CHAPTER 111

COMMON LAW PRINCIPLES

AND

LEGISLATIVE ENVIRONMENTALISM IN INDIA

‘Environmentalism’ is a fairly new m ovem ent in the world in the recent years.1

It has become an overriding concern in national plans2 and policies3 among the developed

and developing countries4. To day, no development project is considered complete without

an ‘environment impact assesment’.5

There is no disagreem ent relating to the statem ent that 'there exists perfect positive

correlation betw een environm ent a n d q u ality o f life '.6 D e v e lo p m e n t o f n a tu ra l

environm ent leads to better quality o f life and better quality o f life ultimately provides

peace and happiness to the hum an being.7

Principle 1 o f the United Nation’s Draft Declaration of Principles on Human

Rights and the Environment, 1994,8 provides :

“Human rights, an ecologically sound environment, sustainable development

1. B.K. Shamia and H. Kaur, Environmental Chemistiy, (1997-98), i n ‘Foreword’, p. vii. ,
2. In Sixth Five Year Flan (1980-85), an entire chapter on ‘Environment and Development' was
included that emphasized sound environmental and ecological principles in land use, agriculture,
forestry, marine exploration, mineral extraction, fisheries, energy production and human
settlements. The basic approach taken by the Seventh Flan (1985-90) was to emphasize
sustainable development in harmony with the environment. The Eighth Five year Plun (1992-
97) also stressed on environmental protection as the goal of national plan.
3. The Ministry of Environment and Forests. Government of India, has adopted National
Conservation Strategy (NCS) and Foliey Statement on Environment and Development, in
June, 1992.
4. See generally Principle 7 of the Rio Declaration and Principle 20 of the Stockholm Declaration.
5. On 27, January, 1994, the Ministry o f Environment and Forests, notified mandatory
Environment Impact Assessment under Rule 5 of the Environment (Protection) Rules of
1986, for 29 designated projects. Environment Impact Assessment (ElA) is an effort to
anticipate, measure and weigh the socio-economic and bio-physical changes that may result
from a proposed project.
6. Damodar Mohapatra, Environmental Education, (1995), p. 32.
7. Ibid.
8. Human Rights and the Environment, Final Report of the Special Rapporteur (Mrs. Falma
Zohra Ksentini), UN Doc. E/CN-4/Sub.2/l 994/9(6 July, 1994), as cited in Alan E. Boyle and
Michael R. Anderson (Editors), Human Rights Approaches to Environmental Protection,
(1998), p. 1.
 167

and peace are interdependent and indivisible”.

The Draft Declaration’s Preamble also describes the indivisibility of environmental

human rights by stating that :

"Human rights violations lead to environmental degradation and that

environmental degradation leads to human rights violations. ”

The Rio Declaration9 on Environment and Development, in Principle 25, proclaims :

"Peace, development and environmental protection are interdependent and

indivisible. ”

His Holiness the 14th Dalai Lama of Tibet asserts :'°

"We can share the earth and take care o f it together rather than trying to

possess it to destroy the beauty o f life in the process. ”

Environmental Justice" affirms the sacredness o f Mother Earth, ecological unity

and the interdependence of all species and the right to be free from ecological destruction.

Pure air to breath, clean water to drink and natural soil to live are the universal demand

of man as their birth right:12 But, day by day, man are deprived of this right. Population

explosion, poverty, expansion o f industries, urbanization and intensive agriculture and

many other forms of human activities are polluting the environment in such a way that

if the present trends continue the earth will be rendered unsuitable for human habitation

in near future.13 Unnatural modification of the environment was unknown before the

arrival o f man in the biosphere. While passing through various stages o f civilization,

man has been continuously exploiting the environment to suit his needs and for betterment

9. Rio Declaration adopted in the U.N. Conference on Environment and Development, held at
Rio de Janeiro, Brazil, from 3rd to 14th June, 1992.
10. Tibet 2000: Environment and Development, published by the Environment and Development
Desk, D1JR, Central Tibetan Administration, 11.P. India, (2000), p. 57. Website: [Link]
11. ‘Principles o f Environmental Justice’, adopted at the First National People o f Color
Environmental Leadership Summit, held in Washington D.C., October, 27, 1991.
12. R. N. Bhattacharyya and I. K. Bhattacharyya, Modern Approach to Biology, (1996), p. 284.
13. The World Commission on Environment and Development, in its Report (Our Common
Future), submitted in 1987, noted that human future was at a risk if we continue the current
modes o f unsustainable development.
 168

of his habitual and living conditions.M

Recently, first time in his entire cultural history, man has faced one of the most

horrible ecological crisis - the ‘problem of pollution of his environment’ which sometime

in the past was pure, virgin, undisturbed, uncontaininaied and basically quite hospitable

for him . 15

Pollution is an undesirable change in the physical, chemical or biological

characteristics o f our air, land and water that may or will harmfully affect human life

or that of desirable species, our industrial processes, living conditions and cultural assets. 16

In other words, pollution is the unfavorable alteration o f our environment largely as a

result of human activities. 17

Environmental pollution has received world wide attention . 18 It is, infact, the

outcome o f unlimited exploitation of natural resources by man for its best possible life. 19

Nature’s plentifulness is a heritage, it should not be spoiled but be conserved for future

generations. But what it appears is that the present day civilized man with his available

technological knowhow is exploiting the natural resources and, thus, damaging the

environment at an alarming rate.20 He has made rapid development in industry, agriculture,

mining and technology. But, unfortunately in doing so, there has been much disruption

o f the functioning of the natural environment.21 The mass scale destruction of flora and

fauna has become detrimental to ecological balance.22 Quite ridiculously much o f this

environmental destruction is done in the name of economic development.21

The problem o f pollution has become detrimental to ecological balance.24 Due to

14. Supra n. 12.

15. P. S. Verma and V. K. Agarwal, Principles o f Ecology, (1989), p. 493.
16. Odum, 1971, Ibid.
17. Southwick, 1976, Ibid.
18. Environmental pollution and its consequences are the main issues oflntemational Conferences
from Stockholm 1972 to Johannesburg 2002.
19 P.D. Sharma, Elements o f Ecology>, (1989), p. 3 13.
20. Ibid.
21. Ibid.
22. P.S. Verma and V.K. Agarwal, Principles o f Ecology, (1989 ), p. 513.
23. Ibid.
24. Ecological studies reveal that there exists a balance in the nature, called ‘Ecological Balance’
 169

pollution, the protective ozone layer of the polar region of the northern hemisphere has

been with holes and growing thinner permitting harmful ultraviolet rays.25 As a result

of excessive release of carbon dioxide, methane etc., through vehicular emission and

that form factories, the ‘green house effect’ precipitates the problem of warming the

earth and changing the climate.26 This state o f affairs has become a great threat to all

the living beings. Albert Schweitzer27 said :

“Man has lost the capacity to foresee and forestall. He will end by destroying

the earth. Man can hardly even recognize the devils o f his own creation. ”

Planet earth is the only known unit in the highly complex universe that has the

capability to support and sustain human life. But man has been continuously assaulting

his own environment, little realizing that he is digging his own grave.28

The only way out o f this bleak scenario lies in a determined and purposeful chain

o f actions and creative initiatives to restore the ‘m other earth ’ back to balance.29

The first Conference on environmental issues held under the auspices o f the United

Nations in 1949 at Lake Success,30 observed.

"Nature s plentifulness is a heritage not to be squandered with impunity, it

must be conserved fo r future generations or its bankruptcy w ill extinguish

us all. ”

This has perhaps planted the seeds o f ‘intergenerational equity.’31 Realizing the

among and between the physical and biological components o f the environment and if by any
natural or artificial means this balance is disturbed, it leads to harmful result to human kind as
a whole.
25. ‘Ozone h ole: making a hole in the sky’. See generally the Vienna Convention for the Protection
o f the Ozone Layer, 1985, and the Protocol on Substances that Deplete the Ozone Layer
(Montreal), 1987.
26. Sec generally the United Nation’s Framework Convention on Climate Change. 1992, and the
Kyoto Protocol to the United Nations Framework Convention on Climate Change, 1997.
27. A. Panncerselvam, Environmental Science Education, (2000), in ‘Preface’, p. v.
28. Ibid.
29. Supra n. 1.
30. R.N. Bhatlaeharyya and l.K Bhallacharyya, Modern Approach to Biology, (1996), p. 284.
31 The United Nation’s Scientific Conference on Conservation and Utilization o f Resources,
 170

transnational characteristics of the environmental problems, the United Nations

established Scientific Advisory Committee in 1968, to consider holding a conference

on the human environment, later it was held at Stockholm, Sweden, from 5th to 16th

June, 1972, with a view to express concern over depletion o f natural resources and also

to share common concern of water and air pollution.32 In this Conference, the Indian

delegation led by Mrs. Indira Gandhi, the then Prime Minister o f India, played a major

role. Mrs. Indira Gandhi, in her speech, in this Conference, had stressed the need of

linking environment with development at a global level. She had also identified

‘poverty’33 as the most important polluter o f our environment. There was also setup a

special wing - the United Nations Environment Programme (UNEP) at this Conference

to co-ordinate international problems o f the environment. The UNEP has since been

identifying the environmental issues that need global attention.34

In 1983, the U.N. General Assembly setup a Commission - World Commission

on Environment and Development (WCED), headed by Norway’s Prime Minister Mrs.

G.H. Brundtland, to examine the state of world environment and development beyond

2000. The report of the Commission ‘O ur Common Future’ noted that the human future

was at a risk if we continue the current modes o f unsustainable development. The

Commission stressed the need of integrating environment with development.35

The U.N. General Assembly, in December, 1989, responding to the report of the

Brundtland Commission, decided to hold an international conference on issues concerning

environment and development.36

The U.N. Conference on Environment and Development (UNCED) having met

1949. See Justice Ashok A. Dcsai, Environmental Jurisprudence, (2002), p. 69. ‘Inter
generational Equity’ means the right o flh c future generations to inherit an environment no
worse than the one the present generation enjoys.
32. P.D. Sharma, Ecology and Environment, (1997), p. 404.
33. Address o f Prime Minister Indira Gandhi at the U.N. Conference on the Human Environment,
Stockholm, 14, June, 1972. See Shyam Divan and Annin Rosencranz, Environmental Law
and Policy in India : Cases, Materials and Statutes, (200 i ), pp. 31 -32.
34. Supra n. 32.
35. P.D. Sharma, Ecolog}> and Environment, (1997), p. 405.
36. Ibid at p. 406.
 171
at Rio de Janeiro, Brazil', from 3rd to 14th June, 1992, reaffirmed the declaration of the

U.N. Conference on the Human Environment adopted at Stockholm on June, 16, 1972.37

The U.N. World Summ it on Sustainable Development was held form August,

26 to September, 4, 2002, in Johannesburg, South Africa.38 This ten day event that drew

more than 60,000 participants form 185 countries, was a follow-up to the first Earth

Summit in Rio de Janeiro, Brazil in 1992, which put forward 2,500 recommendations,

the majority of which have not been implemented.39

As already stated in C hapter II40 of this thesis, the Stockholm Conference 1972,41

was the starting point for India’s legislations for ‘ecology42 and environment.’43 Following

this Conference, the Parliament of India passed a number of Acts and, thereby, initiating

appropriate steps to implement the decision taken44 in the said Conference. These Acts,

in chronological order, include :

1. The Water (Prevention and Control o f Pollution) Act, 1974;

2. The Constitution (42nd Amendment) Act, 1976;

3. The Water (Prevention and Control o f Pollution) Cess Act, 1977;

4. The Forest (Conservation) Act, 1980 ;

5. The Air (Prevention and Control of Pollution) Act, 1981; and

6. The Environment (Protection) Act, 1986.

All these Acts drew immense inspiration from the proclamation adopted by the

37. The Environment (Protection) Act, 1986, Bare Act with short notes, (2002), p. 1.
38. Manorama Year Book, (2003), p. 78.
39. Ibid.
40. Constitutional Environmentalism in India.
41. The United Nations Conference on the Human Environment, held at Stockholm, Sweden,
from 5lh to 16th June. 1972.
42. ‘Ecology’ refers to the interrelationship o f living organisms- plants, animals and microbes
with each other and with their physical environment-water, air, soil etc.
43. ‘Environment’ is the sumtotal o f everything that directly influences the animal’s chances o f
survival and reproduction.
44. Article 253 o f the Constitution o f India.
 172
U.N. Conference on the Human Environment, held at Stockholm, Sweden in 1972.

Incidentally, the enactment o f the Wild Life (Protection) Act, 1972, was coincidental

with the Stockholm Conference.

In the recent years, the Parliament also enacted :

1. The Public Liability Insurance Act, 1991 ;

2. The National Environment Tribunal Act, 1995 ;

3. The National Environment Appellate Authority Act, 1997 ;

4. The Plant Varieties and Farmer’s Rights (Protection) Act, 2001; and

5. The Bio Diversity Act, 2002.45

The Acts of 1995, 1997, 2001 and 2002, drew immense inspiration from the

proclamation adopted by the U.N. Conference on Environmental and Development

1992.46

in 1976, the Constitution of India was itself amended 47 with the incorporation of

the subject o f ‘ecology and environment’ in Articles 48-A48 and 51 A(g).49

By the same Amendment Act, the subject of ‘Forests’ and ‘Wild Life’ was also

transferred from State List to Concurrent List,40 so that the Central Government may

also play a meaningful role in this increasingly significant area.

Common Law :

Even before the specific laws came into force, there were ‘certain common law

45. Biological Diversity is the variety and variability among living organisms and the ecological
complexes in which they occur. The Bio Diversity Act, 2002, is a most significant piece o f
legislation. It responds to concerns arising out o f developments in biotechnology and
information technology.
46. Popularly known as ‘Earth Summit'. It was held at Rio de Janeiro, Brazil, from 3rd to 14th
June, 1992,
47. The Constitution (42nd Amendment) Act, 1976.
48. Article 48A in Part - IV o f the Constitution provides : 'The Stale shall endeavour to protect
and improve the environment and to safeguard the forests and wild life o f the country. ’
49. Article 51 A (g) in Part IV A o f the Constitution specifies the fundamental duty o f the citizen.
It provides : ‘It shall he the duty o f eveiy citizen o f India to protect and improve the natural
environment including forests, lakes, rivers, and wildlife and to have compassion fo r living
creatures. ’
50. Entry 17A (forests) and Entry 17 B (Wild Life).
 173
remedies’ against ‘environmental pollution ’ .51 The origin of common law may be traced

in England.52 This law came in to existence largely as a result of activities o f the Royal

Courts since the era of Norman Conquest.53

‘Common law’ is the body of customary laws of England which is based upon

judicial decisions and is embodied in the reports of the decided cases. 54 Common law

had been administered by the common law courts of England since the middle ages.55

All the English speaking countries, as also the countries that have been or still are linked

with England, save certain exceptions, are members o f 'he Common Law Family. In the

legal systems o f such countries also, the courts administer the common law.56

This C hapter of my thesis seeks to examine the various common law remedies

against environmental pollution and also to explore the various laws which directly or

indirectly provide environmental protection under the Indian legal system.

Actions brought under tort law are among the oldest o f the legal remedies to abate

pollution . 57 Most pollution cases in tort law fall under the categories o f nuisance,

negligence and strict liability .58 To these traditional categories, the Supreme Court of

India has added a new class based on the principle of ‘absolute liability’59. This norm

was developed by the Court in the post -Bhopal period in response to the spread of

hazardous industries and was later adopted by the legislature.60

The rules of tort law were introduced in to India under British rule. Initially, disputes

51. Mahesh Mathur, Legal Control o f Environmental Pollution : Jurisprudence and Laws
Applicable to Environmental Violation and Prevention , (1998), p. 153.
52. Ibid. '
53. D. C. Jain and A.K. Mathur, Comparative Law, p.37, as cited in Mahesh Mathur, ibid.
54. V.K. Beena Kumari, 1Environmental Pollution and Common Law Remedies' in P.
Leclakrishnan, Law and Environment, (1992), p. 103.
55. Encyclopedia Britanica, (1964). Vol. 6, p. 160.
56. Supra n. 53.
57. Shyatn Divan and Arinin Roscncranz, Environmental Law and Policy in India : Cases,
Materials, and Statutes, (2001), p. 88.
58. Ibid.
59. M.C. Mehta Vs Union oflndia, A.l.R. 1987, S.C. 1086.
60. Both the Public Liability Insurance Act, o f ! 991, and the National Environment Tribunal Act
o f 1995, adopt this norm.
 174

arising within the Presidency towns of Calcutta, Madras and Bombay were subjected to

common law rules.61 Later, Indian Courts outside the presidency towns were required

by Acts of British Parliament and Indian laws to reconcile disputes according to justice,

equity and good conscience where there was no applicable statute/’’ Consequent!). in

suits for damages for torts (civil wrongs), courts followed the English Common law. in

so far as, it was consonant with these principles. By the eighteenth century, Indian Courts

had evolved a blend of tort law adapted to Indian conditions.6' Common law based tort

rules continue to operate under Article 372 of the Indian Constitution which ensured the

continuance of existing laws.

In Vellore Citizen’s Welfare f orum Vs Union of India,61 the Supreme Court traced

the source of the constitutional and statutory provisions that protect the environment tc

the ‘inalienable common law right’ of every person to a clean environment. Quoting

from Blackstonc’s Commentaries on the English Law of Nuisance, published in 1876

the Court held that since the Indian legal system was founded on English common law

the ‘right to a pollution free environment’ was part of the basic jurisprudence of the

land.65

Damages and Injunction :

A plaintilf in a tort action may sue for damages or an injunction, or both.

Damages are the pecuniary compensation payable for the commission of a tort

Damages may be either ‘substantial’ or ‘exemplary’. Substantial damages are awardee

to compensate the plaintiff for the wrong suffered. The purpose of such damages b

restitution i.e., to restore the plaintilf to the position he or she would have been in i

the tort had not been committed. Such damages, therefore, correspond to a fair am

reasonable compensation for the injury.

61. ‘Common Law' refers to the customary laws of England derived from judicial decisions, it
contrast with legislative enactments.
62. S. Desai and K. Desai. Ramaswainy Iyer's The Law o f Torts, (1987). p. 21, as cited in Shvan
Divan and Armin Rosencranz. Environmental Law and Policy in Indio : Cases, Material.
and Statutes. (2001). p. 88.
63. M. Setalvad. The Common Law of India. (1960). p. 53. as cited in Shyam Div an, ibid.
64. A.I.R. 1996 S.C. 2715.
65. Ibid at p. 2722.
 175

Exemplary damages are intended to punish the defendant lor the outrageous nature

o f his or her conduct, as for instance, when he or she persists in causing a nuisance after

being convicted and, being fined for it.66 The object of the court, in such cases, is to

deter the wrongdoer. The deterrence objective has recently prompted the Supreme Court

to add a fresh category to the type o f cases where exemplary damages may be awarded,

namely, when harm results from an enterprise’s hazardous or inherently dangerous activity.

, In the Shriram Gas Leak Case, 67 oleum gas escaped from a unit o f the Shriram Foods

and Fertilizer Industries and injured a few Delhi citizens. The Court observed that in

such cases, ‘compensation must be correlated to the magnitude and capacity o f the

enterprise because such compensation must have a deterrent effect. The larger and more

prosperous the enterprise, the greater must be the amount o f compensation payable by

Damages, awarded in tort actions in India, are notoriously low, and pose no deterrent

to the polluter. Lengthy delays in the adjudication o f cases combined with chronic inflation

dilute the value of any damages that a successful plaintiff may receive. Consequently,

although, in theory damages are the principal relief in a tort action, in practice injunctive

reliefs are more effective in abating pollution. Accordingly, litigation strategies must

shift away from the conventional common law emphasis on damages. Lawyers in India,

intent on abating pollution, may seek a temporary injunction against the polluter followed

by a perpetual injunction on decree. Damages should be viewed as a bonus.

An ‘injunction’ is a judicial process, where a person, who has infringed or is about

to infringe the rights o f another, is restrained from pursuing such acts. An injunction

require a partly to refrain from doing a particular thing or to do a particular thing.

Injunctions are granted at the discretion o f the court.

Injunctions are of two kinds, tem porary and perpetual. The purpose of temporary

66. J.C. Galstaun Vs Dunia Lai Seal, (1905) 9 CWN 612,617. See also Shyam Divan and Armin
Roseneranz, Environmental Law and Policy in India: Cases, Materials, and Statutes, (2001),
p. 89.
67. M.C. Mehta Vs Union oflndia, A.l.R. 1987 S.C. 1086.
68. Ibid at p. 1099.
 176
injunction is to maintain the state o f things at a given date until trial on the merits. It

is regulated by Sections 94 and 95, as well as, Order 39 of the Code of Civil procedure

o f 1908. It may be granted on an interlocutory application69 at any stage of a suit. It

remains in force until the disposal of the suit or until further orders of the court.

Rule 1 o f Order 39 70 provides that temporary injunctions may be granted where

it is proved :

“(a) that any property in dispute in a suit is in danger o f being wasted,

damaged or alienated by any party to the suit, or wrongfully sold in execution,

o f a decree, or

(b) that the defendant threatens, or intends, to remove or dispose o f his

property with a view to defrauding his creditors, or

(c) that the defendant threatens to dispossess the plaintiff or otherwise causes

injury to the plaintiff in relation to any property in dispute in the s u it ............ ”

The Supreme Court has held that courts also have an inherent power to issue a

temporary injunction in circumstances tiiat are not covered by the provisions of Order

39 when the court is satisfied that the interests of justice so require.71

The grant or refusal of a temporary injunction is governed by three well established

principles :

(1) the existence o f a prima facie case ( a showing on the facts that the

plaintiff is very likely to succeed in the suit) ;

(2) the likelihood o f irreparable injury (an injury that can not be adequately

compensated fo r in damages) i f the injunction is refused; and

(3) that the balance o f convenience requires the issue o f the injunction (a

showing that the inconvenience to the plaintiff i f the temporary injunction

69. An application made between the commencement and end o f a suit.

70. The Code o f Civil Procedure, 1908.
71. Monohar Lai Chopra Vs Rai Baja Seth Hiralal, A.I.R. 1962 S.C. 527, 532.
 177
is withheld exceeds the inconvenience to the defendant i f he or she is

restrained).n

Perpetual injunctions are regulated by Sections 37 to 42 o f the Specific Relief

Act of 1963. A perpetual injunction permanently restrains the defendant from doing the

act complained of. It is granted at a court’s discretion after judging the merits o f the

suit. A perpetual injunction is intended to protect the plaintiff indefinitely (so that he

or she need not resort to successive actions in respect o f every infringement), assuming

that the circumstances of the case remain essentially unchanged.

A court may permanently restrain the defendent where damages do not provide

adequate relief or where the injunction would prevent a multiplicity of proceedings. Thus,

where hazardous dust from a brick grinding machine polluted the air o f a neighboring

medical practitioner’s consulting room, the polluter was permanently restrained form

operating the machine,73 A court may grant an injunction even though the anticipated

damage may not be very serious, as long as, the damage is continuous or frequent. The

‘balance of convenience’ test also applies to the award of a permanent injunction. The

court must be satisfied that the damage that the defendant would suffer by the grant of

the injunction is outweighed by the damage that the plaintiff would suffer if the injunction

was refused. Finally, the court will consider the injunction’s impact on third parlies, for

example, when the granting of an injunction would throw a large number of people out

o f work.

Nuisance. Negligence, Strict Liability and Absolute Liability :

Nuisance :

The deepest doctrinal roots of ‘modern environmental law’ are found in the

common law concept of nuisance.74 A well known writer says that the substantive law

72. Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India : Cases,
Materials, and Statutes, (2001), p. 90.
73. Ram Baj Singh Vs Babutat, A.l.R. 1982 ALL 285.
74. V.K. Bcena Kumari, 'Environmental Pollution and Common Law Remedies' , in P.
Leelakrishnan (Lditor), Law and Environment, (1992), p. 103.
 178

for the protection of the citizen’s environment is basically that of common law relating

to nuisance,75

Nuisance as a tort means an unlawful interference with a person’s use or enjoyment

o f land. Acts interfering with the comfort, health or safety are the examples o f it. The

interference may be by any way, namely, noise, vibrations, heat, smoke, smell, fumes,

water, gas, electricity, excavations or disease producing germs . 76 A plaintiff must,

therefore, prove some injury to his enjoyment of property and his own interest in that

property. An occupier o f the property can sue for nuisance.77

Ordinarily, a nuisance means anything that annoys, hurts or offends; but for an

interference to be an actionable nuisance, the conduct of the defendant must be reasonable.

Further, a nuisance must not be momentary, but must continue for sometime. A single,

short inconvenience is not actionable. A nuisance would include offensive smells, noise,

a ir pollution and w ater pollution .78

In common law, a person can sue for nuisance when an act endangers his life,

health, property or comfort or when such an act obstructs him in the enjoyment of the

rights common to all people. ‘Environmental pollution’ in many instances is a question

o f ‘public nuisance’ materially affecting the reasonable comfort and convenience of

life o f a class o f people. 79

The law o f nuisance, as it exists today, covers water and air pollution and provides

some remedy against the hazards of pollution.89 This is mainly because law of nuisance

affords a right to every person to have wholesome air and water. In modem parlance,

nuisance is that branch o f law which is most closely connected with ‘protection of the

environment ’ .81

75. Ibid.
76. R.K. Bangia, Law o f Torts, (1991), p. 200.
77. Supra n. 72 at p. 91.
78. Ibid.
79. Mahesh Malhur, Legal Control o f Environmental Pollution : Jurisprudence and Laws
Applicable to Environmental Violation and Prevention,(1998), p. 154.
80. R.N.D. Hamilton, Private Recoursefor Envimnmental Harm, (1978), p. 19, as cited in Mahesh
Mathur, Ibid.
81. Teny Weir, A Case Book on Tort, Fourth Edition, Chapter 10, as cited in Mahesh Mathur, Ibid.
 179

There are two kinds of nuisance - public and private. A public nuisance injures,

annoys or interferes with the quality of life of a class o f persons who come within its

neighborhood. It is an unreasonable interference with a general right of the public. It

is both a tort and a crime.

The remedies for a public nuisance are :

(1) a criminal prosecution for the offence o f causing a public nuisance ; 82

(2) a criminal proceeding before a magistrate for removing a public nuisance;83

(3) a civil action by the Advocate General or by two or more members of the

public with permission of the court, for a declaration, an injunction, or both.84

A private nuisance is a substantial and unreasonable interference with the use

and enjoyment of land. Reasonableness of the defendant’s conduct is the central question

in nuisance cases. To determine ‘reasonableness’, courts will be guided by the ordinary

standard o f comfort prevailing in the neighbourhood. Minor discomforts that are common
\
in crowded cities will not be viewed as a nuisance by the courts.85

An action for private nuisance may seek injunctive relief, as well as, damages. In

cases of a continuing cause of action, such as, pollution of a stream by factory wastes

or smoke emissions from a chimney, the proper course is to sue for an injunction.86

Repeated actions for damages may be brought to recover the loss sustained up to the

date of the court’s decree; but future losses, which are contingent on the continuance

of the wrong, are nor usually awarded. Damages offer poor relief since the plaintiff

would be compelled to bring successive actions. Ordinarily, therefore, courts grant the

82. Section 268 o f the Indian Penal Code o f 1860.

83. Sections 133-144 o f the Code o f Criminal Procedure o f 1973.
84. Section 91 o f the Code o f Civil Procedure o f 1908. In the absence o f special damage this is
the only available civil remedy. A private action can be maintained against a public nuisance
where the plaintiff has suffered particular damage beyond that suffered by all the other persons
affected by the nuisance.

85. Shyam Divan and Annin Roscncranz, Environmental Law and Policy in India : Cases,
Materials, and Statutes, (2001), p. 91.
86. Ibid.
 180
plaintiff an injunction where a nuisance exists or is threatened, unless he or she is guilty

o f improper conduct or delay.87

In Kuldip Singh Vs Subhash Chandra Jain,88 the plaintiff Subhash Chandra Jain,

feared that the baking oven and 12 foot chimney build by his neighbour would cause

a nuisance when the bakery commenced. The trial Court restrained the defendant since

operation o f the oven ‘would cause in emitting smell and generating heat and smoke

which taken together would amount to nuisance'. The Supreme Court drew a distinction

between an existing nuisance and a future nuisance :

“In case o f a future nuisance, a mere possibility o f injury will not provide

the plaintiff with a cause o f action unless the threat be so certain or imminent

that an injury actionable in law will arise unless prevented by an injunction.

The court may not require proof o f absolute certainty or a proof beyond

reasonable doubt before it may interfere; but a strong case o f probability

that the apprehended m ischief will infact arise must be shown by the

plaintiff. ”

In a remarkable conclusion , the Apex Court found that the plaintiff’s apprehension

about a smoking oven next door causing a nuisance was not justified by the pleadings

or the evidence and dismissed the suit.

In B. Venkatappa Vs B. Lovis,89 the Andhra Pradesh High Court upheld the lower

Court’s mandatory injunction directing the defendant to close the holes in a chimney

facing the plaintiff’s property. The Court ensured enforcement of its order by authorizing

the plaintiff to seal the holes at the defendant’s cost, if the defendant failed to do so.

The High Court stated that the smoke and fumes that materially interfered with ordinary

comfort were enough to constitute an actionable nuisance and that actual injury to health

need not be proved. The Court also observed that the existence o f other sources of

87. Ibid.
88. 2000 (2) SCALE 582.
89. A.I.R. 1986 A.P. 239.
 181
discomfort in the neighbourhood were no defence, provided that the source complained

o f materially added to the discomfort. The Court rejected the defence that the plaintiff

‘came to the nuisance’ :

"The fa c t that the nuisance existed long before the complainant occupied

his premises, does not relive the offender unless he can show that as against

the complainant he has acquired a right to commit nuisance complained o f'90

The law of easement guarantees beneficial enjoyment to the owner of a land, free

from air, water or noise pollution, without disturbing the natural environment.91 This

law enables an aggrieved individual to challenge any act of pollution92 by moving a

court under the Code of Civil Procedure,93 In all cases where environmental assaults

amount to private nuisance, this provision can be invoked. The court can give different

kinds of remedies.94

The common defences in pollution cases are :

(1) the right obtained by prescription to pollute ;

(2) estoppel ;

(3) comparative injury ; and

(4) statutory authorization.

