Environment and Development Law and Policy 1

ENVIRONMENTAL LAW

ENVIRONMENT AND DEVELOPMENT

LAW AND POLICY
SYLLABUS
Module - I (~

1. The Idea of Environment:

1.1. Ancient and medieval writings

1.2. Traditions
1.3. Natural and Biological sciences: perspectives
1.4. Modern concept: Conflicting dimension

2. Development:
2.1. Right to development
2.2 . Sustainable development - national and international Perspectives
2.3. Developing economies
2 Environmental Law

Module - II

3. Policy and Law:

3. 1. From Stockholm to Rio and after

3.2. Post - Independence India
3.3. Role of government ·
3.3.1. Five Year Plans
3.3.2. Forest Policy
3.3.3. Conservation strategy
3.3.4. Water policy

Module --: Ill

4. Population, Environment and Development:

4.1. Population explosion and environmental impact

4.2. Population and development
4 .3. Population and sustainable development

Module - IV

5. Constitutional Perspectives:

5 .1 . Fundamental Right
5. 1.1. Right to environment
5.1 .2. Enforcement of the right
5.1.3. Directive principles and fundamental duties
5.1.4. Legislative power

5.2. Environment: Emerging concepts and challenges

5.2 .1. Polluter pays principle: absolute liability of hazardous Industry

5.2.2 . Precautionary principle
5.2 .3. Public trust doctrine

Module - I

1. The Idea of Environment:

1.1. Ancient and medieval writings
1.2. Traditions
Natural and Biological sciences: perspectives
3
1..
 Environment and Development Law and Policy 3

1.4. Modem concept: Conflicting dimension

1.1. Ancient and medieval writings

In India environmental protection has been a 5000-year-old history and

tradition for us. The efforts tor environmental protection can be traced
from early Indian history to the modem age . Ancient literature on
environment conservation Vedas , Upanishads and Puranas Vedas are
universally accepted to be the most precious Indian heritage. The vedas
h1 ve knowledge of all types and the main vedic views revolve around the
concC' pt of nature and life . vedas contained several references on
environment conservation, ecological balance , and weather cycle . This
indicates the high level of awareness of the people at that time

In early days, many religious and customary norms governed

environmental conservation. The people gave utmost importance and
reverence to every aspect of nature. They seemed to have understood the
significance of environment for the sustenance of life on earth. It was the
dharma of each individual in the society to protect nature . The people
worshipped the objects of nature. The trees, water, land and animals
gained important position in the ancient time. Moreover, natural resources
management was given prime importance in ancient India . Conservation
of water bodies and protection of forests and wildlife were considered to
be important aspects of governance by the rulers and local people .
Punishments were prescribed for causing injury to plants. Sacred groves
were the inherent feature of the ecological heritage and tradition. They
were kept undisturbed since time immemorial.

In ancient India, protection and cleaning up of environment was the

essence of vedic culture in Hindu philosophy forests, trees and wildlife
protection held a place of special respect. Cutting green trees was
prohibited and punishment was prescribed for such acts. The vedas attach
great importance to environmental protection and purity. They persist on
safeguarding the habitation, proper afforestation and non-pollution. In
fact, man is forbidden from exploiting nature. He is taught to live in
harmony with nature and recognize that divinity prevails in all e lements,
including plants and animals. The rishis of the past have always had a
great respect for nature. a verse from rig-veda says, "thousa nds and
,. hundreds of years if you want to enjoy the fruits and happiness of life
then take up systematic planting of trees." the term pollution did not
exist at that time but they call it poisoning of environment. They believe
that the five great elements (space, air, fire, water and earth) that constitute
the environment rue all derived from prakriti, the primal energy and our
human body is composed of these a1!d related to these five elements, and
4 Environmental Law •
connects each f th ~1em nts to on of the five s nses . The human nose
is relate d to earth, tongue to w ter, e yes to fire, skin to air ao d ~ars to
space. These fiv important 1 ments of nature - air, wate r, land, hre a nd
space (Panchaboothas) - were divine incarnations to them . N~tural
resources management was given greater importance . Conservation of
water bodies and protection of forests and wildlife were considered to be
important aspects of governance by the rulers and local ~eople .
Punishments were prescribed for causing injury to plants. Tots Bo nd
between our senses and the elements is the foundation of our human
relationship with the natural world . The vedas emphasize that the plants
nd uees are the treasures for generations.

According to evidences in Vedas and Kautilya's Arthasasthia, different

dynasties accorded top priority to environmental protection and sustainable
use of its components. All of the tree parts were considered important
and sacred and Kautilya fixed punishments based on the destruction of
the specific part of the tree. Some of the important trees were even elevated
to the position of God .

Manu imposed a condition on mankind to protect forests. The rivers also ,,

enjoyed a high stature in the society. The Ashoka Edicts, especially the
5th Pillar Edict, states that how animals and birds were protected in
those days. The major drawback of this period was that India was not a
single political entity and consisted of many empires and small kingdoms.
In result, there was no uniform agenda for environmental protection
throughout the country and the priority for environmental conservation
varied from time to time, ruler to ruler. The rural and tribal communities
evolved unique rules to be followed by them.

In medieval period, though there have been instances of establishment of

nature parks, gardens, and fruit orchards by the Mughal rulers around
their palaces and along banks of rivers, they did not have a ny definite
policy to protect the forests or wildlife. Rather they were merely considered
to be a good source of revenue a nd pleasure. The notable feature of the
Mughal regime was the growth of interest in natural history. Both Babar's
account of Indian flora and fauna and Jahangir's investigations in natural
history a.1e well known whil.e Salim Ali, the celebrated ornithologist, drew
attention to their contributions as naturalists long ago . Adbul Qadir
Badauni lists among sins and offen e s, the three sins, of cutting down a
shady tree, making a profession of killing animals, nd selling away human
beings, as heinous. Akbar's efforts in promoting afforestation in common
property resowces, management of water bodies, and his disapproval of
killing animals a.10 legendary
 Environment and Development Law and Policy 5

In early days many religious and customary norms governed environmental

.... conservation. The people gave utmost importance and reverence to every
aspect of nature. They seemed to have understood the significance of
environment for the sustenance of life on earth. It was the dharma of
each individual in the society to protect nature. The people worshipped
the objects of nature. The trees, water, land and animals gained importance
in the ancient time.
1 .2. · Traditions

India has a rich tradition of intellectual inquiry and a textual heritage

that ~1oes back to several hundreds of years. India was magnificently
advanced in knowledge traditions and practices during the · ancient and
medieval times. The intellectual achievements of Indian thought are found
across several fields of study in ancient Indian texts ranging from the
Vedas and the Upanishads to a whole range of scriptural, philosophical.
scientific; technical and artistic sources. Historically, the protection of
nature and wildlife was an ardent article of faith, reflected in the daily
lives of people, enshrined in myths, folklore, religion, arts, and culture.

The Indus Valley civilization provides evidence of human interest in wildlife .

as seen in seals depicting images of rhino, elephant, bull, etc. Historically,
conservation of nature and natural resources was an innate aspect of the
Indian psyche and faith, reflected in religious practices, folklore, art and
culture permeating every aspect of the daily lives of people. Scriptures
and preaching's that exhort reverence for nature and relate to conservation
can be found in most of the religions that have flourished in the Indian
subcontinent. Hinduism, Buddhism, Jainism. Christianity, Islam; and others
place great emphasis on the values. beliefs, and attitudes that relate to
the cross-cultural universality of respect for nature and the elements that
constitute -the universe. The concept of sinning against nature existed in
various religious systems. Many of the rituals to which modern society
may seem meaningless and superstitious were traditional strategies t
preserve the intrinsic relationship betwe nm n and nature. The worship
of tre s. animals, forests, rivers, and the s un, and c nsidering the arth
itself as Mother Goddess, were part of th Indian traditi n .

One of the finest examples of traditional practices in India based n

religious faith which has made a profound cont1ibution to n ture
conservation has been the maintenan f r in p tch of land or
forests as "sacred groves' d dicated to a deity 01 a Village God , protected,
and worshipped. These are found all over India, and abundantly along
the Western Ghats. the west coast, and in several parts of Kerala.
Karnataka. Tamil Nadu and Maharashtra. Many plants and animals have
6 Environmental Law

from historcial times been considered sacred in India by various

communities. The most outstanding examples are the peepal tree (Ficu_s
religiosa). The banyan tree (Ficus 'bengelensiss, and Khejdi tree (Prosopis
cineraria), and these have been traditionally revered and therefore n~ver
cut. Many animals are considered sacred and worshipped by several Hi~du
and other communities and have thus received protection for centunes.
The peafowl, sacred t~ lord Karttikeya is never hunted, the blue rock
pigeon is considered sacred to Saint Hazrat Shahjalal and is protected m
the Bengal region. Even rodents are considered sacred and are allowed
to breed in the famous temple of goddess Karnimata in Rajasthan. The
tiger and the cobra, though greatly feared, are afforded protection on
religious grounds

The cultural heritage of India shows a deep concern for the protection
and preservation of the environment. Indian tradition considered the earth
as 'Mother' .. India is a land of rites and rituals. Indians have articulated
the need to sustain and promote the ecological balances of nature through
sacred incarnations and systematized 52 rituals for the sustenance of life
on the earth. Since most of all the major world religions are represented
in the Indian soil and their religions in turn realized the proximity of
mankind and nature, they regulated conduct of mankind in such a way
conducive to nature. Indian culture shows an ecological evolution to peace.
Peace to all elements of nature and mankind and harmony between them.
Indians applied the culture lessons at two levels. First at the level of
relationship between society and nature and second between people within
the society. The Indian society was eco culturally socialized. Renewability
and sustainability were the second lesson. It is based on the recognition
that sustenance comes from the forest not from the man made cities: from
the fields, not from factories. Thus 'environmentalism' is a part ·and parcel
of the Indian culture.

In many parts of India, communities have inherited the rich [Link] of

love and reverence for nature through ages. Religious preaching, traditions
and customs have play d a big role in this regard: Indian religions have
generally been the advocates of environmentalism. They campaigned fo1
such guidelines to the commoners that enswed an intimate contact and
sense of belonging in nature. It came in the form of ditectives to the
believers to perform certain rites and rituals, so that it became a way of
their life. Sometimes the messages of environmental protection and
conservation Bie in a veiled form . Today, when the world is undergoing
a serious crisis of ecological imbalance and environmental deg1adation,
it is all the more impartant for us to understand such traditions.
 Environment and Development Law and Policy 7

1.3. Natural and Biological sciences: perspectives

Natural Environment Perspective

The natural environment encompasses all living and non-living thing s

occurring naturally, meaning in this case not artificial. The term is most
often applied to the Earth or some I?art.s of Earth. This e nvi ronment
encompasses the interaction _of all living species, climate, weather, and
natural resources that affect human survival and economic activity. The
concept of the natural environment can be distinguished as compon e nt.s:

• Complete ecological units that function as natural systems without

massive civilized human intervention, including all vegetation ,
microorganisms, soil, rocks, atmosphere, and natural phenomen a
that occur within their boundaries and their nature.

• Universal natural resources and physical phenomena that lack clear-

cut boundaries, such as air, water, and climate, as well as energy,
radiation , electric charge, and magnetism, not originating from
civilized human activity.

In contrast- to the natural environment is the built environment. In su ch

areas where man has fundamentally transformed landscapes such as
urban settings and agricultural land conversion, the natural environment
is greatly modified into a simplified human environment. Even acts w hic h
seem less extreme, such as building a mud hut or a photovoltaic system
in the desert, modify the natural environment into an artificial one . Though
many animals build things to provide a better environment for themselves ,
they are not human, hence beaver dams and the works of Mound-b uilding
termites are thought of as natural.

Pe ople seldom find a b s olute ly natural e nvi ro n me nts o n Ea rth , an

naturalnes s usually va rie s in a continuum, from 100% natural in on
extreme to 0% n a t ural in th e oth e r More prec isely, w.e can c n ·d r lh
different a s pects or com pon nts of a n nvironment, and th t th ir
de gree of natura lness is not uniform . If, for in s t anc , in a n ri ultur
fie ld , t he min ralo [Link] c m pos i i n a n th tr u ur fi ts s il · r sirrul
to those of a n undisturbed for st oil, u th tru tu r is quite iff r nt.
Natura l e nvironm nt .is oft n used syn nym f r habit t.

Biological sciences Perspective

Biological Environme nt Botanical a nd wildlif species in urban landscapes

depend on the availa bility of suitable habita t for survival. Habitat loss
and increasing habitat fiagmentation are the primary causes of species
8
Environme nta l Law

decline in these environments.

The bi?logical constituent of nvtronment is also called biotic component '

of .environment · This compo n nt consists
· . of all hvmg
· · things
· · plants,
hke
a~imals a nd small micro-organisms lik bacteria . ThJs comJXment interacts
with th a biotic c mpon nt of th nvironmen t. Th is interac tion of two
ompon nts fo rms v ri ou ecosystems lik pond eco ys te m . mann e
syste m , dese rt ecosystem etc.

The self sufficient la rge ecosyste m of the ear th is called Biosphere. All
ecosystems consist of three different types of living organisms.
These three types are named as:

(a) Producers

{b) Consumers

(c ) Decomposers.

Producers are generally green pl~nts and other photosynthetic bacteria

which produces vartous organic substances such as carbohydrates, proteins
etc. with the help of water, soil and light energy. Consumers depend for
their nutrition on the organic food produced by the green plants
Decomposers bring about the decomposition of. dead plants and animals
and return various important minerals for the -running of the
biogeochemical cycles.

The three components of the environment give rise to four important

zones. These are Atmosphere, Hydrosphere, Lithosphere and Biosphere.
There is continuous interaction among these four zones. These interactions
involve the transport of va rious elements, compounds and energy forms .

1.4. Modern concept: Conflicting dimension

Indian civilisation, has been known as an 'eco-friendly' civilisation. At
least in the past it did express a profow1d a wweness of the need to evolve
a balanced pattern in the man-environment interaction and certainly not
work towards 'denaturing humanity.' In order to calibrate this man-
environment interaction, an ient Indians divinized nature and la yed down
well formulated guidelines to d fine and nurtwe this rela tionship free of
exploitative propensitie . Ex mples around since its ewly history; it would
be relevant to take a look at some of them.
The Rig-Veda establishes the symbolis~ of. this close kinship whe~ i~
'Heaven is my father my mother 1S this vast earth, my close kin.
says: '
 Environment and Development Law and Policy 9

Taking forward this environmental tradition the Atharva-Veda contains

the hymn - Bhumi Sukta - in praise of the earth and ti,vokes a balance:
upon the immutable, vast earth supported by the law, the universal mother
of the plants, peaceful and kind , m ay we ever walk forever.' The elaborate
Vedic ritual of '[Link] 'had , as its precise objective the generation of
a positive impact on man and the environment and continues to be
performed to this day with the same fervour a n d faith .
Surapala's Vrikshayurveda, for example, discusses in detail t rees , tree
planting and various other topics connected with plant-science including
,he treatment of sick-trees.

In one of its profound ecological perceptions the Mahabharata , in

the Bhisma Parva , refers to the earth as an 'ever-yielding cow ' provided
its resowces are developed and managed with balance and control: 'if
Earth is well looked after, it becomes the father, mother, children, firmament
and heaven, of all creatures.· The Mahabharata also compares the tree to
the universe; it says that he who 'worships the ashvattha [peepal , holy
fig tree) worships the universe .' The tree was seen as a symbolic
representation of the universe with a single trunk and its multiple branches
of manifestation. The Bodhi tree (ashvattha or peepal), under which the
Buddha achieved his realisation has been always seen as the symbol of
'the universal consciousness.· The wish-endowing symbol was that of the
tree -the kalpavriksha or kalpataru - the mystical tree that granted every
wish just as natwe showered its bounty on all. Tree worship, as findings
reveal , was in fact known even in the Harappan culture. Trees and plants
continue to play an important role in Indian rituals and customs to this
day, especially in rwal India.

This deep ecological consciousness pervaded the entire Indian civilisational

m indscape and saw expressions from across the land. The legendary
philosopher of Tamilakam, Thiruvalluvar, talks of naturn as man's fortress.
If he destroys her, he rema ins without protection.

Eve n in the affai rs of the sta te , the administration and the rul r w r
d irected t o p rese r_ve a nd p ro m ote nviron m e n t a l w e lf ar . In t h e
[Link] hasast ra , Kautilya sug g es ts th n e to d v lop a bh
abha ya v na, for st a n 11 mal s n tuan , wh r tr
w ould both dwell tr~e fr m t he fe of slaug}\ter. Ka u tilya a l
the post of a forest superintend nt and penalties for poaching nd causing
damage to forests, especia lly produ tive ones.

The sacred grove tradition w as a n intri ns ic part of the Indian ecological

imagination and tradition. There was the kovilkadu in Tamil Nadu, kavu
in Kerala, nandavana or daivavana in Karnataka and Andhra Pradesh,
10 Environmental Law

deorai in Maharashtra . Pres rved for centurie in the outer precincts of

the village thes sacr d grov s gradually gr w int rich ecological >
repositories and ar fa ing thr at of d imati n today because of
population pressur and n gl t

Th Arthasa tr · du tiv on w at r indicate that it w s re rded as a

11 tiv , not private commodity ' and w as co ns idered ex reme ly
r c1 us . Tanks were built through joint efforts of all sta keholde rs and the
ri d that saw the construction or renovation of ta nks received tax
r pri ves . Fines wer also prescribed for a number of acts tha t adverse li.,
a ffected water bodies, 'for obstructing or diverting a water course', for
'damaging embankments' etc .

The river in Indian civilisation was also endowed with divinity and w as
a cosmos by itself with ecological, social and spiritual dimensions . They
were classified according to their sacredness and capacity to spiritually
elevate man. The seven sacred rivers of India continue to remam a vibrant
symbol signifying Indian civilisational continuity as well as unity. Like
the sacred forests and groves, rivers too in the Indian context assured the
seeker of spiritual height and perfection. Circumambulation of the river
Narmada - a 2600 km route -was considered one of the most sacred acts
in the Indian spiritual tradition. Rivers in the Indian tradition were not
regarded as 'merely flowing mass of waters.· but rather as 'life-bestowing ,
life-nurturing, and life protecting divine mothers.' The Satapatha-Brahmana
and the Rig-Veda both abound in references to the sacredness of rivers
and their organic link with man and his civilisation. Rivers were 'implored
for protection'; were referred to as the very breath of the people. seen as
the sources of plenitude and were prayed to for granting people
'nourishment and delight.' Venerated as divine beings they were treated
with deference and sensitivity

The situation is obviously different today. Pressures of mode n life and an

1 creasingly materialistic mode of living have. to a large extent, ..· rved t
s v re these age-old organic links in India between m n and hi
env ·ron ent . Th D partm nt r lated to Parliamentary Standing
Commi n Environment an Fo1est in its recent report (May 2012)
· n - tanding I lation when it said, that 'Environment in
ancient India was n t n ntity isol led. apart and independent from
mankind.· The i 1 ti n of nvironment, it observed. was a 'mode1n day
phenomena arising out of r mm r a tion, caxeless technology,
unplanned urbanization, unbridled human gleed, phenomenal population
giowth' etc. It noted that the 'Relationship between people and the
environmenVecosystem in ancient India had been one of harmony,
coexistence, mutual care and concern - the two suppoiting and
 Environment and Development Law and Policy 11

complementing each other in their own way.· Such an approach saw the
. embedding of the attitude of care and respect for the environment in the
Indian way of life.

Recognising the uniqueness of such a tradition and upholding it as a

symbol of a collective environmental consciousness that could still guide
eco-conservation efforts in the present age, the Committee , interestingly,
observed that, 'Worship and reverence to various elen:1ents of environment
- the earth, air, water, river, tree ,· forests, mountains, etc by personifying
·.hem not only signify how crucial and vital these were considered for our
1

exislfmce by our forefathers but also guide us how best to preserve and
protect our environment even in the absence of regulatory regime and
environmental governance .· Awareness of these , it argues , would unravel
the centrality of environment in the Indian civilization vision and scheme .
The Committee's 'rueful' indications were that memories and practice of
these past ecological traditions and perceptions were being gradually lost
and one Il_lay add discouraged by official neglect and overruling.

• Much remains to be done in the a reas of environment and environment

conservation and a brief srnvey of some the Committee's principal findings
and recommendations ma y be u seful in a ppreciating the magnitude of
the challenges in the area.

Delayed Finalisation of Plan Outlay

The first observation of a 'surprised ' Committee was to pointed at the

delay in the finalization of the XIIth five year plan for the Ministry. 'Even
when the first year of the Five Year Plan' has set in, the Planning
Commission is yet to finalise the plan. The Committee expressed its ·se rious
concern over the delay in finalization of the Xllth Five year Plan outla ys '
of such an important Ministry and directed the Planning Commission to
ensure that 'such sort of delay does not recur in future and outlays are
finalised well be fore the beginning of the Plan period.' In view of the
'lrnking challenges that climate change poses' before the na t ion, the
Committee recommended that the proposed outlay of Rs.47586 .00 Crores
that the Ministry has forwarded be given 'serious consideration .·

Consistent Reduction in Budgetary Allocations

In a move that seems to have b ecome a p attern w ith the present

policymakers, the Ministry of Environment· and Forests has seen a
consistent reduction in its budgetary allocation. The Committee took a
'very serious view on the consistent reduction of Budgetary Allocation for
such an important Ministry, like, the Ministry of Environment and Forests
12 Environmental Law .
during the last two years.· The Committee also noted 'with ~oncein' that
the share of the Ministry 'in the Central Pla n has consistently been
declining in successive Plan periods.' The surveyed statistics are hardly
inspiring - the VII plan had a percentage share of 0.83 for environment
and forests , the X plan saw a reduction to 0.67 per cent a nd the XI plan
saw a further decline to 0.41 per cent. The share of the Minist ry in the
Annual Plan 2012-13 has now become 'a dismal 0.37 per cent.' It was a
·very disturbing trend' that 'needs to be reve rsed ' the Com mittee
emphasized with alarm . On the other hand the Ministry was a lso aske d
to gear up its fund utilization drive.

Lack of Adequate Resources for Pollution Control

Dealing with environment and ecological issues, the Committee felt tha t
the Central Pollution Control Board (CPCB) constituted way back in 1974
continues to face major constraints such as 'shortage of technical staff.
scientists and lack of quality laboratory facilities.' It asked the CPCB to
improve its internal working and enhance its coordination with the SPCB
and directed its members to 'regularly visit various places and hold
discussions with concerned SPCBs so as to have a first hand experience
of ground realities prevailing in the country.' The Planning Commission
was again upbraided because 'despite justification and persuasion' it did
not allocate ·adequate resources for prevention and control of pollution.·
The Committee was unhappy to know that State governments were not
·according due priority to environment' and in majority of States. it was
'almost a non-issue.'

