UNIT-3

Stockholm
DISCUSS THE IMPORTANCE OF STOCKHOLM DECLARATION AND ITS
EFFECTS UPON MEMBER STATES./ EXPLAIN THE SIGNIFICANCE OF
STOCKHOLM DECLARATION ON HUMAN ENVIRONMENT./ WRITE A BRIEF
NOTE ON THE PRINCIPLES ADOPTED IN STOCKHOLM DECLARATION 1972.
The Stockholm Declaration was also the starting point for the introduction of concepts and
principles into international law that previously were only used in national legislation. Three
of these international legal principles have come to underpin environmental discourse and law-
making.
1. The precautionary principle is one of the most prominent and possibly controversial of
these principles.
2. The second principle is additionality. Principle 12 of the Stockholm Declaration
recognized additional international technical and financial resources should be made
available to developing countries “to preserve and improve the environment.”
3. Finally, the polluter-pays principle (PPP), which had a long history of use at the national
level, was incorporated in Principle 22 of the Stockholm Declaration. The PPP requires
those who produce pollution to bear the costs of managing it to prevent damage to
human health and the environment.
Human-centric (Principles 1 and 15)
Principle 1: Rights and Responsibilities for protecting the environment – Humans have the
right to use and enjoy nature. The right to enjoy nature is not unfettered, it is coextensive with
the duty to protect it. Art. 21 of the constitution also safeguards the fundamental right of a
healthy environment. This principle also explicitly bars discriminatory laws.
Principle 15: Human settlement and Urbanization – Planned settlements and urbanization are
required. They reduce the adverse effects on the environment. The goal is to secure maximum
benefits for all through planning. All discriminatory plans are also barred.
Sustainable development (Principles 2, 3, 4, 5, 13 and 14)
Principle 2: Duty to protect natural resources – Natural resources are limited. We must use
natural resources carefully. Preservation of resources depends on effective planning and
management.
Principle 3: Duty to preserve renewable resources – Although renewable resources are not
depletable, their preservation is necessary for their quality.
Principle 4: Wildlife Conservation – A combination of factors is responsible for endangering
wildlife. Humans have a special responsibility for protecting wildlife. The inclusion of
conservation of wildlife in economic planning leads to sustainable development.
Principle 5: Duty to preserve non-renewable resources – Non-renewable resources are
exhaustible. They are valuable resources. Exercising care and caution is necessary to prevent
them from depletion.
 Principle 13: Rational Management of Resources – States should adopt rational methods to
manage the resources and to improve the environment. An integrated and coordinated approach
is preferable.
Principle 14: Rational Planning – Conflicts between development and conservation are
reconciled with rational planning. Development and conservation must go hand in hand.
Reflection on customary international law position (Principle 21)
States have the absolute authority to use natural resources according to their policies. However,
their policies shouldn’t violate the principles of international law and cause damage to other
states outside its jurisdiction.
Preventive actions (Principles 6,7,8 and 18)
Principle 6: Management of pollution – Pollution is harmful to the environment. Discharging
toxins and other substances in large quantities are harmful to the ecosystem. Both the citizens
and the states should play an active role in reducing the dumping of harmful substances.
Principle 7: Management of sea pollution – The states should reduce sea pollution by taking
necessary steps to prevent substances hazardous to human health, marine life, and the
legitimate uses of seas.
Principle 8: Social and Economic development – The improvement of social and economic
conditions is necessary for a better living and working environment. Improvements shouldn’t
affect the environment in any way.
Principle 18: Application of science – Science and technology are indispensable in today’s life.
They are used in almost every industry. Science and technology are also applicable to the
conservation of the environment. It is useful for identifying and controlling environmental
risks. They are useful for finding solutions for environmental issues.
Compensation to Victims (Principle 22)
The States should join to further the scope of international law for prescribing liability for those
harming the environment. States should also come together to compensate victims of
environmental pollution or damage.
Cooperation (Principles 24 and 25)
Principle 24: Cooperation with nations – Although each state has exclusive jurisdiction to
legislate on internal matters, international cooperation is necessary for the holistic
improvement of the environment. States must recognize that environmental problems affect all
the states equally. By multilateral and bilateral agreements states can control, prevent, and
reduce environmental risks.
Principle 25: Coordination with nations – Coordination between states is crucial for alleviating
the existing conditions. The states can jointly coordinate actions and plans for improving
existing environmental conditions.
Other principles
Principle 11: Environmental Policy – The environmental policy of every nation should be
progressive. The policies of every state must enhance and complement each other. The policies
shouldn’t restrict or adversely affect developing countries. National and international
organizations should strive for better living conditions for all without affecting the
environment.
