of environmental pollution

The constitutional courts of India have made immense contribution to

environmental jurisprudence of our country to give envirojustice to common
man.

These courts have entertained quite a lot of genuine public interest litigations
[PIL] and class-action cases under Art-32 and 226 of the constitution.

These courts have issued various directions on a number of issues concerning

environment as part of their overall writ jurisdiction and in that context they
have developed a vast environmental jurisprudence.

The courts have used Art 21 to mould its decisions in order that complete
justice could be done.
Public interest litigations

The PIL in India initiated by the Hon’ble Supreme Court emerged through
human rights jurisprudence and environmental jurisprudence.

The Supreme Court while taking cognizance on the petition has further
relaxed the requirement of a formal writ to seek redressal before the court.

Any citizen can invoke the jurisdiction of the court, especially in human rights
and environmental matters even by writing a simple post card.

It has been explicitly stated by the apex court that grievances of the public at
large for violation of their rights should be given opportunity to go before it
for the protection of common rights and interests.

Municipal council, Ratlam v/s Vardhichand AIR 1980 SC 1622

The first case of considerable importance in which the supreme court of India
gave directions for removal of open drains and prevention of public excretion
by the nearby slum dwellers.

In this case Justice Krishna Ayer.,J gave several directions to the Ratlam
Municipality for maintenance of Public Health.

B.L.Wadhera v/s union of India [AIR 1996 SC 2969.]

The Supreme Court relying on Municipal Council, Ratlam V. Vardichand

categorically asserted that ‘Residents have constitutional as well as statutory
right to live in a clean city and authorities concerned have a mandatory duty
to collect and dispose of the garbage/waste generated from various sources in
the city.

Non-availability of funds, inadequacy or inefficiency of staff, insufficiency of

machinery, etc cannot be pleaded as grounds for non-performance of their
statutory obiligation.

This PIL was filed against Municipal corporation of Delhi for the non-
performance of mandatory duties like garbage clearance, disposal of bio-
medical wastes, scavenging and cleaning Delhi city.
RURAL LITIGATION AND ENTITLEMENT KENDRA, DEHRADUM AND
OTHERS V/S STATE OF UP [AIR 1985 SC 652]

In this case the Hon’ble Supreme Court ordered closure of all lime-stone
quarries in the Doon Valley taking notice of the fact that lime-stone quarries
and excavation in the area had adversely affected water springs and
environmental ecology.

TARUN BHARAT SANGH V/S UNION OF INDIA 1992 (2) SCC 448

The petitioner through a PIL brought to the notice of the court that the state
government of Rajasthan itself permitted the degradation of the environment
by authorizing mining operation in the area declared as “Reserve Forest”

The Supreme Court issued directions that no mining operation of whatever

nature shall be carried on within protected area.

T.N GODAVARMAN THIRUMULKPAD V. UNION OF INDIA (1997) 2 Scc 267

The Hon’ble Supreme court issued interim directions that all the on-going
activities within any forest in any state throughout the country, without the
permission of the central government must be stopped forthwith. Running of
saw mills including plywood mills within the forest was also stopped.

M.C.MEHTA V/ KAMAL NATH (1997) 1 SCC 388

In this case the state government had granted riparian forest land for lease for
commercial purpose to a private company having a hotel located at the bank
of river Bias, which blocked the natural flow of river by blocking natural
relief/spill channel of the river.

The court held that the state has committed breach of public trust.

The Supreme Court issued various directions including the cancelation of the
lease in favour of the Hotel. It applied polluter pay principle and thus directed
that the Hotel shall pay compensation by way of cost for the restitution of the
environment and ecology of the area.
In VELLORE CITIZENS WELFARE FORUM V. UNION OF INDIA (AIR 1996 SC
2715)

This PIL was directed against the pollution which is being caused by
enormous discharge of untreated effluent by the tanneries into agricultural
fields, road sides, water ways, open lands and finally discharged into river
Palar.

The Hon’ble Supreme Court has observed that “The Constitutional and
statutory provisions protect a person’s right to fresh air, clean water and
pollution free environment, but the source of the right is the inalienable
common law right to clean environment..

Our legal system having been founded on the British Common law, the right of
a person to pollution free environment is a part of the basic jurisprudence of
the land.

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