ENVIRONMENT LAW

B.A. LL.B. (VI Semester)

Dr. Ghulam Yazdani

Faculty of Law, Jamia Millia Islamia

Index

S. No Heads Page no.

Structural Format of classes
1. Lecture 1: Introduction of Sustainable Development 7
International Legal Response 12
2. Lecture 2: Principle of Inter-generational equity 25
Intra-generational equity 28
3. Lecture 3: U.N. Commission on Sustainable
31
Development 1992
31
W.T.O Committee on Trade and Environment
4. Lecture 4: Implementation of Sustainable
35
Development in India
5. Lecture 5: Classical and Common law remedies for
58
environmental protection
6. Lecture 6: Environmental Policy in India 70

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1. Structural Format of Classes

Schedule of Classes: B.A.LL.B (Semester VI)

Regular Batch & Self Finance:

28th February, 2020

15th March, 2020

27th March, 2020

Subject: Environment Law

Unit-I: Topics to be covered

1. Sustainable Development: Conceptual and Theoretical

Framework
2. Sustainable Development: International and National Legal
Response
3. Principles of Sustainable Development
• Inter-generational Equity
• Intra-generational Equity
4. Implementation of Sustainable Development in India
5. Classical and Common Law Remedies for Environmental
Protection: Criminal and Tortious Dimensions
6. Environmental Policy in India

CLASS I- In this class I explained the meaning of the word sustainable

development and dealt with the concept and history of it. Discussed

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about various conferences and commission at international level
formed in this regard.

CLASS II- In this class I had an in-depth discussion on what the term
equity means, relating it with inter-generational equity and intra
generational equity, their basis, fundamental principle and judicial
opinion discussed in this behalf. Further during my teaching, I also
mentioned cases

• Rural Litigation and Entitlement Kendra, Dehradun v. Union of

India
• State of Himachal Pradesh v. Ganesh Wood Products
• Kinkri Devi v. State
• K. Guruprasad Rao v. State of Karnataka
• Court on Its Own Motion v. Union of India

CLASS III – In this class I covered U.N. Commission on Sustainable

Development 1992. Though I had discussed it in the first class but the
documents adopted were discussed in depth. Further I also discussed
W.T.O. Committee on Trade and Environment, its formation and report
achievements.

CLASS IV- In this class I covered the development of sustainable

development in India along with its history from ancient to present
time. I discussed the role of different religion in India in implementing
the concept of sustainable development. Also covered the initiatives
taken by the Britishers and post-independence development of the

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concept exclusively in India. I also covered constitutional mandates and
judicial contribution in this behalf covering cases like

• Vellore Citizen Welfare Forum v. Union of India

• Rural Litigation and Entitlement Kendra Dehradun v. State of
Uttar Pradesh
• Narmada Bachao Andolan vs. Union of India
• T.N. Godavaraman Thirumulpad vs. Union of India
• Indian Council of Enviro-Legal Action vs. Union of India
• MC Mehta v Union of India
• The Indian Environ-Legal Action v Union of India
• Bombay Dyeing and Manufacturing Co. Ltd v.
Bombay Environmental Action Group
• Amarnath Shrine, in Re vs. Union of India and Others
• MC Mehta v Union of India
• Samatha v State of Andhra Pradesh

CLASS V- In this class I covered various tortuous liabilities relating to

environment which basically include Nuisance, Negligence, Trespass
and Strict liability and discussed cases related to it.

CLASS VI – In this class I covered various different policy

frameworks related to environment protection in India.

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CLASS- I
1. SUSTAINABLE DEVELOPMENT: CONCEPTUAL AND
THEORETICAL FRAMEWORK
1.1. Introduction

Transforming developing countries from an agricultural to an industrial

economy has been focus of planners, underpinned by goals of
stimulating growth and reducing poverty. Development is no doubt an
inevitable part of society but the development should go hand in hand
with the environment. The continued deprivation of environmental
quality shakes the foundation of human survival. Recently there has
been a major concern over environment and its implication on
traditional goals of development. Environmental problems centre on
human activities resulting pollution of the atmosphere, ocean and land.
These ranges from global (greenhouse warming and ozone depletion)
to regional (acid rain and desertification), national (deforestation) and
local (urban population, soil erosion and contamination of fresh water).
The advantages of development can only be enjoyed in true sense,
when it does not cause adverse effect on environment.

Development without concern for the environment can only be a short-

term development. In the long term it will only result into human
suffering, poverty and destruction of life and property. Over the
twentieth century indiscriminate deforestation, mineral exploitation,
industrialisation and urbanisation have led to unsustainable
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environment which have resulted in creation of wasteland, pollution of
river and seas, greenhouse effect, acid rain etc. Environment protection
became a major issue and that led to birth of concept of sustainable
development. The concept assumed immense importance against the
backdrop of ever-growing population and nature of modern man in
terms of indiscriminate and careless exploitation of environment to
fulfil his insatiable greed and to gratify his ever-growing hunger for
prosperity.

1.2. Meaning and Concept

Environment and development were considered traditionally to be

paradoxical and both were essential for the well-being of the mankind,
it was then required to find out a more balanced approach where there
can be development but with due care and ensuring protection of
environment. This gave birth to the concept of sustainable
development.

The concept sustainability originates from the Latin word “sustinere”

which means “to hold up”, “to endure”. Webster’s New Collegiate
Dictionary describes sustainability as “to give support” to “to keep
up”. Chambers 21st Century Dictionary defines “Sustainable” as
capable of being sustained said of economic development and
capable of being maintained at a set level. Cambridge English
Dictionary defines, “Sustainable” is also used to refers to a way of
suing natural products so that no damage is cause to the
environment. Sustainability means “ability to maintain a certain state”

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and using the resources in a way that does not cause environmental
damage.

For the first time, World Commission on Environment and

Development (WCED), chaired by Brundtland submitted a report Our
Common Future. The Report defines the concept of Sustainable
Development as,

“Development that meets the needs of the present without

compromising the ability of future generations to meet their
own needs”.

The Concept of Sustainable Development contains the two key

concepts: The concept of ‘needs’, in particular the essential needs of
the world’s poor, to which overriding priority should be given; and the
idea of limitations imposed by the state of technology and social
organization on the environment’s ability to meet present and future
needs.

Caring for the Earth (Caring for the Earth: A Strategy of

Sustainability, 1991, prepared by UNEP, IUCN and WWF, (Gland,
Switzerland, 1991), p 211.) defines “Sustainable Development as
“improving the quality of human life while living within the
carrying capacity of supporting ecosystem”.

An eminent environmentalists Dr. M. S. Swaminathan (Dr. M. S.

Swaminathan, “Focus-sustainable Growth”, Survey of the
Environment, The Hindu, (1992) defines

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“Sustainable Development implies a future in which standard of
life is improved would wise through economic development where
local environment and biosphere are protected and science is
mobilized to create new opportunities for human progress.

Abdul Kalam (PURA: Innovative Solutions Towards Sustainable

Development, (Penguin Books, New Delhi, 2011), p. 129) remarks:

“Sustainable Development does not imply absolute limits to

growth and it is not a new name of environmental protection.
The concept leads a unique meaning to development and sets
an integrated target for the measurement of development
which has a combination of parameters including economic
status, poverty, education, health, women empowerment,
harmony, physical connectivity and environmental aspects.”

The concept of sustainable development is based on the concept of

development (socio-economic development in line with ecological
constraints), the concept of needs (redistribution of resources to ensure
the quality of life for all) and the concept of future generations (the
possibility of long-term usage of resources to ensure the necessary
quality of life for future generations). The essence of the concept of
sustainable development derives from the Triple bottom line concept,
which implies the balance between three pillars of sustainability –

a) environmental sustainability focused on maintaining the quality

of the environment which is necessary for conducting the
economic activities and quality of life of people,
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b) social sustainability which strives to ensure human rights and
equality, preservation of cultural identity, respect for cultural
diversity, race and religion, and
c) economic sustainability necessary to maintain the natural, social
and human capital required for income and living standards.

Complete sustainable development is achieved through a balance

between all these pillars; however, the required condition is not easy to
achieve, because in the process of achieving its goals each pillar of
sustainability must respect the interests of other pillars not to bring
them into imbalance. So, while a certain pillar of sustainable

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development becomes sustainable, others can become unsustainable,
especially when it comes to ecological sustainability, on which the
overall capacity of development depends.

In ecological context sustainability is the ability of ecosystem to

maintain ecological process, their function, biodiversity and
productivity for a long time. It is a policy for continued development
without effecting the quality of environment, and that right to exploit
environment is not just limited to past of present generation but the
future generation too have this entitlement.

Sustainable Development is a process in which development can be

sustained for generations. It was coined for the first time by (WCED)
also known as Brundtland commission in its Report “our common
future”. It defines Sustainable devel opment as ‘Development that
meets the needs of present generation without compromising the ability
of future generation to meet their own needs’.

The world commission on environment and development (1987) stated

that S.D is not a fixed state of harmony, but rather a process of change
in which the exploitation of resources, the direction of investment, the
orientation of technological development, and institutional changes are
made consistent with future as well as resent needs.

1.3. History of Sustainable Development

In the 18th century economic theoreticians such as Adam Smith pointed

out issues of development, in the 19th century Karl Marx and classical

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economists Malthus, Ricardo and Mill also argued about certain
elements of sustainable development, while later neoclassical
economic theory emphasized the importance of pure air and water and
renewable resources (fossil fuels, ores) as well as the need for
government intervention in the case of externalities and public goods.
Previous periods, and even the following century, saw the dominance
of the economic doctrine with focus on human as a ruler of natural
resources.

The term sustainable development was originally introduced in the

field of forestry, and it included measures of afforestation and
harvesting of interconnected forests which should not undermine the
biological renewal of forests. This term was firstly mentioned in the
Nature Conservation and Natural Resources Strategy of the
International Union for Conservation of Nature published in 1980
(IUCN, 1980). Although initially sustainable development primarily
viewed an ecological perspective, soon it spread to social and economic
aspects of study. Development based on economic growth remained
until the 1970s when it was obvious that consumerism and economic
growth put pressure on environment with the consequences of polluted
and inadequate living space, poverty and illness. At the same time, the
exploitation of natural resources, in particular the stock of raw
materials and fossil fuels, has led to deliberation of the needs of future
generations and created a prerequisite for defining the attitude of long-
term and rational use of limited natural resources.

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The imbalance between human development and ecological limits has
pointed to the growing environmental problems and possible
consequences with disastrous proportions. Črnjar & Črnjar (2009)
summed up the basic causes of environmental pollution:

1) Anthropogenic causes of environmental pollution (economic

growth, technical and technological development, industrial
development, development of traffic and transport infrastructure,
population growth and urbanization and mass tourism),

2) Natural causes of environmental pollution (soil erosion, floods,

earthquakes, volcano eruptions, fires, droughts and winds) and

3) Other causes of environmental pollution (wars, insufficient

ecological consciousness, imbalance between development and natural
ecosystems and limited scientific, material, organizational and
technological opportunities of society).

The consequences of these factors − seen in various ecological

problems, ecosystem disturbances, global climate change, natural
catastrophes, hunger and poverty, and many other negative
consequences − have been warning about the sustainability of the
planet.

1.4 Sustainable Development: International and National Legal

Response

International Response

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Aspiration of developed countries to improve the socio-economic and
ecological situation of developing and undeveloped countries gathered
scientists, economists and humanists from ten countries in Rome in
1968 to discuss the current problems and future challenges of
humankind (limited natural resources, population growth,
economic development, ecological problems, etc.). Grouped as an
independent global organization called the Roman Club, these
scientists have published two significant editions – Limits of Growth
in 1972 and Mankind at the Turning Point in 1974, containing the
results of their research and appealing the world to change the
behaviour toward the planet, while in the first edition the term
sustainability was clarified in the framework of the contemporary
concept of sustainable development. The Roman club warned that
excessive industrialization and economic development would soon
cross the ecological boundaries.