Principle 19: Education in environmental matters – Education is one of the tools to spread
awareness about the pathetic state of the environment. The underprivileged, poor, illiterate
should have access to education. Education broadens the mind. Awareness about the existing
conditions is necessary so that people can jointly tackle environmental matters.
Principle 20: Expanding scientific research – Researching and developing methods nationally
and internationally is important to tackle environmental problems. There must exist a system
where information and research can flow easily across nations. Countries must also control
their spending on scientific research without burdening the economy.
Principle 9: Environmental Deficiencies – Natural disasters and underdevelopment lead to
deficiencies. Navigating through such deficiencies is difficult. Requesting technological and
financial assistance to supplement the local efforts leads to a quicker and effective remedy
Principle 10: Stability of prices and incomes – Stability in the prices of essential commodities
and stability of income is essential for the environmental management of developing countries.
Economic factors are also part of the environmental process.
Principle 12: Education on environmental protection – Environmental protection is the need of
the hour. Every citizen should understand the importance of environmental protection.
Adoption of a suitable medium like social media, print media, etc is crucial to spread awareness
about environmental protection.
Principle 16: Population Control – In areas where the population is excessive and is likely to
affect the environment, the states can implement policies to control the growth of the
population. These policies shouldn’t violate basic human rights. In today’s world
overpopulation is one of the major reasons for the depletion of natural resources
Principle 17: Setting up of national institutions – States should establish national bodies for the
control and management of environmental resources within the state.
Principle 23: Implementing a national agenda – The states may find that certain procedures and
rules may not align the value system of the country. In that case, the states need not follow such
a procedure. The states are also exempted if such procedures cause unwarranted social costs.
Principle 26: Ban on nuclear weapons – Nuclear-weapons are the most destructive weapons.
They cause more damage to the environment than any other weapon. All the nations should
come together to ban nuclear weapons.
Effects of the convention
The Stockholm convention paved the way for other international conventions on the
preservation of the environment such as the Convention on International Trade in Endangered
Species of Wild Flora and Fauna, 1973. In the same line, the Parliament of India passed the Air
(Prevention and Control of Pollution) Act, 1981, the Water (Prevention and Control of
Pollution) Act, 1974, and the Forest Conservation Act, 1980 to give effect to the Stockholm
convention.
The Stockholm convention was the first convention to discuss environmental issues on a global
scale. The declaration proclaims truths relating to man and the environment such as man is the
creator and moulder of his surroundings.
The declaration also reiterates the importance of preservation of the environment. It urges
citizens to come together and protect the environment. The declaration recognizes humans as
the greatest threat to the environment. Humans are responsible for almost all of the
environmental destruction. Humans have altered the human environment also.
The declaration discusses in detail the role of underdeveloped nations in environmental
problems and urges them to reduce their negative impact on the environment. The industrial
countries are not free from problems, but their problems relate to industrialization and
technological development.
The significance of humans and their contributions to the environment are also discussed in
detail. The declaration recognizes the capability of humans to make strides in social progress
and the use of science to make a better environment. Individuals have the responsibility to
exercise care and precaution. Ignorant and careless actions lead to the destruction and
deterioration of the environment. To take careful action, better awareness, and education about
the protection of the environment are required.
Governments are directed to control their internal actions by enacting and enforcing
environmental laws and to coordinate with other nations and international agencies to mitigate
the damage caused by pollution.
The Stockholm Conference began a global conversation about the importance of environmental
issues, along with their interconnections with economic and social development. Stockholm
will always be remembered as the moment these challenges were brought together. Perhaps the
best legacy of Stockholm will be accelerated implementation of the treaties and agreements to
address the triple planetary crisis. These agreements include the 2030 Agenda, the Paris
Agreement on climate change, the global biodiversity framework, and the Sendai Framework,
along with all the other MEAs that grew out of the Stockholm Conference.

EXPLAIN NAIROBI CONVENTION 1982- https://www.lawtool.net/post/nairobi-

declaration-1982 (link or below- not sure)
Introduction
Oceans, vested with a plethora of rich marine species and resources, have always played a
prominent role in maintaining the ecological balances. Owing to unfriendly exploitation of
natural resources, overfishing, shipwrecks and anthropogenic activities contributing to
pollution, oceans have become a focal point of environmental concerns. The environmental
degradation associated with the oceans has broadened the domain of marine laws on a global
frontier.
Nairobi Convention
Nairobi Convention forms the flagship programme of the United Nations Environment
Programme’s Regional Seas Programme. The Convention, signed in 1985, was effected from
1996. It aims at the sustainable development of the marine and coastal environment by
international cooperation. It connects the nations sharing the Western coastal line of the region
together to pursue the vision of healthier coasts and oceans. The nations are engaged in a close
network wherein they exchange their information and research outcomes, addressing the
environmental threats, for effective implementation of the Convention.
