CHAPTER -5

JUDICIARY

RESPONSE

TO THE

PROBLEM

IN INDIA

5. Judicial Activism in India

5.1 Fundamental results

The right to live in a clean and healthy environment is not a recent invention

of the higher judiciary in India this right has been recognized by the legal system

and by the judiciary in particular for over a century or so the only difference in the

enjoyment of the right to live in a clean and healthy environment today is that it

has attained the status of a fundamental right the violation of which, the

constitution of the India will not permit it was only from the late eighties and

thereafter various High courts and the supreme court of India have designated this

right as a fundamental right prior to this period as pointed out earlier the people of

this country has enjoyed this right not as a constitutionally guaranteed fundamental

right but a right recognized and enforced by the courts of law under different laws

like law of torts, India penal code civil procedure code criminal procedure code

etc.

In today’s emerging jurisprudence, environmental rights, which encompass a

group of collective rights, are described as “third generation” rights. The “first

generation” rights are generally political rights such as those found in the

International covenant on civil and political Rights while “second generation”

rights are social and economic rights as found in the International covenant on

Economic, social and cultural Rights.1

5.1.1 RIGHT TO LIVE IN A HEALTHY ENVIRONMENT AS A

BASIC HUMAN RIGHT

Right to life being the mist important of all human rights implies the

right to live without the deleterious invasion of pollution, environmental

degradation and ecological imbalances. There is building up in various countries a

concept that right to healthy environment and to sustainable development are

fundamental human rights implicit in the right to ‘life’2

The Universal Declaration of Human Rights 1948 has declared that

everyone has the right to life3 and that every one has a right to a standard of living

adequate for the health and well being of himself and of his family…4 the

International Covenant on Economic, social and cultural Rights, 1966, declares

that the states parties to the covenant recognized the right of everyone to an

adequate standard of living for himself and his family… and to the continuous

improvement of living conditions.5 The convent further declears that the states

1 Lee John “Right to Healthy Environment”, Columbia Journal of Environmental Law, Vol. 25, 2000; pp. 293-394 cf. A.P. Pollution Control Board II v. Prof. M.V. Nayudu, 2000 SOL Case No. 673.

2 A.P. Pollution Control Board II v. Prof. M.C. Natudu, 2000 SOL Case No. 673.3 Article 3, UDHR, 1948.4 Article 25, Id.5 Article 11, ICESCR, 1996.

parties recognize the right of everyone to the enjoyment of the highest attainable

standerds of physical and mental health.6

The Convent provides that the steps to be taken by the States Parties

to achieve the full realization of this right shall include that necessary for … the

important of all aspects of environmental and industrial hygiene.7 The International

Covenant on Civil and Political Rights, 1996 proclaims that every human being has

the inherent right to life. This right shall be protected by law …….8 The European

Convention for the Protection of Human Rights and Fundamental Freedom, 2005

also provides that “every one’s right to life shall be protected by law.9”

UNO Conference on Human Environment:- Principle 1 of the declaration of the

United Nations Conference on the Human Environment, held that Stockholm

proclaims that “man has the fundamental right to freedom, equality and adequate

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

well being……” After the Stockholm Declaration in 1972, references to a right to

a decent, healthy and viable environment was incorporated in several Global and

Regional Human Rights Treaties and in the declaration and resolutions of

6 Article 12(1) Id.7 Article 12(2) (b), Id.8 Article 6, ICCPR, 1966.9 Article 6, ECPHR, 1950.

International Organizations.10 At the UN Conference on Environment and

Development (UNCED) the initial emphasis on the human rights perspective was

not maintained. Avoiding rights terminology, merely asserted that “human beings

are at the centre of our concern for sustainable development. They are entitled to a

healthy and productive life in harmony with nature.”11

The right to sustainable development has been declared by the U.N.

General Assembly to be an inalienable human right. The 1997 Earth Summit

meeting Held India in 2003 in which 134 nations reflected the principle that in

order to achieve “sustainbel development, environmental protection shall

constitute an integral part of development process and cannot be considered in

isolation of it.12”

The UN Commission on Prevention of Discrimination and Protection

of human rights undertook a study on “Human Rights and the Environment” in

2007 and submitted its report . The most fundamental conclusion of the Report is

that there has been a “shift from environmental law to the right to a healthy and a

decent environment” and that it is capable of immediate implementation by Human

Rights bodies.

10 Example, Article 24 of Africa n Charter on Human Rights and People’s Rights, 1981; Principle 23 of the World Charter for Nature 1982; Article 11 of the Additional Protocol to the Inter American Convention of human Rights, 1988; Article 24(2) of the Convention on the right of the Child, 1989; Hague Declaration on the Environment, 1989.11 Principle 1, UNCED 199212 Earth Sumit N. Delhi 2003.

In Lopez Ostra v. Spain13, the European Court of Human Rights at

Strasburg has held that the result of environmental degradation might affect an

individual’s well being so as to deprive him of environment of private and family

life. Under Article 8 of the European Convention, everyone is guaranteed the right

to respect for his private and family life.14 The Inter-American Commission on

Human Rights has also made a similar observation in Yanomi Indians v. Brazil.15

The Commission found that Brazil had violated the Yanomi Indian’s right to life

by not taking measures to prevent the environmental damage.

5.1.2 RIGHT TO LIVE IN A HEALTHY ENVIRONMENT AS A CONSTITUTIONAL RIGHT

Immediately after the Stockholm Declaration there was a growing

trend in National Legal Systems to give constitutional status to environmental

protection.

In India the constitution was amended in the year 1976 by the

Constitution of India Forty-second (Amendment) Act. This Amendment Act

13 303-C, Eur. Ct. H.R. (Ser.A) 1994.14 See Power and Ravner v. U.K. 173 Eur. Ct. H.R. (Ser.A.) 1990.15 Inter-Amer, C.H.R. 7615 OEA/Ser L.V/II/66 Doc. 10.rev. 1985 (1).

Comments : For example the Draft Principle 1 states that “Human Rights and ecologically sound environment, sustainable development and peace and inter-development and indivisible.” Draft Principle 2 states that “all persons have the right to a secure, healthy and ecologically sound environment.” This right and other human rights including civil, cultural, economic, political and social rights, are universal, interdependent and indivisible. Draft Principle 5 provides that “all persons have the right to freedom from pollution, environmental degradation and activities that adversely affect the environment, threaten life, health, livelihood, well-being or sustainable development within across or outside national boundaries.”

amendment the Constitution to add among other articles Article 48A and 51A.

Article 48A provides that “the State shall Endeavour to protect and improve the

environment to safeguard the forest and wildlife of the country”. Article 51 A(g)

provides that it is the fundamental duty of every citizen of India “to protect and

improve the natural environment including forest, lakes, rivers, and wild life and to

have compassion for living creatures.”16

Our Supreme Court was one of the first courts to develop the concept

of right to “healthy environment” as part of the right to “life” under Article 21 of

our Constitution.1 This principle has now been adopted in various countries today.

The Philippine Supreme Court dealt with the action against Government not to

continue licensing agreements permitting deforestation so that the ‘right to a

balanced and healthful ecology in accordance with the rhythm and harmony of

nature’ is not affected.17 The judgment was based on ‘intergenerational

responsibility’.

5.1.3 EVOLUTION OF THE FUNDAMENTAL RIGHT TO LIVE IN A

HEALTHY ENVIRONMENT IN INDIA

16 See Bandhwa Mukti v. Union of India, 1984 (3) SCC 161.1

17 Minors Opasa v. Department of Environment and Natural Resources, 33, ILM 173 (1994).

In India the higher Judiciary has interpreted the existing constitutional

provision viz., “the right to life” guaranteed in Article 21 to mean and include the

right to live in a healthy environment.