Deteriorating Health of Rivers

On the issue of river pollution and deteriorating water quality, the

Committee made certain scathing observations. It brought to light the
fact, that despite huge financial outlays and investment the 'quality of
Ganga water is going down day by day.' Although the Minist ry had
launched 53 projects for reducing pollution in the Ganga under the National
Ganga Riv r Basin Authority (NGRBA) Programme since 2009-10 in 42
to~ns of Uttarakhand, Uttar Pradesh, Bihar . and West Bengal at an
estimated cost of Rs.2598.48 Cr res , the Committee was constrained to
ob~erve ~hat the Ministry w making huge inve tments in the process
of_ cleaning the G~nga, the Yamuna and other major rivers of the country
with the assumption that monitory investment is th sole parameter of .,,
abatemen_t of poll~tion in rivers.· Despite efforts to clean the Ganga that
started with the Sixth Five Yeai Plan (1980-85) under the Ganga Action
Plan and a ,number of ~hemes that followed such as the Ganga Action
Plan-II the end result 1s for everyone to see·, the quality of water in the
 Environment
_ _ _ _ _ _ __ _ _ _ _and
_ _Development
______ Law
__and _ _ __ _ _ _ _ 13
_Policy _ ,!

Ganga has not stopped declining. As per information furnished by the

Ministry, a total amount of 'Rs. 39225.95 Crores has been incurred on the
Ganga Action Plan-II, starting with the Eight Plan (199?-97). A similar
story of huge funds allocated and little achieved has also emerged in the
case of the Yamuna, one among the sacred seven rivets of India. The
Committee did note that in spite of efforts made and a 'huge investment
incurred under various schemes/projects, pollution, level in both the rivers,
i.e. Ganga and the Yamuna [and the Committee, at least here, did not
take into account the oth~r major river such as the Narmada) continues
n increase unabated.

State of Forests: Much remains to be done

Referring to the latest State of Forest Report 2011, the Committee noted
that [Link] is a decrease of 367 [Link] in the country's forest cover in
comparison to the 2009 assessment. For achieving the target of having 33
per cent of the geographical area of the country under tree/forest cover
as mandated in the National Forest Policy, 1988, the Committee has argued
that there needs _to be a much greater increase in the outlay in order to
intensify forestry efforts. Commenting on the Green India Mission project,
to be launched in 2012-13 under the National Action Plan for Climate
Change with the aim' of increasing forest/tree cover across 5 million hectare
over a decade at a cost of 46000.00 Crores, the Committee observed that
it did not receive satisfactory replies from the Ministry on basic queries
such as land identification for the Project. It doubted the seriousness of
the Ministry on the preparation for the successful completion of such a
grand project. Overall the Committee did not appear to be satisfied with
the Ministry's efforts in increasing the green cover and in protecting the
forest cover in the country.

Wildlife Conservation Requires More Funds

The other surprising development that has com to light is that while th
population of tigers in th country h as re is t r d n incr s b · l t
20 per ce nt as pe r an stimaL ' due L Lh ., ff rLs m d und r th
spo sor d nd by now famous Pr jo L T 1 r, lh 11 c tion m
the project sine , 2010-11 'ha b en on th de lin .' Th 219 th R
direc ted th Ministry to convinc th Mi i try 't nh n
[Link] of funds for wild lit pr rv tion h m .' , v n after a l ps
of 16 months th recomm nd ti n m to n t h v b n nsid red or
acceded to . Expr ssing 'd p a ngui ·h' ver th st t f flair and on its
recommendation being tak n so lightly, the ommitt e has directed the
Planning Commission to give 's rious onsideration to the need of the
Ministry for adequate funds for preservation and conservation of wildlife'
14 Environm ntal I aw

and found wholly unjustifiabl ommi ion'c m ve to reduce the

Ministry's propos d d m nd of Rs .1276 30 race for the Project Tiger to
Rs.167.70 crore . Thi it U, sp k volume· on th ttitud of offi cial India
to wildlif cons rva ti n a nd support

Non-serious Implementation of Biodiversity Act 2002

An th r issu th t ca me t hg ht nd whic h r ll cts th l· ck of ofh ial

vi ion nd approach when it comes to th Environm e nt 1 th non seno s
ffort made to imple m e nt th Biodive rsity /\ct 2002 . The Biod1ve rs1 ty Act
2002 had established the National Biodive rs ity Authonty at the national
level , the State Biodive rsity Board a t the state level and the Biodiversity
Management Committee at the Panchayat le vel w ith the objective of
promoting conservation and 'sustainable use of Ind ia 's rich biodiverS1ty
and associated knowledge with people's participation.· Ten years down
the line, ml.!ch remains to be done both at the Central and State level in
order to implement the Biodiversity vision . The Committee me ntioned
that three states, Bihar. Maharashtra and J&K have not even set up their
respective state biodiversity boards even after a decade . It called upon
the Government to take make serious efforts to implement this crucial
and futuristic piece of legislation.

As the report reflects; large and vital areas cry for a greater dynamic
vision. action and effort at implementation. Innovative schemes and
working mechanisms seem to be urgently required. As the Committee
put it, 'engineering centric approaches' alone are not working anymme .
Perhaps a people-tradition-civilisation centric approach to environment is
the crying need of the day. Our, habitually ignored, or nearly lost
civilisational vision and traditions of Environment conservation and
rejuvenation, may provide a much needed clue and direction.

2. Development:

2.1. Right to development

2.2. Sustainable development - national and international Per pectiv s

2.3. Developing economies

....
2.1. Right to development

The right to development was first recognized in 1981 in Article 22 of the .,,,
African Charter on Human and Peoples' Rights as a definitive individual
and collective right. Aiticle 22( 1) provides that: "All peoples shall have the
right to their economic, social and cultural development with due regard
--
...,
Environment and Development Law and Policy

to their freedom and identity and in the equal enjoyment of the common
15

..., heritage of mankind."The Right to Development includes:

• full sovereignty over natural resources

• self-determination
• popular participation in development
• equality of opportunity
• the creation of favorable conditions tor the enjoyment of other civil,
political, economic, social and cultural rights

The })reamble of the Declaration on the Right to Development states

"development is a comprehensive economic , social, cultural and political
process, which aims at the constant improvement of the well-being of the
entire population and of all individuals on the basis of their active, free
and meaningful participation in development and in the fair distribution
of benefits resulting there from ."

The Rio Declaration on Environment and Development, also known as Rio

Declaration or the G._R.E.G, recognizes the right to development as one of
its 27 principles. Principle 3 of the Declaration states "The right to
development" must be fulfilled so as to equitably meet developmental
.and environmental needs of present and future generations."

Background

The right to development can be rooted in the provisions of the Charter

of the United Nations, the Universal Declaration on Human Rights and
the two International Human Rights Covenants.

Through the United Nations Charter, Member States undertook to "promote

social progress and better standards of life in larger freedom " and "to
achieve international cooperation in solving international problems of an
economic, social, cultural or humanitarian character, and in promoting
and encouraging respect tor human rights and for fundamental freedom
for a ll without distinction as to race , sex, language or religion ."

The Universal Declaration on Human Rights contains a number of lem nts

that became central to the international community 's understanding of
the right to development. It attaches importanc , for example , to the
promotion of social progress and better standards of life and recognizes
the right to non-discriminati n , th right to particip t in public affairs
and the right to an dequ t ta nd rd of livin . lt l o contains everyone's
entitlement to a soci l and int rn tion l rd r in which the rights and
freedoms set forth in the Deel r tion can b fully realized.
16 Environmental Law

An important step towards the recognition of the right to devel?pment

was UN General Assembly resolution 1161 (Xll). In this resolution, the ..
General Assembly expressed the view "that a balanced and integra~ed
economic and social development would contribute towards the promotion
and maintenance of peace and security, social progress and better
standards of living, and the observance of and respect for human rights
and fundamental freedoms ."

This theme was taken up at the International Conference on Human

Rights, held in Tehran, Islamic Republic of Iran , from 22 April to 13 May
1968. The Conference expressed its belief "that the enjoyment of economic
and social rights is inherently linked with any meaningful and profound
interconnection between the realization of human rights and economic
development ." It recognized "the collective responsibility of the
international community to ensure the attainment of the minimum
standard of living necessary for the enjoyment of human rights and
fundamental freedoms by all persons throughout the world."

In 1969, the General Assembly, in its resolution 2542 (XXIV), adopted the
Declaration on Social Progress and Development, which states that "social
progress and development shall aim at the continuous raising of the
material and spiritual standards of living of all members of society, with
respect for and in compliance with human rights and fundamental
freedoms."

In its resolution 4 (XXXIII) of 21 February 1977, the UN Commission on

Human Rights decided to pay special attention to consideration of the
obstacles impeding the full realization of economic, social and cultural
rights, particularly in developing countries, and of national and
international action to secure the enjoyment of those rights. Recognizing
the right to development as a human right. the Commission requested
the UN Secretary-General to undertake a study on "the international
dimensions of the right to development as a human right in relaLon with
other human rights based on international cooperation, including the
right to peace, taking into account the requirements of the New
International Economic Order and fundamental human needs." The study
"".'as submitted and considered by the Commission on Human Rights at
its thirty-fifth session in 1979.

The Commission subsequently, by its resolution 36 (XXXVII) of 11 March

1981, established a working group of t 6 go:v ernmental experts to study ,.,.
the scope and contents of the right to development and the most effective
means to ensure the realization, in all countries, of the economic, social
and cultural rights enshrined in various international instruments, paying
 Environment and Development Law and Policy 17

particular attention to the obstacles encountered by developing countries

in their efforts to secure the enjoyment of human rights. It also requested
the Working Group to submit a report with concrete proposals for
implementation of the right to development and for a drat t international
instrument on this subject.

The right to development was proclaimed by the United Nations in 1986

in the "Declaration on the Right to Development" which was adopted by
the United Nations General Assembly resolution 41/128 .

/\s follow -up mechanism to ensure promotion and implementation of the

Decldation on the Right to Development, the Commission established an
intergovernmental Working Group on the Right to Development in 1998,
and its high-level task force on the implementation of the right to
development in 2004 .

The Declaration on the Right to Development defines such right as "an

inalienable human right by virtue of which every human person and all
peoples are entitled to participate in, contribute to, and enjoy economic,
social , cultural and political development, in which all human rights and
fundamental freedoms can be fully realized." (Article 1)

The right to development provides a comprehensive framework and

approach to the policies and programmes of all relevant actors at the
global, regional, sub-regional and national levels as this right - integrates
aspects of both human rights and development theory and practice;
encompasses all human rights - civil, political, economic, social and
cu ltural ; requires active, free and meaningful participation: involves both
national and international dimensions of State responsibilities including
in the creation of an enabling environment for development and favorable
conditions for all human rights; demands comprehensive and human-
e ;nte r d development policy, participatory development processes, social
ju tic ; and equity; embodies the human rights principles of equality, non-
d i crimination,participation,transpar ncy,accountability s w 11
int rnat1onal cooperation in an integrated manner; implies th prin ipl
f s lf d ; L rmi nation nd full sov r ignty over n tur 1 w 1th n
; facilit tes holistic ppro h t th issu of p v t
addr i g its sy temic and structur l c u s; str ngth n th b· i
pr r gr wth with du tt ntlon t th right of lh most m r in li
f fri ndly r l tion b tw n tat mt r hd nty,
coop r ti n nd assistanc in arn s f t d in untri .
including t chn 1 gy tr nsf r, 3r..:;r,AJ'.._'~,"'o 1 m di in , d bt
sustainability, d v lopm nt id, int rn ti n nd policy space in
decision-making.
18 Environmental Law

2.2. Sustainable development - national and international

Perspectives
The principle of sustainable development has evolved on the basic
assumption of co-existence of two apparently conflicting notions i.e .
development and environment. But from the practical point of view,
ecological, economic and social aspects of sustainability are inseparable.
As William Rees has rightly pointed out that maintenance of ecological
integrity has to be accorded primacy over achievement of socio-economic
human needs, thus there should be a convergence between ecological
and economic factors in the developmental process.

Sustainable development means that the richness of the earth's biodiversity

would be conserved for future generations by greatly slowing and, if
possible, halting extinctions, habitat and ecosystem destruction, and also
by 'not risking significant alternations of the global environment that might
- by an increase in sea level or changing rainfall and vegetation patterns
or increasing ultraviolet radiation - alter the opportunities available for
future generations.

The principle of sustainable development emphasises on two basic needs,

firstly, need for socio-economic development and secondly, need of
limitation imposed on the environment's capability to cope with the present
and future requirements.

Salient Principles of Sustainable Development

The principle of sustainable development which received international

recognition as a result of Brundtland Commission Report (1987) was
overwhelmingly supported by all the nations. Some of the salient principles
which underlie the concept of sustainable development were spelled out
in the Rio Declaration, 1992 and Agenda 21. Therefore, these principles
have got to be necessarily followed in order to achieve the objective of
sustainable development. These principles are as follows :

(1) Inter-generational equity;

(2) Use and conservation of naturnl resources;
(3) Environmental [Link];
(4) The precautionary prtnciple;
(5) The 'Polluter Pdys' principle;
(6) Principle of liability to help and co-operate;
(7) Poverty eradication; and
(8) Principle of 'public trust'.
 Environment and Development Law and Policy 19

Indian Judicial Overview:

. India being a growing nomy ha s en r mpant industrialization and

dev I pm nt in r nt past, whi h r sult d in adverse impact on the
nvironm nt Witnes ing uch d gr d tion . the Suprem urt of Inclia in
a bid to prot ct th environment, played a significant role in shaping and
adopting the doctrine of Sustainable Development This crusade for
saf guarding the environment was led by Justice Kuldip Smgh, who
famously came to be known as the 'G reen Judge '.

·1 doctri ne of Sustainable Development was implemented by he

Supr me Court in the case of Ve/Jore Citizen Welfare Forum vs. Union of
India The Petitioners therein had filed a petition in public interest nder
Artlcle 32 of the Constitution of India against the pollution caused by
discharge of untreated effluent by the tanneries and other industnes m
the nver Palar in the State of Tamil Nadu. In the instant case , the Supreme
Court held that the precautionary principle and polluter pays pnnciple
are a part of the environmental law of India . The court also held that:
" Remediation of the damaged environment is part of the process of
'Sustainable Development' and as such polluter is liable to pay the cost to
the individual sufferers as weJJ as the cast of reversing the damaged
ecology."

Thereafter in a number of judgments, the Apex Cowt explained and

implemented .the doctrine of Sustainable Development. The Hon'ble
Supreme Court of India in Narmada Bachao Andolan vs. Union o
India obse rve d that "Sustainable Development means what type or ent
of development can take place, which can be sustained by n tUie
ecology with 01 without mitiga tion". In TN. Goclavaraman Thirum ul
s . Union of India•, the Hon'ble upreme Court s id " s a matter I pr
w m ay tate that adherenc to the principl of u t inable De ~up.u1c:n L.
is now a constitutional r quirement. How much d m g to the envir run t
nd cology has got to be d id d ITT th I. t h a ". I n IndJ
Counc1J of EnvjJo-Leg 1 Action vs. Union f In d1 , the A
.. IJJlc conom1c dev I pment houlrl n t b Jlow d t t
() ·t uf c · logy or by ausm w1d spr v,
10/aWm. a t th ~ sa m , il me. th n
..11v1m 11m ..!Jl slJ n l Jr JJJJ
1mpo1 ha 1 iv < n u nm , nt n
ll q m in a fm t> nw n nu
d pm nt

Th ·up1 m uit f lud1 ct 11 th n t t up spe i lised

envu nm nt ourt f 1 th u pedll1 us dispo l f c ses
20 Environmental Law

involving environmental issues, since the right to healthy environment

has been construed as a ar t of ng ht to hf under Article 21 of the
Cons ti tu tion .

India's Role

India submitted its IND on 01.10.2015 prior to the Co nfe rence of Pa ties
in Paris a nd ratified the Paris Agre ment on 02 .10 2016 on the birth
nnive rsary of Mahatma andhi . India's INDC is ambit10us a d show s
trong commitment to combatmg climate change . India 's% share of globaJ
Annual emission is 5.7%, whereas USA's share is 15.1% and China 's 28 ¼
Thus, even though on a global scale India is not a part o ca use of p roble .
it has through its INDCs shown its commitment to be a part of the solution

India's INDC emphasizes that in order to reach its commitment it 's most
important that the means and funds for implementation be provided by
developed nations, technology transfer and capacity building. It also
estimates that at least $2.5 trillion (at 2014-15 prices) will be required for
meeting India's climate change actions between now and 2030 .

India in its INDC has committed primarily to reduce emission inte nsity of
its GDP by 33-35% by 2030 from 2005 levels; achieve about 40% cumulatl e
electric power installed capacity from non-fossil fuel based e nergy
resources (mainly renewable like wind and solar power) by 2030 ; and to
create an additional carbon sink of 2.5 to 3 billion tonnes of CO2 equivalent
through additional forest and tree cover by 2030.12

Sustainable Development in International Law

In international law, the concept of sustainable development ha g m

some definition over the course of the past two decad s . It is not l
that sustainable de velopment has, as yet, the characte r f cu tom r
norm of inte rnationa l [Link] ne [Link] is it void of all meaning )r n rm u
value in internationa l la w. Rathe r, it can be argued that th t
sustainable development has a du l nature in mterna tion 11 w . It
consid r d an interstitial norm, which serves to reconcil oth I nfu un
norms related to the environment, th economy and i l d v l pm nt
(including human rights).and a lso simply the bi t nd purpo Im n
international treati s and l ga l instruments.

In the recent deci i n f int rnati n l ourts nd tnbunals, th concept

of sustainable d v l pm nt fa ihtate the r on 1li ti n nd integrati n
of other norms cone ming socio-a n mi d vel pment nd protection of
the environment. It a ppe r to hav played su h a r l in Gabcikovo -
Nagymaros Case at the Int rn t1onal urt of Justice:
 Environment and Development Law and Policy 21

"Throughout the ages, [Link] has, for economic,-and other reasons

constantly interfered with nature. In the past, this was often done withou~
consideration of th effects upon th environment. Owihg to new scientific
insights and to a growing awareness of the risks for mankind - for present
and futur generations of pursuit of such interventions at an unconsidered
and unabat d pace, new norms and standards have been developed , set
forth in a great number of instruments during the last two decades. Such
new norms have to be taken into consideration , and such new standards
qiven proper weight, not only when States contemplate new activities
blJ. l o when continuing with activities begun in the past. This need to
recon lle economic development with protection of the environment 1s
aptly expressed iri the concept of sustainable development

The Permanent Court of Arbitration reaffirmed this reasoning in its Arbitral

Award for the Arbitration Regarding the Iron Rhine ("Ijzeren Rijn") Railway
(Belgium v. Netherlands) (May 24, 2005). In this case, The Netherlands,
which had created nature reserves along the path of the historic 'Iron
Rhine ' railway line, sought to prevent its reactivation. Belgium argued
that the upgrading of the Iron Rhine Railway was part of a shift from road
to rail transportation, assisting in the reduction of greenhouse gases, in
order to contribute to sustainable development. The Tribunal balanced
environmental protection against socioeconomic development, finding that
the application of environmental measures by the Netherlands could not
amount to a denial of Belgium's transit right, nor could these measures
render the exercise of such a right umeasonably difficult. In its reasoning ,
the Tribunal refers to the "notion of sustainable development", and at
para . 59 , states that:

"Environmental law and the Jaw on development stand not as alternatives

but as mutually reinforcing, int8fJral concepts, which require that where
development may cause· significant harm to the environment, there is a
duty to prevent, or at least mitigate such harm . ... This duty, in the pini
of the 1hbunal, has now become a principle of general intemati nal 1
This pnnciple applies not only in autonomous activities but al in activiti
und rta k n in implementation of specihc treaties betw n th Parti . "

Th 1mphcations of th se cases for th m aning f th

dev lopm nt m g n ral intern tional l w r cl ar. In in tan es wh .re
tract lib rahzauon rul s, conom1 d v lopm nt norms, intersect with
environmental norm , th on pt f sust in bl development may play
a normative role in guiding a bal n d, mutually supportive, integrated
outcome . It may also, as is touch d upon b low, play such a role when
social development norms rue involved .
22 Environmental Law

In international treaty law, sustainable development is an agreed objective

of many international trade treaties, both at the global a nd regional levels .
As such, sustainable development can be considered part of the 'object
and purpose' of a growing n umber of treaties , and therefore directly
relevant in the interpre tation of their provisions . The concept appears.
often a s a n obje ctive or preamble referenc e , in mo t international
statements and declarations related to environmental, socia l and eco normc
issues since the 1992 Rio de Janeiro Earth Summit. It has also fe atured
as an object and purpose of many international economic, socia l and
environmental treaties involving developed and developing countries, as
a concept which guides the decisions of international courts and tribunals,
and the holdings of judges in national courts around the world.

In particular, the concept of sustainable development can be considered

part of the object and purpose of many international treaties, including
the 1992 UN Convention ori Biological Diversity and its 2000 Cartagena
Protocol, the 1992 UN Framework Convention on Climate Change and its
1997 Kyoto Protocol, the 1994 UN Convention to Combat Desertification
and Drought, the 1994 North American Free Trade Agreement, the 1995
Straddling Fish Stocks Agreement of the 1982 UN Convention on the Law
of the Sea, the 2000 Cotonou Partnership Agreement between the European
Union and the African Caribbean and Pacific countries, the 2001
International Treaty on Plant Genetic Resources for Food and Agriculture,
and many others. In each treaty, the sustainable development objective
is worded slightly differently, and also operationalised differently. To date
only the 2002 Convention for Cooperation in the Protection and Sustainable
Development of the Marine and Coastal Environment of the Northeast
Pacific provides a definition for 'sustainable development' . At article 3(1)(a).
the parties adopted the following statement:

Sustainable development means the process of progressi ve change in th e

quality of life of human beings, which places them as tl1 e r:cn tre and
primary subjects of development. by means of economic growth w iU social
equity and transformation of production methods and con sump t.1on
patterns, sustained by the ecological balance and life support system~ )/
the region . This process implies resp ect for regional, national and local
ethnic and cultural diversity, and lull public participation , peaceful
coexistence in harmony with nature, without prejudice to and ensuring
the quality of life of future generations."