In deciding whether a particular act is or is not an actionable nuisance, the court

must consider the locality, the nature of the nuisance and other questions o f similar

nature.95

90. The ‘right to commit nuisance complained o f’ refers to a prescriptive right to emit smoke
acquired under Section 15 o f the Indian Easement Act o f 1882, or a right acquired by the
authority o f a statute. A right to cause a public nuisance, however, can not be obtained by
prescription.
91. The Indian Easement Act, 1882, Section 7, Illustrations (b) - (!) and (h).
92. Guhiram Vs Udaychandra, A.I.R. 1963 Pat 455 ; Kailash Chand Vs Smt. Gudi, A.I.R. 1990
H.P. 17.
93. Section 9 o f the Code o f Civil Procedure o f 1908. This provision empowering the courts to
try suits o f civil nature reads : ‘ The court shall have jurisdiction to try all suits o f a civil
nature excepting suits o f which their cognizance is either expressly or impliedly barred.'
94. Relief in the form o f damages, injunction, interim orders, declaration, decree.
95. P. Leelakrishnan (Editor), Law and Environment, (1992) p. 106.
 182
Trespass :

Trespass is a theory closely related to nuisance and is occasionally invoked in

environmental cases.96 Nuisance should be distinguished from trespass.97 Trespass is :

(i) a direct physical interference;

(ii) with the plaintiff’s possession of land;

(iii) through some materials or tangible object.

Both nuisance and trespass are similar in so far as in either case the plaintiff has

to show his possession of land. The two may even coincide, some kinds of nuisance being

also continuing trespasses.98 The points of distinction between the two are as follows :

If interference is direct, the wrong is trespass, if it is consequential; it amounts to

nuisance. Planting a tree on another’s land is trespass. But when a person plants a tree

over his own land and the roots or branches project into or over the land of another

person that is nuisance. To throw stones upon one’s neighbour’s premises is a wrong

of trespass; to allow stones from a ruinous chimney to fall upon those premises is the

wrong o f nuisance.99

Trespass is another specific tort which can be made basis of a suit for preventing

‘environmental pollution’. Trespass requires an unwarrantable entry upon the land of

another, or any direct and immediate act of interference with the possession of land. To

constitute the wrong o f trespass neither force, nor unlawful intention, nor actual damage,

nor breaking o f any enclosure is necessary. Every invasion of private property, be it ever

so minute, is a trespass. Moreover, trespass is actionable p e r se, i.e., damage need not

be proved to sustain the action. Thus, it is immaterial whether there has been any actual

damage or not. 101

96. Mahesh Mathur, Legal Control o f Environmental Pollution : Jurisprudence and Laws
Applicable to Environmental Violation and Prevention,( 1998), p. 181.
97. R.K. Bangia, Law o f Torts, (1991), p. 200.
98. Ibid.
99. Ibid..
100. Mahesh Mathur, supra n. 96 at p. 159.
101. Ibid.
 183
The only requirement to establish a trespass is that there must be an intentional

unprivileged physical entry by a person or object on land possessed by another. Here

nominal damages is awarded by the court, upon proof of technical trespass by a plaintiff.

The plaintiff could get injunctive relief against a technical trespass. 102 There are few

cases which have been decided on this theory o f action.

In Arvidson Vs Reynolds Metals Company, 103 the Court observed that aluminum

is produced by the defendant plant in a manner that unavoidably caused fluorides to

be discharged into the atmosphere and recognized that fluorides o f some o f the types

escaping from the plants, if ingested in excessive quantities, are capable o f causing

damage to cattle. Nevertheless, the Court found for the defendants on the ground that

large scale production of aluminium is essential to national defence.

In Fairview Farms, Incorporated, Vs Reynolds Metals Company, 104 the Court held

that air borne liquids and solids deposited upon Fairview land constituted trespass and

allowed damages for six year period applying the statute o f limitations. However,

injunctive relief was denied on the ground that pollution was not reasonably certain to

be repeated and the defendant had apparently done all it could to control the pollution.

In Martin Vs Reynolds Metals Company, 105 the defendant argued that mere setting

o f fluoride deposits upon the plaintiff’s land was not sufficient to constitute to trespass.

The Court refusing the contention, defined trespass as ‘the invasion o f land owner’s

right to exclusive possession, whether by visible or invisible s u b s ta n c e This departure

from the traditional definition of trespass would impose a heavy burden on industry.

In Renken Vs Harvey Aluminium Incorporated. 105 the Court relied on Martin107 in

102. Ibid at p. 160. See also P. Leelakrishnan (Editor), Law and Environment, (1992), p. 108.
103. 125 F. Supp. 481 (W.D. Wash, 1954), affd, 236 F. 2d 224 (9th Cir. 1956), Cert, denied 352
U.S 968 (1957), as cited in Mahesh Mathur, Legal Control o f Environmental Pollution :
Jurisprudence and Laws Applicable to Environmental Violation and Prevention, (1998), p.
160.
104. 176 F. Supp. 178 ( D. Ore. 1959), as cited in Mahesh Mathur, ibid.
105. 135 F. Supp 379, as cited in Mahesh Mathur, ibid.
106. 226 F. Supp. 169 (D. Ore. 1963), as cited in Mahesh Mathur, ibid.
107. Supra n. 105.
 184

concluding that the emissions from Harvey Aluminium Company were trespassory.

Nevertheless, the trespass theory is inadequate to control air pollution.108 The

difficulty in identifying the correct source o f air pollution in an area, the cost of-litigation

and willingness of the people to accept the status quo tend to discourage the filing of

trespass suits.109

Negligence :

Negligence is another specific fort on which a common law action for preventing

‘environmental pollution’ can be based.110 It is the failure to exercise that care which

the circumstances demand in any given situation. Where there is a duty to take care,

reasonable care must be taken to avoid acts or omissions which can be reasonably

foreseen**111 to be likely to cause physical injury to persons or property. The degree of

care required in a particular case depends on the accompanying circumstances and may

vary according to the amount of risk to be encountered and to the magnitude o f the

prospective injury. Where there is no duty to exercise care, negligence in the popular

sense has no legal consequence.112

A common law action for negligence may be brought to prevent environmental

pollution.113 In an action for negligence, the plaintiff must show that :

(1) the defendant was under a duty to take reasonable care to avoid the damage

complained o f ;

(2) there was breach of this duty ; and

(3) the breach o f duty caused the damage.

108. V.K. Beena Kumari, ‘Environmental Pollution and Common Law Remedies’ , in P.
Leelakrishnan (Editor), Law and Environment, (1992), p. 109.
109. Ibid.
110. Ibid.
111. ‘The reasonable man is presumed to be free both from over apprehension and from over
confidence...... ” per Lord Mac Millan in Galsgow Corporation Vs Muir, [1943J AC 448
(HL) at p. 457, as cited in V. K. Beenakumari, ibid at p. 109.
112. Grant Vs Australian Knitting Mills Limited, j 1936) AC 85 (DC) at p. 103 ; Donoghue Vs
Stevenson, [1932] AC 562 (HL) at p. 618, as cited in V. K. Beenakumari, ibid at p. 109.
113. Shyam Divan and Arm in Rosencranz, Environmental Law and Policy in India : Cases,
Materials, and Statutes, (2001), p. 100.
 185
An act o f negligence may also constitute a nuisance if it unlawfully interferes with

the enjoyment o f another’s right in land. Similarly, it may also amount to a breach of

the rule o f strict liability in Rylands Vs Fletcher, 114 if the negligent act allows the escape

of anything dangerous which the defendant has brought on the land.

The casual connection between the negligent act and the plaintiff’s injury is often

the most problematic link in pollution cases. Where the pollutant is highly toxic and its

effect is immediate, as with the methyl isocyanate that leaked from the Union Carbide

Plant in Bhopal, 115 the connection is relatively straight forward. The casual link is more

tenuous when the effect o f the injury remains latent over long periods o f time and can

eventually be attributed to factors other then the pollutant, or to polluters other than the

defendant. U5'A

The casual relation between negligence and the plaintiff’s injury must be shown

by the plaintiff in an action for damages based on negligence. When the plaintiff has

proved to the satisfaction of the jury the existence o f facts which are claimed and outlined,

then a prima facie case o f negligence is presented. It, there upon, becomes the duty of

the defendant to come forward with evidence to show that the act was not negligent.

The casual relation between the negligent act and the injury suffered is not

particularly onerous task when a deadly pollutant like carbon monoxide is discharged

in the air admittedly under the defendant’s exclusive control as in Greyhound Corporation

114. (1868) LR 3 HL 330.

115. Union Carbide Corporation (U.S.A.) Vs Union o f India, A.I.R. 1990 S.C. 273. Facts remain
that on December, 3, 1984, just after the midnight about 40 tons o f highly toxic Methyl Iso
Cyanate (MIC) gas, which had been manufactured and stored in the Union Carbide
Corporation’s (UCC) Chemical Plant in Bhopal, allegedly escaped in to the atmosphere killing
nearly 4000 people and inflicting injuries on more than 2 Lakhs others. The Supreme Court
o f India, secured a compromise between the Union o f India and the UCC. Under this settlement,
the UCC agreed to pay 470 million IJ.S. Dollar in full as compensation. Professor Upcndra
Baxi has criticized the settlement as denial o f human rights.
115-A. In numerous American suits brought against asbestos manufacturers by asbestos workers
suffering from lung cancer, several courts reduced the damage award on the theory that a
plaintiffs habit o f smoking cigarettes had contributed, or could have contributed, to this
condition. Some courts dismissed the suit entirely when the plaintiff had been a cigarette
smoker.
 186
Vs Blakley, 116 However, where one brings an action for Lung damage caused by fine

dust particles against a local cement plant or glass factory, the case gels extremely difilcult

from a causation stand point.

In Suko Vs North Western Ice and Cold Storage Co . , 117 a water lank maintained

by the defendant burst and dropped a large quantity of water upon the plaintiff’s adjoining

land and caused personal injury to the plaintiff. Here the Oregan Supreme Court did not

adopt the Ryiand’s doctrine. 118 The Court adopted the pure and simple rule o f negligence

with the test o f ordinary due care and gave the plaintiff the benefit and evidentiary aid

o f the doctrine o f res ipso loquitor that the instrumentality which caused the injury was

in the exclusive possession and control o f the defendant. 119

In Ure Vs United States, 120 where the plaintiff was injured by over flow o f water

from the irrigation canal maintained by the defendant, the Court observed that a very

high degree o f danger calls for a very high degree o f care. The dangers caused by

environmental pollution are often potential dangers difficult to evaluate.

Negligence constitutes an independent basis of tort’s liability. It is considered as

a separate tort. It means a conduct which creates a risk o f causing damage, rather than

a state o f mind. The House of Lords in Donoghue Vs Stevention121 treats ‘negligence,

where there is a duty to take care, as specific tort in itself and not simply as an element

in some more complex relationship or in some specialized breach o f duty 122

116. 262 F 2d 401 (9th Cir. 1958), as cited in V. K. Becnakumari, supra n. 108 at p. 110.
117. 166 Or. 557, 113 P 2d 209, as cited in V. K. Becnakumari, supra n. 108 at p. 110.
118. (1868) L.R.3H.L. 330.
119. V.K. Beena Kumari, ’Environmental Pollution and Common Law Remedies’ , in P.
Leelakrishnan (Editor), Law and Environment, (1992), p. 111.
120. D.C. Or 93F Supp 779, as cited in V. K. Becnakumari, supra n. 108 at p. 111.
121. (1932) A.C. 562.
122. Grant Vs Australian Knitting Mills, (1936) A.C. 85, at p. 103, per Lord Wright; Lochgeliy
Iron etc. Co., Ltd. Vs Me. Millan, (1934) A. C.l, 35; Nicholi Vs Ely Beet Sugar Factory Ltd.,
(1936) Ch. 343,351; ‘In strict legal analysis negligence means more than heedless or careless
conduct whether in omission or commission ; it properly connotes the complex concept o f
duly, breach and damage thereby suffered by the person to whom the duty was owing’
[Loehgelly Iron and Coal Co. Vs Me. Millan, (1934) A.C.I, at p. 25 per Lord Wright), as
cited in R. K. Bangia, Law o f Torts, (1991), p. 248.
 187

Strict Liability :

The doctrine o f strict liability - liability without fault - is worth considering in

relation to cases arising from or connected with ‘environmental pollution ’ . 123 The most

important case on the point is that of Rylands Vs Fletcher. 124 It was held in this case

that although the defendant is not guilty o f negligence, he would be liable. Blackburn,

J Laid down the principle in the following words :

"We think that the rule o f law is, that the person who fo r his own purposes

brings on his lands and collects and keeps there anything likely to do mischief

i f it escapes, must keep it in at his peril, and, i f he does not do so, is primafacie

answerable fo r all the damage which is the natural consequence o f its

escape. ”!2S

Blackburn, J., further said :

“The general rule as above stated seems on principle just. The person whose

grass or corn is eaten down by the escaping cattle o f his neighbour, or whose

mine is flooded by the water from his neighbour s reservoir, or whose cellar

is invaded by the filth o f his neighbour s privy, or whose habitation is made

unhealthy by the fumes and noisome vapours o f his neighbour s alkali work

is damnified without any fault o f his own; and it seems but reasonable and

ju st that the neighbour, who has brought something on his property which

was not naturally there, harmless to other so long as it is confined to his

own property, but which he knows to be mischievous i f it gets on his

neighbour’s should, be obliged to make good the damage which ensures i f

he does not succeed in confining it to his own property. But fo r his act in

bringing it there no mischief could have occurred, and it seems but ju st that

he should at his peril keep it there so that no m ischief may accrue or

123. Mahesh Mathur, Legal Control o f Environmental Pollution : Jurisprudence and Laws
Applicable to Environmental Violation and Prevention,{1998), p. 190.
124. (1868) L.R. 3 H.L. 330, as cited in Mahesh Mathur, ibid.
125. Flctchcr VsRylands, (1866) L.R. 1 Lx. 265. 279, as cited in Mahesh Mathur, ibid at p. 191.
 188
answerable for the natural and anticipated consequences. "m

In Rylands Vs Fletcher,127 Fletcher was working in a coal mine under a lease. On

the neighbouring land, Rylands desired to erect a reservoir for storing water and for this

purpose, he employed a competent independent contractor whose workmen, while

excavating the soil, discovered some disused shafts and passages communicating with

old workings and the mine in the adjoining land. The shafts and passages had been filed

with loose earth and rubbish. The contractor did not take the trouble to pack these shafts

and passages with earth, so as to bear the pressure of water in the reservoir, when filled,

Shortly after the construction of the reservoir shafts gave way and burst downwards.

The consequence was that the water flooded the old passages and also the plaintiffs

mine, so that the mine could not be worked. The plaintiff sued for damages. No negligence

on the part of the defendant was proved. The only question was whether the defendant

would be liable for the negligence of the independent contractor who was admittedly

a competent engineer. The Court held that the question o f negligence was quite

immaterial. The dependent, in bringing water into the reservoir, was bound to keep it

there at this peril, and was, therefore, liable.

The rule in Rylands Vs Fletcher128 holds a person strictly liable when he brings

or accumulates on his land something likely to cause harm if it escapes, and damage

arises as a natural consequence of its escape. But ‘strict liability’ is subject to a number

o f exceptions that considerably reduce the scope o f its operation.129 Exceptions that have

been recognized are :

(1) an act o f God (natural disasters, such as, an earthquake or flood);

(2) the act of third party (namely, sabotage);

(3) the plaintiff’s own fault;

126. Per Blackburn J., in Fletcher Vs Rylands, (1866) L.R.l Ex 265, 280 ; 4 II & C 263, 271,
confirmed in LR 3 H.L. 330; Manindra Nath Vs Malhards, (1945) 49 CWN 827; 80 CLJ 90,
as cited in Mahcsh Mathur, ibid at p. 191.
127. (1868) L.R. 3 H.L. 330.
128. Ibid.
129. Shyam Divan and Armin Roscncranz, Environmental Law and Policy in India : Cases,
Materials, and Statutes, (2001), p. 105.
 189
(4) the plaintiff’s consult;

(5) the natural use of land by the defendant (i.e, strict liability applies to a non­

natural user of land); and

(6) statutory authority.

Absolute Liability :

With the expansion o f chemical based industries in India, increasing number of

enterprises store and use hazardous substances. These activities are not banned because

they have great social utility (namely, the manufacture o f fertilizers and pesticides)

Traditionally, the doctrine o f strict liability was considered adequate to regulate such

hazardous enterprises. The doctrine allows for the growth of hazardous industries, while

ensuring that such enterprises will bear the burden o f the damage they cause when a

hazardous substance escapes. Shortly after the Bhopal gas leak tragedy of 1984, the

traditional doctrine was replaced by the rule o f ‘absolute liability’, a standard stricter

than strict liability. Absolute liability was first articulated by the Supreme Court and

has since been adopted by Parliament.

The genesis of absolute liability was the Shriram Gas Leak Case130 which was

decided by the Supreme Court in December, 1989. The case originated in a writ petition

filed in the Supreme Court by the environmentalist and lawyer, M.C. Mehta as a public

interest litigation. The petition sought to close and relocate Shriram’s caustic-chlorine

and sulphuric acid plants which were located in a thickly populated part of Delhi. Shortly

after M.C. Mehta filed this petition, on 4, December, 1985, oleum leaked from Shriram’s

sulphuric acid plant causing widespread panic in the surrounding community.

C hief Justice Bhagwati, who presided over the Supreme Court Bench, was

concerned for the safety o f Delhi’s citizens. Moreover, the Chief Justice saw in the Oleum

leak a way of influencing the pending and far more important Bhopal Gas Leak Case.

In the first reported order in Shriram, the Chief Justice observed that the principles and

norms for determining the liability of large enterprises engaged in the manufacture and

130. M.C. Mehta Vs Union of India, A.I.R. 1987 S.C. 1086.

 190
sale o f hazardous products were 'questions o f the greatest importance particularly since,

following upon the leakage o f MIC gas fi-om the Union Carbide Plant in Bhopal, lawyers

judges and jurists are considerably exercised as to what controls, whether by way o f

relocation or by way o f installation o f adequate saj'ety devices, need to be imposed upon

[hazardous industries], what is the extent o f liability o f such corporations and what

remedies can be devised fo r enforcing such liability with a view to securing payment

o f damages to the person affected by such leakage o f liquid or gas. ,/3/

Union Carbide hinted at a ‘sabotage theory’ to shield itself from the claims of

the Bhopal victims. It was suggested that a disgruntled employee working in the pesticide

factory owned by Carbide’s Indian subsidiary may have triggered the escape o f the gas.

Such a theory afforded a defense under the rule of strict liability laid down in Ryiands

Vs Fletcher. 132 But any faith Union Carbide may have reposed in the sabotage theoiy

was soon shaken by Chief Justice Bhagwati’s rejection of the Ryland’s rule in situations

involving hazardous industries. In his last judgement before retirement, Chief Justice

Bhagwati spoke for the Court :

We are o f the view that an enterprise which is engaged in a hazardous or

inherently dangerous industry which poses a potential threat to the health

and safety o f the persons working in the factory and residing in the

surrounding areas owes an absolute and non-delegable duty to the community

to ensure that no harm results to anyone on account o f hazardous or inherently

dangerous nature o f the activity which it has undertaken... we would therefore

hold that where an enterprise is engaged in a hazardous or inherently

dangerous activity and harm results to any one on account o f an accident

in the operation o f such hazardous or inherently dangerous activity resulting,

fo r example, in the escape o f toxic gas 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 o f the exceptions which operate vis-a-vis the

131. M.C. Mehta Vs Union of India. AJ.R. 19B7 S.C. 965.

132. (1868) L.R. 3 H.L. 330.
 191

tortious principle o f strict liability under the ride in Rylands vs Fletcher.,/JJ

The rule laid down in Rylands Vs Fletcher, is generally known as the ‘Rule of

Strict Liability’ because o f the various exceptions to the applicability of this rule.134

However, this rule of strict liability is to be distinguished from the ‘Rule of Absolute

Liability’ laid down by the Supreme Court o f India in Oleum Gas Leak Case.135 While

formulating this rule in M.C. Mehta Vs Union of India,136 the Supreme Court, itself,

termed the liability recognized in this case as ‘absolute liability’ and expressly stated

that such liability will not be subject to such exceptions as have been recognized under

Rylands Vs Fletcher.137

The Supreme Court took a bold decision holding that it was not bound to follow

the 19th century’s rule of strict liability of English law, and it could evolve a rule suitable

to the social and economic conditions prevailing in India.138 The Supreme Court evolved

the ‘rule of absolute liability’ as part o f Indian law in preference to the rule of strict

liability laid down in Rylands Vs Fletcher. It expressly declared that this new rule was

not subject to any of the exceptions under the rule in Rylands Vs Fletcher.139

Thus, the ‘rule of strict liability’ as laid down in Rylands Vs Fletcher in England

over a century ago, which recognized non liability of the defendant if the leakage of the

substance was due to sabotage etc., was considered to be inapplicable in India.140

The absolute liability theory laid down by the Supreme Court in Oleum Gas Leak

case was first applied by the Madhya Pradesh High Court to support its award of interim

compensation to the Bhopal victims.141 In light o f Oleum, Justice Seth o f the High Court

133. M.C. Mehta Vs Union o f India, A.l.R. 1987 S.C. 1099.

134. (i) Acjt o f G od; (ii) Act o f third party (Sabotage); (iii) Consent o f the plaintiff; (iv) Plaintiff’s
own default; (v) Statutory authority.
135. M.C. Mehta Vs Union o f India, A.l.R. 1987 S.C. 1086.
136. A.l.R. 1987 S.C. 1086.
137. R.K. Bangia, Law o f Torts, (1991), p. 345.
138. Ibid.
139. Ibid.
140. Ibid in ‘Preface’, p. v.
141. Union Carbide Corporation Vs Union o f India, Civil Revision No. 26 o f 1988,4th April 1988.
This judgement was never implemented in view o f the final settlement between the parties.
 1 9 2

described the liability of the enterprise to be ‘unquestionable’.

However, soon thereafter, the wisdom of the theory was questioned by Chief Justice
Ranganath Misra who presided over the proceedings before the Supreme Court for a
review of the Bhopal Case Settlement.142 Chief Justice Misra, in his concurring
judgement, observed that the issue before the Shriram Court was whether the delinquent
company came within the ambit of ‘state’ under Article 12 of the Constitution so as
to be subject of the discipline of Article 21 and to proceedings under Article 32 of the
Constitution. Thus, according to the Chief Justice, what was said about the departure
form the Rylands Vs Fletcher rule ‘was essentially obiter’.143
Justice Venkatachaliah (speaking for Justice K.N. Singh, N.D. Ojha and himself)
in the main judgement in the Bhopal Review also cast doubt on the absolute liability
standard. He implicitly rejected the Madhya Pradesh High Court view that after the no­
exception standard of Shriram, Carbide’s liability was ‘unquestionable’. In Justice
Venkatachaliah’s words :
"At the same time, it is necessary to remind ourselves that in bestowing a
second thought whether the settlement is just, fair and adequate, we should
not proceed on the premises that the liability of the UCC has been firmly
established. It is yet to be decided if the matter goes to trial. Indeed, UCC
has seriously contested the basis o f its alleged liability...... Every effort
should be made to protect the victims from the prospects of a protracted,
exhausting and uncertain litigation. While we do not intend to comment on
the merits of the claims and of the defenses, factual and legal, arising in the
suit, it is fair to recognize that the suit involves complex questions as to the
basis o f UCC s liability and assessment o f the quantum o f compensation in
a mass tort action. " N4

1 4 2 . U n i o n C a r b i d e C o r p o r a t i o n V s U n i o n o f l n d i a ( B h o p a l R e v i e w ) , A . I . R . 1 9 9 2 S . C . 2 4 8 .

1 4 3 . I b i d a t p 2 6 1 . Obiter Dictum a r c w o r d s o f a j u d g e m e n t u n n e c e s s a r y f o r t h e d e c i s i o n o f t h e

c a s e .

1 4 4 . I b i d ' a t p . 3 0 6 .
 193

In recognizing Carbide’s right to raise and urge defenses the Court stepped back

from the ‘without exception’ absolute liability principle declared in Shrirain.

Mean while in January, 1991, Parliament enacted the Public Liability Insurance

Act, giving statutory recognition to ‘no-fault’ liability in small measure. The victims

o f a hazardous industrial accident were now entitled to compensation at prescribed levels,

without proof o f negligence. The maximum compensation under the Act on a ‘no fault*

basis, however, is limited to Rs, 25,000; although the right of a victims, to claim larger

damages is expressly reserved. To safeguard the interest o f victims, the law requires all

hazardous enterprises to obtain sufficient insurance cover.

The application of absolute liability was extended without limitation by the National

Environment Tribunal Act, of 1995, to all cases where death or injury to a person

(other than a workman) or damage to any property or the environment result from an

accident involving a hazardous substance. The ‘owner’ who is defined to mean a person

who owns or has control over the handling o f any hazardous substance at the time of

the accident, is liable to compensate the victims on a ‘no-fault’ basis. Applications for

compensation may be made to the Tribunal established under the Act. The heads under

which compensation may be claimed are setout in the schedule to the Act and in addition

to the omnibus entry 'any other claim arising out o f or connected with any activity o f

handling hazardous substances ’, they include death; injmy; medical expenses, damage

to private property; expenses incurred by government authorities in providing relief and

rehabilitation; loss or harm to animals, crops, trees, and orchards; and loss o f business

or of employment. Although the law was enacted in June, 1995, it was not mentioned

in the judgment o f the Supreme Court in the Indian Council for Enviro-legal Action Vs

Union of India (Bichhri case).145

In the Bichhri case, a Supreme Court Bench o f two judges grappled with the

seemingly divergent views expressed by the live-judge Constitution Benches in the

Shriram and Bhopal Review Cases.

145. A.I.R. 1996 S.C. 1446.

 194

The ‘Polluter pays principle’ as interpreted by this Court (in Bichhri) means that

the absolute lability for harm to the environment extends not only to compensate the

victims o f pollution but also the cost of restoring the environmental degradation.146

Legislative Environmentalism : The Law of Ecology and Environment:

The law relating to the environment is derived from two principal sources, namely,

common law developed by courts through judicial precedents and the statutory law with

regulations or bye laws made, thereunder.147 It is said that environmental law is an

amalgamation o f ‘common law and statutory principles’ . 148 Even before the specific

laws came into force, there were certain common law remedies against environmental

pollution.149

The roots of modern environmental law can be found in the common law concept

o f nuisance.150 The definition o f pollution under the Water Act, 151 goes to show that

contamination of water can be said to be pollution, when it may or is likely to create

a nuisance. Section 2 (e) of the Water (Prevention and Control of Pollution) Act, 1974,

defines ‘pollution’ :

“Pollution means such contamination o f water or such alteration o f the

physical, chemical or biological properties o f water or such discharge o f

any sewage or trade effluent or o f 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 o f animals or plants or o f aquatic organisms. ”

146. Ibid. Quoted with approval in Vellore Citizen's Welfare Forum Vs Union oflndia, A.I.R.
1996 S.C. 2715, 2721. Sec also Salish Ch. Shastri, ‘ The Polluter Pays Principle and the
Supreme Court o f India' in Journal o f the Indian Law Institute, Vol. 42 No. 1, January -
March, 2000, p. 109.
147. M.C. Longlin, The law Relating to Pollution, (1972) pp. 8-10, as cited in P. Leclakrishnan,
Environmental Law in India, (1999). p. 2.
148. P. Leclakrishnan, Environmental Law in India, (1999), p. 2.
149. Mahesh Mathur, Legal Control o f Environmental Pollution : Jurisprudence and Laws
Applicable to Environmental Violation and Prevention,( 1998), p. 153.
150. Supra n. 148 at p. 33.
151. The Water (Prevention and Control o f Pollution) Act, 1974.
 195
Nuisance can be divided into two categories - private nuisance and public

nuisance. While private nuisance is interference with the use of land, public nuisance

denotes an interference with a right common to the general public. Although both

categories have substantial nexus with environmental management, the ‘law of public

nuisance’ has a predominant connection with ‘environmental law’.

Lord Denning has observed : 152

'‘Public nuisance is a nuisance which is so widespread in its range or so

indiscriminate in its effect that it would not be reasonable to expect one to

lake proceeding on his responsibility to put a stop to it, but that should be

taken as the responsibility o f the community at large. ”

Inevitably, it is an act of illegal omission, which causes any common injury, danger

or annoyance to the public who dwell or occupy property in the vicinity. It may also be

an act causing injury, obstruction, danger or annoyance to a person who may have occasion

to exercise public rights. 153

Chart I'54 (Part 1)

Laws of Ecology and Environment
(Legislative Principles)

Common Law
Principles Developed by Courts Statutory Principles
Through Judicial Precedents

Nuisance Trespass Negligence Strict Laibility

Absolute Liability
Private Nuisnce Public Nuisance (Post Bhopal Period)

152. Attorney General Vs PYA Quarries, 11957J 2Q.I3. 167,190-191, as cited in P. Leeiakrishnan,
Environmental Law in India, (1999), p. 2.
153. Section 268 o f the Indian Penal Code, 1860.
154. This Chart in Part-1, II, HI and IV (Legislative Principles) has been prepared on the basis o f
study o f various Acts which, directly or indirectly, provide environmental protection under
 196
(Part U)

Statutory Principles

Constitutional Principles155 Legislative Principles

Laws Relating to Pollution Laws Relating to Forests, Laws Relating to

Contol Wild Life, and Bio Diversity Liability
(i) The Water Act, 1974 (i) The Indian Forest, (i) The Publuc
(ii) The Water Cess Act, 1927 Liability
Act, 1977 (ii) The Wild Life Insurance
(iii) The Air Act, 1981 (Protection) Act, 1991
(iv) The Environment Act, 1972
(Protection), Act, 1986 (iii) The Forest
(Conservation)
Act, 1980
(iv) The Plant Varieties
Act, 2001
(v) The Bio Diversity
Act, 2002
(Part HI)
(Legislative Principles)

Laws Relating to Laws Relating to Human Laws Relating to

Environmental Tribunals Rights Commissions Environmental Crime
(i) The National (i) The Protection of and Procedure
Environment Human Rights (i) The Indian Penal
Tribunal Act, 1995 Act, 1993 Code, 1860
(ii) The National (Suo Motu Cases (ii) The Code of
Environment of Pollution) Criminal Procedure,
Appellate A uthority 1973
Act, 1997
(Compensation etc.)

the Indian Legal System. The study reveals that most o f the Acts, except those enacted since
1972, are piecemeal and inadequate for want o f specific application. In most cases, the
environment concern is incidental to the law's principal object. It was only in the early 1970s
that the Central Government started enacting comprehensive environmental laws.
155. ‘Constitutional Principles’, in relation to environmental protection, have already been discussed
in Chapter II (Constitutional Environmentalism in India) o f this thesis.
 197
(Part IV)
(Legislative Principles)

Laws R elating to Injunctions Laws Relating to Allied

and Environmental Subjects
Class Action Suits (i) The Indian Fisheries
(i) The Code o f Civil Act, 1897
Procedure, 1908 (ii) The F actories A ct,
(ii) The Specific R elief Act, 1948
1963 (iii) The Atomic Energy
Act, 1962
(iv) The Insecticides Act,
1968
(v) The M otor Vehicles
Act, 1988, etc.

