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Environment
Law
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Table of Contents
Unit 1.................................................................................................................................................2
1. Meaning and definition of environment and pollution.................................2
2. Kinds Of Pollution...............................................................................................................3
3. Consequences of Pollution............................................................................................8
4. Ancient Indian Philosophy related to environment Protection..............10
Unit 2...............................................................................................................................................13
1. Constitutional provisions of environmental law.............................................13
1. Constitution 42nd Amendment :............................................................................13
2. Federal System of Government (Distribution of Legislative
Power) :......................................................................................................................................14
3. Fundamental Right.......................................................................................................15
4. Directive Principles of State Policy....................................................................17
5. Fundamental Duties....................................................................................................18
2. Constitutional provisions of environmental law.............................................18
3. Public Interest Litigation..............................................................................................20
4. Environmental issues.....................................................................................................22
Unit 3...............................................................................................................................................25
1. The Environment (Protection Act), 1986............................................................26
2. The Air (Prevention and control of pollution) Act, 1981............................28
3. The Water (Prevention and control of pollution) Act, 1974.....................29
4. The Forest Act, 1927.......................................................................................................31
Unit 4...............................................................................................................................................34
1. Polluter Pays Principle...................................................................................................34
2. Precautionary Principle.................................................................................................35
3. Assimilative Capacity Principle................................................................................36
4. Public trust doctrine.......................................................................................................36
5. Sustainable development............................................................................................37
6. Cases at National Green Law tribunal..................................................................39
7. National Green Tribunal (NGT)..................................................................................40
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Unit 1

1. Meaning and definition of environment and pollution

The word ‘environment’ is derived from the French word

‘environner’, which means ‘to encircle’ or ‘to surround.’ Broadly
speaking, environment means and includes the entire surroundings-
the land, water, air, noise, forests, wildlife etc. It is a composite term
which consists of both living and non-living elements in this planet,
and it is from the environment that all the necessities of life are
derived. The most suitable definition of environment is - It is the
sum total of water, air and land and the interrelationships that exist
among them with human beings, other living organisms and
materials.
According to the United States Council on Environmental Quality,
‘Environment’ means man’s total physical and biological system
including not only the biosphere, but also his interactions with his
natural and man-made surroundings.
According to Section 2(a) of the Environment Protection Act,
1986, environment includes water, air and land and the inter-
relationship which exists among and between water, air, land and
human beings, other living creatures, plants, micro-organisms, and
property.
Assemblage of species of plants, animals and micro-organisms
inhabiting a common area and having effects on one another is
called a biotic community. The combination of biotic community
and the physical environment is called the ecosystem.
The study of the ecosystem in totality and how the entire system
functions by interacting amongst them is called ecology.
Pollution is the wrongful contamination of the atmosphere or of
water or of soil. It is the direct or indirect introduction of substances
into the environment by man which endangers human health, harms
living resources and eco systems, damages material properties or
amenities or interferes with other legitimate uses of the
environment. The environment is a complex aggregate of physical,
chemical, and biological factors surrounding an organism or an
ecological community. Such factors act and interact with each other
to affect their form, growth, and survival. Any unfavourable
alteration of this environment is called environmental pollution.
According to Section 2(c) of the Environmental Protection Act, 1986
“environmental pollution” means the presence in the environment of
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any environmental pollutant. According to Section 2(b) of the

Environmental Protection Act, 1986 “environmental pollutant”
means any solid, liquid or gaseous substance present in such
concentration as may be, or tend to be, injurious to the
environment.
But the definition of environmental pollutant is inadequate as it
includes solid, liquid or gaseous substances only. There are
pollutants, namely, heat energy, sound and nuclear radiations which
are not substances. There are many substances in the air which may
impair the health of plants and animals (including humans.) These
arise both from natural processes and human activities. Substances
not naturally found in the air or found at greater concentrations or
found in different locations from usual are referred to as pollutants.
The definition of environmental pollution in the Act is narrow in
scope. It merely refers to the presence in the environment of any
environment pollutant. However, it is not only the presence of
certain substances but even the absence of, or decrease in
concentration of, or non-availability of a non-pollutant that results in
pollution. If oxygen is withdrawn from the environment in quantities
detrimental to the environment, it results in environmental pollution.

2. Kinds Of Pollution

1) Air Pollution- The air around us is a mixture of various gases

mainly oxygen and nitrogen, but containing much smaller
amounts of water vapour, carbon dioxide, argon and very small
amounts of other gases (Neon, Helium, Methane, Krypton,
Hydrogen, Xenon, Ozone, etc.) Air also contains suspended dust,
spores and bacteria Air pollution may be defined as the
introduction, into the atmosphere, of chemicals, particles,
biological materials or other substances that cause discomfort,
disease, or death to humans, damage to other living organisms,
food crops, and natural environment or built environment. It is
the accumulation of substances in the atmosphere in sufficient
concentrations which endangers human health or produces other
measured effects on living matter and other materials. According
to Section 2(b) of the Air (Prevention and Control of Pollution) Act,
1981, air pollution means the presence in the atmosphere of any
air pollutant. According to Section 2(a) of the Air (Prevention and
Control of Pollution) Act, 1981, air pollutant means any solid,
liquid or gaseous substance, including noise, present in the
atmosphere in such concentration as may be or tend to be
injurious to human beings or other living creatures or plants or
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property or environment. The major sources of air pollution are:

Industrial emissions, Vehicular emissions, Domestic emissions.
The most common air pollutants are Sulphur dioxide, Nitrogen
oxides, Carbon monoxide, Hydrocarbons, Particulates, Smog etc.
Apart from this, the gases discharged from refrigerators, air
conditioners etc. are responsible for depletion of the Ozone layer.
2) Water is said to be the cause of the Earth. It is the lifeline of our
ecological existence. It is one of the most precious gifts of nature.
It comprises about 70% of the Earth’s surface. But day by day
the quality of water is deteriorating and is becoming unfit for
consumption. Pollution, in simple words, means contamination.
So, water pollution means contamination of water, thereby
making it completely unfit for use. Water pollution is the
introduction of, into fresh or ocean waters, chemical, physical, or
biological materials that degrade the quality of the water and
affects the organisms living in it. This process ranges from simple
addition of dissolved or suspended solids to discharge of the
most insidious and persistent toxic pollutants (such as pesticides,
heavy metals, non-degradable chemical compounds). Water
pollution is the contamination of water bodies (e.g. lakes, rivers,
oceans, aquifers and groundwater). Water pollution occurs when
pollutants are discharged directly or indirectly into water bodies
without adequate treatment to remove harmful compounds.
According to Section 2(e) of the Water (Prevention And Control Of
Pollution) Act, 1974, "pollution" means such contamination of
water or such alteration of the physical, chemical or biological
properties of water or such discharge of any sewage or trade
effluent or of any other liquid, gaseous or solid substance into
water (whether directly or indirectly) which may, or is likely to,
create a nuisance or render such water harmful or injurious to
public health or safety, or to domestic, commercial, industrial,
agricultural or other legitimate uses, or to the life and health of
animals or plants or of aquatic organisms. Conventional or
classical water pollutants are generally associated with the direct
discharge of (mainly human) waste products into the waters.
Rapid urbanization and rapid population increase have produced
sewage problems because treatment facilities have not kept pace
with need. Untreated and partially treated sewage from
municipal wastewater systems and septic tanks in unsewered
areas contribute significant quantities of nutrients, suspended
solids, dissolved solids, oil, metals (arsenic, mercury, chromium,
lead, iron, and manganese), and biodegradable organic carbon to
the water environment. The nonconventional water pollutants
include dissolved and particulate forms of metals, both toxic and
nontoxic, and degradable and persistent organic carbon
compounds discharged into water as a by-product of industry or
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as an integral part of marketable products. More than 13,000 oil

spills of varying magnitude occur in the United States each year.
Thousands of environmentally untested chemicals are routinely
discharged into waterways.
3) The word ‘noise’ is derived from the Latin word ‘nausea’ which
means sea-sickness. ‘Noise’ is any unwanted sound that disrupts
environmental equilibrium. It is a sound which is unpleasant and
it exerts pressure on our minds. Noise is measured in decibels.
Noise is a composite of sounds generated by human activities
ranging from blasting stereo systems to the roar of supersonic
transport jets. The two major sources of noise pollution are- •
Industrial sources- which include noise generated by various
industries operating in and outside the cities. • Non-industrial
sources- which include transport, use of loud speakers, street
noise, construction work, aircraft, railways, automobiles etc.
Noise pollution has harmful effects on the environment, human
beings, and animals.
4) Land Pollution- Land pollution is the degradation of the Earth's
land surface through misuse of the soil by poor agricultural
practices, mineral exploitation, industrial waste dumping, and
indiscriminate disposal of urban wastes. Land and soil pollution
take place mainly due to the disposal of solid and semi-solid
wastes from agricultural practices and from poor sanitation.
5) Soil pollution: Soil pollution is often the result of poor
agricultural practices which remove rich humus topsoil developed
over many years through vegetative decay and microbial
degradation and thus strips the land of valuable nutrients for
crop growth. The rapid growth of urbanization and uncontrolled
use of resources in common house hold has resulted in the
production of solid wastes. Solid wastes include agricultural
wastes, ashes, bio-medical wastes, body parts of dead animals,
dry or wet garbage from domestic activities which may contain
plastics, metals, woods, glass, paper, detergents, industrial
wastes, mining wastes etc. These solid wastes, when discharged
into the soil, pollutes soil and land.
6) Nuclear (Radioactive) Pollution- One of the most important
and dangerous types of pollution is nuclear pollution or
radioactive pollution. Nuclear pollution is caused by nuclear
explosions which are carried out for performing nuclear tests and
which are further used for making nuclear weapons. Due to these
explosions, about 15 to 25% of the radioactive particles enter the
atmosphere. Once they enter the atmosphere they continue to
remain on the Earth for several years. The best example is the
Hiroshima and Nagasaki atomic bombings. The most dangerous
radiation results from the explosion of nuclear devices and the
release of energy from nuclear power generating plants. Other
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sources of radiation include spent-fuel reprocessing plants, by-

products of mining operations, and experimental research
laboratories. Increased exposure to medical X rays and to
radiation emissions from microwave ovens and other household
appliances, although of considerably less magnitude, all
constitute sources of nuclear pollution. Radioactive nuclear
wastes cannot be treated by conventional chemical methods and
must be stored in heavily shielded containers in areas remote
from biological habitats. The safest of storage sites currently
used are impervious deep caves or abandoned salt mines. Most
radioactive wastes, however, have lives of hundreds to
thousands of years, and till date, no storage method has been
found that is absolutely infallible.
7) Food Pollution (Food Adulteration)- All living beings require
food to obtain energy. It is through this energy that they carry out
their daily activities. If the food consumed is polluted or
adulterated it will have injurious effects on the consumer’s
health. The pollution of food begins by use of chemical fertilizers
and various pesticides at different stages of plant growth. These
chemicals directly or indirectly affect the quality of food and
affects the health of the consumers. Food also gets polluted
during processing, storage, packaging, and transportation.
FACTORS RESPONSIBLE FOR CAUSING ENVIRONMENTAL POLLUTION: The
main causes of environmental pollution are
o Population growth- One of the most important factors for
the damage of environment and consequential pollution is
rapid population growth. The quality of our environment is
determined by the intricate process of mankind making a
living and enjoying life. In this process he makes use of land,
food, water and air. The increase in population would certainly
exert additional pressure on the natural resources including
air, water and food systems. Therefore, in order to cope up
with the food pressure, we have to produce more agricultural
and industrial products. But our cultivated land is limited and
we cannot increase it more, we are already using nearly 50
percent of the land for agricultural purposes. For increasing
the production of food, we will require more fertilizers. In
short, we have to expend the industrial as well as the
transport base in order to meet the increased demands of
goods like cloth, iron, cement, steel, fertilizers, pesticides and
vehicles. This would involve the use of more power and
natural resources and we have to face the consequential
effect of more carbon gases and photo chemical oxidants.
o Urbanization- Urbanisation is another major factor which
contributes significantly to environmental pollution. The
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growth in urban areas comes from both the increase in

migration to the cities and the fertility of urban populations.
Much of urban migration is driven by rural populations’ desire
for the advantages that urban areas offer. Urban advantages
include greater opportunities to receive education, health
care, and services such as entertainment. Urban populations
interact with their environment. Urban people change their
environment through their consumption of food, energy,
water, and land, and in turn, the polluted urban environment
affects the health and quality of life of the urban population.
o Industrialisation- Man has been inventive right from the
beginning. He has inherited this quality from the nature itself.
In order to meet his requirements and also in order to raise his
standards of living, he has been carrying out various activities.
He is now producing things which were not there and he is
enhancing the production of those things which were there but
not in abundant quantity. In this way he is disturbing all the
four components, i.e. land, water, air and food, which is
essential for the survival of human beings and other living
beings. The demand for food, space and energy is growing. In
order to meet these demands, maximum use of chemicals is
made which is harmful for living beings.
 Due to industrial activities, a good amount of dust and
smoke is released into the atmosphere. Their
accumulation in the atmosphere prevents the heat of
the sun from reaching the Earth, which may cause a
global decrease in temperature and this may bring a
new ice age on the Earth. Dust and smoke in the
atmosphere, along with water vapours, form “smog”.
 This ‘smog’ has a very dangerous effect on the
environment. The adverse effects of industrialisation
have already been witnessed in Bhopal due to leakage
of methyl isocyanate gas from the Union Carbide Plant,
in leakage of radioactive substances from the Chernobyl
nuclear power plant in Russia.
o Deforestation- Forests provide natural habitat to many
animals. Many species of birds and animals survive only in
forests. Deforestation has deprived many living creatures of
their natural habitat. To maintain ecological balance, forests
should cover at least 30 percent of the land. However, due to
urbanization, industrialization, greater need for fuel, furniture
and building materials, deforestation takes place at an
alarming rate and this in turn has reduced the forests up to 13
percent of landed area. The forests are important as they
maintain the oxygen supply, hold the water during rainy
season in hilly regions, reduce soil erosion etc. Due to
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deforestation, the rapidly flowing rain water carries with it silt

