MODULE 1: INTRODUCTION AND FUNDAMENTAL PRINCIPLES OF

ENVIRONMENTAL PROTECTION

Examples of environmental casualties

 Hiroshima Nagasaki
 Vietnam War
 Dhanbad fire (Jharia Coal fields)
 Chernobyl disaster
 Dumping issue in Canada and Philippines

Geo power politics and global geo power politics play very important role in the issues
relating to environmental protection. There have been mass immigration of people due to
environmental issues like floods and earthquakes.

Following three issues relating to environment are crucial:

 Duty
 Liability
 Right

Characteristics of environmental law

 It is both physically and socially complex.

 It requires expansion of legal imagination because a lot of law relating to environment
has not developed. Therefore, with the development of environmental law we have to
think about legal obligations.
 The most important element of environmental law is environmental justice which can
mean different for different entities – it might mean justice between nations, justice
across generations, justice within local communities or even form of justice that takes
right of the earth.
 It is always controversial and often requires limiting people’s behaviour as a result of
which it leads to resentment. While it is controversial, it is necessary as we are bound
to live within the current capacity of the earth.
 It envisages our capacity to use law to shape human behaviour.

Sustainable Development

1
  United Nations Conference on the Human Environment in 1972 adopted as the first
document in international environmental law to recognize the right to a healthy
environment. In the declaration, the nations agreed to accept responsibility for any
environmental effects caused by their actions.
 The term Sustainable Development was popularized by the World Commission on
Environment and Development in 1987 report entitled “Our Common Future”.
 Sustainable development is defined as “development that meets the needs of the
present without compromising the ability of future generations to meet their own
needs.”
 Sustainable Development thus is a socio-ecological process.

Foundations of Sustainable Development

1. Concept of need – Objective concept of human needs like food, clothing, shelter,
clean water and other essentials which contribute to quality of life.
2. Normative concept – emphasizes upon the balance of equity, environment and
growth.

Principles of Sustainable Development

1. Inter-generational Equity – To ensure that for the benefit of the present generation, the
survival of the future generation is not hampered.
2. Intra-generational Equity – Equity between people of the same generation.
3. Sustainable Use – Sustainable use vis-à-vis conservation of natural resources.
4. Integration – All elements living together in holistic manner.

Scope of Sustainable Development

1. Social Dimension – Development is considered to be socially sustainable when it

achieves social justice via equitable resource allocation and provides social services
such as education, health etc. to all members of the society including those of the
deprived class. Thus, the aim of socially sustainable development is to raise the living
standard of world’s poor and to achieve and maintain high levels of social health.
2. Economic Dimension – The economic sustainability means economic welfare of the
people at present as also in future while paying attention to the natural capital.
Sustainable economics represents a broad interpretation of ecological economics

2
 where environmental and ecological variables and issues are basic parts of a multi-
dimensional perspective.
3. Environmental Dimension – The environmental dimension of sustainable
development is a direct approach based on information gained from earth science and
conservation biology. This is ultimately the management of a long series of indirect
causal factors that are initiated by human consumption. Management of human
consumption of resources is an indirect approach based on information gained from
economics.
Criteria for Ecological Sustainability
a) Renewable resources should provide a sustainable yield i.e. the rate of harvest
should not exceed the rate of generation/ production.
b) For non-renewable resources there should be equivalent development of
renewable substitute.
c) Waste generation should not exceed the estimated capacity of the
environment.
4. Institutional Dimension – The institutional dimension of sustainable development is
concerned with the participation of all community members in the decision-making
process and the acquisition of the information that affects their lives.

Environmental Ethics

Environmental ethics is defined as the moral relationship between humans and the natural
environment. It is an area of environmental philosophy that faces a lot of conflict due to the
various sub divisions in terms of ethical perceptions.

 Anthropocentric approach: The idea behind anthropocentric approach to

environmental ethics is that humans are the sole bearers of intrinsic value and all other
living things are there to sustain humanity’s existence. It refers to the ethical
framework that grants moral standing solely to the human beings.
The resolutions namely Stockholm Declaration, 1972, Johannesburg Declaration,
2002 and Rio Declaration, 2012 promote human oriented approach.
The critics to this approach say that how can one say that there is no morality in
animals.
 Eco-centric approach: Eco-centrism goes beyond biocentrism. The eco-centric
approach to environmental ethics means the ethics that sees inherent value or observes

3
 inherent value to all living beings by including environmental system as a whole and
their abiotic aspects. Eco-centrism also goes beyond Zoo-centrism (seeing value in
animals) on account of explicitly including flora and ecological context of organisms.
World Charter for Nature, 1982 supports inter human justice and interspecies justice
for non-human world.

Precautionary Principle

Prevention vs. Precaution – Prevention is associated with a definite risk whereas precaution
has no definite risk. In precautionary principle, there is challenge of ambiguity i.e. what
amount of risk prompts the application of the principle. Initiator of the operation has the
burden of proof.

Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715

Facts

 The petitioner Vellore Citizens Welfare Forum filed a Public Interest Litigation under
Article 32 of the Constitution.
 Petition was filed against the large-scale pollution caused to River Palar due to the
discharge of untreated effluents by the tanneries and other industries in the State of
Tamil Nadu. The water of River Palar is the main source of drinking and bathing
water for the surrounding people.
 Further, the Tamil Nadu Agricultural University Research Centre, Vellore found that
nearly 35,000 hectares of agricultural land has become either totally or partially unfit
for cultivation.
 This is a leading case in which the Supreme Court critically analysed the relationship
between environment and development.

Issue

The question which arose for consideration before the Supreme Court was whether the
tanneries should be allowed to continue to operate at the cost of lives of the people.

Judgement

The Supreme Court identified 3 elements of the Precautionary Principle:

1. It is the responsibility of the State Government and the statutory authorities to

prevent, anticipate and attack the causes detrimental to the environment.
4
 2. Lack of scientific uncertainty must not be used as a defence for inaction in cases of
environmental degradation. This was borrowed directly from Rio Declaration.
3. The burden to prove that the activity is harmless to the environment is on the
industrialists.

Conclusion: The Precautionary Principle is an indispensable part of sustainable development.

Polluter Pays Principle

The salient features of the polluter pays principle are as follows:

 If one is polluting, he must compensate.

 Maximum investment must be made to prevent pollution.
 One cannot pay out the aggrieved and continue polluting.
 It requires the polluters to take responsibility for external costs arising from pollution
i.e. internalising them.
 It is an extension of sustainable development.
 It is inclusive of costs incurred in avoiding pollution and remedying the damage.h
 Polluter pays principle was applied in Oleum Gas Leak case (M C Mehta vs. Union of
India AIR 1987). It was held that an enterprise that engages in dangerous substances
has an absolute responsibility to ensure the safety of the common public. It is only the
company that can knows the consequences of its activities and so it must take all the
steps to prevent any accident. If, even after all precautions, accident happens, the
company still should be made absolutely liable for the damages. The reason being that
the company has a social obligation to compensate the people who suffered from its
activity. SC also laid down that the measure of compensation should depend on the
magnitude and capacity of the enterprise so that it can have a deterrent effect.
 T. N. GodavarmanCase (2002): The Supreme Court enunciated the economic rule
according to which it is an economic way of cost allocation because it requires
polluters to take responsibility for internal cost arising from pollution by internalising
them. It is inclusive of cost incurred in dealing with the pollution and remedying the
damage out of it.

5
Public Trust Doctrine

 Resources like air, sea, water and the forests have great importance to the people as a
whole. It would be wrong to make such resources a subject of private ownership.
Natural resources being a gift of nature, should be freely available to everyone
irrespective of the status in life.
 The Public Trust Doctrine enjoins upon the Government to protect the resources for
the enjoyment of the general public rather than to permit their use for private
ownership or commercial purposes Public at large is the beneficiary and the State as a
trustee is under a legal duty to protect the natural resources.
 Res communion means rivers, forests and other natural resources common to
everyone. Res mullins means owned by no single/ particular individual.
 M C Mehta v Kamal Nath (1997) 1 SCC 388
Brief Facts: The State Government of H.P. granted lease of riparian forestland to a
private company for commercial purpose. The purpose of the lease was to build a
motel at the bank of the River Beas. A report published in a national newspaper
alleged that the motel management interfered with the natural flow of the river in
order to divert its course and to save the motel from future floods. The Supreme Court
initiated suo motu action based on the newspaper article.
Judgement: The Supreme Court stated that the Public Trust Doctrine primarily rests
on the principle that certain resources like air, sea, waters and forests have such great
importance to the people as a whole that it would be unjustified to make them a
subject of private ownership. The court observed: As 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 nation
in the best possible way. It is in the interest of mankind. It is in the interest of the
nation. Thus, the Public Trust doctrine is a part of the law of the land.

6
MODULE 2: CONSTITUTIONAL PERSPECTIVE

Right to healthy environment

 Right to healthy environment is a vital right but not a fundamental right.

 However, Art. 21 of the Constitution gives every person the right to life and personal
liberty. Article 21 says that “No person shall be deprived of his life or personal liberty
except according to a procedure established by law.”
 Features of Art. 21
 The Article imposes a duty on the State to protect the life and liberty of the
people.
 The concept of right to life has been broadened through various judicial
pronouncements.
 While deciding cases relating to the environment, the judiciary has
pronounced the right to clean environment as fundamental to life and upheld it
as fundamental right.

Case laws

Subhash Kumar v. State of Bihar (1991)

 The petitioner filed a public interest litigation against two iron and steel companies,
because they allegedly created health risks to the public by dumping waste from their
factories into the nearby Bokaro river. The petitioner also claimed that the State
Pollution Control Board had failed to take appropriate measures for preventing this
pollution.
 The Supreme Court observed that right to life is a fundamental right under Article 21
of the Constitution and it includes the right of enjoyment of pollution-free water and
air for full enjoyment of life. The Court recognized right to wholesome environment
as a part of fundamental right to life.
 This case also indicated that the municipalities and concerned govt. authorities could
no longer rest. They may be compelled to take measures to improve the environment.

7
Rural Litigation and Entitlement Kendra v. State of U.P. (1985) – Dehradun Valley Litigation

 The petitioners wrote a letter to the Supreme Court alleging that illegal mining
activities in Mussorie-Dehradun region was causing damage to the fragile ecosystem
of the area. The Court treated this letter as a PIL under Article 32 of the Constitution.
 The Court in this case ordered the closure of a number of limestone quarries. It was
impliedly admitted that the adverse effects to life of people involved the violation of
Article 21.

M.C. Mehta v. Union of India (1999) – Vehicular pollution case

 The case was related to vehicular pollution in Delhi city.

 It was held by the Court that controlling pollution is the duty of the Government.
 SC maintained the right to healthy environment as a basic human right. The Court
held that right to clean air is a part of right of life mentioned in Article 21 of the
Constitution.
 This was a landmark judgment with respect to Vehicular pollution in India. Later the
Supreme Court also passed orders for the provision of Lead-free petrol in the country
and for the use of natural gas and other mode of fuels for use in the vehicles. Lead
free petrol was introduced in four metropolitan cities in 1995. All cars manufactured
after 1995 were fitted with catalytic convertors to reduce emissions. CNG outlets have
been setup to provide CNG gas to vehicles. As a result of this case Delhi became the
first city in the world to have a complete public transport running on Compressed
Natural Gas.

Directive Principles of State Policy (DPSP) with respect to environment

 The chapter on fundamental duties of the Indian Constitution clearly imposes duty on
every citizen to protect environment.
 Article 51-A (g), says that “It shall be duty of every citizen of India to protect and
improve the natural environment including forests, lakes, rivers and wild life and to
have compassion for living creatures.”

L.K. Koolwal v. State of Rajasthan(1988)

8
  LK Koolwal, the Petitioner, sought to enforce the Rajasthan Municipalities Act, 1959
(the Act) in the city of Jaipur. Under the Act, the Municipality has a duty to clean
public places of all filth. The Petitioner contended that several areas in Jaipur were
fraught with sanitation problems and the Municipality was not performing its duties
under the Act.
 The Supreme Court held that a citizen has the right to move the courts if a State
instrumentality or agency fails to perform its duties. It also held that that lack of funds
is no excuse for not implementing the law. The Court emphasized the obligation of
State instrumentalities in performing their duties under Article 51A of the
Constitution of India and the right of any citizen to move the courts to enforce such
duties. The Court recognized that insanitation could adversely affect the life of a
citizen and lead to an early death. Therefore, it was essential that the Municipality
take immediate steps to rectify the situation.
 The Court therefore directed the Municipality to clean the affected areas within six
months and submit periodic reports before the Court on its progress.

Interrelationship between Article 51A, 48 and 48A of the Constitution

Article 51 (A) (g)

Article 48 Article 48A

Article 48 – The state shall endeavour to organize agriculture and animal husbandry on
modern and scientific lines and shall in particular take steps for preserving improving the
breed, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.

Article 48A – The State shall endeavour to protect and improve the environment and to
safeguard the forests and wildlife of the country.

Article 51A (g) – It shall be duty of every citizen of India to protect and improve the natural
environment including forests, lakes, rivers and wild life and to have compassion for living
creatures.

