ENVIRONMENTAL LAW

INTRODUCTION
It is very important to understand the word ‘Environment’ because it
constitutes our surroundings and affects our ability to live on the Earth. It
comprises the air we breathe, the water that covers most of the Earth’s
surface, the plants and animals around us, and much more. It is therefore,
very important to understand and appreciate the importance of
environment in our daily lives. In recent years, scientists have been
carefully examining the various ways by which people affect the
environment. They have found that we are causing air pollution,
deforestation, acid rain, and other problems that are dangerous both to the
Earth and to ourselves.

The word ‘environment’ is derived from the French word ‘environner’,

which means ‘to encircle’ or ‘to surround.’ Broadly speaking, environment
means and includes the entire surroundings- the land, water, air, noise,
forests, wildlife etc. It is a composite term which consists of both living and
non-living elements in this planet and it is from the environment that all
the necessities of life are derived.

The most suitable definition of environment is - It is the sum total of water,

air and land and the interrelationships that exist among them with human
beings, other living organisms and materials.
According to the United States Council on Environmental Quality,
‘Environment’ means man’s total physical and biological system including
not only the biosphere, but also his interactions with his natural and man-
made surroundings.

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According to Section 2(a) of the Environment Protection Act, 1986,
environment includes water, air and land and the inter-relationship which
exists among and between water, air, land and human beings, other living
creatures, plants, micro-organisms and property.

Assemblage of species of plants, animals and micro-organisms inhabiting a

common area and having effects on one another is called a biotic
community. The combination of biotic community and the physical
environment is called the ecosystem.

Biotic community+ Environment =Ecosystem

The study of the ecosystem in totality and how the entire system functions
by interacting amongst them is called ecology.

The geographical meaning of environment is that environment is a

combination of living and non-living things and their mutual interaction
with each other which leads to an ecosystem. The environment
encompasses all living and non-living things occurring naturally on Earth.

Today protection of environment is a global issue as it concerns all

countries irrespective of their sizes, stages of development or ideologies.
Today, the interaction between society and nature is so extensive that the
question of environmental pollution has assumed large proportions,
affecting humanity at large. In K.M. Chinappa Vs. Union of India, the S.C held
that environmental law is an instrument to protect and improve the
environment and control or prevent any act or omission which is polluting
or is likely to pollute the environment.

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Before understanding the concept of environmental pollution, it is
necessary to understand the meaning of the term ‘pollution.’ Pollution is
the wrongful contamination of the atmosphere or of water or of soil. It is
the direct or indirect introduction of substances into the environment by
man which endangers human health, harms living resources and eco
systems, damages material properties or amenities or interferes with other
legitimate uses of the environment. The environment is a complex
aggregate of physical, chemical and biological factors surrounding an
organism or an ecological community. Such factors act and interact with
each other to affect their form, growth and survival. Any unfavourable
alteration of this environment is called environmental pollution. According
to Section 2(c) of the Environmental Protection Act, 1986 “environmental
pollution” means the presence in the environment of any environmental
pollutant. According to Section 2(b) of the Environmental Protection Act,
1986 “environmental pollutant” means any solid, liquid or gaseous
substance present in such concentration as may be, or tend to be, injurious
to the environment.

But the definition of environmental pollutant is inadequate as it includes

solid, liquid or gaseous substances only. There are pollutants, namely, heat
energy, sound and nuclear radiations which are not substances. There are
many substances in the air which may impair the health of plants and
animals (including humans.) These arise both from natural processes and
human activities. Substances not naturally found in the air or found at
greater concentrations or found in different locations from usual are
referred to as pollutants. The definition of environmental pollution in
the Act is narrow in scope. It merely refers to the presence in the
environment of any environment pollutant. However, it is not only the
presence of certain substances but even the absence of, or decrease in

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concentration of, or non-availability of a non-pollutant that results in
pollution. If oxygen is withdrawn from the environment in quantities
detrimental to the environment, it results in environmental pollution.

DIFFERENT KINDS OF ENVIRONMENTAL POLLUTION

It has been already understood that the term ‘environmental pollution’
refers to the unfavourable alteration to our surroundings directly or
indirectly which occurs mainly because of the activities of human beings.

Following are the various kinds/types of environmental pollution: -

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

oxygen and nitrogen, but containing much smaller amounts of water
vapour, carbon dioxide, argon and very small amounts of other gases
(Neon, Helium, Methane, Krypton, Hydrogen, Xenon, Ozone, etc.) Air
also contains suspended dust, spores and bacteria Air pollution may
be defined as the introduction, into the atmosphere, of chemicals,
particles, biological materials or other substances that cause
discomfort, disease, or death to humans, damage to other living
organisms, food crops, and natural environment or built
environment. It is the accumulation of substances in the atmosphere
in sufficient concentrations which endangers human health or
produces other measured effects on living matter and other
materials.

According to Section 2(b) of the Air (Prevention and Control of

Pollution) Act, 1981, air pollution means the presence in the
atmosphere of any air pollutant. According to Section 2(a) of the Air
(Prevention and Control of Pollution) Act, 1981, air pollutant means
any solid, liquid or gaseous substance, including noise, present in the
atmosphere in such concentration as may be or tend to be injurious
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 to human beings or other living creatures or plants or property or
environment.

The major sources of air pollution are: Industrial emissions,

Vehicular emissions, Domestic emissions. The most common air
pollutants are Sulphur dioxide, Nitrogen oxides, Carbon monoxide,
Hydrocarbons, Particulates, Smog etc. Apart from this, the gases
discharged from refrigerators, air conditioners etc. are responsible
for depletion of the Ozone layer.

2) Water Pollution- Water is said to be the cause of the Earth. It is the

lifeline of our ecological existence. It is one of the most precious gifts
of nature. It comprises about 70% of the Earth’s surface. But day by
day the quality of water is deteriorating and is becoming unfit for
consumption. Pollution, in simple words, means contamination. So,
water pollution means contamination of water, thereby making it
completely unfit for use.

Water pollution is the introduction of, into fresh or ocean waters,

chemical, physical, or biological materials that degrade the quality of
the water and affects the organisms living in it. This process ranges
from simple addition of dissolved or suspended solids to discharge of
the most insidious and persistent toxic pollutants (such as pesticides,
heavy metals, non-degradable chemical compounds). Water pollution
is the contamination of water bodies (e.g. lakes, rivers, oceans,
aquifers and groundwater). Water pollution occurs when pollutants
are discharged directly or indirectly into water bodies without
adequate treatment to remove harmful compounds.
According to Section 2(e) of the Water (Prevention And Control Of
Pollution) Act, 1974, "pollution" means such contamination of water

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 or such alteration of the physical, chemical or biological properties of
water or such discharge of any sewage or trade effluent or of any
other liquid, gaseous or solid substance into water (whether directly
or indirectly) which may, or is likely to, create a nuisance or render
such water harmful or injurious to public health or safety, or to
domestic, commercial, industrial, agricultural or other legitimate
uses, or to the life and health of animals or plants or of aquatic
organisms.

Conventional or classical water pollutants are generally

associated with the direct discharge of (mainly human) waste
products into the waters. Rapid urbanization and rapid population
increase have produced sewage problems because treatment
facilities have not kept pace with need. Untreated and partially
treated sewage from municipal wastewater systems and septic tanks
in unsewered areas contribute significant quantities of nutrients,
suspended solids, dissolved solids, oil, metals (arsenic, mercury,
chromium, lead, iron, and manganese), and biodegradable organic
carbon to the water environment.

The nonconventional water pollutants include dissolved and

particulate forms of metals, both toxic and nontoxic, and degradable
and persistent organic carbon compounds discharged into water as a
by-product of industry or as an integral part of marketable products.
More than 13,000 oil spills of varying magnitude occur in the United
States each year. Thousands of environmentally untested chemicals
are routinely discharged into waterways.
3) Noise Pollution- The word ‘noise’ is derived from the Latin word
‘nausea’ which means sea-sickness. ‘Noise’ is any unwanted sound

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 that disrupts environmental equilibrium. It is a sound which is
unpleasant and it exerts pressure on our minds. Noise is measured in
decibels. Noise is a composite of sounds generated by human
activities ranging from blasting stereo systems to the roar of
supersonic transport jets.

The two major sources of noise pollution are-

• Industrial sources- which include noise generated by various
industries operating in and outside the cities.
• Non-industrial sources- which include transport, use of loud
speakers, street noise, construction work, aircraft, railways,
automobiles etc.

Noise pollution has harmful effects on the environment, human

beings, and animals. Some adverse effects of noise pollution on
human health are:
✓ Hearing loss or hearing impairment;
✓ Rise in blood pressure;
✓ Cardio-vascular health effects;
✓ Increase in stress level; and
✓ Decrease in efficiency and concentration

4) Land Pollution- Land pollution is the degradation of the Earth's land

surface through misuse of the soil by poor agricultural practices,
mineral exploitation, industrial waste dumping, and indiscriminate
disposal of urban wastes. Land and soil pollution take place mainly
due to the disposal of solid and semi-solid wastes from agricultural
practices and from poor sanitation.

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 Soil pollution: Soil pollution is often the result of poor agricultural
practices which remove rich humus topsoil developed over many
years through vegetative decay and microbial degradation and thus
strips the land of valuable nutrients for crop growth. The rapid
growth of urbanization and uncontrolled use of resources in common
house hold has resulted in the production of solid wastes. Solid
wastes include agricultural wastes, ashes, bio-medical wastes, body
parts of dead animals, dry or wet garbage from domestic activities
which may contain plastics, metals, woods, glass, paper, detergents,
industrial wastes, mining wastes etc. These solid wastes, when
discharged into the soil, pollutes soil and land.

5) Nuclear (Radioactive) Pollution- One of the most important and

dangerous types of pollution is nuclear pollution or radioactive
pollution. Nuclear pollution is caused by nuclear explosions which
are carried out for performing nuclear tests and which are further
used for making nuclear weapons. Due to these explosions, about 15
to 25% of the radioactive particles enter the atmosphere. Once they
enter the atmosphere they continue to remain on the Earth for
several years. The best example is the Hiroshima and Nagasaki
atomic bombings.

The most dangerous radiation results from the explosion of nuclear

devices and the release of energy from nuclear power generating
plants. Other sources of radiation include spent-fuel reprocessing
plants, by-products of mining operations, and experimental research
laboratories. Increased exposure to medical X rays and to radiation
emissions from microwave ovens and other household appliances,

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 although of considerably less magnitude, all constitute sources of
nuclear pollution.
Radioactive nuclear wastes cannot be treated by conventional
chemical methods and must be stored in heavily shielded containers
in areas remote from biological habitats. The safest of storage sites
currently used are impervious deep caves or abandoned salt mines.
Most radioactive wastes, however, have lives of hundreds to
thousands of years, and till date, no storage method has been found
that is absolutely infallible.

6) Food Pollution (Food Adulteration)- All living beings require food to

obtain energy. It is through this energy that they carry out their daily
activities. If the food consumed is polluted or adulterated it will have
injurious effects on the consumer’s health. The pollution of food
begins by use of chemical fertilizers and various pesticides at
different stages of plant growth. These chemicals directly or
indirectly affect the quality of food and affects the health of the
consumers. Food also gets polluted during processing, storage,
packaging and transportation.

FACTORS RESPONSIBLE FOR CAUSING ENVIRONMENTAL POLLUTION

The main causes of environmental pollution are-

1) Population growth- One of the most important factors for the

damage of environment and consequential pollution is rapid
population growth. The quality of our environment is determined by
the intricate process of mankind making a living and enjoying life. In
this process he makes use of land, food, water and air. The use of the
four essentials of life by man viz. land, food, water and air, affects the

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 dynamics of all the plants and animal life on the Earth by altering the
ecological balances. His methods of using land, water and air
particularly as waste disposal suits have impaired their quality, so
that these are no longer fit in some instances for his own needs and
purposes. The increase in population would certainly exert
additional pressure on the natural resources including air, water and
food systems. Therefore, in order to cope up with the food pressure,
we have to produce more agricultural and industrial products. But
our cultivated land is limited and we cannot increase it more, we are
already using nearly 50 percent of the land for agricultural purposes.
For increasing the production of food, we will require more
fertilizers. In short, we have to expend the industrial as well as the
transport base in order to meet the increased demands of goods like
cloth, iron, cement, steel, fertilizers, pesticides and vehicles. This
would involve the use of more power and natural resources and we
have to face the consequential effect of more carbon gases and photo
chemical oxidants.

2) Urbanization- Urbanisation is another major factor which

contributes significantly to environmental pollution. The growth in
urban areas comes from both the increase in migration to the cities
and the fertility of urban populations. Much of urban migration is
driven by rural populations’ desire for the advantages that urban
areas offer. Urban advantages include greater opportunities to
receive education, health care, and services such as entertainment.
Urban populations interact with their environment. Urban people
change their environment through their consumption of food,
energy, water, and land, and in turn, the polluted urban environment
affects the health and quality of life of the urban population.

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 People who live in urban areas have very different consumption
patterns than residents in rural areas. For example, urban
populations consume much more food, energy, and durable goods
than rural populations. Some urban environmental problems include
inadequate water and sanitation, lack of waste disposal means and
industrial pollution. It is clear that the world is becoming more and
more urban. It has been predicted that by the year 2050, more than
70% of the human population on Earth will live in cities. There are
many environmental problems that are associated with urbanization.

3) Industrialisation- Man has been inventive right from the beginning.

He has inherited this quality from the nature itself. In order to meet
his requirements and also in order to raise his standards of living, he
has been carrying out various activities. He is now producing things
which were not there and he is enhancing the production of those
things which were there but not in abundant quantity. In this way he
is disturbing all the four components, i.e. land, water, air and food,
which is essential for the survival of human beings and other living
beings.

The demand for food, space and energy is growing. In order to meet
these demands, maximum use of chemicals is made which is harmful
for living beings.

Due to industrial activities, a good amount of dust and smoke is

released into the atmosphere. Their accumulation in the atmosphere
prevents the heat of the sun from reaching the Earth, which may
cause a global decrease in temperature and this may bring a new ice
age on the Earth. Dust and smoke in the atmosphere, along with
water vapours, form “smog”. This ‘smog’ has a very dangerous effect
on the environment. There is also a growing problem of toxic wastes
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 generation by industries. The adverse effects of industrialisation
have already been witnessed in Bhopal due to leakage of methyl
isocyanate gas from the Union Carbide Plant, in leakage of radioactive
substances from the Chernobyl nuclear power plant in Russia.

4) Deforestation- Forests provide natural habitat to many animals.

Many species of birds and animals survive only in forests.
Deforestation has deprived many living creatures of their natural
habitat. To maintain ecological balance, forests should cover at least
30 percent of the land. However, due to urbanization,
industrialization, greater need for fuel, furniture and building
materials, deforestation takes place at an alarming rate and this in
turn has reduced the forests up to 13 percent of landed area. The
forests are important as they maintain the oxygen supply, hold the
water during rainy season in hilly regions, reduce soil erosion etc.
Due to deforestation, the rapidly flowing rain water carries with it
silt which is deposited in rivers and lakes. This raises the river bed.
The silting makes rivers unfit for navigation and prone to flooding.
Reduction in forests also causes imbalance in carbon dioxide and
oxygen which is responsible for greenhouse effect.

5) Indiscriminate use of science and technology- Indiscriminate use of

science and technology is a major hindrance to preserving the
environment. In order to make our lives comfortable, we do not
hesitate to use the scientific and technological developments
extensively without caring about their negative impacts on the
environment. Presence of chlorofluorocarbons (CFCs) in the
atmosphere, which are emitted by the refrigerators, air conditioners
and deep freezers are majorly responsible for the depletion of the
ozone layer. This is posing a severe threat to the existence of life in

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 the world. Generation of wastes during the use of science and
technology and man’s industrial activities have added more pressure
on the biosphere and have caused severe environmental pollution.

6) Modern agricultural practices- Modern agricultural practices and

application of newer technological processes in the field of
agriculture have severely affected the environment. Inorganic
fertilizers are widely being used now-a-days. Fertilizers like
phosphates and nitrates cause widespread damage when applied
carelessly on the crops. Though these fertilizers fortify the soil, the
soil becomes contaminated due to the impurities in the said
fertilizers. In addition to fertilizers, various kinds of pesticides and
insecticides are also used as a part of modern agricultural practice.
Almost all these insecticides and pesticides are toxic in nature and
are unsafe to the environment. Soil conditioners and fumigants are
also used in modern agriculture. These chemical agents cause
alterations in the agricultural and horticultural lands.

7) Lack of public awareness and participation- People are unaware of

the importance of having a pollution free environment. They also
lack awareness of the hazards of environmental pollution. It can be
easily noticed that people throw waste and garbage on public roads
and streets which ultimately results in severe degradation of the
environment. It also causes public nuisance. The public are reluctant
to cooperate in the process of maintenance of the quality of
environment. It is not just the duty of the State to protect and
preserve the environment, but also of the citizens to do so. Their
unawareness and ignorance about environmental matters and lack
of active participation in protecting and preserving the environment
have caused environmental pollution to a large extent.

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HISTORY OF ENVIRONMENTAL LAWS

The protection and preservation of environment is a pressing issue. Every

person, organisation and institution have an obligation to protect the
environment. Environmental consciousness deserves to be propagated at
all levels. Environmental conservation can be achieved, if we all share a
single thought, which is the thought of creating a better world to live in, the
thought to give a better world to everyone, human beings or otherwise, to
the present as well as to the future generations, who have to share the
Almighty's great gifts of clean environment and abundant natural resources
on the planet Earth. Environmental protection encompasses not only
prevention of pollution but also sustainable development and conservation
of natural resources and the eco-system.

India responded to environmental problems as far back as to in April 1972,

when the then Prime Minister, Smt. Indira Gandhi, established the National
Committee on Environmental Planning and Coordination (NCEPC). She
stated, "Our emphasis should be on the improvement in the quality of life
as a whole rather than on the quantitative growth of various sectors in the
economy. Our attention cannot be diverted from the main challenge before
us which is to bring basic amenities within the reach of our people and to
give them better living conditions without alienating them from nature and
their environment, without despoiling nature of its beauty and of its
freshness and purity.

The global concern for environment, wild life and natural resources caused
the development of legal frame works, both at the national and
international levels. Rules were established by authorities to regulate the
behaviour of individuals, members of a community and concerned

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countries for the protection of environment and natural resources. The
legal frame work thus developed can be discussed under the following two
sub- headings.
• National Legislation
• International Legislation

National Legislation

As the need arose, from time to time, laws concerning wild-life and
environment were framed and enforced at the national level. The process
of evolution of this legal framework can be classified under the following
heads-
o Ancient Environmental laws
The concern for human environment is as old as the Indian Vedic and
epic ages. Even in the earlier times, in civilizations of ancient Greece
and India, the concern for environmental protection and
maintenance of ecological balance was manifested inhuman
behaviour and reflected in nature itself. During the period of King
Ashoka’s rule, there was the 5thpillaredict which stated in detail what
species of fishes, birds and animals were forbidden from being
hunted, the prescribed season for hunting other species and
punishments for violations. In Arthashastra, Kautilya talks in detail
about the State's duty to maintain forests, forest produce, and forest
reserves for wild animals and to protect wildlife.

o Arrival of the British and the formation of Environmental laws in

India

The British arrived in India with the mission of trading goods in India
and for this purpose, they formed East India Company. But, after
sighting the immense amount of natural resources and loads of

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opportunities to exploit the resources present here, they changed
their mission and began exploiting the natural resources of India.

At the time when British arrived in India, India was divided into
several princely states, ruled by different rulers. It was quite an easy
task for the British to establish itself gradually and wisely. They
cleverly implemented the policy of Divide and Rule in India and took
benefit of the diversity of rule and rulers and multiplicity of religions
in the country.

This process was greatly intensified by building the railway networks

in 1853. Great numbers of forests were destroyed to meet the
demand for railway networks. No supervision was exercised over the
felling operation in which a large number of trees were chopped and
they lay rotted on the road.

In 1806, the East India Company appointed a former police officer,

Captain Watson, as India's first conservator of forests. On 3 August
1855, Lord Dalhousie, the governor general of India, established the
Indian Forest Department and annexed large areas of sparsely
populated lands in India. These lands were declared protected areas
and staffed by foresters, fireguards, rangers and administrators. Lord
Dalhousie's new forest policies greatly expanded British authority
over the land and the people of India. The second half of the
19thcentury was marked with the beginning of an organized forest
management in India with some administrative steps taken to
conserve forests, the formulation of forest policy and framing of
legislations to implement the policy decision. The systematic
management of forest resources began with the appointment of the
First Inspector General of Forest in 1864. The objective of
management of forest thus changed from obtaining of timber for
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 various purposes to protecting and improving forests and treating
them as a biological growing entity.

The British Government declared its first Forest Policy on

19thOctober, 1884. To implement this Forest policy of 1884, the
Indian Forest Act, 1927 was enacted. This Act intended to consolidate
the law relating to forests, the transit of forest-produce and the duty
leviable on timber and other forest-produce. Thereafter, several
provinces made their own laws to regulate forests. Most of these laws
were within the framework laid down in the 1927 Act. The British all
along their reign in India formed many other Acts from time to time.

o Environmental Laws in India post-independence

• After obtaining independence in 1947, India employed a range of

regulatory instruments to preserve and protect its natural resources.
The Indian Constitution is the first Constitution in the world
which made provision for the protection of environment. The
Constitution (Forty-second Amendment) Act, 1977, for the first time,
inserted a specific provision with respect to the preservation of
environment throughout the country. One of the directive principles
added by the 42nd Amendment Act provided for the protection and
improvement of environment. Article 48A says "The State shall
endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country." The other
provision dealing with environment finds its place in the Chapter on
Fundamental Duties. The 42nd Amendment Act inserts Part IV-A into
the Indian Constitution which enumerates certain fundamental
duties of the citizens of India. Article 51A (g) specifically deals
with the fundamental duty with respect to environment. It says.

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 "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."

• A Survey of the early environmental legislations indicates the nature

and levels of governmental awareness towards environmental issues.
Two early post-independence laws were related to water pollution.
1) Section 12 of the Factories Act, 1948 required all factories to
make effective arrangements for waste disposal. 2) The River
Boards Act, 1956 provided for the regulation and development of
inter-state rivers and river valleys, and river boards established
under this Act were empowered to prevent water pollution.

• The Indian Constitution adopted in 1950, initially, did not deal with
the subject of environment or prevention and control of pollution as
such.

• It was the Stockholm Declaration of 1972 which turned the attention

of the Indian Government to the boarder perspective of
environmental protection.

• Comprehensive (special) environmental laws were enacted by the

Parliament of India.

• National Committee on Environmental Planning and Coordination

(NCEPC) was set up in 1972 which was later evolved into Ministry of
Environment and Forests (MoEF ) in 1985.

• The Wildlife (Protection) Act, 1972, aimed at rational and modern

wild life management.

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• The Water (Prevention and Control of Pollution) Act, 1974, provides
for the establishment of pollution control boards at Centre and States
to act as watchdogs for prevention and control of pollution.

• The Forest (Conservation) Act, 1980 aimed to check deforestation,

diversion of forest land for non-forestry purposes, and to promote
social forestry.

• The Air (Prevention and Control of Pollution) Act, 1981, aimed at

checking air pollution via pollution control boards.

• The Environment (Protection) Act, 1986 is a legislation which

provides for single focus in the country for protection of environment
and aims at plugging the loopholes in existing legislation.

• The Public Liability Insurance Act, 1991, provides for mandatory

insurance by factory owners for the purpose of providing immediate
relief to person affected by accidents occurring while handling any
hazardous substance.

• The Biological Diversity Act, 2002, is a major legislation which

intends to conserve biodiversity, manage its sustainable use and
enable fair and equitable sharing benefits arising out of the use of
biological resources with the local communities.

• The National Environment Policy of 2006 is a response to India’s

national commitment to a clean environment, mandated in
the Constitution of India in Articles 48A and 51A(g) and strengthened
by judicial interpretation of Article 21. The main objectives of the
policy are as follows-

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 o Conservation of Critical Environmental Resources
o Intra-generational Equity: Livelihood Security for the Poor
o Inter-generational Equity
o Integration of Environmental Concerns in Economic and Social
Development
o Efficiency in Environmental Resource Use
o Enhancement of Resources for Environmental Conservation

• The National Green Tribunal Act, 2010 (NGT Act) has been enacted
with the objectives to provide for establishment of a National Green
Tribunal (NGT) for the effective and expeditious disposal of cases
relating to environment protection and conservation of forests and
other natural resources including enforcement of any legal right
relating to environment and giving relief and compensation for
damages to persons and property and for matters connected
therewith or incidental thereto.

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 ENVIRONMENT AND THE INDIAN CONSTITUTION

The Constitution of India is not an inert, but a living document which

evolves and grows with time. The specific provisions on environment
protection in the Constitution are also result of this evolving nature and
growth potential of the fundamental law of the land. Our Constitution is a
complete document.

When we discuss about environment and environment pollution, it is

necessary to look into the Constitution to identify the provisions for their
protection and prevention. Initially when the Constitution was drafted it
did not contain any specific provision on environment and even the word
environment did not find any place in the Constitution. But there were
certain provisions which, to a great extent, had an indirect relation with
environment such as-

• Article 47- The State shall regard the raising of the level of nutrition
and the standard of living of its people and the improvement of
public health as among its primary duties and, in particular, the State
shall endeavour to bring about prohibition of the consumption except
for medicinal purposes of intoxicating drinks and of drugs which are
injurious to health.

• Article 48- The State shall endeavour to organise agriculture and

animal husbandry on modern and scientific lines and shall, in
particular, take steps for preserving and improving the breeds, and
prohibiting the slaughter, of cows and calves and other milch and
draught cattle.

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 • Article 49- It shall be the obligation of the State to protect every
monument or place or object of artistic or historic interest, declared
by or under law made by Parliament, to be of national importance,
from spoliation, disfigurement, destruction, removal, disposal or
export, as the case may be.

The provisions contained in Article 47 is more important as it provides that

the state shall regard the raising of the level of nutrition and standard of
living of its people and improvement of public health as among its primary
duties. Protection and improvement of environment is inherently included
in the improvement of public health because without a sound and safe
environment public health cannot be assured. This clearly reflects that the
framers of the Constitution were mindful about the environmental
concerns.

Article 21 of the Constitution which deals with the right to life and personal
liberty was not of much help in the beginning as it was given a very
restricted and narrow meaning. This Article runs as follows: “No person
shall be deprived of his life or personal liberty except according to
procedure established by law.”

However, in due course of time the problem of pollution and environmental

degradation started drawing the attention of environmentalists. In the year
1972, the then Prime Minister late Mrs. Indira Gandhi attended the United
Nations Conference on Human Environment at Stockholm. In that
conference the following two resolutions were passed which are known as
the Magna Carta of our environmental law:
(a) Man has the fundamental right to freedom, equality and adequate
conditions of life in an environment of quality that permits a life of dignity
and well-being; and

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(b) Man bears a solemn responsibility to protect and improve the
environment for present and future generations.

In 1976, under the leadership of late Mrs. Indira Gandhi, the Constitution of
India went through an amendment in the year 1976. Our country takes
pride in being not only the country having the lengthiest Constitution in the
world, but also in being the country having specific provisions in its
Constitution for the protection of the environment- a feature present in
only some Constitutions in the world. The preamble, the fundamental
rights, the directive principles of State policy and the fundamental duties
chapter explicitly enunciate the Constitutional commitment which India
has to the environment and ecology. Judicial Interpretations have further
strengthened this Constitutional commitment.
1) The Preamble
India’s concern for protection of its environment is deeply reflected
in the words used in the preamble of the Constitution by its makers.
The preamble to the Constitution is a key to open the minds of the
framers of the Constitution. The Supreme Court held so in re-
Berubari case. The importance of the preamble has been pointed
out by the Supreme Court in several cases. In Keshavananda
Bharati Vs. State of Kerala, the Supreme Court held that the
Preamble is a part of the Constitution. The Supreme Court also
observed that the Preamble of the Constitution is of extreme
importance and the Constitution should be read and interpreted in
the light of the grand and noble vision expressed in the Preamble.
The Preamble opens with the words, ‘We, the people of India’ which
indicates the source from which the Constitution comes, i.e., the
people of India. Thus, the people are solely responsible for
constituting India into a “Sovereign, Socialist, Secular, Democratic,

23
 Republic.” The desire to constitute a “socialist” republic requires the
State to pursue policies which are directed towards elimination of
inequities, ensuring healthy living conditions for all. In this we find a
glimpse of the State’s concern for the society. Environmental
pollution which has emerged as one of the biggest social problems is
being regarded as a real problem affecting the society at large and
thus the State is under an obligation to fulfil the basic aims of
socialism, i.e. to provide decent standard of living to all and this can
be possible with a pollution free environment. The creation of a
“democratic” republic also implies the participation of the citizens in
government policies on all matters, including environmental matters.

The above-mentioned mandates are backed by the duty of the State

to assure the ‘dignity of the individual.’ This resulted in the
recognition of the right of an individual to live in a wholesome
environment as a Fundamental Right under Article 21.

Further, the Preamble declares that the State intends to secure to all
its citizens, justice- social, economic and political. Here justice also
includes environmental justice. Although the particular word
‘environment’ is not used, the word “justice” can be interpreted so as
to include environmental justice. Environment as an aspect cannot be
ignored when discussing about the socio-economic or the socio-
political scenario of the country.

2) Fundamental Rights
Several Fundamental Rights, and in particular, those guaranteed by
Articles 14, 19, 21 and 32, have been invoked in developing the
environmental jurisprudence of the country and to move towards the
goal of a pollution-free India. The judiciary’s dynamic interpretation

24
of fundamental rights has brought into it the rights to a healthy
environment through the above-mentioned articles.

a) Article 14- This article of the Constitution guarantees equality

before the law and equal protection of the laws to all persons
within the territory of India. However, it allows reasonable
classification. Article 14 does not mean that all laws must be
general in character or that the same laws should apply to all
persons or that every law must have universal application. This
is because all persons are not, by nature, attainment or
circumstances in the same positions. Thus, the State can treat
different persons differently if circumstances justify such
treatment. This is known as reasonable classification. There is a
necessity of the “reasonable classification” for the society to
progress. The Supreme Court has maintained in many cases
that Article 14 permits reasonable classification of persons,
objects, transactions by the State for the purpose of achieving
specific ends that help in the development of the society. Some
of these cases are- In Sushila Saw Mill Vs. State of Orissa, a State
law prohibited the operation of a saw mill in the Keonjhar
district in Orissa as it was within the prohibited area of
reserved or protected forests. The S.C. upheld this State law
stating that it was not violative of Article 19(l) (g) (All citizens
shall have the right to practice any profession, or to carry on
any occupation, trade or business) and Article 301 of the
Constitution (Freedom of trade, commerce and intercourse
throughout the territory of India shall be free.) It is a settled
law that in the interest of public, restriction under Article
19(l)(g) and Article 301 may, in certain cases, include total

25
 prohibition. The court considered it a reasonable class
legislation to prohibit illicit chopping of forest trees and to
preserve forest wealth. In Rural Litigation and Entitlement
Kendra, Dehradun Vs. State of U.P., the S.C. held that there was
no violation of Article 14 in ordering the closure of mining
operations in some areas, though in certain other areas, such
operations were to be discontinued gradually over a period of
time. In M.C. Mehta Vs. Union of India, the S.C. rejected the
argument that a restriction on construction activities on a lake
violated Article 14 because such a restriction was not extended
to other lakes also. The court observed that each ecosystem is
unique in itself and in order to protect that ecosystem such
restrictions are valid.

b) Article 19- The fundamental freedoms guaranteed by Article 19

and, in particular, the freedom of trade, have played an
important role in protection of environment. While every
citizen has the fundamental right under Article 19(1)(g) to
carry on any trade, occupation, profession or business, if this
has an adverse impact on the environment, the courts have
stepped in to not only regulate such trade, but also to
completely prohibit such trade. The following are a few
landmark cases in which the judiciary has tackled the tricky
question of Business Vs. Environment- In M.C. Mehta Vs. Union
of India (The Taj Mahal case), the S.C. ordered industries in the
TTZ (Taj Trapezium Zone) to stop functioning and relocate to
alternate sites as they were polluting the atmosphere by using
coal and coke as industrial fuel. In Ivory Traders and
Manufacturing Association Vs. Union of India, prohibitions on

26
 ivory trade were upheld in the interest of preserving
biodiversity, although they interfered with the petitioner’s
right to carry on their trade. In M.C. Mehta Vs. Union of India
(Ganga pollution case), tanneries in Kanpur were discharging
untreated effluents into the Ganga river. They were ordered to
be closed down until they had taken proper steps to establish
primary treatment plants, irrespective of their financial
capacities.
Although the freedom of speech and expression has been
recognized as a fundamental right under Article 19(1)(a), it has
also been subject to reasonable restrictions. For example, in
Biranganga Religious Society Vs. The State, the Calcutta High
Court held that the indiscriminate use of microphones and
loudspeakers during daily pujas and other religious activities
causes noise pollution, disturbs the environment and violates a
citizen’s right to sleep and right not to hear.

c) Article 21- There is no provision in the Indian Constitution

which guarantees, expressly, the right to environment. The
only provision which can be considered to subsume this right is
Article 21, which guarantees the right to life and personal
liberty to all persons by stating that no person shall be
deprived his life or personal liberty except according to the
procedure established by law. In Maneka Gandhi v. Union of
India, the Supreme Court of India, for the first time, adopted an
innovative method of interpretation to widen the meaning of
‘life’ and ‘personal liberty’ for inclusion of a variety of facets of
life. The Court observed-“the attempt of the court should be to
expand the reach and ambit of the fundamental rights rather

27
than weaken their meaning and content by a process of
contraction.” In Francis Caroline Mullin v. Delhi Administration,
the Supreme Court gave a wider meaning to the right to life.
This is evident in the observation made by Justice Bhagwati
which is as follows: “The Right to life enshrined in Article 21
cannot be restricted to mere animal existence. It means
something more than just physical survival.”
On the basis of the wider interpretation to the right to life in
Article 21 of the Constitution of India, the Supreme Court and
the High Courts have held in several cases that the right to
pollution-free environment is part of the right to life. The first
case where the Supreme Court recognised the right to clean
environment, as an aspect of the right to life, is Rural Litigation
and Entitlement Kendra v. State of U.P. In this case, limestone-
mining activities in the Mussoorie-Dehradun region caused
ecological disturbance. The Supreme Court held that these
activities polluted the environment and, thus, violated the right
to life of the people living in that region. While ordering the
closure of some of the limestone quarries, the Supreme Court
implicitly read the right to clean environment in the right to
life. In Subhash Kumar v. State of Bihar, the S.C. held that the
right to life is a fundamental right under Article 21 of the
Constitution and it includes the right to enjoyment of pollution-
free water and air for full enjoyment of life. If anything
endangers or impairs that quality of life, a citizen has the right
to have recourse to Article 32 of the Constitution for removing
the pollution of water or air which may be detrimental to the
quality of his/her life. In M.C. Mehta v. Union of India
(popularly known as Oleum Gas Leakage case), the Supreme

28
 Court once again treated the right to live in a pollution free
environment as a part of the fundamental right to life under
Article 21 of the Constitution. In Murli Deora Vs. Union of India,
it was held that non-smokers have a right to be protected
against the adverse effects of “passive smoking”, thus justifying
a ban on smoking in public places.

d) Articles 32 and 226- Article 32 of the Constitution has

conferred writ jurisdiction on the Supreme Court which can
issue any directions, orders or writs in the nature of habeas
corpus, mandamus, prohibition, certiorari and quo warranto.
Petitioners in the cases cited above have invoked this
jurisdiction of the Supreme Court to obtain appropriate orders
for protecting the environment. It may be noted that generally
the writs of mandamus, certiorari and prohibition are involved
in environmental litigation. A similar power is conferred on the
High Courts of States by Article 226 of the Constitution for the
enforcement of fundamental rights or for any other purpose. In
M.C. Mehta v. Union of India, the Supreme Court took note of
environmental pollution due to stone crushing activities in and
around Delhi, Faridabad and Ballabgarh complexes. The Court
was conscious that environmental changes are the inevitable
consequences of industrial development in our country, but at
the same time the quality of environment cannot be permitted
to be damaged by polluting the air, water and land to such an
extent that it becomes a health hazard for the residents of the
area. Showing deep concern to the environment, the Court
reiterated that every citizen has a right to fresh air and to live
in pollution free environment. Thus, the Supreme Court once

29
 again treated it as violation of Article 21 of the Constitution and
passed the order in absolute terms under Article 32 directing
the stone crushing units to stop their activities in Delhi,
Faridabad and Ballabgarh complexes.

3) Fundamental Duties
The Forty-second Amendment of the Constitution in 1976 added a
new dimension to the Indian Constitution in the form of Article 51A
which deals with the Fundamental duties. Presently we have eleven
fundamental duties in our Constitution under article 51A. Out of
these eleven, Article 51A (g) is the one of the fundamental duties
which exclusively emphasises on environmental protection. Article
51A (g) lays down that it shall be the duty of every citizen of India to
protect and improve the natural environment, including forests,
lakes, rivers and wild life, and to have compassion for living
creatures. The legal utility of fundamental duties is similar to that of
the directive principles of State policy as they stood in the
Constitution as of 1949; while the directive principles of State policy
were addressed to the State, without any legal sanction, so are the
fundamental duties addressed to the citizens, without any legal
sanction.

Although Article 51A (g) of Fundamental Duties is termed

fundamental, they are not enforceable. But the judiciary has taken
into account the dire necessity of protecting the ecology and has
given paramount importance to Article51A (g).

The scope of Article 51A(g) was examined by the High Court of

Rajasthan in L. K. Koolwal v. State of Rajasthan. Under the Rajasthan
Municipalities Act, 1959, the Municipal Authority is charged with the

30
primary duty to clean public streets, sewers and all spaces and
places, not being private property, which are open to the enjoyment
of public, removing of noxious vegetation and all public nuisances
and to remove fifth, rubbish, night soil, odour or any other noxious or
offensive matter. The petitioner L. K. Koolwal moved a writ petition
under Article 226 of the Constitution before the Rajasthan High Court
showing that the municipality has failed to discharge it “primary
duty” resulting in the acute sanitation problem in the city of Jaipur
which is hazardous to the lives of the citizens of Jaipur. The High
Court gave the administration six months to clean up the entire city
of Jaipur, dismissing its plea of lack of staff and of funds. While
pronouncing the judgement, the court explained the true scope of
Article 51A in the following terms- “we can call Article 51A as the
duty of the citizens. The State should also perform its duties under
Article 48A faithfully.”

The S.C. relied upon Article 51A(g) in Nature Lovers Movement Vs.
State of Kerala, where the Government had passed orders laying
down conditions to regulate exploitation of environment and natural
resources. In Sitaram Chhaparia Vs. State of Bihar, the Patna High
Court held that since the protection of the environment is now a
fundamental duty under Article 51A (g) of the Constitution, the State
was obliged to ensure that it directed the closure of a tyre re-
threading plant set up in a residential area, which was emitting
carbon dioxide and other obnoxious gases, causing great harm to the
residents of the locality as well as to the environment.

31
4) Directive Principles of State Policy
The Indian Constitution deals extensively with directive principles of
state policy, which embody the socio-economic goals which the
nation is expected to achieve. The Directive Principles of State Policy
and the Fundamental Duties Chapter explicitly enunciate the national
commitment to protect and improve the environment. Ever since the
adoption of the Stockholm Declaration on the Human Environment in
1972, there has been a growing awareness, at both national and
international levels, of the environmental crisis which the world is
facing today. A host of official and non-official international bodies
are currently engaged in devising global strategies on how to ensure
that the biological community interacts healthily within itself and
with the physical environment around it.

Articles 37 to 51 of the Constitution as detailed in Part IV of the

Constitution form the Directive Principles of State Policy. These
principles are the “embodiment of the ideals and aspirations of the
people of India and the goal towards which they expect the State to
march for their attainment”. They are merely the directives issued to
the state. Although they are not enforceable in any court of law, they
are fundamental in the governance of the country and it is the duty of
the State to apply these principles when framing laws. As Article 37
aptly says- “the provisions contained in this Part (Part IV) shall not
be enforced by any court, but the principles therein laid down are
nevertheless fundamental in the governance of the country and be
the duty of the state to apply these principles in making laws”. The
directive principles are policy prescriptions that guide the
government. In several cases, the courts have interpreted
fundamental rights in the light of the directive principles. In other

32
words, fundamental rights and directive principles of state policy are
interpreted, as far as possible, to complement and supplement each
other.

In a welfare state like India, the paramount object of the state is to

secure to its citizens, justice, social, economic and political as
enshrined in the Preamble of the Constitution. These objectives can
be achieved by implementing the directions given in Part IV of the
Constitution. By simply making laws, these objectives cannot be
achieved. It is the utmost responsibility of the state to act in a proper
direction to ensure that the directives are properly implemented.

As indicated earlier, although our constitution did not contain the

word ‘environment’ at initial stages, the concern of the framers of the
Constitution was reflected in Article 47 of the constitution which
reads as follows- “ The State shall regard the raising of the level of
nutrition and the standard of living of its people and the
improvement of public health as among its primary duties and, in
particular, the State shall endeavour to bring about prohibition of the
consumption except for medicinal purposes of intoxicating drinks
and of drugs which are injurious to health.” This Article calls upon
the state to perform the basic duty to look after the health of the
citizens and also take necessary and effective steps to improve their
standard of living and also to raise their level of nutrition.
Improvement of public health forms the core of environment because
due to various environmental hazards it is the health of the general
public which comes under severe threat. With the objective of
affording better protection to the environment, The Constitution
(Forty-second Amendment) Act, 1976, added a new directive
principle in Article 48A dealing specifically with the protection and

33
improvement of environment. It provides: “The State shall endeavour
to protect and improve the environment and to safeguard the forests
and wild life of the country.”

Thus, the Indian Constitution became one of the rarest constitutions

of the world in which specific provisions were incorporated in the
Supreme Law to protect the environment and ecology by casting
obligations on the State to “protect and improve” the environment.
This certainly is a positive development of Indian law. This Article
used the word ‘environment’ in a wider sense which affects all the
living being and influences the conditions of their lives. With the
adoption of Article 48A, the Parliament has imposed a new
constitutional obligation on the state by incorporating it into the
Constitution. The language of Article 48 A has been taken into
account by the courts in a number of cases relating to environment
which are as follows-

In Sachidanand Pandey Vs. State of West Bengal, the S.C. observed

that whenever a problem of ecology is brought before the court, the
court is bound to keep Article 48A and Article 51A(g). In Kinkri Devi
Vs. State, the High Court of Himachal Pradesh observed that in
Articles 48A and 51A(g), there is both a constitutional direction to
the State and a constitutional duty on the citizen to not only protect
and improve the environment, but also to safeguard the forests, the
flora and fauna, the rivers and lakes and all other resources of the
country. In T. Damodar Rao Vs. The Special Officer, Municipal
Corporation of Hyderabad, the High Court of Andhra Pradesh went a
step further and held that in views of Articles 48A and 51A(g),
protection of the environment is not only the duty of every citizen,

34
 but also the obligation of the State and all other State organs,
including the judiciary.

5) Federal structure and division of legislative authority

India being a federal state, legislative powers are shared between the
Union and the State Legislatures. Part XI of the Constitution governs
the legislative and administrative relations between the Union and
the States. While Articles 245 to 255 deal with the distribution of
legislative powers, the distribution of administrative powers is dealt
with in Articles 256-261.

Article 245 empowers the parliament to make laws for the whole
country where as the State Legislatures have the power to legislate
for their respective states. Article 246 of the constitution divides the
subject areas of legislation between the Union and the States. The
three lists, i.e. List I or the Union List, List II or the State List, List III
or the Concurrent List contained in the Seventh Schedule of the
Constitution demarcate the legislative fields of the Union and the
States. The Parliament is vested with exclusive power to make laws
with respect to any of the matters mentioned in the Union
List(contains various subjects which include defence, atomic energy,
shipping, major ports, regulation of air traffic, inter-state
transportation, regulation and development of oil fields, mines and
mineral development, etc.) The State Legislature has exclusive power
to make laws for such state or any part thereof, with respect to any of
the matters enumerated in the State List (contains various subjects
which include public health and sanitation, agriculture, water
supplies, irrigation, drainage, fisheries, etc.) The Parliament and the
legislature of any state is competent to make laws with respect to any
of the matters enumerated in the Concurrent List (contains various

35
subjects which include forests, protection of wild animals and birds,
population control and family planning, adulteration of food stuffs
and other goods, prevention of cruelty to animals, bankruptcy and
insolvency, criminal law, etc.)Article 248 of the Constitution provides
for the Parliament’s residuary powers of legislation. Parliament has
the exclusive power to make any law with respect to any matter not
enumerated in the Concurrent List or State List.

The Constitution also provides instances when Parliament can

directly legislate on matters falling within the State List. In this case
reference may be made to Articles 252 and 253. Article 252
empowers the Parliament to legislate for two or more States on a
matter falling under the State List if resolutions are adopted to that
effect by the State legislatures. The consent of the concerned States is
to be procured first. It was under this provision that the Parliament
passed the Water Act, 1974, after enabling resolutions were passed
by the legislatures of twelve States since water was a subject
contained in the State List. Article 253 specifically empowers the
Parliament to make any law for the whole or any part of the territory
of India for implementing any treaty, agreement or convention with
any other country or countries or any decision made at any
international conference, association or other body. It was under this
power that the Parliament enacted the Air Act, 1981, the
Environment (Protection) Act, 1986. Both these Acts expressly
declare that they were passed to implement the decisions taken at
the Stockholm Conference in 1972 in which India had participated.
It is pertinent to mention here that certain changes were made
in the Seventh Schedule to the Constitution by the Forty Second
Amendment, 1976 and certain entries were transferred from
one list to another. Thus, in the Concurrent List, entries 17A, 17B
36
and 20A were added to include “forest”, “protection of wild
animals and birds” and “population control and family planning”
to enable the Parliament to enact legislations, keeping in view
the national and international environmental perspectives.
These entries were initially present in the State List.

Feeling the urgency and importance of pollution control and for

better results, the Panchayats and the Municipalities were also given
wide ranging powers by way of amendments to the Constitution. The
Constitution (Seventy Third Amendment Act, 1992) introduced
provisions relating to Gram panchayats and added a new schedule
“Schedule Eleven” to the Constitution. Schedule Eleven have several
entries which are linked with environmental protection and
conservation. The entries are soil conservation, water management,
watershed development, social forestry and farm forestry, drinking
water, fuel and fodder, means of communication, non-conventional
energy sources and maintenance of community assets which are very
significant from the environmental management point of view.
Similarly, the Seventy Fourth Amendment Act, 1992 added urban
forestry, protection of the environment and promotion of ecological
aspects to the Twelfth Schedule and the functions were assigned to
the municipalities. The Panchayats and Municipalities are
empowered to exercise administrative control on the topics
mentioned above.

Looking at the above-mentioned constitutional provisions, it can be

understood that the Parliament is empowered to legislate on almost
any and every matter relating to the environment.