which is deposited in rivers and lakes. This raises the river
bed. The silting makes rivers unfit for navigation and prone to
flooding. Reduction in forests also causes imbalance in carbon
dioxide and oxygen which is responsible for greenhouse effect.
o Indiscriminate use of science and technology- Indiscriminate
use of science and technology is a major hindrance to
preserving the environment. In order to make our lives
comfortable, we do not hesitate to use the scientific and
technological developments extensively without caring about
their negative impacts on the environment. Presence of
chlorofluorocarbons (CFCs) in the atmosphere, which are
emitted by the refrigerators, air conditioners and deep
freezers are majorly responsible for the depletion of the ozone
layer.
o Modern agricultural practices- Modern agricultural practices
and application of newer technological processes in the field
of agriculture have severely affected the environment.
Inorganic fertilizers are widely being used now-a-days.
Fertilizers like phosphates and nitrates cause widespread
damage when applied carelessly on the crops. Though these
fertilizers fortify the soil, the soil becomes contaminated due
to the impurities in the said fertilizers. In addition to fertilizers,
various kinds of pesticides and insecticides are also used as a
part of modern agricultural practice. Almost all these
insecticides and pesticides are toxic in nature and are unsafe
to the environment.
o Lack of public awareness and participation- People are
unaware of the importance of having a pollution free
environment. They also lack awareness of the hazards of
environmental pollution. It can be easily noticed that people
throw waste and garbage on public roads and streets which
ultimately results in severe degradation of the environment. It
also causes public nuisance. The public are reluctant to
cooperate in the process of maintenance of the quality of
environment.

3. Consequences of Pollution

Effects of Air Pollution

 Respiratory and Lung diseases.
o Pulmonary irritation and impaired lung infection
o Emphysema
o Chronic bronchitis
 Cancer
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 Systemic Toxicity
o Lead
o Mercury
 Increases susceptibility.
 Lung and respiratory diseases in Animals
 Plants damaged by ozone , sulphur dioxide & acids
 Natural heritage and historical sites damaged by Acid rain
(Example blackening of Taj mahal)

Effects of Land pollution
 Degradation of soil quality and fertility.
 Toxic substances in fruits and vegetables.
Effects on Noise Pollution
 Hearing loss or hearing impairment;
 Rise in blood pressure;
 Cardio-vascular health effects;
 Increase in stress level; and
 Decrease in efficiency and concentration
Effects of Water pollution
 Contamination of drinking water: Water pollution can lead to
the contamination of drinking water sources, making it unsafe
for human consumption. This can result in various waterborne
diseases and health issues.
 Harm to aquatic life: Water pollution can have devastating
effects on aquatic ecosystems. It can lead to the death of fish,
plants, and other organisms that rely on clean water for
survival. This disrupts the balance of the ecosystem and can
lead to the extinction of certain species.
 Destruction of habitats: Pollution in water bodies can destroy
the natural habitats of various aquatic organisms. This can
lead to a loss of biodiversity and disrupt the entire food chain
within the ecosystem.
 Negative impact on human health: Consuming or coming into
contact with polluted water can have severe health
consequences for humans. It can cause gastrointestinal
problems, skin diseases, respiratory issues, and even certain
types of cancer.
 Economic implications: Water pollution can have significant
economic implications. It can affect industries such as fishing,
tourism, and agriculture, leading to a loss of livelihoods and
economic decline in affected areas.
 Algal blooms: Excessive nutrient pollution in water bodies can
lead to the growth of harmful algal blooms. These blooms can
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produce toxins that are harmful to both humans and aquatic

life, leading to further ecological imbalances.
 Disruption of the water cycle: Water pollution can disrupt the
natural water cycle, affecting rainfall patterns and water
availability. This can lead to droughts in some areas and floods
in others, causing further environmental and socio-economic
problems.
 Aesthetic degradation: Water pollution can result in the visual
degradation of water bodies. It can cause foul odors,
discoloration, and the accumulation of debris, making the
water unappealing and unpleasant for recreational activities.
Effects of Radioactive pollution
 Increased risk of cancer: Exposure to radioactive pollution can
increase the risk of cancer, particularly leukemia, thyroid
cancer, and lung cancer.
 Genetic mutations: Radioactive pollution can cause genetic
mutations in living organisms, leading to birth defects and
other health problems.
 Environmental damage: Radioactive pollution can have severe
environmental consequences. It can contaminate soil, water,
and air, leading to the death of plants and animals and
disrupting entire ecosystems.
 Long-term effects: Radioactive pollution can have long-term
effects on the environment and human health. The effects can
last for decades or even centuries, making it difficult to
reverse the damage caused.
 Radiation sickness: Exposure to high levels of radioactive
pollution can cause radiation sickness, which can lead to
nausea, vomiting, hair loss, and even death.
 Economic implications: Radioactive pollution can have
significant economic implications. It can lead to the closure of
businesses and industries, loss of jobs, and a decline in
property values in affected areas.
 Displacement of communities: In some cases, radioactive
pollution can lead to the displacement of entire communities.
This can cause social and economic upheaval and lead to
long-term psychological effects on those affected.
 Increased risk of nuclear accidents: Radioactive pollution can
increase the risk of nuclear accidents, which can have
catastrophic consequences for both human life and the
environment.

4. Ancient Indian Philosophy related to environment Protection

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 Ahimsa: Ahimsa is the principle of non-violence and non-harm

towards all living beings. It encourages individuals to avoid causing
harm to any form of life, including animals, plants, and even
microorganisms. This principle has been applied to environmental
protection by advocating for sustainable practices and the
preservation of natural habitats.
For example, in Jainism, one of the major religions in India, the
principle of Ahimsa is central to their beliefs. Jains practice
vegetarianism and avoid harming any living being
intentionally. This includes not only refraining from consuming
meat but also being mindful of the impact of their actions on
the environment. Jains are known for their commitment to
environmental conservation, such as protecting forests and
wildlife sanctuaries.
 Prakriti: Prakriti is the Sanskrit term for nature or the natural world.
In Indian philosophy, Prakriti is considered a living entity with its
own consciousness and intelligence. This concept emphasizes the
need to respect and protect the natural world as a sacred entity.
For instance, in Hinduism, nature is often revered and
considered divine. Rivers like the Ganges and Yamuna are
considered sacred, and their preservation and cleanliness are
of utmost importance. Many Hindu rituals and festivals involve
offerings to nature, such as planting trees or immersing idols
in water bodies to promote environmental sustainability.
 Vasudhaiva Kutumbakam: Vasudhaiva Kutumbakam is a Sanskrit
phrase that means "the world is one family". This concept highlights
the interconnectedness of all life and the need to work together to
protect the environment.
An example of this philosophy in action is the Chipko
movement, which originated in the 1970s in the Indian state
of Uttarakhand. The movement involved local communities
hugging trees to prevent deforestation. The activists believed
that protecting the forests was essential for their own survival
and the well-being of future generations. The Chipko
movement gained international attention and led to the
establishment of many protected forest areas in India.

 Vrikshayurveda: Vrikshayurveda is an ancient Indian text on the

science of plant life. It provides guidance on the cultivation and care
of plants, emphasizing sustainable practices and the preservation of
biodiversity.
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An example of the application of Vrikshayurveda is the

traditional agricultural practices in India. Techniques such as
mixed cropping, crop rotation, and organic farming have been
practiced for centuries, promoting soil fertility, pest control,
and overall environmental sustainability. These practices
minimize the use of chemical fertilizers and pesticides,
preserving the health of the soil and surrounding ecosystems.
 Sacred groves: Sacred groves are areas of forest or other natural
habitats that are protected by local communities for religious or
cultural reasons. These groves are considered sacred spaces and are
protected from human interference.
One example is the Khecheopalri Lake in Sikkim, India. The
lake and its surrounding forest are considered sacred by the
local Buddhist community. As a result, the area has been
preserved and protected from deforestation and other harmful
activities. This has helped maintain the biodiversity of the
region and serves as a sanctuary for various plant and animal
species.

These examples illustrate how ancient Indian philosophy has influenced

environmental protection practices in India. The principles of Ahimsa,
Prakriti, Vasudhaiva Kutumbakam, Vrikshayurveda, and the concept of
sacred groves have guided individuals and communities in their efforts to
preserve and protect the environment for generations.
The concern for human environment is as old as the Indian Vedic and epic
ages. Even in the earlier times, in civilizations of ancient Greece and India,
the concern for environmental protection and maintenance of ecological
balance was manifested inhuman behaviour and reflected in nature itself.
During the period of King Ashoka’s rule, there was the 5thpillaredict which
stated in detail what species of fishes, birds and animals were forbidden
from being hunted, the prescribed season for hunting other species and
punishments for violations. In Arthashastra, Kautilya talks in detail about
the State's duty to maintain forests, forest produce, and forest reserves
for wild animals and to protect wildlife.
Due to Long history of environment protection as this is in India culture
and history
India responded to environmental problems as far back as to in April 1972,
when the then Prime Minister, Smt. Indira Gandhi, established the National
Committee on Environmental Planning and Coordination (NCEPC). She
stated, "Our emphasis should be on the improvement in the quality of life
as a whole rather than on the quantitative growth of various sectors in the
economy. Our attention cannot be diverted from the main challenge
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before us which is to bring basic amenities within the reach of our people
and to give them better living conditions without alienating them from
nature and their environment, without despoiling nature of its beauty and
of its freshness and purity.

Unit 2

1. Constitutional provisions of environmental law

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 The Constitution of India came into force on 26 th January, 1950.

Originally, the constitution contains no specific provisions for
environmental protection.
 However, certain specific provisions have been incorporated by the
constitution (Forty Second Amendment) Act, 1976 and subsequent
amendments.
 Indian Constitution is one of the very few constitutions in the world,
which provides for specific provision for the protection and
improvement of the Environment.
 The constitution, being the fundamental law of the land has a
binding force on citizens, non – citizens as well as the State.
 The Fundamental Rights and the Directive Principles of the State
Policy underline our national commitment to protect and improve
the environment.
 The courts in India have also given a new interpretation to the
constitutional provision relating to protection and improvement of
the Environment (the intended meaning of the environment in the
constitution) may be explained with Reference to the following
head:

Constitutional provision relating to protection and improvement

of the Environment
1. Constitution 42nd Amendment :
In 1976, under the leadership of the then Prime Minister, Smt. Indira
Gandhi, the Constitution (42nd Amendment) Act was passed and the
provisions relating to the protection of environment for the first time
were incorporated by adding a new provision Article 48-A in the
Chapter, Directive Principles of State Policy.
According to Article 48-A “the State shall endeavour to protect and
improve the environment and to safeguard the forests and wildlife of
the country”.
Further, a new provision Article 51-A in the form of “Fundamental
Duties” was also incorporated by
The 42nd Amendment. According to the sub-clause (g) of Article 51-
A, “it shall be the duty of every citizen of India to protect and
improve the natural environment including forests, lakes, rivers and
Wildlife and to have compassion for living creatures”.
The above two provision impose two-fold responsibilities. On the one
hand, it gives directive to the State for protection and improvement
of Environment, and on the other hand it casts/imposes a duty on
every citizen to help in the preservation of natural environment.
2. Federal System of Government (Distribution of Legislative
Power) :
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Under Federal system the government powers shared between

Union and State governments. Article
246 of the Constitution of India deals with subject-matter of law
made by Parliament and by the
Legislature of States. Parliament and State Legislature of any state
have exclusive power to make laws
with respect of any of the matters enumerated in the seventh
schedule:
a. List I is Union List (contains 97 subjects and the Parliament alone
has the power to legislate)
b. List II is State List (contains 66 subjects and the States have
power to legislate)
c. List III is Concurrent List (contains 52 subjects, both the
Parliament and the State Legislatures have the power to legislate)
Environmental Legislative Powers are available under all the three lists as
detailed below:
Unit – I Union List
Entry 52: Industries: The control of which by the union is declared by the
Parliament by law to be expedient in the public interest.
Entry 53: Regulation and Development of Oil Fields and Mineral
Resources.
Entry 54: Regulation of Mines and Mineral Development. 181
Entry 55: Regulation and Development of Inter-State Rivers and River
Valleys.
Entry 57: Fishing & Fisheries beyond territorial waters.
Unit II – State list
Entry 6 : Public Health and Sanitation.
Entry 14 : Agriculture, Protection against pests and prevention of plant
diseases.
Entry 18 : Land, that is to say, right in and over land.
Entry 21 : Fisheries.
Entry 23 : Mines and Minerals, subject to provision of List I.
Entry 25 : Gas and Gas works.
Entry 29 : Industries, subject to provisions of List I.
List – III Concurrent List
Entry 17A: Forests.
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Entry 17B: Protection of Wildlife Animals and Birds.

