Environmental Protection And Supreme Court Activism

Environment and life are interrelated. Our lives depend on natural resources such as air, water, and
land. Environmental destruction threatens survival; conversely, human rights violations can cause
environmental degradation, for instance, war can lead to loss of access to clean water. Thus, the
quality of environment is undeniably related to our enjoyment of the right to life. Because of this
interrelationship, environmental and human rights advocates have pushed for the extension of the
right to address environmental harm. This essay examines how national courts use the right to life
to protect environment.

INTRODUCTION

Constitutions of almost all nations guarantee the right to life. In recent years, national courts of
some countries have used the right-to-life provision as a legal tool to protect environment by
redefining the scope and meaning of the provision. Indian courts have made the greatest
contribution on this issue. Article 21 of the Indian Constitution provides that no person shall be
deprived of his life or personnel liberty except according to procedures established by law.
Despite being framed as a negative right, the Supreme Court expands it in two ways. First, any
laws affecting personal liberty should be reasonable, fair and just. Second, the court recognized
several liberties implied by Art.21. It is by the latter the court interprets the right to the life to
encompass the right to healthy environment. In Subash Kumar, one of the earliest cases on this
issue, the court opined that the right to life included the right to enjoyment of pollution free water.

The role of the Supreme Court as final interpreter is increasingly reflected in various judgments.
The most important achievement of modern law in India is the constitutionalisation of
environmental problems by the apex court of India. Indian environmental jurisprudence, is
achieving new dimensions day by day. The various statuses have been interpreted in the light of the
constitutional scheme relating to projection and preservation of the natural environment issue.
Before the year of 1980 there were legislations about control of pollution but little had been done to
really make pollution control. But in present time the Supreme Court of India expand the meaning
of Environmental rights. The Supreme Court making creative interpretation which led to the
creation of new rights. As under article 21 this court has created new rights including the right to
health and pollution free environment.
BACKGROUND

The root of development can be placed to the opinion of Krishna Iyer J. in municipal council
Ratlam V. Vardhichand.[i] The case arise out of simple circumstances. The municipal council of
Ratlam failed to take steps to maintain roads in a particular locality in a safe and sanitary condition.
The sole excuse of the municipal board was that it had no money to maintain the road. Krishna
Iyer J. stated that those were an urgent need to focus on the ordinary man. Quoting from a famous
work access to Justice[ii] Iyer J said the recognition of this urgent need reflects a fundamental
change in the concept of procedural justice.. The new attitude to procedural justice reflects
what Prof. Adolf Homburger has called a radical change in the hierarchy of values served by
civil procedure the paramount concern is increasingly with social justice, i.e., with finding
procedure which are conducive to the pursuit and protection of the rights of ordinary people. The
court noted that the matter had been pending for more than seven years. It specifically read into the
situation a constitution directive for the court and observed Where directive principles have found
statutory expression in dos and donts the court will not sit idly by and allow municipal
government to become a statutory mockery. The law will relentlessly be enforced and the plea of
poor finance will be poor alibi when people in misery cry for justice.

If the opinion in Ratlam is read critically, the opinion reveals a paradigm change in the role of the
courts. Ordinarily and particularly before Ratlam the role of court was considered reactive. They
were specifically to dispense justice where rights have been denied. Iyer J added a proactive
dimension by stating that where that directive principals of the Constitution have spelled out the
desired acts or omissions, the court are under a duty to relentlessly enforce the law. This
formulation has emboldened the efforts at environmental protection. It reinforced the idea that
judicial power can command obedience from reluctant bureaucracies.

As the result of the 42nd amendment to the constitution the directive principals categorically the
need for a healthy environment and thus indicated the dos and donts needed for a healthy
environment. The necessary implication was that the courts have a duty to relentlessly enforce this
law. This was an open invitation to constitutionalism the problems of management of the
environment. This opened the doors of higher courts to intervene in enforcement of environment
legislation. A separate forum to force the state to take required measures for environmental
protection was opened. The result of Ratlam is that in the following 25 years there has been a spate
of judicial opinions from the higher courts that have formally put the environment problems on a
constitutional pedestal.

The fundamental right to a wholesome environment is not expressly guaranteed by the

Constitution. Part III of the constitution does not specifically enumerate any such right. The right to
wholesome environment has been sub-silentio recognized by the Supreme Court in a chain of
cases. This sub-silentio approach exhibits a tendency to avoid raising any controversy on such a
question. It can mean any of the two things. It can either mean that the right to wholesome
environment is ipso-facto a part of the right of life and personal liberty too well understood to
require rationalization. The other alternative reading may be to introduce this right without any
rationalization so as to avoid a debate on the issue. Be that as it may, recognition by the court of a
fundamental right to wholesome environment is a product of the process of widening the scope of
article 21 of the constitution which began with Maneka Gandhi[iii]

It is well known in constitutional jurisprudence that the last 55 years of constitutional adjudication
have seen article 21 of the Constitution undergoing three phases of change. The first phase was of
narrow textual interpretation followed by another stage of residual coverage. In the third phase
article 21 emerged as an overarching fundamental right in the Constitution of India.

In Maneka Gandhi, a liberal view of the scope of article 21 was taken, so that article 21 became the
repository of all rights which are necessary for the enjoyment of life. The liberal reading of article
21 opened the way for incorporation of the right to a wholesome environment within the protection
of the Constitution. Bhagwati J delivering the majority judgment in Maneka Gandhi observed:

It is indeed difficult to see on that principle we can refuse to give its plain natural meaning to the
expression personal liberty as used in article 21 and 19 and read it in narrow and restricted sense
so as to exclude those attributes of personal liberty which are specifically dealt with in Article 19.
We do not think that this would be a correct way of interpreting the provisions of the Constitution
conferring fundamental rights. The attempt of the Court should be to expand the reach and meaning
and content by a process of judicial construction.
Bhagwati J who was the principal architect of broadening the scope of article 21, himself had the
opportunity to extend the protection of article 21 to the right to wholesome environment. In rural
Litigation and Entitlement Kendra, Dehradun v. State of U.P[iv]the issue was in respect of the
closure of certain limestone quarries in andaround the town of Mussoorie. The court itself noted
that the case was the first of its kind in the country involving issues relating to environment and
ecological balance the questions arising for consideration were of grave moment and significance.
The court also noted that the situation involved the conflict between development and
conservation. It emphasized the need for reconciling the two in the larger interest of the country.
The court, however, avoided any discussion of the fundamental right to a wholesome environment
or its emergence from the guarantee of personal liberty. There is only a small part of the single
sentence which refers to the need of safeguarding the right of the people to live in healthy
environment with minimal disturbance of ecological balance and without hazard to them or their
cattle, homes and agricultural land and undue affection of air, water environment.

Bhagwati J obviously avoided a discussion of the basic question whether a right to wholesome
environment was included under the umbrella of the right to life may be because the matter
involved a large number of quarries with a large number of workers whose existence depended on
these quarries. Yet another reason might be that Bhagwati J was already convinced of the
overarching scope of personal liberty since he was the prime architect of the expansive concept,
without any rationalization, proceeded to issue a remedy on a writ under article 32 without first
establishing that article 32 was available to the petitioners.

The same strategy of avoidance of the need to rationalize the inclusion of the right to wholesome
environment among the fundamental rights was repeated in M.C. Mehta V. Union of India.[v] In
this case also the question was whether the Supreme Court can decree compensation for violation
of the right to wholesome environment in a petition under article 32 of the Constitution. While
discussing at Length the power of the court to devise procedure appropriate for the enforcement of
a fundamental right, not even a sentence was devoted to a declaration incorporating the right to
wholesome environment within the guarantee of life and personal liberty. The same approach was
reflected by another bench of the apex court in Sachidanand Pandey V. State of W.B.[vi]
Chinnappa Reddy J referred to article 48A of the Constitution which enshrined the directive
principle to protect and improve the environment. His lordship also referred to article 51 A (g)
which proclaims it to be the fundamental duty of every citizen of India to protect and improve the
natural environment. After referring to these two provisions the court should have considered
whether the right to wholesome environment was a fundamental right but it avoided doing so. It
held:

When the Court is called upon to give effect to the Directive principle of State Policy and the
fundamental Duty, the Court is not to shrug its shoulders and say that priorities are a matter of
policy and so it is a matter for the policy making authority. The least that the Court may do is to
examine whether appropriate considerations are borne in mind and irrelevant excluded.