In 1971 Nicholas Georgescu-Roegen published The Entropy Law

and the Economic Process, similarly warning about the dangers of
economic development and marking the beginning of the ecological
economics and environmental economics.

Different organizations and institutions participated in the creation of

the concept of sustainable development. The most significant is the
United Nations (UN), founded in 1945 with headquarters in New York,
which nowadays includes more than 190 member states. Its main goals
include: maintaining the peace and security in the world,

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promoting sustainable development, protecting the human rights
and fundamental freedoms, promoting the international law,
suppressing the poverty and promoting the mutual tolerance and
cooperation. Since its establishment, UN has been active in the field
of sustainable development by organizing numerous conferences,
taking actions and publishing various publications aimed to achieve the
goals of sustainable development and the Millennium Development
Goals (MDGs). A total of 33 programmes, funds, specialized agencies
and affiliated organizations are active within the United Nations, while
some of them play a significant role in the creation and implementation
of the concept of sustainable development. The United Nations
Division for Sustainable Development (UNDSD) has also been
established to promote and coordinate the implementation of
sustainable development, particularly in the field of intergenerational
and international co-operation. The Division also serves as a support to
policy management and management of sustainable development, and
especially as a communication platform for knowledge and data
dissemination. Along with this, the UN has established a Global
Network of Sustainable Development (GNSD) geared to achieve the
Millennium Development Goals. Since the introduction of the concept,
many international conferences, congresses, summits and meetings
have been held, resulting in various declarations, reports, resolutions,
conventions and agreements and dealing with the environmental
problems. Table below gives a chronological overview of significant
activities directly and indirectly related to the creation and development

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of the concept of sustainable development. In the table the variety of
events and activities is evident, so it is impossible to cover all of them
in past years. Additionally, in the past seventy years only UN has
published more than seventy documents significant for human
development.

Year Activities Brief description

1969 UN published the report Man and Activities focused to avoid global
His Environment or U Thant Report. environmental degradation.
More than 2,000 scientists were
involved in creation of this report
1972 First UN and UNEP world Under the slogan Only One
Conference on the Human Earth, a declaration and action
Environment, Stockholm, Sweden. plan for environmental
conservation was published.
1975 UNESCO conference on education Under the slogan Only One
about the environment, Belgrade, Earth, a declaration and action
Yugoslavia. plan for environmental
conservation was published.
1975 International Congress of the Emphasized the same problems
Human Environment (HESC), as in Stockholm in 1972
Kyoto, Japan.
1981 The First World Climate Focused on the creation of the
Conference, Geneva, Switzerland climate change research and
programme monitoring
1984 The first UN Conference on Least A report with guidelines and
Developed Countries, Paris, France measures for helping the
underdeveloped countries

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1987 Establishment of United Nations The task of the Commission is
World Commission on Environment the cooperation between
and Development (WCED). developed and developing
countries and the adoption of
global development plans on
environmental conservation.
1987 Montreal Protocol was published. Contains results of the researches
on harmful effects on the ozone
layer.
1990 The Second World Climate Further development of the
Conference, Geneva, Switzerland climate change research and
monitoring programme and the
creation of global Climate
Change Monitoring System.
1992 United Nations Conference on In the Rio Declaration and
Environment and Development Agenda 21 Action Plan
(Earth Summit or Rio Conference), principles of sustainable
Rio de Janeiro, Brazil. development were established
and the framework for the future
tasks as well.
1997 Kyoto Climate Change Conference, The Kyoto Protocol was signed
Kyoto, Japan. between countries to reduce CO2
and other greenhouse gas
emissions, with commencement
in 2005
2000 UN published Millennium Declaration containing eight
declaration. Millennium Development Goals
(MDGs) set by 2015.

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2002 The World Summit on Sustainable Report with the results achieved
Development, Johannesburg, South during the time from the Rio
Africa. Conference, which reaffirmed
the previous obligations and set
the guidelines for
implementation of the concept in
the future.
2009 The Third World Climate Further development of the
Conference, Geneva, Switzerland. global Climate Change
Monitoring System with the aim
of timely anticipation of possible
disasters.
2009 World Congress Summit G20, G20 member states made an
Pittsburgh, USA. agreement on a moderate and
sustainable economy
2012 UN conference Rio +20, Rio de Twenty years from the Rio
Janeiro, Brazil. conference, report The future we
want renewed the commitment to
the goals of sustainable
development and encouraged
issues of the global green
economy.
2015 UN Sustainable Development The UN 2030 Agenda for
Summit 2015, New York, SAD. Sustainable Development was
published, setting up 17
Millennium Development Goals
which should be achieved by
2030.

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2015 UN conference on climate change Agreement on the reduction of
COP21Paris Climate change greenhouse gases in order to
Conference, Paris, France. reduce and limit global warming.

Among the various activities, three key events set the fundaments and principles
of sustainable development. According to them, the history of the concept of
sustainable development is divided into three periods. The first period covers
the period from economic theories, where certain theorists (Smith, Marx,
Malthus, Ricardo and Mill) recognized the boundaries of development and
environmental requirements, through the activities of the Roman Club, which
warned on the negative consequences of economic development, to the First
United Nations Conference on the Human Environment held in Stockholm
in 1972. This conference marked the introduction of the concept of sustainable
development, and although it did not fully associate environmental problems with
development, it stressed the need for changes in economic development policy.
In the report published after the conference, the necessity of balance between
economic development and environment was proclaimed and 28 principles were
set aimed to preserve environment and reduce poverty. Within the action plan,
109 recommendations (socioeconomic, political and educational) were given for
quality environmental management, and finally, after the conference, resolution
on institutional and financial agreements was signed between the states.

Years after the Stockholm conference represent the second period of the concept
of sustainable development. The terms such as development and environment,
development without destruction and development in accordance with the
environment were increasingly used in publications, while the term eco-
development was first described in edition of the United Nations Environment
Programme (UNEP) published in 1978. In 1980, International Union for

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Conservation of Nature (IUCN) set an idea of linking economics and the
environment through the concept of sustainable development.

A few years later, more precisely in 1983, the United Nations World
Commission on Environment and Development (WCED) was established to
develop a global change programme. This programme was aimed to raise
awareness and concern about the negative impact of socio-economic
development on the environment and natural resources as well as provision of
perspectives of a long-term and sustainable development in accordance with the
environmental protection and conservation. After several years of work, in 1987
the Commission of 19 delegates from 18 countries, led by Gro Harlem
Brundtland (the then Norwegian Prime Minister), published a report Our
Common Future, better known as the Brundtland Report, where the concept
of sustainable development was introduced in its true sense. In its twelve chapters
this report analysed and provided a clear overview of the conditions in the world
(socio-economic development and order, environmental degradation, population
growth, poverty, politics, wars, etc.) and elaborated the concept of sustainable
development. As a new approach, this concept should be able to respond to future
challenges, such as achieving balance between socio-economic development and
the environment, reducing pollution and environmental degradation, exploiting
natural resources, reducing harmful gas emissions and climate impacts, reducing
poverty and hunger, achieving world peace and other serious challenges and
threats faced by humanity. In the second chapter, the concept of sustainable
development is defined as “development that meets the needs of the present
without compromising the ability of future generations to meet their own
needs”, which contains the core of the concept and soon became a generally
accepted and probably the most cited definition in the literature, no matter where
the context of sustainable development is being discussed.

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The fundamental objective of the concept outlined in the document is to provide
basic human needs to all people (home, food, water, clothing, etc.), with a
tendency to improve living standards, as well to achieve the aspiration of a better
life. An imperative of the Brundtland report is: rational and controlled use
of resources focused on renewable and long-term usage, protection and
conservation of nature, raising ecological awareness, stricter national
regulation and international co-operation, stopping population growth,
using industry and technology in line with environmental requirements,
developing technological innovations in order to reduce impact on
environmental. Thus, according to the Report, the underlying principles of the
concept of sustainable development are assurance of the human needs, while
respecting certain environmental constraints. The Brundtland report marked the
beginning of a new global socio-economic policy in which the concept of
sustainable development has become a key element in environmental
management and other areas of human activities. This event was followed by the
third, so-called After Brundtland period, which lasts until today and included
several significant events.

Caring for the Earth, 1991: A Strategy for Sustainable Future was developed
by the second world conservation project comprised of the representatives of the
IUCN, UNEP and WWF. The central theme of the report is the application of
the principle of Sustainable Development. Caring for the earth represents current,
middle-of-the road thinking on the relationship between conservation and
development. The document also concerns both human rights and the biodiversity
and environmental degradation. Specific recommendations of the report include:

- establishing a constitution commitment to the principles of Sustainable

Development;

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- establishing a comprehensive system for environmental law, and providing for
its implantation and enforcement;

- reviewing the adequacy of legal and administrative control and of

implementation and enforcement mechanisms;

- making information on the environment more accessible; and

- subjecting projects, programmes and policies to environmental impact

assessment.

Marking the twentieth anniversary of the conference in Stockholm, UN

conference on environment and development called the Earth Summit or the
Rio Conference was held in Rio de Janeiro in 1992. The conference saw the
participation of numerous governmental and non-governmental organizations
from 178 countries. Its focus was to define a global framework for solving issues
of environmental degradation through the concept of sustainable development,
considering that in the 20-year period the integration of environmental concerns
and economic decision-making was ignored and the state of the environment was
worse. More than 10,000 international journalists transmitted the conference to
millions of people around the world, witnessing the importance of the conference.
The preparation of the conference began in 1989 and as a result the following
documents were adopted:

1) Rio Declaration on Environment and Development,

2) Agenda 21,

3) Non-legally binding authoritative statement of principles for a global

consensus on the management, conservation and sustainable development of all
types of forests,

4) Climate Change Convention and

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5) Convention on Biological Diversity.

The first two documents are key for the concept of sustainable development. The
Rio Declaration on Environment and Development contains 27 principles of
sustainable development on the rights and responsibilities of the United Nations.
These principles also form the basis for future policy and decision making and
balance between socio-economic development and the environment. The
Declaration gives people the right for development but also the obligation for
preserving the environment, and since the environment is a public and common
good, it also highlights the need for cooperation and understanding between the
public and private sectors and civil society.

Among the principles, it is emphasized how humans are in the centre of concern
for sustainable development and should not delay measures to prevent
environmental degradation. At the same time, it is emphasized that each country
has the sovereign right to exploit its own resources, if this does not endanger the
environment of other countries, thereby polluters should bear the costs of
pollution. Eradication of poverty, reduction of inequalities and assuring basic
living standards and peace in the world are essential for sustainable development,
therefore developed countries have the responsibility to ensure sustainable
development, particularly for technology and financial resources.

Agenda 21 is a global programme with objectives of sustainable development

and action plans and resources for their implementation set in 40 chapters. The
document comprehensively provides guidelines for socio-economic development
in line with the environmental conservation. The document highlights the need
for international cooperation and consensus between development and
environmental protection, whereby governments play an important role in the
adoption and implementation of policies, plans and programmes, although the
participation of all other stakeholders is also necessary. Further on, developed

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countries play a key role, particularly in providing financial funds to developing
countries. As a priority goal, the document emphasizes the suppression of
poverty, especially in poor countries where it is also necessary to preserve and
protect natural resources. At the same time, in these countries there is a need for
improvement of the protection of human health and gender equality. It is also
necessary to change patterns of behaviour in production and consumption in order
to rationally exploit natural resources and fossil fuels which would result in
reduced negative impact on the environment. Finally, Agenda 21 highlights the
importance of educational programmes focused on raising awareness and
promotion of the sustainable development which are necessary for its
implementation.