Entry 20: Economical and Social Planning.
According to Article 249 the Parliament has residual power to legislate
on subjects not covered by the three lists. Under Article 254-A State Law
passed subsequent to the Central Law will prevail however, if it has
received presidential assent but the basic principle is that, in case of
conflict between Central Law and State Law the former will prevail.
Article 253 of the 182 Constitution empowers Parliament to make laws
implementing India’s international obligations as well as any decision
made at an International conference, association or other body.
There are about 200 Central and State Legislation on environmental
protection. The most important environmental legislations, passed by the
parliament under Article 249 of the Constitution are The Water
(Prevention and Control of Pollution) Act, 1974; The Air (Prevention and
Control of Pollution) Act, 1974; The Air (Prevention and Control of
Pollution) Act, 1981; and the Environment (Protection) Act, 1986.
3. Fundamental Right

It is present under Part –III of the Constitution, containing-

 Articles 12 to 35, deals with fundamental rights.
 Articles 15(2) (b);
 Article 21 and Article 24 provide for specific provision for
environmental protection.

Article 15(2)(b): According to Art. 15(2) (b), “No citizen shall, on

grounds only of religion, race, caste, sex, place of birth or any of
them be subjected to any disability, liability, restriction or condition
with regard to: the use of wells, bathing ghats, roads and places of
public resort, maintained wholly or partly out for state funds or
dedicated to the use of general public”. In simple words, Art. 15(2)
prohibit discrimination on the ground of sex, race, religion, caste,
place of birth etc. to make use of the public places the general
public. The public places, which are part and parcel of the human
environment, should be made available to the public. The preamble
to our constitution ensures socialistic pattern of the society and
decent standard of life, which can be pollution free environment.
Article 21: According to Article 21 of the constitution, “no person shall be
deprived of his life or personal liberty except according to procedure
established by law”.
Case laws-
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 Article 21 is the heart of the fundamental rights and has received

expanded meaning from time to time after the decision of the
Supreme Court in Maneka Gandhi vs. Union of India, (AIR 1978
SC 597). Art. 21 guarantees a fundamental right to life a life of
dignity to be lived in a proper environment, free of danger of
disease and infection. The right to live in a healthy environment
as part of Article 21 of the Constitution was first recognized in the
case of.
 Rural Litigation and Entitlement Kendra vs. State of U.P., AIR 1988
SC 2187 (Popularly known as Dehradun Quarrying Case).It is the
first case of this kind in India, involving issues relating to
environment and ecological balance. The R.L. & E. Kendra and
others in a letter to the Supreme Court complained about the
illegal / unauthorized mining in the Missouri, Dehradun belt. As a
result, the ecology of the surrounding area was adversely
affected and it led to the environmental disorder.

The Supreme Court treated the letter as writ petition under Art. 32 of the
Constitution and directed to stop the excavation (illegal mining) under the
Environment (Protection) Act, 1986. The respondents contended / argued
that the write petition was registered in 1983 and the Environment
(Protection) Act was passed in 1986 and hence the criminal proceedings
cannot be initiated with retrospective effect. The court rejected the
contention of the respondents and held that the provisions of procedural
law shall apply to ordinary criminal cases and not to the environmental
cases. The court directed the Central and State Governments to take
necessary steps to prevent illegal mining and to re-afforestation in the
area of mining.
 In M.C. Mehta vs. Union of India, AIR 1987 SC 1086 (Popularly
known as “Oleum Gas Leak Case”) – The Supreme Court treated the
right to live in pollution free environment as a part of fundamental
right to life under Art. 21of the Constitution. Further the A.P. High
Court in T. Damodar Rao vs. S.O., Municipal Corporation,
Hyderabad, (AIR 1987 A.P. 171) laid down that right to live in
healthy environment was specially declared to be part of Art. 21 to
the Constitution.

Article 24: Article 24 of the Constitution speaks about exploitation of

child labor. It says that “No child below the age of 14 years shall be
employed to work in any factory or mine or engaged in any other
hazardous employment” this provisions is certainly in the interest of
public health and part of the environment. Further, Article 39 (e) and 39
(f) under Directive Principles of State Policy provide for the protection of
the health and strength of children below the age of 14 years.
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Case law-
 In people’s Union for Democratic Rights vs. Union of India, (AIR
1982 SC 1473), the Supreme Court held that the prohibition under
Art. 24 could be enforced against any one, be it the State or private
individual.

In pursuance of this obligation, parliament enacted the Child Labour

(prohibition and Regulation) Act, 1986. The Act prohibits specifically the
employment of children in certain industries.
4. Directive Principles of State Policy

Part IV of the Constitution, Containing Articles 36 to 51, deals with

Directive Principles of State Policy. The directive principles form the
fundamental feature and are designed to achieve socio economic
goals. Art. 39 (a), (which was inserted by the Constitution 42nd
Amendment) Act, 1976 provides for Equal Justice and Free Legal Aid. It
promotes justice on the basis of equal opportunities. It imposes an
imperative duty upon the State to provide free legal aid to the poor
litigant so as to secure him equal protection of laws against his well to
do opponent.
1. Equal right of men and women to adequate means of livelihood.
2. Distribution of ownership and control of the material resources
community to the common good.
3. To ensure that the economic system should not result in
concentration of wealth and means of production to the common
detriment.
4. Equal pay for equal work for both men and women.
5. To protect health and strength of workers and tender age of children
and to ensure that they are not forced by economic necessity to
entire avocations unsuited to their age or strength; And
6. That child are given opportunities and facilities to develop in a
healthy manner and in Conditions of freedom and dignity and that
childhood and youth are protected against Exploitation and against
moral and material abandonment.

Article 39(b): The expression ‘material source’ under Art. 39 (b) means
all things, which are capable Producing wealth for the community. In
includes those, which are already vested in the State but also In the hands
of private individuals. Further, the expression ‘distribution’ in Article 39 (b)
does not Mean that one’s property is taken over and is distributed to
others. It also includes nationalization Which is an effective means to
prevent concentration of wealth in a few hands so as to benefit the
Society at large.
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Article 39(1): Art. 39(1) was amended by the Constitution (42 nd

Amendment) Act, 1976 with a view to emphasize the constructive role of
the State with regard to children.
Article 47: Art. 47 provide that the State shall regard the raising of the
level of nutrition and the Standard of living of its people and the
improvement of public health as among its primary duties. The
Improvement of public health also includes the protection and
improvement of environment without which public health cannot be
assured.
Article 48: It deals with organization of agriculture and animal husbandry.
Art. 48 direct the State to take steps to organize agriculture and animal
husbandry on modern and scientific lines. In particular, It should take
steps for preserving and improving the breeds and prohibiting the
slaughter of cows and Calves and other milch and draught cattle.
Article 49: It deals with protection of monuments and places and objects
of national importance. Art. 49 require the State to protect c-very
monument or place or object of artistic or historic interest (declared by or
under law made by parliament to be of national importance) from
spoliation, Disfigurement, destruction, removal, disposal or export.
5. Fundamental Duties

Art. 51-A was added under the Constitution (42nd Amendment) Act. 1976,
which deals with ‘Fundamental Duties’ under Part IV-A Article 51 –A enlists
ten fundamental duties designed for Restructuring and building a welfare
society ‘State Art. 51 –A (g) specifically deals with the Fundamental duty
with respect to environment. It provides “it shall be the duty of every
citizen of India to protect and improve the natural Environment including
forests, lakes, rivers and Wild life and to have compassion for living
Creatures.

2. Constitutional provisions of environmental law

Chapter XIV of the Indian Penal code Deals with the offence of public
nuisance which includes offences affecting public health, safety,
convenience, Decency and morals. As stated earlier, nuisance may be
Public or private. Public/common nuisance s a wrong Against the public
which is punishable under the law of Crimes and private nuisance is a
wrong against an individual For which compensation is available in law of
torts in a civil Court. Chapter XIV consists of 28 sections (Sections 268 to
294A) Discusses eleven principal offences.
The Indian Penal Code under section 268 defines Public Nuisance.
The essential Ingredients of sections 268 are:
21

 Commencing act or an illegal omission.

 Such act or illegal omission must cause any “ common injury”
damage or annoyance to the public etc. And that must necessarily
cause injury.
 The Indian Penal Code under section 290 defines punishment for
Public Nuisance.
 In this section the punishments for public nuisance includes
pollution cases also, in cases not otherwise provided for.
 The offenders will be punished with fine which may extend to
200rupees.
The Kerala High Court in the case K.Ramakrishnan v. State of
Kerala[2] held that smoking, in any form in public place is a public
nuisance and cases can be filed under section 290 of the Indian Penal
Code as it is in violation of article 21 of the Constitution of India ie “Right
to Life”.
The Indian Penal code under section 277 defines Water Pollution.
In the Nano Rao Case, the accused and 9 others were charged under
section 277 of the Indian Penal Code with the offence of foaling water of
the river and rendering it unfit for drinking by steeping therein aloe plants
with a view to existing fibers there from. In this case river was not
considered as public spring under section 277 bit however under section
290 it was a case of nuisance.
The Indian Penal Code under section 278 defines :
According to the section 278 of the Act whoever voluntarily vitiates
the atmosphere in any place so as to make it noxious to health of the
person is general dwelling or carrying on business in the neighbourhood or
passing along a public way, shall be punished with fine which may extend
to five hundred rupees.
The Indian Penal Code under section 284 provides punishment for
negligent conduct and section 285 with respect to poisonous substances
and negligent conduct with respect to firee or combustible matter
respectively. The punishments and fine we’re enhanced eventually.
The Indian Penal Code under section 286 provides punishment for
negligent conduct with respect to explosive substances.
The Indian Penal Code under section 425 – water pollution can be
punished for mischief.
If the act causes wrongful loss or damage to public or to any person or if
his act causes water pollution could be brought under section 511 of the
Act.
22

The Indian Penal Code under section 440 deals with mischief caused
by killing maiming animals and cattle.
Nuisance is defined in very liberal terms and includes construction of
structure, disposal of substances, conduct of trade or occupation. For
disobedience of orders, the court can impose penalty as per section 188 of
the Indian Penal Code, 1860. The punishment is provided for a Mac period
of 6 months and fine which may be extended to 1 thousand rupees.
In P.C. Cherian Vs. State of Kerala, carbon particles were Emitted from
two rubber factories and this affected the People in the locality. The Kerala
High Court examined the Scope of Section 268 of the IPC along with
Section 133 of the CrPC and held that the action of the Magistrate in
invoking His power under Section 133 by initiating action against the
Factories and by directing them to stop the service mixing of Carbon in
their factories is justifiable.
PROVISIONS UNDER CRIMINAL PROCEDURE CODE ACT, 1973.
The Provisions under the Code of Criminal Procedure, 1973 in it’s Chapter
X provides for public nuisance cases including insanitary conditions, Air,
Water and Noise pollution. Under sections such as 133, 144.
Under section 133 of the Criminal Procedure Code
Section 133 provides that a District Magistrate or Subordinate Magistrate
or any other Executive Magistrate especially empowered on this behalf by
the State Government can make a conditional order to remove such
nuisance, and if the nuisance maker objects to do so, the order will be
made absolute etc.
This section provides a speedy and summary remedy incase of urgency
where damages to public interest or public health etc is concerned.
There are various conditions precedent in order to make an application
before section 133 of the Criminal Procedure Code.
1. The Magistrate must be satisfied that it is a public nuisance vast
number of people need to be affected.
2. The dispute among the said public need to be same.
3. It should be a great emergency of imminent danger to the public
interest.
The judiciary has arrived hard to interpret the provisions to provide a
speedy and simple remedy for the environmental pollution issues. By
invoking the Criminal Procedure Code and other relevant Criminal
provisions better environmental governance can be gained.
The High Court of Madhya Pradesh appreciating the provisions in
Shaukant Case[3] Observed that section 133 of the CrPc provided, a
23

speedy and summary remedy in case of urgency where danger to public

interest or public health is concerned.
Section 144 of the Criminal Procedure Code
As per section 144 an Executive Magistrate is conferred with powers to
deal with emergent situation by imposing restrictions on the personal
liberty of individuals, whether in a specific locality or in a town itself.
Where the situation has the potential to cause unrest or danger to peace
and tranquility in such an area, due to certain dispute.
The section 144 of CrPc is best for avoiding public nuisance and protecting
the environment. Provisions under Indian Penal Code and The Criminal
Procedure Code have been interpreted himself by the Indian Judiciary for
environment protection.

3. Public Interest Litigation

Public Interest Litigation (PIL) is a legal mechanism that empowers

citizens to raise their voices against environmental degradation and
seek relief from the judiciary. PIL in environmental law has played a
significant role in shaping laws and policies in India. Justice P. N.
Bhagwati stated that if a person was physically or economically Unable
to approach the Court, he/she “may move the Court even by just
writing A letter,” because the legal system would otherwise be
inaccessible to some of Its citizens.