According to international treaties and tribunals , the concept of sustainable

development is clearly relevant to interna tional law related to the
environment and to natural resources. But it is also directly relevant for
economic and trade law, and has been further defined in these contexts.
 Environment and Development Law and Policy 23 I

The 1994 Marrakesh Agreement establishing the World Trade Organization

... recognises sustainable development among its objectives. Thµ; is confirmed
in the 2001 Doha Declaration declares: "We strongly reaffirm our
commitment to the objective of sustainable development, as stated in the
Preamble to the Marrakesh Agreement. "16 And several. Reports of the
wro Panel and Appellate Body directly address the concept of sustainable
development in world trade law. In particular, wro Appellate Body found,
at note 107 in the US - Shrimp Case, that

" f his concept has been generally accepted as integrating economic and
soc1a1 development and environmental protection." Further, the WTO Panel
found , at note 202 in the US - Shrimp Case, Recourse to Article 21 .5 by
Malaysia , that "the concept is elaborated .. . so as to put in place
development that is sustainable ... that 'meets the needs of the present
generation without compromising the ability of futwe generations to meet
their own needs' ." Four implications of these definitions for world trade
law are particularly noteworthy. First, the WTO Appellate Body and Pcmel
adopted the most commonly accepted definition of sustainable
development, which refers to the needs of both present and future
generations.

Second , they described sustainable development as a concept, rather

than as a customary principle of environmental law. Third, they recognized
that the concept involves 'integration' . Fourth, they explicitly recognized
·social developme nt' as an element to be integrated, along with economic
development and environmental [Link] social element was later
also highlighted in the outcomes of the 2002 World Summit for Sustainable
develo pment, which concluded, in th e Johannesburg Plan of
Implementation, at para . 140 (c). that there was a n e to "promote the
fu U in · gra ion of sustainable development obj tiv s in r gramm s
a nd policies of bod ies tha t have a primary f cus on i l issues" n n
t, "in p r 1cular, he social dimension of ust inabl dev lo m m sh ul
stre ngth ned .. . "

ustain le dev lo m nt law · ud olicy h nly

by x1. tmg 1 titut10 . and not m an ad qu - ly i1
internatlonal law. the ov ra r hin ,on pt of
vitjates fragm ntatlon. It insp1r s oop f t i n.
governance sysiem . Th I I L 1 und 1takm cose1arc:n
principles, rules and pohci . in rd 1 to m k
the developm nt f this field , ass1 tin J hol r . unto .1 int rnational
institutions to tormulat.e intemali n l l w in m r int gt t d , prin ipled
manner, to address interse tions between diff r nt int rn ti n 1 1 g 1
regimes and to implement th myriad new int rnational tr tjes and ·
24 Environmental Law

instruments in the field of susta ina bl d velopment ..

Undeniably, Sustainabl D v lopm nt is th n ed of the hour. With the

advent of energy fiicie nt t chn logy, harmonious marriage betw een
development and nvironm nt is possible . It is time that each one of us
adopt an 'energy-efficie nt a nd green' mind-set and use the natu ral
resources available equitably, judiciously a nd save them for our future
y o predict futu re is to c ea ,e i

2.3. Developing economies

Historically, environmental regulations were viewed as a North South
divide between developed and developing countries (or betw een [Link]
and exporting countries), whereby developing countries w ere restri.c ed
from market access based on environmental regulations. Initia lly, unilateral
action by developed countries improperly overstepped the boundaries of
domestic regulations and invaded national sovereignty

As ~eveloping countries develop into more industrialized countries, they

face numerous problems relating to their social, economic and pobtical
development. Many Developing countries have incorporated the ideas of
state sovereignty, state .equality, and the principles of nonaggression and
non-intervention, in their search for their place in the tramework of
international law. However, many devel~ping countries are still searching
for their respective places in the global economy. Many developing
countries' tend to follow development patterns that depend heavily on
the use of their natural resources, to the detriment of the environment. As
a result, some countries have caused irreparable damage to their
ecosystems. At one time a great number of developing countries countri.e
regarded environmental concerns as problems for rich countries n
environmental regulation as another impediment to the ir economi
development. Othe r developing countries believe that econom ic growth
and development cannot be attained without damaging the · 1 r nm nt.
A few of the poorer developing countries have chosen · n mi
development over environmental protection, even though th y hav greed
to many of the treaties and conventions on environmental prate tion and
have created many modem environmental laws.' A a result enforcement
of environmental laws was not a priority for these ountries, however this
sentiment is changing. The enforceme nt of environmental laws is not a
new problem. Many countries and numerous organizations, both domestic
and international, have been debating this problem for years. However,
with the continued growth of economies all over the world, environmental
protection has been pushed to the forefront of international affairs. Since
developing countries are experiencing the largest amount of growth, they
 Environment and Development Law and Policy 25

are particularly scrutinized ove r their respective environmental laws and

the frequency with which the y are e nforced . In order to determine if a
developing countrie s e nvironme ntal la w s can be e nforc ed by other
countries, this a rticle will first e xplore the process by w hich intern ational
law is created as we ll as the role each type of inte rnational law plays in
shaping environme ntal law. The issue of whethe r d eveloping countries
environmental la ws can be enforced by other countries will b e analyzed.
furthermore, this article will briefly look at how some of the environmental
problems in developing countries started and how some countries are
ealing with the problem of environmental degradation. Finally, an analysis
of hoN developing countries can enforce their own laws with the help of
other countries and international organizations will be addressed .

The problem of environmental degradation concerns both industrialized

countries as well as developing countries Therefore , environmenta l
protection is a challenge shared by all countries. In order to e stablish
some semblance of an agreement concerning environment p rote ction,
the policies of states should advance and not affect the present and
future development of developing countries. No treaty or agreement h as
been enacted that gives one country the authority to enforce the laws of
another country. Natural resources are being depleted and many regions
of the world are faced with the possibility of irreversible, physical , social
and economic destruction. This is especially true in developing countries.
Developing countries are in varying stages of development, ranging from
the poorest of the poor to other countries, such as China , In dia , South
Korea and Mexico, who are on the verge of breaking into the industrialized
world, wit h many degrees and combinations of circun1stances in between.
As a result, many of these countries seem more concerned w ith continued
economic growth than with global climate changes. Furthermore, as these
countries move toward sus tainable economic d evelopm ent pressure is
placed on each coun try 's environment as w ell as the global environm nt.
It has been determined tha t to bring a ll d eveloping countri s t th
consumption le vel of the Unit d Stat s by th y ar 2060 w uld r
four percent economic growth p r y ar The y arly irnpa t f e, n
activities n the environm nt w ould b sixt n tim wh t it
which is not v n r mote ly conce iv b l . ontinu d nt in
developing count ri s has c used th s to xh · n tural
resmnce . As a re u lt, ach country ' nvironm nt has ff r [Link] parable
h a rm. For e xampl , r ult of r p1d on mi v lopm nt in Taiwan
and South Korea, t rribl nvi r nm nt l d truction has occu rred , yet
these conntries a re cunently held up m dels for all deve loping countries
to follow.
26 Environmental Law

The majority of environmental regulation conflicts in WfO case law are

initiated by developing countries against more restrictive measures adopted
by developed countries. Developing countries are concerned that green
protectionist measures are merely disguised barrie rs to international trade .
The concerns of developing countries fall into three broad categories:
Abuse of Power (unilateral measures "give governments greater power
nd opportunity in the free -trade era to protect their own industries against
foreig n competition") ; Sovereignty (conflicts be tween extra te rritori al
regulations and national sovereignty); and Economic and Social Costs (a
lack of understanding in developed countries "of the domest ic
envirofll1?.ental, social, and economic context of developing countries) .
Though the concerns are reasonable , the wro system is well equipped
to balance the interests of environmental protection and development
and even encourages sustainable development as a primary objective in
international trade.

Module - II

3. Policy and Law:

3. 1. From Stockholm to Rio and there after

3.2. Post - Independence India

3.3. Role of government

3.3.1. Five Year Plans

3.3.2. Forest Policy
3.3.3. Conservation strategy
3.3.4. Water policy

3.1. From Stockholm to Rio and there after

The International Environmental Law has had a long ride fro1 l1 1972
Stockholm Conference to the recent Rio, 2012 Conference . Many a
principles were made in the process.

The sustainability idea emerged in a series of meetings and reports during

the 1970s and 1980s. A few highlights in the sustainable development
timeline:

In 1972, the UN Stockholm Conference on the Human Environment marked

the first great international meeting on how human activities were harming
the environment and putting humans at risk. The conference has led to
the establishment of numerous national environmental protection agencies
 Environment and Development Law and Policy 27

and the United Nations Environme nt Programme (UNEP) .

..
The 1980 World Conserva tion Strategy, prepared by the International Union
for the Conse rvation of Nature (I U N) a long w ith the UN Environment
Program and th World Wildlif Fund , promot d th ide a of environmental
protection in the self-in terest of the human species .

ln 1987, the UN -sponsored Brundtla nd Commission released "Our Common

F\ltur ", a report that ca ptured widespread concerns [Link] the envi ronmen t
and pove rty in m a ny parts of the world . This re port contained the most
freque ntly quoted de finition of sus tainable deve lopment:

"Sustainable deve lopment is development tha t meets the needs of the

p re se nt w ithout compromising the ability of future generations to mee
the ir own needs ".

The definition contains two key concepts; the concept of needs , in

particular the essential needs of the world's poor, to which [Link]
priority should be given; and the idea of limitations imposed by the state
of technology and social organization on the environment's ability to meet
present and future needs. The Brundtland report also mentioned tha t
economic development cannot stop, but it must change course to fit
within the planet's ecological limits.

In 1992, world attention on sustainability peaked at the UN Conference

on Environment and Development (UNCED), in Rio de J aneiro . It brought
together the heads or senior officials of 179 governments, and included
the Earth Summit , the largest-ever meeting of world leaders. Rio produced
two international a greements (the Convention on Biological Diversity
the Fra mew ork Convention on Climate Change) , tw o state men t f
principles (the Rio Declaration on environment a nd development an t
non -bind ing State me nt of principles for the Sustainable Managem n t
For sts) a nd a m ajor action agenda (Agenda 21) on worldwide sustain l
dev lopment.

1n 1 97 th Kyoto Protocol w a s dopt d in Ky t , J p n an

fore<-; on ?..00 This rn rn tion 1 , gr me nt link d t th Unit e
Fram ew ork onv m uon on lim t ng s ts bmdm t a ro e rs
· du " tri hz d cou nt rie s n th Eur p · n mmumt du -- m
g re nhou g as ( I iG) mission .

The mte r s t in ur in th t period w as

accelerated b y · n of in 1d nts nd d is v 11 , m luding the leak of
poisonous g as from c h mi a l pl nt t Bh p 1, lndi , the explosion and
radioactive releas f1om Chernobyl , Ukr in , the hole in the Anta1ctic
28 Environmental Law

ozone layer, leaking toxic chemical dumps, such as Love Canal, general
fears about chemical contamina tion and conflicts over decreasing natural
resources such as forests a nd fisheries.

Thus twe nty years a fter Stockholm , the Unit d Na tions Conference on
Environme nt a nd Deve lopm nt w a held in Rio de Jan iro in 1992, with
the same Secreta ry-General, Maurice Strong, as the Stockholm Conference.
Its high leve l segme nt, the Earth Summit, assembled over 100 heads of
state and gove rnme nt to ado pt the Rio Declaration and an action plan of
40 chapters called Age nda 21 , as we ll as forest principles. The Rio Earth
Summ it was a peak in the environmental movement , w ith hi gh
expectations that were generally disappointed_ Significant progress was
made after Rio in the UN system , adapting its programmes to the newly
agreed priorities. The major transformation was among NGOs and m civi l
society, both globally and locally, with many communities adopting local
Agenda 2 ls. In the private sector, leading multinationals led significant
improvements in their environmental perfor m ance, he lped by the
International Standards Organization (ISO 14000) and the World Business
Council for Sustainable Development. In the UN, the Commission on
Sustainable Development was established to follow up the Rio agreements,
and it has helped governments to adopt such things as indica tors of
sustainable development.

New environmental issues have emerged since Rio . Rapid scientific

advancement has made genetic engineering possible, with developments
in biotechnology such as cloning animals and humans becoming possible .
On the pollution front, the persistent organic pollutants (POPs) have been
shown to disrupt the endocrine and other hormonal systems. Invasive
species have hit the headlines. Repeated record high temperatures year
after year have pushed the scientific community to acknowledge a clear
human impact on the climate system that threatens major problems in
the years ahead. The collapse of coral reef ecosystems arour :d the world
from the combined effects of pollution, overfishing, direct dam .. ge and
global warming signaled significant planetary human impacts at the
ecosystem level. Progress was also made, with new interna tional
agreements on desertification, POPs, biosafety, the Kyoto Pmtocol on
greenhouse gas reductions, a nd ocean fisheries , but implementation has
been difficult. The information revolution has united the world as never
before into one reactive system. Globa lization itself has become a major
issue. The UNEP Global Environment Outlook 2000 report showed that
most environmental trends were still negative, and human vulnerability
to environmental damage was increasing.

The United Nations has therefore planned for a Rio +10 conferences, the
 Environment and Development Law and Policy 29

World Summit on Sustainable Development, to be held in Johannesburg,

... South Africa, in September 2002 . The participatory preparatory process
for the conference is now under way, with regional preparatory meetings
and widespread stakeholder consultation this year, followed by a series of
preparatory committee meetings in January to May 2002 . No one wants
to renegotiate Agenda 21 , but everyone is asking what else needs to be
done to turn the world around . It looks as though the world population
will stabilize in this century, but not before a further increase that will
seriously stress resource capacities in many regions. World extremes of
wealth and poverty have increased, and the social stresses fro m such
ext1erne differences are now erupting into spreading violence and terrorism.
The AIDS epidemic, threats of biological and chemical attack , and the
obvious vulnerability of modern technological society have undermined
any sense of security.

The United Nations Conference on Sustainable Development - or Rio+ 20

- took place in Rio de Janeiro, Brazil on 20-22 June 2012. It resulted in a
focused political outcome document which contains clear and practical
measures for implementing sustainable development.

In Rio, Member States decided to launch a process to develop a set of

Sustainable Development Goals (SDGs), which will build upon the
Millennium Development Goals and converge with the post 20 15
development agenda.

The Conference also adopted ground-breaking guidelines on policies. The

objectives of UNCSD for the Rio+20 are to secure renewed political
commitment to sustainable development, to assess progress towards
internationally agreed goals on sustainable development and to addres
new and emerging challenges . The Summit will also focus on two specifi
themes: a green economy in the context of poverty eradication and
sustainable development a nd an institutional framework for sust inable
development.

UN Secretary-General Ban Ki -moon emph sized that Rio 20 would be a

unique chanc to discuss cha ll ng s nd solution to visu liz nd plan
for "the fu ture we want". Rio, 20 r hist ric lly imp rtant f r humamty
and should not "just anoth r UN nf r nee ." Th Rio +20 Conference
al o galvarn z d the tt nli n of thou n s of r presentatives of the UN
system and m jor roups. It r s ult d 111 ov r 700 voluntary commitments
and witnessed the formation of new pa rtnerships to advance sustainable
development.
30 Environmental Law

3.2. Post - Independence India

The India CoTistituti TI , arl Jpt d m 1 0, 1 not d l with the subject
1

of environm nt r r v nt1on r nd ontr llution as such (un til 1 76

Amendment) . Th ri in l t , t o f h n it, 10n under Article 372(1 )
h s in rpor t d th rh r xis ting l w into th pre en t l al s em
a nd provid th t n twith st ndmg th r p al by th, Con. t1tu tion of
TI ctm nts r f rr d to in /\rti l 3 5, but subj ct to oth r pro 1s1 ons of
th th r provisions of th Constitution , all laws m force immed1a ely
t r the commencement f the Constitution shall r m n m force until
alt red , repealed or amended by a compe tent leg 1slature o o he
competent authority. As a result, even after five decades of independence .
the plethora of such laws is still in operation without any sigruficant
charge in them. The post-independence era, until 1970, did not see much
legislative activity in the field of environmental protection. Two early
post-independence laws touched on water pollution . The Factories Act of
1948 required all factories to make effective arrangements for waste
disposal and empowered State Governments to frame rules implementing
this directive . Under the River Boards Act of 1956, river boards established
are empowered to prevent water pollution of inter-state rivers To preve 4

cruelty to arnmals, the Prevention of Cruelty of Animals Act w as framed

in 1960. Thus, there were scattered provisions for checking pollution of
a ir, water, etc ., but there was no unified effort in developing any policy
concerning the pollution emanating from these areas. This position e
up to the seventies. Meanwhile concern arose over, inter-aha , po ul n
mcrease , greater pollution levels; human impact on animal pul
and natural landscapes and other aspects of resource d ple tion It s
the S ockholm Declaration of 1972 which turned th ttent.10n f th
lndlan Government to the boarder rspective of nvironm nt l r
Th gove rnment made its st nd w 11 known throu h h y
well as the legis la t ions e nac te d s ubsequ ntly t ur -n
e nvironm ntal pollution · nvironme nt l Laws mce 1 • O's ·1 .·"'
(Protect1 n) Act, 1972, aun d at r tion l and mod rn wild hf me
Th Water (Prev nuon and ontrol of Polluti n) A t, 19 4, pro
estabhshrnent of pollution contr l ho rds t ntr n t t
wa hdog fo1 pr v ntion and nu l f polluu n Th Fi 1 .. t ( n 1 o n
Act, 19 0 aimed to h k i foe t ll n , div 1 · 1 n t t r t land t I n n -
tor stry pw · s. nd promoto · T l f rnstty. 'fh Au Pr ntJ n n
Control of Polluu n) Act, 198 , am d , t h long 1 Uutl n V1 polluu n
control boards. The Envuorunont (Pr t1 n) A t , 1986 ts landmark
legislation which pr v1d s tm 8 iIH le t .u m U1 ~ountry f r ptotection of
environment and ims at pluggmg the loophol in xisting legislation. It
provides mainly tor pollution control, with tring nt penalties for violations.
 Environment and Development Law and Policy 31

The Public Liability Insurance Act, 1991 , provides for mandatory insurance _
for the purpose of providing immediate relief to person affected by accidents
occurring while handling any hazardous substance . The National
Environment Tribunals Act, 1995, was formulated in view of the fact that
civil courts litigations take a long time (as happened in Bhopal case). The
Act provides for speedy disposal of environmental related cases through
environmental tribunals . Under the Act, four benches of the tribunal have
been set up in Delhi, Calcutta, Madras and Bombay. The Na tiona l
Environment Appellate Authority Act, 1997, provides for the established
f a National Environment Appellant Authority (NEAA) to hear appeals
with respect to restriction in areas in which any industries, operations or
processes shall not be carried out or shall be carried out subject to certain
saleguards under the Environment (Protection) Act, 1986.· The Biological
Diversity Act, 2002, is a major legislation intervention alfected in the
name of the communities supposed to be involved in the protection of
biodiversity around them . The Act intends to facilitate access to genetic
materials while protecting the traditional knowledge associated with them.
Environmental Policy Since 1970's by early 1972 it had been realized that
unless a national body was established to bring about greater coherence
and coordination in environmental policies and programmes and to
integrate environmental concerns in the plans for economic development,
an important lacuna would remain in India, s planning process. Thus, in
Feb . 1972, a National Committee on Environmental Planning and
Coordination (NCEPC) was established in the Dept. of Science and
Technology. The Committee was to plan and coordinate , but the
responsibility for execution remained with the various ministries and
g overnmental agencies .. Over time the composit10n of the Committee
ch anges significantly and it became unwieldy, and decision making more
complex. Gre ater bure aucratization occurred with the addition of m re
secretaries . The Fifth Five Ye ar Plan (1974-79) stressed that the N EP
s hould be involved in all major industrial designs a nd a ·link and balan
between d eve lopm e nt pl a nning and e nvironmental ma nage me n t h s t
be maintained . ln this context, Mi ni mum N eds Progr m me (c rin
rural educat ion, h a lth , nutrition , drinking w t r, t .} r c i d f irl
high priority, a nd w as exp cted to minimiz nvi r nme nt, l p lluti n n
deg radation m rura l areas. In th beth Fiv Yi I Pl _n (1 80- ), n ntir
chapter on "Environment a nd D ve Jopme nt" w s mcl ud d U1 t mphasiz d
sound e nvi ronm nt 1 a nd coJogi l prin ipl s in la nd u s . griculture ,
forestry, min ra l e xtra ti o n, n rg y pr du t1 n , t _ It provided
environme ntal guidelines to be us d by dministrators and resource
managers when formul a ting a nd impl menting programmes, and lay down
an institutional structure for environmental management by the Central
and State Governments. The basic approach taken by the Seventh Plan
32 Environmental Law
11

(1985-90) was to emphasize sustainable development in harmony with

the environment, as the federal gove rnment had recognized the negative
effects that development programmes were having on the environment.
The Plan called for the government and volun tar y agencies to work
together to create environmenta l awareness. The Seventh Plan recognized
that the nation ' s planning for economic growth a nd socia l well-bring in
each sector must also work to secure improvement in environme ntal
quality. The leaders of the country had realized that poverty and under-
development, as opposed to development ac tivities , had led to m any of
the country ' s environment problems. The Eight Five Ye ar Plan (1992-97)
gave an important place to the environment by moving it to the fourth
category of subjects examined in the text. The Plan stated: "Systematic
efforts have been made since the Sixth Plan period of integ rate
environmental considerations and imperatives in the planning process in
all the key socio-economic sectors. As ~ result of sustained ende avour,
planning in all major sectors like industry, science and technology,
agriculture , energy and education include environmental considerations".
The Ninth Plan (1997-2002) has emphasized "Growth with Social Justice
and Equity ". The Joint Forest Management and Community Forestry have
been specially emphasized in the Plan. The Tenth Plan (2002-2007 &
further) is on the similar lines.

3.3. Role of government

3.3.1. Five Year Plans

The first five year plan promoted protection and improvement of ecological
and environmental assets as a necessary short and long te rm
developmental goals. Administrative mechanisms were altered to ensure
integrity, efficiency and economy as laid down in prevention of corruption
Act (1947). Changes were made in economics and industrial management
in order to secure plans aims . But until fifth plan it was not 1dmitted the
importance of environment protection. It was observed that "the . hysical
environment is a dynamic, complex and inter--connected system in whi h
any action in one part affects othe rs. There is a lso inter dependence f
living things and their relationships with land, a ir and water. Pla nning for
harmonious development recognizes the unity of nature and man. Such
planning is possible only on the basis of a comprehensive appraisal of
environmental issues, particularly economic and ecological.

Therefore, introduced the [Link] aspect into the planning and

development. The planning commission also pointed out that it is the
obligation of each generation to maintain the productive capacity of the
environment which leaves some healthy environment to its successors.
 Environment and Development Law and Policy 33

There it is necessary to introduce environmental issues which are~vital for

national well being in the fifth five year plan (1974-79) the importance of
involvement of National Committee on environmental planning and co-
ordination in major industrial decisions is stressed. The plan also stressed, .
if balance is maintained between development planning and
environmental management then pursuit of development goals would not
reduce the quality of life. In this context the minimum needs programmme
received fairly high priority which was expected to minimize environmental
degradation in rural areas and reduce poverty levels.

