ENVIRONMENTAL LAW &

PRACTICE REVIEW
Volume - 7 2020

Editor’s Note

Articles

Dr. Manjeri subin sunder raj

Rights of nature- from spreading its wings to flying high

Sharan Balakrishna
Inland Waterways – Their Sustainable Development,
Possible Environmental Impacts & An Ideal Legal Regime

Prof. Ali Mehdi

A Review of Cases Decided By The National Green
Tribunal Under The Water Act, 1974

Arup Poddar
Indian Supreme Court and Sustainable Development:
A Tool For Delivering Environmental Justice

Anmol Rathore & Hansaja Pandya

Mining Woes: - Application of Public Trust Doctrine to
Preservation of Mineral Resources in India

Aastha Kaushal & Lianne D'Souza

Effectiveness of Carbon Markets: from Kyoto to Paris and Beyond
 ENVIRONMENTAL LAW & PRACTICE REVIEW
Volume 7 2020

PATRONS

PROFESSOR DR. FAIZAN MUSTAFA MR. AMITESH BANERJEE

VICE-CHANCELLOR ADVOCATE
NALSAR UNIVERSITY OF LAW KOLKATA HIGH COURT

ADVISORY BOARD

HON’BLE JUSTICE KULDIP SINGH

FORMER JUDGE, SUPREME COURT OF INDIA

Dr. Vandana Shiva Prof. Philippe Sands

Founder, Navdanya University College, London

Dr. Sejal Worah Prof. Wil burns

Programme Director, WWF India. Santa Clara University

Shyam Divan Girish Gokhale

Sr. Advocate, Supreme Court of India Sr. Vice President, Lafarge India

Nigel Howorth Dr. Anindya Sircar

Partner, Clifford Chance LLP Head-IP Cell,
Infosys technologies limited

Prof. Madhu Verma Prof. M.KRamesh

Indian Institute of Forest Management NLSIU, Bangalore

EDITOR-IN-CHIEF EXECUTIVE EDITOR

PROF. K. VIDYULLATHA REDDY PROF. DR. VIJENDER KUMAR
PROFESSOR OF LAW VICE-CHANCELLOR
NALSAR UNIVERSITY OF LAW MAHARASHTRA NATIONAL LAW UNIVERSITY

EDITORIAL BOARD

Patruni Srilakshmi Gopika Menon

Kaustub Neil Singh Bhati Ruthika Reddy
Manswitha Gupta
 EXECUTIVE BOARD

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Ketan Mukhija Jayeeta Kar Nawneet Vibhav
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Aparna N Arshiya Sharda Devarshi Mukhopadhyay
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Maitreye Parashar Shantanu Dey Yuvraj Vyas

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CITATION FORMAT
[VOLUME] ELPR [PAGE] ([2020])
ISSN 2319-1856
 EDITORIAL
The Editorial Board of the Environmental Law and Practice
Review (ELPR) takes great pleasure in bringing forth Volume VII of
ELPR. This issue has submissions from students as well as
contribution from scholars and professionals on invitation and
solicitation. Keeping up with the tradition of ELPR the editorial team
is happy to bring out an issue that discusses extensive issues across
various jurisdictions. The journal seeks to initiate discourse
surrounding pressing issues assuming primacy in the environmental
jurisprudence and form a platform for encouraging scholarship in
this nuanced field.

Beginning from a cross-jurisdictional analysis, Manjeri Subin

Sunder Raj’s paper on “Rights of nature –from spreading its wings to
flying high” analyses the philosophical debate of nature being
dragged to the court vis-à-vis nature going to court. The author
discusses philosophically and also contextualizes them while
analysing the challenges in implementing the rights of the nature and
the challenges in making nature liable and crystallization of the rights
of the nature.

Moving along the lines of such academic discussion, Sharan

Balakrishna in his paper titled, “Inland water ways – their sustainable
development, possible environmental impacts & An ideal legal
regime” discusses water ways as an alternative to pollution free
transport. The author tries to analyze them in the context of the cases
pending before the green tribunal. The author compares the existing
ii Environmental Law and Practice Review [Vol. 7

regime in India with other countries and also discusses the

environmental challenges while granting permissions to inland water
ways more specially when dredging is involved.

Engaging the readers on pertinent questions plaguing the domestic

jurisprudence, Prof. Ali Mehdi in the paper titled, “A Review of Cases decided
by the National Green Tribunal under the Water Act, 1974” argues that the
limited powers to the tribunal has curtailed the functioning of the tribunal adding
further the author opines that polluter pays principle should not be adopted as a
parameter in determining damages as the tribunal has to function on “No fault”
liability parameter.

Subsequently, Arup Poddar has written on “Indian Supreme

Court and Sustainable Development; A Tool for Delivering
Environmental Justice”. The author analyses the Supreme Court of
India decisions to trace the development of sustainable development
principles and their interpretation to ensure their effective adaptation
to further the cause of environmental justice.

Recognizing the ecological impact of mining activities Anmol

Rathore & Hansaja Pandya

Continues the deliberation on a theme titled, “Mining Woes: -

Application of Public Trust Doctrine to Preservation of Mineral
Resources in India”. The authors argue that the application of public
trust doctrine in mining activities is essential to protect the
intergeneration equity. They argue that to measure the satisfactory
compliance of the intergeneration equity principle we should adopt
2018] Editor’s Note iii

the Hartwick rule. The authors suggest the measures to be adopted

by the State Governments to achieve this.

Engaging the readers on pertinent questions plaguing the

climate change jurisprudence, Aastha Kaushal & Lianne D’Souza in
their paper titled “Effectiveness of Carbon Markets: From Kyoto to
Paris and Beyond” argues that market based strategies can act as a
solution for problems relating to climate change. The authors argue
that for effectively addressing the issue there is a need for regulated
markets and to focus on not just reduction of emissions but also on
reduction of concentration of greenhouse gasses in atmosphere.

The board of editors would like to thank the Patrons,

Advisory Board and the scholars who helped us with blind peer
review of the journal papers for their valuable contribution to the
publication of this volume. The board of editors would also like to
thank the scholars who contributed papers to the Journal.
 TABLE OF CONTENTS

Articles

Dr. Manjeri subin sunder raj 1

Rights of nature- from spreading its wings to flying high

Sharan Balakrishna 19
Inland Waterways – Their Sustainable Development,
Possible Environmental Impacts & An Ideal Legal Regime

Prof. Ali Mehdi 39

A Review of Cases Decided By The National Green
Tribunal Under The Water Act, 1974

Arup Poddar 57
Indian Supreme Court and Sustainable Development:
A Tool For Delivering Environmental Justice

Anmol Rathore & Hansaja Pandya 87

Mining Woes: - Application of Public Trust Doctrine to
Preservation of Mineral Resources in India

Aastha Kaushal & Lianne D’Souza 119

Effectiveness of Carbon Markets: from Kyoto to Paris and Beyond
RIGHTS OF NATURE- FROM SPREADING ITS WINGS TO
FLYING HIGH

Dr. Manjeri Subin Sunder Raj

ABSTRACT

Rights and Duties have always been treated as two sides of the
same coin1. Forming two basic elements of the law, these
concepts have, for long, been able to capture the imagination of
the masses. For long seen as a gift of the state2, the former has
had a tremendous change in so far as its subjects are concerned.
While rights were given more importance than duties and a
secondary treatment was meted out to the latter3, concerns were
raised that both need be given an equal footing. This was
amplified by the fact that the concepts are co-relatives4. This
translates into the fact that the act conveys a duty that needs to
be done or need not be done5. So irrespective of whether one likes

 Assistant Professor of Law, NLSIU, Bangalore

1 For more see, Stephen D. Hudson and Douglas N. Husak, “Legal Rights: How Useful Is
Hohfeldian Analysis?”, 37 Philosophical Studies: An International Journal for
Philosophy in the Analytic Tradition 45 (1980), available at
http://www.jstor .org/stable/4319347, accessed on 06/05/2019.
2 For more see, David S D’Amato, The Birth of the State, available at
https://www.libertarianism.org/columns/birth-state, last accessed on 06/05/2019.
3 For more on rights and duties see, Arthur L. Corbin, Rights and Duties, 33 The Yale Law
Journal 501 (1924), at p. 501, available at http://www.jstor. org/stable/788021, accessed
on 06/05/2019.; Joseph Raz, The Nature of Rights, 93 Mind 194 (1984); Joseph Raz, Legal
Rights, 4 Oxford Journal of Legal Studies 1 (1984); Alan R White, Rights, Blackwell,
Oxford, 1984; Arthur L. Corbin, Rights and Duties, 33 The Yale Law Journal 501 (1924);
Henry T. Terry, Legal Duties and Rights, 12 The Yale Law Journal 185 (1903).
4 Ibid.
5 For more see, Henry T. Terry, Legal Duties and Rights, 12 The Yale Law Journal 185 (1903);
Henry T. Terry, The Correspondence of Duties and Rights, 25 The Yale Law Journal 171;
Henry T. Terry, Duties. Rights and Wrongs, 10 American Bar Association Journal 123
(1924).
2 Environmental Law and Practice Review [Vol. 7

it or not, one will have to do an act or not do an act, because it

is his duty6.

It is true that rights have co-related duties but not the other
way round. It leads one to the conclusion that rights assume
significance over duties. Now, for duties to assume significance it
seems all the more necessary that the line between rights and duties
has to disappear; rather there need be a crossing over from the right
concept to the duty concept. This, though it may seem innocuous, is
as difficult a task as one would wish not to face.

Both these concepts have been discussed extensively.

Different philosophers have provided a different colour to these
concepts, thereby adding much needed variety and clarity. While only
legal rights were delved into by Hohfeld7, the differentiation of legal
as well as moral rights was looked into by Hart8. It is also interesting
to note that the differentiation that Hart brought about, providing
moral rights, was not adhered to by Jeremy Bentham9, who was of the
opinion that such a differentiation will create more problems.
However J S Mill10 stressed upon the fact that the differentiation that
Hart brought about was correct and these rights are interconnected.
There were other philosophers as well, who believed that the right

6 Joseph Raz, Liberating Duties, 8 Law and Philosophy 3 (1989), at p. 5.

7 Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial
Reasoning, 26 The Yale Law Journal 710 (1917).
8 See, H L A Hart, Are There Any Natural Rights?, 64 Philosophical Review 175 (1955). Also
see, H L A Hart, Between Utility and Rights, 79 Columbia Law Review 828 (1979) and H L
A Hart, Bentham on Legal Rights, in A W B Simpson (Ed.), Oxford Essays in Jurisprudence,
Clarendon Press, Oxford, 171 (1973).
9 Jeremy Bentham, in H L A Hart (Ed.), Of Laws in General, Althone, London, 1970.
10 J S Mill, Utilitarianism, in J Robson (Ed.), The Collected Works of John Stuart Mill, Routledge,
London, 1969.
2020] Rights Of Nature- From Spreading Its Wings To Flying High 3

concept was present in law as well as morality11. There are others like
White12, who have said that this concept is just like all other concepts.
While Dworkin13 is of the opinion that an individualistic approach
need be afforded to rights because of their importance, Raz14 and
Wellman15 suggest that it should be understood in relation to other
concepts.

As said earlier, while rights have been given some importance,

the need arises that duties too are provided with equal importance –
they are, after all, the co-relative of rights16. While one has been cast
with a duty, he is, by law, to do or not to do, an act17. The very idea
behind the duty is what need be done or what need not be done18 -
and this is the crux of the duty19. This stresses the fact that such
duties are to be fulfilled even if one does not want to do it20.

11 Joseph Raz, The Nature of Rights, 93 Mind 194 (1984). Also see, Joseph Raz, Legal Rights, 4
Oxford Journal of Legal Studies 1 (1984). Also, see, Carl Wellman, A Theory of Rights,
Rowman and Allanhead, New Jersey, 1985; Carl Wellman, Real Rights, Oxford University
Press, New York, 1995.
12 Alan R White, Rights, Blackwell, Oxford, 1984.
13 Ronald Dworkin, Hard Cases, 88 Harvard Law Review 1057 (1975). Also see, Ronald
Dworkin, Taking Rights Seriously, in A W B Simpson (Ed.), Oxford Essays in Jurisprudence,
Clarendon Press, Oxford, 202 (1973).
14 Supra n. 11.
15 Ibid.
16 Arthur L. Corbin, Rights and Duties 33 The Yale Law Journal 501 (1924), at p. 501,
available at http://www.jstor. org/stable/788021, accessed on 06/05/2019.
17 Henry T. Terry, Legal Duties and Rights, 12 The Yale Law Journal 185 (1903), at p. 186,
available at http://www.jstor.org/stable/781938, accessed on 06/05/2019.
18 Henry T. Terry, The Correspondence of Duties and Rights, 25 The Yale Law Journal 171, at p.
172, available at http://www.jstor.org/stable/ 786397, accessed on 06/05/2019.
19 Henry T. Terry, Duties. Rights and Wrongs, 10 American Bar Association Journal 123
(1924), available at http://www.jstor.org/stable/25711521, accessed on 06/05/2019.
20 Joseph Raz, Liberating Duties, 8 Law and Philosophy 3 (1989), at p. 5, available at
http://www.jstor.org/stable/3504627, accessed on 06/05/2019.
4 Environmental Law and Practice Review [Vol. 7

EXTENDING ‘STANDING’ BY ATTACHING ‘VALUE’

Two concepts, Intrinsic Value and Instrumental Value, assume

significance in so far as attaching such values to different entities are
concerned. While the former portrays and attaches value regardless
of whether there is any use or not, the latter attaches value in
furtherance of other ends21. Thereby, the latter assumes an
anthropocentric approach and affords higher protection for humans.
However, when different philosophers tried to connect the dots
between rights and duties, lawmakers had no option but to recognize
these inherent rights, or intrinsic rights22.. Based on these two
differential approaches, the concept of standing appeared to be
difficult for philosophers. While the original stance was that humans
only need be provided standing23, based on discussions that took
place, there arose a line of thought which was pro extension of the
concept of standing.

Emerging as a challenge to the traditional anthropocentric

approach, Environmental Ethics assumed much needed
significance24. Commencing with Rachel Carson’s Silent Spring25, the

21 John O’Neill, The Varieties of Intrinsic Value, 75 Monist (1992) 119. Also see, John
O’Neill, Ecology, Policy and Politics, Routledge, London, 1993 and Dale Jamieson,
Morality’s Progress: Essays on Humans, Other Animals, and the Rest of Nature,
Clarendon Press, Oxford, 2002.
22 See, National Environmental Policy Act, The United States of America, 1969.
23 John Passmore, Man’s Responsibility for Nature, Scribner’s, New York, 1974. See also,
William T. Blackstone, Ethics and Ecology in Blackstone, William T. (ed.), Philosophy and
Environmental Crisis, University of Georgia Press, Athens, 16 (1972).
24 For an idea on how Ethics assumed significance and how this acted as a bond between
environmentalists, see, B G Norton, Toward Unity Among Environmentalists, Oxford
University Press, New York, 1991; Avner de Shalit, Why Does Posterity Matter?, Routledge,
London, 1994 and Andrew Light and Eric Katz, Environmental Pragmatism, Routledge,
London, 1996.
25 Rachel Carson, Silent Spring, Houghton Mifflin Company, Boston, 1962.
2020] Rights Of Nature- From Spreading Its Wings To Flying High 5

movement gained steam with Lynn White’s essay26. Religion, more so

Judeo-Christianity was seen as one major factor which fostered
nature exploitation by White. This anthropocentric approach that was
propagated ensured that rights assumed significance and provided
rights only for humans27. Rawls too waded into the debate and threw
light on the right conduct28. Tribe on the other hand, looked into the
relation between law and ethics29. With Population Bomb30 the scene
was pretty much clear that the exponential growth of human
population will cripple resources. The Earth Rise31 photograph was a
reminder of the fragile world in which all of us lived. All these led to
an animated discussion as regards standing and to whom it should be
extended32.

This was around the time when value was being attached to
different entities; based on which there was an extension of standing,
which was previously the sole domain of humans33. Importance was
thrust on the concept of sentience – the proponents being Peter Singer

26 Lynn White, The Historical Roots of Our Ecological Crisis, 155 Science 1203 (1967); For further
analysis see, R. Attfield, Christianity, Chapter 7 in D. Jamieson (ed.), A Companion to
Environmental Philosophy, Blackwell, Oxford, 2001.
27 For an in depth analysis of Lynn White’s article, see, E. Whitney, Lynn White,
Ecotheology, and History 15 Environmental Ethics 151 (1993). Also see, Thomas
Aquinas, Summa Contra Gentiles, Bk. 3, Pt 2, Ch 112.
28 John Rawls, A Theory of Justice, Harvard University Press, 1971.
29 Laurence Henry Tribe, Ways Not To Think About Plastic Trees: New Foundations For
Environmental Law 83 Yale Law Journal 1315 (1974).
30 P R Ehrlich, The Population Bomb, Ballantine Books, New York, 1968.
31 This was taken by Bill Anders in 1968, during the Apollo 8 mission and was published in
the Scientific American in September 1970
32 Dennis Meadows and his team from MIT came up with some newer concern, during this
point of time, as regards environment protection. For more see, Dennis L Meadows et al,
(Ed.), Limits to Growth, Universe Books, New York, 1972.
33 Supra n. 23.
6 Environmental Law and Practice Review [Vol. 7

and Tom Reagan34. This was the concept which brought animals at
par with humans. What was noted was that there should be a will to
live35. Paul Taylor also brought in a revised version of this concept by
holding that each living organism is a ‘teleological centre of life’36.
The concept grew in strength when Leopold37 brought about an ethic
for an entity that was as abstract as any other- land. All these helped
grow the concept of standing.

Not to be left behind were judges of a few jurisdictions,

especially the United States, wherein there were a few cases where the
legality of such extensions of standing was under the radar. While in
the Scenic Hudson Preservation Conference v. Federal Power Commission38and
the Citizens to Preserve Overton Park v. Volpe39 case, the concept was
strengthened, the decision in Sierra Club v. Morton40 was a turning
point. With an imminent change of tide round the corner, anticipated
by Stone41, he through his work, tried to coax the judges to hold on
to the existing position. Unfortunately, this was held on to only by
Justice William Douglas, whose celebrated dissent, wherein he refers

34 See, Peter Singer, All Animals Are Equal, 1 Philosophical Exchange 243 (1974) and Tom
Regan, The Case for Animal Rights, University of California Press, Berkeley, 1983.
35 This was yet another concept that was highlighted by Albert Schweitzer. He stressed
upon the fact that the existence of this will ensures that rights need be provided for such
entities. For more see, Albert Schweitzer, Civilization and Ethics: the Philosophy of Civilization
Part II, (translated by John Naish), A & C Black Ltd, London, 1923.
36 Paul W. Taylor, Respect for Nature: A Theory of Environmental Ethics, Princeton University
Press, 1986.
37 See, Aldo Leopold, A Sand County Almanac: And Sketches Here and There, Oxford
University Press, Oxford, 1949.
38 354 F.2d 608 (2d Cir. 1965).
39 1971 U.S. LEXIS 96.
40 405 U.S. 727 (1972).
41 Should Trees Have Standing- Towards Legal Rights for Natural Objects, 45 Southern California
Law Review 450 (1972).
2020] Rights Of Nature- From Spreading Its Wings To Flying High 7

to Stone’s doing, assumes significance42. Not to be let down, Stone

still expanded his thought43 and a few cases around that time did a lot
of good as well44.

Courts in Canada as well have had an opportunity to look

into this concept. Finlay v. Canada45, Sierra Club of Canada v. Canada46
and Imperial Oil Resources Ventures Limited v. Pembina Institute for
Appropriate Development47, give rise to a more liberal approach as far as
standing is concerned.

While the concept of a Public Interest Litigation can be

drawn into this discussion, it has to be kept in mind that this is, by
far, one of the most notable achievements of the legal world. The
liberalization of the Locus Standi principle has helped water down the
strict sense of standing. Thus, by ensuring representative standing,
environmental jurisprudence grew by leaps and bounds.

THE ‘RIGHT’ WAY- SPREADING ITS WINGS

Rights were provided for, and a large number of entities were

beneficiaries. Courts, across the world have time and again been able
to provide some sort of a legal backing to such Rights of Nature. Rights
of Nature have been in the news, quite lately, and this adds much

42 Sierra Club v. Morton, 405 U.S. 727 (1972) at p. 742.

43 See, Christopher Stone, Should Trees Have Standing? And Other Essays on Law, Morals and the
Environment, Oceana Publications, New York, 1996 and Christopher Stone, Should Trees
Have Standing? Law, Morality, and the Environment, Oxford University Press, London, 2010.
44 See, Palila v. Hawaii Dept. of Land & Natural Resources 649 F. Supp. 1070 (D. Haw. 1986)
and Loggerhead Turtle v. County Council of Volusia County, 896 F. Supp. 1170 (M.D. Fla.
1995).
45 [1986] 2 S.C.R. 607.
46 [1999] 2 FC 211.
47 [2008] FC 598.
8 Environmental Law and Practice Review [Vol. 7

needed jurisprudential gravitas aimed at cataloguing such rights.

While there have been numerous instances of such rights being
provided for, in India48, implementation has always been a major
hurdle.

However, lessons can be learnt from various other places,

where such rights have been provided for. While the Tamaqua Sewage
Sludge Ordinance, 200649 provided a much needed blueprint for such a
right, probably for the first time, in the United States, quite a large
number of other states toed the line50. While instances of such
extension of rights can be seen in Belize51, Ecuador52, Bolivia53,

48 The Supreme Court of India has provided such rights to rivers. Starting with T N
Godavarman Thirumulpad v. UOI (2002) 10 SCC 606, where it was held that rivers were
treated as goddesses and were to be afforded protection, the courts have traversed a long
way in reaching the decisions rendered in Mohammed Salim v. The State of Uttarakhand,
Writ Petition (PIL) No.126 of 2014, decided on 20/03/2017. See,
http://www.tribuneindia.com/news/uttarakhand/courts/uttarakhand-hc-accords-
human-status-to-ganga-yamuna/379739.html, last accessed on 21/05/2019, where the
holy rivers Ganaga and Yamuna were treated to be as Gods and Goddesses. Later in
Lalit Miglani v. State of Uttarakhand and Ors, WP (PIL) No. 140 of 2015, the judgment
made available at http://www.livelaw.in/uttarakhand-hc-declares-air-glaciers-forests-
springs-waterfalls-etc-legal-persons/, last accessed on 06/05/2019, brought in that
surrounding parts including meadows, waterfalls, lakes and forests were held to have
rights. Even if the same has been stayed in State of Uttarakhand and Ors. v. Mohammed
Salim and Ors. Petition to Special Leave to Appeal No. 016879/2019, one does
understand the significance it assumes.
49 https://www.huffingtonpost.com/kate-beale/rights-for-nature-in-pas_b_154842.html,
last accessed on 06/05/2019.
50 See, http://www.harmonywithnatureun.org/rightsOfNature/, last accessed on
06/05/2019.
51 The Supreme Court of Belize in The Attorney General of Belize v. MS Westerhaven Schiffahrts
Gmbh & Co KG and Anr held that the Belize Barrier Reef was held to be a living thing.
Judgment available at https://www.elaw.org/system/files/westerhaven.26.4.10.pdf, last
accessed on last accessed on 06/05/2019.
52 Here the Rights were included in the Constitution. Chapter 7, Articles 71- 74,
Constitution of Ecuador, available at http://pdba.georgetown.edu
/Constitutions/Ecuador/english08.html, last accessed on 06/05/2019.
53 A specific legislation was enacted titled - Universal Declaration on the Rights of Mother Earth.
Available at https://therightsofnature.org/universal-declaration/, last accessed on
06/05/2019.
2020] Rights Of Nature- From Spreading Its Wings To Flying High 9

Colombia54, New Zealand55 and Mexico56, to name a few, instances of

such extension of rights have been on the rise, in recent times.

