ENVIRONMENTAL LAWS ASSIGNMENT

1. Environment and General Laws:

Relationship between Man and Environment continues since the early existence of man on the
Earth. Mankind’s relationship with the environment has passed through several stages,
commencing with primitive time in which human beings lived in a stage of symbiosis with
nature, followed by a period of growing mastery over nature, up to the industrial age and
culminating into material-intensive growth patterns of the contemporary era. Environment is a
broad concept encompassing the whole range of diverse surroundings in which one perceives
experience and react to events and changes. It includes the land, water, vegetation, air and the
whole gamut of the social order. It also includes the physical and ecological environment. It
concerns people’s ability to adapt both physically and mentally to the continuing changes in
environment. In its natural condition, the environment of any region is in a state of dynamic
equilibrium. This is what is called the balance of nature.
The first United Nation (International) Conference on Human Environment held in June 1972 in
Stockholm and declared “to defend and improve the human environment for present and future
generations has become an imperative goal for mankind.” Therefore, it called upon the
governments and people of the world to exert common efforts for the preservation and
improvement of human environment. Twenty-six principles were resolved in the conference
which are known as the Magna Carta on Human Environment.
The then Prime Minister of India, Mrs Indira Gandhi was the first head of the state to address
this conference and later adopted the resolutions adopted in the conference. The Supreme Court
of India has also pointed out time and again that the UN Conference on Human Environment
created awareness for environmental protection. It has also been observed that the concept of
“sustainable development” was also introduced for the first time by the Stockholm Conference of
1972. Now, this concept has been widely accepted as a part of customary international law.
The Constitution of India and Environment Protection:
The Constitution is the basic law of the land from which all other laws derive their sanctity or
validity. Therefore, it must be a living and growing law that is it must be able to cope with the
new situations and development. Originally, the Constitution of India, 1950 did not have explicit

1
reference to environment protection, so there was no independent and separate provision for
protection or improvement of the environment. But in consideration to the Stockholm
Conference and growing awareness for environmental pollution and eco-imbalances, the Indian
Parliament passed a historic amendment which is 42 nd Constitution Amendment, 1976. The
Amendment incorporated two significant Articles- Article 48-A and Article 51-A(g) to protect
and improve the environment. Further, it introduced certain changes in the Seventh Schedule of
the Constitution.
Article 48-A: Protection and improvement of environment and safeguarding of forests and
wildlife. The State shall endeavour to protect and improve the environment and to safeguard the
forests and wildlife of the country.
Article 51-A: Fundamental Duties. It shall be the duty of every citizen of India:
(g) to protect and improve the natural environment including forests, lakes, rivers and wildlife,
and to have compassion for living creatures.
Seventh Schedule: List III, Concurrent List:
17-A: Forests
17-B: Protection of wild animals and birds
20-A: Population control and family planning
Right to Equality and Environment:
The Indian Constitution guarantees “right to equality” to all persons without any discrimination
enshrined in Article 14 which states that “The State shall not deny to any person equality before
law and equal protection of laws within the territory of India.” This indicates that any action of
State relating to environment must not infringe upon the right to equality. The Stockholm
Declaration, 1972 also recognized this principle of equality in environmental management under
Principle 1.
The Indian Courts time and again have struck down arbitrary official sanctions in environmental
matters on the basis that it was violative of Article 14. Arbitrary official sanctions in granting
lease and indiscriminate operation of mines may harm wildlife and natural wealth of the nation.
One Such case is In Kisan Bhagwan Gawali v. State of Maharashtra, 1 the exclusion of a
particular class of grazers from consideration and inclusion of some on the ground that the