In sixth five year plan (1980-85), a chapter is included on Environment

and Developmental and ecological principles in land use agriculture,
forestry, marine exploitation, mineral extraction, fisheries, energy
production and human settlements, it lays down an institutional structure
for environmental management in the central and state government. It
forms a guideline to administrators and resource managers in fo!mulating
and implementing programmes and projects. In the section on Ecology
and Environment the causes for environmental degradation is mentioned
as there is no consideration of the costs of environmental degradation at
the policy making level, there is lack of long-term perspective in
development planning, all agencies tend to maximize their own profits
and ignore the costs, they were imposing on society at large , while a
community pending on a resource for its subsistence both then and in the
future thus has a stake in its conservation, an entrepreneurs were only
interested in quick profits, even when this led to the destruction of the
resource base, the need to take out a subsistence living had ·led to the
cultivation of marginal land, the overgrazing of depleted pastures. the
over felling of forests, and the destruction of the national resource base,
damage to producttvity and scenic beauty due to mining , brick making
and other similar activities protection of ecological assets is one f th
goals of the sixth five year plan" .

The seventh five year plan (198 5-90)14 emphasized on u t m bl

development . Du to the pressur on the proj ct planner nd m n r
to pursue singl · handedly dev lopmental activities loo th sight of
environmental aspects got n glect d nd t r its realizati n it took about
a decade and urg nt r medi l m a ur s wer n ded. In th words of the
plan environmental pollution is serious hazard in India. It has both
direct and indirect effects on h alth . Air and water pollution from industrial
and community sources is the most important health hazard in India
resulting also in destruction of natural and marine resources and also
spoiling the scenic ·beauty of the attractive places like beaches. To improve
the quality of environment and to create environmental awareness the
34 Environmenta l Law

plan called for government a nd voluntar y age ncies and also involveme nt
of the public. Poverty and unde rdev lopme nt s opposed to developme nt
activities had led to ma ny nvi ronme ntal prnblems . Thus the seventh
plan recognized that the nation's pla nning for economic grow th and social
well-being in ach s ctor must alwa ys ta k note of the need to protect
environme ntal resou rces, a nd mu t work to secur improvement m
environmental quality. Thus plan emphasized in prevention of air and
w ater pollution and waste

The Eighth five year plan (1992-97) due to unce rtain political condition in
India came out in1992 rather than 1990. The plan h a s given more
importance to environment by moving the subject of environm ent to the
fourth category of subjects. Since Sixth plan efforts were made to in tegrate
environment issues in the planning process in all the key socio - economic
sectors resulted in sustained planning in all major sectors like industry,
science and .. echnology, agriculture, energy and education including
environmental consideration. The-planning commission set up an expert
committee to formulate long - term sectoral policies. The committee also
noted that the environmental problems were continuing to cause serious
concern. The environmental degradation was seriously threate nmg the
socio--€conornic progress and the life support system w as being damaged
beyond repair. The plan suggested eight major tasks i. e . to protect restore
and regenerate degraded environment and increase the prod uctivity and
to generate employment through these activities , to decentralise control
over nature and natural resources, to develop and disse minate an
understanding of nature, to formulate a national policy for the environment
and design a n a ppropriate institutional and legal frame work in su port
of the policy, to ens ure co-ordma te a nd integrated gove rnment act1 n
aimed a t conse rving na ture a nd ma king sust inabl u e f n tur l
resources, to ma ke ind ivid uals and mstitutions mor c ount bl
actions impinging on the rmvnon mont a nd to monitor th . t t
e nvi ronment.

The major highlights of th achiev ments in th nv1ronm

8th plan ar for ab· tem nt of polluti n activity n ral
b a rd has been improv d t,o urvey pollu i n for Pl
pollut1on, submi ion f n envu nuu. nt· l ~l t
units, adoption f cl a n to :huolou1 m ' 10 ll s ·~
and analysis of nvironrn ut· l Jata, n nt t 1d
pollution control and m nit nng , ,c n mt m0tr um nts hk nh n m nt
of cess rates on water co1 un pu n, pollutlon contr l quipm n . pollution
abatement equipment, b1odive r i y n ~ cv ti n Pl n ls nsmed public
participation , launc hi ng a n w ·ch m .. Pa rya va ra m Va hini ,
 Environment and Development Law and Policy 35

Environmental education, training and information. Govexnment has

enunciated policy statements on abatement of pollution and on
conservation, attention was given to make pollution control laws during
eighth plan period on implementing India s international obligations like
Rio-agreements,

The ninth five year plan strengthened the central pollution control board.
The proposed activities are bio-monitoring for assessment of pollution
and health of aquatic system, water quality monitoring, soil pollution
monitoring, epidemiological studies for formulation of standards based on
h 1th considerations, environmental audit promotion of infrastructure
and capacity upgradation programme industrial pollution control and
prevention projects, the common effluent treatment plants (CEJP) , adoption
of clean technologies in small scale industries including waste water re-
use and recycling. Ninth plan proposes the preparation of statistical data
and reports on status and trends in environmental quality. India being
mega bio-diversity country, with the signing of the convention on biological
diversity, it was proposed to formulate strategies like Taxonomic surveys,
creation of national data-base, strengthening of administrative
infrastructure of India. India being signatory to the UN convention to
combat desertification the convention is likely to enter its implementation
phase during ninth plan. A scheme was provided for promoting
environmental awareness. It is aimed at providing conservation of
biosphere reserves, mangroves and wet lands. The need for comprehensive
bio- diversity legislation has been recognized and process of drafting is
commented during 9th plan period. A separate bio- diversity cell is
proposed; legislation finalized relating to protection of plant varieties. The
ninth pla n also envisages the strengthening of the ENVIS centers ,
strengthened the s_tate pollution control boards by, increasing th ir
responsibilities. A comprehen ive legislation is proposed during ninth
plan . The labeling of envi ronmental fri ndly products b gr ntin
ECO MARK helps in pollution abatement. The supp rting infr
for th National Environmental Tnbunal was pr vided durin
plan.

The 'D nth fiv ye r pl n :) mph iz s on mpl tin

in 9th pl n and intr d .ti un of f w n w ~ h m . 'I h mm n
effluent treatm nt pl nt h m will b nh n h m s with
International co-operation und -r e - st r ti n, w t r h manag ment,
Planning Commission, 10th fiv y . r pl· n 2- 7) water nd energy
sectors, bio-diversity, climate- change, ozone layer pxotection~ land
degradation etc with the help of India Canada Environmental facility,
Global environmental facility, schemes under the clean development.
36 _ __ ---~--~~==:-I
Mechanism the developed coun ne .
.
.
t. shaving
.
t redit by investing i
comm•·tment of green house
.n developing countries in
.

gases reduction can ge c HG ission like renewable energy

schemes. They would re~uce Gd t' ~z::On of energy sources etc . An
sources, efficient conversion an u I t be established in NOIDA ,
l 1t botanical gard n is
International qua Y

Zoological survey of India dunng e

~:n
d/ hr t n d plants of the country.
near Delhi , to cons rve t~e end~ng ~ ent~
p
includes conser v tion of
nd wet lands shaJ I be
e nda nger d species . Conservation of ~~n~ove~ ~nvironme nt and Forest
str ngthened in tenth plan. Coimbatore ar e r o Nation 1 Ri ve r
w a s adopted in 2001 and . resolutions adopted b~ th~ River and lake
Conservation Authority to improve the ~usta1nab1lity o d to b e cleaned
cleaning programmes. All major polluted nvers w ere targete . . d
by 2007 A decentralized approach to sewage 1n e · t rception , d1vers1on an
_ .
treatme~t were to be adopted also in small colonies or housing societ~es
Root zone treatment/constructing wet land technologies are co 5t e_f~ect1 v_e ,
low cost and are resource generating. These were also to be utih zed_ in
improving flows in rivers during dry seasons. The sources_ ~f pollution
would be addressed more aggressively through the local mun1c1pal b odies
Institutional arrangements at the state level were be strengthened for
effective and timely implementation of the programme various ini ti a Uves
are taken to tackle the solid waste management 10th plan .

The National Development Council, the country's highest policy making

body on 19 December 2007 endorsed thel 1th plan document . The p lan
has specific national and state level targets to help in monitoring the
progress 160 of the various social sector programmes. In all, targets have
been proposed at national level and at the state level with regard to
poverty eradication, education, health status of women and children ,
infrastructure and environment. The goal of the plan is to invest in our
people to enable them to become active participants in econon1ic growth
process. Eleventh five year plan provides opportunity to restruc · ure poll i
to achieve a new vision based inclusive growth. Dr. Singh sa1 i th Ia n
is designed to reduce poverty a nd focus on bridging the various
that continue to fragme nt our society. The 11th plan i aimed t putlin
the economy on a sustainable growth (with a growth rate of appr xim t l
10% by the end of plan period) . Too many people till lack ace to basic
services such as health, clean drinking wat r, sanitation and edu ation
facilities without which they cannot l im their har in the benefits of
gro~h which reflects the tr ngth of ur on my and environment.
India's concern for environmental i ues i · growing along the lines of .,,.
global concern. While in a short run there may seem to be a trade-off
between envi~onmental sustainability and economic growth, in longer
run, recourse 1s taken to the complementarities between environmental
 Environment and Development Law and Policy 37

sus~abili~ and human wellbeing. The development strategy in 11th

plan 1s sensitive to devastating effects of water pollution and deforestation
threats of climate changes and .should ensure that threats and trade-off~
are appropriately evaluated. The main elements of the programme are .
provision for basic services like water supply and sanitation, enactment
of public disclosure law and community participation law in institutionalize
citizen's participation. The area's like health, water management, drinking
water, urban infrastructure and agriculture are responsibility of states
and the states will have substantial assistance from the centre.

The 11th plan aimed at significant improvement in the area of

environmental protection. The socio-economic targets of 11th plan are
increasing forest and tree cover by 5 percentage points, attaining WHO
standards of air quality in all major cities by 2011-12, treating all urban
waste water by 2011-12 to clean river waters and increasing energy
efficiency by 20% points by 2016-17. State governments should take
determined steps to improve air quality in all major cities. As our rivers
and water bodies are seriously threatened by unrestricted discharge of
effluents, water must be fully treated . This should receive priority attention
from state government in areas of large urban and industrial concentration.
Appropriate policies are aimed to be designed and implemented to increase
energy efficiency and thus limit the harmful effect of carbon combustion
on the environment. Despite of many problems several environmen~
policies, institµtions and laws were enacted as a result of five year plans.
Eighth plan, though ·importance was given to environment overall
developmental activitjes are much focused. Especially 9th, 10th and1 lth
plans covered major environmental protection activities. Thus India has
made sincere efforts in protection and improveme~t of environment .
·'

3.3.2. Forest Policy

The basic issue is to protect the forests, wherever they are situated within
the boundaries of the nation. The F<?rest Policies in India aim at three
main areas in the context of protection and preservation of the forests .

Toe principal aim of forest ~hey must be to ensure environ~ental _s ~ility

and maintenance of ecological balance including atmosphenc eqwlibnum,
which are vital for sustenance of all life forms, human, animals and plan~.
Toe derivation of direct economic benefit must be subordinated to this
principal aim.
The first Forest Policy was adopted by Govt. of India r_esolution of
19tb October 1894. The main thrust areas were to ensure mam~nance of
adequate forest cover for general well being of the couritry, meetmg needs
38 Environmental Law

of local people and after meeting local needs maximum revenue collection.
However, over harvesting of timb r during the two world wars resulted m
considerable degradation of forests.

An independent & de mocratic India saw a lot of n w politica l initiatives .

Large for st areas of princ ly states and "zammdaris" were ta ken a nd
adoption of the Forest Policy of 1952 which recomm od ed that 33% of
th total land area of the countr y should b brought unde r Fores't r tree
c ver. lt provided detailed guidelines for manage ment and protect10 of
forests and wildlife .

The National Forest Policy of 1952 was inadequate to redu ce forest

depletion . Forests being a state subject, there was no serious e ffort made
for the preservation and conservation of the forests

National Forest Policy of 1988:

A new revised national policy introduced in 1988 which was called

"National Forest Policy 1988" and was placed in the Parliament on 7th
December, 1988 was approved in the House. •

(11) Basic Objectives:

The basic objectives that govern the national forest policy a~e the following :

(i) Maintenance of environmental stability through preser a ·o~ and ,

where necessary, restoration of the ecological balance that has b e
adversely disturbed by serious depletion of the forests of the country

(ii) Conserving the natural heritage of the country by pr erving th

remaining natural forests with the vast variety of flora and faun .. .
which represent the remarkabl biologic l diver~ity nd g n ti -
resources of the country.

(1il) Checking soil erosion and denudation m th ca t c hm nt . .. tL s .t

ri vers, lakes and res rvoirs in th int r t f oil . . nd w t r
conservation, for mitigating flood s nd ctr ught nd t r th
retaidation ot iltation of re rvoirs.

(iv) Checking the xte n .. 1 n f s· 11d dun )~• m the de rt areas of

Rajasthan and a long Lh co stal tra :ts.

(v) Increasing substantially th forest/tre c v r in the country through r

massive afforestation and 8 ci l for try progranunes, especially on

all denuded, degraded and unproductive lands.
 Environment and Development Law and Policy 39

(vi) Meeting the requirements of fuel -wood, fodder, minor forest produce
and small timber of the rural and tribal populations.

(vii) Increasing the productivity of forests to meet essential national

needs.

(viii) Encouraging efficient utilization of forest produce and maximizing

substitution of wood .

(ix) Creating a massive people's movement with the involvement of

women, for achieving these objectives and to minimize pressure on
existing forests.

Appraisal of the National Forest Policy 1988:

It is beyond doubt that this policy is comprehensive. Yet the policy does
negate some of the important areas. The appraisal is intended to give the
positive and the negative areas in the [Link] are:

(a) The Positive Areas:

(i) This policy considers the importance of conservation of the

forests, which is a national wealth.

(ii) The policy emphasizes that 113rd of the plains and 213rd of
the hilly regions must be covered with forests.
(iii) This policy reiterates the need to carry out afforestation, social
and farm forestry on a large-scale to see the results.
(iv) This policy recognizes the customary privileges that belong
to the people living in the forests and has enacted clauses to
protect the rights and concessions of these people.
(v) The policy also tries to prevent the proble m of encroachment
of the forest lands by better monitoring .

(vi ) There are efforts taken in the policy to counteract any f rm of

political intervention .

(vii ) This policy does not take up "pro-industri l" stand, but
focuses more on the cons rv tion of th tor sts.
(b) The Negative Areas:

(i) There is no scope for peoples participation in the policy and

no effort has been made to ensure the co-operation of the
people, neither urban nor rural.
40 Environmental Law

(ii The p !icy h mbiti u. pro ramme , but there is a lack of

strong m c hin ry Lo o -ordinat ~ [Link] activitl P,S o f the
d p rtm nl.

(iii) The for st policy h not b en r gion sp cifi c .

(iv) There is dearth of programmes for spreading awareness about

the programmes.

(v) The forest policy does not in any way hx any targets , nor does
it prescribe any sure-fire methods for the success of he
programmes.

The forest policies of India are evolving with the times . Of course , there
are differences among the policy profiles during the [Link] times, starting
with the British Rule in India and coming to the latest stage of liberalization
of _the Indian economy. To consider any policy to be useless a nd obsolete
would be to jump to wrong conclusions.

The policies have been hig hly time and circumstance -- specific . Hence ,
the forest policies in India have served their purpose , but were a little
rigid in their content to change to the demands of the changing times. It
would be proper to take note of the legislative significance of the forest
policies-the forest officials are nor endowed with enough powers to purush
the offenders.

Though the Forest Policy of 1952 was considered to be incompatible with

the changing circumstances, we must look at the policy as being in its
infancy. But with regard to the next policy of 1988, the policy ha no
doubt been very comprehensive , but it lacks clea r-cut idea nd is not
futuris tic in its approach

3.3.3. Conservation strategy

The Na tional Cons e rvation Stra tegy a nd th , Poli cy

Environment and Development r in rn pon to th n
down th guidelines that will help t weav envir nm nv l
into th fabric of our nation al lif and t our dev lopm nt pr lt 1s n
expr s ion of ur ommitm ut for r 1ie nting poh j . · nd
with the envirnnmentc 1 p rL·1 ct.' v .

In recognition of th nvuo nm nt l µ1 t ti n , v n u
regulatory and promoti n l m , ~w · h vo b -n t k n m ur country
over the past tw nty year . Th , in lud U1 t ll w in
 Environment and Development Law and Policy 41

3.1 Legal

• The Wildlife (Protection) Act, 1972, amended in 1983, 1986 and 1991.
• Th~ Water (Prevention and Control of Pollution) Act, 1974, amended
in 1988.
• The Water'(Prevention and Control of Pollution) Cess, Act, 1977,
amended in 1991 .
• The Forest (Conservation) Act, 1980, amended in 1988 .
• The Air (Prevention and Control of Pollution) Act, 1981, amended in
1988.
• The Environment (Protection) Act, 1986 .
• The Motor Vehicle Act, 1938, amended in 1988 .
• The Public Liability Insurance Act, 1991 .
• A Notification on Coastal Regulation Zone, 1991 .

Strategy for Conservation of Environmental Resources

The following strategy will be adopted for conservation of environmental resources

in India:

1. Land Degradation:

The following steps will be taken to reduce land degradation:

(i) Encourage adoption of science ·based and traditional sustainable

land use practices through research and development.

. (ii) Pilot scale demonstrations and farmers' training.

(iii) Promote reclamation of wasteland and degraded forest land through

formulation and adoption of multi-stakeholder partnerships involving
the land owning _agency, local communities and investors.

(iv) To reduce desertification through action plans.

2. Forests:

The following strategy for conservation of forests will be followed:

(i) To formulate an innovative strategy for increase of forest and tree

cover from the present level of 23 percent of the country's land
area, to 33 percent in 2012 through afforestation of degraded forest
 42 Environmental Law II

land, wasteland and tree cover on private or revenue land.

Key elements of the strategy would include:

(a) The implementation of multi -s takeholder p a rtnerships

involving the forest departm nt, local communities and
investors, with clearly defined obligations and enti tlements
for each partner, following good governance principles, to
derive environmental livelihood, and financial benefits

(b) Rationalisation of restrictions on cultivation of forest species

outside notified forest areas.

(c) Enabling farmers to undertake social and farm forestry where

their returns are more favourable than cropping .

(d) Universalization of the Joint Forestry Management System

throughout the country.

(e) Formulating an appropriate methodology for reckoning and

restoring the environmental values of forests which are
unavoidably diverted to other uses.

(0 Giving legal recognition of the traditional rights of forest

dwelling tribes and provide long-term incentives to the tribal 's
to conserve the forests.

3. Wildlife:

In respect of wildlife conservation, the following steps would be pursued:

(i) Expanding the Protected Area Network _of the country It must b .
ensured that the overall area of the network in each b iogeogr phi
zone would increase in the process.

(it) Paralleling multi-s takeholder p rtn rs hips tor affor t ti n . F'ur h r,

formulating and implementing similar partn rships for nhan m ,nt
of wildlife habit in con e rvation a nd community r rv s.

(iii) Encouraging eco-touris rn wildh fe tte .

(iv) Implementing measur · f >r apuve br di I a nd rel s in to the

wild identified endangered spe ies.
4. Biodiversity:

According to the National Environment Policy, a large- scale exercise has

 .. . ..
..
...
..
43
.. -·
Environment and Development. Law afld Policy
.
been already completed for providing inputs towards a National
Biodiversity Action Plan. However, following measures would be taken to
protect biodiversity at national level.

(i) Strengthen the protection of biodiversity hot s pots.

(ii) Pay attention to the potential impacts of development projects on

biodiversity resources and natural heritage .

(iii) Genetic material of threatened species of flora and fauna must be

conserved on priority.

(iv) Conferring intellectual property rights for traditional knowledge .

5. Wetlands:

Wetlands , natural and man-made, freshwater or brackish , provide

numerous ecological services. They provide habitat to aquatic flora and
fauna . But now wetlands are under threat from drainage and conversion
for agriculture and human settlements, besides pollution.

The key strategy for action will include the following steps:

(i) To set up a legally enforceable regulatory mechanism for identified

valuable wetlands to prevent their degradation and enhance their
conservation.

(ii) To formulate and implement sustainable tourism strategies for

identified wetlands thorough multi-stakeholder partnerships
involving public agencies, and local communities.

(iii) To take explicit account of impacts c:m wetlands of signifi ant

development projects during environmental appraisal f u h
projects.

6. Environmentally Sensitive Zones:

Environmentally s nsitive zon s m y be defin d ar with i ntih

nvironm ntal r source. with incomparabl v lu , whi h r quir p i 1
attenti n for th ir on· 1v ti on ln ord r t n rv and nh n these
resources, withou imp ding l gitim t so io- n mi d v lopment of
these area , th f II wing c t 1 n will b t k n .

(i) Identify and giv l gal status t • nvironment Uy Sensitive Zones in

the country.

(ii) Formulate area development plans for these zones on a scientific

44 Environmental Law

basis with ade quate pa rticipation by the loca l com munities.

(iii) Create local in titution for th environmental management of such

areas.

7. Strategy for Sustainable Mountain Development:

Mountain ecosystems play a key role in provid ing forest cove r, feed ing
pe rennial river systems, conserving genetic dive rs ity a nd providing an
immense resources base for livelihoods throug h sustainable tourism .

There has been significant adverse impact . on mountain ecosystems by

way of deforestation , submergence of river valleys, pollution of freshwater
resources, despoiling of landscapes, degradation of human habita t, loss of
genetic diversity, retreat of glaciers, and pollution.

Keeping in view, the following action _ plan for .sustainable mountain

development would be taken up:

(i) Adopting best practice norms for infrastructure construction m

mountain regions to avoid or minimize damage to sensitive
ecosystems and despoiling of landscapes.

(ii) Encouraging cultivation of traditional varieties of crops and

horticulture by promotion of organic farming and enabling farmers
to realize a price premium.

(iii) Promoting sustainable tourism through adoption of best practice

norms for tourism facilities and ~ccess to ecological resources.

(iv) Developing strategies for particular unique mountains capes.

8. Strategy for Sustainable Coastal Resources:

Coastal environmental resources provide habitats for m a rine spec ie~. which
in turn comprise the resource b ase . for large numbe rs of fisher folk .
protection from extreme weathe r e vents, a resoUice b se for sustainabl
tourism, agricultural and urban live lihoods.

In recent years, there has bee n s ignificant degrada tion of co t l resour1.;

for which the proximate causes include poorly planned hun1 n s ttl m nts ,
improper location of industries and infr uucture, polh ti n fr m industries ,
and settlements, and over exploita tion o( living na tur l resources .