Scope- Article 1 determines the geographical coverage of the Amended Convention that
extends to the nations sharing their coast with Western Indian Ocean, encompassing parts of
Eastern and Southern Africa. The region falls under the scope of the Convention is referred to
as the “Convention area”. Defined under Article 2(b), the area includes the watershed and the
coastal environment of the nations adjacent to them. The extent of the area to be covered by
the Convention is agreed upon by the nations by a protocol undertaken for this purpose.
Obligations of the parties- Article 4 imposes general obligations on the parties for effective
implementation of the Convention. It mandates States to adopt appropriate measures to combat
marine pollution, thereby facilitating sage management of natural resources. The parties owe a
duty to ensure that the measures so adopted align with the other environmental laws and
protocols undertaken within the Convention.
The parties should not cause any sort of disturbance to the region outside the “Convention area”
while executing these measures. The Convention further promotes the cooperation of States
with the governmental, regional or sub-regional organisations towards the discharge of the
obligations of the parties.
The subsequent articles mandate the nations to adopt “appropriate measures” to counter the
effect of pollution caused by the commercial shipping activities (Article 5), improper waste
dumping activities (Article 6), discharge of commercial and non-commercial based effluents
(Article 7) and unfriendly exploitation of the sea bed (Article 8). The parties are further required
to act cautiously within the framework of Basel Convention, 1989 and Bamako Convention,
1991 while managing and transporting hazardous waste across the territories (Article 9).
The framework of the Convention extends to include preservation of the atmosphere and
diverse marine species, threatened by the humanly induced activities, as propounded under
Article 10 and 11 respectively. It further provides for the situations of imminent dangers by
promoting the usage of contingency plans and measures (Article 12). The States, while carrying
out their engineering activities including dredging of land, are required to adhere to the basic
framework of the Convention (Article 13).
Provision of International Cooperation from regional organisations
The Convention promotes collaboration between nations and regional organisations to promote
technological and scientific advancements, research and exchange of information for better
implementation. The parties, on the basis of an assessment determining the environmental risk
associated with the major development projects, consult these organisations on scientific and
technical aspects.
The organisations, on their part, assist the parties in planning and framing sustainable
guidelines for the continuation of the projects in a way that the environment is the least to get
affected. The assistance also includes dissemination of scientific information and research
outcomes, development of research centres and promotion of international engagements
outside the “Convention area’” to explore innovative solutions concerning the environment.
Article 16 incurs liability on the parties, in case of damage in the “Convention” region, resulting
out of default in complying with the necessary guidelines.
Structure and composition
The Convention provides for a Secretariat serving as the chief architect and executor of the
work programme, Conference of Parties and specialised groups and task forces established
for the purpose of executing the plans laid.
Secretariat- The Executive Director of the United Nations Environment Programme acts as
the Secretariat and is required to perform the functions assigned by Article 17.
Conference of parties- The Conference of Parties, composed of experts from each of the
contracting parties, is conferred with the authority to make decisions on topics of relevance.
The parties meet once every two years in an ordinary meeting to discuss the policies, plans
and the projects undertaken
EXPLAIN BRIEFLY COMMON LAW REGULATORY CONCEPTS TO CHECK
POLLUTION PROBLEM. /WHAT ARE THE COMMON LAW REMEDIES
AVAILABLE TO AN INDIVIDUAL AGAINST POLLUTER OF ENVIRONMENT
Common Law Environmental Remedies It is important to realize that "common law" is not a
fixed or absolute set of written rules in the same sense as statutory or legislatively enacted law.
The unwritten principles of common law are flexible and adaptable to the changes that occur
in a growing society. New institutions and public policies; modifications of usage and practice;
changes in mores, trade, and commerce; inventions; and increasing knowledge--all generate
new factual situations which require application and reinterpretation of the fundamental
principles of common law by the courts. The common law, so far as it has not been expressly
abrogated, is recognized as an organic part of the jurisprudence of most of the states.
However, since the state court systems have functioned independently of each other, subject
only to federal review in cases of national importance, the common law varies slightly from
state to state. The common law actions are civil suits in which the plaintiff (the party bringing
the lawsuit) seeks to remedy a violation of a right. Civil actions are distinguished from criminal
proceedings. Criminal actions are those in which the state seeks to redress a breach of public
or collective rights that are established in codified penal law. The three types of common law
actions most commonly encountered in the environmental field are: (1) nuisance, (2) trespass
and (3) negligence.
1. Nuisance - Nuisance is the most frequently pled common law action in environmental
litigation. Nuisance law traditionally protected the right of a landowner to use and enjoy
property. Nuisance is defined as “that activity which arises from the unreasonable,
unwarrantable or unlawful use by a person of his own property, working an obstruction
or injury to the right of another or to the public, and producing such material annoyance,
inconvenience, and discomfort that the law will presume resulting damage.” The
 general rule is that a person may use his land or personal property in any manner he
sees fit.