From these fundamental activities and documents the three key elements of the
concept were identified:

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1) the concept of development (socio-economic development in line with
ecological constraints),

2) the concept of needs (redistribution of resources to ensure the quality of life

for all) and

3) the concept of future generations (the possibility of a long-term usage of

resources to ensure the necessary quality of life for future generations).

At the same time, concept of sustainable development outlined core principles,

namely: ensuring needs and care for the community of present and future
generations, continuously improving the overall quality of life and equality,
protecting and preserving the environment, biodiversity and ecosystems,
protecting and preserving the natural resources, with the rational use of renewable
resources and reduced depletion of non-renewable resources, changing
production and consumption respecting the ecological constraints, using
renewable energy and innovative technologies to reduce the negative impact on
the environment, strengthening international cooperation at the national, regional
and local level, creating an institutional framework with a strong network of
stakeholders interested in implementing the concept of sustainable development,
etc.

The report further suggests that social equity, economic growth and
environmental maintenance are simultaneously possible and that each nation is
capable of achieving its full economic potential whilst at the same time enhancing
its resource base.

Ten years after the earth summit, UN convened World Summit on Sustainable
Development (WSSD) in Johannesburg; from 26th August to 4th September
2002 to review the achievements of Earth summit and to future reinvigorate a
global commitment to sustainable development. The summit was attended b
21,000 participants from 191 governments intergovernmental and no
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governmental organizations private sectors, civil society, academia and the
scientific community.

The WSSD negotiated and adopted two main documents:

a) Johannesburg plan of implementation (JPOI)

b) Johannesburg declaration on sustainable development.

The JPOI laid down some basic requirement, which were as follows-:

1) The basic requirements of sustainable development are clear water,

sanitation, adequate water, energy, health care, food security and the
protection of Bio diversity.
2) The sustainable development includes: eradication of chronic hunger-
malnutrition; foreign occupation; armed conflict; illicit drug problem;
organized crime; corruption; natural disaster; illicit armed trafficking;
trafficking in person; terrorism; intolerance and incitement to racial ethnic,
religious and other hatred; endemic communicable and chronic diseases,
in particular HIV/AIDS, malaria and tuberculosis.

In 2012 UN Conference on Sustainable Development was held in Rio de

Janeiro (Brazil), from 12th to 22nd June. During this period the government
delegations concluded negotiations on the Rio outcome Document, titled THE
FUTURE WE WANT. Representatives from 191 UN member states and
observer, including 79 head of the States or governments, addressed the
general debate and approximately 44,000 people attended the official
meetings. Participant at Rio+20 were encouraged to make voluntary
commitments for actions to implements the conference’s goals, with financial
commitments from governments, the private sectors, civil society and other
groups.

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Results of the past period were presented at the conference, as well as the
progress and problems in the implementation of sustainable development. Past
commitments of the member states were updated, but also new goals were set
moving towards the Green Economy, poverty eradication and the
establishment of an institutional framework for sustainable development. The
conference followed a publication which provided statistical data and
indicators of dynamic and turbulent geopolitical, socio-economic and
ecological changes over the last 20 years, dominated by the development of
technology and the process of globalization.

While some positive improvements are visible in the use of renewable energy
sources, reduced emissions and the recovery of ozone layer, once again it has
been emphasized how environmental degradation has been continuing, with
the loss of biodiversity, natural ecosystems, habitats and species, and further
pollution of space and water (UNEP, 2012). The Rio +20 Conference was
rather successful and set a path for sustainable future.

Contemporary challenges of the concept of sustainable development were

reviewed in 2015 at the UN Conference on Sustainable Development in
New York and the resolution Transforming our world: the 2030 Agenda
for Sustainable Development with new 17 Millennium Development Goals
aimed to be achieved by the year 2030. Comparing the report on MDGs set in
year 2000 and the new 2030 Agenda, it is evident how some of the previous
goals were reformulated and reinstated in Agenda 2030, because they were
partially realized. However, apart from these failures, new goals indicated
increasing demands and challenges and the complexity of situation on Earth.
Thus, beside the standing development goals previously set, the new
development goals include: assurance of clean water and clean energy,
development of infrastructure, industry and innovation to enable employment,
assurance of economic development and inequalities between countries,

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sustainable cities and communities, responsible production and consumption,
preservation of the ecosystem on the ground and in the waters, assurance of
the world peace, etc

Conclusion

Sustainable development should provide a solution in terms of meeting basic

human needs, integrating environmental development and protection,
achieving equality, ensuring social self-determination and cultural diversity,
and maintaining ecological integrity. Although the concept of sustainable
development has undergone certain changes during the past, its fundamental
principles and goals have contributed to a more conscious behaviour adapted
to the limitations of the environment. This is the reason of adopting the
concept in different areas of human activities. Numerous international
organizations have been involved in implementation of the concept, while it
has found positive implementation locally, but it did not produce significant
results on a global scale. This fact proves environmental problems which, 30
years after the introduction of the concept, are still ongoing.

Contemporary understanding of the concept of sustainable development is

considered through the United Nations Millennium Development Goals
focused on a complex global situation, such as population growth, hunger and
poverty, wars and political instability, and further degradation of the
environment. Many countries are not even close to sustainable development
and the gap between developed and under developed countries has deepened.
Fundamental constraints of the implementation of the concept of sustainable
development are the degree of socio-economic development that many
countries have not yet achieved, associated with a lack of financial resources
and technology, but also the diversity of political and economic goals on a
global scale.

27
CLASS- II
1) PRINCIPLES OF SUSTAINABLE DEVELOPMENT

28
2.1 Inter-generational Equity

Intergenerational equity is an umbrella concept which is based on the premise

that “the present generation is required to ensure that the health, diversity and
productivity of natural resources are maintained or enhanced for the benefit of
future generations”. The essence of the concept is summarised by Edith Brown
Weiss in the following terms:

“The proposed theory of intergenerational equity postulates that all countries

have an intergenerational obligation to future generations as a class, regardless of
nationality…There is increasing recognition that while we may be able to
maximise the welfare of a few immediate successors, we will be able to do so
only at the expense of our more remote descendants who will inherit a despoiled
nature and environment. Our planet is finite, and we are becoming increasingly
interdependent in using it. Our rapid technological growth ensures that this
dependence will increase. Thus, our concern for our own country must, as we
extend our concerns into longer time horizons and broader geographical scales,
focus on protecting the planetary quality of our natural and cultural environment.
This means that, even to protect our own future nationals, we must cooperate in
the conservation of natural and cultural resources for all future generations”1

Related to intergenerational equity is the concept of intra-generational equity or

environmental justice. Intra-generational equity concerns equality within the
present generation, such that each member has an equal right to access the earth’s
natural and cultural resources. As Weiss Brown argues, members of the present
generation have a right of “equitable access to use and benefit from the planet’s
resources, which derives from the underlying equality all generations have with

1. E Brown Weiss, In Fairness to Future Generations, 26( UN University Press, 1989)

29
each other in relation to their use of the natural system”. 2 Thus, while
intergenerational equity may be viewed by some to be in conflict with achieving
intragenerational equity, the two concepts can be consistent and are in fact
intertwined. Even members of the present generation who care only about their
own descendants will increasingly care about the general environment that will
be inherited and, because a healthy environment requires the cooperation of all
countries, meeting the needs of developing countries will become part of the
pursuit of intergenerational equity.

2.2 Basis of intergenerational equity in International law

The first clear expression of intergenerational equity was made in relation to the
environment on Stockholm Conference on the Human Environment. The
Secretary General describes that:

“that the natural resources of the earth shall be held in trust for present and
future generations. The reference to trust was strongly opposed by States as
`unduly restrictive of the concept of national sovereignty', and was
eventually replaced by the more neutral formulation of «natural resources ...
must be safeguarded for the benefit of the present and future generation...”3

The Charter of Economic Rights and Duties, the World Charter for Nature, the
Nairobi Declaration urged that individual and collective responsibility to
conserve the resources for the betterment of future generations also.

Similarly, the concepts of intergenerational and intragenerational equity are

enshrined in Principle 3 of the 1992 Rio Declaration which provides that: “the
right to development must be fulfilled so as to equitably meet developmental
and environmental needs of present and future generations”.

2. E Brown Weiss (ed), Environmental Change and International Law: New Challenges and Dimensions,
397(UN University Press, 1992)
3. Louis Sohn, “The Stockholm Declaration on Human Environment” 14 Harvard ILJ 423(1973)

30
2.3 Fundamental principles of intergenerational equity

There are three fundamental principles which form the basis of intergenerational
equity, and hence are integral to sustainable development. First, the “conservation
of options” principle requires each generation to conserve the diversity of the
natural and cultural resource base in order to ensure that options are available to
future generations for solving their problems and satisfying their needs. Second,
the “conservation of quality” principle holds that each generation must maintain
the quality of the earth such that it is passed on in no worse condition than in
which it was received. Third, the “conservation of access” principle provides that
each generation should give its members “equitable rights of access to the legacy
of past generations and should conserve this access for future generations”

2.4 Judicial Opinion

In Rural Litigation and Entitlement Kendra, Dehradun v. Union of India4,

was the first case involving the issues relating to environment and ecological
balance which brought into sharp focus the conflict between development and
conservation. In this case, the indiscriminate mining in the Mussoorie hills and
Dehradun belt denuded the Mussoorie hills of trees and forest cover. It
accelerated soil erosion resulting in landslides and blockage of underground
water which fed many rivers and springs in the river valley. The court appointed
an expert committee to advice the Bench on technical issues and on the basis of
the report of the committee, the Court ordered the closure of number of lime stone
quarries.

In State of Himachal Pradesh v. Ganesh Wood Products5, the Supreme Court

stated that “the present generation has no right to imperil the safety and wellbeing
of the next generation or the generations to come thereafter.” The Indian

4. A.I.R 1985 S.C 652

5. A.I.R. 1996 S.C. 149

31
definition for intergenerational equity is the “concern for the generations to
come”. Principle 1 and principle 2 of Stockholm Declaration refers the principle
of intergenerational equity.

In Kinkri Devi v. State 6 , a PIL was filed alleging that the unscientific and
uncontrolled quarrying of the lime stone has caused damage to the Shivalik Hills
and was posing danger to the ecology, environment and inhabitants of the area.
The Himachal Pradesh High Court pointed out that if a just balance is not struck
between development and environment by proper tapping of the natural
resources, there will be violation of Articles 14,21,48-A and 51A (g). The Court
went on to state that natural resources have got to be tapped for the purpose of
social development. But the tapping has to be done with care so that ecology and
environment may not be affected in any serious way. The natural resources are
permanent assets of mankind and are not intended to be exhausted in one
generation. In this case, the court issued an interim direction to the state
government to set up a committee to examine the issue of proper granting of
mining lease and the necessity of granting lease keeping in view of the protection
of environment.

In K. GuruprasadRao v. State of Karnataka7, the Court explained the ambit

and scope of intergenerational equity and sustainable development. In this case
the appellant filed a PIL praying for the cancellation of a mining lease granted to
the respondent and to stop mining within the radius of 1km. from
Jambunatheswara Temple. The Court held that sustainable development includes
preservation and protection of historical / archaeological monumental wealth for
future generations. Right to development includes the right to whole spectrum of
civil, cultural, economic, political and social process for the improvement of
people’s well-being and realisation of their full potential.

6. A.I.R. 1988 H.P.4

7. (2013) 8 S.C.C. 418

32
In Court on Its Own Motion v. Union of India8, the Supreme Court held that
intergenerational equity is a part of article 21 of the Constitution of India.