37
6) Protection of the environment after the Forty-Second Amendment
As seen above, the Forty-Second Amendment of the Constitution in
1976 introduced specific provisions relating to environment in the
Indian Constitution. This gave a lot of impetus to the ecology and
environment in the following three ways-
a) It inserted Article 48A as a directive principle of state policy,
directing the State to take steps to protect and improve the
environment.
b) It inserted Article 51A(g) as a fundamental duty of every
citizen to protect and improve the natural environment
including forests, lakes, rivers and wildlife.
c) It shifted the entries relating to “Forests” and “Protection of
wild animals and birds” from the State List (where only
States could legislate) to the Concurrent List (where both
the Centre/Union and the State could make laws and in case
of a conflict between the two, the laws made by the centre
will prevail.

38
 PUBLIC INTEREST LITIGATION (PIL)

Public Interest Litigation is a mode of litigation which is carried out

for the purpose of protecting public interest. This type of litigation is
introduced in a court of law, where the court, on its own or by any
other private party and not by the aggrieved party, takes cognizance
of an issue. In Public Interest Litigation, for the exercise of the court’s
jurisdiction, it is not necessary that the victim whose rights are
violated should personally approach the court. Public Interest
Litigation is the power which has been given to the public by courts
through judicial activism.

Public Interest Litigation takes place when the victim is devoid of

necessary resources to initiate litigation on his own or his freedom to
move to the court has been subdued or infringed. The court is
empowered to take cognizance of the matter by itself and can
proceed suo moto or cases can also be commenced by a petition filed
by any public-spirited individual.

Public interest litigation is not defined in any statute. It has been

interpreted by judges to consider the intention of public at large.
However, the principal purpose of such litigation is exclusively
“Public Interest”. There are diverse areas where a Public interest
litigation can be filed. For e.g.

a) When basic human rights of a poor person are violated.

b) To question contents or conduct of any government policy.
c) To compel municipal authorities to perform a public duty.
d) When religious rights or other basic fundamental rights are
violated.

39
Legal History of PIL

The concept of PIL in India is considered as an upgraded version of

PIL in U.S.A. According to “Ford Foundation” of U.S.A., “Public
interest litigation is the name that is given to the efforts which
provide legal representation to previously unrepresented groups and
interests. Such efforts have been undertaken after recognizing the
fact that ordinary marketplace for legal services failed to provide
such services to significant segments of the population and to
significant interests. Such groups and interests include the
environmentalists, consumers, racial and ethnic minorities and
others”.

In India, the emergency period (1975-1977) witnessed colonial

nature of the Indian legal system. During the emergency period, State
repression and governmental lawlessness was widespread.
Thousands of innocent people including political opponents were
sent to jails and there was complete deprivation of civil and political
rights. The post emergency period provided a motive to the judges of
the Supreme Court to provide the poor with better access to justice.

Prior to 1980s, only the aggrieved party could knock the doors of
justice personally and can seek remedy for his grievance and any
other person was not entitled to represent that victim or the
aggrieved party. In other words, only the aggrieved had the locus
standi to file a case and continue the litigation and the non-affected
persons did not have locus standi to do so. Locus Standi means the
right of a person to bring an action in the court of law or the right to
be heard in the court or the right to address the Court on a matter
before it. Prior to 1980’s there was hardly any relationship between

40
the rights guaranteed by the Constitution of India, the laws made by
the legislature and the vast majority of illiterate citizens on the other
hand.

The traditional view with regard to locus standi in Writ jurisdiction

has been that only such persons could approach the court who:

a) have suffered a legal injury by reason of violation of his legal right

or legally protected interest; or

b) is likely to suffer a legal injury by reason of violation of his legal

right or legally protected interest.

Thus, before a person acquired a locus standi, he had to have a

personal or individual right which was violated or was threatened to
be violated. He should have been an “aggrieved person”, i.e. that he
should have suffered or was likely to suffer some prejudice-
pecuniary or otherwise.

However, this entire scenario gradually changed post emergency

period when Supreme Court tackled the problem of people’s access
to justice by making radical changes and alterations in the
requirements of locus standi and of being an aggrieved party.

The splendid efforts of Justice P N Bhagwati and Justice V R Krishna

Iyer were instrumental in this juristic revolution.

Justice V. R. Krishna Iyer and P. N. Bhagwati recognized the need to

provide the poor and exploited people better access to justice by
relaxing the rules of standing. In the post-emergency period when
the political situations started changing, investigative journalism set
in and it began to expose gruesome scenes of governmental

41
lawlessness, repression, custodial violence, drawing attention of
lawyers, judges, and social activists.

PIL emerged as a result of an informal nexus of pro-active judges,

media persons and social activists. This trend showed a marked
difference between the traditional justice delivery system and the
modern informal justice delivery system wherein the judiciary is
performing administrative judicial role. PIL is necessary for rejection
of laissez faire notions of traditional jurisprudence.

Emergence OF PIL
The first reported case of PIL in 1979 focused on the inhuman
conditions of prisons and under trial prisoners. In Hussainara
Khatoon Vs. State of Bihar, a PIL was filed by an Advocate on the
basis of the news item published in the Indian Express, highlighting
the plight of thousands of under trial prisoners languishing in various
jails in Bihar. This PIL led to the release of more than 40,000 under
trial prisoners. Right to speedy justice, which was denied to these
prisoners, emerged as a basic fundamental right under Article 21 of
the Constitution. The same set pattern was adopted in subsequent
cases too.

In 1981 the case of Anil Yadav Vs. State of Bihar exposed the
brutalities of the Police. Newspaper reports revealed that about 33
suspected criminals were blinded by the police in Bihar by pouring
acid into their eyes. Through interim orders Supreme Court directed
the State government to bring the blinded men to Delhi for medical
treatment. It also ordered speedy prosecution of the guilty
policemen. The court also stated that the right of every accused to
free legal aid is a fundamental right under Article 21 of the

42
Constitution. This signalled the growth of social activism and
investigative litigation.

Public Interest Litigation and Environment

Environmental protection, during the last few years, has become not
only a matter of national concern but of global importance too. It is
now an established truth beyond all doubts that without a clean
environment the very survival of mankind is at stake. Decline in
environmental quality has been evidenced by increasing pollution,
loss of vegetal cover and biodiversity, excessive concentration of
harmful chemicals in the ambient atmosphere and food chains,
growing risks of environmental accidents and threat to life support
systems. This has drawn the attention of entire world community
and, therefore, they resolved to protect and enhance the
environmental quality. How could the judiciary remain a silent
spectator when the subject has acquired such high importance and
has become matter of caution? Almost 95 per cent action taken in a
court of law to protect environment is through public interest
litigation. One name that surfaces prominently in the protection of
environment is that of a spirited public man, Shri M.C. Mehta who has
single handedly filed a number of public interest litigations in the
Supreme Court relating to different aspects of environment
protection.

There are several remedies available for environmental wrongs, such

as actions in tort, prosecutions under Sections 133 and 144 of the
Criminal Procedure Code, 1973 for public nuisances, statutory
proceedings under various environmental acts (Eg. The Environment
Protection Act, 1986, The Air Act, The Water Act, etc.) and

43
 representative suits under order I, Rule 8 of the Civil Procedure Code,
1908. However, these remedies have not been resorted to as
frequently as PIL because of the delay inherent in the Indian
procedural system and because of their disorganized approach. PIL
offers greater reliefs and it brings about positive changes in
governance and policy-making, thereby making it an ideal tool for
environmental remedies. Following are some of the land mark cases
in which PIL has proved to be most effective instrument in protecting
environment-

1. Ratlam Municipal Council Vs. Vardhichand- Ratlam is a small city in

Madhya Pradesh. A person named Vardichand, residing in the
municipality, complained of unhygienic conditions prevailing in the
area caused due to open drains, effluents from alcohol plant flowing
into streets and poor sanitation including open public excretion by
slum dwellers. The residents filed a complaint before the Sub-
Divisional Magistrate under Section 133 of Criminal Procedure Code
alleging that the municipality is not constructing proper drains and
that there was nuisance to the public. They also stated that the
Municipality had failed to meet its obligations to provide for public
health including by failing to abate pollution and other hazardous
waste from impacting their homes. The magistrate issued directions
to the municipality to draft a plan for removal of the nuisance within
a period of 6 months. The municipality did not comply with the order
of the magistrate. It moved in appeal to the Session’s court which
reversed the order of the magistrate. In further appeal by the
residents, the High court set aside the order of the Session’s court
and approved the order of the Magistrate. The municipality further
appealed before the Supreme Court and took the plea of financial

44
 inability. The Supreme Court considered this case in the context of
collective rights and public interest.
The Court held that the power of the Magistrate under Section 133 of
the Code of Criminal Procedure, forms ‘a public duty to the members
of the public who are victims of the nuisance, and so he shall exercise
it when the jurisdictional facts are present as here’. The Municipality
could not remove itself from its responsibility. The Court
furthermore held that the Municipality’s alleged financial inability
does not take away its liability. The Criminal Procedure Code
operates against statutory bodies and others regardless of the cash in
their reserves as fundamental rights under Part III of the Constitution
have to be respected by the State regardless of their budgetary
provisions. The Supreme Court ordered the Municipal Council to
immediately abide by its obligation to protect the environment by
halting pollution from the alcohol plant flowing into the community.
It also ordered the Council to immediately begin to take steps to
provide a sufficient number of public latrines for use by men and
women separately, to provide water supply and scavenging services
both in the morning and evening to ensure sanitation, and required
the Municipal authorities to meet these obligations within six months
of the Court’s order. The Court added that if this order was not
implemented, the municipal authorities could face criminal sanctions
as well as they would be held in contempt of court.

2. Vellore Citizen’s Welfare Forum Vs. Union of India-The Vellore

Citizens Welfare Forum filed a public interest petition under Article
32 of the Constitution of India against large-scale pollution of the soil
and water caused by the discharge of untreated effluent by tanneries
and other leather industries in the state of Tamil Nadu. According to
the petitioner, the entire surface and sub soil water of the river Palar
45
 has been polluted resulting in non-availability of potable water to the
residents of the area. The petitioner illustrated the evils of these
tanneries on the strength of reports from Tamil Nadu Agricultural
University Research Centre, an independent survey conducted by the
non-government organizations, and a study by two lawyers deputed
by the legal Aid and Advise Board of Tamil Nadu. The Supreme Court
held that, although, the leather industry in the state of Tamil Nadu is
a major foreign exchange earner and contributes approximately
eighty percent to India’s export, it has no right to degrade the
environment or create health hazards. The Court emphasized on the
fact that the traditional notion that development and ecology are
opposed to each other could not be accepted in the contemporary
times. Hence, it resorted to the concept of ‘Sustainable Development.
The Court also embraced the ‘Precautionary Principle’ and the
‘Polluter Pays Principle’ as being essential features of Sustainable
Development. The Court, realizing the urgency of matter, ordered the
closure of all such tanneries which refuse to pay compensation for
past pollution or which have failed to setup appropriate pollution
control devices. Lastly, the Court also requested the Madras High
Court to constitute a Special Bench- the ‘Green Bench’ to further
monitor the implementation of its judgment.

3. M.C. Mehta Vs. Kamal Nath-The Indian Express published an article

reporting that a private company, Span Motels Private Ltd. 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 hectares of land
which also included forest land. The land was regularized and
subsequently leased out to the company by the Government. Mr.
Kamal Nath was the Minister in charge, Department of Environment
46
 and Forests at the time clearance was given and lease was granted.
This encroachment had an impact on the course of river Beas flowing
nearby. For more than 5 months the Span Resorts management
moved bulldozers and Earth movers to turn the course of the river.

M.C. Mehta filed a petition relating to this in the S.C. The Supreme
Court held that the forest lands which have been given on lease to the
Motel by the State Government are situated at the bank of the river
Beas. The Beas is a young and dynamic river and it changes its course
very often. The right bank of the river is where the Motel is located is
a forest area. The area is ecologically fragile and therefore it should
not be converted into private ownership. The Supreme Court applied
the ‘Doctrine of Public Trust’ to the present case. Public Trust
Doctrine primarily rests on the principle that certain resources like
air, sea, water and the 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 said resources being a gift of nature should
be made freely available to everyone irrespective of the status in life.
Certain common properties such as rivers, seashore, forests and the
air are held by Government in trusteeship for the free and
unobstructed use of the general public.

The Supreme Court quashed the lease-deed by which forested land

was leased to the Motel Company and held that the construction
activity carried out by the Motel Company was not justified.

a) The Motel was ordered to pay compensation by way of cost for the
restitution of the environment and ecology of the area.

47
b) 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.

c) The Court restricted the Motel from discharging untreated effluents

into the river. Himachal Pradesh Pollution Control Board was
directed to inspect and keep a check.

4) Indian Council for Enviro Legal Action Vs. Union of India and others-
A PIL was filed by the Indian Council for Enviro-Legal Action, an
environmentalist organization, to prohibit and remedy the pollution
caused by several chemical industrial plants in Bichhri village,
Udaipur District, Rajasthan. The Respondents, including Hindustan
Agro Chemicals Limited, operated heavy industrial plants in Bichhri,
thereby producing chemicals such as oleum (a concentrate form of
sulphuric acid), single super phosphate and the highly toxic "H" acid
(the manufacture of which is banned in western countries).
Respondents operated these plants without permits which caused
serious pollution of the environment. Toxic waste water was
untreated and left to be absorbed into the Earth. The soil also became
polluted and unfit for cultivation. Several people in nearby villages
were alleged to have contracted diseases due to the pollution and
some of them had died. The S.C. extended the principle of absolute
liability laid down in the Oleum gas leak case and held that the
manufacturers of products discharging toxic effluents into the
environment without adequate treatment will be liable for payment
of compensation. Polluter Pays Principle was applied and the
respondents were held absolutely liable to compensate for the harm
caused by them to the villagers in the affected area, to the soil and to
the underground water. It was also held that the respondents are
48
 bound to take all necessary measures to remove the sludge and other
pollutants lying in the affected area and also to defray the cost of the
remedial measures required to be taken to restore the soil and the
underground water sources.

5) M.C. Mehta Vs. Union of India ( The Taj Trapezium case)

(Explained in detail on page number 161)

6) M.C. Mehta Vs. Union of India ( The Kanpur Tanneries case)

(Explained in detail on page number 134)

49
 ENVIRONMENTAL POLLUTION- LEGAL REMEDIES AND
PROCEDURE
Environmental pollution is growing at an alarming rate. The
environment has deteriorated markedly in about the last 51 years
due to severe decline in natural resources and rapid increase in
environmental pollution. Depletion of forests, population growth,
vehicular emissions, use of hazardous chemicals and various other
undesirable human activities are mainly responsible for this
degraded scenario of environmental health in India. It is, in fact,
rendering considerable economic loss to the country which warrant
serious attention of policy makers, administrators, scientists and
public in general to save the environment and humanity and to
provide generational equity in future. Therefore, to regulate such an
alarming growth of environmental pollution and for eco-
conservation in India, the threats of environmental degradation have
been identified and certain regulatory systems or mechanisms have
been formulated. Now it is essentially advisable to become protector,
producer and caretaker of natural resources and not the predator,
polluter and consumer of Earth. Presently, the environmental issues
are regulated through a developed set of legislations. But even before
such legislations came into existence, there have been remedies
available against pollution of any kind.

Following are the various remedies available against environmental

pollution-
a. Remedies under law of torts- Tort law or the law of civil
wrongs has emerged out of the common law system.
Common law is the body of law rooted from customs and
conventions recognized through the decisions of Courts of

50
 law in contrast to legislative enactments. It is derived from
the word ‘Lex communis’. The common law was mainly
brought by British to India. Although tort law does not deal
directly with pollution control, one can spell out rules of
pollution control and successfully apply them from the
principles evolved out of certain aspects of the law. In M.C.
Mehta v. Kamal Nath, the S.C. correctly observed that
environmental pollution amounts to civil wrong and by its
nature, it is a tort committed against the whole community.
The court observed: “Pollution is a civil wrong. By its very
nature, it is a tort committed against the community as a
whole. Therefore, a person who is guilty of causing
pollution, has to pay damages for restoration of the
environment and ecology. He also has to pay damages to
those who have suffered loss on account of the act of the
offenders. A common law action under the law of torts is
perhaps the oldest of all legal remedies available for
protection of the environment. Effective remedies exist in
this branch of law to tackle the problem of environmental
pollution mainly under four categories of torts, namely,
nuisance, negligence, trespass and strict liability, which was
converted into absolute liability by the S.C. in the wake of
the Oleum gas leak case. The categories are as follows-

a) Nuisance- The word ‘nuisance’ has been derived from the

French word nuire which means ‘to injure’, ‘hurt’ or ‘harm.’
Nuisance ordinarily means anything which annoys, hurts or
that which is offensive. Nuisance includes any act, omission,
injury, damage, annoyance or offence which is or may be

51
dangerous to life or injurious to health or property. Under the
Common Law Principle, the nuisance is concerned with the
unlawful interference with a person’s use or enjoyment of land,
or some right over or in connection with it. Nuisance involves
interference with the comfort, health or safety of the
individuals. Any act which affects the environment, such as
polluting the water or water courses, poisoning the air,
creating disturbances to the people by producing excess sound
etc. are considered to be acts interfering with the peaceful
living of the people. Such acts can be treated as nuisances and
hence remedial measures can be taken for controlling the
same. There are two kinds of nuisances, namely, public
nuisance and private nuisance.

Public nuisance can be defined as an act affecting the public at

large or some considerable portion of them. It is an
unreasonable interference with the rights of the general public.
It is also known as common nuisance and action can be brought
against it before the court either by way of a civil action or by
way of a criminal action. Public nuisance as a civil wrong is
dealt with under the Code of Civil Procedure and public
nuisance as a criminal wrong is dealt with under the Indian
Penal Code and Code of Criminal Procedure.

Private nuisance is an act affecting some particular individual

or individuals and not the public at large. Thus, a substantial
and unreasonable interference causing personal discomfort
constitutes private nuisance. In case of private nuisance, action
may be brought by way of damages or injunctive relief. It must
be remembered that a private individual has no right of

52
 action in respect a public nuisance unless he can show that
he has sustained some ‘special’ damage over and above the
damage inflicted on the community at large.

In Dr. Ram Baj Singh Vs. Babulal, the plaintiff, a doctor,

succeeded in restraining the defendant from using a brick-
grinding machine which generated lots of dust, which not only
entered his consulting rooms and caused inconvenience to him
and his patients, but also polluted the atmosphere in general.

In J.C. Galstaun Vs. Dunia Lal Seal, the plaintiff who owned a
garden-house barely 200-300 yards away from the defendant’s
factory complained that the refuse-liquid discharged from the
factory into a municipal drain was not only foul smelling and
noxious to the health of the neighbouring residents, but had
also reduced the market value of his property. The court
granted a perpetual injunction against the defendant and
awarded damages to the plaintiff.

In Free Legal Aid cell Vs. Government of NCT of Delhi, the Delhi
High Court rightly observed that the effect of noise on health is
a matter which has yet not received that attention of the
judiciary which it deserves. Pollution, being wrongful
contamination of the environment, causes material injury to
the right of an individual and noise can well be regarded as a
pollutant because it contaminates the environment, causes
nuisance and affects the health of a person if it exceeds a
reasonable limit.
b) Negligence- Negligence is another specific tort on which a
common law action for preventing environmental pollution

53
lies. Negligence is the breach or failure of duty to take
reasonable care and when these result in environmental
pollution, a suit can be filed for the tort of negligence. Where
there is a duty to take care, reasonable care must be taken in
order to avoid acts or omissions which can reasonably be
foreseen to be likely to cause injury to person or property. In
Naresh Dutt Tyagi Vs. State of U.P.,chemical pesticides were
stored in go down in residential area. Fumes emanating from
the pesticides escaped into the neighbouring property through
ventilators which resulted in the death of three children and an
infant in the womb of the mother. It was held that it was a clear
case of negligence.

In negligence, the connection between the alleged negligence

and the harm or injury inflicted on the plaintiff needs to be
established. Where the pollutant is, by itself, highly toxic and its
effects can be seen immediately, as in the case of the Bhopal gas
leak, the connection is straight and direct. But in cases where
there is a long time before the effects of the pollutants become
evident, it can always be argued that the injury was caused due
to factors other than the pollutant. In such cases, the court
faces a dilemma and may eventually decide to give the benefit
of doubt to the defendant/polluter.

In Mukesh Textile Mills Vs. Shastri, a factory stored molasses in

tanks. One day the tank collapsed, got emptied in a water
channel, causing great damage to the paddy fields of the
plaintiff located nearby. The court held that the factory was
under the duty to take reasonable care of maintaining the tanks
since it stored such huge quantities of molasses in them. When
54
 this duty is not performed, it amounts to actionable negligence.
Moreover, such damages can be reasonably foreseen and
therefore the factory was held liable for the tort of negligence
and causing environmental pollution.

c) Strict liability and Absolute liability- The rule of strict liability

was evolved in the year 1868 in the case of Rylands Vs.
Fletcher. In this case, the defendant employed independent
contractors to build a reservoir on his land. During the
construction, the contractors discovered a series of old coal
shafts which were improperly filled with debris. The
contractors chose to continue the work rather than properly
filling them up and covering them. The result was that the
defendant’s reservoir burst and flooded a neighbouring mine
belonging to the plaintiff, thereby causing severe damage to
him. The plaintiff brought a claim under the tort of
negligence against the defendant. The rule of strict liability was
applied in this case for the first time. The rule provides that the
person who, for his own purposes, brings on his land and
collects and keeps there anything which is likely to do mischief
if it escapes, he shall be prima facie answerable for all the
damage which is the natural consequence of its escape The
liability under this rule is strict and it is no defence that the
things escaped without that persons wilful act, default or
neglect or even that he had no knowledge of its existence.

The rule was enunciated by Justice Blackburn. The principle is

that when a person brings on his premises something that is
likely to cause harm if it escapes and possesses it at his peril, he
will be strictly liable for the damage caused as a result of the

55
escape of the substance. There is no need either to establish
any negligent conduct or malicious intention to make one
liable. Liability is strict and independent of motive. It imposes
‘no fault’ liability as attachment of liability exists irrespective of
the fact that one had taken abundant care and caution and still
the object escaped from his control and caused damage to
others. The rule of strict liability prescribes certain exceptions.
The defendant can raise a few defences such as-
• Act of God
• The plaintiff’s own fault
• The act of a third party
• The consent of the plaintiff
• Statutory authority

The doctrine of strict liability, also known as liability without

fault has been applied in cases relating to environmental
pollution, particularly, in those cases where the harm is caused
by the leakage of hazardous substances. In Waschak Vs. Moffat,
hydrogen sulphide gas was emitted from two of the
defendant’s plants/units which damaged the white paint on the
plaintiff’s house. The defendant did not know and had no
reason to anticipate the emission of the gas and the results
which might follow. Nevertheless, it was held that the
defendant was liable on the ground of strict liability.
India, being a developing country with less consciousness about
environmental rights, modified the rule of strict liability
according to its own needs. With the increase in the number of
chemical-based industries in India, more and more hazardous
substances are being used and stored. The traditional doctrine

56
of strict liability may not provide adequate relief in some cases
due to its manifold exceptions. The gas leak tragedy in Bhopal
demonstrated the havoc played by hazardous substances and
gases with the lives of thousands of innocent persons. It was to
remedy this situation that Justice Bhagwati, the then Chief
Justice of India, in M.C.Mehta Vs. Union of India (the oleum gas
leak case), voiced his concern for innocent citizens and evolved
a stricter doctrine/rule/principle known as the
doctrine/rule/principle of absolute liability. It was felt that
there was a need to evolve new principles and lay down new
norms which could adequately deal with the new problems
which arise in a highly industrialized economy.

The Supreme Court, while evolving the new principle, stated

that where an enterprise is engaged in hazardous or inherently
dangerous activities resulting in, for example, the escape of
toxic gases, the enterprise is strictly and absolutely liable to
compensate all those who are affected by the accident and such
liability is not subject to any exceptions. The court further
pointed out that the measure of compensation must be co-
related to the magnitude and capacity of the enterprise because
such compensation must have a deterrent effect. This makes it
clear that the main difference between strict liability and
absolute liability is that in case of strict liability there are
certain defences available to the defendant to escape from the
liability, but in case of absolute liability there are no such
defences available. In other words, there are no exceptions to
the rule of absolute liability. The liability is absolute.

57
 The Supreme Court, in the case of Indian Council for Environ
Legal Action Vs. Union of India, has again reiterated the
principle of absolute liability and has held that the rule laid
down in Rylands Vs. Fletcher which is subject to certain
exceptions, is not suitable for Indian conditions and hence not
applicable.

The rule of absolute liability was later incorporated in the

Public Liability Insurance Act, 1991, under which certain sums
are to be given to the victims or their heirs on a “no-fault” basis
and without proof of negligence. Unfortunately, the highest
amount that can be awarded on the principle of “no-fault” is
only Rs. 25,000.

The application of the rule of absolute liability was, still later

extended by the National Environment Tribunal Act, 1995,
under which the Tribunal has the power to award
compensation, with no monetary ceilings laid down, in cases of
death, injury, and sickness of a person or in cases of damage to
a person’s property or to the environment, resulting from an
accident involving a hazardous substance.

d) Trespass- Trespass is a tort which may cause environmental

pollution. But its use in environmental matters is very
occasional. Trespass means an intentional or unlawful
interference with the property, person or reputation of an
individual. It is an intentional invasion of the interests of the
plaintiff over some property in his exclusive possession.
Invasion may be direct or through some tangible object. Two
elements are necessary to constitute the tort of trespass.

58
♦there should be an intentional interference, and
♦ such interference must be direct rather than consequential.

In trespass, there must be an intentional unprivileged physical

entry by a person or object on land, possessed by another.
Upon proof of trespass, the plaintiff is entitled to nominal
damages. The plaintiff could also get injunctive relief against a
trespasser. Trespass is different from nuisance. Trespass is
actionable per se whereas nuisance is actionable on proof of
actual damage. In environment related problems, the tort of
trespass may constitute a deliberate placement of a thing, in
such circumstances, as it will be carried to the land of plaintiff
by natural forces. It may be gases or even invisible fumes.

In Arvindson Vs. Reynolds Metals Company, the court observed

that aluminium is produced by the defendant’s plant in a
manner that unavoidably caused fluorite to be discharged into
the atmosphere and if ingested in excessive quantities, it is
capable of causing damage to the plants, trees and cattle on the
plaintiff’s adjoining land. This was regarded as a case of
trespass, thereby causing environmental pollution. The
defendant was directed to set up sufficient treatment plants to
curb the pollution.
b. Constitutional Remedies - Writ Jurisdiction- The most
important and innovative part of the Indian Constitution is
that the right to enforce the fundamental rights by moving
the Supreme Court and High Courts is itself a fundamental
right. After incorporating the fundamental rights in the
Constitution, the framers, in the same Chapter, incorporated

59
a fundamental right to remedy under Article 32 of the
Constitution. Thus, when there is a violation or breach of
fundamental right, the aggrieved person may approach the
Supreme Court for a remedy under Article 32 and if the S.C.
is satisfied, it is bound to provide the remedy. The law
declared by the Supreme Court shall be binding on all
Courts within the territory of India. The Supreme Court in
exercise of its jurisdiction may pass such decree or make
such order as is necessary for ‘doing complete justice’ in any
cause or matter pending before it and any decree so passed
or order so made shall be enforceable throughout the
territory of India in such manner as may be prescribed by or
under any law made by Parliament and, until provision in
that behalf it so made, in such manner as the President may
by order prescribe. So also, when a person’s fundamental
right is infringed, he can move the High Court under Article
226 of the Constitution for the enforcement of the same.
Thus, Article 32 and Article 226 of the Constitution together
constitute the writ jurisdiction of the courts. The powers of
judicial review of administrative action are derived from the
Constitution and are available only under the provisions of
the Constitution which also protects the fundamental rights.
Judicial review is regarded as a matter of constitutional
jurisdiction and is closely bound up with the jurisprudence
relating to fundamental rights.

The writ jurisdiction has been widely used to protect the

individual’s rights concerning life, public health and ecology
in the context of environmental protection. It is already

60
 known that a person has a right to clean and hygienic
environment under Article 21 of the Constitution. Therefore,
when a person is denied this fundamental right, he has the
fundamental right to move either the High Court or the S.C.
seeking a remedy for violation of his right. The remedy is in
the form of directions or orders or writs which may be
issued by the courts. The Constitution of India provides five
kinds of writs- the writ of habeas corpus, the writ of
mandamus, the writ of certiorari, the writ of prohibition and
the writ of quo warranto.

Even though Environmental Jurisprudence provides more

scope for statutory remedies as the system consists of
several statutes, still it has a wide scope to grant relief and
prevent environmental damage by issuing directions, orders
or writs. In fact, in India, most of the environmental cases
involve the invocation of writ jurisdiction. The writ powers
of the Supreme Court and High Courts under Articles 32 and
226 are not restricted to only issuing specific writs, but they
also extend to issuing directions and orders to uphold the
petitioner’s rights, to grant declaratory reliefs or to issue an
injunction or quash the disputed action without recourse to
a specific writ.
A wider writ jurisdiction is conferred on High Courts by
Article 226 of the Constitution. The high Court can issue
writs for the following purposes-
a. Enforcing the fundamental rights guaranteed by the
Constitution;

61
b. Enforcing constitutional rights not having the status of
fundamental rights;
c. Enforcing statutory rights;
d. Enforcing rights flowing from subordinate legislation;
e. Enforcing customary rights and contractual rights.

Only fundamental rights falling within category (a) above

can be enforced under Article 32 of the Constitution by the
Supreme Court.

In the recent years, due to Judicial Activism and the

development of the concept of Public Interest Litigation
(PIL) under the writ jurisdiction, tremendous changes have
taken place in environmental jurisprudence. The judiciary
has started awarding compensations in the writs. In
environmental matters, the writ of Mandamus is proved to
be more effective in securing the public authorities action to
improve the environment. Mandamus can also be issued to
undo what has been done in contravention of a statute. This
writ can be issued against an administrative, quasi-judicial
or judicial authority.
The writ of Certiorari may also be issued against a municipal
authority that permits constructions contrary to the
development rules or in violation of zoning or which
wrongly authorizes construction of buildings in a reserved
area for parks or any recreation facilities. The writ of
Certiorari may also be issued against pollution control
boards that permit any industry to discharge pollutants
beyond prescribed levels. The writ of Certiorari and

62
 Prohibition are generally issued where an authority (1) acts
in excess of jurisdiction or acts without jurisdiction (2) acts
in violation of the rules of natural justice (3) acts under a
law which is unconstitutional (4) commits an error
apparent on the face of the record and (5) acts in
contravention of the fundamental rights.

Through its writ jurisdiction, the Indian judiciary has played

a vital role in protecting the environment and in creating
awareness among the people about the need to preserve the
environment. In Virendra Gaur Vs. State of Haryana, the S.C.
held that the water that we drink is contaminated and the
air that we breathe is polluted. This will shorten the human
life and also result in deterioration and degradation of
natural resources to the detriment of the society. Therefore,
the right to a wholesome environment was interpreted as to
be inherent in Article 21 of the Constitution and accordingly
the persons have the right to approach the court, under its
writ jurisdiction, to seek a constitutional remedy for
violation of that right.

c. Statutory remedies- Besides the remedies available under

the law of torts and constitutional remedies as available in
the form of writ jurisdiction of the Supreme court and High
Courts, there are various statutes enacted by the Legislature
to specifically deal with environmental issues such as-

a. The public Liability Insurance Act, 1991- This Act was

enacted with the object of providing immediate relief
through public liability insurance to the persons affected by
63
 accident occurring while handling hazardous substances. As
per the provision of this Act, insurance has been made
obligatory and such an insurance not only safeguards the
interests of the victims of the accident, but it also enables
the industry to discharge its liability to settle large claims
arising out of major accidents. The Act imposes a “no- fault”
liability on the owner of the hazardous industry.
b. The National Environment Tribunal Act, 1995- This Act was
passed in order to implement the decisions of the United
Nations Conference on Environment and Development held
at Rio de Janeiro in June 1992. This Act was enacted to
provide for effective and speedy disposal of claims for
damages arising out of any accident occurring while
handling any hazardous substance. The Act also provided
for the establishment of a National Environment Tribunal
for effective and expeditious disposal of cases.
c. The Environment (Protection) Act, 1986- Section 19 of the
Environment (Protection) Act, 1986 states, “No Court shall
take cognizance of any offence under this Act except on a
complaint made by-
o the Central Government or any authority or officer
authorized in this behalf by that Government, or
o any person who has given notice of not less than sixty
days to the Central Government or any authority or
officer authorized, in the manner prescribed, of the
alleged offence and of his intention to make a complaint.

Under this section a citizen can initiate prosecution against

an offender by way of filing a complaint to a Magistrate, but

64
 prior to complaining, he must give a notice of sixty days to
the government and his intention to complain. The notice is
intended to alert the government so that it can take
appropriate action as it deems fit before it is taken to the
notice of the magistrate.

d. Provisions similar to those mentioned above are available

under Section 49 of the Water (Prevention and Control of
Pollution) Act 1974 amended in the year 1988 and under
Section 43 of the Air (Prevention and Control of Pollution)
Act, 1981 amended in the year 1987.

e. The Indian Easements Act, 1882- The Indian Easements Act,

1882 guarantees to the owner of the land, beneficial
enjoyment of his land free from air, water and noise
pollution and this law enables the aggrieved individual to
challenge any act of pollution.
f. Code of Civil Procedure, 1908- The Code of Civil Procedure
is enacted to consolidate and amend laws relating to
procedure of courts of the civil judicature. Generally, the
Code of Civil Procedure contains procedural law, but it also
contains some specific provisions in the nature of
substantive law. Resources like land, air, water and
vegetation are the property of the public or state. The state
or members of public, in their representative capacity, may
approach a civil court under this code to seek relief against
the polluter of these resources. The court may grant
temporary or permanent injunction against the polluters.
Section 9 of the Code of Civil Procedure, 1908 empowers the

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 civil court to try all suits of civil nature unless barred
whether specifically or by implication. The courts shall have
jurisdiction to try all suits of a civil nature excepting suits of
which their cognizance is either expressly or impliedly
barred.

g. The Police Act, 1861- The Act has been passed and
promulgated in order to reorganise the police and to make it
a more efficient instrument for prevention and detection of
crime. The Police Act makes provisions for the prevention
and control of public nuisance, including noise pollution,
visual pollution, odour pollution, etc. Section 30 of this Act
provides for the regulation of music in streets. Under this
section, the Superintendent or the Assistant Superintendent
of Police may regulate the extent to which music may be

played in the streets on the occasion of festivals and

ceremonies.

d. Criminal law remedies- The aforementioned remedies are

civil in nature. This means that they are granted by way of
compensation/damages or injunction. Besides the civil
remedies, one can resort to criminal remedies as well. Such
remedies involve imposition of punishments. Under the
criminal law remedies, the Indian Penal Code (IPC) and the
Criminal Procedure Code (CrPC) provide penal remedies for
environmental wrongs.

a) The Indian Penal Code- Chapter XIV of the Indian Penal code
deals with the offence of public nuisance which includes

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offences affecting public health, safety, convenience,
decency and morals. As stated earlier, nuisance may be
public or private. Public/common nuisance s a wrong
against the public which is punishable under the law of
crimes and private nuisance is a wrong against an individual
for which compensation is available in law of torts in a civil
court.

Chapter XIV consists of 28 sections (Sections 268 to 294A)

discusses eleven principal offences. While Section 268
defines public nuisance, the rest of the sections define
specific nuisances and provide for their punishment. S. 268
defines public nuisance as, “a person is guilty of public
nuisance who does any act or is guilty of an illegal omission
which causes any common injury, danger of annoyance to
the public or to the people in general who dwell or occupy
property in the vicinity, or which must necessarily cause
injury, obstruction, danger or annoyance to persons who
may have occasion to use any public right.” If by any act or
omission of a person, the environment is polluted or there is
a threat to the public health or endangering the life’s
support system, it will be considered as amounting to public
nuisance and hence punishable under the IPC. This can be
explained with the help of a Roman maxim “sic utari tuo
utrem publican non laedas” which means that we should
enjoy our property in such a manner as not to injure the
right of the public. Public nuisance cannot be excused on the
ground that it causes some benefit or convenience or
advantage.

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Besides Section 268, other offences categorised under the
head ‘public health’ comprising sections 269 to 278, IPC are
also relevant from the environmental point of view. Sections
269 to 271 of the IPC provide for punishment for negligent
acts which are likely to spread infection and diseases. In
cases where pollution is caused by any act which spreads an
infectious disease, these provisions can surely be availed of.

Section 277 of the IPC makes it an offence to do any act

whereby a person voluntarily fouls the water of a public
spring, well or reservoir, rendering it less fit for those
purposes for which it is ordinarily used. This provision can
thus be used to prevent water pollution. Under Section 278
of the IPC, if a person voluntarily vitiates the atmosphere in
any place so as to make it noxious to the health of persons in
general or in dwelling or who are carrying on business in
the neighbourhood or passing along a public way, he shall
be punished. It is an offence to commit any rash or negligent
act with regard to any poisonous substance (Section 284), to
commit any rash or negligent act with fire or any
combustible matter (Section 285), to commit any rash or
negligent act with any explosive substance, so as to
endanger human life or cause hurt or injury to any person.
Section 290 provides that whoever commits a public
nuisance in any case not otherwise punishable by this Code,
he shall be punished with fine which may extend to two
hundred rupees.

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 Sections 426 to 432 of the IPC deal with the offence of
‘mischief.’ If any pollution is caused as a result of mischief,
these provisions can be invoked.

b) The Criminal Procedure Code- A speedier and more effective

remedy to control environmental pollution by way of
abating public nuisance is to invoke the provisions of the
Criminal procedure Code (CrPC.) Sections 133 to 144 of the
CrPC can be used to control any public nuisance causing air,
water or noise pollution.

According to Section 133, Whenever a District Magistrate or

a Sub-divisional Magistrate or any other Executive
Magistrate specially empowered by the State Government,
on receiving the report of a police officer or other
information and on taking such evidence (if any) as he
thinks fit, considers-

(a) that any unlawful obstruction or nuisance should be

removed from any public place or from any way, river or
channel which is or may be lawfully used by the public; or

(b) that the conduct of any trade or occupation, or the

keeping of any goods or merchandise, is injurious to the
health or physical comfort of the community, and that in
consequence such trade or occupation should be prohibited
or regulated or such goods or merchandise should be
removed or the keeping thereof regulated; or

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(c) that the construction of any building, or, the disposal of
any substance, as is likely to occasion configuration or
explosion, should be prevented or stopped; or

(d) that any building, tent or structure, or any tree is in such

a condition that it is likely to fall and thereby cause injury to
persons living or carrying on business in the neighbourhood
or passing by, and that in consequence the removal, repair
or support of such building, tent or structure, or the removal
or support of such tree, is necessary; or

(e) that any tank, well or excavation adjacent to any such

way or public place should be fenced in such manner as to
prevent danger arising to the public; or

(f) that any dangerous animal should be destroyed, confined

or otherwise disposed of,

the Magistrate may make a conditional order directing the

offender to remove the public nuisance which is causing the
pollution. Such an order is ‘conditional’ because it is a
preliminary order which can be made final or absolute after
giving the offender sufficient opportunity to be heard in the
matter. If the concerned person fails to obey the final order,
he can be prosecuted under Section 188 of the IPC.

In Govind Singh Vs. Shanti Swarup, the Magistrate received a

complaint of public nuisance created by an oven and a
chimney constructed for the purpose of baking business.
The fumes emitted were causing severe pollution. The
Magistrate, in this case, came to the rescue of the citizens by

70
making a conditional order for demolition of the oven and
chimney within a period of 10 days.

In P.C. Cherian Vs. State of Kerala, carbon particles were

emitted from two rubber factories and this affected the
people in the locality. The Kerala High Court examined the
scope of Section 268 of the IPC along with Section 133 of the
CrPC and held that the action of the Magistrate in invoking
his power under Section 133 by initiating action against the
factories and by directing them to stop the service mixing of
carbon in their factories is justifiable.

In Ratlam Municipality Vs.Vardhichand and Others, the S.C.

had taken a remarkable step, by construing Section133 of
the CrPC in such a way as to enable citizens to bring action
against the public bodies to force them to be vigilant in
keeping the environment unpolluted. In the Ratlam
Municipality case, the residents of a prominent residential
locality of Ratlam Municipality filed a complaint under
section 133 of the Code of Criminal Procedure, 1973 in the
Court of the Sub-Divisional Magistrate alleging that the
Municipality had failed, despite several pleas, (a) to prevent
the discharge, from the nearby alcohol plant, of foul fluids
into the public street, (b) to provide sanitary facilities on the
roads, and (c) to provide public amenities for slum-dwellers
who were using the roads for their daily ablutions.
The Municipal Council disputed the petition on the ground
that the residents were residing in the said locality on their
own choice, fully aware of the insanitary conditions and the
hazardous pollution created by the nearby alcohol plant,

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 and therefore they had no cause to complain. The Council
also pleaded lack of availability of adequate funds as a
defence. The Magistrate, after an enquiry, found the facts
alleged in the complaint proved and ordered the
Municipality to provide the amenities, abate the nuisance by
constructing drain pipes, flush them with water to wash the
filth and stop the stench. The Magistrate further opined that
failure on the part of the Municipality to comply with the
above directions would necessitate prosecution under
Section 188 of the Indian Penal Code. The Magistrate's order
was found by the Sessions Court as unjustified, but the High
Court and the Supreme Court upheld the Magistrate's order.
Justice Krishna Iyer, lashed out at the Municipal bodies to
make them realise their duty towards sanitation and to
prevent environmental pollution, answered the question in
the affirmative. He observed that social justice is due to the
people and, therefore, the people must be able to utilize the
jurisdiction vested for their benefit in any public functionary
like a Magistrate under section 133 of the Code of Criminal
Procedure, 1973.

e. Public Interest Litigation-

As stated in page numbers 41 to 51

f. General remedies- Apart from all the above mentioned

remedies, any person aggrieved by pollution can approach a
civil court for certain general remedies such as-

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a. Damages/Compensation- An action for damages may be
initiated by a person affected by any form of pollution.
Damages means compensation. Damages are awarded in
monetary terms. In cases of environmental pollution, two
kinds of damages may be awarded by the Court-
Substantial damages or Exemplary damages.

Substantial damages are awarded to the plaintiff in the

form of compensation for the wrong or injury or loss
suffered by him. The objective of such damages is
restitution, i.e. to restore the plaintiff to the position in
which he was. Therefore, these damages are considered
to be fair and reasonable.
Exemplary damages are awarded on the basis of the
deterrent principle and the main objective of such
damages is to punish the defendant for his poor and
irresponsible conduct, for instance, when he persists in
causing the pollution which results in nuisance even after
being convicted and fine for it.

b. Injunction- An injunction is an order or command of the

court requiring a person to do a particular thing or act or
requiring him to not to do a particular act or thing. Like
damages, the courts may be approached to grant relief to
the injured party by way of injunctions. From the point of
view of environmental issues, there are two kids of
injunctions- Temporary injunction and permanent
injunction.

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Temporary injunction, as the name suggests, is an
injunction granted by the court which shall continue for a
specified period of time or until the court gives any
further order regarding the concerned matter. A
temporary injunction may be granted by the court at any
stage of the suit and they are regulated by the Code of
Civil Procedure, 1908 under sections 94 and 95 and
Order XXXIX Rule 1, Rule 2, Rule 3, Rule 4 and Rule 5. The
main objective of granting temporary injunction is to
maintain and preserve status quo at the time of
institution of the suit and to prevent any change in it
until the final determination of the suit. It is in the nature
of a protective relief granted in favour of a party to
prevent future possible injury. The grant or refusal of a
temporary injunction is governed by three well
established principles, such as-
• The existence of a prima facie case in favour of the
plaintiff;
• The likelihood of irreparable injury to the plaintiff
if the injunction is refused; and
• That the balance of convenience requires the issue
of the injunction. (The inconvenience caused to the
plaintiff if the temporary injunction is not granted
is much more than the inconvenience caused to the
defendant if the temporary injunction is granted.)

Permanent injunction/Perpetual injunction is an

injunction which is granted by way of a decree wherein
the court may prohibit the defendant from asserting a

74
right permanently or the court may direct the defendant
to do something permanently. The Specific Relief Act,
1963 regulates perpetual injunctions. In Dr. Ram Baj
Singh Vs. Babulal, when hazardous dust from the brick
grinding machine polluted the air of a neighbouring
medical practitioner’s consultation room, the polluter
was permanently restrained from operating the machine.
A permanent injunction can be granted only on merits at
the conclusion of the trial after hearing both the parties
to the suit. The balance of convenience test applies to the
award of a permanent injunction as well. Provisions
relating to perpetual injunctions are contained in Section
38 of the Specific Relief Act, 1963.

Thus, in case of environmental wrongs, in order to give

the plaintiff certain relief and to render justice, the courts
may grant damages in the form of compensation which is
fair and reasonable and also by invoking either the
temporary or perpetual injunction so that the right of the
plaintiff is not infringed.

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 SUSTAINABLE DEVELOPMENT

Human race is absolutely dependent on nature for its existence,

continuation and growth. Nature is a treasure box that has, besides human
beings, a variety of flora and fauna. The triumph of mankind over the
nature is, in fact, an attempt to humble it and as a result, cause havoc in the
nature, which reverberates only on the mankind and other elements in the
biodiversity. The idea of progress, as understood by the developed west
and blindly followed by the developing countries has ruined the nature and
this, in turn, is hampering human development and the progress of
humanity. It is high time that all the countries unite hands and India leads
from the front in strongly expressing demand for environmental
governance. Today, there is a need to amalgamate the present development
and future sustainability, thus, rendering a balance in nature, so that every
generation can benefit from it. Therefore, the experts worldwide have
come up with a doctrine called 'Sustainable Development', i.e. striking a
balance between development and ecology.

‘Sustainable ‘is a Latin term which means “to carry on, to endure, to live
through, to maintain, to sanction, to prolong, to encourage, to support the
life of.” Sustainable development is defined in the Bruntdland Report (a
report prepared by the World Commission on Environment and
Development as ‘development that meets the needs of the present
without compromising on the ability of the future generations to meet
their own needs.’ Thus, sustainable development is a multi-dimensional
concept with three interacting angles: - Environment, Economics and
Society. It is recognized that these three pillars are of equal importance.
Sustainable development does not mean sustainability of the environment
and resource system alone but it requires the sustainability also of the

76
economic and social system. But it is critically important to reiterate that if
priority is given to one of the three aspects be it people (poverty
alleviation) or planet (conservation) or prosperity (business development),
it would lead to an imbalance in the universe.

In the aftermath of independence, more emphasis was laid on

industrialisation to bring a change in the life of the masses. During that
period, the Indian economy was not in proper shape and therefore,
importance was given to achieving planned economic development on the
socio-economic front which paved the way for industrial planning. In this
process, in order to achieve rapid economic growth, the nature and natural
resources were greatly misused which resulted in irreversible damage.
This ultimately led to the grave danger of environmental pollution, thereby
jeopardising the quality of life of the people. This grave threat to human
race united the world community to sit together and think what necessary
steps can be taken to curb this danger. In the world of environment, two
contradictory demands emerged. One is the production and preservation of
the environment for the present as well as the future generation and the
other one is the continuing process of economic development. The world
community was interwoven with the complex problem of balancing the two
concepts because both are necessary to the society. One cannot be given
more importance at the cost of the other. Thus, taking into consideration
the real issues of environment and development, the international
community expressed its commitment to treat environment and
development in an integrated manner. It was this commitment that led to
the evolution of the United Nations Conference on Human Environment.
The United Nations Conference on Human Environment (the
Stockholm Conference) was first held in 1972 at Stockholm,
Sweden, where many nations –both the rich and the poor - took part.