However, this rule is subject to limitation. The owner must use his property in a
reasonable manner. A nuisance rises whenever a person uses his property to cause
material injury or annoyance to a reasonable neighbor. Odors, dust, smoke, other
airborne pollutants, water pollutants and hazardous substances have all been held to be
nuisances. Nuisance actions come in two forms: public and private. Under both private
and public nuisance law, the plaintiff must prove that the defendant’s activity
unreasonably interfered with the use or enjoyment of a protected interest and caused
the plaintiff substantial harm. The trier of fact determines whether an activity is
unreasonable by balancing the social utility of the activities against the harm they
create.

Public Nuisance denotes an interference with a right of common to the general public.
A negligent act resulting in an infection that is dangerous to life, and he acts of
adulteration of foods, drinks and drugs are offences inviting punishment of varying
nature. Contamination of water of public spring or reservoir to make it unfit for ordinary
use or poisoning the atmosphere to the detriment of person living in neighbourhood or
passing along a public way both offences. Public nuisance does not create a civil case
of action for any person. An individual may, however, have a right to claim in case of
public nuisance if-
• He can show a particular injury, to himself beyond that which is suffered by the
rest of the public.
• Injury was direct and not a mere consequential injury.
• Injury caused was of a substantial nature.
Private Nuisance:- is interference with the use of land. It is the using or authorizing the
use of one’s property or of anything under one’s control so as to injuriously affect an
owner or occupier of property by physically injuring his property or by interfering
materially with his health, comfort or convenience.
Case laws- GOVIND SINGH V. SHANTI SWARUP ( AIR 1979 SC 143)This case is
related to the nuisance of smoke from a bakery. The magistrate made an made an order
for the demolition of the oven and the chimney and later directed the baker to wind up
his business at the site.

2. Trespass -Trespass is distinguished from nuisance in that trespass is interference with

the possession of property whereas nuisance is interference with the use and enjoyment
of property. Trespass to land is an unlawful, forcible entry on another’s realty. An injury
to the realty of another or an interference with possession, above or below ground, is a
trespass, regardless of the condition of the land and regardless of negligence.
Trespass to land is the type of trespass action that is generally used in pollution control
cases. In an action for trespass to land, entry upon another’s land need not be in person.
It may be made by causing or permitting a thing to cross the boundary of the premises.
The trespass may be committed by casting material upon another’s land, by discharging
water, soot or carbon, by allowing gas or oil to flow underground into someone else’s
land, but not by mere vibrations or light which are generally classed as nuisances.
 In the case of Martin v. Reynolds Metal Co the deposit on Martin’s property of
microscopic fluoride compounds, which were emitted in vapor form from the Reynolds’
plant, was held to be an invasion of this property—and so a trespass. The line between
trespass and nuisance is sometimes difficult to determine. The distinction which is now
accepted is that trespass is an invasion of the plaintiffs interest in the exclusive
possession of his land, while nuisance is an interference with his use and enjoyment of
it.

3. Negligence- “Negligence” is “the omission to do something which a reasonable man,

guided by those ordinary considerations which ordinarily regulate human affairs, would
do, or the doing of something which a reasonable and prudent man would not do.
Negligence is that part of the law of torts which deals with acts not intended to inflict
injury. The standard of care required by law is that degree which would be exercised by
a person of ordinary prudence under the same circumstances. This is often defined as
the “reasonable man” rule, what a reasonable person would do under all the
circumstances. In order to render the defendant liable, his act must be the proximate
cause of injury. Proximate cause is that which in the natural and continuous sequence,
if unbroken by an efficient intervening act, produces injury and without which the result
would not have happened.
Nissan Motor Corp. v. Maryland Shipbuilding and Drydock Company exemplifies
a negligence action in an environmental case. The shipbuilding company’s employees
failed to follow company regulations when painting ships, allowing spray paint to be
carried by the wind onto Nissan’s cars. The shipbuilders had knowledge of the likely
danger of spray painting, yet failed to exercise due care in conducting the painting
operations in question. This failure to exercise due care amounted to negligence.
Persons harmed as a result of careless and improper disposal or handling of hazardous
waste can recover for their losses under a negligence cause of action. Indeed, state and
federal courts have long recognized this common law theory of recovery against
defendants who engage in the negligent disposal of pollutants such as hazardous waste.
Where negligence can be established, it is no defense that the negligent action was in
full compliance with all government regulations and permit conditions. On the other
hand, noncompliance with regulations or a permit may be prima facie evidence (proof
without any more evidence) of liability in some states.