The Supreme Court of India while that certain limestone quarries in

the Doon Valley should be closed down due to soil erosion, deforestation and river

silting, declared for the first time18 that the right of people to live in a healthy

environment with minimal disturbance to ecological balance shall be safeguarded.

In this case through the Supreme Court evolved a new right to environment-right

of people to live in a healthy environment it did not mention or discuss the source

of the right.19

The Supreme Court in neither of these cases declared explicitly that

the right to a clean and healthy environment is contained in the compendium of

unremunerated rights under Article 21. However, since the Court issued directions

in all the above cases under Article 32 of the Constitution it is evident that the

Court has used Article 32, which is a provision to enforce fundamental rights for

the purpose of protecting the lives of the people, their health and ecology.

5.1.4 THE DECLARATION OF RIGHT T A CLEAN AND HEALTHY

ENVIRONMENT BY HIGH COURTS

18 AIR 1985 SC 652. “Rural litigation & Peutiflement Kendra vs.-State of U.P.”19 AIR 1987 SC 985: AIR 1987 SC 982: AIR 1987 SC 1086: AIR 1988 SC 1037; AIR 1988 SC 1115, “M.C. Mehta vs. Govt of India Central Borad.” . SC. 3149.

Through the Supreme Court was reluctant for a short period to declare

explicitly that the ‘right to life’ under Article 21 included the ‘right to a clan and

healthy environment’, the High Courts in the country enthusiastically declared that

the right to a clean and healthy environment is an integral part of the right to life.20

The Andhra Pradesh High Court held environmental law has

succeeded in unshackling man’s right to life and personal liberty from the clutches

of common law theory of individual ownership. Examining the matter from the

constitutional point of view, it would be reasonable to hold that the enjoyment of

life and its attainments and fulfillment guaranteed by Article 21 of the Constitution

embraces the protection and preservation of nature’s gifts without (which) life

cannot be enjoyed. There can be no reason why practice of violent extinguishment

of life aloe would be regarded as violative of Article 21 of the Constitution. The

slow poisoning by the polluted atmosphere caused by environmental pollution and

spoliation should also be regarded as amounting to violation of Article 21 of the

Constitution. This case was filed against the building of residential quarters for

LIC in an area earmarked in the development plan as open space for recreational

purposes.

The Rajasthan High Court held21 that ‘though termed as duty [51

A(g)], the provision given citizens a right to approach the Court for a direction to 20 AIR 2006. Shivlok-vs-Muncipal corp. Calcutta.21 AIR 1988 Raj 2. “L.K. Koolwal-vs- State of Rajasthan”

the Municipal authorities to clean the city’. It further held that ‘maintenance of

health, sanitation and environment falls within Article 21 thus rendering the

citizens the fundamental right to ask for affirmative action’. This case was filed

seeking a direction to clean the city of Jaipur and save it from its unhygienic

conditions.

The Kerala High Court held22 that “………the administrative agencies cannot be

permitted to function in such a manner as to make inroads into the fundamental

right under Article 21. The right to life is much more than the right to animal

existence and its attributes are manifold, as life itself. A prioritization of human

needs and a new value system has been recognized in these areas. The right to

sweep water, and the right to free air, is attributes of the right to life, these are the

basic elements, which sustain life itself. This case was filed to question the

environmental impact of a scheme for pumping ground water for supplying potable

water to Locatives because of the apprehension that extensive drawal of

groundwater will result in salt water intrusion into the aquifers.

The Karnataka High Court held23 that “entitlement to clean

environment is one of the recognized basic human rights and human rights

jurisprudence cannot be permitted to be thwarted by status quoism on the basis fo

undounded apprehensions.” The Court further observed that “the right to life 22 1990 KLT 580. “Attokoya Thangal-vs Union of India”23 AIR 1992 Kant 57. “V. Lakshmi Pathy –vs- State of karnataka” 2003.

inherent in Article 21 of the Constitution of India does not fall short of the required

quality of life which is possible only in an environment of quality, where, on

account of human agencies, the quality of air and quality of environment are

threatened or affected, the Court would not hesitste to use its innovative

power……to enforce and safeguard the right to life to promote public interest.”

This case was filed challenging the establishment of industries in residential areas

contrary to the zoning of land use in a development plan prepared in accordance

with planning laws.

The Rajasthan High Court held that “any person who disturb the

ecological balance or degrades, pollutes and tinkers with the gifts of nature such as

air, water, river, sea and other elements of Nature, be not only violates the

fundamental right guaranteed under Article 21 of the Constitution, but also

breaches fundamental right guaranteed under Article 21 of the Constitution, but

also breaches the fundamental duty to protect the environment under Article 51

A(g).”24

5.1.5 THE SUPREME COURT AND THE RIGHT TO CLEAN AIR AND

HEALTHY ENVIRONMENT

24 AIR 2004 Raj 1. “Vijay Singh Punia-vs-State of Rajasthan.”

The Supreme Court of Indian Chhetriya Pardushan Mukti sangarsh

Samiti v. State of UP25 (1990) for the first time declared that the right to

environment is contemplated in Article 21 of the Constitution of India. In his

Judgment the then Chief Justice SABYASACHI MUKERJI observed that “every

citizen has a fundamental right to have the enjoyment of quality of life and living”

Anything, which endangers or impairs that quality of life, is entitled to take

resource to Article 32 of the Constitution of India.” This case was initiated by a

letter written to the Court, it was alleged that certain oil mills and refineries located

in the Sarnath area causes environmental pollution and thereby a serious health

hazard.

The Supreme Court observed that “the right to life enshrined in

Article 21, included the right to enjoyment of pollution free water and air for the

full enjoyment of life. If anything endangers or the protection of society would

have resource to Article26”

“protection of the environment, open space for recreation and fresh

air, play grounds for children …. are matters of great public concern and of vital

interest in the reservation and preservation of open space for parks and play

grounds cannot be sacrificed by leasing or selling such sites to provide persons for

conversion to other uses. Any such act…..would be in direct conflict with the 25 AIR 1990 SC 2060.26 AIR, 2007 amar Singh-vs-State of Haryana.

Constitutional mandate to ensure that any state action is inspired by the basic value

of individual freedom and dignity and addressed to the attainment of quality of life

which make the guaranteed right a reality for all citizens.27”

Supreme Court after reciting reaffirming and applying principle 1 of

the Stockholm declaration held that “Article 21 protects right to life as a

fundamental right. Enjoyment and its attainment including their right to life with

human dignity human dignity encompasses within its ambit, the protection

andpreservation of environment, ecological balance free from pollution of air and

water, sanitation without which life cannot be enjoyed. Any contra acts or actions

would cause environmental pollution. Environmental, air pollution, etc. should be

regarded as amounting to violation of Article 21. Therefore, hygiene environment

is an integral facet of right to healthy life and it would be impossible to live with

human dignity without a human and healthy environment.28”

The Supreme Court drew a nexus between the protection of the

environment and Article 21 of the Constitution. It held that “any disturbance of the

basic environmental elements, namely, air water and soil, which are necessary for

“life”, would be hazardous to “life” within the meaning of Article 21 of the

Constitution. The Supreme Court held that “Environmental, ecological, air and

water pollution amount to violation of the right to life assured by Article 21 of the 27 AIR 1991 SC 1902. “Bangalore Medical Trust-vs- Mudappa.”28 (1995) 2 SCC577. “Virendra Gaur –vs-State of Haryana”

Constitution of India. Hygienic environment is an integral facet of healthy life.