2.5 Intra-generational Equity

Intra-generational equity is different from intergenerational equity. It deals with

the equality among the same generations as far as the utilization of resources is
concern. It includes fair utilization of global resources among the human beings
of the present generation. The concept of intra-generational equity provides rights
and duties to every person of a single generation to use and take care of the
renewable and non-renewable resources moderately among the members of the
generation.

In a developing country like India the rule of intra-generational equity is

applicable to certain extend, as in this kind of developing countries more
resources are required for development of the country and to ensure economic
stability. Industrialization is the key for the development of these countries which
requires more and more renewable and non-renewable resources, in that that the
legislature must enact strict environmental laws in relation to the implementation
of the rules specified in the doctrine of intra-generational equity, and it must be
firmly interpreted by the judiciary system of the nation.

The administration of every country must be very conscious regarding the

implementation of the rules framed by the legislature in relation to the protection
of environment and the laws related to the execution of the rules in respect of the
intra-generational equity. The resources which are not preserved for the future
generation and are available for the current generation must be equally distributed
among all the members of the present generation. To a certain extend it becomes
very difficult regulate those resources among all the members of the generation
due to national territories, international provinces, condition of the international

8. SuoMotu Writ Petition (civil) No. 284 of 2012, (2013) 1 MLJ 639 (SC)

33
society and many more, but it may be done impliedly, globalization can make
things better and easier for proper implementation of the doctrine.

Intergenerational equity and intra-generational equity both require sustainability.

Proper distribution of renewable and non-renewable resources is the key of the
concept of sustainable development. Where intergenerational equity tries to
distribute among present and future generation; intra-generational equity deals
with the distribution of resources between the members of the same generation.
Due to the lack of proper execution of the doctrine of sustainable development,
the present environment of the entire earth is in question, the rule of
intergenerational equity and intra-generational equity must be followed to save
the world from the present situation, global warming is one of the main reasons
for degradation of the environment, it not only harms the environment of earth
but also injures surviving ability of the living creature.

CLASS- III
3. Implementation of Sustainable development
3.1 International Measures
a) U.N Commission on Sustainable Development 1992

34
Please refer to Page number

b) WTO Committee on Trade and Environment

International trade law is embodied largely in the rules of the World Trade
Organization (WTO), the international organization established to provide
"the common institutional framework for the conduct of trade relations among
its Members ... ".9(), Article II( I)) WTO seeks to achieve its main objective
and function- to facilitate the predictable and free flow of international trade -
through the regulation of trade restrictions. In fact, the WTO governs trade
only in so far as it regulates trade restrictions.

The multilateral trading system (MTS) originated in the wake of the Second
World War as the General Agreement on Tariffs and Trade (GATT 1947).
Though GATT was originally to have organizational backing in the form of
an International Trade Organization (ITO), efforts to achieve an
organizational setup for international trade relations failed. For almost haifa
century, GATT 1947, amended frequently and applied provisionally among
its Contracting Parties, remained the 'principal regulator' of international trade
relations. The central focus of GATT was on tariff reductions. The system was
developed through a series of multilateral trade negotiations (MTNs), or
'rounds' held under GATT. While the early rounds dealt mainly with tariff
reductions, later negotiations also covered non-tariff barriers to trade. Also,
while GATT dealt only with trade in goods, the Uruguay Round (1986-94)
expanded the scope of the international trade rules to include trade in services,
investment measures and trade-related aspects of intellectual property rights
along with goods.

GATT finally acquired organizational support when the WTO was negotiated
during the Uruguay Round. WTO came into being in 1995, as a successor to

9. Agreement Establishing the World Trade Organization, 1994, (hereinafter WTO Agreement

35
GATT. GATT, in a revised form, continues to exist as one of the WTO
Agreements and is the 'principle rule-book for trade in goods'. The scope of
WTO's coverage can be estimated from its current membership of 144
countries (as of January 2002) covering more than 90% of world trade.

Environmental concerns were first introduced into the MTS in the 1970s. With
the increasing intensity of international concern over trade-environment
issues, the debate over the 'greening' of the world trading system has also
accelerated over the years. These issues are being debated at the international
level at the WTO CTE. As civil society has become an important player in
global governance generally, exchanges between the WTO and civil society
have also grown. Environmental groups have been at the forefront, as was
more than visible during the street demonstrations at Seattle in 1999.

Environment-related Provisions in WTO Agreements

The most significant as well as controversial WTO environment-related

provisions are the environmental exceptions contained in Article XX of the
General Agreement on Tariffs and Trade (GATT). Apart from these, two
WTO Agreements relate directly to environmental concerns as they explicitly
take into account the use I by governments of measures to protect human,
animal or plant life or health or the environment. These are the Agreement on
Technical Barriers to Trade (TBT Agreement) and the Agreement on the
Application of Sanitary and Phyto sanitary Measures (SPS Agreement). A
number of other WTO Agreements also have environmental implications.
These are, for example, the Agreement on Agriculture, the Agreement on
Subsidies and Countervailing Measures, the Agreement on Trade Related
Aspects of Intellectual Property Rights and the Agreement on Trade in
Services.

Committee on Trade and Environment (CTE)

36
The WTO also supports sustainable development and the environment
through its specialized committees and bodies like the CTE. It is a forum for
dialogue on trade and the environment. The 1994 Ministerial Decision
(Marrakesh Conference) on Trade and Environment created the WTO’s
Committee on Trade and Environment (CTE), which is open to the entire
WTO membership, with some international organizations as observers. The
committee’s mandate is broad, and has contributed to identifying and
understanding the relationship between trade and the environment in order to
promote sustainable development and make appropriate recommendations
regarding modifications of the provisions of the multilateral trading system.
Although the CTE has not recommended any changes to the rules of the
multilateral trading system, its work has led to some trade and environment
issues leading to negotiations as key components of the Doha round like for
example fisheries, this is an area where eliminating fishery subsidies can help
protect fish stock. Some issues first raised in the CTE have become fully-
fledged negotiations, for instance the relationship between the WTO and
multilateral environmental agreements (MEAs) including the relationship
between their dispute settlement mechanisms. Today there are over 500
international treaties and other agreements related to the environment, of
which over 320 are regional. Nearly 60 percent date from 1972, the year of
the Stockholm Conference, to the present. Since 1972, there has been an
accelerated increase in MEAs; over 300 agreements were negotiated.

Other issues of focus according to the 1994 work programme mandate of the
CTE are exploring the relationship between environmental policies relevant
to trade and environmental measures which can have significant trade effects
and the provisions of the WTO. Further, establishing the relationship between
the provisions of the WTO and charges and taxes for environmental purposes;
and requirements for environmental purposes relating to products, such as

37
standards and technical regulations, and packaging, labeling and recycling
requirements has been part of the CTE’s work programme. For comprehensive
provisions of the multilateral trading system dealing with the transparency of
trade measures used for environmental purposes an Environmental Database
(EDB) was established in 1998 for the WTO Secretariat to compile and update
annually all measures related to the environment that Governments have
notified to the WTO or that have been noted in trade policy reviews.

This followed intensive discussions on transparency in the CTE and the

recommendation in the CTE’s 1996 Report to the Singapore Ministerial
Conference. Other aspects of relevance are study on how environmental
measures affect market access, especially in relation to developing countries
and least developed countries; and the environmental benefits of removing
trade restrictions and distortions and issue of exports of domestically
prohibited goods (DPGs), in particular hazardous waste.

CLASS- IV
3.2 Implementation of Sustainable Development in India

We always look history as a ready reference for any kind of policy or law, for
instance; panchayati Raj which prevails in India is a long known South Asian
panchayat system which was then included in Indian governing system through
constitution b 73rd amendment. It has almost become an academic art to look into
history and try to frame out whether a particular motion has a backing or is it
favourable to implement. The question is that the environment policy that we
38
have today carry a history or not and if yes then to what extent? And for which
we need to look into Indian historiography.

The concept of environmental protection is an age old idea imbibed in the Indian
cultural ethos since time immemorial. ‘Paryavaranam’ is a Sanskrit word for
environment that was prevalent in ancient India.1 Indian Ethos since Vedic period
till the modern era depicts Indian’s awareness about importance of environmental
protection and conservation of natural resources. To understand the present-day
legal system for environment protection and conservation of natural resources, it
is important to look into the past Indian traditions and practices of protecting the
environment.

Ancient India

Environmental awareness can be said to have existed even in the pre vedic Indian
valley Civilization which flourished in northern India about 5,000 years ago. This
is evident from the archaeological evidence gathered from Harappa and Mohenjo-
Daro which were the prominent cities of the civilization. Their awareness about
hygiene and sanitation as evident from their constructions of ventilated houses,
orderly streets, numerous wells, bath rooms, public baths and covered
underground drains.

Vedic Approach to Environment

The ancient Vedic literature encompasses a holistic attitude of the cosmic vision
in a poetic way. Veda appears to impose obligations on the society and individuals
to worship nature through worshipping trees. The worshipping of Vanaspathi,
tree having thousand branches is aking to worshipping the entire creation.

Atharva Veda examines the importance of forest conservation and preservation

and protecting of three particular trees namely, “Parijath, banyan and pepal”.
Ancient Indian seers and scholars advocated wise use of water even though India

39
is blessed with perennial rivers and heavy rainfall. It was found in western part
of Rajasthan during ancient period houses were constructed in such a way that
each had a roof top rainwater harvesting system.

Several Vedic hymns are prayers maintaining balance in the functioning of all
aspects of nature and it is argued that some of those ideas expressed in them
resemble modern principles relating to conservation of resources. For instance,
the twenty-fifth Rio principle talks about how “peace, development and
environmental protection are interdependent and indivisible.” Ancient Indians
believed that ecological balance is dependent on actions, good or bad, of
individuals and society. The Vedic culture emphasized conservation of five
species of trees, namely, banyan, puople, ashok, lela and havada. The banyan is
a self-generating plant associated with fertility and longevity. It is the abode of
Lord Shiva and it is shady, healthful and medicinal. The peepal is perhaps the
most sacred of all trees in India even today. It was also insisted that every village
must have a small jungle where in apart from the above five trees others are grown
and protected, and this obligation can be compared to modern concept of social
forestry.

Buddhism and Environmental Protection

It has been argued that while many human centric western religions, Buddhism
is eco-centric. Gautam Buddha admired trees stating that trees provide shade and
shelter to the person who is planning to destroy trees. He preached in Vanaropa
Sutra in Sanyukta Nikaya that gardening and aforestation are acts which increase
doers’ merit every day. Environment and natural resources are considered as
things not inherited from the past generation but things borrowed from the future
generations. If we destroy natural resources base or pollute environment, future
generation will find it difficult to survive.

40
Buddhism is the only religion which has taught its followers to think of future
generations. Buddhism while specifying certain virtues of rulers insists that an
ideal king is expected to protect not only the people but also forests, animals and
birds. Buddhist king Asoka’s 5th Pillar Edict prohibits killing of certain species
of animals and birds. Firstly, birds and animals such as Cakravaka-geese, swans,
nandi mukhas, pigeons, bats, ants shall not be killed. Secondly, fishing was
prohibited on certain days in a month. Thirdly, on certain days cattle and horses
are not to be branded. Buddhism further taught the need for environmental
education and therefore it is asserted that foundations for modern environmental
protection were firmly laid in Buddhism

Jainism and Love for nature

Reverence for all forms of life is deeply ingrained in the Jain Ethos. It is strongly
asserted that every living being wants to live. Sorrow and killing are not liked by
any living being. All beings have the right to live. Non-violence is for the welfare
of all beings. Lord Mahavira has said “To kill or to hurt any living being amounts
to killing or hurting oneself. Compassion of others is compassion to one’s own
self.” Man should live in harmony with all beings and nature. Hence, the
relevance of Jain concept of nonviolence which can bring in adaptability in
modern life style and may help us change the attitude of people in today’s world
of consumerism and terrorism.