While this has opened up a new avenue, it is quite pertinent

to note that times have changed; so has the judicial as well as the
public eye. This has actually helped cater to the need of the present
generation and helped a large number of new instances cropping
up57. It is quite interesting to note that this movement has stabilized

54 The River Atrato and the Colombian Amazon were given such rights. See, Expediente
T-5.016.242. The original decision is available at
http://cr00.epimg.net/descargables/2017/05/02/
14037e7b5712106cd88b687525dfeb4b.pdf, last accessed on 22/03/2019 and STC4360-
2018- Judgment delivered by Judge Luis Armando Tolosa Villabona, on 05/04/2018.
Original decision available at http://files.harmonywithnatureun.org/uploads/
upload605.pdf, last accessed on 06/05/2019.
55 Legal recognition was given to Te Urewara, Mount Taranaki and the River Whanganui.
56 The State of Guerrero has provided constitutional rights.
57 Bangladesh providing such rights to the River Turag and Lake Erie being provided rights
are some of the newer instances.
For more see, https://bdnews24.com/bangladesh/2019/01/30/bangladesh-court-gives-
turag-other-rivers-status-of-legal-person-to-save-them-from-encroachment, last accessed
on 06/05/2019; https://www.dhakatribune.com/bangladesh/court/2019/01/30/turag-
given-legal-person-status-to-save-it-from-encroachment, last accessed on 06/05/2019.;
https://www.dhakatribune.com/bangladesh/court/2019/02/01/hc-stop-playing-blind-
man-s-bluff-about-rivers, last accessed on 06/05/2019;
http://files.harmonywithnatureun.org/uploads/upload763.pdf, last accessed on
06/05/2019.
Also see, Matt Hickman, Why this Ohio city just granted Lake Erie the same legal rights as humans,
available at https://www.mnn.com/earth-matters/wilderness-resources/blogs/toledo-
wants-grant-lake-erie-same-legal-rights-person, last accessed on 06/05/2019.; Pierre
Bouvier, In the United States, Lake Erie now has the legal right to "exist and prosper naturally,
available at https://www.lemonde.fr/planete/article/2019/02/22/les-habitants-de-
toledo-dans-l-ohio-appeles-a-donner-un-statut-juridique-au-lac-erie-pour-sa-
survie_5426743_3244.html, last accessed on 06/05/2019.;
https://www.loe.org/shows/segments.html?programID=19-P13-00009&segmentID=1,
last accessed on 06/05/2019.. Also see,
https://www.nationalreview.com/corner/nature-rights-movement-lake-erie/, last
accessed on 06/05/2019.; Michael Rotman, Lake Erie,
https://clevelandhistorical.org/items/show/58, last accessed on 06/05/2019.; Jason
Daley, Toledo, Ohio, Just Granted Lake Erie the Same Legal Rights as People,
https://www.smithsonianmag.com/smart-news/toledo-ohio-just-granted-lake-erie-
same-legal-rights-people-180971603/#ugOjrl6vAkAbYy3R.99, last accessed on
06/05/2019.; Malory Pickett, Ohio Just Granted Lake Erie the Same Rights as a Human,
https://medium.com/s/story/ohio-just-granted-lake-erie-the-same-rights-as-a-human-
10 Environmental Law and Practice Review [Vol. 7

itself in such a way that newer instances of such rights being provided
for are almost heard of daily. This throws light on the importance
that the subject has garnered, thereby cementing its position as one
of the latest developments in the field of law.

Expanding such rights to bring under their scope various

other entities has been one of the most notable features of this line of
jurisprudence58. Attaining strength by adding to this concept is by far
the best line of action that has been taken by the proponents of this
concept.

While rights have been afforded to different entities, it was

only recently that the Right of a Plant Species was recognized. The
White Earth Band, of the Minnesota Chippewa Tribe, implemented
the Rights of Manoomin.59 The Law states thus:

5403783279a, last accessed on 06/05/2019.; Common Dreams, In 'Historic Vote,' Ohio

City Residents Grant Lake Erie Legal Rights of a Person, https://www.ecowatch.com/lake-
erie-bill-of-rights-2630261411.html, last accessed on 06/05/2019.; Jackie Flynn
Mogensen, Holy Toledo! This Ohio City Is Voting to Give Legal Rights to a Lake, available at
https://www.motherjones.com/environment/2019/02/toledo-ohio-lake-erie-bill-of-
rights-ballotmeasure/, last accessed on 06/05/2019.; Jesse Higgins, Lake Erie first lake to
be granted same rights as a human,
https://www.upi.com/Top_News/US/2019/02/27/Lake-Erie-first-lake-to-be-granted-
same-rights-as-a-human/1661551286456/, last accessed on 06/05/2019.; Aris Folley,
Ohio city votes to give Lake Erie same legal rights as a person, available at
https://thehill.com/policy/energy-environment/431859-lake-erie-becomes-first-lake-to-
be-granted-the-same-legal-rights-as, last accessed on 06/05/2019.; Simon Davis Cohen,
Toledo Residents Vote to Recognize Personhood for Lake Erie,
https://progressive.org/dispatches/toledo-residents-vote-to-recognize-personhood-for-
lake-erie-davis-cohen-190227/, last accessed on 06/05/2019.; Yessenia Funes, A U.S.
City Just Granted Legal Rights to a Lake, available at https://earther.gizmodo.com/a-u-s-
city-just-granted-legal-rights-to-a-lake-1832960779, last accessed on 06/05/2019.
Also see, S. 2, Lake Erie Bill of Rights.
58 For a timeline of the Rights of Nature being provided in various jurisdictions, see,
https://www.invisiblehandfilm.com/what-are-rights-of-nature/, last accessed on
02/05/2019.
59 This is a type of Wild Rice. The plant is a sacred plant to tribal nations and provides
physical, cultural and spiritual sustenance. For more see, https://celdf.org/2019/02/the-
rights-of-wild-rice/, last accessed on 02/05/2019.
2020] Rights Of Nature- From Spreading Its Wings To Flying High 11

“Manoomin, or wild rice, within all the Chippewa ceded

territories, possesses inherent rights to exist, flourish, regenerate,
and evolve, as well as inherent rights to restoration, recovery,
and preservation”60.

It is to be noted that it is not only the rice that has been

afforded protection but also the clean, fresh water resources and
habitats on which it depends61. The rationale has been explained thus
“it has become necessary to provide a legal basis to protect wild rice and fresh
water resources as part of our primary treaty foods for future generations”62.

This right has been reflective of the traditional laws that the
Anishinaabe people follow63. Modelled after the Rights of Nature
concept, these rights have been able to capture the very essence of
the ideal right by including amongst others,

“The right to clean water and freshwater habitat, the right to a

natural environment free from industrial pollution, the right to
a healthy, stable climate free from human-caused climate change
impacts, the right to be free from patenting, the right to be free
from contamination by genetically engineered organisms”64.

60 Ibid.
61 https://celdf.org/2019/02/press-release-white-earth-band-enacts-first-of-its-kind-rights-
of-nature/, last accessed on 10/06/2019.
62 Ibid.
63 Winona LaDuke, The White Earth Band of Ojibwe Legally Recognized the Rights of Wild Rice.
Here’s Why, available at https://www.yesmagazine.org/planet/the-white-earth-band-of-
ojibwe-legally-recognized-the-rights-of-wild-rice-heres-why-20190201, last accessed on
18/06/2019. Also see https://www.organicconsumers.org/news/rights-wild-rice, last
accessed on 18/06/2019.
64 Ibid.
12 Environmental Law and Practice Review [Vol. 7

Tribes in the USA adopting such rights is something that is

not new65. What is to be understood is that there has been a paradigm
shift from treating nature as property to nature as something which
exists and flourishes and which possesses rights. It is interesting to note
that the law securing Rights of Manoomin provides ways to enforce it
as well. Businesses or governments which violate such rights are
doing it illegally and such permits/authorizations granted which
would affect the rights of wild rice are said to be invalid. Tribal laws
are also called in place to provide for punishments in case of
violations and enforcement is to be looked into by the 1855 Treaty
Authority. It is also interesting to note that law enforcement officials
cannot arrest or detain those who are enforcing such rights as well.
This makes it all the more clear that such rights have been provided
for in a precise manner and are sought to be protected as well. For
those who counter these rights that they don’t have a pan-societal
impact, Wesley J Smith66 comes up with a retort quoting Mari Margil,
who quipped that there was a time when an Indian and a black man
were not considered to be humans67. It is often quoted that the
importance that the entity possesses as regards the tribe is based on

65 The Ho-Chunk Nation in Wisconsin was the first US tribe to adopt Rights of Nature in
2016, followed by the Ponca Nation in Oklahoma the next year. For more see,
https://celdf.org/2016/09/press-release-ho-chunk-nation-general-council-approves-
rights-nature-constitutional-amendment/, last accessed on 18/06/2019;
http://therightsofnature.org/ponca-rights-of-nature/, last accessed on 18/06/2019.
66 Wesley J Smith, A Right to Life — For Wild Rice, available at
https://evolutionnews.org/2019/01/a-right-to-life-for-wild-rice/, last accessed on
18/06/2019.
67 Ibid.
2020] Rights Of Nature- From Spreading Its Wings To Flying High 13

the culture that it possesses68. The idea is to ensure and codify the
importance that we place on protecting the environment.

Yet another positive step that was taken was providing the
Rights of the Klamath River, by the Yurok Tribal Council69. The
Resolution70 provided for specific rights to the river, thereby enabling
it to be protected71. The steps that have been taken by the tribe,
including having one of their own members, Amy Cordalis72, fighting
it out, as the tribe’s general counsel, portrays the importance that has
been attached to the subject73. While one can argue that the
preservation of the river is directly related to the Yurok Tribe74 as
they depend on fishing, the idea behind protecting the river for its
own sake does play a great role75. The tribe members have imbibed
the very spirit of protecting nature for its own sake and see

68 Chuck Dinerstein, The Rights of Rice, available at

https://www.acsh.org/news/2019/03/04/rights-rice-13850, last accessed on
18/06/2019.
69 John Ahni Schertow, The Yurok Nation Just Established The Rights of the Klamath River,
available at https://intercontinentalcry.org/the-yurok-nation-just-established-the-rights-
of-the-klamath-river/, last accessed on 18/06/2019.
70 The Resolution is available at
http://files.harmonywithnatureun.org/uploads/upload833.pdf, last accessed on
18/06/2019.
71 The Resolution “establishes the Rights of the Klamath River to exist, flourish, and naturally evolve;
to have a clean and healthy environment free from pollutants; to have a stable climate free from human-
caused climate change impacts; and to be free from contamination by genetically engineered organisms.”
72 Anna V Smith, How a Yurok lawyer from Oregon led her tribe's fight over Klamath Basin's future,
and past, available at https://www.oregonlive.com/pacific-
northwestnews/2018/06/how_a_yurok_tribal_lawyer_from.html, last accessed on
18/06/2019.
73 Anna V Smith, How The Yurok Tribe is Reclaiming the Klamath River, available at
https://www.hcn.org/issues/50.10/tribal-affairs-how-the-yurok-tribe-is-reclaiming-the-
klamath-river, last accessed on 18/06/2019.
74 For more about the tribe, see, http://www.yuroktribe.org/, last accessed on 18/06/2019.
75 Emilio Godoy, Preservation of the Klamath River – a Life or Death Matter for the Yurok People,
available at http://www.ipsnews.net/2018/09/preservation-klamath-river-life-death-
matter-yurok-people/, last accessed on 18/06/2019.
14 Environmental Law and Practice Review [Vol. 7

themselves as protectors76. Steps have been taken by the tribe which do

ensure protection and it is to achieve these ends that they have
cancelled the salmon season, which is commercial in nature, for the
third straight year77. The reason was that the Chinook salmon
population has drastically reduced to such an extent that the specie’s
existence is threatened78.

These rights are the successors of similar rights that have

been brought about by the Ho-Chunk Nation and the Ponca Nation
in Oklahoma. These were the two tribes which brought about such
rights for the very first time. It was way back in 2016 that the Ho-
Chunk Nation brought about a change in their constitution and
included Rights of Nature, thereby being the first Tribal Nation to
advance such rights79- “Ecosystems and natural communities within the Ho-
Chunk territory possess an inherent, fundamental, and inalienable right to exist
and thrive”. That apart it also prohibited frac sand mining, fossil fuel
extraction, and genetic engineering80. All these were said to be a
violation of the Rights of Nature81. It was also mentioned that though
the Ho-Chunk Nation has always protected and preserved the Earth,

76 https://www.linktv.org/shows/tending-the-wild/willard-carlson-klamath-river-
protecting-natural-resources, last accessed on 18/06/2019.
77 Jodi Peterson, Yurok Tribe cancels salmon season on Klamath River, available at
https://www.hcn.org/issues/50.18/latest-tribe-cancels-salmon-season-on-klamath-river,
last accessed on 18/06/2019.
78 Tove Danovich, After decades, Native American tribes are regaining their fishing rights. But are
there any fish left?, available at https://newfoodeconomy.org/yurok-tribe-klamath-river-
salmon-fish-wars/, last accessed on 18/06/2019.
79 See, https://therightsofnature.org/ho-chunk-nation-rights-of-nature-constitution/, last
accessed on 18/06/2019. Also see, https://celdf.org/2018/09/press-release-ho-chunk-
nation-general-council-approves-rights-of-nature-constitutional-amendment/, last
accessed on 18/06/2019.
80 For a list of activites that have been taken by the Ho-Chunk Nation in furthering RoN,
see https://ejatlas.org/conflict/ho-chunk-tribal, last accessed on 18/06/2019.
81 Supra n. 79.
2020] Rights Of Nature- From Spreading Its Wings To Flying High 15

they were forced to adopt a Constitution based on Roman Law and

this amendment ensures that humans are just a part of nature82.

The Ponca Nation was the second Tribal Nation, which in

2017, recognized Rights of Nature as statutory law83. The catalyst was
the problem that the Nation had with fracking and the resultant
water pollution84. Supported by the Movement Rights85 founders,
who were instrumental in ensuring that Rights of Nature can be put to
use in bringing an end to treating nature as property, the Ponca
Nation came up with the law to protect nature and ban fracking.

Steps have also been taken by yet another state in Mexico86,

after Guerrero87, to provide Rights of Nature. The State of Colima,
on June 10, 2019 amended its Constitution and provided for Rights
of Nature88. Articles 2 and 16 of the Constitution have been changed
so as to include such rights89.

82 https://therightsofnature.org/ho-chunk-nation-rights-of-nature-constitution/, last
accessed on 18/06/2019.
83 See, https://therightsofnature.org/ponca-rights-of-nature/, last accessed on 18/06/2019.
84 See, https://intercontinentalcry.org/ponca-nation-oklahoma-recognize-rights-nature-
stop-fracking/, last accessed on 18/06/2019.
85 For more see, https://www.movementrights.org/, last accessed on 18/06/2019.
86 For more see, https://www.gaiafoundation.org/wp-content/uploads/2018/12/Earth-
Jurisprudence-Rights-of-Nature-Come-Alive-in-Mexico-City.pdf, last accessed on
18/06/2019. Also see, https://www.earthlawcenter.org/blog-entries/2017/11/mexico-
on-the-vanguard-for-rights-of-nature, last accessed on 18/06/2019.
87 Supra n. 56.
88 See, https://www.earthlawcenter.org/towns-cities, last accessed on 18/06/2019.
89 https://blancalivier.wordpress.com/2019/06/10/colima-hace-historia-reconocen-los-
derechos-de-la-naturaleza-en-la-
constitucion/?fbclid=IwAR2izFAuK6Iax4Z5hbXuHnzB5UTPKyTi-
_0HEBqy9UempoCzOoRHYJS4y74, last accessed on 18/06/2019.
16 Environmental Law and Practice Review [Vol. 7

Uganda also took steps, pretty recently, to bring in a paradigm shift in

its environmental governance90. As a result of the untiring efforts by
the Advocates for Natural Resources and Development
(ANARDE)91, the National Environmental Act, 2019, included
within it Right of Nature92. Nature is granted rights, and her custodians
are given the right to sue. This was in furtherance of the right to a
clean and healthy environment93.

Such steps taken do seem to be in the right direction in laying

down that it is not just humans that need rights, but nature too. This
ecocentric approach has been able to garner much needed
appreciation and admiration from various quarters; more so from
countries who have historically had an innate connection with
protecting nature and natural resources. This type of a right, having
undergone a great deal of chiseling, to attain its current form, is
surely headed in the right direction.

90 For more see, https://www.gaiafoundation.org/uganda-reweaving-the-basket-of-life/,

last accessed on 18/06/2019.
91 For more see, http://anarde.org/, last accessed on 18/06/2019.
92 S. 4- Rights of Nature
1. Nature has the right to exist, persist, maintain and regenerate its vital cycles, structure,
functions and its processes in evolution.
2. A person has a right to bring an action before a competent court for any infringement of
rights of nature under this Act.
3. Government shall apply precaution and restriction measures in all activities that can lead
to the extinction of species, the destruction of the ecosystems or the permanent
alteration of the natural cycles.
4. The Minister shall, by regulations, prescribe the conservation areas for which the rights
in subsection (1) apply.
93 Art. 39, Constitution of Uganda.
2020] Rights Of Nature- From Spreading Its Wings To Flying High 17

A NOT SO SMOOTH FLIGHT AHEAD, BUT SOAR IT WILL

While it is heartening to note that such a lot of changes have

occurred in ensuring that Rights of Nature are protected, the
implementation part does raise some concerns94. Nature going to court
and nature being dragged to court are two related, but diametrically
opposite concepts; concepts which the current legal system has not
yet been able to fathom in its truest sense. Suing nature for its actions
is something that has not yet crystallised.

More than the above mentioned conundrum, the question

that begs an immediate answer revolves around the fact as to how
such rights can be implemented. While implementing the usual rights
itself is a big challenge, the case for Rights of Nature poses a huge
challenge. While much fanfare was attached to Lake Erie being
provided rights95, the aftermath underlines the fact that our society
has not yet evolved to such a level so as to ensure that Rights of
Nature are not only recognized but also implemented. The Ohio
House of Representatives in its 2020-21 budget came out with
specific provisions which prohibited implementing Rights of
Nature96. Quite a number of critics have raised their voice against this

94 A lot of criticisms have been raised against Rights of Nature. While it is said that
providing rights is a good concept, the criticism that has been raised is that if such rights
exist, then so do duties. This oft overlooked factor is a serious matter of concern which
has not yet been answered properly.
95 See, http://communityrights.us/2019/05/09/press-release-the-first-state-in-u-s-history-
has-mentioned-legal-rights-of-nature/, last accessed on 18/06/2019.
96 See, https://celdf.org/2019/05/media-statement-the-first-state-in-u-s-history-has-
mentioned-legal-rights-of-nature/, last accessed on 18/06/2019.
18 Environmental Law and Practice Review [Vol. 7

high-handedness by the State97, with some pointing out that this

action does show that the advancement of such nature rights is being
done in the correct direction98. The step99 taken by the Ohio Attorney
General Dave Yost, to overturn the Lake Erie Bill of Rights100 is yet
another testimony to the fact that such Rights have a long way to go
before being recognized, let alone be implemented.

All said and done, it is quite safe to assume that Rights of

Nature are here to stay. Given the steps that have been taken by
numerous countries and the legal backing that such a concept has,
one can surely bet that the revolution has what it takes to taste
success. This idea, though in its infancy, is being implemented,
gradually but steadily. With growing ecological conscience and
pressure exerted by the people it is quite sure that such rights will
definitely be recognized.

Respect, it is said, is to be earned. Affording and extending

legal respect to such entities, it is felt, will surely go a long way in
realizing ecological boundaries. Such boundaries are to act as the
yardstick, thereby ensuring that Nature too has Rights. After all, a
Rights Revolution is the need of the hour.

97 Tish O’Dell, The First State in U.S. History Has Mentioned Legal Rights of Nature, available at
https://columbusfreepress.com/article/first-state-us-history-has-mentioned-legal-rights-
nature, last accessed on 18/06/2019.
98 Opined by Crystal Jankowski, organizer with Toledoans for Safe Water. Also see, Supra n.
96.
99 See, http://ohcommunityrights.org/news-updates/multi-prong-attack-by-state-of-ohio-
against-rights-of-nature/, last accessed on 18/06/2019.
100 The Bill is available at
https://beyondpesticides.org/assets/media/documents/LakeErieBillofRights.pdf, last
accessed on 18/06/2019.
 INLAND WATERWAYS – THEIR SUSTAINABLE
DEVELOPMENT, POSSIBLE ENVIRONMENTAL
IMPACTS & AN IDEAL LEGAL REGIME
Sharan Balakrishna

ABSTRACT

Waterways are a comparatively environment friendly and low-

emission form of transport. Its energy consumption per km/ton of
transported goods is approximately 17% and 50% of that of road
transport and rail transport respectively. It can also cut down
vehicular congestion by taking thousands of trucks off the roads and
greatly reduce CO2 emissions compared to air and road freight.
However, only 3.5% of trade is carried out through waterways in
India as against 47% in China, 40% in Europe and 35% in
neighbouring Bangladesh. Looking to improve on this, the National
Waterways Act, 2016 declared 111 new inland waterways as
National Waterways, adding to the 5 already in existence.

However, sustainably developing inland waterways to the extent that

they are convenient and reliable for freight transport raises
environmental issues due to the requirement of dredging on a large
scale to ensure that rivers are wide and deep enough to function as
waterways. The author intends to analyse the process of dredging,
along with the frequency of dredging required to maintain an inland
waterway and the environmental impact that it may have on the
balance of aquatic ecosystems. The author also aims to examine the

 Associate Litigator at Legal Initiative for Forest and Environment (LIFE), New Delhi.
20 Environmental Law and Practice Review [Vol. 7

other environmental impacts that are associated with the consistent

use of rivers as waterways and attempt to weigh these environmental
impacts against the possible benefits of a percentage increase in
waterway freight.

At present, two cases regarding environmental clearances for

waterway development projects lay sub judice before the principal
bench of the National Green Tribunal and their relevant legal
framework remains unclear, and therefore the author seeks to
scrutinize the same and compare it to the legal regimes employed by
countries that employ extensive inland waterways networks.

1. INTRODUCTION - THE NEED FOR WATERWAY

DEVELOPMENT

Due to increasing congestion on road and rail transport, and

an attempt to reduce logistics costs in the country, the importance of
waterways is on the rise as India seeks to develop its comparatively
miniscule waterway network. Only 3.5% of trade is done through
waterways in India as against 47% in China, 40% in Europe and 35%
in neighbouring Bangladesh.1 The government is seeking to use
waterway development to drive down the cost of logistics in India to
12%, from the current rate of 18%2. Pursuant to this, the National

1 India’s Integrated Inland Water Transport system plan may run into trouble, The Hindustan Times,
December 26, 2016, available at: http://www.hindustantimes.com/editorials/india-s-
integrated-inland-water-transport-system-plan-may-run-into-trouble-at-a-later-
date/story-qaTv3g4Wagjv4LnxzIE0XO.html
2 India to harness 50,000 km of sea and river fronts: Nitin Gadkari, Live Mint, March 13, 2016,
available at: http://www.livemint.com/Politics/CxGajC4nkJK0YhU28SQRrO/India-
to-harness-50000-km-of-sea-and-river-fronts-Nitin-Ga.html
2020] Inland Waterways – Their Sustainable Development…… 21

Waterways Act, 2016 declared 111 new inland waterways as National

Waterways, adding to the 5 already in existence.3

Inland waterways are an environment-friendly option in

terms of energy consumption and noise emissions. Its energy
consumption per km/ton of transported goods is approximately 17%
and 50% of that of road transport and rail transport respectively.4 It
also helps clear vehicular congestion as it keeps thousands of trucks
off the roads. Therefore waterway networks are used extensively in
developed countries, especially for the movement of cargo.

In the United States, the inland waterway system is comprised

of over 12,000 miles of navigable waterways that touch 38 states. In
2012, this system accommodated 565 million tons of freight valued at
$214 billion.5

Inland waterways are particularly well developed in the EU.

More than 37,000 kilometres of waterways connect hundreds of cities
and industrial regions. Some 21 out of 28 Member States have inland
waterways, 13 of which have an interconnected waterway networks.6

China’s inland waterway transport network is the world’s

largest, in terms of length and freight tonnage. Its inland waterways

3 Development of Inland Waterways, Press Information Bureau, Government of India –

Ministry of Shipping, August 1, 2016, available at:
http://pib.nic.in/newsite/PrintRelease.aspx?relid=148091
4 Inland Waterways, Mobility and Transport, European Commission, available at:
https://ec.europa.eu/transport/modes/inland_en
5 Inland Navigation in The United States - An Evaluation of Economic Impacts and the Potential
Effects of Infrastructure Investment, University of Kentucky & University of Tennessee,
Sponsored by National Waterways Foundation (November 2014), available at:
http://www.nationalwaterwaysfoundation.org/documents/INLANDNAVIGATIONI
NTHEUSDECEMBER2014.pdf
6 Supra n 3.
22 Environmental Law and Practice Review [Vol. 7

form the largest transportation network, accounting or 40% of all

cargo traffic. The network comprises of 111,000 km of navigable
waters, 5800 km of which are navigable for 1000 ton class vessels,
primarily in Southern China.7

Having discussed the scope of inland waterways both in India and

internationally, it is important to look at the impact that this form of
transport can have on the environment especially the water ways.