Theories of Strict liability and absolute liability
Strict liability- In criminal and civil law, strict liability is a standard of liability under which a
person is legally responsible for the consequences flowing from an activity even in the absence
of fault or criminal intent on the part of the defendant.
In the field of torts, prominent examples of strict liability may include product liability,
abnormally dangerous activities (e.g., blasting), intrusion onto another's land by livestock, and
ownership of wild animals. Traditional criminal offenses that require no element of intent
(mens rea) include statutory rape and felony murder. In tort law, strict liability is the imposition
of liability on a party without a finding of fault (such as negligence or tortious intent).
The claimant need only prove that the tort occurred and that the defendant was responsible.
The law imputes strict liability to situations it considers to be inherently dangerous. It
discourages reckless behaviour and needless loss by forcing potential defendants to take every
possible precaution.
An early example of strict liability is the rule Rylands v Fletcher, where it was held that "any
person who for his own purposes brings on his lands and collects and keeps there anything
likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima
facie answerable for all the damage which is the natural consequence of its escape". If the
owner of a zoo keeps lions and tigers, he is liable if the big cats escape and cause damage or
injury. In strict liability situations, although the plaintiff does not have to prove fault, the
defendant can raise a defense of absence of fault, especially in cases of product liability, where
the defense may argue that the defect was the result of the plaintiff's actions and not of the
product, that is, no inference of defect should be drawn solely because an accident occurs.
Absolute Liability is a standard of legal liability found in tort and criminal law of various legal
jurisdictions. To be convicted of an ordinary crime, in certain jurisdictions, a person must not
only have committed a criminal action but also have had a deliberate intention or guilty mind
(mens rea). In a crime of strict or absolute liability, a person could be guilty even if there was
no intention to commit a crime. The difference between strict and absolute liability is whether
the defence of a “mistake of fact” is available: in a crime of absolute liability, a mistake of fact
is not a defence.
In other words, absolute liability is strict liability without any exception. That liability standard
has been laid down by the Indian Supreme Court in M.C. Mehta v. Union of India (Oleum Gas
Leak Case). The exceptions include the following: • Plaintiff’s own mistake • Plaintiff’s
consent • Natural disasters • Third Party’s mistake • Part of a statutory duty.
The Indian Judiciary tried to make a strong effort following the Bhopal Gas Tragedy,
December, 1984 (Union Carbide Company vs. Union of India) to enforce greater amount of
protection to the Public. This legal doctrine was much more powerful than the legal Doctrine
of Strict Liability developed in the case of English tort law Rylands v Fletcher [1868]. This
meant that the defaulter could be held liable for even third party errors when the public was at
a realistic risk. This could ensure stricter compliance to standards that were meant to safeguard
the public.

WHAT IS SUSTAINABLE DEVELOPMENT? EXPLAIN THE ROLE OF COURTS

IN THIS REGARD? / EXPLAIN WITH DECIDED CASES THE CONCEPT TOF
SUSTAINABLE DEVELOPMENT./ SALIENT FEATURES OF SUSTAINABLE
DEVELOPMENT.
The principle of sustainable development emphasises on two basic needs, firstly, need for
socioeconomic development and secondly, need of limitation imposed on the environment's
capability to cope with the present and future requirements.
Basic objectives of Sustainable Development
The principle of sustainable development seeks to achieve the following three basic
objectives:
(1) to maintain production of goods and services for development and efficiency;
(2) conversation and management of neutral resources including preservation of biodiversity
and maintenance of biological integrity;
(3) maintenance and enhancement of the quality of life adopting the principle of equitable
distribution of wealth and material resources.
These objectives may respectively be called as economic, environmental and social
objectives of the principle of sustainable development. From the environmental point of view,
the objective of the principle of sustainable development centres round three issues, namely,
(i) to maintain essential ecological processes, (ii) to preserve genetic diversity; and (iii) to
secure sustainable utilization of species and ecosystems.
Salient principles that underlie the concept of sustainable development were recognised in the
Rio Declaration of 1992 and Agenda 21. They are as follows:
Inter-generational equity- The principle talks about the right of every generation to get benefit
from the natural resources. Principle 3 of the Rio declaration states that: " The right to
development must be fulfilled so as to equitably meet developmental and environmental needs
of present and future generations” The main object behind the principle is to ensure that the
present generation should not abuse the non-renewable resources so as to deprive the future
generation of its benefit.