The court in Sachidanand Pandey overlooked the basic problem that a remedy under article 32
could not be provided either for enforcement of the directive principle or for enforcement of a
fundamental duty. The basic sub-stratum, namely, violation of a fundamental right was not
established in sachidanand Pandey.

There can be two different explanations for what the court did. One can read sachidanand Paandey
to lay down the principle that article 32 remedies would also be available for enforcement of
directive principle and fundamental duty. In the alternative, it may be read as contributing to the
same attitude of avoiding specific rationalization of the right to wholesome environment as a part
of right to life.

Venkataramiah J followed the Pandey strategy in the Ganga Pollution case[vii]and referred to the
directive principle and the fundamental duty but not to the fundamental right. Finally in M/s
Shantistar Builders v. Narayan Khimalal Totaine, which was really a right to shelter case and did
not involve an environmental issue, Ranganath Misra J observed as follows:

Basic needs of man have traditionally been accepted to be three-food, clothing and shelter. The
right to life is guaranteed in any civilized society. That would take within its sweep the right to
food, the right to clothing, the right to decent environment and a reasonable accommodation to live
in. The difference between the need of an animal and a human being for shelter has to be kept in
view. For the animal it is the bare protection of the body; for a human being it has to be a suitable
accommodation which would allow him to grow in every aspect-physical, mental and intellectual.

Sometime later, Saghir Ahmad J in M.C. Mehta V. Kamal Nath, observed as follows[viii]
In order to protect life, in order to protect environment and in order to protect air, water and
soil from pollution, this Court, through its various judgments has give effect to the rights
available, to the citizens and persons alike, under Article 21 of the Constitution.

Both Ranganath Misra J and Saghir Ahmad J have avoided any discussion of the question whether
right to wholesome environment is included in the right to life under article 21 of the Constitution.
It was perhaps taken for granted.

MERGING OF PART IV INTO PART III

Another significant development was merging of the directive principles of state policy into the
fundamental rights guaranteed by part III of the Constitution.[ix]
In environmental matters, however, a new situation emerged. The facts were that no fundamental
right textually ensured the right to wholesome environment. But as a result of the 42nd Amendment
to the Constitution, article 48A was added to the directives principles providing for protection and
improvement of environment and safeguarding of forests and wild life. The same constitutional
amendment also added Part-IV A which enumerated ten fundamental duties of the citizen,
including in clause (g) the duty to protect and improve the natural environment including forest,
lakes, rivers and wild life and to have compassion for living creatures.

The courts have used the provisions of article 48A and 51A (g) to spell out a fundamental right to
wholesome environment as part of the right to life. On the face of it, it appears that this is nothing
new but the very embodiment of the approach to interpret

the fundamental rights in the light of directive principles. But it is not merely that. Most of the
observers of the Constitution have been misled into giving importance to this development. In fact
most of the courts themselves have avoided ratiocinating on the reasons for this conclusion. On the
contrary it would be really a welcome advance to raise environmental concerns to the dignity of
fundamental rights rather than always having to take the help of directive principle-the sub silentio
approach mentioned above. However, as noted in the preceding section it is a job yet to be done.
What has there fore, happened is a process of merging of certain directive principles into
fundamental rights.

The RIGHT TO a wholesome environment

Encouraged by an atmosphere of freedom and articulation in the aftermath of the Emergency, the
Supreme Court entered one of its most creative periods. Specifically, the court fortified and
expanded the fundamental rights enshrined in part III of the Constitution. In the process, the
boundaries of the fundamental right to life and personal liberty guaranteed in Article 21 were
expanded to include environmental protection.[x]

The Supreme Court strengthened Article 21 in two ways. First, it required laws affecting
personal liberty to also pass the tests of Article 14 and Article 19 of the Constitution,[xi] thereby
ensuring that the procedure depriving a person of his or her personal liberty be reasonable, fair and
just.[xii] Second, the court recognized several unarticulated liberties that were implied by Article
21. It is by this second method that the Supreme Court interpreted the right to life and personal
liberty to include the right to a wholesome environment.

It means clear, hygienic, unpolluted environment which leads to a life of dignity.

Environmental degradation has disastrous impact on right to livelihood which is a part of the right
to life. The first indication of the right to a wholesome environment may be traced to the Dehradun
Quarying Case.[xiii] The SC evolved a new right to environment without specifically mentioning
it. The case was filed under Art. 32 of the Constitution and Orders were given with emphasis on the
need to protect the environment. In Ganga Pollution(Tanneries)Case[xiv] while interpreting
Art.21, Justice Singh justifying the closure of polluting tanneries observed: we are conscious that
closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have
greater importance to the people.

The Court evolved the principle of absolute liability of compensation in Shriram Gas Leak
Case[xv] through interpretation of the constitutional provisions relating to right to live and to the
remedy under Art. 32 for violation of fundamental rights. The premises on which the decision is
rendered is clear and unambiguous- the fundamental right to a clean and healthy environment.
Right to live contains the right to claim compensation for the victims of pollution hazards.

The first time when the SC came close to almost declaring the right to environment in Art.21
was in 1990, in Chhretriya Pradushan Mukti Sangarsh Samiti v. State of U.P[xvi]. Chief Justice
Sabyasachi Mukherji observed: Every citizen has a fundamental right to have the enjoyment of
quality of life and living as contemplate in Art.21 of the Constitution.

In Subhas Kumar v. State of Bihar[xvii], Justice K.N. Singh observed in a more vivid manner,
Right to live..includes the right to enjoyment of pollution free water and air for full enjoyment
of life.

In Indian Council for Enviro- Legal Action v. Union of India[xviii], the SC held that it has power
and duty to intervene and protect right to life of citizens, when an industry is established without
obtaining the requisite permission/ clearances and is continued to be run in blatant disregard of law
to the detriment of life and liberty of the citizens livig in the vicinity.
 In recent times, the Supreme Court has recognized right to livelihood as a part of the right to
life under Art.21. This broad interpretation of right to life is very helpful in checking
Governmental action which has an environmental impact that threatens the poor people or forest
dwellers, tribals of their livelihood by dislocating them from their place of living or otherwise
depriving them of their livelihood.[xix]

The Indian Judiciary has shown unprecedented dynamism by expanding the scope of Art.21 by
including in it right to clean and wholesome environment. This feat is remarkable in so far as even
some of the developed countries have yet to achieve such distinction.

BRUNDTLAND REPORT
The most remarkable contribution of the Supreme Court has been the adoption of the right to
sustainable development as a hard core principle of environmental law in India. The concept of
sustainable development itself is comparatively young. It first appeared in the International Union
for Conservation of Nature and Natural Resources (IUCN) Report of 1980 in respect of world
Conservation strategy. From there, it was picked up by the Report of the World Commission on
Environment and Development in 1987, properly called the Brundtland Report. The report itself
was the product of 900 days of deliberation by an international group of politician, civil servants
and experts on environment[xx]

The concept of sustainable development is in its infancy. Holmberg and Sandbrook identified some
70 definition of sustainable development. However a commonly accepted definition has been
proposed by Mrs. G.H. Brudthland in her 1987 report. According to her, sustainable development
is the development that meets the needs of the present without comprising the ability of future
generation to meet their own needs. This definition has strong ethical orientation focusing upon
the satisfaction of human needs rather than wants. It does not lay emphasis on the protection of
environment in general. Many contemporary environmentalists are very critical of the concept of
sustainable development because it licenses economic growth. But the concept of sustainable
development has mass appeal precisely because it is a catch phrase capable of repetition in a
parrot like fashion by environmental policy makers The Supreme Court has however been careful
to distinguish between the concept of sustainable development and its definition by Brundtland
preferring not to fall for any given content for the concept and thus open the way for an active
definition of sustainable development with a varying content. At least at the moment, it has chosen
to avoid the need to go for any precision. In a few leading cases sustainable development has been
adopted as the principle of environmental law.