Role of PIL :
Public Interest Litigation is a legal mechanism that allows any person,
organization, or group to approach the court on behalf of the public or
for the protection of public interest. PIL in environmental law has been
instrumental in promoting environmental protection and conservation
in India.
PIL can be filed against both public and private entities who are
violating environmental laws or causing harm to the environment. PIL is
often used to address issues related to environmental protection,
pollution control, conservation of natural resources, and sustainable
development.
PIL helps to promote transparency and accountability in governance by
holding public authorities responsible for their actions or inactions
regarding environmental protection. PIL in environmental law has also
helped to create awareness among citizens about environmental issues
24

and their rights. It has empowered people to take action against

environmental violations and seek redressal from the judiciary.
Illustrations of PIL in Environmental Protection
The Supreme Court of India has passed several landmark judgments of
environmental law in response to PILs filed by environmental activists
and groups. These judgments have resulted in the ban of hazardous
industries, the closure of polluting factories, and the implementation of
various pollution control measures.
The Supreme Court, In the case of Indian Council for Enviro-Legal
Action vs. Union of India, issued a warning to industries that discharge
dangerous substances like Oleum and H acid. The court stated that
such pollution is a violation of the right to a safe and healthy
environment and, ultimately, the right to life.
Similarly, in the case of M.C. Mehta vs. Union of India, the Supreme
Court declared that vehicular emissions causing air pollution in Delhi
constitute a violation of the right to life under Article 21 of the
Constitution. The court directed all commercial vehicles operating in
Delhi to switch to CNG fuel mode to safeguard the health of the public.
M. C. Mehta v. Union of India, Ganga Pollution case (AIR 1998 SC 1037)
The tanning industries located on the banks of Ganga were alleged to
be Polluting the river. The Supreme Court issued directions to them to
set up Effluent plants within six months from the date of the order. It
was specified That the failure to do so would entail closure of business.
The Court issued Directions to the Central Government, U. P. Pollution
Control Board and the District Magistrate concerned. The Court
concluded that the closure of industries might result in unemployment
and loss of revenue- life, health and Ecology had greater importance.
The Court is still monitoring the task of Cleaning the river Ganga.
Moreover, in Church of God (Full Gospel) in India vs. KKR Majestic
Colony Welfare Association, the Supreme Court ruled that noise
pollution amounts to a violation of Article 21 of the Constitution.
In the landmark case of Vellore Citizens’ Welfare Forum vs. Union
of India, the Supreme Court allowed a public-spirited social
organization to represent the residents of Vellore to protect their
health. In this case, the tanneries located around the Palar River in
Vellore, Tamil Nadu, were found to be discharging toxic chemicals into
the river, endangering the health of the residents. As a result, the Court
ordered the tanneries to close their businesses.
So , it can be concluded that Public Interest Litigation in environmental
law has played a significant role in promoting environmental protection
and conservation in India. PIL has empowered citizens to act against
environmental violations and seek relief from the judiciary. PIL has also
25

helped to create awareness among citizens about environmental issues

and their rights.

4. Environmental issues

Environmental issues are the harmful effects of human activities on the

environment. These include pollution, overpopulation, waste disposal,
climate change, global warming, the greenhouse effect, etc.
Various environment protection programs are being practised at the
individual, organizational and government levels with the aim of
establishing a balance between man and the environment.
Some of the current environmental issues that require urgent attention
are:
Climate Change
Climate change is a great concern in today’s scenario. This problem
has surfaced in the last few decades. Greenhouse gases are the major
cause of climate change. Environmental changes have several
destructive impacts such as the melting of glaciers, change in seasons,
epidemics, etc.
Global Warming
The burning of fossil fuels, emissions from automobiles and
chlorofluorocarbons add to the greenhouse gases in the atmosphere.
This has led to an increase in the earth’s temperature causing
environmental changes. This increase in temperature across the globe
is known as global warming.
Ozone Layer Depletion
The ozone layer is a layer of concentrated ozone gas. It protects us
from the sun’s harmful ultraviolet rays. This very important layer is
being destroyed by CFCs (chlorofluorocarbons), which are used in
industries and everyday life (e.g. aerosol cans).
The chlorine in these compounds destroys the ozone layer. The hole in
the ozone layer leaves humans and wildlife exposed to harmful UV rays
resulting in several skin diseases including cancer.
Land Pollution
This pollution is on-process and the effects such pollution will be
evident at an unexpected situation. The land is abused and
deteriorating constantly. This is caused by the solid wastes, untreated
26

chemical affluents, etc. In other words, it is the degradation or

destruction of the soil and groundwater.
Water Pollution
The introduction of harmful substances into rivers, oceans, lakes and
ponds, which changes the physical, chemical or biological condition of
the water is called water pollution. The polluted water lacks oxygen
and therefore the organisms die. Water is the main source of life and
therefore it is our prime duty to prevent it from any kind of pollution.
Noise/Sound Pollution
Noise pollution refers to that unwanted sound that interferes with a
person’s peaceful existence. India is a developing country. Movement
of people and goods for such economic and urban development is
necessary. As a result, there is immense noise produced by the trains,
buses, vehicles, trucks, airplanes, huge rallies for various reasons, etc.
In residential areas we can see loud music played by residents. High
noises levels can lead to cardiovascular and permanent hear
impairment. It can even cause change in the behavioural aspect of a
person. It can cause stress, lack of sleep, and other harmful effects on
the health of an individual. Moreover, this earth not only belongs to
humans. Loud noises can frighten animals as well; it can cause sudden
heart attacks to such animals.
Air Pollution
Air pollution is the result of emissions from industries, automobiles, and
the increasing use of fossil fuels. The gaseous emissions have added to
an increase in the temperature of the earth. Not only this, but it had
also increased the risk of diseases among individuals.
“Air pollution is the release of pollutants such as gases, particles,
biological molecules, etc. in to the air that is harmful to human health
and the environment.” In other words, it refers to the contamination of
air by harmful gases, dust and smoke which affect biotic and abiotic
things. It is necessary to maintain the correct amount of gases present
in the atmosphere such as 78% of nitrogen, 21% of oxygen and the
remaining is other gases. When there is an increase of other gases in
the atmosphere it can result in global warming, ozone layer depletion,
cancer diseases, breathing issues, skin problems, acid rains, asthma,
etc.
For example: Delhi is the existing example of air pollution. It causes a
new weather in Delhi know as smog which is a mixture of smoke
(emitted from vehicles, factories and other sources) and fog. It causes
serious health issues for the people living there.
Solid Waste Management
27

Solid-waste management is defined as the discipline associated with

the generation, storage, collection, transfer and transport, processing,
and disposal of solid waste in a manner that it does not have a harmful
effect on the environment.
Deforestation
Deforestation is the depletion of trees and forests at an alarming rate.
The trees provide us with oxygen, and several raw materials and also
maintain the temperature of the earth. Due to the depletion of trees for
commercial purposes, there has been a drastic change in the earth’s
climate.Forests are an abode to a large number of wild animals and
plants. Destruction of forests has led to the elimination of a large
number of plants and animal species affecting biodiversity.
Overpopulation
The earth’s population is increasing drastically. It is estimated to be
more than seven billion. The increasing population has led to a
shortage of resources. If this continues, it will be very difficult to
sustain such a huge population. The other environmental issues
including pollution, waste management, deforestation, climate change
and global warming are all associated with overpopulation.

Unit 3

Present regulations and enactments regarding environmental pollution

Constitutional provisions for environment protection
28

 Article 48A says "The State shall endeavour to protect and improve
the environment and tosafeguard the forests and wild life of the
country."
 Article 51A (g) specifically deals with the fundamental duty with
respect to environment. It says. "It shall be duty of every citizen of
India to protect and 'improve the natural-environment including
forests, lakes, rivers, and wild life and to have compassion for living
creatures."
 Two early post-independence laws were related to water pollution.
o Section 12 of the Factories Act, 1948 required all
factories to make effective arrangements for
waste disposal.
o The River Boards Act, 1956 provided for the
regulation and development of inter-state rivers
and river valleys, and river boards established
under this Act were empowered to prevent water
pollution.
 It was the Stockholm Declaration of 1972 which turned the attention
of the Indian Government to the boarder perspective of
environmental protection
 National Committee on Environmental Planning and Coordination
(NCEPC) was set up in 1972 which was later evolved into Ministry of
Environment and Forests (MoEF ) in 1985.
 The Wildlife (Protection) Act, 1972, aimed at rational and modern
wildlife management.
 The Water (Prevention and Control of Pollution) Act, 1974, provides
for the establishment of pollution control boards at Centre and States to
act as watchdogs for prevention and control of pollution.
 The Forest (Conservation) Act, 1980 aimed to check deforestation,
diversion of forest land for non-forestry purposes, and to promote social
forestry.
 The Air (Prevention and Control of Pollution) Act, 1981, aimed at
checking air pollution via pollution control boards.
 The Environment (Protection) Act, 1986 is a legislation which
provides for single focus in the country for protection of environment
and aims at plugging the loopholes in existing legislation.
 The Public Liability Insurance Act, 1991, provides for mandatory
insurance by factory owners for the purpose of providing immediate
relief to person affected by accidents occurring while handling any
hazardous substance.
 The Biological Diversity Act, 2002, is a major legislation which
intends to conserve biodiversity, manage its sustainable use and enable
fair and equitable sharing benefits arising out of the use of biological
resources with the local communities.
 The National Environment Policy of 2006 is a response to India’s
national commitment to a clean environment, mandated in the
29

Constitution of India in Articles 48A and 51A(g) and strengthened by

judicial interpretation of Article 21. The main objectives of the policy are
as follows-
o Conservation of Critical Environmental Resources
o Intra-generational Equity: Livelihood Security for
the Poor
o Inter-generational Equity
o Integration of Environmental Concerns in
Economic and Social Development
o Efficiency in Environmental Resource Use
o Enhancement of Resources for Environmental
Conservation
 The National Green Tribunal Act, 2010 (NGT Act) has been enacted
with the objectives to provide for establishment of a National Green
Tribunal (NGT) for the effective and expeditious disposal of cases
relating to environment protection and conservation of forests and
other natural resources including enforcement of any legal right relating
to environment and giving relief and compensation for damages to
persons and property and for matters connected therewith or incidental
thereto.

1. The Environment (Protection Act), 1986

The Environment (Protection) Act, 1986 was passed as a result of the

growing concern of the State on the widespread pollution in the
country, loss of vegetation and biological diversity, excessive
concentrations of harmful substances in the atmosphere and in food
chains, growing risks of environmental accidents and threats to survival
of living beings. The Preamble of the Act states that the Act was passed
to implement the decisions taken at the United Nations Conference on
Human environment (Stockholm Conference) in June 1972. However,
the Act was passed in India much later, i.e. in 1986. On account of this
delay in enacting the law, many observers are of the view that this
statute was a legislative reaction to the Bhopal gas tragedy which
occurred in 1984. The aims and objects of the Environment (Protection)
Act, 1986 are as follows
a. To implement the decisions taken at the UN Conference on
Human Environment, 1972.
b. To enact a general or umbrella law on environment protection
and to fill in the gaps in the other environment laws such as the
Forest Act, 1927, the Water Act, 1974, the Air Act, 1981.
c. To give the widest possible powers to the Central Government to
take measures to protect and improve the environment.
d. To constitute authorities which shall exercise the powers and
perform the functions of the Central Government.
30

e. To provide deterrent punishments for persons who violate the

provisions of the Act and thereby endanger the environment,
public health and safety.
Hazardous Substances as per Environment protection act :
"hazardous substance" means any substance or preparation which, by
reason of its chemical or physico-chemical properties or handling, is liable
to cause harm to human beings, other living creatures, plant, micro-
organism, property or the environment.
Main objectives of environment protection Act

 Objective: The primary objective of the EPA is to protect and

improve the environment and safeguard the health and well-being
of people. It aims to prevent and control environmental pollution
and promote sustainable development.

 Environmental Authorities: The EPA establishes various

environmental authorities at the central and state levels to enforce
and implement the provisions of the Act. These authorities have the
power to take measures for the prevention, control, and abatement
of environmental pollution.
 Environmental Impact Assessment (EIA): The EPA mandates the
process of Environmental Impact Assessment for certain projects
and activities that may have a significant impact on the
environment. The EIA process ensures that potential environmental
impacts are identified, assessed, and mitigated before granting
clearance for such projects.
 Pollution Control Boards: The Act establishes Pollution Control
Boards (PCBs) at the central and state levels. These boards are
responsible for monitoring and regulating pollution sources, issuing
permits, setting emission standards, and taking necessary actions to
prevent and control pollution.
 Powers and Penalties: The EPA grants extensive powers to the
environmental authorities and PCBs to take actions against
polluters. It empowers them to issue directions, conduct inspections,
collect samples, and impose penalties for non-compliance with
environmental regulations. The Act also provides for imprisonment
for certain offenses.
 Hazardous Substances: The EPA includes provisions for the
regulation and management of hazardous substances. It empowers
the central government to take measures for the handling, storage,
transportation, and disposal of hazardous substances to prevent
environmental pollution and protect human health.
 Public Participation: The Act emphasizes public participation in
environmental decision-making processes. It provides for the right of
individuals and communities to access environmental information,
31

participate in public hearings, and voice their concerns regarding

environmental issues.
 Environmental Compensation: The EPA introduces the concept of
environmental compensation, whereby polluters are liable to pay
compensation for the damage caused to the environment. The
compensation collected is utilized for environmental restoration and
remediation.

 Offenses and Liabilities: The Act specifies offenses and liabilities for
violations of environmental regulations. It outlines penalties, fines,
and imprisonment for offenses such as non-compliance with
pollution control measures, unauthorized handling of hazardous
substances, and non-compliance with EIA requirements.

o Failure to Comply with Pollution Control Measures :

o Unauthorized Handling of Hazardous Substances :

o Failure to Comply with EIA Requirements

o Failure to Comply with Directions of Authorities

o Failure to Provide Information or false information

Above All have penalties for imprisonment for a term up to 5

years or a fine up to Rs. 1 lakh

 Environmental Rules and Regulations: The EPA empowers the

central government to make rules and regulations for various
aspects of environmental protection, including air and water
pollution control, hazardous waste management, and environmental
standards.