In A.P. Pollution Control Board v. M.V. Nayudu, the Apex Court observed that where the State
Government makes an attempt to balance the need of the environment and need of the
economic development, it would not be proper to prohibit it from doing so. In such a case, it
would be safer to apply the 'protective principle' and the 'principle of polluter pays', keeping in
mind the principle of sustainable development and the 'principle of inter-generational equity
Use and conservation of natural resources- This principle requires that earth's natural
resources should be carefully used in such a way that they may be conserved and enhanced for
the future generation. It must be borne in mind that natural resources are already depleting due
to poverty, over- population, urbanisation, industrialization etc. and there is likely to be acute
shortage of these resources in future. Therefore, there is dire need to develop techniques and
technologies which may need minimal utilization of natural resources.
Environment protection- Environmental protection is an integral part of sustainable
development. Most of the nations have enacted environmental protection laws to ensure
sustainable development within their territories. In order to reinforce sustainable development,
an effective environmental protection mechanism is needed. It is generally seen that inadequate
protection of environment or its degradation affects the poorest sections of the society most as
they draw a large part of their livelihood from unmarked environmental resources such as
forests, water from hand pumps, air polluted and noisy slum dwellings etc. The problem of
environmental protection generally emanates from water resources, forests, agriculture,
industry, energy and power etc., therefore, policy decisions in these sectors should be
environmental oriented and well planned so as to ensure that there is no degradation in the
natural environment.
So far India is concerned, the Environment (Protection) Act, 1986 is the central legislation.
Besides, there are some other pollution control and prevention laws and States have also framed
their own anti-pollution laws according to their local requirements.
The Precautionary Principle- This principle has widely been recognized as the most
important principle of 'Sustainable Development'. Principle 15 the Rio declaration states that:
"In order to protect the environment, the precautionary approach shall be widely applied by
States according to their capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason for postponing cost-
effective measures to prevent environmental degradation."
Vellore Citizens' Welfare Forum v. Union of India, the Supreme Court explicitly recognised
the precautionary principle as a principle of Indian environmental law in a number of
subsequent cases. Justice Kuldeep Singh of the Supreme Court in Vellore Citizens case laid
down the following rules with regard to precautionary principle:
(1) The State Governments and local authorities are supposed to anticipate and then prevent
the cause of environmental degradation. They are supposed to check the activity which is
damaging for environment;
(2) Merely because there is a lack of scientific knowledge as to whether a particular activity is
causing degradation, it should not stand in the way of the Government;
(3) The onus of proof is on the actor (i.e. person who does the activity) or the
developer/industrialist to show that the action was environmentally friendly.
The Polluter Pays Principle- Principle 16 of the Rio declaration states that: National
authorities should endeavor to promote the internalization of environmental costs and the use
of economic instruments, taking into account the approach that the polluter should, in principle,
bear the cost of pollution, with due regard to the public interest and without distorting
international trade and investment. It is quite obvious that the object of the above principle was
to make the polluter liable not only for the compensation to the victims but also for the cost of
restoring of environmental degradation. Once the actor is proved to be guilty, he is liable to
compensate for his act irrelevant of the fact that whether he's involved in development process
or not.
Principal of liability to help and cooperate- This principle has been specifically incorporated
in Rio-Declaration (1992) as Principle 9 which provides that the States should co-operate to
strengthen indigenous capacity building for sustainable development by improving scientific
understanding through exchanges of scientific and technological knowledge and by enhancing
the development, adaptation, diffusion and transfer of technologies including new and
innovative technologies
Poverty eradication- Poverty is perhaps the worst contributing factor for polluting the
environment and causing its degradation. The Brundtland Report (1987) also attributed poverty
as a potential cause of environmental degradation as it reduces people's capacity to use
resources in a sustainable manner, which eventually brings more pressure on environment and
results into its deterioration. Most of the developing countries' are facing the problem of
poverty which is adversely affecting the environmental quality. The Earth Summit, 1992 also
projected that elimination of poverty was utmost necessary for achieving the goal of sustainable
development, particularly m the developing countries.
India being a developing country, its more than 30 per cent people are living below the poverty
line. The pitiable condition 'of slum-dwellers, scarcity of food, fuel, kerosene oil etc. are serious
threats for environment. Due to lack of residential, houses crores of poor men, women and
children are compelled to live in slums and even on road-side temporary hutment in most
unsanitary conditions without sufficient food and water. Thus, they have to live in
unwholesome environmental conditions.
Public Trust Doctrine - This doctrine rests on the principle that certain resources which are
required for fulfilling the basic amenities of life like air, water etc hold great importance to the
people at large that it would be completely unjustified to make these resources available to the
private ownership. Since these resources are the gift of nature that is why they should be made
freely available to every individual of the society irrespective of the status in life. The doctrine
obliges the government to protect resources for public use rather than being exploited by a
private person for making economic gains. Thus, commercial use of natural resources is
completely prohibited under this doctrine. For the effective and optimum utilization of
resources, this doctrine mandates an affirmative action of the state authorities. Also, citizens
are empowered to question the authorities if resource management is ineffective.