Generally, modern environmental law provides for a system o f regulation by statute.

Administrative agencies, created under environmental statutes, are required to implement

legislative mandates. Frequently, for lack o f staff, money or will, these agencies fail to

implement the laws under which they operate, and ecological degradation continues unabated.

In this event, the citizen has a choice o f three civil remedies, to obtain redress :

(1) a common law tort action against the polluter ;

(2) a writ petition to compel the agency to enforce the law;156 and to recover

clean up or remedial costs from the violator ; or

(3) • in the event o f damage from a hazardous industry accident, an application

for compensation under the Public Liability Insurance Act, 1991 or the

National Environment Tribunal Act, 1995.

Among the civil remedies, the writ jurisdiction is the most popular; the action in

tort but rarely used ; and the statutory remedies, largely untired. Supplementing the

redressal machineiy is the N ational E nvironm ent A ppellate A uthority Act, o f 1997,

which creates an appellate forum to test the validity o f environmental clearances for

156. On the foundation o f the ‘affirmative duly doctrine', enunciated in the Mancka Gandhi's Case
(A.I.R. 1978 S.C. 597, para 56), the Supreme Court has enunciated the theory' that it is open
to the court to enforce the duty implied by Article 48A through the device o f issuing directions
under Article 32 (2) o f the Constitution.
 I

198

industrial projects granted under the Environment (Protection) Act, 1986. In addition,

if the pollution amounts to a ‘public nuisance’, a remedy under the Criminal Procedure

Code o f 1973, is also available. Finally, a citizen may make a criminal complaint under

Section 19 o f the Environment (Protection) Act, 1986, or the corresponding provisions

under the Water Act and the Air Act to trigger the prosecution o f polluters.

Although, there are two hundred central and state statutes that have some bearing

on environmental protection,15’ in most cases, the environmental concern is incidental

to the law’s principal object. For example, the Indian Fisheries Act, o f 1897, prohibited

the destruction o f fish by the use o f explosives or by poisoning the water. Such scattered

and piecemeal environmental provisions held the field until the 1970s.’58

In that decade, the evolution o f national environmental policies resulted in

Parliament enacting comprehensive laws in the fields o f wildlife protection and water

pollution. In the early 1980s, nationwide forest conservation and air pollution laws were

passed, The Bhopal Tragedy in December, 1984, caused a surge in environmental

legislation : An umbrella Environment (Protection (Act (EPA) was passed in 1986,

followed by amendments tightening the laws relating to air and water pollution and to

hazardous activities. The 1990s witnessed fresh legislation dealing with insurance cover

for hazardous industries, new laws setting up an environmental tribunal and appellate

authority, amendments to the wild life regime and a spate o f central regulations under

the EPA. To provide an overview o f environmental regulation in India, this Chapter

seeks to explore the various laws that directly or indirectly provide environmental

protection under the Indian legal system.

Laws Relating to Allied Environmental Subjects :

Statutes having some bearing on environmental protection either directly or

157. Department o f Science and Technology, Government offndia, Report o f the Tivvari Committee
for Recommending Legislative Measures and Administrative Machinery for Ensuring
Environmental Protection, (1980), Para 3 . 1, as cited in Shyam Divan and Arinin Rosencranz,
Environmental Law and Policy in India: Cases, Materials and Statutes, (2001), p. 58.
158. At the State level, however, there are a few isolated instances o f pre-1970 comprehensive
environmental laws, namely, the Orissa River Pollution Prevention Act, o f 1953, and the
Maharashtra Prevention o f Water Pollution Act, o f 1969.
 199

indirectly. It must be noted that in most cases the environmental protection is incidental

to the law’s principal object (i.e., the laws relating to allied subjects that have some

bearing on environmental protection).

C hart I I 159 (P art I) (Legislative Principles)

Laws Relating to Laws Relating to Poison, Laws Relating to

Factories, Industries, Insecticides, Prevention of Explosives, Atomic
Mines and Minerals Food Adulteration. Energy
(i) The Factories Act, (i) The Poison Act, 1919 (i) The Explosives Act,
1948 (ii) The Insecticides Act, 1884
(ii) The Industries 1968 (ii) 'I’he Explosives
(Development (iii) The Prevention o f substances Act, 1908
and Regulation) Food Adulteration (iii) The Atomic Energy
Act, 1951 Act, 1954 Act, 1962
(iii) The Mines and
Minerals (Regulation
and Development)
Act, 1957
(iv) Dangerous Machines
(Regulation)
Act, 1983

(P art II) (Legislative Principles)

Laws Relating to Public

Laws Relating to Motor Laws Relating to Fisheries
Property, Ancient
Vehicles, and Steam and Rivers Broads
Monuments and
Engines (i) The Indian Fisheries
Archaelogicai Sites.
(i) The Motor Vehicles Act, 1897
(i) The Prevention of
Act, 1988 (ii) The R iver Boards
Damage to Public
(ii) The Indian Boilers Act, 1956
Property Act, 1984
Act, 1923
(ii) The Ancient
Monuments
Preservation Act, 1904
(iii) The Ancient
Monuments and
Archaelogicai Sites
and Remains Act,
1958

159. This Chart II in five parts ( Laws relating to allied subjects dial have some bearing on
environmental protection) has been prepared on the basis o f study o f various Acts that, directly
or indirectly, provide environmental protection under the Indian Legal System. The study
reveals that in almost all cases, environmental concern is incidental to the law's principal
object. Such scattered and piecemeal environmental provisions held the field until the 1970s.
 200
(Part III) Legislative Principles

Laws Relating to Laws Relating to Ports Laws Relating to

C attle T respass and and Merchant Shipping Income Tax, Monopoly
Prevention o f Cruelty to (i) The Indian Ports Restrictive Trade
Animals Act, 1908 Practices and Consumer
(i) The Cattle Trespass (ii) The Merchant Protection
Act, 1871 Shipping Act, 1958 (i) The Income Tax
(ii) The Prevention o f Act, 1961
Cruelty to Animals (ii) The Monopoly
Act, 1960 Restrictive Trade
Practices Act, 1969
(iii) The Consumer
Protection Act, 1962
(Part IV) Legislative Principles

Laws Relating to Easement, Laws Relating to Civil Laws Relating to Smoke

Safety, Health and Welfare Rights and Apartheid and Nuisance
o f Workers. (i) The Protection of (i) The Bengal Smoke
(i) The Indian Easement Civil Rights Act, Nuisance Act, 1905
Act, 1882 1955 (ii) The Bombay Smoke
(ii) The Dock Workers (ii) The Anti-Apartheid Nuisance Act, 1912
(Safety, Health and (United Nations (iii) The Shore Nuisance
Welfare) Act, 1986 Convention) Act, (Bombay and
1981160 Kobala) Act, 1853
(Part V) Legislative Principles

Laws relating to Fresh Water (River, Stream Laws relating to Marine

etc.) Pollution. Pollution
(i) The Oriental Gas Company Act, 1857 (i) The Obstruction in
(ii) The Sarais Act, 1867 Fairways Act, 1881
(iii) The N orthern India Canal and (ii) The Indian Ports Act,
Drainage Act, 1873 1908
(iv) The Damodar Valley (iii) The Merchant Shipping
Corporation Act, 1948 Act, 1958
(vii)The River Boards Act, 1956 (iv) The Merchant Shipping
(ix) The Orissa River Pollution (Amendment) Acts, 1970
Prevention Act, 1953 and 1983.
(x) The Maharashtra Prevention
of Water Pollution Act, 1969

The Stockholm Conference, 1972, was the starting point for India’s legislations for ecology
and environment. Following this Conference, the Parliament passed a number o f Acts, thereby,
initiating appropriate steps to implement the decisions taken in the said Conference.
160. The objective o f this Act is, indeed, captured by the Second o f the Principles o f Environmental
Justice, adopted at the First National People o f Color Environmental Leadership Summit held
 201

In India, we do have a plenty o f laws which deal with various aspects of

environmental protection ; regulate the conduct o f environmentally harmful activities

and provide for remedies in cases of their breach.161 The laws can be broadly classified

into three :

1. Common law doctrines under the law o f torts ;

2. Constitutional provisions ; and

3. The statutory enactments.

The common law doctrines o f nuisance, trespass, negligence, the rule of strict

liability and the riparian owner’s rights still are in vogue existing apart from the statutory

control of pollution in India. These doctrines enslirine common law control for the liability

for escape o f noxious objects, careless use o f noxious articles or pollutants and the

infringement of property rights in water. Thus, they cover cases of water, air and noise

pollution. The distinct advantage of these doctrines is that they provide injunctive162 and

the compensatory reliefs.163

Our Constitution is the ‘principal source of environmental laws’ which contains

specific provisions for environmental protection.16,1 The chapters oil directive principles

of state policy and fundamental duties explicitly enunciate the national commitment to

protect and improve the environment.165 This constitutional mandate though has been

further strengthened and expanded by judicial interpretation by recognizing the right to

wholesome environment166 as being implicit in the fundamental right to life, but the

imperative still awaits adequate implementation by the executive limb o f the state.

in Washington D.C., October, 27, 1991 : ‘Environmental Justice demands that public policy
be based on mutual respect andjustice fo r all peoples, free from anyform o f discrimination
or bias. ‘
161. Kailash Thakur, Environmental Protection Law and Policy in India, (1999), p, 280.
162. Temporary injunctions are regulated by Rule 1 o f Order 39 o f the Code o f Civil Procedure,
1908; perpetual injunctions are regulated by Sections 37 to 42 o f the Specific Relief Act,
1963.
163. Lawyers in India intent on abating pollution may seek a temporary injunction against the
polluter followed by a perpetual injunction, Damages should be viewed as bonus.
164. Article 48 A and 51 A (g).
165. Kailash 1 hakur, Environmental Protection Law and Policy in India, (1999), p. 281.
166. Chhctriya Pradushan Mukli Sangarsh Suinili Vs State o f U.P., A.l.R. 1990 S.C. 2060; Subhash
 202
Constitutional remedies under writ jurisdiction167 can be availed of for abatement of

pollution.

The statutory control of pollution in the form of State, Central and Municipal

enactments are not lacking in India. Even in pre-independence era environmental pollution

was regulated by general law, namely, the Indian penal Code, 1860, the Code o f Criminal

Procedure, 1898, and the Police Act, 1861, having relevant provisions dealing with control

o f water, air, noise pollution and nuisances. Whereas, water pollution was controlled

mainly by the North Canal and Drainage Act, 1873, the Obstruction of Fairways Act,

1881, the Indian Fisheries Act, 1897, air pollution control provisions were contained in

the Oriental Gas Company Act, 1857, the Explosives Act, 1884, Indian Boilers Act,

1923, the Petroleum Act, 1934, and the Factories Act, 1948. Pesticides were regulated

by Poison Act, 1919. Wild life conservation and forest conservation, in addition state

enactments were governed by the Indian Forest Act, 1927.

It was the second half o f the 20lh century, wherein the legislative activity got a

new impetus with the promulgation o f exclusive environmental enactments. The recent

statutes passed are the Insecticides Act, 1968, the Wild Life (Protection) Act, 1972, the

Water (Prevention and Control of Pollution) Act, 1974, the Water (Protection and Control

o f Pollution) Cess Act, 1977, the Forest (Conservation) Act, 1980, the Air (Prevention

and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public

Liability Insurance Act, 1991, the National Environment Tribunal Act, 1995, the National

Environment Appellate Authority Act, 1997, the Plant Varieties and Farmer’s Rights

(Protection) Act, 2001, and the Bio Diversity Act, 2002 .

Interpretation of Environmental Statutes :

Frequently, judges must choose between two possible interpretations o f an

environmental statute, one that advances environmental protection, and the other

favouring some other interest, such as, industry, jobs or the need for energy. In this
Kumar Vs State of Bihar, A.l.R. 1991 S.C. 420.
167. The writs o f certiorari, prohibition and mandamus arc generally resorted to in environmental
matters. The judiciary has made an extensive use o f these provisions and, thereby, developed
a new environmental jurisprudence o f India.
 203

situation, a judge may be persuaded to a pro-environment construction on the basis of

rules for the interpretation of statute. A strong statement by the Supreme Court favouring

a pro-environment interpretation was in the Sariska Case,168 where the Court held :

"This litigation concerns environment. A great American Judge emphasizing

the imperative issue o f environment said that he placed Government above

big business, individual liberty above Government and environment above

a ll...... The issues o f environment must and shall receive the highest attention

from this Court”

Environment statues are regarded as ‘beneficent’ legislation, enacted to advance

the directive principle o f state policy contained in Article 48 A of the Constitution. Being

beneficent legislation, it is the duty of the Court to adopt an interpretation favouring

‘ecological preservation*.

Another related rule requires Courts to adopt a ‘purposive* interpretation or an

approach that advances the purpose which the legislature had in mind when enacting

the law. For example, in V. Shankar Reddy Vs State of Andhra Pradesh,169 a division

bench o f the Andhra Pradesh High Court uphold the invalidation of government order

permitting a forest to be cleared, since the order was against the purpose of the legislation,

which was forest conservation. Occasionally, powers delegated to enforcement agencies

under environmental laws are exercised for a purpose that undermines the object of the

law. This is impermissible. In the Bangalore Medical Trust Case,170 for instance, the

Supreme Court held that discretion vested in an authority must be exercised for the

purpose o f attaining the objects of the law. A plot reserved for a public park could not

be allotted arbitrarily to a private hospital by altering the town planning scheme. The

alteration did not improve the scheme and, therefore, was contrary to the purpose for

which the power to alter the scheme was conferred.

168. Tarun Bhara Sangh, Alvvar, Vs Union ofindia, Writ Petition (Civil) No. 509 o f l 991, Supreme
Court, 14, May, 1992 (M.N. Venkalachaliah and B.P. Jcjvan Reddy, JJ.)
169. (1992) 2 Andh, L.T, 514, 529
170. Bangalore Medical Trust Vs B.S. Muddappa, A.I.R. 1991 S.C. 1902, 1911, 1924.
 204

Early Environmental Legislation :

A survey of early environmental legislation indicates the nature and levels of

governmental awareness to environmental issues.171 Apart from forest laws, nineteenth

century legislation also partially regulated two other aspects of India’s environment :

w ater pollution and wildlife. These laws, however, had a narrow purpose and limited

territorial reach.

The Shore Nuisance (Bombay and Kobala) Act o f 1853, one o f the earliest laws

concerning water pollution, authorized the collector of land revenue in Bombay to order

the removal o f any nuisance below the high-water mark in Bombay harbour. In 1857,

an attempt was made to regulate the pollution produced by the Oriental Gas Company

by imposing fines on the company and giving a right of compensation to anyone whose

water was ‘fouled’ by the company’s discharges.172

The Indian Penal Code, enacted in 1860, imposed a fine on a person who voluntarily

'fouls the water o f any public spring or reservoir In addition, the Code penalized

negligent acts with poisonous substances that endangered life or caused injury and

proscribed public nuisances. The Indian Easement Act of 1882, protected riparian owners

against ‘unreasonable’ pollution by upstream users. The Indian Fisheries Act passed in

1897, penalized the killing of fish by poisoning water and by using explosives. Legislative

provisions regulating the discharge of oil into port waters173 and prohibiting the poisoning

o f water in forests174 were also enacted prior to independence.

Two early post independence laws touched on water pollution. Section 12 of the

Factories Act of 1948, required all factories to make ‘effective arrangem ents’ for waste

disposal and empowered state governments to frame rules implementing this directive.

Second, river boards, established under the River Boards Act of 1956, for the regulation

The Emergence o f Environmental Lcnvs in the Developing Countries

1 7 1 . S e e g e n e r a l l y R a m k r is h n a ,
: A Case Study o f India , 12 ECOLOGY L. Q. 9 0 7 ( 1 9 8 5 ) , a s c it e d in S h y a m D i v a n a n d A r m i n
R o s e n c r a n z , Environmental Law and Policy in India: Cases, Materials and Statutes, ( 2 0 0 1 ) ,
p. 3 0 .

1 7 2 . S e c t io n s 1 5 -1 7 , T h e O r ie n t a l ( l a s C o m p a n y A c t o f 1 8 5 7 .

1 7 3 . S e c t io n s 2 1 , T h e In d ia n F o r t s A c t o f ! 9 0 8 .

1 7 4 . S e c t io n s 2 6 , T h e In d ia n F o r e s t A c t o f 1 92 7.
 205
and development o f inter state rivers and river valleys, were empowered to prevent water

pollution. In both these laws, prevention o f water pollution was only incidental to the

principal objective of the enactment.

The earliest laws aimed at controlling air pollution were the Bengal Smoke

Nuisance Act of 1905, and the Bombay Smoke Nuisance Act of 1912.

In the field of wild life protection, early legislation was limited to specific areas

and particular species. In 1873, Madras enacted the first wild life statute for tile protection

o f wild elephants. The law introduced a general prohibition on the destruction o f wild

elephants and imposed a penalty on those who violated the embargo. The first effort

by the Central Government came six years later with the passing of the Elephant’s

Preservation Act, 1879. In 1887, the Centre enacted the Wild Birds Protection Act

prohibiting the possession or sale of wild birds recently killed or taken, during notified

breeding seasons.'75

In 1912, the Central Government enacted a broader Wild Birds and Animals

Protection Act. Extending to most of British India, this law specified closed hunting

seasons and regulated the hunting o f designated species through licences. Indeed, all the

statutes related primarily to the regulation o f hunting and did not regulate trade in wildlife

and wildlife products - both major factors in the decline of Indian wild life. As a

consequence, wild life depredation continued and many species became extinct.

The first comprehensive law for the protection o f wildlife and its habitat was

perhaps the Hailey National Park Act of 1936, which established the Hailey (now Corbett)

National Park in the State of Uttar Pradesh.

This review suggests that early legislative efforts were piecemeal and inadequate.

Not until the 1970s did the Central Government begin enacting comprehensive

environmental laws.

175 Rules published in the Bombay Government Gazette, 20 July, 1911, p. 1219, notifying the
breeding season for the Talegaon Dabhade Municipality, as cited in Shyam Divan, supra n.
171 at p. 31.
 206
India’s Environmental Policy in the Post Stockholm Period :

In the summer of 1972, Stockholm staged the first U.N. Conference held specifically

to consider global environmental conditions. Heads o f State and High Government

Officials from 113 countries participated in the deliberations which culminated in the

adoption o f a Declaration and an Action Plan. Prime Minister Indira Gandhi was

amongst the leaders of the Third World who addressed the Conference.

The year 1972 marks a watershed176 in the history o f environmental management

in India. Prior to 1972, environmental concerns, such as, sewage disposal, sanitation

and public health were dealt with by different federal ministries, and each pursued these

objectives in the absence of a proper coordination system at the federal or the inter­

governmental level. When the twenty-forth U.N. General Assembly decided to convene

a conference on the human environment in 1972, and requested a report from each

member country on the state of the environment, a committee on the Human Environment

under the leadership o f Pitambar Pant, member of the Planning Commission, was setup

to prepare India’s report. By May, 1971, three reports had been prepared.’77

(1) Some Aspects of Environmental Degradation and its Control in India ;

(2) Some Aspects of Problems of Human Settlement in India ; and

(3) Some Aspects of Rational Management o f Natural Resources.

With the help o f these, the impact o f the population explosion on the natural

environment and the existing state of environmental problems were examined. By early

1972, it had been realized (as observed in Fourth Five Year Plan earlier) that unless a

national body was established to bring about greater coherence and coordination in

environmental policies and programmes and integrate environmental concerns in the

plans of economic development, an important lacuna would remain in India’s planning

process. Consequently, on 12, April, 1972, a National Committee on Environmental

Planning and Coordination (NCEPC) was established.178

176. Dwivedi, India's Environmental Policies, Programmes and Stewardship, (1997), p. 54.
177. ibid.
178. Ibid.
 207
The NCEPC was an apex advisory body in all matters relating to environmental

protection and improvement. The Committee was to plan and coordinate, but the

responsibility for execution remained with the various ministries and government

agencies.'

The Fifth Five Year Plan (1974-79) stressed that the NCEPC should be involved

in all major industrial decision, so. that environmental goals would be taken fully into

account.

In the Sixth Five Year Plan (1980-85), an entire chapter on ‘Environment and

D evelopment’ was included that emphasized sound environmental and ecological

principles in land use, agriculture, forestry, marine exploration, mineral extraction,

fisheries, energy production and human settlements.179

The basic approach taken by the Seventh Plan (1985-90) was to emphasize

sustainable development in harmony with the environm ent180. The Plan called for

the government and voluntary agencies to work together to create environm ental

awareness, because improving the quality of the environment required the involvement

o f the entire public.

The Eight Five year plan (1992-97), because of the uncertain political situation in

India, came out in 1992, rather than 1990. It gave an important place to the environment

by moving it to the forth categoty of subjects examined in the text. The Plan stated :181

"Systematic efforts have been made since the Sixth Plan period to integrate

environmental considerations and imperatives in the planning process in all

the key socio-economic sectors. As a result o f sustained endeavour, planning

in all major sectors like industry, science and technology, agriculture, energy

and education includes environmental consideration. ”

The Planning Commission setup an expert committee to formulate long-term

179. Ibid. See also Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India
: Cases, Materials and Statutes, (2001), p. 34.
180. Ibid.
181. Ibid.
 208
sectorial (including environment and forest) policies. It also noted that many

environmental problems were continuing to cause serious concern, for example, the loss

o f top soil and vegetative cover, the degradation of forests, continuing pollution by toxic

substances, careless industrial and agricultural practices, and unplanned urban growth.

It acknowledged that environmental degradation was seriously threatening the economic

and social progress o f the country, and that ‘our future generations may discover that

life support systems have been damaged beyond repair'. 182

The continuing decline in the quality of the environment, together with the tragedy

at Bhopal in which a leak from a pesticide factory killed more than 2,500 people and

injured several thousands others, has spurred the Central Government and a few state

governments to adopt stronger environmental policies, to enact fresh legislation and to

create, reorganize and expand administrative agencies.

In December, 1988, the Union Ministry o f Environment and Forests constituted

a committee to recommend a framework and an action plan for the conservation of

resources. The committee, which was comprised o f eminent scientists, journalists,

environmentalist and senior bureaucrats, prepared a draft policy statement for a national

conservation strategy and invited comments and suggestions on the draft from hundreds

o f respondents across the country. After assimilating the responses received from

governmental and non-governmental organizations, the committee submitted a report to

the Union Government in April, 1990.183 Based on the recommendations of the committee,

the Government o f India adopted a National Conservation Strategy and Policy

Statem ent on Environment and Development in June, 1992 (NCS).18'' The preamble

to the NCS adopts the policy o f ‘sustainable development’ and declared the government’s

commitment to re-orient policies and action ‘in unison with the environmental

182. Ibid.
183. Ministry of Environment and Forests, Government of India, Report o f the Core Committee
fo r Recommending a National Strategyfor Conservation and Sustainable Development (April,
1990), as cited in Sliyam Divan and Arm in Roscncran/,, supra n. 179 at p. 35.
184. Ministry of Environment and Forests, Government of India, National Conservation Strategy
and Policy Statement on Environment and Development (June, 1992), as cited in Shyam
Divan and Armin Roscneranz, supra n. 179 at p. 35.
 209
perspective’.185 The NCS proceeds to recognize the enormous dimensions of the

environmental problems facing India and declares strategies for action in various spheres,

such as, agriculture, forestry, industrial development, mining and tourism. Special sections

in the NCS deal with the rehabilitation of persons ousted by large development project;

the role of non-governmental organizations ; and the special relationship between women

and the environment.

In February, 1992, the Union Governmcntl8<i published its policy for the abatement

o f pollution. This statement declares the objective of the government to integrate

environmental considerations into decision making at all levels. To achieve this goal,

the statement adopts fundamental guiding principles, namely, (i) prevention of pollution

at source ; (ii) adoption of the best available technology ; (iii) the polluter pays principle;

and (iv) public participation in decision making.187 Expanding on the public partnership

theme, the statement declares :

“The public must be aware in order to able to make informed choices. A

high government priority will be to educate citizens about environmental

risks, the economic and health dangers o f resource degradation and the real

cost o f natural resources. Information about the environment will be published

periodically. Affected citizens and non-governmental organizations play a

role in environmental monitoring and therefore allowing them to supplement

the regulatory systems and recognizing their expertise where such exists

and their commitment and vigilance will also be cost effective. Access to

information to enable public monitoring o f environmental concerns, will be

provided for.

Public interest litigation has successfully demonstrated that responsible non

governmental organizations and public spirited individuals can bring about

185. Ibid at Paras 1.1 and 1.4.

186. Ministry o f Environment o f Forests, Government o f India, Policy Statement for Abatement
o f Pollution (26 Feb, 92), as cited in Shyam Divan and Armin Rosencranz, supra n. 179 at p.
35.
187. Ibid at Para 3.3.
 210
significant pressure on polluting unitsfo r adopting abatement measures. This

commitment and expertise will be encouraged and their practical work

supported. ”188

This development traces the transformation in governmental policy, from

environmental indifference to environmental concern, that guided India into an era

o f comprehensive environmental legislation.

Laws Relating to Pollution Control :

Stockholm Conference, 1972, was the starting point for India’s legislations for

‘ecology and environment’. Following this Conference the Parliament of India passed

a number of Acts and, thereby, initiating appropriate steps to implement'89 the decisions

taken in the said Conference.

The preamble to the Air (Prevention and Control of Pollution) Act, 1981, contains

a formal presentation o f the fact and includes that the decisions so taken were ‘to take

appropriate steps for the preservation o f the natural resources o f the earth which, among

other things, include the preservation o f the quality o f air and control o f air pollution ’.

The preamble also records that ‘it is considered necessary to implement the decisions

aforesaid, in so far as, they relate to the preservation o f the quality o f air and control

o f air pollution.'

Similarly, the preamble to the Environment (Protection) Act, 1986, also contains

a formal presentation o f the fact and includes that the decisions so taken were 'to take

appropriate steps fo r the protection and improvement o f human environment'. The

preamble also records that 'it is considered necessary further to implement the decision

aforesaid, in so far as, they relate to the protection and improvement o f environment

and the prevention o f hazards to human beings, other living creatures, plants and

property.'

188. Ibid at Para 11.1.

189. Article 253 o f the Constitution o f India.
 211
The. Water (Protection and Control of Pollution) Act, 1974, was the culmination

o f over a decade of discussion and deliberation between the Centre and the States. The

history and the preamble of the Water Act suggest that only state governments can enact

water pollution legislation. The Act, therefore, was passed by Parliament pursuant to

enabling resolutions by twelve states, under Article 252(1) of the Constitution. Article

252 empowers Parliament to enact laws on state subjects for two or more states, where

the state legislatures have consented to such legislation.

The Water (Prevention and Control o f Pollution) Act, 1974, has important

constitutional implications with an international background. This Act also drew immense

inspiration from the proclamation adopted by the United Nations Conference on the

Hum an Environment which took place at Stockholm, from 5th to 16th June, 1972, in

which the Indian delegation played a major role.190

The Stockholm Conference proclaims191 :

"The protection and improvement o f the human environment is a major issue

which affects the well being o f peoples and economic development throughout

the w orld; it is the urgent desire o f the peoples o f the whole world and the

duty o f all Governments, ”

The Stockholm Conference, in Principle 2, further states :

“The natural resources o f the earth including the air, water, land .flora and

fauna and especially representative samples o f natural ecosystems must be

safeguarded fo r the benefit o f present and future generations. ”

The seriousness attached to the environmental problem is evident from the fact

that in all advanced countries, scientists, economists, policy makers and administrators,

190. Indian delegation was led by Mrs. Indira Gandhi, the then Prime Minister o f India. In her
speech at this Conference, she had stressed the need o f linking environment with development
at a global level. She had also identified ‘poverty’ as the most important polluter o f our
environment.
191. Proclaim 2, United Nations Conference on the Human Environment, held at Stockholm,
Sweden, from 5 th to 16th June, 1972, with a view to express concern over depletion o f natural
resources and also to share common concern o f water and air pollution.
 212
have given serious thought to such problems. The Departments of Environment are vibrant

with activities in many such advanced countries. The developing and even under

developed nations urgently need to address themselves to this devastating problem,

especially the air and water pollution problem.

While according to Article 48 A o f the Constitution o f India , the State shall

endeavour to protect and improve the environment and to safeguard the forests and

wildlife o f the country, Article 51 A(g) o f the Constitution, also imposes as one o f the

fundamental duties on every citizen to protect and improve the natural environment

including forests, lakes, rivers and wild life and to have compassion for living creatures.192

The Water (Prevention and Control of Pollution) Act, 1974, is a specialized

legislative measure, meant to tackle one facet o f environmental pollution. Its main

objective are :

(i) to provide for the prevention, control and abatement o f air pollution ;

(ii) to provide for the establishment o f Central and State Boards, with a view

to implement the aforesaid purpose ;

(iii) to provide for conferring on such Boards Powers and assigning to such Boards

functions relating thereto; and

(iv) . for matters connected therewith.

The rationale for passing o f this Act, has been quite eloquently stated in the

‘Statement of Objects and Reasons’ as193 ‘the problem ofpollution o f rivers and streams

has assumed considerable importance and urgency in recent years as a result o f the

growth o f industries and the increasing tendency to urbanization. It is, therefore, essential

to ensure that the domestic and industrial effluents are not allowed to be discharged

into water courses without adequate treatment as such discharges would render the water

192. Both Articles 48 A and 51 A (g) were inserted in to the Constitution by the Constitution (42nd
Amendment) Act, 1976. This Amendment is considered to be a revolution and the first o f its
kind in the constitutional history expressing concern for the environment and its protection.
193. Universal's The Water (Prevention and Control o f Pollution) Act, 1974 (Bare Act with short
notes), (1997), p. 1.
 213
unsuitable as source o f drinking water as well as for supporting fish life and for use

in irrigation. Pollution of rivers and streams also causes increasing damage to the

country’s economy ...............”

Fram ew ork of the W ater Act :

The Water Act o f 1974, represented one o f India’s first attempts to deal

comprehensively with an environmental issue. Parliament adopted minor amendments

to the Act in 1978, and revised the Act in 1988, to more closely in 1978, and revised

the Act in 1988, to more closely conform to the provisions of the Environment (Protection)

Act, 1986.

‘W ater’ is a subject in the State List under the Constitution.194 Consequently, the

Water Act, a central law, was enacted under Article 252 (1) of the Constitution which

empowers the Union Government to legislate in a field reserved for the states, where

two or more State Legislatures consent to a central law. All the states have approved

implementation of the Water Act as enacted in 1974.195

The Water Act establishes a central and state pollution control boards. The central

board may advice the Central Government on water pollution issues, coordinate the

activities o f state pollution control boards, sponsor investigation and research relating

to water pollution, and develop a comprehensive plan for the control and prevention of

water pollution.196 The central board also performs the functions of the state board for

the union territories. In conflicts between a state board and the central board, the central

board prevails. Since 1982, the central board has been attached to the Union Government’s

Department of Environment, Forests, and wildlife.