In a series of cased which may not be large in number but which have much economic significance,
the supreme Court had to consider the application of the principle of sustainable development. All
these cases involved industries generating sizeable revenues and significantly contributing to the
industrial development of the country. However, these also show that the industries hardly cared for
the environment and which were not only significant polluters but were also persistent. Repeatedly
the environmental agencies implored upon them to rectify their pollutant emissions and effluents
but the industries hardly cared. Even directions issued by the high courts and Supreme Court were
ignored. In a sense, the behavioural pattern of the industry was irresponsible. The situation seemed
to be destined for doom for the industry hardly cared and the environmental agencies could not
really bring their weight to bear upon the industries. The industries classically represent the case of
too powerful defendants who continue to flex their muscles totally ignoring the degradation of
environment caused by the industries. Such muscle flexing is common in soft states where the
majesty of law is often compromised by Considerations of state and wealth.

ENVIRONMENTAL POLLUTION AND SUSTAINABLE DEVELOPMENT

The first case involving claims to sustainable development was the Bichhri Village case wherein a
big public sector concern was producing chemicals. Its sister concern, started producing H acid in
the same complex. The chemical was meant exclusively for exports. The acid was highly toxic and
the effluents from it posed grave danger to land in the surrounding areas. The effluents poisoned
the earth, the water and everything else. The industries produced 25 hundred metric tons of highly
toxic sludge. The waste waters were allowed to flow out in the open and the toxic sludge was
thrown in the open in and around the complex. The toxic substances percolated deep into the earth
polluting the subterranean supply of water. The water in the wells and the streams became
unsuitable for human consumption as wells as irrigation. The people revolted and a serious law and
order situation was created forcing the district magistrate to close the industries in January 1989.
Yet nothing was done to remove the sludge. The long lasting damage to earth and to underground
water continued to exist.

The facts revealed that the units were established without obtaining no objection certificate from
the pollution control board for production of H acid. They also revealed that Supreme Court had
issued a direction as early as 11 December 1989 for supply of drinking water to the affected
villages and on 5 march 1990, the court directed that appropriate steps be taken for transportation,
treatment and safe storage of the sludge from open spaces and required that the sludge be stored in
a safe place. But nothing happened. In the succeeding year, the industry tried to camouflage the
sludge. Yet, they did nothing to remove it. Again, on 17 February 1992, the court directed an
assessment by experts who were also to suggest a package of remedies for its transportation and
safe storage. But still nothing happened. In 1994, the National Environmental Engineering
Research Institute (NEERI) submitted a report which showed that only 720 metric tons of sludge
was Bichhri.[xxi] entombed while the rest of the waste was just spread over the fields. The NEERI
report concluded that the indiscriminate and willful disposal activity by the industry was further
aggravating the contamination problem.

These facts highlight the non cooperative attitude of the industry to the danger which it had itself
created to the detriment of the environment in Appalled by the state of affairs, the Supreme Court
quickly reacted to the situation. It resurrected the principle laid down in the famous Shri Ram
case[xxii] which was threatened with oblivion because of the casual observation of Ranganath
Misra J in Union Carbide Corporation V. Union of India[xxiii] Misra J had felt it was not so and
rule in the Shri Ram case was the most appropriate one because it suited the conditions obtaining in
this country. There was also a veiled reference to the problem of intransigent rich defendant whose
pursuit of private profit blinded all claims of poor people. The court held that once the activity
carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to
make good the loss caused to any other person by his activity irrespective of the fact that he took
reasonable care while carrying on his activity. The court did notrefer in terms to the ideals of
sustainable development. Nevertheless the situation in this particular case classically represents the
conflict between the claims of development and the claims of sustainable environment. In fact
jeevan Reddi J portrayed the conflict in the opening words of his opinion which are worth
reproducing. It highlights the disregard, nay, contempt for law and lawful authorities on the part of
some among the emerging breed of entrepreneurs, taking advantage, as they do, of the countrys
need for industrialization and export earnings. Pursuit of profit has absolutely drained them of any
feeling for fellow human beings- for that matter, for anything else. And the law seems to have been
helpless. Systemic defects? It is such instances which have led many people in this country to
believe that disregarded of law pays and that the consequences of such disregard will never be
visited upon them particularly, if they are men with means.

The next case involving the same kind of problem related to tanneries in Tamil Nadu.[xxiv]The
tannery industry is a significant foreign exchange earner but its effluents are released on the lands,
the rivulets and the rivers polluting the sub-soil water and arable lands. Facts indicated that the
industries were reluctant to provide for treatment of effluents. The court felt that even though the
industry was earning foreign exchange and providing employment, contributing to development, it
has no right to destroy the ecology, degrade the environment and pose a health hazard.
The court held that sustainable development is the answer to the problem of conflict between
development and ecology. Without much discussion of the content of sustainable development the
court held that sustainable development is a balancing concept and has been accepted as part of the
customary international law. The court even went one step further to declare that the precautionary
principle and the polluter pays principle have been accepted as part of the law of the land in India.

In A.P. Pollution Control Board II V. Prof. M.V. Nayudu (Retd.),[xxv] the Supreme Court took the
question for in-depth consideration. The matter involved the question of permission for
establishment of industry within 10 km. of the two big water reservoirs, the Himayat Sagar and the
Osmam Sagar, serving the twin cities of Hyderabad and Secunderabad. Jagannadha Rao J, speaking
for the court, adopted the principle of sustainable development. It was asserted that in todays
emerging jurisprudence, environmental rights are described as 3rd generation rights. The United
Nations General Assembly has declared the right to sustainable development as an inalienable
human right. Rio Conference was also referred to which adopted as principle 1 the principle that
every human being is entitled to a healthy and productive life in harmony with nature. The judge
went on to refer to the Earth Summit Meeting of 1997 which reflected his principle. He also
referred to decision of the European Court of Justice in Portugal V. F.C. Council,[xxvi] which
emphasized the need to promote sustainable development while taking account of the environment.
The judge further referred to four recent decisions, one from Brazil, the other from Philippines,
another from Columbia and the fourth from Union of South Africa. In Yanomani Indians V. Brazil,
[xxvii] the Inter-American Commission on Human Rights held that the Government of Brazil
violated the right tolife of Yanomanis by not taking measures to prevent environmental damage. In
Minors Opasa V. Deptt. of Environment and Natural Resources,[xxviii] the Philippine Supreme
Court refused to continue deforestation licenses because it violated the right to a balanced and
healthful ecology for future generations. In Fundepublico V. Mayor of Bugalagrande[xxix] the
Constitution Court of Columbia (17-6-1992) treated the right to healthy environment as part of
customary international law. In Wildlife Society of Southern Africa V. Minister of Environmental
Affairs and Tourism of the Republic of South Africa,[xxx] the right to healthy environment was
further recognized. Lee has reported at the end of the last century that since 1990 some 60 nations
have specifically recognized in their constitution the right to healthy environment.
The reference to all these international sources clearly indicated the willingness of the Supreme
Court to adopt the principle of sustainable development from the international domain as a basic
principle of environmental law in India. Rao J categorically stated: There is building up in
various countries, a concept that a right to healthy environment an to sustainable development are
fundamental human rights implicit in the right to life.