2. The Air (Prevention and control of pollution) Act, 1981

Objective:
The primary objective of the Act is to provide for the prevention,
control, and abatement of air pollution and for the establishment of
Boards to carry out these purposes.
Key Provisions:
1. Establishment of Central and State Boards:
The Act mandates the establishment of the Central Pollution Control
Board (CPCB) at the national level and State Pollution Control Boards
(SPCBs) at the state level.These boards are responsible for planning
comprehensive programs for the prevention, control, and abatement of
air pollution.
32

Powers and Functions of the Boards:

o The CPCB and SPCBs are vested with powers to monitor air
quality, set standards for emissions, and take corrective
measures against polluters. They can inspect industrial plants
and manufacturing processes, and collect and disseminate
information regarding air pollution.
2. Air Quality Standards: The Act empowers the CPCB to set
national standards for air quality. SPCBs can prescribe the
maximum allowable limits of pollutants in the air for different
areas.
Control of Emissions:
 Industries and establishments are required to
obtain consent from the SPCBs to operate.
 Specific instructions and standards for emission
controls must be followed by industries to
minimize pollution.
3. Penalties and Legal Actions: Non-compliance with the provisions of
the Act can lead to penalties, including fines and imprisonment. The
Act allows for the closure, prohibition, or regulation of any industry,
operation, or process causing pollution.
4. Citizen Participation: The Act includes provisions for public
awareness and involvement in pollution control measures. Citizens can
report violations and take legal actions against non-compliant entities.
5. Coordination with Other Laws: The Act works in conjunction with
other environmental laws, such as the Water (Prevention and Control of
Pollution) Act, 1974, and the Environment (Protection) Act, 1986, to
provide a comprehensive framework for environmental protection.
6. Implementation and Impact: The Act has played a significant role in
regulating air pollution in India. Various programs and initiatives have
been launched under its framework to monitor and improve air quality.
It has led to increased awareness and accountability among industries
and the public regarding air pollution issues.
7. Amendments: The Act has been amended over the years to address
emerging challenges and incorporate advancements in pollution
control technologies.
The Environment (Protection) Act, 1986, serves as an umbrella legislation
that supplements the provisions of the Air Act, providing additional powers
for environmental regulation and enforcement.

3. The Water (Prevention and control of pollution) Act, 1974

33

The Water (Prevention and Control of Pollution) Act was enacted in

1974 to provide for the prevention and control of water pollution, and
for maintaining or restoring of wholesomeness of water in the country.
This is the first law passed in India whose objective was to ensure that
the domestic and industrial pollutants are not discharged into rivers,
and lakes without adequate treatment. The reason is that such a
discharge renders the water unsuitable as a source of drinking water as
well as for the purposes of irrigation and support marine life. In order to
achieve its objectives, the Pollution Control Boards at Central and State
levels were created to establish and enforce standards for factories
discharging pollutants into water bodies.
Composition of central pollution and control board
 A chairman who has the knowledge or has practical experience in
dealing with cases relating to environmental protection. The
chairman is to be appointed by the central government only.
 Not more than 5 officials to represent the central government.
 Not more than 5 members to be nominated by the central
government from the members of the State Board.
 Maximum 3 members appointed by the central government to
represent the interests of agriculture, fisheries, trade or any other
interest as the government may seem fit.
 2 persons to represent the companies or corporations owned,
controlled or by the central government.
 A full-time member secretary having complete knowledge,
experience and qualification of scientific management and
prevention of environmental pollution.
Functions of Central Board

1. Advise the Central Government on any matter concerning the

prevention and control of water pollution.
2. Coordinate the activities of the State Boards and resolve disputes
among them.
3. provide technical assistance and guidance to the State Boards,
carry out and sponsor investigations and research relating to
problems of water pollution and prevention, control or abatement
of water pollution.
4. Plan and organize the training of persons engaged or to be
engaged in for the prevention, control or abatement of water
pollution on such terms and conditions as the Central Board may
specify.
5. Organize through mass media a comprehensive program
regarding the prevention and control of water pollution.

Composition of State pollution control board

34

The state government through an official notice in the Gazette has the
power to assign or set up a state board named as State Pollution Control
Board. The composition of the state board is as follows:

1. A Chairman who either has the knowledge or some experience in

dealing with cases relating to environmental pollution.
2. Not more than 5 members appointed by the state government to
represent the government.
3. Not more than 2 persons by the state government who are
functioning as members of the local authorities within the state
4. Not more than 3 persons nominated by the state government to
represent the interest of fisheries, agriculture, trade and any
other interest as the government may seem fit.
5. 2 person from companies, corporations which are either
controlled, owned or managed by the state.
6. A member secretary who has the knowledge, qualifications, and
experience in dealing with cases pertaining to environmental
pollution.

Function Of State and Board

1. To plan a comprehensive program for preventing and controlling

the pollution of the wells and streams in the state and to secure
its execution.
2. To advise the State Government on matters relating to
prevention and controlling water pollution.
3. Collaborating with the central board to train persons employed or
to be employed in preventing, controlling water pollution.
4. To lay down, modify the effluent standards of sewage and trade
effluents and for the quality of receiving water resulting from the
discharge of effluents and to classify waters of the state.
5. To evolve methods of utilizing the sewage and suitable trade
effluents in agriculture.
6. The state Board has the authority to set up laboratories to enable
the board to perform its function efficiently, including collecting
samples of water from any stream or sewage or trade effluents.

Anyone in contravention of the above act will be punishable by

imprisonment for a maximum period of 3 months or fine that may extend
up to 10,000 rupees or both.

4. The Forest Act, 1927

35

A forest is a territorial ecosystem where the interaction of all the

communities of plants and animals with one another and with the physical
environment happens. Different countries have different forest covers
which depend on factors such as the availability of land, population
density, climate etc. Forests are natural renewable resources. To maintain
the quality of the global environment, forests are important since the
benefits of forests include wood, timber, manure for order and other non-
timber forest products like fruits, flowers, services like moderating the
hydrological cycle, soil conservation, mitigation, adding intangible value
such as aesthetic recreational and spiritual values.
India occupies 2.4 % of the world area with the seventh-largest country in
the world and is home to only 1.8 % of the forest covers. Though regular
activities are being conducted under CAMPA (compensatory afforestation
management and planning authority) in order to increase forest through
reforestation but still India’s forest cover is in a devastating condition with
only 21% of India under forest cover (state of forest report 2019 release
by Union Minister of environment and forest).
The Indian Forest Act 1927 is comprehensive legislation that includes all
the pre-existing laws to protect forests. The first legislation related to the
forest was however enacted in the year 1865 during the British rule and
later on, there were amendments happening all around. The preamble of
the Indian Forest Act aims to regulate the transit of the forest produce,
levy a duty on timber and other forest produce, and consolidate all the
existing laws related to the forest. All the previous laws that were passed
regarding the forest before 1920 were consolidated and made one Act
that is the Indian Forest Act 1927. Before 1976 all the forest and wildlife
subjects were under State in the Indian Constitution. But after the 42nd
amendment of the Constitution, the subject of forest and wildlife was
deleted from the state list and they were placed in the concurrent list
bringing the subjects under the purview of both the Central and the State
government. The new amendment also brought a new directive principle
of State Policy, Article 48A and the fundamental duty 51A(g) in order to
protect and improve the forest. The changes were important in order to
protect the forest and the environment. It is not the responsibility of any
particular country instead every country in the world has equal
responsibility for it.
In the year 1927, the Indian Forest Act 1878 was replaced by the British
government and a new Act was brought into place. The main purpose of
this Act was to conserve the forest strength and the laws related to forest
and increase the productivity of the forest. This has been one of the most
important laws passed by the central government and state government
that may bring changes according to some extent. There are other
provisions that are included in this Act, that is to convert non-agricultural
36

land into forest land. Indian Forest Act 1927 contains 13 Chapters which
describe a forest into three categories:
 Reserved forest: Reserve forest includes any forest land or
wasteland that is under the ownership of the government. Since the
government are the owners of these lands they have proprietary
rights over them and the use of these lands are not open to the
local people without the permission of the government. after the
government issues notice under Section 4 of the Act that a
particular portion of the land has to be declared as a reserved forest
since then that area of land is marked a Reserved Forest. There are
certain activities such as grazing, tree felling, morning hunting, etc,
in the forests that are prohibited under Section 26 of the Indian
Forest Act 1927. The penalty of the above activities is provided
under Section 26 that is imprisonment for a term which may extend
to 2 years and a fine which may extend to 20000 but not less than
5000.
 Conserved forest: In the case of Protected Forest, the rules
regarding the use of the forests are given by the government. The
government has the right to reserve specific trees in the protected
forest because those particular trees house revenue earning
capacity and are required to be protected for the benefits of the
economy. The provisions of Chapter 5 deals with non-government
forest or private forest which are not under the control of the
government. However in exceptional cases to preserve public health
and wellness the state government can pass an order for clearing of
land.
 Village forest: When the reserved forests are provided by the
government for the usage of the village community that particular
land is considered as a village forest land. The regulation of the
management of these forests is under the state governments. The
two terms village forest and forest village are used in place of each
other but actually the whole different. Village forest under the Indian
Forest Act is a legal category and forest village is an administrative
category. The land given to village forests is included under Village
Grazing Reserve (VGR).
The main objective of this Act was to preserve and safeguard the
forest. Besides this there are few more objectives:

 To maintain the quality of water in the water bodies like lakes and
streams.
 To balance the impact of cultivation and other forest activities.
 To aim for expansion of Activities in the forest by sharing of the
public and other communities in the forest to take part in
activities that help improve the condition of the forest.
37

 To inform everyone about the efficient use of forest resources.

 To ensure high productivity of forests and saving the resources of
the forest by afforestation, etc.
 To introduce advanced programs that help in increasing the area
of forest.
 to make the management of the forest better by appointing
efficient resource professionals and conducting training and
educational programs for them.
 To ensure long-term harvest levels with the minimum usage of
the forest resources.
 To balance the distribution of wildlife, nature and habitats and
conserve biological diversity by development and
implementation.
 To make efficient use of the advanced programs that expand the
practice of forestry.
 To improve the research technology associated with the forests.

Unit 4
38

Precautionary
Principle

Fundamental
Public trust principles of Assimilative
Doctrine Environment Principle
Protection

Polluter
Principle

1. Polluter Pays Principle

The ‘polluter pay’ principle essentially holds the polluter liable for
the pollution caused to the environment.
The polluter is liable for every damage caused to the
environment.
So according to the ‘polluter pay principle’, the polluter has to
not only compensate the victims of pollution but also compensate
for the restoration of environmental degradation caused Under
1972 and 1974 OECD Recommendation, the measures to be taken
by the polluter for controlling the pollution is decided by public
authorities so that the environment is in acceptable state post the
industry operation.
Therefore, the polluter bears the cost of health hazard caused to
the public as well as the cost of restoration of the environment.
In other words, the costs of the measures should reflect on the
cost of the goods and services, the production and/or
consumption of which led to pollution. The cost of the measures
should not be accompanied by the subsidies as it would lead to
distortion in international trade and investment.
39

The polluter pays principle is part of a set of broader principles to

guide sustainable development worldwide the ‘polluter pay’
principle forms a part of the environmental law of India.
The World Commission on Environment and Degradation on its
report, Our Common Future stated that the cost of repairing the
environment can be paid by internalisation of an enterprise.
Herein, internalisation in economic context means that the
polluter bears the costs himself and does not delegate the work to
an agent.
The report mentioned that the enterprise would be encouraged to
invest in taking preventive, restorative and compensatory
measures.
The ‘polluter pay’ principle was first introduced by the
Organisation of Economic Cooperation and Development (OECD)
in 1972. The report stated that the polluter is responsible for the
controlling and prevention of pollution associated with the process
of the factory.
Flaws in the polluter pays principle
Nearly two-thirds of death in 2015, which counts as much as
385,000 deaths, were due emission from the exhaust of diesel
engines. The effluents discharged into the water bodies can be
treated; the dumping of waste on soil can be minimised by good
management. The treatment of polluted air is an unfeasible task.
Moreover, when an entire city or an entire nation is affected by air
pollution, it is even more challenging. At times, such as in cities in
northern India, where even the annual rainfall is scarce and the
cities are landlocked, steps taken by the government are never
enough to combat air pollution.
Air pollution due to the vehicular emission clearly exceeds the air
pollution due to industrial emission. Yet the main focus of this
article is on industrial pollution. As compensation for industrial
pollution is primarily emphasized in the ‘polluter pays principle’. Is
it the owner of the vehicle or the manufacturer who is to be
punished for the vehicular emission? Unfortunately, there is no
clear mention in the ‘polluter pays principle’ as to who is to be
made liable for the vehicular emission.
Indian Judiciary and the Polluter Pays Principle
The Indian Judiciary has incorporated the Polluter Pays Principle as being a
part of the Environmental Law regime is evident from the judgments
passed.
40

Indian Council for Enviro-Legal Action vs. Union of India 1996(3)

SCC 212
The Court held that once the activity carried on is hazardous or inherently
dangerous, the person carrying on such activity is liable to make good the
loss caused to any other person by his activity irrespective of the fact
whether he took reasonable care while carrying on his activity. The rule is
premised upon the very nature of the activity carried on.

Vellore Citizens’ Welfare Forum vs. Union of India 1996(5) SCC

647
The Court interpreted the meaning of the Polluter Pays Principle as the
absolute liability for harm to the environment extends not only to
compensate the victims of the pollution but also the cost of restoring the
environmental degradation. Remediation of the damaged environment is
part of the process of ‘Sustainable Development’ and as such the polluter
is liable to pay the cost to the individual sufferers as well as the cost of
reversing the damaged ecology.”