2. POSITIVE IMPACT OF INLAND WATERWAYS

As mentioned before, waterways are the most energy and

emission efficient form of freight transport. On average, a gallon of
fuel allows one ton of cargo to be shipped 59 miles by truck, 202
miles by rail, and 514 miles by barge.8 With regard to greenhouse gas
(GHG) emissions, a major study9 in the European Union (EU)
estimated that CO2 emissions per tonne-km in EU freight transport
are 672 grams for airfreight, 86.3 grams for road freight (in 40 tonne-
trucks), 34.4 grams for inland waterways vessels, and 29.4 grams for
railways. Therefore if environmentally sustainable infrastructure
exists for inland waterway transport, it should be the preferred mode
of transport for freight to maximise energy efficiency and reduce
emissions.

7 Sustainable Development of Inland Waterway Transport in China, The World Bank & Ministry
of Transport – People’s Republic of China (May 2009), available at:
http://siteresources.worldbank.org/EXTPRAL/Resources/china.pdf
8 Inland Waterway Navigation – Value to the Nation, US Army Corps of Engineers (May
2000), available at:
http://www.mvp.usace.army.mil/Portals/57/docs/Navigation/InlandWaterways-
Value.pdf
9 TREMOD: Transport Emission Model - Energy Consumption and Emissions of Transport in
Germany – Final Report, Institut für Energie und Umweltforschung Heidelberg GmbH
(2006).
2020] Inland Waterways – Their Sustainable Development…… 23

3. DETRIMENTAL EFFECTS OF INLAND WATERWAY

DEVELOPMENT

Development of waterways may have negative consequences

on the environment surrounding the river that is being developed for
use as a waterway. One of the primary environmental concerns
relating to development of waterways is from dredging. However,
before understanding the negative impact from dredging for inland
waterways it is necessary to understand the types of dredging.

3.1. TYPES OF DREDGING

Dredging is of two types –

1. Capital Dredging – it is the use of dredging for the

creation of new civil engineering works such as canals,
harbours or deepening of existing waterways.

2. Maintenance Dredging – it is the keeping of existing

harbour basins, waterways etc. at the existing
hydrological or nautical depth by the removal of
siltation.

3.2. ENVIRONMENTAL IMPACTS OF DREDGING

The environmental impacts of dredging, especially of

estuaries and deltas of rivers, can be summarised as –

 Removal of subtidal benthic species and communities.

 Short-term increases in the level of suspended sediment can give

rise to changes in water quality which can effect marine flora and
fauna, both favourably and unfavourably, such as increased
24 Environmental Law and Practice Review [Vol. 7

turbidity and the possible release of organic matter, nutrients and

or contaminants depending upon the nature of the material in the
dredging area.

 Settlement of these suspended sediments can result in the

smothering or blanketing of subtidal communities and/or
adjacent intertidal communities, although this can also be used
beneficially to raise the level of selected areas to offset sea level
rise or erosion (short-term impact versus long-term gain).10

These primary impacts of dredging occur from a two-fold

process. Firstly, from the result of the dredging process itself and
secondly from the process of the disposal of the dredged material.
The impact of dredged material disposal largely depends on the
nature of the material (inorganic, organically enriched or
contaminated) and the characteristics of the disposal area
(accumulative or dispersive areas).

3.1. LONG TERM IMPACTS OF DREDGING

However, the long-term impacts of dredging, especially near

estuaries or deltas, can be far more widespread and are still not
conclusively understood. A study11 on the effects of dredging on the
Pearl River Estuary showed long term effects on aspects such as
Flow Split Ratio, Tidal Range and Residual Currents and Salinity
Distribution. Flow Split Ratio (FSR) reflects the proportion of

10 Reports from Central Dredging Association (CEDA) and Permanent International

Association of Navigation Congresses (PIANC)
11 Yuan, R. & Zhu, J., The Effects of Dredging on Tidal Range and Saltwater Intrusion in the Pearl
River Estuary, Vol. 31, JOURNAL OF COASTAL RESEARCH, No. 6 (November
2015), pp. 1357-1362
2020] Inland Waterways – Their Sustainable Development…… 25

freshwater transported from headwaters to each branch in a multi

branch estuary. Dredging in the West River Network (WRN) and the
North River Network (NRN) was analysed at the locations of Makou
and Sanshui respectively. A higher degree of dredging was carried out
on the NRN, and post dredging, the split ratio changed drastically
towards the NRN, whereas the WRN saw a reduction in water flux.

Furthermore, the dredging also altered the Tidal Range of the

various branches in the estuary, increasing in the WRN and
decreasing in the NRN (inverse to FSR). Seaward currents increased
in the NRN, whereas landward currents increased in the WRN. This
change in the FSR and Tidal Range brought about changes in the
estuary circulation and therefore a corresponding change in the
salinity of the water and the deposition of sediments and materials.
Though not specifically stated by the researchers themselves, such
changes in fresh water distribution, salinity, sedimentation and
currents in a river network can have a massive impact on the ecology
of the area, especially in ecologically sensitive zones.

A similar study conducted on the Yangtze River Estuary12

also concluded that dredging works carried out for the Deep
Waterway Project on the North Passage of the estuary also brought
about changes in the tidal flow distributions, current strengths and
salinity of the water level along the different branches of the estuary.

12 Hu, K. & Ding, P., The Effect of Deep Waterway Constructions on Hydrodynamics and Salinities in
Yangtze Estuary, China, Vol. II (2009), JOURNAL OF COASTAL RESEARCH, Special
Issue No. 56. Proceedings of the 10th International Coastal Symposium ICS 2009, , pp.
961-965
26 Environmental Law and Practice Review [Vol. 7

A study on the dredging of the Bonny approach channel in

the Niger River Delta13 produced some alarming results showing
significant detrimental effects to the environment in the region. After
the dredging process, the water in the delta showed Total Dissolved
Solids (TDS) to the magnitude of 33,200 mg/l, with the permissible
limit for TDS being 5,000 mg/l. Similarly the water contained Total
Suspended Solids (TSS) amounting to 14,000 mg/l, 28 times the
permissible limit of 500 mg/l. The researchers opined that such a
high value of TSS could kill nearly 80% of all aquatic life in the
region.

The researchers also raised concerns over the dumping of

dredged material removed from the site as it observed to be heavily
contaminated with heavy materials. Though the excessively high
levels of TDS and TSS can be significantly attributed to the dredging
process, these values need to be looked at taking into consideration
the fact that the Niger River delta was already a highly stressed
environment before the process of dredging due to the high levels of
industrial runoffs into the river in the region.

3.2. MINIMISING THE IMPACT OF DREDGING

Modern day dredging operations involve checks and

safeguards to minimise the environmental impact of dredging to the
least possible level. Especially in ecologically sensitive areas, the
dredging operations are required to be of a sufficiently long duration

13 Agunwamba, J.C. et al., Potential effects on the marine environment of dredging of the Bonny channel
in the Niger Delta, ENVIRONMENTAL MONITORING AND ASSESSMENT, (2012)
184:6613 –6625.
2020] Inland Waterways – Their Sustainable Development…… 27

so as to be able to incorporate all necessary impact assessment,

monitoring and management programmes. Environmental Risk
Assessment & Management programmes are first carried out, and
these stress on the identification of the following factors –

 environmental values present at a port, river and

surrounding areas;

 risks that may create detrimental impacts;

 the size and duration of the proposed dredging program;

 dredging methods and mitigation measures to avoid and

reduce impacts; and

 adaptive management strategies that incorporate

monitoring results14

Environmental feedback monitoring and management plans

are also employed, to ensure prior and real time inputs and measures
to mitigate the environmental impact. These inputs are gauged based
on several aspects such as –

 Spill budget (the maximum amount of daily spill which

ensures compliance with the imposed environmental
protection objectives) control which is used to form a
first level control of potential impacts.

 Results from online instrumentation (at relevant areas)

14 Environmental Code of Practice for Dredging and Dredged Material Management, Ports Australia
(2016), Sydney. Available at:
http://www.portsaustralia.com.au/assets/Publications/Ports-Australia-Dredging-Code-
of-Practice.pdf.
28 Environmental Law and Practice Review [Vol. 7

are used as indirect indicators of potential health of the

sensitive receptors (e.g. corals) based on tolerance limits

 Predictive numerical models are used extensively to hind

cast/forecast the location of the plumes from the
construction operations and for providing a detailed
temporal and spatial picture of potential impacts, filling
the gaps between monitoring stations and allowing a
segregation of the impacts arising from the dredging
activities.

 The tolerance limits are updated based on monitoring

data at sensitive receptor areas. This is the so-called
feedback loop. This is carried out only if the project
duration is long enough to allow this evaluation as
receptors reaction to impacts may require time to
become noticeable and if the dredging period is short it
will not allow for re-assessment of these values.15

Other mitigation measures are also employed that

continuously run parallel and complementary to the impact
assessment and monitoring and management plans. Some common
practices include –

 Reducing as much as practical the amount of sediment

introduced into the water column as a passive plume for

15 Savioli, J.C. et al, Dredging - How Can We Manage it to Minimise Impacts, PROCEEDINGS
OF THE 7TH INTERNATIONAL CONFERENCE ON ASIAN AND PACIFIC
COASTS (APAC 2013), Bali, Indonesia, September 24-26, 2013, available at:
https://www.dhigroup.com/upload/publications/coastsea/Savioli_2013.pdf.
2020] Inland Waterways – Their Sustainable Development…… 29

a given dredge operation. This can be achieved by using

green valve technology and ensuring that well
maintained equipment is used avoiding unintentional
leaks.

 Careful management of the dredge plume to direct it

away from sensitive receptors. This is done through
planning and working carefully with the current
conditions to ensure that dredging with overflow in
critical areas is only carried out when currents will carry
the dredge plume away from sensitive receptors.16

4. OTHER IMPACTS OF WATERWAY DEVELOPMENT

Excluding dredging, the development of inland waterways

may also result in other impacts on the ecology of rivers due to
increased waterway traffic on these rivers.

The earlier mentioned study on the Niger River Delta17 also

detected very high levels of Iron content in the water, which the
researchers attributed to rusty ships due to the heavy shipping traffic
in the region, which is another concern related to the development of
waterways that are likely to see heavy traffic, especially in ecologically
sensitive areas.

Similar results were recorded by researchers from Universiti

Teknologi Malaysia, studying the impact of increased waterway traffic

16 Id.
17 Id.
30 Environmental Law and Practice Review [Vol. 7

in the Melaka River.18 The Melaka River was extensively developed

as a waterway for the purpose of tourism, in the form of a river
cruise, inter alia. Consequently, high amounts of oil and grease were
observed in parts of the river most commonly used for the river
cruise, though the researchers were unable to measure the precise
amounts of oil and grease discharged from the said cruise boats.

Furthermore, another great environmental risk associated to

inland waterway development is that of oil spills and oily-based liquid
spills and the well-known catastrophic impact that the same may have
on the aquatic environment. Therefore careful attention needs to be
paid towards prevention and emergency mitigation measures for such
risks.

5. LEGAL POSITION OF INLAND WATERWAY DEVELOPMENT IN

INDIA

Given the significance of inland waterways in India, it is

important to understand the law and policy framework that regulates
them. As stated earlier, the National Waterways Act, 2016 declared
111 rivers in India as waterways, adding to the 5 waterways that were
already in existence. However before these rivers can be adequately
developed to function as waterways, the legal position with regard to
clearances and permits for such development projects is yet unclear.

18 Bachok, A. N. D. & Kader, A. S. A., Environmental Impact of Navigation in Inland Waterways,

JOURNAL OF TRANSPORT SYSTEM ENGINEERING, 2:2 (2015) 21–28.
2020] Inland Waterways – Their Sustainable Development…… 31

The EIA Notification19 passed in 2006 by the Ministry of

Environment and Forests under the Environment (Protection) Rules,
1986 mandates certain projects to obtain Environmental Clearance
(EC) from the State Environmental Impact Assessment Authority
(SEIAA) or Ministry of Environment, Forests & Climate Change
(MoEF&CC). The notification does not specifically mention inland
waterway projects as projects that require mandatory EC under its
Schedule.

Two cases relating to development projects on inland

waterways are currently sub judice in the NGT, with disputes regarding
clearances required for these projects -

The first matter of Bharat Jhunjhunwala v. Inland Waterways

Authority of India & Ors.20 is regarding the Inland Waterways
Authority of India’s (IWAI) Jal Marg Vikas Project which is a project
for capacity augmentation of National Waterway 1 (Ganga-
Bhagirathi-Hooghly river system), focusing on the stretch between
Haldia and Varanasi. IWAI have maintained in their Environmental
Impact Assessment Report 21 that and EC is not required for the said
project, other than ancillary aspects such as quarry sites used by
contractors etc.

19 EIA Notification, S.O. 1533 (E), 14th September, 2006, Ministry of Environment,
Forests and Climate Change, Available at: http://envfor.nic.in/legis/eia/so1533.pdf.
20 Bharat Jhunjhunwala v Inland Waterways Authority of India & Ors. (National Green
Tribunal), O.A. 487/2015.
21 Capacity Augmentation Of National Waterway -1 (Jal Marg Vikas Project) Environmental Impact
Assessment Reports, EQMS India Pvt. Ltd., Available at:
http://documents.worldbank.org/curated/en/419781468255890148/pdf/SFG2240-
REVISED-EA-Box396336B-PUBLIC-Disclosed-12-6-2016.pdf
32 Environmental Law and Practice Review [Vol. 7

The Applicants have contended that Respondent No. 1

(IWAI) would require an EC as Item 7(e) (“Ports, harbours, break
waters, dredging.”) of the Schedule contained in the EIA notification
would cover the present project as waterways are an attendant part of
port & harbours. They have contended that the project would require
a Category ‘A’ clearance under the EIA Notification as it would
handle cargo exceeding 5 million TPA, but the Project has been
artificially split into smaller components to evade EC under the EIA
Notification.

The Respondents have contended that this application does

not fall within the jurisdiction of the Tribunal as the Applicants ought
to seek an amendment to the EIA Notification to include ‘inland
waterway’. They have also claimed that the application barred by
limitation as the Applicants knew of the Project since 1st August
2014, when the first RTI was filed and that the applicants don’t have
locus standi as an ‘aggrieved person’ under the NGT Act.

The Respondents have also claimed that the operations being

carried out by them are maintenance dredging operations and
therefore exempt from obtaining an EC as per the conditions stated
for Entry 7(e) in the Schedule of the EIA Notification 2006. These
are –

“General Conditions shall apply

Note:

1.Capital dredging inside and outside the ports or harbours and

channels are included.
2020] Inland Waterways – Their Sustainable Development…… 33

2.Maintenance dredging is exempt provided it formed part of the

original proposal for which the environment management plan
(EMP) was prepared and environmental clearance obtained.”

Furthermore, an EIA Notification of 201622 has clarified that

certain activities are exempted from EC under Appendix IX of the
notification. Entry 623 seems to exclude dredging activities from
requiring an EC. However the wording of Entry 6 seems to imply
that only maintenance dredging would be excluded from acquiring an
environmental clearance. Therefore the position regarding such
environmental clearance is rather vague and up to interpretation by
the Tribunal, barring a subsequent amending notification from the
MoEF & CC providing clarity to the matter.

Similar issues have been argued in the case of Inland Waterways

Authority of India v. Union of India & Ors.24, which is regarding IWAI’s
proposed project to provide water taxi services on the Yamuna River
(NW-1) between Wazirbad and Fatehpur Jat. The Author is of the
view that as per the current legal framework, an environmental
clearance would indeed be required for these project on account of
the significant potential harm to the environment that may be caused
due to necessary capital dredging and other construction activities to

22 EIA Notification no. S.O. 147 (E), 15th January, 2016, Ministry of Environment, Forests
and Climate Change, Available at:
http://environmentclearance.nic.in/writereaddata/EIA_notifications/2016_01_15_SO_
147(E).pdf
23 ‘Dredging and de-silting of dams, reservoirs, weirs, barrages, river, and canals for the
purpose of their maintenance, upkeep and disaster management.’
24 Inland Waterways Authority of India v. Union of India & Ors. (National Green
Tribunal), OA 477/2016.
34 Environmental Law and Practice Review [Vol. 7

be conducted on the banks of the rivers to make them suitable for

use as inland waterways.

However, the National Green Tribunal has leaned towards

the principle of purposive construction, to include large projects with
potential impacts on the environment, under other entries in the
Schedule, so as to mandate the project to obtain an EC. Certain
instances of the same are mentioned herein below.

Entry 8(a)25 & 8(b)26 under the Schedule to the EIA

Notification were used to include a steel flyover in Bangalore under
the Schedule by the use of the Principle of Purposive Construction in
a case against the Bangalore Development Authority27. The Tribunal
held that an EC was required as bridges or flyovers would be covered
under entries 8(a) or (b). The project was hence scrapped for the lack
of an EC.

The Principal Bench of the NGT had taken a similar view in

the Delhi Signature Bridge Case.28 In this case, the project was
required to get an EC, as it was covered under Entry No. 8 in the
Schedule. Here however, the Bridge was granted a Clearance after
certain conditions to be fulfilled were placed on the project such as -

“use of anti-carbonation paint to protect from pollutants, no

dumping of solid or liquid waste into the river, taking consent

25 Building and Construction projects (20,000 sq. mtrs ≤ Built up Area ≤ 1,50,000 sq. mtrs)
26 Townships and Area Development projects (Area ≥ 50 ha OR Built up Area ≥ 1,50,000
sq. mtrs)
27 M/s Citizen Action Forum & Ors. v. Union of India & Ors [2017] (National Green
Tribunal, SZ)., O.A. 245/2016 (Judgment on 13th March, 2017).
28 Vikrant Kumar Tongad v. DTTC & Ors. [2015] (National Green Tribunal) O.A.
137/2014 (Judgment on 12th February, 2015).
2020] Inland Waterways – Their Sustainable Development…… 35

from authorities concerned on safety from earthquake and

lightning, traffic studies on the bridge and storm water drainage
and noise pollution prevention.”

The NGT had ruled similarly with regard to the Metro link
between Noida and Greater Noida, directing the Delhi Metro Rail
Corporation (DMRC) to obtain an EC for the same. The Tribunal
did not stall the project, but said that DMRC can obtain the EC
when the project was ongoing. However this was later overturned by
the Supreme Court29, in light of the beneficial effects to the
environment that would result from the eco-friendly nature of the
Metro link, as increased use of the Metro would maximise energy
efficiency and significantly decrease fuel consumption in the city.

Therefore, based on this order of the Supreme Court, an

argument can be made in favour of the development of inland
waterways not requiring an EC, as inland waterways too would result
in a lot of the same beneficial effects to the environment that were
considered by the Supreme Court when it ruled that the Noida –
Greater Noida Metro link does not require an EC.

6. CONCLUDING REMARKS

While the question of clearances and permissions for

inland waterway projects remain sub judice at the National Green
Tribunal, the issues that would be considered by the Tribunal in these
cases have been highlighted in this document. The Author is of the
view that some sort of legal framework needs to exist to regulate

29 Delhi Metro Rail Corporation v. Vikrant Tongad & Ors.

36 Environmental Law and Practice Review [Vol. 7

projects that seek to develop inland waterways. This is because

development of waterways is an issue that is subject to several
environmental factors that may differ vastly in different locations.
Furthermore, several rivers across India are in a miserable condition
and they also flow through many ecologically sensitive areas,
therefore it is imperative to have a well-regulated system to vet large
waterway projects, especially in cases where dredging is involved.

However, considering the several environmental benefits of

waterways as highlighted earlier in this document, the massive
untapped capacity of the waterways in India, added to the severe
problem of congestion on Indian roads make it increasingly
important to expeditiously initiate and complete an inland waterway
transport system that is environmentally sound and in competition
with roadways and railways. Hence delays to environmentally
beneficial projects attributable to long waiting periods for acquiring
clearances would impede much needed progress on this front.
Therefore it would be useful to look into an alternate regime for the
regulation of the development of waterways, as opposed to the
requirement of an EC.

For instance in the United States, §10 of the Rivers and

Harbors Appropriation Act of 1899, states that for all dredging
activities require the plan to be recommended by the Chief Engineer
of the US Army Corps of Engineers (USACE) and authorised by the
Secretary of War.30 Majority of dredging activity in the US is carried

30 Rivers and Harbors Appropriation Act of 1899, §10, Available at:

https://www.epa.gov/cwa-404/section-10-rivers-and-harbors-appropriation-act-1899.
2020] Inland Waterways – Their Sustainable Development…… 37

out by the USACE, and even the dredging activities of private players
need the recommendation of the USACE. For the disposal of
dredged material, a separate permit under §404 of the Clean Water
Act, which is also granted by the Chief Engineer of the USACE.31
Therefore the legal regime in the US is of the nature of a specialised
organisation with technical expertise which is the authority for
granting permits for all dredging activities.

Several countries in the EU employ a similar mechanism as

India for EIA of dredging projects, by an authority set up under the
respective Ministry dealing with environment affairs. However the
time period for such assessment is significantly quicker, hence
making it a much favourable process for developers, as opposed to in
India. For example, in Lithuania, the impact assessment is conducted
by the Lithuanian EPA, and the assessment is to be completed within
10 working days (20 working days, if the permit approval procedure
has to be additionally agreed with the Ministry of Environment) from
when the contractor has submitted all relevant information about the
project which has been specified by the EPA under its guidelines.32
Therefore if the procedure for EIA in India was so streamlined and
efficient, most contractors would not seek litigation to avoid the EIA
procedure, but rather seek to ensure that their projects were
compliant with the guidelines specified.

31 Section 404 Permit Program, United States Environmental Protection Agency, Available
at: https://www.epa.gov/cwa-404/section-404-permit-program.
32 Suzdalev et al., Existing legislative requirements for the location of dumping sites, dumping practices
and monitoring approaches within BSR, December 2014, Available at:
http://corpi.ku.lt/ecodump/uploads/files/CP3_6_Existing_practice_analysis_Quantity
_types_characteristics_Final.pdf.
38 Environmental Law and Practice Review [Vol. 7

Therefore India needs to streamline and expedite its

procedure for the grant of Environmental Clearance or transfer the
authority to grant such clearances to a body with the requisite
technical expertise and experience similar to the procedure that is
used by the United States, so as to ensure that necessary rapid
development is not impeded by equally necessary environmental
protection measures.
 A REVIEW OF CASES DECIDED BY THE NATIONAL
GREEN TRIBUNAL UNDER THE WATER ACT, 1974

Prof. Ali Mehdi

ABSTRACT

The civil court has extensive powers to resolve disputes of a civil

nature. There is a strong presumption in law favoring the
jurisdiction of civil court over such matters unless expressly
excluded. In the recent times, we are witnessing a proliferation
of cases involving complex scientific problems requiring expert
intervention. Ordinary judges may not have the requisite skills
to understand such matters and thereby causing a delay in
resolving the dispute. With the rise of various environmental
problems, we require a judicial body which focuses exclusively on
environment related matters. The National Green Tribunal
was established to enable an expeditious settlement of complex
environmental problems by involving trained experts. The
Tribunal inter-alia entertains appeal against the order passed
under the Water (Prevention and Control of Pollution) Act,
1974, since beginning of the present decade. The paper presents
a critical review of the water related cases decided in 2017, to
appraise the functioning of the Tribunal as an institution
comprised of expert members with a definite object.