77
 The motto of this conference was “Only One Earth.” The Stockholm
Declaration was adopted at this conference and this declaration is
regarded as the basis of modern international environment. It was in
this declaration that the concept of sustainable development was
developed, although the term had not been coined yet. The
outcome of this conference was a Declaration of principles and an
Action Plan, but no legally binding document was evolved. The
Stockholm Conference also gave birth to the World Commission on
Environment and Development. This World Commission was set up
by the UN General Assembly in 1983 under the auspices of the then
Prime Minister of Norway Ms. Gro Harlem Brundtland. That is why
this Commission is also known as the Brundtland Commission. It
was the report of this Commission- known as "Our Common Future”,
which brought into common usage, the concept of ‘sustainable
development.’ The Brundtland Report, for the first time, integrated
the concept of environment and development and called a global
conference on environment and development.

• UNCED (Earth Summit) was inspired mainly by the Brundtland

Report of 1987
• In 1992, another conference known as the United Nations Conference
on Environment and Development (the Rio Conference), was held at
Rio-de Janeiro, Brazil. This conference came to be known as the
Earth Summit. This conference adopted the Rio Declaration and a
much talked of international document, i.e. the AGENDA 21, which
was considered as a comprehensive blue print/action plan for
sustainable development in the 21st century. It is popularly called the
Magna Carta of environment protection. The Rio Declaration
reaffirmed the Stockholm Declaration and provided 27 principles
guiding the environment and development.
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 It can be said that during the span of twenty years, i.e. between the
first conference in 1972 and the second conference in 1992, many
remarkable changes were observed in the world. Firstly, people have
become more aware of and more concerned about their
environment. Secondly, many nations of the world have created
separate ministry to deal exclusively with the environment. Thirdly,
numerous environmental treatises relating to environment have
been signed by many nations. Lastly, a worldwide network was
established to monitor and assess the global environmental
degradations.
• In 2002, after ten years of the Rio Conference, a summit/conference
known as the “World Summit on Sustainable Development” was
held at Johannesburg, South Africa to reaffirm the commitment of
sustainable development as declared in the previous conferences.
The post Rio economic scenario posed a very poor picture so far as
the fulfilment of the consensus reached at the conference is
concerned. Big promises were made at the Rio Declaration to take the
world into a new economic era. But when it came to implementation,
no remarkable development could be seen and the ecological
resources were not treated properly. After taking into consideration
the fall out of the agreements reached at Stockholm and Rio and also
the global commitment incorporated in Agenda 21, the conference
came out with a declaration known as the Johannesburg Declaration
on Sustainable Development whereby 189 states affirmed their
commitment to remove the more than two billion poorest world's
population out of their miserable conditions and to restore and
nurture the damaged environmental web that sustains all forms of
Earth's lives. The Johannesburg Declaration contained 37 principles.

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 This Summit, which concluded in Johannesburg, South Africa in the
last week of August 2002, pledged to reduce world poverty and take
suitable measures to safeguard the fragile eco-system. The strategies
evolved for achieving sustainable human development are those
which reduce poverty, create employment opportunities, and
strengthen social integration, among other things.

In India, the nation's concern of the environment and the need for
sustainable development was clear from the speech made by the late
Prime Minister Mrs. Indira Gandhi at the Stockholm Conference in
1972. She clearly stated, "Poverty was the greatest polluter". This
resulted in her strongly advocating for family planning programmes
among other things in the country. The setting up of the National
Committee on Environment Planning and Coordination to look into
environmental degradation in the country and the establishment of
the Ministry of Environment in 1981 further shows that the country
is trying to initiate steps for sustainable development.

Salient principles of Sustainable Development

The concept of sustainable development has, over the years, acquired

various dimensions- economic, social and environmental dimensions.
However, in the absence of any distinctive features, some of the
salient principles of sustainable development as taken from the
Brundtland Report and other international documents are as follows-

a) Inter-Generational Equity- The principle of Inter-generational Equity

is an outcome of Principle 3 of Rio Declaration, 1992. The idea behind
the concept of inter-generational equity is that the present
generations must use the natural resources in such a way that the

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 natural heritage could be preserved for future generations. So, it is
the pious duty of the present generation to protect the cultural and
natural heritage for forthcoming generations. From, Stockholm to
BRICS Summit, 2014, it is accepted by the international community
that there should be immediate operation to accomplish sustainable
development and it is a right time to renew our commitments to
sustainable development. As far as the role of India for the
implementation of inter-generational equity principle is concerned, it
could be easily said that Indian judiciary has very enthusiastically
applied the principle in decision making. The most appreciable
contribution of Indian judiciary could be seen in A.P. Pollution
Control Board v. M.V.Nayudu. In this case, the judiciary protected the
rights of those who are even in the womb of mothers. Moreover, the
court observed that the rights of upcoming generations cannot be
ignored and it is the pious duty of every human being to take care of
the globe in an earnest manner.

b) Use and conservation of Natural Resources- Principle 23 of Rio

Declaration states that the environment and natural resources in the
world shall be protected. Thus, the use and conservation of natural
resources is an essential principle of sustainable development.
Therefore, it is the duty of mankind to use the Earth’s natural
resources carefully and prudently. The natural resources and their
sites must be conserved and enhanced. It is the part of our moral and
ethical responsibility to other living beings and future generations.
c) Environmental Protection- Protection of environment is an essential
part of sustainable development. Without adequate environment
protection, development is impossible. Strong environmental policies
complement and strengthen the sustainable development. Moreover,

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 sustainable development is also one of the objects of the
Environment (protection) Act, 1986.Sustainable Development is the
means to attain the object and purpose of the Act and also to ensure
protection of life under Article 21 of the Constitution of India. In
Citizen, Consumer and Civic action Group Vs. Union of India, the
Court observed that the courts have social responsibility in the
matter of environmental protection and there should be a proper
balance maintained between the protection of environment and the
development activities, which are essential for progress.

d) The Precautionary Principle- This principle is another important

principle of sustainable development. There is a very strong link
between the principle and the proverb that prevention is better than
cure. It is possible to avoid degradation of the environment or to
minimize adverse effects on environment by taking necessary
precautions. These may be in the form of applying stringent
safeguards and the principles of sustainable development while
undertaking developmental activities. The precautionary Principle is
contained in Principle 15 of the Rio declaration (Earth Summit,
1992.) In India, the precautionary principle has been eagerly
accepted by Indian judiciary and by varied administrative agencies
for the implementation of numerous environment protection and
sustainable development related laws. In Vellore Citizens Welfare
Forum Vs. Union of India, the court held that precautionary principle
is a part of the law of the land.
e) The Polluters Pay Principle- Principle 16 of the Rio declaration, 1992
declares the Polluter Pays Principle as a part of sustainable
development. Initially, the principle was promoted by the
Organization for Economic Co-operation and Development (OECD)

82
 during 1970s when there was a great public interest in
environmental issues. The principle means that the polluter should
pay for his mistake. He/she should bear the expenses of carrying out
the measures for reparation/restoration of the damage caused to the
environment by him. Remediation of injured environment is a part of
the practice of sustainable development and the polluter is legally
responsible to compensate the individual victims and also pay for
reversing the damaged ecosystem.

f) Obligation to Assist and Co-operate- Ecological degradation is not the

problem of one person or that of one nation. It is a common problem
of the globe and it can be solved only with the help and co-operation
of all. Principle 9 of the Rio Declaration provides that there should be
transfer of technical knowledge essential for sustainable
development. Principle 10 of Rio Declaration provides that
environmental issues are best handled with the participation of all
citizens. Moreover, Principle 12 of Rio Declaration declares that
every state should co-operate to promote a supportive and open
international economic system that would lead to strong economic
systems, which in turn would lead to economic growth and
sustainable development in all countries.

g) Eradication of Poverty- Sustainable development deals with

problems of numerous people who live in absolute poverty and even
do not know whether or not they will have access to their next meal.
Poverty is the worst pollutant in developing countries. The people in
the developing countries over-exploit their natural resources to meet
their basic needs. At the Stockholm conference in 1972, our Former
Prime Minister, Smt. Indira Gandhi said, ‘of all pollutants we face, the
worst is poverty.’ It is rightly pointed out in the Brundtland Report

83
 that poverty reduces the capacity to use resources in a sustainable
manner. On the occasion of the 20th anniversary of Rio Declaration,
1992, the world community once again met at Rio-De-Janerio, Brazil
from 20th June, 2012 to 22ndJune, 2012, with the objective that
economic growth should be achieved in such a way that assures the
availability of sustainable food, energy and water to all without
degrading the ecological system.

h) Financial Assistance to the Developing Countries- It has been

stressed that in order to achieve sustainable development, the
developed countries should come forward to help the developing
countries in their fights against pollution hazards. To serve the
common interests of the developed and developing countries, there
should be transfer of technology and financial resources to those
countries which are in need of it. The Agenda 21, which is the most
comprehensive document of Rio Conference, emphasised on this
aspect and also stressed on the commitment towards their
implementation in true spirits. Without financial assistance, the
developing countries may find it difficult to fulfil the commitments in
protecting and preserving the environment.

Objectives/Goals of Sustainable Development

• To end poverty in all its forms everywhere.

• To end hunger, achieve food security and improved nutrition
and promote sustainable agriculture.
• To ensure healthy lives and promote well-being for all at all
ages.
• To ensure inclusive and equitable quality education and
promote lifelong learning opportunities for all.

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 • To achieve gender equality and empower all women and girls.
• To ensure availability and sustainable management of water
and sanitation for all.
• To ensure access to affordable, reliable, sustainable and
modern energy for all.
• To promote constant, comprehensive and sustainable
economic growth, full and productive employment and decent
work for all.
• To develop quality, reliable, sustainable and resilient
infrastructure, including regional and trans border
infrastructure, to support economic development and human
well-being, with a focus on affordable and equitable access for
all.
• To reduce inequality within and among countries.
• To conserve and responsibly use the oceans, seas and marine
resources for sustainable development.
• To promote peaceful and inclusive societies for sustainable
development, provide access to justice for all and build
effective, accountable and inclusive institutions at all levels.
• To strengthen the means of implementation and revitalize the
global partnership for sustainable development.

Sustainable development- Constitutional developments in India

Originally, the Constitution of India did not cover environmental
aspects, but some of the Articles and Schedules had an indirect
relation with the concept of environment, such as, Articles 39(b), 47,
48 and 49. Finally, in 1976, the 42nd Amendment to the Constitution
was made and two new Articles in Part-IV and IV-A of the
Constitution were incorporated. Article 48-A in Part- IV declares that
85
The State shall endeavour to protect and improve the environment
and to safeguard the forests and wildlife of the country. Similarly, in
Part-IV-A, Article 51A (g) deals with the fundamental duties of the
citizens of India. The Indian Constitution is feasibly one of the most
extraordinary Constitutions of the world which contain specific
provisions regarding environmental protection and which follows
the principles of sustainable development. Even though India is a
developing country where exploitation of natural resources is needed
for the progress of nation, India’s declaration to abide by the concept
of sustainable development has resulted in the concept being
reflected in various provisions of the Indian constitution.

A reference to the environment has been made in the Directive

Principles of State Policy, Fundamental Rights and Fundamental
Duties. Realizing the interconnection between social and economic
development and environment degradation, Justice Krishna Iyer and
Justice Chinnappa Reddy said that the industries cannot be allowed
to run at the expense of public health.

Sustainable Development- Legal Developments in India

The Constitutional provisions and principles of sustainable
development are backed by a number of statutes, rules, and
notifications. After the independence, changes have taken place in the
attitude and policies of the Government with respect to environment
protection. Though the word environment was not directly
mentioned in the constitutional provisions, the Constitution of India
was not environmentally blind. Moreover, India adopted Van
Mahotsava as a National Festival in 1950 for the purpose of creating
awareness about trees and forests among people. Several statutes

86
have been enacted by the Legislature with respect to environment
and its various aspects.
The Wild Life (Protection) Act, 1972- The Act provides protection to
the listed species of flora and fauna and establishes a network of
ecologically important protected areas. The Act consists of 60
Sections - divided into eight chapters and VI Schedules. The Wildlife
(Protection) Act, 1972 empowers the Central and State Governments
to declare any area as wildlife sanctuary, national park or closed area.
There is a blanket ban on carrying out any industrial activity inside
these protected areas. It provides for appointment of authorities to
administer and implement the Act; regulate the hunting of wild
animals; protect specified plants, sanctuaries, national parks and
closed areas; restrict trade or commerce of wild animals or goods
made by harming animals. The Act prohibits hunting of animals
except with the permission of authorized officer and that too when
an animal has become dangerous to human life or property or is
disabled or diseased beyond recovery.

The Water (Prevention and Control of Pollution) Act, 1974- This Act
was established for the prevention and control of water pollution and
for maintaining or restoring the wholesomeness of water, and in
order to carry out the above-mentioned purposes, the Act also
provides for the establishment of boards for the prevention and
control of water pollution, for conferring on and assigning to such
boards, powers and functions relating thereto and for matters
connected therewith. The Act drew forceful inspiration from the
resolution adopted by the United Nations Conference on Human
Environment, held at Stockholm in 1972. Section 3(3) of the Act
makes it clear that the Central Water Pollution Control Board shall be

87
regarded as a body corporate. The Act also empowers a State Board
or its authorized officer to take samples of water for analysis. The
Central Government as well as the State Government has the power
to establish Water Laboratory. Central and State Governments have
the power to appoint government analysts having the prescribed
qualifications for the purpose of analysis of samples of water or of
sewage or trade effluents and to send it for analysis to any laboratory
established under Central/State Government as the case may be.
From the above mentioned points, it can be understood that the
Water (Prevention and Control of Pollution) Act, 1974 is a special
legislation meant to deal with the measures necessary for prevention
and control of water pollution.

The Forest Conservation Act, 1980- Forestry occupies an important

place in the lives of the people. A vast majority of India's population
is acutely dependent on forests for meeting their basic needs of fuel
wood, fodder, timber for housing and agricultural implements, and
food and medicines in the form of wild fruits, roots, herbs and so on.
For the protection of forests and use of forest land for industrial and
commercial purposes, the Parliament of India enacted the Forest
(Conservation) Act, 1980. The Act provides that no State Government
or other authority shall make, except with the prior approval of the
Central Government, any order directing 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 reafforestation.
Further, Central Government may constitute a committee with
regard to any matter connected with the conservation of forests.

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The Air (Prevention and Control of Pollution) Act 1981- To
implement the U.N. Conference on Human Environment held in June,
1972 at Stockholm and for preservation of the quality of air and to
control the air pollution, the Indian Parliament passed the Air
(Prevention and Control of Pollution) Act, 1981, under Article 253 of
the Constitution of India. The Act was enacted to provide for the
control and abatement of air pollution and for the establishment of
Central and State Pollution Control Boards. This Act was amended in
1987 to include, under its ambit, noise pollution as well. Under this
Act, where an offence has been committed by any company, every
person who was involved in it or was in charge of it and was
responsible to the company for the conduct of the business of the
company and the company itself shall be deemed to be guilty of the
offence. However, if the person liable to be punished proves that the
offence was committed without his knowledge or that he exercised
all due diligence to prevent the commission of such offence, he will
not be made liable for any punishment under the Act.

Apart from Air Act, there are other legislations also which are playing
pivotal role for the preservation of environment from air pollution,
i.e. Orient Gas Company Act, 1857, Factories Act, 1948, The Motor
Vehicles Act, 1988, The Atomic Energy Act, 1982 etc. Further, in
1982, the Air (Prevention and Control of Pollution) Rules defined the
procedures of the meetings of the Boards and the powers granted to
them.

A comprehensive legislation, the Environment (Protection) Act, 1986

(EPA) was enacted by the Parliament for the purpose of empowering
the Central Government to take all essential steps to protect and
improve the environment, life of human beings, other living
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creatures, plants and property. The Act came into force soon after the
Bhopal Gas Tragedy occurred and is considered an umbrella
legislation as it filled many gaps in the then existing laws. EPA is
divided into four chapters. First chapter of EPA deals with application
of the Act, which provides that EPA applies to whole of India. In the
second chapter, the Act provides powers to the Central Government
to coordinate the activities of various Central and State authorities
established under previous laws and provides power to the central
government to take measures to protect and improve environment.
Third chapter of the Act deals with different provisions regarding the
prevention, control and abatement of environment pollution. The
fourth chapter of the Act states that all officers and other employees
of such authority when acting or purporting to act in pursuance of
any provisions of this Act or the rules made or orders or directions
issued there under shall be deemed to be public servants within the
meaning of Section 21 of the Indian Penal Code, 1860. The Act also
delegates the powers to the executive so as to enable them to frame
necessary rules and regulations. From the above discussion it is clear
that EPA is a comprehensive legislation, enabling to protect and
preserve the environment. In the same year, the Environment
(Protection) Rules were made by the Central Government in exercise
of the powers conferred on it by Sections 6 and 25 of the
Environment (Protection) Act, 1986.

Further, the National Environmental Tribunal Act, 1995 has been

enacted to award compensation for damage caused to persons,
property, and the environment on account of any activity involving
hazardous substances.

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In 1999, the Environment (Siting for Industrial Projects) Rules laid
down detailed provisions relating to areas to be avoided for siting of
industries, precautionary measures to be taken for site selecting and
also the aspects of environmental protection which should have been
incorporated during the implementation of the industrial
development projects.

In 2007, the Scheduled Tribes and Other Traditional Forest Dwellers

Rights (Recognition of Forest Rights) Act, was enacted with the
purpose of achieving a difficult balance between livelihood security
and ecological conservation. The National Green Tribunal Act, 2010
was enacted at the time when Mr. Jairam Ramesh was the
Environment and Forests Minister. The Act established the National
Green Tribunal for the persuasive and speedy clearance of cases
relating to environmental preservation and safeguard of forests and
other natural resources including implementation of any legal right
concerning environment and giving relief and compensation for
damages to persons and property. Undoubtedly, the National Green
Tribunal has played a great role in environmental litigation.

Apart from the above legislations, India framed an extent of

regulatory mechanisms backed by the principles of sustainable
development for the preservation and protection of its natural
resources. There is no doubt that the legislature has passed a number
of laws for the protection of environment like Environment
(Protection) Act 1986, Water (Prevention and Control of Pollution)
Act, 1974 and the Air (Prevention and Control of Pollution) Act 1981
etc. Apart from these laws, there are several other enactments which
the Legislature intends to enact, such as the Road Transport and

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Safety Bill, 2014, the Pesticides Management Bill, 2017, the Special
Economic Zones (Amendment) Bill, 2019, the River Basin
Management Bill, 2018, the Food Safety and Standards (Amendment)
Bill, 2014.

Sustainable Development and the Indian judiciary

The judiciary in India has not lagged behind in playing the role of the
defender of the environment and insurer of the right of life and
sustainable development. It has always played a very important role
in advancing the concept of sustainable development. Judiciary is
regarded the most sharp-eyed protector of democracy. It is one of the
three towers upon which the structure of the constitution is
constructed. Undoubtedly, the major push towards environment
preservation and balanced development in India was given by the
Indian judiciary. Judiciary has courageously and enthusiastically
interpreted the laws and filled the gaps in the field of environment
and sustainable development.

In Ratlam Municipality Vs. Vardichand, the S.C. held that the

industries cannot be allowed to run at the expense of public health.
The imbalance between environment protection and developmental
process has been removed with the theory of sustainable
development.

In Goa Foundation and another v. The Konkan Railway Corporation

and Others, the court held that no development is possible without
some adverse effects on the ecology and environment. The projects of
public utility cannot be abandoned and it is necessary to balance the
interests of the people as well as the necessity to maintain the
environment. The balance is to be struck between the two interests.

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In M.C. Mehta Vs. Union of India, the river Ganga flowing through
Kanpur was being polluted by discharge of sewage and trade
effluents from tanneries making the water toxic and causing health
hazards. Therefore Supreme Court issued time-bound directions to
the administration for stopping the discharge of sewage effluents and
for installation of treatment plants. The Supreme Court stated that it
is necessary for every industry to set up primary treatment plants.
The industries which fail to set up primary treatment plants shall not
be permitted to continue to be in existence.

In the case of M.P. Rambabu Vs. Divisional Forest Officer, the Andhra
Pradesh High Court dealt with the problem of salinity of
underground water. The salinity was feared to have been caused by
digging bore wells and excessive use of agricultural lands for
aquaculture. The court said that deep underground soil and water
belong to the State in the sense that the doctrine of public trust
extends to them. Therefore, their use is subject to State regulations
even in the absence of any specific law. The holder of the land has the
right to use the land for a purpose for which the land is held. If, he
uses for a different purpose and causes pollution to underground
water or soil, the State can interfere and prevent contamination.

In the case of Vijay Singh Punia Vs. Rajasthan State Water Pollution
Control Board, certain factories carrying on the business of dyeing
and printing cloth were discharging toxic substances into canals from
which water was being used for agriculture and drinking. The
Rajasthan High Court, while dealing with the issue, directed
industries and the State and its agencies to set up a common effluent
treatment plant so that effluents were not discharged into the said

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water body. The decision of the court was highly inspired by
sustainable development principles.

In the case of Tirupur Dyeing Factory Owners Association Vs. Noyyal

River Protection Association and Others, the Apex Court held that
development of industries, irrigation resources and power projects
are necessary to improve employment opportunities and generation
of revenue. But balance has to be maintained between economic
development and preservation of natural resources so as to ensure
that environment is not damaged irreparably, which may in turn
cause irreparable damage to economic interests. Tirupur in State of
Tamil Nadu is an industrial hub providing employment to more than
5 lakh persons. A large number of industries had indulged in dyeing
and bleaching works at Tirupur area. Undoubtedly, there had been
unabated pollution of Noyyal River by discharging the industrial
effluents into the river. The Supreme Court observed that the
industries cannot escape from the responsibilities of meeting the
expenses of reversing the ecology. They are bound to meet the
expenses of removing the sludge from the river and also for cleaning
the dam. The court further held that the polluters pay principle and
the precautionary principle have to be read along with the doctrine
of sustainable development.

The Supreme Court, in the case of T.N. Godavarman Thirumulpad Vs.

Union of India and others, again shown the faith on the Principles of
Sustainable Development. In this case a company made a proposal for
setting up an alumina refinery in an area in Orissa. The Niyamgiri
hills in Orissa would be vitally affected if mining is allowed. The
project would also destroy flora and fauna of the entire region and it
would result in soil erosion. On the other hand, there was acute

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poverty in the above-mentioned area. There was no proper housing.
There were no hospitals, schools and the people were living in poor
conditions. After analysing both the aspects, the Supreme Court
adopted the approach of Sustainable development. The court said
that it was not against the project, but it could not take the risk of
placing an important national asset in the hands of the Applicant
Company. It is the only safeguard by which we will be able to protect
nature and help in its development.

In Citizen, Consumer and Civic Action Group Vs. Union of India, the
Madras High Court affirmed that both development and environment
shall co-exist and shall go hand-in-hand. The court emphasized that if
the construction of the multi-storeyed building is 500 meters away
from the CRZ (Coastal Regulation Zone) and is on the landward side
of the road, there is no reason why it should be stopped. In this
connection the Madras High Court stated that there can be no dispute
that the society has to prosper. But it shall not be at the expense of
environment. Similarly, the environment shall have to be protected,
but not at the cost of the development of the society.

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 WATER POLLUTION

Water is the most significant element in the biosphere because on

one hand it is vital for the survival of all forms of life and on the other
hand it helps in the movement, circulation and cycling of nutrients in
the biosphere. About 97 per cent of the Earth’s water is found in the
ocean and since ocean water is salty, it is not of use to the human
beings, plants and animals living on land. About 2 per cent of the total
supply of water is frozen as glacial ice in places like Antarctica and
Greenland. This is fresh water, but cannot be used. 1 per cent of
Earth’s water is found on land as either ground water or surface
water. This is the water which is available for all the living organisms
in the world. The truth of the matter is that human beings may have
access to only half per cent of all of the Earth’s water. This is a very
distressing figure, but enough to remind the people that water is a
very precious, but limited resource.

Health and environment are becoming a serious concern as they

affect each other and also affects the total process of socio-economic
development. As a result of industrialization, urbanization and other
development related activities, water resources have become highly
polluted. Many of the world’s rivers receive millions of litres of
sewage, domestic waste and industrial-agricultural effluents. In India,
majority of the rivers have become polluted. Every year, the United
Nations observe March 22ndas World Water Day.

In simple words, water pollution may be defined as the

contamination of water bodies such as lakes, rivers, oceans and
groundwater by human and other activities. According to The Water
(prevention and control of pollution) Act, 1974,water pollution

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means such contamination of water or such alteration of the physical,
chemical or biological properties of water or such discharge of any
sewage or trade effluent or of any other liquid, gaseous or solid
substance into the water (whether directly or indirectly) which may
or is likely to, create a nuisance or render such water harmful or
injurious to public health or safety or to domestic, commercial,
industrial, agricultural or other legitimate uses, or the life and health
of animals or plants or of aquatic organisms. Water is polluted by the
pollutants that are released mainly from industries, farms, and
sewage systems. Water pollution is not restricted to any particular
area or country because, directly or indirectly, everything in the
environment is connected and affected by each other, and it is a
global crisis today. Water pollution is a one of the major problems in
the global context.

Water pollution affects not only the human beings, but also animals,
plants and birds that depend on water. In the developing countries,
most of the misery, sickness and death is caused due to infectious
diseases arising out of contaminated water. After independence, our
country is also passing through an era of economic growth and the
same has given rise to the problem of pollution of water. Water
pollution is harmful to the health of humans. Water pollution may not
damage our health immediately but it can turn harmful after long
term exposure. A large number of infectious diseases amongst
humans are caused due to water pollution. These diseases include
typhoid, intestinal parasites, cholera and most of the enteric and
diarrheal diseases caused by bacteria, parasites, and viruses. Among
the most serious parasitic diseases are amoebiasis, giardiasis and
fluorosis. Heavy metals from industrial processes can accumulate in

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the nearby lakes and rivers. These are toxic to marine life such as fish
and shellfish, and subsequently to the humans who eat them.

CAUSES OF WATER POLLUTION

Water is a colourless and transparent substance. Water, when
polluted, contains foreign substances in it, which alters the physical,
chemical or biological properties of water, thereby rendering it unfit
for use. Some of the major factors which are responsible for causing
water pollution or degradation of the quality of water are-

a) Growing Population
Every year we add millions of people to the world population and
India is no exception. India the second most populated country in the
world after China and the rate of population growth in India is still
increasing alarmingly. The Earth is now overcrowded and the
consumption habits of the people are on the rise. The growth of
population has given rise to an increase in the wants and demands of
mankind and has succeeded in creating the acute problem of water
pollution.

b) Industrialization
Rapid industrialization is another cause of worry as far as water
pollution is concerned. Immediately after the independence, major
steps were taken by India towards economic development.
Industrialization was, then, considered the most important factor
that can accelerate a country’s progress. But to the utter surprise of
all, industrialization, along with development, brought with it a
danger to the human civilization in the form of water pollution.
Industries began to discharge severely toxic and hazardous wastes
and effluents into the water bodies, thereby contaminating them.

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c) Urbanization
Urbanization is also another major factor which contributes
significantly towards water pollution. The civilization started near
water courses. Subsequently big cities also developed just near the
water courses. With the development of the big cities, all other forms
of essentials for making life comfortable also developed. Of these,
developments in the field of communication and transportation are
noteworthy which subsequently attracted the establishment of
industrial and commercial basis in and around the cities. As these
sectors heavily depend on water and water systems, it is quite
natural that they made cities their first choice. Rapid urbanisation in
India during the recent decades has given rise to a number of water
related problems such as shortage of water supply, wastewater
generation and its collection, treatment and disposal. Many towns
and cities which came up on the banks of rivers have not given a
proper thought to the problem of wastewater, sewerage, etc.

In urban areas, water is used for domestic and industrial purposes

from rivers, streams, lakes, ponds, wells, etc. Nearly 80% of the water
supplied for domestic use passes out as wastewater. In most cases,
this wastewater is let out untreated and causes large scale pollution
of the surface water. Since many towns and cities lack a proper
sewerage system, the condition worsened further adding to the
misery of the people.

d) Use of Modern Technology

The use of modern and productive technology in recent years is

closely related to the severe water crises that is being faced today.
This factor has been largely responsible for the generation of
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synthetic and non-biodegradable substances such as plastics,
chemical nitrogen fertilizers, synthetic detergents, synthetic fibres,
big cares petrochemical and other environmentally injurious
substances. Thus, water pollution is the inevitable result of such
reckless use of technology.

e) Modern Agricultural Practices

Modern agricultural practices and application of new technological
processes in the field of agriculture severely affect the quality of
water. Inorganic fertilizers are being widely used now-a-days.
Fertilizers like phosphates and nitrates cause wide spread damage
when applied carelessly to crops. The fertilizers can be transmitted
to ground water by leaching and to surface waters by natural
drainage and storm run-off. In addition to fertilizers various kinds of
pesticides and insecticides are also applied. Almost all the pesticides
which are used are toxic water.

SOURCES OF WATER POLLUTION

The main sources of water pollution in India are as follows-
a) Domestic wastes- Wastes from residential homes, sewage etc.
constitutes nearly 75 percent of the total water pollution in India.
The residential buildings have connected sewage treatment
system. But it is either inadequate or misused. The garbage and
sewage discharged from it are most flown into the nearby water
bodies. Sewage generally includes bio-degraded pollutants such as
human excretion, animal waste and many compounds like
carbohydrates, proteins, urea, fats etc., inorganic nitrates and
phosphates of detergents. The detergents accumulated in water
render it unfit for drinking purposes. According to a recent survey,

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 an average Indian family throws away wastes of about 60 kg per
week. About 60 percent of the wastes processed by municipal
treatment plants come from domestic sources and around 40
percent from industrial units. The thickly populated areas are
more prone to the ill-effects of contaminated water. The water
discharged from untreated or inadequately treated sewage which
goes into rivers, lakes, wells etc. causes serious infectious diseases
like typhoid, cholera, dysentery and other skin diseases.
b) Industrial Wastes- Industrial wastes or trade effluents include any
liquid or solid substance, which is discharged from any premises
used for carrying on any industry, operation or process. A large
number of industries, especially those which are located on the
banks of rivers, discharge their effluents into the rivers and thus
pollute the river water. Industrial effluents contain, inter alia,
mercury, lead, cadmium, copper etc., which are harmful to the
plants, humans and aquatic animals.
c) Agricultural wastes, insecticides and pesticides- The main
components of agricultural wastes that cause water pollution are
insecticides, pesticides and fertilizers which reach water through
run off and leaching. Sediments and wastes of farm-animals also
cause water pollution. The pesticides and insecticides which are
sprinkled in agricultural farms, when washed off the lands
through irrigation, drainage or rainfall, enter the rivers, streams
and even soil and the water gets contaminated. The excessive use
of inorganic fertilizers accelerates nitrite contents in water and
the water gets polluted.

d) Thermal wastes- Thermal wastes result from generation of

excessive heat from vehicle exhausts, power plants. This raises

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 water temperatures to a dangerously high level, thus upsetting the
ecological balance.

e) Radiation wastes- Radioactive wastes enter the water streams

from various sources such as nuclear power plants, nuclear
reactors, nuclear tests, nuclear installations, operations of power,
processing of fission and fusion products etc. Once these wastes
find access to water bodies, they disrupt the Eco cycling process,
enter the food chain and affect metabolic pathways.

f) Marine wastes- Oceans and seas are major water sources which
are immensely beneficial to mankind. Wastes from shipping fuel
and oil are the main pollutants in sea water. Wastes discharged
from navigable ships cause water pollution which seriously
damages the marine resources and organisms. Spilling from ships
and off-shore drilling rigs also result in marine pollution.
Accidents and collisions between the navigating ship results in
discharge of huge amount of oil from the tankers which pollutes
the sea-water and causes irreparable damage to marine habitat
and vegetation. Also, as a general practice, after the oil-tankers
deliver the contents, the emptied tanker is filled with sea water to
clean it for being refilled again for a return trip. The water used
for cleaning is discharged in the sea which contains contaminated
oil and the water thus gets polluted.

EVOLUTION OF WATER POLLUTION LAWS IN INDIA

The history of water pollution India can be traced back to the British
period. The ancient literatures are full of evidence to show that the
society, in ancient times, paid more attention to the protection of ‘Jal’
(water) than in the modern times. With the growth of civilization,

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large settlements and towns began to appear and that gave rise to the
problem of waste disposal. References in history indicate that the use
of Earth-pits was a common practice for waste disposal while several
ancient cities even developed elaborate sewer systems. Evidences
show that the civilizations like the Mohan-je-daro and Harappa had
drains for collection of wastewater. As there was no treatment
facility for these wastes at that time, it was quite certain that these
wastes might have introduced severe problems of river and ground
water pollution. In the earlier times, the sewage was discharged
untreated in the rivers. It was realized later that the sewage must be
treated before it discharge into water bodies in order to check
pollution. Gradually, the practice of discharging untreated sewage
was discontinued in the late 19th century. As of today, partially
treated and untreated sewage is still discharged into the watercourse
causing severe water pollution.

Before the attainment of independence, i.e. during the British rule,

certain legislations existed for the purpose of controlling the fouling
of water. These were The Shore Nuisance (Bombay and Colaba) Act,
1853, Oriental Gas Company Act, 1857, The Northern India Canal and
Drainage Act, 1873, The Obstruction in Fairways Act, 1882, Indian
Penal Code, 1860, etc. Although these laws tried to prevent water
pollution, they did not prove efficacious against spread of pollution.
The Indian Penal Code, 1860, which is one of the earliest enacted law,
had some provisions relating to public health, safety, etc. (Chapter
XIV of the Code.) These provisions aimed at controlling water
pollution through criminal sanction. But they also failed to keep pace
with the growing need to prevent and control water pollution. With
the attainment of independence, the introduction of five year plans

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by the Central Government was witnessed. On 8th December, 1951,
the then Prime Minister of India, Shri. Jawaharlal Nehru presented
the first five-year plan (1951-56) to the Parliament of India. India had
to recover from the partition and the disequilibrium in the economy
due to the Second World War. The First Five Year Plan, therefore, had
the objectives of rehabilitating refugees, agricultural development,
and self-sufficiency in food along with controlling inflation. The
objectives set out in the first five year plan proved to be a success and
the second five year plan received an atmosphere of economic
stability which gave the Indian economy a much needed progress.

The Second Five Year Plan of India (1956-61) focused on rapid

industrialization, especially the development of heavy industries and
capital goods, like iron, steel, chemicals, etc. and the machine building
industries. With this aim, industries were established on a massive
scale. Once an industry is established, it will produce some wastes.
When the industries failed to understand as to how these wastes
have to be disposed, they found rivers as an easy and convenient
place for discharging their wastes and effluents. With this process
going on, the water bodies became unfit for consumption. In the
meantime, other problems like urbanisation, population growth
added to the misery by putting heavy pressure on water and water
courses.

When the problem started increasing, it was thought that proper

strategies must be developed for effective implementation of
corrective action. In the absence of any remedies, the best way to
prevent water pollution was the law and the legal process. Thus, in
the era of rapid industrialisation and growing concern of water
pollution, the necessity to frame a separate law to particularly
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control water pollution was seriously felt. Therefore, it was decided
that the problem of water pollution can be addressed only by
enacting a central legislation as this had become a national problem.
Since “water” is a State subject under List II of the seventh schedule
of the Constitution of India, resolutions were passed under Article
252(1) of the Constitution by State legislatures of 12 states,
authorising the Parliament to pass a law relating to prevention and
control of water pollution.

The Parliament of India enacted the Water (Prevention and Control

of Pollution) Act, 1974 (also known as the Water Act.) This Act came
into force immediately in those 12 States and in the Union
Territories. Later the Act was adopted by all the other States by
passing appropriate resolutions under Article 252(1) of the
Constitution. The Water (Prevention and Control of Pollution) Act,
1974 was called a statute par excellence. It was a comprehensive
attempt made to address the problem of water pollution in India. It
was India’s first attempt which targeted an important aspect of
environmental pollution, i.e. water pollution. The statute applies to
rivers, seas, streams, inland waters, tidal waters, subterranean
waters and so on. The provisions of the Act were based on a judicious
combination of the Precautionary Principle and the Polluter Pays
Principle of sustainable development.

Aims, Objects and Salient features of the Water Act

Although the immediate inspiration for the passing of this Act in
1974 was the United Nations Conference on the Human Environment
(Stockholm Conference) held at Stockholm in 1972, the Preamble of
the Act does not make any reference to the Stockholm Conference,

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 unlike the Air Act and the Environment Protection Act, which contain
a reference to the said Conference.

The preamble of the Water (Prevention and Control of Pollution) Act,

1974, provides- “An Act to provide for the prevention and control
of water pollution and the maintaining or restoring of
wholesomeness of water, for the establishment, with a view to
carrying out the purposes aforesaid, of Boards for the prevention
and control of water pollution, for conferring on and assigning to
such Boards powers and functions relating thereto and for
matters connected therewith.”

Aims and objects of the Act

a) To provide for the prevention and control of water pollution.

b) To maintain and restore the wholesomeness of water.
c) To establish Central and State Boards to carry out the above
objectives.
d) To confer on such Boards, powers and functions relating to
prevention and control of water pollution.
e) To establish Central and State water testing laboratories so as to
enable the Boards to discharge their functions.
f) To penalise contravention of the provisions of the Act.
g) To deal with matters connected with the above mentioned matters.

In A.P. Pollution Control Board Vs. M.V. Nayadu, the S.C. held that the
fundamental objective of the Water Act, 1974 is to provide clean
drinking water to all the citizens of India.

In pursuance of the above mentioned aims and objectives and to

implement the provisions of the Water Act, the central Government
enacted the following-

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 • Water (Prevention and Control of Pollution) Rules, 1975
• The Central Board for the Prevention and Control of Water
Pollution (Procedure for Transaction of Business) Rules,
1975.
• The Water (Prevention and Control of Pollution) Cess Act,
1977.
• The Water (Prevention and Control of Pollution) Cess Rules.
1978.

Salient features of the Water (Prevention and Control of

Pollution) Act, 1974

a) The Act lays down the definitions of important terms and

expressions used therein, as for instance, “stream”, “outlet”,
“sewer”, “pollution”, “trade effluent”, etc.
b) The Act envisages the constitution of a Central Pollution Control
Board as well as State Pollution Control Boards. A Joint Board can
also be constituted if an agreement to that effect is entered into by
two or more governments of contiguous States.
c) Terms and conditions of service of the Member of the boards as
well as the grounds for their disqualifications are also specified in
the Act.
d) The functions of the Central Board and the State Boards are also
spelt out in detail in sections 16 and 17 of the Act.
e) Several important powers are entrusted to the State Boards, as for
instance- the power to obtain information, the power to take
samples, the power of entry and inspection, etc.
f) The Act also contains provisions relating to- prohibition on use of
a stream or a well for disposal of pollutants, restrictions on new

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 outlets or new discharges, reporting accidents or other
unforeseen acts or events to the authorities, etc.
g) A right of appeal or revision is conferred on persons who are
aggrieved by the orders passed by the Board.
h) The Act also provides for stringent penalties for offences
committed under the Act. It contains special provisions relating to
penalties when offences are committed by a company or by a
Government Department.

Definitions

Section 2 of the Water (Prevention and Control of Pollution) Act,

1974 defines certain terms used in this Act.

a) Occupier [S. 2(d)] in relation to any factory or premises, means

the person who has control over the affairs of the factory or the
premises, and includes, in relation to any substance, the person in
possession of the substance.
b) Outlet [S. 2(dd)] includes any conduit pipe or channel, open or
closed carrying sewage or trade effluent or any other holding
arrangement which causes or is likely to cause pollution.
c) Pollution [S. 2(e)] means such contamination of water or such
alteration of the physical, chemical or biological properties of
water or such discharge of any sewage or trade effluent or of any
other liquid, gaseous or solid substance into water (whether
directly or indirectly) as may, or is likely to, create a nuisance or
render such water harmful or injurious to public health or safety,
or to domestic, commercial, industrial, agricultural or other
legitimate uses, or to the life and health of animals or plants or of
aquatic organisms.

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 d) Sewage effluent [S. 2(g)] means effluent from any sewerage
system or sewage disposal works and includes silage from open
drains.
e) Sewer [S. 2(gg)] means any conduit pipe or channel, open or
closed, carrying sewage or trade effluent.
f) Stream [S. 2(j)] includes-
(i) River;
(ii) Water course- whether flowing or for the time being dry;
(iii) Inland water- whether natural or artificial;
(iv) Sub-terranean waters;
(v) Sea or tidal waters to such extent or, as the case may be, to such
point as the State Government may, by notification in the Official
Gazette, specify in this behalf.
g) Trade effluent [S. 2(k)] includes any liquid, gaseous or solid
substance which is discharged from any premises used for carrying
on any industry, operation or process, or treatment and disposal
system, other than domestic sewage.

Constitution of Central Board

According to S. 3 of the Act, the Central Government shall, with effect
from such a date (being a date not later than six months of the
commencement of this Act in the States), by notification in the Official
Gazette, appoint or constitute a Central Board which shall be called
the Central Pollution Control Board in order to exercise the powers
conferred on it and perform the functions assigned to it under this
Act. The Board shall consist of the following members-
1) A full-time chairman to be nominated by the Central Government. He
should be a person having special knowledge or practical experience
in respect of matters relating to environmental protection or he

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 should be a person having knowledge and experience in
administering institutions dealing with such matters.
2) Such number of officials, not exceeding five, to be nominated by the
Central Government to represent the Central Government.
3) Such number of persons, not exceeding five, to be nominated by the
Central Government from amongst the members of the State Boards,
of whom not exceeding two shall be from those referred to in clause
(c) of Section 4 stated below.
4) Such number of non-officials, not exceeding three, to be nominated
by the Central Government in order to represent the interests of
agriculture, fishery or industry or trade or any other interest which
in the opinion of the Central Government, ought to be represented.
5) Two persons to be nominated by the central Government to
represent the companies or corporations owned, controlled or
managed by the Central Government.
6) One full-time Member-Secretary to be appointed by the Central
Government. Such a person should possess qualifications, knowledge
and experience of scientific, engineering or management aspects of
pollution control.

Constitution of State Boards

According to S. 4 of the Act, the State Government shall, with effect
from such a date as it may consider fit, by notification in the Official
Gazette, appoint or constitute a State Pollution Control Board in
order to exercise the powers conferred on it and perform the
functions assigned to it under this Act. The Board shall consist of the
following members-
1) A Chairman to be nominated by the State Government (whole time
or part time, as may be decided by the State Government), being a
person having special knowledge or practical experience in
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 respect of matters relating to environmental protection or a
person having knowledge and experience in administering
institutions dealing with such matters.
2) Such number of officials, not exceeding five, to be nominated by
the State Government to represent the State Government.
3) Such number of persons, not exceeding five, to be nominated by
the State Government from amongst the members of the local
authorities functioning within the State.
4) Such number of non-officials, not exceeding three, to be
nominated by the State Government to represent the interests of
agriculture, fishery or industry or trade or any other interest
which, in the opinion of the State Government, ought to be
represented.
5) Two persons to represent the companies or corporations owned,
controlled or managed by the State Government, to be nominated
by that Government.
6) One full-time Member-Secretary, possessing qualifications,
knowledge and experience of scientific, engineering or
management aspects of pollution control, to be appointed by the
State Government.

Both the Central and State Boards are deemed to be bodies corporate,
having perpetual succession and a common seal, with the power to
acquire, hold and dispose of property, to enter into contracts and to
sue and be sued in their own names.
For a Union Territory, no State Board shall be constituted. The
Central Board shall exercise the powers and perform the functions of
a State Board for such territories.

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Constitution of Joint Boards
S. 13 of the Act provides for the constitution of a Joint Board if an
agreement to that effect is entered into by two or more Governments
of contiguous states. In case of Union Territories, a Joint Board may
be constituted if an agreement to that effect is entered into by the
Central Government with one or more Governments of states
contiguous to such Union Territory.

All the members and officers of the Central Board and State Boards
are deemed to be “public servants” under S. 21 of the IPC.

Terms and conditions of service of members of the Boards

According to Section 5 of the Act, a member of a Board, other than
the Member-Secretary, shall hold office for a term of three years
from the date of his nomination. However, such a member shall,
despite the expiration of his term, continue to hold office until his
successor enters upon his office.
A member is eligible for re-nomination and he can also resign from
his office. Casual vacancies are filled by fresh nomination and the
new person shall hold office for the remaining term.
The Central Government or the State Government can also remove
any member before the expiry of his term, after giving him a
reasonable opportunity of showing cause against the same.
Terms and conditions of service of the member-secretary shall be
such as may be prescribed.

Disqualification of members
According to Section 6 of the Act, the following persons are
disqualified from becoming/being a member of any Board-

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1) He is, or has been, adjudged insolvent or has suspended payment
of his debts or has compounded with his creditors; or
2) He is of unsound mind and stands so declared by a competent
court; or
3) He is, or has been, convicted of an offence which, in the opinion of
the Central Government or, as the case may be, of the State
Government, involves moral turpitude; or
4) He is, or has been, convicted of an offence under this Act; or
5) He has, directly or indirectly, by himself or by any partner, any
share or interest in any firm or company carrying on the business
of manufacture, sale or hire of machinery, plant, equipment,
apparatus or fittings for the treatment of sewage or trade
effluents; or
6) He is a director or a secretary, manager or other salaried officer or
employee of any company or firm having any contract with the
Board, or with the Government constituting the Board, or with a
local authority in the State, or with a company or corporation
owned, controlled or managed by the Government, for the
carrying out of sewerage schemes or for the installation of plants
for the treatment of sewage or trade effluents; or
7) He has abused, in the opinion of the Central Government or as the
case may be, of the State Government, his position as a member,
thereby rendering his continuance on the Board detrimental to
the interest of the general public.

No order of removal shall be made by the Central Government or

the State Government, as the case may be, under this section
unless the member concerned has been given a reasonable
opportunity of showing cause against the same. A member who

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has been removed under this Section on account of any of the
disqualifications mentioned above, shall not be eligible for re-
nomination as a member.

Functions of the Central Board (S. 16)

The main function of the Central Board shall be to promote
cleanliness of streams and wells in different areas of the States.
Apart from this, Section 16 of the Act directs the central Board to
perform all or any of the following functions too-
1) To advise the Central Government on any matter relating to the
prevention and control of water pollution;
2) To co-ordinate the activities of the State Boards and resolve
disputes among them;
3) To provide technical assistance and guidance to the State
Boards, carryout and sponsor investigations and research
relating to problems of water pollution and the prevention,
control or abatement of water pollution;
4) To plan and organise the training of persons engaged or to be
engaged in programmes for the prevention, control or
abatement of water;
5) To organise, through mass media, a comprehensive
programme relating to the prevention and control of water
pollution;
6) To perform such functions of any State Board as may be
specified in an order made by the Central Government under
Section 18(2) of the Act;
7) To collect, compile and publish technical and statistical data
relating to water pollution and the measures which have been
devised for its effective prevention and control;

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8) To lay down, modify or annul, in consultation with the State
Government concerned, the standards for a stream or well;
9) To plan and cause to be executed nation-wide programmes for
the prevention, control or abatement of water pollution; and
10) To perform such other functions as may be prescribed.