Right to live with human dignity becomes illusory in the absence of humane and

healthy environment.” This is a case where the sub-Divisional Magistrate of the

area concerned served orders in terms of Section 133 of the Criminal Procedure

Code directing the respondents who owned industrial units to close their industries

on the allegation that serious pollution was created by discharge of effluents from

their respective factories and thereby a public nuisance was caused29.

5.2 “PRINCIPLES AND DOCTRINES FOR PROTECTION OF

ENVIRONMENT”

“We have to evolve new Principles and lay down new norms, which

would adequately deal with the new problems which arise in a highly

industrialized economy. We cannot allow our judicial thinking to be constricted by

reference to the law as it prevails in England or for the matter of that in any other

foreign country. We no longer need the crutches of a foreign legal order30”

Thereafter the formulation of certain new principles and

pronouncement of new doctrines ‘as part of the law of this country’ for protection

of environment is a remarkable achievement of the Indian judiciary. Some such

principles and doctrines propounded by the Indian Judiciary are

i. Principle of Absolute Liability

29 (2000) 3SCC 29. “Ranji Patel –vs- Nagrk Upabhokta Marey Darshak Manch”30 (2000) 7SCC 389. “Kadia Leather and ligour Ltd.”

ii. Polluter Pays Principle

iii. Precautionary Principle

iv. Public Trust Doctrine

v. Doctrine of Sustainable Development

vi. Doctrine of Inter-generational Equity.

(i) Principle of absolute liability:- The Supreme Court of India formulated the

doctrine of absolute liability for harm caused by hazardous and inherently

dangerous interpreting the scope of the power under Article 32 of the constitution

of India to issue directions are orders, whichever may be appropriate’ in

‘appropriate pricedings”31

The Supreme Court held that the exceptions to the strict liability

principle are not applicable in India in cases of determining the liability of

hazardous and inherently dangerous. The Supreme Court in this case has observed

that “where an enterprise is engaged in a hazardous and inherently dangerous

activity and harm results to any one on account of an accident in the operation of

such hazardous and inherently dangerous activity for example, in escape of toxic

gas. The enterprises strictly and absolutely liable to compensate all those who are

affected by the accident and such liability is nit subject to any of the exceptions

31 AIR 1987 SC 1086 p.1089. “M.C. Mehta-vs. Union of India.

which operate vis-à-vis the tortuous principle of strict liability in Rylands v

Fletcher”32.

The Supreme Court of India re-examined and reiterated the principle

of absolute liability. The sludge discharged from manufactures of ‘H’ acid

remained as lethal waste for a long time even after the manufacturers stopped the

production. It destroyed the whole village spreading disease, death and disaster.

“According to this rule, 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 weather he took

reasonable care while carrying on his activity.” Sludge, but also for the loss and

suffering sustained by the villages, although the quantum of damages could be

determined by a competent civil court.

5.2.1 Polluter Pays Principle:- It is now recognized that Air Pollution is a form

of waste and a symptom of inefficiency in industrial production. Hence it was just

and necessary to device various kind of measures to prevent and minimize

industrial pollution. Hence it was just and necessary to device various kinds of

measures to prevent and minimize industrial pollution. The World Commission on

32 AIR 1996 SC 1466. “Indian Council of Environment legal Action-vs- Union of India”“In this case emphasis was laid on the absolute liability of the industries in meeting the cost of remedial action, as well as compensation for the loss and suffering. The Court explained the principle of absolute liability as follows”

Environment and Development (WCED) in its report33 ahs suggested that the

environment cost of economic Cooperation and Development (OECED)34 for the

first time agreed to base their environment ornamental policies on ‘Polluter Pays

principle’ and it was recommended as an “essentially economic efficiency measure

to internalize environmental costs.”35

Polluter Pays Principle (PPP) which was originally considered as an

economic and administrative measure to restrain and control the pollution has

recently been recognized as a powerful legal tool to combat environmental

pollution and associated problems.

The Court observed that the polluter pays principle means that the

absolute liability for harm to the environment extents not only to compensate the

victims of 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

suffers as well as the cost of reversing the damaged ecology. The court observed

that the polluter pays principle has been accepted as customary international law

and hence it becomes a part of the law of to access the damages caused to the

environment by the effluents released by the tanneries.

33 Our Common Future (1987).34 Guiding Principles concerning international economic aspects of environmental policies-council Recommendations (1972).35 (1996) 5 SCC 647 at p. 658. “Vellore Citizen’s welfare forum-vs-union of India”

5.2.2 Precautionary Principle:- Before AP Act. at the international level, it

was the concept of ‘assimilative capacity’ which was in operation. According to

this concept, the environment, having assimilative process, absorbs itself the shock

of pollution, but beyond a certain limit the pollution may cause damage to the

environment requiring efforts to repair it. Thus, according to the assimilative

capacity theory, the role will begin only when the limit is crossed. But pollution

cannot wait for action to be postponed for investigation of its quality, concentration

and boundaries. So there was a shift from the principle of ‘assimilative capacity’ to

the ‘precautionary principle.’36

Principle 15 of the Rio declaration proclaims that “in order to protect the

environment the precautionary approach shall be widely applied by States

according to their capabilities, where there are threats of serious or irreversible

damage lack of full scientific certainly shall not be used a reason for post pointing

cost effective measures to prevent environmental degradation37..”

The Supreme Court relying upon a report of the International Law

Commission has observed that “the precautionary principle suggest that where

there is an identifiable risk of serious and irreversible harm, including, for

example, extinction of species, wide spread toxic pollution, major threat to

essential ecological processes, it may be appropriate to place the burden of proof 36 Jariwala C.M. “Complex Enviro-Techno Science Issues: The Judicial Direction”, JILI 47, 2008.37 See Supra note 42

on the person or entry proposing the activity that is potentially harmful to the

environment”38.

The Precautionary Principle was directly applied by the Supreme

Court for protecting the Taj Mahal from air pollution. Expert studies proved that

emissions from coke/coal based industries in the Taj Trapezium Zone (TTZ) has

damaging effect on the Taj Mahal. The Court observed that “the atmospheric

pollution in TTZ” has to be eliminated at any cost. Not even 1% chance can be like

the Taj is involved.

Tracing the origin the Doctrine of Public Trust the Court observed

that “the ancient Roman Empire developed a legal theory known as the Doctrine of

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

rivers, seashores, forests and the air were held by Government in Trusteeship for

the free ad unimpeded use of the general public. Our contemporary concerns about

the environment were a very close conceptual relationship to this legal doctrine.

Under the Roman law these resources were either owned by no one (res nullious)

or by every one in common (res communions). Under the English law, however,

the sovereign could won these resources but the ownership was limited in nature,

the Crown could not grant these properties to private owners if the effect was to

interfere with the public interests in navigation or fishing. Resources that were

38 AIR 1976 SC 1207.

suitable for these uses were deemed to be held in trust by the Crown for the benefit

of the public.”39

Some of the salient principles of Sustainable Development as culled

out from Brundtland Report and other international documents are inter generation

equity, use and conservation of natural resources, environmental protection, the

precautionary principle, polluter pays principle, obligation to assist and co-operate,

eradication of poverty and financial assistance to the developing countries.