In keeping with these adverse effects on coastal resources, the following

measures would be taken:
 Environment and Development Law and Policy 45

(i) To mainstream the sustainable management of mangroves into the

forestry sector regulatory regime, ensuring that they continue to
provide livelihoods to local communities.

(ii) To disseminate avail able techniques for regeneration of coral reefs,

and support activities based on application of such techniques.

(iii) To embody consideratio ns of sea-level rise in coastal management

plans.

(1 ) India has passed Coastal Regulation Zone (CRZ) notification in

February 1991 and Integrated Coastal Zone Management (ICZM) to
ensure protection to coastal environmental in India. Their rules and
regulations are firmly founded on scientific principles. Specific
projects should be consistent with the approval of ICZM plans.

9. Strategy for Conservation of Freshwater Resources:

The fresh water resources comprise the river systems, groundwater and
wetlands. Each of these has a unique role and characteristic linkage to
other environmental entities.

(A) River Management:

The following comprise elements of an action plan for riv er

management:

(i) Promoting integrated approaches to ma nagement of river

basins by the concerned river authorities, considering upstream
and downstream inflows and withdrawals by reason.

(i i) Monitoring authorities will check pollution loads and natur

regenera tion capaciti es to e ns u re adequate fl ws n
adherence to wat r quality standards .

(iii) To consider nd mitig t th imp cts n riv un .

(iv) To consider mandating the in tallation f w t r ving l sets

nd taps in the building by laws t urb n ntI .
( B) Groundwater:

Gr und wat r i pi ut iu und rground quit rs in many parts of

th country. Th wat r L b l h s b n f Hing rapidly in many areas
of the country in rec nt y r . This is l rg ly due to withdrawal for
agricultural, industrial nd urban use in excess of annual recharge.
 Environmental Law
46
In urban areas, apart from withdrawals for domestic and industrial
use, housing and infrastructure such as roads prevent sufficient
recharge. In addition, some pollution of groundwater occurs due to
leaching of stored hazardous waste and use of agricul tural chem1cals
in particular pesticides.
The following action plans are required in this direction :

(i} The efficient use of groundwater would accordi ngly, require

that the practice of non-metering of electricity supply to
farmers be discontinued.

(ii) To promote efficient water use techniques such as sprinkler

or drip irrigation among farmers .

(iii) To support practices of contour bunding and revi val of

traditional methods for enhancing groundwater recharge .

(iv) To mandate water (rainwater) harvesting in all new

constructions in relevant urban areas to enhance groundwater
recharge.

(v) To support research and development in cost effective

techniques suitable for rural drinking water projects.

3.3.4. Water policy

National Water Policy is formulated by the Ministry of Water Resources of
the Government of India to govern the planning and development of
water resources and their optimum utilization. The first National Water
Policy was adopted in September, 1987 . It was reviewed ~md updated in
2002 and later in 2012.

The main emphasis of National Water Policy 2012 is to trea ~ ,vater as

economic good which the ministry claims to promote its conse1v tion
and efficient use . This provision intended for the privatization of w a ter -
delivery services is being criticized from various quarters. The policy a lso
does away with the priorities for water allocation mentioned in 1987 and
2002 versions of the policy.

India accounts for 15% of the world population and about 4% of the
world's water resources. One of the solutions to solve the country's water
woes is to link the rivers.

India has been successful in creating live water storage capacity of about
253 billion cubic meter (BCM) so far. In a first, the ecological needs of
 Environment and Development Law and Policy 47
•
river have also been taken into consideration.

Salient features of policy

The major provisions under the policy are:

1. Envisages to establish a standardized national information system

with a network of data banks and data bases

2. Resource planning and recycling for providing maximum availability

3. To give importance to the impact of projects on human settlements

and e 1vironment.

4. Guidelines for the safety of storage dams and other water-related

structures

5. Regulate exploitation of groundwater

6. Setting water allocation priorities in the following order: Drinking

water, Irrigation, Hydropower, Navigation, Industrial and other uses.
The water rates for surface water and ground water should be
rationalized with due regard to the interests of small and marginal
farmers.

7. The policy also deals with participation of farmers and voluntary

agencies, water quality, water zoning, conservation of water, flood
and drought management, erosion etc.

8. To ensure access to a minimum quantity of potable water for

essential health and hygiene to all citizens , available within ea ,
reach of the household.

9 To curtail subsidy to agricultural electricity users.

10 . Se t ing up of Water Regulatory Authority.

11 . To k p asid a portion of th riv r fl ow t m t th i al

ne ds - nd t nsur that th low nd hi h fl w r l as s rr nd
in tim lo ·ely to the natur l n w r 1m

12. To giv statutory powers to W t r Us r A o i ti ns to maintain

the distribution ystem.

13. Project benefited families to bear part of the cost of resettlement &
rehabilitation of project affected families .
48 Envnon tn ntal Law
•
14. T r move h lorg , di spc rity b tw n tip l tions for water supply
in urban ar as nd in TIH c I ar c: S .

15. 'Ii p rt Nati na l W t r Fr m w rk L w

Critics

1. P radigm sh ift in appro ch from service proV1de r of water to

facilitator of service.

Policy does not deter use a mong those who can afford to pay fo
wateL

3. PPP mode may not ensUie equity.

4. Policy does not follow polluter pay principle, rather it gives incentives
for effluent treatment.

5. Policy was criticized for terming Water as an economic good.

On a positive note, the draft upholds the ecological needs of a river o e

first time , stating that water be set aside in proportion to a river's a
fiow regime. "A portion of river flows should be kept aside to meet
ecological needs ensuring that the low and high flow releases e
proportional to the natUial flow regime, including base flow contribution
in the low flow season through regulated groundwater use ,"

"The new policy includes some welcome change in priorities for water
be ueated as a community resource under state ownership. and g
priority for base river flows and wa te r as a social good for b sic d....·.. .L.4'-...... ~
water and sanitation needs.

Module - Ill

4. Population. Environment and Development:

4 1. Popul lion explo 10n and nvuonm ntal i p .t

4Z IJ pulati n n dev l pm nt

4 .3. P pul t i 11 anrt susta i n- hi d .v 1lopm nt

4.1. Population explosion and environmental impact

Population Explo ion re f r~· th udd n nu r ptd n in th size of
population, e pe i lly hum r. n pul ti n. It i n unch eked gmwth of
human population caused s c It ot:
 Environment and Development Law and Policy 49

1. increased birth rate,

2. decreased infant mortality rate, and

3. Improved life expectancy.

A drastic growth in population beyond normal limits is called population

explosion . It is more prominent in under-developed and developing
countries than in developed countries. Population explosion mainly refers
to the surge in population post-World War II . However, in context to India ,
it r fers to the rapid increase in population ·in ·post-Independent era.

The rapid increase of human population is putting an incredible strain on

our environment. While developed countries continue to pollute t he
environment and deplete its resources, developing countries are under
increasing pressure . to compete economically and their industria l
advancements are damaging as well. The demands that this growth places
on our global environment are threatening the future of sustainable life
on earth. One of the largest environmental effects of human population
growth is the problem of global warming. Some scientists fear that global
warming will lead to rising sea levels and extreme weather conditions in
the future . In order to support the growing population, forests are being
destroyed at an alarming rate. Humans also continue to put a great
demand on the . natural resources of our planet. Many non-renewable
resources are being depleted due to the unrestrained use of fuel and
energy. Many parts of the world also suffer from a shortage of food and
water. The growth of population puts larger demands on our already
limited resources . The environment on earth is suffering from the growth
of g lobal population. The depl~tion of resources and biodiversity, the
production of waste, and the destroying of natural habitat are serious
problems that must be addressed in order to ensure that life on earth will
be sustainable throughout the n ext century. Keywords : Industrial
a dvancements, Land a nd soil degradation, global warming , Climat
chang e, Air and water pollution, De foresta tion , Physical nvironm nt.

Effects of Population Growth on our Environment

One of th factors responsible fo r envir nm nt d gr d a ti n i p u1 ti n

growth or population density. In p rticul r, opula tion d n it pl ys th
most important rol in shaping th nomi nvir nm nt. Its ffects
are felt on the natUial environm

1. Generation of Waste:

Due t.o his destructive activities. man has dumped more and more
50 Envi.r nm nta l La w

waste in environm nt. As the mnn-m d w t is not tra nsformed,

it causes d gr dati n a nd th c pacity nvironment to absorb
more w ast i r du d . Furth r, w ast ads to a ir and water
pollution .

2. Threat to Biodiversity:

Due to his destructive activities, man has extracted more and mar
minerals from the earth. Animals have been hunted and plan ts
have disappeared. There has been loss of biodiversity. These have
led to ecological imbalance.

3. Strain on Forests:

Man has established new housing colonies. National highways and

hydropower projects have been built and forests have been wiped
out. These destructive activities have increased and led to ecological
imbalance.

4. Urbanization:

Rapid growth of population has led to urbanization which has

adversely affected environment. Due to population pressure, natural
resources in the cities are depleted at a fast rate

Moreover, population does not have proper sanitation facilities and

pure drinking water. As a result, the health of the people is adversely
affected. No doubt, urbanization reduces pressure on the rural
environment, but it brings with if environmental damages through
industrial growth, emissions and wastes.

5. Industrialization:

Underdeveloped countries are following the polic f he v

industrialisation which is causing environmental degradauon . Th
establishment of such industries as fectilizers, iron and steel ,
chemicals and refineries have led to land , air and w ater pollution .

6. Land Degradation:
•
Intensive farming and excessive use of fertilizers and pesticides
have led to over-exploitation of land and water resources. These
have led to land degradation in the form of soil erosion, water
logging and salination.

7. Transport Development:
 Environment and Development Law and Policy 51

Environmental degradation is also due to ttansport development in

.. the different parts of the world. The automobiles release huge
quantiti s f poisonous gases such as carbon monoxide, nitrogen
oxides and hydrocarbon . Th d v 1 pment of ports and harbours
have l d to oil spills from ship adversely affecting fisheries , coral
reefs, mangroves and lands apes.

8. Climatic Change:

Climatic changes are irregular due to green house gases. ~e thin

skin of air that surrounds the planet is being affected by human
activities as never before . Urban people are still being exposed to
unaccepted levels of toxic pollutants. Further, forests are still being
degraded by acid deposition generated by faraway industries, and
greenhouse gases continue to accumulate in the atmosphere .

9. Productivity:

Environmental degradation not only harms health but also reduces

economic productivity. Dirty water, inadequate sanitation, air
pollution and land degradation causes serious diseases on an
enormous scale in developing countries like India.

These, in turn, reduce the productivity levels in the country. To take

specific instances, water pollution has led to declining fisheries in
rivers, ponds and canals in both urban and rural areas. Water
shortages have reduced economic activity in towns , cities and
villages.

4.2. Population and development

Economic development is the process by which a nation improves the

economic, political , and social well-being of its people.

Economic development is the continued, active efforts of th publi an

private sectors of a country that promote the standard f living and
co omic health of the country. Generally, s ountry b m s m r
economically developed, the well-being of its itizen impr v s in a lot of
ways : th ir health , education, s urity, he dom, and s 11-sufficiency.

The effect of population growth an be positive or negative depending on

the circumstances. A large population has the .potential to be great for
economic deve lopment: a tt r all, the more people you have, the more
work is done , and the more work is done, the more value (or, in other
words, money) is created. So, surely this can be nothing but good. There's
 Environmental Law
52
lot of kids - more kids mea ns more
a reason that farm ers often have a
workers.
ln c un ry with abundant resources
But, unfortun t l . it t n't th t im pl
mor peopl i , good t hing . But
nd mon untry , rh P
with limited resour es. Lim1 t8d
th t i n't l L

r r pu 1 t10n U Pr .-, urP,. O the resource tha t do

C'

t M r o l man m mou ths to fe d , mor Jalth ca re and

uc· tion s rV1ces
. to proV1d . , and so fa rt h - so , population can be r:1 mixed
g.

Population can be a limiting factor to economic developmen1 b ecause of

the following reasons:

1. Population reduces the Rate of Capital Formation:

In underdeveloped countries, the composition of p opula tion is

determined to increase capital formation . Due to higher birth rate
and low expectation of life in these countries, the percentage of
dependents is very high. Nearly 40 to 50 per cent of the population
is in the non-productive age group which simply consumes and
does not produce anything.

2. Higher Rate of Population requires more Investment:

In economically backward countries, investment requireme ts are

beyond its investing capacity. A rapidly growing population increases
the requirements of demographic investment which at the same
time reduces the capacity of the people to save. Thi creates
serious imbalance betwee n investment requirements and th
ava ilability of investible funds. Therefore , the olume f u h
investment is determined by the rate of population gr h in
economy. Some economists hav estim ted that for
the present level of per capita incorn , 2 p r c nt t
national income must be inves ted if popul ti n grows
per annum .

3. It reduces per Capita Availability of Capital :

The larg ize t popul tion , l o r .d u s i r pit v ·tabili ty f

capital in l s d v op d untrie . Thi , tru in r sp ct of
underd v lop d ountri . wh r pit l i ar and its supply is
inelastic. A rapidly QT win p pul t1 n t c. ct to a progressive decline
in the availability of c pital p r work r. Thi furth r leads to lower
productivity and diminishing r turns.
 Environment and Development Law and Policy 53

4. Adverse Effect on per Capital Income:

Rapid growth of population directly effects per capita income in an

economy. Up to 'income optimizing level', the growth of population
increases per capita income but beyond that it necessarily lowers
the same. In a sense, so long as the rate of population growth is
lower than the per capita income, rate of economic growth will rise
but if population growth exceeds the rate of .economic growth . usually
found in the case of less developed countries, per capita income
must fall .

5. Large Population creates the Problem of Unemployment

A fast growth in population means a large number of persons coming

to the labour market for which it may not be possible to provide
employment. In fact, in underdeveloped countries, the number of
job seekers is expanding so fast that despite all efforts towards
planned development, it has not been possible to provide
employment to all. Unemployment, underemployment and disguised
employment are common features in these countries. The rapidly
rising population _makes it almost impossible for economically
backward countries to solve their ·problem of unemployment.

6. Rapid Population Growth creates Food Problem:

Increased population means more mouths to feed which, in tum.

creates pressure upon av?ilable stock of food . This is the reason;
the under-developed countries with rapid growing population are
generally faced with a problem of food shortage. Despite all their
efforts for raising agricultural production, they aie not able to e
thei r growing population.

Food scarcity effects economic development in two respects. Fir

inadequa te supply of food leads to und m ourishment f th
w hich lowers their productivity. It further r u th p:rod.u .· n
capacity of th workers, econdly; th efi f c:rnrnt;:::el t
import food g r in which pla nn
foreign han resourc s .

7. Population and Farming :

In les d ve l ped untri s th m J nty f pul ti n liv sin, where

agriculture is their mainst y. Th gr wth f population is relatively
very high in rural areas and it h s disturbed the land man ratio.
Further it has increased the problem of disguised unemployment
54 Environmental Law

and reduced per capit farm product in such economies, as the

number of landless work r has I rgely increased foJlowed by low
rate of their wages.

The low farm productivity has reduced the propensity to save and
invest. As a result these economies suffer largely for want of
improved farm techniques and ultimately become the victim of the
vicious circle of poverty. Thus retared farming and the process of
overall development.

8. Population and Vicious Circle in Poverty:

Rapid growth of population is largely responsible for the perpetuation

of vicious circle of poverty in underdeveloped countries. On account
of rapid growth of population people are required to spend a major
part of their income on bringing up their children.

Thus savings and rate of capital formation remain low, reduction in

per capita income, rise in general price level leading to sharp rise
in cost of living. No improvement in agricultural and industrial
technology, shortage of essential commodities, low standard of living.
mass unemployment etc. As a result the entire economy of an
underdeveloped country is surrounded by the vicious circle of poverty.

9. Reduction in Efficiency of Labour Force:

The labour force in an economy is the ratio of working population

to total population . If we assume 50 years as the average life
expectancy in an underdeveloped country, the labour force is in
effect the number of people in the age group of 15-50 years. [Link]
the demographic transitional phase, the birth rate is high and th
death rate has declined and due to which the larg r rcentage f
total population is in lower age group of 1-15 years, w ; i h is m ll
labour force implies that comparatively there are few p ' s n..., t
participate in productive employment.

1 O. Rapid Population declines Social Infrastructure:

A welfare state line India is pl dged t m t so ial n , ct f the

people adequately and for this, th governm nt has to spend a lot
on providing basic facilities like ducation, housing and medical
aid. But rapid increase in population make burde n all the more
heavy.

11 . Adverse Effect on Environment:

 Environment and Development Law and Policy 55

Rapid population growth leads to the environmental change. Rapid

• population growth has swelled the ranks of unemployed men and
women at an alarming rate. Due to this, a large number of people
are being pushed in ecologically sensitive areas such as hill sides
and tropical forests . It leads to the cutting of forests for cultivation
leading to several environmental change . Besides all this , the
increasing population growth leads to the migration of large number
to urban areas with industrialization. This results in polluted air,
water, noise and population in big cities and towns.

12. Obstacle to Self Reliance:

The excessive population growth is an obstacle in the way of

attaining self or reliance because it obliges us to importance and
more food articles in order to meet the needs of increasing millions
and mi the other hand, it cuts down export surplus heavily. Reduction
in exports makes us unable to pay for imports and we have to
depend on foreign aid. Thus, the aim of self reliance cannot be
achieved without controlling the population.

1 3. Declining trend of Agricultural Development:

In less developed countries, mostly people live in rural areas and

their main occupation is agriculture and if the population increases
the land-man ratio disturbed. Per capita availability of land . for
cultivation declined from 1.1 acre in 1911 to 0.6 acre in 1971 in our
country which makes the size of holdings very small. The small size
of holdings makes adoption of modern ·t echnology means of irJigation
and mechanization impossible.

This .a lso leads to the occurrence of disguised unemployment and

underemployment in the agricultural sector. It leads to congesti n ..
and moreover to reduction in land availabl for farming wellas
tor build in g houses, fa c tories, hospitals, shopping ntr
educational institutions, roads and r ilway tr cks t . Thu . th
growth of population retards gricultur 1 d v 1 m nt n
many other problems .

14 . Growing Population lowers Standard of Living:

The standard of living i d t rmin d by th ir p r pita income.

The factor aff ting per pit in m in r lation to population
growth equally apply to the tandard of living. The increase in
population leads to an increased demand for food products, clothes,
houses etc ., but their supply cannot be increased due to the lack of
56 Environmental Law

cooperate factors like raw materials, skilled labour and capital etc.

The cost and prices ris which r is th cost of livmg of the masses.
This brings th t nd rd of living low. Poverty breeds large number
of childr n which incr a es pov rty further and vicious circle of
poverty. Thus, th cons quenc of population growth is to lower the
tandard of living .

4.3. Population and sustainable development

In 11 the world population surpassed the 7 billion mark and , according
to most commonly quoted population projections - the medium variant
published by the United Nations Population Division - the world population
will grow to over 9 billion by midcentury. Accordingly, between now and
2050 about as many people will be added to the planet as inhabited the
planet as recently as 1950. However, contrary to common perceptions,
demogiaphic change in the medium- and long-term is not destiny. Whether
the world population will indeed grow to over 9 billion by midcentury and
level off at about 10 billion by the end of the century, or grow instead to
over 10 billion by midcentury and to about 16 billion by the end of e
century depends on policies that countries pursue today. The differences
between the former (the medium-term variant of the United ations
population projections) and the latter (the high variant of its population
projections) is but half a child per woman. Every decade of delay in
reaching replacement-level fertility implies continued , s ignific an
population growth for decades to come. Globally, over the past decades.
life expectancy has been increasing and fertility rates have being falling
in most of the developing world, with some exceptions, particularly am ng
the least d eveloped countries. But even if fe rtility were to fall immediatel
to replacement level , popu lations would continue to grow for some t.J. e
This is explained by the population momentum , or inertia w po ul
growth : Because of high tef tility in th p st, many countri .'.:'
relatively large number of women in reproductive ge , nd ve n ..
woman has a relatively small number of children , c untnes will
to have a growing population for ye t
have long -term impli ·ations.