Resource conservation and Mauryan Administration

The regulation of human activities in the interest of protecting environment and

conserving natural resources were developed during Mauryan period. Several
offices were created for enforcement of norms relating to environmental
protection. Firstly, Suvarnadhyaksha was responsible for exploring minerals,
mining, processing, producing trading and conserving resources. He was
primarily required to set up factories for processing gold and not to allow

41
unauthorized persons to produce gold and other metals. Secondly,
Kuppyadhyaksha was required to procure forest product and convert them into
useful products. Seetadhyksha was involved in collecting seeds of all kinds,
flowers, fruits, vegetable, roots and other products. He was in charge of regulating
agriculture. For Mauryas most important forest product was elephants and
Kautilya unambiguously specifies the responsibilities of officials in respect of
protecting and preserving Elephant forests.

Kautilya in Arthashatra laid down certain norms relating to conservation of

forests. Firstly, state to maintain forests and said “Rulers shall not only protect
forest produce, elephant forest but also set up new ones. Forests shall be grown,
one for each forest produce and factories for goods made from forest produce
shall be erected, and foresters working in the produce forests shall be settled
there”. Secondly, selling, certain trees and plants without approval of authorities
were made punishable and penalties were levied for cutting branches, destroying
trunks and uprooting trees. Thirdly, the Superintendent of forests shall fix
adequate fines and compensations to be levied on those who cause any damage
to productive forests except in calamities. Fourthly, for the purpose of protection
of wild life the Superintendent of slaughter house was empowered to punish those
persons killing certain types of wild animals, deer, lions, birds, or fish which are
declared to be under state protection. It can be said that seeds of certain modern
wild life conservation originated during Mauryans administration. Lastly, the
Superintendent of slaughter house was empowered to levy fee for hunting those
wild animals not prohibited from hunting.

The end of Mauryan Empire and the dawn of Muslim rule saw the destruction of
ancient Hindu cultural traditions and the Muslim rulers not interested in
administration and maintaining good order dedicated themselves to religion
conservations and empire building. However, medieval Indian rulers contribution

42
to environmental protection and resource conservation was very little some
aspects may be taken note of at this juncture.

Medieval India

The history of medieval India is dominated by Muslim Rulers where no

noteworthy development of environmental jurisprudence took place except
during the rule of Mughal Emperor Akbar. During Akbar’s rule except rulers
others are prohibited from hunting or shikar. But no major initiatives took place
during medieval period to prevent environmental protection and conservation of
natural resources as the rulers were only interested in war, religion propagation
and empire building.

Evolution of Environmental Law and Policies during British rule

The overexploitation of natural resources and plundering of nature started in

India during early British rule. The abundant natural resources such as forest
products and minerals became a chief source of raw material for industries.
During the days of East India Company rule ruthless exploitation of timber from
Indian forests and trade in natural resources transferred natural wealth to Britain
and Indians were pushed to misery and poverty. For the purpose of legitimizing
ruthless exploitation of timber forests and natural wealth Britishers introduced
forest policy to prohibit private exploitation of forest resources and public
regulations authorizing the government to exploit forest resources. Thus, forest
department was setup during British rule in provinces and in some princely states.

The first show of interest towards the conservation of forest resource found the
reservation of teak forests in Malabar in 1806, and it was dicted by strategic
imperial needs. This was the result of depletion of the Oak Forest in England and
other western countries and the increasing demand for timber for ship building
industry and increasing demand from railways. Devoid of good forests in Britain,
Britishers realized the commercial value of Indian forests and tried to establish a
43
rigid system of control over them. One can trace the beginning of the systematic
forest policy to 1855, where the Governor General, Lord Dalhousie, issued a
memorandum on forest conservation called the ‘Charter of Indian Forests’. He
suggested that teak timber should be retained as state property and its trade strictly
regulated.

The first step towards the organized forest management was taken in 1864 with
the appointment of First Inspector General of Forests. The Forest Policy
statement of 1894 classified forests into four categories. They are (i) forests,
preservation of which was essential on climate and physical grounds, (ii) Forests,
which supplied valuable timber for commercial purposes, (iii) minor forest which
produced only inferior sorts of timber and (iv) pastures which were forest only
for namesake. The policy was opposed by many on the ground of lack of
recognition of rights of forest dwellers; it allowed unchecked exploitation by the
Government and diversion of forest land to agriculture and plantation and no
provision for wild life protection and private forests.

During British rule forest management laws and several other legislations were
enacted for the purpose of environmental protection and conservation of natural
resources. However, the Forest Act, 1927 was enacted to give wide powers to the
Government to exploit resources, to acquire forest lands including private and
village forests and other common property through simple procedure even
without making provision for compensation or equity. The Act also prohibited
cutting of teak, sandalwood grown in private land without the permission of forest
department. The Act established the Forest department for the purpose of
implementing the provision and to conserve forest.

The Forest Act, 1927 divided forests into four categories. They are reserved
forest, village forest, protected forests, and non-governmental private forests. The
provincial or state governments are empowered to designate protected forests and

44
may prohibit the felling of trees, quarrying and the removal of forest produce,
under section 26 of the Act it is an offence to fell trees and acquire forest without
prior permission of the forest department. It is also an offence to fish in ponds
and rivers in the forests. The British Forest policy asserted state monopoly and it
was based on “the right of the state to dispose of or retain for public use of the
waste and forest area is among the most ancient and undisputed features of the
doctrine of sovereignty.” Even though British did qualify the doctrine of state
monopoly through various principles of property law.

Apart from forest management laws and the regulations, during British rule
several other regulations relating to environmental protection and resource
conservation were brought into force but not so much importance was given to
the implementation of them. The following enactments appear to be prominent
among them.

Firstly, the Shore Nuisance (Bombay Colaba) Act, 1853 was enacted to regulate
disposal of waste discharged in the coastal area attached to Bombay and Colaba
from nearly industrial plants.

Secondly, Oriental Gas Company Act, 1857 imposed restriction on the Oriental
Company to prevent polluting river and sea water.

Thirdly, Chapter XIV of the Indian Penal Code by creating the offence of
nuisance attempted to protect public health, safety and tried to prevent
environmental degradation.

Fourth, the North India Canal and Drainage Act, 1873 intended to ensure free
flow of canals and rivers for the purpose of irrigation and drainage. It also
provided for legal regulation of discharge of the industrial effluents.

45
Fifth, the first attempt at conservation of wildlife was through the enactment of
the Madras Elephant Preservation Act, 1879. But the Act did not have any impact
on poaching elephants for ivory.

Sixth, the section 5 of the Indian Fisheries Act, 1897 provided that if any person
puts any poison, lime or noxious material into any water with the intent of
catching or destroying any fish, he shall be punishable with imprisonment and
fine.

Seventh, the Wild Birds and Animals Protection Act, 1912 prohibited hunting of
wild birds and animals without the permission of the forest department, The Act
also establishes Kaziranga wild life sanctuary in 1926 and Corbett National Park
in 1936.

Last, apart from the above several other legislations such as the Poisons Act,
1919, Indian Ports Act, 1908, the Boilers Act, 1923 and others were concerned
with preservation of environment and conservation of natural resources.

A moderate review of early legislative efforts suggests that they were piecemeal
and inadequate. Not until 1970s did the Central Government begins enacting
comprehensive environmental laws. The post independent India’s policy on
environmental protection and resource management developed only after 1972
Stockholm Conference. However, it is pertinent to note some aspects of the law
and policy evolved during post-independence until 1970s.

Development of Law and Policy from Independence to Stockholm

Conference 1947-1972

Until recently, the Indian environmental statutes chiefly employ a system of

licensing and criminal sanctions to preserve natural resources and to regulate their
use. Civil compensation recovered through private citizen’s suits plays peripheral
role in the overall regulatory strategy, pollution charges, fees or other economic

46
approaches to discourage environmental degradation and overexploitation of
natural resources are not institutionalized in India. The post independent Indian
approach was centred on economic development and poverty alleviation and not
on resource conservation.

The Indian Constitution is amongst the few in the world that contains specific
provisions on environmental protection. The directive principles of state policy
and the fundamental duties chapter explicitly enunciate the national commitment
to protect and improve the environment. This was achieved only during 1976 and
until then there was no specific provision under the Constitution relating to
environment protection. However, it was argued that there were sufficient
provisions in the constitution empowering both Union and state Government to
make laws for the protection of environment and conservation of natural
resources.

On the basis of those provisions in the Constitution some of the important

legislations were enacted between 1947 and 1972. They are the Factories Act,
1948; The Prevention of Food Adulteration Act, 1954; The River Boards Act;
The Mines and Minerals (Regulation and Development) Act, 1956; The Ancient
Monuments and Archaeological Sites and Remains Act, 1958; The Atomic
Energy Act, 1962 and The Insecticides Act, 1968.

The Factories Act 1948 provides that the liquid effluents, gases and fumes
generated during a manufacturing process should be treated before their disposal
to minimize the adverse effects. During this period the focus of economic policy
was on planned economic development in a mixed economy framework. The
dominant policy objectives were economic growth, employment generation,
balanced regional development and equity. Environmental considerations did not
play major role in policy making.

47
This is because the Constituent Assembly did not specifically consider the
question whether parliament or state legislatures should regulate environmental
matters. Instead distribution of environmental subjects within the three lists was
influenced by the Government of India Act 1935 and by the conflict between
those who wished to create a strong centre and others who preferred to secure
more power to the states.

Post 1972 Developments.

It is 1972 Stockholm Conference where in India introduced the concept of

economic development and protection of environment through Mrs. Indira
Gandhi’s address and one can see a shift in our understanding of environmental
protection. She declared that the poverty is the greatest polluter and said: “The
environmental problems of developing countries are not the side effects of
industrialization but reflect the inadequacy of development. The rich countries
may look upon development as the cause of environmental destruction, but to us
it is one of the primary means of improving the environment for living, of
providing food, water, sanitation and shelter, of making the desert green and the
mountains habitable.”

The year 1972 marks a watershed in the history of environmental management in

India. Prior to 1972 environmental concerns such as sewage disposal, sanitation,
and public health were dealt with by different federal ministries, and each perused
these objectives in the absence of proper coordination system at the federal or the
intergovernmental level. When the 24th UN General Assembly decided to
convene a Conference on the Human Environment in 1972, and requested a report
from each member country on the state of the environment, a Committee on the
Human Environment under the Chairmanship of Pitambar Pant, member of the
Planning Commission, was set up to prepare India’s report. By May 1971 three
reports had been prepared: ‘Some Aspects of Environmental Degradation and its

48
Control in India’, ‘Some Aspects of Problems of Human Settlement in India’, and
‘Some Aspects of Rational Management of Natural Resources’. With the help of
these reports, the impact of the population explosion on the natural environment
and the existing state of environmental problems were examined.

By early 1972 it had been realized that unless a national body was established to
bring about greater coherence and coordination in environmental policies and
programmes and to integrate environmental concerns in the plans for economic
development, an important lacuna would remain in India’s planning process.
Consequently, on 12 April 1972 a National Committee on Environmental
Planning and Coordination (NCEPC) was established. The impact of 1972 World
Conference was the introduction of several provisions in the constitution relating
to environmental protection.

Constitutional Provisions

Indian constitution envisages specific provisions for the protection and

improvement of environment. India also has credit to be the first country which
made provisions for the protection and improvement of environment in its
Constitution. By way of 42nd amendment to the Constitution in year 1976,
Article 48- A which specifically deals with Environment protection and its
improvements in several environmental cases the Indian courts also guided by the
language of this Article. Article 51A (g) casts duty on the citizens for
protection of environment. Schedule VII containing the three lists clearly lays
down various areas relating to environment protection upon which the centre and
states can legislate. As a result of which the Indian Parliament enacted various

49
legislations which deal with environment protection and put the idea on track of
sustainable development.