The Oleum Gas Leak case (M.C. Mehta vs. Union of India) AIR
1987 SC 1086
The Court in Oleum Gas Leak case laid down that an enterprise engaged
in a hazardous or inherently dangerous industry which poses a potential
threat to the health and safety of persons working in the factory and to
those residing in the surrounding areas, owes an absolute and non-
delegable duty to the community to ensure that no harm results to any
one on account of hazardous or inherently dangerous nature of the
activity which it has undertaken. The enterprise is absolutely liable to
compensate for such harm and irrespective of all reasonable care taken
on his account. The larger and more prosperous the enterprise, greater
must be the amount of the compensation payable for the harm caused on
account of an accident in the carrying on of the hazardous or inherently
dangerous activity by the enterprise.

M. C. Mehta vs Kamal Nath & Ors (1997)1SCC388

The Court held that pollution is a civil wrong and is a tort committed
against the community as a whole. Thus, any person guilty of causing
pollution has to pay damages (compensation) for restoration of the
environment and ecology. Under the Polluter Pays Principle, it is not the
role of Government to meet the costs involved in either prevention of such
damage, or in carrying out remedial action, because the effect of this
would be to shift the financial burden of the pollution incident to the
taxpayer.

Conclusion
With the fast improvement of innovation and ventures, ecological
corruption is inescapable and managing it gets crucial for human
presence. The issue raises when financial parts of managing it become
41

predominant, and the polluters pay rule helps in managing the later. We
have seen the circumstances, how it has been useful both in worldwide
and national setting. What is required is the severe usage of the rule,
which can change the circumstance to an extremely enormous degree.

2. Precautionary Principle

Origin of Precautionary Principle

To understand the concept of Precautionary Principle, it is very important

that we should go through a brief history of how the Precautionary
Principle originated.

In one of the Parliamentary Earth Summit of UN Conference on

Environment and Development, Dalai Lama stated that Tibet may be the
first country in which the principle originated because from the
seventeenth century itself Tibet started to take proactive measures so
save the environment. For them, the struggle between protection of
environment and safeguard of human health gave rise to the concept.

Under the contemporary public policy, this principle can be traced back to
the 1950s under the name of “safe minimum standards of conservation.”
Some major environmental issues in the 1960s, for instance, the DDT
(dichloro diphenyl trichloroethane) case paved the way for the principle
based on the idea of assimilative capacity.

This idea stated that environment and humans can tolerate disturbances
only to a certain extent, and this amount can be calculated and governed.
Then in the 1970s, the Germans probably became the first country to
provide for a precautionary approach in its legislations and policies
towards the protection and the conservation of the environment.

Definition of Precautionary Principle

There are two definitions of Precautionary Principle which are widely

accepted-

1. ACC. To Rio Declaration of 1992; states that in order to protect

the environment every state should apply the principle to the
best of their abilities. When there are chances of irreversible and
serious damage, lack of full scientific should not be the reason for
the postponement of preventive measure.
42

2. Definition based on the Wingspread Statement on Precautionary

Principle, which was given 1998. This definition states that when
there is a threat to the environment and human health,
precautionary measures should be taken even when full scientific
data is not available. The principle should examine the alternative
options available (even the option of taking no action).
There is a significant difference between the two definitions. The first
definition talks about “irreversible and serious damage, but the second
definition talks about “harm” to the environment and human health in
general. Thus, the scope of the second definition is wider.

This principle is another important principle of sustainable

development. There is a very strong link between the principle
and the proverb that prevention is better than cure. It is possible
to avoid degradation of the environment or to minimize adverse
effects on environment by taking necessary precautions. These
may be in the form of applying stringent safeguards and the
principles of sustainable development while undertaking
developmental activities. The precautionary Principle is contained
in Principle 15 of the Rio declaration (Earth Summit, 1992.) In
India, the precautionary principle has been eagerly accepted by
Indian judiciary and by varied administrative agencies for the
implementation of numerous environment protection and
sustainable development related laws. In Vellore Citizens Welfare
Forum Vs. Union of India, the court held that precautionary
principle is a part of the law of the land.
The essential ingredients of Precautionary Principle are:
 Environmental measures by the State Government & the
statutory authorities like state pollution boards must
anticipate, prevent and attack the causes of
environment degradation.
 Where there are threats of serious and irreversible
damage, lack of scientific certainty should not be used
as a reason for postponing measures to prevent
environmental degradation.

Precautionary Principle and Indian Law

The Indian Judiciary actively supports the Precautionary Principle.

In the judicial pronouncement of Vellore Citizens Welfare Forum v

UOI, the Court opined that sustainable development t is the need of the
hour. The court emphasized on the fact that there should be a balance
between economic growth and protection of the environment. The Court
rejected the traditional concept that ecology and development are
43

opposed to each other. The Court also reviewed the development of the
concept of sustainable development in the international sphere. The Court
referred to the Stockholm Declaration of 1972, Caring for Earth, 1991, the
Earth Summit, and the Rio Declaration of 1992 and opined that the
Precautionary Principle and the Polluter Pays Principle are indispensable
features of Sustainable Development.

In the case of M C Mehta v Kamal Nath, the Supreme Court reiterated

the decision given in Vellore Citizens Welfare Forum case stating that the
Precautionary Principle is a part of the environment law in India.

The Precautionary Principle was very comprehensively reviewed by the

Apex Court in the case of AP Control Pollution Board vs. Prof M V
Nayadu. The Court stated that it is better to go wrong in taking caution
and prevent environmental harm rather than waiting for the issue to
materialize into an irreversible problem. The Court opined that the
Precautionary Principle was evolved because of lack of scientific certainty
only, and the principle involves anticipating the harm the environment
may suffer and act on the basis of that.

In the case of Narmada Bachao Andolan v UOI, the Apex Court very
clearly laid down the proposition of law, and specifically of Precautionary
Principle. The Court stated that when an issue pertains to environmental
damage, the onus of proof is on the person who is contending that the
activities carried on by him are not harmful to the environment. The party
who is giving such contention also has to satisfy the Court of the same,
that there will be no environmental degradation due to his activities.

Concluding Remarks

Apart from being a part of the environmental protection instruments,

Precautionary Principle has also become a crucial part of the Public
International Law. With the law gaining significant momentum in the
sphere of sustainable development, it is only inevitable that concept such
as these is accepted by all the nations.

Precautionary Principle, a fundamental element of sustainable

development has been discussed much in the legal context, but
improvements are still needed in implementation. Many countries still do
not follow such principles because they believe that it’ll add to
unnecessary expenditures and cost, to react proactively, without any
concrete data. They believe in relying upon conclusive data to formulate
plans and policies. This is done with the view that when plans and policies
are made on the basis of conclusive data, they are at their optimal level.
44

Judiciary plays an immense role in linking the law with the concept of
sustainable development. So, it is vital that the judiciary also supports this
kind of approaches. The support of the judiciary is required so that
protection of environment gets a legal sanctity. As an offshoot of legal
recognition, the Precautionary Principle was also adopted by the National
Environmental Policy as a guiding principle. However, there is still a long
way to go for the Precautionary Principle to gain its rightful place in the
field of environmental law. And till it does not get its rightful place, it will
be very difficult to implement it.

3. Assimilative Capacity Principle

Assimilative capacity principle underlies earlier legal measures

to protect the environment. In 1972, the UN conference on
Human Environment was held at Stockholm which resulted in
the adoption of Stockholm Declaration containing 26
principles. Principles 6 of the Stockholm Declaration contains
assimilative capacity principle which assumes that science
could provide the policy makers with the necessary
information and means to avoid encroaching upon the
capacity of the environment to assimilate impacts and it
presumes that relevant technical expertise would be available
when environmental harm is predicted and there would be
sufficient time to act in order to avoid such harm. The
assimilative capacity is based on the belief that scientific
theories are certain and adequate to provide the remedies for
ecological restoration whenever pollution occurs. The principle
is built on the foundation of scientific certainties and
adequacies.
Assimilative capacity principle suffers setback due to
inadequacies and uncertainties of science visible in
environment context. The uncertainty of scientific proof and
its changing frontiers from time to time have led to great
changes in the environmental concepts during the period
between the Stockholm Conference of 1972 and the Rio
Conference of 1992.
45

4. Public trust doctrine

The ancient Roman Empire developed a legal theory known as

the as the “Doctrine of the Public Trust.” The doctrine
primarily rests on the principle that certain resources like air,
sea, waters and the forests have such a great importance to
the people as a whole that it would be wholly unjustified to
make them a subject of private ownership.
The said resources being a gift of nature, they should be
made freely available to everyone irrespective of the status in
life. The doctrine enjoins upon the Government to protect the
resources for the enjoyment of the general public rather than
to permit their use for private ownership or commercial
purposes. Though the public trust doctrine under the English
Common Law extended only to certain traditional uses viz.,
navigation, commerce and fishing, the US Courts in recent
cases expanded the concept of the public trust doctrine. The
Supreme Court in India has also recognized that this doctrine
is part of Indian law. The Court in the below-mentioned case
held that the doctrine of public trust implies following
restrictions on governmental authority: “First, the property
subject to the trust must not only be used for a public
purpose, but it must be held available for use by the general
public. Secondary, the property may not be sold, even for a
fair cash equivalent. Thirdly, the property, must be maintained
for particular types of uses.”

OR

History and origin of public trust doctrine

Public trust Doctrine was propounded by the Roman Empire 1,500 years
ago. Roman King Justinian stated in a section that “the air, the water, and
the sea are all common to the public and is entitled to be used by anyone
due to the law of nature”[ii].

After the fall of the Roman empire in 1215, the Magna Carta codified
Justinian words. Thus in England, the King had ownership of the land but
he had to take care of the public trust. In the United Kingdom, it included
two rights 1. Just Privatum which means ownership for private parties, 2.
Just Publicum which means ownership held by the king as a trustee for the
public benefit.
46

In 1821, the Modern revival of Public trust doctrine took place in the USA
in the case of Arnold vs. Mundy[iii] and in the landmark case of Illinois
Central Railroad v. Illinois[iv] where the court came up with a principle
that the state cannot hand its trust of resources to private ownership
when the interest of the public is involved.

The public trust doctrine means to ensure that everyone gets equal
access to all natural resources without any discrimination. It should be
used in a manner that results in being advantageous to all sections of
society. It is a principle that specifies that the natural resources of the
earth should be taken care of by the State, which would act as trustees for
the common good of the people who are beneficiaries. Natural resources
such as air, navigable water, groundwater, seashore, forests, soil, and
many more must be taken care of and preserved by the State for future
use. As per the doctrine of public trust, it is the duty of the State to
protect and preserve natural resources from being eroded and exploited.
This doctrine states that the government must hold these natural
resources as trustees for their proper maintenance and the general
welfare of the public. Since these natural resources are accessible to
everyone, they cannot be converted into private property. The air is the
most essential ingredient for the survival of all living creatures on earth.
The water is required mainly for drinking and irrigation purposes. The
forests hold the soil tightly and prevent erosion. So it is very important to
preserve these natural resources from depletion.

Concept of public trust doctrine

The public trust doctrine imposes a huge responsibility upon the State to
see that the natural resources are protected from any kind of destruction
or depletion. The citizens are also responsible for taking proper care of
these natural resources. They must also use them wisely. It is also their
responsibility to ascertain that the natural resources do not get destroyed
or polluted due to any of their activities. In the case of Re: T.N.
Godavarman v. Union Of India And Ors. (2022), the Supreme Court of India
upheld this public trust doctrine by stating that it is the State’s
responsibility to act as the trustee of the natural resources for the welfare
of the public and ascertain that these natural resources should be used by
the citizens in a sustainable manner. If these resources are used wisely,
then they could last a long time without becoming extinct. It was also
observed by the Court that every forest is required to have an Eco-
Sensitive Zone (ESZ) that is at least one kilometre long for its protection
as it minimises depletion. The Court also opined that the State is not only
a facilitator for the economic upliftment of society but also a trustee who
works for the welfare of the people concerning the natural resources to
achieve sustainable development. It was also stated that the public trust
doctrine is an integral part of the Indian legal system and should be used
to safeguard natural resources from becoming private property.
47

FEATURES OF THE DOCTRINE

1. State acting as a trustee

The phrase ‘public trust doctrine’ contains the word ‘trust’. One of the
important components of trust is the presence of a trustee who looks after
the trust property. It is the responsibility of the trustee to take proper care
of it. He does not use it for his own benefit; rather, he holds the property
on behalf of someone else who benefits from it. In the public trust
doctrine, the State acts as a trustee who safeguards the natural resources
for the proper and reasonable use of the people of the State. The
government makes sure that their actions do not cause the depletion of
these natural resources or damage the environment.

2. Citizens are the beneficiaries

Another essential component of trust is the presence of the beneficiary,

who gets all the benefits of the trust property. It is the primary
responsibility of the trustee to see that the beneficiary enjoys the trust
property. In the public trust doctrine, the citizens of the State are the
beneficiaries who use these natural resources in a sustainable manner so
that they may be enjoyed by future generations as well. It is the State’s
duty to see that non-renewable resources are not used in an unreasonable
manner. The non-renewable resources include coal, oil, nuclear energy,
and natural gas, which, if depleted, cannot be replenished by any means.
The State must protect and preserve them from becoming depleted. In
other words, it means that their supply is limited and cannot be replaced.
These non-renewable resources must also be used in smaller amounts, as
they emit a variety of pollutants that will not only degrade the quality of
the air but also affect the health of the people. Hence, the government
manages them for the benefit of both present and future generations.