1
AIR 1990 Bom 343

2
excluded class was indulging in illegal grazing is violative of Article 14 and invalid. Such a
policy decision is against the right to equality.
Freedom of Trade and Commerce and the Environment:
Most of the pollution is mainly from trade and business particularly from industries. It has been
found that tanneries, acid factories, tie and dye factories, distilleries and now-a-days, the hotel
industries are contributing to environmental pollution. Thus, it all relates to fundamental right to
freedom of trade and commerce guaranteed under Article 19(1)(g) of the Indian Constitution.
Some of these industries or business/trades are carried on in a manner which endangers
vegetation cover, animals, aquatic life and human health. But time and again it has been made
clear that this freedom is not absolute and is subject to certain reasonable restriction. Therefore,
such activities cannot be permitted in the name of the fundamental right.
In the landmark judgement of M.C. Mehta v. Kamal Nath,2 the Supreme Court made it
abundantly clear that if a hotel is discharging untreated effluent into the river Beas, thereby
disturbing the aquatic life and causing water pollution, it cannot permitted to work. Any
disturbance of the basic environment elements, namely air, water and soil, which are necessary
for “life”, “would be hazardous to life.” Thus, the court in the exercise of jurisdiction under
Article 32 of the Constitution of India cannot only award damages but can also levy fine and
exemplary damages on the erring industry/hotel which will act as a deterrent for others not to
cause pollution.
Right to Life and Right to Clean, Healthy Environment:
Article 21 of the Constitution of India guarantees right to life and personal liberty: “No person
shall be deprived of his life or personal liberty except according to procedure established by
law.” Though it does not directly confer to right to clean, unpolluted and healthy environment.
But the various judicial pronouncements on various occasions have expanded the right to life and
personal liberty to include this right by recognizing various “unarticulated liberties” as
recognized implicitly by Article 21.
In the case of M.C. Mehta v. Union of India3 (Ganga Pollution Case), the court declared in
equivocal terms that the closure of industries (tanneries) may bring unemployment and loss of
revenue to the State, but life, health and ecology have greater importance for the people.

2
AIR 2000 SC 1997
3
AIR 1988 SC 1037

3
In another case of T. Damodar Rao v. Municipal Corporation of Hyderabad, 4 The Andhra
Pradesh High Court made it clear that there can be no reason why practice of violent
extinguishment of life alone should be regarded as violative of Article 21 of the Constitution.
Slow poisoning of the atmosphere should be regarded as amounting to violation of right to life.
Law of Torts and Environment:
Tort of nuisance and environmental pollution:
It has rightly been observed that deepest doctrinal roots of modern environmental law are found
in the common law principles of nuisance. The law of nuisance covers various kinds of activities
which pollute the environment. Nuisance means “an unlawful interference with the use and
enjoyment of land or property, or some right over, or in connection with it.” It ordinarily means
anything which annoys, hurts or that which is offensive which may be through escape of water,
smoke, fumes, gas, noise, heat, electricity, germs etc.
In Dhannalal v. Thakur Chittarsingh Mehtapsingh,5 the Madhya Pradesh High court held that
the constant noise, if abnormal or unusual, can be actionable if it interferes with another’s
physical comfort. The person causing nuisance may be restrained by injunction, although he may
be conducting his business in a proper manner according to rules framed in this behalf either by
the municipality or the State.
Tort of Trespass and Environment:
Trespass is very closely related to nuisance and is occasionally invoked in environment cases.
Trespass requires an intentional invasion of the plaintiff’s interest in the exclusive possession of
property. The only requirement to establish a trespass is that there must be an “intentional
unprivileged physical entry” by a person or object on land possessed by another.
Tort of Negligence and Environment:
Negligence is another specific tort which can help in preventing environmental pollution.
Negligence is the failure to exercise that care which the circumstances demand in any given
situation. Where there is a duty to take care, reasonable care must be taken which can be forseen
to be likely to cause physical injury to person or property. The degree of care differs from case to
case and circumstances to circumstances.