Indian Parliament also passed various laws effecting and regulating the
environmental issues. Legislative enactments were always with the principles of
economic, social security and sustainable development.

The Constitutional Mandates of Environmental Jurisprudence the role played by

the Supreme Court in using the Constitutional provisions especially Article 21 in
order to provide environment related justice will be evaluated. As has been
pointed out by Justice Kirpal “Article 142 afforded the Supreme Court
considerable power to mould its decisions in order that complete justice could be
done.” Hence it assumed a primal position in the Indian environmental legal
system by holding that environmental degradation in a number of ways violates
constitutional provisions. One of the most innovative parts of the Constitution of
India is that right to enforce the fundamental rights which are itself a fundamental
right under Article 32 of the Constitution. The decisions of the Supreme Court
shall be binding on all lower Courts of India (Article 141 of the
Constitution).Clean and healthy environment is the basic need of human being
which can be ensured with ecological balance which has been made possible by
judicial activism and foresight of Courts of India- specially supreme court and
various high courts. These judicial pronouncements have given new
jurisprudence and dimension to environmental protection by adopting the
doctrine of Sustainable Development.

Over the years the Supreme Court and High courts have been playing pivotal role
for protection of environment and sustainable development. Public interest
litigation cases have been played vital role in the decision of most of the
environmental cases. The Supreme Court and also various High Courts have
landmark judgements for protection of environment & sustainable development
and its various principles.

50
One of the most significant parts of the Constitution of India is that right to
enforce the fundamental rights is itself a fundamental right under Article 32 of
the Constitution as it has been recognised as one of the fundamental rights under
Article 21.

In the case of Vellore Citizen Welfare Forum v. Union of India10 the doctrine
of Sustainable Development was implemented for the first time by the Supreme
Court. The Petitioners therein had filed a petition in public interest litigation
against the pollution caused by discharge of untreated effluent by the tanneries
and other industries in the river Palar in the State of Tamil Nadu. In the instant
case, the Supreme Court held that the precautionary principle and polluter pays
principle are a part of the environmental law of India. The court also held that:
“Remediation of the damaged environment is part of the process of ‘Sustainable
Development’ and as such polluter is liable to pay the cost to the individual
sufferers as well as the cost of reversing the damaged ecology”. The judgment
marked all efforts to maintain a harmony between environment and development.

But before Vellore Citizen’s case, the Supreme Court has in many cases tried to
keep the balance between ecology and development. In Rural Litigation and
Entitlement Kendra Dehradun v. State of Uttar Pradesh11, which was also
known as Doon valley case, was the first and unique case of ecological
imbalances and environmental degradation of India where issues related to
environment and ecological balance was brought up. Two orders were given by
the Court one in 1985 and the other in 1987 in which the Supreme Court It is a
social obligation and let us remind every Indian citizen that it is his fundamental
duty as enshrined in Article 51 A (g) of the Constitution.” highlighted the fact
that India citizens have the fundamental of protecting the environment under
Article 51A (g).

10. AIR 1996 SC 2715

11. Supra note 4

51
Dispute arose over lime mining in the Shivalik hilly areas. The Supreme Court
after much investigation, ordered the stopping of mining work and held that this
would undoubtedly cause hardship to them, but it I s a price that has to be paid
for protecting and safeguarding the right of the people to live in healthy
environment with minimal disturbance of ecological balance and without
avoidable hazard to them and to their cattle, homes and agricultural land and
undue affection of air, water and environment.”

After that, the Supreme Court interpreted and implemented the doctrine of
Sustainable Development that Narmada Bachao Andolan vs. Union of India12
observed that “Sustainable Development means what type or extent of
development can take place, which can be sustained by nature or ecology with or
without mitigation”.

In T.N. Godavaraman Thirumulpad vs. Union of India13, the Supreme Court

said “as a matter of preface, we may state that adherence to the principle of
Sustainable Development is now a constitutional requirement. How much
damage to the environment and ecology has got to be decided on the facts of each
case. In Indian Council of Enviro-Legal Action vs. Union of India 14, the Apex
Court held: “while economic development should not be allowed to take place at
the cost of ecology or by causing widespread environment destruction and
violation; at the same time, the necessity to preserve ecology and environment
should not hamper economic and other developments“. Hence, importance has
been given both to development and environment and the quest is to maintain a
fine balance between environment and economic development.

The Supreme Court of India emphasised on the need to set up specialised

environment courts for the effective and expeditious disposal of cases involving

12. Writ Petition(civil) 328 of 2002

13. W.P.(C) 202 o 1995
14. (1996) 5 SCC 281

52
environmental issues, since the right to healthy environment has been construed
as a part of right to life under Article 21 of the Constitution.

The first case that can be discussed in respect to the Courts interpretation of
Article 21 is MC Mehta v Union of India15 or the Oleum Gas Leak Case. A writ
was filed under Article 32 on the event of leakage of Oleum gas from one of the
units Shri Ram Foods and Fertilizers Industries. The primary issue dealt with in
this case was the scope of Article 21 and 32 of the Constitution. And application
for enforcement of right to life a “hyper-technical” approach cannot be adopted
which would defeat the goal of justice. “Right to life means a life of dignity to be
lived in proper environment free from danger of diseases or infections. In this
case Supreme Court established the rule of absolute liability and held that if any
damage is caused due to hazardous or dangerous activity than the sufferer is
liable to be compensated. Further, the Court also observed that the claim for
compensation under Article 21 is sustainable. In respect to Article 32 the Court
observed that the ambit of Article 32 is extremely broad and it allows the Courts
to force new remedies and to formulae new strategies to enforce fundamental
right

The case Chhetriya Mukti Sangharsh Samiti v State of UP was one of the
earliest cases where the right to environment was linked to right to life. In this
case the Supreme Court unequivocally held that “every citizen has a fundamental
right to have the enjoyment of quality of life and living as contemplated by Article
21 of the Constitution. Anything which endangers or impairs by conduct of
anybody either in violation or degradation of laws, the quality of life or living of
people is entitled to be taken recourse of Article 32 of the Constitution’.

Another noteworthy case that can be mentioned is Indian Council for The Indian
Environ-Legal Action v Union of India16. In this case writ was filed under

15. 1987 SCR (1) 819

16. 1996 AIR 1446

53
Article 32 on behalf of villagers alleging that dangerous chemicals were being
emitted by private companies and this violated the right to life of the villagers.
The Court found that the sludge released by the companies was toxic in nature
and it made the water in the wells and streams unfit for human consumption. The
Court held in this instant case that if Companies flagrantly violated the right to
life of individuals then the Court has a right under Article 32 of the Constitution
to intervene to protect the right to life and liberty of the citizens.

Similarly, in Subhash Kumar v. State of Bihar17, the Supreme Courtobserved

that “The right to life is a fundamental right under Article 21 of the Constitution,
and it includes the right of enjoyment of pollution-free water and air for full
enjoyment of life. If anything endangers or impairs that quality of life in
derogation of laws, a citizen has the right to have recourse to Article 32 of the
Constitution…”

Another important judgment that has to be discussed in this regard is MC Mehta

v Union of India18, In this case it was alleged that the foundries, and hazardous
industries as well as refineries in Mathura where emitting sulphur dioxide which
when combined with oxygen in the presence of atmospheric moisture was
transformed into sulphuric acid or acid rain which was corroding the marbles of
the Taj Mahal. A PIL was filed accordingly and it was further contended that
refinery emissions, vehicular traffic, etc. polluted the ambient air around the Taj
Trapezium (TTZ). The Supreme Court held that the emissions resulted in the
violation of the right to life of people living in the TTZ and also damaged a
prestigious monument like the Taj.

The Supreme Court in Samatha v State of Andhra Pradesh19, held thatIt is the
duty to ensure that the industry or enterprise do not denude the forest to become

17. (1991) 1 SCC 598

18. 1987 SCR (1) 819
19. Appeal (civil) 4601-02 of 1997

54
menace to human existence nor a source to destroy flora and fauna and
biodiversity.

In Bombay Dyeing and Manufacturing Co. Ltd v. Bombay Environmental

Action Group 20 , The Supreme Court observed that with major threats to
environment such as climate change , global warming etc.; the need to
protect the environment has become priority, at the same time it is also
nessasury to promote development , so much so that it has become the most
significant and local point of environment legislation and judicial decision
relating to the same .

Similarly, the apex court in Amarnath Shrine, in Re vs. Union of India and
21
Others , explained that the doctrine of Sustainable Development and
precautionary principle have been applied where development was necessary, but
not at the cost of environment” appropriate balance between the various activities
of the states very foundation of socio- economic security and proper environment
of the right to life. “And this balance to be made by the courts to ensure the
protection of environment and forests.

The Indian Government and Indian judiciary, both are playing vital role in
developing the principle of sustainable development by protecting, preserving,
and conserving the environment and natural sources. Article 21: Right to clean
and healthy environment has been interpreted as a part and parcel of right to
dignified life of people of India by the Indian judiciary specially our apex court.

Indian judiciary is playing very pivotal role to make safe environment and to
bring equilibrium between ecology and sustainable development.

20. (2005) 5 SCC 61

21. (2013) 3 SCC 247

55
CLASS-V
4. Classical & Common Law Remedies for Environmental
Protection: Criminal & Tortious Dimensions

56
Government of India passed around 200 or more state and central legislation.
However, before emerging of environment legislations and PIL, an aggrieved
could invoke or seek relief under common law of torts by instituting for nuisance,
negligence, trespass and strict liability or specific relief act 1963. Common law
is the body of law rooted from customs and conventions recognized through the
decisions of Courts of law in contrast to legislative enactments. It is derived from
the word ‘Lex communis’. The common law was mainly brought by British to
India. Tort law or the law of civil wrongs has emerged out of the common law
system providing remedies for all such individual or group acts of nuisance,
negligence and trespass.

Tort law is based upon the principles “sic uteve two ut alininum non lex das”
means so use your property as not harm others. The basis of application of
common law is ‘Justice, Equity and Good conscience’. Although tort law does
not deal directly with pollution control still one can spell out rules of pollution
control and successfully apply them from the principles evolved out of certain
aspects of the law. The common law aspects of environmental law in India are
nuisance, trespass, negligence and strict liability. Pollution cases relating to
riparian rights and prior appropriation also fall under this branch of law. Even
after the independence this corpus of law continues to be valid and operative as
the Constitution facilitates its continuance.

In M.C. Mehta vs. U.O.I 22, a motel was discharging its untreated affluent in river
Beas, thereby causing water pollution. The construction of the motel also
disturbed the natural flow of the river. The motel was directed to pay
compensation and it was also declared that “pollution fine” can also be imposed
on such polluters by following statutory principles and procedures. J. Saghir
Ahmed of Supreme Court has observed, in unequivocal terms that “pollution is a
civil wrong. By its very nature it is a tort committed against the community as a

22. (2000), 6 SCC 213

57
whole. As a person therefore who is guilty of causing pollution has to pay
damages for restoration of environment and ecology.....in addition to that the
person can also be made liable to pay exemplary damages so that it may act as a
deterrent for others not to cause pollution in any other manner.

4.1. Nuisance

Under the common law principle, the nuisance is concerned with unlawful
interference with the person’s right over wholesomeness of land or of some
right over or in connection with it. But for an interference to be an ‘actionable
nuisance’ the conduct of the defendant must be unreasonable. There is much
difficulty in employing tortious actions based on nuisance as an effective remedy
against environmental pollution because of the exhaustive and diverse definitions
of the term "nuisance". "Nuisance" ordinarily means anything which annoys
hurts or that which is offensive23. Nuisance includes any act, omission, injury,
damage, annoyance or offence to the sense of sight, smell, hearing or which is or
may be dangerous to life or injurious to health or property.” Hence acts interfering
with the comfort, health or safety are covered under nuisance. The interference
may be due to smell, noise, fumes, gas, heat, smoke, germs, vibrations etc.