State of Gujarat v. Mirzapur Moti Kureshi (2005)

 State of Gujarat v. Mirzapur Moti Kureshi was a case relating to cow slaughter. The
State of Bombay had enacted the Bombay Animal Preservation Act, 1948, prohibiting

9
 the slaughter of animals which were useful for milch, breeding or agricultural
purposes. This Act was extended to the State of Gujarat by the Bombay Animal
Preservation (Gujarat Extension and Amendment) Act, 1961. This Act was amended
in 1994 by the Bombay Animal Preservation (Gujarat Amendment) Act, 1994.
 This statute was challenged by the representative bodies of Kureshis. The High Court
allowed the writ petition and struck down the impugned legislation as ultra-vires the
Constitution holding that the statute imposed an unreasonable restriction on
fundamental rights.
 The challenge to the constitutional validity of the legislation was founded on three
grounds. That the total ban offended the religion of the Muslims as the sacrifice of a
cow on a particular day is sanctioned by Islam. Secondly, that such a ban offended the
fundamental rights of the Kasais (butchers) under Art. 19(1)(g) and was not a
reasonable and valid restriction on their right. Thirdly, that a total ban was not in the
interest of the general public.
 The Supreme Court held that the total ban on the slaughter of cows and calves of
cows and she-buffaloes was valid. The constitutional bench further held that the total
ban on the slaughter of she-buffaloes or breeding calves or working bullocks so long
as they are capable of being used as milch or draught cattle was also valid. However,
the constitutional bench held that a total ban on the slaughter of she-buffaloes, calves
and bullocks after they cease to be incapable of yielding milk or breeding or working
could not be supported as reasonable and in the interests of the general public and was
invalid.
 It appears that in this case, the first ground of challenge namely, that the sacrifice of a
cow sanctioned by Islam was turned down by the court due to the meagre material
placed before the court. The Constitutional Bench, in this case, concluded that the
cow progeny ceased to be useful as a draught cattle after a certain age.

T. DamodarRao v. Municipal Corporation of Hyderabad (1987)

The AndhraPradesh High Court clearly stated that the right to environment is part of theright
to life guaranteed by Art. 21 of the Constitution of India. It said, "theslow poisoning by the
polluted atmosphere caused by environmental pollutionand spoilage should also be regarded
as amounting to violation of Art. 21 of theConstitution.

10
The Court stated that Article 48Aimposed an obligation on the government, including the
courts to protect theenvironment. What does the phrase "protect and improve" which is part
ofArticles 48A and 51A(g) signify? It signifies an obligation of affirmativegovernmental
action in order to improve the quality of the environment. Theprotection of a degraded
environment is not sufficient.

Research Foundation for Science v. Union of India (1995)

A public interest litigation was filed in 1995, drawing court’s attention to dumping of
hazardous waste, causing irreversible damage to the environment and public health. The
Supreme Court asked states, union territories and their pollution control boards to submit
affidavits on the implementation of hazardous waste rules of 1989.

The Court observed that state governments were not taking required steps under laws and
ordered formation of a high-powered committee. Based on the report of the said committee
the apex court has issued several directives for compliance to the Union and state
governments. The court has also constituted a Supreme Court Monitoring committee to report
the compliance of these directives. In 2005, court passed an order on import of used oil from
ships and as also on ship-breaking.

M.C. Mehta v. Kamal Nath (1997)

Brief Facts

The Indian Express published an article reporting that a private company, Span Motels
Private Ltd. (‘the Motel Company’), owner of Span Resorts, had floated an ambitious project
called Span Club. Kamal Nath who was the Minister of Environment and Forests had direct
links with this company. The company encroached upon 27.12 bighas of land which also
included forest land. The land was regularized and subsequently leased out to the company
on 11th April 1994.

This encroachment had an impact on the course of river Beas. For more than 5 months the
Span Resorts management moved bulldozers and earth movers to turn the course of the river
for the second time. In September, 1993, these activities by the company caused floods in the
river and a property worth Rs. 105 Crores was destroyed.

Issues Raised

11
 1. Whether the court has wrongly inducted Mr. Kama Nath as a Respondent in the
present petition?
2. Whether the construction activity carried out by the Motel Company justified?

Judgement

The Supreme Court applied the ‘Public Trust Doctrine’ to the present case. Doctrine of
Public trust is an ancient legal doctrine which states that certain common properties such as
rivers, seashore, forests and the air were held by Government in trusteeship for the free and
unimpeded use of the general public.

In the present case there is a large river basin which is a part of a protected forest land. This
land was leased by the Government of Himachal Pradesh to the Motel Company for a
commercial purpose. The Himachal Pradesh Government was held to have committed a
patent breach of Public Trust by leasing an ecologically fragile land to the Motel
management.

The Supreme Court held that:

1. The public trust doctrine is a part of the law of the land.

2. The Court quashed the lease-deed by which forest land was leased to the Motel
Company and held that the construction activity carried out by the Motel Company
was not justified.
3. The Motel was ordered to pay compensation by way of cost for the restitution of the
environment and ecology of the area.
4. The Motel was ordered to construct a boundary wall at a distance of not more than 4
meters for the building of the motel beyond which they were not allowed to use the
land of the river basin.
5. The Court restricted the Motel from discharging untreated effluent into the river.
Himachal Pradesh Pollution Control Board was directed to inspect and keep a check.

M.C. Mehta v Union of India (1987) – Oleum Gas Leak case

Facts

12
On December 4th and 6th 1985, amajor leakage of Oleum gas tookplace from one of the units
of ShriramFood and Fertilizers Industry, asubsidiary of Delhi Cloth Mills, locatedin Delhi
which resulted in the death ofseveral persons. This leakage resultedfrom the bursting of the
tankcontaining oleum gas as a result of thecollapse of the structure on which itwas mounted.

A writ petition under Article 32 of the Constitution was brought by way of Public Interest
Litigation.

Judgement

The principles that came up from this historical case were:

 The Principle of Absolute Liability,

 Article 21 of the Constitution
 Polluter Pays Principle
 Principle of Precautionary Measures, and
 Principle of Highest Safety Standards

Absolute Liability – The Court dealt with the question as to what is the measure of liability of
an enterprise which is engaged in a hazardous or inherently dangerous industry, if by reason
of an accident occurring in such industry, persons die or are injured. Does the rule in
Ryland’s v. Fletcher apply or is there any other principle on which the liability can be
determined? The rule in Ryland’s v. Fletcher was evolved in the year 1866 which provides
that a person who for his own purposes being on to his land and collects and keeps there
anything likely to do mischief if it escapes must keep it at his peril and, if he fails to do so, is
prima facie liable for the damage which is the natural consequence of its escape. The liability
under this rule is strict and it is no defence that the thing escaped without that person's wilful
act, default or neglect or even that he had no knowledge of its existence. This rule laid down
a principle of liability that if a person who brings on to his land and collects and keeps there
anything likely to do harm and such thing escapes and does damage to another , he is liable to
compensate for the damage caused. This rule applies only to non-natural user of the land and
it does not apply to things naturally on the land or where the escape is due to an act of God
and an act of a stranger or the default of the person injured or where the thing which escapes
is present by the consent of the person injured or in certain cases where there is statutory
authority. This rule evolved in the 19th Century at a time when developments of science and
technology had not taken place and cannot afford any guidance in evolving any standard of

13
liability consistent with the constitutional norms and the needs of the present-day economy
and social structure.

The Court further stated that the Courts need not feel inhibited by this rule which was
evolved in this context of a totally different kind of economy. Law has to grow in order to
satisfy the needs of the fast-changing society and keep a breast with the economic
developments taking place in the country. The Court also stated that the Courts cannot allow
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. The Court stated that an enterprise which is
engaged in a hazardous or inherently dangerous industry which poses a potential threat to
health and safety of persons 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. The enterprise must be held to be under an obligation to provide that the
hazardous or inherently dangerous activity in which it is engaged must be conducted with the
highest standards of safety and if any harm results on account of such activity, the
enterprisemust be absolutely liable to compensatefor such harm and it should be no answerto
the enterprise to say that it had takenall reasonable care and that the harmoccurred without
any negligence on itspart.

SC heldthat where an enterprise is engaged in ahazardous or inherently dangerousactivity and

harm results to anyone onaccount of an accident in the operationof such hazardous or
inherently dangerousactivity resulting, for example, in escapeof toxic gas the enterprise is
strictly andabsolutely liable to compensate all thosewho are affected by the accident andsuch
liability is not subject to any of theexceptions which operate vis-à-vis thetortious principle of
strict liability under therule in Rylands v. Fletcher. The Court furtherstated that that the
measure ofcompensation in such cases must be co-related to the magnitude andcapacity of
the enterprise because suchcompensation must have a deterrenteffect. The larger and more
prosperousthe enterprise, the greater must be theamount of compensation payable by itfor the
harm caused on account of anaccident in the carrying on of thehazardous or inherently
dangerousactivity by the enterprise.

Thus, the Englishdoctrine of Strict Liability adopted by theHouse of Lords in Ryland v.

Fletcher wouldnot suffice the changing need of theliability principle in India. So, the
Hon’bleSupreme Court felt the need of adoptingthe principle of Absolute Liability or elsethe

14
Court of law would fail to providejustice to the victims of these large scaleenvironmental
disaster.

Public Interest Litigation (PIL)

What is PIL?

"Public interest Litigation", in simple words, means, litigation filed in a court of law, for the
protection of "Public Interest", such as pollution, Terrorism, Road safety, constructional
hazards etc.

PIL is not defined in any statute or in any Act. It has been interpreted by judges to consider
the intent of public at large.

Purpose of PIL

PIL is litigation introduced in a court of law, not by the aggrieved party but by the court itself
or by any other private party. It is not necessary, for the exercise of the court's jurisdiction,
that the person who is the victim of the violation of his or her right should personally
approach the court. Public Interest Litigation is the power given to the public by courts
through judicial activism.

Such cases may occur when the victim does not have the necessary resources to commence
litigation or his freedom to move court has been suppressed or encroached upon. The court
can itself take cognizance of the matter and precede suo motu or cases can commence on the
petition of any public-spirited individual.

Procedure for filing PIL

Not in any written law.

Locus standi of PIL

There is no strict requirement or any established legal injury. Sufficient public interest must
be present.

Withdrawal of PIL

A PIL may be withdrawn with the permission of the Court on the basis of public interest or if
there is an abuse of process of the Court.

15
Indian Forest Act, 1927

 The Act was passed by the Britishers and is applicable as on date.

 The Act is Benefit-centric in nature.
 Concentration of power
 Who gets to exploit?
 How much to exploit?
 What to exploit?

Definition of Forest

 “Forest” has not been defined in the Act possibly because it would limit the scope of
the term as also because the lack of idea of availability of resources that could come
under forest.
 Case laws have evolved on the definition of Forest. The two recognised definitions of
forest are as follows:
 Oxford Dictionary – According to the Oxford Dictionary, Forest is a large
tract of land covered with trees. Thus, forest may be defined as an extensive
tract of land covered with trees and under growth, sometimes intermingled
with pastures.
 FAO Definition [Food and Agriculture Organization] – According to FAO,
Forest is all land bearing vegetative association demarcated by trees of any
size, exploited or not, capable of producing food and other forest products,
exerting an influence on the climate or the water regime or providing shelter
to livestock and wildlife.

Types of Forest

According to Indian Forest Act (IFA), forest can be classified into the following three
classes:

1. Reserved Forest
2. Village Forest

16
 3. Protected Forest

Section 3 of the Act provides for Reserve Forest but does not provide the definition of
Reserved Forest. Similarly, Protected Forest has also not been defined in the Act. Therefore,
whatever is left out from reserved forest, comes under protected forest

Important Features of the Indian Forest Act (IFA)

 Section 2: Interpretation clause.

Reserved Forests

 Section 3: Power to reserve forests – The State Government may constitute any
forest-land or waste-land which is the property of Government, or over which the
Government has proprietary rights, a reserved forest.
 Section 4: Notification by State Government – Whenever it has been decided to
constitute any land a reserved forest, the State Government shall issue a notification in
the Official Gazette–
(a) declaring that it has been decided to constitute such land a reserved forest;
(b) specifying, as nearly as possible, the situation and limits of such land; and
(c) appointing an officer (hereinafter called “the Forest Settlement-officer”) to
inquire into and determine the existence, nature and extent of any rights
alleged to exist in favour of any person in or over any land comprised within
such limits or in or over any forest-produce, and to deal with the same.
 Section 5: Bar of accrual of forest-rights – After the issue of a notification under
section 4, no right shall be acquired in or over the land comprised in such notification,
except by succession or under a grant or contract in writing made or entered into by or
on behalf of the Government or some person in whom such right was vested when the
notification was issued; and no fresh clearings for cultivation or for any other purpose
shall be made in such land except in accordance with such rules as may be made by
the State Government in this behalf.
 Section 6: Proclamation by Forest Settlement Officer – When a notification has been
issued under section4, the Forest Settlement-officer shall publish in the local
vernacular in every town and village in theneighbourhood of the land comprised
therein, a proclamation

17
 (a) specifying, as nearly as possible, the situation and limits of the proposed
forest;
(b) explaining the consequences whichwill ensue on the reservation ofsuch forest;
and
(c) fixing a period of not less than three months from the date of such
proclamation, andrequiring every person claiming any right mentioned in
section 4 or section, 5 within suchperiod either to present to the Forest
Settlement-officer a written notice specifying or toappear before him and state,
the nature of such right and the amount and particulars of thecompensation (if
any) claimed in respect thereof.
 Section 11: Power to acquire land over which right is claimed – (1) In the case of a
claim to a right in or over any land, other than a right of way or right of pasture, or a
right to forest produce or a water-course, the Forest Settlement-officer shall pass an
order admitting or rejecting the same in whole or in part.
 Section 12: Order on claims to rights of pasture or to forest-produce – In the case of a
claim to rights of pasture or to forest-produce, the Forest Settlement-officer shall pass
an order admitting or rejecting the same in whole or in part
 Section 17: Appeal from order passed under section 11, section 12, section 15 or
section 16.
 Section 20: Notification declaring forest reserved
 Section 23: No right acquired over reserved forest, except as here provided: No right
of any description shall be acquired in or over a reserved forest except by succession
or under a grant or contract in writing made by or on behalf of the Government or
some person in whom such right was vested when the notification under section 20
was issued.
 Section 24: Rights not to be alienated without sanction
 Section 26: Acts prohibited in Reserved forests
 Trespass – human/ human and cattle/ cattle only.
 Fishing
 Deforestation
 Poisoning of water
 Theft/ stealing of timber
 Any damage to the trees

18
  Quarrying
 Hunting/ poaching etc.
Punishment – Imprisonment for a term which may extend to six months, or with fine
which may extend to five hundred rupees, or with both, in addition to such
compensation for damage done to the forest as the convicting Court may direct to be
paid.