Doctrine of Strict and Absolute liability and Environment:

4
AIR 1987 AP 171
5
AIR 1959 MP 240

4
The doctrine of strict liability is a liability without fault on the part of the defendant. It is very
significant in relation to cases arising from environmental pollution because it has been applied
to a remarkable variety of things such as fire, gas, explosions, electricity, oil, noxious fumes,
colliery spoil, poisonous vegetation etc further this rule applies equally to the injuries caused to
person and property. The rule was propounded in the case of Rylands v. Fletcher,6 Balckburn, J.
held that “the person who for his own purpose brings on his land and collects and keeps there
anything likely to do a mischief if it escapes, must keep it at his peril, and if he does not do so, is
prima facie answerable for all the damage, which is the natural consequence of its escape.”
The theory of strict liability was rejected by the Supreme Court of India in M.C. Mehta v.
Union of India7 (Oleum Gas Leakage or Shriram Food and Fertiliser Industry case), and
the rule of absolute liability was evolved. It was held that an enterprise which is engaged in a
hazardous or inherently dangerous industry which poses a threat to the health and safety of the
person working in the factory and residing in the surrounding areas owes an absolute and non-
delegable duty to the community to ensure that no harm results to anyone on account of
hazardous or inherently dangerous nature of the activity which it has undertaken. It was also
declared by the court that in cases of damage/harm to anyone on account of accident in the
operation of hazardous or inherently dangerous activity as in this case of leakage gas, the
measure of compensation must be correlated to the magnitude and capacity of the enterprise
because such compensation must have deterrent effect.
Law of Crime and Environment:
Section 268 of the Indian Penal Code, 1860 defines “public nuisance” as, a person is guilty of a
public nuisance who does any act or is guilty of an illegal omission which causes any common
injury, danger or annoyance to the public or to the people in general who dwell or occupy
property in the vicinity, or which must necessarily cause injury, obstruction, danger or
annoyance to persons who may have occasion to use any public right. It includes several types of
pollutions which cause interferences with the health, safety, comfort, convenience of the public
at large.
Section 133 of the Criminal Procedure Code, 1973 empowers a District Magistrate, Sub-
Divisional Magistrate to stop the nuisance on receiving information. Nuisance is defined in very

6
(1868) LR 3 HL 330: (1867-73) ALL ER Pep 1 (HL)
7
AIR 1997 SC 734

5
liberal terms and includes construction of structures, disposal of substances, conduct of trade or
occupation; under this section, the court issues conditional order for the removal of nuisance.
The imperative tone of Section 133 Crpc read with punitive temper of Section 188 IPC make the
prohibitory act a mandatory duty.
The Environment (Protection) Act, 1986:
The Environment (Protection) Act, 1986 was passed with a foreign background and to fulfill
constitutional obligation as provided under Article 48-A. The Act was passed to fulfill the
obligation as provided under the Stockholm Declaration of 1972. It was enacted with the main
objective to provide the protection and improvement of environment and for matters connected
therewith. The Act is one of the most comprehensive legislations with pretext to protection and
improvement of environment.
The main objective of the Act was to provide the protection and improvement of environment
and for matters connected therewith. Other objectives of implementation of the Act are:
 To implement the decisions made at the UN Conference on Human Environment held at
Stockholm in June, 1972.
 To enact a general law on the areas of environmental protection which were left
uncovered by existing laws. The existing laws were more specific in nature and
concentrated on a more specific type of pollution and specific categories of hazardous
substances rather than on general problems that chiefly caused major environmental
hazards.
 To co-ordinate activities of the various regulatory agencies under the existing laws
 To provide for the creation of an authority or authorities for environmental protection
 To provide a deterrent punishment to those who endanger human environment, safety and
health.

2. Public Interest Litigation and Environment:

6
Public Interest Litigation as the name suggests, the cases under this category are filed for the
good of the society at large i.e., the public interest.  The concept of PIL in India was introduced
in the year 1979 wherein, the rights of under-trial prisoners and the inhuman conditions of the
prisoners was discussed by the court in the case of Hussainara Khatoon Vs. Union of India.8

The Indian judiciary adopted the technique of public interest litigation for the cause of
environmental protection in many cases. The Supreme Court & High Courts shaded the
inhibitions against refusing strangers to present the petitions on behalf of poor and ignorant
individuals. The basic ideology behind adopting PIL is that access to justice ought not to be
denied to the needy for the lack of knowledge or finances. In PIL a public spirited individual or
organization can maintain petition on behalf of poor & ignorant individuals.