In M.C Mehta v. Kamal Nath, 1997, the state government granted a lease of riparian forest land
to a private company having a mote located at the bank of river Beas, for commercial purposes.
The hotel management was intervening with the natural flow of the river by blocking the
natural spill channel of the river. This was questioned before the court through public interest
litigation. The court explained the scope of public trust doctrine and observed that the doctrine
rests on the primary principle that certain resources like air, water, sea and forests have great
importance to people and it would be unjustified to make them subject to the private ownership.
Other CASE LAWS
Rural Litigation Entitlement Kendra vs. State of UP (A.I.R 1985): In this case, the Supreme
Court addressed environmental and development issues for the first time, emphasizing that
natural resources are permanent assets of mankind and should not be exhausted in a single
generation.
Vellore Citizens Welfare Forum vs. UOI (A.I.R 1996): The Supreme Court affirmed that
sustainable development in environmental law is a viable concept that can eradicate poverty
and enhance living standards while ensuring the ecosystem’s carrying capacity is not exceeded.
The Supreme Court held that the “Precautionary Principle” and the “Polluter Pays Principle,”
which are two basic principles of sustainable development, can be derived from various
constitutional provisions such as the right to life under Article 21 of the Constitution of India.
Indian Council for Enviro-Legal vs. Union of India: The court established the “polluter pays
principle” as an integral element of sustainable development in environmental law. It made
polluters liable to pay the costs of reversing environmental damage.
N.D Jayal vs. UOI: The court affirmed that sustainable development is an integral part of
Article 21 of the Constitution, making it a constitutional mandate. The judiciary played a
commendable role in striking a balance between the environment and development.
 SHORT NOTES
The National Environmental Tribunal Act, 1995.
On June 17, 1995, the National Environment Tribunal Act was passed by the parliament. As a
result of India’s expanding population, which not only contributes to pollution and
environmental degradation but also plays a significant role in environmental accidents, the
country is grappling with a number of environmental issues. India contemplated implementing
the Tribunal addressing the protection of the environment and the payment of compensation to
persons, property, and the environment as a participant in the 1992 United Nations Conference.
A tribunal was established by an act to handle cases involving environmental issues and
compensation
Salient features of Act- An act to establish a National Environmental Tribunal for the effective
and speedy resolution of cases arising from such accidents, with a view to providing relief and
compensation for damages to persons, property, and the environment for matters connected
therewith, and to provide for strict liability for damage arising out of any accident or handling
(any) hazardous substance.
Environment is made up of water, air, and land as well as the relationships that exist between
these elements, as well as with people, other living things, plants, animals, microorganisms,
and property (Sec 2). Whether an accident results in permanent or temporary damage, a
disability, lost wages, medical expenditures, or death, the owner is responsible for making
restitution (Sec 3) Sec. 4 details the application process for compensation. Processes and
powers granted by this Act to the Central Government to form a tribunal (Section 8) and its
makeup are specified (Sec 9).
Objective- The Tribunal is tasked with providing effective and expeditious remedy in cases
relating to environmental protection, conservation of forests and other natural resources and
enforcement of any legal right relating to environment.
Summary of act
National Environment Tribunal Act, 1995 consists of 31 Sections to fulfill the broad objectives
laid under Act. As the Act enacted with a broad objective to provide compensation to person
who got injured, the owner has to pay compensation under Section 3, where there been damage
caused to the environment and the death or injury has been resulted due to the accident. The
person can make application with respect to claim for compensation to the Tribunal under
provision as specified under Section 4(1), Tribunal while dealing with the application of
compensation as specified in the provisions of Act shall exercise the same jurisdiction and
authority as that of matters as specified in Public Liability Insurance Act, 1991. Owner who
responsible for the environmental accident is liable to pay compensation not only under
National Environment Tribunal Act, 1995, but also liable to pay relief specified under the
provisions of Public Liability Insurance Act, 1991and the relief paid be substantiated by the
compensation paid.
According to Section 8, the Central Government established the National Environment
Tribunal to carry out the authority and powers granted by the Act’s provisions. The Chairman,
Vice-Chairperson, other members, and the Benches under the Act have the authority to exercise
the authority, jurisdiction, and powers of the Tribunal in order for it to carry out the duties
outlined in the Act. Those appointed as members of the Tribunal should be more qualified for
the designated role because qualifications are important in any office and the topic at hand is a
sensitive one relating to the environment.
Persons are only appointed as members if they meet the requirements outlined in Section 10 of
the Act. Persons appointed as chairs are not required to be judges of the Supreme Court or of
the High Court, and those appointed as vice chairs and judicial members must be judges of the
High Court or members of the Indian Legal Service as specified by the Act. According to
Section 12, members of the Tribunal maintain office for a period of five years. They are also
permitted to resign from their positions by writing to the president, who has the power to do so
if he believes the member to be unsuited for the position or has demonstrated misconduct.