The Water Act is comprehensive in its coverage, applying to streams, inland waters,

subterranean waters, and sea or tidal waters. Standards for the discharge of effluent or

the quality o f the receiving waters are not specified in the Act itself. Instead, the Act

194. Entry 17, List II, Seventh Schedule.

195. However, the 1988 Amendment has yet to be adopted by all the Slates.
196. Section 16.
 214

enables state boards to prescribe these standards.197

The Act provides for a ‘perm it’ system or ‘consent’ procedure to prevent and

control water pollution. The Act generally prohibits disposal of polluting matter in

streams, wells and sewers or on land in excess o f the standards established by the state

boards.198 A person must obtain ‘consent’ from the state board before taking steps to

established any industry, operation or process, any treatment and disposal system or any

extension or addition to such a system which might result in the discharge of sewage

or trade effluent in to a stream, well or sewer or onto land.199 The state board may

condition its consent by orders that specify the location, construction and use of the

outlet, as well as, the nature and composition of new discharges. The Act empowers a

state board, upon thirty days notice to a polluter, to execute any work required under

a consent order which has not been executed. The board may recover the expenses for

such work from the polluters.

Other functions of the state boards specified by the Water Act include :

(1) planning a comprehensive programme for prevention, control, and abatement

of water pollution in the state ;

(2) _ encouraging, conducting, and participating in investigations and research of

water pollution problems ;

(3) inspecting facilities for sewage and trade effluent treatment ; and

(4) developing economical and reliable methods of treatment of sewage and trade

effluents.200

The Act gives the state boards the power of entry and inspection to carry out their

functions.201 Moreover, a state board may take certain emergency measures if it determines

197. Section ! 7 (g). 'The Environment (Protection) Act, 1986, gives the Central Government similar
authority to establish water quality and ciTlucnl standards throughout India.
198. Section 24.
199. Section 25. Section 26 requires that persons releasing water pollutants prior to the adoption o f
the Water Act must also meet the consent requirements o f Section 25.
200. Section 17.
201. Section 23.
 215

that an [Link] or other unforeseen event has polluted a stream or well. These measures

include removing the pollutants, mitigating the damage, and issuing orders to the polluter

prohibiting effluent discharges.

The 1988 amendment introduced a new Section 33A which empowers state boards

to issue direction to any person, officer or authority, including orders to close, prohibit

or regulate any industiy, operation or process and to stop or regulate the supply of water,

electricity or any other service. Prior to the adoption Section33A, a state board could

issue direct orders to polluters under Section 32 of the Act. A state board, however,

could only exercise this power if the pollution arose from 'any accident or other

unforeseen act or event.’ Moreover, a state board’s authority to issue orders under Section

32 was limited to orders directed to the polluter, not to government officials or other

parties. The state boards can also apply to courts for injunctions to prevent water pollution

under Section 33 o f the Act. Under Section 41, the penalty for failure to comply with

a court order under Section 33 or a direction from the board under Section 33A is

punishable by fines and imprisonment.

The amendments also increased, the power o f the central board relative to state

boards. Under Section 18 of the Act, the Central Government may determine that a state

board has failed to comply with central board directions and that because of this failure

an emergency has arisen. The Central Government may then direct the central board

to perform the functions of the state board.

The 1988 amendments modified Section 49 to allow citizens to bring action under

the Water Act. Now a state board must make relevant reports available to complaining

citizens, unless the board determines that the disclosures would harm public interest

Previously, the Act allowed courts to recognize only those actions brought by a board,

or with a previous written sanction of a board.

The Water (Prevention and Control o f Pollution) Act, 1974, vests regulatory

authority in state boards and empowers state boards to establish and enforce effluent

standards for factories' discharging pollutants into bodies of water. A central board
 216
performs the same functions for union territories and coordinates activities among the

states.

The boards control sewage and industrial effluent discharges by approving, rejecting

or conditioning application for consent to discharge. The state boards also minimize

water pollution by advising state governments on appropriate sites for new industry.

Prior to its amendment in 1988, enforcement under the Water Act was achieved

through criminal prosecutions initiated by the boards, and through applications to

magistrates for injunctions to restrain polluters. The 1988 amendment strengthened the

Act’s implementation provisions. Now, a board may close a defaulting industrial plant

or withdraw its supply of power or water202 by an administrative order ; the penalties

are more stringent; and a citizen’s initiative provision bolsters the enforcement machinery.

In Gujarat, the amendments introduced in 1988, have not been adopted by a resolution

o f the legislature under Article 252. As a result, the 1988 amendments do not apply to

that state.203

Section 63 of the Water Act, 1974, empowers the Central Government to make

rules, simultaneously with the constitution o f the Central Board, in respect o f the matters

specified in sub-section (2). It also provided that when the Central Board has been

constituted, no such rule shall be made, varied, amended or replead without consulting

the Board.

In exercise o f the powers conferred by Section 63 o f the Act, the Central

Government after consultation with the Central Board for the prevention and control of

2 0 2 . 1 'h c P o l l u t i o n C o n t r o l B o a r d , A s s a m , is s u e d a C lo s u r e N o t i c e t o M / S C a c h a r M i n e r a l s ( P )

L i m i t e d , B a d a r p u r g h a l u n d e r K a r i m g a n j d is t r ic t , o n M a y , 4 , 1 9 9 6 , u n d e r S e c t io n 31 A ( a ) , ( b )
o f t h e W a t e r ( P r e v e n t i o n a n d C o n t r o l o f P o l l u t i o n ) A c t , 1 9 7 4 , o n t h e g r o u n d o f r e le a s in g
h i g h l y p o l l u t e d g a s e o u s a n d o t h e r p a r t ic u la t e m a tte r s in th e s u r r o u n d in g w it h o u t tr e a tm e n t
a n d , t h e r e b y , v i o l a t i n g th e p r o v i s i o n s o f t h e s a id A c t , a n d a l s o i g n o r i n g o f t h e t e r m s a n d
c o n d i t i o n s o f t h e N o O b j e c t i o n C e r t i f i c a t e ( N O C ) is s u e d b y t h e B o a r d in D e c e m b e r , 1 9 9 3 ,
a n d a s k e d th e in d u s tr y t o s l o p its o p e r a t io n a n d r e le a s e o f p o llu ta n t s u n til f u it h c r o r d e r .

S u b s e q u e n tly , th e S u p e r in t e n d in g E n g in e e r , C a c h a r E le c t r ic a l C i r c l e o f A s s a m S la t e E le c t r ic it y
B o a r d , S iic h a r , w a s a ls o a s k e d to d is c o n n e c t p o w e r s u p p ly a s p e r p r o v is io n s o f th e A c t , a s
am ended (Assam Pollution Control Board Newsletter, V o l. V I , N o . 2 , A p r il- J u n e , 1 9 9 6 , p . 4 ).

2 0 3 . P r a v in b h a i J. P a t e l V s S ta te o f G u ja r a t , 19 9 5 ( 2 ) ( i U J L . R . 1 2 1 0 , 1 2 1 6 .
 217

water pollution and by notification in the official gazette, made the Water (Prevention

and Control o f Pollution) Rules, 1975.204

Similarly, Section 64 o f the Act empowers the State Governments to make rules,

simultaneously with the constitution o f the state board, to carry out the purposes o f this

A ct in respect o f matters not falling within the purview o f Section 63, provided that

when the state board has been constituted, no such rule shall be made, varied, amended

or repealed without consulting that board.

The Water Act, 1974, was amended in 1988. An important amendment was to

rename the Central / State Boards for Prevention and Control o f Water Pollution as Central

/ State Pollution Control Boards as Boards also deal with air pollution. Some more powers

were given to Central Pollution Control Board. The State Board have been given powers

to close or stop supply o f water and electricity to offending establishments.205 The citizens

may file criminal complaints against offenders after 60 days notice to Boards. Even at

the time o f establishment o f industry the person will have to take ‘consent’206 o f the

Board.

204. Vide G.S.R 58 (E), dated 27th February, 1975, published in the Gazetl o f India., Extra, Pt II,
Sec 3 (i) dated 27th February, 1975, as cited in Universal’s The Wafer (Prevention and Control
o f Pollution) Act, 1974, (1997), p. 45.
205. Considering the failure to implement anti pollution measures on the part o f the Oil and Natural
Gas Corporation Limited (ONGCL) at its drill site located at Galeki Oil Field in Sibsagar
district of Upper Assam, the Pollution Control Board, Assam, in May, 1995, served a closure
notice to ONGCL authority at Sibsagar, in exercise of the powers conferred under Section 32
(1) (c) and 33 A o f the Water (Prevention and Control o f Pollution) Act, 1974, as amended,
with immediate effect for stopping any leakage, seepage or How and other adverse impact in
the surrounding areas and also clean up the effluents that have already spread over the area.
Further, it was instructed to take appropriate technical measures for installation o f all pollution
control systems. In the notice, it was also mentioned that on noncompiiance of the order, the
Board will be forced to take all necessary actions like prosecution as per provisions of the Act
and Rules (Assam Pollution Control Board Newsletters, Vol. V, No. 1 & 2, January-Junc,
1995, p. 2).
206. During the month of March, 1996, the initial ‘no objection certificate’ (NOC) i.e., consent for
establishment of Numaligarh Refinery Ltd. (NRL), was reviewed by the Pollution Control
Board, Assam, based on the field survey and the report submitted, thereof, made jointly by
Shri K.K.. Dutta and Shri I l.R. Phukan, both Regional Executive Engineers, headquartered at
Sibsagar and Golaghal, respectively, for identification of environmentally safe effluent disposal
site. Considering the present water quality status and other environmental and socio-economic
status of the discharge site and the surroundings, the report suggested some recommended
measures. Based on the written assurance of the Numaligarh Refinery Authority, the NOC
was issued (Supra n. 202, p. 1).
 218

The W ater (Prevention and Control of Pollution) Cess Act, 1977 :

The Water Cess Act was passed to help meet the expenses of the central and state

water boards. The Act creates economic incentives for pollution control through a

differential tax structure (with higher rates applicable to defaulting units) and requires

local authorities and certain designated industries to pay a cess (tax) for water

consumption. These revenues are used to implement the Water Act.207 The Central

Government after deducting the expenses of collection, pays the central board and the

slates such sums as it deems necessary to enforce the provisions of the Water Act. To

encourage capital investment in pollution control, the Act gives a polluter a 25 per cent

rebate of the applicable cess upon installing effluent treatment equipment and meeting

the applicable norms.

The rationale for passing of this Act has been clearly stated in the ‘Statem ent of

Objects and Reasons’208 of the Bill as ‘the Water (Prevention and Control o f Pollution)

Act, 1974, has been enacted by Parliament under Article 252 o f the Constitution with

a view to control o f pollution o f river and streams which has assumed considerable

importance and urgency in recent years as a result o f increasing industrialization and

urbanization. The Act is intended to ensure that the domestic and industrial effluents

are not allowed to be discharged into water courses without adequate treatment. This

Act is now in force in fifteen states and in all Union territories. The other remaining

states are also likely to adopt the Act in the nears future.

According to the provisions o f the Act, the Central Government and the State

Governments have to provide funds to the Central Board and State Boards fo r Prevention

and control o f water pollution respectively, fo r implementing (he provisions o f the Act.

However, due to pressure on the limited resources, the State Governments are not able

to provide adequate funds to the State Boards fo r their effective functioning. It is,

therefore, proposed to levy a cess on local authorities which are entrusted with the duty

207. The Water (Prevention and Control o f Pollution) Act, 1974.

208. Universal’s The Water (Prevention and Control o f Pollution) Act, 1974. (Bare Act with short
notes), (1997), p. 82.
 219
o f supplying water under the law by or under which they are constituted and on certain

specified industries. The cess proposed to be levied will be on the basis o f the water

consumed by such local authorities and industries. The cess will be collected by the

State Governments concerned and will be paid to the Central Government and the Central

Government, after due appropriation made by Parliament by law, will pay, having regard

to the amount o f cess collected by the concerned State Governments, such sums o f money

as it may think fit to the Central Board and the State Boards. "

The Bill received the assent of the President of India on 7th December, 1977, and

came into force on 1st April, 1978, and soon, thereafter, became an Act of Parliament

under the short title and citation ‘the Water (Prevention and Control o f Pollution) Cess

Act, 1977.’209

In exercise of the powers conferred by Section 17 of the Water Cess Act, 1977,

the Central Government made the Water (Prevention and Control of Pollution) Cess Rules

1978.210

The A ir fPrevention and Control of Pollution I Act, 1981 :

To implement the decisions taken at the United Nations Conference on the Human

Environment held at Stockholm, in June, 1972, Parliament enacted the nationwide Air

Act under Article 253 o f the Constitution. The Act’s ‘Statem ent of O bjects and

Reasons’2" contains the government’s explanation of the contents and the scope o f the

law and its concern for the ‘detrimental effect [ o f air pollution] on the health o f the

people as also on animal life, vegetation and property'.

The Air Act’s framework is similar to the one created by its predecessor, the Water

Act of 1974. To enable an integrated approach to environmental problems, the Air Act

expanded the authority of the Central and State Boards, established under the Water

209. Ibid.
210. Vide G.S.R. 378 (E), dated 24th July, 1978, published in Gazette o f India, Extra., Pt. II, Sec.
3 (i), dated 24th July, 1978, pp. 653-55. as cited in Universal's The Water (Prevention and
Control o f Pollution) Act, 1974, (1997). p. 94.
211. Gazette o f India, Extra., Part 11, S. 2, dated 24th November, 1980. Sec also Universal’s The
Air (Prevention and Control o f Pollution) Act. 1981 (Bare Act with short notes), p. 1.
 220
Act, to include air pollution control. States not having water pollution boards were

required to setup air pollution boards.

Under the Air Act, all industries operating within designated air pollution control

areas must obtain a ‘consent’ (permit) from the state boards. The slates are required to

prescribe emission standards for industry and automobiles after consulting the Central

Board and noting its ambient air quality standards.

Prior to its amendments in 1987, the Air Act was enforced through mild court

administered penalties on violators. The 1987 amendment strengthened the enforcement

machinery and introduced stiller penalties. Now,, the boards may close down a defaulting

industrial plant212 or may stop its supply of electricity or water. A board may also apply

to a court to restrain emissions that exceed prescribed standards. Notably, the 1987

amendment introduced a citizen’s initiative provision into the Air Act and extended the

Act to include noise pollution.

The Rules2'3 issued under the Air Act focus on procedural matters.

The Air Act, 1981, has important constitutional implications, with an international

background. It is an important step taken under Articles 48 A 214 and 253215 o f the

Constitution of India. The Act drew its immense inspiration from the proclamation

adopted by the United Nations Conference on the Human Environm ent held at

Stockholm, from 5th to 16th June, 1972, in which the Indian delegation led by Mrs. Indira

212. Oil and Natural Gas Corporation Ltd, started one drill site at Central workshop, Sibsagar,
surrounded by residential area without taking prior permission from the Pollution Control
Board, Assam. The noise pollution due to the activities at the drill site created an unhealthy
environment. Board official visited the site and (bund the noise level beyond the limit o f
tolerance. The show cause notice was issued to the ONCCL, Nazira, by the Board under the
provisions o f the Air (Prevention and Control o f Pollution) Act, 1981, and they were directed
to take necessary actions. The ONGCL stopped the drilling activities after receiving the notice
and took preventive measures to bring down the noise level within the limit (Informations
obtained through personal contact with the Board officials in the month o f January, 2003).
213. Vide G.S.R. 712 (E), dated 18th November, 1982, published in the Gazette o f India, Extra.,
Pt. II, Sec. 3 (i), dated 18th November. 1982, Universal's The Air (Prevention and Control o f
Pollution) Act, 1981, (1997), p. 32.
214. Directive Principles o f State Policy in Part IV o f the Constitution o f India.
215. Article 253 o f the Constitution empowers Parliament to make laws implementing India's
international obligations, as well as, any decision made at an international conference,
association or other body.
 221
Gandhi, the then Prime Minister of India, played a major role.

The Stockholm Conference in Principle 6 Proclaims :

"The discharge o f toxic substances or o f other substances and the release

o f heat, in such quantities or concentrations as to exceed the capacity o f the

environment to render them harmless, must be halted in order to ensure that

serious or irreversible damage is not inflicted upon ecosystems. The just

struggle o f the people o f all countries against pollution should be supported. ”

Principle 13 o f the Stockholm Conference States :

"In order to achieve a more rational management o f resources and thus to

improve the environment, states should adopt an integrated and co-ordinated

approached to their development planning so as to ensure that development

is compatible with the need to protect and improve the human environment

fo r the benefit o f their population. ”

The Parliament o f India seeks to achieve these objectives through enactment of

three major Acts, namely, the Water Act, Air Act, and the Environment (Protection)

Act.

Environment (Protection ) Act, 1986 :

In the wake o f the Bhopal tragedy,2"'’ the Government o f India enacted the

Environment (Protection) Act o f 1986 (EPA) under Article 253 of the Constitution. The

purpose of the Act is to implement the decisions o f the United Nations Conference on

the Human Environment of 1972, in so far as, they relate to the protection and

improvement of the human environment and the prevention of hazards to human beings,

other living creatures, plants and property. The EPA is an ‘umbrella’ legislation designed

to provide a framework for Central Government coordination o f the activities o f various

central and slate authorities established under previous laws, such as, the Water Act and

216. 'I his tragedy oecured when Methyl Iso Cyanate (MIC), a highly toxic gas. which had been
manufactured and stored in Union Carbide Coiporaiion's Chemical Plant in Bhopal, allegedly
escaped in to the atmosphere killing nearly 4000 people and inflicting injuries on more than
2,00,000 others.
 222
Air Act. It is also an enabling law which articulates the essential legislative policy on

environmental protection and delegates wide powers to the executive to enable

bureaucrats to frame necessary rules and regulations. Since the time it entered the statute

book, the Act has served to back a vast body o f subordinate environmental legislation

in India.217

The scope of the EPA is broad, with ‘environment’21* defined 7o include water,

air and land and the inter relationships which exists among and between water air and

land, and human being other living creatures, plants , micro-organisms and property.'

‘Environmental pollution’ is the presence of any environmental pollutant, defined as

'any solid, liquid or gaseous substance present in such concentration as may be or may

tend to be injurious to the environment'.m ‘Hazardous substances’ include 'any

substance or preparation which may cause harm to human beings, other living creatures,

plants, micro-organisms, property or the environment\m

Section 3 (1) of the Act empowers the centre ‘to take all such measures as it deems

necessaiy or expedient fo r the purpose o f protecting and improving the quality o f the

environment and preventing, controlling and abating environmental pollution

Specifically, the Central Government is authorized to set new national standards for the

quality o f the environment (ambient standards), as well as, standards for controlling

emission and effluent discharges ; to regulate industrial locations ; to prescribe procedures

for managing hazardous substances ; to establish safeguards for preventing accidents ;

and to collect and disseminate information regarding environmental pollution.

Section 23 of the Act empowers the Centre to delegate its powers and functions

its powers and functions to any officer, stale government or other authority. Section 24

of the EPA ensures that the provisions of the Act and subordinate rules or orders override

217. Shyam Divan and Arinin Roscncranz, Environmental Law and Policy in India : Cases,
Materials and Statutes, (2001), p. 66.
218. Section 2 (a).
219. Section 2 (b) and 2 (c).
220. Section 2(c)
 223
any other law. A broad rule making power is conferred on the Central Government under

Sections 6 and 25.

The primary legislative responses to the Bhopal Gas Leak Tragedy o f December,

1984 , were the Bhopal Act of 1985221 and the EPA. Consequently, the EPA bears the

stamps o f the legislature’s immediate concern to strengthen the regulatory frame work

for hazardous industry and pollution control.

This legislative focus soon translated into a range of central rules and regulations

laying down pollution norms and regulating toxic substances. Since the early 1990s,

however, the breath o f government action under the EPA has extended to the protection

o f ecologically sensitive areas, such as, the coast and the introduction o f economic

incentives through a product labelling scheme called ‘Ecom arks’.

The potentially broad sweep of the EPA is suggested by the range o f issues

mentioned in the ‘Statem ent of Objects and Reasons’ accompanying the Bill, 'the

decline o f environmental quality has been evidenced by increasing pollution, loss o f

vegetal cover and biological diversity, excessive concentration o f harmful chemicals in

the ambient atmosphere and in food chains, growing risks o f environmental accidents

and threats to life support systems. ’m

The mass o f subordinate legislation framed under the EPA223 by the Department

of Environment, Forests and wildlife of the Central Ministry of Environment and Forests

falls under four broad categories : (1) pollution control ; (2) hazardous substance

regulation ; (3) environment impact assessment; and (4) the protection o f the coast and

other ecologically fragile areas

Pollution Control :

Section 7 of the EPA prohibits the discharge or emission of environmental pollutants

221. The Bhopal Gas Leak Disaster (Processing o f Claims) A c t, 1985, was passed to ensure that
claims arising out o f the disaster would be dealt with speedily, clfcctively and equitably. The
Union Government was authorized to sue on behalf o f Indian claimants in foreign forums.
222. Referred to by the Supreme Court in S. Jagannath Vs Union o f India (Shrimp Culture C ase),
A.I.R. 1997 S.C. 811. 844.
223. The Environment (Protection) Act, 1986.
 224
in excess o f the prescribed standards.224 To implement this mandate, the government has

framed the Environment (Protection) Rules of 1986 (EPR)225. The standards are set out

in the schedules appended to the EPR. Broadly, there are three types o f standards :

(i) Source standards, which requires the polluter to restrict at source the emission

and discharge of environmental pollutants ;

(ii) Product standards, which fix the pollution norms for new manufactured

products, such as, cars ; and

(iii) Ambient standards to set maximum pollutants loads in tire air, and to guide regulators

on the environmental quality that ought to be maintained for healthy living.

Supplementing the EPR arc the Noise Pollution (Regulation and Control) Rules

which were enforced on 14, February, 2000. These Rules prescribe ambient air quality

standards in respect of noise for industrial, commercial and residential areas, as well as,

designated ‘silent zones’. The Rules impose restrictions on the use o f loud speakers and

public address systems and cast a duty on District Magistrates and Police Commissioners

to ensure that noise levels don’t exceed the norms :

Hazardous Substance Regulation :

The Hazardous Wastes (Management and Handling) Rules,226 issued under the Act

in July, 1989, have introduced a permit system to regulate the handling and disposal of

hazardous wastes. These Rules fix responsibility for the proper handling, storage and

disposals o f such wastes on the person generating the wastes.

The M anufacture, Storage and Import o f Hazardous Chemical Rules227 o f

224. Observing the high concentration level o f oil and grease, as ascertained through laboratory
analysis o f effluent samples collected from Digboi Nallah, one from near Central Industrial
Complex and another from near Duliajan College, the Group General Manager o f Oil India
Limited was asked by the Pollution Control Board, Assam. Guvvahali, to take appropriate
measures for preventing and controlling such pollution (Informations obtained through personal
contact with the Board officials in the month o f January, 2003).
225. Vide S.O. 844 (E), dated 19lh November, 1986, published in Gazette o f India, Extra, Pt. II
See. 3 (i), dated 19th November, 1986, as cited in Universal's The Environment (Protection)
Act, 1986, (2002), p. 18.
226. Vide S.0.594 (E), dated 28th July, 1989, published in Gazette o j India, Extra, Pt. II Sec. 3
(ii), dated 28th July, 1989, (w.e.f. 28-07-1989), as cited in Universal's The Environment
(Protection) Act, 1986, (2002), p. 111.
227. Vide S.0.966 (E), dated 27th November. 1989, published in Gazette o f India, Extra, Pt. Hs
 225
November, 1989, spell out the responsibilities of those handling hazardous substances

(other than hazardous wastes). Under these Rules, a hazardous industry is required to

identify major accident hazards, take adequate preventive measures and submit a safety

report to the designated authority. An importer of hazardous chemicals must furnish

complete product safety information to the competent authority and must transport the

imported chemicals in accordance with the Central Motor Vehicle Rules o f 1989.

In August, 1996, the Central Government framed the Chemical Accidents

(Emergency, Planning, Preparedness and Response) Rules. These Rules require the Centre

to constitute a Central Crisis G roup (CCG)228 for the management o f chemical accidents

and to set up a quick response mechanism termed as the Crisis A lert System.229 The

CCG is the apex body for dealing with major chemical accidents and providing expert
guidance to contain the damage caused by such accidents. The Rules also contemplate

the setting up o f crisis groups at the state, district or local levels to assist the

administration.

Rules to regulate the manufacture, use, import, export and storage of hazardous,

micro organisms and genetically engineered cells were issued under the Environment

Act in December, 1989. Under these Rules a Genetic Engineering Approval Committee

has been established in the Ministry of Environment and Forests to licence experiments

in, and field trials of, genetically engineered organisms.

In July, 1998, the Central Government issued the Bio Medical Waste (Management

and Handling) Rules,220 to regulate hospitals,231 clinics, veterinary institutions and other

persons generating bio medical wastes. The Rules introduce a licensing and reporting

system requiring institutions to segregate and dispose o f designated categories of bio­

medical waste in the prescribed manner.

See. 3 (ii), dated 27th November, 1989, and corrected by S. O. 115 (E), dated 5lh February,
1990, published in the Gazette o f India, Extra., Pi II, Sec. 3 (ii), dated 5 th February, 1990, as
cited in Universal's The Environment (Protection) Act, 1986, (2002), p. 145.
228. Rule 3.
229. Rule 4.
230. Vide S.G.630 (E), dated 20th July, 1998, published in the Gazette ojIndia, Extra, Pt. II, Sec.
3 (ii), dated 27th July, 1998, as cited in Universal's The Environment (Protection) Act, 1986,
(2002), p. 182.
231. including private nursing homes, poly clinics etc.
 226
Environment Impact Assessm ent:

The first attempt at a comprehensive statutory Environment Impact Assessment

(EIA) Programme began on 27th January, 1994, when the Union Ministry of Environment

and Forests issued a notification dealing with mandatory EIA. The notification mandates

a public hearing232 and requires the project proponent to submit an EIA report, an

environment management plan, details of the public hearing and a project report to the

impact assessment agency for clearance, with further review by a committee of experts

in certain cases. The impact assessment agency is the Ministry itself. The EIA Regulations

apply to 29 designated projects / industries which are enumerated in Schedule 1 to the

notification.

In April, 1997, the Ministry took a first step towards decentralizing the EIA

regulatory machinery by shifting the responsibility for environmental site clearance in

respect o f thermal power projects to the slates. This notification describes the categories

of thermal power plants falling within state government purview233 and largely replicates

the procedure under the principal notification o f 1991.234 Coastal Regulations and

Protection of Specified Areas : In addition to the EIA requirements, specific protections

and regulations operate in designated ecologically sensitive areas. The widest in reach

and scope are the Coastal Zone Regulations issued in February, 1991. These regulations

strictly control development activity including tourism within a strip o f 500 meters from

the sea shore, along the entire coast of India. While some activities, such as, setting up

of new industry and the expansion o f existing factories are completely prohibited, other

types o f commercial activity are restricted. Building activity is regulated depending upon

232. As published in The Assam Tribune, dated June 28, 2003, a ‘public hearing notice’ issued by
the Pollution Control Board, Assam, staled that as per provision o f the Government oflndia’s
notification on Environment Impact Assessment o f Development Projects, dated 27th January,
1994, as amended, uplo date [vide No. S.O. 60 (E)J, the public hearing panel constituted for
taking note o f public complain, statement, objection, views etc. regarding Motor Spirit Unit
(under Numligarh Refinery Ltd. at Numaligarh) would take environmental public hearing at
Panka RI l High School Hall, Kanaighat, Golaghat, on 31st July, 2003, at 10 A.M. Interested
persons o f the locality, including bonafied residents, environmental activist groups, NGOs,
individual etc. likely to be affected were invited to attend the aforesaid public hearing.
233. Schedule 1.
234. Schedule II
 227
the level of urbanization and the ecological sensitivity of the coastal region.

In response to specific environmental threats, industrial activity has also been curbed

by central notifications in some ecologically sensitive regions like the horticultural belt

in the Dahanu region in Maharashtra,235 the Himalayan foot hills around Doon Valley.236

the coastal Murud-Janjira area in the Raigad district of Maharashtra,237 the congested

Antop Hill locality in Bombay238 and parts o f the Aravalli Range in Rajasthan and

Haryana.239 Most o f these notification were issued in response to specific environmental

threats to each region.

The E com ark Scheme :

In 1991, the Department of Environment, Forests and wildlife announced a scheme

for labelling environment friendly products. The objects of the scheme are to encourage

manufacturers to introduce environment friendly products, reward genuine initiatives to

reduce adverse environmental impacts and assist consumers in making an informed,

responsible, choice while purchasing goods. The label known as ‘Ecom ark’ may be

used by the manufacturers of the consumer goods who meet the environment criteria

notified by the Central Government for the purpose o f the scheme.

In a more recent initiative to alter consumption patterns, the Centre framed the

Recycled Plastic Manufacturer and Usage Rules of 1999.m The Rules prohibit vendors

of food stuffs from packing their wares in bags or containers made from recycled plastic.

If foodstuffs are to be sold in plastic bags, the carry bag must be made of virgin plastic.

235. Notification, dated, 20th June, 1991. The Orchards o f Dahanu were threatened by the possibility
o f rapid industrialization after a large thermal power plant came up in the area.
236. Notification, dated, 1st February, 1989. Doon Valley was harmed by extensive limestone
quarrying.
237. Notification, dated, 6th Januaiy, 1989. A coastal strip o f about 30 km. was threatened by
several giant industrial projects. This notification encouraged environmentalists to press for
national coastal norms which took final shape in February, 199!.
238. Notification, dated, 9th February, 1990. The residents o f Antop Hill lived under a continuous
threat from vast quantities o f hazardous chemicals stored in the neighbourhood.
239. Notification, dated, 7th May, 1992. Limestone quarrying threatened the Project Tiger reserve
in the Alwar district o f Rajasthan.
240. Vide S.O. 705 (E), dated, 2nd September, 1999, published in the Gazelle o f India, Extra., Pt.
11, Sec. 3 (ii), dated 2nd September, 1999, as cited in Unh ersal’s The Environment (Protection)
Act, 1986, (2002), p. 194.
 228
Moreover, the Rules provide that all carry bags must have minimum thickness of 20

microns.

Laws Relating to Forests. Wildlife and Biodiversity :

Forest legislation in India dates back to 19th century when the Britishers enacted

the Forest Act, 1865.241 This Act was applicable only to the government forests and the

private forests were kept out o f it. The Indian Forest Act, 1878,242 increased the

government control over the forests. This Act was more comprehensive than the earlier

one and it included certain provisions for the private forests. Certain acts were for the

first time declared as the forest offences and it prescribed certain punishments.