Population growth increase nvironmental PI -ur . R l u nship - m r

complex than sugge d by sim l m l Out f th 7 bllhon peopl th t
currently inhabit th w orld; or th n 1 biUi n ntmu t live in uem
poverty. Meeting peopl ·s n ds ll f , m r balan ed di tributi n of
economic resources, but it lso d pend n high r levels of economic
output. Today, for example, food in urity is till l rgely a question of
access - the capacity of people to purchase food on th market pl ces -
 Environment and Development Law and Policy 57

but f~ security is also rapidly becoming a question of availability _ the

capac1t_Y of the a~cultural sector to produce food in sufficient quantities.
Accordin~ to estimates by the Food and Agriculture Organization (FAO),
world agncultural output will need to grow by no less than 70 per cent
to feed a world population of 9 billion which will most likely be reached
before 2050 .Pove rty reduction, employment creation and food securit
depen~ ~n rising economic output - in agriculture and outside agricultur~
- and nsmg economic output will further increase pressures on all natural
resources. More arid more countries are suffering from a rapid degradation
f land , a high rate of deforestation, and water shortages. Climate change
fur t her contributes to an · increasing intensity and frequency of natural
disasters, changes in precipitation and droughts. The poor, who most
directly depend on the natural resources, are most vulnerable to these
changes and least able to cope with these changes at the same time. And
it is often the women and children that are most negatively affected
(Tarazona and Gallegos, 2011). Discrimination of women, _older persons,
indigenous communities and migrant workers can further exacerbate these
challenges. It is true that globally, in terms of impacts, th~ patterns of
production and consumption prove to be more important than the number
of people in achieving a world that sustains present and future generations.
However, rising expectations and poverty reduction efforts will put
additional pressure on the planet,· unless we can find more efficient,
"greener" ways to provide all people with decent lives. Our future depends
on rapidly lowering greenhouse gas emissions and environmental impact
more generally. The transition to the green economy requires fiscal
incentives and disincentives, as well as environmental laws and
regulations, which encourage the internalization of environmental _c osts,
and place a more realistic price on es~ential and finite natural resoUices.
Environmental impact can also be reduced through more rigorous product
standards (rule out standby functi9ns of appliances, reduce packaging of
products, eliminate plastic bags in supermarkets, set emission targets for
ve h icles , set ins ul a tion sta ndards for buildings , etc .) and more
conscientious consumer behavior (shut off appliances that a1e not in use,
turn off ca r engines on c.u rbsides, use public transport when possible,
prevent excessive cooling a nd heating of buildings, etc.),. Togeth r, th se
measures must promote the development of alternative, renewable and
clean energy sources, and encourage the u e and development ol resour~ -
efficient technologies. Finally, a mar balan ed distribution f economic
resources - which is a growing hallenge in an in r . asingly unequ~l
world- could reduce poverty with a less than proportionate increase m
economic' output. In this sense, greater soc1•a1 equity,
· together with slower
_
population growth, can also reduce enviro~mental pressures. Pop~auo~
growth increasingly differs between countnes: Pressures are mounting
58 Environmental Law

the world's poorest countries .The growth of the world population masks
considerable differenc s betw n countries. Over the past decades the
heterogeneity amongst countri and within countries has increased
considerably as r gard population growth . Population Matters for
Sustain bl Developm nt the middle-income countries; popuJation growth
remains high in th world's least developed countries. However, it is
om what lower in the 1 ast developed countries in Asia - particularly
becaus of falling fertility levels in Bangladesh, the most populous country
in this group - than it is in the least developed countries in Africa .Owing
high population growth, the least de'(eloped countries have a large and
rapidly expanding youth population. Today, about 60 per cent of their
population is under the age of 25, and by 2050 the population in this age
group will expand by an additional 60 per cent. The large and growing
youth population of the LDCs is one of their most significant productive
resources. As young people enter working age, they enter the period of
their lives when they contribute most to economic development, provided
that they benefit from good health, adequate education and employment
However, an expanding youth population makes it diificult for countries
to maintain or increase per-capita spending on young people - for example,
on health and education - and it requires economic development that
creates employment opportunities for them. Over the next forty years, the
population of the least developed countries is projected to double, their
working-age population will increase by about 15 million persons per
year, and their labor force will expand by about 3~ thousand persons per
day. These trends pose particular challenges, considering that about 50
per cent of the current population lives in extreme poverty and 80 per
cent of the labor force is only vulnerably employed ; Basten et .
Unemployment is particularly high amongst the younger generations, and
many recent graduates find only low-paying and precarious employment
in the informal economy. To create full employment, raisP household
incomes and combat poverty, the least developed countries re ire higher
and more sustained economic growth. But higher economic g10"' th will
also increase environmental pressures within the current development
regime . This is particularly true where economic growth is based n
extractive and carbon-intensive industries but also where agricultural
production further erodes natural resources. The world's least de loped
countries are more strongly affec d by environmental degra ati n than
most other develop_ng ountrie , and this, long with high - puJ uan
growth, affects their prospects for developn ent. Betw n 000 and 008,
real economic growth in the 1 ast dev loped ountri s w a1m st as
high as in other developing countri s, 6.6 per ent pe.r annum on average,
but adjusted tor environmental effects and population gtowth, the real
rate of economic growth was almost half of what it was in other dev loping
 Environment and Development Law and Policy 59

countries, namely 2 .5 per cent per annum .. The combination of

environmental effects and high population growth undermine the capacity
of the LDCs to catch up with the income levels of the more advanced
developing countries on a sustainable basis. Addressing both challenges,
therefore, is an important policy concern. Human activity has already
affected every country, every species and every eco-system of the planet.
We have even altered the world's climate . The impoverished populations
in poor countries, who contribute the lea~t to climate change , are most
negatively affected by it.s effects. But they also suffer from an unsustainable
attern of agricultural production and forestry management, which also
cont ibutes to water depletion and soil degradation and gradu a lly
undermines their livelihoods. To date , many developing countries in
particular are less concerned with greenhouse gas emissions but all,
including the poorest, are seriously concerned with the depletion and
degradation of natwal resources. Small Island developing States, for
example, are emphasizing the importance of ocean resowces, and a large
number of other countries are concerned with land degradation, water
depletion and desertification. The transition to the green economy - which
must include effo~ to encourage more sustainable agriculture, aquaculture
and forestry, in addition to low carbon industries - is therefore important
for countries at all stages of devel~pment. Failure to promote green
economies, and more sustainable consumption and production, means
that the world cannot cater for a growing population without devastating ·
effects on the natural environment, which would ultimately undermine
the very basis of economic and social development. The green economy
is therefore not a contradiction to, but rather a necessity for, sustainable
poverty reduction as well Population growth differs within countries: Rapid
urbanization changes vulnerabilities and creates new opportunities The
w orld is undergoing the largest wave of urban growth in hist ry: al1eady,
ove r hall the world 's population is living in towns and cities, and by 2030
this number will swell to almost 5 billion . with urban growth c n ntrat
i.n Africa and Asia . This is on of th most important demogr phi chang
m the coming decades. Today, th shar of urban populati n in th wruld'
least developed countries i till 1 w in m ison - 0 per nt th
total popul tion - but th r pul ti n r wth i r hi ·h.
a t about 4 per cent per annum . At th1 r , th u rban populati n in l st
d evelop d countri w ill ubl m 1 J t h n O y r . Rur 1-urb n
migration is often motiv t d by rtuniti . but economic
opportunities ar als lo ~ ly r l t t .nvironmental onditions.
Flooding in the delta of B ngl d h , nd droughts in the horn of Africa,
for example, threaten livelihoods in th rural areas and encourage many
to search for a more prosperous life in the urban centers. And as
environmental shocks inCiease in frequency and intensity, they can further
60 Environmental Law

accelerate rural-urban migration. Under the right circumstances , a nd w ith

the right supports, migration can be a strategy to ada pt to changing
environmental conditions, rather than a failure to ada pt. Changin g spatial
distributions of populations are changing e nviron m ental impacts and
human vulnerabilities. The majority of the w orld's poor still live in the
rural areas , but the number of poor people who live in the urban areas is
rapidly growing . Over one billion people live in u rban slums , which are
typically overcrowded and lack basic services such as clean water and
sanitation. As urban areas grow, they can impinge on the environment,
through urban sprawl, and they are also associated with a n incre a sing
consumption of resources , including water. However, the incrense in
consumption is attributable largely to a small share of househ olds w ith
relatively high income levels. Urban slum residents are at the s ame time
exposed to environmental vulnerability, living in places at risk of clima te
change impacts and other environmental hazards, and pollution levels
are generally much higher, exacerbating many health risks. Those low-
lying cities and towns situated near the sea will face heightened risks
from storm smges and flooding, while those in drylands are prone to
experience increased water stress and episodes of extreme heat. The
capacity to cope with these risks is lower in small and medium cities and
towns where incomes (private and public) are low and protective
infrastructure is lacking. Despite the challenges that are associated with
urbanization, it can be a powerful driver for sustainable economic, social
and environmental development. As populations grow, it makes economic
and environmental sense for people to move closer together in Population
Matters for Sustainable Development

Population Matters for Sustainable Development urban areas. Urbanization

enables countries to provide essential services, including health and
education, at lower costs per capita , and also allows for economies of
scale in the development of vital infrastructure, including hou;:;in g , water,
sanitation and transport . Urbanization can also reduce t.' ner gy
consumption, particularly in transport and housing , and it can help to
ease population presswes in rural areas. Proactive planning for urban
g1owth, particularly the employment, land and housing needs of the
growing urban poor, is the appropriate policy response to rapid urbanization
and a critical component to integrating the three pillars of sustainable
development. As population growth in wban areas is often the result of
natUial population increase, one of the most effective ways to slow urban
growth is to reduce unwanted fertility in both rur~ and urban areas.
Furthermore, efforts to improve the lives of the growing number of urban
poor and develop urban areas and industries must be complemented by
efforts to reduce poverty in, and foster the development of, rural areas.
 Environment and Development Law and Policy 61

Strong backwards and forwards linkages between the rural and urban
areas are the backbone of strong development. Changes in the size of
i. populations are inevitably bringing about changes in the age-structure of
populations. Countries that have high population growth have youthful
populations, whereas the countries that have low population growth have
an aging population . Changing age structures affect not only patterns of
consumption and production; they also affect the balance between, returns
to and investment in the different factors of production . They have
important implications for labor markets, wages and income distribution,
as well as current and future output. The effect of age-structural changes
on the environment is complex and strongly depends on the effects of
these changes on overall economic growth. If aging societies manage to
seize the second demographic bonus (that is, make effective use of a
growing number of old but active and productive persons) or if youthful
societies manage to seize the first demographic bonus (that is, make
effective use of a large and growing number of young people) , it can
contribute to economic growth and social development. The ability to
realize these potential demographic bonuses strongly depends on adequate
investment in human capital, alongside investment in physical and natural
capital; the consequences of reaping the demographic bonuses on the
environment, in turn, depends on policy choices to tran~ition to the green
economy and .sustainable development pathways. In sum, while changes
in population size have important implications for sustainable development ,
other population dynamics, which have received even less attention, have
too. How many people will be added to the world matters; it also matters
where they will live, how old they are and what they do , produce and
consume.

Module - IV

5. Constitutional Perspectives:

5.1. Fundamental Right

5 .1.1. Right to environment
5.1.2. Enforcement of the right
5.1.3. Directive principles and fundamental duti s
5.1.4. Legislativ power

5.1 . Fundamental Right

The Fundamental Rights ar detin d s th basic human rights of all
citizens. These rights, defined in Part III of the onstitution. apply
irrespective of race, place of birth, religion, caste, creed or sex.
 Environmental Law
62 •
Fundamental Rights may well be called the· soul of our Constitution.
These are the very basic rights th at are universally re cognize d as
fundamental to human exis t e n ce and ind ispensable for h u man
development. It guarantees civil liberties such that all Indians can lead
their lives in peace a nd har mony as citize ns of India. They include
individual rights com mon to most libe ral democracies, such as equality
before the law, freedom of speech and expression, freedom of association
and pea ceful assembly, freedom of religion, and the right to constitutional
remedies for the protection of civil right.

The Constitution guarantees six fundamental rights to Indian citizens as

follows:

1. Right to Equality (Articles 14 - 18):

Equality implies provision for equal oppor-tunities persons for their

self-development without any distinction of religion, caste , sex,
wealth or status. The Right to Equality has been guaranteed by the
Indian Constitution in Articles 14-18.

• Article 14 - Art. 14 of the Indian Constitution say, "The State

shall not deny to any person equality before the law or equal
protection of the laws within the territory of India". All are
equal before the law. That means, no one can claim any special
privilege. Nobody is above the law of the land.

• Article 15 - Prohibition of discrimination on grounds only of

religion, race, caste, sex or place of birth.

• Article 16 - Article 16 of Indian Constitution ensures equality

of opportunity for all citizens in public employment. It is further
provided that in case of public: employment the State cannot
make any discrimination on· grounds only of reliaion, race ,
sex, descent, place of birth or residence

• Article 17- Article 17 of Indian Constitution declares the

abolition of untouchability and prohibit its piactice in any
form . The enforcement disability a ri ing out of 'Untouchability '
shall be an offence punis h ble in ac ordance with law.

• Article 18 - Article 18 of Cons titu tion of India prevents the

State from conferring of title. Besides, no Indian citizen shall
accept any title from any foreign state. This is considered to
be an important step towards the establishment of social
equality in India.
 Environment and Development Law and Policy 63

2. Right to Freedom (Articles 19 - 22): There are six rights under this
category:-

• Right to freedom of Speech and Expression.

• Right to freedom of peaceful Assembly with out arms·.
• Right to form associations or Unions.
• Right to Move freely throughout the territory of India .
• Right to Residence and settle in any part of the Country
• Right to practice any Profession or carry any Trade ,
occupations.

3. Right against Exploitation (Articles 23 - 24)

• Article 23 - Article 23 of Indian Constitution declares

Prohibition of •traffic in human beings and forced labor.

• Article 24 - Article 24 of Indian Constitution states that

the employment of children less than 14 years in factories or
mines, are punishable offences.

4. Rights to freedom of Religion (Articles 25 - 28):

• Article 25 - Article 25 of Indian Constitution clearly

enumerates Particulars of freedom of conscience and free
profession, practice and propagation of religion.

• Article 26 - Article 26 of Indian Constitution specifies the

freedom to manage religious affairs.

• Article 27 - Article 27 of Indian Constitution states the

Freedom as to payment of ta>ces for promotion of any parti ular
religion .

• Article 28 - Article 28 of Indian Con titution includ s fI ed m

as to a ttendan at r ligious instru tion r r li i u w orship
m rtain due tion instituti n .

Exception - 1,xc ,pt w it nit i in h int re t f pub li rd r, morality,

1

health or the r c nd1ti ns, v rybo y h s th ri ht to prof ss, pr ctic

and propagate his r ligi n tr l ly.

5. Cultural and Educational Rights (Articles 29 - 30):

The Constitution provides that every community can run jts own
64 Environmental Law

institutions to preserve its own culture and language. The minorities

are also given the right to establish and administer educational
institutions of their own.

• Article 29 - Protection of interests of minorities .

• Article 30 - Right of minorities to establish and adminis ter

educational institutions

6. Right to constitutional Remedies (Articles 32 - 35)

Article 32 - When a citizen finds that any of his fundamental rights

has been encroached upon, he can move the supreme court, which
has been empowered to safegua1d the fundamental rights of a
citizen .

Forms of Writ check -

The Supreme Court under article 32 and the High Court 226 can
issue the writs of habeas corpus, mandamus, prohibition, and
quo-warranto.

Habeas Corpus- It is a Latin word means "To have a body of" . It is

an order issued by the Court to a person who has detained another
person to produce the body of the latter before it.

Mandamus - It literally means "We Command."· A mandamus is an

order from a court to an inferior government official ordering the
government official to properly fulfill their official duties or correct
an abuse of discretion.

Prohibition - Means "to forbid ." It is issued by the higher court to

lower court to prevent the latter exceeding its jurisdiction or usurping
a jurisdiction that it does not possess.

Quo- Warranto - It means "By What Authority." It is issued by the

court to enquire into the legality of claim of a person to a public
office.

Certiorari Certiorari means to "certify". It's a writ that orders to

move a suit from an inferior court to superior court. It is issued by
a higher court to a lower court or tribunal either to transfer a case
pending with that to itself or squash its order. · Tilis is generally
done because superior court believes that either the inferior court
had no jurisdiction or committed an error of law. Thus, certiorari is
a kind of curative writ.
 Environment and Development Law and Policy 65

Related Cases

1. Ramesh Thappar v. State of Madra,1950 SC

2. Sakal Papers ltd v union of india 1962 SC
3. Bennett Coleman v. UOI, 1972 SC
4. State of Kerala v. bharat kumar 1998 SC
5. Bobby International v. Ompal singh 1993 SC

6. Indra sawhney v. union of india 1993 SC or Ma nda]

Commission case

7. Kedar nath Bajoria v. State of west bengal,1953 SC

8. John Vallamattom v. Union of India,2003 SC
9. Saurabh Choudhri v. Union of India,2003 SC

10. Anuj Garg v. Hotel Assn. of India,2007 SC

11 . Ratilal Panachand Gandhi v. Territory of Bombay. (Hereafter

the Ratilal case)

12. Durgah Committee, Ajmer v. Syed Hussain Ali. (Henceforth

the Durgah Committee case)

5.1 .1 . Right to environment

Of late the worldwide society has amplified its alertness on the relationship
between environmental dilapidation and human rights abuses. Exercise
and enjoyment of Human Rights by all the people is necessary for 'full
d~velopment as human beings. Human Rights help us to enl~ge ur
inherent traits, aptitude, talent and scruples to m eet our objects and
religious needs . Life , livelihoods, culture and socie ty, a re elementary
aspects of human s ubsiste11ce and their m aintenance is a fundam ntal
human right. Devastation of environment is therefore a violation of human
rights. And to extreme human rig hts cannot be enjoyed at all if th
nvironment becomes impaired past a certain grave plane.

The central foundation of the mod rn notion of human right is th 1 4

·u nive rsal De 1 ration of Huma n Rights nd th m ny hum n rights
documents a nd tre t1 th t h v follow d it. A rding to th Stockholm
proclamation - "Humans h ve th fund m ntal right to freedom, equali!,Y
and adequate conditions of life, in an environme nt of a quality that permits
a life of dignity and w ell-being, and a solemn responsibility to protect and
improve the e nvironment for prese nt a nd future generations" . '·
66 Environmental Law ,.

At the 1992 United Nations "Conference on Environment and

Development" (UNCED), informally known as the Earth Summit the Rio
Declaration on Environmen t and Development , also known as Rio
Declaration was a produced. [Link] Declaration comprised of 27 principles
and proposed to funnel potential sustainable development around the
world. Principle 1 says - "The role of humans: Human beings are at the
centre of concern for sustainable development."

Scholars in this field have proposed at least three different concepts of

environmental rights

• environmental rights as separate human rights

• · environmental rights as encompassed within previously established
human rights
• environmental rights as rights of the environment in and of i tself,
regardless of its effects on people

The first concept conceives of environmental rights as disconnect human

rights independent conventional human rights. Article 11 of the San
Salvador Protocol to the American Convention on Human Rights, which
was adopted in 1988 and entered into force in November 1999, can be
attributed as a good example wherein it states that "everyone shall have
the right to live in a healthy environment and to have access to basic
public services."

The African Charter states that: "All peoples shall have the right to a
general satisfactory environment favorable to their development. "
Environmental rights appears as a separate rights in the report of the
World Commission on Environment and Development which proposes it
as one of the legal principles for environmental protection and sustainable
development stating that: "All human beings have the fundamental right
to an environment adequate for their health and well-being." F'in,11ly, it
should be noted that, , although the environment as a human right is
barely mentioned in the documents, elements of this right can be found
in the Universal Declaration of Human Rights as well as in both Covenants.

The second concept of environmental rights conceives of such rights as

entrenched in existing human ri.g hts such s the right to life, the right to
health or the right to property. This concept has restricted but mounting
support from human rights bodies mostly at the regional level. An example
is the right to property enshrined in Article XXIII of the American
Declaration of the Rights and Duties of Man also known as ''American
. Declaration".
 Environment and Development Law and Policy 67

The third concept of environmental rights treats such rights as belonging

to the environment itself. In this "ecocentric" view environmental rights
are human rights only in the sense that they require humans to enforce
them. As this form of rights has no precedent in either codified or
customary international law or in common law judges have not yet ruled
on its applicability nor are they likely to do so. Courts are habitually
reserved to implement rights which they have minute experi ence
adjudicating and may be even less inclined to enforce rights which have
yet to be firmly established as law.

Man "has acquired the power to transform his environment in countless

ways a nd on an unprecedented scale . Both aspects of man's environment,
the natural and the man-made, are essential to his well-being and to the
enjoyment of basic human rights - ·even the right to life itself."

Related cases

Subhash Kumar v. State of Bihar,

In the instant case the Court observed that 'right to life guaranteed by
article 21 includes the right of enjoyment of pollution-free water and air
for full enjoyment of life.' Through this case, the Court recognised the·
right to a .wholesome environment as part of the fundamental right to life.
This case also indicated that the municipalities and a large number of
other concerned governmental agencies could no longer rest content with
unimplemented measures for the abatement and prevention of pollution.
They may be compelled to take positive measures to improve the
environment.

Rural Litigation and Environment Kendra, Dehradun vs. State of Uttar Pradesh

In this case, the representatives of the Rural Litigation a nd Environment

Kendra, Dehradun w rote to the Supreme Court alleging that illegal lime
stone mining in the Mussorie-Dehradun region w as causing damag t
the fragi le eco -systems in the area. The Court treated thi 1 tt r s
public int r st petition under Article 32 f the onstitution. And also
several committ hav b n appoint d fm th full inspecti n of ille al
mining sites. All the commit · th n lu i n th t th lime
ston quarri wh se • dvms ly thos h uld be
allowed to op rate but th ·:1 too ft r furth 1 in p tion nd all. h refore,
the Court ordered the closure of a 1 _umber of limestone quarries. Although
the Court did not mention any violation of funda mental right explicitly but
ad impliedly admitted the adverse effects to the life of people and involved
a violation of Article 21 of the Constitution.
68 Environmental Law .

M.C. Mehta vs. Union of India (Vehicular Pollution Case)

A matter regarding the ve hicular pollution in Delhi city, it w a s held to be

the duty of the Gove rnme nt to see that the air did not become contaminated
due to vehic ular pollution . The Apex court aga in confirming the right to
healthy e nvironme nt as a basic human right and stated that the right to
clean air also stemmed from Art 21 w hich referred to right to life . This
case has served to be a m a jor landmark becau se of which lead-fre e petrol
supply was introduced in Delhi. There was a comp le te phasing out old
commercial vehicles more than 5 years old as direc te d by the courts.

T.N. Godavarman Thirumulpad v. Union of India

In this very recent case concerning conservation of forests, Justice Y.K.

Sabharwal, held that, considering the compulsions of the States and the
depletion of forest, legislative measures have shifted the responsibility
from States to the Centre. Moreover any threat to the ecology can lead to
violation of the right of enjoyment of healthy life guaranteed under Art 21,
which is required to be protected. The ~onstitution enjoins upon this
Court a duty to protect the environment.

Mur1i S. Deora vs. Union of India

In the instant case, it was pointed out by the Court that: "Since article 21
of the Constitution guarantees that none should be deprived of their life .
then why should a non-smoker become the victim of the whole process?
It was contended that smoking is injurious to health and may affect the
health of smokers but there is no reason that health of passive smokers
should also be injuriously affected. So, till the statutory provision is made
and implemented by the legislative enactment, it was held that it wo.u ld
be in the interest of the citizens to prohibit smoking in public places and
the person not indulging in smoking cannot be compelled to pa ssive
smoking on account of the acts of the smokers."

5.1 .2. Enforcement of the right

Inspite of numerous legis tation activities, the real state of the environme nt
continues to be gloomy. The rivers and the lakes continue to be choc ked
with sewage and industrial wastes . The air quality in some m ajru/ Metro
Indian cities (e.g . Delhi, Mumbai, J amshedpur etc.) has gained the dubious
distinction of being worse than that of the American cities like Chicago
and New York. What can the country do to re ve rse the process and restore
a balanced state of the environment?

Litigation is apparently an expensive affair. Environmental litigation is

 Environment and Development Law and Policy 69

more expensive than other types of disputes, since it involves expert

testimony , technical evidences and so on " Most of the State pollution
control boards suffer from inadequate expertise and funds to attain their
objectives. There is, therefore, a tendency to exercise gentle pressure on
polluting industries and pursue settlements outside the courts.

If the amended environment (Protection) Act is implemented seriously, all

the municipaltes and municipal corporation polluting the holy river wi11
have to the prosecuted. This Act, rightly, makes no distinction between
pri vate and public po1luters. But that would be taking a very restrictive
view of the law. The modem view is that the law must guide and help
people and establish a trend of acceptance. There is nothing fundamentally
wrong with out-of court settlement of certain environmental disputes. In
fact in some developed countries, like the U.S., a preference is shown
towards such a procedure

Three issues that are especially important for environmental legislation are:

-.:~1. The precautionary principle:

This principle has evolved to deal with risks and uncertainties faced
by environmental management. The principle implies that an ounce
of prevention is worth a pound of cure it does not ,PI~vent problems
but may reduce their occurrence and ,h~lps ensure contingency
plans are made. '

The application of this principle requires either cautious progress

until a development can be judged 'innocent', · or avoiding
development until research indicates exactly what the risks are,
and then proceeding to mirumize them. .