The Central Board may also establish or recognise a laboratory or

laboratories to enable it to perform its functions under this
Section efficiently. The samples of water from any stream or well
or the samples of any sewage or trade effluents may be tested and
analysed in such laboratories.

Functions of the State Board (S. 17)

1) To plan a comprehensive programme for the prevention,
control or abatement of pollution of streams and wells in the
State and to secure the execution of such plans;
2) To advise the State Government on any matter concerning the
prevention, control or abatement of water pollution;
3) to collect and disseminate information relating to water
pollution and the prevention, control or abatement thereof;
4) to encourage, conduct and participate in investigations and
research relating to problems of water pollution and
prevention, control or abatement of water pollution;
5) to collaborate with the Central Board in organising the training
of persons who are engaged in or to be engaged in programmes
relating to prevention, control or abatement of water pollution
and to organise mass education programmes relating thereto;
6) to inspect sewage or trade effluents, works and plants for the
treatment of sewage and trade effluents and to review plans,

115
 specifications or other data relating to plants set up for the
treatment of water, works for the purification thereof and the
system for the disposal of sewage or trade effluents;
7) To lay down, modify or annul effluent standards for sewage
and trade effluents and for the quality of receiving waters
resulting from the discharge of effluents and to classify waters
of the State;
8) To evolve economical and reliable methods of treatment of
sewage and trade effluents, having regard to the peculiar
conditions of soils, climate and water resources of different
regions, the prevailing flow characteristics of water in streams
and wells which render it impossible to attain even the
minimum degree of dilution;
9) To evolve methods of utilisation of sewage and suitable trade
effluents in agriculture;
10) To evolve efficient methods of disposal of sewage and trade
effluents on land;
11) To lay down standards of treatment of sewage and trade
effluents to be discharged into any stream;
12) To make, vary or revoke any order for the prevention, control
or abatement of discharge of waste into streams or wells; or
requiring any person concerned to construct new systems for the
disposal of sewage and trade effluents;
13) To lay down effluent standards to be complied with by
persons while causing discharge of sewage or sullage or both and
to modify or annul such effluent standards;
14) To advise the State Government with respect to the location of
any industry which, if carried on, is likely to pollute a stream or
well;

116
15) To perform any other function as may be prescribed or as may
be entrusted to it by the Central Board or the State Government.

The State Board may also establish or recognise a laboratory or

laboratories to enable itself to perform its functions under this
Section efficiently. The samples of water from any stream or well
or of samples of any sewage or trade effluents may be tested and
analysed in such laboratories.

Power of the Government to give directions to the Board

(S. 18)
In the performance of the functions under the Act, the Central
Board is bound to follow the written directions that may be given
to it by the Central government. Likewise, every State Board is
bound to follow the written directions that may be given by the
State Government or by the Central Board. However, if a direction
given by the State Government is inconsistent with the direction
given by the Central Board, the matter shall be referred to the
Central Government for its decision.

Prevention and Control of Water Pollution

1) Power of State Government to restrict the application of the Act

to certain areas (S.19)
If the State Government is of the opinion that the provisions of
this Act need not apply to the entire State, it may, by
notification in the Official Gazette, restrict the application of
this Act only to such area or areas as may be declared therein

117
 as water pollution, prevention and control area or areas and
thereupon the provisions of this Act shall apply only to such
area or areas. But the State Government can exercise this
power only on consultation with or the recommendation of the
State board.
2) Power to obtain information (S. 20)
The State Board or any officer empowered by it in that behalf,
may make surveys of any area and gauge and keep records of
the flow or volume and other characteristics of any stream or
well in such area, may take steps for the measurement and
recording of the rainfall in such area or any part thereof, for the
installation and maintenance of gauges or other apparatus and
works connected therewith, may carry out stream surveys and
may take such other steps as may be necessary. The State
Board has the power to obtain any information required for the
above-mentioned purposes.
The State Board may give directions requiring any person,
who is extracting water from any stream or well in an area in
such quantities which are substantial in relation to the flow or
volume of that stream or well or is discharging sewage or
trade effluent into any such stream or well, to give such
information relating to it at such times and in such forms as
may be specified in the directions.

In order to prevent or control pollution of water, the State

Board may give directions to any person who is in charge of
any establishment where any industry, operation or process,
is carried on, to furnish information regarding the

118
 construction, installation or operation of any disposal
systems.
3) Power to take samples (S. 21)
The State Board or any officer empowered by it shall have the
power to take samples of water from any stream or well or
samples of any sewage or trade effluent which is passing from
any plant or vessel or from or over any place into any such
stream or well for the purpose of analysis. When such a
sample is taken for analysis-
(a) The person who is taking the sample shall serve a notice of
his intention to have the sample analysed. The notice shall be
served then and there in such form as may be prescribed. The
notice is served on the person who is in charge of, or who has
control over the plant or vessel or who is in occupation of the
place (such a person is referred to as the occupier) or the
notice can also be served on any agent of such occupier;
(b) In the presence of the occupier or his agent, the person
who is taking the sample shall divide the sample into two
parts;
(c) The person who is taking the sample shall cause each part
of the sample so divided to be placed in a container which
shall be marked and sealed and shall also be signed both by
the person taking the sample and the occupier or his agent;
(d)He shall send one container forthwith to a laboratory
established by the State Board under S. 17 of the Act as the
case may be;
(e) If requested by the occupier or his agent, he shall send the
second container to the laboratory established or specified
under S. 52(1) of the Act as the case may be.

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(S. 52(1) - State Water Laboratory established by the State
Government)

When the sample of any sewage or trade effluent is to be

taken for analysis under and the person taking the sample
serves on the occupier or his agent, but the occupier or his
agent wilfully absents himself, then, the sample so taken shall
be placed in a container which shall be marked and sealed
and shall also be signed by the person taking the sample and
the same shall be sent forthwith by such person for analysis
to the State Water Laboratory as the case may be.
The person taking the sample shall inform the Government
analyst appointed under Section 53 of the Act, in writing
about the wilful absence of the occupier or his agent.

The cost incurred in getting such sample analysed shall be

payable by the occupier or his agent and in case of default of
such payment, the same shall be recoverable from the
occupier or his agent as an arrear of land revenue or of public
demand. However, no such recovery shall be made without
providing the occupier or his agent a reasonable opportunity
of being heard in the matter.

Section 22 lays down that on receipt of the sample sent to the

laboratory, the analyst shall analyse the sample and submit a
report of the result of the analysis in a prescribed form in
triplicate to the Central Board or the State Board. On receipt
of the copies of the report, the Board shall send one copy of it
to the occupier or his agent, another copy shall be preserved

120
 for production in courts in case of any legal proceedings and
the other copy shall be kept by the concerned Board.

4) Power of entry and inspection (S. 23)

Any person empowered by a State Board shall have the right to
enter any place at any time with such assistance as he
considers necessary-
(a) For the purpose of performing any of the functions of the
Board entrusted to him;
(b) For the purpose of determining whether and if so in what
manner, any such functions are to be performed;
(c) For the purpose of determining whether any provisions of
this Act or the rules made under this Act or any notice, order,
direction or authorisation served, made, given, or granted
under this Act is being or has been complied with;
(d) For the purpose of examining any plant, record, register,
document or any other material object or for conducting a
search of any place in which he has reason to believe that an
offence under this Act has been committed or is being
committed or is about to be committed;
(e) For seizing any such plant, record, register, document or
other material object, if he has reason to believe that it may
furnish evidence of the commission of an offence punishable
under this Act.

The provisions of the Code of Criminal Procedure shall apply in

case of any such search or seizure.

5) Prohibition on use of stream or well for disposal of polluting

matter (S. 24)

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 a) No person shall knowingly cause or permit any poisonous,
noxious or polluting matter to enter (whether directly or
indirectly) into any stream or well or sewer or land; and
b) No person shall knowingly cause or permit to enter into any
stream any other matter which may, either directly or in
combination with similar matters, tend to obstruct the
proper flow of the water in such stream.

6) Restrictions on new outlets and new discharges (S. 25)

Without the previous consent of the State Board, no person
shall establish or take any steps to establish any industry,
operation or process, or any treatment and disposal system or
an extension or addition thereto, which is likely to discharge
sewage or trade effluent into a stream or well or sewer or land;
or
Without the previous consent of the State Board, no person
shall bring into use any new or altered outlets for the discharge
of sewage; or
Without the previous consent of the State Board, no person
shall begin to make any new discharge of sewage.

7) Power of the Board to apply to the Court for restraining

apprehended pollution of water in streams or wells (S. 33)
Where it is apprehended by a Board that the water in any
stream or well is likely to be polluted by reason of the disposal
of or likely disposal of any matter into such stream or well or
into any sewer, or onto any land, the Board may make an
application to a court, not inferior to that of a Metropolitan
Magistrate or a Judicial Magistrate of the first class, for

122
 restraining the persons who is likely to cause such pollution
from so causing.

On receipt of such an application, the court make such order as

it deems fit.

Where the court makes an order restraining any person from

polluting the water in any stream or well, it may, in that order-
(i) direct the person who is likely to cause or has caused the
pollution of the water in the stream or well, to abstain from
doing so, or, as the case may be, to remove the matter from
such stream or well, and

(ii) if the order/direction as stated above is not complied with

by the person to whom such direction is issued, the court may
authorise the Board to undertake the removal and disposal of
the matter in such manner as may be specified by the court.

All expenses incurred by the Board in removing any matter in

pursuance of the authorisation/direction given above may be
defrayed out of any money obtained by the Board from such
disposal and any balance outstanding shall be recoverable
from the person concerned as arrears of land revenue or of
public demand.

8) Power to give directions (S. 33A)

A Board may, in the exercise of its powers and performance of
its functions under this Act, issue any directions in writing to
any person, officer or authority, and such person, officer or
authority shall be bound to comply with such directions.
However, it should be remembered that the directions so

123
 issued by the board shall be subject to the provisions of the
Water Act and any directions given by the Central Government.

The Board shall have the power to issue directions with respect
to-

(a) the closure, prohibition or regulation of any industry,

operation or process; or

(b) the stoppage or regulation of supply of electricity, water or

any other service.
In the Calcutta Tanneries Case, the Board found that the
Calcutta tanneries were operating in flagrant violation of the
provisions of the Water Act, 1974 and the Environment
Protection Act, 1986. Consequently, the Board passed
directions calling upon the tanneries-
• To close down and relocate;
• To pay compensation for reversing the ecological damage
caused by them; and
• To pay compensation for violating the rights and benefits
of their workmen.
When the matter appeared before the S.C. in appeal, the
directions given by the Board were upheld by the S.C.

Appeals and Revision

Appeals (S. 28)

Any person aggrieved by an order of the State Board may prefer
an appeal to the appellate authority within 30 days from the date
on which such order is communicated to him. An appeal may be

124
entertained even after this period of 30 days if sufficient cause is
shown to the satisfaction of the appellate authority. The appellate
authority must dispose of the appeal as expeditiously as possible
after giving an opportunity to be heard to the appellant and to the
State Board. In A.P. Pollution Control Board Vs. Prof. M.V. Nayudu,
the S.C. had suggested that the appellate authority constituted
under S. 28 of the Act should always have a sitting or a retired
Judge of a High Court and one or more scientist(s) of high ranking
and experience to assist in the adjudication of disputes relating to
environment and pollution.

Revision (S. 29)

The State Government may, at any time, either on its own motion
or on any application made to it, call for the records of any case in
which an order has been made by the State Board. This may be
done for the purpose of satisfying itself as to the legality or
propriety of any such order passed by the Board and the State
Government may pass such order in relation thereto as it may
think fit.

However, the State Government shall not pass any order without
providing the State Board and the person who may be affected by
such order a reasonable opportunity of being heard in the matter.

The State Government shall not revise any order made by the
State Board under this Section where an appeal against that order
lies to the appellate authority, but the appeal has not been
preferred or where an appeal has been preferred and it is pending
before the appellate authority.

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 Offences and Penalties

Under the water Act, 1974, different penalties have been

prescribed for violating different provisions of the Act. Sections 41
to 45A are the relevant provisions in this regard.

Offence Penalty

Non-compliance with any direction given by Imprisonment for a term which

the State Board under S. 20 of the Act within may extend up to 3 months or
the time period specified in such direction. with fine which may extend up
to Rs.10,000/- or with both.

In case the non-compliance

continues, an additional fine
may be imposed which may
extend up to Rs. 5,000/- per
day.

Failure to comply with any order or Imprisonment for a term

direction of the Board issued under S. 32 between 18 months and six
during emergency or any order of the Court years and fine. If the failure
restraining water pollution issued under S. continues, an additional fine
33 or any direction of the Board under S. which may extend up to Rs.
33A. 5,000/- per day.

126
Contravention of S. 24 (which prohibits the Imprisonment for a term
use of a stream or well for disposing between 18 months and 6 years
polluted matter) and S.25 (restrictions on and fine.
new outlets and discharges.)

Whoever-

1. Destroys, pulls down, removes, injures or

defaces any pillar, post or stake fixed in the
ground or any notice or other matter put up,
inscribed or placed, by or under the
authority of the Board, or

2. Obstructs any person acting under the

orders or directions of the board from
exercising his powers and performing his
functions under this Act, or

3. Damages any works or property belonging

to the board, or Imprisonment for a term which
may extend up to 3 months or
4. Fails to furnish any information required
with fine which may extend up
by any officer or other employee of the
to Rs 10,000/-or with both.
board for the purpose of this Act, or

5. Fails to intimate the occurrence of any

accident or other unforeseen Act or event
under Section 31 to the Board and other
authorities or agencies as required by that
section, or

6. Knowingly or wilfully makes a statement

which is false for the purpose of obtaining

127
any consent under section 25, or

7. Knowingly or wilfully altering any meter

or gauge or other measure or monitoring
device in order to prevent it from
monitoring or measuring correctly.

Contravention of any other provision of the

Act for which no penalty has been provided

Non-compliance with any order or direction Imprisonment for a term which

given under the Act for which no penalty has may extend up to three months
been provided. or with fine which may extend
up to Rs 10,000/- or with both.

In several cases, the S.C. has applied the Polluter Pays Principle in
matters relating to environmental pollution and held that the
polluter is responsible for the cost of restoration of the
environment and ecology of the polluted area. In M.C. Mehta Vs.
Kamalnath, orders based on the Polluter Pays Principle were
passed against a motel which was polluting the river Beas by
discharging into it untreated effluents.

Offences by companies (S. 47)

Where an offence under this Act has been committed by a
company, every person who was in charge of, and was responsible
to the company for the conduct of the business of the company at

128
the time when the offence was committed, as well as the company
itself, shall be deemed to the guilty of the offence and shall be
liable to be proceeded against and punished accordingly

However, such a person can escape liability if he can prove-

a) that the offence was committed without his knowledge; or
b) that he exercised all due diligence to prevent the
commission of such offence.
Where an offence under this Act has been committed by a
company and it is proved that the offence has been committed
with the consent or connivance of, or because of any neglect on
the part of any director, manager, secretary or other officer of the
company, such director, manager, secretary or other officer shall
also be deemed to be guilty of that offence and shall be liable to be
proceeded against and punished accordingly.

Offences by Government Departments (S. 48)

Where an offence under this Act has been committed by any

Department of the Government, the Head of the Department shall
be deemed to be guilty of the offence and shall be liable to be
proceeded against and punished accordingly.

Such a person can escape the liability if he proves that-

a) that the offence was committed without his knowledge; or
b) that he exercised all due diligence to prevent the
commission of such offence.

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 Case Laws

1) Kanpur Tanneries case (M.C. Mehta Vs. Union of India)

This case is one of the famous Ganga pollution cases filed before
the Supreme Court. One activist lawyer M.C. Mehta filed a writ
petition under Article 32 of the Constitution through which it
was brought to the notice of the court that a group of tanneries
functioning on the bank of river Ganga were polluting the river
by discharging effluents into the river without proper primary
and secondary treatment of effluents and wastes. In this writ
petition, while highlighting the Kanpur Municipality’s failure to
prevent waste water from polluting the river Ganga, M.C. Mehta
asked the court to order Governmental authorities and tanneries
near Kanpur to stop polluting the river. The court ordered the
closure of tanneries and held that the financial capacity of the
tanneries should be considered as irrelevant while requiring
them to establish primary treatment plants. Just like an industry
which cannot pay minimum wages to its workers cannot be
allowed to exist, similarly a tannery which cannot setup a
primary treatment plan cannot be permitted to continue to be in
existence as it would have an adverse effect on the public at
large. Discharging of trade effluents from the tannery into river
Ganga would cause serious health hazards and it will outweigh
any inconvenience that may be caused on account of its closure
to the management and the labour employed by it.

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2) M.C. Mehta Vs. State of Orissa- Pollution of river Kathajori
case
River Kathajori is one of the major rivers in the State of
Orissa. The Petitioner, a practising advocate of the Supreme
Court and General Secretary of the Indian Council for Enviro-
Legal Action, a registered voluntary organisation filed a writ
petition under Article 226 of the Constitution to protect the
health of thousands of innocent people living in Cuttack and
adjacent areas, who were suffering from pollution being
caused by the Municipal Committee, Cuttack and the S.C.B.
Medical College Hospital, Cuttack, Several acts of the
aforesaid authorities and the State of Orissa are alleged to be
in violation of Article 21 of the Constitution of India, the
National Health Policy, the Environment (Protection) Act,
1986, and the Water (Prevention and Control of Pollution)
Act, 1974.

Untreated waste-water from the hospital and some other

parts of the city were discharged into the Taladanda Canal
which passes through the city. The water of the canal
consequently became highly polluted. A large section of
people living in the along the coast of the canal used the water
of the canal for bathing, drinking and other domestic
purposes. The storm water drain which was constructed in
the city for the purpose of discharge of excess water during
heavy rains into the river Kathajori to avoid water stagnation
was used to discharge such untreated waste water and
effluents. Unfortunately, the storm water drain which is
expected to remain dry, except during the rainy season, is

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 filled with sewage water from various parts of the city
throughout the year.

The Orissa High Court observed that a responsible Municipal

Council is constituted for the purpose of preserving public
health. Provision of proper drainage system in working
condition cannot be avoided by pleading financial inability.
The Court, therefore, directed the authorities to take
immediate steps in constituting a committee to prevent and
control water pollution. The committee shall work out ways
and means to prevent entry of sewage water and effluents
into rivers Mahanadi, Kathajori and Taldanda canal. The
storm water drain may be operated in such a manner as to
prevent entry of sewage water through it into the rivers.

3) M.C. Mehta Vs. Union of India- Badkhal and Surajkund lakes

case
Besides the river water, the water of ponds and lakes are also
getting polluted. Most of the ponds and lakes are of historical
importance to us and they are considered an integral part of
our social lives. In this case, Badkhal lake and Surajkund lake
in the State of Haryana were lakes of tourist importance.
Large scale construction and mining activities were
undertaken in the close vicinity of the two lakes. This had an
adverse impact on the local ecology. The S.C., in this case, took
into consideration the reports of the Central Pollution Control
Board and the National Environment Engineering Research
Institute which stated that the area surrounding the two lakes
are ecologically sensitive and the wide scale construction and

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 mining activities would result in degradation of the ecology.
The S.C. ordered that no construction or mining of any type
shall be permitted within 5 km radius of the Badkhal lake and
Surajkund lake and all open areas shall be converted into
green belts. The court reiterated the principles of sustainable
development and precautionary principle and stated that
these principles are a part of the environmental law of the
country. The court also stated that life, public health and
ecology have priority over the issues of unemployment and
loss of revenue.

4) Indian Council for Enviro-legal Action Vs. Union of India

Five hazardous chemical industries, located in Bichhri village
in Udaipur District of Rajasthan, were freely discharging
untreated toxic sludge into the nearby rivers thereby causing
pollution to water, soil and air. The water in the wells and the
streams had turned dark and dirty and became unfit for
human consumption. The Court ordered the closure of the
five hazardous chemical industries and held them responsible
for inflicting untold misery upon the villagers and causing
long lasting damage to the environment in the area. Their
moveable and immovable properties were also attached.

5) U. P. Pollution Control Board Vs. M/s Modi Distillery and

Others
The industrial unit of the company at Modinagar, Ghaziabad
was engaged in the business of manufacture and sale of
industrial alcohol. The said unit, without the consent of the U.
P. Water Pollution Board, discharged its highly noxious and
polluted trade effluents into the Kali River through the

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Kadrabad Drain and thereby caused continuous pollution of
the stream. It was mandatory for the industry to obtain the
consent of the Board before doing so. The court held that
everyone in charge and responsible for the conduct of the
business of the company, as well as the company itself shall
be deemed to be guilty of the offence.

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 AIR POLLUTION

Like water pollution, pollution of air was not very acute quite a few years
back as it is experienced today. Of all the natural resources which are
available for the consumption of living organisms, water and air constitute
the most essential elements. These two elements play a vital role so far as
human life is concerned. Water is considered to be the life line of the
ecological existence, whereas to sustain life, the air, i.e. pure air is
considered as most vital because without air, life in this world will not be
possible. Herein lies the importance of air- pure and clean in all aspects and
free from all sorts of pollution. Air has always been a mixture of gases and
moisture with some inert material present in it. But such air was not that
harmful to the society and life as it is today.

With the development and progress of the society, growing population and
urbanisation, economic growth coupled with massive industrialisation, air
has become polluted and unhygienic and it is nothing but filth. With every
passing day, the quality of air is deteriorating on a rapid scale. The situation
in the urban areas is more alarming when compared to the remote village
areas. But these remote village areas are also coming under the shadow of
air pollution.

Meaning and concept of Air pollution

According to the World Health Organization (WHO), air pollution means
the substances put into air by the activity of man in concentration sufficient
to cause harmful effect upon the health, vegetation, property or to interfere
with the enjoyment of his property. In simple words, air pollution means
the presence of contaminants in the air such as dust, fumes, gas mist odour,

135
smoke etc. in such quantities and of such characteristics and duration,
which shall be injurious to human beings, plants, animals, or property.

The Indian law which exclusively deals with the prevention and control of
air pollution is the Air (Prevention and Control of Pollution) Act, 1981-
also known as the Air Act, 1981. This Act defines air pollution as ‘the
presence in the atmosphere of any air pollutant.’ Air pollutant is defined as
‘any solid, liquid or gaseous substance, including noise, present in the
atmosphere in such concentration as may be injurious or may tend to be
injurious to human beings or other living creatures or plants or property or
environment.’

Classification of pollutants
As discussed above, with the progress of society and accelerated
developmental activities, the problem of air pollution has become multi-
dimensional which has ultimately resulted in the deterioration of the
quality of air. The various pollutants which cause this deterioration can be
classified into the following categories-
1) Primary pollutants- Pollutants that are emitted directly from either
natural events or from human activities are called primary
pollutants. The natural events include dust storms, volcanic
eruptions, etc. and human activities include emissions from vehicles,
industries. About 90% of the global air pollution is constituted by five
primary pollutants. These are Carbon oxides (Carbon monoxide and
Carbon Dioxide), Nitrogen oxides (Nitric Oxide and Nitrogen
Dioxide), Sulphur oxides, Hydrocarbons and Particulate matter.
2) Secondary pollutants-When primary pollutants react with each other
in the atmosphere, they form new pollutants which may be called
secondary pollutants. For example- ozone (it is formed when

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 hydrocarbons and nitrogen oxides combine in the presence of
sunlight), acid rain (it is formed when sulphur dioxide or nitrogen
oxides react with water.)
3) Degradable pollutants- The pollutants which can rapidly decompose
by natural processes are called degradable or non-persistent
pollutants. Example-domestic sewage, discarded vegetable wastes,
etc.
4) Slowly degradable pollutants- Some pollutants remain in the
environment for a longer time because they decompose very slowly
by the natural process. Example – plastics, pesticides, etc.
5) Non-degradable pollutants- Pollutants which do not decompose by
natural processes are called non – degradable pollutants. Example-
lead, mercury, nuclear wasters etc.
6) Gaseous pollutants- Gaseous pollutants include substances that are
gaseous in nature at normal temperature such as carbon monoxide,
sulphur oxide, hydrogen sulphide, hydrocarbons, nitrogen oxide, etc.
Carbon monoxide is considered as one of the most important gaseous
pollutants of air which is mainly released into the air from the
automobile exhaust. Sulphur oxide is another gaseous pollutant
which is transmitted into the air through the burning of the fuel
which contains sulphur. There are some industrial and chemical
processing units which produce hydrogen sulphide. Hydrocarbons
comprise unburned and wasteful fuels which are released from
transportation sources in urban areas. Nitrogen oxide, another form
of gaseous pollutant present in the air, is released from automobile
exhaust and internal combustion engines.
7) Particulate pollutants- Particular pollutants include particles of solid
or liquid substances and they vary according to their size. Particulate
pollutants include smog, dust, mists, fumes, smoke, aerosols.

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Sources of Air Pollution
Air pollution may be of two types. In other words, there are two sources
of air pollution. They are as follows-
1) Natural sources- Natural sources may include cosmic rays,
environmental radiation and internal radiation. Cosmic rays
originate in the outer space. Environmental radiation may be of two
types- terrestrial radiations (which are emissions from elements like
radium, uranium, thorium, isotopes of potassium) and atmospheric
radiations which are emitted from natural gases. As far as internal
radiations are concerned, it is said that human beings are subjected
to internal radiations which are present in the living tissues of the
body including minute emissions of uranium, thorium and related
substances.
2) Manmade sources- These play a vital role in making the air polluted
and harmful. These sources may be classified under the following
heads-

1) Stationary combustion- includes smoke stacks of power plants,

manufacturing facilities (factories) and waste incinerators, as well
as furnaces and other types of fuel-burning heating devices. In
developing and poor countries, traditional biomass burning is the
major source of air pollutants; traditional biomass includes wood,
crop waste and dung.

2) Transportation- includes motor vehicles, marine vessels, aircrafts,

railways and the effect of sound etc.
3) Industrial activities- Industrial activities undertaken on a massive
scale cause significant damage to the air. These industries include
thermal power plants, fertilizer plants, chemical industries, steel

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 industries and similar other industries which cause pollution of
the air in large quantities.
4) Agricultural practices- Chemicals, dust and controlled burning
practices in agriculture and forestry management and extensive
use of agricultural practices, particularly those used with the
advance technologies, are also responsible for causing air
pollution.
5) Domestic appliances- Domestic appliances which are extensively
used now-a-days to make life comfortable has resulted in air
pollution to a certain extent. Most of the electronic devices,
domestic cooking process and other forms of behavioural patterns
of the people are largely responsible for causing air pollution.
6) Noise- Noise is often described as an unpleasant sound caused due
to several factors. Noise has emerged as a major source of air
pollution not only in urban areas but also rural areas. With the
spread of scientific knowledge and technological advancements,
noise has become very common everywhere and it has affected
the human sensitivity in such a way that today even a small noise
becomes irritable and intolerable.
7) Solid Waste Disposal system- The urban wastes and solid heaps
are destroyed in the urban areas by burning them and people
burn their domestic wastes in their backyards or in some open
spaces which result in the emission of smoke and other gaseous
pollutants like carbon monoxide and nitrogen oxide which are
harmful.

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 Effects of Air Pollution

Air pollution has wide ranging effects on the people, plants, animals,
property, society and environment. Some of the effects of air
pollution are-

1) It affects human health.

2) It affects animal and plant life (Flora and Fauna.)
3) It causes change in climate and increase in temperature
throughout the globe.
4) It causes wide spread damage to the economy of a nation.
5) It affects the property.

Evolution of Air Pollution Law in India

When we think of controlling or preventing air pollution, applying

scientific methods for the same seems appropriate. But it is not that
easy as it is not possible to wipe out the air pollutants from the air
completely. We can attempt to control the air pollution and prevent
the spreading of particulate pollutants into the air by taking certain
remedial measures. The World Health Organization (WHO) has
suggested to adopt the following procedure to control the air
pollution-

1. Control, i.e. prevention of escape of toxic substances into ambient air

by use of inertial separators, scrubbers and fabric filters.
2. Replacement of certain technological processes or fuels by new ones
that produce less air pollution and
3. Reduction of concentration of toxic substances in air by dilution such
as vegetation.

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In a developing country like India, the above-mentioned procedures
suggested may not be very effective and they also involve
considerable expenses. In such cases, recourse have to be taken to
the administrative and legislative measures. Administrative control
of such pollution can be most effectively developed through an
appropriate law. Keeping this in mind, the Parliament of India
enacted the Air (Prevention and Control of Pollution) Act, 1981,
which, besides dealing with prevention and control of air pollution,
prescribes the establishment of an administrative mechanism to
carry out the objectives of the Act.

Aims and Objects of the Air (Prevention and control of Pollution)

Act, 1981

The Air (Prevention and Control of Pollution) Act, 1981 was passed
by the Parliament under Article 253 of the Constitution of India, to
implement the decisions taken at the United Nations Conference on
Human Environment held at Stockholm in June 1972. The main
objectives of the Act are:

1) To implement the decisions taken at the Stockholm Conference

insofar as they relate to the preservation of the quality of air and
control of air pollution.
2) To provide for the prevention, control and abatement of air
pollution.
3) To establish Central and State Boards to implement the objectives
of the Act.
4) To confer on and assign to such Boards, necessary powers to
prevent air pollution.
5) To lay down standards for maintaining good quality of air in the
country.
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Definitions

Section 2 of the Act defines some terms used in the Act.

1) Air pollution- means the presence, in the atmosphere, of any air

pollutant.
2) 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.
3) Chimney- includes any structure with an opening or outlet from or
through which any air pollutant may be emitted.
4) Emission- means any solid or liquid or gaseous substance coming
out of any chimney, duct or flue or any other outlet.
5) Occupier- in relation to any factory or premises, means the person
who has control over the affairs of the factory or the premises, and
includes, in relation to any substance, the person in possession of
the substance.
6) Board- means the Central Board or State Board. Central Board
means the Central Board for prevention and control of water
pollution and the State Board means the State Board for
prevention and control of water pollution.

Constitution of Boards

A Central Board has been constituted under the Water (Prevention

and Control of Pollution) Act, 1974 in order to discharge the
functions assigned to it under the Act. In order to avoid multiplicity
of authorities and to adopt an integrated approach to tackle the
problem of pollution, the Air (Prevention and Control of Pollution)
Act, 1981 lays down that the Central Board under the Water Act shall
also exercise the powers and discharge the functions of the Central
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Board under the Air Act. In other words, the Parliament did not
stablish a separate Central Board under the Air Act. The Board
existing under the Water Act shall deal with matters relating to
air pollution also.

In any State to which the Water (Prevention and Control of Pollution)

Act, 1974 applies and the State Government has constituted for that
State a State Board for the prevention and control of water pollution,
such State Board shall be deemed to be the State Board for the
prevention and control of air pollution and accordingly that State
Board for the prevention and control of water pollution shall exercise
the powers and perform the functions of the State Board for the
prevention and control of air pollution under this Act.

Functions of the Central Board (S.16)

The main function of the central Board under the Air Act, 1981 shall
be to improve the quality of air and to prevent, control and abate air
pollution in India. Apart from these, Section 16 of the Act directs the
Central Board to perform all or any of the following functions too-

1) 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;
2) To plan and cause to be executed a nation-wide programme for
the prevention, control or abatement of air pollution;
3) To co-ordinate the activities of the States and resolve disputes
among them;
4) 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;
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5) To perform such of the functions of any State Board as may, be
specified in an order made under Section 18(2) of the Act;
(Section 18(2) provides that if there is a failure or default on
part of the State Board to follow any direction given to it by
the Central Board, and as a result of this some grave
emergency has arisen, the Central Government may direct the
Central Board to perform any of the functions of the State
Board in such area.)
6) 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;
7) To organise, through mass media, a comprehensive programme
regarding the prevention, control or abatement of air pollution;
8) 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;
9) To lay down standards for the quality of air;
10) To collect and disseminate information in respect of matters
relating to air pollution;
11) To establish or recognise laboratories to enable the Board to
perform its functions in an efficient manner;

12) To delegate any of its functions generally or specially to any

Committee appointed by it; and
13) To perform such other functions as may be prescribed.

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Functions of the State Board (S. 17)
1) To plan a comprehensive programme for the prevention, control
or abatement of air pollution and to secure the execution thereof;
2) To advise the State Government on any matter concerning the
prevention, control or abatement of air pollution;
3) To collect and disseminate information relating to air pollution;
4) 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;
5) 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;
6) 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;
7) 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;
8) To advise the State Government with respect to the suitability of
any premises or location for carrying on any industry which is
likely to cause air pollution;
9) To establish or recognise laboratories to enable the Board to
perform its functions in an efficient manner;

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10) To perform such other functions as may be prescribed or as
may, from time to time, be entrusted to it by the Central Board or
the State Government;
11) To do such other things and to perform such other acts as it
may think necessary for the proper discharge of its functions and
generally for the purpose of carrying into effect the purposes of
this Act.

Power of the Government to give directions to the Board (S. 18)

Section 18(1) lays down that the central Government may give
directions in writing to the Central Board and the Central Board is
bound to follow such directions. Also, the Central Board or the State
Government may give directions in writing to the State Board and the
State Board is bound to follow such directions.

Section 18(2) provides that if there is a failure or default on part of

the State Board to follow any direction given to it by the Central
Board, and as a result of this some grave emergency has arisen, the
Central Government may direct the Central Board to perform any of
the functions of the State Board in such area

Prevention and Control of Air Pollution

1) Power to declare air pollution control areas (S.19)

Under S. 19, the State Government is empowered to declare any area
or areas within the State as “air pollution control area.” However, this
can be done by way of a notification in the Official Gazette and after
consultation with the State Board. The State Government can also-

146
 • Alter the limits of any existing air pollution control area by
extension or by reduction;
• Declare any new area as air pollution control area and merge
one or more existing air pollution control area/s into the new
area.
The State Government shall follow the above-mentioned procedure
for doing any of them.
Once an area is declared as an air pollution control area, the State
Government can exercise the following powers there-
• If the State Government, after consultation with the State
Board, is of opinion that the use of any fuel, other than an
approved fuel, in any air pollution control area or part thereof,
may cause or is likely to cause air pollution, it may, by
notification in the Official Gazette, prohibit the use of such fuel
in such area or part thereof with effect from such date (being
not less than three months from the date of publication of the
notification) as may be specified in the notification.
• The State Government may, after consultation with the State
Board, by notification in the Official Gazette, direct that with
effect from such date as may be specified therein, no appliance,
other than an approved appliance, shall be used in the
premises situated in an air pollution control area.
• If the State Government, after consultation with the State
Board, is of opinion that the burning of any material (not being
fuel) in any air pollution control area or part thereof may cause
or is likely to cause air pollution, it may, by notification in the
Official Gazette, prohibit the burning of such material in such
area or part thereof.

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In pursuance of the above provisions, several air pollution control
areas have been notified all over the country. Example- The entire
Union Territory of Pondicherry was declared as an air pollution
control area by notification in January1988.
Similarly, the entire Union Territory of Chandigarh was declared as
an air pollution control area by notification in February 1988.

2) Powers regarding emissions from automobiles (S. 20)

The State Government can issue directions to the concerned
authority in charge of registration of motor vehicles under the Motor
Vehicles Act, 1939 in order to ensure that the standards laid down by
the State Board under this Act with respect to emission of air
pollutants from automobiles are duly complied with. These
directions are binding on the authority.

3) Restrictions on use of industrial plants (S. 21)

A person shall obtain the prior consent of the State Board in order to
establish or operate any industrial plant in an air pollution control
area. For the purpose of obtaining the consent, the concerned person
shall submit an application in a prescribed form, along with the
prescribed fees to the State Board. The form shall contain the
particulars of the industrial plant and such other particulars as may
be prescribed.

On receipt of the application form, the State Board shall make an

inquiry and it shall, within a period of 4 months, issue an order in
writing, either granting its consent or refusing its consent. In either
case, the State Board shall provide the reasons in the order. Every

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person to whom consent has been granted by the State Board shall
comply with the following conditions, namely-
• A control equipment of such specifications as the State Board
may approve shall be installed and operated in the premises
where the industry is carried on or proposed to be carried on;
• The existing control equipment, if any, shall be altered or
replaced in accordance with the directions of the State Board;
• At all times, the control equipment shall be kept in good
running condition;
• A chimney, wherever necessary, of such specifications as the
State Board may approve shall be erected or re-erected in such
premises; and
• Such other conditions as the State Board may specify in its
order in this behalf.

Section 22 lays down that a person who is operating an industrial

plant in an air pollution control area with the consent of the State
Board cannot discharge or emit any air pollutant in such measure
which is more than the standards prescribed by the State Board.

According to Section 22A, if it is apprehended by a State Board that

emission of any air pollutant, in excess of the standards laid down by
the State Board, is likely to occur in any air pollution control area
because of any person operating an industrial plant, the Board may
make an application to a court, not inferior to that of a Metropolitan
Magistrate or a Judicial Magistrate of the first class for restraining
such person from emitting such air pollutant.

4) Furnishing of information in case of accidents (S. 23)

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If any emission of air pollutants into the atmosphere takes place in
excess of the prescribed standards, or if any such emission is likely to
occur, the person who is in charge of the plant or premises shall
immediately inform the State Board or any prescribed authority
about the same. On receipt of such information, the Board or the
authority shall, as soon as possible, take necessary remedial
measures to mitigate the emission which has taken place or is about
to take place. The expenses incurred for such remedial measures can
be recovered from the concerned person as arrears of land revenue
or of public demand.

5) Power of entry and inspection (S. 24)

Any person empowered by the State Board shall have a right to enter
any place, at all reasonable times with such assistance as he
considers necessary-
(a) for the purpose of performing any of the functions of the State
Board entrusted to him;
(b) for the purpose of determining whether and if so in what
manner, any such functions are to be performed;
(c) for the purpose of determining whether any provisions of this
Act or the rules made thereunder or any notice, order,
direction or authorisation served, made, given or granted
under this Act is being or has been complied with;
(d) for the purpose of examining and testing any control
equipment, industrial plant, record, register, document or any
other material object;
(e) for conducting a search of any place in which he has reason to
believe that an offence under this Act or the rules made has
been or is being or is about to be committed;

150
(f) for seizing any such control equipment, industrial plant, record,
register, document or other material object if he has reasons to
believe that it may furnish evidence of the commission of an
offence punishable under this Act.
The provisions of the Code of Criminal Procedure, 1973 shall apply in
case of any such search or seizure.

6) Power to obtain information (S. 25)

For the purposes of carrying out the functions entrusted to it, the
State Board or any officer empowered by it may call for any
information from the occupier or any other person carrying on any
industry or operating any control equipment or industrial plant. Such
information may include information regarding the types of air
pollutants emitted into the atmosphere and the level of the emission
of such air pollutants. The State Board or such officer shall have the
right to inspect the premises for the purpose of verifying the
correctness of such information.

7) Power to take samples (S. 26)

A State Board or any officer empowered by it shall have power to
take samples of air or emission from any chimney, flue or duct or any
other outlet in a prescribed manner for the purpose of analysis.

When a sample of emission is taken for analysis, the person taking

the sample shall-
(a) serve a notice on the occupier or his agent, then and there, in a
prescribed form;
(b) collect a sample of emission for analysis in the presence of the
occupier or his agent;

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(c) cause the sample to be placed in a container or containers which
shall be marked and sealed and shall also be signed both by the
person taking the sample and the occupier or his agent;
(d) send, without delay, the container to the laboratory established
or recognised by the State Board under section 17 or, if a request is
made by the occupier or his agent when the notice is served on him,
to the State Air laboratory established by the State Government.

When a sample of emission is taken for analysis and the person

taking the sample has served the notice on the occupier or his agent,
then if-
(a) the occupier or his agent wilfully absents himself, the person
taking the sample shall collect the sample and place it in a container
or containers which shall be marked and sealed and shall also be
signed by the person taking the sample, and
(b) in a case where the occupier or his agent is present at the time of
taking the sample but he refuses to sign the marked and scaled
container or containers of the sample, the marked and sealed
container or containers shall be signed by the person taking the
sample, and the container or containers shall be sent without delay
for analysis to the State Air Laboratory established under Section 28
and such person shall inform the Government analyst, in writing,
about the wilful absence of the occupier or his agent, or his refusal to
sign the container or containers.
On receipt of the sample, the analyst shall analyse the sample and
submit a report of the result of the analysis in a prescribed form in
triplicate to the State Board. On receipt of the copies of the report, the
Board shall send one copy of it to the occupier or his agent, another

152
copy shall be preserved for production in courts in case of any legal
proceedings and the other copy shall be kept by the concerned Board.

8) Power to give directions (S. 31A)

The State Board may, in the exercise of its powers and performance
of its functions under this Act, issue any directions in writing to any
person, officer or authority, and such person, officer or authority
shall be bound to comply with such directions. The power to issue
directions under this section, includes the power to direct-
(a) the closure, prohibition or regulation of any industry, operation
or process, or
(b) the stoppage or regulation of supply of electricity, water or any
other service.
These directions shall be subject to the provisions of the Air Act and
any directions given by the Central Government and State
Government.

Offences and Penalties (S. 37, 38, 39, 40 and 41)

According to Section 37, if any person fails to comply with the
provisions of Section 21(Restrictions on use of industrial plants) or
Section 22 (A person who is operating an industrial plant in an air
pollution control area with the consent of the State Board cannot
discharge or emit any air pollutant in such measure which is more
than the standards prescribed by the State Board) or with the
provisions of Section 31A (Power to give directions), such a person is
liable to be punished with imprisonment ranging between 18 months
and 6 years and with fine. In case of continuing offence, an additional
fine of up to Rs. 5000/- per day shall be imposed on the offender.

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According to Section 38, whoever-
(a) destroys, pulls down, removes, injures or defaces any pillar, post
or stake fixed on the ground or any notice or other matter put up,
inscribed or placed, by or under the authority of the Board; or

(b) obstructs any person acting under the orders or directions of the
Board from exercising his powers and performing his functions
under this Act; or

(c) damages any works or property belonging to the Board; or

(d) fails to furnish to the Board or any officer or other employee of

the Board, any information required by the Board or such officer or
other employee for the purpose of this Act; or

(e) fails to intimate the occurrence of the emission of air pollutants

into the atmosphere in excess of the standards laid down by the State
Board or the apprehension of such occurrence, to the State Board and
other prescribed authorities or agencies as required under Section
23(1); or

(f) in giving any information which he is required to give under this

Act, makes a statement which is false in any material particular; or

(g) for the purpose of obtaining any consent under Section 21, makes
a statement which is false in any material particular;

shall be punishable with imprisonment for a term which may extend

up to 3 months or with fine which may extend up to Rs. 10,000 or
with both.

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 Section 39 provides that for all other offences under the Air
(Prevention and Control of Pollution) Act, 1981, i.e. for offences not
falling under S. 37 or S. 38, the offender shall be punished with
imprisonment for a term up to 3 months or with fine up to Rs. 10,000
or with both.

Offences by companies (S. 40)

• Where an offence under this Act has been committed by a company,
every person who was directly in charge of, and was responsible to
the company for the conduct of the business of the company at the
time the offence was committed, as well as the company itself shall
be deemed to be guilty of the offence and shall be liable to be
proceeded against and punished accordingly.
• However, such a person shall not be liable to any punishment
provided in this Act if he proves that the offence was committed
without his knowledge or that he exercised all due diligence to
prevent the commission of such offence.
• Where an offence under this Act has been committed by a company
and it is proved that the offence has been committed with the
consent or connivance of, or is attributable to any neglect on the part
of, any director, manager, secretary or other officer of the company,
such director, manager, secretary or other officer shall also be
deemed to be guilty of that offence and shall be liable to be
proceeded against and punished accordingly.

Offences by Government Departments (S. 41)

• Where an offence under this Act has been committed by any
Department of the Government, the Head of the Department shall be

155
 deemed to be guilty of the offence and shall be liable to be proceeded
against and punished accordingly.
• However, if the Head of the Department proves that the offence was
committed without his knowledge or that he exercised all due
diligence to prevent the commission of such offence, he shall not be
liable to any punishment.
• Where an offence under this Act has been committed by a
Government Department and it is proved that the offence has been
committed with the consent or connivance of, or is attributable to
any neglect on the part of, any officer, other than the Head of the
Department, such officer shall also be deemed to be guilty of that
offence and shall be liable to be proceeded against and punished
accordingly.

Appeals (S. 31)

Any person aggrieved by an order made by the State Board under
this Act may prefer an appeal to the Appellate Authority within thirty
day from the date on which such order is communicated to him.
The Appellate Authority may entertain the appeal even after the
expiry of the said period of thirty days if such authority is satisfied
that the appellant was prevented by sufficient cause from filing the
appeal in time.
On receipt of an appeal, the Appellate Authority shall give the
appellant and the State Board an opportunity of being heard and then
dispose of the appeal as expeditiously as possible.
The Appellate Authority is appointed by the State Government and it
shall consist of a single person or three persons as the State
Government may think fit. The form and the manner in which an

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appeal may be preferred, the fees payable for such appeal and the
procedure to be followed by the Appellate Authority shall be such as
may be prescribed by the Rules made under the Act.

Case Laws

1) M.C. Mehta Vs. Union of India ( The Taj Trapezium case)

The Taj Mahal in Agra is one of the most beautiful monuments on the
Earth. It was built by the Mughal ruler Shah Jahan in memory of his
deceased wife Mumtaz Mahal. It is built entirely of white marble and
was declared as a UNESCO World Heritage Site in 1983. It attracts a
lot of tourists from all over the world. But the monument started
developing a yellowish tinge (and in some areas ugly brown and
black spots) owing to the increased levels of pollution around the
area. The main pollutant was sulphur dioxide released by the
industries which later on reacted with rain water to produce acid
rain. Suspended Particulate Matter (SPM) was also one of the
pollutants. Thus, M.C Mehta, an attorney in the Supreme Court of
India and an active environmentalist, filed a Writ Petition in 1984
citing the adverse effects of the industries and vehicles on the Taj
Mahal. He sought appropriate directions to be given to the concerned
authorities to take immediate steps to stop air pollution in the area
and save The Taj. This petition was treated as a Public Interest
Litigation (PIL).

This case is commonly referred to as the ‘Taj Trapezium Case’. The

‘Taj Trapezium Zone’ (TTZ) referred to by the court is a 10,400 sq.km
trapezium-shaped area covering five districts of the Agra region. The
TTZ comprises over 40 protected monuments including three World
Heritage Sites — the Taj Mahal, Agra Fort and Fatehpur Sikri.

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The writ petition was accompanied by a report of an Expert
Committee called the ‘Varadharajan Committee’. The Report of the
Committee on Environmental Impact of Mathura Refinery pointed
out the sources of pollution in the area as all coal users consisting of
two Power Plants, a number of small industries mainly foundries and
a Railway Shunting Yard. The Committee had also made some
suggestions in the report. It had asked to ensure that no new large
industries come up in the area without conducting appropriate
detailed studies to assess the environmental effect of such industries
on the monument; to ensure that the existing industries are shifted
away from the area. It also suggested creating an authority that
monitors the pollution emissions and air quality in Agra and has the
power to direct polluting industries to lower their emission levels to
meet the standards. The authority can have the powers to specify
measures as are necessary to reduce the emission. The actions taken
in this regard should be time-bound or speedy in nature.