 Faculty of Law, Banaras Hindu University, Varanasi. Former Member, CIEL, IUC
40 Environmental Law and Practice Review [Vol. 7

INTRODUCTION

The Humans and the Environment surrounding them are

closely inter-related and man is dependent on his natural
surroundings for the fulfillment of a variety of needs. The
Environment provides sustenance to life and provides food, shelter
and other important resources without which man cannot survive.
But in the recent times, due to the nature of the economic system
and our way of life, man has engaged in overuse and exploitation of
the natural resources causing their gradual depletion. The Earth is
no longer able to sustain the present activities of man. The human
activities have polluted the environment and degraded the quality of
resources. The Environmental laws seek to regulate the relationship
between man and the ecosystem by prescribing safe limits and
providing for close monitoring of human activities by various
regulatory bodies. These laws also provide strict sanctions against
conduct which is not in compliance with the law. Earlier, a person
could only claim compensation for the personal loss caused to him
or his property by the degradation of the environment. No one
could claim for the damage caused to the environment by itself.
Recently El Salvador as declared its forests as living entities. The
Uttarakhand HC did the same for the entire wildlife. At present, we
have a range of environmental laws which recognize the damage
caused to the environment and its inhabitants separate from the loss
caused to the humans. We are slowly shifting from an
anthropocentric attitude to acknowledging the rights of natural
environment by itself.
2020] A Review of Cases Decided by the National Green Tribunal Under the Water Act, 1974 41

PROTECTION OF A RIGHT TO POLLUTION FREE

ENVIRONMENT UNDER THE CONSTITUTION

Man has an undisputable and inherent right to enjoy a safe,

pollution free and clean environment but doesn’t derive the
exclusive right to extract benefits out of it without any limits. The
right to be surrounded by a healthy environment has been
recognized as an important aspect of a dignified life under Article
21.1 But the exercise of such a right is not absolute. It is limited by
various restrictions under law and imposed by the courts. The
Supreme Court has been responsive to cases involving industrial
hazards and release of dangerous chemicals into the environment.
The release of poisonous gases by Union Carbide Corporation in
Bhopal affecting a huge number of people even till today2 and the
pollution by the Shri Ram Fertilizer unit in Delhi3 led the Supreme
Court to emphasize the need for a special court to resolve such
cases. In the MC Mehta v. UOI4 (Oleum gas leak case) the Supreme
Court recommended the constitution of a special court on
environmental issues with both judicial and expert members from
the scientific and environmental fields. It acknowledged the need
for scientific and technical inputs to inform judicial decision making.

1 Rural Litigation and Entitlement Kendra and ors. V State of UP, AIR 1985 SC 652
(India)
2 Stuart Diamond, The Bhopal Disaster: How It Happened, THE NEW YORK TIMES, January
28, 1985, https://www.nytimes.com/1985/01/28/world/the-bhopal-disaster-how-it-
happened.html (last visited Jul 22, 2019).
3 MC Mehta v UOI, AIR 1987 965 (India)
4 Id.
42 Environmental Law and Practice Review [Vol. 7

THE NATIONAL GREEN TRIBUNAL

The Rio Declaration also recognized the right of a remedy

of the victims of environmental disasters. The Declaration5 adopted
in 1992 incorporated the principle 13 and exhorted the states to
introduce domestic law defining the liability and specifying
compensation to the victims of pollution and other environmental
damages. In this context, the Parliament passed the National
Environment Protection Act, 19956 to provide for the establishment
of the National Environment Tribunal (NET) for disposal of cases
of accident in hazardous industries. The Supreme Court of India on
16th April, 1996, directed the Chief Justice of Calcutta High Court to
constitute a special bench to hear environment related cases7 once a
week, and thus the idea of a “green bench” was born. The Tribunal
was however never established and remained ossified in the statute
book until the 2010 act replaced the old act. After the constitution
of NGT, the HC declined to entertain cases related to environment
and pointed out in the State of Chhattisgarh v Shri Sudarshan case8
that “after promulgation of the NGT Act there is change in the
scenario and the tribunal created under the Act has been discharging
the function as a court of first instance. There is no scope to

5 A/CONF.151/26 (Vol. I) REPORT OF THE UNITED NATIONS CONFERENCE

ON ENVIRONMENT AND DEVELOPMENT, ,
https://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm (last visited Jul
22, 2019).
6 The National Environment Tribunal act, Act No. 27, Acts of Parliament, 1995 (India).
7 Green` benches - India Environment Portal | News, reports, documents, blogs, data,
analysis on environment & development | India, South Asia,
http://www.indiaenvironmentportal.org.in/content/18739/green-benches/ (last visited
Jul 22, 2019).
8 State of Chattisgarh v Shri Sudarshan, (2018) W.P. 22702 of 2017 (India).
2020] A Review of Cases Decided by the National Green Tribunal Under the Water Act, 1974 43

approach this court directly in a matter relating to environment and

pollution”

JURISDICTION OF GREEN TRIBUNAL

The constitution of the NGT allows the expeditious disposal

of cases arising out of environment related issues which are a
consequence of rising urbanization and industrialization. The
Parliament created a special tribunal to satisfy the imminent need for
the same expressed at both national and international levels. The
NGT has been protecting the rights of the people to a safe
environment and dignified life. The tribunal has jurisdiction over all
cases involving environmental rights and issues. It has jurisdiction to
hear cases under many of the existing environmental laws of the
country.

Section 14(1) - The Tribunal shall have the jurisdiction over

all civil cases where a substantial question relating to environment
(including enforcement of any legal rights relating to environment), is
involved and such question arises out of the implementation of the
enactments specified in Schedule I.9

(2) The Tribunal shall hear the disputes arising from the
question referred to in sub section (1) and settle such disputes and
pass order thereon.10

(3) No application for adjudication of dispute under this

section shall be entertained by the Tribunal unless it is made within a

9 National Green tribunal act, Act No. 25, Acts of Parliament (India).
10 Id.
44 Environmental Law and Practice Review [Vol. 7

period of six months from the date on which the cause of action for
such dispute first arose;

Provided that the tribunal may, if it is satisfied that he

applicant was prevented by sufficient cause from filling the
application within the said period, allow it to be filed within a further
period not exceeding sixty days.11

The constitution of the NGT allows the expeditious disposal

of cases arising out of environment related issues which are a
consequence of rising urbanization and industrialization. The
Parliament created a special tribunal to satisfy the imminent need for
the same expressed at both national and international levels. The
NGT has been protecting the rights of the people to a safe
environment and dignified life. The tribunal has jurisdiction over all
cases involving environmental rights and issues. It has jurisdiction to
hear cases under many of the existing environmental laws of the
country.

Section 15 (1)- The Tribunal may, by an order, provide –

a. Relief and compensation to the victims of pollution and other

environmental damage arising under the enactments specified
in Schedule I (including accident occurring while handling any
hazardous substance)

b. For restitution of property damaged:

11 Id.
2020] A Review of Cases Decided by the National Green Tribunal Under the Water Act, 1974 45

c. For restitution of the environment of such area or areas as the

Tribunal may think fit.

(4) The Tribunal may, having regard to the damage to public

health, property and environment, divide the compensation or relief
payable under separate heads specified in schedule II so as to provide
compensation or relief to the claimants and for restitution of the
damaged property or environment, as it may think fit.12

Under the section 16, any person aggrieved by an

order/decision made by the tribunal may appeal against that order
within 30 days of communication of such order or decision.13

It is also empowered to give relief and compensation for

damages to persons and property and for matters connected
therewith or in being incidental thereto. The Tribunal since inception
up to April, the current year, is credited with disposal of a significant
number of cases – a whopping 27022 out of the total of 29939 cases14
instituted. It is relevant to note that against the order of the tribunal,
judicial review by the High Court under Article 226 of the
Constitution is permissible.15

It has power to hear all cases pertaining to environment. It

has the jurisdiction to hear claims for compensation for personal

12 Id.
13 Id.
14 NGT disposed of over 19,000 cases from 2011-17, THE ECONOMIC TIMES, April 11,
2017, https://economictimes.indiatimes.com/news/politics-and-nation/ngt-disposed-
of-over-19000-cases-from-2011-17/articleshow/58128891.cms.
15 Vujjini Vamshidhar, High Court’s powers under Art 226 not absolute, DECCAN CHRONICLE
(2019), https://www.deccanchronicle.com/nation/current-affairs/030119/high-courts-
powers-under-art-226-not-absolute.html (last visited Jul 22, 2019).
46 Environmental Law and Practice Review [Vol. 7

injuries caused by environmental damages and also, claims for

restitution of property. One can move to the tribunal in appeal
against any order or decision of regulating authorities or civil courts.
In 2017, the tribunal resolved cases related to various matters and
most of them under the Water Act, 1974. A diversity of cases were
filed under the Water Act related to rejuvenation of the flood plain,
commissioning of Hydrological projects, pollution load in river ganga
and its tributaries and the actions of the statutory authority
constituted under the “Act”.

These are some of the cases decided by the Tribunal under

the Water Act.

GANGA POLLUTION

The pollution of the River Ganga has generated a lot of

concern and effort over the years from various stakeholders like the
government, civil society, Industries etc. From the Ganga Action
Plan in 198516 till now, a lot of money has been spent on the cleaning
up of the river but it has not really resulted in a satisfactory solution
to the problem of pollution. Several directions have been issued by
the Supreme Court in the 80s and the concerned statutory and local
authorities to prevent and control the deteriorating water quality of
the river but they have not contributed much to the improvement in
quality. The Tribunal in MC Mehta v UOI17 on the condition of river
Ganga water emphasized the need to adopt innovative and quality
based approaches to solving the problem of pollution. It called for

16 Ganga Action Plan, , http://www.mppcb.nic.in/gap.htm (last visited Jul 22, 2019).

17 MC Mehta v UOI (1987) 4 SCC 463 (India).
2020] A Review of Cases Decided by the National Green Tribunal Under the Water Act, 1974 47

proper planning, efficient execution, and outcome based assessment

in every solution. The Tribunal focused on separate treatment of the
pollutants of each stream that flows into Ganga. This suggestion is
the reflection of scientific expertise in the tribunal. The Tribunal
remarked that massive pollution problem cannot be solved merely by
issuing rudimentary directions. There is a need for imposition of
extraordinary measures and forceful directives aimed at achieving the
outcome.

ENVIRONMENTAL COMPENSATION

The establishment of Common Treatment Plants is a very

important measure to curb pollution in the river. The Tribunal, in a
particular case imposed a fine of Rs. 10 lakh for failure to upgrade the
treatment technology.

Under the Water (prevention and Control) of Pollution Act,

1974, the Pollution Control Board is empowered to stipulate terms
and conditions while granting consent to the project proponent.18 In
the Human & Animal Welfare Association v. Gujarat Pollution
Control Board19 an application was filed against the Sachin Infra
Environment Ltd for violating the terms and conditions imposed by
the Tribunal and polluting the soil, the forests and harming the fauna
about 5 km away from the Gujarat Industrial Development
Corporation. It was found on record that the industrial units which
were members of the Certified Common Effluent Treatment Plant

18 Water act, 1974, Act no. 6 of 1974, Acts of Parliament (India).

19 SIEL CETP environmental violation Surat NGT Order.pdf,
http://www.indiaenvironmentportal.org.in/files/SIEL%20CETP%20environmental%2
0violation%20Surat%20NGT%20Order.pdf (last visited Jul 22, 2019).
48 Environmental Law and Practice Review [Vol. 7

and connected to underground pipeline systems were not causing

contamination. The contamination of surface water, ground water
and soil in the locality was due to other non-member industrial units
operating in the area. The Tribunal observed that the State Pollution
Control Board failed in discharging the statutory duties in regularly
monitoring the activities of the industries in the area. The unit in the
Appeal was non-compliant for last five years and kept discharging
waste water containing pollutants beyond the prescribed standard.20
The Tribunal directed the offending unit to pay environmental
compensation to be deposited with the Board and ordered the
amount to be spent for the restoration of the environment. In this
case, the High Court could also have passed similar orders under
Article 226.21

In Sanjay Kumar v State of UP22 case, the Tribunal did not

impose a penalty on the respondents for the allegation of discharge
of untreated waste water into the pond as they showed the tribunal
that they had stopped discharge of the treated and untreated effluents
from the plant into the pond and it was confirmed by the Pollution
Control Board. It was also noted that the Respondent was releasing
the effluent through the internal pipeline from plant through a safe
exit point. The Tribunal held that the Respondent had shown regards
to law by complying with the direction as and when issued by the
authority in this connection and had undertaken to ensure no adverse

20 Id.
21 Indian Council for Enviro-Legal action v UOI, 1996 SCC (3) 212 (India).
22 Sanjay Kumar v. State Of U.P And 3 Others S | Allahabad High Court | Judgment |
Law | CaseMine, https://www.casemine.com/judgement/in/
5b6d38d14a9326470b7523ce (last visited Jul 22, 2019).
2020] A Review of Cases Decided by the National Green Tribunal Under the Water Act, 1974 49

effect was caused to the environment. Although the respondent has

released untreated discharge in the past, the Tribunal did not impose
costs on the respondent for its past acts as it took measures to
mitigate the adverse impact and also to prevent further pollution. But
the Tribunal should have punished the unit for its violation of the
law. Taking up of mitigation and preventive measures cannot
condone the past acts of violation.23

The statutory and governmental bodies also indulge in acts

of polluting the environment. The Tapesh Bhardwaj v. UP State
Pollution Control Board24 case is a glaring example where the
Mathura Cantonment Board found river Yamuna a convenient
receptacle for dumping the waste and garbage. It was alleged that the
Board was destroying the river bed by using it a landfill site rendering
the water very toxic with reducing oxygen level in the river. The
Board caused destruction of the flood plains of the river Yamuna. It
was alleged that the UPSPCB turned a deaf ear to the complaint. The
Tribunal noted that the Board was responsible for disposal of the
waste generated in the area, the trenching site was used as landfill and
dumping site without authorization from the SPCB. It never applied
for consent to operate under the Solid Waste Management Rules
2016 even. The Tribunal directed the Board to pay Rs. 10 lakh as

23 Id.
24 Order of the National Green Tribunal regarding dumping of garbage on the river bed of
River Yamuna by Mathura Cantonment Board, Uttar Pradesh, 18/07/2017 - India
Environment Portal | News, reports, documents, blogs, data, analysis on environment &
development | India, South Asia, http://www.indiaenvironmentportal.org.in/content/
445358/order-of-the-national-green-tribunal-regarding-dumping-of-garbage-on-the-
river-bed-of-river-yamuna-by-mathura-cantonment-board-uttar-pradesh-18072017/ (last
visited Jul 22, 2019).
50 Environmental Law and Practice Review [Vol. 7

environmental compensation for continuing pollution of air, water

and soil causing injury to the public health and also, for failing to seek
permission under the Solid Waste Management Rules. But the
Tribunal did not provide a framework for a future course of action.25

POLLUTION CAUSED BY RELIGIOUS ACTIVITIES

India is a secular nation but the lives of its citizen are very
closely interlinked with religion both in the public and the private
domain. In the scriptures of all the major religions followed in India,
we find words which warn against pollution of the environment. But
the ritualistic practices adopted by us in the practice of our faith often
cause harm to the environment. Immersion of idols made up of
Plaster Of Paris and bright synthetic colors, the runoff of compounds
containing toxic heavy metals after puja festivals and celebrations of
rituals in the rivers are a cause for environmental concern. In Ambar
Nath Sengupta v State of West Bengal26 Appellant sought direction
from the Tribunal against Respondent in view of the latter’s failure to
implement the measures suggested for maintenance of cleanliness of
river Hoogly after immersion of idols during puja. The West Bengal
Pollution Control Board (WBPCB) had guidelines for the regulation
of such activities. The Tribunal examined the guidelines framed by
the Central Pollution Control Board (CPCB) and noted that if
implemented, the guidelines will go a long way in reducing pollution
by such activities. The Tribunal also imposed an obligation on the
government, the Pollution Control Board and also, the religious

25 Id.
26 Ambar Nath Sengupta v state of West Bengal, MANU/GT/0097/2017 (India).
2020] A Review of Cases Decided by the National Green Tribunal Under the Water Act, 1974 51

leaders to reduce the pollution.27 The Allahabad High Court in public

interest litigation had banned with immediate effect immersion of
idols in the Ganga on October, 201328, and directed the SPCB to
monitor the water quality before and after the immersion. The Court
further directed the State Government to ensure its implementation
across the State from the next year. The court’s directions in this case
were much more specific and forceful.

The Art of Living Foundation recently faced much criticism

over its plans to organize a huge event on the vulnerable floodplains
of the river Yamuna and it was brought to the Tribunal in the case of
Manoj Misra v. Delhi Development Authority29. The appellant
contended that the foundation engaged in unauthorized dumping and
construction over 25 hectares of the active floodplains for the
purpose of organizing the World Cultural Festival. The Appellant
prayed for injunction against the on - going construction on flood
plains. The Tribunal held the Respondent liable for causing damage
and environmental degradation. It also emphasized that the
floodplains cannot be treated as waste lands and utilized without
regulation of any sort. It rejected the respondent’s argument that the
plains have not really been notified as wetlands. That, the court held,
cannot be a justification for polluting the floodplains. The Tribunal
imposed a sum of Rs five crore against the organizers for restoration

27 Id.
28 Allahabad High Court bans immersion of idols in Ganga, Yamuna, , NDTV.COM ,
https://www.ndtv.com/allahabad-news/allahabad-high-court-bans-immersion-of-idols-
in-ganga-yamuna-537052 (last visited Jul 22, 2019).
29 Manoj Misra v DDA, MANU/GT/0127/2017 (India).
52 Environmental Law and Practice Review [Vol. 7

of flood plains based on the no fault liability principle.30 The NGT

appointed expert committee noted that the rehabilitation of the area
would cost upto Rs 42 cr. The matter is, however, pending in appeal
before the Supreme Court.31

THE DIRECTIONS /ORDERS OF THE POLLUTION CONTROL

BOARD

The amendment of the pollution control laws in 1988 gave

the Pollution Control Boards the power to issue directions to any
person, officer or authority in exercise of their functions under the
statute including the power to order closure, prohibit or regulate any
industry, operation or process.

An appeal against the closure directions issued by the

Chhattisgarh Environment Conservation Board under section 33 (A)
of the Water Act, 1974, was filed in the case, Ruchir Mayank v.
Chhattisgarh Environment Conservation Board32. The appellant
argued that the samples collected were from the bore well situated
nearby the unit not from the one within the boundaries of his unit.
Interestingly the Board also admitted that samples were not taken
from the appellant’s unit. Consequently the Board’s order was set
aside. Should the Tribunal not have recommended for action against
the irresponsible and shameless admission of the concerned officials
of the Board? Section 21 of the Act provides for a set of detailed

30 Id.
31 Our Bureau, Sri Sri’s World Culture Festival destroyed Yamuna floodplains: Green Tribunal’s
panel, @BUSINESSLINE , https://www.thehindubusinessline.com/news/sri-sris-world-
culture-festival-destroyed-yamuna-floodplains-green-tribunals-panel/article8999626.ece
(last visited Jul 22, 2019).
32 Ruchir Manyak v Environment Conservation Board, MANU/GT/0127/2017 (India).
2020] A Review of Cases Decided by the National Green Tribunal Under the Water Act, 1974 53

steps for the collection of samples. It also indicates the consequences

of non-compliance of the due collection procedure as the report on
faulty procedure is inadmissible in court of law. Whether such error
was deliberate or inadvertent the tribunal almost always provides the
benefit of doubt to the industrial units.33

In Stahl India Pvt. Ltd. vs The Hon’ble Appellate Authority34

the appellant had established laboratories for testing the suitability of
the leather finishing chemicals for various types of leathers. The
consent was given by the board for testing of leather by a certain
method which involved the discharge of highly polluting chemicals.
The NGT also looked into the matter from possible damage to water
resources in close proximity to the industrial unit and held that the
proposed activity was within the prohibited distance of one Km from
the water source and, therefore, consent could not be granted.35 The
decision of the tribunal is in conformity with the objective for which
it was setup. Due attention was given not only to the procedural
formalities acquired for the consent process but also the adverse
impact that could be inflicted on the water resources in the nearby
areas.

In M/S PMV Maltings Pvt. Ltd v. Uttrakhand36 the State

Pollution Control Board classified the appellant as grossly polluting
Industry under the Water Act, 1974. The Appellant challenged the

33 Id.
34 Stahl India Pvt. Ltd. vs The Hon’ble Appellate Authority, MANU/GT/0039
/2017(India).
35 Id.
36 M/S PMV Maltings Pvt. Ltd v. Uttrakhand, MANU/GT/0003/2017 (India).
54 Environmental Law and Practice Review [Vol. 7

classification. The appellant contended against the status of the plant

as grossly polluting on the basis of value of Biochemical Oxygen
Demand (BOD) of the untreated effluent. The Tribunal assessed the
classification on the basis of ratio between the BOD and the quantity
of discharge of effluent and held that the Unit was rightly classified as
grossly polluting industry and, therefore, the relevant conditions as
required and directed by the SPCB should be complied with.37

SAND MINING FROM THE RIVER

Sand mining in the river bed has of late caused much damage
to the environment making the river bed flood prone. What is more
disconcerting is the unauthorised or illegal extraction and
transportation. It has become a huge organized crime. In Medha
Patkar v. State of M P38 the Tribunal had the opportunity to consider
and issue directions to protect the erosion of the natural resources.
The Tribunal observed that sand mining activity in the submerged
area was contrary to the Sand Mining Guidelines 2016 that had
prohibited mining in any stream in the first stance; further that river
sand mining could be permitted only up to a depth of three meters or
till water level is reached whichever is less. The Tribunal, therefore,
directed that such mining could be possible only with the consent or
environmental clearance. Its decision was based on the principle of
sustainable development.

37 Id.
38 Medha patkar v UOI, MANU/GT/0055/2017 (India).
2020] A Review of Cases Decided by the National Green Tribunal Under the Water Act, 1974 55

WATER EXTRACTION

Extraction of water from the ground is permissible under the

regulations prepared by Central Ground Water Authority (CGWA)
and the Uttar Pradesh Pollution Control Board (UPPCB). Illegal
extraction of ground water attracts liability for environmental
damage. In Shailesh Singh vs State of Uttar Pradesh39 the Tribunal,
held that extraction of water by the industries without obtaining
permission from CGWA was illegal and the respondents were held
liable to pay environmental compensation. The Tribunal expressed its
disappointment over the criticality of Groundwater depletion of our
country. Ground water is a very important water resource as India is
predominantly an agricultural country and use 63% for irrigation
purposes. UNESCO World Water Development Report40 states that
India is now the world’s largest ground water exploiter. The NITI
Aayog also warns that over-exploitation of ground water contributes
to “worst water crisis in the history”. In India Ground water is a
very precious resource which should be utilized only after taking all
the possible precautions against overuse. The Tribunal has often
imposed exemplary damages for rehabilitation of exploited ground
water reserves.

CONCLUSION

Section 20 of the NGT Act, 2010, mandates the Tribunal to

follow the principle of sustainable development, precautionary

39 Shailesh Singh vs State of Uttar Pradesh, MANU/GT/0038/2017 (India).

40 World Water Development Report 2019, UN-WATER,
https://www.unwater.org/publications/world-water-development-report-2019/ (last
visited Jul 22, 2019).
56 Environmental Law and Practice Review [Vol. 7

principles and the polluter pays principles in deciding the disputes.

These principles were evolved by the United Nations Declarations
and introduced by the Supreme Court in Vellore Citizens Welfare
Forum v. UOI41 and other cases. None of these principles, however,
has been defined in the Act. The Tribunal has to apply its own
interpretation of these principles to the case at hand. But none of the
cases really tell us much about interpretation adopted by the court.
Moreover the Polluter Pays Principle (PPP) is not meant for judicial
guidance but for the implementation of executive orders as condition
precedent to taking measures to protect the environment from
possible damage. In the event of loss to human life, damage to
property or the environment the person responsible shall always be
accountable on the basis of nature of the activity and his contribution
to the damage. The section 17(3) of the Act explicitly provides that in
case of accidents the Tribunal shall apply the principle of “no fault”
liability. Should there be two different parameters in assessing the
liability under the same statute? It should not be and, therefore, for
judicial consideration of liability, reference to “PPP” doesn’t seem
appropriate. The ambit of functioning of the Tribunal appears to be
further restricted as the Tribunal has no power to
initiate/recommend process against the erring officials in discharge
of the statutory duty. The oversight of the officials leads to undue
liberty for the occupants to disregard and violate the law until caught
and held accountable. It’s fair but the officials responsible should not
be let go unaccountable. The Tribunal cannot issue mandamus but it
could recommend action against such persons.

41 Vellore Citizens’ Forum v UOI, AIR 1996 SC 2715 (India).

 INDIAN SUPREME COURT AND SUSTAINABLE
DEVELOPMENT: A TOOL FOR DELIVERING
ENVIRONMENTAL JUSTICE

Arup Poddar

ABSTRACT

“It is well settled fact that the concept of ‘sustainable development’

constitutes an integral part of international environmental law
principle. The concept of ‘future generation’ found grounding in the
Stockholm declaration 1972, when it was felt that environmental
resources should not only be preserved for the present but also for the
future. This finding had a very close proximity with the concept of
sustainable development. Officially, the comprehensive definition of
the term ‘sustainable development’ was declared, at the international
platform, in the Brundtland commission report released in the year
1987. India’s struggle to deliver comprehensive environmental
Justice can be witnessed right from the Bhopal gas tragedy of 1984.
Indian Supreme Court has witnessed many other environmental
problems, such as, river water pollution, groundwater contamination,
atmospheric pollution, soil erosion and land contamination,
deforestation, killing of wild animals, et cetera. In spite of having
several environmental legislations in India, for example,
Environment (Protection) Act, 1986, Water (Prevention and
Control of Pollution) Act, 1974, The wildlife (Protection) Act,


Professor, School of Technology, Law and Development, the West Bengal National
University of Juridical Sciences (NUJS), Kolkata, India. ([email protected])
58 Environmental Law and Practice Review [Vol. 7

1972, Forest (Conservation) Act, 1980, et cetera, the Supreme

Court was in search of certain international environmental tools,
based on which appropriate and comprehensive environmental Justice
could be delivered not only for the purpose of awarding scientifically
appropriate compensation to the victims of environmental accidents,
but also for the purpose of collecting money from the
developer/polluter for restoration of the polluted environment.
Finally, the Supreme Court in India in the year 1996 established
that the concept of sustainable development will be considered as part
of the law of the land. The article analyses the findings of Supreme
Court in delivering environmental Justice for common good while
applying the principle of sustainable development.”