Village Forest

The State Government may assign to any village-communitythe rights of Government to or

over any land which has been constituted a reserved forest, and maycancel such assignment.
All forests so assigned shall be called village-forests.

The State Government may make rules for regulating the management of village
forests,prescribing the conditions under which the community to which any such assignment
is made may beprovided with timber or other forest-produce or pasture, and their duties for
the protection andimprovement of such forest.

Protected Forests

The main difference between Protected Forest and Reserved Forest is that in Reserved Forest,
everything is prohibited unless permitted whereas in Protected Forest, everything is permitted
unless prohibited.

 Section 29: Protected forests – The State Government may, by notification in the
Official Gazette, declare any forest-land or waste-land which, is not included in a
reserved forest but which is the property of Government, or over which the
Government has proprietary rights.
The forest-land and waste-lands comprised in any such notification shall be called a
“protectedforest”.
No such notification shall be made unless the nature and extent of the rights of
Government andof private persons in or over the forest-land or waste-land comprised
therein have been inquired into andrecorded at a survey or settlement, or in such other
manner as the State Government thinks sufficient.
Provided that, if, in the case of any forest-land or waste land, the State Government
thinks that suchinquiry and record are necessary, but that they will occupy such length
of time as in the meantime toendanger the rights of Government, the State

19
 Government may, pending such inquiry and record, declaresuch land to be a protected
forest, but so as not to abridge or affect any existing rights of individuals
orcommunities.
 Section 30: Power to issue notification reserving trees, etc. – The State Government
may, by notification in the Official Gazette, declare any trees or class of trees in a
protected forest to be reserved from a date fixed by, the notification; declare that any
portion of such forest specified in the notification shall be closed for such term, rot
exceeding thirty years, as the State Government thinks fit, and that the rights of
private persons, if any, over such portion shall be suspended during such terms;
prohibit, from a date fixed as aforesaid, the quarrying of stone, or the burning of lime
or charcoal, or the collection or subjection to any manufacturing process, or removal
of, any forest-produce in any such forest, and the breaking up or clearing for
cultivation, for building, for herding cattle or for any other purpose, of any land in any
such forest.
 Section 31: Publication of translation of such notification in neighbourhood – The
Collector shall cause a translation into the local vernacular of every notification issued
under section 30 to be affixed in a conspicuous place in every town and village in the
neighbourhood of the forest comprised in the notification.
 Section 32: Power to make rules for protected forests – The State Government may
make rules to regulate various activities.
 Section 33: Penalties for acts in contravention of notification under section 30 or of
rules under section 32 – Any person who commits any of the following offences,
namely:
 fells, girdles, lops, taps or bums any tree
 contrary to any prohibition under section 30, quarries any stone, or bums any
lime orcharcoal or collects, subjects to any manufacturing process, or removes
any forest-produce;
 contrary to any prohibition under section 30, breaks up or clears for cultivation
or any otherpurpose any land in any protected forest;
 sets fire to such forest, or kindles a fire without taking all reasonable
precautions to preventits spreading to any tree reserved under section 30,
whether standing fallen or felled, or tosay closed portion of such forest;

20
  leaves burning any fire kindled by him in the vicinity of any such tree or
closed portion;
 fells any tree or drags any timber so as to damage any tree reserved as
aforesaid;
 permits cattle to damage any such tree;
 infringes any rule made under section 32,
Punishment – Imprisonment for a term which may extend to six months, or with fine
whichmay extend to five hundred rupees, or with both.

Forest Conservation Act, 1980 (FCA)

 The primary aim and objective of this Act is conservation of forests and protection
from deforestation.

Background of the Act

 The rapid decline in forest cover due to deforestation and indiscriminate felling of
trees required a reappraisal of forest policy under the Indian Forest Act.
 Requirement of a centralised forest policy was urgently felt which led to the
enactment of Forest Conservation Act.
 This Act was primarily enacted to remove the difficulties being faced under the
previous Act in dealing with large scale deforestation and conservation of forests.
 The Act has only 5 sections.

Provisions under the Forest Conservation Act

 Section 2: Restriction on the de-reservation of forests or use of forest land for non-
forest purpose – Notwithstanding anything contained in any other law for the time
beingin force in a State, no State Government or other authority shall make, except
with theprior approval of the Central Government, any order directing-
(i) that any reserved forest or any portionthereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any non-
forestpurposes;
(iii) that any forest land or any portion thereof may be assigned by way of lease of
otherwise to any private person or to any authority, corporation, agency or any
other Organisation not owned, managed or controlled by Government.

21
 (iv) that any forest land or any portion thereof may be cleared of trees which have
grown naturally in that land or portion, for the purpose of using it for
afforestation.
Explanation – For the purpose of this section “non-forest purpose” means thebreaking
or clearing of any forest land or portion thereof for-
(a) the cultivation of tea, coffee, species, rubber, palms, oil-bearing plants,
horticultural crops of medicinal plants;
(b) any purpose other than re-afforestation, but does not include any work relating
or ancillary to conservation, Development and management of forests and
wildlife, namely, the establishment of check-posts, fire lines, wireless
communications and Construction of fencing, bridges and culverts, dams,
waterholes, trench marks, boundary marks, pipelines or other like purposes.
 Section 3: Constitution of Advisory Committee by the Central Government to grant
approval under Section 2 and to advise the Central Government on any other matter
connected with the conservation of forests which may be referred to it by the Central
Government
 Section 3A: Penalty for contravention of the provisions of the Act – punishable with
simple imprisonment for a period which may extend to fifteen days.
 Section 3B: Offences by authorities and Government departments

Essential features of Section 2, FCA

 Non-obstante clause – ‘Non-obstante’ is a Latin word meaning “Notwithstanding”. It

included instruments, intended to preclude, in advance,any interpretation contrary to
certain declared objects or purposes. The clause means notwithstanding anything
contained/ in oppositionto/ in spite of/ what has been stated/ is to be stated or
admitted.
 Absolute prohibition.
 Puts a blanket ban on the use of forest land for non-forest purposes.
 Exception: The Ministry of Environment, Forest & Climate Change has issued a
circular dated 24th June, 2015 which allows the use of forest for non-forest purposes
like laying of pipelines etc.

Silent Valley Case

22
Silent valley is India’s largest tropical evergreen forest in Palakkad district of Kerala. The
area has a very high ecological and hydrological significance.

1970 – Proposal of construction of a dam in silent valley.

1979 – Construction begins

1981 – People’s protest starts

1983 – Silent Valley project was called off.

Wildlife Protection Act, 1972

The main objective of the Act is to provide for the protection of wild animals, birds and
plants and for matters connected therewith or ancillary or incidental thereto.

The Act has 7 chapters, 66 sections and 6 schedules.

Definitions u/s 2 of the Act

 “Animal” – includes amphibians, birds, mammals, and reptiles, and their young, and
also includes, in the cases of birds and reptiles, their eggs;
 “Captive animal” – means any animal, specified in Schedule 1, Schedule II, Schedule
III or Schedule IV, which is captured or kept or bred in captivity;
 “Habitat” – includes land, water, or vegetation which is the natural home of any wild
animal;
 “Livestock” – includes buffaloes, bulls, bullocks, camels, cows, donkeys, goats,
horses, mules, pigs, sheep, yak and also includes their young;
 “National Park” – means an area declared, whether under sec.35. or sec.38 or deemed,
under sub-section (3) of sec.66 to be declared, as a National Park;
 “Sanctuary” – means an area declared, whether under sec. [26(A)5 ] or sec 38, or
deemed, under sub section (3) of Sec.66 to be declared, as a wildlife sanctuary;
 “Territorial Waters” – shall have the same meaning as in Sec.3. of Territorial waters,
Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976;
 “Taxidermy” – with its grammatical variations and cognate expressions, means the
curing, preparation or preservation of trophies;

23
  “Trophy” – means the whole or any part of any captive animal or wild animal, other
than vermin, which has been kept or preserved by any means, whether artificial or
natural, and includes,
(a) rugs, skins, and specimens of such animals mounted in whole or in part
through a process of taxidermy, and
(b) antler, horn, rhinoceros’ horn, feather, nail, tooth, musk, eggs, and nests;

National Board for Wild Life (NBWL)

National Board for Wild Life is a “Statutory Organization” constituted under the Wildlife
Protection Act, 1972. Theoretically, the board is “advisory”in nature and advises the Central
Government on framing policies and measures for conservation of wildlife in the
country.However, it is a very important body because it serves as apex body to review all
wildlife-related matters and approve projects in and around nationalparks and sanctuaries.

Functions of NBWL: Primary function of the Board is to promote the conservation and
development of wildlife and forests. It has power to review all wildlife-related matters and
approve projects in and around national parks and sanctuaries.No alternation of boundaries in
national parks and wildlife sanctuaries can be done without approval of the NBWL.

State Board for Wildlife (SBWL)

On the pattern of NBWL, State Board for Wildlife is constituted. The primary function of the
Board is to advise the state government towards selection of areas to be declared as National
Parks and sanctuaries. It also advises the state government in formulation of policy of
protection of wildlife and plants specified in the Act.

Hunting of Wild animals (Sections 9, 11 and 12)

According to Section 9 of the Act, no person shall hunt any wild animal specified in
ScheduleI, II, III and IV except as provided under section 11 and section 12.

Section 11 provides that the Chief Wildlife Warden may, if he is satisfied that any wild
animal specified inSch. 1 has become dangerous to human life or is so disabled or diseased as
to bebeyond recovery, by order in writing and stating the reasons therefor, permit anyperson
to hunt such animal or cause animal to be hunted. Further, the Chief Wildlife Warden or the
authorised officer may, if he is satisfied that anywild animal specified in Sch. II Sch. III or
Sch. IV has become dangerous to humanlife or to property (including standing crops on any

24
land) or is so disabled or diseasedas to be beyond recovery, by order in writing and stating the
reasons therefor, permitany person to hunt such animal or cause such animal to be hunted.

The killing or wounding in good faith of any wild animal in defence of oneself or of anyother
person shall not be an offence provided that nothing in this sub-section shall exonerate any
person who, when suchdefence becomes necessary, was committing any act in contravention
of any provision of this Actor any rule or order made thereunder.

Any wild animal killed or wounded in defence of any person shall be Govt. property.

Section 12 provides for Grant of hunting permit for special purposes. According to this
section, it shall be lawful for the Chief Wildlife Warden, to grant a permit,by an order in
writing stating the reasons therefor, to any person, on payment of such fee as maybe
prescribed, which shall entitle the holder of such permit to hunt, subject to such conditions
asmay be specified therein, any wild animal specified in such permit, for the purpose of, –

(a) education;
(b) scientific research;
(c) scientific management; The expression, “scientific management” means
(i) translocation of any wild animal to an alternative suitable habitat; or
(ii) population management of wildlife, without killing or poisoning or
destroyingany wild animals.
(d) Collection of specimens
(i) for recognised zoos subject to the permission under section 38-1 or
(ii) for museums and similar institutions;
(e) derivation, collection or preparation of snake-venom for the manufacture of life
saving drugs

Wildlife Habitat Scheme, 2009

Integrated Development of Wildlife Habitats’ (IDWH) is an on-going Centrally Sponsored

Scheme which has been made operational by adding more components and activities to the
erstwhile Centrally Sponsored Scheme – "Assistance for the Development of National Parks
and Sanctuaries" during the 11th Plan Period. Under IDWH, the financial assistance is
provided to State/UT Governments for protection and conservation of wildlife and its habitats
in Protected Areas (PAs) as well as outside PAs and also for the recovery programmes of the
critically endangered species.

25
Components of the scheme

 Centrally Sponsored Scheme of Project Tiger (CSS-PT)

 Development of Wildlife Habitats (CSS-DWH)
 Project Elephant (CSS-PE)

Protected Areas

Protected areas are those areas notified as National Parks and Wildlife sanctuaries under the
Wildlife Protection Act. Sections 18 – 38 provide for declaration of National Parks and
sanctuaries.

Sanctuaries

Declaration of Sanctuary(Section 18 & 26A)

 Section 18 of the Act provides that the State Government may, by notification,
declare its intention to constitute any area other than area comprised with any reserve
forest or theterritorial waters as a sanctuary if it considers that such area is of adequate
ecological, faunal,floral, geomorphological, natural. or zoological significance, for the
purpose of protecting,propagating or developing wildlife or its environment. The
notification shall specify, as nearly as possible, thesituation and limits of such
area.For the purposes of this section, it shall be sufficient to describe the areaby roads,
rivers, ridges, or other well-known or readily intelligible boundaries.
 The rights within the said area is determined by the Collector and final notification of
a Sanctuary is issued by the State Government under Section 26A of the Act.