Herman Daly, an Economist at the World Bank suggested three rules

for sustainable Development. The rules are:

1. Harvest renewal resources only at the speed at which they regenerate;

2. Limit wastes to the assimilative capacity of the local eco-system or release

those wastes elsewhere where they can be assimilated; and

3. If you use a non-renewable resource, require that part of the profit be put aside

for investment in a renewable substitute resource.

Rural Litigation and Entitlement Kendra v. State of U.P.40 (popularly

known as Doon Valley case) was the first case in India involving issues relating to

environment and development is not antithetical to environment. The court

39 See supra note 43. “M.C. Mehta-vs- Union of India.”AIR 1999 SC 912.Comments:- “The Court held that the industries, identified by the Pollution Control Board as potential

polluters, had to change over to natural gas as an industrial fuel and those who were not in a position to obtain gas connections should stop functioning in TTZ.”

40 Air 1985 Sc 652.

observed that “we are not oblivious of the fact that natural resources have got to be

tapped for the purposes of the social development but one cannot forget at the

same time that tapping of resources have to be done with the requisite attention and

care so that ecology and environment may not be affected in any serious way, there

may not be depletion of water resources and long term planning must be

undertaken to keep up the national wealth. It is always to be remembered that these

are permanent assets of man kind and or not intended to be exhausted in one

generation.”41

Again in M.C. Mehta v. Union of India (Vehicular Pollution Case-

CNG conversion case) the Supreme Court emphasized the significance of the

Principle of sustainable development and held that sustainable development and

held that sustainable development is one of the principles underlying

environmental law and that the precautionary principle and the polluter pays as the

two features of sustainable development.

In K.M. Chinnappa v. Union of India42 the Supreme Court observed

that “it cannot be disputed that no develop is possible without some adverse effect

on the ecology and environment, and the projects of public utility can not be

abandoned and its is necessary to adjust the interest of the people as well as the

necessity to maintain the environment. The balance has to be struck between the 41 (2002) 4 SCC 356.42 AIR 2003 SC 724.

two interests. Where the commercial venture or enterprise would bring in results,

which are far more useful for the people, difficulty of a small number of people has

to be by-passed. The comparative hardships have to be balanced and the

convenience and benefit to a larger section of the people has to get primacy over

comparatively lesser hardship.”

Just development must attempt to future generations, and to the health

of the planet, not just to immediate needs. Hence it is essential that the natural

resource base be used wisely and sustainably. To achieve growth by the depletion

of nonrenewable resources is an achievement of short term Government spending

plans by the printing of money. Both are forms of borrowing from the future.

5.2.3 Doctrine of Inter-generational Equity:- The tragedy of the predicament of

the civilized man is that every source from which man has increased this power on

earth has been used to diminish the prospects of his increased his power on earth

has been used to diminish the prospects of his successors. All his progress is being

made at the expense of damage to the environment, which the cannot repair and

cannot foresee. “Rivers, forests, minerals and such other resources constitute a

nation’s natural wealth. These resources are not to be frittered away and exhausted

by any one generation. Every generation owes a duty to all succeeding generations

to develop and conserve the natural resources of the nations in the best possible

way. It is in the interest of mankind. It is in the interest of the nation,” opined the

Supreme Court in State of Tamil Nadu v. Hind Stone. The idea behind this

doctrine is that “every generation should leave water, air and soil resources as pure

and unpolluted as and when it came to earth. Each generation should leave

undiminished all the species of minerals it found existing on earth.43.”

Principle 1 of the Stockholm Declaration of Human Environment

declares that “Man has the fundamental right to freedom, equality and adequate

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

well-being, and he bears a solemn responsibility to protect and improve the

environment for the present and future generations…”44

Principle 2 of the Stockholm Declaration on Human Environment

(1972) points out that “the natural resources of the earth including the air, water,

land flora and fauna and especially representative samples of natural ecosystems

must be safeguarded for the benefit of present and future generations through

careful planning or management, as appropriate.”

The Johannesburg declaration on sustainable Development (2002) declares that –

(1.) We, the representatives of the peoples of the world, assembled at the world

Summit on Sustainable Development in Johannesburg, South Africa from 2-4

September 2002, reaffirm our commitment to sustainable development.

43 AIR 1981 SC 711.44 The World Commission on Environment and Development. Our Common Future-1987.

(2.)We commit ourselves to build a humane, equitable and caring global society

cognizant of the need for human dignity for all.

(3.)At the beginning of this Summit, the children of the world spoke to us in a

simple yet clear voice that the future belongs to them, and accordingly

challenged all of us to ensure that through our actions they will inherit a world

free of the indignity and indecency occasioned by poverty, environmental

degradation patterns of unsustainable development.

(4.)As part of our response to these children, who represent our collective future,

all of us, coming from every corer of the world, informed by different life

experiences, are united and moved by a deeply felt sense that we urgently need

to create a new and brighter world of hope.

(5.)Accordingly, we assume a collective responsibility to advance and strengthen

the interdependent and mutually reinforcing pillars of sustainable development-

economic development, social development and environmental protection-at

local, national, regional and global levels.

(6.)From this Continent, the Cradle of Humanity we declare, through the plan of

implementation and this Declaration, our responsibility to one another, to the

greater community of life and to our children.

We owe a duty to future generations and for a bright today, bleak

tomorrow can not be countenanced. We must learn from our experience of past to

make both the present and the future brighter. We learn from experience, mistakes

from the past, so that they can be rectified for a better present and the future. It

cannot be lost sight of that while today is yesterday’s tomorrow, it is tomorrow’s

yesterday.”45

5.3 JUDICIAL REMEDIES

Remedies play very important role in the field of environmental law.

Any law without remedies is castle in the air. Remedies for environmental

pollution constitute an environmental lawyer’s procedural armory. The remedies

available in India for environmental pollution comprise common law remedies,

remedies under the law of torts, remedies under criminal law, civil remedy and

constitutional. This is due to the fact that Indian environmental law is an amalgam

of common law, statute, constitution and judicial principles.

5.3.1 Path of Activism-Significant Cases:- Since 1979, the Supreme Court of

India has captured the potentiality of the law of nuisance in the Code of Criminal

Procedure.46 The Court has examined the emerging parameters of public nuisance,

45 The World Commission on environment and development. Our Common Future46 “AIR 1979 SC 143. “Govind Singh –vs- Shanti Swarup”Comments:-“………….in a mater of this nature where what is involved is not merely the right of a private individual but the health, safety and convenience of the public at large, safer course would be accept the view of the Learned Magistrate who saw for himself the hazard resulting from the working of the bakery.”

it related to the nuisance of smoke from a bakery. The Magistrate made an order

for the demolition of the oven and the chimney and later directed the baker to wind

up his business at the site. On special leave to appeal, the Supreme Court stated

that the evidence disclosed the remission of smoke injurious to the health and

physical comfort of the people living or working in the proximity of the appellant’s

bakery. Approving the view of the Magistrate that the use of the oven and chimney

was virtually ‘playing with the health of the people’ the Supreme held47.:

The important role played by the judicial activism of the eighties

made its impact felt more in the area of environmental protection than any other

field. The residents within Ratlam Municipality were suffering for a long time

from pungent smell from open drains. Public excretion caused odour in slums and

the liquids flowing on to the streets from the distilleries forced the people to go to

the Magistrate for a remedy. Direction was given by the Magistrate to remove the

drain. A six-months time program was to be adopted for constructing drainage and

public latrines. Municipality challenged the order and went in appeal to the

Supreme Court pleading financial constraints and inability to implement the

scheme. Public bodies are made accountable for their callous negligence and

47 “AIR 1980 SC 1622. “Municipal council Ratlam-vs- Virdhi Chnand”Comments:-The Court held the view that statutory agencies should not defy their duties by urging a self created bankruptcy of perverted expenditure budget. Ratlam case is thus a signpost, laying down basic guidelines in determining the primary responsibilities of local bodies and industry.

corporate bodies for their persistent violation of emission standards. Ratlam points

to the need for accountability of both public and private agencies in a welfare state.