3. Natural resources as assets or trust property

The most important component of a trust is the trust property, without

which there would be no trustee or beneficiary. The trustees have a
fiduciary relationship with the beneficiaries, as they are responsible for
taking proper care of the property as they are in charge of it. The trustee
holds the trust property on the beneficiary’s behalf. These trust assets
that are entrusted to the trustee for their proper management are used
for the purposes of the beneficiaries and not for their personal use. In the
public trust doctrine, natural resources can be understood as trust
property. It includes the air, water, soil, land, forests, and many more that
48

are necessary for the existence of mankind on Earth. Since these natural
resources are assets that are entrusted to the government, it is their
responsibility to protect them from exploitation. It is considered jus
publicum, which means the people’s right to enjoy them and use them
whenever necessary, as it belongs to all the citizens of the State.

Objective of public trust doctrine

Traditionally Public trust doctrine was only limited to protect the rights like
the right to fisheries, hunting, boating, navigation for anchoring or
standing. But in the present scenario, it checks the state action for
management of the resources and it also questions its action. It states the
state as a trustee and the state holds all the resources. It is the duty of
the state to preserve, prevent and protect the resources for the public
use. The state is expected to perform its positive duty.

Scope of public trust doctrine

According to Joseph Sax, Governmental Regulations always create a public
trust problem and it occurs in various types of situations. Public trust
needs protection against private goals. Thus he stated that this doctrine
which is a delicate mixture of procedural and substantive protection is
appropriate for protection from air pollution, willing of wetlands, strip
mining, allocation of resources to private use etc[v].

Importance of public trust doctrine

The public trust doctrine helps people get the benefits of these natural
resources, which are beneficial for a healthy lifestyle. If the environment is
polluted, then it will be hazardous for their health. So it is important to
protect the environment from any kind of pollution. The State ascertains
that the natural resources of the earth are preserved and maintained for
the enjoyment of future generations. Some of the reasons for the
importance of the public trust doctrine are as follows-

 It is a doctrine that guarantees the protection of natural

resources. Article 21 of the Constitution guarantees the right to
life, which means the right to a clean and healthy environment is
also a fundamental right of the people of the State, and if this
right is encroached upon under any circumstances, then the
citizens have the right to go to court to enforce their fundamental
right.
 It helps reduce the unnecessary exploitation of non-renewable
resources by humans. Article 51A states that it is also the duty of
the citizens to see that the natural resources are not overused, as
49

they cannot be replaced by any means. So the people must use

these resources only when they are needed. It should not be used
recklessly by them. If they were ever extinguished, future
generations would be deprived of the benefits of those resources.
 The State acts as a trustee for this doctrine and prevents the
overuse of natural resources. The State has passed various laws
protecting and preserving the environment. Some principles, like
‘precautionary principle’, ‘polluter pays principle’ and ‘sustainable
development principle’ were the most important among them.
These principles direct the industries to take proper measures so
that they do not emit gases that can pollute the air. The factories
are directed not to release untreated garbage into the water
bodies. Deforestation is strictly prohibited, as trees hold the soil
tightly and prevent soil erosion. Cutting down large numbers of
trees also has a huge impact on climate change. Trees produce
oxygen, which is one of the most important elements without
which no human being can survive. It also keeps greenhouse
gases in check.
 It helps reduce environmental damage and the degradation of the
atmosphere. The people are directed by the State to use
Compressed Natural Gas (CNG) instead of petrol or diesel in their
vehicles to prevent air pollution. Afforestation is encouraged by
the State which will balance the oxygen level in the earth’s
atmosphere. If more trees are planted, then it will prevent global
warming, which is increasing the temperature of the atmosphere.
Global warming also leads to the destruction of the ozone layer,
which prevents the unharmful rise of the sun from reaching the
earth’s atmosphere.
 It protects these natural resources for future use by all human
beings. The State encourages citizens to use the natural
resources in a sustainable manner so that future generations are
not deprived of them. The public trust doctrine helps to preserve
these natural resources so that future generations can also enjoy
and benefit from them.
 It helps improve the ecological balance of the earth. Otherwise, it
will increase global warming, leading to the melting of the
glaciers, which in turn raises the levels of the water, causing
floods and landslides, changing weather patterns, causing severe
and frequent storms, heavy rain, causing floods and destroying
crops, and many other things.
 It also acts as a statutory structure for resolving various
environmental struggles for which there are no proper and
effective laws and legislation. It mandates the State to take
effective actions for the proper management of natural resources.
 It helps in the proper and reasonable use of natural resources by
the public. This public trust doctrine also gives the public the
50

right to question whether these natural resources are maintained

properly by the State. Since these natural resources are meant
for public use, it is their duty to take proper care while using
them. They must use these resources in a manner that does not
pollute or destroy them. They must keep in mind that survival is
impossible on earth without these natural resources.
Therefore, this public trust doctrine is established on the notion that these
natural resources are very much necessary for the survival of mankind on
earth, and so they must be conserved for the use of the public and
shielded from any kind of misuse or destruction.

Purpose of the public trust doctrine

The public trust doctrine serves two main purposes, which are as follows-

 It authorises the State to take affirmative action for effective

management and control of the natural resources by
safeguarding them from degradation.
 It empowers the people to question the government about its
ineffective management of these natural resources.
So this doctrine makes it compulsory for the State to improve the quality
of the environment and protect these natural resources from any kind of
exploitation or overuse. It is the State’s responsibility to see that the
natural resources are used in a sustainable manner so that future
generations are not deprived of utilising these resources.

Public trust doctrine in India

The Public trust doctrine in India evolved through landmark judgements.
The court stated that as we follow the Common law system our
constitution includes Public trust doctrine in its jurisprudence. The court
took procedural and substantive rights seriously and applied this doctrine
for the protection of the environment. The court also referred to various
articles of the Indian constitution such as article 48A[vi] which made a
way through Article 21[vii] by including the right to clean environment
under the right to life and Article 39[viii] [DPSP] which states proper
distribution of the resources.

As India does not have specific environmental rights the supreme court
went further and emphasised on Public Trust Doctrine. There are many
such instances like when the supreme court of India declared
unauthorised mining causing damage to the environment of that area as
illegal as it violated Article 21 of Indian constitution and the court stated
that healthy environment is necessary for protecting and safeguarding the
rights of the people[ix]. In another case, High court of Kerala held that
government cannot violate Article 21 when a government action caused
51

harm to a freshwater source[x]. In the Bhopal disaster case, the court

linked the right to life and clean environment. The public trust doctrine in
India restricts the government and the private property rights in India.
After reading judgments and various interpretations it is not clear how the
court invoked public trust doctrine. It is not clear whether Public trust
doctrine was a part of Indian Jurisprudence or it is included now. The court
only stated that it is included in the United States through various
judgements and the British law also includes this doctrine and we also
follow common law as a reason India should also include it. However, what
court felt was necessary to protect the rights of the citizens and make the
state responsible for the protection under the public trust doctrine.

The Public Trust doctrine didn’t exist in India as a doctrine but it came
through a landmark judgement which was M.C Mehta vs Kamalnath.

5. Sustainable development

Society Economy

Environment

As a working definition, sustainability can be defined as the

practice of maintaining processes of productivity indefinitely
natural or human made by replacing resources used with
resources of equal or greater value without degrading or
endangering natural biotic systems. According to M. Hasna,
sustainability is a function of social, economic, technological
and ecological themes. Sustainable development ties together
concern for the carrying capacity of natural systems with the
social, political, and economic challenges faced by humanity.
As early as the 1970s, the concept of "sustainability" was
employed to describe an economy "in equilibrium with basic
ecological support systems." Scientists in many fields have
highlighted The Limits to Growth, and economists have
52

presented alternatives, for example a 'steady state economy';

to address concerns over the impacts of expanding human
development on the planet. The term sustainable
development rose to significance after it was used by the
Brundtland Commission in its 1987 report Our Common
Future. In the report, the commission coined what has become
the most often-quoted definition of sustainable development:
"development that meets the needs of the present without
compromising the ability of future generations to meet their
own needs." The United Nations Millennium Declaration
identified principles and treaties on sustainable development,
including economic development, social development and
environmental protection.
Statement of Mrs. Indira Gandhi would like to quote in which
she was emphasized on environmental security for sustainable
development. At the UN Conference on Human Environment at
Stockholm in 1972 she said that, the removal of poverty is an
integral part of the goal of an environmental strategy for the
world. Sustainable development ensures the well-being of
individual by integrating social development, economic
development, and environmental conservation and protection.
Challenges of Sustainable development
 Population
 Poverty
 Inequality
 The shortage of drinking water
 Human Health
 Consumption of energy
 Deforestation
 Petrol consumption

Strategies of Sustainable development

 Input Efficient Technology
 Using of Environmental friendly Sources of Energy
 Integrated Rural Development Programmes : To focus on
renewable sources of energy like solar and wind for
energy needs. It will be beneficial for the country like
India, where is enough sun light, to Convert Sun light
into solar Energy and Solar Energy in Electricity. It will
create an atmosphere for green development. For
attaining the sustainable development it is necessary for
the government and society to control on the Tragedy of
Commons. It means to stop the maximum use of easy
53

available resources. With above these government

should stimulate the organic forming and recycle the
wastes
Sustainable development is a vision and a way of thinking
and acting so that we can secure the resources and
environment for our future generation. It will not be
brought about by policies only it must be taken up by
society at large as a principle guiding the many choices
each citizen makes every day, as well as the big political
and economic decisions that affect many. Environmental
degradation tends to impose the largest costs on those
generations that are yet to be born. Future generations are
disadvantaged with regards to present generations
because they can inherit an impoverished quality of life,
share a condition of structural weakness in having no voice
and representation among the present generation and so
their interests are often neglected in present decisions and
planning while it is very much needful that we think about
our generation. We can only improve sustainable
development when it will put an emphasis on involving
citizens and stakeholders. Ultimately, the vision will
become reality only if everybody contributes to a world
where economic freedom, social justice and environmental
protection go hand in hand, making our own and future
generations better off than now.

6. Cases at National Green Law tribunal

When POSCO in the year 2012, which is among the world’s largest
steel maker, signed memorandum of understanding with the
government of Odisha to set up 12 million tones capacity steel project
in Jagatsinghpur district. When the villagers, started protesting against
the 52000crores which would directly lead to acquiring of 4004 acres,
The NGT entered and suspended the Order, this was considered as a
radical step in favor of villagers and surrounding environment
 In the case of Almitra H. patel vs. Union of India 2012, this is
about the issue regarding solid waste management in India; NGT
in this case played a crucial role by stepping and putting an end
to burning of wastes on open ground, including landfills. It may
be called as an landmark order regarding the control of pollution.
 In 2003, Alakanda Hydro power Co Ltd was ordered to pay
Rupees 9.26 crores in the period of Uttarakhand flood to the
victims in the states Srinagar city within 30 days, the NGT by
54

rejecting contention that Uttarakhand floods were not an act of

god, the company was directed to deposit amount with
environmental relief authority based on the principle of pollution
pays.
 The NGT also played an important role by banning all diesel
vehicles plying on Delhi roads which are over 10 years old.
 The NGT in the other issue, due to causing damage to the
Yamuna floodplains, held Sri Sri ravishankars art of living by
holding cultural festival in 2016. The Bench imposed a penalty of
rupees 5crores in the form of a compensation.
 In the year 2017, The tribunal imposed in Delhi on use of non-
biodegradable plastic bags which are less than 50 microns and
also decided to fine rupees 5000 who ever found selling or using
of such non-biodegradable plastic.
 In the recent judgment, The NGT has penalized the state of UP for
causing damage to the environment by letting flow of
contaminated untreated sewage water containing toxic
substance such as chromium directly into river Ganga.

7. National Green Tribunal (NGT)

The National Green Tribunal (NGT) was established on 18 th October, 2010

Under the National Green Tribunal Act, 2010. It has replaced the National
Environment Tribunal and the National Environment Appellate Authority.
The main objects of NGT are-
✓ Effective and expeditious disposal of cases relating to environmental
protection and conservation of forests and other natural resources;
✓ Enforcement of any legal right relating to environment; and
✓ Giving relief and compensation for damages to persons and property.
The National Green Tribunal is a specialized body equipped with the
necessary expertise to handle environmental disputes involving multi-
Disciplinary issues. The Tribunal shall not be bound by the procedure laid
Down under the Code of Civil Procedure, 1908, but shall be guided by
principles of natural justice.
The Tribunal’s dedicated jurisdiction in environmental matters shall
provide speedy environmental justice and help reduce the burden of
litigation in the higher courts. The Tribunal is mandated to make and
endeavour for disposal of applications or appeals finally within 6 months
of filing of the same. Initially, the NGT was proposed to be set up at five
places of sittings and will follow circuit procedure for making itself more
accessible. New Delhi is the principal place of sitting of the Tribunal and
55

Bhopal, Pune, Kolkata and Chennai shall be the other four places of sitting
of the Tribunal.
With the establishment of the NGT, India became the third country in the
world to set up a specialised environmental tribunal, only after Australia
And New Zealand, and the first developing country to do so.
Section 3 of National Green Tribunal Act, 2010 provides for the
establishment of the National Green Tribunal. The NGT is established by
The Central Government by a notification in the official gazette.
Section 4- Composition of the NGT
The Tribunal shall consist of-
i) A full time Chairperson- appointed by the Central Government by
a notification in the official gazette;
ii) A minimum of 10 and a maximum of 20 full time judicial
members as the Central Government may appoint, from time to
time, by notification;
iii) A minimum of 10 and a maximum of 20 full time expert members
as the Central Government may appoint, from time to time, by
notification.