Restriction on entry in Sanctuary (Section 27)

No person other than,

(f) a public servant on duty;

(g) a person who has been permitted by the Chief Wildlife Warden or the authorised
officer to reside within the limits of the sanctuary;
(h) a person who has any right over immovable property within the limits of the
sanctuary;
(i) a person passing through the sanctuary along a public highway, and

26
 (j) the dependents of the person referred to in CI. (a), (b) or (c).

shall enter or reside in the sanctuary, except under and in accordance with the conditions of
apermit granted under section 28.

Every person shall, so long as he resides in the sanctuary, be bound

(a) to prevent the commission, in the sanctuary, or an offence against this Act;
(b) where there is reason to believe that any such offence against this Act has been
committed in such sanctuary, to help in discovering and arresting the offender;
(c) to report the death of any wild animal and to safeguard its remains until the Chief
Wildlife Warden or the authorised officer takes charge thereof;
(d) to extinguish any fire in such sanctuary of which he has knowledge or information
and to prevent from spreading by any lawful means in his power, any fire within the
vicinity of such sanctuary of which he has knowledge or information; and
(e) to assist any forest officer, Chief Wildlife Warden, Wildlife Warden or police officer
demanding his aid for preventing the commission of any offence against this Act or in
the investigation of any such offence.

Grant of permit to enter or reside in a Sanctuary (Section 28)

The Chief Wildlife Warden may, on application, grant to anyperson a permit to enter or
reside in a sanctuary for all or any of the following purposes, namely:

(a) investigation or study of wildlife and purposes ancillary or incidental thereto;

(b) photography;
(c) scientific research;
(d) tourism;
(e) transaction of lawful business with any person residing in the sanctuary.

National Parks

Declaration of National Parks (Section 35)

 According to Section 35 of the Act, whenever it appears to the State Government that
an area, whether within a sanctuary or not, is, by reason of its ecological, faunal,
floral, geomorphological, or zoological association or importance, needed to be
constituted as a National Park for the purpose of protecting & propagating or

27
 developing wildlife therein or its environment, it may, by notification, declare its
intention to constitute such area as a National Park.
 The notification shall define the limits of the area which is intended to be declared as
a National Park

Difference between Wildlife Sanctuary and National Park

Basis of Wildlife Sanctuary National Park

comparison
Meaning Wildlife Sanctuary, is a natural National park is the protected
habitat, owned by the government, area, which are established by the
that safeguards particular species of government, to conserve wildlife
birds and animals. and also develop them.
Preserves Animals, birds, insects, reptiles, etc. Flora, fauna, landscape, historic
objects, etc.
Objective To make sure that viable population To protect the natural and historic
of the wildlife and their habitats are objects and wildlife of an area.
maintained.
Restriction Restrictions are less and it is open to Highly restricted, random access
public. to people is not allowed.
Boundaries Not fixed Fixed by legislation
Human Allowed but up to a certain extent. Not allowed at all.
activity

Prevention and Detection of Offences (Section 50 – 58)

Section 50 - Power of entry, search, arrest and detention

28
Section 51 – Penalties – Any person who contravenes any provisions of this Act or any rule
or order made thereunder or who commits a breach ofany of the conditions of any licence or
permit granted under this Act, shall be guilty of an offenceagainst this Act, and shall, on
conviction, be punishable with imprisonment for a term which mayextend to three years or
with fine which may extend to25000 rupees or withboth.

Offense by Companies (Section 58)

Where an offence against this Act has been committed bya company, every person who, at
the time the offence was committed, was in charge of, and wasresponsible to, the company
for the conduct of the business of the company as well as thecompany, shall be deemed to be
guilty of the offence and shall be liable to be proceeded againstand punished accordingly.

MODULE 3: INTERNATIONAL ENVIRONMENTAL LAW

 International environmental law is a comparatively new branch of international law. It

has expanded dramatically over the years particularly since the United Nations
Conference on the Human Environment, 1972. The development of international
environmental law has produced mixed results.
 Some of the issues which are most relevant in the international perspective are:
 Rules governing the exploitation of certain natural resources;
 Trans boundary damages;
 Use of shared water courses etc.

Bering Sea Fur Seals Arbitration, 1893 (USA vs. UK)

The Bering Sea Arbitration of 1893 arose out of a fishery dispute between the United
Kingdom and the United States in the 1880s. The Arbitration concerned the rights of States to
adopt regulations to conserve fur seals in areas beyond their national jurisdiction in light of
threat of extinction of the pacific stock of fur seals.

Background

 1867 – Russia cede to US all territory and dominion in the continent of North
America (Alaska) and the adjacent islands.

29
  1868 – The US Govt. enacted a series of laws prohibiting any person under penalty or
fine & imprisonment for killing the fur seals within the limits of Bering Sea and the
adjacent waters.
 1886 – The US Coastguard seized Sealing Schooners (Sealing means hunting of seals
and schooner means sailing ship) flying the British flag in open sea area of the Bering
sea.
 The act of seizing the sailing ships was protested by the UK.
UK’s argument: This was a violation of the admitted principles of international law,
requesting reasonable reparation.
USA’s argument: The right to prescribe and enforce sealing regulations within the
whole of Bering Sea lies with US on the basis of the fact that Russia ceded to US all
territory in the continent of America and the adjacent islands without having been
challenged by other states, least of all by UK.

Points of Contention

 Concerning the jurisdictional rights of the US in the waters of the Bering Sea, and
 Concerning also the preservation of fur seals.
 Has the USA got any right and if so, what right of protection or property in fur seals
frequenting the islands of the US in Bering Sea, when such seals are found outside the
ordinary 3 mile limit?

Arguments of the States

USA UK
The existence in international law of the The existence of well established and
principle of Protective Jurisdiction which positive rules of international law could
gave the US the right to protect the fur seal have justified the restriction of the freedom
property. of all states to harvest the fruits / benefits
from the high sea.
Right to protect the seals in the name of an Russian rights of exclusive jurisdiction in
alleged trust conferred by mankind. the Bering sea had not been recognized
either by Great Britain/ UK or the US.
With the Alaska Treaty, the US had not

30
 acquired jurisdictional rights outside those
recognized by international law.

The Award (Decision)

 The US had no right of protection or property in the fur seals frequenting the islands
of the US in the Bering Sea, when such seals are found outside the ordinary 3 mile
limit.
 The Tribunal rejected the American stand; the Award sanctioned the freedom of the
UK to pursue, hunt and kill fur seals anywhere in the Pacific beyond the 3 mile zone
around the US territory.
 The arbitrators adopted Regulations for the protection and preservation of fur seals
outside the jurisdictional limits.
 The Regulations included elements recognizable in modern international law
including rules:
(a) establishing closed season for hunting of fur seals;
(b) limiting the methods and means of hunting.

Aftermath

 The Pacific fur seal Arbitration endorsed the principle of freedom of fishing on the
high seas.
 Coastal States do not have jurisdiction over the marine living resources of the high
seas.
 The flag state (i.e. the state under whose laws a vessel is registered) has jurisdiction to
prescribe legislation for the conservation of these marine resources and to enforce
such legislations.

The Pacific Fur Seal Arbitration was followed by:

(a) Treaty for the Preservation and Protection of Fur Seals (1911)
(b) Provisional Fur Seal Treaty (1942)
(c) Interim Convention on the Conservation of North Pacific Fur Seals (1957)

These treaties introduced some innovative principles:

(a) Quantitative limits on the number of seals that could be taken.

31
 (b) A commitment to transfer by way of compensation a number of seals between the
various parties.
(c) A permanent institution namely “The North Pacific Seal Commission” was created to
coordinate scientific research and to make recommendations to the contracting
parties.

Trail Smelter Arbitration (USA vs. Canada)

The Trail Smelter dispute was a trans-boundary pollution case involving the federal
governments of both Canada and the United States, which eventually contributed to
establishing the harm principle in the environmental law of transboundary pollution.

Facts

In 1935, a Canadian Corporation (defendant) owned a smelter plant which emitted hazardous
fumes (including Sulphur dioxide). This caused damages to plant life, forest trees, soil and
crop yields across the border in Washington State in the USA. This led to the USA filing a
suit against the Canadian company with an injunction against further air pollution by the trail
smelter.

Synopsis of the rule

The duty to protect other states against harmful acts by individuals from within its
jurisdiction at all times.

Issue

Is it the responsibility of the State to protect other states against harmful acts by individuals
from within its jurisdiction at all times?

Judgment

Yes, it is the responsibility of the State to protect other states against harmful acts by
individuals from within its jurisdiction at all times.

No State has the right to use or permit the use of its territory in a manner as to cause injury by
fumes in or to the territory of another or the properties or persons therein as stipulated under
the US laws and the principle of international law.
32
Conclusion

 By looking at the facts of the case, the Arbitrators held that Canada (defendant) is
responsible, under the international law, for conduct of the Trail Smelter company.
Hence, the onus lies on the Canadian Govt. to see to it that Trail Smelter’s conduct is
in line with the obligations of Canada as it has been confirmed by international law.
 The Trail Smelter co. will therefore be stopped from causing any further damage
through fumes as long as the present conditions of air pollution exist in Washington.
 In pursuance to the convention (agreement) between the two nations, the indemnity
for damages should be determined by both governments.

The Lake LanouxArbitration (Spain vs. France)

Facts

 The Arbitration concerned the use of the waters of lake Lanoux which lies in the
southern slopes of the Pyrenees (a mountain range between France and Spain) on
French territory. The lake is fed by streams which have their source in the French
territory.
 France planned to construct a reservoir for the purpose of producing electricity at
Lake Lanoux.
 A river running downstream from the lake led into Spain.
 In order to alleviate any water loss that Spain might suffer, as a result of the reservoir
construction, France offered to build an underground tunnel and to supply water
through the tunnel from other sources, the volume of water being the same that would
be used in the reservoir plan.
 Spain challenged the reservoir plan arguing that it violated the previously agreed
Treaty between both the countries [Treaty of Bayonne, 1856], according to which
France could not begin the kind of construction which it planned without a previous
agreement to that effect.
 The Arbitral Tribunal was set up by France and Spain to address the issue.

The Issue

 Whether the measures taken by France are creating a diversion of the water of a river
tributary leading to affecting the water flow available to Spain?
 Whether this action of France leads to a breach of international law?

33
Judgment

 The Tribunal rejected the claim of Spain noting that, among other things, French
scheme will not alter the waters of river flowing into Spain.
 In fact, states are today perfectly conscious of the importance of conflicting interests
brought into play by the industrial use of international rivers and the necessity to
reconcile them by mutual concessions.

Conclusion

It is admitted that there is a principle which prohibits the upstream State from altering the
waters of a river in such a fashion as to prejudice the downstream State. Such principle would
have no application in the present case.

Epilogue of three cases cited above

These three milestone cases illustrate the existence of international instruments, even prior to
1960s, regulating matters that are described today as falling within environmental sphere.

Stockholm Declaration (1972)

Background Information

International guidelines for protecting the environment have been laid down under a host of
legally non-binding international instruments adopted by UN conferences or bodies. The
principal one is Stockholm Declaration passed by the United Nations Conference on the
Human Environment, 1972.

This declaration may rightly be reckoned as the first major attempt to solve the global
problems regarding conservation and regulation of the human environment on the universal
level by an international agreement.

In the conference, 113 states had participated including India. India has accepted the
declaration.

4 main goals of the Conference

(1) To agree to a declaration on the human environment;

(2) An Action Plan;
(3) To discuss the formulation of an Environmental Fund; and
(4) To consider creating a new environmental institution.

34
Issues under discussion in the Conference

(1) Problems and management of human settlement.

(2) Natural resource management.
(3) Pollution control measures.
(4) Social and cultural aspects of environmental issues.
(5) Development and its relation to environment.

Important Principles laid down by the Stockholm Declaration

(1) Man has the fundamental right to freedom, equality and adequate conditions of life in
environment that permits a life of dignity and well-being. He bears the responsibility
to protect and improve the environment for present and future generations (Inter-
generation and Intra-generation).
(2) The natural resources of the earth including the air, water, land, flora, fauna, and
especiallyrepresentative samples of natural resources must be safeguarded for the
present and future generations through careful planning and management, as
necessary. [Fur seals case & Lake Lanoux case].
(3) The capacity of the earth to produce the vital renewable resources must be maintained
and wherever possible restored or improved.
(4) The heritage of wildlife and its habitat should be safeguarded.
(5) Principle 6: Pollution Control – The discharge of toxic substance or the release of
heat exceeding the capacity of the environment must be halted in order to ensure that
serious/ irreversible damage is not inflicted upon ecosystems. [Trail Smelter case &
Oleum gas leak case]
(6) Principle 7: Prevention of Pollution of Seas - States shall take all possible steps to
prevent the pollution of the seas by substances which are liable to create hazards to
human health, living resources, marine life or interfere with the legitimate uses of sea.
(7) Principle 8: Economic and Social Development – Economic and social
development is essential for ensuring a favourable living and working environment
for man and for the improvement of the quality of life.
(8) States should adopt an integrated and coordinated approach to their development
planning.
(9) Education in environmental matters is essential and mass media should help in this.

35
 (10) Principle 20: Further Scientific Research – Scientific research and development in
the context of environmental problems must be promoted in all countries, especially
developing countries.
(11) Principle 21: Rights and Responsibility of Sovereign Nation – States have the
sovereign right to exploit their own resources pursuant to their own environmental
policies, and the responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment of other States or of the areas beyond
the limits of their jurisdiction– State Responsibility for transboundary harm – Trail
Smelter Case.