Under Article 21 of Indian Constitution, we have a right to live and breathe in a safe and non
polluted environment in fact part iv of our constitution contains directive principles which states
that it is the duty of the state to protect the environment [Article 48-A Article 51-A (g)]. Our
constitution has given various right to us but in case of their infringement, most of us are unable
to exercise the remedies available to us since the procedure to avail those remedies is out of our
reach and quite expensive and complicated. Therefore, Supreme Court thus expanded and
liberalized the rule of ‘Locus Standi’. As a result of this expansion, all the social activists,
NGO’s, lawyers, public spirited citizens, etc. are now entitled to file a writ on behalf of the
person whose right has been infringed. In addition to this, a court is also entitled to take suo moto
cognizance of matters involving the abuse of environment, prisoners, bonded labourers and
inmates of mental institutions, through letters addressed to sitting judges.

Supreme Court started Public Interest Litigation (litigation filed in a court of law, for the
protection of “Public Interest”) to safeguard us against such infringement and entitle every
citizen to file a petition for punishing such offender. , the Supreme Court of India has played an
active role in dropping the increase of pollution levels through PIL has proved to be an effective
tool for the society. There are many cases where Supreme Court has issued various guidelines
and directions for the protection of environment. Some of the leading cases are:

Ratlam Municipal Council v. Vardhichand9

8
(1979 AIR 1369, 1979 SCR (3) 532)
9
AIR 1980 SC 1622

7
The judgment of the Supreme Court in instant case is a land mark in the history of judicial
activism in upholding the social justice component of the rule of law by fixing liability on
statutory authorities to discharge their legal obligation to the people in abating public nuisance
and making the environmental pollution free even if there is a budgetary constraints., J. Krishna
Iyer observed that,” social justice is due to and therefore the people must be able to trigger off
the jurisdiction vested for their benefit to any public functioning.”Thus he recognized PIL as a
Constitutional obligation of the courts.

M.C Mehta v/s Union of India10

In a Public Interest Litigation brought against Ganga water pollution so as to prevent any further
pollution of Ganga water. Supreme Court held that petitioner although not a riparian owner is
entitled to move the court for the enforcement of statutory provisions, as he is the person
interested in protecting the lives of the people who make use of Ganga water.

Peoples Union for Democratic Rights v. Union of India11

The court now permits Public Interest Litigation or Social Interest Litigation at the instance of
“Public spirited citizens” for the enforcement of constitutional and legal rights of any person or
group of persons who because of their socially or economically disadvantaged position are
unable to approach court for relief. Public interest litigation is a part of the process of participate
justice and standing in civil litigation of that pattern must have liberal reception at the judicial
door steps.

Shriram Food and Fertilizer Industries and others12

It was held by the Supreme Court that when there is manufacture and sale of hazardous products
then necessary steps should be taken for reducing hazard to workman and community living in
neighborhood. There was leakage of Oleum gas from one of units of S and as a result several
persons were affected and it was alleged that one advocate practicing in Court died. The leakage
was from the caustic chlorine plant. There was prohibiting order under the Factories Act under
which the plants were not allowed to work till safety measures were adopted. Number of Expert

10
AIR 1988 SC 1126
11
1982 AIR 1473
12
AIR 1987 SC 1086

8
Committees was appointed to report in the matter. The reports showed that the recommendations
were compiled with and the possibility of risk or hazard to the community had been considerably
minimized and it was also opined that it was reduced to nil.

It was held that pending consideration of the issue whether the caustic chlorine plant should be
directed to be shifted and relocated at some other place; the caustic chlorine plant should be
allowed to be restarted by the management subject to certain stringent conditions, which were
specified.

M.C. Mehta vs. Kamalnath and others13

It was held by the Supreme Court that as per Article 21 of Indian Constitution, polluting any
element of environment like air, water and soil is injurious and troublesome for life. An
illusionary compensation can be imposed on a person polluting the environment but court clearly
stated that fine cannot be imposed unless the accused is proved guilty.

Rural Litigation and Entitlementcentre Dehradun Vs. Uttar Pradesh14

In this case, by presenting a Public Interest Litigation (PIL), the court was informed that due to
digging of stone mines in Dehradun, the surrounding environment had got polluted and even the
nearby residents were getting harmed. Court constituted a committee to investigate into the
matter and after seeing the report of committee, the court ordered to stop the work of digging the
stone mines.