The facts of the Nayadu Case clearly bring out the tensions generated by the principle of
sustainable development. The affected industries has spent valuable resources in setting up the
plants and their claim was that they should be allowed to function otherwise all the resources
would go waste. The state government has recommended their application. Even though the central
government refused the permission, the industry went on with the construction of its plants. The
court was not swayed by these claims. Instead, it took into account expert reports from three
different sources and after considering these reports felt that the court could not rely upon a bare
assurance that care will be taken in the storage of hazardous material. The court preferred to
proceed on the precautionary principle rather than a mere promise of the industries, holding that a
chance of accident in such a close proximity of reservoir cannot be ruled out.

The Supreme Court in the Nayudu case weighed the claims of development against the claims of
sustainability of the supply of pure water for drinking purposes. It gave precedence to the human
need for drinking water over and above the possible economic advantage which could be generated
by the industry for the state could be generated by the industry for state.

In the next case, the same conflict arose again but with contrary results. In Goa Fundatin V. Diksha
Holdings Pvt. Ltd.[xxxi] another division bench of the Supreme Court again faced a contest in the
claims of sustainability and development. Diksha Holdings sought permission to build a hotel in
Goa which it claimed would contribute to business of tourism which was the main resource earner
for the State of Goa. Which it claimed would contribute to business of tourism which was the main
resource earner for the state of Goa. The Goa Foundation contended that the hotel was located in an
area which fell in the Coastal Regulating Zone-1 (CRZ-1) where no building was allowed. It also
contended that the construction of the hotel will destroy the ecology of coastal areas.

The adoption of sustainable development as the basic principle of environmental law in India
received its maximum acceptability in M.C. Mehta V. Union of India.[xxxii] In this case, a three
judge bench of the Supreme Court was Considering the question of issuing directions to substitute
diesel vehicles on the roads of city of Delhi with vehicles driven by compressed natural gas (CNG).
The matter had been in the court for as long as 16 year. As early as 23 September 1986, the court
had directed the Delhi Administration to file and affidavit specifying the steps to be taken for
controlling pollution caused by emission of smoke etc. from vehicles plying in Delhi. A committee
called the Bhure Lal

Committee was established under section 3 of the EPA, 1986 and its report was accepted by the
court on 28 July 1998. A time limit was fixed for switching over diesel vehicles to CNG vehicles.
The government had been dragging its feet and sought to dilute the directions of the Bhure Lal
Committee by constituting another committee called the Mashelkar Committee which
recommended that emission norms must be laid down but the choice of fuels must be left with the
user.The Supreme Court categorically rejected the suggestion of the Mashelkar Committee on the
ground that nothing concrete had resulted from adopting the process of fixing emission norms and
directed that a time bound programme of replacing diesel buses with CNG buses be
implemented.The opinion of court is particularly noticeable for pronouncing the fundamental
nature of sustainable development as an underlying principle. The court observed:One of the
principles underlying environmental law is that of sustainable development. This principle requires
such development to take place which ecologically sustainable.

The two essential features of sustainable development are (a) the precautionary principle, and (b)
the polluter pays principle.

It is really difficult to find a comparable categorical statement from any other court. The practical
result of the hard attitude adopted by the court is that the environment of Delhi city is much more
clean and free of smoke now in comparison to what it was few years earlier.

In a recent case[xxxiii] the Supreme court was held that public trust doctrine and principle of inter-
generational equity are the integral part of the principle of sustainable development.

To sum up, the courts have not been sufficiently successful in establishing the right to wholesome
environment as a fundamental right. Had it been so, the efforts would have been far more impact
making. Fundamental rights have a supervening character. Any man can approach the highest court
for their enforcement. Write petitions can lie in every high court Any act, legislative or executive,
which seeks to abridge or take away any fundamental right can be challenged. Greater vigor is,
therefore, required to ensure that right to wholesome environment is treated as a fundamental right.
One option to establish it firmly as a fundamental right is to try the remedy of constitutional tort.
D.K. Basu v. State of W.B.[xxxiv] the Supreme Court has recognized that violation of fundamental
right may give rise to a constitutional tort for which compensation may be awarded. This claim for
compensation in public law is based on strict liability and is in addition to the claim available in
private law for damages. This is in addition to the traditional remedies and not in derogation of
them. The court pointed out that this is remedy available in public law assures that citizens live
under a legal system wherein their rights and interested shall be protected and preserver. The court
held:

It is now a well- accepted proposition in most of jurisdictions, that monetary or pecuniary

compensation is an appropriate and indeed an effective and sometimes perhaps that only suitable
remedy for redressed of the establishes infringement of the fundamental right to life of a citizen.

CONCLUSION

The role of the Supreme Court as final interpreter is increasingly reflected in various judgments.
The most important achievement of modern law in India is the constitutionalisation of
environmental problems by the apex court of India. Indian environmental jurisprudence, is
achieving new dimensions day by day. The various statuses have been interpreted in the light of the
constitutional scheme relating to projection and preservation of the natural environment issue.
Before the year of 1980 there were legislations about control of pollution but little had

been done to really make pollution control. But in present time the Supreme Court of India expand
the meaning of Environmental rights. The Supreme Court making creative interpretation which led
to the creation of new rights. As under article 21 this court has created new rights including the
right to health and pollution free environment. It is now a well- accepted proposition in most of
jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective
and sometimes perhaps that only suitable remedy for redressed of the establishes infringement of
the fundamental right to life of a citizen.
The action in public law is maintainable in the highest courts of the land. When this remedy
becomes available, one may witness spate of litigation seeking constitutional tort remedies for
infraction of fundamental right to wholesome environment. However, that possibility is still in the
womb of the future. There are many hurdles on the way. One amongst them is insufficient
strengthening of case for treating right to wholesome environment as a fundamental right. The
development, therefore, is not yet completed. The future may witness unfolding of mysteries of the
new fundamental right. When this happens, we may expect to see interesting developments in the
domain of constitutional jurisprudence.

Edited by Saksham Dwivedi

[i] (1980) 4 SCC 162.

[ii] M. Cappelletti & B. Garth- Access to justice 68 (vol.1, A world survey Ed.)

[iii] Maneka Gandhi V. Union of India Air 1978 SC 597 at 621

[iv] AIR 1985 SC 652.

[v]AIR 1987 SC 1086.

[vi] (1987) 2 SCC 295 of 298

[vii] M.C. Mehta v. Union of India, AIR 1988 SC 1115

[viii] AIR 1990 SC 630.

[ix] State of Madras v. Champakam Doarairajan AIR 1951 SC 226.

[x] Article 21 states: No person shall be deprived of his life or personal liberty except according to
procedure established by law.

[xi] Maneka Gandhi v. Union of India AIR 1978 SC 597.

[xii] Francis Coralie Mullin v. The Administration, Uninion Territory of Delhi AIR 1981 SC 746.

a) THE CONSTITUTION OF INDIA AND THE ENVIRONMENT

The Constitution of India has a few particular provisions with regards to the environment. The

nd
42 Amendment of the Constitution took place in 1976, four years after the Stockholm

Conference. This amendment incorporated two significant Articles to protect the environment.

Art. 48-A: "The state shall endeavour to protect and improve the environment and to

safeguard the forests and wild life of the country".

Art. 51- A (g): It shall be a duty of every citizen India.......... "to protect and improve the

environment including forests, lakes and wild life and to have compassion for living

creatures".

Principle 1 of the Stockholm Declaration can be retraced in the Fundamental

Rights that are among the basic features of the Constitution of India.

Principle 1 of the Stockholm Declaration states- Man has the

fundamental right to freedom, equality and adequate conditions of

life, in an environment of quality that permits a life of dignity and

wellbeing.

Articles 14, 19 and 21 reflect the Principle stated above.

Article 14- Right to Equality

The state shall not deny to any person equality before the law or equal protection of the laws

within territory of India.

 19
In the case, Sushila Saw Mills vs. State of Orissa , the Supreme Court held that a ban

imposed on the saw mill business operating in the confines of the protected forests did not

violate Article 14, and was neither unreasonable nor arbitrary.