It was only in 1927,242 when an attempt was made to codify all the practices of

the Forest Department. The Indian Forest Act, 1927, provides for preservation o f forests

and promotion o f forest produce and collection o f government revenues. It prescribed

manner and limits within which forest resources could be exposed to industrial and

commercial exploitation within the frame work of an overall forest management. This

Act provided for taking over the management of private forests. Subsequently, through

the Government o f India Act, 1935, the subject of forests was included in the Provincial

List. Thereafter, several provinces made their own laws to regulate forests within the

frame work laid down in the Indian Forest Act, 1927.

Every legislation carries within it, the hopes and aspirations o f the social and

political forces at work at a given time. The Indian Forest Act, 1927, is a comprehensive

legislation relating to forests management that consolidates pre-existing laws. The Indian

Forest Act, 1927, being the product of the British colonial days, reflects the exploitative

241. Nandan N clivigi, 1Biodiversity, Wildlife and Protected Area Management in India; A People
Centred Approach ’, in Journal o f the Indian Law Institute, Vol. 37, No. 2, April-June, ! 995,
p. 152. The first Indian Forest Act, (VII o f 1865) was passed by the Supreme Legislative
Council, which amounted to the formalization o f the erosion o f both forest and the rights o f
local people to forest produce (Vandana Siva, 'Conserving India’s Forests Protecting India’s
People ’, xxxv The Indian Journal o f Public Administration 380 at p. 3 8 1).
242. The general law relating to forests in British India was contained in the Forest Act o f 1878.
243. The Indian Forest Act, 1927, consolidated the pre-existing laws. The Preamble shows that the
Act, was passed to consolidate the law relating to forests, the transit o f forest produce and the
duty leviable on timber and other forest produce.
 229
intentions o f colonial and feudal society of the time rather than the environmental and

ecological interests to preserve the forests. With a revenue oriented policy, its main object

was to regulate dealings in forest produce and augment the public exchequer by levy

o f duties on timber.244

The India Forest Act, 1927, is still in operation throughout India.245 The two main

limbs o f the British forest policy in India were, (i) transfer of control and ownership

over forests for village communities to the government, except in respect of a vety limited

area of forests,246 and (ii) government permitted, but uncontrolled commercial exploration

o f forest resources. This policy o f ‘com m ercialized forest m an ag em en t’ was

institutionalized by the Forest Act, 1927. The current status of protected areas in

attributable to this policy which pervades the governmental approach to forests.

Building on the framework o f the 1878 Act, the Forest Act o f 1927 similarly

constitutes three categories of protected areas (i) reserved forest; 247 (ii) protected forest;248

and (iii) village forest.249

After independence, in 1976, a major change took place. The Parliament passed

the constitution (42nd Amendment) Act, 1976, incorporating Articles 48A and 51 A(g)

in the Constitution o f India. By the said amendment Act, the subject of ‘forests and

wildlife’ was also transferred from State List to Concurrent List.250 This diminished the

state’s power over forests and centres’s power over forests increased considerably.

The year 1980 marks another turning point. Out o f the wide spread concern for

244. S ee the Pream ble o f the A c t. S ee also P. Leelakrishnan, E n v ir o n m e n t a l L a w in In d ia , (1 9 9 9 ),

p. 10.
245. Nandan N e liv ig i, ‘ B io d iv e r s ity ; W ild life a n d P r o t e c t e d A r e a M a n a g e m e n t in I n d i a : A P e o p le
C e n tr e d A p p r o a c h ’, in J o u r n a l o f th e In d ia n L a w In s titu te , Vol. 37, N o . 2, April-Junc, 1995,
p. 152.
246. T h e Forest A c t o f 1878, cla ssilied forests in to three categories : ( I ) restricted forests, w hich
w ere controlled by the governm ent and excluded people from the fo re sts; ( i i ) protected forests,
w hich a llo w ed lim ited access to fo rests; ( i i i ) villa g e forests ow n ed by governm ent but managed
by v illa g e com m unities fo r p ro v id in g subsistence to people.
247. S ection 3.
248. Section 29.
249. Section 28.
250. Entry 17 A (F o res ts ) ; Entry 17B (W ild L ife )
 230
large scale deforestation, resulting in ecological imbalance and environmental degradation,

came the Forest (Conservation) Act, 1980. As amended in 1988, the Act requires the

approval of the Central Government before a state dereserves a reserved forest, use forest

land for non forest purposes, assigns forest land to a private person or corporation or

clears forest land for the purpose of reforestation. An Advisory Committee constituted

under the Act advises the Centre on these approvals.

The rationale for passing o f this Act, has been stated in the ‘Statement of Objects

and Reasons’251 accompanying the Bill as :

“Deforestation causes ecological imbalance and leads lo environmental

deterioration. Deforestation had been taking place on a large scale in the

country and it had caused wide spread concern. With a view to checking

further deforestation, the President promulgated on the 25th October, 1980,

the Forest (Conservation) Ordinance, 1980. The Ordinance made the prior

approval o f the Central Government necessary fo r dereservation q f reserved

forests and fo r use afforest land fo r non-forest purposes. The Ordinance

also provided fo r the constitution o f an advisory committee to advise the

Central Government with regard to grant o f such approval. The Bill seeks

to replace the aforesaid Ordinance. ”

Forests and wildlife are essential for ‘ecological balance’ of an area. Forests check

air pollution and Soil erosion ; they save the hill slopes from land slides. Forests provide

protection o f wild life, help in balancing the gaseous (C 02, 0 2) cycle o f atmosphere.252

The Rio Declaration253 in Principle 4, proclaims :

“In order to achieve sustainable development, environmental protection shall

constitute an integral part o f the development process and can not be

considered in isolation from it. ”

251. Universal’s The Indian Forest Act, / 927, along with the Forest (Conservation) Act, 1980, (1996)
p. 28.
252. P.D. Sharma, Ecology and Environment, (1997), p.323.
253. Adopted at the United Nations Conference on environment and Development, held at Rio de
Janeiro, Brazil, from 3rd to 14th June, 1992.
 231
According to expert opinion, the minimum area of forests necessary for a tropical

country like India should be about one-third of the total area (i.e., about 33%).254 We

fall short of this minimum. The notified forest areas that are ecologically and economically

veiy vital for the state appears to be under extreme stress due to massive deforestation,

large scale encroachment and intense degradation.

The Forest (Conservation) Act, 1980, has been enacted with a view to checking

further deforestation. Under the provisions of this Act, prior approval o f the Central

Government is required for diversion of forest lands for non-forest purposes. Since the

enactment of the Act, the rate o f diversion o f forest land has come down to around

25,000 hectare per annum from 1.43 lakh hectare per annum, before 1980.255

Forests are a renewable source and contribute substantially to economic

development. They play a major role in enhancing the quality o f environment. The

country has an area of 752.3 lakh hectare notified as forests, o f which 401.1 lakh hectare

is classified as reserved and 215.1 lakh hectare as protected. Unclassified forest area is

spread over 131.1 lakh hectare. About 19.45 per cent o f the total geographical area of

the country is under actual forest cover.256

In Animal and Environmental Legal Defence Fund Vs Union o f India,257 it has

been held following the case o f Pradeep Krishen Vs Union o f India,257A that the total

forest cover in India is far less than the ideal minimum o f l/3rd o f total land. Thus, no

further shrinkage in the forest cover can be allowed in India. If one o f the reasons for

this shrinkage is the entry of villagers and tribals living in and around the Sanctuaries

and the National Park in Madhya Pradesh, there can be no doubt that urgent steps must

be taken to prevent any destruction or damage to the environment, the flora and fauna

254. A b o u t 19.45 per cent o f the total geogra p h ical area o f the country is under actual forest cover.
Competition Success Review, July 1987, pp. 60-62.
S ee also
255. India 1998: A Reference Annual, co m p iled and edited by Research, R eferen ce and Train in g
D ivis io n and published by Publications D ivis io n , M in istry o fln fo r m a lio n and Broadcasting,
G overn m en t o f India, (1 9 9 8 ), p. 155.
256. Ibid.
257. (1 9 9 7 )3 S.C .C . 549.
2 5 7 -A .. (1 9 9 6 ) 8 S .C .C 599; A .l.R . 1996 S.C. 2040
 232
and wildlife in those areas.

In India, there are presently 83 national parks, 447 wildlife sanctuaries covering

about 1,48,700 sq. km. area which is nearly 4.5 percent o f the total geographical area

o f the country.258

Perhaps the most important and immediate cause which led to the enactment of

the Forest (Conservation) Act, 1980, was the Chipko Movement led by green crusader

Sunder Lai Bahuguna, which is credited with saving the forests o f the Garhwal hills of

Utter Pradesh form massive depredations in the early seventies.

Chipko Movement : Non violent Gandhian Resistance to Save the Ecology and

Environment:

Sunderlal Bahuguna Said :

“I do not think that pollution is an isolated problem. It is closely connected

with war and hunger. These are the gifts o f our materialistic civilization. In

Hindi, we call nature ‘Prakriti’. When human beings become butchers o f

nature to satisfy their greed we create perversion - ‘Vikriti’. Today we are

living in a perverted society - we are living in a state o f war, we are living

in a polluted atmosphere and we have hunger all round. Chipko stands to

mend these things. It is not simply to save a few trees in the Himalayas. "m

‘Chipko’ is the Garhwali word for hugging meaning to embrace. This happened

when the State Government of Uttar Pradesh allotted 50 numbers of trees to a Sports

Goods Company. The villagers said : "we w on’t allow them to fell our trees. I f they

come with axes to fe ll the trees, we will bear the axes on our bodies. ” The Forest

Department changed its plans and allotted trees in other forests, where again the villagers

repeated the same words : “we will hug the trees ”m

258. Supra n. 255 at p. 5.

259. Basudha 1laldcr, ‘Wardens ofthe Woods’, published in The Sunday Sentinel, dated 27th March,
1988, Vol. V., No. 49, p. 1.
260. Vandana Shiva and Jayanta Bandhyopadhyay, 'CHIPKO India's Civilizational Response to
the Forest C risis’ in The INTACH Environmental Series,( 1986), published by the Indian
 233
The Chipko Movement began with the illiterate women o f the remote Mandal

village in Uttar Pradesh. When Sunderlal Bahuguna asked a village woman who had

participated in this demonstration (April 23, 1973) as to how they had decided upon this

novel method o f protest, she said : ‘look here brother - imagine I am passing through

a dense forest with my child and a tiger or a bear attacks, what should / do to save my

child? / shall hug the child, hold him fa st and bear the attack my s e lf’26'

Chipko movement was originated in a village of Garhwal district o f Uttar Pradesh.

But this movement did not limit itself to the national boundaries. Its unusual techniques

were adopted successfully by activist groups in many countries like Switzerland, Austria,

U.S.A., Canada, Germany and Malaysia.

Today Chipko has been identified as one of the most effective grass root movements

bom after the U.N. Conference on the Human Environment held at Stockholm in June,

1972. Though the capitals of industrialized countries were the centres of discussion on

environmental protection, action for it started in a remote Himalayan village.

The Chipko message was taken from village to village by dedicated padayatris

(food marchers) and spread through the media of folk songs and Bhagawat Kathas for

seven years from 1973 to 1980. Public opinion was, thus, built up. An appeal was made

to the nation by leaders like Jai Prakash Narayan and ecologists like Salim Ali, to

stop the felling o f trees in the Himalayas. The press both at home and abroad,

highlighted it.

The efforts bore fruit and in 1980, Mrs. Indira Gandhi, the then Prime Minister

of India, invited Chipko soldiers for a discussion on its immediate demands and ordered

a ban on the felling of green trees in U.P. Hills. The Indian Science Congress, in its

Varanasi Session in 1981, passed a resolution extending its support to the movement

and recommended its expansion all over the country.262

Today, Chipko actions are on in many parts of India. At some places the people

National Trust for Art and Cultural Heritage, 71, Lodi Estate, New Delhi- 110 003.
261. Ibid.
262. Ibid.
 234
are fighting a non violent battle to save their forests from the miners, at others to prevent

them from being submerged under dams or being converted into commercial plantations,

in desert areas they are planting trees.

The movement has succeeded in making basic changes in thinking about forests

in general and about the importance of hill forests in particular. Chipko has made itself

heard of the policy makers and the planners. With a view to check further deforestation

which causes ecological imbalances, the Parliament passed the Forest (Conservation)

Act, 1980, under which forest land can not be transferred for non-forestry purposes

without permission from the Central Government.

The ‘Principles of Environmental Justice’ adopted at the First National People

of Color Environmental Leadership Summit,261 recognized :

“Environmental Justice considers governmental acts o f environmental

injustice a violation o f international law, the Universal Declaration on Human

Rights, and the United Nations Conference on Genocide”

The Preamble o f the United Nations D raft Declaration of Principles on Human

Rights and the Environment, 1994,264 describes the indivisibility of environmental

human rights by stating that :

"Human rights violations lead to environmental degradations and that

environmental degradation leads to human rights violations. ”

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 o f present and future generations through careful planning or management, as

appropriate.265 States should enact effective environmental legislation. Environmental

standards, management objectives and priorities should reflect the environmental and

developmental context to which they apply.266

263. Held at Washington D.C. (27th October, 1991)
264. Human Rights and the Environment, Final Report o f the Special Rapporteur, U.N. Doc.E/
CN-4/Sub.2/1994/9 (6th July. 1994),
265. Principle 2 o f the Stockholm Declaration (1972).
266. Principle 11 o f the Rio Declaration (1992).
 235
The Chipko movement which is credited with saving the forests of the Garhwal

hills o f Uttar Pradesh form massive depredations in the early seventies, was brought

into sharp focus by Sunderlal Bahuguna in 1981 with his 4,870 kin. trans-Himalayan

odyssey on foot. It is historically, philosophically and organizationally an extension of

traditional Gandhian Satyagrahas. Its special significance is that it is taking place in

post independence India.

This success, says Bahuguna :

“gave us a breathing space, and the Chipko message was taken from Kashmir

to Kohima by a 4,870 kins. trans-Himalayan foot march through eight hills

states o f India, Nepal and Bhutan. Like a migratory bird, Chipko then flew

from the Himalayas down South to Karnataka. "267

The Forest (Conservation) Act, 1980, is an important step taken under Article 48

A of the Constitution. Section 4 (1) of the Act empowers the Central Government to

make Rules for carrying out the purposes o f the Act. In exercise of the powers conferred

by Section 4 (1), the Central Government made the forest (Conservation) Rules, 1981.268

The Stockholm Declaration 1972, in principle 4, proclaims :

"Man has special responsibility to safeguard and wisely manage the heritage

o f wildlife and its habitates which are now gravely imperilled by a

combination o f adverse factors. Nature conservation including wildlife must

therefore receive importance in planning fo r economic development. ”

In 1972, Parliament enacted the Wild Life (Protection) Act, pursuant to the enabling

resolutions of 11 states under Article 252 (I)2W of the Constitution. Incidentally, the

enactment o f the Wild Life (Protection) Act, 1972, was coincidental with the Stockholm

Conference.

267. Supra n. 259.

268. Vide G.S.R. 719, dated 20th July, 1981, published in the Gazette o f India, Extra ordinary,
Part II, Sec (3(i), dated, 1st August, 1981, as cited in Universal's The Indian Forest Act, 1927
alongwith The Forest (Conservation) Act, 1980, ( 1996), p. 32.
269. Power o f Parliament to legislate for two or more stales by consent and adoption o f such
legislation by any other state.
 236
This was the first comprehensive legislation passed for the protection o f wild life.

The rationale for passing o f this Act has been quite eloquently stated in the ‘Statem ent

of Objects and Reasons’” 0 accompanying the Bill as :

"the rapid decline o f India's wild animals and birds, one o f the richest and

most varied in the world, has been a cause o f grave concern. Some wild

animals and birds have already become extinct in this country and others

are in the danger o f being so. Areas which are once teaming with wildlife

have become devoid o f it and even in Sanctuaries and National Parks the

protection afforded to wildlife needs to be improved. The existing state laws

are not only outdated, but provide punishments which are not commensurate

with the offence andfinancial benefits which accrue from poaching and trade

in wild life produce. ”

The Wild Life (Protection) Act, 1972, which we read today, is a product of a process

which started with a very humble beginning way back in 1887 for the protection o f a

few wild birds and as it mushroomed, wild animals were added to it in 1912 and finally

in 1991, it also covered the most neglected area o f wildlife i.e., biodiversity.271

The wild life laws have a long history and is the culminative result of an increasing

awareness o f the compelling need to restore the catastrophic ecological imbalances

introduced by the depredations inflicted on nature by human being.272.

The earliest codified law can be traced to 3rd century B.C. when Ashoka, the

King o f Magadha, enacted a law in the matter o f preservation o f wild life and

environment. Towards the end of his reign he wrote :

"Twenty six years after my coronation, / declared that the following animals

were not to be killed : Parrots, mynas, the arena, ruddy geese, the

nandimukha, cranes, bats, queen ants, terrapins, boneless fish, rhinoceroses

270. Natraj Publisher’s, The Wild Life (Protection) Act, 1972, as amended uplo 1993, (1997-98), p. 20.
271. Ibid at p. 23.
272. Universal’s The Wild Life (Protection) Act, 1972, (Bare Aet), (1997). p.l.
 237
..........all quadrupeds which are not useful or ed ib le...... Forest must not be

burned. ”273

Kautilya’s A rthashastra also bears the testimony to the prevalent laws o f earlier

times to preserve the ecosystem. It is a treatise on administration in which Book III and

IV deal with civil and criminal law. However a deeper study shows that the law is scattered

throughout this work. In this classical book Kautilya imposed serve penalties for killing,

entrapping and molesting wild animals and birds in protected areas. Kautilya specifically

says that the notified carnivorous and herbivorous animals, birds and aquatic animals,

as well as, animals in the notified areas arc neither to be caught, killed or molested. A

fine was levied on one indulging in entrapping, killing or molesting fishes and birds.274

After this there appears to be long gap in respect of codified laws or decrees

pertaining to protection of wild life.

The first codified law in India which heralded the era of laws for protection of

wildlife was enacted in the year 1887 by the British and was titled as the Wild Birds

Protection Act, 1887.275 The Government in the year 1912 passed the Wild Birds and

Animals Protection Act, 276 as the Act of 1887 proved to be inadequate for the protection

o f wild birds and animals. The Act o f 1912 was amended in the years 1935 by the Wild

Birds and Animals Protection Act, 1935.277

On 2nd August, 1935, the Government o f India Act was enacted. This Act made

a three fold division of power between the Centre and the Provinces - Federal List,

Provincial List and Concurrent List. The entry concerning “Protection of Wild Birds

and Wild Animals” was to be found at Entiy 25 of the Stale List. Thereby, the protection

of wildlife and the laws in relation, thereto, was entrusted to the Provincial Legislature.

273. Raj Panjwani, ‘Evolution o f Wildlife Laws in India’ in Nalraj Publisher's, The Wild Life
(Protection) Act, 1972, as amended upto 1993, (1997-98), p. 17.
274. Dr. Mukta Biswas, 'Environmental Awareness in Ancient India’ published in The Assam
Tribune, dated, July 3. 1998.
275. Act. No. X o f 1887.
276. Act. No. VIII o f 1912.
277. Act. No. XXVII o f 1935.
 238
Consequently, the wildlife laws varied to a certain extent form stale to state and there

was no concerted planning or efforts at the all India level to the detriment o f wildlife.278

After 1935 comes, the Second World War. Thereafter, the struggle for India’s

independence. Wildlife is relegated to the background. Come independence and the

Constituent Assembly takes up the task o f framing independent India’s Constitution.

In the Draft Constitution the entry relating to ‘Protection of Wild Birds and Wild

Animals’ finds its place at Entry No. 20 o f the State List and the State Legislature has

been given the power to legislate.279

In the Constituent Assembly, Professor Shibbam Lai Saxena moved an amendment

No 86 ‘that entry 20 o f List II be transferred to List ///.’ The amendment came for

consideration on 2nd September, 1949, and he stated that '7 feel it should be realized

that agriculture, irrigation, cattle, land, forests etc., should be developed according to

'All India Plan' and under central direction.... By putting them in List III, we only mean

that centre will have power to coordinate these activities, finance them, and give expert

advice. It may be pointed out that even the 1935 Act had made such a complete division

as is now proposed........ " The amendment was negative. The motion was adopted,

Entry was added to the State List. This was all that transpired in the Constituent Assembly

for the protection of wild life and the same scheme as that o f the Government of India

Act, 1935j was adopted.280

It was not till late 1960s that the concern for the fast depleting wild life finally

aroused. The Parliament on 9th September, 1972, passed the Wild Life (Protection) Act.

This was the first comprehensive Act passed for the protection wild life.

The Parliam ent finally passed, though belated, a much needed Act. But

unfortunately, even this Act of 1972, under Section 9 permitted hunting, though with a

licence, for the purpose of (a) special game (b) big game (c) small game and (d) wild

278. Raj Panjwani, ‘Evolution o f Wildlife Laws in India' in Natraj Publisher's, The Wild Life
(Protection) Act, 1972, as amended upto 1993, (1997-98), p. 19.
279. Ibid.
280. Ibid at pp. 19-20.
 239
animal trapping.

Further, the Act o f 1972, permitted trade o f trophies and animal articles o f the

protected scheduled animals provided the trade had obtained a licence under Section 44

o f the said Act. Under the circumstances, though hunting o f wild animals was restricted

by the Act of 1972, in practice poaching continued in a large scale as the trade in trophies

and animal articles was not completely restricted.

In 1976, wild life in India finally got its due place and recognition under the

Constitution. The Parliament passed the Constituting (Forty Second Amendment) Act,

1976, and inserted Article 48 A in Part IV which contains the Directive Principles of State

Policy. Constitutional environmentalism to some extent is reflected in Article 48 A which

reads as follows :

“The State shall endeavour to protect and improve the environment and to

safeguard the forests and wildlife o f the country"

The Parliament by the said Amendment Act o f 1976, also incorporated a new

Chapter, Part IV A, specifying the fundamental duties of the citizens of India. The newly

incorporated Article 51 A, in subclause (g), states :

“It shall be duty o f every citizen o f India to protect and improve the natural

environment including forests, lakes, rivers and wildlife and to have

compassion fo r living creatures"

Thus, it is only in 1976 that wildlife finds its place of honour in the Constitution

and the states takes upon itself the constitutional obligation to protect, improve and

safeguard wildlife of the country and at the same time it imposes a reciprocal duty on

its citizens to do so.

By the same Constitutional Amendment Act o f 1976, Entry No. 20 appearing in

the State List II pertaining to the protection of wild animals and birds is transferred to

the concurrent List (List III) and re-numbered as Entiy No. 17 - B.28' The effect of this

281. Ibid atp. 21.

 240
transfer of the entry from the State List to Concurrent List was that both the Parliament,

as well as, the State Legislatures had the competence to pass laws for protection of wild

animals and birds, and in the event of conflict between the central law and the state law,

it is the central law which would prevail. This amendment had far reaching repercussions

as the Parliament could pass laws which were uniform across the length and breadth of

the country, the centre could effectively supervise the functioning o f the Chief Wild Life

Warden of State and also provide necessary funds and lay down policies for a uniform

implementation of the provisions o f the Wild Life (Protection) Act, 1972.

Another important event which takes place in 1976. India deposits the instrument

o f ratification on 20th July, 1976, and becomes a party with effect from 18th October,

1976, to the Convention on International Trade in Endangered Species of Wild Fauna

and Flora, known, as CITES which has entered into force on 1st July, 1975.282

An amendment to the Wild Life (Protection) Act, 1972, in 1982,283 introduced

provisions permitting the capture and transportation of wild animals for the scientific

management o f animal populations. Section 44 was also amended which relates to grant

of licences for carrying on business in trophies and animals articles.

It is in the year 1986, by Amendment Act of 1986,284 which came into force on

20th November, 1986, that a major step is taken for the protection of wild life and,

thereby, to enforce the provision o f CITES under Article 253 of the Constitution of India.

By this amendment of 1986, a new Chapter V-A is inserted in the Wild life (Protection)

Act and a complete prohibition o f trade or commerce in trophies, animal article etc.,

derived from scheduled animals is imposed. No person whether with or without a licence

could commence or carry on business as a manufacturer or dealer in any o f the scheduled

animal articles or in ivoiy or in trophies or in captive animals or in meat derived from

such animals or cook or serve meat from such animal or as taxidermist.285 Despite the

282. Ibid.
283. T h e W ild L ife (P ro te c tio n ) (A m e n d m e n t) A c t, 1982 (23 o f 1982).
284. T h e W ild L ife (P ro te c tio n ) (A m e n d m e n t) A c t, 1986 (2 8 o f 1986).
285. Section 49 B.
 241
best intentions o f the Parliament to put an absolute embargo on all trading activities in

animal articles, fur, ivory etc., the traders ensured that the rigors o f this amendment are

nullified. The traders numbering over 700 filed large number of writ petitions285'*

challenging the Amendment of 1986 in the High Court of Delhi. On 23rd January, 1986,

the traders succeeded in getting the operation o f newly inserted Chapter V-A stayed. In

1992, World Wide Fund for N ature (WWF) intervened in the said petitions and after

a keen contest by the traders succeeded in getting the said stay order vacated on 22nd

May, 1992. Hence, though a complete embargo on trade in animal articles etc., was

imposed in November, 1986, it actually came in to operation in May, 1992, all because

o f the order of stay granted by the High Court.

Come October 1991, the Wildlife (Protection) Act, 1972, is yet again amended by

the Amendment Act of 1991286 with effect from 2nd October, 1991. This is the most

historic amendment in the history of wildlife laws as the Parliament inserted yet another

new Chapter- III-A to provide protections to specified plants. The commercial exploitation

o f plants had brought many species on the verge o f extinction. This new Chapter III-

A provided for the first time provisions to prohibit collection and exploitation of such

endangered plants. By the said Amendment Act o f 1991, Schedule VI, was added

specifying the species of plants which are endangered. The Parliament also amended

long title and added the word ‘plants’. The amended long title reads as ‘An Act to provide

fo r the protection o f wild animals, birds and plants and fo r matters connected therewith

or ancillary or incidental thereto.' Consequently, it also added the definition of the words

‘specified plant’ in Section 2 of the said Act.

A major factor responsible for the decline o f wild life all over the world is trade

and commerce. International trade in wildlife and products thereof is, indeed, big

business. In the late 1960s and the early 1970s, the size of the trade grew to unprecedented

proportions.
285-A. Among several cases filed by wildlife traders in the Delhi; High Court are: G.R.'Simon and
other Vs Union oflndia, A.I.R. 1997 DEL 301; Ivory Traders Association Vs Union o f India,
A.I.R. 1997 DEL 267. Mysore Super Reptile VS Union oflndia; and Unigems Vs Union o f
India. However, in 1992, all the stay orders were vaeated and the law came into force.
286. The Wild Life (Protection) (Amendment) Act, 1991 (44 o f 1991).
 242
In order to prevent over exploitation o f wild fauna and flora through international

trade, a Convention on International Trade in Endangered Species of Wild Fauna

and Flora (CITES)287 was signed at Washington D.C. on 3rd March, 1973, and after

ratification by ten countries, namely, United States o f America, Nigeria, Switzerland,

Tunisia, Sweden, Cyprus, U.A.E.,,Ecuador, Chile, Uruguay, came in to effect on 1st

July, 1975. The Government of India deposited the instrument of ratification on 20th

July, 1976, and became a party to the Convention from 18th October, 1976. Thereafter,

it has been actively involved in CITES and has played a significant role throughout.

CITES now has 132 countries as parties.288

The aim of the Convention is best stated in its Preamble in the following words :

"Recognizing that peoples and states are and should be the best protectors

o f their own wild fauna and flora ;

Recognizing, in addition, that international cooperation is essential fo r the

protection o f certain species o f wild fauna andflora against over -exploitation

through international trade ;

Convinced o f the urgency o f taking appropriate measures to this e n d ........ ”

The representatives o f the parties meet every two years to review the Convention

and its implementation. The first meeting of the CITES was held in Berne (Switzarland)

in November, 1976 ; the second in Costa Rica in March, 1979 ; the third in New Delhi

(India) in February, 1981.289

India hosted the third meeting at New Delhi form February 25 to March 8, 1981.

This was described by the CITES General Secretary as ‘the best attended, as well as,

hosted Conference o f the parties’.290 At the end of the meeting, India was elected as

287. Samar Singh, ‘CITES and India ’ in Nalraj Publisher’s The Wild Life (Protection) Act, 1972,
(as amended upto 1993), (1997), p. 27. See also International Environmental Law Vol. 2,
Part. 1, (1998-99), p. 255, compiled by [Link] Research Team : Centre for Environmental
Law Education Research and Advocacy, National Law School of India University, Nagarbhavi,
Bangalore - 72.
288. Ibid.
289. Ibid at p. 29.
290. Ibid at p. 30.
 243

Chairman o f the Standing Committee, the most prestigious body o f the Convention for

subsequent meetings held at Garborne (Botswana) in 1983, Buenos Airs (Argentina) in

1985, and at Ottawa (Canada) in 1987. This was an exceptional honour, signifying the

confidence and trust enjoyed by India amongst the CITES parties.

CITES is an international agreement, which must be implemented and enforced

both by national policy and law. India’s present Export - Import Policy is well attuned

to the overall objectives o f CITES. It is very important, however, that there should be

regular periodic review of the policy to ensure that the objectives o f CITES are not over

looked. The Ministry o f commerce and the Chief Controller of Import and Exports have

to be particularly sensitive to this need.

India implements the decisions taken in the CITES in letter and spirit. The ban

on trade in African ivory under the Wild Life (Protection) Act, 1972, is a glaring example.

Parliament passed the Wild Life (Protection) (Amendment) Act, 1986, in order to, enforce

the provisions o f CITES under Article 253 o f the Constitution of India.