Various High Courts in India tried to strengthen the law of public

nuisance by expanding the Jurisdiction under section 133 of Cr. P.C. The Madhya

Pradesh High Court’s48 decision was against noise and air pollution from a glucose

saline manufacturing company installed in a residential locality. A lady resident

approached the Magistrate and complained that her husband, a heart patient, was

disturbed constantly in his sleep every by booming noise of the boiler in the

company. Acting quickly the Magistrate ordered to close down the factory. The

Court of Session modified the order to the effect that instead of the removal of the

whole factory only the boiler need be removed. In revision, the High Court

preferred to stand by Magistrate and ordered the closure of the factory.

In an action against the nuisance created by an automobile workshop

in a residential area, the Kerala High Court held. “We recognize every man’s home

to be his castle which cannot be invaded to toxic fumes or tormenting sounds. This

principle expressed through law and culture, consistent with nature’s ground ruled

for existence, has bee recognized under section 133 (1) (b). The conduct or any

48 (1986) Cri LJ 396. “Krishna Gopal -vs- State of M.P”Comments:- “Manufacturing of medicine in a residential locality with the aid of installation of a boiler resulting in emission of smoke there from is undoubtedly injurious to health as well as the physical comfort of the community.” The Court dismissed the revision petition and ordered costs to be paid to the complainant.

trade or occupation or keeping of any goods or merchandise injurious to health or

physical comfort of community could be regulated or prohibited under the

section.49.”

The rule of strict liability is of considerable utility in cases of

environmental pollution, especially in those cases where the harm is caused by the

leakage of hazardous substances. In order to invoke this rule, two requirements

must be fulfilled. Firstly, there must be non-natural use of the land. Secondly, there

must be escape from the land of something which is likely to cause some harm

mischief if it escapes.

5.3.2 Absolute Liability:- Absolute liability for the harm caused by industry

engaged in hazardous and inherent activities is a newly formulated doctrine free

from the exceptions to the strict liability rule in England. The Indian rule was

evolved a public interest litigation (PIL) under Article 32 of the Indian

Constitution by a public spirited lawyer seeking the closure of a factory engaged in

manufacturing hazardous products50. While the case was pending oleum gas

leaking out from the factory affected several persons. There was death of one

49 (1989) Cr. C.J. 499 at p.501. “Madhuri –vs- Thilakhan” (1868) LR 3 HL 330.Comments:- Such observation has far-reaching implications. Incorporation of the provision of pubic nuisance in the Code of Criminal Procedure does not mean conferring on the executive Magistrate, Criminal jurisdiction. On the contrary, the provision contains the inherent characteristic of preventive and remedial jurisdiction only as disobedience of an order of the executive Magistrate invites criminal prosecution.

50 AIR 1987 SC 1080. “M.C. Mehta –vs- Union of India”

person living in the locality. Chief Justice Bhagwati said: “We have to evolve new

principles and lay down new norms, which would adequately deal with the new

problems which arise in a highly industrialized economy. We cannot allow our

Judicial thinking to be constricted by reference to the law as it prevails in England

or for the matter of that in any other foreign country. We no longer need the

crutches of a foreign legal order.51.”

5.3.3 Remedies under the law of Torts

Remedies under the law of torts are- i) Damages and Injunction

i) Damages:- Damages refer to pecuniary compensation for tortuous act,

substantial damages are paid to compensate for the injury or loss caused due

to some tortuous act. The continuous efforts of the Supreme Court to

embrace judicial activism are responsible for awarding exemplary damages

when the environmental harm results from an enterprise carrying on

hazardous or inherently dangerous activity. In the Shri Ram Gas Leak Case

involving a leakage of Oleum gas which caused substantial environmental

harm to the citizens of Delhi, the Apex Court held that the quantum of

51 Ibid.Comments:- The Supreme Court can design remedies for enforcement of fundamental rights, as the Jurisdiction under Article 32 of the Constitution to issue appropriate directions, orders or writs extends not only to preventive remedial measures against actual violation. The Court held that power to grant remedial relief may include the power to award compensation in appropriate cases. Guidelines were laid down to identify appropriate cases. Instances where infringement of fundamental rights was gross and patent and had affected large number of people fell in this category.

damages awarded must be appropriate to the magnitude and capacity of the

polluter to pay. However, the Supreme Court has deviated from this test in

the Bhopal Gas. Tragedy Case1 wherein the Court awarded U.S. $470

million to the Bhopal Gas victims which is far below the magnitude and the

capacity of the polluter, Union Carbide.

5.3.4 Statutory Remedies- Remedies under Criminal Law

There are several statutes making provisions for remedies which play

very important role in preventing and controlling all kinds of pollution. In general,

statutory provisions relating to environmental pollution can be discussed under the

following heads.

i) Criminal Sanctions and Environmental Protection:- There are various

provision under the Indian Penal Code, 1860 which make several acts

affecting environment as offences. Chapter XIV of the Indian Penal Code

under Section 268 to 294A deals with offences which affect the public

health, safety, and convenience and morals. The sole purpose of Chapter

XIV is to protect public health, safety and convenience by making those

acts. Punishable which pollute environment or threaten life of the people.

In Krishna Gopal v. State of M.P. it was alleged that the noise and air

pollution was caused by glucose factory situated a new feet away from the house

of the complainant. The complainant further was that ash from boiler of the factory

was causing a great deal of atmospheric pollution resulting in deleterious effect on

the residents of the locality. It was also complained that the factory was being run

round the clock, and her husband being heart patient was disturbed by the booming

sound of the boiler. The factory was installed in the residential locality on basis of

license granted by the competent authority52..

It was contended before the High Court that inconvenience caused to

the inmates of a house cannot be a public nuisance and therefore it was not

permissible to invoke Section 133 of Cr. PC.

Rejecting such contention the High Court observed that it was not the

intention of law that community as a whole or large number of complainants

should come forward to file their complaint under Section 133 of Cr. P.C.

Accordingly the Court ordered that the factory from where the

nuisance was caused had to be closed. It was further ordered that factory be

immediately removed without any further loss of time.

5.3.5 Principles for the exercise of writ jurisdiction:- The Constitution gives

enormous powers to the Courts under Articles 32 and 226 to issue writs for

granting relief to the applicant. However, it is not in each and every case that such

52 (1986) Cr, LJ 396.

relief is available. Courts are very cautious and exercise writ jurisdiction according

to certain well established principles. The Court seeks to ensure:

a) Whether the applicant has right to institute the proceeding i.e. whether he has

locus standing or not?

b) Whether he has exhausted alternative remedy?

c) Whether the petition for the writ is presented within reasonable time? However,

under the impact of socialization of law and justice the Supreme Court has

expanded the scope of Article 32 and 226. The question of public interest and

equality is given priority over the question as to who can institute legal

proceeding under these constitutional provisions. Under the impact of public

interest litigation/Social action litigation any public spirited person or

organization can approach the Supreme Court or High Court even through he

may not have suffered any injury due to environmental pollution. The strategy

of judicial activism known as Public Interest Litigation (PIL) or Social Action

Litigation (SAL) has assumed greater importance in the field of environmental

pollution, because pollution in any form i.e. air pollution, water pollution, or

environmental pollution does not affect only one or two persons. It affects a

large number of persons, therefore, public interest litigation or social action

litigation is most appropriate Judicial Strategy for this purpose. The significant

cases are Rural Litigation and Entitlement Kendra v. State of U.P.,53 M.C.