INTRODUCTION

The concept of ‘environmental Justice’1 can be achieved

under two mechanisms. First, the authorities under the
environmental statute2 take appropriate steps and prevent
environmental degradation3 and second, when the courts issue
directions to the government offices to implement the environmental

1 See Omar Saleem (1994), “Overcoming Environmental Discrimination: The Need for a Disparate
Impact Test and Improved Notice Requirements in Facility Siting Decisions”, 19 Colum. J. Envtl.
L. 211 at Page 213; See also, Tom Lininger (May, 2018) “Green Ethics for Judges”, 86 Geo.
Wash. L. Rev. 713
2 J. Michael Angstadt (Spring, 2016), “Securing Access To Justice Through Environmental Courts
And Tribunals: A Case In Diversity”, 17 Vt. J. Envtl. L. 345 at Pp. 358, 360. See also,
Shubhankar Dam (Summer, 2004), “Green Laws for Better Health: The Past that was and the
Future that may be -- Reflections from the Indian Experience”, 16 Geo. Int'l Envtl. L. Rev. 593 at
P 599; See further, Elizabeth Fata (Fall, 2015), “Actions And Reactions: The Evolution
Of Environmental Common Law And Judicial Activism In India And The United States”, 23 U.
Miami Int'l & Comp. L. Rev. 215
3 See generally, J. Mijin Cha (Winter, 2007), “Environmental Justice in Rural South Asia: Applying
Lessons Learned from the United States in Fighting for Indigenous Communities' Rights and Access to
Common Resources”, 19 Geo. Int'l Envtl. L. Rev. 185
2020] Indian Supreme Court and Sustainable Development 59

legislations4 and constitutional obligation5 to prevent environmental

harm6. More prominent7 way of delivering environmental Justice
stands with the second option, when a court issues direction against
the executive in action8, which was responsible for environmental
pollution and degradation, to take necessary steps as per the
environmental legislation and constitutional mandates9. Generally, the
courts will look into two options, such as, if there is violation of any
provisions of the environmental statute or if there is violation of the
environmental right, either statutory right or constitutional right, then
the courts will recognise the case as per due process of law and will
provide environmental Justice10. On the other hand, degradation of
the environmental resources may also lead to violation of human
rights, for example, the river water pollution or atmospheric pollution

4 See, Isabelle Martin (Summer, 1994), “Environment Panel: The Limitations To The
Implementation Of A Uniform Environmental Policy In The European Union”, 9 Conn. J. Int'l L.
675 at Page 709.
5 See generally, Hon. Michael D. Wilson (August, 2015), “The Hawai'i Environmental Court: A
New Judicial Tool To Enforce Hawaii's Environmental Laws”, 19 Hawaii B.J. 4; See also, Sara
Cutuli (Summer, 2016), “State Constitutional Law - Environmental Rights Amendment - Judicial
Environmentalism Holds Pennsylvania Statute in Violation of the State's Constitution. Robinson
Township v. Commonwealth, 83 A.3d 901 (Pa. 2012).”, 68 Rutgers L. Rev. 1573
6 See generally, Bradford Mank (Fall, 2010), “Standing in Monsanto Co. v. Geertson Seed Farms:
Using Economic Injury as a Basis for Standing When Environmental Harm is Difficult to Prove”,
115 Penn St. L. Rev. 307; See also, Hari M. Osofsky (January, 2005), “Learning from
Environmental Justice: A New Model for International Environmental Rights”, 24 Stan. Envtl. L.J.
71.
7 See, Devadatta Gandhi (Fall, 2007), “The Limits and Promise of Environmental Ethics: Eco-
Socialist Thought and Anthropocentrism's Virtue”, 31 Environs Envtl. L. & Pol'y J. 35 at P 38.
8 See, ROBERT V. PERCIVAL (EDITED BY DENNIS J. HUTCHINSON, DAVID A.
STRAUSS AND GEOFFREY R. STONE) (2007), “Massachusetts v EPA: Escaping The
Common Law's Growing Shadow”, 2007 Sup. Ct. Rev. 111, at Pp. 149, 161.
9 See generally, J. Mijin Cha (2005), “A Critical Examination Of The Environmental Jurisprudence
Of The Courts Of India”, 10 Alb. L. Envtl. Outlook 197
10 See generally, Rebecca M. Bratspies (2012), “Human Rights And Environmental Regulation”, 19
N.Y.U. Envtl. L.J. 225
60 Environmental Law and Practice Review [Vol. 7

will affect the public and their right to the standard living condition11.
After the Bhopal gas tragedy12 of 1984, the Indian judiciary took
cognizance of the fact that environmental legislations, such as, the
Wildlife (Protection) Act, 1972, the Water (Prevention and Control
of Pollution) Act, 1974, the Air (Prevention and Control of
Pollution) Act, 1981 and the Environment (Protection) Act, 1986 are
not equipped with provisions that either award monetary
compensation13 to people or provisions that impose financial liability
on the polluter to bear the cost for restoring the degraded
environment14.

At the same time, the provisions of the Indian Constitution,

such as, Article 21 or Article 32 were not discussed by the Indian
Supreme Court from 1984 till 1991. Now these provisions recognize
the right to environment as a fundamental right15. Meanwhile, the
Supreme Court of India was in search of a tool for delivering
environmental Justice in the year 1986-87, while deciding the M.C.
Mehta (Shriram fertilizer) case16 .Later on the M.C. Mehta (Absolute
Liability) Case17 clearly stated that the principle of ‘Absolute

11 See generally, Emily R. Atwood (Winter, 2002), “Preserving the Taj Mahal: India's Struggle to
Salvage Cultural Icons in the Wake of Industrialization”, 11 Penn St. Envtl. L. Rev. 101
12 Nehal A. Patel and Ksenia Petlakh (Spring, 2014), “Gandhi's Nightmare: Bhopal and the Need
for a Mindful Jurisprudence”, 30 Harv. J. Racial & Ethnic Just. 151
13 See, Dean B. Suagee (Spring, 1999), “Environmental Justice: Mobilizing For The 21st Century:
The Indian Country Environmental Justice Clinic: From Vision to Reality”, 23 Vt. L. Rev. 567 at
P 579.
14 See, John D. Echeverria (2001), “Changing The Rules By Changing The Players: The
Environmental Issue In State Judicial Elections”, 9 N.Y.U. Envtl. L.J. 217 at P 221.
15 See generally, Deepa Badrinarayana (Spring, 2009), “The Emerging Constitutional Challenge Of
Climate Change: India In Perspective”, 19 Fordham Envtl. Law Rev. 1
16 AIR 1987 SC 965
17 AIR 1987 SC 1086
2020] Indian Supreme Court and Sustainable Development 61

Liability’18 should be applicable to hazardous industries in order to

ensure that compensation was awarded to the environmental
victims19. The Supreme Court of India also mentioned that there will
be no use of the principle ‘Strict Liability’20 because of its five
exceptions21. Absolute liability, according to Indian Supreme Court,
means the hazardous industries will be absolutely liable for bearing
the cost of compensation to be paid to the environmental victims,
irrespective of whether the hazardous industries had taken due care
and diligence in their respective operation and activities. Therefore,
the concept of absolute liability is not devoid of limitations, for
example, this principle will be applicable to only hazardous industries
and in M.C. Mehta (Absolute Liability) Case22 the Supreme Court did
not apply this principle23.

Therefore, Indian Supreme Court was in search of specific

tool, based on which environmental Justice could have been
provided, satisfactorily24. When for the first time the Supreme Court

18 See, Meredith Dearborn (February, 2009), “Enterprise Liability: Reviewing and Revitalizing
Liability for Corporate Groups”, 97 Calif. L. Rev. 195 at P 229.
19 See, Abhi Raghunathan (January, 2012), “The Grand Trunk Road from Salomon to Mehta:
Economic Development and Enterprise Liability in India”, 100 Geo. L.J. 571.
20 See generally, Walter M. Rogers (1991), “[I]t's All Right to Kill People, but Not Trees":
Landowners of Environmentally Unsafe Properties Must Be Held Strictly Liable for Personal Injuries
Caused by Their Contaminated Land”, 66 Notre Dame L. Rev. 893.
21 For example, Damage caused due to natural use of land, Consent of the Plaintiff,
Plaintiff’s Own Default, Act of Stranger, Act of God or Vis Major, Common Benefit of
Plaintiff and the Defendant, Statutory Authority.
22 See Supra Note 18.
23 However, the Supreme Court did mention the importance of this principle of absolute
liability in Indian Council (Bichhri) case (AIR 1996 SC 1446), while declaring that the
polluter pays principle is a part of the law of the land.
24 See, Domenico Amirante (Winter, 2012), “Environmental Courts in Comparative Perspective:
Preliminary Reflections on the National Green Tribunal of India”, 29 Pace Envtl. L. Rev. 441 at
P. 468.
62 Environmental Law and Practice Review [Vol. 7

of India made an observation in Subhash Kumar v. State of Biharcase25

that right to life under Article 21 also included the right to get
pollution free water and air, the right to environment became a part
of fundamental right and Article 32 could be invoked before the
Supreme Court of India for seeking environmental justice for
violating this fundamental right26. Due to the unpopularity and
limitations in its application, the concept of absolute liability did not
aid the Indian Supreme Court in delivering environmental Justice27.
Finally, while deciding two important cases in the year 1996, them
being, Indian Council (Bichhri) case28 and Vellore case29, the Supreme
Court made an historic observation and stated that international
environmental law principles, such as, sustainable development along
with intergenerational equity30, polluter pays principle31 and
precautionary principles32 form a part of Indian law 33. Thereafter,
number of environmental justice cases34 were delivered by the Indian

25 AIR 1991 SC 420

26 See generally, Sumudu Atapattu (Winter, 2002), “The Right to a Healthy Life or the Right to Die
Polluted?: The Emergence of a Human Right to a Healthy Environment Under International Law”,
16 Tul. Envtl. L.J. 65
27 See generally, Sukanya Pillay (2006), “Absence Of Justice: Lessons From The Bhopal Union
Carbide Disaster For Latin America”, 14 Mich. St. J. Int'l L. 479
28 AIR 1996 SC 1446
29 AIR 1996 SC 2715
30 For details See, G.F. Maggio (Spring, 1997), “Inter/intra-generational Equity: Current
Applications under International Law for Promoting the Sustainable Development of Natural
Resources”, 4 Buff. Envt'l. L.J. 161
31 For jurisprudential view See, Candice Stevens (Summer, 1994), “Interpreting the Polluter Pays
Principle in the Trade and Environment Context”, 27 Cornell Int'l L.J. 577
32 For further legal discussion See, James E. Hickey, Jr. & Vern R. Walker (Spring, 1995),
“Refining The Precautionary Principle In International Environmental Law”, 14 Va. Envtl. L.J.
423
33 See generally, Alhaji B.M. Marong (Fall, 2003), “From Rio to Johannesburg: Reflections on the
Role of International Legal Norms in Sustainable Development”, 16 Geo. Int'l Envtl. L. Rev. 21
34 For example, Narmada case AIR2000SC3751, ND Jayal Case (2004)9SCC362, Essar oil
case AIR2004SC1834, KM Chinnappa AIR 2003 SC 724, Intellectuals Forum, Tirupathi
2020] Indian Supreme Court and Sustainable Development 63

Supreme Court by applying the principle of sustainable development.

The concept of sustainable development has its own history and
unique origin, which is discussed in the next part of this article.

HISTORY AND ORIGIN OF THE CONCEPT OF SUSTAINABLE

DEVELOPMENT

The expression ‘development’ was associated as integral part

of societal development from time immemorial. The development of
any nation depends on exploitation of natural resources. However,
when such exploitation of natural resources goes beyond the capacity
of the nature to restore and replenish such resources, the concept of
irreversible damage to environment falls in. This irreversible damage
to environment could have been avoided by the nation, provided had
that nation adopted concept of ‘sustainability’ in the process of
development, which means that in the name of development,
exploitation of natural resources should not go beyond the nature’s
capacity to replenish by herself. Accordingly, the concept of
‘sustainable development’ was accepted globally as an integral part of
international environmental law principle, not only for the overall
development of any nation and to preserve the ecology
simultaneously, but also to gift this unique process of development in
the hand of future generation as well for their development,
sustainably.

While looking back to the history of the inception of

internationally famous definition of sustainable development,

AIR 2006 SC 1350, Karnataka Industrial Areas Development Board AIR 2006 SC 2038,
Lafarge Umiam Mining Pvt. Ltd_2011 (7) SCALE 242, et cetera.
64 Environmental Law and Practice Review [Vol. 7

primarily the international document, such as, ‘World Commission

on Environment and Development’ from the year 1987 comes into
light. This international document is also popularly known as ‘Our
Common Future’ or ‘Brundtland Commission Report’.35 The in-
depth meaning of the definition of sustainable development can be
understood as the ability of the future generation to meet with their
own need without having to compromise the ability of the present
generation to meet with their own need.36It would be incorrect to
state that it was only from the year of 1987 that the definition of
sustainable development was gave weightage. The Principle 137& 238
along with Proclamation 639& 740 of the Stockholm declaration 1972,
had provided for the protection of the rights of the future generation
by discussing the concept of sustainable development.

35 See generally, Poddar Arup (March, 2017), “Sustainable Development In India”, International
Journal of Legal Development and Allied Issues (IJLDAI), Volume-3, Issue-2, 2017,
ISSN: 2454-1273, Pp: 48-56;
36 For details See, The Commission sees the "possibility for a new era of economic growth,
one that must be based on policies that sustain and expand the environmental resource
base. An we believe such growth to be absolutely essential to relieve...poverty" (p.1).
Growth will come through better managing technology and social organization (p.8).
Available at http://public.wsu.edu/~susdev/WCED87.html (last visited on 06.06.2019)
37 “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment
of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect
and improve the environment for present and future generations. In this respect, policies promoting or
perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and
foreign domination stand condemned and must be eliminated.”
38 “The natural resources of the earth, including the air, water, land, flora and fauna and especially
representative samples of natural ecosystems, must be safeguarded for the benefit of present and future
generations through careful planning or management, as appropriate.”
39 “……….To defend and improve the human environment for present and future generations has become
an imperative goal for mankind-a goal to be pursued together with, and in harmony with, the established
and fundamental goals of peace and of worldwide economic and social development.”
40 “To achieve this environmental goal will demand the acceptance of responsibility by citizens and
communities and by enterprises and institutions at every level, all sharing equitably in common efforts.
Individuals in all walks of life as well as organizations in many fields, by their values and the sum of
their actions, will shape the world environment of the future”
2020] Indian Supreme Court and Sustainable Development 65

The environmental movement that was triggered by the Santa

Barbara oil spill41 case of 1969 had the impact of merging the concept
of sustainability along with the concept of development. Santa
Barbara oil spill contaminated the ocean with a thick layer of crude
oil that had a devastating impact on marine aquatic life as well as
marine birds. Therefore this incident will always be considered as the
dark history of marine biodiversity degradation. Officially, the
expression ‘sustainability’ can be traced back to the year 171342,
when, as per German practice the older forestry term ‘sustainable
yield’ was being used for forestry programme. In due course of time
the concept of sustainable development became an essential feature
for most of the international environmental law documents and the
same discussed in the next part of this article.

SUSTAINABLE DEVELOPMENT AS A PART OF INTERNATIONAL

ENVIRONMENTAL LAW PRINCIPLES

From the above discussion, it is clear that the Stockholm

declaration of 1972 did not provide any nomenclature for ‘sustainable
development’ rather, provided the avenues for recognising the rights
of the future generation and their protection. Officially, the definition
of sustainable development was accepted in the year 1987 in
Brundtland commission report. The International codification of the

41 Available at http://www2.bren.ucsb.edu/~dhardy/1969_Santa_Barbara_Oil_
Spill/Home.html (Last visited on 28.02.2017)
42 Available at http://rethinkingprosperity.org/a-short-history-of-sustainable-development/
(Last visited on 28.02.2017)
66 Environmental Law and Practice Review [Vol. 7

expression ‘sustainable development’ and its working pattern was for

the first time witnessed in Rio de Janeiro Conference of 1992.43

Few important principles of Rio conference 1992 deals with

sustainable development. For example, human being is at the centre
of sustainable development and in order to enjoy productive and
healthy life it is essential for man to live in harmony with the nature
and this is Principle 144.Development of the nation should be
understood in tandem with environmental protection that can be
found under Principle 445.Principle 5 includes elimination of poverty
in developing nations as a part of sustainable development46. As per
Principle 7, it is the responsibility of developed nations to pass on
scientifically sound technology to developing nation in furtherance of
the goal of sustainable development47.There should be a proper
balance between consumption of natural resources versus production
of the same, therefore, nations should take appropriate steps to
eliminate unsustainable production, which is mentioned under

43 Available at http://www.sustainable-environment.org.uk/Action/Rio_Declaration.php
(Last visited on 28.02.2017)
44 Principle-1-Human beings are at the centre of concerns for sustainable development.
They are entitled to a healthy and productive life in harmony with nature.
45 Principle-4- In order to achieve sustainable development, environmental protection shall
constitute an integral part of the development process and cannot be considered in
isolation from it.
46 Principle-5- All States and all people shall cooperate in the essential task of eradicating
poverty as an indispensable requirement for sustainable development, in order to
decrease the disparities in standards of living and better meet the needs of the majority
of the people of the world.
47 Principle-7- States shall cooperate in a spirit of global partnership to conserve, protect
and restore the health and integrity of the Earth's ecosystem. In view of the different
contributions to global environmental degradation, States have common but
differentiated responsibilities. The developed countries acknowledge the responsibility
that they bear in the international pursuit to sustainable development in view of the
pressures their societies place on the global environment and of the technologies and
financial resources they command.
2020] Indian Supreme Court and Sustainable Development 67

Principle 848.The effective exchange of knowledge on science and

technology is also one of the essential characteristics of sustainable
development as mentioned under Principle 949.In order to achieve
economic growth, apart from sustainable development, nations
should strive for developing a system of international economy for
better structure, which is envisaged under Principle 1250.Women shall
play a vital and important role in achieving full success of sustainable
development, and their role should be encouraged by nations, which
is provided under Principle 2051.At the same time the role of the
youth cannot be discounted in making a better future with the help
of their strength, ideas and capacity for achieving goals related to
sustainable development as mentioned under Principle 2152. Principle
2253gives an indication that in order to achieve full shape of
successful implementation of sustainable development, it is
imperative to encourage the participation of indigenous people.

48 Principle-8- To achieve sustainable development and a higher quality of life for all
people, States should reduce and eliminate unsustainable patterns of production and
consumption and promote appropriate demographic policies.
49 Principle-9- States should cooperate to strengthen endogenous 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.
50 Principle-12- States should cooperate to promote a supportive and open international
economic system that would lead to economic growth and sustainable development in all
countries, to better address the problems of environmental degradation. Trade policy
measures for environmental purposes should not constitute a means of arbitrary or
unjustifiable discrimination or a disguised restriction on international trade.
51 Principle-20- Women have a vital role in environmental management and development.
Their full participation is therefore essential to achieve sustainable development.
52 Principle-21- The creativity, ideals and courage of the youth of the world should be
mobilized to forge a global partnership in order to achieve sustainable development and
ensure a better future for all.
53 Principle-24- Warfare is inherently destructive of sustainable development. States shall
therefore respect international law providing protection for the environment in times of
armed conflict and cooperate in its further development, as necessary.
68 Environmental Law and Practice Review [Vol. 7

Principle 2454suggests that war among and between nations will never
achieve sustainable development, therefore, crisis management in
non-war front would be helpful in achieving sustainable
development. In the end, it is mentioned under Principle 2755 that
people and nation should co-operate with each other to bring
international law in the field of sustainable development.

After the Rio declaration 1992, based on Principle 5, which

deals with the eradication of poverty, another world summit was held
in 2002 at Johannesburg56, which further advanced the idea of
sustainable development from the enlightened concept of 1992.

The United Nations, in the year 2015 organised a conference in New

York, where India participated in order to make progress in achieving
different goals of sustainable development by 2030, which is
popularly known as Agenda 2030.57In this conference, 17 new
sustainable development goals58 have been identified to be

54 Principle-24- Warfare is inherently destructive of sustainable development. States shall

therefore respect international law providing protection for the environment in times of
armed conflict and cooperate in its further development, as necessary.
55 Principle-27- States and people shall cooperate in good faith and in a spirit of partnership

in the fulfilment of the principles embodied in this Declaration and in the further
development of international law in the field of sustainable development.
56 Available at https://sustainabledevelopment. un.org/milesstones/wssd (Last visited on

28.02.2019)
57Available at http://www.in.undp.org/content/ india/en/home/post-2015/sdg-
overview.html (Last visited on 28.02.2019)
58For example, 1.no poverty, 2.zero hunger,3. Good health and well-being,4. quality

education, 5.gender equality, 6.clean water and sanitation, 7.affordable and clean energy,
8.decent work and economic growth, 9.industry, innovation and infrastructure,
10.reduced inequalities, 11.sustainable cities and communities, 12.responsible
consumption and production, 13.climate action, 14.life below water, 15.life on land,
16.peace, Justice and strong institutions, and 17.partnerships for the goals. Information
of these 17 goals are available in the website
2020] Indian Supreme Court and Sustainable Development 69

implemented by the member nations. The participating nations,

including India has taken the pledge to eliminate poverty everywhere
and also to adopt scientific mechanisms such as developing economic
policies to favour such stand.59

Thus, from the above discussion it is clear that unless the

participating nations adopt the concept of sustainable development in
their respective law and policy, implementation at the grassroots level
will become a hard task. It is also clear that developing nations are
facing challenges in the implementation of the mechanisms of
sustainable development and in order to overcome these challenges
quickly and efficiently, cooperation from developed nations regarding
in the field of exchange of knowledge in the line of science and
technology is of utmost importance.