Once a threat is identified, action should be taken to prevent r

control damage even if there is uncertainly, about whether the threat
is real. Sotne environmental problems become impossible or costl
to solve if there is delay, therefore waiting for re earch and I g l
proof is not costless.

2. The polluter-pays principle:

In addition to, th obvious th pollut r p y t 1 th damaged caused

by a development thi principl also implies that a polluter pays for.
monitoring and policing. A problem with this approach is that fines
may bankrupt small businesses, yet be low enough for a large
company to write them off as an occasional overhead, which does
little for pollution control.
70 Environmental Law

There is, thus, debate as to whether the principle should be

retrospective. Developing nations are seeking to have developed
countries pay more for carbon dioxide a nd other emissions controls,
arguing that they polluted the globa l environment during the
Industrial Revolution, yet enjoy the fru its of invention from the era.

This principle, in fact, is more a way of alloca ting costs to the

polluter than a legal principle. This principle was adopted by OECD
member countries in 1972, at least in theory.

3. Freedom of" information:

Environmental planning and management is hindered if the public,

NGOs or even official bodies are unable to get information. Many
countries have now begun to release more information, the USA
has a Freedom of Information Act, and the European Union is moving
in this direction.

But still many governors and multinational corporations fear that

industrial secrets will ·leak to competitors if there. is too much
disclosure, and there are situations where authorities declare
strategic needs and suspend disclosure.

Difficulties in Enforcement of Environmental Legislation

Conclusion

Although several laws relations to environment have been enacted from

time to time (including national Green tribunal Act, 2010), but the overall
impacts of these Environmental legislations is not encouraging due to
various reasons well known to the pollution control authorities, polluting
industrial establishment ,N G O,s and people in general. .

Environmental laws have little chance of acquiring real objectiv .s unless

accompanied by a composite set of promotional measures, ranging from
direct financial subsidies to cost sharing, e.g. in installation of ETP's by
Polluting Industries. However, the most significant step will be to create
environmental awareness among people as a whole regarding their duties
and rights with regard to th protection of the Environment

5.1.3. Directive principles and fundamental duties

Directive principles

The Directive Principles of State Policy, embodied in Part IV of the

Constitution, are directions given to the state to guide the establishment
 Environment and Development Law and Policy 71
•
of an economic and social democracy, as proposed by the Preamble. They
set forth the humanitarian and socialist instructions that were the aim of
social revolution envisaged in India by the Constituent [Link]
state is expected to keep these principles in mind while framing laws and
policies, even though they are non-justiciable i_n nature. The Directive
Principles may be classified under the following categories: ideals that
the state ought to strive towards achieving; directions for the exercise of
legislative and executive power; and rights of the citizens which the State
must aim towards securing. Part IV, Articles 36-51 of the Indian constitution
coustitutes the Directive Principles of State Policy which contain the broad
directiv1:-:s or guidelines to be followed by the State while establishing
policies and laws. The legislative and executive powers ·of the state are
to be exercised under the purview of the Directive Principles of the Indian
Constitution.

Part IV, Articles 36-51 of the Indian constitution constitutes the Directive
Principles of State Policy which contain the broad directives or guidelines
to be followed by the State while establishing policies and laws. The
legislative and executive powers of the state are to be exercised under
the purview of the Directive Principles of the Indian Constitution.

Categories

The Directive Principles are divided into the following three categories:

Socialistic Directives: This part contains the directives for securing the
welfare of the people of India, equal distribution of the material resources
of the country protection of the fundamental rights of the children and
youth , equal pay for equal work, education etc.

Gandhian Directives: Under these directives are the guidelines for mganising
village Panchayat, prohibition of intoxicating drinks and cow-slaugh ter,
secure living w age, d ece nt standard of life , and to promote cotta
industries, to provide free and compulsory education to a ll childr n up t
14 years of age etc.

Liberal Intellectual Directives: In this action th r r guid lin s or uniform

civil code throughout the ountry and th 1 gi l tur t follow in i suing
orders or making laws .

Features

In a nutshell, the Directive Principles consist of the following guidelines

for the States:
72 Environmental Law
•
1. The State should strive to promote the welfare of the people.

2. Maintain social order through s ial , economic and political justice.

3. The State should striv towards removing conomic inequality.

4. Removal of inequality in statu and opportunities .

5. To secure adequate means of livelihood for the citizens .

6. Equal work opportunity for both men and women.

7. Prevent concentration of wealth in specific pockets through uniform

distribution of the material resowces amongst all the strata of the
society.
8. Prevention of child abuse and exploitation of workers.

9. Protection of children against moral and material abandonment.

10. Free legal advice for equal opportunities to avail of justice by the
economically weaker section.

11 . Organisation of Village Panchayats which will work as an

autonomous body working towards giving justice.

12 . Assistance to the needy including the unemployed, sick, disabled

and old people.

13. Ensure proper working conditions and a living wage.

14 . Promotion of cottage industries in rural areas.

15. The state should endeavour towards a uniform civil code for all the
citizens of India.

16. Free and compulsory education for children below the a _ie of 14years.

17. Economic and educational upliftment of the SC and ST nd th r

wea ke r sections of the society.

18. Prohibition of lcoholic drinks, recreational drugs, and cow slaught t

19. Preservation f th nvironment by s f gu rding the f re ts and

the wild lif .

20. Pmtection of monum n ts, pl c s nd obj ts of histoli and artistic

interest and national importan ·e ag inst destruction nd damage.

21. Piomotion and maint nance of international peace and security,

just and honorable relations between nations, r spect for
 Environment and Development Law and Policy 73
• international law and tr aty obligations, as well as settlement of
international disputes by arbitr tion .

Implementation of the Directive Principles

As m nti ned earli r, unlik the fund a mental rights which a r guaranteed
b th onstitution of Indfa, the Directiv Principl do not hav a le gal
sanction and cannot be enforced in a court of law. How ver, th tate is
making very effort to implement the Directive Princ ipl es m s many
s ctors as possible . Th noteworthy implem e ntation is th 86th
c nstitutional amendment of 2002 which inserted a new a rticle , Article
21-A making free education for childre n below the age of 14 compulsory
Prevention of Atrocities Act safeguarding the interests of SC and ST,
several Land Reform Acts, Minimum Wage Act (1948) , are a few other
examples of the implementation of the Directive Principles. Based on the
guidelines of the Directive Principles, the Indian Army has participated in
37 UN peace-keeping operations.

Fundamental duties

Originally, the constitution of India did not contain any list of fundamental
duties. In other words, enjoyment of fundamental rights was not conditional
on the performance of fundamental duties.

Democratic rights are based on the theory that rights are not .created by
the state. Individuals are born with right. It is on this _theory th t the
Indians before independence raised the slogan that "freedom 1s our birth
n ght

The socialists on the other hand, make enjoyment or rights condition l

the fulfillment of duties. They claim that "he who does not w rk ,' n ith r
shall he eat." The constitution of the world's first socialist countr , th t
Sovie t Union contains a list of fundamental rights immediat ly 11
by a list o f tu ndamentaJ duties. It i cl rly d th t th
of fundamental righ is condition l n th
ndam ntal du 1e .

w on th s oviet ml th t f11 n th
Jnd1 n on 1 u ion by 42nd am n m nt
fund m ~IJ I du IB n inod in Ar bl

List of Fundamental Outie

Art. ,-1A, 1 a r l IVA }f t} lndr II ,0 1\Slltuti II , s p ifi s th list f

fund am m l utJ s f th c 1uz01 lt s ~1 r " 1t ·h 11 b th duty of every
citizen of Ind1 :
74 Environmental Law

1.
to abide by the constitution and respect its ideal and institutions;

2. to cherish and follow the noble ideals which inspired our national
struggle for freedom ;

3. to uphold and protect the sovereignty, unity and integrity of India;

4. to defend the country and render national service when called upon
to do so;

5. to promote harmony and the spirit of common brotherhood amongst

all the people of India transcending religious , linguistic and regional
diversities, to renounce practices derogatory to the dignity of women ;

6. to value and preserve the rich heritage of our composite culture;

7. to protect and improve the natural environment including forests,

lakes, rivers, and wild-life and to have compassion for living
creatures;

8. to develop the scientific temper, humanism and the spirit of inquiry

and reform;

9. to safeguard public property and to abjure violence;

10. to strive towards excellence in all spheres of individual and collective

activity, so that the nation constantly rises to higher levels of
endeavor and achievement.

11. Who is a parent or guardian, to provide opportunities for education

to his child, or as the case may be, ward between the age of six to
fourteen years.(This fundamental duty has been added to the
Constitution of India by the 86th constitutional amendment in 2002)

Duties of the Citizen towards Environmental Protection

Prior to the Forty-Second Amendment, the Fundamental Law of the land

attached more importance on rights. The makers of the Constitution were
concerned about the moral and natural rights. The intention behind it
was that the citizens and the State would shoulder the re ponsibility to
protect the Constitutional order as their moral duty. As the time passed
the citizens became conscious about their rights nd thereby neglected
their duties. Rights and duties are very important elements of Law. They
correlated to each other in such a way that one cannot be conceived
without the otheL A right is always against someone upon whom they
correlative duty is imposed.
 Environment and Development Law and Policy 75
•
The Constitution (Forty~Second Amendment) Act, 1976 added a new part
IV-A dealing with "Fundamental Duties" in the Constitution of India Article
51-A (g) specially deals with fundamental duty with respect to environment
that: "It shall be the duty of every citizen _of India ~o protect and improve
the natural environment including forests, lakes, rivers and wild life and
to have compassion for living creatures".

Article 51 -A (g) refers to the fundamental duty of every citizen to protect

and improve "natural environment" . But in the present days the pollution
is caused not only by exploiting the "natural environment" .but otherwise
also. Nature has given us the gift of pollution free environment . The
fundamental duty imposed on every citizen is not only to "protect" the
environment from any kind of pollution but also to "improve " t h e
environment quality if it has been polluted. So it is the duty of every
citizen to preserve the environment in the same way as nature has gifted
it to all of us

In Rural Litigation and Entitlement Kendra v. State of UP Justice RN .

Mishra opined that "preservation of the environment and keeping the
ecological balance unaffected is a task which not only the government
but also every citizen must undertake. It is a social obligation and let us
remind every Indian citizen that it is his fundamental duty as enshrined
in Article 51-A(g) of the Constitution" .

In Kinkari Devi v. State Justice PD. Desai remarked: "There is both a

constitutional pointer to the state and a constitutional duty of the citizens
not only to protect but also to improve the environment and to preserve
and safeguard the forest, the flora and fauna, the rivers and the lakes and
all other water resources of the country. The neglect or failure to abide by
1 •

the pointer or to perform the duty is nothing short of betrayal of the

fundamental law which the state and indeed the every Indian is bound
to uphold and maintain" .

In L. K. Koolwa l v. State of Rajasthan a nd Qis Mr. [Link] moved th

H igh Court under Article 226 a nd highlighted t h at the Municip lity h as
failed to discharge its "primary d uty " resulting in the acut anitation
proble m in J aipur which is hazardous to the life of the citizens of Jaipur.
The Court explained the true scope of Articl 51-A in the following words:
"We can call Article 51 -A ordinarily as the duty of the citizens , but in fact
it is the right of the citizens as it creates the right [Link] of the citizens
to move to the court to see that the Sta te pe rforms its duties faithfully
and the obligatory and primary duties a re performed in accordance with
the law of the land. Omissions· or commissions are brought to the notice
of the court by the citizen and thus, Article 51-A gives a right to the
76 Environmental Law

citizens to move the court for the enforcement of the duty caste on the
state, instrumentalities, agencies, d partments, local bodies and statutory
authorities created under the p ticular 1 w of the s tate .

The court pointed out that "right and duty co- xi ts. Ther cannot be any
right without any duty and ther cannot b ny duty without any right" .
Insanitati n leads to a slow poisoning and adversely a ffects th life of the
citiz ns and hence it falls within the purview of Article 21 of the
constitution. It is the duty of the every citizen to see that rights which he
has acquired under the constitution are fulfilled .

The Court directed the Municipality to remove dirt, filth etc., flam the city
with in the period of six months. The Court made it clear that it is not the
duty of the court to see whether the funds are available or not. It is the
duty of the administration and municipal council to see that primary
duties are fulfilled . The Court concluded the judgment by observing that.
"If the Legislature or the State government feels that the law enacted by
them cannot be implemented then the Legislature has the liberty to scrap
it, but which remains on the statutory books will have to be implemented,
particularly when it relates to primary duty

In Goa Foundation v. State of Goa the Bombay High Court examined the
question of locus standi from the premises of the fundamental duties
under the constitution of India. In this case the petitioner was a society
registered under the law relating to registration of societies and their
members were citizens of India having fundamental duty under Article
51-A to protect and improve the natural environment including forests,
lakes, rivers and wild life and to have compassion for living creatures.
The question before the Court was whether such a society also has the
same duty. The Court answered this question in affirmative and held that
such a society also has the same duty. On the basis of this the petitioner
society was held to have a locus standi to move to the Court to prevent
ecological degradation, to formulate and implement prngran:me for
rehabilitation of environment and to restore ecological balance.

In Sitaram Chhaparia v. State of Bihar public inter st litigation was hled

by five persons, residents of a locality seeking directions flam the cou1t
for closure of tyre retreading plant in the residential ar a as the said
industry was em.i tting carbon-di-oxide gas and other obnoxious gases
from it.s furnaces ca ing harm to the environment of the locality. The
Patna High Court h ld that protecting the environment is now a
fundamental duty under Article 51-A of the Constitution and accordingly
the respondent.s were directed to wind up their industry and the State
respondents were obliged to ensure that.
 Environment and Development Law and Policy 77
lt

As regard the duty contained in Article 51 -A(g) of the Constitution i~

Abhilash Textiles v. Rajkot Municipal Corporation has held that notic~
asking the petitioner to stop discharging the effluents from the factory OD·
public road or drainage having natural environment on the pain of closing
the factory will be valid.

5.1.4. Legislative power

In India, the concern for environmental protection has not only been
r 2 ised to the status of fundamental law of the land, but it is also wedded
with human rights approach and it is now well established that, it is the
basic human right of every individual to live in pollution free environment ·
with full human dignity. In view of. the various constitutional provisions
and other statutory provisions contained in various laws relating to
environment protection, the Supreme Court has held that the essential
feature of "sustainable development" such as the "precautionary principle"
and the "polluter pays principle" are part of the environmental. law of the
country. When our constitution was drafted it did not contain any specific
provisions on environment and even the word "Environment" did not find
a place in the constitution; there are certain provisions which to great
, extent had direct bearing on the environment such as improvement of
public health , organization of agricultural and animal husbandry on
mode_rn and scientific lines and protection of natural monuments from
spoliation, disfigurement etc . Article 47 of the Constitution is considered
to be more important, because it imposes the primary duty on the State
to provide public with improved health, raised level of nutrition and
ultimately improved standard of living. Public health can be assured to
the public only by offering the ·safe and protected environment to live in.
This enabled the framers of our Constitution to be more conscious on the
environmental concern.

Legislative Powers in Environmental Matters

Under Indian federal system, governmental power is shared betwe nth

Union and the State gov rnments . P rt XI of th Constitu tion governs th
legislative and administrative relations betwe n the union and th st t .
Parliament has the ower to legislat fo r th whol country, whil th
State Legislatures are rnpowered tom k law f r th ir r sp tiv st te .
Article 246 of the Constitution divid s th ubj t ar s f l gi lation
between the union and t h stat s . Th union list (List I) in th seventh
schedule to the Constitution contains subjects over which parlia ment has
exclusive power to legislate . This include defence, foreign affair, atomic
energy, inter-state transportation shipping, major ports, regulation of air
traffic, regulation and development of oil fields, mines and mineral
78 Environmental Law

development and int r- tat riv r . Th Stat egislatures have exclusive

powers to I isl t with r p ·t to ubj ts in th ta te List (Lis t II) , such
as public h Ith and a nit tion , gri ulturc , w ter ·upplies, irrigation and
dr in and ti h ri . Und r th on urr n t lis t (Li t llI) b th Parliament
and t gisl tur h ve ov rl pping nd hared [Link] n ver "Orne
J tar a in luding forest, th prot c tion of wild lif , mines an d mineral
d v lopm nts not cov red in th union list , population con trol and fom1I 1
pl nning, minor ports and factories. P rliament has residua l pow e r to
l gislate on subjects not covered by the three lists . When a Central La. ,
conflicts with a State Law on a concurrent subjec t the former preva1Js. A
State Law passed subsequent to the Central Law will prevail , how e ver, 1f
it has received Presidential assent under Article 254 .

The parliament is also empowered to legislate in the 'national in terest' on

matters enumerated in the State List. In addition Parliament may e nact
Laws on State subjects, for States whose legislatures have consented to
central legislatures. Thus, the Water (Prevention and Control of Pollution)
Act of 1974 was enacted by the Parliament pursuant to consent resolution
passed by the State Legislatures . The division of legislative powers shows
that, there are ample provisions to make laws dealing with environmental
problems at the local level as well as at the national level, bu t under the
federal system, the Central Government controls the finances largely. It
may happen that when an industrial project is allocated to a particular
state , it may have some environmental impact in that state and thus it
may be opposed by the environment and planning department of the
stat.e concerned. On the other hand the Central Government may threaten
to withdraw the project from the State if its implementation is opp sed
and resulting into a conflict between development and environment. This
conflict is being taken care of by the Environmental Impac t Asses m n t
(EIA) which is an effort to anticipate measure and weigh th s
economic and eco system changes that may result from t',
project. In India, the need tor EI A h s been r ogniz n
planning commission by the Seventh Five Yea r Plan . H w v r, .·1stm
systam of administrative framework with its centrnliz d nvu nm
appraisal may lead to confli ct betwe n th pr i t uth rit1 ~ n
environmental authorities.

5.2. Environment: merging concepts and challenges

5.2.1. Polluter pays principle: b lut li b1lity ol hazard u Industry

5.2.2. Precautionary prin ·iple

5.2.3. Public Uust doctrine

 Environment and Development Law and Policy 79

5.2.1. Polluter pays principle: absolute liability of hazardous Industry

The Polluter Pays Principle was first introduced in 1972 by the Organization
for Economic Cooperation and Development (OECD) Guiding Principles
concerning International Economic Aspects of Environmental policies
where under the polluter was held responsible for the environmental
damage and pollution. Subsequently, the Rio Declaration laid down the
guidelines for sustainable development meaning thereby a strategy to
cater the needs of the present generation without compromising the needs
of the future generation . In furtt:ierance of the aim of sustainable
development Rio Declaration Principle 16 of the Rio Declaration enshrined
the E'olluter Pays principle stating that the polluter should bear the cost
of pollution.

The Polluter Pays Principle imposes liability on a person who pollutes the
environment to compensate for the damage caused and retuin th e
environment to its original state regardless of the intent.

The 'polluters pays' principle is the commonly accepted practice that

those who produce pollution should bear the cost.s of managing it to
prevent damage to human health or the environment. For instance , a
factory that produces a potentially poisonous substance as a byproduct of
its activities is usually held responsible for its safe disposal.

This principle underpins most of the regulation of pollution affecting land,

water and air. Pollution is defined in UK law as contamination of the land,
water or air by harmful or potentially harmful substances.

View of the Indian Judiciary

The Indian Judiciary has incorporated the Polluter Pays Principle as being
a part of the Environmental Law regime is which evident from th
judgments passed by it

• Indian Council for Enviro -Legal Action vs. Union of

India 1996(3)SCC212

The Court held that once the activity arri d n is h z d us r

inherently dang rous, th person rrying on u h tivity i liable
to mak g d th I . s nu d to ny th r p r n by his activity
irresp .,ctiv of th f t wh ,th r h t k r n bl care while
carrying on bi ctivity. Th rul is pr mi d upon the very nature
of the activity c rri d n.

• Vellore Citizens' Welfare Forum vs. Union of India 1996(5) SCC 647
80 Environmental Law

. of the Polluter Pays Principle as

The Court interp~e_ted the mea~~n!e environment extends not only
the absolute liab1hty f?r _h arm f the pollution but also the cost of
to cor~pensate the_ v1ct1mst:l de radation . Remediation of the
restonng the envuonmen g of 'Sustainable
. t . part of the process
damaged envuonmen is h 11 t r is liable to pay the cost to
Development' and as such t e po u e . the damaged
the individual sufferers as well as the cost of reversmg
ecology."

• The Oleum Gas Leak case (M.C. Mehta vs. Union of India) AIR 1987
SC 1086

The Court laid down that an enterprise engaged in _a hazardous or

inherently dangerous industry which poses a potential threat to th e
health and safety of persons working in the factory and to those
residing in the surrounding areas, owes an absolute and non-
delegable duty to the community to ensure that no harm results to
any one on account of hazardous or inherently dangerous nature of
the activity which it has undertaken. The enterprise is absolutely
liable to compensate for such harm and irrespective of all reasonable
care taken on his account. The larger and more prosperous the
ent~rprise, greater must be the amount of the compensation payable
for the harm caused on account of an accident irl the carrying on
of the hazardous or irlherently dangerous activity by the enterprise.

• M. C. Mehta vs Kamal Nath & Ors (1997)1SCC388

The·Court held that pollution is a civil wrong and is a tort committed

against the community as a whole . Thus, any person guilty of
causing pollution has to pay damages (compensation) for restoration
of the environment and ecology. Under the Polluter Pays Principle,
it is not the role of Government to meet the costs invol-Jed in e ither
prevention of such damage, ·or in carrying out rem ,d i· l tion ,
because the effect of this would be to shift th fin n i.. l burd n of
the pollution incident to the taxpayer.
Conclusion

Although the Polluter Pays Principle has helped to mitigate the damage
being caused to the environment to some extent, the provision remains an
..
inadequate remedy as ambiguity persists regarding clear identification of
the actual polluter. The polluter may a part of the "production chain" and
it is difficult to impose the liability on such polluter when the courts
consider the parameters of extent and contribution of causing pollution.
 Environment and Development Law and Policy 81

Moreover, under this principal, the amount of compensation to be charged

for the restoration of the damage caused to the environment remains to
· be inadequate in comparison to the loss actually caused. More effective ··
and unambiguous provisions with regards to the implementation of the__
Polluter Pays Principle would be beneficial in the longer run.

5.2.2. Precautionary principle

The Precautionary Principle has been adopted in many environmental

instruments all over the world. The principle states that if there is a risk
m s vere damage to the environment absence of any scientific or conclusive
proof s not to be given as a reason for the inaction. The Precautionary
Principle shifts the burden of proof on the shoulders of the person who is
arguing that the activity he is carrying out is not harmful. The principle
follows the approach of being safe than being sorry. This principle is in
contrast to the wait-and-watch approach which is generally followed in
environmental issues. The Precautionary Principle encourages "action
taking " to antedate and prevent damage to the environment. The
Precautionary Principle is one of the most popular legal approaches in the
field of environmental law today. Whereas traditional approaches are
reactive , this approach encourages "action taking" to antedate and prevent
damage to the environment.