Mehta v. Shriram Food and Fertilizer Corporation,54 M.C. Mehta v. Union of

India,55 Sachidanand Pandey v. State of West Bengal,56 V. Panikurlangra v.

Union of India,57 Bangalore Medical Trust v. B.S. MUndappa,58 M.K. Sharma

v. BEL59 and so on.

Generally, environment law provides for a system of regulation by

statutes. However, the position in India is that most of environmental jurisprudence

ahs been designed and developed through writ jurisdiction. Judicial activism and

the development through writ jurisdiction. Judicial activism and the development

of the concept of PIL/SAL under the writ Jurisdiction of the Supreme Court and

High Courts have brought overwhelming change in processual Jurisdiction and it

has played a pivotal role in developing and providing impetus to environmental

jurisprudence with human rights approach in action60.. In the field of environmental

law, there is social action initiative and public interest litigation which covers

everything which under the light of sun. So is the scope of juridical activism and

public interest litigation. Public interest is not a de facto interest but criterion of

53 (1985) 2 SCC 431.54 (1980) 2 SCC 176.55 (1988) 1 SCC 471.56 (1988) 1 SCC 668.57 (1987) 2 SCC 165.58 (1991) 14 SCC 54.59 (1987)3 SCC 231.60 Julius Stone Social Dimensions of Law and Justice, ed. 3rd. 2007; p. 875, Chapter concerning socio-logical jurisprudence as regards classification of interests.

justice. It is evident from the foregoing discussion that Indian judiciary has used

constitutional provisions as potent weapon to develop a new “Environment

Jurisprudence61..” The Courts have not only created public awareness regarding

environmental issues but also have brought about an urgency in executive lethargy

if any, in any particular case involving environmental matters.

5.4 APPELLATE AUTHORITY [25.1]

The National Environment Appellate authority Act, 1997,

The object of the National Environment Appellate Authority Act is:-

To provide for the establishment of a National Environment Appellate

Authority to hear appeals with respect to restriction of areas in which any

industries, operations or processes or class of industries operations or processes

shall not be carried out or shall be carried out subject to certain safeguards under

the Environment (protection) Act, 1986 and for matters connected therewith or

incidental thereto. The Central Government is empowered under section 3of the

Environment (protection) Act, 1986 to impose restrictions on industrial activities in

certain areas. In exercise of its powers the Central Government has

prohibited/restricted certain industrial activities in Coastal Regulation Zones and in

certain ecologically sensitive regions.

61 Julius Stone Social Dimensions of Law and Justice, ed. 3rd. 2007; p. 875, Chapter concerning socio-logical jurisprudence as regards classification of interests.

If an order granting environmental clearance in the areas in which any industries

operations or processes or class of industries, operations and processes shall not be

carried out or shall be carried out subject to certain safeguards is given, the an

appeal may be preferred against such environmental clearance under the National

Environmental Appellate Authority Act, 1997.

5.4.1 ESTABLISHMENT OF NATIONAL ENVIRONMENT APPELLATE

AUTHORITY [25.2]

The Central Government shall, by notification in the official Gazette,

establish the National Environment Appellate Authority and the head office of the

Authority shall be at Delhi.

The Authority shall consist of a Chairperson, a Vice-Chairperson and

such other Members not exceeding three, as the Central Government may deem fit.

The president of India shall appoint the Chairperson the Vice-Chairperson and the

Members.

5.4.2 QUALIFICATIONS OF CHAIRPERSON, VICE-CHAIRPERSON

AND MEMBER [25.3]

A person shall not qualified for appointment as a Chairperson unless he has been-

a. A Judge of the supreme court; or

b. The Chief Justice of a High Court.

A person shall not be qualified for appointment as a Vice Chairperson unless he

has-

1. For at least two years held the post of a Secretary to the Government of India

or any other post under the Central or state Government carrying a scale of

pay which is not less than that of a Secretary to the Government of India;

and

2. Expertise or experience in administrative, legal, managerial or technical

aspects of problems relating to environment.

A person shall not be qualified for appointment as a Member unless

he has professional knowledge or practical experience in the areas pertaining to

conservation, environmental management, law or planning and development.

The need for technical Members in Environment Appellate

Authorities, who should be a scientist or a group of scientists of high ranking and

experience was very much felt and emphasized by the Supreme Court to help a

proper and fair adjudication of disputes relating to environment and pollution.

The Supreme Court of India in Andhra Pradesh Pollution Control

Board v. M.V. Nayudu appreciated the difficulty in dealing with highly

technological or scientific data. The Court observed, “…..The courts’ ability to

handle complex science rich cases has recently been called into question with

widespread aggregations that the judicial system is increasingly unable to manage

and adjudicate science and technology issues62..”

The Court opined that the Government of India should bring about

appropriate amendments in the environmental statues, Rules and Notification to

ensure that in all environmental courts, tribunals and appellate authorities there is

always a Judge of the rank of a High Court Judge or a Supreme Court Judge-

Sitting or retired and a scientist or a group of scientists of high ranking and

experience so as to help a proper and fair adjudication of disputes relating to

environment and pollution.

5.4.3. TERM OFFICE [25.4]

The Chairperson, the Vice-Chairperson or a Member shall hold office

as such for a term of three years from the date on which he enters upon his office,

but shall be eligible for re-appointment for another term of three years.

Provided that no Chairperson or Member shall hold office as such

after he has attained-

a) In the case of the Chairperson, the age of seventy years; and

b) In the case of the Vice-Chairperson or a Member, the age of sixty-five years.

62 Air 1999 SC 812Comments:- “Critics have objected that Judges cannot make appropriate decisions because they lack technical training, that the jurors do not compared the complexity of the evidence they are supposed to analyze, and that the expert witnesses on whom the system relies are mercenaries whose biased testimony frequently produces erroneous and inconsistent determinations.”

5.4.4. JURISDICTION AND POWERS OF AUTHORITY [25.5]

Appeals to Authority:- Any “person” aggrieved by an order granting

environmental clearance in the area in which any industries, operations or

processes or class of industries, operations and processes shall not be carried out or

shall be carried out subject to certain safeguards may within thirty days from the

date of such order, prefer an appeal to the Authority in such form as may be

prescribed.63.

However, the Authority may entertain any appeal after the expiry of

the said period of thirty days but not after ninety days from the date aforesaid if it

is satisfied that the appellant was prevented by sufficient cause from filling the

appeal in time. Where there is a delay in the presentation of the Memorandum of

Appeal before the Authority, such Memorandum of Appeal shall be accompanied

by a separate application for condo-nation of delay and the supporting affidavit of

such application.

Any “person” means-

1. Any person who is likely to be affected by the grant of environmental

clearance;

63 From A specified The National Environment Appellate Authority (Appeal) Rules, 1997.

2. Any person who owns or has control over the project with respect to which an

application has been submitted for environmental clearance;

3. Any Association of persons (whether incorporated or not) likely to be affected

by such order and functioning in the field of environment;

4. The Central Government, where the environmental clearance is granted by the

State Government and the State Government, where the environmental

clearance is granted by the Central Government; or

5. Any local authority, any part of whose local limits is within the neighborhood

of the area wherein the project is proposed to be located.