Drawbacks/ Barriers to the Principle 21

This principle remains one of the core principles of international environmental law. It
continues to furnish an useful ground rule for international environmental relations. However,
there are a few limitations to this. The three factors that showcase the barriers to application
of this principle:

(A) The Principle 21 balances competing contemporary interests and thus cannot capture
the potential inter-temporal impacts of state’s activities.
(B) Given its focus on transboundary pollution, the principle 21 is largely bilateral in
outlook.
(C) Dilemma and practical problems of applying principle 21 in the face of serious
capacity problems on the part of developing countries creates lot of difficulties in its
application.

These three factors suggest only some barriers to applying the Principle 21 to the global
concerns such as ozone depletion, climate change, loss of biodiversity etc.

Rio Declaration (1992)

 The second major global conference on the environment – United Nations Conference
on Environment and Development (UNCED or the Rio Conference)took place in Rio
de Janeiro in 1992.
 The Rio Conference produced five documents setting out the international agenda for
sustainable development for the twenty-first century. They are:
1. Rio Declaration on Environment and Development, a non-legally binding
document containing key principles to guide international action;

36
 2. Agenda 21, an ambitious plan of measures and actions to concretely promote
sustainable development;
3. United Nations Framework Convention on Climate Change;
4. Convention on Biological Diversity; and
5. Non-Legally Binding Authoritative Statement of Principles for a Global
Consensus on the Management, Conservation and Sustainable Development of
all Types of Forests (Rio Forest Principles).
 The Rio Declaration enunciated 27 principles.
 Principle 15: 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 certainty shall not be used as a
reason for postponing cost-effective measures to prevent environmental degradation.
Thus, the Precautionary Principle has been incorporated in Principle 15 of the Rio
Declaration.
 Principle 16: National authorities should endeavour to promote the internalization of
environmental costs and the use of economic instruments, taking into account the
approach that the polluter should, in principle, bear the cost of pollution, with due
regard to the public interest and without distorting international trade and investment.
Thus, the “Polluter Pays Principle” has been adopted in Principle 16 of the Rio
Declaration.
 Principle 24: Warfare is inherently destructive of sustainable development. States
shall therefore respect international law providing protection for the environment in
times of armed conflict and cooperate in its further development, as necessary.

Difference between Stockholm Declaration and Rio Declaration

Stockholm Declaration Rio Declaration

passed by the United Nations Conference on Passed by the United Nations Conference on
the Human Environment. Environment and Development (UNCED)
Passed in 1972 Passed in 1992
Passed at Stockholm (Sweden) Passed at Rio de Janeiro (Brazil)
Contains 26 principles Contains 27 principles
Legally not binding Legally not binding
Main outcomes: Main outcomes:

37
 (i) Legal and policy outcomes on (i) Legal and policy outcomes on
the human and environment the environment and
interactions. (Stockholm development (Rio Declaration)
Declaration) (ii) Institutional Innovations –United
(ii) Action Plan Nations Framework Convention
(iii) Institutional Innovations – on Climate Change
United Nation Environment (UNFCC);Convention on
Programme (UNEP) was Biological Diversity (CBD)
created.

United Nations Framework Convention on Climate Change (UNFCCC)

 The UNFCCC is the principal international legal instrument adopted by states to

address climate change. The international treaty was negotiated at the United Nations
Conference on Environment and Development (UNCED), also called the ‘Earth
Summit’, in Rio de Janeiro in June 1992.
 The effort by the countries was to cooperatively consider options to limit average
global temperature increases and the resulting climate change, and to cope with the
impacts of climate change.
 The UNFCC was adopted in 1992; it contains 26 Articles.
 154 nations signed the Treaty.
 UNFCC provides an overall framework for Intergovernmental efforts to address
climate change globally.
 Article 1: Definition of Climate Change – Climate change has been defined by the
Convention as “change of climate which is attributed directly or indirectly to human
activity that alters the composition of the global atmosphere and which is in addition
to natural climate variability observed over comparable time periods”.
 Article 2: Objective of the Treaty – The ultimate objective of the treaty is to
stabilize greenhouse gas concentrations in the atmosphere at a level that would
prevent dangerous anthropogenic interference with the climate system”.
 Article 3: This is the most important Article of the Convention which contains the
general principles of the Convention The principles specified in Article 3 are as
follows:

38
  The principle of equity;
 The principle of common but differentiated responsibilities;
 The precautionary principle;
 Principle of Cost-effectiveness; and
 The Principle to promote sustainable development.
The Principle of Equity: Parties “should protect the climate system for the benefit of
present and future generations”. This should be done “on the basis of equity”
The Principle of common and differentiated responsibilities: Parties should protect
the climate system in accordance with their “common but differentiated
responsibilities and respective capabilities”. The developed country Parties shall have
higher burden than developing countries, which are more vulnerable to adverse
effects of climate change.Further, the Convention highlights “specific needs and
special circumstances” of two sets of Parties: developing countries and developed
countries, that “would have to bear a disproportionate or abnormal burden under the
Convention”.
The precautionary principle: The Convention calls for precaution in addressing
climate change, so that lack of full scientific certainty should not be a reason for
postponing action “where there are threats of serious or irreversible damage”.
The Principle of Cost-effectiveness: Precaution should take into account cost-
effectiveness ensuring “global benefits at the lowest possible cost”. The Convention
goes on to support a “comprehensive” approach in addressing climate change,
covering all sources, sinks, sectors, and adaptation, and acknowledges that efforts to
address climate change may be “carried out cooperatively”.
The Principle of Sustainable Development: Parties have a right to, and should,
promote sustainable development”.
 Article 4:Commitments – Under this Article, all Parties make general commitments
to address climate change as follows:
 To prepare and regularly update national climate mitigation and adaptation
programmes.
 Mandatory participation of all parties in climate research, systematic
observation and information exchange.
 To promote education, training and public awareness relating to climate
change.

39
  All parties need to compile an inventory of their green house gases emission
and submit reports.
 Article 17: Protocol – It simply says that:
 the text of any proposed protocol must be communicated to Parties at least six
months before the session when it is due to be adopted,
 only UNFCCC Parties can be Parties to a protocol, and
 decisions under any protocol shall be taken only by the Parties to the protocol.
 Requirements for its entry into force are left up to the protocol itself.

Framework Convention Organs and Institutions

(1) Conference of Parties (COP)

(2) Subsidiary Body for Scientific and Technological Advice (SBSTA)
(3) Subsidiary Body for Implementation (SBI)
(4) Convention Secretariat
(5) Global Environment Facility (GEF)
(6) Inter-Governmental Panel on Climate Change (IPCC)

Kyoto Protocol (1997)

 In 1995, countries launched further negotiations to strengthen the global response to

climate change after it was realized that the emissions reduction provisions in the
UNFCC were inadequate since the Convention itself neither set mandatory limits on
GHG emissions for countries nor contain any enforcement mechanisms. The
Convention, in essence, was considered to be legally non-binding.
 However, Article 17 of the UNFCC provided for the adoption of protocols to the
Convention. This led countries to adopt the Kyoto Protocol to the UNFCCC in 1997.
 The Protocol is based on “common but differentiated responsibilities” principle.
 The major distinction between the Protocol and the Convention is that while the
Convention encouraged industrialised countries to stabilize GHG emissions, the
Protocol commits them to do so.
 The Kyoto Protocol is an international treaty that legally binds developed country
Parties or Annex I Parties to reduce GHG emissions but contains no binding
emissions reduction commitments for non-Annex I Parties. The Protocol essentially
“operationalized” the Convention, as it committed industrialized countries to stabilize

40
 GHG emissions based on the principles of the Convention, whereas the Convention
itself only encouraged countries to do so.

Objective of Kyoto Protocol

 To fight global warming by reducing green house gas emissions below dangerous
levels.

Mechanisms under Kyoto Protocol

International Emissions Trading (IET)

 Parties with commitments under the Kyoto Protocol have accepted targets for limiting
or reducing emissions. These targets are expressed as levels of allowed emissions, or
“assigned amounts,”
 Article 17 of the Protocol envisages emissions trading, and allows countries that have
emission units to spare i.e. emissions permitted for them but not “used”, to sell this
excess capacity to countries that are over their targets.
 Thus, a new commodity was created in the form of emission reductions or removals.
Since carbon dioxide is the principal greenhouse gas, people speak simply of trading
in carbon. Carbon is now tracked and traded like any other commodity. This is known
as the “carbon market”.
 Thus, the IET allows industrialized countries to trade their surplus credits on the
international carbon credit market.

Clean Development Mechanism (CDM)

 CDM is the Flexibility Mechanism that involves only developing countries.

 Designed to provide developed countries with flexibility to meet GHG emission
reduction targets that they agreed to achieve under the Protocol.
 Developed countries may finance GHG emission reducing (avoiding) projects
undertaken in developing countries and receive credits to help them meet their
mandatory limits.
 Assists developing countries who host CDM projects to achieve sustainable
development.

Joint Implementation

41
  Allows an Annex. I country (developed countries) to claim credits for emissions
reductions that arise from investment in another Annex. I country.
 Joint implementation offers Parties a flexible and cost-efficient means of fulfilling a
part of their Kyoto commitments, while the host Party benefits from foreign
investment and technology transfer.

India’s initiatives

 Signatory to UNFCC.
 Ratified Kyoto Protocol.
 Prepared National Action Plan on Climate Change.
 National Solar Mission.
 National Mission for Enhanced Energy Efficiency.
 Strategic Mission on Climate Change.
 Green India Mission

Relation between Trade and Environment

Sustainable development and protection and preservation of the environment are fundamental
goals of the WTO (World Trade Organization). They are enshrined in the Marrakesh
Agreement, which established the WTO, and complement the WTO’s objective to reduce
trade barriers and eliminate discriminatory treatment in international trade relations. While
there is no specific agreement dealing with the environment, under WTO rules members can
adopt trade-related measures aimed at protecting the environment provided a number of
conditions to avoid the misuse of such measures for protectionist ends are fulfilled.

The WTO contributes to the protection and preservation of the environment through its
objective of ensuring sustainable development and avoiding protectionism, through its rules
and enforcement mechanism, and through work in different WTO bodies.

US Shrimp case (India etc. vs. US)

 In 1997, India, Malaysia, Pakistan and Thailand brought a joint complaint against a
ban imposed by the US on the importation of certain shrimp and shrimp products. The
protection of sea turtles was at the heart of the ban.

42
  The US Endangered Species Act of 1973 listed as endangered or threatened the five
species of sea turtles that occur in US waters, and prohibited their
hunting/capturing/killing within the US, in its territorial sea and the high seas.
 Under the said Act, the US required that US shrimp trawlers use “turtle excluder
devices” (TEDs) in their nets when fishing in areas where there is a significant
likelihood of encountering sea turtles.
 US Public Law of 1989 dealt with imports. It said, among other things, that shrimp
harvested with technology that may adversely affect certain sea turtles may not be
imported into the US.
 In practice, countries that had any of the five species of sea turtles within their
jurisdiction,and harvested shrimp with mechanical means, had to impose on their
fishermen requirements comparable to those borne by US shrimpers if they wanted to
be certified to export shrimp products to the US. Essentially this meant the use of
TEDs at all time.
 The US lost the case, not because it sought to protect the environment but because it
discriminated between WTO members. It provided countries in the western
hemisphere — mainly in the Caribbean — technical and financial assistance and
longer transition periods for their fishermen to start using turtle-excluder devices.
 It did not give the same advantages, however, to the four Asian countries (India,
Malaysia, Pakistan and Thailand) that filed the complaint with the WTO.

MODULE 4: WATER POLLUTION AND AIR POLLUTION

The Water (Prevention and Control) Act, 1974

Objectives of the Act

 Prevention, control and abatement of water pollution.

 Maintenance or restoration of the wholesomeness of water.
 To assess pollution levels and punish polluters.
 To confer some powers to the established bodies such as the central board and the
state board to control pollution of the water bodies.

43
Meaning of Water Pollution, Causes and Effects

According to Section 2 (e) of the Act “pollution” means any contamination ofwater or
alteration of the physical, chemical and biological properties of water or disposing of any
sewage waste inwater which is likely to cause nuisance or renders such water to be harmful to
public health or safety or to domestic,industrial or other legitimate use or harmful to the life
and health of the animals and aquatic plants.

Various Causes of Water Pollution

 Industrial waste
 Sewage and wastewater
 Mining activities
 Marine dumping
 Accidental oil leakage
 The burning of fossil fuels
 Chemical fertilizers and pesticides used in farming
 Leakage from sewer lines
 Global warming
 Radioactive waste
 Urban development
 Leakage from the landfills
 Animal waste

Agencies for controlling Water Pollution

1. Central Board – Central Pollution Control Board (CPCB)

2. State Board – State Pollution Control Board (SPCB)

Constitution and Composition of the Central Pollution Control Board (Section 3)

The Central Government through a notice in the official gazette has the power to assign or set
up a Central Board named as Central Pollution Control Board. As far as the composition of
the board is concerned the Central Board is to contain the following members:

1. A chairman who has the knowledge or has practical experience in dealing with cases
relating to environmental protection. The chairman is to be appointed by the central
government only.

44
 2. Not more than 5 officials to represent the central government.
3. Not more than 5 members to be nominated by the central government from the
members of the State Boards.
4. Maximum 3 members appointed by the central government to represent the interests
of agriculture,fisheries, trade or any other interest as the government may seem fit.
5. 2 persons to represent the companies or corporations owned, controlled or by the
central government.
6. A full-time member secretary having complete knowledge, experience and
qualification of scientificmanagement and prevention of environmental pollution.