As a result of the petition, a series of orders were passed by the court.

The court directed the Uttar Pradesh Pollution Control Board to
make a detailed list of all the industries and foundries active in the
region and to make sure that pollution control measures are
employed by the industries and foundries. The court directed that the
hazardous industries operating in the Taj Trapezium Zone shall
either switch over to natural gas as an industrial fuel or they shall
relocate themselves as per the directions of the court and those
industries which fail to comply with either of the directions shall stop
functioning. The State government was ordered to monitor all these
aspects. While passing the orders the court made it clear that the

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whole purpose is to stop air pollution in order to protect the world-
famous monument.

2) Mathew Lukose Vs. Kerala State Pollution Control Board

In this case it was alleged that the Travancore Electro Chemicals
Industries were violating the norms laid down by the State Board and
this was causing air pollution. The residents of that area protested
against the operation of the said industry. The industry
manufactured calcium carbide and acetylene black in large
quantities. The complaint alleged that the intense air pollution was
causing pulmonary diseases and ailments. It was also alleged that the
authorities did not do anything to control the emissions as the
chimneys of the operating units released carbon dioxide and sulphur
dioxide into the air. The State board admitted that there have been
violations on part of the polluter industry but pleaded that it was
doing its best to control the pollution.

The Court held that Article 21 of the Constitution included the right
to a healthy environment and the court granted the company 3
months’ time to adhere to the limits prescribed by the Board. The
Board was directed to order the closure of the industry if it failed to
meet these norms.

3) Mahabir Coke industry Vs. Pollution Control Board

In this case, Mahabir Coke industry was operating in an area declared
as ‘air pollution control area’ by the State Board under Section 19 of
the Act. The Board conducted inspection of the pollution control
devices which were used in the industry and the board withdrew the
consent given by it to the industry on the ground that the industry
was emitting black smoke and no preventive measures were being
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taken to control the emissions. It was alleged by the Board that the
industry had failed to control emissions for the past 2 years. The
industry was ordered to shut down until anti-pollution measures
were adopted. The authorities of the industry clarified that they had
the necessary anti-pollution devices for two of their units and that
they had placed an order for an anti-pollution device for the third
unit. The Board rejected this argument and ordered the closure of the
industry by virtue of its power under Section 31A. The authorities of
the industry contended before the Court that the Board had failed to
prescribe any standards for emission, which should have been done
by the Board under Section 17 of the Act and therefore the order of
closure made by the Board is illegal.
The court found that as stated by the industry, the Board had not
prescribed any standards and in the absence of this, the industry is
not at fault. The industry was allowed to continue operation. The
court also stated that the industry can be asked to regulate the
emission of pollutants but it cannot be ordered to close down.

4) Obayya Pujari Vs. Karnataka State Pollution Control Board

The petitioner challenged the Board’s consent permitting stone
crushing industries to operate in a particular locality. While carrying
out the operations of stone crushing, a lot of thick dust was being
generated which was polluting the environment and causing
hazardous effects on the health of the residents in the locality. It was
also apprehended by the residents of the locality that these
industries would damage their crops too. The scope of this petition
was extended to cover stone crushing operations across the State.

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The Karnataka High Court held that the pollution caused by stone
crushing units have adverse effects on human health, animals and
vegetation and therefore, violate the right to life guaranteed under
Article 21 of the Constitution. The Court also held that the fact that
the units were licenced or that they held necessary permissions
would not prevent it from issuing necessary directions since the
interests of the stone crushing units have to give way to the larger
interests of the society. Accordingly, the Court directed the State
Government to formulate a policy for carrying on stone crushing
business; to identify safer zones and shift existing crushers to those
safer zones; to close down the existing units which do not fall in the
safe zones. The Court also ordered the polluting stone crusher units
to pay compensation to the victims of pollution.

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 PRECAUTIONARY PRINCIPLE

The term “sustainable development” was used for the first time at the
Cocoyoc Declaration on Environment and Development in the early
1970s. Since then it has become the trademark of international
organizations dedicated to achieving environmentally benign or
beneficial development. Sustainable development means an
integration of development and environmental imperatives. To be
sustainable, development must possess both economic and ecological
sustainability. It indicates the way in which developmental planning
should be approached. The environment and development are means
and not ends in themselves. The environment and development are
for the people, and it is not people for the environmental and
development.

Sustainable development is essentially a policy and strategy for

continued economic and social development without detriment to
the environment and natural resources. Further development is
dependent on this policy and strategy. Therefore, while thinking of
the development measures the need of the present and the ability of
the future to meet its own needs and requirements have to be kept in
view. While thinking of the present, the future should not be
forgotten. We owe a duty to the future generations and for a bright
today, a bleak tomorrow cannot be provided. In fact, the idea that, for
the benefit of future generations, present generations should be
modest in their exploitation of natural resources has found wide
spread international approval at the UN General Assembly.

The concept of sustainable development further received impetus in

the Stockholm Declaration on Human Environment resulting from
the United Nation Conference on Human Environment in 1972. The

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UN Conference on human environment marked a watershed in
international relations as it placed the issue of protection of
biosphere on the official agenda of international policy and law. The
Conference was a remarkable achievement as 114 nations
participated in it and they agreed on a declaration of principles and
an action plan. These principles are contained in Stockholm
declaration.

As the name suggests, the Precautionary Principle requires the

authorities in charge to anticipate, prevent and attack the cause of
environmental pollution. The main purpose of the “precautionary
principle” is to ensure that a substance or activity which poses a
threat to the environment is prevented from adversely affecting the
environment, even if there is no conclusive scientific proof of
link/connection between the particular substance or activity and
environmental damage. The words “substance” and “activity” imply
substances and activities introduced as a result of human
intervention. In the context of the municipal law, the “precautionary
principle” means-
• Environmental measures by the State Government and the
local authorities must anticipate, prevent and attack the causes
of environmental degradation.
• Where there are threats of serious and irreversible damage to
the environment, the lack of scientific certainty should not be
used as a reason or an excuse for postponing measures to
prevent environmental degradation.
• The ‘onus of proof’ is on the developer/industrialist to show
that his action is environmentally benign.

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The precautionary principle may be generally described as an
approach towards the protection of the environment or human
health by taking necessary precaution even where there is no clear
evidence of harm or risk of harm from an activity or substance. It is a
part of principle of sustainable development. It provides for taking
protection against specific environmental hazards by avoiding or
reducing environmental risks before specific harms are experienced.

Having regard to the aforesaid principle, in a particular case, the

import of waste oil containing PCBs (Polychlorinated biphenyls- a
group of manmade chemicals) of detectable limit was banned in
India. The fact that the level of PCBs in the waste oil consignments
was only marginal or minimal and under Basel Convention its
permissible limit was 50 parts per million, was of no consequence.
Judging by Indian conditions, the Indian law had provided that ifthe
level of PCBs was of detectable limits, the import was not allowed.
The National Law has to apply in such cases and shelter cannot be
taken under guidelines of Basel Convention.

There was a basic shift in the approach to environmental protection

through the precautionary principle between 1972 and 1982. Before
the Stockholm Conference, 1972 the concept of 'assimilative capacity'
was recognized at the international level. As per this concept the
natural environment has the capacity to absorb the ill effects of
pollution. But, beyond a certain limit, the pollution may cause
damage to the environment and then efforts are required to be put in
to repair it. Therefore, the role of environmental protection agencies
will begin only when the upper limit of the pollution is crossed. But
now the position of the world is such that effective preventive

164
measures relating to environmental pollution and degradation
cannot wait till the adverse impact of environmental pollution and
degradation is felt by the society. So there was a necessity to shift
from the principle of 'assimilative capacity' to the 'precautionary
principle'.

Principle 18 of the Declaration of the United Nations Conference

on Human Environment (i.e. the Stockholm Declaration) loosely
incorporates the “Precautionary Principle”. This principle
provides that science and technology, as part of their contributions to
economic and social development, must be applied to the
identification, avoidance and control of environmental risks and to
the solution of environmental problems. In other words, this
principle lays down that science and technology would provide
policy makers with the information and necessary means to solve
environmental problems. This principle was somewhat closely
related to the precautionary approach undertaken by the
international community.

The United Nations Conference on Environment and Development

held at Rio de Janeiro in 1992 set out a declaration known as the Rio
Declaration. It was Principle 15 of the Rio Declaration which
codified, for the first time, at the global level, the precautionary
approach. The Principle states -
"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."

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Thus, the precautionary approach indicates that lack of scientific
certainty is no reason to postpone action for avoiding potentially
serious or irreversible harm to the environment. The precautionary
principle includes the elements of anticipation and responsibility.
The incorporation of the Precautionary Principle can be found in
various international legal instruments. For example, it is included in
the Convention on Biological Diversity, 1992 and the Convention on
Climate Change, 1992 of the Rio Conference.

When reasonable scientific evidence of any kind provides enough

reason to believe that an activity, technology or substance may be
harmful, action should be taken to prevent such harm. If one waits for
scientific certainty, people may suffer and die, and the damage
caused to the natural world may be irreversible. The precautionary
principle emphasises on prevention rather than cure. The principle
embodies the idea of careful planning to avoid risks of environmental
degradation in the first place, rather than trying to determine how
much risk is acceptable and tolerable. In India, there are several
environmental regulations. But most of them like the Water
(Prevention and Control of Pollution) Act, 1974, the Air (Prevention
and Control of Pollution) Act, 1981 aim at cleaning up the pollution
which is already caused and controlling the amount of pollutants
released into the environment. They regulate the emission of harmful
substances rather than limiting their use or production in the first
place. These environmental laws are based on the assumption that
humans and ecosystems can absorb a certain amount of
contamination without being harmed. But the past experience shows
that it is very difficult to determine what levels of contamination are

166
safe and therefore, it is better to take necessary care and caution
while dealing with environment and related matters.

The application of precautionary principle is not always very easy. If

an activity is allowed to take place, there may be irreversible or
irreparable damage to the environment and if it is stopped, there
may be irreparable damage to the economic interests. In case of
doubt, however, protection of environment would have precedence
over the economic interest. Precautionary principle requires
anticipatory action which has to be taken to prevent harm. The harm
can be prevented even on a reasonable suspicion. It is not always
necessary that there should be direct evidence of harm to the
environment. It must, however, be remembered that development
and protection of environment are not contrary to each other. If,
without degrading the environment or by minimizing adverse effects
on the environment through application of stringent safeguards, it is
possible to carry on development activities by applying the principle
of sustainable development, in such a case, development has to go on.

Case Laws

1) Vellore Citizens Welfare Forum Vs. Union of India

In this case, the Supreme Court accepted Precautionary Principle as a
part of the environmental law of the Country. The Court held that if
the activity to be carried on is hazardous or potentially hazardous,
the person carrying on such activity is liable to take necessary steps
to prevent any loss which may be caused to any other person.

2) Research Foundation for Science Vs. Union of India

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The Supreme Court explained that the “Precautionary Principle”
generally describes an approach to the protection of the environment
or human health based on precaution even where there is no clear
evidence of harm or risk of harm from an activity or substance. It is a
part of the principle of sustainable development. It provides for
taking protection against specific environmental hazards by avoiding
or reducing environmental risks even before specific harms are
experienced.

3) MC. Mehta Vs. Union of India (Calcutta tanneries Case)

In this case, the Supreme Court ordered the polluting tanneries
operating in the city of Calcutta (about 550 in number) to relocate
themselves from their present location and shift to the new leather
complex set up by the West Bengal Government. The Court perceived
this as a precautionary measure to prevent any damage to the
ecology and environment by pollution.

4) M.C. Mehta vs. Union of India (Badkhal & Surajkund Lakes case)
In this case, the Supreme Court held that the ‘Precautionary Principle’
makes it mandatory for the State Government to anticipate, prevent
and attack the causes of environment degradation. The Court had no
hesitation in holding that in order to protect the two lakes from any
kind of future environmental degradation, it was also necessary to
restrict the construction activities in the close vicinity of the lakes.

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 POLLUTER PAYS PRINCIPLE

The Organisation for Economic Cooperation and Development

(OECD), for the first time, used the term “Polluter Pays Principle”
which means that the polluter of the environment should bear the
costs and expenses of carrying out measures for curing/remedying
the damage or injury or harm caused to the environment. In 1972,
the member countries of Organisation for Economic Co-operation
and Development (OECD) agreed to base their environmental
policies on a Polluter Pays Principle. They promoted the principle
keeping in mind the growing public interest in environmental issues.
At that time there was growing pressure on government and other
institutions to introduce policies and mechanisms for the protection
of the environment and the public from the threats posed by
pollution in a modernised industrialised society. Since then there has
been a considerable discussion on the nature of the Polluter Pays
Principle. There have been difficulties in defining and understanding
the principle in the right sense. Sometimes it is understood so as to
mean that producers may pollute as long as they pay for it and this is
a complete misunderstanding of the principle’s true meaning and
scope.
Despite the difficulty inherent in defining the Polluter Pays Principle,
the European Community has accepted this principle as a
fundamental part of its strategy on environmental matters and it has
been one of the underlying principles of the fourth Community
Action Programmes on the Environment. The current fourth Action
Programme on the Environment makes it clear that the cost of
preventing and eliminating nuisances must be borne by the polluter
and the Polluter Pays Principle has now been incorporated into the
European Community Treaty. Article 120R (2) of the Treaty states
169
that environmental considerations shall play an important role in all
the policies of the Community and that action shall be based on three
principles-
(a) the need for preventive action- preventive action shall be
preferred over remedial measures;
(b) the need for environmental damage to be rectified at source; and
(c) that the polluter should pay for the costs of the measures taken to
protect the environment.

According to the “Polluter Pays Principle”, the responsibility to repair

the environmental damage is that of the polluter. The Polluter Pays
Principle also means that the producer of goods or other items
should be responsible for the costs of preventing or dealing with any
pollution that the process causes. This includes environmental costs
as well as direct costs towards the people or property. It also covers
costs incurred in avoiding pollution and not just those related to
remedying any damage. It will include full environmental costs and
not just those which are immediately tangible. The Polluter Pays
Principle is one which is aimed at ensuring that the costs of
environmental damage caused by polluting activities are borne in full
by the person responsible for such pollution- who is called the
polluter.

Following are the two major components of the Polluter Pays

Principle-
• The polluter should pay for the administration of the pollution
control system; and
• The polluter should pay for the consequences of the pollution. For
example, compensation and clean-up.

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The Stockholm Declaration which was adopted in 1972 at the United
Nations Conference on Human Environment recognized the Polluter
Pays Principle. According to principle 22 of the Stockholm
Declaration- “States shall cooperate to develop further the
international law regarding liability and compensation for the
victims of pollution and other environmental damage caused by
activities within the jurisdiction or control of such States to
areas beyond their jurisdiction.”

The Rio Declaration which was adopted in 1992 at the United

Nations Conference on Environment and Development also
recognised the Polluter Pays Principle. According to principle 16 of
the Rio Declaration - "National authorities should endeavour to
promote the internalization of environmental costs and 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." It is therefore clear that
without referring to the Polluter Pays Principle, the Rio Declaration
has laid emphasis on the principle of internalization of
environmental costs i.e. an economic concept which involves making
a polluter financially liable for all the harm that has been caused to
other persons and to the environment on account of his activities.

It can be said that the shift in environmental liability principle from

criminal sanction to economic and financial deterrence is the driving
force which has paved the way for incorporation of Polluter Pays
Principle in most of the countries in the world.

171
Case Laws

1) Indian Council for Enviro-Legal Action Vs. Union of India

The Supreme Court of India for the first time expressly applied the
Polluter Pays Principle in this case and held that the responsibility
for repairing the environmental damage was that of the offending
industry. The Court further held that Sections 3 and 5 of the
Environment (Protection) Act, 1986 empowered the Central
Government to give directions and take measures for giving effect to
Polluter Pays Principle.

2) Vellore Citizens Welfare Forum Vs. Union of lndia

The Supreme Court declared in unequivocal terms that the Polluter
Pays Principle is a part of the environmental jurisprudence of India.
Explaining the meaning and scope of the Polluter Pays Principle, the
Court observed that the Polluter Pays Principle as interpreted by this
Court means that the absolute liability for causing harm to the
environment extends not only to compensate the victims of pollution
but also extends to the cost of restoring the environmental
degradation. Remediation of the damaged environment is an integral
part of the process of sustainable development and as such the
polluter is liable to pay the costs to the individual sufferers as well as
the costs of reversing the damaged ecology. Further, the Court
directed the Central Government to constitute an authority under
Section 3(3) of the Environment (Protection) Act, 1986 for
implementation of the Polluter Pays Principle. The Court opined that
the authority should, with the help of expert opinion, assess the loss
caused to the environment and also identify the victims of the
pollution and assess the compensation to be paid to the said victims.
The authority should further determine the compensation to be

172
recovered from the polluters as costs of reversing the damaged
environment. The Court further held in this matter that the polluting
tanneries shall be liable to pay for the past pollution generated by
them, which had resulted in the environmental degradation and
suffering to the residents of the area. In addition to this pollution, a
fine of Rs. 10,000/- each shall also be imposed on all the polluting
tanneries and this money along with the compensation amount
recovered from the polluters were directed to be deposited under a
separate head called "Environment Protection Fund". The fund was
to be used for the purpose of giving compensation to affected persons
and for restoring the damaged environment.

3) M C. Mehta Vs. Kamal Nath

After the landmark Vellore case, the Court, in this case, reiterated
that the one who pollutes the environment must pay to reverse the
damage caused by his acts. It was proved in the case that Span Motels
Private Limited used Earth-movers and bulldozers to turn the course
of river Beas in order to save the motel from future floods. On the
basis of the Polluter Pays Principle, the Court held that-
• The motel shall pay compensation by way of costs for the
restitution of the environment and ecology of the area.
• The pollution caused by various constructions made by the
motel on the riverbed and the banks of river Beas shall be
removed and reversed.
Further, the Court asked the National Environmental Engineering
Research Institute, Nagpur (NEERI) to submit an assessment of the
cost which was likely to be incurred for reversing the damage caused
to the environment and ecology of the area by the motel.

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4) S. Jagannath Vs. Union of India
In this case, the Court once again applied the Polluter Pays Principle
and passed orders against the shrimp farming culture industry after
it was found guilty of polluting coastal areas. The court held that
shrimp culture industry was liable to compensate the affected
persons on the basis of the 'Polluter Pays' Principle. The court further
held that the Authority constituted by the Central Government under
Section 3(3) of the Environment (Protection) Act, 1986 should assess
the loss caused to the environment of the affected areas and identify
the individuals or families who had suffered because of the pollution,
and assess the compensation to be paid to them. In addition to this,
the Court held that, the Authority should further determine the
compensation to be recovered from the polluters as cost of reversing
the damaged environment.

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 PUBLIC TRUST DOCTRINE

The public trust doctrine is a doctrine/principle which is often

applied to protect the environment. Under the public trust doctrine,
the State, which is the trustee of the environment, has the duty to
protect the ‘trust corpus.’ Thus, the public trust doctrine emphasizes
on the State’s affirmative duty to protect the environment.

The ancient Roman Empire developed a legal theory known as the

‘Doctrine of Public Trust.’ It was based on the idea that certain
common properties, such as rivers, seashore, forests and the air were
held by the Government in trusteeship for the free and unobstructed
use of the general public. Under the Roman law, these resources were
either owned by no one (res nullius) or they were owned by
everyone in common (res communions). However, under the
English Common Law, the Sovereign could own these resources. But,
the ownership was limited in nature. The Crown could not grant
these properties to private owners if the effect was to interfere with
the public interests.

The public trust doctrine primarily rests upon the principle that
certain resources like air, sea, water, and the forests have such great
importance to the people as a whole that it would be wholly
unjustified to make them a subject of private ownership. The said
resources are the gifts of nature and they should be made freely
available to everyone irrespective of the status in life. The doctrine
directs the Government to protect the resources for the enjoyment of
the general public rather than to permit their use as private
ownership or for commercial purposes. The doctrine implies the
notion that the public has a right to expect certain resources to retain
their natural characteristics. This doctrine is inter-related with the

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doctrine of inter-generational justice. It looks beyond the need of the
present generation and also implies that certain resources are
invested with a special nature.

The public trust doctrine imposes the following restrictions on

Governmental authorities-

• the property subject to the trust must not only be used for a
public purpose, but it must be held available for use by the
general public;
• the property may not be sold, even for a fair cash equivalent;
and
• the property must be maintained for particular types of uses.

The public trust doctrine serves two purposes:

• It mandates affirmative state action for effective management

of resources, and
• It empowers citizens to question ineffective management of
natural resources.

Although the public trust doctrine is not without its fair share of
criticism, it is being increasingly related to sustainable development,
the precautionary principle and bio-diversity protection. The
doctrine combines the guarantee of public access to public trust
resources with a requirement of public accountability in respect of
decision-making regarding such resources. Moreover, not only can
this doctrine be used to protect the public from poor application of
planning laws or environmental impact assessment, it also has an
inter-generational dimension.

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Principle 2 of the Stockholm Declaration of United Nations on
Human Environment contains the important proposition
relating to public trust doctrine- “the natural resources of the
Earth, including the air, water, land, flora and fauna and especially
representative samples of natural system, must be safeguarded for
the benefit of present and future generations through careful
planning or management, as appropriate.

Public Trust Doctrine in India

The public trust doctrine, which has its origin in Roman law, has been
extended to India also over the years, thereby placing a duty on the
State to hold environmental resources in trust for the benefit of the
public. At its widest, this doctrine could be used by the courts as a
tool to protect the environment from many kinds of degradation. In
many countries, this doctrine has formed the basis of environmental
policy legislation, allowing private rights of action by citizens for
violations by the State (directly or indirectly) of the public trust.

In India, the right to life guaranteed under Article 21 of the

Constitution has been extended to include the right to a healthy
environment and the right to livelihood. When the Indian courts
apply the public trust doctrine, they have considered it not only as an
international law concept, but one which is a well-established
concept in the national legal system as well.

The public trust doctrine was recognized and approved by the S.C. for
the first time in M.C. Mehta Vs. Kamal Nath for protecting and
preserving the natural resources. In this case, the Himachal Pradesh
Government granted lease of a riparian forestland to a private
company for commercial purpose. The purpose of the lease was to
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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 considered
this as a serious act of environmental degradation.

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 that the Indian legal system, which is based on
English common law, includes the public trust doctrine as a part of its
jurisprudence. The State is the trustee of all natural resources, which
are by nature meant for public use and enjoyment. Public at large is
the beneficiary of the seashore, running waters, air, forests and
ecologically fragile lands. The State as a trustee is under a legal duty
to protect the natural resources. These resources, which are meant
for public use, cannot be converted into private ownership.
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 a particular 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. This would
serve the interest of mankind and the interest of the nation. Thus, the
Public Trust doctrine is a part of the law of the land. The court
observed that the public bodies should apply public trust doctrine
when there is no legislation to protect the natural resources.
The court, applying the Polluter Pays Principle, directed the
developer to pay compensation by way of cost for the restitution of

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the environment and ecology of the area. It had no difficulty in
holding that the Himachal Pradesh government committed a patent
breach of the public trust doctrine by leasing out the fragile land.

In short, the Supreme Court directed and passed the following

orders-
(1) The public trust doctrine is a part of the law of the land.
(2) The prior approval granted by the Government of India, Ministry
of Environment and Forests, by the letter, dated, 24-11-1993, and the
lease deed, dated, 11-4-1994, in favour of the motel are quashed.
(3) The Himachal Pradesh Government shall take over the area and
restore it to its original natural conditions.
(4)The motel shall pay compensation by way of cost for the
restitution of the environment and ecology of the area.

In Majra Singh Vs. Indian Oil Corporation, the petitioner objected

to the location of a plant for filling cylinders with liquefied petroleum
gas. Though the case was decided on the basis of the precautionary
principle, the court confirmed that the public trust doctrine has
become an integral part of the Indian legal thought processes. The
doctrine is a part and parcel of Article 21 of the Constitution and
there can be no dispute that the State is under an obligation to ensure
that forests, lakes and wildlife and environment are duly protected.
According to the Court, the idea that the public has a right to expect
certain lands and natural areas to retain their natural characteristics
is finding its way into the law of the land.
In M.I. Builders Vs. Radhey Shyam Sahu, the Supreme Court has
applied the public trust doctrine. In this case, the Lucknow Nagar
Mahapalika (i.e. Lucknow City Corporation) granted permission to a

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private builder to construct an underground shopping complex
which was contrary to the Municipal Act and the Master plan of the
city of Lucknow. The builder was supposed to develop the site at its
own cost and then to realize the cost with profit. Under the terms of
the agreement, full freedom was given to the builder to lease out the
shops as per its own terms and conditions to persons of its choice on
behalf of the Mahapalika. The builder was also given the right to sign
the agreement on behalf of the Mahapalika and was only required to
a submit copy to the Mahapalika after its execution. Both the builder
and the Mahapalika were to be bound by the terms of that agreement.

When the matter was challenged, the High Court set aside and
quashed the agreement between Mahapalika and the builder, and the
relevant order of the Mahapalika permitting such construction. The
Court ordered Mahapalika to restore the park to its original position
within a period of three months from the date of the judgment and
until that was done, to take adequate measures and to provide
necessary safeguards and protections to the users of the park. The
only reason advanced by Mahapalika for permitting the construction
of the underground commercial complex was to ease the congestion
in the area. The High Court took judicial notice of the conditions
prevailing at the site and found that the construction of an
underground market would further congest the area. It added that
the public purpose, which is alleged to be served by construction of
the underground commercial complex, seemed total illusory.
On appeal by the builders, the Supreme Court held that the terms of
agreement showed that the clauses of the agreement are
unreasonable, unfair and atrocious. The Mahapalika, as a trustee for
the proper management of the park, has to be more cautious in

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dealing with its properties. The Court added that the land of immense
value had been handed over by it to construct an underground
shopping complex in violation of the public trust doctrine. The
maintenance of the park, because of its historical importance and
environmental necessity, was in itself a public purpose. Therefore,
the construction of an underground market in the grab of
decongesting the area was wholly contrary and prejudicial to the
public purpose. By allowing the construction, Mahapalika has
deprived its residents, and also others, of the quality of life to which
they were entitled to under the Constitution and under the Municipal
Act.

The agreement was opposed to public policy and not in the public
interest. Mahapalika allowed the commercial shopping complex to be
built upon a public park in clear defiance of the Uttar Pradesh
Municipal Corporation Adhiniyam 1959. In addition, the Mahapalika
violated the public trust doctrine and the Court ordered the
demolition of the unauthorized shopping complex.
The Supreme Court, in M.I. Builders reconfirmed that the public trust
doctrine is established in the Indian legal system and asserted that
the public authorities should act as trustees of natural resources.

In Intellectual Forum, Tirupathi Vs. State of Andhra Pradesh, the

question of preservation and restoration of two famous lakes which
were historical in nature and which were situated in the suburbs of
Tirupathi town- a world renowned popular pilgrim center- was
involved. There was systematic destruction of these lakes and one of
the lakes was alienated to Tirupathi Urban Development Authority
(in short, TUDA) and Andhra Pradesh Housing Board under

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Government order and the other lake was alienated to Tirumala
Tirupathi Devasthanam (in short, TTD) for housing purposes.

Intellectual Forum was a registered society. It contended that

precedence was given to the economic growth by completely
ignoring the importance and primacy attached to the protection of
environment and protection of valuable and most cherished fresh
water resources. The Government, without considering the well
planned development of Tirupathi town, alienated the lakes in favour
of some governmental agencies for valuable consideration. The
respondents argued that have been entrusted with the responsibility
of ensuring equitable urban growth by balancing ecological and
environmental interest and in the instant case, the administration
has taken all the proceedings and necessary precautions to act in
larger public interest in general. The need for housing was also an
argument raised by the respondents.

The S.C. held that the lakes are communal properties and the State
authorities are trustees to hold and manage such properties for the
benefits of the community and they cannot be allowed to commit any
act or omission which will infringe the right of the community and
alienate the property to any other person or body. Taking into
account the doctrine of public trust, and after considering the
competing claims of protecting the environment and the need for
housing, the Court observed that, the situation is not such that if the
proposed constructions are not carried on anyone will be left
homeless or without their basic need for shelter. Therefore, the right
to shelter does not seem to be so important under the present
circumstances so as to outweigh all environmental considerations.

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From the above explanation on the doctrine of public trust and
various case laws, it is evident that the State is not the owner of the
natural resources in the Country. It is a trustee who holds fiduciary
relationship with the people. The Government is expected to be loyal
to the interests of its citizens and to discharge its duty with the
interests of the citizens at heart and involve them in decision-making
process concerning the management of natural resources in the
Country. The Public Trust Doctrine may provide the means for
increasing the effectiveness of environmental impact assessment
laws. Thus, under this doctrine, the State has a duty, as a trustee,
under Article 48A of the Constitution to protect and improve the
environment and safeguard the forests and wildlife of the country.
While enforcing Article 21 (Right to life), the State is obliged to take
account of Article 48A- a Directive Principle of State Policy.

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STOCKHOLM CONFERENCE/ UNITED NATIONS CONFERENCE ON
HUMAN ENVIRONMENT

The development of International law on Environment Protection

was very slow, because it was thought that environment was the
subject matter of the concerned nations. Matters on environment
were not considered as matters of immediate concern, but the
concern of the future generations. International environmental law is
one of the newest branches of International law. It comprises those
International juridical norms whose purpose is to protect the
environment. The relatively recent development of International
environmental law was on account of the growing awareness that the
planet is endangered by the continued multiplication of human
population, by increasingly invasive technology, and by the
disordered activities of humanity.

The origin of International Environmental law can be traced back to

the end of the 1960s, when post-World War II reconstruction led to
unprecedented global economic development. This development was
unequal and it widened the differences between the Northern and
Southern hemispheres. It was also ecologically detrimental and the
lakes, river water, oceans, air, plants and animals, which were limited
resources, became incapable of satisfying the various needs of
industrial and developing countries.

International Environmental laws prior to the 1960’s have partially

regulated many aspects of the environment, such as protection of
birds useful to agriculture, protection of sea, wild life, forest health
etc. The 1902 Convention for the Protection of Birds useful
agriculture was the first multilateral international convention
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relating to the protection of certain species of wildlife. The major
development on international environmental law came through the
Trial Smelter Arbitration case (1941.) This case is rightly hailed as
the father of developments in the area of international environmental
law. This case dealt with the damage caused to the State of
Washington by fumes of sulphur dioxide emitted from the Trial
Smelter on the Canadian territory. A Tribunal was set up by Canada
and the United States to resolve the dispute. The tribunal held
Canada responsible in international law for the operation of the Trial
Smelter. It also held that it was the duty of Government of Canada to
ensure that its conduct should be in conformity with the obligations
under international law. The Tribunal observed, "Under international
law, no State has the right to use or permit the use of its territory in
such a manner as to cause injury to the territory of another State or
the properties or persons therein when the case is of some serious
consequence and the injury is established by clear and convincing
evidence". The principle enunciated in the Trial Smelter Arbitral
Award was immediately applied to the water in European
Convention on Protection of Fresh Waters against Pollution.

After World War II (1939-1945), with the establishment of United

Nations and many Specialized Agencies, important developments
took place in the international community. Specialized Agencies such
as FAO, UNESCO and IMO had many functions, which were closely
related to protection of environment. But none of the agencies dealt
with environment directly. In 1948, with the support of UN,
International Union for Protection of Nature (IUPN), International
Union for Conservation of Nature (IUCN) were formed with
Government, Government agencies and many Non-Government

185
Organizations as members. In 1970 the Organisation for Economic
Cooperation and Development (OECD) also established a committee
for environment, which also marked the beginning of recognition of
environmental problems.

STOCKHOLM CONFERENCE, 1972

The Tory Canyon incident in 1967, wherein, Tory Canyon- an oil
tanker- burst, spilling million tonnes of oil into the seas thereby
polluting and threatening plant and fish life under the sea, led to
several environmental measures being taken for the protection of
areas outside the territory of any State, such as the high seas, outer
space, etc. Post this incident, environmental consciousness increased
and this had a major impact on international law. This incident led to
the organisation of a Conference which was a turning point in
International Environmental law. This conference was called the
United Nations Conference on Human Environment. This
conference summed up the awakened environmental conscience and
marked the beginning of an ecological era. The conference is also
known as the ‘Stockholm Conference.’ It opened its first session at the
Royal opera House at Stockholm, Sweden, on 5th June, 1972.

The initial stages of the conference saw the emergence of two

conflicting approaches. The first approach insisted that the primary
concern of the conference was the human impact in the biophysical
environment with emphasis on control of pollution and conservation
of resources. The second approach laid emphasis on social and
economic development as the real issue. The two seemingly opposite
approaches were bridged by the evolution of a concept that
environmental protection was an essential element of social and
economic development. Environmental protection and development
186
were conceptualized as two sides of the coin, inseparable from each
other.

The agenda of the Stockholm Conference

The agenda of the Stockholm Conference was divided into six main
areas-
1) Planning and management of human settlements for protecting
the quality of environmental;
2) Environmental aspects of natural resources management;
3) Identification and control of pollutants and nuisances of broad
international significance;
4) Educational, information, social and cultural aspects of
environmental issues;
5) Development and environment;
6) International Organisations’ suggestions of action proposals.

In addition to the above-mentioned agendas, the need for research

into environmental problems was also emphasized on. However, the
responsibility for finding ways to pay costs of research was left to the
governments and international agencies.

Instruments adopted at the Stockholm Conference

The United Nations Conference on Human and Environment, i.e. the
Stockholm Conference adopted three non-binding instruments-
1) A Resolution on Institutional and financial arrangements;
2) A Declaration known as the 'Stockholm Declaration' containing
the Preamble and 26 principles; and
3) An Action Plan containing 109 recommendations.

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THE STOCKHOLM DECLARATION, 1972
The United Nations Conference on Human Environment in the year
1972, at Stockholm was the turning point in the international
environment law. It was for the first time that most of the nations of
the world gathered at a place under the U.N. leadership to evolve a
common strategy in order to combat environmental degradation,
pollution and ecological imbalances. 26 principles were declared in
this conference. India participated in the conference and also signed
the declaration known as the Stockholm Declaration of 1972. The
then Prime Minister of India- Mrs. Indira Gandhi- was the first head
of the State to address this conference.

The Stockholm Declaration also became the basis for subsequent

development of environmental law in the form of numerous bilateral
and multilateral conventions and other legally binding instruments.
It would be necessary to point out that this conference opted for a
non-binding declaration of the principles and those principles
embody the aspirations of the World for a better environment. It did
not impose specific obligations on the world countries to fulfil the
duties & obligations contained in the Stockholm Declaration. But in
spite of the 'non-binding character' of the principles, the Stockholm
Declaration is regarded as the foundation of modern International
Environmental law.

The Preamble of the Stockholm Declaration

The lengthy preamble to the Stockholm Declaration begins with the
statement that man is both, the creature and moulder of his
environment. It adds that the natural elements and the man-made

188
elements are essential to human well-being and to the full enjoyment
of basic human rights.

The Principles of Stockholm Declaration

The Principles contained in the Stockholm Declaration demonstrate
that the world has just one environment. Some of the important
principles contained in the Declaration are-
• Principle 1- Man has the fundamental right to freedom, equality
and adequate conditions of life, in an environment of a quality
that permits a life of dignity and well-being, and he bears a
solemn responsibility to protect and improve the environment
for present and future generations.
• Principle 2- The natural resources of the Earth, including the
air, water, land, flora and fauna and especially
representative samples of natural ecosystems, must be
safeguarded for the benefit of present and future
generations through careful planning or management, as
appropriate. [Public Trust Doctrine]
• Principle 3- The capacity of the Earth to produce vital
renewable resources must be maintained and, wherever
practicable, restored or improved.
• Principle 4- Man has a special responsibility to safeguard and
wisely manage the heritage of wildlife and its habitat, which
are now gravely imperilled by a combination of adverse
factors.
• Principle 5- The non-renewable resources of the Earth must be
employed in such a way as to guard against the danger of their
future exhaustion and to ensure that benefits from such
employment are shared by all mankind.

189
• Principle 6- The discharge of toxic substances or of other
substances and the release of heat, in such quantities or
concentrations as to exceed the capacity of the environment
to render them harmless, must be halted in order to ensure
that serious or irreversible damage is not inflicted upon
ecosystems. [ Precautionary Principle]
• Principle 7- States shall take all possible steps to prevent
pollution of the seas by substances that are liable to create
hazards to human health, to harm living resources and marine
life, to damage amenities or to interfere with other legitimate
uses of the sea.
• Principle 8- Economic and social development is essential for
ensuring a favourable living and working environment for man
and for creating conditions on Earth that are necessary for the
improvement of the quality of life.
• Principle9- Environmental deficiencies generated by the
conditions of under-development and natural disasters pose
grave problems and can best be remedied by accelerated
development through the transfer of substantial quantities of
financial and technological assistance as a supplement to the
domestic effort of the developing countries and such timely
assistance as may be required.
• Principle 22- States shall cooperate to develop further the
international law regarding liability and compensation for
the victims of pollution and other environmental damage
caused by activities within the jurisdiction or control of such
States to areas beyond their jurisdiction.[ Polluter Pays
Principle]

190
Post Stockholm development
On the basis of the recommendations of the Stockholm Conference,
the United Nations Environment Programme (UNEP) was created by
a resolution adopted by the General Assembly of the United Nations.
The UNEP has its headquarters in Nairobi in Kenya. The general
objectives of the UNEP are:
(a) to provide improved knowledge for an integrated and rational
management of the resources of the biosphere, and for safeguarding
human as well as ecosystems;
(b) to encourage and support an integrated approach to the planning
and management of natural resources, so as to take account of
environmental consequences and to achieve maximum social,
economic and environmental benefits; and
(c) to assist all countries, especially developing countries to deal with
their environmental problems and to help mobilize additional
financial resources for the purpose of providing the required
technical assistance, educational training and free flow of
information and exchange of experience etc.

A Governing Council consisting of 58 members was set up for the

UNEP and it was directed to keep under review the world
environmental situation. UNEP has contributed directly or indirectly
to development of several multilateral environmental treaties.
The Stockholm Conference was followed by several conventions and
deliberations in the international field in order to arouse
consciousness worldwide about the environmental concerns. The
following are some of the important conventions adopted after the
Stockholm Conference-

191
a) The Convention for the Prevention of Marine Pollution by
Dumping of Wastes and Other Matter.
b) The Convention for the Protection of the World Culture and
Natural Heritage.
c) The Convention on International Trade in Endangered Species of
Wild Flora and Fauna.
d) The United Nations Convention on the Law of the Sea.

To celebrate the 10th Anniversary of the Stockholm Conference, the

UNEP convened an international conference at Nairobi in Kenya. The
conference aimed at taking stock of the environmental situation all
over the world over the past 10 years.

In 1985, the Vienna Convention for the Protection of the Ozone Layer
was held as a first step towards international cooperation for the
protection of the ozone layer. This convention resulted in an
international treaty known as the Montreal protocol. Under this
Protocol, the first concrete step to save the ozone layer was taken by
immediately agreeing to completely phase out the substances that
were responsible for the depletion of ozone.

The Stockholm Conference also gave birth to the World Commission

on Environment and Development. This World Commission was set
up by the UN General Assembly in 1983 under the auspices of the
then Prime Minister of Norway Ms. Gro Harlem Brundtland. That is
why this Commission is also known as the Brundtland
Commission. It was the report of this Commission- known as "Our
Common Future”, which brought into common usage, the concept of
‘sustainable development.’ The Brundtland Report, for the first time,
integrated the concept of environment and development.

192
Thus, it can be seen that the Stockholm Conference was able to
arouse great consciousness about environment protection among the
international community.

193
EARTH SUMMIT/ RIO CONFERENCE/UNITED NATIONS CONFERENCE
ON ENVIRONMENT AND DEVELOPMENT

The Earth Summit was the biggest intergovernmental conference

ever held in the history of international conferences. The Earth
Summit which was more correctly called the United Nations
Conference on Environment and Development (UNCED) was held
from 3rd June, 1992 to 14thJune, 1992 in Rio de Janeiro in Brazil. That
is why this summit is called as Rio Conference. The summit coincided
with the World Environment Day, i.e. 5th June (first celebrated on 5th
June, 1974.) The Earth Summit brought together the heads of the
States and Governments from more than 160 countries and
international organizations. More than 10,000 people attended the
meeting officially, and thousands more participated in parallel events
organized by non-governmental organizations (NGOs) representing
North and South, East and West. The participants in the official and
unofficial activities represented democracies, dictatorships,
theocracies, anarchists, religious orders, environmental groups,
indigenous peoples, human rights organizations, and the
international business community.

The Stockholm Conference (UNCHE) and the Rio Conference (UNCED

or Earth Summit) are commonly viewed as twin landmarks in the
evolution of international environmental policy. The United Nations
Conference on the Human Environment, 1972 was associated with
the first generation of international activities in 1960s and
1970s.After the Stockholm Conference 1972, more than 100
governments set up environmental ministries and agencies, which in
tum enacted environmental regulations. The Stockholm Conference
also gave birth to the World Commission on Environment and

194
Development. This World Commission was set up by the UN General
Assembly in 1983 under the auspices of the then Prime Minister of
Norway Ms. Gro Harlem Brundtland. That is why this Commission is
also known as the Brundtland Commission. It was the report of this
Commission- known as "Our Common Future”, which brought into
common usage, the concept of ‘sustainable development. ‘The
Brundtland Report, for the first time, integrated the concept of
environment and development and called a global conference on
environment and development.

UNCED (Earth Summit) was inspired mainly by the Brundtland

Report of 1987, which linked the environmental concerns of the
North with the development concerns of the South. Indeed, the
Brundtland Report coined the term Sustainable development,
pointing out to both the wasteful and environmentally damaging
effects of 'over consumption' in the developed countries and the
equally destructive effects of poverty in the developing countries.
Shortly after the publication of the Brundtland Report in 1987, Mrs.
Brundtland became the Prime Minister of Norway and she promoted
the findings of the report at a high political level. Joined by some
unlikely allies (amongst them Prime Minister Thatcher, President
Gorbachev, President Mitterrand and Prime Minister Mrs. Gandhi),
she raised environment and development issues at the United
Nations and by the end of 1988, she had rallied 50 world leaders in
support of some sort of action based on the findings contained in the
Brundtland Report. As a result of this, on 22ndDecember 1989, the
United Nations General Assembly adopted the resolution which set
up the United Nations Conference on Environment and Development,
which shall function at the 'highest possible level.'

195
Thus, the Earth Summit (UNCED) may be regarded as a follow-up to
the Stockholm Conference which was convened 20 years earlier.
UNCED sought to make clear the political, organizational and
scientific linkages between environmental degradation and economic
development.

The scope of the UNCED included the political reactions on the parts
of many governments to some very specific environmental issues,
which arose during the late 1980s. A series of accidents and negligent
actions, such as those which occurred at Bhopal, Chernobyl and
Basel, prompted the world community to bring about radical and
direct changes in the environmental policies. The rising pace of
environmental awareness was evidenced by the rise of the Green
parties in Europe, especially in West Germany, and sophisticated
NGO campaigns on environmental issues such as nuclear testing,
toxic dumping and whaling at the international level. Finally, there
was an appropriate response to the environmental problems from
the highest level of government. At their annual meeting in July 1989,
the leaders of the seven major industrial powers- Great Britain, the
Federal Republic of Germany, France, Italy, Japan, Canada and the
United States- agreed that environmental issues should be given
utmost attention. It was recommended that a series of negotiations
must be carried out in this area. This change in attitude of the
developed nations helped to pave the way towards the United
Nations Conference on Environment and Development (UNCED) in
Rio de Janeiro, Brazil in 1992.

From a legal and institutional perspective, the Earth Summit

produced three important agreements. These were-

196
1) The United Nations Framework Convention on Climate Change,
2) The Biodiversity Convention, and
3) Agenda 21

In addition to these, the participants at the Earth summit (UNCED)

agreed to a statement of principles known as the “Rio Declaration.”

1) The Convention on Biodiversity (CBD)

The CBD was adopted and signed in 1992 at the United Nations
Conference on Environment and Development, i.e. at the Rio
Conference. The Convention on Biodiversity (CBD) came into force
in 1993. Presently, 193 countries are parties to this convention. The
three main goals of the CBD are- conservation of biodiversity;
sustainable use of biodiversity; fair and equitable sharing of the
benefits arising from the use of genetic resources. Its overall
objective is to encourage actions, which will lead to a sustainable
future.

2) The United Nations Framework Convention on Climate Change

(UNFCCC)

The UNFCCC was adopted and signed in 1992 at the United Nations
Conference on Environment and Development, i.e. at the Rio
Conference. It came into force in 1994. 195 countries have ratified
the Convention and they are called Parties to the Convention.
Preventing “dangerous” human interference with the climate
system is the ultimate aim of the UNFCCC.

3) Agenda 21
Agenda 21 was intended to be a set of guidelines on environment and
development issues for States to follow in the twenty-first century. It

197
was a sort of guiding principles of sustainable development. It is a
product of the Earth Summit (UN Conference on Environment and
Development) held in Rio de Janeiro, Brazil, in 1992. It is an action
agenda for the United Nations, other multilateral organizations, and
individual governments around the world that can be executed at
local, national, and global levels. The "21" in Agenda 21 refers to the
21st century. Its aim is achieving global sustainable development. It
is popularly called the Magna Carta of environment protection.

Rio Declaration
The Rio Declaration is also known as the “Earth charter.” Produced at
the Rio Conference in 1992, the Rio Declaration sets out 27 guiding
principles for sustainable development throughout the world. It
states that the only way to have any form of long-term growth is to
ensure that it is grounded in the context of environmental protection.

Principle 1- 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 2- States have, in accordance with the Charter of the United

Nations and the principles of international law, the sovereign right to
exploit their own resources pursuant to their own environmental and
developmental 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 areas beyond the limits of
national jurisdiction.

Principle 3-The right to development must be fulfilled so as to

equitably meet developmental and environmental needs of
present and future generations. [Intergenerational Equity]
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Principle 13- States shall develop national law regarding liability
and compensation for the victims of pollution and other
environmental damage. States shall also co-operate in an
expeditious and more determined manner to develop further
international law regarding liability and compensation for
adverse effects of environmental damage caused by activities
within their jurisdiction or control to areas beyond their
jurisdiction. [Polluter Pays Principle]

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. [Precautionary Principle]

Principle 17- Environmental impact assessment, as a national

instrument, shall be undertaken for proposed activities that are likely
to have a significant adverse impact on the environment and are
subject to a decision of a competent national authority.

A decade after the historic Earth Summit, the UN convened another

conference to address sustainable development. It was the World
Summit on Sustainable Development held in Johannesburg in 2002.
The official agenda of this World Summit was to review the
achievements made since the Earth Summit and to determine
whether enough had been done to implement Agenda 21. The World
Summit on Sustainable Development produced the Johannesburg

199
Declaration, which was a political declaration containing resolutions
by the heads of States for implementing sustainable development.

200
 Climate change

Climate change means a change of the climate that alters the

composition of the global atmosphere. Such a change is attributed to
the direct or indirect activities of human beings. Growing human
civilization and rapid industrialisation with their expanded activities
affect the layers of the atmosphere that surround the Earth. Such an
effect changes the natural atmosphere and the human civilization as
well as the future generations shall suffer due to such changes in the
natural system that governs the atmosphere.