Articles 19 (1) (g) and 19 (6) - Freedom of trade and business guaranteed

All citizens shall have the right to practice any profession, trade or business.

Art. 19(6) under which reasonable restrictions' can be imposed upon such right in the

interest of the general public.

These freedoms are not absolute. The Constitution recognises the tendencies of a few trades

and businesses which are prone to polluting the flora and fauna of the land along with

discharging sewage into running water bodies like rivers and lakes. This behavior in turn

leads to damaging impacts on vegetative cover, animals, plants, aquatic species, soil, and

human health. Thus Article 19 (6) sets our restrictions on such behavior which adversely

affects the natural resources of the country.

20
In the case of MC Mehta vs Union of India , the river Ganga was being polluted by the

discharges of the tanneries which were operating on its banks. The Supreme Court ordered

the business to establish effluent plants within six months of the court order or face closure.

19
(1995) 5 SCC 615

20 (1995) 5 SCC
615
19
 Article 21- Right to Life

No person shall be deprived of his life or personal liberty except according to procedure

established by law.

Though not expressly mentioned, the Right to life encompasses in it, the right to a healthy

environment. In the case of Rural Litigation and Entitlement Kendra (RLEK) vs State of

21
UP , the mining operation of limestone in the valley was causing ecological disturbance as

contended by the petitioner. The Supreme Court established Committee of Experts which

found the ecological balance to have been damaged. Though the petitioner never contended

redressal of injury under Article 21, but it is an accepted notion, that the court did operate on

the same premise.

In the Seventh Schedule of the Constitution of India, under Article 246, three lists have been

drawn up giving exclusive legislative powers to the Union and state. The Union list empowers

the Central Government, the State list gives powers to the States and the Concurrent list lists

items on which both the Union and States can make laws, though laws made by the Union

supersede the one made by the States.

Union List- Fisheries beyond territorial waters, regulation and development of interstate

rivers and river valleys

State List- Land, Water (storage, drainage and embankment, water power, canals and

irrigation, water supplies)

Concurrent List- Forest, Wildlife, Boilers

21 (1995) 5 SCC
615
20
 96
Water (Prevention and Control of Pollution) Act, 1974 and Rules 1975

The Act:

The Water (Prevention and Control of Pollution) Act was passed in 1975. It was the first

legislation which systematically dealt with issues of water pollution in India. It is expansive and

applies to streams, inland waters, subterranean waters and sea or tidal waters. The Act works

through a system of command and control by establishing State Pollution Control Boards

which prescribes standards of discharge and exceeding such standards are met with penalties

which include fines and imprisonment. The Act establishes permit systems which allows a

person who consents to the standards set by the State Boards to establish effluent discharge and

treatment systems in the industry which is being operated. The Act was amended in 1988 to align

it with the provisions of the Environment (Protection) Act, 1986.

Definitions:

The Act lays down a few important definitions in Section 2:

Occupier is the person who has control over the affairs of the factory or the premises.

96
The Water (Prevention and Control of Pollution) Act, 1974-
th
http://www.moef.nic.in/legis/water/wat1.html Last Visited on 6 April, 2012

The Water (Prevention and Control of Pollution) Act, 1974,

Relevant Provisions- http://hspcb.gov.in/Water%20Act,
%201974%20Relevant%20provisions.pdf
th
Last Visited on 6 April, 2012

Chapter 1, Review of the existing environmental norms concerning the power sector by
Consumer
22 (1995) 5Education
SCC and Research Centre- http://www.cercind.gov.in/chapter1.pdf
615
20
 th
Last Visited on 6 April, 2012

23 (1995) 5 SCC
615
20
 Water Pollution is contamination of water or alteration of the physical, chemical, or

biological properties of water or such discharge of any sewage or trade effluent or of any

other liquid, gaseous or solid substance into water, directly or indirectly, or is likely to create

a nuisance, or render such water harmful or injurious to public health or safety or to

domestic, commercial, industrial, agriculture or any other legitimate uses, or to the life and

health of animals or plants or of aquatic animals.

Trade effluent is any liquid, gaseous or solid substance which is discharged from any

premises used for carrying on any industry, operation or process or treatment and disposal

system, other than domestic sewage.

Sewage Effluent is effluent from any sewerage system or sewage disposal works and

includes sullage from open drains.

Stream includes river, water course (whether flowing or for the time being dry), inland water

(whether natural or artificial), sub-terranean waters, sea or tidal water to such extent or as the

case may be to such point as the state government may by notification in the official gazette

specify in the behalf.

Important Provisions of the Act:

The Central Pollution Control Board (CPCB) and State Pollution

Control Boards (SPCB)- The Act establishes the CPCB and SPCBs. States

24 (1995) 5 SCC
615
20
with common borders can establish Joint State Boards with shared

resources. These Boards have legal personalities and can acquire and

25 (1995) 5 SCC
615
20
dispose of property, can sue and be sued. The CPCB functions under the authority of the Central

Government. The SPCB functions under the dual authority of the respective State Government

and the CPCB. In case of a conflict between the SPCB and CPCB, the matter is referred to the

Central Government.

The Act lays down the functions of the CPCB which are to advice the Central Government on

matters concerning the prevention and control of water pollution, coordinate the activities of the

State Boards and resolve disputes among them, provide technical assistance and guidance to the

State Boards, carry out and sponsor investigations are research relating to matters of water

pollution, organize training programmes for officers involved in prevention and control of water

pollution, collect and publish data and lay down standards in consultation with the concerned

State Government.

The Act also lays down the functions of SPCB which are to draw up comprehensive plans for the

prevention and control of water pollution in the State, advice the State Government on matters

concerning prevention and control of water pollution, organise training programmes for officer

involved in prevention and control of water pollution, lay down standards and evolve economical

and reliable methods of treatment of effluents

The Act empowers the Central and State Government to set up Labs and appoint analysts. The

CPCB and the SPCB are also empowered to make rules for the implementation of the Water Act.

Members of the Boards- The Members of the Boards occupy important positions in the Act as

they are the ones who enforce and execute the provisions of the Act. The Act lays down the terms

and conditions of service of the members of the Boards and means and reasons for their
26 (1995) 5 SCC
615
20
disqualification along with the powers for the Members of the State Boards to give directions to

obtain information, to take samples of effluents and enter and inspect premises which discharge

effluents.

Prohibition on Polluting Streams and Wells- The Act expressly prohibits the use of streams or

wells for disposal of polluting waters. This section defines the offences against the Act. The

essence of the offence is causing a qualitative change in the water of a stream or a well.

Establishment of Treatment and Disposal Systems- The Water Act says that no industry or

operator process or any treatment and disposal system can be established without the previous

consent of the State Board. It lays down the provision that no industry or process can discharge

sewage or trade effluent into a stream or well or sewer or land in excess of the standards and

without the consent of the Board. Whoever contravenes the provisions of the Act shall be

punishable with imprisonment for term which shall not be less than one and half year but which

may extend to six years with fine. The industry can make an appeal if aggrieved against the

orders of the Board. The Board can also issue directions for closure of industry & disconnection

of electricity in case of persistent defiance by any polluting industry.

Review by an appellant authority- Under the Act the SPCB's decisions are subject to a review

by an appellant authority appointed by the State Government. Impositions of unreasonable

conditions can be annulled or varied by the State Government by giving the SPCB an

opportunity of being heard. The Act bars the jurisdiction of civil court to entertain any suit or

proceedings when the appellate authority is determining any action taken or to be taken under

this Act.
27 (1995) 5 SCC
615
20
The Water (Prevention and Control of Pollution) Rules, 1975- The

Rules contain detailed schedules and forms for providing information on the

administration and establishment each industry is expected to furnish.