In exercise of the powers conferred by the Wild Life (Protection) Act, 1972, the

Central Government made the following Rules :

1. The Wild Life (Transactions and Taxidermy) Rules, 1973 ;291

2. The Wild Life (Stock Declaration) Central Rules, 1972 ; 292

3. The Wild Life (Protection) Licensing (Additional Matters for Consideration )

Rules, 1983 ; 293

4. The Wild Life (Protection) Rules, 1995;294 and

5. Ihe Wild Life (Specified Plants - Conditions for Possession by Licensee) Rules, 1995.295

291. Vide Notification No. G.S.R. 198 (E), dated 9th April, 1973, published in the Gazette o f
India, Extra., Part II, Sec. 3 (i), dated 9th April, 1973, as cited in S.K. Mohanty, Environment,
and Pollution Law Manual, (1998), p. 60.
292. Vide Notification No. G.S.R. 29 (E), published in the Gazette o f India, Extra., Part II, Sec 3
(i), dated 25th January, 1973, as cited in S.K. Mohanty, ibid at p. 69.
293. Vide Notification No. G.S.R. 328 (E), dated 13th April, 1983, published in the Gazette of
India, Extra, Part II, Sec 3 (i), dated 13th April, 1983, as cited in S.K. Mohanty, ibid atp. 71.
294. Vide Notification No. G.S.R 348 (E), published in the Gazette o f India, Extra ordinary, Part
11, Sec 3(i), dated 18th April, 1995, as cited in S.K. Mohanty, ibid at p. 72.
295. Vide Notification No. G.S.R 349 (E). published in the Gazette o f India, Extra ordinary, Part
II, Sec 3(i), dated 18th April, 1995, as cited in S.K. Mohanty, ibid at p. 74.
 244
Biological Diversity :

Popular interest in protecting the world's plant and animal species has intensified

during the last 20 years. Both scientists and general public have realized that we are

living in a time o f unprecedented mass extinction. Around the globe, biological

communities that took millions o f years to develop are being devastated by human activity.

The main cause of the present extinction is habitat destruction by man, such as, clear

cutting o f forests, overgrazing grasslands, draining wetlands and polluting the

ecosystems.296

A new multi-disciplinary science that has developed to deal with the crisis

confronting biological diversity is the ‘Conservation Biology’. It has two goals - first,

to investigate human impacts on biological diversity and second, to develop practical

approaches to prevent extinction of species.297

According to the U.S. Office of Technology Assessment (1987), biological

diversity is the variety and variability among living organisms and the ecological

complexes in which they occur.298

India is floristically very rich. It is estimated that there are about 49,000 species

of plants including shrubs in the country, which represent seven per cent of world’s flora.

The vascular flora, which forms the conspicuous vegetation cover comprises 15,000

species. O f there, more than 35 per cent is endemic and has so far not been reported

anywhere in the world. The plant wealth o f the country includes not only the useful

large flowered plants including flowering shrubs but also a large number o f non flowering

plants like ferns, liverworts, algae and fungi.299

The flora of the country is being studied by the Botanical Survey of India (BSI),

Kolkata, along with certain universities and research institutions.

296. P. D. Sharma, Ecology and Environment, (1997). p. 623.

297. Ibid.
298. Ibid.
299. India 1998 • A Reference Annual, published by Publication Division, Ministry oflnfonnation
and Broadcasting, Government oflndia, p. 4.
 245
Owing to destruction of forests for agricultural, industrial and urban development,

several Indian plants are facing extinction. BSI brings out an inventory o f endangered

plants in the form o f a publication titled ‘Red Data Book’.300

The Zoological Survey of India (ZSI), with its head quarter in Kolkata and 16

regional stations located in different parts o f the country, is responsible for surveying

the faunal resource o f our country. Possessing a tremendous diversity o f climate and

physical conditions, India has great variety of fauna numbering 81,251 species, which

represent 6.67 per cent of world’s fauna. O f these, insects constitute about 60,000,

molluscs a little over 5,000, mammals 372, birds 1,228, reptiles 446, amphibians 204,

and fishes 2,546.301

The mammals include the majestic elephants, the gaur (Indian bison), rhinoceros,

the gigantic wild sheep of the Himalayas, the swamp deer, the thamin spotted deer, nilgai,

the four horned antelope, the Indian antelope or black buck, lion, tiger, clouded leopard,

the snow leopard, the marbled cat. Many other species o f mammals are remarkable for

their beauty, colouring, grace and uniqueness. Several birds like pheasants, geese, ducks,

mynas, pigeons, parrots cranes, hornbills and sunbirds inhabit forests and wetlands.302

Rivers and lake harbour crocodiles and gharials. A project for breeding crocodiles

started in 1974, has been instrumental in saving the crocodiles from extinction. Twelve

schemes are in operation in different states for breeding crocodiles.203

The great Himalayan range has a very interesting fauna that includes wild sheep

and goats, markhor, ibex, shrew and tapir. The lesser panda and snow leopard are also

found in the upper riches o f the mountains.30'1

Bio diversity or biological diversity pertains to the diversity o f biological

organisms both wild and domesticated animals and plants, micro organisms and even

genetic materials like seeds and germplasm in a region, country, continent or the entire
300 Ibid.
301. Ibid at pp. 4-5,
302. Ibid.
303. Ibid.
304. Ibid.
 246
globe. In other words ‘Bio diversity’ is the variety of the world’s organisms including

their genetic diversity and the assemblages they form. This totality o f genes, species and

ecosystems provide the basis of life on earth.305 The planet is a home of atleast 30 million

species. O f them, 1.5 million species have been identified.

Though the concern o f bio-diversity has been known to man ever since they began

to minutely observe the living beings around him, the word ‘Bio-diversity’ suddenly

appeared as the catch word of conservationists and biologists towards the end o f the last

decade. It was perhaps used as a concrete expression in the publication ‘Conserving

the W orld’s Biological Diversity’ brought out by the World Research Institute (WRI),

World Bank, International Union for Conservation of Nature and Natural Resources

(IUCN) and World Wide Fun for N ature (WWF).306

The United Nations Conference on Environm ent and Development (UNCED)

held in Rio de Janeiro, Brazil, in June, 1992, laid immense stress on the biological

diversity of our globe and need to preserve it for prosperity. At this Summit, a Convention

was signed and is known as the ‘Convention on Bio-Diversity’(CBD).

The Convention on Biological Diversity, 1992, in its Preamble proclaims, interalia,

that the contracting parties, while conscious o f the intrinsic value of biological diversity

and o f the ecological, genetic, social, economic, scientific, educational, cultural,

recreational and aesthetic values o f biological diversity and its components and while

affirming that the conservation o f biological diversity is a common concern of human

kind is determined to conserve and sustainably use biological diversity for the benefit

o f present and future generations.

Article 2 of the Convention defines ‘Biological Diversity’ in the following words :

"Biological diversity means the variability among living organisms from all

sources including, interalia, terrestrial, marine, and other aquatic ecosystems

and the ecological complexes o f which they are p a r t; this includes diversity

305. Dr. K. M. Pathak, ‘Biodiversity for Food, Security and Human Welfare’, published in The
Assam Tribune, dated, June, 23, 1996.
306. Ibid.
 247

within species, between species and of ecosystems. "

The importance oT bio-diversity for the continuation of life rests on several factors.

An ecosystems operates through the functional interrelationship of species. When some

of these species are destroyed, the whole form of the sjstem changes. This not only has

consequences for the local environment, but can have devastating effects on the

interrelationship between ecosystems.

The Biological Diversity Act, 2002 :

Our recent Biological Diversity Act, 2002, is a most significant-™7 piece of

legislation. It responds to concerns arising out of developments in biotechnology and

information technology and from the ongoing erosion of biological diversity. These

developments imply that all organisms even seemingly insignificant ones like microbes

and worms on land, in rivers and in the sea are potentially resources of considerable

economic value, worthy of efforts at conservation, scientific investigation, and of securing

rights over the associated intellectual property. This has prompted the development of

two often conflicting international agreements the Trade Related Intellectual Properly

Rights (TRIPS) of the General Agreement in Trade and Tariff (GAIT) and the

Convention on Biological Diversity (CBD).,IIR

The latter has two note worthy stipulations. One is the sovereign rights of countries

of origin over their bio diversity resources. The other is the acceptance of the need to

share benefits flowing from commercial utilization of bio-diversity resources with holders

of traditional knowledge. There is as yet no proper resolution at the international level

of how these will be implemented in view of the fact that normal Intellectual Property

Rights and TRIPS provisions do not stipulate any sharing of benefits for holders of

knowledge in public domain nor the sovereign rights of countries of origin over their

307. Prior to its enactment in 2002, a draft of the Biodiversity Bill was released for public debate
by Mr. Saifiuddin Soz, former Union Minister for Hnvironment and f orests, in late 1947. I)r
M.S. Swaminalhan. Chairman of the Committee established to draw up this legislation outlined
in a talk at the International Conference on Medicinal Plants in Bangalore on I ebruars. 19,
1998 \Survey o f the Environment I99S of the HINDU. (Annual)|, pp. 135-137.
308. 'New roods, but a long way to go', published in The Hindu (Magazine), Sunday. April. 20.
2003. p. 1.
 248
genetic resources. The Biological Diversity Act, 2002, is a part o f the Indian attempt

to make some progress and to put into operation these two important provisions o f the

CBD.309

. This ambitious Act aims to promote the conservation, the sustainable use and the

equitable sharing o f benefits o f our bio diversity resources, including habitats,

domesticated stocks and breeds o f animals and micro organisms. With this in view, it

provides for the establishment o f a National Bio-Diversity Authority, State Bio-

Diversity Boards and Bio-Diversity Management Committee at the level of panchayats,

municipalities and city corporations. It was initially designed as an umbrella Act, and

to herald a new age, overriding many o f the earlier Acts, such as, the Forest Act

formulated in the colonial era. As passed, however, it only has the status o f a

complementary Act and will have to be used side by side with a range o f other Acts

including patents.310

The Biological Diversity Act, 2002, is an important step in the attempts to assert

the sovereign rights o f the people o f India over their bio diversity resources, and to claim

a share o f benefits flowing from commercial utilization o f these resources involving the

use o f any associated knowledge o f Indian origin, even if it be in the public domain or

held as a part o f an oral tradition. There are difficulties in carrying out these intentions.

No international agreement has as yet been arrived at as to how to put into effect the

relevant CBD provisions. Even if such an agreement is arrived at, the United States may

nor accept it as it has not signed the CBD. Furthermore, the CBD recognizes sovereign

rights o f countries over bio diversity resources.311

The CBD stipulates the sharing o f benefits in the context o f knowledge associated

with bio diversity resources only for indigenous communities and not all communities,

nor does it mention classical knowledge, such as, those contained in Ayurvedic texts.

309. Ibid.
310. Ibid.
311. Ibid. See also the Preamble o f the Convention on Biological Diversity, 1992. The Preamble
states, among others, that the contracting parties, while reaffirming that states have sovereign
rights over their own biological resources, are determined to conserve and sustainably use
 249
Since the TRIPS provisions do not accept any sharing of benefits for holders of knowledge

in the public domain and since even the CBD makes no mention o f sharing o f benefits

pertaining to knowledge in such classical texts, we might find it difficult to sustain benefit

sharing claims for such knowledge as specified in the Act. We can, o f course, use such

information as evidence of priori art, as was done successfully in the case o f the U.S.

Patent on the use o f turmeric lotion. Furthermore, India can not really lay exclusive

claim to knowledge contained in Ayurvedea; Sri Lanka and Nepal, for instance, have

ancient and still vibrant traditions o f Ayurveda, and India needs to arrive at co-operative

arrangements with such countries in this context. Nevertheless, these difficulties will

primarily arise in the case o f products by foreign companies manufactured and marketed

abroad. It is certainly possible to enforce the provisions o f the Act on products being

marketed in India, by both Indian and foreign companies, even if manufactured outside

India.312

The Convention on Biological Diversity, 1992 (CBD) :

Biodiversity is basically the diversity among and within living beings and their

ecosystems. Broadly, they can be classified as diversity in ecosystems and habitat species,

genes and sites ( land use, ecology o f a site etc.) Bio Diversity has been proved by

scientific evidence to be necessary for the very existence space ship Earth and also its

dependents. Added to this, is the other values like cultural, economic and aesthetic that

make it an important matter. However, some countries are more endowed with this than

others. The tropical countries (generally the developing countries) are the ones that are

rich in bio diversity. The use o f bio diversity and the technology to extract it commercially

lies with the developed countries, which are not so rich in bio diversity. The absence

o f any instrument on the use of bio diversity led to the Convention of Bio diversity,

in 1992.313

b io lo g ic a l d iv e rs ity fo r the b e n efit o f present and future generations.

312. Ib id a lp . 2.
313. Bio- Diversity Related Laws, (2 0 0 2 ), p. 201, m aterials c o m p ile d by the N ation a l L a w S ch ool
o f India U niversity, B an galore - 72.1 had an opportunity o f participating in a U .G .C . sponsored
R e fres h er C ou rse on En vironm en tal L a w (fr o m 21st O c to b e r to 10th N o v e m b e r, 20 02 ),
 250
The Convention on Biological Diversity, 1992, is a product of the 1992 UNCED

at Rio. It is legally binding instrument with nearly 167 members to date. The CBD

essentially has three key goals;

1. Conservation o f biological diversity :

Essentially of two kinds, in situ and ex situ. In situ is conservation under

natural conditions and ex situ outside the natural conditions, where a species

occurs. It encourages participation o f public and NGOs in the process.

2. Sustainable use of components o f biological diversity : This is a principle

reflected under the CBD.

3. Equitable benefit sharing form use o f genetic resources and appropriate

transfer o f relevant technology : This envisages co-operation between

countries that benefits arising from the use of a genetic resource is shared

with the source country and anybody involved in the process like local

communities.314

All the three goals have to be satisfied either through existing or new national

policies and law.

Access to Genetic Resources :

The CBD recognizes that countries have sovereignty over their natural resources.

Therefore, it requires members rich in bio diversity to allow access to their bio diversity

to other states. This is supplemented by the requirement o f prior informed consent from

the source country.315

Transfer of Technology :

The countries that are progressive in terms o f bio technology and which want to -

access the resources form bio diversity rich countries are required to transfer their

technology to the source countries in exchange for access to bio resources. What is

conducted by Centre for Environmental Law Education, Research and Advocacy ( CEERA),
National Law School o f India University, Bangalore, by which I gathered the material.
314. Ibid.
315. Ibid atp. 202.
 251
required of the source country is to ensure that the intellectual property rights are protected

by the source country.316

The CBD discusses the need for countries to also ensure that there is education,

exchange o f information and financial aid. The implementation of the provisions must

be under the national legislation.

The CBD is not the only document that deals with matters related to bio diversity.

Other international instruments include CITES, 1972,3,7 the Ramsar Convention, 1971318

and the Convention on World Cultural and Natural Heritage.3'9 They however relate at

a different level. They need to be co-ordinated with the CBD for effective implementation

of the goals of the international environmental law.

Indian became a party to the CBD in 1994. Two bio diversity hot spots o f the

world, the W estern G hats and the North East are situated in India. The other areas are,

the Gangetic Plains, the Coastal Areas, Deccan Peninsular and West Himalaya. It is not

only rich in species diversity, but ecosystem and cultural diversity. It is also rich in

knowledge o f use o f these resources.320 The existing laws and policies are : (i) The

1952 Forest Policy ; (ii) the 1998 Forest Policy ; (iii) the Indian Forest Act, 1927 ; (iv)

the Forest (Conservation) Act, 1980; (v) the Management Programme ; (vi) the Wild

Life (Protection) Act, 1972 ; (vii) the Wild Life Protection Bill, 1998 ; (viii) the Coastal

Regulation Zone Notification, 1991 ; and (ix) the Biological Diversity Act, 2002

Conservation o f bio diversity ensures ecological stability and also involves

protection of socio- economic interests o f the people actively associate with conservation.

All over the world, legal strategies-globai, regional, national and-local- have been

developed for ensuring protection o f such interest along side maintenance of ecological

316. Ibid.
317. Convention on International Trade in Endangered Species o f Wild Fauna and Flora, 1973,
signed at Washington D.C. on 3rd March, 1973. India deposited the instrument o f ratification
on 20th July, 1976, and became a party to the Convention form 18th October, 1976.
318. Convention on Wetlands oflnlcmational Importance Especially as Waterfowl Habitat (Ramsar),
1971.
319. Convention for Protection o f the World Cultural and Natural Heritage, 1972.
320. Supra n. 313, pp. 202-203.
 252
stability. People have to be alert, assertive, and play an activist role in bio diversity

conservation. Apart form the global and regional strategies, national laws provide for

certain innovative and non-conventionai techniques, like public interest litigation (P1L),

citizens’ suit, right to information and public hearing, which enable people to assert

their rights connected with environmental degradation321. These techniques will be

discussed in C hapter IV of this thesis.

Bio diversity and Intellectual Property Rights :

The Convention on Biological Diversity (CBD) 1992, and the Agreement on Trade

Related Intellectual Property Rights (TRIPs) 1993 as a part o f WTO are in force and

are legally binding instruments on the parties thereto.322 Whereas the main objective of

the TRIPs is to recognize and protect monopolistic and private intellectual property rights

(IPRs) held mainly by multinational corporations (MNCs), the CBD aims to conserve,

sustainably use and share benefits o f biological resources arising out o f such use equitably

in which developing countries are the main holders. The TRIPs looks at individual rights

while the CBD aims to encourage recognition o f collective rights o f communities.

The CBD was adopted in the background o f increased threat to genetic resources

o f the world by the new developments in biotechnology,323 particularly rDNA technology

(recombinant deoxyribonucleic acid).324 However, immediately after its adoption, it raised

a serious controversy in the developed world for its alleged negative impact on further

321. G.S. Tiwari, 'Conservation o f Biodiversity and Techniques o f People's Activism’, in Journal
o f the Indian Law Institute, Vol. 43 : 2, 2001, p. 191.
322. The CBD entered into force on December, 29. 1993, and has been ratified by more than 160
countries; TRIPS is binding on 132 countries at present.
323. In simple terms, biotechnology is understood to be a technology that uses or causes organic
changes in animals, plants, micro-organisms and any biological material and also changes in
the inorganic material by biological means. It is defined as the ‘application o f scientific and
engineering principles to the processing o f materials by biological agents to provide goods
and services' . Sec also Bull, Holt and Lily, Biotechnology : International Trends and
Perspectives, 21 (OECD: 1992), as cited in S.K. Vcrma, ‘Biodiversity and Intellectual Property
Rights’ in Journal o f the Indian Law Institute, Vol. 39, Nos. 2-4, April-Deccmbcr, (1997).
324. r DNA technology modifies the genetic code ofliving organisms i.e., micro-organisms, plants
and animals and by so doing, new species o f plants and animals are created. The end result is
a genetically modified or manipulated organism (GMO). This process is much more advanced
and faster than the traditional techniques o f breeding plants and animals. See M. Roberts, ‘A
Consumer View o f B iotech n ology in 4 Consumer Policy Rev. 99 (April, 1994).
 253
research and development (R & D). The United States has so far failed to ratify it325 for

its failure to protect adequately the interest o f technology holders. This has cast a shadow

on the enforceability of the Convention and the attainment of its objectives. Despite the

position taken by the CBD that IPRs must not conflict with the conservation and

sustainable use of biodiversity326 and states should cooperate to ensure that IPRs should

be supportive o f and do not run counter to the objectives o f CBD, conflicts are bound

to arise.

The CBD is aimed at safeguarding the biological diversity327 o f the earth which

is primarily concentrated in the tropics i.e., developing countries. It is a well established

fact that developing countries are rich in world’s flora and fauna and 80 per cent of the

earth’s terrestrial bio diversity is confined to these countries,328 which is the ‘raw

m aterial’ for biotechnology i.e., genes, folk varieties, land races to develop new varieties

by biotechnology. Until the advent o f molecular biology and genetic engineering, plant

breeding depended for its success on access to genetic variability within a species. Genetic

engineering has, however, rendered the transfer o f genes across sexual barriers possible

and has, thus, enhanced the economic value of biodiversity.329

The R & D in biotechnology is principally confined to developed countries,

particularly in private hands (mainly with MNCs). For their R & D, they generally fall

back on the genetic resources provided by developing countries, which were available

to them free o f charge till recently from the, farmers and plant breeders from developing

countries. The products or plant varieties, particularly created or developed from these

genetic resources, are protected through patents and plant breeder’s rights (PBRs) in

325. It was signed only in June, 1993, by the Clinton Administration.

326. Article 16.5
327. Biodiversity is normally classified under 3 major categories: ecosystem diversity, representing
the principal biogeographic regions and habitats; species diversity; representing variability at
the level o f families, genera and species; and genetic diversity, representing the large amount
o f variability occurring within a species, lh c CBD covers all these.
328. India has over 45,000 species o f plants, among them 15,000 belong to the category o f flowering
plants. About 300 o f them are grown for a variety o f purposes, including veterinary and
human medicine.
329. S.K. Venna, ‘Biodiversity and Intellectual Property Rights’ in Journal o f the Indian Law
Institute, Vol. 39, Nos. 2-4, Aprii-Dccembcr, 1997, p. 205.
 254
developed countries are not freely accessible to developing countries.130 The protected

products are exported to them at high prices, after ‘value adding’ without acknowledging

the source or repaying their dues for cultivation and protection of this ‘new material’.

For example, Cancer like Hodgkin’s disease and pediatric Lymphocyte Leukemia could

be cured by vinblastine and vineristine, two alkaloids derived from the ‘rosy

periw inkle’. Since their introduction in the early 1960’s, these plant derived

pharmaceuticals have been primarily responsible for improving Hodgkin’s disease

remission rates remarkable.331 Eli Lily, the corporate producer o f these pharmaceuticals

earns roughly more than US $ 100 million each year form these drugs, while Madagascar,

the original home o f rosy periwinkle, earns nothing form them.332

The TRIPs Agreement enjoins its members to grant patents ‘f o r any inventions

....... in all fields o f technology’ (Article 27) which covers biotechnology. Because of

this, bio diversity falls firmly under the legal regime o f the TRIPs. But Article 27 (2)

and (3) provide important exceptions in favour o f protecting environment and, thereby,

the bio diversity.

There are two pre conditions to exclude inventions from patentability, namely,

(i) Commercial exploitation o f the invention should be disallowed ;

(ii) Such prevention of commercial exploitation is necessary for the purpose of

avoiding serious prejudice to the environment.

However, such exclusion should not be ‘made merely because the exploitation is

prohibited by domestic law.” This, therefore, implies that the WTO would have the

authority to examine, interpret and decide what would constitute serious prejudice to

the environment.333

As already stated, there are three main objectives o f the CBD : (i) conservation

o f biological diversity ; (ii) sustainable use of components o f biological diversity ; and

330. Ibid.
331. Ibid.
332. Ibid.
333. Ib id at p. 206.
 255
(iii) fair and equitable sharing o f benefits arising out o f the utilization o f genetic resources

and appropriate transfer of relevant technology. Different provisions of the Convention

gives effect to this mandate. Article 1 o f the Convention11'’ provides for :

"the conservation o f biological diversity, the sustainable use o f its components

and the fa ir and equitable sharing oj the benefits arising out o f the utilization

o f genetic resources, including appropriate access to genetic resources and

appropriate transfer o f relevant technologies, taking into account all rights

over those resources and to teefwology, and by appropriate funding. ”

The Bio diversity Convention is an instrument in the direction of sustainable

development,335 which aims at the conservation o f bio diversity o f the planet while

striving for the development by making provision for an access to technology, including

biotechnology. It provides mechanisms for the successful exploitation o f the genetic

resources, as well as, for an adequate reward for the access to those resources. But the

laudable objectives o f the Conventions are not easily achievable. The Convention does

not impose a duty on states to allow access to their genetic resources or to part with

their technological know-how unless there exists a quid pro quo arrangement inter-se

between the parties. Furthermore, the convention requires that technology subject to patent

and other intellectual property rights shall be made available to the countries providing

access to their genetic resources, if adequate and effective protection o f that technology

is assured. This clearly means that before developing countries are given an access to

biotechnology, they will have to protect such technology through patents or other

intellectual property rights. TRIPs Agreement also requires them to do so.336 Thus, both

the CBD and TRIPs agreement are mutually consistent and reinforcing on this point.

But the sharing o f the profits and access to technology on mutually agreed terms are the

334. The Convention on Biological Diversity, 1992.

335. The World Commission on Environment and Development, in its Report (Our Common
Future), submitted in 1987, defines ‘Sustainable Development’ 'as development that meets
the need o f the present without compromising the ability o f the future generations to meet
their own needs'.
336. Article 27.
 256

troubling spots.

All members states of CBD and TRIPs Agreement face an inescapable problem

o f compliance with them in letter and spirit. Both treaties are legally binding but their

obligations are quite at variance. It is likely that a country which in all good faith seeks

to implement community rights and does so through a CBD framed policy, could find

itself in serious contravention of the TRIPs Agreement.

In the interest o f bio diversity and to avoid conflict with IPRs, countries should

recognize and affirm in law the priority o f the CBD over the WTO / TRIPs Agreements

in the areas of biological resources and traditional knowledge systems. The governments

should be provided the option to exclude all life forms and related knowledge from IPR

systems. The collective rights o f indigenous and local communities to freely use, exchange

and develop bio diversity should be recognized as a priori rights and be placed over

and above private IPRs.

Laws Relating to Liability :

There was a leakage o f oleum gas on 4th and 6th December, 1985, from Shriram

Caustic Chlorine and Sulphuric Acid Plant, one o f the units o f Shriram Food and Fertilizer

Industries in the city o f Delhi. As a consequence o f this leakage, it was alleged that one

person had died and several others were injured by the same. An action was brought

through a writ petition under Article 32 o f the Constitution by way o f public interest

litigation.337 The Court had in mind that within a period o f one year this was the second

case o f large scale leakage o f deadly gas after the Bhopal gas leak tragedy. This tragedy

occurred when Methyl Iso Cyanate (MIC) a highly toxic gas which had been manufactured

and stored in the Union Carbide Corporation’s(UCC) Chemical Plant in Bhopal, allegedly

escaped in to the atmosphere killing nearly 4000 people and inflicting injuries on more

than 2 lakhs others.

In Shriram,338 the Supreme Court took a bold decision holding that it was not bound

337. M.C. Mehta Vs Union on India, A.I.R. 1987 S.C. 1086.

338. Ibid. See also R.K. Bangia, Law o f Torts, (1991), p. 345.
 257
to follow the 19th Century’s rule of strict liability of English law and it could evolve
a rule suitable to the social and economic conditions prevailing in India. The Supreme
Court evolved the ‘rule of absolute liability’ as part of Indian law in preference to the
‘rule of strict liability’ laid down in Rylands Vs Fletcher.339 the Apex Court expressly
declared that the new rule was not subjected to any of the exceptions under the rile in
Rylands Vs Fletcher.340
The Supreme Court imposed stringent standards341 before permitting Shriram to
operate its Caustic Chlorine and Sulphuric Acid Plant and directed the management to
resume operation on compliance of such standards. In token appreciation of the work
done by the petitioner, the Supreme Court further directed the Respondent to pay Rs.
10,000 by way of costs to the petitioner. The Court defined ‘Precautionary Principle’
and ‘Polluter Pays Principle’, and introduced a new ‘no fault liability’ for the industries
engaged in hazardous activities.
Thus, the ‘rule of strict liability’ laid down in Rylands Vs Fletcher, a century ago
which recognized non-liability if the leakage of the substance was due to sabotage etc.,
was considered to be inapplicable in India.342
In 1991, as a legislative sequel to the ruling of the Supreme Court in the Oleum
Gas Leak Case,243 the Indian Parliament passed the Public Liability Insurance Act,
339. (1868) L.R. 3 ILL. 330.
340. Ibid.
341. A.I.R. 1987 S.C. 1086 : 1987 A-CJ. 386 : This case was decided by a Bench consisting of
seven Judges on a reference made by a Bench of three Judges. That Bench had earlier decided
whether the working of the Shriram Food and Fertilizer Industries should be re-started, and if
so, with what conditions. See A.I.R. 1987 S.C. 965 and 982.
342. A.I.R. 1987 S.C. 1086 at 1098-1099. P.N. Bhagwati, C.J., observed in this context: ‘This
rule (Rylands Vs Fletcher) evolved in the 19th century at a time when all these developments
o f science and technology had not taken place can not afford any guidance in evolving any
standard of liability consistent with the constitutional norms and the needs o f the present day
economy and social structure. We do notfeel inhibited by this rule which was evolved in the
context o f a totally different kind of economy. Law has to grow in order to satisfy the needs of
the fast changing society and keep abreast with the economic developments taking place in
this country. As new situations arise the law has to be evolved in order to meet the challenge
o f such new situations. Law can not allow ourJudicial thinking to be constrained by reference
to the law as it prevails in England. ... we in India can not hold our hands back and 1
venture to evolve a new principle of liability which English courts have not done '
343. M.C. Mehta Vs. Union oflndia, A.I.R. 1987 S.C. 1086.
 258
1991 (PLIA) that purported to provide immediate relief to the victims o f industrial

accidents and incidents occurring as a result o f handling o f hazardous substances.244 This

Act makes it mandatory for eveiy owner to take out insurance policies before handling

any hazardous substance for coverage against any liability that may arise on account o f

an accident or incident involving these substances. While there has been some caution

expressed in some quarters over the provision o f this Act, there is no denying the fact

that its provisions have been salutary and have ushered in a new legal regime to deal

with industrial disasters in that case o f mass and industrial disasters especially those

involving large enterprises in India.345

The rationale for passing o f this Act has been quite eloquently staled in the

‘Statement of Objects and Reasons’346 accompanying the Bill as :

“the growth o f hazardous industries, processes and operations in India has

been accompanied by the growing risks form accidents, not only to the

workmen employed in such undertakings, but also innocent members o f the

public who may be in the vicinity. Such accidents lead to death and injury

to human beings and other living beings and damage private and public

properties, Very often, the majority o f the people affected are form the

economically weaker sections and suffer great hardships because o f delayed

relief and compensation. While workers and employees o f hazardous

installations are protected under separate laws, members o f the public are

not assured o f any relief except through long legal processes. Industrial units

seldom have the willingness to readily compensate the victims o f accidents

and the only remedy now available fo r the victims is to go through prolonged

litigation in a court o f law. Some units may not have the jinancial resources

to provide even minimum relief

344. Vikram Raghavan, 'Public Liability Insurance Act : Breaking New Ground fo r Indian
Environmental Law !, in Journal o f the Indian Law Institute, Vol. 39, No. 1, January-March,
1997, p. 96.
345; Ibid at p. 97.
346. S.K. Mohanty, Universal s Environment and Pollution Linv M anual , ( 1998), Part-VII, p. 4.
 259
It is, therefore, essential to provide fo r Mandatory Public Liability Insurance

fo r installations handling hazardous substances to provide minimum relief

to the victims o f accidents. Such an insurance, apart from safeguarding the

interests o f the victims o f accidents, would also provide cover and enable

the industry to discharge its liability to settle large claims arising out o f

major accidents. I f the objective o f providing immediate relief is to be

achieved, the mandatoiy public liability insurance should be on the principle

o f 'no fa u lt' liabilities as it is limited to only relief on a limited scale. However,

availability o f immediate relief would not prevent the victims to go to courts

fo r claiming larger compensation."