The greenhouse gases which contribute significantly for the warming

of the globe are also responsible in interfering with the global
climate. Thus, the concentration of greenhouse gases namely carbon
dioxide, methane, nitrous oxide and certain other heat trapping gases
contribute in a significant manner to the changes that occur in the
atmospheric climate. Carbon dioxide is produced when fossil fuels
are burned and with the rapid depletion of forest cover, the effect of
carbon dioxide is further intensified. Methane and Nitrous oxide are
generally used in agricultural practices and the release of such gases
causes certain effects on the lands and land use. Chlorofluorocarbons
(CFCs) and other gases which have the capacity to trap heat also
cause changes in the climate.

Inter-governmental Panel on Climate Change (IPCC)

In 1988, the Inter-governmental Panel on Climate Change (IPCC) was
established by the World Meteorological Organisation (WMO) and
the United Nations Environment Programme (UNEP) to investigate
the problem of climate change which was threatening the world. The

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IPCC is a leading body for the assessment of climate change in order
to provide the world with a clear, balanced view of the present state
of understanding of climate change. The IPCC carries on international
consultations on the problem of climate change. More than about 400
scientists from across the world are involved in these consultations.
The mandate of the IPCC is to assess the state of climate system and
climate change existing in the world, the environmental, economic
and social impacts of climate change and possible response
strategies. The IPCC releases comprehensive, well documented
assessment reports at regular intervals which summarise the current
situation and future projections of climate change. The IPCC is known
for its intense scientific work and research. The assessment reports
of IPCC play a very crucial and decisive role in inducing governments
to take appropriate measures. The IPCC shared the Nobel Peace Prize
in 2007 with Albert Arnold Gore (Former Vice President of United
States) for its pioneering work and significant contribution in the
field of climate change. The IPCC has released 4 assessment reports
since its inception. The IPCC has predicted that global temperatures
are likely to increase by around 6.5 degrees Celsius by the end of the
21st Century which would mean that there will be severe rains, heat
waves, droughts, melting glaciers and rising sea levels. The IPCC
suggested that there is an urgent need to bring about stabilisation of
global emissions.

The United Nations Framework Convention on Climate Change

Despite the efforts of the IPCC, climate change continued to remain a
threat to the world community. Concerned by the fact that human
activities have been substantially increasing the atmospheric
concentrations of greenhouse gases and that this may adversely

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affect the natural ecosystems and humankind, The United Nations
adopted a Framework Convention on Climate Change at the Rio
Conference in 1992. The objective of this Convention is to achieve
stabilisation of greenhouse gas concentrations in the atmosphere at a
level that would prevent dangerous human interference with the
climate system. The Conference of Parties is the highest-decision
making body of the Convention, and usually meets annually. Parties
to the UNFCCC adopt decisions, review progress and consider further
action through regular meetings of the Conference of the Parties
(COP). The UNFCC defines climate change as, ‘a 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.’
In order to achieve the objective of this Convention and to implement
its provisions, the Convention requires that the parties should
protect the climate system for the benefit of present and future
generations of humankind. Accordingly, the developed country
parties shall lead from the front in combating the problem of climate
change and the adverse effects thereof.

The UNFCC has divided the countries into two sets. One set is called
the Annex-I countries. These are the industrialised countries
which are responsible for most of the accumulated greenhouse gas
emissions and have been asked to reduce their emissions by 6-8% by
2020. The rest of the countries including India are called non- Annex
I countries which have been asked to cooperate with the process of
reducing global emissions by complying with the communications
agreed under the UNFCC.
Kyoto Protocol

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The Conference of the Parties (COP) is the supreme decision-making
body of the United Nations Framework Convention on Climate
Change. All States that are Parties to the Convention are represented
at the COP, at which they review the implementation of the
Convention and any other legal instruments that the COP had
adopted, take decisions necessary to promote the effective
implementation of the Convention. The COP meets every year, unless
the Parties decide otherwise. The first COP meeting was held in
Berlin where it was agreed that commitments of States towards
reducing global emissions were needed to be enforced diligently and
that reducing the emission levels alone would not suffice to arrest
global warming. In the light of increasing scientific evidence about
the risks of climate change, it soon became evident to policy makers
that a further negotiated agreement was necessary. In December
1997, the third COP which was held in Kyoto in Japan reviewed the
progress made by the UNFCC during the last 5 years since its
inception in 1992 and future plans were chalked out by fixing
strategies and objectives for the future.

The outcome of this third Conference of Parties (COP)was a

Protocol to the UNFCCC that obligates developed countries and
countries in transition to a market economy to achieve quantified
emission reduction targets. These countries, known under the
UNFCCC as Annex I parties, agreed to reduce their overall
emissions of six greenhouse gases by an average of 5%. This
protocol was called the “Kyoto Protocol.”

The main feature of the Kyoto Protocol was a set of binding emissions
targets for developed nations. The Protocol states that Annex I

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parties are committed individually or jointly to ensure that their
aggregate anthropogenic emissions of greenhouse gases do not
exceed amounts assigned to each of them with a view to reducing
their overall emissions of such gases by at least 5%. The Kyoto
Protocol also developed mechanisms which allow flexibility to
countries in making and measuring their emissions reductions. These
mechanisms include the Joint Implementation Mechanism and the
Clean Development Mechanism.

Joint Implementation Mechanism- Under this mechanism, the

developed and developing countries shall try to work together to
solve the problem of greenhouse gases emissions. Under Article 6 of
the Kyoto Protocol lays down that any Annex I country can invest in a
project to reduce greenhouse gas emissions in any other Annex I
country as an alternative to reducing emissions domestically. In this
way countries can lower the costs of complying with their Kyoto
targets by investing in projects where reducing emissions may be
cheaper and applying the resulting Emission Reduction Units (ERUs)
towards their commitment goals. One ERU is equal to one tonne of
carbon dioxide. Joint Implementation is a project-based activity in
which one country receives emission reduction credits when it funds
a project in another country where the emissions are actually
reduced. But, these Joint Implementation programmes between
developing and industrialized countries are unlikely to make the
required contribution to the global emissions reduction.
Industrialized countries will eventually have to substantially reduce
emissions in their own countries - something which they have shied
away from completely over the last few years.

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Clean Development Mechanism (CDM)
The CDM allows the developed countries (Annex I Parties) to
implement greenhouse gas reduction or removal projects in
developing countries (non-Annex I Parties) in order to generate
Certified Emission Reductions (CERs). When projects are carried out
in non-Annex I countries, i.e. developing countries, they operate
under the “Clean Development Mechanism” and the credits earned by
the developed countries are called “Certified Emission Reductions”
(CERs). CER is a unit of greenhouse gas reduction that has been
generated and certified under the Clean Development Mechanism
regulations. The unit is equal to one metric ton of carbon dioxide
equivalent. The Clean Development Mechanisms (CDM) generates
investment in developing countries, especially from the private
sector, and promotes the transfer of environmentally-friendly
technologies.

CERs and ERUs can be used by Annex I Parties to meet their Kyoto
targets. They can also be traded on international carbon markets
under the mechanism of international emissions trading.

The Clean Development Mechanism (CDM) and Joint Implementation

(JI) are two project-based mechanisms under the Kyoto Protocol.
These mechanisms are based on the principle that the benefit to the
climate of reducing greenhouse gas emissions is the same regardless
of where they are reduced.

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Non-Compliance
Cases of non-compliance shall be addressed by procedures adopted
by the meeting of the parties to the protocol, in conformity with
Article 16 of the Kyoto Protocol.

Climate change has been widely recognized as one of the most

important problems encountered the planet Earth on the current
international environmental agenda. Although the extent and timing
of effects are uncertain, yet climate change is believed to have
implications in several areas including food and water supply, energy
production and use, ecosystem and species-survival, human health
and social, political and economic stability. Therefore there is a need
for leadership and it is the industrialised nations who should come
forward and take the lead. The developing countries also need to get
more closely involved. There is a need to open up the process leading
to further commitments and time tables to combat the adverse
effects of climate change. A future with less greenhouse gases
emission, less risks of floods and droughts and more benefits to
developed, developing and under developed countries is the need of
the hour.

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 Environmental Audit

The term 'audit' has its origin in the financial sector. Auditing is a
methodical examination- involving analyses, tests, and confirmations- of
procedures and practices whose goal is to verify whether they comply with
legal requirements, internal policies and accepted practices. Environmental
auditing is essentially an environmental management tool for measuring
the effects of certain activities on the environment against set criteria or
standards. Depending on the types of standards and the focus of the audit,
there are different types of environmental audit. Organizations of all kinds
now recognize the importance of environmental matters and accept that
their environmental performance will be scrutinized by a wide range of
interested parties. Environmental auditing is used to

• investigate
• understand
• identify

These are used to help improve existing human activities, with the aim of
reducing the adverse effects of these activities on the environment. An
environmental auditor will study an organization’s environmental effects
in a systematic and documented manner and will produce an
environmental audit report.

Environmental auditing should not be confused with Environmental Impact

Assessment (EIA). Both environmental auditing and EIA are environmental
management tools, but there are some important differences between the
two.

Environmental Impact Assessment is an anticipatory tool, i.e., it takes place

before an action is carried out (ex ante). EIA therefore attempts to predict
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the impact of a future action on the environment and to provide this
information to those who make the decision on whether the project should
be authorized or not. EIA is also a legally mandated tool for many projects
in most countries.

Environmental auditing is carried out when a development is already in

place, and is used to check on existing practices, assessing the
environmental effects of current activities (ex post). Environmental
auditing therefore provides a 'snap-shot' of looking at what is happening at
that point in time in an organization.

Scope of Environmental Audit

The areas an environmental audit deals with can be categorized as under-

• Design specification and layout- While setting up an industry,

adequate provisions are made in the design specification and layout
to augment the production capacity but corresponding provisions to
meet the environmental criteria are often overlooked. Adequate
provisions are, therefore, necessary to upgrade pollution control
measures to meet the future environmental standards that are
getting stringent day by day. The audit will help in identifying
specific areas of concern to meet the future requirements of
environmental measures.
• Resource management- The resources include air, water, energy and
other raw materials. The audit will provide data to the management
on the efficient use of the resources per unit production, and,
thereby, help reduce resource consumption and bringing about waste
minimization.
• Pollution control systems and procedures- The environmental Audit
helps to ensure that the systems and procedures governing the
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 environmental activities/operations of pollution control equipments
are rightly followed and determine the efficiency of the system in
identifying conditions and inviting corrective actions in a timely and
effective manner.
• Emergency plans and response/safety system- Since the emergency
plans, more often than not, remain in the safe custody of senior
management, the staff may not have immediate access to the right
action during an emergency. The problem becomes acute when new
persons are employed/deployed. The review of the emergency
response system will ensure adequate knowledge, alertness and
readiness of the staff concerned to effectively face an emergency.
• Medical and health facilities/industrial hygiene and occupational
health- The productive element of an industry is dependent on the
health of its human resources. The primary facilities to suit the
occupational needs of the industry are, therefore, vital. Audit in this
regard will provide an insight into the actual requirements to warn
suitable orientation of existing facilities.
• Confirmation to regulatory requirements- The regulatory mechanism
of environmental compliance is gradually becoming more and more
comprehensive. New regulations and standards are being stipulated
at such a pace that they render the existing systems archaic. Factory
managers may not be fully aware of the latest requirements and this
will make the top management/owners vulnerable for prosecution
under various environmental acts. An audit helps compare the
existing status with the stipulation and standards prescribed by
various agencies and ensure compliance.

Steps in Environmental Audit

The four general steps involved in an Environmental Audit procedure are-

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(i) Audit preparation- This includes choice of auditor/audit group,
collection of background material and planning of the audit preparation.
Audit preparation is crucial in determining the methodology, practical tools
and materials that will be required for the completion of the audit. In many
cases, the available materials such as manuals, questionnaires, etc., may not
be well suited to the type of activity that is to be audited. This means that
part of the preparatory activities may have to involve development of
audit-specific tools or further development of existing materials and tools.
In such cases, this may require a preliminary review of the facility or
activities to map out specific details and requirements to be observed in the
development of the particular tools.

(ii) Systematic scrutiny or review of a facility- Depending on the

orientation and goals of the audit, the focus of the scrutiny differs. For
example, an environmental audit can be conducted without dealing with
the processes involved in production. However, an audit, which is
considered to be a part of a programme of preventive environmental
protection at the production level, needs to deal with the production
processes and material flows. Common to all audits is an analysis and
evaluation of the information that has been obtained. This helps in
identifying the areas of improvement.

(iii) Reporting- This step involves reporting of observation of deficiencies

and possible alternatives. It is important to be aware that an
environmental audit by itself does not solve any problems. In fact, during
the work on the audit, it may appear that the environmental problem is
increasing because the audit process brings to attention the previous
unknown problems or deficiencies. Audits often point to the need for the
changes in organization and improvements in education, increased

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environmental responsibility, and investments in new equipment and
environmental protection technology.

(iv)Follow up- Following up the results is an important part of the

Environmental Audit process. An important pre-condition for the success
of an audit is that everyone is prepared to accept the consequences and
take steps to solve the deficiencies and problems, which the audit may
reveal. Thus, the persons whose areas of responsibility have been the
object of scrutiny must make decisions and have plans in place to eliminate
the problems. An evaluation of the results of the Environmental Audit is a
logical step.

Submission of environmental audit report by the persons carrying on

industry, operation or process has been made compulsory and this has
been incorporated in Rule 14 under the Environment (Protection) Rules
through an amendment in the year 1992. The word ‘audit report’ which
was initially present in the provision was subsequently substituted by the
word ‘statement’ in 1993. The Environmental Audit Statement must be
submitted to the concerned State Pollution Control Board.

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 Environmental Impact Assessment

Environmental Impact Assessment (EIA) is the formal process used to

predict the environmental consequences (positive or negative) of a plan,
policy, program, or project prior to the decision as to whether or not
move forward with the proposed action. It is an exercise to evaluate the
beneficial and adverse effects of developmental projects/activities on the
environment including socio-economic, cultural concerns. The latest annual
report of the Ministry of Environment and Forests states that
“Environmental Impact Assessment” is one of the proven management
tools for incorporating environmental concerns in development process
and also in improved decision-making. The growing awareness over the
years on environment protection and sustainable development has further
given emphasis on sound environmental management practices through
preparation of Environmental Management Plans (EMPs) for minimising
the impacts of developmental activities.

The Indian experience with Environmental Impact Assessment began over

40 years back. It started in 1976-77 when the Planning Commission asked
the Department of Science and Technology to examine the river-valley
projects from an environmental angle. This was subsequently extended to
cover those projects, which required the approval of the Public Investment
Board. Till 1994, environmental clearance from the Central Government
was an administrative decision and lacked legislative support.

On 27 January 1994, the Union Ministry of Environment and Forests

(MoEF), Government of India, under the Environmental (Protection) Act
1986, promulgated an EIA notification making Environmental Clearance
(EC) mandatory for expansion or modernisation of any activity or for

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setting up new projects listed in Schedule 1 of the notification. Since then
there have been 12 amendments made in the EIA notification of
1994. Under the 1994 notification, expansion or modernization of any
activity or a new project listed in Schedule I of the notification shall not be
undertaken in any part of India unless it has been accorded environmental
clearance by the Central Government. Schedule I of the 1994 notification
contains the list of projects requiring environmental clearance from the
Central Government.

The MoEF again issued an EIA notification in September 2006. The

notification makes it mandatory for various projects such as mining,
thermal power plants, river valley, infrastructure (road, highway, ports,
harbours and airports) and industries including very small electroplating
or foundry units to get environment clearance. However, unlike the EIA
Notification of 1994, this notification has put the onus of clearing projects
on the State Government depending on the size/capacity of the project.
Under the 2006 notification, for matters falling under Category ‘A’ in
the Schedule, the Central Government in the Ministry of Environment
and Forests shall grant the approval and for matters falling under
Category ‘B’ in the said Schedule, the State Environment Impact
Assessment Authority shall grant the approval.

Stages of EIA

The stages of an EIA process depend upon the requirements of the country.
However, most EIA processes have a common structure. The environment
impact assessment consists of eight steps with each step equally important
in determining the overall performance of the project. Typically, the EIA
process begins with screening in order to ensure that time and resources
are directed at the proposals that are environmentally sound and the
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process ends with some form of follow up on the implementation of the
decisions and actions taken as a result of an EIA report. The eight steps of
the EIA process are as follows-

1. Screening- First stage of EIA, which determines whether the

proposed project, requires an EIA and if it does, then the level of
assessment required.

2. Scoping- This stage identifies the key issues and impacts that should
be further investigated. This stage also defines the boundary and
time limit of the study.

3. Impact analysis- This stage of EIA identifies and predicts the likely
environmental and social impacts of the proposed project and
evaluates their significance.

4. Mitigation- This step in EIA recommends the actions to reduce and

avoid the potential adverse environmental consequences of
development activities.

5. Reporting- This stage presents the result of EIA in a form of a report

to the decision-making body and other interested parties.

6. Review of EIA- It examines the adequacy and effectiveness of the EIA

report and provides the information necessary for decision-making.

7. Decision-making- In this stage/step of EIA process, it is decided

whether the project is to be rejected, approved or needs further
change.

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 8. Post-monitoring- This stage comes into play once the project is
commissioned. It aims at ensuring that the impacts of the project do
not exceed the legal standards prescribed in the EIA report and that
the implementation of the mitigation measures is in the manner as
described in the EIA report.

The requirement of a State to conduct Environmental Impact Assessments

in respect of activities that are likely to significantly affect the environment
has been reflected in Principle 17 of the Rio Declaration at the United
Nations Conference on Environment and Development. Taking
environmental considerations into account in development planning does
not imply that the pace of socio-economic progress will be slowed down,
and taking environmental considerations into account in the various
phases of the project cycle must not be seen as placing undue constraints
on a country's development options. If a project is to be suspended on
environmental grounds, alternative opinions that are environmentally
sound must be provided to meet the country's developmental needs. For
most projects, particularly those involving large public investments in
areas such as infrastructure, an Environmental Impact Assessment (EIA)
should be carried out and linked to the cost-benefit analysis. The objective
of the EIA is to ensure that environmental aspects are addressed and
potential problems are foreseen at the appropriate stage of project design.
EIA should be envisaged as an integral part of the planning process and
initiated at the project level from the start.

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 ECOMARK

The environment today is under tremendous stress on account of rapid

industrialisation, unplanned urbanisation and changing consumption
patterns in a frantic race to achieve better standards of living. It has now
become very clear that regulatory action by Government agencies alone
cannot restore the environment to glory. It is increasingly being realised
that consumers can and should play a major role in prompting
manufacturers to adopt clean and eco-friendly technologies.

To increase consumer awareness, in 1991, the Ministry of Environment and

Forests- Government of India instituted a scheme for easy identification of
environment-friendly products. The scheme allows a special logo and a
label to label such products. This label was known as ECOMARK. Any
product which is made, used or disposed of in a way that significantly
reduces the harm which it would have otherwise caused to the
environment can be regarded as an environment-friendly product. It
should be remembered that every consumer product that one buys in India
has some impact on the environment. It is, therefore, important to know
which products have the least such impact and the ECOMARK scheme does
just that. The manufacturer of a product is allowed to use ECOMARK
only if the life-cycle of the product is environment-friendly at every
stage. The life-cycle of a product includes raw materials used,
manufacturing process, packaging and disposal.

ECOMARK is issued by the Bureau of Indian Standards (BIS) as a

certification mark for the products which are ecologically safe conforming
to the standards prescribed by the BIS. An Earthen pot has been chosen as
the logo for ECOMARK scheme in India. An Earthen pot uses renewable
resource like Earth (soil). It does not produce hazardous waste and

217
consumes very little energy in its making. Its solid and graceful form
represents both strength and fragility, which are also the characteristics of
the eco-system. The image has the potential and ability to reach people and
it can help to promote a greater awareness of the need to be compassionate
towards the environment. In short, the logo for the ECOMARK scheme
signifies that the product which carries the mark does the least damage to
the environment.

The objectives of the ECOMARK scheme

1) To encourage all citizens to buy and use products which are

environment-friendly and which have less harmful environmental
impacts.
2) To reward and promote genuine initiatives by companies to reduce
the adverse environmental impact on their products.
3) To provide incentives for manufacturers and importers to reduce the
ill effects of their products on the environment.
4) To assist the consumers in becoming environmentally responsible in
their daily lives by providing information with respect to the
environmental factors which they may consider in their purchase
decisions.
5) To improve the overall quality of the environment and to promote
sustainable management of resources of the country.

Criteria for awarding ECOMARK

The products which get the ECOMARK certification need to strictly follow
the environmental requirements and also pass stringent quality control
tests to keep their certification valid.

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The following conditions are evaluated before awarding the ECOMARK
certification to a product-

1) Substantially less potential for pollution in production, usage and

disposal,

2) Recycled, recyclable, made from recycled or biodegradable products,

3) Make significant contribution in saving non-renewable resources and

natural resources,

4) Production process including source of raw material,

5) Likely impact on the environment,

6) Suitability for recycling or packaging, and

7) Biodegradability.

Steps in implementation of the ECOMARK scheme

a) Identification of the product categories and selection of logo for

ECOMARK.
b) Identification of specific products under various categories and
development of appropriate criteria for awarding ECOMARK.
c) Incorporation of the criteria for ECOMARK in Indian Standards
through amendments/revisions.
d) ECOMARK certification by Bureau of Indian Standards under the
Bureau of Indian Standards Act, 1986.
e) Creation of mass awareness for promotion and acceptance of the
scheme.

Stages leading to the award of the ECOMARK

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 1. Steering Committee- set up in the Ministry of Environment and
Forests, to determine the product categories for coverage under the
scheme and also formulate strategies for promotion, implementation,
future development and improvements in the working of the scheme.

2. Technical Committee- set up in the Central Pollution Control Board,

to identify the specific product to be selected and the individual
criteria to be adopted, including, wherever possible, inter-se priority
between the criteria if there be more than one.

3. The Bureau of Indian Standards- to assess and certify the products

and draw up a contract with the manufactures, allowing the use of
the label, on payment of a fee.

The ECOMARK scheme of India is very similar to the eco labelling schemes
of other countries. Eco label is awarded by most countries on the basis of
environmental considerations, but in India it is also linked with the safety
and quality of products. The products should meet both environmental
criteria and quality criteria set by the Bureau of Indian Standards (BIS).
The BIS is responsible for setting quality and safety norms and closely
involved with the implementation of the ECOMARK scheme.

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 COASTAL ZONE MANAGEMENT

The coastal zone is a transition area between marine and territorial zones.
It includes shore ecosystems, wetland ecosystems, mangrove ecosystems,
sea grass ecosystems, salt marsh ecosystems and seaweed ecosystems.

It is found that about 4,800 billion tonnes of domestic waste and 65 million
tonnes of solid wastes are dumped annually into the sea. Due to continuous
onslaught on the coastal areas, the extent of mangroves, coral reefs and fish
breeding gets diminished adversely impacting the livelihood of several
people who live along the coastline of our country. Hence, it was decided to
introduce a plan of action with an aim to bring about sustained utilisation
of the coastal zones. Based on this, the Coastal Regulation Zone (CRZ)
notification was issued in 1991 under the Environment Protection Act,
1986 by the Ministry of Environment and Forests to regulate activities in
the coastal areas of India. In other words, the management of coastal zones
in India is regulated by the Coastal Regulation Zone Notification dated 19th
February, 1991.Various amendments were notified in the subsequent
years.

In India, the Coastal Regulation Zone (CRZ) includes-

1. All the coastal stretches of seas, bays, creeks, rivers and backwaters
which are influenced by tidal action in the landward side up to 500
meters from the High Tide Line (HTL); and
2. All the land between the High Tide Line (HTL) and the Low Tide Line
(LTL)
*** High Tide Line means the line on the land up to which the
highest water line reaches during the spring tide.***

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Prohibited activities

Thirteen activities are declared as prohibited within the Coastal Regulation

Zone (CRZ). They are as follows-

1) Setting up of new industries and expansion of existing industries, except

those directly related to water front or directly needing foreshore facilities,
projects of the Department of Atomic Energy and non-polluting industries
in the field of information technology and other service industries in the
CRZ of Special Economic Zones (SEZ).

2) Manufacture or handling or storage or disposal of hazardous substances

as specified in the Notifications of the Government of India, except transfer
of hazardous substances from ships to ports, terminals and refineries and
vice versa in the port area.

3) Setting up and expansion of fish processing units including warehousing.

(Excluding hatchery and natural fish drying in permitted areas);

4) Setting up and expansion of units/ mechanisms for disposal of wastes

and effluents.
(Except facilities required for discharging treated effluents into the water
course approved under the Water (Prevention and Control of Pollution)
Act, 1974; and facilities for storm water drains.)

5) Discharge of untreated wastes and effluents from industries, cities or

towns and other human settlements.

6) Dumping of city or town waste for the purposes of land filling or

otherwise.

7) Dumping of ash or any wastes from thermal power stations.

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8) Land reclamation, bunding or disturbing the natural course of sea water
with obstructions, except those required for control of coastal erosion,
construction of ports, harbours, bridges, sea-links, maintenance or clearing
of waterways, channels and ports.

9) Mining of sand, lands, rocks and other substrata materials except those
rare minerals which are not available outside the CRZ areas.

10) Harvesting or drawing of ground water and construction of

mechanisms for that purpose within 200 meters of the High Tide Line. In
the zone between 200 meters to 500 meters, such activities shall be
permitted only when done manually through ordinary wells for drinking,
horticulture, agriculture and fisheries.

11) Construction activities in ecologically sensitive areas, i.e. in CRZ-I as

specified in Annexure-I to the Notification.

12) Any construction activity between the Low Tide Line and High Tide
Line, except facilities for carrying treated effluents and waste water
discharges into the sea, facilities for carrying sea water for cooling
purposes, oil, gas and similar pipelines and facilities essential for activities
permitted under the Notification.

13) Dressing or altering of sand dunes, hills, natural features, including

landscape changes for beautification, recreational and other such purposes,
except as permissible under this Notification.

Regulated activities

All other activities, i.e. activities not falling in the list of prohibited activities
are regulated as under-

1) Clearance shall be given for any activity within the Coastal Regulation
Zone only if it requires water front and foreshore facilities.

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2) The following activities require environmental clearance from the
Ministry of Environment and Forests, Government of India, namely-

a) Construction activities related to projects of the Department of

Defence or Atomic Energy requirements, for which foreshore
facilities are essential (e.g. slipways, jetties etc.) Residential
buildings, office buildings, hospital complexes, workshops shall not
fall within this clause, except in very special cases and hence shall not
normally be permitted in the CRZ).

b) Operational constructions for ports and harbours and light houses

and construction for activities such as jetties, slipways etc.

c) Thermal power plants.

d) Housing schemes in CRZ area as specified.

e) Mining of rare minerals.

f) Facilities for generating power by non-conventional energy

sources.

g) Demolition or reconstruction of buildings of archaeological or

historical importance, heritage buildings.

h) Exploration and extraction of oil and natural gas and all associated
activities.

i) All other activities with investment exceeding Rs. 5 crores.

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Classification of Coastal regulation Zones

For regulating development activities, coastal stretches within 500 meters

of the High Tide Line on the landward side have been classified into four
zones which are as follows-

CATEGORY I: CRZ-I

CRZ- I comprises-
a) all areas which are ecologically sensitive and important, such as
mangroves, corals and coral reefs, sand dunes, national parks, marine
parks, sanctuaries, reserve forests, wildlife habitats, salt marshes, turtle
nesting grounds, sea grass beds, nesting grounds of birds, areas or
structures of archaeological importance and heritage sites.

b) all areas between the High Tide Line and the Low Tide Line.

In CRZ-I, no new construction is permitted. However, certain specified

activities may be permitted by the designated authority depending on the
case.

CATEGORY II: CRZ-II

CRZ- II comprises the developed land areas up to or close to the shoreline,

within the existing municipal limits or in other existing legally designated
urban areas, which are substantially built-up and have been provided with
drainage and approach roads and other infrastructural facilities, such as
water supply, sewerage mains, etc.

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CATEGORY III: CRZ-III

CRZ- III comprises areas that are relatively and those which do not fall
under CRZ-I or CRZ- II. Additionally, CRZ-III also includes the coastal zones
in rural areas and also areas within municipal limits which are not
substantially built up.

CATEGORY IV: CRZ-IV

CRZ- IV comprises the coastal stretches in the Andaman and Nicobar

Islands, Lakshadweep and small islands, except those areas designated as
CRZ-I, CRZ-II or CRZ-III.

A draft Coastal Regulation Zone Notification, 2018 was issued and hosted in
the website of the Ministry of Environment, Forest and Climate Change on
18thApril, 2018 seeking comments and suggestions from all concerned.
The objections and suggestions received in response to the above-
mentioned draft Coastal Regulation Zone Notification, 2018 have been duly
considered by the Central Government. In exercise of the powers conferred
by Section 3(1) and Section 3 (2)(v) of the Environment (Protection) Act,
1986, the Ministry of Environment, Forest and Climate Change issued a
draft Coastal Regulation Zone Notification on 18th January, 2019.

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 THE CONCEPTS OF DEPLETION OF OZONE LAYER AND GLOBAL
WARMING

The ozone layer is a layer in the Earth's atmosphere which contains

relatively high concentrations of ozone (O3). This layer absorbs almost 93%
to 99% of the sun's high frequency ultraviolet light, which is potentially
harmful to life on Earth. Over 91% of the ozone in Earth's atmosphere is
present in this layer. The ozone layer is mainly located in the lower portion
of the stratosphere, which is approximately 10 km to 50 km above the
Earth, though the thickness of the ozone layer varies seasonally and
geographically. The ozone layer was discovered in 1913 by the French
physicists Charles Fabry and Henri Buisson. Its properties were explored in
detail by the British meteorologist G. M. B. Dobson, who developed a simple
spectrophotometer (the Dobson meter) that could be used to measure the
quantity of stratospheric ozone from the ground. Between 1928 and 1958
Dobson established a worldwide network of ozone monitoring stations
which continues to operate even today. The "Dobson unit", a convenient
measure of the total amount of ozone in a column overhead, is named in his
honour.

Without ozone, life on Earth would not have evolved in the way it has
today. The first stage of single cell organism development required an
oxygen-free environment. This type of environment existed on Earth
around 3000 million years ago. As the primitive forms of plant life
multiplied and evolved, they began to release minute amounts of oxygen
through the photosynthesis reaction (which converts carbon dioxide into
oxygen.) The build-up of oxygen in the atmosphere led to the formation of
the ozone layer in the upper atmosphere or stratosphere. This layer filters
out incoming ultraviolet (UV) radiations which are also known as the "cell-
damaging" radiations. Thus, with the development of the ozone layer came

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the formation of more advanced life forms. Ozone is a form of oxygen. The
oxygen we breathe is in the form of oxygen molecules (O2) - two atoms of
oxygen bound together. Normal oxygen which we breathe is colourless and
odourless. Ozone, on the other hand, consists of three atoms of oxygen
bound together (O3). Most of the atmosphere's ozone occurs in the
stratosphere. Ozone is colourless and has a very harsh odour. Ozone is
much less common than normal oxygen. Most ozone is produced naturally
in the upper atmosphere or stratosphere. While ozone can be found
through the entire atmosphere, the greatest concentration occurs at
altitudes between 19 and 30 km above the Earth's surface. This band or
layer of ozone-rich air is known as the "ozone layer". Stratospheric ozone
layer blocks harmful solar radiations. All life on Earth has adapted to this
filtered solar radiation.

Ozone Hole

In some of the popular news media, as well as in many books, the term
“ozone hole” has been and is still being loosely used often. Frequently, the
term is employed to describe any form of ozone depletion. The term "ozone
hole" should be applied to regions where stratospheric ozone depletion is
so severe that levels of ozone in the stratosphere fall below 200 Dobson
Units (D.U.) which is the traditional measure of stratospheric ozone.
Normal ozone concentration is about 300 to 350 D.U.

Without the ozone layer, a lot of ultraviolet (UV) radiations from the Sun
would be reaching the Earth's surface, causing untold damage to most
living species. In the 1970s, scientists discovered that chlorofluorocarbons
(CFCs) could destroy ozone in the stratosphere. Ozone is created in the
stratosphere when UV radiation from the Sun strikes molecules of oxygen
(O2) and causes the two oxygen atoms to split apart. If a freed atom bumps

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into another O2, it joins up, forming ozone (O3). This process is known as
photolysis. Ozone is also naturally broken down in the stratosphere by
sunlight and by a chemical reaction with various compounds containing
nitrogen, hydrogen and chlorine. These chemicals all occur naturally in the
atmosphere in very small amounts. In an unpolluted atmosphere there is a
balance between the amount of ozone being produced and the amount of
ozone being destroyed. As a result, the total concentration of ozone in the
stratosphere remains relatively constant.

Causes of Ozone depletion

1) Chlorofluorocarbons (CFCs) - Ozone depletion occurs when the natural

balance between the production and destruction of stratospheric ozone is
disturbed, thereby leading to destruction. Although natural phenomena can
cause temporary ozone loss, chlorine and bromine released from man-
made compounds such as CFCs are now accepted as the main cause of this
depletion. It was first suggested by Dr. M. Molina and Dr. S. Rowland in
1974 that a man-made group of compounds known as the
chlorofluorocarbons (CFCs) were likely to be the main source of ozone
depletion. However, this suggestion was not taken seriously until the
discovery of the ozone hole over Antarctica in 1985. Chlorofluorocarbons
are not "washed" back to Earth by rain or destroyed in reactions with other
chemicals. They simply do not break down in the lower atmosphere and
they can remain in the atmosphere from 20 to 120 years or more. As a
consequence of their relative stability, CFCs are instead transported into
the stratosphere where they are eventually broken down by ultraviolet
(UV) rays from the Sun, releasing free chlorine and bromine. The chlorine
and bromine become actively involved in the process of destruction of
ozone. Compounds containing chlorine and bromine from man-made
compounds are known as industrial halocarbons. Emissions of CFCs have
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accounted for roughly 80% of total stratospheric ozone depletion.
Thankfully, the developed world has phased out the use of CFCs in
response to international agreements to protect the ozone layer. However,
because CFCs remain in the atmosphere so long, the ozone layer will not
fully repair itself until at least the middle of the 21st century. Naturally
occurring chlorine has the same effect on the ozone layer, but has a shorter
life span in the atmosphere.

2) Rocket Launches- The global market for rocket launches may require
more stringent regulation in order to prevent significant damage to Earth’s
stratospheric ozone layer in the decades to come. Future ozone losses from
unregulated rocket launches will eventually exceed ozone losses due to
chlorofluorocarbons, or CFCs, which stimulated the 1987Montreal Protocol
banning ozone-depleting chemicals. As the rocket launch market grows, so
will ozone-destroying rocket emissions. If left unregulated, rocket launches
by the year2050 could result in more ozone destruction than was ever
realized by CFCs.

Effects of ozone layer depletion

1) Effects on Human and Animal Health

Increased penetration of solar radiations (UVA and UVB radiations)
is likely to have profound impact on human health with potential
risks of eye diseases, skin cancer and other infectious diseases. UV
radiation is known to damage the cornea and lens of the eye. Chronic
exposure to UV radiations could lead to pulmonary infections also.
UV-B radiation can adversely affect the immune system causing a
number of infectious diseases. It is likely to cause skin cancer.
Experiments on animals show that exposure to UV rays decrease the

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 immune response to skin cancers, infectious agents and other
antigens.

2) Effects on Terrestrial Plants

The physiological and developmental processes of plants are affected
by UVA and UVB radiations. Scientists believe that an increase in UV
levels would necessitate using more UV tolerant cultivar and
breeding new tolerant ones in agriculture. In forests and grasslands,
increased UV radiations are likely to result in changes in species
composition (mutation) thus altering the bio-diversity in different
ecosystems. UV radiations could also affect the plant community
indirectly resulting in changes in plant form, secondary metabolism,
etc. These changes can have important implications for plant
competitive balance, plant pathogens and bio-geochemical cycles.

3) Effects on Aquatic Ecosystems

While more than 30% of the world’s animal protein for human
consumption comes from the sea alone, it is feared that increased
levels of UV exposure can have adverse impacts on the productivity
of aquatic systems. High levels of exposure to UV radiations in tropics
and subtropics may affect the distribution of phytoplanktons (small
plants that floats near the surface of water and on which sea
creatures feed) which form the foundation of aquatic food webs.
Reportedly a recent study has indicated 6-12% reduction in
phytoplankton production in the marginal ice zone due to increases
in UV radiations. UV radiations, which are caused by depletion of the
ozone layer, can also cause damage to early development stages of
fish, shrimp, crab, amphibians and other animals. One of the most

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 severe effects of depletion of ozone layer is also decreased
reproductive capacity and impaired larval development.

4) Effects on Climate Change

Ozone depletion and climate change are linked in a number of ways.
Atmospheric ozone has two effects on the temperature balance of the
Earth. It absorbs solar ultraviolet radiation, which heats the
stratosphere. It also absorbs infrared radiation emitted by the Earth's
surface, effectively trapping heat in the troposphere. Therefore, the
climate impact of changes in ozone concentrations varies with the
changes in the ozone layer.

International actions against depletion of ozone layer

• The first international action to focus attention on the dangers of

ozone depletion in the stratosphere and its dangerous consequences
in the long run on life on Earth was taken in 1977 when, in a meeting
of 32 countries in Washington D.C., a World plan on action on Ozone
layer with the United Nations Environment Programme (UNEP) as
the coordinator was adopted. As experts began their investigation,
data piled up and in 1985, in an article published in the prestigious
science journal “Nature”, Dr. Farman pointed out that although there
is overall depletion of the ozone layer all over the world, the most
severe depletion had taken place over Antarctica. This is what is
famously called as "the Antarctica Ozone hole". His findings were
confirmed by Satellite observations and he offered the first proof of
severe ozone depletion and stirred the scientific community to take
urgent remedial actions in an International Conference held in
Vienna on 22nd March, 1985. The Vienna Convention or treaty was
agreed upon at the Conference. The treaty's provisions include the
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 international sharing of climate and atmospheric research to
promote knowledge of the effects on the ozone layer. In addition, the
treaty calls for the adoption of international agencies to assess the
harmful effects of depleted ozone and the promotion of policies that
regulate the production of harmful substances that influence
the ozone layer. The Vienna Convention provided the framework
necessary to create regulatory measures for depletion of ozone layer.
The Vienna Convention was followed by the adoption of an
international treaty known as the Montreal Protocol on Substances
That Deplete the Ozone Layer in the year 1987 which was intended
to strengthen the Vienna Convention. Under this Protocol the first
concrete step to save the Ozone layer was taken by immediately
agreeing to completely phase out chlorofluorocarbons (CFCs.)

• Australian Chlorofluorocarbon Management Strategy

It provides a framework for the responsible management and use of

CFCs in Australia. The strategy recognizes some continuing need for
these chemicals in pharmaceutical and laboratory uses, but commits
to their gradual phasing out.

• Environmental Protection (Ozone Protection) Policy2000

This is a Western Australian policy which aims to minimize the

discharge of ozone-depleting substances into the environment, and it
has been extended to cover use of alternative refrigerants. This has
been done to prevent current stocks of ozone-depleting substances
from being released to the atmosphere by tradesmen with
inadequate training and to prevent the operation of equipments
working on systems that contain these substances.

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 • United Nations Environment Programme (UNEP)

The UNEP has published several assessment reports of the

environmental effects of ozone depletion.

• Ozone Protection and Synthetic Greenhouse Gas Management Act

1989 (and associated regulations and amendments)
This Act was passed by the Australian Legislature and it aimed at
meeting its commitments under the Montreal Protocol.

• Ultraviolet index forecast

The Bureau of Meteorology has developed a model to predict the
amount of ultraviolet exposure and the times of day at which it will
occur. It is designed to help people minimize their exposure to
dangerous levels of ultraviolet radiation.

Regulatory Framework in India with respect to depletion of ozone layer

India has enacted comprehensive regulations to control usage of ozone

depleting substances (ODS) in industries so as to avoid shrinking of the
ozone layer which is present about 20 kilometres above the Earth’s surface.

Regulations and Controls relating to Ozone Layer protection have been

issued. The Ozone Depleting Substances (Regulations and Control)
Rules, 2000 have been issued by the Central Government under the
Environment Protection Act, 1986.

Several workshops have been held for small and medium sized enterprises
to disseminate information on ODS phase out and full exemption from
payment of customs and excise duties on goods required to implement ODS
phase-out projects was also provided to such enterprises.

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Financial institutions have drawn a policy not to finance or refinance new
investments carrying ODS technologies.

India has been on the forefront in promoting global efforts to prevent

depletion of the ozone layer which started in early 1970s leading to the
adoption of the Vienna Convention in 1985 and the Montreal Protocol in
1987.

Considering India’s efficient execution of programmes, several Indian

experts have been included in different world bodies to check ozone
depletion.

Global Warming

Global warming refers to the increase in the Earth’s surface temperature

due to accumulation of greenhouse gases that trap heat in the Earth’s
atmosphere. The greenhouse effect is a natural process that warms the
Earth’s surface. The greenhouse effect occurs when gases in Earth's
atmosphere trap the Sun's heat. This process makes Earth much warmer
than it would have been without an atmosphere. The greenhouse effect is
one of the processes that make Earth a comfortable place to live. A
greenhouse is a building with glass walls and a glass roof. Greenhouses are
used to grow plants, such as tomatoes and tropical flowers. A greenhouse
stays warm inside, even during the winter. In the daytime, sunlight shines
into the greenhouse and warms the plants and air inside. The sunlight lies
trapped inside the Greenhouse. At night time, it is colder outside, but the
greenhouse stays pretty warm inside because of the trapped sunlight. The
glass walls of the greenhouse trap the sun's heat. Earth is not actually
inside a greenhouse, but our atmosphere traps the Sun's heat just like the
glass walls of a greenhouse. Gases in the atmosphere, such as carbon
dioxide, trap heat just like the glass roof of a greenhouse. These heat-
trapping gases are called greenhouse gases.

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During the day, the Sun shines through the atmosphere. Atmosphere is the
greenhouse. Earth's surface gets warmed up due to the sunlight. At night,
Earth's surface cools by releasing heat back into the air. But some of the
heat released by the Earth is trapped by the greenhouse gases in the
atmosphere. That is what that keeps our Earth warm and cosy at about 58
14 degrees Celsius, on average. Earth's atmosphere traps some of the sun's
heat, preventing it from escaping back into space at night. Human activities
are changing Earth's natural greenhouse effect. Burning fossil fuels like coal
and oil puts more carbon dioxide into our atmosphere.

If the Earth’s atmosphere did not contain greenhouse gases, the planet
would be too cold to live on. The greenhouse gases form a sort of blanket
around the Earth which absorbs excess energy emitted by the Earth to keep
temperature levels intact. However, if the concentration of these gases
increases, they will absorb more of the outgoing infrared radiation released
by the Earth, leading to an enhanced global warming effect.

NASA (National Aeronautics and Space Administration) has observed

increases in the amount of carbon dioxide and some other greenhouse
gases in our atmosphere. An excess of these greenhouse gases can cause
Earth's atmosphere to trap more and more heat. This causes the Earth to
warm up.

The greenhouse effect is perfectly natural and has always existed since the
Earth took its present form. Without it, the Earth would have been much
colder and would have been subjected to violent fluctuations in
temperature. This would have made the Earth uninhabitable.

More recently, the term greenhouse effect has taken on a new shade of
meaning to refer to an increase in greenhouse gases in the atmosphere
from man-made emissions, which is leading to more of the sun’s heat being
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trapped and the Earth becoming warmer. Human activities are
substantially increasing atmospheric concentrations of greenhouse gases.
Human-made, or anthropogenic, emissions of greenhouse gases will
enhance the greenhouse effect, resulting on average in an additional
warming of the Earth’s surface, or “global warming”. The concentration of
greenhouse gases in the atmosphere has increased significantly over the
last 200 years. Many of the greenhouse gases (carbon dioxide, methane,
nitrous oxide) are produced by both natural and anthropogenic processes

Causes of global warming

The concentration of greenhouse gases, namely the carbon dioxide,

methane, nitrous oxide and certain other heat trapping gases contribute in
a significant manner for the changes that occur in the atmospheric climate.
Carbon dioxide is produced when fossil fuels are burned and with the rapid
depletion of forest cover, the effect of carbon dioxide is further intensified.
Methane and Nitrous oxide are generally used in agricultural practices and
the release of such gases causes certain effects on the lands and the land
use and also the most important, the chlorofluorocarbons (CFCs) and other
gases which have the capacity to trap the heat also account for global
warming, which in turn brings about changes in the climate.

Some examples of activities that contribute to greenhouse gas levels are-

• Burning fossil fuels - oil, gasoline, gas and coal.
• Industrial processes and mining.
• Landfills, septic and sewer systems.
• Agricultural practices, including fertilizer and manure management.
• Land use practices, including deforestation.

International efforts to combat global warming

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1. November 1988- Creation of the Intergovernmental Panel on Climate
Change (IPCC)
Starting in the 1970s, climate science matured, building on advances
in numerical modelling and satellite imaging. But to understand and
prepare for the challenges of climate change, there was a need to
share scientific knowledge beyond borders. That's why, at the G7’s
(The Group of Seven (G-7) is a forum of the world's seven
largest developed economies- France, Germany, Italy, Japan, the United
States, the United Kingdom, and Canada- whose government leaders
meet annually on international economic and monetary issues)request
the United Nations set up the Intergovernmental Panel on Climate
Change (IPCC) in November 1988. The IPCC’s role is to publish
reports that provide a clear and up-to-date picture of the current
state of scientific knowledge relating to climate change.

2. June 1992 – Rio Earth Summit

The international community kicked off the fight against climate
change in June 1992 in Rio de Janeiro, Brazil, at the second Earth
Summit. Following the conference, 166 countries signed the United
Nations Framework Convention on Climate Change (UNFCCC), which
acknowledges humanity’s role in global warming.
3. The United Nations Framework Convention on Climate Change
(UNFCCC), 1992
Concerned by the fact that human activity has been substantially
increasing the atmospheric concentrations of greenhouse gases and
that this may adversely affect the natural ecosystems and
humankind, the United Nations adopted a Framework Convention on
Climate Change at the Rio Conference in 1992.

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4. The Kyoto Protocol
The Kyoto Protocol implemented the objective of the UNFCCC to
reduce the onset of global warming by reducing greenhouse gas
concentrations in the atmosphere to "a level that would prevent
dangerous anthropogenic interference with the climate system"
(Article 2). The Kyoto Protocol applies to the six greenhouse gases
listed in Annex A: Carbon dioxide (CO2), Methane (CH4), Nitrous oxide
(N2O), Hydro fluorocarbons (HFCs), Per fluorocarbons (PFCs),
and Sulphur hexafluoride (SF6).

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 HAZARDOUS AND BIO-MEDICAL WASTES

Hazardous Wastes

Civilization began and developed along riverbanks. Humans lived in

harmony with the nature and everything was manageable during those
days. Development of industries led to a drastic change in everything. By
the end of the nineteenth century, the industrial revolution witnessed the
rising world of consumers. Growth in population began in and around the
industrial areas. This rapid growth of industries generated huge amounts of
hazardous waste that was difficult to manage. Hazardous wastes refer to
those wastes that require treatment before disposal as it contains toxic
materials, which can degrade the environment and affect the health of
humans and animals.