SUSTAINABLE DEVELOPMENT AND ITS WORKING PATTERN

The working pattern of sustainable development is quite

unique and effective as already discussed in the previous part of this
article, particularly while deliberating upon various principles of Rio
declaration 199260. Moreover, Agenda 2030, as discussed in the
previous part of this article, has also described the working pattern of
sustainable development to achieve factors like no poverty61, no

https://www.undp.org/content/undp/en/home/sustainable-development-goals.html
(Last visited on 06.06.2019)
59 Available at http://niti.gov.in/content/niti-aayogs-role (Last visited on 28.02.2019)
60 See, Alhaji B.M. Marong (Fall, 2003), “From Rio to Johannesburg: Reflections on the Role of
International Legal Norms in Sustainable Development”, 16 Geo. Int'l Envtl. L. Rev. 21
61 See, Gillian Macnaughton & Diane F. Frey (Winter, 2016), “Decent Work, Human Rights
And The Sustainable Development Goals”, 47 Geo. J. Int'l L. 607
70 Environmental Law and Practice Review [Vol. 7

hunger62, sustainable cities and communities63, clean water and

sanitation64, et cetera.65

In India, the Supreme Court while deciding the Vellore case66,

clearly stated that the concept of sustainable development has three
essential features, based on which the sustainable development works
to achieve its goal. The three essential features are intergenerational
equity, polluter pays principle and precautionary principle.
Intergenerational equity is a concept of equity, which advocates the
protection of rights of the not only the present generation, but also
the rights of the future generations67. Sustainable development asserts
that the ability of the present generation to meet with the need
should not compromise the ability of the future generation to meet
with their need68. Accordingly, intergenerational equity is an essential
feature of the working pattern of sustainable development because
both are connected with the protection of the rights of the present as
well as the future generation. Similarly, polluter pays principle
suggests that it is the absolute liability of the polluter to bear the cost
of compensation to be paid to environmental victims and also to bear

62 See, Emily Friedman (2017), “Towards 2030: Shortcomings and Solutions in Food Loss and
Waste Reduction Policy”, 55 Wash. U. J.L. & Pol'y 265
63 See, Franklyn P. Salimbene (June, 2017), “Seeking Peaceful Coexistence: Streetcars And Bicycles
In The New Urban Environment”, 7 Wake Forest J. L. & Pol'y 365
64 See generally, Sharmila L. Murthy (Winter, 2018), “Translating Legal Norms Into Quantitative
Indicators: Lessons From The Global Water, Sanitation, And Hygiene Sector”, 42 Wm. & Mary
Envtl. L. & Pol'y Rev. 385
65 See generally, Risa E. Kaufman (Fall, 2017), “Localizing Human Rights In The United States
Through The 2030 Sustainable Development Agenda”, 49 Colum. Human Rights L. Rev. 99
66 AIR 1996 SC 2715
67 William Onzivu (2006), “International Environmental Law, the Public's Health, and Domestic
Environmental Governance in Developing Countries”, 21 Am. U. Int'l L. Rev. 597 at P 672
68 Arindam Basu & Uday Shankar (April, 2015), “Balancing of competing rights through sustainable
development: role of Indian judiciary”, 6 Jindal Global L. Rev. 61 at P 64.
2020] Indian Supreme Court and Sustainable Development 71

the cost for restoring the degraded environment.69 There will be no

remedy to the polluter on the ground that the polluter has exercised
due diligence and care after the pollution taken place. Therefore, it is
the polluter’s absolute liability to bear the cost of compensation.70
The polluter pays principle is also another working pattern of
sustainable development on the ground that sustainable development
demands that unsustainable activities to be discontinued by the
developer/polluter, so that man and nature live in harmony.71
Another reason for discontinuation of unsustainable activities is the
preservation of environmental resources for the future generation in
order to meet with their own needs.72 When this discontinuation of
unsustainable activities fails, then the preventive principle, such as,
polluter pays principle is applicable against the polluter to prevent
unsound and unsustainable activities, hence the principle of polluter
pays principle is also another working pattern of sustainable
development.73 Finally, the precautionary principle asserts that even if
there is no scientific certainty for any irreversible environmental harm
either happening or that could happen, the government machineries
will not wait for that scientific confirmation in order to take

69 David Dodds (2007), “Breaking Up is Hard to Do: Environmental Effects of Shipwrecking and
Possible Solutions Under India's Environmental Regime”, 20 Pac. McGeorge Global Bus. &
Dev. L.J. 207 at P 226.
70 See generally, David Weisbach (January, 2012), “Negligence, Strict Liability, and Responsibility
for Climate Change”, 97 Iowa L. Rev. 521
71 Marc Pallemaerts (Spring, 1996), “The Future Of Environmental Regulation: International
Environmental Law In The Age Of Sustainable Development: A Critical Assessment Of The
UNCED Process”, 15 J.L. & Com. 623 at P 645.
72 See, Bradford C. Mank (2009), “Standing and Future Generations: Does Massachusetts v. EPA
Open Standing for Generations to Come?”, 34 Colum. J. Envtl. L. 1
73 See, William Onzivu (2006), “International Environmental Law, the Public's Health, and
Domestic Environmental Governance in Developing Countries”, 21 Am. U. Int'l L. Rev. 597
72 Environmental Law and Practice Review [Vol. 7

preventive measures.74 It is true that medical science always states

that ‘prevention is better than cure’.75 The precautionary principle,
which compels the state machineries to develop a set of preventive
guidelines for the benefit of developers assume that the developer
will be observe these guidelines meticulously in order to preserve the
environment. However, on the disregard of these guidelines which
eventually leads to pollution, the principle of polluter pays is
applicable to the polluter.76 Hence, the precautionary principle is also
another working pattern of sustainable development on the ground
that it prevents unsustainable activities with the help of guidelines,
which is the aim of sustainable development which promotes
development but in a sustainable manner.77 The Supreme Court also
emphasised upon the constitutional mandate for the protection and
preservation of environment.

INDIAN CONSTITUTION AND SUSTAINABLE DEVELOPMENT

The 42nd amendment made to the Indian Constitution inserted

Articles 48A & Article 51A (g) which laid down environmental
standards for the states and citizens of India to protect and preserve

74 See generally, Scott Lafranchi (2005), “Surveying The Precautionary Principle's Ongoing Global
Development: The Evolution Of An Emergent Environmental Management Tool”, 32 B.C. Envtl.
Aff. L. Rev. 679
75 See generally, Danielle M. Purifoy (Summer, 2013), “EPCRA: A Retrospective on the
Environmental Right-to-Know Act”, 13 Yale J. Health Pol'y L. & Ethics 375
76 Markus Wagner (Summer, 2012), “Taking Interdependence Seriously: The Need For A
Reassessment Of The Precautionary Principle In International Trade Law”, 20 Cardozo J. Int'l &
Comp. L. 713 at P 732.
77 See generally, Nasser Alreshaid (Spring, 2016), “The 2016 Sustainable Development Goals:
Lodging The Sustainable Development Goals In The International Trade Regime: From Trade
Rhetoric To Trade Plethoric”, 16 Sustainable Dev. L. & Pol'y 4
2020] Indian Supreme Court and Sustainable Development 73

environmental resources.78 Therefore, the concept of ‘sustainability’

in the developmental process was incorporated from the year 1976 in
the Indian Constitution.79

However, Part III of Indian Constitution which deals with

fundamental rights did not provide any direct declaration of ‘right to
environment’ as a fundamental right. Article 21 of Indian
Constitution is of immense importance in relation to right to
environment, which was partly recognised by the Andhra Pradesh
High Court in T. Damodhar Rao case80 in the year 1987. The struggle
was ongoing within the Supreme Court, which culminated in the
81
Chhetriya Pardushan Mukti Sangharsh case, where right to life under
Article 21 of Indian Constitution was discussed in the line of
environmental rights. Finally, the Supreme Court in Subhash Kumar v.
State of Bihar case,82 while rejecting the public interest litigation clearly
asserted that Article 21 of the Indian Constitution also recognizes the
right to get pollution free water and air. Therefore, right to pollution
free environment is now part of Article 21 of Indian Constitution,
which is a fundamental right and a human right as well.83

Accordingly, it is clear from the above discussion that

unsustainable activities lead to pollution of the environment and the

78 See, Vijayashri Sripati (1998), “Toward Fifty Years of Constitutionalism and Fundamental Rights
in India: Looking Back to See Ahead (1950-2000)”, 14 Am. U. Int'l L. Rev. 413
79 Vahbiz P. Karanjia (2009), “Why India Matters: The Confluence Of A Booming Economy, An
Activist Supreme Court, And A Thirst For Energy”, 20 Vill. Envtl. L.J. 49 at Pp 53, 62
80 AIR 1987 AP 171
81 AIR 1990 SC 2060
82 AIR 1991 SC 420
83 James R. May & Erin Daly (2009), “The Confluence Of Human Rights And The Environment:
Vindicating Fundamental Environmental Rights Worldwide”, 1 Or. Rev. Int'l L. 365 at P 401
74 Environmental Law and Practice Review [Vol. 7

Supreme Court in India declares this to be a violation of fundamental

right. Therefore, it can be claimed that the Supreme Court’s
recognition of pollution and environmental problem and issuance of
direction to prevent such pollution is the example of sustainable
development.84

Moreover, in the Vellore case85 the Supreme Court has

categorically mentioned in its judgement that sustainable
development, precautionary principle, polluter pays principle and
intergenerational equity are part of the law of the land. Thus, from
the year 1996 the term ‘sustainable development’ has been accepted
as a part of the law of the land, which further means that it is a part
of the Indian Constitution.86

It may be noted here that the implementation of sustainable

development can be done satisfactorily87 in India, when not only
Indian Constitution, but also Indian environmental legislations
provide such provisions on sustainable development.

INDIAN ENVIORNMENTAL LEGISLATION AND SUSTAINABLE

DEVELOPMENT

In India, there are several environmental legislations, for

example, the Wild life (Protection) Act, 1972, the Water (Prevention

84 See, Emily R. Atwood (Winter, 2002), “Preserving the Taj Mahal: India's Struggle to Salvage
Cultural Icons in the Wake of Industrialization”, 11 Penn St. Envtl. L. Rev. 101
85 AIR 1996 SC 2715
86 Katherine M. Davis (2014), “I, Too, Sing America: Customary International Law For American
State And Federal Courts' Post-Kiobel Jurisprudence, Guided By Australian And Indian
Experiences”, 29 Emory Int'l L. Rev. 119, at P 160
87 See generally, Domenico Amirante (Winter, 2012), “Environmental Courts in Comparative
Perspective: Preliminary Reflections on the National Green Tribunal of India”, 29 Pace Envtl. L.
Rev. 441
2020] Indian Supreme Court and Sustainable Development 75

and Control of Pollution) Act, 1974, the Forest (Conservation) Act,

1980, the Air (Prevention and Control of Pollution) Act, 1981, the
Environment (Protection) Act, 1986, et cetera.88 Surprisingly, none of
the above-mentioned environmental legislations speak of the concept
or principle of sustainable development.89In the year 2010 a
legislation in the name of National Green Tribunal Act (NGT) was
passed by the Parliament to look into and decide environmental
related cases exclusively.90 Here, the tribunal is a specialised court on
environmental issues and as per Section 2091 of the said Act, the
specialised tribunal can apply principle like sustainable development
while delivering its ordes.

Unlike Indian environmental legislations, the environmental

policy, such as, National Environment Policy of 200692 very clearly
emphasised about the importance of sustainable development,
intergenerational equity, polluter pays principle and precautionary
principle.93 Although, the policy is not enforceable by the court of
law in India, the state can amend its existing law or bring a new law

88 Supra note 36
89 Id.
90 Nicholas A. Robinson (Winter, 2012), “Ensuring Access to Justice Through Environmental
Courts”, 29 Pace Envtl. L. Rev. 363 at P 383.
91 Sec.20. Tribunal to apply certain principles. –The Tribunal shall, while passing any order
or decision or award, apply the principles of sustainable development, the precautionary
principle and the polluter pays principle. Available at
http://lawmin.nic.in/ld/regionallanguages/THE%20NATIONAL%20GREEN%20TR
IBUNAL %20ACT,%202010.(19%20OF%202010).pdf at Page 9 (Last visited on
28.05.2019)
92 Sustainable development concerns in the sense of enhancement of human wellbeing,
broadly conceived, are a recurring theme in India's development philosophy. Available at
http://envfor.nic.in/sites/default/files /introduction-nep2006e.pdf at Page 7 (Last
visited on 28.05.2019)
93 For further details on Policy aspect See, Vahbiz P. Karanjia (2009), “Why India Matters:
The Confluence Of A Booming Economy, An Activist Supreme Court, And A Thirst For Energy”,
20 Vill. Envtl. L.J. 49
76 Environmental Law and Practice Review [Vol. 7

to accommodate this unique principle of sustainable development for

striking a golden balance between development and preservation.94

It is surprising to note here that India not only participated in

Stockholm declaration 197295, World Commission on Environment
and Development, 198796, Rio declaration 199297, Johannesburg
summit 200298, but also in Rio +2099, Paris agreement 2015100 in
furtherance of its obligations under Agenda 2030.101 However, there
is no substantive environmental legislation in India that incorporates
the provision of sustainable development. One may adopt a counter
argument that schedule I102 of the NGT Act clearly lists down the
environmental legislations which can be applied by the tribunal along
with the principle of sustainable development to pass orders. This

94 See generally, Josh Drew (Spring, 1997), “Calculating Potential To Emit Under the Clean Air
Act: The Importance of Federal Enforceability”, 91 Nw. U.L. Rev. 1114
95 See, Paolo Galizzi (May, 2006), “From Stockholm To New York, Via Rio And Johannesburg:
Has The Environment Lost Its Way On The Global Agenda?”, 29 Fordham Int'l L.J. 952
96 See, Edith Brown Weiss (July, 1989), “Book review: the evolving Antarctic legal regime:
Environmental Protection and Sustainable Development: Legal Principles and Recommendations.
Adopted by the Experts Group on Environmental Law of the World Commission on Environment and
Development. R. D. Munro, Chairman, and J. G. Lammers, Rapporteur.”, 83 A.J.I.L. 685
97 See, David A. Wirth (Spring, 1995), “The Rio Declaration On Environment And Development:
Two Steps Forward And One Back, Or Vice Versa?” 29 Ga. L. Rev. 599
98 See, S. Jacob Scherr & R. Juge Gregg (Spring, 2006), “Johannesburg and Beyond: The 2002
World Summit on Sustainable Development and the Rise of Partnerships”, 18 Geo. Int'l Envtl. L.
Rev. 425
99 See, Roger Martella &Kim Smaczniak (Spring, 2012), “Rio+20: Introduction To Rio + 20: A
Reflection On Progress Since The First Earth Summit And The Opportunities That Lie Ahead”, 12
Sustainable Dev. L. & Pol'y 4
100 See, Daniel Bodansky (April, 2016), “The Paris Climate Change Agreement: Anewhope ?”, 110
A.J.I.L. 288
101 See, Risa E. Kaufman (Fall, 2017), “Localizing Human Rights In The United States Through
The 2030 Sustainable Development Agenda”, 49 Colum. Human Rights L. Rev. 99
102 The National Green Tribunal can pass orders and awards under the following statutes:
Schedule I [See sections 14(1), 15(1), 17(1)(a), 17(2), 19(4) (j) and 34(1)]-1.The Water
(Prevention and Control of Pollution) Act, 1974; 2. The Water (Prevention and Control
of Pollution) Cess Act, 1977; 3.The Forest (Conservation) Act, 1980; 4.The Air
(Prevention and Control of Pollution) Act, 1981; 5.The Environment (Protection) Act,
1986; 6.The Public Liability Insurance Act, 1991; 7.The Biological Diversity Act, 2002
2020] Indian Supreme Court and Sustainable Development 77

goes to show that even in the absence of explicit provisions on

sustainable development in the environmental legislations in India,
the tribunal has been invoking the principle by reading it in
conjunction with the laws which have been mentioned in Schedule I
of the NGT Act. However, NGT is not a writ court103 to decide the
writ petition and violation of any fundamental rights as mentioned
under Indian Constitution. Therefore, the role of Supreme Court to
provide environmental justice with the help of tools such as
sustainable development is of utmost importance when it comes to
the protection of fundamental rights.

INDIAN SUPREME COURT ON SUSTAINABLE DEVELOPMENT

As already discussed above that the Indian Supreme Court

has not only successfully declared that right to pollution free
environment is a fundamental right under Article 21 of Indian
Constitution, but has also effectively and efficiently declared that
international environmental law principles, such as, sustainable
development is a part of the law of the land. It was difficult for the
Supreme Court in India to find out a single environmental legislation,
as discussed above, which could provide a provision for awarding
compensation to the victims of the environmental degradation and
also to compel the polluter to pay monetary compensation for
restoring the degraded environment104. A similar kind of struggle was

103 See, J. Mijin Cha (2005), “A Critical Examination Of The Environmental Jurisprudence Of The
Courts Of India”, 10 Alb. L. Envtl. Outlook 197
104 See, Jeffrey A. Kodish (Fall, 2001), “Restoring Inactive and Abandoned Mine Sites: A Guide to
Managing Environmental Liabilities”, 16 J. Envtl. L. & Litig. 381; See also, Robin Kundis
Craig (2002), “Taking the Long View of Ocean Ecosystems: Historical Science, Marine Restoration,
and the Oceans Act of 2000”, 29 Ecology L.Q. 649
78 Environmental Law and Practice Review [Vol. 7

witnessed by the Supreme Court when an endeavour was being made

to declare right to pollution free environment as a part of
fundamental right provided under the Indian Constitution. Since, no
substantive environmental legislation could aid the court in
determining compensation105 and to also strike a golden balance
between development and preservation, the Indian Supreme Court
turned to international environmental law principles, such as,
sustainable development, intergenerational equity, polluter pays
principle and precautionary principle. The Supreme Court justified
this by stating that since these principles formed a part of customary
international law106, they can be adopted as a part of the law of the
land in order help in delivering environmental justice. The following
are few important cases on environmental Justice, where the Supreme
Court of India has examined the various dimensions of sustainable
development.

TheVellore citizens welfare forum case107 is the first ever case in

India in which the Supreme Court critically examined the very scope
of sustainable development and its adoptability and applicability in
India. In order spread awareness about unsustainable development,
the Supreme Court relied on the example of the tanneries industries
in the state of Tamil Nadu. The best category of leather is exported
from India and in leu of foreign exchange that is deposited in the

105 See generally, Simon H. Ginsberg (Spring, 1996), “Economic And Environmental Challenges To
Natural Resource Trade”, 10 Emory Int'l L. Rev. 297
106 See generally, Gary Born (December, 2017), “Customary International Law In United States
Courts”, 92 Wash. L. Rev. 1641; See also, Eric George Reeves (Spring, 1993), “United States
V. Javino: Reconsidering The Relationship Of Customary International Law To Domestic Law”, 50
Wash & Lee L. Rev. 877
107 Vellore Citizens Welfare Forum v. Union of India[AIR (19960 SC 2715 at 2720]
2020] Indian Supreme Court and Sustainable Development 79

government exchequer. The tanneries industry is an example of

nation’s development, but is this development a sustainable one? In
order to understand sustainable, primarily the idea of unsustainable
development is to be defined. For example, tanneries industries treat
the raw animal skin with the help of various chemicals, which are,
definitely, harmful towards environment and human life, if they come
into contact directly or indirectly with such chemicals. Animal skin is
treated with harmful chemicals in order to convert them into fresh
leather. The next step involves washing of the harmful chemicals
with gallons of fresh water. In this process, gallons of waste water
consisting of harmful chemicals, which is not treated with the help of
pollution control devices or effluent treatment plant, is being released
into nearby water bodies and agricultural land, thereby polluting them
which affects the quality of the water in rivers, ponds, groundwater
and also the fertility of the agricultural land. Hence, this kind of
development is, absolutely, unsustainable in nature. Therefore, to
make this kind of development sustainable in nature, the Supreme
Court observed that the tanneries industries should install pollution
control devices and treat the waste water from such devices to make
such industrial waste pollution free and harmless before releasing
them to water bodies and the agricultural land. However the
environmental legislations, such as, the Water (Prevention and
Control of Pollution) Act, 1974 requires the industries to mandatorily
install pollution control devices. The Act also has a penalty provision
for those who violate such requirements, but there is no such
provision that the Supreme Court can resort to award compensation
to the victims of such pollution. Thus, in order to make the
80 Environmental Law and Practice Review [Vol. 7

development full proof and sustainable, the Supreme Court of India

had no other option, but to accept the concept of sustainable
development as a tool for delivering environmental Justice, which
will not only be applicable for awarding compensation to the
environmental victims, but also for fixing financial liability on the
polluter to bear the cost for restoring the degraded environment. The
Supreme Court also asserted that precautionary principle, polluter
pays principle and intergenerational equity are the essential
characteristics of the concept of sustainable development.

In the Ganesh wood case108is the case the Supreme Court

categorically discontinued the forest-based industries, for example,
sawmills and other wooden based industries by applying the concept
of intergenerational equity and keeping in mind the alarming rate at
which forest coverage was shrinking in India. Forest preservation is
not opposed to development, but promotes development of the
nation, provided the forest resources are utilised wisely and
sustainably. The apex court pointed out that intergenerational equity
is not only at the centre of sustainable development, but also at the
centre of forest preservation and conservation.

In the Indian Council109 case the apex court analysed the

concept of sustainable development and stated that there is no
priority over development because of environmental preservation,
similarly, there is no priority over environmental preservation
because of development. In the other words, there should be an

108 State of Himachal Pradesh v. Ganesh Wood Products, [AIR (1996) SC 149]
109 Indian Council for Enviro-Legal Action v. Union of India (1996) 5 SCC 281
2020] Indian Supreme Court and Sustainable Development 81

equitable balance between environmental conservation and

developmental activities of the nation. Both are considered to be two
sides of a coin, hence, both are important, and one cannot avoid the
other in the process of application of sustainable development.

In the Taj trapezium110 case the Supreme Court clarified that

the economic growth of the country depends on the development
index rate, which is based on the rate of exploitation of natural
resources of the country. Therefore, development rate of the country
should be as such that the nature by her capacity can replenish the
lost resources and make the resources readily available for future
exploration. The sustainable development is the appropriate answer
for this process.

In the Narmada dam111 case the honourable Supreme Court

critically examined the concept of sustainable development and stated
that without proper development one can compromise the economy
growth of the nation. The apex court also mentioned that applying
the international principle of sustainable development in India would
mean that the rate of development should be tolerable by the nature
or by the ecology. In the other words, the nation should develop to
an extent that can be sustained by the nature with or without
mitigation.112

110 M.C. Mehta (Taj Trapezium Matter) v. Union of India : (1997) 2 SCC 353
111 Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664
112 Supra note 36
82 Environmental Law and Practice Review [Vol. 7

In MC Mehta (mining)113 case the Supreme Court made a very good

observation between ‘banning’ & ‘balancing’ actions. It was stated by
the Supreme Court that ‘balancing’ involves mining industries
working within the parameters of sustainable development and
‘banning’ takes place when the mining industries are working
unsustainably and beyond the parameters of precautionary guideline
and sustainable development. Both form an integral part of
sustainable development, because under sustainable development the
mining industries shall be promoted who are progressing sustainably
and under the same principle of sustainable development there shall
be banning of those mining industries which are developing
unsustainably and thereby degrading the environment.

In the Kerala rare earth114 case the petitioner alleged non

adherence by the government of the sustainable development
mandates in regulating mining industries. The Mines and Minerals
(Development and Regulation) Act, 1957 governs mining in India.
Section 18 of this Act gives the central government the power to
provide a scheme of systematic development and conservation.
Similarly, state governments also have to adhere to the principle of
sustainable development, because of the fact that it is now
constitutional mandate and a constitutional obligation.

113 M.C. Mehta v. Union of India (2009) 6 SCC 142

114 State of Kerala v. Kerala Rare Earth and Minerals Limited [AIR (2016) SC 1817]
2020] Indian Supreme Court and Sustainable Development 83

In the Hanuman Laxman Aroskar case115 the Supreme Court has, while
discussing the importance of ecologically sensitive area and
environmental impact assessment of projects, recognised the value of
17 SDGs from Agenda 2030 and made an observation that there is
interlinking relations between these goals and for overall human
development theses 17 SDGs will play avital role.

CONCLUSION

Sustainable development’ was one of the first few concepts to

be defined and agreed by the nations in an international level. The
definition is very clear and aims at protecting the rights and ability of
the future generation to meet with their need and this can be
achieved only when the environmental resources are preserved by the
present generation. It is also true that the working pattern of
sustainable development was to a large extent covered under
different Principles of Rio declaration 1992, in which the
dissemination of knowledge in the field of science and technology is
one of the important working pattern of sustainable development,
and is recognised very well by the participating nations. In order to
achieve sustainable development by the developing nation, the
primary task to eliminate property was one of the chief goals of
Johannesburg summit of 2002. However, the summit did not
relinquish the responsibilities of developed nations towards the
developing nations for achieving full-fledged implementation of
sustainable development. In the year 2015, the concept of sustainable
development was given a new dimension and a new look while

115 Hanuman Laxman Aroskar and Ors. vs. Union of India (UOI) and Ors.
84 Environmental Law and Practice Review [Vol. 7

introducing 17 sustainable development goals (SDGs) and these goals

are to be achieved by 2030 latest. Therefore, under Agenda 2030, the
participating nations can devise, independently, their own strategies
to achieve at different point of time different goals of sustainable
development in order to complete the task by 2030.

Indian Constitution became vibrant in environmental matters

with the help of 42nd amendment that was introduced in the year
1976 and of Article 48 A & Article 51 (g) post which both the state
and the citizens are under the constitutional obligation to protect,
preserve and conserve environmental resources. Therefore,
development with the help of conservation policy can be witnessed
from the year 1976 in India. In Subhash Kumar v. State of Bihar case, the
Supreme Court categorically asserted that right to life as enshrined
under Article 21 of the Indian Constitution also includes right to get
pollution free environment thereby making it a fundamental right
under. However, legal recognition of the concept of sustainable
development was for the first time done by the Indian Supreme
Court in the Vellore Welfare Forum case in the year 1996. Accordingly,
almost after two decades of 42nd amendment to Indian Constitution,
finally, Indian Supreme Court recognised that it is the principle of
sustainable development that should be considered as an effective
tool for delivering environmental justice, particularly for awarding
compensation to people who are victims of environmental crisis and
also to impose financial liability of restoring the degraded
environment on the polluter.