In addition to its statutory jurisdiction, the National Environment Appellate

Authority had an advisory role to play in complicated environmental matters that

were referred to it by the Supreme Court or the High Courts.

5.4.5. PROCEDURE AND POWERS OF AUTHORITY [25.6]

On receipt of an appeal the Authority shall, after giving the appellant an

opportunity of being heard, pass such orders, as it thinks fit and the Authority shall

dispose of the appeal within 90 days from the date of filing the appeal.64 Under

64 Section 11(4), The National Environment Appellate Authority Act, 1997.

exceptional circumstances, the Authority may for reasons to be recorded in writing,

dispose of the appeal within a further period of 30 days.

Whoever fails to comply with any order made by the Authority, shall

be punishable with imprisonment for a term, which may extend to seven years, or

with fine, which may extend to one lakh rupees, or with both.65.

The Authority shall have for the purposes of discharging its functions

under this Act, the same powers as are vested in a civil court under the Code of

Civil Procedure, 1908 while trying a suit, in respect of the following matters,

namely-

1. Summoning and enforcing the attendance of any person and examining him on

oath;

2. Requiring the discovery and production of documents;

3. Receiving evidence on affidavits;

4. Subject to the provisions of section 123 and 124 of the Indian Evidence Act,

1872 (1 of 1872), requisitioning any public record or document or copy of such

record or document from any office;

5. Issuing commissions for the examination of witnesses or documents;

65 Section 19, id.“A.P. Pollution Control Board –v.s.-M.V. Nagadu.”

6. Reviewing its decisions;

7. Dismissing a representation for default or deciding it, ex parte;

8. Setting aside any order of dismissal of any representation for default or any

order passed by it ex parte; and

9. Any other matter which is required to be, or may be, prescribed by the Central

Government.

5.4.6 BAR OF JURISDICTION [25.7]

With effect from the date of establishment of the Authority, no civil

court or other authority shall have jurisdiction to entertain any appeal in respect of

any matter with which the Authority is so empowered by or under this Act66..

5.5 SOME CASES RELATING TO JUDICIARY RESPONSE

The study of leading case on the subject is a scientific method of discussing

the law. In past decade the Supreme Court of India has shown respectful and

considerable concern to bring environmental awareness in the people and propelled

governmental machinery to implement and develop protective measures in the

field of ecological balance.

1. M.C. Mehta v. Union of India,67

66 Section 15, id.67 A.I.R. 1992 S.C. 382.

2. Indian Council For Enviro-Legal Aciton v. Union of India,68

3. Municipal Council, Ratlam v. Vardhichand,69

4. Govind Singh v. Shanti Sarup,70

5. Sachidnand Pandey v. The State of West Bengal71,

5.5.1 M.C. Mehta v. Union of India

Brief facts:- the reliefs claimed in the application under Article 32 of the

Constitution of India are for issuing appropriate directions to cinema exhibition

halls to exhibit slides containing information and messages on environment free of

cost; directions to spread information relating to environment in national and

regional languages and for broadcast thereof on the television in regular and short

term programs with a view to educate the people of India about their social

obligation in the matter of the upkeep of the environment in proper shape and

making them alive to their obligations not to act as polluting agencies or factors. In

this case the petitioner also sought relief that environment should be made a

compulsory subject in schools and college in a graded system so that there would

be a general growth of awareness.

68 A.I.R. 1996 S.C. 1446.69 A.I.R. 1980 1622.70 A.I.R. 1979 S.C. 143.71 A.I.R. 1987 S.C. 1109

Directions:- In the instant case the Apex Court passed directions to the Central

Government as follows:-

i) Environmental pollution-Mass awareness through side show, Radio and

T.V.

ii) Education-Environment to be made compulsory subject in schollds and

colleges.

iii) In democratic polity it is the obligation of the Central Government for

ensuring mass communication.

Court’s observation:- The Court observed that there has been an explosion

of human population over the last 50 years. Life has become competitive. Sense of

idealism in the living process has living are no longer followed. The anxiety to do

good to the needy or for the society in general had died out, today, oblivious of the

repercussion of one’s actions on society, every one is prepared to do whatever is

easy and convenient for his own purpose. In this backdrop if the laws are to be

enforced and the environment has to be protected in an unpolluted State it is

necessary that people are aware of the vice of pollution and its evil consequences.

5.5.2. Indian Council Environ-Legal Action v. Union of India

Brief Facts:- Before the Supreme Court writ petition field by an environmental

organization brings to light woes of people living in the vicinity of chemical

industrial plants in India. The petition highlighted the disregard, may contempt for

industrial guidelines relating to environmental protection and emerging breeds of

entrepreneurs, taking advantage as they do, of the country’s need for

industrialization and export earnings. Pursuit of profit has absolute drained them of

any feeling for fellow human being or for that matter, for any thing else. And the

law seems to have been helpless. Systematic defects? Known such instances which

have led many people in the country to believe that disregard of law pays and the

consequences of such disregard will never be visited upon particularly if they are

men with means.

Since the toxic untreated waste waters were allowed to flow freely and because the

untreated toxic sludge was thrown in the open in and around the complex the toxic

substances have percolated deep into the bowels of the earth polluting the aquifers

and the sun-turned dark and dirty rendering it unfit for human consumption. It has

become unfit for cattle to drink and for irrigating the land. The soil has become

polluted rendering it unfit for cultivation, the main stay of the villagers. The

resulting misery to the villagers needs to be emphasized, as it results into spread of

disease, death and disaster in the village and the surrounding areas. This sudden

degradation of earth and water was echoed in Parliament too. An Honorable

Minister said, action was being taken, but nothing meaningful was done on the

spot. The villagers then rose in virtual revolt leading to the imposition of section

144 Cr. P.C. by the District Magistrate in the area and the closure of silver

chemicals and Jyoti chemicals stopping manufacturing ‘H’ acid since January,

1989. The Court may assume it to be so. Yet the consequences of their action

remain the sludge, the long lasting damage to earth, to underground water, to

human beings, to cattle and the village economy. It is with these consequences that

the Court is to consider in the present petition.

(1) Torts on account of negligence-Rule of Absolute Liability for Damage

caused:- The rule laid down by the Supreme Court in Oleum gas leak case (A.I.R.

1987 S.C. 1086), namely 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. In the words of the

Constitution Bench, such an activity “can be tolerated only on the condition that

the enterprise engaged in such hazardous or inherently dangerous activity

indemnifies all those who suffer on account of the carrying on of such hazardous

or inherently dangerous activity regardless of whether it is carried on carefully or

not. The Constitution Bench has also assigned the reason for stating the law in the

said terms. It is the enterprise (carrying on the hazardous or inherently dangerous

activity) alone has the affected and the practical difficulty on the part of the

affected person in establishing the absence of reasonable care or that the damage to

him was foreseeable by the enterprise.”

(2) Environment pollution-Chemical Industries are main culprits:- Since the

chemical industrial are the main culprits in the matter of polluting the environment,

there is every need for scrutinizing their establishment and functioning more

rigorously. No distinction should be made in this behalf as between a large scale

industry and a small scale industry or for that matter between a large scale industry

and medium scale industry and medium scale industry. All chemical industries

whether big or small should be allowed to be established only after taking into

consideration all the environmental aspects and their functioning should be

monitored closely to ensure that they do not pollute the environment around them.