The Public Liability Insurance Bill was introduced in Lok Sabha on 31st May,

1990. It was debated by Lok Sabha in 6th Session and by Rajya Sabha in its 156th Session.

It was passed by Lok Sabha on 07-01-1991 and by Rajya Sabha on 08-01-1991. It received

the assent o f the President o f India on 22-01-1991 and became the Public Liability

Insurance Act, 1991.347

Legislative History of Public Liability Insurance Act, 1991 ;

It is necessary and indeed appropriate to set out, in brief, the legislative history

that preceded the enactment o f the Public Liability Insurances Act, 1991. It is generally

considered that the Stockholm Conference on the Human Environment held in Sweden

in 1972,348was instrumental in giving rise to the awareness among nations that adequate

measures be taken to safeguard the environment and, indeed, the health o f human

beings.34'7 It laid down several principles that formed the basis for subsequent legislation

the world over, including in developing nations like India. But before these legislations

came into force, the English principles o f common law relating to nuisance, negligence

and strict liability were applicable in this country through the incorporation o f theeommon

law, by Indian courts. The earliest principle in this regard was that of nuisance . It is

347. Ibid.
348. D eclaration o f the U nited N ation s C o n feren c e on the Human Environm ent. U .N . I Joe. A/
C O N F.48/14 (1 9 7 2 ), reprinted in 11 International L e g a l M a terials 1416 (1 9 7 2 ).
349. Vikram Raghavan, ‘Public Liability Insurance Act : Breaking New Ground fo r Indian
 260
taken to mean anything that hurts or annoys another or interferes in the enjoyment of

the property o f another without amounting to a trespass. While the courts in India have

developed theme o f nuisance in tort, a similar concept o f public nuisance is present in

criminal law, through a provision in the Indian Penal Code. It allows for criminal

prosecution for the offence of causing a nuisance.35" Criminal proceedings can be initiated

before a magistrate for removing a public nuisance.351 A further statutory remedy is

available through a civil action by the Advocate General or by two or more members

o f the public with the permission o f the court, for a declaration, an injunction or both

to abate the nuisance.352

The responsibility of an occupier o f premises to ensure that no harm was done to

the neighbour, in using the premises was recognized in India, for long, due to incorporation

o f the English common law principles o f strict liability in India. But no action was taken

on the legislative front until India participated in the Stockholm Conference in 1972.

Following this Conference, the Parliament o f India passed a number o f Acts, thereby,

initiating appropriate steps to implement the decisions taken in the said Conference.353

In 1987, came the pronouncement o f the Supreme Court o f India in the Oleum

Gas Leak Case354 which along with the Bhopal accident335 was the main reason for

Parliament to enact the Public Liability Insurance Act, 1991.

This law was enacted with a view to provide for public liability insurance for the

purpose o f providing immediate relief to persons affected by accident occurring while

handling any hazardous substance and for matters connected therewith or incidental

Environmental Law’, in Journal o f the Indian Law Institute, V ol. 39, N o . 1, January-M arch,
1997, pp. 97-98.
350. S e ctio n 268 o f the Indian Penal C o d e , 1860.
351. S ection 133-144 o f the C o d e o f C rim inal Procedure, 1973.
352. S ection 91 o f the C o d e o f C iv il Procedure, 1908.
353. A t t id e 253 o f t h c C onstitution o l'ln d ia .
354. M .C . M eh ta V s U n ion o fln d ia , A .I.R . 1987 S.C. 1086.
355. O n D ecem b er 3, 1984, just a fter the m idnight. M eth yl Iso C yan a le ( M I C ) , a h igh ly to x ic gas,
w h ich has been m anufactured and stored in the U n ion C a rb id e C orp ora tio n ’s C h em ical Plant
in B hopal, a lle g e d ly escaped in to the atm osphere k illin g nearly 4000 p e o p le and in flic tin g
injuries on m ore than 2,00,000 others.
 261
thereto.356 To achieve this object, the Act impose ‘no fault’ liability upon the owner o f

the hazardous substance and requires the owner to compensate the victims irrespective

o f any neglect or default on his part.357 The right o f a victim to claim additional relief

under any other law is expressly reserved.

The Act obligates every owner to take out an insurance policy covering potential

liability form an accident. An ‘aceident’ is defined to cover a sudden unintended

occurrence while ‘handling’ any hazardous substance resulting in continuous, intermittent

or repeated exposure leading to death or injury to any person or damage to property or

the environment. Accidents by reason o f war or radioactivity are excluded from the scope

of the Act. The expression ‘handling’ is defined widely to include manufacture, trade,

and transport o f hazardous substances.

Along with the insurance premium, every owner must make contributions to an

Environmental Relief Fund established by the Central Government. The fund is designed

to provide relief to the victims of an accident. The principal administrative authority

under the Public Liability Insurance Act is the collector, who is required to verify the

occurrence o f an industrial accident, give publicity to the event, invite applications for

compensation and award relief.

'Fhe Act was amended in 1992, to introduce provisions relating to the relief fund.

Rules framed in 1991, lay down the procedure for inviting and processing compensation

applications and also cap the potential liability of an insurer at Rs 450 million.

The Public Liability Insurance Act, 1991, is a veiy innovative piece of legislation,

that has broken new ground in tort liability in India. The impact o f the law should not

be seen merely as an extension o f judicial recommendations in the Oleum Gas Leak35"

and in the Carbide.359 Instead, it must be treated as having ushered in a new vistas in

356. See the Preamble o f the Act.

357. The PL1A stipulates the maximum compensation for injury or death at Rs. 25,000 and limits
compensation in respect o f damage to private properly to Rs. 6,000.
358. M.C. Mehta Vs Union o f India, A.I.R. 1987 S.C. 1086.
359. Union Carbide Corporation, U.S.A. Vs Union oflndia, A.I.R. 1990 S.C. 273.
 262
environmental protection and hazardous liability, that have travelled a long way form

the early primitive tort remedies o f nuisance and trespass. It is also significant that the

Public Lability Insurance Act was introduced in the year when the New Economic Policy

was introduced with much fanfare.360 It is a necessary concomitant, though o f considerably

lower profile, of the package of changes to Indian corporate and industrial laws, that

have been inaugurated as a result o f the policy.361

The wisdom o f the finest judges o f the common law system, still serves as an

important basis for the formulation o f new principles o f legislation. No better example

is available in the modern context as that Public Liability Insurance Act. As Winfield

Suggested common law will not countenance interference with a person’s use or

enjoyment o f land, or some right over or in connection with it This principle is modified

in the Public Liability Insurance Act, whose main intention is to redress the loss that

is caused through the use o f hazardous substances. Modem industry engages in a plethora

o f these activities and by this the ordinary person can not be put in jeopardy, In the 18th

Century, battery was defined in terms o f grave violence done to another person, today

mere touching that is offensive will suffice. This reflects the increasing public sense of

personal autonomy. When the law changes in this way it affects society’s values. The

Public Liability Insurance Act, 1991, is a unique experiment in which both the courts

and legislators have joined hands and made the life o f the ordinary Indian, a little safer

than that o f their unfortunate countiymen, on the fateful December night in Bhopal in

1984.

Application of the Polluter Pays Principle :

The ‘polluter pays principle’ was for the first time, applied and defined in the

case of Indian Council for Enviro-'Legal Action Vs Union of India.362 It was declared

by the court that redemption o f the damaged environment is a part of the process of

3 6 0 . S e e g e n e r a lly S h y a m D iv a n an d A r m in R o s e n c r a n z , Environmental Law and Policy in India

: Cases, Materials and Statutes, (2 0 0 1 ), p. 37.
3 6 1 . Ib id .

3 6 2 . ( 1 9 9 6 ) 2 J.T. ( S . C . ) 196.
 263

sustainable development and, as such, polluter is liable to pay the cost of the individual

sufferers, as well as, the cost o f reversing the damaged ecology. Thus, the ‘polluter

pays principle’ means the absolute liability for harm to environment extends not only

to compensate the victims o f pollution but also to the cost of restoring the environmental

degradation. Remediation o f the damaged environment is part o f the process of

sustainable development.362^

The Supreme Court in Vellore Citizen’s Welfare Forum Vs Union of India,363

reiterated and declared in unequivocal terms that the ‘precautionary principle’ and the

‘polluter pays principle’ are part o f the environmental jurisprudence of this country.

These principles have been accepted as a part o f the law o f the land as Article 21 of

the Constitution o f India guarantees protection o f life and personal liberty.

The Supreme Court, in its landmark decision in M.C. Mehta Vs Union o f India,1M

recognized the rule o f ‘Absolute Liability’ as part o f Indian law, when harm is caused

by the leakage o f dangerous substance like toxic gas from an enterprise which is engaged

in a hazardous or inherently dangerous industry.

In the Court’s view, the Rylands365 formulation was unsuitable to India, for it was

distilled in the nineteenth century, which did not meet the needs o f a modem society

with highly developed Scientific knowledge and technology where hazardous or inherently

dangerous industries where necessary.

The rational for this was in part that the enterprise has alone the resource to discover

and guard against hazards or dangers and to provide warning against potential hazards.

The Court ruled that this duty is absolute and non-derogable and the enterprise can not

escape liability by showing that if had taken all reasonable care and there was no

negligence on its part. This, in effect, was the end o f the Rylands rule in its application

to enterprise liability and mass tort.

3 6 2 - A . Q u o te d w ith a p p r o v a l in V e llo r e C it iz e n ’s W e lfa r e F o ru m V s U n io n o f In d ia , A . l . R . 1996

S .C . 2 7 1 5 , 2 7 2 1 .

3 6 3 . A . l . R . 1996 S .C . 2 7 1 5 .

3 6 4 . A . l . R . 19 9 7 S .C . 1086.

3 6 5 . ( 1 8 6 8 ) 'L .R . 3 H .L . 33 0 .
 264
The Oleum Gas Leak Case166 has been criticized as constitutionally vague, unjust

and a formulation that was not fair in the absence of insurance. Later Benches o f the
Supreme Court were also not convinced that Oleum Gas dictum was capable ol reasonable

acceptane167 for it was lacking in international acceptance.168 Some accuse the Court

o f influencing the proceedings in the Bhopal case, which was pending before the Lower

Courts and in which similar issues were at stake, and it was used as a formula in

determining the compensation paid to the victims in that case. However, there has been

no denying the fact that the new jurisprudence was revolutionary to state the least. The

dictum in the Oleum Gas leak Case,369 has been recently reiterated by the Supreme

Court in its decision in Indian Council for Enviro-Legal Action Vs Union o f India.370
In doing so, the Supreme Court reviewed the latest legal position in England and Australia.

In the former, the Ryland’s principle has been affirmed by the House o f Lords again in

1994, by allowing a defendant in a case where water in the plaintiff’s well had been

contaminated by percolation of a chemical from the defendant’s tannery, to plead that

the pollution of the water could not have been reasonably foreseeable.171 In Australia,

the High Court has ruled that the Ryland’s principle has many difficulties, uncertainties

and that the duty of care to avoid risk or injury to the person or property o f another must

be a high one.372 The Supreme Court has expressed its inclination in the light o f these

developments to rely on lany principle evolved in this behalf that is simple, practical

and suited to the conditions obtaining in this country'. Though, it did not expressly state

so, the Court appears to have favoured the Australian approach, by following the Oleum

Gas Leak Case’s verdict. It then stated that the pronouncement in the Oleum Gas Leak

366. M.C. Mehta Vs Union ofliuitn. A.I.R. 1987 S.C. 1086.

367. Charan Lai Sahu Vs Union oflndia, (1990) I S.C.C. 613. The principle that the Oleum Gas
Leak Case used to calculate the compensation was questioned. See also the observations o f
Ranganath Mishra, C.J., in Union Carbide Corporation Vs Union oflndia, (1991) 4 S.C.C.
584 where the learned judge opines that the rule in (he Oleum Gas Leak was obiter.
368. Ibid at p. 704 (per Ranganath .1.)
369. M.C. Mehta Vs Union oflndia, A.I.R. 1987 S.C. 1086
370. (19 9 6)3 SCC 212.
371. Cambridge Water Co. Ltd. Vs Eastern Countries Leather Pic, (1994) 1 All E.R. 53, as cited in
Vikram Raghavan, 'Public Liability Insurance Act : Breaking New Ground fo r Indian
Environmental Law \ in Journal o f the Indian Law Institute, Vol. 39, No. I, January-March,
(1997), p. 103.
372. Burine Port Authority Vs General Jones Pvt. Ltd., (1994) 68 Aus L.J. 331.
 265

Case’s was still good law and that it was unnecessary to criticize it.373

Laws Relating to Environmental Tribunals :

The United Nations Conference on Environment and Development (UNCED),

popularly called the ‘Earth Summit’, held in the Brazilian city o f Rio de Janeiro, in

the first fortnight o f June 1992, was the culmination o f 20 years o f efforts by

environmentally concerned politicians, scientists, officials and activists throughout the

world. It was not only history’s biggest Summit, attended by more than 100 Heads of

States and Governments, but also perhaps the most significant as the issues it addressed

concern the very basic issue o f man’s survival on earth.

The Conference also marked the 20th anniversary of a meeting, though of a smaller

scale, held in Stockholm, Sweden in 1972, where world leaders including Prime Minister

Indira Gandhi o f India, for the first time discussed development in terms of environment.

Mrs. Gandhi focused the concern o f the Third World by saying that 'poverty is the

worst form ofpollution, ’ With that came a recognition that the path o f development that

we have been following may not be sustainable and future generations would have to

pay for it.374

The year 1992 marks a watershed in setting a new global agenda in international

relations and economic development. The need for a scientific understanding o f the

phenomena like climate change (acid rain, global wanning, ozone depletion), bio diversity,

and conservation o f natural ecosystems including forests was the main object of this

Summit.

The following four crucial documents were adopted at the Summit :

1. Rio Declaration or a Draft Earth Charter; (Declaration o f Principles on

General Rights and Obligations on Environment Protection) ;

2. Conventions on Climate Change and Bio Diversity ;

373. Jeevan Reddy, J., who delivered the opinion o f the Court found fault with the approach o f
Mishra, C J , in Union Carbide (1991) 4 S.C.C. 584.
374. Manorama Year Book, 1993, pp. 98-104.
 266
3. Statement o f Principles of Forest Management ; and

4, Agenda 21 or Action Plan.375

Principle 13 o f the Rio Declaration states376 :

"States shall develop national law regarding liability and compensation fo r

the victims o f pollutions and other environmental damage. States shall also

cooperate in an expeditious and more determined manner to develop further

intranational law regarding liability and compensation fo r adverse effects

o f environmental damage caused by activities within their jurisdiction or

control to areas beyond their jurisdiction. ”

The Earth Summit also recognized the ‘Precautionary Principle’ and ‘Polluter

Pays Principle’. The polluter should bear the cost. The Third World countries felt

that since most o f the environmental damage has been caused by developed countries

they should bear the opus for cleaning up the environment. Principles 15 and 16 of

the Rio Declaration provide as under :

"In order to protect the environment, the precautionary approach shall be

widely applied by states according to their capabilities. Where there are

threats o f serious or irreversible damage, lack o f fu ll scientific certainty shall

not be used as a reason fo r postponing cost-effective measures to prevent

environmental degradation. ”

(Principle 15)

"National authorities should endeavour to promote the internalization o f

environmental costs and the use o f economic instruments, taking into account

375. This is the longest document consisting o f 900 odd pages and 40 chapters. This is an action
plan for the 21 st century. ( M o n a ra m a Year B o o k , 1993, pp. 9 8 -104). A new Article for setup
o f Global Environmental Facility (GEE) was added to Agenda 21, as interim measure to
provide funds to developing countries for the new order o f development. India proposed for
a Planet Protection Fund (PPF). The idea was first mooted by late Rajiv Gandhi, in 1989, at
Belgrade non-aligned meet.
376. Draft Earth Chapter adopted at the U.N. Conference on Environment and Development, held
in Rio de Janerio, Brazil, from 3rd to 14th June, 1992.
 267
the approach that the polluter should, in principle, bear the cost o f pollution,

with due regard to the public interest and without distorting international

trade and investment. ’’

(Principle 16)

The N ational Environm ent T ribunal Act, 1995, has important constitutional

implications, with an international back ground. The Act, clearly drew its immense

inspiration from the proclamation adopted by the United Nations Conference on

Environment and Development held at Rio de Janeiro, Brazil, from 3rd to 14th June,

1992, in which India participated.

The Preamble to the Act contains a formal presentation o f the fact and includes

that ‘the decisions were taken at the United Nations Conference on Environment and

Development held at Rio de Janerio in June, 1992, in which India participated, calling

upon the states to develop national laws regarding liability and compensation fo r the

victims o f pollution and other environmental damages.’ The Preamble also records that

'it is considered expedient to implement the decisions o f the aforesaid Conference, so

ja r as, they relate to the protection o f environment and payment o f compensation fo r

damage to persons, property and the environment while handling hazardous substances

The rationale for passing o f this Act has been quite eloquently stated in the

‘Statem ent of Objects and Reasons’377 accompanying the Bill as :

“the principle o f strict civil liability in accident cases arising from the

activities involving hazardous substances has been highlighted in a case by

the Supreme Court o f India, An enterprise engaged in activities with potential

threat to the health and safety o f the persons residing in the surrounding

areas o f the factory owes an absolute duty to the community to ensure that

no harm is caused to any one on account o f hazardous and inherently

dangerous nature o f such activities. Cases seeking compensation fo r damages

to human health, properly and the environment, particularly contamination

377. S, K. Mohanty, Environment and Pollution Law Manual, ( 1998), p. 1.

 268
o f sub-surface water, are increasing. There is also an increasing trend in the

number o f industrial disasters.

The United Nations Conference on Environment and Development held at

Rio de Janeiro in June, 1992 in which India participated, has also called

upon the states to develop national laws regarding liability and compensation

fo r the victims o f pollution and other environmental damage.

It is deemed expedient to develop and codify the principle o f strict civil

liability in respect o f all such cases where damage is caused while landing

hazardous substances. It is proposed to establish a National Environment

Tribunal fo r effective and expeditions disposal o f cases arising from certain

industrial accidents and disasters with a view to providing effective and

expeditious relief and compensation fo r damages to human health, property

and the environment. ”

The National Environment Tribunal Act, 1995, (NETA) builds on the foundation

laid in the Public Liability Insurance Act (PLIA) o f 1991, and substantially alters the

law o f torts relating to toxic substances in India. NETA extends the principle o f ‘no

fault’ liability which first received statutory recognition under the PLIA, beyond the

statutory compensation limits prescribed under the 1991 Act. NETA applies in cases

where death or injury to any person or damage to any property is caused by an accident

during the handling o f any hazardous substance. Both Acts adopt the same definition

for the expression ‘accident’ and ‘handling’.

NETA empowers the Centre to establish a National Tribunal at New Delhi with

power to entertain applications for compensation, hold an inqu'uy into each such claim

and make an award determining the compensation to be paid. The tribunal is empowered

to make interim awards after granting an opportunity to the affected parly and may

determine its own procedure for processing the compensation claims, consistent with

the principles of natural justice.

Section 19 o f NETA imposes a bar on ail civil courts from entertaining ‘any
 269
application or action’ for any claim or compensation which may be entertained or dealt

with by the tribunal. An award under the Act may be challenged before the Supreme

Court or impugned in a petition to the High Court under Articles 226 and 227.m

The National Environment Appellate Authority Act of 1997 (NEAA)379 :

This Act requires the Union Government to establish a body known as the National

Environment Appellate Authority to hear appeals against orders granting environmental

clearance in designated areas where industrial activity is prescribed or restricted by

regulations framed under the Environment (Protection) Act, 1986. The Appellate

Authority is chaired by a retired judge o f the Supreme Court or a Chief Justice o f a High

Court and has its office at Delhi.

Restrictions on industrial activity may be imposed by the Centre under section

3(1) and 3(2)(v) o f the Environment (Protection) Act, and as we have seen this power

has been exercised by the Union Government to regulate industrial activity along the

coast, as well as, in ecologically sensitive regions like the Doon Valley, Dahanu and

Murud-Janjira in Maharashtra and parts of the Aravali Range. Likewise, the Environment

Impact Assessment Regulations o f January, 1994, were introduced in exercise o f the

Centre’s power under these provisions.

Section 11 o f the NEAA requires an appeal to be filed within 30 days o f the

impugned order granting conditional or unconditional environmental clearance or where

the delay is explained, within 90 days. The appellate jurisdiction is restricted to cases

where environmental clearance is granted and does not extend to cases where clearance

is refused. The categories o f ‘aggrieved persons’ who are conferred a right of appeal

are numerated in Section 11(2). They a person likely to be affected by the environmental

clearance and an association of persons ‘likely to be affected by such order and functioning

in the field o f environment'. The appellate authority is required to dispose o f the appeal

378. L. Chandra Kumar Vs Union oflndia, A.I.R. 1997 S.C. 1125, 1154.
379. Act No. 22 o f 1997 came in to force vv.e.f. 26(h March, 1997. For the text sec Shyam Divan
and Armin Rosencranz, Environmental Law and Policy in India • Cases, Materials and Statutes,
(2001), pp. 85-86 .
 270
within 90 days o f its filing. Section 15 o f the NEAA bars a civil court or other authority

from entertaining any appeal in matters falling within the jurisdiction o f the Appellate

Authority.

In Rural Litigation and Entitlem ent K endra Vs State o f Uttar Pradesh,380 the

Supreme Court considered whether to order the closure o f limestone mining operations

that were affecting the water quality and degrading forest land in the Doon Valley. The

defendant mining companies argued that because the issue o f location o f industries was

one o f the powers given to the Central Government under the Environment (Protection)

Act, 1986, the Courts no longer have jurisdiction to consider the issue. The Court

summarily rejected this argument, noting that the Act does not purport to oust jurisdiction

and that indeed the Act perhaps could not constitutionally oust the Supreme Court’s

jurisdiction.

In A.P. Pollution Control Board Vs Prof. M.V. Nayudu,381 the Supreme Court held

that in addition to its statutory jurisdiction, the Appellate Authority also had an advisory

role to play in complicated environmental matters that were referred to it by the1Supreme

Court or the High Court.

Environment Impact Assessment Notification, 1994 :

Being cognate to the EPA and the NEEA, this E1A Notification is discussed here.

Pandit Jawaharlal Nehru wrote in 1957 :

“We have many large-scale river-valley projects which are carefully worked

out by our engineers. I wonder, however, how much thought is given before

the project is launched, to having an ecological survey o f the area and to find

out what the effect to the drainage system or to the flora and fauna o f that

area. It would be desirable to have such an ecological survey o f these areas

before the project is launched and thus avoid an imbalance o f nature.,>3n2

380. A.I.R. 1988 S.C. 2187 (The first case in the country involving issues relating to environment
and ecological balance).
381. A.I.R. 1999 S.C. 812.
382. P.D. Sharma, Ecology and Environment, (1997), pp.523-524.
 271
The Environm ent Im pact Assessment (EIA) is an effort to anticipate, measure

and weigh the socio-economic and bio-physical changes that may result form a proposed

project. It assists decision makers in considering the proposed project’s environmental

costs and benefits. Where the benefits sufficiently exceed the costs, the project can be

viewed as environmentally justified.3*3

In view o f the intricate web o f relationships between the different parts o f an

ecosystems, a comprehensive EIA inevitably requires a multi-disciplinary approach.38,1

An environmental impact statement (E1S) for a dam, for example, might include inputs

fonn geologists, forestry experts, wildlife experts, anthropologists, economists, agricultural

scientists and social scientists.385

Prior to January, 1994, EIA in India was carried out under administrative guidelines

which required the project proponents o f major irrigation projects, river valley projects,

power stations, ports and harbours etc., to secure a clearance from the Union Ministry7

of Environm ent and Forests (MEF). The procedure required the project authority to

submit environmental information to the MEF by filling out questionnaires or checklists.

The environmental appraisal was carried out by the ministry’s environmental appraisal

committees. These committees held discussions with the project authority and on the

basis of the deliberations, either approved or rejected the site. When approved, the project

clearance was generally made conditional on specified safeguards.

On 27, January, 1994, the MEF notified mandatory El AS under Rules o f the

Environment (Protection) Rules o f 1986 for 29 designated projects. The notification made

it obligatory to prepare and submit an EIA, an Environm ent M anagement Plan (EMP),

and a Project Report to an Impact Assessment Agency for clearance. The MEF was

designated as the Impact Assessment Agency and was required to consult a multi­

disciplinary committee of experts. Under the January, 1994, notification, any member

383. Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India : Cases,
Materials and Statutes, (2 0 0 1), p. 417.
384. Ibid at p.418.
385. Ibid.
 272
of the public was to have access to a summary of the project Report and the detailed

EMPs. Public hearings were mandatory. This represented India’s last attempt at a

comprehensive EIA scheme.-’*6

On 4, May, 1994, the MEF issued an amending notification substantially diluting

the January, 27, notification. The amendment was introduced furtively, without pre

publication o f the draft. With these changes, the project proponent was no longer required

to submit a ‘detailed’ project Report (presumably, a summary report would do) and the

previous requirement o f preparing both an EIA and an EMP, was diluted to now require

either o f these documents to be submitted. The pre-requisite of securing environmental

clearance from the Central Government before taking any measures at the site was

weakened by the introduction of the expression ‘construction’, thereby restricting the

prohibition to building activity. As amended, the clause permits the project proponent

to initiate land acquisition proceedings and fell trees even before the clearance is given.

Perhaps more invidious than the formal amendment to the parent notification, was an

adm inistrative guideline styled as an ‘E xplanatory N ote’ w hich was issued

simultaneously by the MEF. The Explanatory Note restricted public access to an

‘Executive Summary’ o f the environmental impact documents and further narrowed

access to ‘bonafide residents located at or around the project site or site o f displacement

or alleged adverse environmental impact’. Moreover, the Note diluted the comprehensive

EIA report requirement (covering one year) to a single season report, termed as a rapid

EIA report.

On 10th April, 1997, some o f the repressive changes introduced in May, 1994,

were undone by fresh amendments to the parent notification. The 1997 provisions restore

public hearings, to be conducted in the manner prescribed. On the same day, the MEF

published a separate notification prescribing the EIA procedure for clearance o f certain

type of thermal power plants requiring environmental clearance form the concerned slate

386. The objective o f Environment Impact Assessment (EIA) is to ensure that development is
sustained with minimal environmental degradation. Principle 17 o f the Rio Declaration (1992)
proclaims: 'Environmental Impact Assessment, as a national instrument, shall be undertaken
fo r proposed activities that are likely to have a significant adverse impact on the environment
 273
government. The procedure to be followed under this notification mirrors the amended

procedure prescribed for central clearances.

In 1997, Parliament enacted the National Environm ent Appellate A uthority Act,

which constitutes an authority headed by a retired Judge of the Supreme court or Chief

Justice o f a High court and comprising experts with technical knowledge on ecological

matters. This Authority is empowered to hear appeals filed by persons aggrieved by order

granting environmental clearance in an area where industrial activity is restricted under

Section 3(1) and 3(2)(v) o f the Environment (protection) Act, 1986. This includes project

clearance granted by the Impact Assessment Agency. However, the Authority appears

to have no jurisdiction to directly hear appeals by project authorities who are denied

environmental clearance.387

Laws Relating to Human Rights Commissions (S u o-M o fu Cases of Pollution) :

The Protection o f Human Rights Act, 1993, provides for the constitution o f a

National H um an Rights Commission, State H um an Rights Commissions in States

and H um an Rights C ourts for better protection o f human rights and for matters

connected therewith or incidental thereto.388

The rationale for passing o f this Act has been quite eloquently stated in the

‘Statem ent o f Objects and Reasons’389 accompanying in the Bill as :

“India is a party to the International Covenant on Civil and Political Rights

and the International Covenant on Economic, Social and Cultural Rights,

adopted by the General Assembly o f the United Nations on the 16th December,

1966. The human rights em bodied in the aforesaid Covenant stand

substantially protected by the Constitution.

However, there has been growing concern in the country and aborad about

issues relating to human rights. H aving regard to this, changing so cia l

and are subject to a decision o f a competent national authority

387. Supra n. 383. at p. 419.
388. See the Preamble o f the Act.
389. Universal’s The Protection o f Human Rights Act, 1993, Bare Act with short notes, (2003),
p.l.
 274
realities and the emerging trends in the nature o f crime and violence,

Government has been reviewing the existing laws, procedures and system o f

administration o f justice; with a view to bringing about greater accountability

and transparency in them, and devising efficient and effective methods o f

dealing with the situation.

Wide ranging discussions were held at various fora, such as, the C hief

Ministers Conference on Human Rights, seminars organized in various parts

’

o f the country and meetings with leaders o f various political parties. Taking

into account the views expressed in these discussions, the present Bill is

brought before Parliament, ”

International Background :

The U.N. General Assembly, in December, 1948, by adopting the Universal

Declaration of Human Rights, look concrete steps by way o f formulating the various

human rights. It was to be followed by an International Bill o f Rights which could be

binding on the covenanting parties. Universal Declaration o f Human Rights was not

legally binding Covenant and United Nations had no machinery for its enforcement.

The deficiency was sought to be removed by the U.N. General Assembly by adopting

in December, 1965, two Covenants for the observance of human rights - (i) the Covenant

of Civil and Political Rights ‘(ii) the Covenant on Economic, Social and Cultural

Rights. The first one formulated legally enforceable rights o f the individual and the

second one was addressed to the states to implement them by legislation. These Covenants

are legally binding on the ratifying stales.

India being a party to the said Covenants, the President o f India promulgated the

Protection of Human Rights Ordinance, 1993, under Article 123 o f the Constitution

o f India on 28th September, 1993, to provide for the constitution o f a National Human

Rights Commission, State Human Rights Commissions in states and Human Rights Courts

for better protection o f human right's and for matters connected therewith or incidental

thereto. To replace this Ordinance, the Protection o f Human Rights Bill, 1993, was
 275
introduced in the Lok Sabha.398

The Bill was passed by both the Houses o f Parliament, received the assent of the

President o f India on 8th January, 1994, and became the Protection of Human Rights

Act, 1993.391

The Assam Human Rights [Link] (AHRC) is constituted under Section 21

o f the Protection o f Human Rights Act, 1993. At present the Commission consists of a

Chairperson and two other Members. Justice S.N. Phukan, a retired Judge o f the Supreme

Court o f India, is the Chairperson and Dr. H.N. Kalita, retired Principal o f Government

Law Collage, Guwahati, and Sri Abdul Mazid, a retired Judge are the Members of the

Commission. The Commission functions from its Bhangagarh Office, Second Floor,

Statfed Building, Guwahati-781005.