Penalties under the Act

The penal provisions provided in the Act are comprehensive. An offender under the Act shall on

conviction be punishable with imprisonment for a term which may extend to three months or

with a fine which may extend to Rs 5000 or with both, and in case the failure to comply

continues, an additional fine of Rs 1000, for every day of the violation.

The offences under the Act may be pulling down, destroying or defacing any installation made

under the authority of the Board, obstructing any person engaged in discharge of his or her duties

under the Act, damaging any property belonging to the Board, failure to furnish information or

intimate the occurrence of an accident to Board officials, knowingly giving false information and

furnishing false information to obtain the consent of the board.

Burden of liability- Where an offence under this Act has been committed by a company, every

person who at the time the offence was committed was in charge of and responsible to the

company shall be deemed to be guilty of the offence, except when he or she can prove that the

offence was committed without their knowledge or that he or she had exercised due diligence to

prevent the offence. The Act provides for punishment also to those who give consent to the

offensive act or connive in the Act, be it the director, the manager, the secretary or any other

official of the company.

28 (1995) 5 SCC
615
20
 97
Air (Prevention and Control of Pollution) Act, 1981

The Act

The Air (Prevention and Control of Pollution) Act, 1981 was enacted to by the Central

Government in pursuance to the Stockholm Declaration in 1972. The Act is mirrored on the

Water (Prevention and Control of Pollution) Act, 1974 where the Act has been passed by the

Central Government but the executive functions are carried out by the State Pollution Control

Boards (SPCB).

Definitions under the Act

Section 2 of the Act gives out a few important definitions:

Air Pollutant- Any solid, liquid or gaseous substance (including noise) present in the

atmosphere in such concentration as may be or tend to be injurious to human beings or other

living creatures or plants or property or environment.

97
The Air (Prevention and Control of Pollution) Act, 1974-
th
http://www.moef.nic.in/legis/air/air1.html Last Visited on 6 April, 2012

The Air (Prevention and Control of Pollution) Act, 1974,

Relevant Provisions- http://hspcb.gov.in/Air%20Act
%201981%20Relevant%20Provisions.pdf
th
Last Visited on 6 April, 2012

29 (1995) 5 SCC
615
20
Chapter 1, Review of the existing environmental norms concerning the power sector by
Consumer Education and Research Centre- http://www.cercind.gov.in/chapter1.pdf
th
Last Visited on 6 April, 2012

30 (1995) 5 SCC
615
20
 Approved Appliances- Any equipment or gadget used for the bringing of any combustible

material or for generating or consuming any fume, gas of any particulate matter and

approved by the State Board.

Control Equipment- Any apparatus, device, equipment or system to control the quality and

manner of emission of any air pollutant and includes any device used for securing the

efficient operation of any industrial plant.

Industrial Plan- Any plant used for any industrial or trade purposes and emitting any air

pollutant into the atmosphere.

Emissions- Any solid or liquid or gaseous substance coming out of any chimney, duct or flue

or any other outlet

Provisions of the Act

The Central Pollution Control Board (CPCB) and State Pollution

Control Boards (SPCB)- The Act constitutes CPCB and SPCB on the same

lines of the Water Act. The jurisdictions of the State Boards are common

under both the Acts. The Air Act provides for State boards even in states

which do not have pollution control boards established under the Water Act.
31 (1995) 5 SCC
615
20
The Board shall perform such functions as given in Sections of the Air Act for the prevention,

Control and abatement of air pollution. The Central Board under this Act advises the Central

Government, plans and executes nationwide programs, and coordinates the activities of the State

boards and has the power to issue binding directions to the Central board and the State boards.

The functions of the SPCB similarly consist of implementation of the ground objectives spelt out

under the Act. If the State Government, after consultation with the State Board, is of opinion that

the use of any fuel other than an approved fuel/or burning of any material in any Air Pollution

Control area or part thereof may cause or is likely to cause air pollution, State Board has the

power to prohibit the use of such fuel in such area or part that area.

The State boards are empowered to ask for accurate information, to have its inspectors enter,

enquire and verify compliance of standards, take samples of emissions from any chimney or

duct, secure analyses of the sample taken and punish the offenders. The State Government is also

empowered to declare any area within the State as an air pollution control area.

The Act says that no person shall, without the previous consent of the State Board, establish or

operate any industrial plant in an Air Pollution Control Area. No person operating any industrial

plant, in any air pollution control area shall discharge or cause or permit to be discharged the

emission of any air pollutant in excess of the standards laid down by the State Board. If a unit is

emitting air pollutant in excess of the standards laid down by the State Board, in any air pollution

control area, the Board may make an application to a court. The Board has laid down the

standards of air emission for compliance by industry. The industry can make an appeal if

aggrieved against the orders of the Board.

32 (1995) 5 SCC
615
20
The PCBs are to be provided information immediately in case there is an emission more than the

stipulated standards because of an accident or an unforeseen event. The authorised person under

the Act can enter any place to obtain information relevant to the Act, examine and test any

control equipment, industrial plant or any document.

Declaration of restricted areas- Air pollution in the Act is sought to be combated by means of

declaration of restricted areas, prohibition of the use of pollution fuel and substances, as well as

by regulating the appliances that give rise to air pollution. The State boards are authorized to

implement the standards set by the Central Board, restrict the operation of certain industrial

plants and issue consent orders on payment of a prescribed fee, upon conditions deemed

necessary for the abatement of pollution. Non-compliance with the conditions will lead to the

cancellation of the consent which, in turn, raises the culpability and liability of the offending

individual or industry. Every person who has obtained the consent is expected to install control

equipment specified by the board. The person concerned is also expected to keep the equipment

in good condition.

The Air (Prevention and Control of Pollution) Rules- These Rules have been adopted in 1982.

The rules define the procedures for the meeting of the boards, the powers of the presiding

officers, decision-making procedures including quorum, the manner in which records of meeting

are to be kept etc. The rules also prescribe the manner and purpose of seeking assistance from

specialists and the fee to be paid to them.

33 (1995) 5 SCC
615
20
Penalties under the Act

The penalties prescribed under the Act are quite similar to those laid down under the Water Act

which is imprisonment for three months or a fine which may extend to Rs 10,000. In case of

continuing contravention an additional fine of Rs 5000, for every day of the contravention.

The Act applies even to Government departments, but has a provision to protect action taken in

good faith. The punishments imposed are subject to review by an appellate authority, and no

injunction is to be granted by any court in respect of any action taken in pursuance of any power

conferred under this Act.

Power to order closure, prohibition or regulation of any industry- After the Amendment of

the Act in 1987, the Act gives the power to issue directions was clarified to the effect that such

power includes closure, prohibition or regulation of any industry, and the power to stop or

regulate the supply of electricity, water or any other service.

Some of the major amendments related to empowerment of the Central and State Pollution

Control boards to meet with grave emergencies of air pollution. The boards were authorized to

take immediate measures to meet such emergencies and recover from the persons concerned the

expenses incurred in the process. The power to cancel consent for non-fulfillment of the

conditions prescribed is also emphasized under the Air Act Amendment.

34 (1995) 5 SCC
615
20
 98
The Environment (Protection) Act, 1986

History:

The Environmental (Protection) Act, 1986 was enacted in pursuance to the Stockholm

Declaration, 1972 which India was a signatory to. The Ministry of Environment and Forest was

created in 1985, and thus the Environment (Protection) Act was legislated as a umbrella

legislation for environmental protection and regulation of developmental activities and after the

Bhopal Gas Tragedy took place in 1986 and there was a sense of urgency to prevent such

catastrophic incidents by creating a mechanism of co-operation in planning, policy making and

co-ordination of action between the Central and State Governments.