It appears that most of these industries are water intensive industries. If so, the

advisability of allowing the establishment of these industries in arid areas may also

require examination. Even the existing chemical industries may be subjected to

such a study and if it is found on such scrutiny that it is necessary to take any steps

in the interest of environment, appropriate directions in that behalf may be issued

under section 3 and 5 of the Environment Act, 1986.

(3) Public nuisance must be checked:- Public nuisance, because of pollutants

being discharged by big factories to the detriment of the poorer sections, is a

challenge to the social justice component of the rule of law. Likewise, the grievous

failure of local authority’s to provide the basic amenity of public conveniences

drives the miserable slum-dwellers to ease in the streets, on the sly for a time and

openly thereafter, because under Nature’s pressure, bashfulness becomes a luxuary

ad dignity a difficult art. A responsible municipal council constituted for the

precise purpose public health and providing better finance cannot run away from

its principal duty by pleading financial inability. Decency and dignity are non-

negotiable facets of human rights and are a first charge on local self governing

bodies. Similarly, providing drainage system-not pompous and attractive, but in

working condition and sufficient to meet the needs of the people, cannot be evaded

if the municipality is to justify its existence.

5.5.3. Govind Singh v. Shanti Sarup

Brief Facts:- The respondent who is a partner of the Punjab Oil Mills, Khanna

field in the Court of the Sub-Divisional Magistrate, Samrala, an application under

section 133 of the Code of Criminal Procedure, complaining that the appellant who

had been carrying on the occupation of a baker in the premises let out to him by the

Mills had constructed an oven and a chimney which constituted a nuisance under

section 133 of the Code.

The learned S.D.M. served a conditional order on the appellant under section

133(1) of the Code calling upon him to demolish the oven and the chimney within

a period of 10 days from the date of the order and to show cause why the order not

be confined. Later stage or the proceeding and after hearing the parties the learned

S.D.M. made the said order absolute and directed the appellant to cease carrying

on the trade of a baker at the particular site and not to lit the oven again.

The appellant field a revision petition against the order of S.D.M. under Section

435 and 436 of the Cr. P.C. The learned Additional sessions Judge, Ludhiana,

disagreed with the order passed by S.D.M. and made a reference to the High Court

of Punjab and Haryana recommending that since there was no evidence on record

to show that the oven was enlarged by the appellant in the year 1969 as alleged by

the respondent and since there was positive documentary evidence on the record to

show that the particular oven was in existence for a period of 16 or 17 years, the

order passed by the S.D.M. should be quashed.

The reference was heard by a learned single judge of the High Court, who by a

judgment dated 15-01-1973 rejected the recommendation of the Additional Session

Judge and upheld the order of the S.D.M. being aggrieved by the judgment of he

High Court the appellant ahs filed the present appeal by special leave of the

Supreme Court.

The Supreme Court expressed the view that it is true the learned Additional

Sessions Judge did not agree with the findings of the S.D.M. but considering the

evidence in the case, the reasons given by the Magistrate in support of his order

and that the High Court was unable to accept the recommendation made by the

Additional Session Judge, this Court is of opinion that in a matter of this nature

where what is involved is not merely the right of a private individual but the

health, safety and convenience of the public at large. The safer course would be to

accept the view of the S.D.M., who saw for himself the hazard resulting from the

working of the bakery.

However, the Supreme Court passed remark the S.D.M. has gone beyond the scope

of he conditional order which he had passed on 16-12-1969 by which he required

the appellant “to demolish the said oven and the chimney within a period of 10

days from the issue of the order. The final order passed by the S.D.M. is to the

effect that the appellant shall cease to carry on the trade of a baker at the particular

site and shall not lit the oven again. Preventing the appellant from using the oven is

certainly within the terms of the conditional order but not so the order requiring

him to desist from carrying on the trade of a baker at the site. While, therefore

upholding the order of the learned S.D.M. and the view of the High Court, the

Supreme Court, further held that it is necessary to clarify that the proper order to

pass would be to require the appellant to demolish the oven and the chimney

constructed by him within a period of one month from the date of this judgment. It

is needless to add that the appellant shall not in the meanwhile use the oven and the

Chimney for any purpose whatever.”

5.5.4. Sachidanand Pandey v. State of West Bengal (Calcutta Taj Hotel case)

In this case the scope of judicial review in environmental cases was explained by

the Apex Court.

Brief Fact:- Where a group of citizens challenged the location of a hotel on the

ground that the construction of hotel would interfere with the flight path of

migratory birds. However, the construction of the Calcutta Taj Hotel was delayed

for six months. While administrative agencies and courts considered whether a

proposed six-storey hotel would impede the flight pattern of migratory birds. The

land on which the hotel was to be constructed formerly belonged to the Alipore

Zoological Garden and was put to important zoo related uses. The zoo directors

had withdrawn their objections to the hotel after the government promised them

adjacent lands and relocation grants, the hoteliers agreed to reconstruct all

displaced facilities on the adjacent lands, at no expense to the zo.

(1) Scope of Judicial review:- The least that the Court may do is to examine

whether appropriate considerations are borne in mind and irrelevancies excluded.

In appropriate cases the Court may go further but how much further depend on the

circumstances of the case. The Court may always give necessary directions.

However, the Court will not attempt to nicely balance relevant considerations.

When the question involves the nice balancing of relevant considerations, the

Court may feel justified in resigning itself to acceptance of the decision of the

concerned authorities.

The Supreme Court expressed the view that it is not merely another town planning

case but a ringing statement of the Court’s duty to protect the environment. Here

the duly authorities construction of medium-size five star hotel was alleged to

interfere with the flight path of migratory birds and the Court inquired extensively

into this question. If the migratory birds are worthy of the Court’s attention, a

“fortiori” the Court’s protection would extend to environmental issue of more

direct impact on human beings.

(2) Development allowed:- Though the citizens of Indian cities are facing

environmental urban problems, however, the hotel project was eventually

permitted to proceed, not only because the hotelier had taken environmental values

into account in fashioning the project but also because there were obvious public

benefit, viz.-increased revenues from tourism and general upgrading an

beautification of the area.

Readindg:-

1. Lee, John, “Right to health Environment ”, Columbia journal of Environ, Law.

Vol. 25, 2000; pp.239-394.

2. Leelakrishnan, P. Environment Law in India; p. 114.

3. Jariwala, C.M. “Complex Environ-Techno Science Issues” The Judicial

Direction, JILI, vol. 31,2000; p.42.

4. World Commission on Environment and development our common Future,

1987.

5. Stone, Julius, Social Dimensions of Law and justice, “Chapter concerning

socio-logical jurisprudence as regards classification of interests.”

6. Jariwal, C.M. Changing dimensions of Indian environment law, in P.

Lilakrishna [et al.]; ed. Law and environment, 1992; p.2.

7. Bhatnagar, S.K. “Sanitary environment, the constitution and judicial approach’

in Paras Dewan, Environ Protection, Problem, Policy and administration Law,

1987; p.448.”

8. Manivasokam, N. Environment pollution, N. Delhi: National Book trust, ed. 2;

2003; p.12.

9. Thakur, Kalidas, Environment protection law and policy in India, New Delhi:

Deep and Deep, 1999; p.104.

10.Gupta, V.K. Kantilya juris prudence, Delhi, 1987; p104.

11.Bavi, upendra, Environmet Protection Act, An agenda for implementation,

Bombay: N.M.-tripathi, 1991. W.e. f. 02-10-1991.

12.Ministry of Environment and forestry, Govt of India, Annual Report, 1989-90;

p.12.