The Wildlife (Protection) Act, 1972 is not covered under

Schedule I of the NGT Act of 2010. However, other major and
2020] Indian Supreme Court and Sustainable Development 85

substantive environmental legislations aimed at preventing

atmospheric pollution, water pollution, protecting forest resources
and conserving biological diversity have been listed under the same
Schedule. The National Green Tribunal can use principles such as
sustainable development while awarding any environmental orders
under the environmental statutes mentioned in Schedule I.
Therefore, the National Green Tribunal can apply the concept of
sustainable development when there is already an environmental
wrong or to prevent future ones. Therefore the principle of
sustainable development os not just a corrective tool but also a
preventive one. As discussed above, it is the responsibility of both
the state and the citizens to protect and preserve the environmental
resources not only for the present but also for the future generations.

In the end, it may be concluded that the effective application

of the principle of sustainable development was possible in India
right from the year 1996 and it is the Indian Supreme Court that
made it a successful tool for delivering environmental justice. The
role of the Indian Supreme Court is of immense value in delivering
multi-dimensional environmental justice, which can be evidenced
from the fact that the right to pollution free environment is a
fundamental right and this was only possible because of the judgment
delivered by the Supreme Court by applying tools such as sustainable
development, intergenerational equity, precautionary principle and
polluter pays principle for the purpose of delivering effective and
wholesome environmental justice.
 MINING WOES: - APPLICATION OF PUBLIC TRUST
DOCTRINE TO PRESERVATION OF MINERAL
RESOURCES IN INDIA
Anmol Rathore & Hansaja Pandya

ABSTRACT

Mines and mineral resources are a part of the common and

shared heritage of all the citizens of India and the state is the
custodian thereof for the benefit of the present and future
generations. It is this collective wealth, as opposed to minerals in
situ on individual properties, that belongs to the nation.
However the magnificent mining losses over the last ten years
and a continuous unraveling of mining scams by private mine
lessees suggest otherwise. What is unfortunate is that the
government, the designated custodian of the mineral wealth of
the nation has acted tongue in cheek with these scammers. The
paper is an attempt to apply the Public Trust Doctrine to
mineral resources of India to determine the duties of the
government as a trustee of the mineral wealth. This paper traces
the evolution of public trust doctrine and applies it specifically in
case of mines and minerals. The second part of this paper deals
with the regulatory framework in India regarding extraction of
mines and minerals. The third part of the paper explains in
detail the duties of the government as public trustee through
state enactments and literature made available through case
laws. The paper also briefly describes the application of the


4th Year, B.A. LL.B., Gujarat National Law University, Gandhinagar
88 Environmental Law and Practice Review [Vol. 7

concept of intergenerational equity in the context of mines and

minerals thorough the Hartwick’s rule. The paper concludes by
providing a set of recommendations on how government can
better discharge its duty as a public trustee of the Earth’s
precious mines and minerals.

1. INTRODUCTION

Who owns the Earth and its resources? To what extent may
the general public claim the pure water, clean air, rich soil, minerals
and the myriad services earth provides to sustain human life? Across
continents and spanning centuries, a dynamic tension continues
between those who would circumscribe the Earth's bounty for
private use and those who would carefully allot Earth's riches to
satisfy human needs.1 This duty to allot resources equitably in the
society and maintain balance of interest between the present and
future generation, lies with the government. This is the doctrine of
public trust. In other words, the nature is a trust and government its
trustee. And both these trust as well its trustee is created for the
benefit of the people.

Now, another question. What would your reaction be if you

were told that each member of your family was being continuously
and unceremoniously robbed of his rightful inheritance over the past
many years,- a theft of inherited wealth that was now lost, almost
beyond recovery and the thieves were out there, roaming free, yet to
be brought to justice? This the best way to put forth in a respectable

1 David Takacs, The Public Trust Doctrine, Environmental Human Rights, and the Future of Private
Property, 16 N.Y.U. Envtl. L.J. 711 (2008).
2018] Mining Woes: - Application of Public Trust Doctrine…. 89

manner the incontrovertible facts about the mining scams in India,

that have drained the country of the wealth of these natural
resources. Over the last few years, numerous mining losses and
scams have been uncovered and unsubstantiated estimates touted.
Amidst all this conundrum, one thing is certain: the trend is
consistently upwards. The laws have either been defectively framed
or circumvented around in a way to be used as legal alibis for all sorts
of scams and this is where the application of the equitable principles
such as Public Trust Doctrine and Intergenerational equity come in
to the aid of the advocates of environmental preservation.

The PTD has evolved over the decades to emerge as one of

the core and fundamental principles for the judiciary to question the
legitimacy and legality of governmental actions that interferes with
the use by the general public of natural resources. After the
incorporation of this doctrine into the Indian legal system there has
been a stricter check upon governmental authorities who seek to
divest State control over such natural resources in favour of private
parties. Though the origin of the doctrine can be traced to ancient
times and it is of considerable vintage in the United States, its
application in the Indian legal system is a modern development.

More recently, scholars, activists, and lawyers have begun

discussing the rights of people to access and enjoy various essential
resources and services the Earth so generously yields. The spreading
notion of "Environmental Human Rights" fortifies the persistent
notion that sometimes, for some resources, it is immoral and illegal
for private parties to misuse and abuse what the Earth provides
90 Environmental Law and Practice Review [Vol. 7

freely and what is necessary for human health and happiness.

2. EVOLUTION OF PUBLIC TRUST DOCTRINE

2.1. ORIGIN IN ROMAN LAW

The Public trust doctrine first emerged in the Roman Law

under Emperor Justinian. It then resurfaced in medieval England
and was thereafter transported across the Atlantic to the USA
somewhere in the early nineteenth century. The Justinian Code of
the sixth century Rome has been identified as the genesis of the
Public trust doctrine. The Code had the doctrine of res communes, it
declared natural law communal rights in certain omnipresent natural
resources such as the sunlight, water, air, forests and the like, which
were considered the common property of all. This declaration, likely
reflecting Justinian's own idealization of a legal regime2 was in all
events mimicked practically verbatim in the Spanish thirteenth-
century code, Las Siete Partidas, as well as in the “Recopilacion de leyes de
los Reinos de los Indies" promoted throughout the Spanish Empire,
and eventually was reflected in the customs of most nations in the
Middle Ages.3

2.2. DEVELOPMENT IN ENGLISH COMMON LAW

In England, the public trust doctrine is a part of the

Common law. Paragraph 5 of the Magna Carta made an explicit

2 Vance, The background of Hispanic-American law, 98 Legal sources and Juridical literature of
Spain (1943).
3 Richard J. Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources:
Questioning the Public Trust, 71 Iowa L. Rev. 631 (1986)
https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?referer=https://www.goo
gle.co.in/&httpsredir=1&article=1159&context=facpub accessed march 29, 2018.
2018] Mining Woes: - Application of Public Trust Doctrine…. 91

reference to the guardianship of land extending the guardianship to

houses, parks, fish ponds, tanks, mills and other things pertaining to
land.4 As early as 1865, the English House of Lords defined the
concept of public trust in the case of Gann v. Free Fishers of
Whitstable holding that “the bed of all navigable rivers here the tide flows,
and all estuaries or arms of the sea, is by law vested in the crown.”5 This
ownership, vested in the Crown is for the benefit of the subject,
who is the beneficiary and therefore, the Crown cannot abuse its
ownership in any way as to derogate from or interfere with the
rights of the subject. This relationship imposed a fiduciary duty of
responsibility upon the shoulders of the sovereign. The following
were the characteristics of this fiduciary duty6:

• The fiduciary has scope for the exercise of discretion;

• The fiduciary can unilaterally exercise that power or

discretion so as to affect the beneficiary’s legal or practical
interests; and

• The beneficiary is peculiarly vulnerable to or at the mercy of

the fiduciary holding the discretion or power.

2.3. PUBLIC TRUST DOCTRINE IN INDIA

The doctrine has become a fundamental tool used by the

courts to grant justice in many cases relating to environmental
protection. The Rule of Law runs close to the rule of life and the

4 Supra note 1.
5 Patricia Kameri Mbote, ‘The Use of the Public Trust Doctrine in Environmental Law’
(2007) 3/2 Lead J. 195 (Mar. 28, 2018), http://www.lead-journal.org/content/07195.pdf
6 Id.
92 Environmental Law and Practice Review [Vol. 7

Indian Constitution, in its humanist vision, has made

environmental-ecological preservation a fundamental value. The
higher jurisprudence of Article 21 of the Constitution (right to life)
embraces the protection and preservation of nature's gift without
which life ceases to be viable and human rights become a
simulacrum.7 In other words, this right to life under article 21 has
been extended to include the right to a healthy environment and the
right to livelihood.8 Apart from the statutes, the doctrine was given
shape in India mainly through a catena of judicial decisions
discussed below. The doctrine, therefore has found wide acceptance
as a legal alibi for the protection of natural resources which are
owned by all the citizens of the country, and which, but for the
judicial activeness in using this doctrine to promote their
preservation, would have been long depleted. In the further
sections, we attempt to discuss how this doctrine has been used by
advocates of environmental protection and courts alike in the
protection and preservation of mineral resources in India.

3. MINING REGIME IN INDIA

Before, we delve into the application of these principles to

the preservation of minerals, it is pertinent to discuss the mining
regime in India.

7 Mi builders v. Radhey Shyam Sahu, (1999) 6 SCC 464 (India).

8 Olga Tellis and Ors. v. Bombay Municipal Corporation and Anr., 1985 (2) Supp SCR 51
(India).
2018] Mining Woes: - Application of Public Trust Doctrine…. 93

3.1. WHO OWNS THE MINES AND MINERALS?

According to the Public Trust Doctrine, the natural resources

are a part of the commons, and therefore equally owned by all and
legally owned by the Sovereign or the state as a trustee of the citizens.
For the present matter, therefore, keeping in mind the federal
structure of India, the mines and minerals are a part of the commons
and therefore owned partly by the State or the Union territory in
which they are located. This principle is embodied in Article 294 of
the Constitution of India under which that sub-soil minerals are
owned by individual states, not the Centre, the mining leaseholder or
the private landowner, as the case maybe. For instance, in Goa,
Article 2 of the Portuguese Mining Code 1906 clearly stated that the
minerals were owned by the government. Consequently, the state of
Goa now owns sub-soil minerals. Barring some exceptions, such
ownership thus vests with a representative entity such as a district
council or a regional council.

However, in accordance with article 297 of the Constitution,

the Central Government is the owner of the minerals underlying the
ocean within the territorial waters or the Exclusive Economic Zone
of India.9

In this connection, entry at serial No. 23 of List II (State list)

to the Constitution provides that Regulation of mines and mineral
development subject to the provisions of List I with respect to

9 IND. CONST. art. 297.

94 Environmental Law and Practice Review [Vol. 7

regulation and development under the control of the Union10, are

within the purview of States while entry at serial No. 54 of List I
states that Regulation of mines and mineral development to the
extent to which such regulation and development under the control
of the Union is declared by Parliament by law to be expedient in the
public interest‘ shall be within the purview of the Central
Government. The largest complication is that mining is in the
Concurrent List in the Seventh Schedule of the Constitution. What
this means is that no matter who is the owner, the Center is in
control of these resources. It sets royalty rates, terms of auctions, etc.
for major minerals. If the State is the owner of the mines, how does
the mining leaseholder gain title to these mines and minerals? This
happens when the following three conditions are fulfilled:11
(a) there is a valid mining lease and all other clearances;
(b) “winning the ore” – when the lease holder has separated the
ore from the earth; and
(c) when the mining lease holder has paid for the minerals (the
consideration). Now this is plainly the royalty under the
mining lease.

3.2. WHO ARE THE BENEFICIAL OWNERS OF THE MINES AND

MINERALS?

As discussed previously, the Public Trust Doctrine, which is

an integral part of common law is derived from Article 21 (Right to

10 IND. CONST. sch. VII, list 1.

11 Who Owns the Minerals (Apr. 4, 2018, 10:04 AM), http://goenchimati.org/who-owns-title-
to-minerals-in-india/.
2018] Mining Woes: - Application of Public Trust Doctrine…. 95

Life) of the Constitution. The doctrine essentially posits that “natural

resources including forests, water bodies, rivers, sea shores, etc. are held by the
State as a trustee on behalf of the people and especially the future generations.”12
The Supreme Court has held that land, deep underground water,
and spectrum13 form part of the public trust. In simple terms,
natural resources are a part of the commons, owned equally by all,
present and future.

Minerals, both major and minor, sub-soil or offshore, are

inherited assets. Indian inheritance laws would imply that the
present generation is simply a custodian over the minerals for future
generations.14 The Intergenerational Equity Principle, also held to be
part of the Right to Life, is the principle that future generations
have access to the same resources that we do. If each generation
follows this rule, it ensures that future generations have the same
opportunities as we do. If we do not follow this rule, our stock of
capital would decline eventually resulting the extinction of the
human species.15

In practical terms, inherited assets must either be preserved

for future generations, or if alienated, new “non-wasting” assets
must be created of at least equal value. For example, when one sells
inherited gold, he must purchase land of the same value so that

12 Fomento Resorts & Hotels & Anr. v. Minguel Martins & Ors. AIR (2009) 3 SCC 571
(India).
13 CPIL v. UOI, (2012) 3 SCC 104 (India); Goa foundation v. UOI, (2015) 1 SCC 153
(India); Reliance Natural Resources Limited v. Reliance Industries Limited, (2010) 7 SCC
1 (India).
14 Supra note 11.
15 Supra note 11.
96 Environmental Law and Practice Review [Vol. 7

there is no economic waste. Traditionally, inheritances have been

saved in precious metals, precious stones and land – assets that
retain value over time. This is true of personal wealth as well as
community wealth – temple trusts, waqfs. The environment and
minerals are non-wasting assets.

Therefore, as minerals are a natural resource, the state is

simply a trustee on behalf of the people and especially future
generations. These are a part of the commons, owned equally by all.
Finally, the present generation do not have an unfettered right to
consume minerals. We are simply custodians for future generations.
Either the future generations inherit the natural resource, or they
inherit something else of at least equal value. In other words, the
ultimate owners of minerals are our future generations. As the wise
adage goes, we did not inherit the planet from our ancestors, we borrowed if
from our children.

3.3. THE REGULATORY FRAMEWORK

In pursuance to Entry No. 54 of List I, Parliament has

passed legislation titled The Mines & Minerals (Development and
Regulation) Act, 1957 for the regulation of mines and development
of minerals other than petroleum and natural gas.16 Thus the Mines
and Minerals (Development and Regulation Act, 1957, (hereinafter
'MMRD') and the Mines Act, 1952, together with the rules and
regulations framed under them, constitute the basic laws governing

16 Kanhaiya Singh and Kaliappa Kalirajan, A decade of economic reforms in India: Mining Sector in
India, CCEP CRAWFORD (March 23, 2018),
https://ccep.crawford.anu.edu.au/acde/asarc/pdf/papers/conference/CONF2001_08.
pdf.
2018] Mining Woes: - Application of Public Trust Doctrine…. 97

the mining sector in India. The Director General of Mines Safety

(DGMS) is responsible to enforce the provisions of the Mines Act.17

The Mineral Concession Rules, 1960 outline the procedures

and conditions for obtaining a Prospecting Licence or Mining
Lease. The Mineral Conservation and Development Rules, 1988 lay
down guidelines for ensuring mining on a scientific basis, while at
the same time, conserving the environment. The minor minerals are
separately notified and come under the purview of the State
Governments. The State Governments have for this purpose
formulated the Minor Mineral Concession Rules. The MMRD Act
also provides regulations relating to prospecting fee, royalties, and
dead rent in respect of the prospecting and mining leases for
minerals other than minor minerals, payable to the State
Government. The holder of the prospecting licence is required to
pay annually, in advance. The holder of the Mining Lease for
minerals other than minor minerals is liable to pay a Dead Rent to
the State Government till any mineral is removed or consumed,
from which time, the holder has to pay royalty or dead rent
whichever is higher. Each State also has separate laws and rules
governing mining therein. All mining activities have to comply with
the environmental legislation of India such as Environment
Protection Forest (Conservation) Act 1980 and Environment
Protection Act and Rules 1986. The Forest (Conservation) Rules,
1981 and The Environmental Impact Assessment Notification,

17 Id.
98 Environmental Law and Practice Review [Vol. 7

1994 also apply for all the mining projects.18

3.4. PROCEDURE OF ALLOCATION OF MINES

The respective State governments grant mineral concessions

for all the minerals located within their boundary under the Mines
and Minerals (Development and Regulation Act), 2015 and Mineral
Concession rules, 1960. For minerals specified in the First Schedule
to the Mines and Minerals (Development and Regulation) Act,
1957, before granting the mineral concession, approval of the
Central Government is necessary. Three different kinds of mineral
concessions are provided in India:

i. Reconnaissance Permit(RP): granted for preliminary

prospection of a mineral through regional aerial, geophysical
or geochemical surveys and geological mapping.19

ii. Prospecting License(PL) is granted for undertaking

operations for the purposes of exploration, locating or
proving minerals deposits.20

iii. Mining Lease(ML) is granted for undertaking operations of

mineral extraction.

The MMDR Amendment Act 2015 provides for two types of

licenses that are granted to the bidders:
(i) Mining lease
(ii) Composite lease

18 Id.
19 Mineral resource Department, (Mar. 25, 2018), http://chhattisgarhmines.gov.in/en/faqs.
20 Id.
2018] Mining Woes: - Application of Public Trust Doctrine…. 99

These are electronically obtained after applying on the

auction process under the Mines and Minerals (Development and
Regulation) Amendment, Act 2015.

S. 10 of the MMDR Act deals with the applications for

prospecting licenses or mining leases.21 S. 10B(4) provides that
mining lease in respect of a notified mineral shall be granted by the
State government through auction by a method of competitive
bidding, including e-auction, to an applicant who fulfils the eligibility
conditions as specified in the MMDR Act.22

Further, the terms and conditions, and procedure, subject to

which the auction shall be conducted, including the bidding
parameters for the selection, which may include a share in the
production of the mineral, or any payment linked to the royalty
payable, or any other relevant parameter, or any combination or
modification of them shall be prescribed by the Central
government.23

S. 10B(7) provides that The State Government shall grant a

mining lease to an applicant selected in accordance with the
procedure laid down in this section in respect of such notified
mineral in any notified area.

It was held in The Goa foundation case that it is for the State
Government to decide as a matter of policy in what manner mining

21 Mines and Minerals (Development and Regulation) Act, § 10B (5) (1957).
22 Mines and Minerals (Development and Regulation) Act, § 10B (5) (1957).
23 Mines and Minerals (Development and Regulation) Act, § 10B (5) (1957).
100 Environmental Law and Practice Review [Vol. 7

leases are to be granted in future.24 However, the Central

government specifies certain minerals as minor minerals for which
the absolute power and authority for deciding the procedures of
application and grant of mineral concessions lies with the State
governments.

An application for grant of mining lease should be made to

the State government. The procedure for grant of mineral
concessions is that all such applications are received and processed
in the Directorate of mines. The application which is received is
required to be acknowledged in the prescribed form. The
application is thereafter sent to the draughtsman and surveying
section to ascertain the availability of the area. After doing the
needful, the case is further processed by the dealing hand. If any
deficiencies are noticed in the matter of submission of documents as
required under the law or as decided by the competent authority, the
same are brought to the notice of the applicant for rectification.
References are also made to Revenue and Forest Department to
ascertain their views on the suitability of the site from the point of
public nuisance or forestry angle. The area is also inspected by a
geologist of this Directorate to ascertain the suitability of the area
from mineral potential point of view including the possible adverse
effects arising from prospecting or mining activity. If the area
involved is a forest land the case is processed for clearance under
section 2 of Forest Conservation Act if the state government agrees
in principle to grant the prospecting license/mining lease. A

24 Goa foundation v. UOI, (2015) 1 SCC 153 (India).

2018] Mining Woes: - Application of Public Trust Doctrine…. 101

Clearance under section 2 of Forest Conservation Act 1980

provides for a detailed proposal from the applicant in consonance
with the Forest Conservation Rules and the guidelines prescribed by
Ministry of Environment.

The application is also processed for obtaining a prior

approval of the Ministry of Mines, Government of India, if the
mineral involved is listed in Schedule I to the Act 1957. After
obtaining the prior approval of the Ministry of Mines, Government
of India as well Ministry Of Environmental Forest, Government of
India (where forest land is involved) and the environmental
clearance, the case is put up for approval of the State Government.25
It is only after the issue of the order of grant by the State
Government; the area applied for grant of mineral concession is
surveyed and demarcated on the ground. A plan is prepared by the
surveyor which is signed by the surveyor, the Senior Geologist and
the Director and kept in the file as the original document. A true
copy of the plan is prepared by the draughtsman, which forms a
part of the lease deed document. The applicant is thereafter called
upon to effect the payment towards security deposit as well as
expenses involving survey, issue of certified copy of plan. A lease
deed is thereafter executed at Government level and mines are
successfully leased to the lessee.

4. DUTIES OF THE GOVERNMENT AS A PUBLIC TRUSTEE

Though there is no legal statute expressly outlining the

25 Supra note 20.

102 Environmental Law and Practice Review [Vol. 7

duties of the public trustee, this paper attempts to cull out the list of
duties, liabilities and obligations of the government as a trustee of
the mines and minerals of the country. An attempt is also made to
point out through case laws, various instances where the
government has failed to abide by its duties and obligations, or not
exercised its rights when the circumstances called for it.

The general guidelines regarding the duties of the trustee as

found in Indian trust act, 1882 can also be applied to the public
trustee.

Bombay Public Trust Act, 1950 a statute applicable to the

states of Gujarat and Maharashtra, lists the following duties of a
public trustee,

“(1) A trustee of every public trust shall administer the affairs of the
trust and apply the funds and properties thereof for the purpose and objects of the
trust in accordance with the terms of the trust, usage of the institution and lawful
directions which the Charity Commissioner or Court may issue in respect thereof,
and exercise the same care as a man of ordinary prudence does when dealing with
such affairs, funds or property, if they were his own.

(2) The trustee shall, subject to the provisions of this Act and the
instrument of trust, be entitled to exercise all the powers incidental to the prudent
and beneficial management of the trust, and to do all things necessary for the due
performance of the duties imposed on him.

(3) No trustee shall borrow moneys (whether by way of mortgage or

otherwise) for the purpose of or on behalf of the trust of which he is a trustee,
except with the previous sanction of the Charity Commissioner, and subject to
2018] Mining Woes: - Application of Public Trust Doctrine…. 103

such conditions and limitations as may be imposed by him in the interest or

protection of the trust.

(4) No trustee shall borrow money for his own use from any property of
the public trust of which he is a trustee.

Provided that, in the case of trustee who makes a gift of debentures or

any deposit in his business or industry the trustee shall not be deemed to have
borrowed from the trust for his own use.” 26

Apart from the statutes, the doctrine was given shape in

India mainly through a catena of judicial decisions. The doctrine of
public trust has now become a part and parcel of Indian
jurisprudence and is also considered as an essential component of
ensuring life and liberty to all the people under article 21 of the
Indian constitution.27

The public trust doctrine is asserted to buttress the

government’s ineluctable responsibility to protect the right to life
and ancillary rights that serve the fundamental rights. Accepting
public trust doctrine as a part of common law, the Indian courts
have applied this explicitly in various case laws, defining the
doctrine in the indigenous Indian context.28 Articles 48A and 51A of
the Constitution also furnish the principles of jurisprudence, which
are fundamental to our governance under the Rule of Law.

Supreme court stopped unauthorized mining causing

environmental damage, holding that the, “is a price that has to be paid

26 §36A Bombay public trust act 1950, No. 29 of 1950 (India).

27 Majra Singh And Ors. v. Indian Oil Corporation and Ors., AIR 1999 JK 81 (India).
28 State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 (India).
104 Environmental Law and Practice Review [Vol. 7

for protecting and safeguarding the rights of the people to live in a healthy
environment with minimal disturbance of ecological balance.”29

The landmark case of M.C Mehta v. Kamal Nath30, lays

down the duties of the government as a public trustee as follows,

“The State as a trustee is under a legal duty to protect the natural

resources. These resources meant for public use cannot be converted into private
ownership.”31

Furthermore, the court in this case has laid down

categorically that the people shall be the beneficiaries of the natural
resources, which are by nature meant for their use enjoyment.