The failure to distinguish between trespass and nuisance is another difficulty. The
former is a direct infringement of one's right to property. In the latter, the
infringement is the result of an act which is not wrongful in itself; but the
consequences which may follow such act infringe the right of other persons.

Kinds of Nuisance

Nuisance may be public or private in nature. The importance of the division of

nuisance into public and private lies partly in the difference of the remedies and
defences applicable to each and partly in the fact that a private individual has no

23. Durga Prasad v. State, A.I.R. 1962 Raj. 92.

58
right of action in respect of a public nuisance unless he can show that he has
sustained some "special" damage over and above that inflicted on the
community at large.

In the private nuisance the basis of an action under nuisance is unreasonable

and unnecessary inconvenience caused by the use of defendant’s land. A
public nuisance is an unreasonable interference with a right common to
general public, otherwise an act or omission which materially affects the
reasonable comfort, convenience, health, safety and quality of life of a class
of persons. The activities include carrying of trades causing offensive smells,
intolerable noises, dust, vibrations and collection of filth that affects the health or
habitability in a locality. Reasonableness of the defendants’ conduct is usually
the pivotal question in nuisance. In determining reasonableness, the Courts are
generally guided by ordinary standard of comfort prevailing in the
neighbourhood. A public nuisance has been defined in Section 268 of the Indian
Penal Code also.

Remedies for public nuisance under common law

The Code of Criminal Procedure contains provisions to tackle the problems of

public nuisance. The remedies available under section 133 to 143 of Cr.P.C which
are mentioned below: -

• An executive magistrate can interfere and remove a public nuisance of an

environmental nature. The magistrate can adopt immediate measures to
prevent danger or injury of a serious kind to the public.
• For the prevention of danger to human life health or safety the magistrate
can direct a person to abstain from acts.
• The scope of this provision as an instrument of pollution control was used
in early cases like Deshi Sugar Mill vs. Tupsi Kahar.24

24. AIR 1926 Pat 505

59
• A criminal prosecution can be initiated for the offence of causing public
nuisance under Indian Penal Code.
• The Advocate General or two or more persons can institute a suit, whether
or not special damage is caused to such persons. (section 91 of C.P.C).
• A suit may be filed in case of public nuisance or other wrongful acts
affecting or likely to affect the public. The remedy may be a declaration or
injunction.

Public nuisance under Section 133 of the Criminal Procedure Code, 1973

The scope of the provision as an instrument of pollution control came under

scrutiny in several cases.

In Deshi Sugar Mill vs. Tupsi Kahar25, the Patna High Court held that the law
of nuisance under Section 133 Cr. P.C. would be applicable to pollution related
cases also. The Court also recognized that the magistrate has the power to proceed
against the discharge of effluents injurious to the health of the community.

In Raghunandan vs. Emperor 26 the Allahabad High Court upheld the

magistrate’s order forbidding the factory owner from operating his factory
engines from 9 pm to 5 am on the ground that the noise emanated from the factory
is ‘injurious to the physical comfort of the community. The Court held nuisance
of such a nature would undoubtedly be injurious to the physical comfort and those
living in the neighbourhood of the factory and the matter attract action under
Section.133 of Cr. P.C.

In Shaukat Hussain vs. Sheodayal27, the Madhya Pradesh High Court limited
the application of the provision of Section 133 Cr. P. C. only to actual nuisance
and held that it should not be used in the case of potential nuisance.

25. Ibid
26. AIR 1931 All 433
27. 1958 CriLJ 1319

60
In Municipal Council, Ratlam vs. Vardhichand and others28, the Supreme
Court identified the responsibilities of the municipal council towards
environmental protection and developed the law of public nuisance in the Code
of Criminal Procedure as a potent instrument for the enforcement of their duties.
When the case came before the Supreme Court Justice V.R. Krishna Iyer made a
thorough examination of the two main issues.

• the municipal legislation which casts a duty on the municipality to maintain

clean roads and clean drains, and
• the provisions of the Section 188 of the Indian Penal Code (1860), which
prescribes punishment to a person contravening the directions of the
magistrate.

According to Justice Iyer, the imperative tone of these provisions demands a

mandatory duty. When an order is given under Section 133 of the Cr.P.C., the
municipality cannot take the plea that notwithstanding the public nuisance, its
financial inability validly exonerated it from statutory liability. Further, the Court
held that the processes that are envisaged under Section 133 of the Cr.P.C. have
a social justice component. The remedies available, and the powers exercisable,
under the provision are conducive to the demands of the rule of law necessitated
by the conditions of developing countries.

In Krishna Gopal vs. State of Madhya Pradesh29 the Madhya Pradesh High
Court has gone one step forward and ordered the closure of the factory even
though the contention of the defendant was that the inconvenience to the inmates
of a house is not of public nuisance but only private in nature. The High Court
observed:

28. AIR 1980 SC 1622

29. 1986 Cri. L.J 396

61
"It is not the intent of the law that the community as a whole or large number
of complainants should come forward to lodge their complaint or protest
against the nuisance: that does not require any particular number of
complainants. A mere reading of Section 133 (1) of Cr.P.C. would go to
show that the jurisdiction of sub-divisional magistrate can be invoked on
receiving a report of a police officer or other information and on taking such
evidence if any, as he thinks fit. These words are important. Even on
information received the sub-divisional magistrate is empowered to take
action in his behalf for either removal or regularizing a public nuisance".

The Court further said that smoke and noise emanated from the glucose
manufacturing factory is injurious to health and physical comfort of the
community, and dismissed the revision petition filed by the defendant.

In Pranab Kumar Chakraborty vs. Mohamed Akram Hussain30 the Gauhati

High Court decided that with the help of an order under Section 133 Cr. P. C. a
landlord could not evict a tenant. The Court further said that magistrate must
satisfy himself in an objective manner in finding out whether there is nuisance or
likelihood of nuisance.

In Jayakrishna Panigrahi vs. Hrisikesh Panda 31, the Division Bench of the
Rajasthan High Court set a differing view on ‘public nuisance’ under Section 133
Cr. P. C. The Court held that despite the heading ‘public nuisance’ in the section
the literal and unambiguous meaning shall be given to the expression ‘nuisance’
and that the provision shall apply to a case where the interest of a single individual
or of a few individuals are affected.

Limitations of the remedy

30. 1991 CriLJ 3156

31. 1992 CriLJ 1056

62
The tort law of nuisance as a remedy with reference to environmental damage
suffers from several limitations. First reasonableness of defendant’s conduct is
a question mark or otherwise unreasonableness on the defendant’s conduct is
very difficult to prove and mostly weighed against the gravity of the harm to the
plaintiff. No ideal or absolute standard can be expected from the defendant such
as that of ‘reasonable man’. Standard of nuisance varies from place to place. Lack
of ‘standing’ to sue another factor. "Special injury" is to be proved for
successful action in private actions on public nuisance by the plaintiff. In
pollution related cases it is very difficult for the plaintiff to establish causal link
between the pollutant and the injury as the subject required more of technical
evidences. Again, material harm attributable to the unreasonable conduct of the
defendant is very difficult to prove especially in the pollution related cases.

4.2. Negligence

Negligence is another specific tort on which a common law action for preventing
environmental pollution can be based. It is the failure to exercise that care which
the circumstances demand in any given situation. Where there is a duty to take
care, reasonable care must be taken to avoid acts or omissions which can be
reasonably foreseen to be likely to cause physical injury to persons or property.
The degree of care required in a particular case depends on the accompanying
circumstances and may vary according to the amount of risk to be encountered
and to the magnitude of the prospective injury. Where there is no duty to exercise
care, negligence in the popular sense has no legal consequence. 32 The act of
negligence may also constitute a nuisance if it interferes unlawfully and for a
substantial length of time with the enjoyment of another's right in land or it
occasions on the high way a dangerous state of affairs as contrasted with a single

32. Donoghue v. Stevenson, [1932] A.C. 562 (H.L.) at p. 618.

33. Stone v. Bottom, [1950] 1 K.B. 201 (C.A.) reversed on the issue of negligence in Bottom v. Stone
[1951] A.C. 850 (H.L.); (1951) I All E.R. 1078

63
isolated act.33 Equally, it may also be a breach of the rule in Rylands v. Fletcher34
if the negligent act allows the escape of a non-natural and dangerous thing which
the defendant has brought on his land.

The causal relation between negligence and the plaintiff's injury must be shown
by the plaintiff in an action for damages based on negligence. When the plaintiff
has proved to the satisfaction of the jury the existence of facts which are claimed
and outlined, then a prima facie case of negligence is presented. It thereupon
becomes the duty of the defendant to come forward with evidence to show that
the act was not negligent.

The causal relation between the negligent act and the injury suffered is not
particularly onerous task when a deadly pollutant like carbon monoxide is
discharged in the air admittedly under the defendant's exclusive control as in
Greyhound Corporation v. Blakley35.

There are several relevant legal provisions dealing with negligence in Indian
Penal Code 1860 such as section 269,270, 284,304-A.

4.3. Trespass

Trespass is a theory closely related to nuisance and is occasionally invoked in

environmental cases. Trespass requires an intentional invasion of the plaintiff's
interest in the exclusive possession of property, whereas nuisance requires a
substantial and unreasonable interference with his use and enjoyment of it. No
substantial injury need be shown for a plaintiff to succeed in an action for
trespass. The only requirement to establish a trespass is that there must be an
intentional unprivileged physical entry by a person or object on land

34. (1868) L.R. 3 H.L. 330.

35. 262 F. 2d 401 (9th Cir. 1958)

64
possessed by another. Upon proof of technical trespass plaintiff is always
entitled to nominal damages. The plaintiff could also get injunctively relief
against a technical trespass. Another advantage of trespass action over an action
for nuisance is that an action for trespass has a considerably longer statute of
limitations.

Most of the important aspects of pollution control where trespass is used as the
theory of action have been discussed by courts in many cases. In Arvidson v.
Reynolds Metals Company36 the court observed that aluminium is produced by
the defendant plant in a manner that unavoidably caused fluorides to be
discharged into the atmosphere and recognised that fluorides of some of the types
escaping from the plants, if ingested in excessive quantities, are capable of
causing damage to cattle. Nevertheless, the court found for the defendants on the
ground that large scale production of aluminium is essential to national defence.
In Fairview Farms, Incorporated v. Reynolds Metals Company 37 the court
held that air borne liquids and solids deposited upon Fairview land constituted
trespass and allowed damages for six-year period applying the statute of
limitations. However, injunctive relief was denied on the ground that pollution
was not reasonably certain to be repeated and the defendant had apparently done
all it could to control the pollution.

In Martin v. Reynolds Metals Company 38 the defendant argued that mere

setting of fluoride deposits upon the plaintiff’s land was not sufficient to
constitute a trespass. The court refused the contention and defined trespass as "the
invasion of land owner's right to exclusive possession, whether by visible or
invisible substances". This departure from the traditional definition of trespass
would impose a heavy burden on industry. Nevertheless, trespass theory is

36. 125 F. Supp. 481 (W.D. Wash, 1954), aff'd, 236 F.2d 224 (9th Cir. 1956), Cert. denied, 352 U.S. 968
(1957)
37. 176 F. Supp. 178 (D. Ore. 1959) as cited in James, E. Krier, op. cit., p. 190
38. 135 F. Supp. 379

65
inadequate to control air pollution. The difficulty in identifying the correct source
of air pollution in an area, the cost of litigation and willingness of the people to
accept the status quo etc. tend to discourage the filing of trespass suits.