The term 'precautionary principle' had its ong1n in the_ German

word Vorsorgeprinzip. ·An alternative translation of this word would mean
'foresight principle' - which could have given an active and positive
impression, as against the reactive and perhaps negative connotatio.u
attached with precaution. Though the principle had its roots in the Ge rman
environmental policy, it has entered the centre-stage of the glob l
[Link] ntal policy in the past two-and-half decades with seve:ial l . '
nvironmental treaties invoking the PP for decision making . In sim l
terms, the PP conv ys the common-sense based advice - to r n th
si de of cau tion . The principle int nds to prev nt h ar m t hum n .
nvuonm nt. and co -sy te rn t 1 rg . B for looking at som f th
us d d hnitions f th P , it w ould be h lpful t und rst nd th
nd [Link]

Wh n th impacts f p rti u l r a t1v1ty - su h , n 1 Sl n h zar u

substan s · ar not , mpl .) t ly l 1, th (1 n 1 l p1 sumpti n i to le t
the activiti g . h c d ,m 11 th , un , rt mty is 1 s lv d m pl t ly. The
PP counters su h g n .,ral µr ! umpti ns . Wh 1 th r is unc rtainty
regarding the imp t f n tiv1ty, th P dvocates a tion to nticipate
and avert environmental ha1 m. Thu , U1 PP favour monitoring , preventing ·
and/or mitigating uncertain pot nti l tlu ats.
82 Environmental Law

There two widely referred de finitions of th PP - th hrst one, The Rio

Declaration (or Agenda 21) of 19 2, t t th t:

"In order to prot ct th nvir n m n , ution r y ppro ch sh ll be

wide ly applied by Stat i W h r h re are
threats of se ri us m c k of full . , i n iftc ce r a m y
shall n t b us d n tp nm co t- ff ,c t1 v me u rns to
p rev nt nvir nm n a l d gr d ti n ."

Thi definition given primarily with nvironm nt l issues in fo u 1 Jso

xtended to cov r health issues. The second d fimtio n is b sect on 1 8
Wingspread Statement on the Preca utiona ry Principl and it sta es·

" .. .Wben an activity raises threats of harm to human hea lth or the
environment, precautionary measures should be taken even if some cause
and effect relationships are not fully established scientifically. The process
of applying the precautionary principle must be open, informe d and
d emocratic and must include potentially affected parties. It must also
involve an examination of the full range of alternatives, includmg o
action. ln this context the proponent of an activity, rather than the public ,
should bear the burden of proof."

It is interesting to note the differences between the two defi nitions. e

first one stresses on 'serious or irreversible damage ', whereas the second
one states that precaution is relevant to 'harm' in general. Thus the
second definition is typical of the way in which the precautionary pn 1..;1 l
is used by environmental advocacy groups. Some of the other key fea tu1e
of the definition worth noting include

• Lack of full scientific certainty shall not b used r n r

postponing : Though scie n tific u ncertainty m y n t be u ed. .
de la y in a ction , this leaves scope for citing r asons u ~ s ~ ,: ,.:.-rir "
reduction priorities for postponing the actions.

• Cost effective measu res : Thoug h i ntiti un rt ut c

li ke ly impacts pre va ils , s tr s n t - ff t iv n ., m
assessm nt (h w ver accur t h y m y b ) of
actions and compare it with possibl a lt rn tiv .
ca t )at)J1l u s
• Applied by [Link] 1ct·
uld gu id
states, including n nd
the final adoption of th pr •
· ted · th definitions.
It is worth noting the way the bwden f pr f 1 u m
When an activity is likely to cause harm to the environm nt and/or hwnans.
 Environment and Development Law and Policy 83
the conventional ·practice is that the opponents of the activity have to
provide the proof of the harmful e ffects caused by the activity. The
precautionary principle, on the other hand , shifts the burden of proof to
the proponents of the activity - i.e ., t he proponents have to establish that
the proposed activity will not cause a ny harm to the environment and/or
human-beings. Furthe r, it is also argued tha t since scientific uncertainty
is inherent in the environmental problems for which the PP is typical1y
applied, the decision making process based on the PP may become more
inclusive, participatory and democratic

Precautionary Principle in Indian Law

The Indian courts have particularly embraced the precautionary principle .

I n Vellore Citizens Welfare Forum v. Union of India, the petitioners filed

a petition in the public interest under Article 32 of the Constitution of
India, directed against the pollution caused by enormous discharge of
untreated effluent by the tanneries and other industries in the State of
Tamil Nadu. The Supreme Court of India noted that:

"though the leather industry is of vital importance to the country as it

generates foreign exchange and provides employment ·a venues it has no
right to destroy the ecology, degrade the en~onment and pose as a health
hazard" The Court recognised that a balance:must be struck between the
economy and the environment:

I n M . C M ehta v. Kamal Nath the Supreme Court of India affirmed the

decis ion in Vellore Citizens' Welfare Forum v Union on India upholding
the preca utionary principle as part of the environmental law of India

I n AP Pollution Control Board v . Prof M V Nay udu, t he Supreme C urt

comprehensively reviewed the precautionary principle . An application was
submitted by a compa ny to the Pollution Control Board f01 permission to
set up an industry for production on "BSS Ca tor Oil Derivatives". Although
a lett r of intent had later been received by the company, th P lluti n
Control Board did not give i no objection c rtifica te to th 1 ti n f th
industry o . th s ite propos d by it. The Pollution C ntrol B I , whil
rejecting the a pplic ti on fo r cons nt , mt r ali , stat d th t th f t 11
under th r d a gory of polluting ind ustry c nd it w oul n t b d
to locate s u h n indu ry m th · t hm nt . r of Him y t . . , u ~-j l..U

in Andhia Prade. h . 1 h pp a l fil d lJy th ~ mp ny in t th d 1s1 n

of the Pollution Control B a rd w "' a p d y th pp ll t uth rity. A
writ petition w as tiled in the natur of pub i int r t htig ti n nd al_so
by the Gram Panchayat challenging th rd r f U1 ppell t uthon ty
but the writ petition w as dismis ed b y th High curt. n th other hand,
84 Environmental Law

the writ petition filed by the company was allowed and the High Court
directed the Pollution Board to grant consent subject to such conditions
as may be imposed by it. The decision of the High Court was the subject
matter· of challenge in the Supreme Court of India. The Supreme Court
referred to the difficulty courts face in dealing with highly technological
or scientific data . The Court noted that uncertainty in science in the
environmental context has led international conferences to for mulate new
legal theories and rules of evidence. One of these is the precautionary
principle

The Supreme Court discussed the earlier decision in Ve/lore Ci tizens

Welfare Forum v Union of India where it was held that the precautionary
principle, and the shifting of the burden of proof onto the developer or
industrialist who is proposing to alter the status quo, are part of the
environmental law of the country. They found it "necessary to explain the
meaning of the principles in more detail, so that courts and tribunals or
environmental authorities can properly apply the said principles in the
matters which come before them"

The Court reviewed the development of the precautionary principle at

international level, including reference to Principle 15 of the Rio Declaration.
The Court identified inadequacies of science ·as the real b~sis that has led
to the precautionary principle. The precautionary principle is "based on
the theory that it is better to err on the side of caution and prevent
environmental harm which may pecome irreversible" It was observed:

"The principle of precaution involves the anticipation of environmental

harm and taking measures to avoid it, or to choose the least
environmentally harmful activity. It is based on scientific uncertainty.
Environmental protection should not only aim at protecting health,
prosperity and economic interest, but also protect the environment for its
own sake. Precautionary duties must not only be triggered by the suspicion
of concrete danger, but also by (justified) concern or risk potential"

The Court next elaborated on the burden of proof referred to in

the Ve/lore case and stated:

"It is to be noticed that while the inadequacies of science have led to the
'precautionary principle', they said 'precautionary principle' in its turn,
has led to the special principle of burden of proof in environmental cases
where bwden as to the absence of injurious effect of the actions proposed,
is placed on those who want to change the status quo reversal of the
burden of proof, because otherwise in environmental cases, those opposing
the change would be compelled to preserve the status quo. This is often
 Environment and Development Law and Policy 85

termed as a reversal of the burden of proof, because otherwise in

environmental cases, those opposing the change would be compelled to
shoulder the evidentiary burden, a procedure which is not fair. Therefore ,
it is necessary that the party attempting to preserve the status quo by
maintaining a less polluted state should not carry the burden of proof, and
the party who wants to alter it must bear this burden.

The Precautionary Principle suggests that where there is an identifiable

risk of serious or irreversible harm, including , for example , extinction of
. pecies, widespread toxic pollution in,major threats to essential ecological
pr ~sses, it may be appropriate to: place the burden of pmof on the
person or entity proposing the activity that is potentially harmful to the
environment. "

I n Narmada Bachao Ando/an v. Union of IJ?dia, the Court was called upon
to decide various legal questions arising from the Sardar Sarovar Project
involving the construction of a darn on the - Narmada Rive r. An
environmental clearance had been given for the project. At the time it was
granted there was no obligation to obtain any statutory clearance and
hence the environmental clearance granted was essentially administrative
in character. Nevertheless, the environmental clearance was challenged.
It was alleged the necessary particulars in regard to the environmental
impact of the Project were not available when the environmental clearance
was given and it therefore could not have been given. It was further
alleged that the execution of the Project, having diverse and far reaching
environmental impact, without proper study and understanding of the
environmental impacts and without propeJ planning of mitigative measures,
was a violation of fundamer tal rights of life of the a ffected peopl
guaranteed under Article 21 ··of the Constitution of India. In the cours f
J dgment, th ma jority noted the submission of the petitioners that "in
ca. es pertaining to th ::. environment , th onu f pro t is on th
v h wan to change th ~ status qu and , th ,r for , it 1s f r th re ts
:,o . ., at .:;,fy the Court that here will b Io envnonm nt l d ·t · -
maj city d alt with thi rgum nt f ~hitting t the md n f r
prec u 1 nacy prin I le ~ta lmg·

"It app ars u: hat th . 'prn ~au Hm,11y nnc1plt,' and th

burd of roof o lh p , ·0 1 wh ) w·m tu ch, n t th
ordin rily apply 1n a ca ·c of pt llulinu or oth ,r pt 1 industI wh r
the ext nt of d m· g 11kdy to u utlhc d 1 • not kn wn . Wh n th r is
1

state of unc rtainty du e l· of 1 b ut th xtent of

damage or pollution lik ly t b u. d th n , m rd r to maint in the
ecology balanc , the burden of pr f th t the id balance will be
maintained must necess rily b on th mdu try or th unit which is likely
86 Environmental Law

to cause pollution . On the other hand where the effect on ecology of

environment of setting up f an industry is kn wn , what has to be seen
is that if the environment is lik ly to suff r, then what meditative steps
can be taken to offset the sam . M rely b c use there will be a change
is no reason to pr sume that th r wm be e ological disaster. It is when
the effect of the project is known then the pr incipl of sustainable
development would come into play which will ensure that rniti ate steps
are and can be taken to preserve the ecological balance . Sustainable
development means what type or extent of development cans take place
which can be sustained by nature/ecology with or without mitigation"

5.2.3. Public trust doctrine

The Public Trust Doctrine primarily rests on the principle that certain
resources like air, sea, waters and the forests have such a great importance
to the people as a whole that it would be wholly unjustified to make them
a subject of private ownership. The said resources being a gift of nature,
they should be made freely available to everyone irrespective of the status
in life . The doctrine enjoins upon the Government to protect the resources
for the enjoyment of the general public rather than to permit their use for
private ownership or commercial purposes.

Public trust doctrine serves two purposes: it mandates affirmative state

action for effective management of resoUices and empowers citizens to
question ineffective management of natural resources. It is a common law
concept, defined and addressed by academics in the United States and
the United Kingdom. Various common properties; including rivers, the
seashore, and the air, are held by the government in trusteeship for the
uninterrupted use of the public. The sovereign could not, therefore , transfer
public trust properties to a private party if the grant would interfere w1th
the public interest. The public trust has been widely used and scrutiruz d
in the United States, but its scope is still uncertain. Vartou:: tep h v
been made to apply this doctrine to protect navigable and non-n, vi
waters, public lands and parks, and to apply it to both publi
lands and ecological resources. Th Supreme Court of
broadened the definition of public trust by including l g1 n
aesthetic considerations. Although the public trusts doctnne 1 n t with ut
its fair shale of criticism it is being incr asingly related to sust ·nable
development. the precautionary prin lple and bio-div rsity p1 tecti n. The
doctrine combines the guarant t publi . acct:3SS t public uust resowces
with a requirement of public accountability in re pect of decision-making
regarding such resources. Moreover, not only can it be used to protect the
public from poor application of planning law or environmental impact
assessment. it also has an intergenerational dimension.
 Environment and Development Law and Policy

The Doctrine of Public Trust in India

Accepting public trust doctrine as a part of common law, the Indian courts
have applied this explicitly in three recent cases, the first one in 1997 and
two cases in 1999 , including the case under consideration. Articles 48A
and 51A of the Constitution also furnish the principles of jurisprudence,
which are fundamental to our governance under the Rule of Law.

The doctrine is first mentioned in M.C. Mehta v Kamal Nath and others
where the Indian Supreme Court applied public trust with regard to the
protection and preservation of natural resources . In this case, the State
Government granted lease of riparian forestland to a private company for
commercial purpose . The purpose of the lease was to buHd a motel at the
bank of the River Beas. A report published in a national newspaper alleged
that the motel management interfered with the natural flow of the river
in order to divert its course and to save the motel from future floods . The
Supreme Court initiated suo motu action based on the newspaper item
because the facts disclosed, if true, would be a serious act of environmental
degradation.

The Supreme court in M.C. Mehta started that the · Public Trust Doctrine
primarily rests on the principle that certain resources like air, sea, waters
and forests have such great importance to the people as a whole that it
would be unjustified to make them a subject of private .ownership . The
court observed that:

Our Indian legal system, which is based on English common law, includes
the public trust doctrine as part of its jurisprudence. The State is the
tr ustee of all natural resources, which are by nature meant for 'public use
and enjoyment. Public at large is the beneficiary of the seashore , running
waters, airs, forests and ecologically fragile lands. The State as a trustee
is under a legal duty to protect th~ ·natural resources. These resources
meant for public use cannot be converted into private ownership. As
nvers, forests, minerals and such other resources constitute a nation's
natural wealth. These resources are not to be frittered away and exhausted
by any one generation . Every generation owes a duty to all succeeding
ae cra tions to develop and conserve th o natural r sourc ,s of the nation
in t e best possible way. It is in the interest of mankmd. It is in the
interest of the nation. Thus, the Pub lic TI:-ust doctrine is a part of the law
of the land. The court also ruled that there is no any justifiable reason to
rule out the application of the public trust doctrine in all ecosystems in
India.

In this case, the Supreme Court was faced with the classic struggle
88 Environmental Law
t
between those members f the publi who would pr serve our rivers,
la kes a nd op n lands in th ir ri tin n pmi t y and tho e chary ed w ith
administrative r sponsibiliti who find it ncce ·a ry to ncron ch t0 some
extent upon op n land .. .. It t t d th t th p blic bodi hou ld a pply
public trust d ctrine when the r i no l islation to prot ct th8 nat ral
r sour s.

In th ir view, applying the polluter pays principle, the Court d1rec ted the
d v loper to pay compensation by w ay of cost for the resti tution of the
nvnonment and ecology of the area. lt had no difficulty in holding tha t
the Himachal Pradesh government committed a patent breach of public
tru t by leasing out the ecologically fragile land to be developed.

Chronologically, the second case on this subject is Majra Singh v India n

Oil Corporation, where the petitioner objected to the location of a plant fo r
filling cylinders with liquefied petroleum gas. It was held that the High
Court can only examine whether authorities have taken all precaut10ris
with a view to see that laws dealing with environment and pollution have
been given due care and attention. Though the case was decided on the
basis of the precautionary principle, it confirmed that the public trust
doctrine has become part of the Indian legal thought processes . In the
High Court's opinion, the doctrines is apart and parcel of Article 21 of the
Constitution and that there can be no dispute that the State is under an
obligation to see that forests, lakes and wildlife and environment are duly
protected. According to the Court, the idea that the public has a right to
expect certain lands and natural areas to retain their natural charactenstics
is finding its way into the law of the land.

In the third case, M.I . Builders v Radhey Shyam Sahu, the Supreme ourt
has applied the public trust doctrine . Here , the Lucknow Nagar M .h p"' hk
(i .e . Lucknow City Corpor tion) granted permiss ion to - priva te builder t
construct an underground s hopping compl x was against t h mum ipal
Ac and Master plan of the city of Lucknow. Th builder w s u~, s t
develop the site at its own cost and th n to r alize the c st w1t h · t h t n t
exceeding more than 10% f the mvestment in respect f .h h
Under the ter f
~ agr ment, full freedom w g l\t n to th bu,ld
to lease out the shop r its w 1 terms nd c nditions t p r n
its choice on behalf f the Mahapalika. Th build r was l giv n th
right to sign the agreement n behalf of the Mah palika and w nly
required to a copy to the Maha pahka a fter its s>t u tion . th the build r
and the Mahap lik were to be bound by the terms of th t re ment.

When the matter was challeng ,d, the High ourt set aside and quashed
the agreement between Mahapalika and U1e builde r, a nd th r levant
 Environment and Development Law and Policy 89

order of the Mahapalika permitting such construction. The Court ordered

Mahapalika to restore the park to its original position within a period of
three months from the date of the judgment and until that was done, to
take adequate measures a nd to provide necessary safeguards and
protections to the users of the patk. The High Court took the accounts of
the fact that Mahapalika never denied the historical importance of the
park and the preservation or maintenance of the park was necessary from
environmental angle. However, the only reason advanced by Mahapalika
for the construction of the underground commerci_a l complex was to ease
the congestion in the area. The High Court took judicial notice of the
conditions prevailing at the site and found that the construction of an
underground market would further congest the area. It added that the
public purpose, which is alleged to be served · by construction of the
underground commercial complex, seemed total illusory.

On appeal by the builders, the Supreme Court held that the terms of
agreement showed that the clauses of the agreement are unreasonable,
unfair and atrocious. The Mahapalika, as a trustee for the proper
management of the park, has to be more cautious in dealing with its
properties. The Court added that the land of immense value had been
handed over to it to construct an underground shopping complex; in
violation of the public trust doctrine. The maintenance of the park, because
of its historical importance and environmental necessity, was in itself a
public purpose. Therefore, the construction of an underground market in
the grab ot" decongesting the area was wholly contrary and prejudicial to
the public purpose. By allowing the construction, Mahapalika has deprived
its residents, and also others, of the quality of life to which they were
e ntitled to under the Constitution and under the Municipal Act.

The agreement was opposed to public policy and not in the'·I,mblic interest.
Mahapalika allowed the commercial shopping complex to be build upon
a public park in clea r defiance of the Uttar Pradesh Municipal Corporation
Adhiniyam 1959 . In a ddition, the Mahapalika violated th~ public tr~t
doctrine and the Court ordered the demolition of the unauthonzed shoppmg
compl x.
The .. ·upreme Court, in M.l . Build rs r onfirm th t th pubh oust
doctrine is established in th Indian leg l system nd rt d th t the
public authorities should act as trust .,e of natural r w s. However, it
is clear from all these case that th court did not nf r any pro~rty
right on the public under the trust. Whil applying the public truSt doctnne,
the Court in all these cases , took account of either the polluter pays the
principle or the precautionary principle or both.
90 Environmental Law

In the Kamal Nath case, the Supreme Court and in the Th Majra Singh
case, the High court applied the public trust doctrine along with other
rinciples such as the precautionary principle and polluter p ays principle .
~oreover, in Kamal Nath cas e, the Supre m e Court d irecte d , inter aha, that
the lease b e quashed a nd the full cost of restora tion of the land to its
original n a tura l condition b e paid by the Motel.

The Court a lso ordered the Motel to remove all the const ruction on the
riverbed and the banks of the River Beas. However, in Th. Majra Singh, the
High court found that the Indian Oil Corporation (IOC) had taken all the
precautions and followed all the safeguards required by the law. Giving to
the go ahead to the installation of the LRG plant located in the vicinity
of a polluted village, the Court ordered the IOC to take due precautions,
so that pollution is not caused to the environment and to plant fast growing
trees like poplar eucalyptus. In the M.I . Builders case, the Supreme Court
ordered Mahapalika to demolish the unauthorized shopping complex and
to restore the park to its original beauty. It is clear that in these ·c ases, the
Court adopted a balanced development approach.

It is interesting to note that in the Kamal Nath case the Supreme Court
held that even if there is a separate and a specific law to deal with the
issue before the CoUit, it may still apply public trust doctrine. If there is
no suitable legislation to preserve the natural resources, the public
authorities should take advantage of this doctrine in addition to the fact
that there was a branch of municipal law. Secondly the Supreme Court in
M.I .builders, however, stated that public trust doctrine has grown from
Article 21 of the constitution. By attaching this doctrine to the fundamental
right to life, the Supreme Court appears to be willing to diversify the
application of this doctrine. It seems likely that the court would give
precedence to right to life when the public trust doctrine, as a part of 1ight
to a safe and healthy environment, is challenged by any other fundamental
rights. Thirdly by ordering the Mahapalika to restore the park tt its original
beauty, the Supreme Court redefined the duties of a trustet to its
beneficiaries the users of the park. In effect, it aligned the local authorities
duty as a trustee with the concept of intra-generational a nd inte r-
generational equity. Fourthly, the case came before the court as a judicial
review and not as challenge against the decision of the government from
a beneficiary. As this doctrine acts as a check upon administrative action
by providing a mechanism for judicial or resource allocation decisions.
Therefore, public trust doctrine could serve as an additional tool for
environmental protection particularly where administrative discretion has
been abused.
 Environment and Development Law and Policy 91
..
Conclusion:

From the above discussions on the doctrine and various case laws, it is
evident that the state is not the owner of the natural resources in the
country but a trustee who holds fiduciary relationship with the people . By
accepting this task the government is expected to be loyal to the interests
of its citizens and to discharge its duty with the interest of the citizens a t
heart and involve them in decision-making process concerning the
management of natural resources in the country. The Public Trust Doctrine
n ay provide the means for increasing the effectiveness of environmental
impa t assessment laws. Thus, under this doctrine, the state has a duty
as a t rustee under art. 48A to protect and improve the environment and
safeguard the forests and wildlife of the country. While applying art. 21
(right to life), the state is obliged to take account of art. 48A, a Directive
Principle of State Policy. The state's trusteeship duties have been expanded
to include a right to a healthy environment.

****************