Functions of Central Board (Section 16)

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

Constitution and Composition of State Pollution Control Boards (Section 4)

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

1. A Chairman who either has the knowledge or some experience in dealing with cases
relating to environmental pollution.
2. Not more than 5 members appointed by the state government to represent the
government.

45
 3. Not more than 2 persons by the state government who are functioning as members of
the local authorities within the state
4. Not more than 3 persons nominated by the state government to represent the interest
of fisheries, agriculture, trade and any other interest as the government may seem fit.
5. 2 persons from companies, corporations which are either controlled, owned or
managed by the state.
6. A member secretary who has the knowledge, qualifications, and experience in dealing
with cases pertaining to environmental pollution.

Functions of State Board (Section 17)

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

Powers of The State Boards

 According to Section 19 of the Act, the state board has the power to limit the
territorial jurisdiction of any order passed by it in matters relating to prevention and
controlling water pollution. This means that the orders passed by the state board will
only apply in the areas that are affected by water pollution. It is up to the state board
to determine which area is to be declared water polluted and which is not, this can be

46
 done by making reference to amap or making reference to a line of any watershed or
the boundary of any district.
 According to Section 20 of the Act, the state board also has the power to inspect any
land, conduct surveys or gaugein an area if it thinks fit for controlling or preventing
water pollution. It can also ask any company, industry tofurnish any information
pertaining to the construction, installation, and operation of its establishment.
 Section 21of the Act empowers the state board or any employee on its behalf to
analyse samples of water from any stream or well for the purpose ofpreventing and
controlling water purpose.
 According to Section 25, no person is allowed toset up an industry or start a new
operation or processor to any treatment of sewage without prior approval of thestate
board, the state board may grant him a notice of approval and only after that he is
entitled to continue or start anew business.If a person starts a new operation before
prior approval of the board, the board may impose any conditions as it maythink fit
for not obtaining notice of approval.
 Section 27 of the Act gives power to the state board not to grant its consent for setting
up an industry or continuation of an existing operation. If the company has been
grantedpermission with some conditions attached, the state board has the power to
review those conditions which it attachedbefore giving the notice of approval.

Penalties and Punishment under the Water Act

Section 45 of the Water Act provides that whoever contravenes any of the provisions of this
Act or fails to comply with any order or direction given under this Act, for which no penalty
has been elsewhere provided in this Act, shall be punishable with imprisonment which may
extend to three monthsor with fine which may extend to ten thousand rupees or with both,
and in the case of a continuing contravention or failure, with an additional fine which may
extend to five thousand rupees for every day during which such contravention or failure
continues after conviction for the first such contravention or failure.

Air (Prevention and Control of Pollution) Act, 1981

Objectives of the Act

 To provide for the prevention, control and abatement of air pollution.

47
  To provide for the establishment of central and State Boards with a view to implement
the Act.
 To confer on the Boards the powers to implement the provisions of the Act and assign
to the Boards functions relating to pollution.

Meaning of Air Pollution and Air Pollutant

 According to Section 2 (a) of the Act, “Air pollutant” means any solid, liquid or
gaseous substance (including noise) present in the atmosphere in such concentration
as may be or tend to be injurious to human beings or other living creatures or plants or
property or environment;
 According to Section 2(b) of the Act, “Air pollution” means the presence in the
atmosphere of any air pollutant.

Various causes of Air Pollution

 The burning of fossil fuels

 Agricultural activities
 Exhaust from factories and industries
 Mining operations
 Indoor air pollution

Disastrous Effects of Air Pollution

 Respiratory and heart problems

 Global warming
 Acid rain
 Eutrophication – A condition where a high amount of nitrogen present in some air
pollutants gets developed on sea’s surface and turns itself into algae and adversely
affect fish, plants and animal species. The green coloured algae that are present on
lakes and ponds is due to the presence of this chemical only.
 Effect on wildlife
 Depletion of the ozone layer

Constitution and Composition of Central Board and State Boards

 Constitution and Composition of State Board and Central Board is same as that of
Water (Prevention and Control) Act, 1974. (Sections 3 & 4)
48
  Central Board to exercise the powers and perform the functions of a State Board in
the Union territories. (Section 6)

Functions of the Central Board (Section 16)

 To improve the quality of air and to prevent, control or abate air pollution in the
country.
 To advise the Central Government on any matter concerning the improvement of the
quality of air and the prevention, control or abatement of air pollution;
 To plan and cause to be executed a nation-wide programme for the prevention, control
or abatement of air pollution;
 To co-ordinate the activities of the State and resolve disputes among them;
 To provide technical assistance and guidance to the State Boards, carry out and
sponsor investigations and research relating to problems of air pollution and
prevention, control or abatement of air pollution;
 To plan and organise the training of persons engaged or to be engaged in programmes
for the prevention, control or abatement of air pollution on such terms and conditions
as the Central Board may specify;
 To organise through mass media a comprehensive programme regarding the
prevention, control or abatement of air pollution;
 To collect, compile and publish technical and statistical data relating to air pollution
and the measures devised for its effective prevention, control or abatement and
prepare manuals, codes or guides relating to prevention, control or abatement of air
pollution;
 To lay down standards for the quality of air, ix. collect and disseminate information in
respect of matters relating to air pollution;
 To perform such other functions as may be prescribed.

Functions of State Board (Section 17)

 To plan a comprehensive programme for the prevention, control or abatement of air

pollution and to secure the execution thereof;
 To advise the State Government on any matter concerning the prevention, control or
abatement of air pollution;

49
  To collect and disseminate information relating to air pollution;
 To collaborate with the Central Board in organising the training of persons engaged or
to be engaged in programmes relating to prevention, control or abatement of air
pollution and to organise mass-education programme relating thereto;
 To inspect, at all reasonable times, any control equipment, industrial plant or
manufacturing process and to give, by order, such directions to such persons as it may
consider necessary to take steps for the prevention, control or abatement of air
pollution;
 To inspect air pollution control areas at such intervals as it may think necessary,
assess the quality of air therein and take steps for the prevention, control or abatement
of air pollution in such areas;
 To lay down, in consultation with the Central Board and having regard to the
standards for the quality of air laid down by the Central Board, standards for emission
of air pollutants into the atmosphere from industrial plants and automobiles or for the
discharge of any air pollutant into the atmosphere from any other source whatsoever
not being a ship or an aircraft.

Offences and Liabilities of Companies (Sec 38, 39 and 40)

 The persons managing industry are to be penalized if they produce emissions of air
pollutants in excess of the standards laid down by the State Board. The Board also
makes applications to the court for restraining persons causing air pollution.
 Whoever contravenes any of the provision of the Act or any order or direction issued
is punishable with imprisonment for a term which may extend to three months or with
a fine of Rs. 10,000 or with both, and in case of continuing offence with an additional
fine which may extend to Rs 5,000 for every day during which such contravention
continues after conviction for the first contravention.

Future Usage of Alternative Energy

 Alternative energy is energy that does not come from fossil fuels, and thus produces
little or no greenhouse gases like carbon dioxide (CO2). This means that energy
produced from alternative sources does not contribute to the greenhouse effect that
causes climate change.
 These energy sources are referred to as “alternative” because they represent the
alternative to coal, oil, and natural gas, which have been the most common sources of

50
 energy since the Industrial Revolution. These fossil fuels emit high levels of CO2
when burned to produce energy and electricity. Alternative energy, however, should
not be confused with renewable energy, although many renewable energy sources can
also be considered alternative. Solar power, for example, is both renewable and
alternative because it will always be abundant and it emits no greenhouse gases.
Nuclear power, however, is alternative but not renewable, since it uses uranium, a
finite resource.

Types of Alternative energy sources

 Hydropower: For centuries, people have harnessed the energy of river currents, using
dams to control water flow. Hydropower is the world's biggest source of renewable
energy by far, with China, Brazil,Canada, the U.S., and Russia, the leading
hydropower producers. While hydropower is theoretically a cleanenergy source
replenished by rain and snow, it also has several drawbacks. Large dams can disrupt
riverecosystems and surrounding communities, harming wildlife and displacing
residents. Drought can alsocause problems.
 Wind: Harnessing the wind as a source of energy started more than 7,000 years ago.
Now, electricity generating wind turbines are proliferating around the globe, and
China, the U.S., and Germany are the leading wind energy producers. One problem
with wind turbines is that they’re a danger for birds and bats, killing hundreds of
thousands annually.
 Solar: From home rooftops to utility-scale farms, solar power is reshaping energy
markets around the world. In addition to solar panels, which convert the sun's light to
electricity, concentrating solar power (CSP) plants use mirrors to concentrate the sun's
heat, deriving thermal energy instead. China, Japan, and the U.S. are leading the solar
transformation, but solar still has a long way to go. Solar thermal energy is also being
used worldwide for hot water, heating, and cooling.
 Biomass: Biomass energy includes biofuels such as ethanol and biodiesel, wood and
wood waste, biogas from landfills, and municipal solid waste. Like solar power,
biomass is a flexible energy source, able to fuel vehicles, heat buildings, and produce
electricity. But biomass can raise thorny issues.
 Geothermal: Used for thousands of years in some countries for cooking and heating,
geothermal energy is derived from the Earth’s internal heat. On a large scale,
underground reservoirs of steam and hot water can be tapped through wells that can

51
 go a mile deep or more to generate electricity. On a smaller scale, some buildings
have geothermal heat pumps that use temperature differences several feet below
ground for heating and cooling. Unlike solar and wind energy, geothermal energy is
always available, but it has side effects that need to be managed, such as the rotten
egg smell that can accompany released hydrogen sulphide.

MODULE 5: ENVIRONMENTAL PROTECTION

The Environmental Protection Act 1986 (EPA)

Background

 India being a signatory to the Stockholm Declaration, 1972 was committed to bring
legislative framework for prevention and control of environment. Consequently, the
Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and
Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 were
enacted by the Parliament.

Objective

1. To implement the decisions taken by the member States (including India) in

Stockholm Declaration, 1972 on Human Environment;
2. To enact general law on environment protection which covers gaps in the area of
major environmental hazards;
3. To coordinate activities of various regulatory bodies and agencies under the existing
laws and creation of an authority or authorities for protection and improvement of
environment and abatement of environmental pollution
4. To provide deterrent punishment to those who endanger human environment, safety
and health.

Meaning of “Environment”, “Environment Pollution” and Environmental Pollutant”

 The term “environment” has been defined to include within it, water, air and land and
the inter-relationship which exists among and between water, air and land and human
beings, other living creatures, plants, micro-organisms and property. [Section 2 (a) of
the Environment Protection Act, 1986].

52
  The term “environmental pollutant” means any solid, liquid or gaseous substance
present in such concentration as may be, or tend to be, injurious to environment.
[Section 2 (b) of the Environment (Protection) Act]
 The expression “environmental pollution” means the presence in the environment,
ofany environmental pollutant. [Section 2 (c) of the Environment (Protection) Act]
 Thus, Environmental pollution is any discharge of material into water, air or land that
causes ormay cause acute short-term or long-term detriment to the earth’s ecological
balance or that lowers thequality of life. These pollutants may cause primary damage
with direct identifiable impact on theenvironment, or secondary damage in the form
of minor perturbations in the delicate balance of thebiological food that are detectable
only over long time periods. These have threatening effect on humanlife and other
living organisms.
 As defined under 2(b) of the Act, ‘environment pollutant’ means any solid, liquid or
gaseous substancepresent in such concentration as may be, or tend to be, injurious to
environment. Some of the pollutantsubstances in various forms may be:
 Solid Pollutants – these include pesticide, rodenticides, garbage, household
waste,bio-medical waste, polythene or paper waste, decayed fruits, vegetables
etc.
 Liquid Pollutants – these may be effluents from factories, mills, industries,
distilleries,tanneries etc., oil, grease, petrol, dairy wastes, sewage etc.
 Gaseous Pollutants- these include greenhouse carbon emissions, poisonous
gases, fume, smoke, vapours, odour etc. emitted from industries or sulphur
dioxide due tocoal, thermal plant emissions, oleum etc.

Powers and functions of the Central Govt. under the EPA

Section 3 of the Environment (Protection) Act, 1986 empowers the Central Government to
takenecessary measures for protection and improvement in the quality of environment and to
prevent itfrom degradation. Such measures may relate to any or all of the following matters:

 Coordinating the actions of various State Governments, officers and authorities under
this Act or rules made thereunder or under any other law concerning environmental
pollution;
 Planning and execution of a nation-wide prevention, control and abatement of
environmental pollution;

53
  Laying down standards for the quality of environment;
 Laying down standards for emission or discharge of environmental pollutants
(different standards may be laid down for different sources of emission or discharge)
 Restricting carrying on of industries, operations or processes in certain areas or
permitting them to be carried out subject to certain conditions and safeguards;
 Laying down procedures and safeguards for the handling of hazardous substances;
 Examining manufacturing processes, materials and substances as are likely to cause
environmental pollution;
 Laying down procedures and safeguards for prevention of accidents which may cause
environmental pollution and remedial measures for such accidents;
 Carrying out and sponsoring investigations and research relating to problems of
environmental pollution;
 Inspection of premises, plants, equipment, machinery, manufacturing units, materials
and substances and giving orders/directions for the prevention, control and abatement
of environmental pollution;
 Establishment and recognition of environmental laboratories and institutes to carryout
functions entrusted to them under the Act;
 Collection and dissemination of information in respect of matters relating
toenvironmental pollution;
 Preparation of manuals, codes or guides relating to the prevention, control
andabatement of environmental pollution;
 Such other matters as the Central Government deems necessary or expedient for the
purpose of securing effective implementation of the provisions of the Act.