4.4. The Doctrine of Strict Liability

The rule of strict liability as enunciated in Rylands vs. Fletcher39 is another form
of private law action in respect of environmental hazards. The rule provides that:

"the person who, for his own purposes, brings on his land and collects and
keeps there anything likely to do mischief if it escapes, must keep it in at his
peril and if he does not do so, is prima facie answerable for all the damage
which is the natural consequence of its escape".

The rule as enunciated by Justice Blackburn has few components which must be
fulfilled so as to attract its application. Upon the presence of these components
only the defendant is prima facie liable for the damage caused. The principle is
that when a person brings on his premises something that is likely to cause
harm if it escapes, possesses it at his peril, he will be strictly liable for the
damage caused as a result of the escape of the substance. There is no need
either to establish any negligent conduct or malicious intention to make one
liable. Liability is strict and independent of motive. All that one need to establish
is that a person had brought dangerous thing on his premises for non-natural use
of land by him (ie. not an ordinary use) and it escaped to the area outside the
occupation and injured others. It imposes ‘no fault’ liability as attachment of
liability exists irrespective of the fact that one had taken abundant care and
caution and still the object escaped from his control and caused damage to others.

As the liability is strict the defendant can raise only a few defences such as an
act of God, act of default of the plaintiff, consent of the plaintiff, independent

39. Supra note 13.

66
act of a third party and statutory authorization for the tort. The rule of strict
liability has been applied to a variety of circumstances where in damage has
resulted either due to fire, gas, explosions, electricity, noxious fumes, colliery
spoil, vibration etc. In India the rule of strict liability has been applied in limited
situations relating to the escape of water causing damage to landed property and
chattels, fire etc.

In the modern industrial society with highly developed scientific and

technological knowledge, where hazardous and inherently dangerous industrial
activities are necessary due to their social utility, the Supreme Court found it
necessary to lay down the old rule of strict liability and evolved a new principle
of Absolute Liability. The new principle of Absolute Liability affords no
exceptions available under Rylands vs. Fletcher40 for their liability.

4.5. Remedies Available under Common Law

The common law remedies against the environmental pollution are available
under the law of torts. A plaintiff in the tort action may sue for damages or seek
an injunction or both. Damages

Substantive damages are the reliefs given to the affected party of a tort in terms
of money for the loss suffered, injury sustained and inconvenience borne.
Exemplary damages are another category of damages, awarded as punishment
and by way of warning to a wrong doer. A third category of damages exist known
as "nominal damages’ indicating that the monetary compensation made available

40. Ibid

67
is only very meagre and nothing more than a symbolic or token of punishment to
the wrong doer. Even though damages are the principle relief in any tort action,
it suffers from inherent weakness. In our country most of the time the damages
awarded have less money value, depreciation in the value of damages awarded at
the end of litigation due to high rate of inflation, prolonged litigation - all this
make the relief a little successful to plaintiff. Secondly the relief does not
deterrent the polluter. Thirdly it is not an effective remedy for the abatement of
pollution.

Injunction

This is an order of the Court restraining the commission, repetition or

continuation of a wrongful act of the defendant. The remedy is awarded at the
discretion of the Court. It is of two kinds, temporary and perpetual. The Court
will consider the relative economic consequences which will result to the parties
from grant or denial of an injunction, the good faith or intentional misconduct of
the parties and the public interest. Compare to damages the injunctive reliefs are
more effective in abating pollution

CLASS- VI
5. Environmental Policy in India

5.1. The National Forest Policy, 1988

The first National Forest Policy in independent India took effect in
1952, with a second edition in 1988. The main theme of this policy of
1988 is protection, conservation, and development of forests. The

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principal aim of National Forest Policy, 1988 is to ensure
environmental stability and maintenance of ecological balance
including atmospheric equilibrium which are vital for sustenance of all
life forms, human, animal and plant.

The basic objectives that should govern the National Forest Policy- are
the following:

(i) Maintenance of environmental stability through preservation and,

where necessary, restoration of the ecological balance that has
been adversely disturbed by serous depletion of the forests of the
country.
(ii) Conserving the natural heritage of the country by preserving the
remaining natural forests with the vast variety of flora and fauna.
(iii) Checking soil erosion and denudation in the catchments areas of
rivers, lakes, reservoirs in the “interest of soil and water
conservation, for mitigating floods and droughts and for the
retardation of siltation of reservoirs.
(iv) Checking the extension of sand-dunes in the desert areas of
Rajasthan and along the coastal tracts.
(v) Increasing substantially the forest/tree cover in the country
through massive afforestation and social forestry programmes,
especially on all denuded, degraded and unproductive lands.
(vi) Meeting the requirements of fuel-wood, fodder, minor forest
produce and small timber of the rural and tribal populations.

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(vii) Increasing the productivity of forests to meet essential national
needs.
(viii) Encouraging efficient utilisation of forest produce and
maximising substitution of wood.
(ix) Creating a massive people’s movement with the involvement of
women, for achieving these objectives and to minimise pressure
on existing forests

Since, inception of the Forest Policy 1988 the forest and tree cover in
the country has increased from 19.7 % of geographical area (State
Forest Report, 1987) to 23.4 % of the geographical area (State Forest
Report, 2005) and is indicative of the facts that the forest policy
prescriptions are helping gradually towards achieving environmental
stability and maintenance of the ecological balance.

5.2. National Water Policy, 2002

National Water Resources Council was set up on 10th March, 1983

under the Chairpersonship of Prime Minister of India with Union
Minister of Irrigation (now Water Resources) as Vice Chairman. The
NWRC adopted the first National Water Policy in its 2nd meeting held
in September, 1987. Important views and the same was circulated to
the central ministries and States for implementation. Some of the
important points of NWP-1987 are as follows:

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(i) Planning, development and management of water resources need
to be governed by national perspectives.
(ii) A well-developed information system for water related data at
national/state level should be established with a net-work of data
banks and data bases integrating and strengthening the existing
central and state level agencies.
(iii) Non-conventional methods for utilization of water.
(iv) Water resources development and management will have to be
planned for a hydrological unit.
(v) The exploitation of groundwater should be regulated with
reference to recharge possibilities and consideration of social
equity.
(vi) Land erosion by sea or river should be minimized by suitable
cost-effective measures. Indiscriminate occupation of, and
economic activity in coastal areas and flood plain zones should
be regulated.
(vii) The water sharing / distribution amongst the states should be
guided by a national perspective with due regard to water
resources availability and needs within the river basin

After adoption of NWP 1987, new challenges emerged in the water

resources sector, which necessitated review of the National Water
Policy. Accordingly, the revised National Water Policy-2002 was
adopted by the National Water Resources Council in its 5th meeting
held on 1st April 2002. While there was a chord of similarity in
essence and principles between the NWP-1987 and NWP-2002, yet
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the NWP-2002 introduced modification/addition/alteration
pertaining to various issues namely Information system, Water
resources planning, Institutional mechanism, Project planning,
Private sector participation, Water quality, Monitoring of the
projects, Water sharing/ distribution amongst the States,
Performance improvement, Maintenance and modernization,
Safety of structures, Land erosion by sea or river, Conservation of
water in comparison to National Water Policy -1987.

5.3. Wildlife Conservation Strategy 2002

Wildlife Conservation Strategy - 2002[3] was adopted in the meeting

of National Board for Wildlife, wherein it was envisaged that "lands
falling within 10 kilometres of the boundaries of National Parks and
Sanctuaries should be notified as eco-fragile zones under Section 3(v)
of the Environment (Protection) Act, 1986 and Rule 5 of the
Environment Protection Rules, 1986. The policy has following
features:

(i) Wildlife and forests shall be declared priority sector at the

national level for which funds should be earmarked.
(ii) Law enforcement agencies must ensure that those engaged
in poaching, illicit trade in wildlife and wildlife products,
destruction of their habitat, and such other illegal activities
are given quick and deterrent punishment.

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(iii) Protecting interests of the poor and tribal living around protected
areas should be handled with sensitivity and with maximum
participation of the affected people.
(iv) No diversion of forest land for non-forest purposes from critical
and ecologically fragile wildlife habitat shall be allowed.
(v) While strengthening protective measures against traditional
threats to wildlife, we should also respond to newer threats such
as toxic chemicals and pesticides.
(vi) No commercial mono-culture to replace natural forests.
(vii) Removal of encroachments and illegal activities from within
forestlands and Protected Areas.
(viii) Mitigation measures for hum an-animal conflict and mechanism
for crop insurance as also expeditious disbursements of ex-gratia
payments, should be instituted by States.
(ix) Forest Commission should be set-up to look into restructuring,
reform and strengthening the entire forest set up and affiliated
institutions in the country.
(x) A working group shall be constituted to monitor implementation
of Wildlife Action Plan.
5.4. National Environment Policy, 2006

The National Environment Policy is intended to be a guide to action: in

regulatory reform, programmes and projects for environmental
conservation; and review and enactment of legislation, by agencies of
the Central, State, and Local Governments.

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The policy also seeks to stimulate partnerships of different
stakeholders, i.e. public agencies, local communities, academic and
scientific institutions, the investment community, and international
development partners, in harnessing their respective resources and
strengths for environmental management.

The dominant theme of this policy is that while conservation of

environmental resources is necessary to secure livelihoods and well-
being of all, the most secure basis for conservation is to ensure that
people dependent on particular resources obtain better livelihoods from
the fact of conservation, than from degradation of the resource.

The policy also seeks to stimulate partnerships of different

stakeholders, i.e. public agencies, local communities, academic and
scientific institutions, the investment community, and international

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development partners, in harnessing their respective resources and
strengths for environmental management

REFERENCES

Primary Sources

A. Statutes
1. The constitution of India
2. Indian Penal code 1860
3. Code of Criminal Procedure, 1973.

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Secondary Sources

B. Books
1. Stuart Bell, Donald McGillivrary, Environmental Law (Oxford University
press,Oxford,7th ed.,2008)
2. Shyam Divan, Armin Rosencranz, Environmental Law and Policy in India
(Oxford Universit Press,New Delhi, 2nd ed.,2001)
3. S.R. Myneni, Environmental Law (Asia law house,2008)

C. Case Laws
1. Rural Litigation and Entitlement Kendra, Dehradun v. Union of India
2. State of Himachal Pradesh v. Ganesh Wood Products
3. Kinkri Devi v. State
4. K .GuruprasadRao v. State of Karnataka
5. Court on Its Own Motion v. Union of India
6. Vellore Citizen Welfare Forum v. Union of India
7. Rural Litigation and Entitlement Kendra Dehradun v. State of Uttar
Pradesh
8. Narmada Bachao Andolan vs. Union of India
9. T.N. Godavaraman Thirumulpad vs. Union of India
10. Indian Council of Enviro-Legal Action vs. Union of India
11. MC Mehta v Union of India
12. The Indian Environ-Legal Action v Union of India
13. Bombay Dyeing and Manufacturing Co. Ltd v. Bombay Environmental
Action Group
14. Amarnath Shrine, in Re vs. Union of India and Others
15. MC Mehta v Union of India
16. Samatha v State of Andhra Pradesh
17. Deshi Sugar Mill vs. Tupsi Kahar.

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18. Durga Prasad v. State.
19. Rylands vs. Fletcher
20. Martin v. Reynolds Metals Company
21. Fairview Farms, Incorporated v. Reynolds Metals Company
22. Arvidson v. Reynolds Metals Company
23. Greyhound Corporation v. Blakley
24. Jayakrishna Panigrahi vs. Hrisikesh
25. Panda Kumar Chakraborty vs. Mohamed Akram Hussain
26. Krishna Gopal vs. State of Madhya Pradesh
27. Municipal Council, Ratlam vs. Vardhichand and others
28. Shaukat Hussain vs. Sheodayal
29. Raghunandan vs. Emperor

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