Purpose of Act:

The purpose behind creating the Act was to give force to the Article 48 (A) of

the Constitution of India which states Protection and improvement of

environment and safeguarding of forests and wild life The State

shall endeavour to protect and improve the environment and to

safeguard the forests and wild life of the country. The Act also gave

force to Article 51 (A) (g) of the Constitution of India which states that every

citizen of India has a Fundamental Duty to

35 (1995) 5 SCC
615
20
98
Environment (Protection) Act, 1986-
th
http://envfor.nic.in/legis/env/env1.html Last Visited on 6 April,
2012

Chapter 1, Review of the existing environmental norms concerning the power sector by
Consumer Education and Research Centre- http://www.cercind.gov.in/chapter1.pdf
th
Last Visited on 6 April, 2012

36 (1995) 5 SCC
615
20
to protect and improve the natural environment including
forests, lakes, rivers and wild life,

and to have compassion for living creatures.

Important Definitions:

The Act provides for a few important definitions:

Environment includes water, air and land and the inter-relationship which exists among

and between water, air and land, and human beings, other living creatures, plants, micro-

organism and property

Environmental pollutant means any solid, liquid or gaseous substance present in such

concentration as may be, or tend to be, injurious to environment

Environmental pollution means the presence in the environment of any environmental

pollutant

Handling, in relation to any substance, means the manufacture, processing, treatment,

package, storage, transportation, use, collection, destruction, conversion, offering for sale,

transfer or the like of such substance

37 (1995) 5 SCC
615
20
 Hazardous substance means any substance or preparation which, by reason of its chemical

or physico-chemical properties or handling, is liable to cause harm to human beings, other

living creatures, plants, micro-organism property or the environment

Occupier, in relation to any factory or premises, means a person who has control over the

affairs of the factory or the premises and includes, in relation to any substance, the person in

possession of the substance

Prescribed means prescribed by rules made under this Act

Provisions of the Act:

The Act empower the Ministry of Environment and Forest (MoEF) to lay down standards for

environmental quality; emissions or discharge of environmental pollutants from various sources,

devise procedures for handling hazardous substances, formulate rules for locating industry,

mandating compulsory reporting of environment pollution by industry and provide for recovery

99
of costs of cleanup from the polluter .

The Act creates an Authority to exercise powers to fulfill the provisions of the Act and gives the

Government of India to lay down directions on which the appointed Authority must act to fulfill

the provisions in the Act. The Government is empowered to make rules to regulate

99
Environmental Laws in India: Overview and Important Principles by K.V. Singh and
38 (1995) 5 SCC
Shephali M. Birdi (Kochhar and Co.)- Environment Law Institute, Washington DC, 2009
615
20
environmental pollution. The MoEF is responsible for making rules to implement the EPA and

has adopted industry specific standards for effluent discharge and emissions for 24 designated

industries. Thermal power plants fall in this list. For other water polluters general standards are

prescribed.

The Act sets standards for the discharge of pollutants for industries and lays down procedures

and standards for person handling hazardous substances. The Act expressly states that those

persons who are carrying on industry, operations etc., are not to allow emission or discharge of

environmental pollutants in excess of the standards.

The Act lays down rules for furnishing of information to authorities and agencies in certain

cases. In cases where discharge of an environmental pollutant occurs in excess of the prescribed

standards, or there is an apprehension of this occurring due to an accident or some other

unforeseen event, then the person who is in charge at that particular time is responsible for

preventing environmental pollution due to the said discharge. It is the responsibility of the person

to intimate the occurrence of the discharge to the CPCB/SPCB (Central/State Pollution Control

Board), and provide all possible assistance to the regulatory agencies to counter the ill effects of

the discharge. All expenses incurred by the regulatory agency in undertaking remedial measures

may be recovered from the polluter.

39 (1995) 5 SCC
615
20
The Authority has the Powers of entry and inspection of industrial sites and the power to take

samples. The search and seizure authority provided in the earlier section is supplemented with

the power to take samples of air, water, soil or any other substance from the factory premises.

The Act establishes Environmental laboratories. The samples collected are to be sent to notified

laboratories for analysis under Government analysts with specific qualifications. The functions

of environmental laboratories and the qualifications of Government analysts are described in the

Environment (Protection) Rules, 1986.

The Act also gives effect to other laws. After the exceptionally stringent penal provisions

provided (discussed under), the EPA dilutes the same drastically. Where an act or omission

constitutes an offence punishable under EPA and also under any other Act, then the offender shall

be liable to be punished under the other Act and not this Act.

Penalties under the Act

The Act lays down penalties in case of unlawful discharge of pollutants. The person responsible

for such discharge is liable for punishment for a term which may extend to five years and a fine

which may not go beyond one lakh rupees or both. If one does not comply with the penalty, they

will be liable to pay Rs. 5000 per day for every day of non-compliance, and if the non-

compliance stands for more than a year, then imprisonment may extend to seven years. If the
40 (1995) 5 SCC
615
20
pollutant has been discharged by any department of government, the head of the department shall

be deemed to be guilty of the offence and shall be liable to be proceeded against and punished

accordingly along with any officer in the department who is liable for the discharge.

Select Notifications under the Act

Coastal Regulation Zone Notification (1991) (CRZ)

This regulates activities along the coastal stretches. The Central Government has declared the

coastal stretches of seas, bays, estuaries, creeks, rivers, and backwaters which are influenced by

tidal action (the land ward side) up to 500 meters from the high tide line (HTL) and the land

between the low tide line (LTL) and the HTL as a Coastal Regulation Zone. The facts which

were relevant for power plants under this notification are dumping of ash or any wastes from

thermal power plants in the CRZ is prohibited and thermal power plants require environmental

clearance from the MoEF, for foreshore facilities for transport of raw material and for facilities

for intake of cooling water and outfall for discharge of treated waste water/cooling water, in the

CRZ.

The Environment Impact Assessment of Development Projects Notification, 1994 and as

amended in 1997

Until January 1994, obtaining environmental clearance from MoEF was only an administrative

requirement intended for mega projects undertaken by the Government or public sector
41 (1995) 5 SCC
615
20
undertakings. The EIA notification of May, 1994, makes EIA (environmental impact assessment)

statutory for 29 activities (Schedule I of the notification). Thermal power plants and

hydroelectric projects fall into this category. The salient provisions required all projects listed

under Schedule I are required to obtain environmental clearance from the MoEF. Projects which

fall under the delicenced category of the New Industrial Policy also need clearance from the

MoEF. All development projects whether under Schedule I or not, if they are to be located in

certain notified ecologically sensitive or fragile areas will have to obtain clearance from MoEF.

Industrial projects where the investment is Rs 500 million or more must get MoEF clearance.

Industrial projects are further required to obtain a LOI (letter of intent) from the Ministry of

Industry, and a NOC (no objection certificate) from the SPCB and the State Forest Department if

the location involves forest land. Once the NOC is obtained, the LOI is converted to an industrial

license by the State authorities. However, if the project falls under Schedule I of the EIA Review

of existing environmental norms 14 TERI Report No. 99PG64 notifications, it must obtain an

environmental clearance from the MoEF.

Taj Trapezium Notification (1998)

The Central Government has constituted an authority known as the Taj Trapezium Zone

Pollution (Prevention and Control) Authority. This authority is empowered to monitor the

implementation of various schemes for the protection of the Taj Mahal and protection and

improvement of the environment in the Geographical limits of the Taj Trapezium.

42 (1995) 5 SCC
615
20
The geographical limits of the Taj Trapezium have been defined in the shape of a trapezoid

between 26 45 N and 77 15 E to 27 45 N and 77 15' on the west of the Taj Mahal and on

the east between 27 0 0 N and 78 3 0 E to 27 30 N and 78 3 0 E. No power plants can

be set up within this geographical limit.