Case law: Vellore Citizens’ Welfare Forum vs. UoI (AIR 1996 SC 715)

In this case, the SC in context ofSection 3 (3) of the Act observed that the main purpose of
the Environment Protection Act, 1986 is to create an Authority with adequate power to
control pollution and protect the environment. The Courtregretted that despite there being a
specific provision in the Act, the Central Government did notconstitute any Authority till
then, with the result that the work which is to be done by the ‘Authority’ isbeing done by the
Courts. The Court expected the Central Government would take note of this factualsituation
and perform its statutory duty to protect the degrading environment in the country. The
Courtfurther directed the Government to constitute an ‘Authority’, which shall implement

54
‘precautionary principle’ and ‘polluter pays principle’ for the protection and improvement of
environment.

Consequent to this decision, the Central Government i.e. the Ministry of Environment and
Forests, issuednotification dated October 9, 1996 appointing the ‘Authority’ under Section
3(3) of the Act.

Section 5 of the Act, empowers the Central Government to issue directions in writing to:

(i) An industry, operation or any process to close, prohibit or relocate its affairs; or
(ii) To stop or regulate supply of electricity or water or any other services

Case law: Mahabir Soap &Gudakhu Factory vs. UoI (AIR 1995 Ori 218)

in this case the untreateddischarge effluents from the factory was polluting the water
reservoir in the residential locality.Therefore, the Government of India issued directions for
the closure of the factory and further directedthe authorities to disconnect electricity and
water supply to the factory. The Petitioner challenged theaction of the Government on the
ground that he was not offered the opportunity of being heard beforeissue of such directions.
Dismissing the petition, the Court found no reason to interfere as there was noviolation of any
provision of the Environment (Protection) Act and the Central Government had the power to
issue directions for closure and stoppage of essential supplies such as electricity and water
under Section 5 of the Act.

Section 7 to 17 of the Act, deal with prevention, control and abatement of environmental
pollution.

These provisions may be placed under four broad heads for the sake of convenient study.
They are asfollows-

I. Prevention measures to be taken by industries (Section 7,8 &9)

II. Power of the Central Government or Authority to prevent pollution (Section 10)
and power to take sample (Section 11)
III. Establishing Laboratories and appointing Govt. Analysts; and evidentiary value of
their reports (Section 12,13 &14)
IV. Penal provisions including prosecution and punishment (Section 15,16 &17)

As provided in Section 7 of this Act, the person who runs the industry or carries on a process
or anoperation is under an obligation not to discharge the pollutant effluents whether in solid,

55
liquid orgaseous form, or noise, which exceeds the standards prescribed by various Schedules
of the Act. Anydischarge of effluent beyond the prescribed standard shall render the
person/occupier liable topunishment under Section 15 to 17 of the Environment (Protection)
Act, 1986.

Case law: Taj Trapezium Case [M.C Mehta vs. UoI] (1997 2SCC 353)]

In this case, the level of sulphur dioxide and particulate matter generated by various
industries around Agra and particularly, the Mathura Oil Refinery was found to be very high,
much above the prescribed standards. It resulted in ‘acid rain’ which caused yellowing of the
white Taj marble. Reacting to the PIL petition filed by noted environmentalist M.C Mehta,
the Supreme Court ordered closing down of 292 small and medium industrial units with an
alternative to shift them out of the Taj Trapezium zone. The Court also directed the industries
to ensure that interests of workers were not adversely affected and they were not rendered
jobless as far as possible.

The River Ganga pollution case [M.C. Mehta vs. UoI] (1988) 1 SCC 471

In this case the tanneriesoperating around the river Ganga were polluting the river and the
city of Kanpur due to discharge oftheir untreated effluent and sludge into river water.
Responding to a PIL petition filed byenvironmentalist M.C. Mehta to prevent the city and
river Ganga from pollution, the Supreme Courtissued directions to the Municipal
Corporation, Kanpur as follows:

 The waste accumulated at dairies should be prevented from being thrown into the
river;
 To increase and widen the sewers in the labour colony;
 To construct sufficient number of public toilets;
 To prevent throwing of half-burnt animals and dead bodies into the river;
 To direct tanneries to install treatment plants and restrain from flowing the untreated
liquid discharge into the river;
 To initiate measures to generate awareness among the people about cleanliness and
need for pollution free environment for public health.

Environmental Impact Assessment

The International Association for Impact Assessment (IAIA) has defined ‘Environmental
ImpactAssessment’ (EIA) as ‘the process of identifying, predicting, evaluating and mitigating
56
the biophysical,social and other relevant effects of development proposals prior to major
decisions being taken andcommitments made.

Purpose of the EIA

The purpose of the EIA is to ensure that the decision makers while considering
theenvironmental impacts should have clarity as to whether to proceed further or not, with the
project. In other words, it is a technical evaluation intended to contribute more objective
decision making in thelight of detailed environmental studies on potential environmental
impacts.

The EIA report has a specific purpose as regards the possible environmental impact of the
proposedproject along with recommendations for mitigating measures in respect of project
seekingenvironmental clearance. It has to cover a wide range of related technical disciplines
and shouldconsider the probable impacts of air, water, noise, vibration, ecology, cultural
heritage, sustainabilityetc. on the project. The EIA report should specifically clarify as to how
the project can be madeenvironmentfriendly.

Although legislation and practice vary around the world, the fundamental components of an
EIAwould necessarily involve the following stages:

 Screening to determine which projects or developments require a full or partial

impactassessment study;
 Scoping to identify which potential impacts are relevant to assess (based on
legislativerequirements, international conventions, expert knowledge and public
involvement), to identify alternative solutions that avoid, mitigate or compensate
adverse impacts on biodiversity (including the option of not proceeding with the
development, finding alternative designs or sites which avoid the impacts,
incorporating safeguards in the design of the project, or providing compensation for
adverse impacts), and finally to derive terms of reference for the impact assessment;
 Assessment and evaluation of impacts and development of alternatives, to predict
and identify the likely environmental impacts of a proposed project or development,
including the detailed elaboration of alternatives;

57
  Reporting the Environmental Impact Statement (EIS) or EIA report, including
an Environmental Management Plan (EMP), and a non-technical summary for the
general audience.
 Review of the Environmental Impact Statement (EIS), based on the terms of
reference (scoping) and public (including authority) participation.
 Decision-making on whether to approve the project or not, and under what
conditions; and
 Monitoring, compliance, enforcement and environmental auditing – Monitoring
whether the predicted impacts and proposed mitigation measures occur as defined in
the EMP; Verifying the compliance of proponent with the EMP, to ensure that
unpredicted impacts or failed mitigation measures are identified and addressed in a
timely fashion.

Based on the above-mentioned components, India has developed the generic structure of
preparing anEIA Report with the following aspects and considerations:

1. Introduction: Purpose, identification, description and scope of study of EIA.

2. Project Description: Type and size of project and its likely environment effects,
technology and process proposed to be involved.
3. Description of Environment: Study area, period, components, methodology and base
time of environmental components identified in the scope only.
4. Anticipated Environmental Impact and Mitigation Measures: Details of
environmental impact in view of location, design, construction, operation of project
etc. and measures to minimize the impact.
5. Analysis of Alternatives (Technology & Site): Need for alternatives with
description, summary of adverse impact, mitigation methods proposed and selection
of alternatives.
6. Environmental Monitoring Programme: Technical aspects of monitoring the
effectiveness of mitigation measures.
7. Additional studies: Risk assessment, public consultation, social infrastructure,
rehabilitation and resettlement action plan.
8. Project Benefits: Improvement in physical and social infrastructure, employment
potential and other tangible benefits.
9. Environmental Benefit analysis: How the projects can benefit the environment and
ecosystems.

58
 10. Environmental Management Plan: Administrative aspects ensuring mitigating
measures to be incorporated.
11. Summary & Conclusion: Overall justification for implementation of the project and
explanation asto how adverse effects can be avoided or mitigated.
12. Disclosure of Consultants engaged: with the names, brief resume and nature of
consultancyservices.

Case law: Deepak Kumar vs. State of Haryana (AIR 2012 SC 1386)

In this case, the Supreme Court withreference to Section 3(3) of the Environment Protection
Act, 1986 observed that quarrying or mining ofminerals without Environmental Impact
Assessment (EIA) causes damage to ecosystem. Therefore,leases in mining minor minerals,
boulders, gravels and sand quarries in an area of less than fivehectares should be allowed
only after getting environmental clearance for the Ministry of Environmentand Forest
(MoEF).

Silent Valley case is also applicable here.

National Green Tribunal Act, 2010

Background

In 1987, the Supreme Court through its pronouncement in (Sriram fertilizers case) M.CMehta
vs. UOI (1987 1SCC 395) had highlighted the need for establishment of separate
EnvironmentalCourts for expeditious disposal of environmental cases. As a sequel to the
urgency of this demand, theParliament enacted the National Environment Act, 1995 and the
National Environment AppellateAuthority Act, 1997, but both Acts never came into force
though the demand for some adjudicatorybody exclusively for the expeditious disposal of
environmental cases continued throughout the preceding years.

Eventually, the National Green Tribunal Act, 2010 was passed by the Parliament forthe
handling of environmental cases. The said Act was passed on June 2, 2010, thereby repealing
boththe National Environment Act, 1995 and the National Environment Appellate Authority
Act, 1997,which had never become effective.

Object of the NGT Act

59
  The Act is intended to resolve substantial questions relating to environmental justice
and implementation of various environmental matters specified in Schedule I of the
Act.

Necessity of the Act

 It was the need ofthe time in view of the involvement of multidisciplinary issues
relating to the environment.
 It was alsonecessary as India was participatory and signatory to the International
Declarations like the StockholmDeclaration, 1972 and Rio Declaration, 1992, which
had called upon the member States toprovide effective access to judicial and
administrative proceedings, including redressal and remedy and to develop national
laws regarding liability and compensation for the victims of pollution and
otherenvironmental damage.
 National Green Tribunal (NGT) is a specialised body equipped with necessary
expertise to handleenvironmental disputes invoking multidisciplinary issues. It would
thus reduce the burden of the Courtsin country. With the constitution of this Tribunal,
India now becomes the third country in the world tohave special environmental
adjudicating courts in the form of a Tribunal.

Constitution of the Tribunal

 As per Section 3 of the NGT Act, 2010, National Green Tribunals are proposed to be
set up in 5 cities, namely, Delhi, Pune, Bhopal, Kolkata and Chennai, with Delhi as its
principal seat.
 The NGT Act authorizes the Central Government to establish the National Green
Tribunal which will be headed by a full time Chairperson and other Members.
 Section 5 of the Act lays down qualification for appointment of Chairperson, Judicial
Members and Expert Members. A person shall not be qualified for appointment as a
Chairperson or judicial member of the Tribunal unless he is, or has been, a judge of
the Supreme Court or Chief Justice of the High Court.

Jurisdictions and Powers of the National Green Tribunal

According to Section 14 of the Act, theTribunal shall have jurisdiction in all civil matters
where substantial question relating to environmentis involved (including enforcement of any
legal right relating to environment) arsing under any of thefollowing Acts:

60
 (i) The Water (Prevention and Control of Pollution) Act 1974
(ii) The Water (Prevention and Control of Pollution) Cess Act, 1977
(iii) The Air (Prevention and Control of Pollution) Act, 1981
(iv) The Forest (Conservation) Act, 1980
(v) The Environment (Protection) Act, 1986
(vi) The Public Liability Insurance Act, 1991 &
(vii) The Biological Diversity Act, 2002 or the Biodiversity Act

The application should be made to the Tribunal within 6 months from the date on which the
cause ofaction arose. The Tribunal may however, extend the time limit on sufficient cause,
but such extensionwill not exceed 60 days.

Relief and Compensation under the NGT act

Section 15 provides that the Tribunal may grant reliefin the form of:

a) Compensation to the aggrieved victims of pollution and environmental damage

arising out of any of the enactment related to environment (specified in Scheduled I)
including accident occurring while handling any hazardous substance
b) For restitution of property damaged
c) For restitution of the environment of such area or areas, as the Tribunal may deem fit
and proper.

While deciding the cases before it for adjudication and passing orders, the Tribunal shall take
into consideration the principle of sustainable development, which includes the two vital
components, namely, the precautionary principle and polluter pays principles.

The cases which can be adjudicated and decided by the Tribunal, shall be beyond the
jurisdiction ofcivil court because of the overriding effect of NGT Act over environmental
issues.

Appeal against the Decision of NGT

Under Section 22, an appeal against the decision of the NGTshall lie to the Supreme Court
within a period of 90 days from the date of communication of thedecision on one or more
grounds specified in Section 100 of the CPC 1908.

Punishment

61
  Under Section 25-26, non-compliance with the decision/award or order of the NGT
shall bepunishable with imprisonment for a term which may extend to three yearsor
with fine which mayextend to ten crores rupees or with both and if the failure or
contravention continues, with theadditional fine which may extend to Rs. 25,000/-
everyday during which such failure or contraventioncontinues after conviction for the
first such failure or contravention.
 Where a company is guilty of such offenses, it shall be punished with fine which may
extend to twenty-five crores rupees, and if the failure to contravention continues, with
additional fine of one lakh rupeesper day until the failure or contravention continues
for the first such failure or contravention.

Vellore Citizens Forum vs. Union of India AIR 1996 SC 2715

Facts:

 The petitioner- Vellore Citizens Welfare Forum, filed a Public Interest Litigation U/A
32 of Indian Constitution.
 Petition was filed against the large-scale pollution caused to River Palar due to the
discharge of untreated effluents by the tanneries and other industries in the State of
Tamil Nadu. The water of River Palar is the main source of drinking and bathing
water for the surrounding people.
 Further, the Tamil Nadu Agricultural University Research Centre, Vellore found that
nearly 35,000 hectares of agricultural land has become either totally or partially unfit
for cultivation.
 This is a leading case in which the Supreme Court critically analysed the relationship
between environment and development.