Human rights are those minimal rights which every individual must have against

the state or other public authority by virtue of his being a member o f the hurngn family,

irrespective of any other consideration.392

The concept of human rights, embodying the minimum rights of an individual versus

his own state, is as old as political philosophy. It assumed a concrete and justiciable

shape when these individual rights came to be guaranteed against the state in written

constitutions adopted since the constitution o f the U.S.A. in 1787, to which the Bill of

Rights was formally added in 1781. The effect o f incorporation of individual rights in

the from of a Bill of Rights in a written constitution is to incorporate human rights

into the municipal law of a state, and to make them legally enforceable by an aggrieved

individual against his state to invalidate any state act, legislative or executive, which is

found by a court o f law to have violated nay o f the constitutionally guaranteed human

rights belonging to the aggrieved individual.393

When human rights are guaranteed by a written Constitution, they are called

390. Ibid.
391. Act No. 10 of 1994.
392. Durga Das Basu, Human Rights in Constitutional Law, (1994), p. 5.
393. Ibid at p. 1.
 276
‘Fundamental Rights’ because a written Constitution is the ‘fundamental law’ o f a

state.394

The problem o f the human right to a safe and healthy environment lies in the fact

that this right is mentioned neither in the Universal Declaration of Human Rights nor

in the International Pacts on Economic, Social and Cultural Rights nor the European

Convention on Human Rights.395 To a small extent this right was reflected only in the

documents o f the 1972 Stockholm Conference of the United Nations on the Human

Environment and the U.N. Conference on Environment and Development held in Rio

in 1992.

The Stockholm Declaration, in its Principle 1, proclaims :

“Man has the fundam ental right to freedom, equality and adequate conditions

o f life, in an environment o f a quality that perm its o f a life o f dignity and

well b e in g ; and he bears a solemn responsibility to protect and improve the

environment fo r present and future g en era tio n s ...... ”

The Rio Declaration, in its Principle 1, states :

“Human being are at the centre o f concerns fo r sustainable development.

They are entitled to a healthy and productive life in harmony with nature. "

In his 1974 Hague Academy Lecture, Nobel Prize winner Rene Cassin advocated

that existing concepts o f human rights protection should be extended, in order to, include

the right to a healthful and decent environment, i.e., freedom from pollution and the

corresponding rights to pure air and water.396

The ‘Principles of Environmental Justice’ adopted at the First National People

of Color Environmental Leadership Summit397 proclaims in Principle 10 :

394. Ibid.
395. Y. Shcmshuchcnko, ‘Human Rights in the Field o f Environmental Protection in the Draft o f
the New Constitution o f the Ukraine'' in Sven Deimann and Bernard Dyssli (Editors),
Environmental Rights: Law, Litigation and Access to Justice, (1995), p. 34.
396. W. Paul Gormley, Human Rights and Environment: The Needfo r International Co-operation,
(1976), p. 1.
397. Held at Washington D.C. (27th October, 1991).
 277
“Environmental Justice considers governmental acts o f environmental

injustice a violation o f international law, the Universal Declaration on Human

Rights and the United Nations Convention on Genocide. "

In India, a major break through has emerged in the field of environmental protection

as a result of the Supreme Court’s landmark decision in Maneka Gandhi’s Case.398 The

Supreme Court has held that ‘the right to live is not merely confined to physical existence;

but it includes within its ambit the right to live with human dignity'.

Keeping in view the Maneka’s philosophy relating to life and personal liberty, the

Supreme Court, in a number o f subsequent cases, involving issues relating to environment

and ecological balance,399has widened the scope o f Article 21 by stipulating that a clean

environment is essential to human survival.

The decisions o f the Supreme Court had their influence on the High Courts. In

comprehending the right to environment, the High Courts were more specific and direct.

Several High Courts have explicitly recognized an environmental dimension to Article

21 400

The Assam Human Rights Commission appears to have been greatly inspired by

these developments. The Commission, in its annual report (1996-97), has submitted that

it has registered eight suo motu cases of pollution of which three cases disposed of and

remaining five cases still pending. Besides, one case o f hill cutting and threat to life in

Guwahati was also disposed of.401

The Commission has ordered suo motu inquiries under Sections 21 and 12 o f the

Protection of Human Rights Act, 1993, against a number o f industries for causing damage

398. Maneka Gandhi Vs Union of'lndia, A.I.R. 1978 S.C. 597.

399. Chhetriya Pradushan Mukti Sangarsh Samiti Vs State of Uttar Pradesh, A.I.R. 1990 S.C.
2060 ; Subhash Kumar Vs State of Bihar, A.I.R. 1991 S.C. 420; Virender Gaur Vs State of
Haryana, 1995 (2) S.C.C. 577.
400. T. Damodar Rao Vs The Special Officer, Municipal Corporation, Hyderabad, A.I.R. 1987
A.P. 171, 181 ; L.K. Koolwal Vs State of Rajasthan, A.I.R. 1988 RAJ 24; Kinkri Devi Vs
State of Himachal Pradesh, A.I.R. 1988 H.P. 4, 9.
401. Information as regards Suo-Motu Pollution Cases obtained through personal contact and study
in the Assam Human Rights Commission’s office at Bhangagarh, Guwahati-781005 (in the
 278

to the environment and, thereby, violating citizen’s rig h t to life under Article 2! o f the

Constitution o f India.

AI1RC C ase No. 251/97

(A news ab o u t pollution)

D istrict : D ib ru g arh

‘Asomya Pratidin’ an Assamese daily, dated, January, 11, 1997, published a news

items stating that :

“ the water m ixed with chemicals, released by Oil India Limited, particularly

from the Oil Collecting Station (OCS) No. 1, has polluted the paddy fields

o f Sesapukhuri, Khakarmara, Moutgaon, and other villages. The chemical

m ixed water, has been released by Oil India Lim ited in a planned manner

at night from the storage pit. Animals have died after drinking such polluted

water."

Reacting to the above nows item, Assam H um an R ights Com m ission ordered a

suo motu inquiry under Section 12 o f the Protection o f Human Rights Act, 1993, for

violation o f the ‘rig h t to life’ guaranteed under Article 21 o f the Constitution.402

Reports from Oil India Limited (OIL) authorities at Duliajan and Superintendent

o f Police, Dibrugarh, were called for under section 17(1) o f the Protection o f Human

Rights Act, within 28-02-1997, for consideration o f the Commission.

The Member-Secretary, Pollution C o n tro l B oard, A ssam , Guwahati, was also

requested to attend Commission’s office at Bhangagarh before 28-02-1997.

Sri P.K. Borbora, Deputy General Manager (Safely and Environment), Oil India

Limited, Duliajan, in his submission, refused to accept the allegations, appearing in a

section o f the press, stating that Oil India Limited is very much concerned about pollution

month of April, 1998). The Commission allowed me to study the environmental cases for
research purpose.
402. In Chhetriya Pradushan Mukti Sangarsh Samity Vs State of Uttar Pradesh, A.I.R. 1990 S.C.
2060, Chief Justice Sabyasachi Mukerji observed : 'Every citizen has afundamental right to
the enjoyment ofquality o f life and living as contemplated in A rticle 21 o f the Constitution o f
India. ’
 279
and has been taking effective measures to keep the environment o f its operational area

pollution free. Its track record o f about four decades now in existence does not speak

of any case of serious pollution. Oil India Limited takes the assistance o f the agricultural

experts deputed by the Vice Chancellor o f the Assam Agricultural University, Jorhat, to

examine the effect of the operation on the surrounding areas, which is pre dominantly

o f paddy cultivation. The area adjacent to Moran OCS-1 from where the allegation has

been brought was also inspected by the experts in November, 1996, before harvesting

o f the paddy. He has not given any adverse comment on pollution in that area. Sri Borbora

argued that under the provisions of the Environment (protection) Act, 1986, water from

an industry can be discharged if it conforms to the limit prescribed by the Pollution

Control Board and permission for the discharge was obtained from the Board. He admitted

that a pipe with a valve was fitted in the pit for the purpose o f draining water and that

too was with the permission of Pollution Control Board, Assam, in case of any emergency

only. Oil India Limited did not have any intention to pollute the environment o f the

surrounding area.

The agricultural experts, in its report, dated, 18th March, 1997, suggested that Oil

India Limited, Duiiajan, may refer the matter to the civil authority to take up the issue

for settlement o f alleged pollution at Moran OCS-1 site.403

However, the inspection conducted by Sri K.K. Dutta, Regional Executive Engineer,

Assam Pollution Control Board, Sivasagar, and the report submitted thereof, revealed

that how Oil India Limited, Duiiajan, has deliberately let out the untreated effluent

from its Oil Collecting Station (OCS)-l site at Moran into the ground by surreptitious

means creating pollution problem in the paddy fields.

It was found that near the waste pit, a culvert was constructed. In one side, a 200

litres drum was kept and below that waste water was allowed to pass to the drain which

ultimately ended at the paddy field. This waste water spreaded in the paddy field creating

pollution problem.

403. Supra n. 401.

 280
Secondly, under ground pipelines were detected at the waste pit through which

effluents were discharged in the paddy field. Pipelines were laid in such a fashion that

it cannot be seen.

S ri P.K. B o rb o ra, Deputy General M anager (Safety and Environment), Oil India

Limited, Duliajan was shown the affected land and nefarious activities o f Oil India

Limited, Moran. Sri Borbora assured that necessary actions would be taken as per the

directives o f Assam Pollution Control Board."1'11lowever, it may be mentioned here that,

as reported by Sri K.K. D utta, the Pollution Control Board, Assam, has already issued

a notice under sections 32 (1) (c) and 33 A 405 o f the Water (Prevention and Control o f

Pollution) Act, 1974, as amended, to take following measures to prevent further pollution

problem in the year 1996.

1. The discharge through the newly constructed culvert shall be stopped

within 5 PM on 22-12-1996 ;

2. The underground discharge pipelines o f effluent laid at the waste pit along

with its accessories shall be removed within 24-12-1996 ;

3. Hence forth, there shall not be any discharge o f effluent to outside o f

OCS -1 ;

4. Effluent Treatment Plant (ETP) shall be setup within six months in the

OCS-1, Moran, to treat the effluents and to stop this recurring pollution

problems ; and

5. Affected people shall be compensated within 30 days time.

Action taken in this regard, as communicated by the Deputy General M anager (S

& E), OIL, Duliajan, are as follows : 406

1. The discharge through the newly constructed culvert has already been

404. Ibid.
405. The 1988 amendment of the Water Act introduced a new Section 33A which empowers the
State Boards to issue directions to any person, officer or authority including orders to close,
prohibit or regulate any industry, operation or process and to stop or regulate the supply of
water, electricity or any other service.
406. Supra n. 403.
 281
stopped.

2. The outlet o f the underground discharge pipe has been completely sealed

by welding iron plates. Since the pipe and its fittings are presently

submerged in water, it is difficult to remove the same in this condition.

Oil India Limited, Duliajan, is arranging to pump the accumulated water

from the pit of OCS-1 (Moran) to another isolated pit. After thus reducing

the water level o f the pit, the discharge pipe arrangement shall be

completely revised.

3. A present the entire quantity o f formation water produced at OCS-1 is

being disposed in disposal wells without surfieial discharge. The pit of

OCS-1 is being used for discharge purpose only in case o f extreme

emergency like pump breakdown / power failure etc. However, necessary

civil work will be carried out for the said pit so that in no case discharge

o f effluent to the outside o f OCS-1 pit can take place. As an immediate

short term measure, the OIL, Duliajan, has identified suitable old pits in

selected areas, which can contain the effluents safely. The effluents from

the pit of OCS-1 will be pumped in these pits. The necessary arrangements

like commissioning of pumps, laying of pumping lines etc., are being done

on priority basis.

4. Setting up effluent treatment plants (ETP) is being taken up as a long-term

measure to avoid pollution problem in Moran Oil Field.

5. Like previous years, the experts from Assam Agricultural University,

Jorhat, had surveyed the area alleged to be affected in Moran Oil Field

during November, 1996. Due compensation, if any, as per the expert’s

report will be paid accordingly after getting the said report.

After careful examination of the above Communications, Assam H um an Rights

Commission passed orders on 18-02-1998 as follows :

"OIL be asked to keep as informed by the survey made and compensation

 282
paid before 18-04-1998.”

The Commission further asked the OIL, Duiiajan, to inform the Commission as

to what action has been taken on the matter before 18-04-1998 positively for necessaty

action by the Commission.

A IIR C C ase No. 343/97

(A news ab o u t issue o f non-pollution

certificate w ith o u t testing sm oke m eter)

D istrict : K am ru p

Reacting to a news item published in the ‘D ainik A som ’ an Assamese daily, dated,

M arch, 5, 1997, which stated that M otor Vehicle Inspectors issued N on-Pollution

Certificates without testing the vehicles with the smoke meters, the Assam Human Rights

Commission, ordered a suo motu inquiry under sections 21 and 12 o f the Protection o f

Human Rights Act, 1993, for violation o f the ‘rig h t to life’407 guaranteed under Article

21 o f the Constitution o f India.

Reports from the Commissioner, Transport Department, District Transport Officer,

Kamrup, and the Member Secretary, Pollution Control Board, Assam, were called for,

under Section 17 (1) o f the Protection o f Human Rights Act, before 31-03-1997 positively

for consideration o f the Commission.

The Member Secretaiy, Assam Pollution Control Board, clarified that Pollution

Control Board, Assam, does not have any comments to offer as regards allegation o f

issuance o f ‘P oIIution-U nder-C ontrol’ (PUC) certificates by the Transport Department

against payment, as reported, in a section o f the press.

Pollution Control Board, Assam, has not conducted any recent survey to asses the

[Link] vehicular pollution in the State. Status reports o f past activities in this regard

and results, thereof, was made available to the Government and the Assam Human Rights

Commission.

The Board has communicated with the AHRC in connection with the inquiry

407. In Subhash Kumar Vs State of Bihar, A.I.R. 1991 S.C. 420, Justice K.N. Singh observed in a
 283

towards implementation of provisions laid down under Rules framed as per the Motor

Vehicles Act, 1988, for evolution of a systematic procedure in issuing PUC certificates

consequent to tests carried out on pollution vehicles by the Government and its authorized

agents.

The Commissioner o f Transport, Assam, submitted its report slating that the

allegation o f issuance o f ‘Pollution-Under-Control’ Certificates without testing o f the

vehicles by ‘smoke meters’ or ‘gas analyzers’ was enquired in to by the District

Transport Officer, Karnrup (East and West Zones). As per reports submitted by them all

such certificates were issued by Motor Vehicle Inspectors after testing the vehicles by

Smoke Meters and Gas Analyzers. Hence the allegation was not correct.

After careful examination o f the reports from the Commissioner o f Transport, the

Assam Human Rights Commission has requested the Editor, ‘Dainik Asom’, Chandmari,

Guwahati-3, to let the Commission know the source o f information o f the news item.

AHRC Case No. 334/97

(A news about negligence of paper mill management)

District : Goaipara

Reacting to a news item under the caption '*unconscientious and negligent attitude

o f the paper mill management - ax a result o f which a lot o f people were victimized due

to gas related incidents", published in the “Asomiya Pratidin’ , dated, 23-02-1997, the

Assam Human Rights Commission took up the matter for inquiry under Section 12 of

the Protection of Human Rights Act, 1993, as there appeared to be violation o f the ‘right

to life’408 guaranteed under Article 21 o f the Constitution o f India.

The Commission called for, detailed reports on the matter form the Superintendent

o f Police, Goaipara, and the Member Secretaiy, Pollution Control Board, Assam, under

more vivid manner: 'Right to life includes the right to enjoyment ofpollution free water and
airform full enjoyment o f life. ’
408. Section 2 (d) of the Protection of Human Rights Act, 1993, has defined the term ‘human
rights' meaning to include 'the rights relating to life; liberty, equality and dignity o f the
individual guaranteed by the Constitution or embodied in the International Covenants and
enforceable by courts in India’.
 284

Section 17(1) of the aforesaid Act, for consideration.

Facts remain that twenty eight numbers o f chlorine gas cylinders declared as scrap

materials were sold to one Sri Dilip Adhikari o f Roumari, Abhayapuri town in the district

o f Bongaigaon on auction after floating necessary tender.

These cylinders were lying unused since last 14/15 years. Even though the cylinders

were emptied and cleaned as per advice o f the experts and by taking all necessary

precautions, a little amount of chlorine gas was entrapped.

Sri Adhikari lifted 28 numbers o f the empty cylinders at his our responsibility. He

managed to cut five cylinders without any leakage of cylinder’s chlorine gas and while

trying to break open the valve o f the 6th cylinder some entrapped chlorine gas came out

causing the accident as reported.

M/S Sanghi Textiles Limited (a paper division) clarified their position, asserting

that a little amount o f chlorine gas might have been entrapped which could not be

degasified due to scale formation as the cylinders were very old . The management of

M/S Sanghi Textiles Limited offered Sri Adhikari to cut the cylinders into pieces by

themselves and deliver the same. But, Sri Adhikari being apprehensive of loosing some

cut pieces, insisted on taking delivery o f the cylinders as they were and categorically

told that he would get the cylinders cut into pieces at his end. When Sri Adhikari himself

insisted on lifting the cylinders with the intention o f cutting the same into pieces at his

end taking all necessary precautions, the management wanted him to give them an

undertaking to that effect. Accordingly, Sri Adhikari has given a written undertaking to

that effect on 30-01-1997,409

Sri Adhikari lifted 28 numbers o f the empty cylinders at his own responsibility.

But unfortunately, on 14-02-1997, Sri Adhikari without taking necessary precaution started

cutting the cylinders in a populated areas causing the accident, as reported.

The representative o f the management o f M/S Sanghi Textiles Ltd. (STL) along
409. Information as regards sito rnotu pollution cases obtained through personal contact and study
in the Assam Human Rights Commission’s office at Bhangagarh, Guwahati- 5 (during the
month o f April, 1998). The Commission allowed me to study the environmental cases for
research purpose.
 285
with experts from Bongaigaon Refinery and Petro-Chemicals Ltd. (BRPL), Dhaiigaon,

checked the rest o f the cylinders in presence o f the Deputy Commissioner, Superintendent

o f Police, Sub-Divisional Officers (Civil), North Salmara and Abhayapuri and apparently

presence o f chlorine gas was not traced in the rest o f the cylinders.

The Management also sent a letter on 15-02-1997, to Shri Adhikari, requesting

him to return the rest o f the cylinders so that they can cut them into pieces in their

premises.

The Case is pending before the Commission for final disposal.

Similarly, the Assam Human Rights Commission, under Sections 21 and 12 o f the

Protection o f Human Rights Acts, has ordered suo motu inquiries under Section 21 and

12 of the Protection o f Human Rights Act, 1993, against a number o f other industries

for causing damage to the environment and, thereby, violating citizen’s ‘right to life’

under Article 21 o f the Constitution o f India.

Laws Relating to Environmental Crime and Procedure :

There exists general penal law in the country which can be invoked in order to

punish environmental violations. The penal law applicable to environmental violations

fall under the following three heads.410

The Indian Penal Code, 1860 (45 o f 1860) ;

The Code of Criminal Procedure, 1973 ( 2 o f 1974) ;

The Police Act, 1861 (5 o f 1861)

Indian Penal Code, 1860 :

Apart from the pollution control Acts o f the Parliamentary and the Rules made

thereunder, Indian Penal Code, 1860, (hereinafter referred to as the Code) being one o f

the earliest legislations o f the country contains few provisions relating to offences affecting

the public health, safety, convenience, decency and morals in its Chapter XIV

The Indian Penal Code, 1860, was enacted because it was expedient to provide

410. Mahesh Mathur, Legal Control o f Environmental Pollution : Jurisprudence and Laws
Applicable to Environmental Violation and Prevention, (1998), p. 205.
 286
a general penal law lor India. The First Law Commission of India headed by Lord

Macaulay, included Chapter XIV consisting o f 28 sections (Sections 268 to 294-A) dealing

with ‘Public Nuisance’ in the Code, as long as, 1860. The sole object o f including

Chapter XIV in the Code was the safeguard the public health, safety and convenience

by causing those acts which make environment polluted and threaten the life o f people,

punishable.411 In other words, all those acts which endanger public health, whether

directly or indirectly, have been brought under the purview o f the Code.

The polluter o f the environment can be punished under the Code for certain types

o f pollutions. These types of pollution may be broadly classified under the following

heads :
C h art III412 (Part- I)
Environmental Crimes
SI. No. Sections Provisions Punishments

1 268 Public Nuisance Provided as under

Shall be punished w ith
2 269 N egligent act likely to im prisonm ent o f eith er
spread infection o f description for a term which
disease dangerous to may extend to six months, or
health fine, or with both
Shall be punished w ith
im prisonm ent o f eith er
3 277 Fouling water o f public description for a term which
sprint or reservoir may extend to three months,
or w ith fine w hich may
extend to five hundred rupees
or with both.

Shall be punished with fine

4 278 M aking atm osphere which may extend to five
noxious to health hundred rupees.

Shall be punished w ith

Adulteration o f food or im prisonm ent o f eith er
5 272
description for a term which
drink intended for sale
may extend to six months, or
with fine which may extend
to one thousand rupees or
with both

411. Ibid at p. 206.

412. Th is Chart has been prepared on the basis o f study o f variou s p ro visio n s o f C hapter X I V o f

0
 287
(Part- II)

6 284 N egligent conduct with Same as above

respect to poisonous
substance
Negligent conduct with
7 286 Same as above
respect to explosive
substance
N egligent conduct with Same as above
8 288
respect to pulling down or
repairing building .

9 290 Punishm ent for public Shall be punished with fine

nuisance in cases not which may extend to two
otherwise provided for hundred rupees

Water Pollution :

The water of a river, spring or reservoir belongs to the public, and therefore, if

a person pollutes it, he commits an offence o f public nuisance.413 It is clearly laid down

in the Code that whoever voluntarily corrupts or fouls the water of any public spring

or reservoir, so as to render it less fit for the purpose for which it is ordinarily used,

shall be punished with imprisonment of either description for a term which may extend

to five hundred rupees, or with both.414

A ir Pollution :

There is a specific provision in the Code dealing with the cases o f air pollution.

It is provided that whoever voluntarily vitiates the atmosphere in any place so as to

make it noxious to the health o f persons in general dwelling or carrying on business in

the neighborhood or passing along a public way, shall be punished with fine which may

extend to five hundred rupees.415

the Indian Penal Code, 1860. The study reveals that these provisions can, very successfully,
be applied to protect the environment (R.N. Saxena, The Indian Penal Code, (1992), pp.262-
269).
413 Mahesh Mathur, Legal Control o f Environmental Pollution : Jurisprudence and Laws
Applicable to Environmental Flotation and Prevention, (1998) p. 206.
414. Section 277 I.P.C.
415. Section 278 I.P.C.
 288
Thus, Section 278 deals with contamination of the atmosphere rendering it injurious

to public health. Normally, this Section applies to trades producing noxious and offensive

smell. For example, making candles with stinking materials ; running a tanneiy; making

spirit o f sulphur; burning of brick kiln, etc.'"6

The offence under Section 277 o f the code is cognizable bailable and non-

compoundable. It may be fried by any Magistrate."7 Whoever voluntarily corrupts or

fouls the water of any public spring or reservoir shall be punished with imprisonment

for a term which may extend to 3 months or with fine which may extend to 500 rupees,

or with both.

The offence under Section 278 is non cognizable and bailable, but is non-

compoundable."8 It may be tried by any Magistrate. Whoever voluntarily vitiates the

atmosphere shall be punished with fine which may extend to 500 rupees.

General Pollution : Environmental Pollution :

If a person does any act or omit to do any act which causes any common injury,

danger or annoyance to the public or to the people in general who dwell or occupy

property in the vicinity, or which must necessarily cause injury, obstruction, danger or

annoyance to persons who may have occasion to use any public right, then such act or

omission comes within the purview o f public nuisance. Such an offender is liable to

punishment under the Code."9

Spread of Infection fVirus Pollution) :

Section 269 1PC deals with negligent acts likely to spread infection of disease

dangerous to life. Diseases communicated through environment or atmosphere without

416. Mahesh Mathur, Legal Control o f Environmental Pollution : Jurisprudence and Laws
Applicable to Environmental Violation and Prevention, ( 1998) pp. 207-208.
417. Ibid at p. 207.
418. Ibid at p. 208.
419. Section 268 I.P.C.
 289
actual contact are infectious disease as opposed to contagious diseases communicable

by contact or touch. This Section deals with infectious diseases, such as, small pox,

plague, cholera, hepatitis etc.

A perusal o f Section 269 IPC would show that whoever unlawfully or negligently

spreads the infection o f any disease shall be punishable with imprisonment for a term

which amy extend to 6 months or with fine, or with both.

The offence under Section 269 IPC is cognizable, bailable but non compoundable.

It is tribal by any Magistrate.420

Malignant Act Likely to Spread Infection of Disease Dangerous to life :

If any person malignantly or maliciously spreads infection o f disease which is

dangerous to life, then such person shall be punished with imprisonment for a term which

may extend to 2 years or with fine or with both.421 Hence the inflection o f disease means

communication o f a disease through atmosphere.

The offence under this Section is cognizable, bailable and non-compoundable. It

is triable by any Magistrate.422

Adulteration of Food, Drink and Drugs :

The mixing o f noxious ingredients in food or drink, or otherwise rendering any

food or drink unwholesome is known as adulteration o f food or drink, so as to make

such article noxious as food or drink and intending to sell such article shall be punished

with imprisonment for a term which may extend to six months, or with fine which may

extend to one thousand rupees or with both.423

The offence under this Section is non-cognizable and bailable but non

420. Mahesh Mathur, Legal Control o f Environmental Pollution : Jurisprudence and Laws
Applicable to Environmental Fiolation and Prevention, (1998) p. 212.
421. Section 2701.P.C.
422. Supra n. 420 at p. 213.
423. Section 272 I.P.C.
 290
compoundable. It is triable by any Magistrate.424

‘Environmental Pollution’ is a public nuisance materially affecting the reasonable

comfort and convenience of life of a class o f people. The law o f nuisance covers water

and air pollution and provides some remedies against the hazards o f pollution. This is

mainly because law of nuisance affords a right to every person to have wholesome air

and water.

In India, a public nuisance action can be brought before a court either by a civil

or by a criminal action. Section 91 o f the Code o f Civil Procedure, 1908, ensures the

right o f action in the case of public nuisance. The procedure for removal o f public

nuisance is laid down in Sections 133 and 144 of the Code o f Criminal Procedure,

1973.

The Criminal Procedure Code 1973 :

The Code vests powers to stop a nuisance or other injury in two broadly worded

provisions, namely, Sections 133 and 144424‘A. The power is pervasive and can instantly

prevent any noxious activity or nuisance provided alertly sensitized imagination and

socially generous interpretation play upon the provisions, the authorities are fearlessly

vigilant to initiate public interest action against pollution invasion.

Sections 133 Cr. P.C.,425 in its clauses (a) and (b) o f Sub-Section (1), provides:

“ Whenever a District Magistrate or a Sub-Divisional Magistrate or any other

Executive Magistrate specially empowered in this b ehalf by the State

Government, on receiving a report o f a Police Officer or other information

and on taking such evidence, i f any, as he thinks fit, considers -

(a) that any unlawful obstruction or nuisance should be removed from any

424. Mahesh Mathur, Legal Control o f Environmental Pollution : Jurisprudence and Laws
Applicable to Environmental Flotation and Prevention, (1998), p. 215.
424-A. Ratanlal and Dhirajlal, The Code o f Criminal Procedure, (1992), pp. 137-140, 148-149.
425. This power, it was held, could be used by the Magistrate to order a Municipality to remove a
 291

public place or from any way, river or channel which is or may be lawfully

used by the public; or

(b) that the conduct o f any trade or occupation, or the keeping o f any goods

or merchandise, is injurious to the health or physical comfort o f 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; such Magistrate may make a conditional order

requiring the person causing such obstruction or nuisance, or carrying on

such trade or occupation, or keeping any such goods or merchandise, within

a time to be fixed in order-

(i) to remove such obstruction o f nuisance, or

(ii) to desist from carrying on, or to remove or regulate in such manner as

may be directed, such trade or occupation, or to remove such goods or

merchandise or to regulate the keeping thereof in such manner as may be

directed. ”

Clause (b) deals with occupations or trade which are in themselves injurious to

health and physical comfort.

Where the engine of a factory was causing noise so as to be a serious nuisance

to the people living in the neighborhood, the court forbade the working of the engine

from 9 P.M to 5 A.M.

Section 144 Cr. P.C. provides that where in the opinion of the District Magistrate

or a Sub-Divisional Magistrate, or a Sub-Divisional Magistrate, or any other Executive

Magistrate specially empowered by the State Government for this purpose, there is

sufficient ground for proceeding under this section, and immediate prevention or speedy

nuisance caused by the existence o f open drainage, pits and public excretion by human beings
for want o f lavatories. The erring Municipality could be punished under Section 188 o f the
Indian Penal Code, 1860 (Municipal Council, Rnllam Vs Vardhiehand, 1880 Cr. L.J. 1075
(S.C.) ; A.l.R. 1980 S.C. 1622],
 292
remedy is desirable, the Magistrate may, buy a written order, direct any person to abstain

from certain act with respect to specified property in his possession or under his

management, if such Magistrate considers that such direction is likely to prevent danger

to human life, health or safety or disturbance o f the public tranquility.

Section 144 Cr. P.C. Around City W ater Bodies :

Recently the district administration o f Kamrup, under Section 144 Cr. P.C., has

prohibited entry o f any person and depositing or dumping o f any foreign materials and

substances within a radious of 200 metres from the natural line of the Borsola, Sarusola

and Deepor Beel and other water bodies falling under the Guwahati Master Plan.

Moreover, cutting and carrying o f earth form Mathgharia hills, Kharguli hills,

Chunchali hills, Dakhingaon hills Santipurt hills, Kamakhya hills, Sarania, Narakasur,

Rani and Kahikuchi hills and all other hills within Kamrup District have been prohibited

under Section 144 Cr. P.C.

The district administration has also prohibited the use o f polythene bags in the

district with immediate effect.

Several social and non-governmental organizations involved in the field o f

environmental protection have raised their voices against polythene bags for protection

of environment and hygienic condition o f public life.

L aw s R elating to In ju n c tio n s and C lass A ction Suits : (L egal G ate W av to

Environm ental Justice) :

Order 1, Rule 8 of the Code o f Civil Procedure explicitly allows for ‘class action

suits’ where numerous members o f a class have the same interest in the suit. The

procedure for class action is relatively straight forward and is particularly well suted to

environmental claims.

The most obvious use o f class action is in mass disasters o f the sort that occurred

in Bhopal. In the wake o f the Bhopal tragedy, the Indian Government filed a class action
 293
suit on behalf of all the victims, in accordance with the terms of the Bhopal Gas Leak

Disaster (Processing o f Claims) Act, 1985.426

The above study reveals that most o f the Acts except those enacted since 1972,

are piecemeal and inadequate for want o f specific application. In most cases, the

environmental concern is incidental to the law’s principal objects. It was only in the

early 1970s that the Central Government started enacting comprehensive environmental

laws.

426. Shyam Divan and Arinin Rosencranz, Environmental Law and Policy in India : Cases,
Materials and Statutes, (2001), p. 155.