Hazardous Waste Management became a major problem in India due to the

harsh impact which the haphazard disposal of hazardous wastes had on the
environment. The undesirable impacts of these wastes and the vital
potential threats posed to the life and its supporting factors were gradually
recognized. The industrial wastes are considered as highly hazardous as it
contains toxic materials and need special treatment before disposing them.

Section 8 of the Environment Protection Act, 1986 lays down that no

person shall handle or cause to be handled any hazardous substance except
in accordance with such procedure as may be prescribed and after
complying with such safeguards as may be prescribed. Section 3 of the
Environment Protection Act, 1986 also authorises the Central Government
to take measures with respect to the procedures and safeguards for the
handling of hazardous substances.

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Hazardous substance under the Environment Protection Act, 1986 means
any substance or preparation which has such physio-chemical properties
that it is liable to cause harm to human beings, other living creatures, plant,
micro-organism, property or the environment.

In 1989, in exercise of the powers conferred by sections 6, 8 and 25 of the

Environment (Protection) Act, 1986, the Central Government notified the
Hazardous Wastes (Management and Handling) Rules to regulate the
management and handling of hazardous wastes. These rules were
applied to hazardous wastes as specified in the Schedules to the Rules.
According to these Rules, "hazardous waste" means any waste which is of
such physical, chemical, reactive, toxic, flammable, explosive or corrosive
characteristics that it causes danger or is likely to cause danger to health or
environment, whether alone or when in contact with other wastes or
substances. In September 2008, these Rules were superseded by the
Hazardous Wastes (Management, Handling and Transboundary Movement)
Rules, 2008.

Responsibility of the Occupier

The term occupier is defined in Rule 3(q) of the Hazardous Wastes

(Management, Handling and Transboundary Movement) Rules, 2008. The
term “occupier” in relation to any factory or premises means a person who
has control over the affairs of the factory or the premises and in relation to
any hazardous waste, the term “occupier” includes the person in
possession of the hazardous waste. Rule 4 provides for the responsibilities
of the occupier in handling of hazardous wastes. Rule 4 lays down that-

(1) The occupier shall be responsible for the safe and environmentally
sound handling of hazardous wastes generated in his establishment.

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(2) The hazardous wastes generated in the establishment of an occupier
shall be sent or sold to a recycler or re-processor or re-user registered or
authorized under these rules or shall be disposed of in an authorized
disposal facility.

(3) The hazardous wastes transported from an occupier's establishment to

a recycler for recycling or reuse or reprocessing or to an authorized facility
for disposal shall be transported in accordance with the provisions of these
rules.

(4) The occupier or any other person acting on his behalf who intends to
get his hazardous wastes treated and disposed of by the operator of a
Treatment, Storage and Disposal Facility shall give to the operator of a
facility, such information as may be determined by the State Pollution
Control Board.

(5) The occupier shall take all adequate steps while handling hazardous
wastes to-

• prevent contaminants and accidents and limit their consequences on

human beings and the environment; and
• provide persons working on the site with the training, equipments
and the information necessary to ensure their safety.

Rule 5 deals with the grant of authorisation for handling hazardous wastes.
(1) Every person who is engaged in generation, processing, treatment,
package, storage, transportation, use, collection, destruction, conversion,
offering for sale, transfer of the hazardous waste shall be required to obtain
an authorization from the State Pollution Control Board.

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(2) The hazardous waste shall be collected, treated, re-cycled, re-processed,
stored or disposed of only in such facilities as may be authorized by the
State Pollution Control Board for the purpose.

(3) Every person engaged in generation, processing, treatment, package,

storage, transportation, use, collection, destruction, conversion, offering for
sale, transfer of the hazardous waste or every occupier of the facility shall
make an application in Form I to the State Pollution Control Board for
authorization within a period of 60 days from the date of commencement
of these rules. However, if any person has already been authorized under the
provisions of the earlier (1989) Rules, he need not apply until the earlier
authorization expires.

(4) On receipt of the application for the authorization, the State Pollution
Control Board shall conduct an inquiry as it considers necessary and if it is
satisfied that the applicant possesses appropriate facilities, technical
capabilities and equipment to handle hazardous waste safely, the Board
shall grant the authorization in Form 2 to the applicant within 120 days
from the date of receipt of the application. The authorisation so granted
shall be valid for a period of five years and shall be subject to such
conditions as may be laid down therein.

(5) The State Pollution Control Board may refuse to grant any
authorization, but only after giving a reasonable opportunity of being heard
to the applicant.

(6) Every person authorized under these rules shall maintain the record of
hazardous wastes handled by him in Form 3 and prepare and submit to the
State Pollution Control Board, an annual return containing the details
specified in Form 4 on or before 30th June.

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(7) An application for the renewal of an authorization shall be made in
Form 1, before its expiry and the State Pollution Control Board may renew
the authorization after examining each case on merit, but subject to the
condition that there has been no report of violation of the provisions of the
Environment Protection Act, 1986 or the rules made there under or
conditions specified in the authorization.

(8) The occupier or operator of the facility shall take all the steps, wherever
required, for reduction and prevention of the waste generated or for
recycling or reuse and he shall comply with the conditions specified in the
authorization.

(9) The State Pollution Control Board shall maintain a register containing
particulars of the conditions imposed under these rules for management of
hazardous waste, and it shall be open for inspection during office hours by
any person interested or affected or a person authorized by him on his
behalf.

If any person fails to comply with the conditions specified in the

authorisation or with any of the Rules or with any of the provisions of the
Environment Protection Act, 1986, the State Pollution Control Board can
cancel the authorisation or can suspend it for any period of time is it may
deem fit in the interest of the public.

Rules 19 and 20 deal with packaging, labelling, and transport of hazardous

wastes.

According to Rule 19, the occupier or operator of the treatment, storage

and disposal facility or recycler shall ensure that the hazardous wastes are
packaged and labelled, based on the composition in a manner suitable for

244
safe handling, storage and transport as per the guidelines issued by the
Central Pollution Control Board from time to time.

The labelling and packaging shall be easily visible and be able to withstand
physical conditions and climatic factors.

Rule 20 deals with transportation of hazardous wastes.

• The transport of the hazardous wastes shall be in accordance with

the provisions of these rules and the rules made by the Central
Government under the Motor Vehicles Act. 1988 and other guidelines
issued from time to time in this regard.
• The occupier shall provide the transporter with the relevant
information regarding the hazardous nature of the wastes and
measures to be taken in case of an emergency and shall mark the
hazardous wastes containers.
• In case of transport of hazardous wastes for final disposal to a facility
for treatment, storage and disposal existing in a State other than the
State where the hazardous waste is generated, the occupier shall
obtain a ‘No Objection Certificate’ from the State Pollution Control
Board of both the States.
• In case of transportation of hazardous wastes through a State other
than the State of origin or destination, the occupier shall intimate the
concerned State Pollution Control Boards before he hands over the
hazardous wastes to the transporter.

Other provisions contained in the Hazardous Wastes (Management,

Handling and Transboundary Movement) Rules, 2008

The Rules contain 7 Schedules and 15 prescribed Forms. The Rules also
contain provisions relating to-

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 ➢ Procedure for recycling, reprocessing or reuse of hazardous wastes.
➢ Import and Export (Transboundary movement) of hazardous wastes.
➢ Accident reporting and follow-up.
➢ Storage of hazardous wastes.
➢ Utilisation of hazardous wastes.
➢ Appeals.

The Basel Convention on the Control of Transboundary Movements of

Hazardous Wastes and their Disposal, 1989

This Convention is commonly known as the Basel Convention on

Hazardous Wastes, 1989. It was adopted on 22ndMarch, 1989 at a
Conference held in Basel in Switzerland, in response to a public outcry
following the discovery of deposits of toxic wastes imported from abroad in
the 1980s in Africa and other parts of the developing world.

Awakening environmental awareness and corresponding tightening of

environmental regulations in the industrialized world in the 1970s and
1980s had led to increasing public resistance to the disposal of hazardous
wastes – in accordance with what became known as the NIMBY (Not In My
Back Yard) syndrome- and to an increase of disposal costs. This in turn led
some operators to seek cheap disposal options for hazardous wastes in
Eastern Europe and the developing world, where environmental awareness
was much less developed and regulations and enforcement mechanisms
were lacking. It was against this background that the Basel Convention was
negotiated in the late 1980s, and its thrust at the time of its adoption was to
combat the “toxic trade”, as it was termed. The Convention came into force
in 1992. India has signed this Convention.

The Convention requires States to observe the fundamental principles of

environmentally sound waste management (Article 4). A number of
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prohibitions are imposed to ensure that human health and the
environment are protected against the adverse effects of hazardous wastes.
Hazardous wastes may not be exported to a State which is not a party to
the Basel Convention, or to a party having banned the import of hazardous
wastes (Article 4). Parties may, however, enter into bilateral or multilateral
agreements on hazardous waste management with other parties or with
non-parties (Article 11). The Convention also mandates that hazardous
wastes can move across country borders only if the exporting country does
not have the technical capacity or the necessary facilities to discharge the
wastes domestically and the importing country requires the wastes for
recycling or recovery industries.

In India, the Hazardous Wastes (Management, Handling and

Transboundary Movement) Rules, 2008 are framed to give full effect to the
Basel Convention.

Bio-Medical Wastes

Twentieth century is a century of the greatest phenomenon in terms of

growth and development of human existence at an accelerated rate of
change. Intellect and technology could contribute to the immense change
in terms of materialistic wellbeing, economic growth, education, healthcare
etc. At the same time, the same phenomenon could contribute to over
exploitation of resources, pollution, population explosion, ecological
imbalance, conflict and warfare with sophisticated technology, disease and
distress.

Healthcare is an important area of human care. The process of modern

healthcare is also ridden with risk and unhealthy practices. One of this is
Bio Medical Waste generation in treatment of human beings and other
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species. This Bio Medical Waste generation warrants proper Bio Medical
Waste management.

Proper disposal of bio-medical waste is of paramount importance because

of its infectious and hazardous characteristics. Healthcare is vital and
hospitals are considered to be healers and protectors of health and
wellbeing. But the waste generated from treatment and diagnosis can be
hazardous, toxic and even lethal because of their high potential for disease
transmission. The hazardous and toxic materials of health care waste
comprise infectious waste, radioactive material waste and sharp wastes
like scalpels, knifes, needles and blades etc. These materials constitute a
grave risk, if these are not properly treated / disposed or allowed into the
natural environment through Municipal waste. It encourages growth of
various pathogens and vectors and as a result of this, non-hazardous and
non-toxic municipal waste becomes toxic and hazardous and also
jeopardizes the efforts undertaken for the purpose of overall municipal
waste management.

The use of Bio-medical products like syringes, needles, catheters, intra

venous sets, etc. in the country has steadily increased and these pose a
serious threat to environmental pollution. It was to overcome this problem
that the Government of India promulgated the Bio-Medical Waste
(Management and Handling) Rules, 1998 which were published in the
Official Gazette. The Rules were framed by the Ministry of Environment and
Forests (MOEF) - Government of India and these Rules provide uniform
guidelines and code of practice for the whole nation.

These Rules apply to all persons who generate, collect, receive, store,
transport, treat, dispose or handle bio-medical waste in any form. The term
“bio-medical waste” has been defined in Rule 3 clause 5 to mean any waste,

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which is generated during the diagnosis, treatment or immunization of
human beings or animals or in research activities pertaining thereto or in
the production or testing of biological and including categories mentioned
in Schedule I of the Rules.

Rule 4 of the Bio-Medical Waste (Management and Handling) Rules, 1998

lays down that the occupier (a person who has control over the concerned
institution) of an institution generating bio-medical waste shall be
responsible for taking necessary steps to ensure that such waste is handled
without any adverse effect to human health and the environment. Such
institutions include hospitals, nursing homes, clinics, dispensaries,
veterinary institutions, animal houses, pathological laboratories, blood
banks etc.

Rule 5 provides that-

• Bio-medical wastes shall be treated and disposed of in accordance

with Schedule I and in compliance with the standards prescribed in
Schedule V of the Rules.
• Every occupier shall set up the required bio-medical waste treatment
facilities like incinerators, autoclaves, microwave systems for the
treatment of wastes, or, shall ensure the required treatment of
wastes at a common waste treatment facility or at any other waste
treatment facility.

Rule 6 of the Bio-Medical Waste (Management and Handling) Rules, 1998

deals with segregation, packing, transportation and storage of bio-medical
wastes. The Rule provides-

1) Bio-medical waste shall not be mixed with other wastes.

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 2) Bio-medical waste shall be segregated into containers/bags at the
point of generation in accordance with Schedule II prior to its
storage, transportation, treatment and disposal. The containers shall
be labelled.
3) If a container is transported from the premises where bio-medical
waste is generated to any waste treatment facility outside the
premises, the container shall, apart from the label prescribed in
Schedule III (Label for bio-medical waste containers/bags), also carry
information prescribed in Schedule IV (Label for transport of bio-
medical waste containers/bags.)
4) Untreated bio-medical waste shall be transported only in such
vehicles as may be authorised for the purpose by the competent
authority as specified by the Government.
5) No untreated bio-medical waste shall be kept stored beyond a period
of 48 hours. However, if for any reason it becomes necessary to store
the waste beyond such period, the authorised person must take
permission of the prescribed authority and take measures to ensure
that the waste does not adversely affect human health and the
environment.
6) The Municipal body of the area shall continue to pick up and
transport segregated non-bio-medical solid waste generated in
hospitals and nursing homes, as well as duly treated bio-medical
wastes for disposal at municipal dump site.

******The prescribed authority for enforcement of the provisions of

these Rules shall be the State Pollution Control Boards in respect of
States and the Pollution Control Committees in respect of the Union
Territories.

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According to Rules 10 and 11, every person handling bio-medical wastes
must maintain records relating to the generation, collection, reception,
storage, transportation, treatment, disposal and/or any form of handling of
bio-medical waste. He shall also submit an annual report to the prescribed
authority by 31st January every year. The Annual Report shall include
information about the categories and quantities of bio-medical wastes
handled during the preceding year. The prescribed authority shall send this
information in a compiled form to the Central Pollution Control Board by
31st March every year.

Rule 12 states that if any accident occurs at any institution or facility or any
other site where bio-medical waste is handled or during transportation of
such waste, the same shall be reported immediately in a prescribed form to
the prescribed authority.

Rule 13- Any person aggrieved by any order made by the prescribed
authority under these rules may file an appeal to the State Government
within 30 days from the date on which the order is communicated to him.

Rule 14 lays down that the Municipal Corporations shall be responsible for
providing suitable common disposal/incineration sites for the biomedical
wastes generated in the area under their jurisdiction and in areas outside
the jurisdiction of any municipal body, it shall be the responsibility of the
occupier generating bio-medical waste to arrange for suitable sites
individually or in association, so as to comply with the provisions of these
rules.

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Case laws

a) Dr. Shiva Rao Wagle Vs. Union of India (The Irish Butter Case)

In this case, the Petitioner approached the Supreme Court for an

order directing the stoppage of import of Irish butter into India. The
petitioner wanted the Court to issue an appropriate order restraining
the Respondent from importing any milk or milk products, and
butter in particular, from Ireland. The Petitioner argued that any food
article imported from the countries in Europe, including Ireland, after
the Chernobyl disaster in Russia contained traces of radioactive
substances and so, its consumption by Indians would be harmful in
the long-term. A Committee of 3 experts appointed by the Court,
however, found the butter to be safe for human consumption after
taking into consideration the report of the Atomic Energy Regulatory
Board. The standards laid down by this board for permissible
radioactivity in dairy products was much stricter than the Boards of
most other countries. This was one of the reasons for the high degree
of reliance placed by the S.C. on the report of this Board. Therefore,
no directions were issued by the S.C. to ban the import of Irish Butter
into India.

b) Research Foundation for Science Vs. Union of India

In this case, the S.C. observed that approximately 2000 tonnes of

hazardous wastes are generated in India every day. The S.C.,
therefore, issued directions to ensure performance of their duties by
the State Governments, State Pollution Control Boards and other
authorities.

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c) Almitra Patel Vs. Union of India

The S.C. praised a Bangalore based NGO’s Swaccha Bangalore Scheme

involving separation of recyclable waste and hazardous waste at
source by means of door-to-door collection by municipal workmen
and private contractors and the S.C. observed that this scheme should
serve as a role model for other cities in India, and in particular, Delhi.

d) U.P. State Electricity Board Vs. District Magistrate, Dehradun

In this case, a person died after coming in contact with a high-tension

wire which was hanging at a low height. The argument advanced by
the respondent was that “electricity” could not be regarded as a
hazardous substance. Since electricity has no hazardous chemical or
physio-chemical properties, it cannot fall within the definition of
“hazardous substance” under the Environment Protection (Act),
1986. However, the Court rejected this argument and held that
electricity was “hazardous” as it can injure and even kill people if not
handled properly. Since electricity contains electrons which are small
particles with negative electric charge and other physio-chemical
properties, it is also a “substance.” Hence, electricity was held to be a
“hazardous substance.”

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 LAW RELATING TO WILD LIFE PROTECTION

The rapid decline of wild animals and birds in India has been a cause of
grave concern. Some wild animals and birds have already become extinct in
the country and others are in danger of being so. Areas which were once
brimming with wild life have become devoid of it and even in Sanctuaries
and National Parks the protection afforded to wild life needed to be
improved. The Wild Birds and Animal Protection Act, 1912 was one of the
first laws passed with respect to wildlife protection. But this law became
completely outdated. It provided punishments which were not
proportionate with the offence. An urgent need for introducing a
comprehensive legislation, which would provide protection to wild animals
and birds, was felt. But the Union Legislature, i.e. the Parliament did not
have the power to make a law in this regard as this was a subject matter
contained in Entry 20 of the State list in the Seventh Schedule of the
Constitution of India. However, in accordance with Article 252 of the
Constitution, the legislatures of the States of Andhra Pradesh, Bihar,
Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, Manipur, Punjab,
Rajasthan, Uttar Pradesh and West Bengal passed resolutions empowering
the Parliament to pass the necessary legislation on the subject. Accordingly
Wild Life (Protection) Bill was introduced in the Parliament and the same
was passed by both the Houses of the Parliament in 1972 as the Wild Life
(Protection) Act, 1972.

Subsequently, in 1976, the 42nd Constitutional Amendment Act caused the

transfer of certain entries in the State List to the Concurrent List. These
entries were-
• Forests- Entry 17A
• Protection of wild animals and birds- Entry 17B and

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 • Population control and family planning- Entry 20A.

The Wild Life (Protection) Amendment Bill, 2013 was introduced in the
Rajya Sabha for stricter enforcement of laws to protect wild life. The bill
sought to further amend the Wild Life (Protection) Act, 1972. The 1972 Act
has already undergone various amendments.

The Constitution of India imposes a duty on both the State and the citizens
to conserve and preserve wild life. The Directive Principle of State Policy
contained in Article 48A of the Constitution of India provides that the State
shall endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country. Likewise, Article
51A(g) of the Constitution of India imposes a fundamental duty on the
citizens that- it shall be the duty of every citizen of India to protect and
improve the natural environment, including forests, lakes, rivers and
wild life, and to have compassion for living creatures.

Keeping the above in mind, the Wild Life (Protection) Act, 1972 envisages
the appointment of a Director of Wild life Preservation at the central level
and a Chief Wild life Warden at the state level. The Act provides for the
National Board for Wild Life and likewise, a State Board for Wild Life is also
constituted in each State.

Definitions
1) Animal article- means an article made from any captive animal or wild
animal, other than vermin, and includes an article or object in which the
whole or any part of such animal has been used, and ivory imported into
India and an article made from ivory.

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2) Taxidermy- means the preserving of an animal's body via mounting or
stuffing, for the purpose of display or study.

3) Protected area- means a National Park, a sanctuary, a conservation

reserve or a community reserve notified under the Act.

4) Trophy- means the whole or any part of a wild animal which has been
kept or preserved by natural or artificial means.

5) Uncured trophy- means the whole or any part of a wild animal which has
not undergone the process of taxidermy. It includes freshly killed wild
animals or their products.

6) Hunting- includes
(a) killing or poisoning of any wild animal or captive animal and every
attempt to do so;
(b) capturing, coursing, snaring, trapping, driving or baiting any wild or
captive animal and every attempt to do so;
(c) injuring or destroying or taking any part of the body of any such animal
or,
(d) in the case of wild birds or reptiles, damaging the eggs of such birds or
reptiles, or disturbing the eggs or nests of such birds or reptiles.

7) Sanctuary- means an area declared as a sanctuary by notification under

Section 18 or Section 38 of this Act.
8) National Park- means an area declared as a national park by notification
under Section 35 or Section 38 of this Act.

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 Authorities under the Wild Life (Protection) Act, 1972
Chapter II of the Act, comprising sections 3 to 8, deals with the authorities
to be appointed or constituted under the Act. According to Section 3, the
Central Government may appoint-
(a) A Director of Wild life Preservation;
(b) Assistant Directors of Wild life Preservation; and
(c) Such other officers and employees as may be necessary.

The Assistant Directors of Wild life Preservation and the other officers and
employees shall be required to assist the Director of Wild life preservation.
Section 4 of the Act also provides for the appointment of a Chief Wild Life
Warden; Wild life Wardens; One Honorary Wild life Warden in each
district; and such other officers and employees as may be necessary.

Constitution of the National Board for Wild Life- Section 5A, a new
section inserted by the Wild life (Protection) Amendment Act, 2002.

According to Section 5A of the Amendment Act, the Central Government

shall constitute a “National Board for Wild Life.” The Prime minister
shall be the Chairperson, the Minister-in-charge of Forests and Wild life
shall be the Vice-Chairperson and the Director of Wild life Preservation
shall be the Member-Secretary of the Board.

Functions of the National Board

(1) It shall be the duty of the National Board to promote the conservation
and development of wild life and forests by such measures as it thinks fit.
(2) Framing policies and advising the Central Government and the State
Governments on the ways and means of promoting wild life conservation

257
and effectively controlling poaching and illegal trade of wild life and its
products;
(3) Making recommendations on the setting up of and management of
national parks, sanctuaries and other protected areas and on matters
relating to restriction of activities in those areas;
(4) Carrying out or causing to be carried out impact assessment of various
projects and activities on wild life or its habitat;
(5) Reviewing from time to time, the progress in the field of wild life
conservation in the country and suggesting measures for improvement
thereto; and
(6) Preparing and publishing a status report at least once in two years on
wild life in the country.

Constitution of the State Board for Wild Life- Section 6, a new section
inserted by the Wild life (Protection) Amendment Act, 2002.

According to Section 6 of the Amendment Act, the State Government shall

constitute a “State Board for Wild life.” The Chief Minister of the State
shall be the Chairperson, the concerned State’s Minister-in-charge of
Forests and Wild life shall be the Vice-Chairperson and the Chief Wild life
Warden shall be the Member-Secretary of the Board.

Functions of the State Board

It shall be the duty of the State Board for Wild Life to advise the State
Government on the following matters-
i) in the selection and management of areas to be declared as protected
areas;

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ii) in formulation of policies for protection and conservation of the wild life
and specified plants;
iii) the measures to be taken for harmonising the needs of the tribal and
other dwellers of the forest with the protection and conservation of wild
life; and
iv) in any other matter connected with the protection of wild life, which
may be referred to it by the State Government.

Powers of the Chief Wild Life Warden

1) Hunting of wild animals to be permitted in certain cases.
2) Restriction on entry in Sanctuary
3) Taking charge of dead wild animals.
4) Powers of inspection, entry, search
and seizure and arrest without warrant
5) Taking over possession of any wild animal article, trophy or uncured
trophy there of Captured or hunted in contravention of the act or
found dead.

Hunting of wild animals

Section 9 of the Wild Life (Protection) Act, 1972 provides for the
prohibition of hunting of wild animals except when permission is granted
to hunt in certain cases and for special purposes as provided in Sections 11
and 12 respectively.
Section 2 (16) of the Act defines “hunting.” The word “hunting” includes-
(a) killing or poisoning of any wild animal or captive animal and every
attempt to do so;
(b) capturing, coursing, snaring, trapping, driving or baiting any wild or
captive animal and every attempt to do so;

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(c) injuring or destroying or taking any part of the body of any such animal
or,
(d) in the case of wild birds or reptiles, damaging the eggs of such birds or
reptiles, or disturbing the eggs or nests of such birds or reptiles.

According to Section 9, no person shall hunt any wild animal specified in

Schedules I, II, III and IV of the Act, except as provided in Sections 11 and
12 of the Act.
In State of Bihar Vs. Murad Ali Baig, the S.C. held that since elephant is an
animal which is included in Schedule I, hunting of elephants is prohibited.

Hunting of wild animals which are dangerous (Section 11)

If the Chief Wild Life Warden is satisfied that-
• any wild animal specified in Schedule I has become dangerous to
human life or it is so disabled or diseased as to be beyond recovery,
• any wild animal specified in Schedule II, Schedule III, or Schedule IV,
has become dangerous to human life or to property (including
standing crops on any land) or is so disabled or diseased as to be
beyond recovery;
he may, by an order in writing and stating the reasons therefor, permit any
person to hunt such animal or cause such animal to be hunted.

However, the Act prohibits the killing of animals until all possible options
of capturing, tranquilising and translocating the animal have been
exhausted. The process of capture or tranquilisation or translocation of
such animal shall be made in such a manner as to cause minimum trauma
to the said animal. No such captured animal shall be kept in captivity unless
the Chief Wild Life Warden is satisfied that such animal cannot be

260
rehabilitated in the wild and the reasons for the same are recorded in
writing.

Section 11 also provides that it is not an offence to kill an animal in good

faith if it is done in self-defence, i.e. in defence of oneself or any other
person. In Tilak Bahudar Rai Vs. State of Arunachal Pradesh, it was to be
decided as to whether or not the accused acted in good faith when he killed
a wild animal. The Court held that the nature and ferocity of the animal are
relevant factors which must be taken into consideration. In this case, the
accused shot down a tiger that charged at him. It was held that the killing
was in good faith and in self-defence and was therefore justified.
Any wild animal killed or wounded in defence of any person shall be
Government property. The person killing or wounding such an animal in
good faith cannot stake a claim on such an animal.

Hunting of wild animals for scientific research and education (Section 12)
Section 12 of the Act authorises the Chief Wild Life Warden to issue permits
in writing to any person entitling him to hunt any wild animal mentioned in
the permit. Such a permit shall be issued only by stating the reasons for the
same.
The hunting may be permitted for the purposes of-
• education,
• scientific research,
• scientific management, i.e. translocation of animals to a suitable
habitat or population management
• collection of specimens for recognized zoos or for museums and
similar institutions; and
• derivation, collection or preparation of snake-venom for the
manufacturing of life-saving drugs.

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Permit may be issued for the above stated purposes only on the payment of
prescribed fees and may be subject to such conditions as may be specified
therein.

Protection of specified plants

A new Chapter was inserted into the Act by the 1991 Amendment for the
protection of specified plants. As per the provisions of the Act, no personal
shall wilfully pick, uproot, damage destroy, collect, possess, sell, transfer or
gift any specified plant. Special permission can be given by the Chief Wild
Life Warden to pick, uproot, acquire or collect any specified plant for the
purpose of educations, scientific research, collection, preservation and
display in any scientific institution.

Protected areas (Sanctuaries and National Parks)

Chapter IV of the Wild Life (Protection) Act, 1972 deals with the powers of
the State Government to declare any area as a ‘Sanctuary’ or as a ‘National
Park.’

Declaration of Sanctuaries
According to Section 18 of the Act, the State Government may, by a
notification, declare its intention to constitute an area as a “sanctuary” if it
considers that such area is of adequate ecological, faunal, floral, natural or
zoological significance, for the purpose of protecting, propagating or
developing wild life or its environment. However, the State Government
shall not have the power to declare an area in a reserved forest as a
‘sanctuary.’

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Appointment of Collector and his powers
Within 30 days from the date of the issue of notification, the State
Government shall appoint an officer to act as Collector, who shall inquire
into and determine the existence, nature and extent of rights of any person
in or over the land comprised within the limits of the sanctuary.

Within 60 days from the date of the issue of notification, the Collector shall
publish a proclamation in the regional language in every town and village
and in the neighbouring area- (a) specifying, as nearly as possible, the
situation and the limits of the sanctuary; and (b) requiring any person, who
is claiming any right over the land, to prefer a written claim before the
Collector in the prescribed form, specifying the nature and extent of such
right with necessary details and the amount and particulars of
compensation, if any, claimed by that person.
After the claims are filed, proper inquiries shall be made by the Collector
and then he shall pass an order, either admitting the claim or rejecting it
completely or partly. The Collector shall, as far as possible, complete the
above-mentioned proceedings within a period of 2 years from the date of
notification of declaration of sanctuary under Section 18.

After all the claims are disposed of by the Collector, the State Government
shall issue a notification specifying the limits of the area comprised within
the sanctuary and in such notification, the State Government shall declare
that the said area as a “sanctuary” on and from the date which is specified
in the notification.

Restriction on entry in sanctuary

The Wild Life (Protection) Act, 1972 restricts the entry of persons into a
sanctuary. According to Section 27 of the Act, no person shall enter or

263
reside in the sanctuary without a permit except the following classes of
persons-
a) a public servant on duty;
b) a person who has been permitted by the Chief Wild Life Warden or
the authorised officer to reside within the limits of the sanctuary;
c) a person who has any right over any immovable property within the
limits of the sanctuary;
d) the dependants of the person referred to in clause (a), clause (b) or
clause (c), shall enter or reside in the sanctuary, except under and in
accordance with the conditions of a permit granted; and
e) a person passing through the sanctuary along a public highway.

Every person who resides in the sanctuary shall be bound—

(a) to prevent the commission of an offence in the sanctuary;
(b) where there is reason to believe that any such offence under 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 it’s remains
until the Chief Wild Life 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 Wild Life. Warden, Wild Life 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.

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Grant of permit
A permit to enter or reside in a sanctuary can be granted to any person by
the Chief Wild Life Warden for any of the following purposes-
a) investigation or study of wild life;
b) photography;
c) tourism;
d) transacting any lawful business with a person residing in the sanctuary.

In Tarun Bharat Sangh Vs. Union of India, the petitioner was a voluntary
organization interested in protecting the environment. It approached the
court complaining of the widespread illegal mining activities going on in
the area declared as a sanctuary in the State of Rajasthan (Sariska Tiger
Park.) Sanctuaries are protected areas. It prayed that in the interest of
ecology, environment and rule of law, the activities should stop. It was
alleged that there were notifications issued by the State Government
prohibiting all mining activities in such an area. But still the State
Government had granted hundreds of licences for mining marble, dolomite
and other materials and this was contrary to law.

The Court appointed a committee to ensure due observance of the various

notifications that had been issued in respect of the sanctuary. The
committee stated that there were 215 mines functioning within the area
declared as sanctuary.

The court emphasized that this was a case involving severe destruction of
the ecology and environment. It is the duty of the State Government to
ensure that the environment and ecology of the sanctuaries are preserved.
The court observed that no mining lease could have been granted or
renewed within the sanctuary. It concluded that the mining activity was

265
illegal and it had to stop though this would have the effect of bringing to
halt the activity involving a good amount of capital and a large number of
workers. But on account of the inherent illegality attached to them, there
was no option, but to close them.

Declaration of National Park

Like the provisions of Section 18 relating to declaration of a sanctuary by

the State Government, Section 35 of the Act provides for the declaration of
a National Park by the State Government. Thus, whenever the State
Government feels that an area, either within a sanctuary or not, is of such
ecological, faunal, floral, geomorphological or zoological association or
importance that it is needed to protect or propagate its environment or
develop wild life in them, the State Government may, by a notification,
declare its intention to constitute such an area as a “National Park.”

When any area is declared as a national park, the provisions and

procedures relating to appointment of collector, publication of
proclamation, filing of claims by interested persons, investigation of claims
and disposal of claims with respect to declaration of sanctuary shall apply
in case of declaration of a national park. After all the claims have been
disposed of and all the rights relating to the areas proposed to be included
in the national park have vested in the State Government, the State
Government shall issue a notification specifying the limits of the area to be
included in the national park and in such notification, the State Government
shall declare that the said area as a “national park” on and from the date
which is specified in the notification.

Destroying, exploiting or removing any wild life and forest produce

from a national park is prohibited. In other words, in comparison with a
266
sanctuary, a national park is highly restricted and no human activity of any
sort is permitted in a national park. Basically, wildlife sanctuaries refer
to an area which provides protection and favourable living conditions to the
wild animals. Whereas, national park provides protection to the entire
set of the ecosystem, i.e. flora, fauna, landscape, etc. of that region.

Declaration of Sanctuaries or National Parks by the Central Government

Just as how the State Governments have the power to notify and control
sanctuaries and national parks, the Central Government also has a similar
power. According to Section 38 of the Act, if the State government leases or
transfers any area under its control to the Central Government, the Central
Government may declare such an area as a sanctuary or national park by
way of a notification. In such cases, the powers and duties of the Chief Wild
Life Warden of the State Government may be exercised and discharged by
the Director of Wild Life Preservation of the central Government.

Central Zoo Authority and Recognizing/licensing of zoos

Section 38-A provides for the constitution of a body called the Central Zoo
Authority by the Central Government. This section was inserted by the
1991 Amendment. The Central Zoo Authority shall consist of-
➢ a chairperson,
➢ not more than 10 members, and
➢ a member secretary.

Functions of the Central Zoo Authority

1) specify the minimum standards for housing, upkeep and veterinary
care of the animals kept in a zoo;
2) evaluate and assess the functioning of zoos with respect to the
standards or the norms as may be prescribed;

267
 3) recognise or derecognise zoos;
4) identify endangered species of wild animals for purposes of captive
breeding and assigning responsibility in this regard to a zoo;
5) co-ordinate the acquisition, exchange and loaning of animals for
breeding purposes;
6) identify priorities and themes with regard to display of captive
animals in a zoo;
7) co-ordinate training of zoo personnel in India and outside India;
8) provide technical and other assistance to zoos for their proper
management and development on scientific lines;
9) perform such other functions as may be necessary to carry out the
purposes of this Act with regard to zoos.

The 1991 Amendment also provides for the recognition of existing zoos by
the Central Zoo Authority and issuing of license to new zoos by the Central
Zoo Authority.

Recognition of existing zoos

Zoos which were already in existence and which were functioning at the
time of 1991 Amendment shall apply to the Central Zoo Authority for
recognition within 18 months from the date on which the 1991
Amendment came into force.

Licensing of new zoos

If a zoo is to be established for the first time, the approval of the Central
Zoo Authority is necessary. An application for approval shall be made to the
Central Zoo Authority in a prescribed manner and with prescribed fees.
The approval may be granted subject to conditions which must be followed
by the applicant while operating the zoo.

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The recognition or license shall be granted only if the Authority is satisfied
that such recognition and license should be granted keeping in mind the
interests of protection and conservation of wild life. Even after the
recognition or license is granted by the Central Zoo Authority, the same
may be suspended or cancelled after giving the person operating the zoo a
reasonable opportunity of hearing. An appeal with respect to the above-
mentioned processes may be made before the Central Government.

No zoo shall acquire, sell or transfer any wild animal or captive animal
except with the previous permission of the Central Zoo Authority.
The 1991 Amendment also provides that no person shall litter the zoo or
tease, annoy, injure or feed animals in the zoo or cause any disturbance to
the animals in the zoo by noise or otherwise. Such acts are punishable with
imprisonment up to 6 months or with fine up to Rs. 2000/- or with both.

In Nitin Waha Vs. Union of India, the hand of a child who was watching a
tigress in a zoo was grabbed by the animal through the wide gap in the
railings of the cage. The child was seriously injured. The Delhi High Court
expressed its dissatisfaction over the Central Zoo Authority pointing out
that it was the duty of the Central Zoo Authority to ensure that animals in
the zoo are kept in such a way that they do not cause any damage or injury
to the visitors. A sum of Rs. 500000/- was granted as compensation to the
aggrieved party.

In Navin Raheja Vs. Union of India, the S.C. was shocked to come across a
report stating that tigers were skinned in a zoo in Andhra Pradesh. The
Court held that voiceless animals in captivity has the right to be protected
by the zoo and not tortured or killed. It was the duty of the zoo to look after
the animals in the zoo. The S.C. summoned the chairperson of the Central

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Zoo Authority to appear before the Court in person and to explain the steps
taken by the Central Zoo Authority to protect and preserve the tiger
population in zoos all over India.

Trade and Commerce in wild animals, animal articles and

trophies
Section 39 states that every wild animal other than a vermin, which is
hunted or which is kept captive or which is found dead or which is killed by
mistake shall be the property of the State Government. Also, every animal
article derived from the above-mentioned or ivory imported into India or
any article made from such ivory or every vehicle, weapon or tool which
has been used for committing an offence under this Act shall be the
property of the State Government. If the above-mentioned is found in a
sanctuary or national park declared by the Central Government, the same
shall be the property of the Central Government.

If any such government property comes into the possession of any person,
the person shall report it to the nearest police station within 48 hours or he
may be required to hand over the same to the officer-in-charge of the police
station. No person shall acquire, keep in his custody/possession, sell, gift or
transport such a property without the prior permission of the Chief Wild
Life Warden.

According to Section 40 of the Act, every person having the control, custody
or possession of any captive animal specified in Schedule I or Schedule II of
the Act or animal article, trophy or uncured trophy derived from such
animal or dried skins of such animal or the musk of a musk deer or the
horn of a rhinoceros shall declare to the Chief Wild Life Warden or the

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authorised officer the number and description of the animal, or article and
the place where such animal or article is kept.

A person must acquire the prior written permission of the Chief Wild Life
Warden if he wishes to receive, keep, sell, gift or transport any of the
following-
i)any animal specified in Schedule I or Part II of Schedule II or
ii)any article derived from such animals or meat derived from such animal,
or the dried skins of such animal or
iii)the musk of a musk deer or
iv) the horn of a rhinoceros.

Offences and Penalties

If the Chief Wild Life Warden or any authorised officer or any forest officer
or any police officer not below the rank of a sub- inspector has reasonable
grounds for believing that any person has committed an offence under this
Act, he may-
• require any such person to produce for inspection any captive
animal, wild animal, animal article in his control, custody or
possession;
• stop any vehicle or vessel in order to conduct search or inquiry or
enter upon and search any premises, land, vehicle or vessel, in the
occupation of such person, and open and search any baggage or other
things in his possession;
• seize any captive animal, wild animal, animal article, or any specified
plant in respect of which an offence under this Act appears to have
been committed.

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Any person who, without reasonable cause, fails to produce anything,
which he is required to produce under this section, shall be guilty of an
offence against this Act.

The court can also order the cancellation or suspension of any permit or
license issued to the offender under this Act.

If any person contravenes any provision of this Act or any rule or order
made under this Act or if any person commits a breach of any of the
conditions of any licence or permit granted to him under this Act, he shall
be punished with imprisonment for a term which may extend up to 3 years
or with fine which may extend up to Rs. 25,000/- or with both.

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 LAW RELATING TO PROTECTION OF FORESTS

“For in the true nature of things, if we rightly consider, every green tree is
far more glorious than if it were made of gold and silver”.
- Martin Luther King

Forests are a vital component to sustain the life support system on the
earth. Forests in India have been dwindling over the years for a number of
reasons, one of it being the need to use forest area for development
activities including economic development since British times. Hence, for
retention of natural environment and maintenance of ecological balance,
the protection and conservation of forests is essential. Realising the
importance of forests and being conscious of the role that law has to play in
the protection and conservation of forests, the Parliament passed the 42 nd
Constitutional Amendment Act in 1976. This amendment of the
Constitution inserted Article 48A into the Constitution as a Directive
Principle of State Policy and Article 51A(g) as a Fundamental Duty.

Article 48A- The State shall endeavour to protect and improve the
environment and to safeguard the forests and wild life of the country.

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

When the Constitution of India was enacted, “Forests” and “Protection of

wild animals and birds” were entries in the State List thereby giving
exclusive jurisdiction to the State Legislatures to enact laws on these
subjects. However, the 42nd Constitutional Amendment Act, 1976 shifted

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these entries to the Concurrent List. Thus, today, both the Centre as well as
the States can make laws relating to these subjects. In case of a conflict
between the laws made by the Centre and the States, the Central law or the
Union law will prevail (Article 254 of the Constitution.)

The first legislation with respect to forest management was enacted in the
year 1868. This Act empowered the British government to demarcate the
valuable tracts of forests required for running large network of Indian
railways. The Indian Forest Act, 1878 was passed and this Act adopted a
flexible approach by allowing the customary use of forests by the Indian
villagers based on “privilege” and not as a “right.” It is important to note
that the motive of the colonial government was to acquire the resourceful
lands, i.e. the forests, which were commonly used by masses. Never was
conservation of forests even their remotest of the objectives.

The Indian Forest Act, 1927

To further consolidate laws relating to forests, to regulate transit of

forest produce and to levy duty on timber and other forest produce, the
Indian Forest Act, 1927 was enacted. These were some of the objects of the
Indian Forest Act, 1927. The Act took a step forward to make the forest
laws more effective and improve the Indian Forest Act, 1878.

The term “forest-produce” has been define in Section 2 of the Act as

including–
(a) timber, charcoal, wood-oil, resin, natural varnish, bark, lac; and
(b) trees and leaves, flowers and fruits, and all other parts or produce of
trees, plants not being trees (including grass, creepers, reeds and moss),
and all parts or produce of such plants, wild animals and their skins, tusks,

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horns, bones, silk, cocoons, honey and wax, and all other parts or produce
of animals, and rock and minerals (including lime-stone, mineral oils, and
all products of mines or quarries.)

Categories of forests under the Indian Forest Act, 1927

1)Reserved Forests
According to Section 3 of the Act, the State Government is empowered to
constitute any forest land or waste land which is the property of the
Government as a “reserved forest.” This is done by the State Government
by issuing a notification in the Official Gazette. The notification must-
• declare that it has been decided by the State Government to
constitute a particular land as a reserved forest,
• specify, as far as possible, in an accurate manner, the limits and
boundaries of such land, and
• appoint an officer called the “forest settlement officer” to inquire into
and determine any claims made by any person over such land or over
any produce of such land and to deal with such claims.

The Forest Settlement Officer shall issue a proclamation in the local

language in every town and village in the neighbourhood of the land
specifying the limits of the proposed reserved forest, the consequences of
such area being declared as a reserved forest and fixing a date within which
any person can appear before the officer or give a written notice to the
officer stating that he has a right over the land, the nature of his right and
the compensation, if any, claimed by him. At least 3 months from the date of
issue of proclamation must be granted for making such a claim.

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On receipt of claims, the forest settlement officer shall carry on the
necessary inquiry and hear the persons. On completion of these-
• he shall exclude the land from the category of reserved forest, or
• he shall arrive at an agreement with the person for surrender of his
rights, or
• he shall dismiss the claim and proceed to acquire the land as under
the Land Acquisition Act, 1894.

After all the claims have been disposed of by the officer and if the land is
acquired, the State Government shall publish a notification in the Official
Gazette, specifying definitely, the limits of the forest which is to be
reserved, and declaring the same to be reserved from a date fixed by the
notification.

Section 26 of the Act lays down a list of activities prohibited in a reserved

forest.
• trespasses or pastures cattle, or permits cattle to trespass;
• causes any damage by negligence in felling any tree or cutting or
dragging any timber;
• fells, girdles, lops, or burns any tree or strips off the bark or leaves
from, or otherwise damages the same;
• quarries stone, burns lime or charcoal;
• collects or removes, any forest-produce;
• clears or breaks up any land for cultivation or any other purpose;
• hunts, shoots, fishes, poisons water or sets traps or snares.
In State of U.P. Vs. District Judge, Bijnor, a notification was issued by the
State Government for declaring a particular area as a reserved forest in the
district of Bijnor (Uttar Pradesh) through which river Ramganga passed
and as a consequence fishermen claimed before the forest settlement
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officer that they had fishing rights in that river as customary rights. The
plea of the fishermen was accepted by the forest settlement officer. Against
this the Government invoked Article 226 and the question was whether or
not fish is a forest produce. The Court held that fish is a natural produce of
ponds, water channels, lakes or rivers and these may be situated within the
forest too. Therefore, fish has to be treated as forest produce for the
purposes of the Act and the Forest Settlement Officer has jurisdiction to
grant fishing rights in favour of the fishermen of the village.

2) Protected Forests
Protected forest refers to a 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. Such forest-land and waste-lands
are notified by the State Government in the Official Gazette as “protected
forest.” Such a notification shall be made by the State Government after due
enquiry is made into the nature and extent of the rights of the Government
and of private persons, if any, in or over such land, and after such details
have been recorded.

It may be noted that a protected forest is not a reserved forest.

3) Village Forests
Section 28 of the Act states that the State Government may assign the
reserved forests to any village community and such forests shall be
called as village forests. Assignment of reserved forests means
assignment of rights of the State Government over the reserved forests. The
assignment may also be cancelled by the State Government. It is also
provided in S. 28 that the State Government may make rules for regulating
the management of such village forests.

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 The Forest (Conservation) Act, 1980

Realising the dangers of ecological imbalance and environmental

deterioration caused by severe deforestation, the Forest (Conservation) Act
was passed in 1980. The Act consists of only 5 sections and it is one of the
smallest Acts passed by the Parliament of India. The two major provisions
contained in the Forest (Conservation) Act, 1980 are as follows-

i) The State Government shall not take away the status of reserved forests
and shall not permit the use of any forest land for non-forest purposes
without the prior approval of the Central Government.

ii) The Central Government may constitute an advisory committee (Forest

Advisory Committee) to advise the Central Government on whether or not
to grant the approval stated above and also to advise the Central
Government on any other matter relating to conservation of forests.

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 The Environment (Protection) Act, 1986

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

growing concern of the State on the widespread pollution in the country,
loss of vegetation and biological diversity, excessive concentrations of
harmful substances in the atmosphere and in food chains, growing risks of
environmental accidents and threats to survival of living beings.

The Preamble of the Act states that the Act was passed to implement the
decisions taken at the United Nations Conference on Human environment
(Stockholm Conference) in June 1972. However, the Act was passed in
India much later, i.e. in 1986. On account of this delay in enacting the law,
many observers are of the view that this statute was a legislative reaction
to the Bhopal gas tragedy which occurred in 1984.

The aims and objects of the Environment (Protection) Act, 1986 are as
follows-
i) To implement the decisions taken at the UN Conference on Human
Environment, 1972.
ii) To enact a general or umbrella law on environment protection and to fill
in the gaps in the other environment laws such as the Forest Act, 1927, the
Water Act, 1974, the Air Act, 1981.
iii) To give the widest possible powers to the Central Government to take
measures to protect and improve the environment.
iv) To constitute authorities which shall exercise the powers and perform
the functions of the Central Government.
v) To provide deterrent punishments for persons who violate the
provisions of the Act and thereby endanger the environment, public health
and safety.