According to Section 13 (3), the President may issue an order to remove any member from
office, but the order must be approved following a thorough inquiry and investigation by a
Supreme Court Judge. The Central Government may also establish rules and regulations for
the Section 13 inquiry and investigation process (2).
After the Act’s implementation, the Tribunal has a particular competence to handle cases
connected to applications and compensation claims. According to Section 23, the Tribunal has
the same authority as the Civil Court in cases involving the provisions of the Act, and any
awards made by the Tribunal are executable just like a judgement rendered by the Civil Court.
If the owner does not comply with the Tribunal’s order, the Tribunal may seek payment from
the owner as unpaid land revenue. Tribunal Constituted under Act has the jurisdiction to punish
the person who contravene the provisions stipulated under Act and those who responsible for
environmental dangerous. Anyone who disobeys the tribunal’s order will be punished for an
additional three years or fine up to ten lakh rupees or both based on the guilt.
The Indian Penal Code operates broadly under the Act because all Tribunal members are
considered to be Public Servants under Section 21 of the Code and because all actions taken to
implement the provisions of the enacted Act fall under the definition of judicial proceedings as
set forth in Sections 193, 219, and 228 of the Code. Rules pertaining to the Act’s provisions
may be made by the Central Government by publication in the Official Gazette, as indicated in
Section 31. (2). In accordance with Section 22, the Central Government is empowered to
determine whether the compensation sum credited to the Environment Relief Fund will be
completely utilized (2).
Act was a specific piece of legislation that dealt with environmental issues and compensation.
Although the Act has the power to punish anybody who violates the rules set forth in the Act
relating to the protection of the environment, it has fallen short of meeting the obligations and
goals set forth. India needs a strong legal system to address environmental challenges because
of its dense population.
RIPARIAN RIGHTS
Meaning of Riparian Rights- The term ‘riparian’ has been derived from the Latin word ‘ripa’
which means riverbank. A riparian owner is the one who owns land along the bank of a river
or lake or any other water body. Certain rights enjoyed connected to the land owned by a
riparian owner, are called riparian rights. In other words, a riparian owner is the owner of land
adjoining a water body. These rights are natural rights that have arisen due to the location of
the house of the riparian owner. These rights exclusively belong to the riparian owners who
reside along the shore or banks of the river.
Scope of Riparian Rights- Every riparian owner who owns a land abutting to a natural stream,
lake or pond is entitled to use and consume its water for drinking, household purposes and
watering his cattle and sheep and to consume the water for irrigating such land and for the
purpose of any manufactory situate thereon, provided he does thereby cause any material harm
or injury to other like owners. A natural stream is a stream whether permanent or intermittent
tidal or tideless on the surface of the land or underground which flows by the operation of
nature only and in a natural and known course. Hence a riparian owner is a person whose land
abuts on a natural stream. Streams may be natural or artificial. Riparian owner can be anyone
who owns a land which comes in contact with a river and even which has a reasonable
proximity to a riverbank.
The rights of a riparian owner are threefold
1. He has a right of user that is he can use the water for certain purposes
2. He has a right to flow. He has a right to have the water come to him and go from him
without any obstruction
3. Lastly, he has a right to purity. He is entitled to have the water come to him unpolluted.
Illustrations-
The rights which fall within the purview of riparian rights may be enlisted as follows:
1. Authority to use the bank of a watercourse as well as water bed
2. Access to and from water
3. Protection of the property from soil erosion
4. Rights of certain uses such as drinking and other domestic purposes.3
5. Swimming
6. Boating
7. Navigation
8. Fishing
9. Errection of structures
10. Use of water
In Vippalapati v. Raja Vizianagram, the court held that riparian rights are encompassed of a
right to access free-flowing water without any obstruction if it is an obstruction by a dam.
Hence section 7 clarifies the general principle of law that essentially easements are restrictive
in nature, that is they do not operate to exclude the rightful owner from enjoying his property.
In the case of M. Seshareddy v. K. Gopala Reddy [vi], the Andhra Pradesh High Court reiterated
that a person as a riparian owner of a land abutting a natural stream has a natural right to use
the water of the stream to irrigate his land without diminution of the flow of water and without
affecting the right of the riparian owners below the stream.
In M.C.Mehta v. Union of India, ( famously known as the Ganga River case) the Supreme
Court reiterated the doctrine of riparian rights. It held that the petitioner was a riparian owner
who was troubled by the nuisance created by the contamination of the river Ganga. Such a
contamination was a public nuisance and the petitioners were entitled to riparian rights of
access to unpolluted water and hence a Public Interest Litigation was a valid remedy.