Subhash Kumar v. State of Bihar15

Supreme Court held that the “right to live is a fundamental right under Article 21 of the
Constitution and it includes the right of enjoyment of pollution-free water and air for full
enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a
citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of
water or air which may be detrimental to the quality of life.”

M.C. Mehta and Another v. Union of India and Others16

13
AIR 2000 SC1997
14
AIR1985SCC176
15
AIR (1991) 1 SCC 598
16
AIR 1987 SC 1086

9
The court in this case has clearly laid down that an enterprise which is engaged in a hazardous or
inherently dangerous industry which poses a potential threat to the health and safety of the
persons working in the factory and residing in the surrounding area owes an absolute and non
delegable duty to the community to ensure that no such harm results to anyone on account of
hazardous or inherently dangerous nature of the activity which it has undertaken. The court
directed that the enterprise must adopt highest standards of safety and if any harm results on
account of such activity, the enterprise must be absolutely liable to compensate for such harm
and it should be no answer to the enterprise to say that it had taken all reasonable care and that
the harm occurred without any negligence on its part.

Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P. and amp; Others17

It was observed that every citizen has fundamental right to have the enjoyment of quality of life
and living as contemplated by Article 21 of the Constitution of India. Anything which endangers
or impairs by conduct of anybody either in violation or in derogation of laws, that quality of life
and living by the people is entitled to take recourse to Article 32 of the Constitution.

Vellore Citizens Welfare Forum v. Union of India and amp; others18

This court ruled that precautionary principle and the polluter pays principle are part of the
environmental law of the country. This court declared Articles 47, 48A and 51A (g) to be part of
the constitutional mandate to protect and improve the environment. The Supreme Court of India,
in Vellore Citizens Forum Case, developed the following three concepts for the precautionary
principle:

 Environmental measures must anticipate, prevent and attack the causes of environmental
degradation

 Lack of scientific certainty should not be used as a reason for postponing measures

 Onus of proof is on the actor to show that his action is benign

Re. Noise Pollution19

17
AIR 1990 SC 2060
18
AIR 1996 SC 2715
19
AIR 2005 SC 3136

10
This Court was dealing with the issue of noise pollution. This Court was of the opinion that there
is need for creating general awareness towards the hazardous effects of noise pollution.
Particularly, in our country the people generally lack consciousness of the ill effects which noise
pollution creates and how the society including they themselves stand to benefit by preventing
generation and emission of noise pollution.

Indian Council for Enviro legal Action v. Union of India and amp; Others 20

The main grievance in the petition is that a notification dated 19.2.1991 declaring coastal
stretches as Coastal Regulation Zones which regulates the activities in the said zones has not
been implemented or enforced. This has led to continued degradation of ecology in the said
coastal areas. The court observed that while economic development should not be allowed to
take place at the cost of ecology or by causing widespread environment destruction and
violation; at the same time, the necessity to preserve ecology and environment should not
hamper economic and other developments. Both development and environment must go hand in
hand, in other words, there should not be development at the cost of environment and vice versa,
but there should be development while taking due care and ensuring the protection of
environment.

Narmada Bachao Andolan v. Union of India and Ors.21

The Supreme Court of India upheld that “Water is the basic need for the survival of human
beings and is part of the right to life and human rights as enshrined in Article 21 of the
Constitution of India and the right to healthy environment and sustainable development are
fundamental human rights implicit in the right to life.

After discussing the above cases, we can say judicial activism in respect of protection of
environment is notable. The Supreme Court is quite active and issued several directions and
different legal provisions for environmental protection through the application of public Interest
Litigation. The Supreme Court is constantly trying to filling the gaps which have been left by the
legislation. Through our judicial activism Supreme Court recommended many new ideas for the

20
AIR(1996) 5 SCC 281
21
AIR 2000 SC 3751

11
protection of environment. These new innovations by the judicial activism open the numerous
approaches to help the country.

12