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 DEFINITIONS

i) Environment- includes water, air and land and the inter-relationship

which exists between water, air and land, and human beings, other living
creatures, plants, microorganism and property.

ii) Environmental pollutant- means any solid or gaseous substance present

in the environment in such concentration that may be injurious to the
environment.

iii) Environmental pollution- means the presence of any environmental

pollution in the environment.

iv) Handling- in relation to any substance, means the manufacture,

processing, treatment, package, storage, transportation, use, collection,
destruction, conversion, offering for sale, transfer of such substance.

v) Hazardous substance- means any substance or preparation which is of

such chemical or physio-chemical properties that it is liable to cause harm
to human beings, other living creatures, plants, micro-organisms, property
or the environment.

vi) Occupier- in relation to any factory or premises, occupier means a

person who has control over the affairs of the factory or the premises and
as far as any substance is concerned, occupier means the person who is in
possession of the substance.

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 GENERAL POWERS OF THE CENTRAL GOVERNMENT

1) Powers of the Central Government to take measures to protect and

improve the environment (Section 3)
The Central Government has the power to take all measures which it
considers necessary for protecting and improving the quality of the
environment and for preventing, controlling and abating any form of
environmental pollution. Following are some of the measures that may be
taken by the Central Government to protect and improve the environment-
i) co-ordination of actions by the State Governments, officers and other
authorities relating to environment protection;
ii) planning and execution of nation-wide programmes for the prevention,
control and abatement of environmental pollution;
iii) laying down standards for the quality of environment in its various
aspects;
(iv) laying down standards for emission or discharge of environmental
pollutants from various sources;
(v) restriction of areas in which any industries, operations or processes or
class of industries, operations or processes shall not be carried out or shall
be carried out subject to certain safeguards;
(vi) laying down procedures and safeguards for the prevention of accidents
which may cause environmental pollution and remedial measures for such
accidents;
(vii) laying down procedures and safeguards for the handling of hazardous
substances;
(viii)examination and inspection of such manufacturing processes,
materials and substances which are likely to cause environmental
pollution;
(ix) carrying out and sponsoring investigations and research relating to
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problems of environmental pollution;
(xi) establishment or recognition of environmental laboratories and
institutes to carry out the functions entrusted to such environmental
laboratories and institutes under this Act;
(xii) collection and dissemination of information in respect of matters
relating to environmental pollution;

2) Power of the Central Government to appoint officers (Section 4)

The Central Government is empowered to appoint officers for the purposes
of the Act. Necessary powers and functions shall be conferred on such
officers by the Central Government. These officers shall be under the
control and directions of the Central Government.

3) Power of the Central Government to give directions (Section 5)

The Central Government has the power under this section to issue written
directions to any person, officer and such a person or officer shall be bound
to comply with such directions. The directions may be relating to –
• closure/stoppage of any industry, factory or operation; or
• stoppage of the supply of electricity, or water supply or any other
service.

In Pravinbhai Patel Vs. State of Gujarat, the Gujarat High Court held that the
Government is the custodian of environment and its power under Section 5
is coupled with a duty to exercise such power whenever the need arises.

In Mahabir Soap Factory Vs. UOI, a soap factory was situated in a thickly
populated area in Orissa. The factory was discharging untreated effluents
into a near by water body and was thus, polluting that water body. The
Central Government directed it to close down. The factory contended that it
was not given a personal hearing in the matter. The court rejected this

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contention and upheld the direction of the Government. The court stated
that it was not always necessary to grant a personal hearing to a party.
Personal hearing can be avoided in case of grave injury being caused to the
environment. If an opportunity was given to the party to file objections in
writing, it was sufficient considering the health hazard that was being
caused to living beings.

4) Power of the Central Government to make rules (Section 6)

The Central Government may make rules with respect to the following
matters-
• the standards of quality of air, water or soil for various areas;
• the maximum permissible limits of the presence of various
environmental pollutants, including noise, for different areas;
• the prohibitions and restrictions on handling hazardous substances
in certain areas;
• the procedures and safeguards for preventing environmental
accidents and providing for remedial measures if such accidents are
caused.

PREVENTION, CONTROL AND ABATEMENT OF

ENVIRONMENTAL POLLUTION

i) Persons carrying on industry operation, etc., not to allow emission or

discharge of environmental pollutants in excess of the standards(Section 7)

A person carrying on any industry, trade, factory or operation shall ensure

that he is not emitting or discharging any environmental pollutant in excess
of the standards prescribed by the Central Government. The Central
Government has framed the Environment (Protection) Rules, 1986. The

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standards of emissions have been prescribed by the Central Government in
these rules.

ii) Persons handling hazardous substances to comply with procedural

safeguards (Section 8)
A person who handles any hazardous substance shall comply with the
procedures and safeguards prescribed by the central Government. These
procedures and safeguards are prescribed in the Hazardous Wastes
(Management and Handling) Rules, 1989.

iii) Furnishing information (Section 9)

If any discharge is made in any factory, industry or operation in excess of
the standards prescribed or if any such discharge is expected to be made,
the person in charge of such factory, industry or operation shall take every
step to remove or prevent such discharge and that person shall
immediately inform officers appointed by the Central Government about
the same. On receiving such information, the officers shall provide
assistance to the concerned person in remedying the situation. The
expenses for the same shall be borne by the concerned person.

iv) Power of entry and inspection (Section 10)

Any person authorised by the Central Government shall have the right to
enter any place at all reasonable times with such assistance as he considers
necessary for the following purposes-
a) to perform any function which the Central Government has entrusted to
him;
b) to determine whether or not the provisions of this Act, or any notice,
order or direction given or issued under this Act is being complied with;

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c) to examine and test any equipment, industrial plant, record, register,
document or any other material object;
d) to seize any equipment, industrial plant, record, register, document or
other material object to prevent or mitigate environmental pollution;
e) to search any area in which an offence under this Act is believed to have
been committed.

The provisions of the Code of Criminal Procedure shall apply to such search
or seizure.

v) Power to take samples (Section 11)

Any person authorised by the Central Government may take samples of air,
water, soil or any other substance from any factory, industry, premises or
any other place for the purpose of analysis. The following procedure shall
be followed while taking the sample. Failing to follow the prescribed
procedure will make the result of such analysis inadmissible in evidence in
any legal proceedings.

➢ The person taking the sample shall serve a notice, then and there,
upon the occupier.
➢ The person shall collect the sample in the presence of the occupier.
➢ The collected sample shall be placed in a container and the same shall
be sealed and signed by the concerned officer and the occupier.
➢ The sealed container shall be immediately sent to the laboratory
established by the Central Government (explained below.)

vi) Power to set up Environmental Laboratories and to appoint

Government Analysts (Section 12)
The Central Government may, by notification in the Official Gazette,
(a) establish one or more environmental laboratories;

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(b) recognise one or more laboratories as environmental laboratories.

The environmental laboratories shall carry out the functions entrusted to

them by the Central Government under this Act.

The Central Government may, by notification in the Official Gazette, appoint

or recognise such persons as it thinks fit and having the prescribed
qualifications as Government Analysts for the purpose of analysis of
samples of air, water, soil or other substance sent for analysis to any
environmental laboratory.

Offences and Penalties

According to Section 15, whoever fails to comply with or whoever

contravenes any of the provisions of this Act, or any rules or orders or
directions made or issued under this Act shall be punishable with
imprisonment for a term which may extend up to 5 years or with fine
which may extend up to Rs. 100000, or with both.

Effect of other laws

Section 24 states that the provisions of this Act and the rules or orders
made under this Act shall have effect even if it is inconsistent with the
provisions contained in any other Act. In other words, the provisions of the
Environment (Protection) Act, 1986 shall prevail over all the other
environmental laws.

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 PUBLIC LIABILITY INSURANCE ACT, 1991

The Bhopal gas leak at the plant of the Union Carbide Corporation in 1984
and the Oleum gas leak at the Shriram fertilizer plant in 1985 were
industrial accidents that shook the entire world and reminded us that poor
and innocent persons who are neither the employees nor workmen of
these plants have no speedy and effective remedy in such cases. It was a
moment of awakening for the law-makers of India who finally decided to
enact the Public Liability Insurance Act in 1991. This Act was passed to
provide immediate relief to common persons affected by accidents
occurring while handling any hazardous substance. It casts an obligation on
every owner of the industry, factory or operation involving hazardous
substances that before they commence to handle any hazardous substance,
they shall obtain a public liability insurance policy.

The insurance cover is available to an owner of an industry, factory or

operation involving hazardous substances with respect to the following
activities-

▪ Manufacturing, processing, treatment of any hazardous substance;

▪ Packaging of any hazardous substance;
▪ Storage of any hazardous substance;
▪ Transportation of any hazardous substance by vehicle;
▪ Use, collection, destruction, conversion of any hazardous substance.

The term hazardous substance has been defined under the Environment
(Protection) Act, 1986.

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Who can apply for claim/relief under this act?

1) The person who has sustained the injury,

2) The owner of the property to which the damage has been caused,

3) The legal representatives of the deceased, in case of death occurred as a

result of the accident,

4) The authorized agent of the above-mentioned persons.

Section 3 of the Public Liability Insurance Act, 1991 states that when death
or injury is caused to any person (other than a workman) or damage to any
property of any person has resulted from an accident, the owner shall be
liable to give such relief as is specified in the Schedule for such death, injury
or damage.

Liability of the owner shall include-

1) Reimbursement of medical expenses actually incurred;
2) Fatal accidents- compensation to the legal representatives and
reimbursement of medical expenses;
3) Permanent injury- total or partial;
4) Loss of wages due to temporary injury;
5) Damage to private property.

The above relief is to be granted on the basis of the principle of “no fault
liability”, i.e. the claimant need not establish/prove that the death, injury or
damage was caused due to any wrongful act, neglect or default of any
person.

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Section 4 of the Act makes it obligatory on the part of the owner of an
industry, factory or operation involving hazardous substances to take out,
before he starts handling any hazardous substance, one or more insurance
policies whereby he is insured against the liability to grant relief under
Section 3. Such insurance policies must be renewed by the policy holder
from time to time as long as the handling of hazardous substances continue.

Application for claiming relief under the Act

Section 5- When it comes to the notice of the Collector that an accident has
occurred while handling any hazardous substance at any place within the
limits of his jurisdiction, he shall verify the occurrence of such accident and
notify publicly that applications for claim of reliefs may be made.

According to Section 6, the applications for claim of relief shall be made to

the Collector and shall be in a prescribed form. It shall contain such
particulars and shall be accompanied by such documents as may be
prescribed.

An application for claim of relief shall be made within 5 years of the

occurrence of the accident.

Award of relief by the Collector

Section 7- On receipt of an application under Section 6, the Collector shall
give a notice of the application to the owner of the industry, factory or
operation where the accident occurred. The parties are given an
opportunity of being heard. The Collector shall hold an inquiry into the
claim or claims, and may make an award determining the amount of relief
which appears to him to be just and specifying the person or persons to
whom such amount of relief shall be paid.

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The Collector shall ensure that the copies of the award are delivered to the
parties concerned as soon as possible, but within a maximum period of 15
days from the date of the award.

When an award is made by the Collector directing the owner to pay

compensation, he shall deposit that amount within 30 days of the date of
announcement of the award. The deposit shall be made by him in the
Environmental Relief Fund established by the Central Government under
Section 7A of the Public Liability Insurance Act, 1991.
If the owner against whom the award is made fails to deposit the amount of
compensation specified in the award within 30 days, such amount shall be
recoverable from the owner as arrears of land revenue or of public
demand.

Offences and Penalties

Section 14 of the Act lays down that if the owner does not take out
insurance policies or does not renew them from time to time, he shall be
punishable with imprisonment for a term of at least 1 year and 6 months
which may extend up to 6 years or with fine of at least Rs. 100000 or with
both.

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 THE CONCEPTS OF STRICT LIABILITY AND ABSOLUTE
LIABILITY

Strict Liability

The concept of strict liability was introduced in the late nineteenth century.
It has been evolved from the concept of negligence. Negligence refers to a
breach of duty to take reasonable care and caution. It involves carelessness.
There is a duty of care towards others and breach of such duty may result
in damage or injury to such others. The general rule of law of torts is that if
there is negligence on the part of the defendant, he/she shall be liable to
compensate the plaintiff for the damage/injury caused due to his/her
negligence. But under strict liability, the defendant is held liable
irrespective of the presence of any negligence on his part.

The rule of strict liability was laid down in the year 1868. According to this
rule any person keeping any hazardous substance on his premises would
be held liable if that substance escapes from there and causes
harm/injury/damage to others. At that point in time whether or not the
defendant had taken due care, whether or not he was negligent would be
irrelevant. Under this principle, the person would be held liable even if he
had taken proper care and caution.

The rule of strict liability was applied, for the first time, in the case
of Rylands Vs. Fletcher in 1868. In this case, Fletcher, in order to improve
his water supply, constructed a reservoir on his land by employing reputed
engineers as independent contractors. There was a negligence on the part
of contractors that they did not seal/cover the mine shafts which they came
across while constructing the reservoir. A burst of the reservoir resulted in

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water flooding into the adjoining plaintiff’s coal mine resulting in severe
damage to the mines of the plaintiff. The plaintiff in this case was Rylands.
He sued Fletcher (the defendant) for damages. Justice Blackburn
introduced the rule of strict liability and held that the defendant was liable
for the damage caused to the plaintiff’s mine even though there was no
negligence or fault on his part. The rule of strict liability states that “the
person who, for his own purpose, brings on his land and collects and keeps
anything on his land which is likely to do mischief if it escapes, such a
person keeps it at his own risk; and he shall be prima facie answerable for
all the damage caused as a result of the natural consequence of its escape.

In simple words, strict liability means that the defendant will be held liable
even though there was no negligence or ‘fault’ on his part. Thus, this
liability was a ‘No fault liability’. It does not matter if the defendant had
intended to cause such damage or not.

The principle of strict liability shall be applied if the

following requirements are fulfilled-

1. Some dangerous thing must have been brought by a person on his

land- It is necessary that the thing brought on the land is dangerous.
A dangerous thing is defined as something which poses an
exceptionally high risk to the neighbouring property such as
electricity, vibrations, explosives etc.
2. It must be non-natural use of land- It is the unusual use of land which
amounts to special hazards, judged by the standards appropriate at
the relevant place and time such as constructing a water reservoir.
3. The thing brought or kept by the person must escape- It is essential
that the thing causing damage must escape into the area outside the
occupation or control of the defendant such as the escape of

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 extremely dangerous wild dogs from an individual’s property in the
locality.
4. The damaged caused should have been foreseen by the defendant-
Foreseeability of damage by the defendant is essential in order to
enable the plaintiff to claim damages under the rule of strict liability.
Eg- accidents in a cracker factory is very much foreseeable by the
owner as well as workers of the factory.

Exceptions to the rule of strict liability

Under the rule of strict liability, certain defences are available to the
defendant. The defendant may make use of any of such defences to escape
from the rule of strict liability. These defences are exceptions to the rule of
strict liability.

1) Plaintiff’s own fault

If the plaintiff suffers damage as a result of his own fault, then the
defendant shall not be held liable under the rule of strict liability. If the
plaintiff suffers damage/injury/harm by his own intrusion into the
defendant’s property, then he has no right to complain about the damage so
caused. In the case of Ponting Vs. Noakes, the horse of the plaintiff died
because of nibbling the leaves of poisonous trees planted on the
defendant’s land. It was held that the horse intruded into the defendant’s
property and ate the leaves and therefore defendant was not held liable for
under the rule of strict liability.

2) Act of God (Vis Major)

When an incident occurs due to an unforeseeable event which human
beings cannot control, then in such circumstances, a person cannot be held
liable for any damage caused to the other person due to such event. In the
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case of Nichols Vs. Marsland, the defendant made artificial lakes on his
land. That year, there was unusually heavy rains which had never occurred
in the human history. Due to such heavy rains, the nearby lakes got flooded
and this caused damage to plaintiff’s adjoining property. It was held that
the defendant cannot be made liable under the rule of strict liability as the
event that caused the damage to the plaintiff’s property was unforeseen
and the defendant had no control over it.

3) Consent of the plaintiff

Where the plaintiff has voluntarily consented to suffer the harm for the
common benefit of both, himself and the defendant, then the defendant
shall not be held liable. If the plaintiff has voluntarily given consent to
install a dangerous object or thing on the defendant’s land, then, the
defendant shall not be held liable for any damage/injury caused to the
plaintiff. Eg. A water tank kept for the common benefit of both the plaintiff
and the defendant.

4) The malicious act of the third party

If an injury/damage is suffered by the plaintiff without the fault of the
defendant but, due to the fault of some third party, who was neither
defendant’s servant nor was in any relation with the defendant, then under
such circumstances the defendant will not be held liable. In the case of Box
Vs. Jabb, there was an overflow of water from the defendant’s reservoir,
thereby causing damage/injury to the plaintiff. It was found that the
overflow which happened was due to the malicious act of blocking of drain
by a stranger i.e. a third party. The defendant was not held liable under the
strict liability rule.

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5) Statutory authority

This means a power or authority given by law to do a particular act. If the

defendant does an act in exercise of any power under a statute, he shall not
be liable under the rule of strict liability.

Absolute Liability
The rule of absolute liability was developed from the rule of strict liability.
Absolute liability is a kind of liability which evolved in India in the case of
M.C. Mehta Vs. Union of India (popularly known as the Oleum Gas Leak
case.) Under this rule of liability, the defendant shall not be allowed to
plead any defence as he could under the rule of strict liability in the case of
Rylands Vs. Fletcher. Under strict liability, the defendant has an
opportunity of escaping from his liability by claiming some defences. But,
under absolute liability, the defendant is held absolutely liable for his
wrong doing. This would mean that no relaxation/defence shall be
available to the defendant. The liability of the defendant under absolute
liability is more when compared to strict liability. Strict liability provides
for certain defences to the defendant to get exemption from the liability.
But, absolute liability does not provide for any defence and the defendant
cannot escape from the liability.

Strict liability= Liability irrespective of negligence with some defences

Absolute liability= Liability irrespective of negligence without any defences

The rule of Absolute Liability was evolves in 1987 by P.N. Bhagwati, the
then Chief Justice of Supreme Court, in M.C. Mehta Vs. Union of India. There
are two leading cases in India of poisonous gas leak disaster, which led to
the formulation of the principle of absolute liability. These are-

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1) Union Carbide Corporation Vs. Union of India (popularly known as the
Bhopal Gas Leak Disaster or the Bhopal Gas Tragedy); and

2) M.C. Mehta Vs. Union of India (popularly known as the Oleum Gas Leak
Case)

Union Carbide Corporation Vs. Union of India

(popularly known as the Bhopal Gas Leak Disaster or the Bhopal Gas Tragedy)

A massive leak of toxic Methyl Isocyanate (MIC) gas occurred during the
night of 2nd December, 1984, at the Bhopal plant of Union Carbide, India,
Ltd. The Union Carbide India Ltd. was the Indian subsidiary of Union
Carbide Corporation (UCC). Union Carbide Corporation was a New York
corporation with headquarters in Danbury, Connecticut. The Indian
government reported a death of about 2260 persons. Out of these, around
1,600 of them were killed as a direct result of the deadly gas leak, while the
remaining died because of the fatal effects of the gas over the next several
months. The number of persons who were seriously injured was about
30,000- 40,000 and the Indian Government received around 500000 leak-
related claims. Lingering effects of this gas leak included shortness of
breath, eye irritation, and depression. However, the number of deaths and
injured reported is far less that the number of persons that actually were
dead and injured.

The Government of India, in order to ensure that the claims arising out of
the disaster were dealt with properly and speedily, proclaimed an
ordinance titled “The Bhopal Gas Leak Disaster (Processing of Claims) Act,
1985.” On behalf of the victims, a suit was filed in the U.S.A. District Court,
New York by the Government of India. Similarly, several petitions were

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filed by the victims and the legal representatives of the deceased. The U.S.A.
District Court dismissed all the petitions on the ground “forum non
conveniens”, i.e. the suits can be more conveniently tried elsewhere (in this
case- in India.)

The Union of India filed a suit against the Union Carbide Corporation
(U.C.C.) in the District Court of Bhopal claiming 3.3 billion US dollars
(approx. 3900 crores) as compensation. The District Court of Bhopal
ordered U.C.C. to pay 270 million U.S. dollars (approx. 350 crores) as an
interim relief to the victims. The Union Carbide Corporation filed an appeal
against this order before the High Court of Madhya Pradesh. The High
Court of Madhya Pradesh reduced the amount of compensation payable by
the U.C.C. from 350 crores to 250 crores.

A further appeal was filed by the U.C.C. in the Supreme Court. The Supreme
Court ordered Union Carbide to pay US $470 million against all the
destruction that the leak of gas from the industrial premise. It was stated
by the court that it was the duty of the court to secure immediate relief to
the victims of the gas leak. The ‘polluters pay principle’ decided the
quantum of compensation to be US $470 Million. However, this amount of
US $ 470 Million was way less than the amount promised as compensation
by the government and also various jurists considered it to be an
inappropriate compensation. After analysing the ratio, it seemed that an
amount less than Rs. 50,000 was delivered to each victim.

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 M.C. Mehta Vs. Union of India
(popularly known as the Oleum gas leak case or the Shri Ram Foods And
Fertilizer Industries case)

Shriram Food and Fertilizers was a subsidiary of Delhi Cloth Mill Limited. It
was a privately-owned company which manufactured caustic chlorine and
oleum. All its units were set up in a single complex situated in thickly
populated colonies of Delhi. This industry, on account of the chemical
processes carried out by it, was a polluting industry and was creating a
nuisance for the surrounding community of people. To address this issue a
public interest litigation was filed by environmentalist and lawyer, M.C.
Mehta, requesting the Supreme Court for the immediate closure and
relocation of the industrial complex.

One month after the PIL was filed, another worst industrial mishap in the
history of mankind occurred on 4th December, 1985. It was exactly a day
after the first anniversary of the Bhopal Gas Tragedy. Oleum gas had leaked
from the industrial plant into the surrounding community resulting in the
death of one person and injuries to several.

Since the tragedy at Bhopal was fresh in the public’s mind, there was a
strong outcry over this incident and this resulted in some drastic steps
which were taken by the administration. The Inspector of Factories and the
Assistant Commissioner of Factories issued orders to shut down the plant
under the Factories Act, 1948. The industry responded by filing a writ
petition to nullify the two orders and to obtain permission for interim
opening of its caustic chlorine plant manufacturing process.

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On behalf of the gas leak victims, the Delhi Legal aid and Advice Board and
the Delhi Bar Association filed a suit for compensation along with the
original petition of M.C. Mehta.

Judicial proceedings

1) Charges against Shriram Food and Fertilizers and objections raised

The articles of the Indian Constitution under which the petitioners moved
the Supreme Court were Article 21, Article 32 and an extension of Article
12.

2) Application of the rule of Absolute Liability

Considering that Shriram Food and Fertilizers was in the business of

manufacture and handling of hazardous substances which are injurious to
public health, the burden of taking preventive measures and exercising
caution is entirely upon them. The court evolved a new rule of liability
known as the rule of absolute liability. This rule was applied against
Shriram Food and Fertilizers.

The S.C. cited the case of Rylands Vs. Fletcher in 1868. The rule of strict
liability evolved in this case stated that that a person who for his own
purpose brings 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,
he is prima facie liable for the damage caused. The liability under this rule
is strict, but subject to certain defences.

But in this case, the S.C. evolved a new principle of liability which the
English Courts had not thought of- the principle/doctrine of absolute
liability. If an enterprise is engaged in a hazardous or inherently dangerous
activity which poses a potential threat to the health and safety of the
persons working in the factory and residing in the surrounding areas, such

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an enterprise owes an absolute and non-delegable duty to the community
to ensure that no harm is caused to anyone on account of the hazardous or
inherently dangerous nature of the activity which it has undertaken. The
enterprise shall be under an obligation to ensure 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 enterprise must be absolutely liable to compensate for
such harm and no defences shall be available to such an enterprise. It held
Shriram Foods and Fertilizer industry responsible for all the damages and
it was held liable to pay compensation.

3) Setting up of an Inquiry Commission

Responding to the petition filed by Shriram Food and Fertilizers requesting

the opening of the undamaged caustic chlorine plant, the Supreme Court
appointed two expert committees- the Manmohan Singh Committee and
the Nilay Choudhary Committee. The committees were formed by the court
to obtain a scientific and objective overview on the situation. Three
mandates were issued by the S.C. to the committees.

• Whether or not the caustic chlorine plant can be reopened as it is

without any modifications?
• The possible measures which can be taken to prevent any excessive
pollution or accidents in the future.
• The safety devices which are installed in the complex and the devices
that exist in the market which can be installed to prevent another
tragedy.

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4) Findings and recommendations of the committees

The committees set up by the Supreme Court to investigate the possibility

of safely opening and operating the Shriram Caustic chlorine plant made
several startling findings such as –

• Old and worn out machinery was being used in the plant, thereby
paving way for another accident.
• Indifference of the management towards the safety, worker
awareness and accident training.
• Lack of safety equipments, such as fire extinguishers, rubber gloves,
masks, etc.

Both the committees- the Manmohan Singh committee and the Nilay
Choudhary committee, on inspection of the plant, made many suggestions
to the management of the Shri Ram Foods and Fertilizer industry.

• Shri Ram Foods and Fertilizer industry was asked to deposit a sum of
Rs. 30,000 to meet the travel, boarding and other expenses of the
committees.
• One operator must be specifically designated responsible for each
safety device.
• The Chief Inspector was directed to inspect the factory at least once a
week.
• The Central Pollution Control Board was asked to depute an
inspector to inspect the plant once a week to ensure that it was in
compliance with the effluent and emission standards laid down
under the Air Act and the Water Act.
• The management of Shri Ram Foods and Fertilizer industry was
asked to furnish an undertaking that in case of any future leak or
accident which may result in death or damage, the management will

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 be personally responsible for the same and compensation shall be
paid within one week of the accident.
• A worker’s safety committee must be constituted.
• Training and making aware of all the labourers of the plant via audio
visual programmes.
• Installation of loudspeakers to alert the neighbouring communities
on the event of a chlorine gas leak from the plant.
• Shri Ram Foods and Fertilizer industry shall ensure that the workers
are using safety equipments and the workers shall be provided
regular health check-ups.

Judgement of the Supreme Court

The Supreme Court delivered its judgement on the 19th December, 1986.
The rule of absolute liability was applied and Shri Ram Foods and Fertilizer
industry was held responsible for the accident and was ordered to pay
compensation to the victims. The court also instructed Shri Ram Foods and
Fertilizer industry to comply with all the recommendations of the Nilay
Choudhary and Manmohan Singh Committees and issued a strict notice
that failure to do so will result in the immediate closure of the plant. The
court ordered the relocation of the various plants of the Shri Ram Foods
and Fertilizer industry out of Delhi. The court also instructed the victims of
the Oleum gas leak to file their claims for compensation in the Tis Hazari
lower court of Delhi.

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 National Environment Tribunal Act, 1995

The 2nd law enacted by the Parliament with the provision of ‘no-fault’
liability is the National Environment Tribunal Act, 1995. This Act was
passed in order to give effect to the Rio Declaration which was issued at the
United Nations Conference on Environment and Development (the Rio
Conference.) The Rio Declaration provides for the liability of the states to
compensate the victims of pollution and other environmental damages.
India had participated in this conference.

The main objectives of this Act are-

i) to provide for strict liability for damages arising out of any accident
occurring while handling any hazardous substance;
ii) for the establishment of a National Environment Tribunal for effective
and expeditious disposal of cases arising from such accident;
iii) to give relief and compensation for damages caused to persons,
property and the environment.

Liability to pay compensation in certain cases on the basis of the principle

of ‘no-fault liability’

Section 3 of the Act lays down that if death or injury is caused to any person
(other than a workman) or if damage is caused to any property or
environment from an accident, the owner shall be liable to pay
compensation for such death, injury or damage. The person claiming the
compensation need not prove that the death, injury or damage was caused
due to any wrongful act, neglect or default of any person.
If the death, injury or damage is caused by the combined or resultant effect
of several activities, operation and processes, and not due to any individual

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activity, the National Environment Tribunal may apportion the liability for
compensation amongst those responsible for such activities, operations
and processes on an equitable basis.

Application for claim for compensation

Section 4 provides that an application for claim for compensation may be

made before the National Environment Tribunal-

• by the person who has sustained the injury;

• by the owner of the property to which the damage has been caused;
• where death has been caused, by all or any of the legal
representatives of the deceased;
• by any agent duly authorised by such person or owner of such
property or all or any of the legal representatives of the deceased, as
the case may be;
• by any representative body or Organisation, functioning in the field
of environment and recognised in this behalf by the Central
Government.

Every application made to the Tribunal for claiming compensation shall

contain the prescribed particulars and shall be accompanied by the
prescribed documents and fee.

An application for compensation must be made within 5 years of the

occurrence of the accident.

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Composition of the National Environment Tribunal

Section 9- The Tribunal shall consist of a Chairperson and such number of

Vice-Chairpersons, judicial members and technical members as the Central
Government may deem fit.

Term of office

Section 12- The Chairperson, Vice-Chairpersons and other members shall

hold office for a term of 5 years from the date on which they enter upon
their office, but shall be eligible for re-appointment for another term of 5
years.

The Chairperson, Vice-Chairperson or other member shall not continue to

hold office after he has attained-

(a) in the case of the Chairperson, the age of 70 years;

(b) in the case of the Vice-Chairperson, the age of 65 years; and

(c) in the case of any other Member, the age of 62 years.

Resignation and removal

The Chairperson, Vice-Chairperson or other member may resign from his

office by addressing a notice in writing under his hand to the President.

The Chairperson, Vice-Chairperson or any other member shall be removed

from his office only after an inquiry by an order made by the President on
the ground of proved misbehaviour or incapacity.

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Procedure of the National Environment Tribunal
On receipt of an application claiming compensation under section 4 of the
National Environment Tribunal Act, 1995, the Tribunal shall carry out an
inquiry as it may deem fit and then it may reject the application.

Where the Tribunal does not reject the application, the Tribunal shall give
notice of the application to the owner of the plant or factory or industry in
which the accident took place. Both the parties are given an opportunity of
being heard and an inquiry into the claim shall be conducted. After this, the
Tribunal shall make an Award determining the amount of compensation
which appears to be just and shall also specify in the Award the person or
persons to whom such amount of compensation shall be paid.

While carrying out the above-stated procedures, the Tribunal shall not be
bound by the procedures laid down by the Code of Civil Procedure, 1908. It
shall be guided by the principles of natural justice. The Tribunal shall have
power to regulate its own procedures including the fixing of places and
times of its inquiry.

When the Tribunal has ordered payment of compensation to the victims,

the amount of compensation shall be remitted to the Environmental Relief
Fund constituted under the Public Liability Insurance Act, 1991.

Section 24 of National Environment Tribunal Act, 1995 lays down that an

appeal shall lie against any award of the Tribunal to the Supreme Court.

The appeal shall be made within 90 days from the date of the Award.

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 The National Environmental Appellate Authority Act, 1997

As Environment degradation increased in India due to many environmental

disasters and industrialisation, the Parliament of India felt the need for
setting up special courts- environmental courts to look into the matters
relating to environmental degradation. The National Environmental
Appellate Authority Act, 1997 provides for the establishment of a National
Environment Appellate Authority to hear appeals with respect to
restriction of areas in which any industries, operations or processes or
class of industries, operations or processes shall not be carried out or
shall be carried out subject to certain safeguards under the
Environment (Protection) Act, 1986.

Establishment of the National Environmental Appellate Authority

The National Environmental Appellate Authority has been constituted

under Section 3 of the National Environmental Appellate Authority Act,
1997 by the Central Government with its head office in Delhi. Section 4
requires that the National Environmental Appellate Authority shall consist
of a Chairperson, a Vice-Chairperson and such other members not
exceeding 3, as the Central Government may deem fit.

The Chairperson, the Vice-Chairperson and the members of the National

Environmental Appellate Authority shall be appointed by the President.
The Chairperson, Vice-Chairperson or Member shall hold office for a term
of 3 years from the date on which such person enters upon his office.
However, they shall be eligible for reappointment for another term of 3
years.

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The functioning of the National Environmental Appellate Authority can be
better appreciated when the rationale behind the creation of the National
Environmental Appellate Authority is examined. The Environment
(Protection) Act, 1986 (EPA) was enacted to implement the decisions taken
at the United Nations Conference on the Human Environment held at
Stockholm in June 1972, in which the Government of India participated.
However, the EPA did not itself set up a special adjudicatory mechanism to
decide cases involving environmental pollution. The decision to grant
environmental clearance is invariably that of the State and Central
Government. A need was felt to create a forum for questioning these
decisions. In the environment impact assessment (EIA) notification issued
under the EPA, a detailed procedure has been outlined whereby public
hearings are expected to be conducted for addressing the objections that
may be raised by communities and individuals to the grant of
environmental clearance to a project. Till the National Environmental
Appellate Authority Act came into force, there was no forum other than the
High Court or the Supreme Court where such EIA clearance could be
challenged. It is on account of this reason that the National Environmental
Appellate Authority Act was enacted by the Parliament of India.

Jurisdiction and powers of the National Environmental Appellate Authority

Section 11 of the National Environmental Appellate Authority Act, 1997

states that if any person is aggrieved by an order of the State Government
or of the Central Government granting environmental clearance in the
areas in which any industries, operations or processes or class of
industries, operations and processes shall not be carried out or shall be
carried out subject to certain safeguards, such an aggrieved person may

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prefer an appeal before the National Environmental Appellate Authority
within 30 days from the date of the order.

On receipt of an appeal, the National Environmental Appellate Authority

shall give the appellant and the respondent an opportunity of being heard
and then it shall pass such orders, as it thinks fit. The National
Environmental Appellate Authority shall dispose of the appeal within 90
days from the date of filing the appeal.

Section 12- The National Environmental Appellate Authority shall not be

bound by the procedures laid down in the Code of Civil Procedure, 1908,
but it shall be guided by the principles of natural justice and subject to the
other provisions of this Act and to any rules made by the Central
Government. The National Environmental Appellate Authority shall have
power to regulate its own procedures including the fixing of places and
times of its inquiry and deciding whether to sit in public or in private.

For the purposes of discharging its functions under this Act, the National
Environmental Appellate Authority shall have the same powers as those
which are vested in a civil court under the Code of Civil Procedure, 1908,
while trying a suit, namely-
(a) summoning and enforcing the attendance of any person and examining
him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) requesting for any public record or document or copy of such record or
document from any office.

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Section 19- If any party fails to comply with any order made by the National
Environmental Appellate Authority, he shall be punishable with
imprisonment for a term which may extend up to 7 years, or with fine
which may extend up to 100000 rupees, or with both.

An overview of the provisions of the National Environmental Appellate

Authority Act show that the National Environmental Appellate Authority
was intended by Parliament to be an effective independent judicial
authority which would review the EIA decisions of the State and Central
Government. The National Environmental Appellate Authority’s
functioning has been far from satisfactory. Since the year 2000 it did not
have a Chairperson and since 2005 it did not have any Vice Chairperson.
Very limited reliefs have been provided to the affected people. The poor
functioning of the NEAA was dealt by the Delhi High Court in the case Vimal
Bhai Vs. Union on India. The National Environmental Appellate Authority
Act came into force on 26th March 1997 and its first Chairperson was
Justice N. Venkatachalam, a retired Judge of the Supreme Court. There was
hardly any awareness in the initial years of the constitution of the National
Environmental Appellate Authority and appeals were seldom filed.

The National Environmental Appellate Authority Act was repealed and the
National Environmental Appellate Authority was replaced by National
Green Tribunal (NGT) established in 2010 under the National Green
Tribunal Act, 2010.

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 National Green Tribunal

The National Green Tribunal (NGT) was established on 18th October, 2010
under the National Green Tribunal Act, 2010. It has replaced the National
Environment Tribunal and the National Environment Appellate
Authority. The main objects of NGT are-

✓ Effective and expeditious disposal of cases relating to environmental

protection and conservation of forests and other natural resources;

✓ Enforcement of any legal right relating to environment; and

✓ Giving relief and compensation for damages to persons and property.

The National Green Tribunal is a specialized body equipped with the

necessary expertise to handle environmental disputes involving multi-
disciplinary issues. The Tribunal shall not be bound by the procedure laid
down under the Code of Civil Procedure, 1908, but shall be guided by
principles of natural justice.

The Tribunal's dedicated jurisdiction in environmental matters shall

provide speedy environmental justice and help reduce the burden of
litigation in the higher courts. The Tribunal is mandated to make and
endeavour for disposal of applications or appeals finally within 6 months
of filing of the same. Initially, the NGT was proposed to be set up at five
places of sittings and will follow circuit procedure for making itself more
accessible. New Delhi is the principal place of sitting of the Tribunal and
Bhopal, Pune, Kolkata and Chennai shall be the other four places of sitting
of the Tribunal.

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With the establishment of the NGT, India became the third country in the
world to set up a specialised environmental tribunal, only after Australia
and New Zealand, and the first developing country to do so.

Section 3 of National Green Tribunal Act, 2010 provides for the

establishment of the National Green Tribunal. The NGT is established by
the Central Government by a notification in the official gazette.

Section 4- Composition of the NGT

The Tribunal shall consist of-

i) a full time Chairperson- appointed by the Central Government by a

notification in the official gazette;

ii) a minimum of 10 and a maximum of 20 full time judicial members as the

Central Government may appoint, from time to time, by notification;

iii) a minimum of 10 and a maximum of 20 full time expert members as the

Central Government may appoint, from time to time, by notification.

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

Central Government.

The Chairperson of the Tribunal may, if he thinks that it is necessary, invite

any one or more persons having specialised knowledge and experience in a
particular case to assist the Tribunal in that case.

The Central Government may, by notification, specify the ordinary place or

places of sitting of the Tribunal, and the territorial jurisdiction falling under
each such place of sitting.

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The Central Government may, in consultation with the Chairperson of the
Tribunal, make rules regulating the practices and procedures of the
Tribunal.
Section 7- Term of office and other conditions of service of Chairperson,
Judicial Member and Expert Member

The Chairperson, Judicial member and Expert member of the Tribunal

shall hold office for a term of 5 years from the date on which they enter
upon their office, but they shall not be eligible for re-appointment.

The Chairperson, Judicial member and Expert member of the Tribunal shall
not continue to hold office after he has attained- -

(a) in the case of the Chairperson, the age of 70 years;

(b) in the case of the Judicial member, the age of 67 years; and

(c) in the case of Expert member, the age of 65 years.

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

Jurisdiction, powers and proceedings of the National Green Tribunal

The Tribunal shall have the jurisdiction over all civil cases where a
substantial question relating to environment (including enforcement of any
legal right relating to environment), is involved. The Tribunal shall hear
and settle the matters and pass orders thereon.

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The NGT deals with civil cases under the following laws relating to
environment-

o The Water (Prevention and Control of Pollution) Act, 1974,

o The Indian Forest Act, 1927

o The Forest (Conservation) Act, 1980,

o The Air (Prevention and Control of Pollution) Act, 1981,

o The Environment (Protection) Act, 1986,

o The Public Liability Insurance Act, 1991, and

o The Biological Diversity Act, 2002.

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

Government under these laws can be challenged before the NGT.

Two important Acts - Wildlife (Protection) Act, 1972 and Scheduled Tribes
and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act,
2006 have been kept out of NGT’s jurisdiction. This restricts the
jurisdiction area of NGT and at times hampers its functioning as crucial
forest rights issues are linked directly to environment.

Procedure of the Tribunal

The Tribunal shall not be bound by the procedures laid down in the Code of
Civil Procedure, 1908, but shall be guided by the principles of natural
justice. The Tribunal shall have power to regulate its own procedure. The
Tribunal shall also not be bound by the rules of evidence contained in the
Indian Evidence Act, 1872.

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While passing any order/decision/ award, the NGT shall apply the
principles of sustainable development, the precautionary principle and the
polluter pays principle.

Section 15 of the National Green tribunal Act, 2010 states that the Tribunal
may pass an order providing-

➢ compensation to the victims of environmental pollution or any other

environmental damage caused under any of the environmental laws;
➢ for restitution of property which has been damaged; and
➢ for restitution of the environment.

The application for compensation or restitution of property or

environment shall be made before the Tribunal within a period of 5 years
from the date on which the cause of action arose.

Section 22- Appeal to Supreme Court

Any person aggrieved by any award, decision or order of the Tribunal, may
file an appeal before the Supreme Court, within 90 days from the date of
communication of the award, decision or order of the Tribunal to him.

When the Tribunal has ordered payment of compensation to the victims,

the amount of compensation shall be remitted to the Environmental Relief
Fund constituted under the Public Liability Insurance Act, 1991.

An order/decision/award of the National Green Tribunal is executable as a

decree of a civil court.

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Section 26- Penalty for failure to comply with orders of Tribunal

If a person fails to comply with any order or award or decision of the

Tribunal under this Act, he shall be punishable with imprisonment for a
term which may extend up to 3 years, or with fine which may extend up to
10 crore rupees, or with both.

Over the years, NGT has emerged as a critical player in environment

protection by passing strict orders on issues ranging from pollution to
deforestation to waste management.

The NGT helps reduce the burden of litigation in the higher courts on
environmental matters.

NGT is less formal, less expensive, and a faster way of resolving

environment related disputes.

However, sometimes the NGT decisions are challenged in various High

Courts under Article 226 (power of High Courts to issue certain writs.)
Many people have asserted the superiority of a High Court over the NGT,
claiming ‘High Court is a constitutional body while NGT is a statutory body.’
This is one of the weaknesses of the Act as there is lack of clarity about
what kind of decisions can be challenged; even though according to the
NGT Act, its decisions can be challenged only before the Supreme Court by
filing an appeal.

Landmark Judgements of the National Green Tribunal

1) In 2012, in Almitra H. Patel Vs. Union of India, the NGT passed an Award
of complete prohibition on open burning of waste on lands, including
landfills. This case is regarded as the most important case dealing with the
issue of solid waste management in India.

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2) In 2012, POSCO a steelmaker company signed a MoU with the Odisha
government to set up a steel project. NGT suspended this MoU and this was
considered as a radical step in favour of the local communities and forests.

3) The NGT, in 2017, imposed an interim ban on plastic bags of less than
50-micron thickness in Delhi because “they were causing animal deaths,
clogging sewers and harming the environment.”

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 Carbon Credit

Carbon credits are certificates issued to countries that have successfully

reduced emissions of greenhouse gases which cause global warming.
Carbon credits or Certified emission reductions are certificates just like
stock. These certificates can be used by governments, industries or private
individuals of a country for sale to those countries which are making
carbon emissions beyond permissible emission standards. Carbon credits
create market for reducing greenhouse emissions by imposing a monetary
value/penalty for polluting the air.

Each carbon credit represents one tonne of Co2 either removed from the
atmospheres or saved from being emitted. Carbon credits can be created
in many ways, but there are two major ways of creating carbon credits-

1. Sequestration (capturing Co2 from the atmosphere) such as through

afforestation & reforestation activities.

2. Co2 saving projects such as the use of renewable energies (wind power,
solar energy, biomass power, hydel power.

Carbon credits can be viewed as a means of empowering the market to care

for the Environment. Carbon credits can be bought and sold in
international markets at prevailing market prices.

Solid Waste Management

Solid-waste management refers to the process of collecting, treating, and

disposing of solid materials that are discarded because they have already
served their purposes or are no longer useful. Improper disposal of
municipal solid wastes can create unsanitary conditions, and these

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conditions in turn can lead to pollution of the environment and to
outbreaks of vector-borne diseases, i.e. diseases spread by rodents and
insects.

Every day, tonnes of solid wastes are disposed of at various sites. These
wastes may be discharged from homes, offices, industries and various
other agricultural related activities. If such solid wastes are not managed
properly or if they are not stored and treated properly, they can pollute the
environment and can seriously affect the health of humans, plants, animals
and all other living organisms.

Disaster management

A disaster is any event, whether natural or man-made, which creates an

intense negative impact on people, plants, animals, goods and services,
property and the environment. Disaster Management can be defined as the
organization and management of resources and responsibilities for the
purpose of effectively managing a disaster. Disaster management involves
preparedness, response and recovery. The Parliament of India has enacted
the Disaster Management Act, 2005 in order to provide for the effective
management of disasters. Under this Act, a National Disaster Management
Authority and State Disaster Management Authorities have been
established by the Central and State Governments respectively.

Section 133 of Code of Criminal Procedure, 1973

Section 133 of the CrPC provides for a conditional order by a Magistrate for
removal of nuisance. If a District Magistrate receives any information or
any report of a police officer regarding any obstruction or nuisance and if
he considers that such nuisance should be removed from any public place,
he may make a conditional order requiring the person causing such

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 obstruction or nuisance to remove such obstruction or nuisance within a
time period which is mentioned in the order. Such an order duly made by a
Magistrate under this section shall not be called in question in any civil
Court.

Acid Rain

Acid rain refers to any form of precipitation with acidic components that
fall on the ground from the atmosphere in wet or dry forms. The forms may
include rain, snow, fog, hail or even dust that is acidic. Acidic components
may be sulphuric acid or nitric acid.

Acid rain results when sulphur dioxide (SO2) and nitrogen oxides (NOx) are
emitted into the atmosphere and are transported by wind and air currents.
Before falling on the ground, the SO2 and NOx react with water, oxygen and
other chemicals in the atmosphere to form sulfuric and nitric acids.
While a small portion of the SO2 and NOx that cause acid rain may be
released from natural sources such as volcanoes, earthquakes, etc. But
most of it are released from the burning of fossil fuels. The major sources
of SO2 and NOx in the atmosphere are-

• Burning of fossil fuels to generate electricity

• Use of vehicles and heavy equipments.
• Manufacturing industries, oil refineries and other industries.

Wet Land

A wetland is a place where the land is covered by water, either salt, fresh or
somewhere in between salt and fresh. In other words, it is an area of land
that is saturated with water. Wetlands include marshes, mangroves, ponds,

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swamps, coral reefs etc. A wetland is a distinct ecosystem. It is also
considered as the most biologically diverse ecosystem which serves as
home to a wide range of plant and animal life.

Wetlands act as water filters, providing flood and erosion control. Many
wetlands are not wet year-round because water levels change with the
seasons. During periods of excessive rain, wetlands absorb and slow
floodwaters, which helps to lessen property damage and even save lives.
Wetlands also absorb excess nutrients, sediments, and other pollutants
before they reach rivers, lakes, and other waterbodies.

Tiwari Committee recommendations on environment

It was only during the 70’s that environmentalism emerged as an organized

movement in India. And the credit for this goes to the Stockholm
Conference of 1972. The Government of India set up a committee in
January 1980 under the Chairmanship of Shri. N.D. Tiwari, the then Deputy
Chairman of the Planning Commission. The Committee was set up to
review the existing environmental legislations and recommend legislative
measures and administrative machinery for environment protection. The
committee stressed on the need for the proper management of the
country’s natural resources such as land, forests, wildlife, air and water in
order to conserve the nation’s ecological bases.

Some of the recommendations of the Tiwari Committee were-

1. The creation of a comprehensive environmental code to cover all

types of pollution and environmental degradation.
2. The constitution of Environmental Courts and appointment of
experts to assist the Courts in environmental matters.

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 3. The creation of Department of Environment.
4. Making Environmental Impact Assessment (EIA) not only a
prerequisite for industries to start but also repeated periodically.

The Tiwari committee’s recommendations led the Government of India to

set up a separate department namely Department of Environment in the
year 1980. Today this department is called the Ministry of Environment,
Forest and Climate Change (MoEFCC.)

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