Issue:

The question which arose for consideration before the Supreme Court was whether the
tanneries shouldbe allowed to continue to operate at the cost of lives of lakhs of people.

Judgement:

 The Supreme Court examining the report delivered its judgment making all efforts to
maintain a harmony between environment and development.

62
  The Court admitted that these Tanneries in India are the major foreign exchange
earner and also provide employment to several thousands of people. But at the same
time, it destroys the environment and poses a health hazard to everyone.
 The court delivering its judgment in favour of petitioners directed all the Tanneries to
deposit a sum of Rs. 10,000 as fine in the office of Collector as fine.
 The Court further directed the State of Tamil Nadu to award Mr. M. C. Mehta with a
sum of Rs. 50,000 as appreciation towards his efforts for protection of Environment.
 The Court in this case also emphasized on the constitution of Green Benches in India
dealing specifically with matters relating to environment protection and also for
speedy and expeditious disposal of environmental cases.

MODULE 6: CONTEMPORARY ISSUES

Environment affecting Human Rights

 In recent years the relationship between human rights and environmental issues has
become an issue of vigorous debate. The link between the two emphasizes that a
decent physical environment is a precondition for living a life of dignity and worth.
More concretely, a decent physical environment has to do with protection against, for
instance, noise nuisance, air pollution, pollution of surface waters and the dumping of
toxic substances.
 Environmental degradation and human rights were first placed on the international
agenda in 1972, at the United Nations Conference on the Human Environment at
Stockholm.
 Principle 1 of the ‘Stockholm Declaration on the Human Environment’ establishes a
foundation for linking human rights and environmental protection, declaring that man
has a ‘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, and he bears a
solemn responsibility to protect and improve the environment for present and future
generations’.
 As a result of the 1972 Conference, the United Nations Environment Programme
(UNEP) was set up.

63
 In 1992, twenty years after the first global environment conference, the United
Nations Conference on Environment and Development (UNCED), also known as the
Earth Summit, took place from 3-14 June in Rio de Janeiro.
 The Rio Conference aimed to help governments ‘rethink economic development and
find ways to halt the destruction of irreplaceable natural resources and pollution of the
planet’ as, despite international efforts, environmental degradation had accelerated at
an alarming rate. In Rio, three major agreements were concluded of which the Rio
Declaration on Environment and Development is the most pertinent in the context of
human rights and the environment.
 Principle 1 of the Rio Declaration sets out that ‘Human beings are at the centre of
concerns for sustainable development. They are entitled to a healthy and productive
life in harmony with nature’. Principle 4 establishes ‘In order to achieve sustainable
development, environmental protection shall constitute an integral part of the
development process and cannot be considered in isolation from it’.
 Principle 10 of the 1992 Rio Declaration was of great importance for the
developments that led to the 1998 Convention on Access to Information, Public
Participation in Decision-making and Access to Justice in Environmental Matters
(Aarhus Convention) which entered into force in 2001.
 The Aarhus Convention (1998) covers the three themes indicated by its title. Rather
than using rights-oriented language the Convention requires states parties to ‘ensure’
that members of the public have access to information, are allowed to participate and
have access to judicial review. Although the term ‘right’ is generally avoided, the
objectives, structure and context of the Aarhus Convention are rights-oriented,
drawing on notions of international human rights law. The Convention is intended to
provide for participatory, informational and procedural rights in environmental
matters.
 In September 2002, the World Summit on Sustainable Development (WSSD) was
held in Johannesburg. The WSSD plan of implementation shows clearly that respect
for human rights and fundamental freedoms are essential for achieving sustainable
development. The plan stresses the importance of action at the national level for
successful development.
 Key components of the WSSD Plan include good governance, the rule of law, gender
equality and an overall commitment to a just and democratic society. Transparency,

64
 accountability and fair administrative and judicial institutions are considered essential
for sound national policies to be carried out. The plan also emphasises the importance
of promoting public participation in environmental decision-making, including
measures that provide access to information regarding legislation, regulations,
activities, policies and programmes. The plan states that women must be involved
fully and equally at all levels of the environmental and developmental process,
including those of policy formulation and decision-making.
 The human right to a healthy environment is controversial, inter alia, because it has
individual as well as collective aspects. If, for instance, after a period of foreign
domination it emerges that the physical environment of the dominated people has
been severely damaged, it is generally considered logical to allow for a claim to
protection (i.e., restoration) of the environment not only by individuals, but in equal
measure by the affected population as a whole. In this context, reference can be made
to Article 55 of Protocol I to the 1949 Geneva Conventions.
 Themandate of the Special Rapporteur has three components:
(i) Firstly, outlining the elements of the problem andconducting a general survey
of issues involving the human rights of the victims, with special emphasis
ondifficulties encountered by African and other developing countries;
(ii) secondly, to identify, investigate and monitoractual situations, specific
incidents and individual cases, including allegations received; and
(iii) thirdly to produceannually a list of countries and transnational corporations
engaged in the illicit traffic of toxic and dangerousproducts and wastes to
developing countries.
 Comment 14 of the ESCR (International Network for Economic, Social and Cultural
Rights) Committee has addressed the right to a healthy environment. It further
elaborated that theright should be interpreted as an ‘inclusive right extending not only
to timely and appropriate health care but also tothe underlying determinants of health,
such as access to safe and potable water and adequate sanitation, an adequatesupply of
safe food, nutrition and housing, healthy occupational and environmental conditions.
In General Comment15 on the right to water the Committee addressed ‘environmental
hygiene’, an aspect of the right to health.International concerns with human rights,
health and environmental protection have expanded considerably in thepast several
decades. In response, the international community has created a vast array of

65
 international legalinstruments, specialized organs, and agencies at the global and
regional levels to respond to identified problems ineach of the three areas.

Unplanned urbanization

 The conversion of Earth’s land surface to urban uses is one of the most irreversible
human impacts on the global biosphere. It hastens the loss of highly productive
farmland, affects energy demand, alters the climate, modifies hydrologic and
biogeochemical cycles, fragments habitats, and reduces biodiversity. We see these
effects on multiple levels. Future urbanization will, for example, pose direct threats to
high-value ecosystems: the highest rates of land conversion over the next few decades
will likely take place in biodiversity hotspots that were relatively undisturbed by
urban development. Within cities, the nature of urban growth is also an important
determinant of urban dwellers’ vulnerability to environmental stress.
 The environmental impacts of urban expansion reach far beyond urban areas
themselves. In rapidly urbanizing areas, agriculture intensifies on remaining
undeveloped land and is likely to expand to new areas, putting pressure on land
resources. Furthermore, urban areas change precipitation patterns at scales of
hundreds of square kilometres. Urban expansion will affect global climate as well.
Direct loss in vegetation biomass from areas with high probability of urban expansion
is predicted to contribute about 5% of total emissions from tropical deforestation and
land-use change. The scope and scale of these impacts is yet to be fully researched.
Although many studies have described how urbanization affects CO2 emissions and
heat budgets, effects on the circulation of water, aerosols, and nitrogen in the climate
system are only beginning to be understood.

Urban heat

 The urban heat island has become a growing concern and is increasing over the years.
The urban heat island is formed when industrial and urban areas are developed and
heat becomes more abundant. In rural areas, a large part of the incoming solar energy
is used to evaporate water from vegetation and soil.
 In cities, where less vegetation and exposed soil exists, the majority of the sun’s
energy is absorbed by urban structures and asphalt. Hence, during warm daylight
hours, less evaporative cooling in cities allows surface temperatures to rise higher
than in rural areas.

66
  Additional city heat is given off by vehicles and factories, as well as by industrial and
domestic heating and cooling units. This effect causes the city to become 2 to 10° F (1
to 6° C) warmer than surrounding landscapes. Impacts also include reducing soil
moisture and intensification of carbon dioxide emissions.

Other effects and consequences of urbanization

 Slums and its consequences of overcrowding.

 Lack of sanitation, Poverty, Illiteracy, Unemployment and Crime is the worst impact
of urbanization.
 Global warming, air pollution, water scarcity and pollution and loss of forest cover,
agricultural land and depletion of wildlife as a result of urban sprawl, pose serious
threats to the environment.
 Urban areas suffer from serious problems of environmental pollution. There are high
levels of air pollution and noise pollution due to industries and automobiles. Water is
also polluted due to industrial waste water discharge. Solid waste generation in urban
areas is very high, and its proper disposal is a major problem.
 Proper sewerage facilities are often lacking in urban areas. In the crowded slums, the
human waste is just deposited in gutters or vacant spaces, which become a breeding
ground for pathogenic bacteria spreading salmonella and hepatitis infections. In most
of the cities heavy rainfall totally upsets the sewerage system.
 Cities are warmer than villages. Due to lot of heat released by various types of human
activities in cities, which get retained by built structures and then slowly released into
the atmosphere there is creation of urban heat island. This problem can be partially
tackled by growing green belts of trees.

Urbanization in India

 Urbanization is an integral part of the process of economic growth. As in most

countries, India’s towns and cities make a major contribution to the country’s
economy. With less than 1/3 of India’s people, its urban areas generate over 2/3 of the
country’s GDP and account for 90% of government revenues.
 Urbanization in India has expanded rapidly as increasing numbers of people migrate
to towns and cities in search of economic opportunity. Slums now account for 1/4 of
all urban housing. In Mumbai, for instance, more than half the population lives in

67
 slums, many of which are situated near employment centres in the heart of town,
unlike in most other developing countries.
 Meeting the needs of India’s soaring urban populations is and will therefore continue
to be a strategic policy matter. Critical issues that need to be addressed are:
 Poor local governance
 Weak finances
 Inappropriate planning that leads to high costs of housing and office space; in
some Indian cities these costs are among the highest in the world
 Critical infrastructure shortages and major service deficiencies that include
erratic water and power supply, and woefully inadequate transportation
systems
 Rapidly deteriorating environment

Challenges

1. Planning:
 Many urban governments lack a modern planning framework
 The multiplicity of local bodies obstructs efficient planning and land use
 Rigid master plans and restrictive zoning regulations limit the land available
for building, constricting cities’ abilities to grow in accordance with changing
needs.
2. Housing:
 Building regulations that limit urban density - such as floor space indexes –
reduce the number of houses available, thereby pushing up property prices
 Outdated rent control regulations reduce the number of houses available on
rent – a critical option for the poor
 Poor access to micro finance and mortgage finance, limit the ability of low-
income groups to buy or improve their homes
 Policy, planning, and regulation deficiencies lead to a proliferation of slums
 Weak finances of urban local bodies and service providers leave them unable
to expand the trunk infrastructure that housing developers need to develop
new sites.
3. Infrastructure:

68
  Most urban bodies do not generate the revenues needed to renew
infrastructure, nor do they have the creditworthiness to access capital markets
for funds
 Urban transport planning needs to be more holistic – there is a focus on
moving vehicles rather than meeting the needs of the large numbers of people
who walk or ride bicycles in India’s towns and cities.

Ethics Pertaining to Animal Rights(not according to material)

Like many other countries, it has been acontinuing tradition in India to sacrifice non-human
species for medical research, industrialuse, farm production, and human consumption, and
also to check zoonotic diseases such as H1N1 and H5N1.

The common fact underlying these activities is that animals are killedprematurely, mistreated
with the consideration of having no dignified existence, and to agreat extent unethically to
save and secure human lives. In contrast, India has got a deep-rooted tradition of concern,
affiliation, and respect for non-human animals. For example, thetwo great world religions of
Hinduism and Buddhism convey messages for the protection ofanimals with respect, dignity,
and compassion. Animals in the Hindu tradition mostly havebeen conceived as protectors and
companions of Gods and humans. Being associated withgods, these animals were portrayed
to be preserved and conserved, for they have shown topossess the capacities to reason
practically, to guide the Gods and humans to the path ofrighteousness.

Being part of the global justice requirement,the capabilities approach has been extended
towards animal rights and animal welfare for thesake of animals only. Thecore focus of the
capability approach has thus been on the moral responsibilities of humans towards
theecosystem where animals and humans are living in connection with each other.

The ethical foundation ofcapabilities approach aims to respect the human-animal relationship
from the perspectives ofboth humans and other animals and follows the following principles:

 Animals should not be deprived of flourishing. They should be provided

positiveopportunities to flourish, especially by humans, for they impact pervasively
on theopportunities of animals to flourish by affecting habitats, determining
opportunitiesfor nutrition, free movement, etc.
 Animals should be respected, not as spiritual objects, but simply as a member
ofanimal species.

69
  Animals should be given their due entitlements.

In India, when animals are sacrificed in the name of great religions or for public
healthreasons, the emotions and senses of the animals are ignored and undermined.
Consequently,animals are made to suffer in their bodily integrities. As a result, even though
these animalscannot protest against the injustice, the injustice occurs at the level of their
capabilities to livethe life they deserve, the treatment they have the right to claim, and in
exercising their rightto the just provision of their bodily health.

The Prevention of Cruelty to Animals Act, 1960 is an Act of the Parliament with an objective
to prevent the infliction of unnecessary pain or suffering on animals. As per the provisions of
the law the government of India has formed the Animal Welfare Board of India.

Syllabus

Module 6: Contemporary Issues

 Climate change;
 Environment affecting Human Rights;
 Food Security;
 Ethics pertaining to animal rights.

70
71