The Chairperson and members of the Tribunal shall be appointed by the

Central Government.
The Chairperson of the Tribunal may, if he thinks that it is necessary,
invite any one or more persons having specialised knowledge and
experience in a particular case to assist the Tribunal in that case.
The Central Government may, by notification, specify the ordinary place
or places of sitting of the Tribunal, and the territorial jurisdiction falling
under each such place of sitting.
The Central Government may, in consultation with the Chairperson of the
tribunal, make rules regulating the practices and procedures of the
Tribunal.
The manner of Appointment of Chairperson, Judicial Member and
Expert member , Section 6 of the Act.
The Chairperson, Judicial members and Expert members of the Tribunal
shall be appointed by the Central Government. The Chairperson shall be
appointed by the Central Government after consulting with the Chief
Justice of India. The Judicial members and Experts of the Tribunal shall be
appointed by the Selection Committee in the manner as may be
prescribed.
Section 7- Term of office and other conditions of service of Chairperson,
Judicial Member and Expert Member The Chairperson, Judicial member
56

and Expert member of the Tribunal Shall hold office for a term of 5 years
from the date on which they enter upon their office, but they shall not be
eligible for re-appointment.
The Chairperson, Judicial member and Expert member of the Tribunal shall
not continue to hold office after he has attained- -
(a) In the case of the Chairperson, the age of 70 years;
(b)In the case of the Judicial member, the age of 67 years; and
(c) in the case of Expert member, the age of 65 years.

The Chairperson, Judicial member and Expert member of the Tribunal may
resign from his office, by notice in writing under their hand addressed to
The Central Government.

The manner of Resigning, Section 8 of the Act.

In order to resign from their office, the Chairperson, Judicial Member and
Expert member can give a notice in writing addressing the Central
Government.
The salaries and other allowances to the members of the tribunal
are given in Section 9 of the Act.
The salaries and allowances payable to the Chairperson, Judicial Member
and Expert Member of the Tribunal and other terms and conditions which
include pension, gratuity and other benefits, shall be such as may be
prescribed.
Neither the salary and allowances nor the other terms and conditions shall
be varied to their disadvantage after the appointments.

The process of removal and suspension of the Chairperson,

Judicial Member and Expert is given in Section 10 of the Act.
The Central Government, in consultation with the Chief Justice of India,
can remove a member from the office of the Chairperson, Judicial Member
and Expert Member of the Tribunal if:
 He Is an insolvent; or
 He has been convicted for anything which involves moral turpitude.
 He has become mentally or physically incapable.
 He has acquired a financial interest or any other interest which is
likely to affect his functions prejudicially.
 He has abused his position as to render his continuance to the
public interest prejudicially.
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 No member can be removed from his office without an order made

by the Central Government after an inquiry by a Judge of the
Supreme Court related to the ground on which he is getting
removed from his position. Such a person must be informed of the
charges against him and should be given a reasonable chance of
being heard in respect of the charges against him.

The provisions regarding Vacancy, Section 11 of the Act.

In the case of any vacancy in the Office of the Chairperson of the Tribunal
by reason of his death or resignation, a Judicial Member of the Tribunal as
the Central Government may think fit to act on the Chairperson’s behalf,
shall be appointed as the acting Chairperson until a new Chairperson is
appointed according to the provisions mentioned under the Act.

Jurisdiction, powers and proceedings of the National Green

Tribunal

The Tribunal shall have the jurisdiction over all civil cases where a
substantial question relating to environment (including enforcement of
any legal right relating to environment), is involved. The Tribunal shall
hear And settle the matters and pass orders thereon.
The NGT deals with civil cases under the following laws relating to
Environment -
 The Water (Prevention and Control of Pollution) Act, 1974,
 The Indian Forest Act, 1927
 The Forest (Conservation) Act, 1980,
 The Air (Prevention and Control of Pollution) Act, 1981,
 The Environment (Protection) Act, 1986,
 The Public Liability Insurance Act, 1991, and
 The Biological Diversity Act, 2002.

Any violation pertaining to these laws or any decision taken by the

government under these laws can be challenged before the NGT.
 The National Green Tribunal has jurisdiction to decide all the cases
which involve substantial questions regarding the environment and
its protection and any legal rights in connection with it.
 The tribunal, being a statutory authority, not only exercises original
jurisdiction on filing an application but also has appellate jurisdiction
through which it hears appeals as a Court.
58

 The tribunal is not bound by the procedure mentioned under the

Civil Procedure Code, 1908 and it applies the principles of natural
justice while deciding any matter.
 All the principles such as sustainable development, polluter pays
and precautionary principles, are considered by the tribunal before
deciding any case.
 The national Green Tribunal, by an order can provide the following:
o Compensation and relief to all the people who are the victims of
pollution and environmental damage and it also includes accidents
which happen while handling hazardous substances.
o Restitution of a damaged property
o Restitution of the environment for areas which the tribunal may
think fit.
 An appeal against any order given by the tribunal can be made
before the Supreme Court of India within ninety days from the date
of communication of the order regarding the case.
 Two important Acts – Wildlife (Protection) Act, 1972 and
Scheduled Tribes And Other Traditional Forest Dwellers (Recognition
of Forest Rights) Act, 2006 have been kept out of NGT’s jurisdiction.
This restricts the Jurisdiction area of NGT and at times hampers its
functioning as crucial forest rights issues are linked directly to
environment.

Procedure of the Tribunal

The Tribunal shall not be bound by the procedures laid down in the Code
of Civil Procedure, 1908, but shall be guided by the principles of natural
Justice. The Tribunal shall have power to regulate its own procedure. The
Tribunal shall also not be bound by the rules of evidence contained in the
Indian Evidence Act, 1872.
While passing any order/decision/ award, the NGT shall apply the
Principles of sustainable development, the precautionary principle and the
Polluter pays principle.
Section 15 of the National Green tribunal Act, 2010 states that the
Tribunal May pass an order providing-
➢ compensation to the victims of environmental pollution or any other
Environmental damage caused under any of the environmental laws;
➢ for restitution of property which has been damaged; and
➢ for restitution of the environment.
59

The application for compensation or restitution of property or Environment

shall be made before the Tribunal within a period of 5 years From the date
on which the cause of action arose.
Section 22- Appeal to Supreme Court
Any person aggrieved by any award, decision or order of the Tribunal, may
file an appeal before the Supreme Court, within 90 days from the date of
communication of the award, decision or order of the Tribunal to him.
When the Tribunal has ordered payment of compensation to the victims,
The amount of compensation shall be remitted to the Environmental Relief
Fund constituted under the Public Liability Insurance Act, 1991.
An order/decision/award of the National Green Tribunal is executable as a
Decree of a civil court.

Can someone personally argue a matter before the NGT?

Yes, you can argue your case personally before the NGT without hiring a
lawyer but it applies only when you are well acquainted with the
circumstances and facts of the case. You need to have some knowledge
about the law and its procedures. You can only use English while pleading
your case before the National Green Tribunal and there are some
guidelines regarding the dress, you need to follow all that to argue your
matter.
Section 26- Penalty for failure to comply with orders of Tribunal.
If a person fails to comply with any order or award or decision of the
Tribunal under this Act, he shall be punishable with imprisonment for a
Term which may extend up to 3 years, or with fine which may extend up to
10 crore rupees, or with both.
Over the years, NGT has emerged as a critical player in environment
Protection by passing strict orders on issues ranging from pollution to
Deforestation to waste management.
The NGT helps reduce the burden of litigation in the higher courts on
Environmental matters.
NGT is less formal, less expensive, and a faster way of resolving
Environment related disputes.
However, sometimes the NGT decisions are challenged in various High
Courts under Article 226 (power of High Courts to issue certain writs.)
Many people have asserted the superiority of a High Court over the NGT,
Claiming ‘High Court is a constitutional body while NGT is a statutory
body.’
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This is one of the weaknesses of the Act as there is lack of clarity about
What kind of decisions can be challenged; even though according to the
NGT Act, its decisions can be challenged only before the Supreme Court
by Filing an appeal.
Strengths of National Green Tribunal
1) Over the years the National Green Tribunal has emerged as a critical
role player in regulating environmental issues ranging from waste
management to deforestation.
2) By setting up an Alternative Dispute Resolution mechanism it helps
in the evolution of environmental jurisprudence.
3) It helps in reducing burdens on higher courts as it specifically deals
with environmental cases that were decided by the civil courts
earlier.
4) It settles cases with lesser expenses and is less formal and a faster
way of settling cases is also followed by the tribunal.
5) It plays an important role in curbing damage to the environment.
6) The Chairperson and the other members are not eligible for
reappointment so they can give judgments without any pressure.
7) It ensures whether the Environment Impact Assessment process is
strictly observed.

Functions of the National Green Tribunal Act

1) It is a body that has expertise in handling the disputes related to the
environment which includes multi-disciplinary issues as well.
2) The Code of Civil Procedure, 1908, shall not bind the Tribunal as it is
to be guided by natural justice principles.
3) The jurisdiction of the Tribunal shall provide speedy trials of the
environment-related matters and help in reducing the burden of
cases pending in the higher courts.
4) The tribunal Is mandated to dispose off environment-related issues
within 6 months of filing the complaint.
5) The National Green Tribunal need not follow all that is given under
the Civil Procedure Code but can regulate the procedure by itself
and applies the principle of natural justice in administering justice.
6) It is required to apply principles such as sustainable development at
the time of awarding compensation or giving orders.
7) It should have in mind the principle that whoever is found polluting
will have to pay i.e. the principle of ‘Polluter Pays’.
8) The National Green Tribunal is not bound by the rules mentioned in
the Indian Evidence Act.
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9) All the proceedings before the National Green Tribunal shall be

accorded to the proceedings within the sections of the IPC.
10) The tribunal is allowed to be a civil court to settle the matters.

Criticism of National Green Tribunal

As soon as the NGT came into action after October 2010 it got stuck in
number of controversies.
1) The first criticism it faces is that it lacks judicial independence from
the government. The rules of the NGT act allowed the bureaucrats
to be appointed to the tribunal while holding their post in the
government. This is problematic in the sense that a government
official will never rule against the government because he is also a
part of government and faces various kinds of pressure to not to
rule against the central government.
2) The concept of Tribunals Is in itself problematic as they are funded
by the parent ministry and hence it exercises control over the
tribunal and its decisions.
3) The need for experts in the tribunal is also problematic concept
because the NGT has to decide the question of law and does not
have to do fact-finding.
4) The expert knowledge Is not needed in granting compensation or
awarding punishment. For this there needs to be a knowledge of
law. The Indian evidence act provides specifically for the statement
of expert witness in cases where some special knowledge is
required than what is the need for appointing experts in the tribunal
itself.
5) The tribunal also faces a lack of resources for its proper functioning.
The NGT was operating from a guest house earlier. Also the
members of the tribunal were not given houses and were living in
government guest house. The funds were decreased further without
taking into consideration the fact that NGT is already suffering from
lack of adequate funding.
6) The law commission report on the environmental courts suggested
that one such court should be established in every state. But the
NGT has only 5 benches. This has created problem for common
citizens asking for justice as it is difficult to approach a court which
is in a different state and far from their home.
7) The establishment of NGT also took away the right of civil courts to
admit cases regarding environmental issues. So it is now
compulsory to file the case before the NGT in these cases. Now
even a PIL cannot be filed in the High Court of the state for
environmental issues as all environmental litigation shall be dealt
only by the five benches of NGT. There is a need for environmental
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tribunal on district bases but present system is not even providing it

on state basis.

Challenges
 The Wildlife Protection Act, 1972 and the Scheduled Tribes
and Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006 are out of the jurisdiction that is exercised
by the tribunal. In this way, it hampers the functioning of the
NGT and forest and wildlife are directly connected to the
environment.
 One of the weaknesses of the Act is that any decision given
by the tribunal can be challenged in various High courts under
Article 226 through which it issues writs. It asserts the
superiority of High Courts over the NGT and a case can be
heard by the Supreme Court as well as a challenge to the
decision given by the NGT.
 Some of the decisions of the NGT have also been criticized
due to their reverberations on economic development and
growth.
 There is no formula based calculation of the compensation
claimed by anyone which also creates problems.
 The decisions pronounced by the NGT, sometimes, do not
fully comply by the government and the stakeholders.
 The lack of financial resources has led to the pendency of
cases within the tribunal due to which it is not able to dispose
off cases within six months.
 Limited benches are there which serves as a hindrance in the
justice delivery mechanism of the tribunal.

Important orders
 The NGT suspended an order in which a steel maker company
signed an MoU with the government of Odisha to set up a
steel plant. It was done for the local communities and forest
life in the area.
 It gave a judgement on the complete prohibition of open
burning of wastelands including landfills for dealing with the
issue of solid waste management in the country.
 It has applied the principle of ‘polluter pays’ directly while
deciding cases.
 It ordered that all the diesel vehicles which are 10 years old
will not be permitted in Delhi due to alarming air pollution.
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 It never hesitated in imposing high penalties. For instance, a

penalty of Rs. 5 crores was imposed in a case which came
before the NGT.
 It imposed an interim ban on the polythene bags which were
less than 50-micron thickness in Delhi.
 In a case, it held that even a foreign national can approach
the NGT.

Landmark Judgements of the National Green Tribunal

1) In 2012, in Almitra H. Patel Vs. Union of India, the NGT passed an

Award Of complete prohibition on open burning of waste on lands,
including landfills. This case is regarded as the most important case
dealing with the issue of solid waste management in India.
2) In 2012, POSCO a steelmaker company signed a MoU with the
Odisha Government to set up a steel project. NGT suspended this
MoU and this was considered as a radical step in favour of the local
communities and forests.
3) The NGT, in 2017, imposed an interim ban on plastic bags of less
than 50-micron thickness in Delhi because “they were causing
animal deaths, Clogging sewers and harming the environment.”
64