The Environment (Protection) Rules, 1986

The Environment (Protection) Rules, 1986 have been made by the Central Government under the

EPA. The Rules lay down the procedure for setting standards of emission of discharge of

environmental pollutants. They contain detailed norms for the directions that the Central

Government can issue. The Rules also prescribe the parameters for the Central Government,

under which it can issue orders of prohibition and restriction on the location and operation of

industries in different areas. The Rules also lay down the procedure for taking samples, serving

notice, submitting samples for analysis and submitting the laboratory report. The functions of

environmental laboratories are described under the Rules, and the qualifications for the

government analysts are also laid down. A schedule, an appendix and the copies of forms

appearing at the end of the Rules contain the procedural format and the information requires

under the Rules. Some relevant provisions of the Rules pertain to standards for emission,

issuance of specific directions to an industry, prohibition and restriction on the location of

industries in different areas, specific procedure to be followed by the officer collecting the

samples, manner of giving notice, and environmental audit report.

43 (1995) 5 SCC
615
20
iii. The National Green Tribunal Act, 2000

Introduction

The Lok Sabha (The lower and most important National Legislative House of India) passed

the National Green Tribunal (NGT) Act of 2000 on 18 October 2010. It encompasses within it

the Fundamental Right to a Healthy Environment that is enshrined in the Indian Constitution

66
under Article 21 . It heralded a new dawn in environmental protection and will replace the

National Environment Tribunal Act, 1995 and the National Environment Appellate Authority

Act, 1997. The Tribunal in essence is a fast track court specializing in dispensing justice on

environmental issues thus displacing the burden that the Indian courts are bearing at this moment

67
and giving judicial legitimacy to Principle 13 of the Rio Declaration . After Australia and New

68
Zealand, India is the third country to have a dedicated all-encompassing Green Tribunal .

The National Green Tribunal Act, 2000

The court has been set in Bhopal and five benches spread around the country with the sole

mission to quickly dispose of environmental protection cases. The three circuit benches are set

66
Article 21, Indian Constitution- Right to Life

67
Principle 13, Rio Declaration- states shall develop the national law regarding liability and
compensation for the victims of Pollution and other environmental damage

68
National Green Tribunal Starts Functioning-
http://articles.economictimes.indiatimes.com/2011-07-
44 (1995) 5 SCC
04/news/29736147_1_national-green-tribunal-ngt-environment-ministry
615
20
up in Kolkata, Chennai, and Pune. The court has been designated to be headed by a sitting or

retired Supreme Court judge or the Chief Justice of a High Court. Its first target will be to wrap

up 5,600 cases taken from all the High Courts to of the country. Compensation can be claimed in

cases of death, disability, damage to property and loss of business or employment. Though no

limit has been fixed for the compensation, the tribunal may provide relief and compensation to

the victims as it may think fit. The court must dispose the case in six months. To ease the

disposal of cases the courts are not bound by the Code of Civil Procedure but they are bound by

the principles of natural justice. The Central Government funds the working of the courts. Justice

L.S. Panta, Former Judge of the Supreme Court has been appointed as the first Chairperson of

69
the NGT .

70
Salient features of the Act

The Act in its Preamble gives a complete view of it motivations that are based in the

international environmental conferences in Stockholm and Rio de Janeiro and the commitments

India made there. The Act makes it clear that it will call on cases which have an unanswered

substantial question of law regarding the environment. The Act also clearly states that it would

69
http://www.greenworldinvestor.com/2011/07/04/national-green-tribunal-ngt-of-india-
what-you-need-to-know- historychallengescircuit-benchesnecessity/
70
National Green Tribunal Act, 2000- http://moef.nic.in/downloads/public-
th
information/NGT-fin.pdf Last Visited 29 March, 2012

42
The National Green Tribunal Act: An Overview by Aruna B. Venkat (Nalsar
Law Review)-
http://www.commonlii.org/in/journals/NALSARLawRw/2011/7.html

42
only encourage cases that affect the broader community at large but they might steam from a

complaint by an individual. Thus, it will not entertain individual actions unless it reflects on the

community as a whole. No civil court in India can entertain cases which fall under the

jurisdiction of the Green Tribunal.

The Act allows a time limitation of six months to file a complaint though it might entertain cases

beyond the limitation period if circumstances dictate so. It also states a limitation period of five

years to apply the relief which has been granted by the Tribunal. Relief can be in form of

compensation, fines, and restitution of private or public property and the damaged environment.

The Act lays down a few principles it will work on. It will entertain complaints and appeals from

other Environmental Authorities established under other environmental laws of India. The Courts

will apply the Principles of Natural Justice and International Environmental Principles, Treaties

and Conventions that India has ratified while following while deciding cases. The Court has been

exempt from following the rules of the Code of Civil Procedure. This will expedite proceedings

and allow the court to not waste time in useless proceedings

The Act provides that an application for grant of relief or compensation or settlement of dispute

may be made to the Tribunal by any person who has sustained the injury, the owner of the

property to which the damage has been caused, all or any of the legal representatives of the

deceased where death has resulted from the environmental damage, any agent duly authorized by

such person or owner of such property or all or any of the legal representatives of the deceased,

43
as the case may be and any person aggrieved including any representative body or

organization.

In addition, the Central or State Governments, or a Union Territory administration or the Central

or State Pollution Control Boards or any environmental authority constituted or established under

the Environment (Protection) Act, 1986 or any other law for the time in force, can also move the

Tribunal.

Cases in the Tribunal

th 71
The Green Tribunal officially started functioning on 4 July, 2011 . In a recent order by the

NGT in a case regarding coal fired thermal plants, could affect such plants all over India. In the

present case, the residents of a town in Maharashtra were opposing the expansion of a thermal

plant. In the order, the Tribunal directed the Union Ministry of Environment and Forests (MoEF)

to make a detailed assessment of the supposed radiation caused by the thermal power plants in

the country. A week before that, the tribunal had asked MoEF to get prescribed national

standards from Department of Atomic Energy (DAE) within a year on the permissible levels of
72
nuclear radiation in residential, industrial and ecologically sensitive areas .

71
National Green Tribunal Starts Functioning-
http://articles.economictimes.indiatimes.com/2011-07-
04/news/29736147_1_national-green-tribunal-ngt-environment-ministry

72
Green Tribunal Seeks Details on Radiation from Thermal Power Plants-
http://www.downtoearth.org.in/content/green-tribunal-seeks-details-radiation-
th
thermal-power-plants Last Visited 29 March, 2012
44
45
In another case, The NGT suspended the environmental clearance obtained by a Belgaum-based

mining company to extract iron ore from the south Maharashtra sea-coast. The tribunal's order

was in response to an appeal filed by the affected villagers, found serious procedural lapses in

grant of environmental clearance by an expert Advisory Committee (EAC) of the MoEF to the

73
company .

In two recent cases the Tribunal came into prominence, first because it could get its biggest case

yet and in the second instance it delivered its biggest judgment till date. In the first case the

dispute was regarding the environmental clearance over a residential township being built over a

hilly terrain in the state of Maharashtra. In the said case the Bombay High Court suggested the

case along with the pending PILs regarding the project, be take over the NGT. The High Court

has sought the positions of the parties involved in the case if they agree to the suggestion. If

these cases are moved to the NGT, it will be the biggest and the most high profile case to be

given to the Tribunal. In the second instance, the NGT cancelled the steel plant being built by the

South Korean steel giant POSCO, which consequently sent back the largest foreign direct

investment in India back to the drawing board. The $12 million steel plant has been a hotly

debated issue for over seven years because of its location in the tribal heartland which could take

away large tracts of forest land, cause tribal and human rights violation, human displacement,
74
and potential large scale environmental and ecological disaster .

73
Green Tribunal Suspends Environmental Clearance to Gogte Minerals-
http://www.downtoearth.org.in/content/green-tribunal-suspends-environmental-
th
clearance-gogte-minerals Last Visited 29 March, 2012
74
Lavasa Petitions Can be Heard BY Green Tribunal, Says HC-
http://economictimes.indiatimes.com/news/news- by-industry/indl-goods-/-svs/metals-
mining/lavasa-petitions-can-be-heard-by-green-tribunal-hc-uggests/articleshow/10754888
46
47