Right from 1985, the court while reaffirming the doctrine

and holding the government responsible as a public trustee of the
nature’s resources, observed that it is the precautionary principle
under which the State should always anticipate environmental harm
and take measures to avoid and prevent illegal mining, storage and
transportation of sand in the State.32 The State being a welfare state
is under a constitutional obligation to regulate such things.33

Narrowing the concept down to the duties of the

government in respect of mines and minerals, the Supreme Court
opined that,

“…The State has to tread cautiously promoting a sustainable

29 Rural litigation & entitlement Kendra v. State of Uttar Pradesh, AIR 1988 SC 2426
(India).
30 M.C.Mehta v. Kamalnath and others, (1997) 1 SCC 388 (India).
31 Id.
32 Unknown v. The State of Tamil Nadu, 1985 (2) Supp. SCR 51 (India).
33 Id.
2018] Mining Woes: - Application of Public Trust Doctrine…. 105

extraction regime to facilitate systematic, scientific and planned utilization of

mineral resources and to streamline mineral based development of the State,
keeping in view, protection of environment, health and safety of the people in and
around the mining areas rather than race to bottom.”34

The court in the Goa Foundation35 has acknowledged that

the, states have witnessed the peak of chaotic and unregulated
mining without any concern for fragile ecology and environment of
the State concerned. It has resulted in massive export of
unaccounted ore from unidentified sources like dumps and tailings.
The reckless exploitation without any concern for sustainability that
the State has witnessed in last five years has serious implications.
Minerals are a finite and non-renewable natural resource and must
be exploited wisely in the larger interest of the State.

The court in the first case of Goa Foundation v. Union of

India36, noted that, the State Government may grant mining leases of
iron ore and other ores in accordance with its policy decision and in
accordance with the MMDR Act and the Rules made thereunder in
consonance with the constitutional provisions. In light of this, the
Mines and Mineral (development and Regulation) Act, 1957 in
section 18, codifies the duties of the government as a trustee of
nature’s wealth, as follows,

“18. Mineral development-It shall be the duty of the Central

Government to take all such steps as may be necessary or the conservation and

34 The Goa Foundation v. M/s Sesa Sterlite Ltd., 2018 SCC Online SC 98 (India).
35 Id.
36 Goa foundation v. Union Of India, (2015) 1 SCC 153 (India).
106 Environmental Law and Practice Review [Vol. 7

systematic development of minerals in India and for the protection of environment

by preventing or controlling any pollution which may be caused by prospecting or
mining operations] and [for such purposes] the Central Government may, by
notification in the Official Gazette, make such rules as it thinks fit.”

The government is empowered by this section 18 of the act,

to make rules and regulations for “prudent and beneficial management of
the trust property” in the form of mines and mineral. Clause (c) of
section 18 is of utmost importance as in reasonably explicit terms
the clause empowers the government as a trustee to impose on the
mine owners an obligation to use the ores in interest of the
beneficiaries. 18(c) provides that the government may make rules
regarding:

“(c) The measures to be taken by owners of mines for the purpose of

beneficiation of ores, including the provision of suitable contrivances for such
purpose;...”

Therefore the Mines and Mineral (Development and

Regulation) Act, 1957 makes not only the government but also the
owners to whom the mines have been leased out as the co-trustees
of the said natural resources. The government shall be liable and
answerable to the beneficiaries where it has delivered the property
to his co-trustee without seeing to his proper application.37 Thus the
doctrine of public trust is not limited to the scope set out by the
principle of Parents Patria, but extends to include the privates
players of the mine industry. In its widest scope the doctrine of

37 §26(a), Indian trust (Amendment) Act 1882, No. 34, Acts of Parliament, 2016 (India)..
2018] Mining Woes: - Application of Public Trust Doctrine…. 107

public trust, imposes similar duties on all the members of present

generation, to use recourses in a sustainable fashion for the benefit
of the future generation as well. Therefore in such a scenario the
ultimate beneficiaries are the members of every coming generation.

Moreover the government is also enjoined to ensure that,

“No part of the natural resource can be dissipated as a matter

of largesse, charity, donation or endowment, for private
exploitation. Each bit of natural resource expended must bring
back a reciprocal consideration. The consideration may be in the
nature of earning revenue or may be to “best sub serve the
common good”. It may well be the amalgam of the two. There
cannot be a dissipation of material resources free of cost or at a
consideration lower than their actual worth. One set of citizens
cannot prosper at the cost of another set of citizens, for that
would not be fair or reasonable.” 38

The inference that can be drawn from this observation of the

court is that, the doctrine of public trust has different implication
when it comes to ‘allocation of natural resources to the present
generation’ as differentiated from ‘protection and preservation of
natural resources for future generations.’ Where a public authority
implements a policy, which is backed by a constitutionally recognized
social purpose intended to achieve the welfare of the community, the
considerations which would govern would be different from those

38 CPIL v. Union of India, (2012) 3 SCC 104 (India); Goa foundation v. Union Of India,
(2015) 1 SCC 153 (India); Reliance Natural Resources Limited v. Reliance Industries
Limited, (2010) 7 SCC 1 (India).
108 Environmental Law and Practice Review [Vol. 7

when it alienates natural resources for commercial exploitation. The

resources like the minerals, sand ores, etc. can be leased out to private
players in the market not only for the purpose of public good but
also with a consideration of earning revenue. The royalty paid by the
mine leases is the capital receipt of the government.39

Such a consideration may have an ultimate goal to benefit the

society at large through increased government revenue resulting in
egalitarian distribution of quality good and services to the society. But
this is a far-fetched assumption, as most of the increase in revenue is
utilized for paying of government debt, so as to reduce the pressure
of debts on future generations. In certain cases, the dominant
consideration is not to maximize revenues but to achieve social good
such as when the alienation is to provide affordable housing to
members of the Scheduled Castes or Tribes or to implement housing
schemes for Below the Poverty Line (BPL) families. In other cases
where natural resources are alienated for commercial exploitation, a
public authority cannot allow them to be dissipated at its unbridled
discretion at the cost of public interest. The window is now more
than ajar40.

But the recent decisions of Supreme Court, has partially

modified this theory and kept open the window to judicially review
such a policy if it does not serve the common good as understood in
Article 39(b) of the Constitution, or if it violates Article 14 of the

39 Who Owns the Minerals (Apr. 4, 2018, 10:04 AM), htttp://goenchimati.org.

40 M/s. Ajar Enterprises Private Limited v. Satyanarayan Somani, 2017 (10) SCALE 3
(India).
2018] Mining Woes: - Application of Public Trust Doctrine…. 109

Constitution and alienates natural resources for maximizing profits of

private entrepreneurs while sidelining Article 39(b) of the
Constitution. “The legislature and the executive are answerable to the
Constitution and it is there where the judiciary, the guardian of the Constitution,
must find the contours to the powers of disposal of natural resources, especially
Article 14 and Article 39(b) of the Constitution.”41

In light of this case, export of natural resources shall be seen

in violation of public trust doctrine, unless the revenue and foreign
exchange received thereby leads to exponential growth of national
economy and along with it improvement in quality and economy of
life of the citizens of India.

In Goa foundation v. Sesa Sterlite Ltd & ors42, the

question before the Supreme Court was whether, could it be
reasonably said that export of iron ore is in the interest of mineral
development. The court reasoned out that the beneficiaries of the
rapaciousness were not the common people or the domestic market.
There was no value addition to the Indian industry and the iron ore
was mined only for export. The primary beneficiary were the mining
lease holder, a private entity, and some collateral beneficiaries like the
commercially driven barge owners and truck owners. The average
citizen who had to suffer a polluted environment and witness the
damage to the State’s ecology paid the price. In other words, the State
sacrificed maximizing revenue for no apparent positive reason,

41 Reliance Natural Resources Limited v. Reliance Industries Limited, (2010) 7 SCC 1

(India).
42 Supra note 34.
110 Environmental Law and Practice Review [Vol. 7

virtually surrendering itself to the commercial and profit making

motives of private entrepreneurs and ignoring the interests of the
society in general. “Export benefits cannot be weighed against health or the
environment. There was no social or public purpose attached to the mining
operations. There was one and only one objective behind the mining activity and
that was profit maximization”43 and therefore in absence of any value
addition to domestic industry and damage to environment it cannot
be said that it was in the interest of mineral development.

The government also acted in violation of section 18 of the

trust act 1882, which enjoins upon the trustee the duty to prevent
waste. The section applies in following situations:
(i) Where the trust is created for the benefit of several persons in succession,
and one of them is in possession of the trust property.
The present generation is in possession of the trust property, which is
meant for the benefit of the future generation as well. The government
holds the natural resources as a trustee for benefit of all generations in
succession.
(ii) If the one in possession commits or threatens to commit any act which is
destructive of permanently injurious.
The private miners to who the mines were leased out damaged the
environment to a great extent and minerals being non-renewable
resources have disproportionately and permanently been lost.
(iii) The trustee who is bound under this section to prevent such act, as
shamelessly failed in doing so.

43 Id.
2018] Mining Woes: - Application of Public Trust Doctrine…. 111

What can be inferred out of this is that, when the affirmative

duties are set out from a negative angle, the public trust doctrine does
not exactly prohibit the alienation of property held as a public trust,
but mandated a high degree of judicial scrutiny. The government can
surrender the rights only in those rare cases when the abandonment
of a right is consistent with the purpose of the trust.44 In other words
the aesthetic use and pristine glory cannot be permitted to be eroded
for private, commercial or any other use unless the courts find it
necessary, in good faith, for the public good and in public interest to
encroach upon the said resources.45

In Conclusion, projects of public utility cannot be abandoned

and it is necessary to adjust the interest of the people as well as the
necessity to maintain the environment.

5. INTERGENERATIONAL EQUITY

The concept of public trust doctrine is inextricably linked to

the concept of intergenerational doctrine. As the Stockholm
Declaration of United Nations on Human Environment evidences
that “The natural resources of the earth, including the air, water, land,
flora and fauna and especially representative samples of natural
system, must be safeguarded for the benefit of present and future
generations through careful planning or management, as
appropriate….”.46 Hence, public trust doctrine is widely accepted
doctrine in international scenario. Intergenerational equity is the

44 In Re, Special reference no. 1 of 2012, (2012) 10 SCC 1. (India).

45 T.N Godavaraman Thirumulpad v. Union of India, (2002) 10 SCC 606. (India).
46 Lucas Bento, Searching for Intergenerational Green Solutions: The Relevance of
the Public Trust Doctrine to Environmental Preservation, COMMON L. REV. 7-13 (2009).
112 Environmental Law and Practice Review [Vol. 7

principle, which says that future generations need to have equal

access to resources as the present generation. The Supreme Court has
also ruled in a catena of judgements that intergenerational equity is a
part of our fundamental rights. It is also reflected in the customary
concept of an uttaradhikari (heir), and the cautionary mythology of
Bhoodevi.

The concept of intergenerational equity in the context of

mines and minerals can be explained with the help of Hartwick’s rule.
Hartwick’s rule says that as mineral resources are extracted from the
ground, investments in productive assets need to be made to leave
future generations with as much assets as the present generation has
access to. In the Indian context, under the Constitution, subsoil
minerals are the property of states governments. Therefore, the states
are responsible for satisfying Hartwick’s rule. This rule is similar to
the requirement of Section 12 read with Section 20 of the Indian
trust Act, which requires the trustee to invest the trust money in
order to generate periodical income for the benefit of the beneficiary.
However the mode and the manner of investment changes.

The Hartwick rule holds that consumption of non-renewable

natural resources like mines and minerals can be maintained if the
rents from non-renewable resources are continuously invested rather
than used for consumption. This rule is quite intuitive – to keep our
total capital constant, if we extract a mineral (a non-renewable
resource), thereby reducing our mineral wealth, we need to create or
invest the proceeds earned in another asset, at least equal to the value
of the mineral that has been extracted and not less. In the case of
2018] Mining Woes: - Application of Public Trust Doctrine…. 113

mineral resources, “rent” or “economic rent” or “mineral depletion”

is the expected value of the mineral resources before they are
extracted.47 Technically, rent is the difference between the prices paid
in the market for something versus the total cost of producing it
(including a proper return on capital). Therefore, rent from extracted
mineral resources must be continuously invested.48

Indian government has failed on 2 main fronts to meet

Hardwick’s Rule:

(i) Most of the value of the iron ore extracted is cornered by mining
leaseholders, resulting in a significant redistribution of wealth from the
poor to the rich.

(ii) Governments in reality are able to capture only a very small fraction of
the ores extracted.

A common problem faced by mineral rich states is that, they

do not have sound investment opportunities. A common solution to
this is the establishment of permanent fund, on lines of endowment
or pension fund.49 Norway’s sovereign wealth fund is a famous
example. It has built up an enormous corpus of $ 800-plus billon
from North Sea oil revenues for a population of only 5 million. Such
a step was also recommended by the Supreme Court in Goa
Foundation case in 2014.

Therefore, the adoption of intergenerational equity as a

47 Basu, Rahul, Implementing Intergenerational Equity in Goa, 49 ECO. & POL. WEEKLY 33
(2014).
48 Id.
49 Id.
114 Environmental Law and Practice Review [Vol. 7

governing norm leads to sustainable development if the common

sensical idea behind Hartwick’s rule is met, that is when one asset is
sold off, or exported to other countries the state must invest in an
equally productive asset to keep the wealth of the nation constant
and ensure fair and equitable distribution of natural resources to
future generations. Here, in case of non-renewable natural resources,
the state may invest in technology that reduce wastage of the
resources and use minimum energy in their extraction.

6. RECOMMENDATIONS

The Government needs to recognise that it merely holds the

mines and minerals as trustee for the present and the future
generations. Therefore, there needs to be a recognition of the
following cardinal principles on which the mining policy of the
government should be based:
i. The citizens of India, own the mineral resources in common. The Central
and the State governments are merely trustees for the benefit of the people,
especially future generations.
ii. The present generation itself is a mere custodian of these mineral
resources, which it must pass on to the future generations. This principle
embodies the Intergenerational equity principle.
iii. The State, when it leases the mineral resources or sells them off to private
parties, it must ensure zero loss which implies that it should capture full
economic rent. Economic rent means the sale price minus the cost of
extraction, cost including reasonable profit for the miner. The State must
keep in mind that any loss that it sustains on these mineral resources, is
a loss to the us and the future generations.
2018] Mining Woes: - Application of Public Trust Doctrine…. 115

iv. A significant recommendation that the government can implement is the

creation of Permanent State funds in all states, learning from the best
practise around the world. The Permanent fund should be a part of the
commons. The state governments should aim that the Permanent funds
score high in accordance with the Santiago principles. The government
can take from the Supreme Court direction to Goa to create a
Permanent Fund for Goan Iron ore. The State has already deposited
Rs. 94 crores in the same.
v. Provisions should be made for Citizen’s dividends by all states. Any real
income (after-inflation) that accrues from the mining and is deposited in
the Permanent funds of the States should be distributed to all citizens as
a right of ownership, maybe by way of Direct Benefit Transfer.

For the implementation of these principles, the following

concrete steps need to be taken by the government:
i. All the illegal mining leases should be cancelled and all the amount due
form illegal mining should be recovered and deposited into the State
Permanent Funds.
ii. All the mining policies of the States should be based on the principle of
Zero Loss Mining and Zero Waste Mining.
iii. Since, the Supreme Court has held in the case of Goa foundation that it
is for the States to decide the manner of lease of mines, the process of
granting mining leases should be made as transparent as possible. The
States can directly auction the leases, in this way securing the best returns
by way of competitive bidding process.
iv. A legislation protecting and rewarding whistle blowers in the trade
should be introduced. Also, all of the mining documents should be
scanned and made accessible to the public.
116 Environmental Law and Practice Review [Vol. 7

7. CONCLUSION

To conclude the duties of government as a public trustee can be

summarised as follows:

 The state is to use the resources only for public purposes.

 These resources apart from being used by the government

itself are also leased to the private undertakings for exploiting
it for the public interest. These leases come with the
limitations and restrictions imposed by the state government.
In pursuance of this the state governments grant mineral
concessions in the form of licenses that regulate the time
period, the area for mining and for undertaking the
operations of winning the mineral.

 After granting these licenses it is the duty of the state to keep

a check on their utilization in the proper, legal and judicious
manner and ensure that they are exploited only for public
purposes and within the realm delegated to them.

 It shall also be the duty of the corporate houses vis-à-vis the

government to conform to the guidelines of the mining
business laid down by the government and pay royalty for
carrying on the business.

 The state being the public trustees of these resources is

bound by the law to ensure their proper and judicious
utilization which otherwise leads to such dangerous
consequences which the country is already witnessing in the
2018] Mining Woes: - Application of Public Trust Doctrine…. 117

present times.

 The State is duty bound as a public trustee to act under the

burden of the precautionary principle and take measure to
ward off environmental harm.

 Unless the alienation or disposal of a natural resource is

for the common good or a social or welfare purpose, it
cannot be dissipated in favour of a private entrepreneur
virtually free of cost or for a consideration not
commensurate with its worth without attracting Article
14 and Article 39(b) of the Constitution.

Further if the government fails to control the mining

operations in the state by the private sectors it is obvious for the
corporate houses that carry on business for gain to work their ways
out to increase profits. Even otherwise the undertakings of the
government that conducts mining operations if do not work within
the prescribed limits and in an arbitrary manner is liable to not only
deplete the natural resources faster but also cost the country huge
amounts of losses counting in millions. That being the scenario the
states of Karnataka, Orissa and Goa have been plundered in their
mineral wealth leading to the degradation of the mineral resources
they are rich in and defeating the very concept of sustainable
development that stands as one of the basic goals of the country.
These mining scams reflect is either a breach by the states of the
public doctrine of mineral resources or their failure as the public
trustees to hold and administer them effectively for the people at
118 Environmental Law and Practice Review [Vol. 7

large.50 The protection and conservation of mineral resources is of

the utmost importance today, in the wake of mining scams which
result in the unfortunate case that the wealth is amassed by the few
which control these resources rather than being inherited by those
who are the rightful owners of the same. This paper acknowledges
that by application of the principles of PTD and intergenerational
equity, the State as the custodian of these resources needs to
remediate the losses. The constitutional obligation on the citizens and
the government alike, forces them to uphold the sanctity of these
resources. We must assume a shared responsibility for the
conservation of natural resources, including pollution prevention and
ultimately remediation to cover the costs of the legacies of past
mining scams and losses.

50 Baxipatra Divyashree, Failure of the States as Public Trustees of Mineral Resources on the Face of
Mining Scams, SSRN (Apr. 6, 2018, 6:37 PM), http://dx.doi.org/10.2139/ssrn.2225021.
EFFECTIVENESS OF CARBON MARKETS: FROM
KYOTO TO PARIS AND BEYOND

Aastha Kaushal & Lianne D’Souza

ABSTRACT

In a day and age where climate change bears the status of being
a diabolical policy problem, sustainable development poses a
clarion call to undertake mitigation actions on a global level
and when doing so, it becomes imperative that such action plans
ensure the maintenance and importance of two fundamental
goals: environmental quality and economic development. With
Greenhouse Gases induced from human activities being the most
significant driver of observed climate change, the need for
decarbonisation measures is of paramount importance. The
existing mechanisms that regulate carbon emissions encompass
the traditional direct regulation as well as price-based market
approaches, which include carbon taxation and carbon trading.
Similarly, the system of trading in carbon credits through the
carbon markets was proposed to be the most effective in terms of
both economic efficiency and environmental sustainability.
However, the attempt to structure and manner the same under
national and international regimes shows that it is not bereft of
significant flaws. The Kyoto Protocol through its top-bottom
approach failed in accounting for the larger aim and mission
through excluding developing countries from undertaking
mandatory emission reduction obligations. The subsequent Paris
120 Environmental Law and Practice Review [Vol. 7

Agreement provided for a more robust and inclusive framework

and aptly overcame the limitations of the previous regime and
incorporated the idea of ‘common but differentiated
commitments’. Nevertheless, the market mechanism of carbon
trading is still wrought and possesses various drawbacks.

This paper employs a doctrinal method of research to analyse

the transitory carbon trading mechanisms under the Kyoto
Protocol and the Paris Agreement and subsequently throws
light on their existing lacunae. It considers the need for collective
action such that a stability in carbon markets is secured and
aims at proposing an inclusive global carbon trading framework
with a focal point on carbon pricing such that the overall goal of
environmental sustainability is given the utmost importance.

INTRODUCTION

“The principle of common but differentiated responsibilities is

the bedrock of our enterprise for a sustainable world”
- Prime Minister of India, Narendra Modi.

In the preceding few decades, a concept which has stood at

the heart of the debate on economic progress is the concept of
‘sustainable development’. The Brundtland Commission firmly
defined the term ‘sustainable development’ to mean the path of
economic development which meets the needs of the present
generation without compromising the needs of future generations1.

1 Report on Sustainable Development, World Commission on Environment and

Development, 1987.
2018] Effectiveness of Carbon Markets: from Kyoto to Paris and Beyond 121

This concept thereby addresses multidimensional issues though an

amalgam of efficiency and intergenerational equity. The philosophy
of sustainable development is concerned with the ways in which
economies and their natural environments interact2. It deviates from
the earlier notion which presupposed that one could either have
economic progress or environmental quality and any combination of
the two would involve a trade-off. However, this modern concept
contemplates that economic development and environmental quality
are intertwined and complementary to one another. The simple logic
presupposing this notion is that the way in which economies are
managed invariably impacts the environment while on the contrary
environmental quality impacts economic performance3. Bearing this
in mind, it is therefore imperative that the pursuit of economic
growth does not jeopardize the environment and the quest for sound
environmental policies does not in turn slow down economic
progress4.

Global warming and climate change continue to be

controversial issues and are comparatively complicated issues to
tackle because the challenges facing them in particular span across
disciplines5. In devising policies that tackle the imminent threat of
global warming, regulating anthropogenic activities, the prime cause

2 DAVID PEARCE, ANIL MARKANDYA & EDWARD BABIER, BLUEPRINT FOR

A GREEN ECONOMY 4 (ed.,1 Earthscans Publication Ltd, 2006).
3 Adam Rose & Teitenberg, An International system of Tradable CO2 Entitlements: Implications
for Economic Development, JOURNAL OF ENVIRONMENT & DEVELOPMENT, 4
(1993).
4 Id.
5 WILLIAM NORDHAUS, THE CHALLENGE OF GLOBAL WARMING:
ECONOMIC MODELS AND ENVIRONMENTAL POLICY 4 (ed., 1 Yale
University press, 2007).
122 Environmental Law and Practice Review [Vol. 7

for the ever-increasing greenhouse gas concentration, is the ideal

approach. Regulation through the lens of an economist can play a
vital role, for nations whose economic interests take priority over
those of a social character, a rational self-interested behaviour is the
guiding motive. This individual self-interest is what precludes
participation in collective, environment- centric action plans. Thus, a
viable solution that not only guarantees co-ordinated action but also
satiates economic interests will be one conceived through a market-
based approach. In this regard, an analysis of carbon markets as an
effective tool in mitigating global warming and subsequently climate
change is significant.

THE NEED FOR COORDINATION AND GLOBAL AGREEMENT

Climate change is perhaps the most widespread tragedy of

common universal effect that has attracted an enormous amount of
attention across the globe6. However, many countries have been
hesitant to address the same because such environmental problems
are viewed sceptically as a deviation from effective economic
functioning. But a crucial feature of the environment often
disregarded is its pervasiveness. As the name suggests, ‘Global
warming’ is a global phenomenon which arises from the erosion of
global commons7. The very fact that it is a global externality implies
that the goal is not restricted to mere individual actions of reducing
carbon concentration in the atmosphere but also to securing the co-

6 ERIC. A. POSNER & DAVID WEISBACH, CLIMATE CHANGE JUSTICE, 43 (ed.,

1 Princeton University Press, 2010).
7 id. at 2.
2018] Effectiveness of Carbon Markets: from Kyoto to Paris and Beyond 123

operation of every nation in an equitable manner8. Furthermore, on a

jurisprudential front, collective action is also warranted by the theory
of Utilitarianism. This theory as propounded by Bentham envisages
that policies must promote the greatest good of the greatest number.9
An application of utilitarianism therefore contemplates that every
nation’s participation as the ‘greatest number’ cannot be restricted to
the population of only some nation states or a single generation.
Similarly, economic instruments would necessitate an immediate
collective action as pollution abatement in the present is a more cost-
effective matter to address than by postponing it to a future date. In
instances particularly where the damage caused by the delay is
irreversible, the rising costs of abatement necessitates inclusive action
plans. The Stern review10 contemplates that countries which are
precluded from partaking in a global action plan to mitigate climate
change must look beyond their individual, self-interested economic
goals. It estimated that the overall costs and risks of climate change
will be equivalent to losing at least 5% of global GDP each year11.
Hence the result will be such that increasing environmental
degradation will inhibit economic growth to a point when neither
development nor environmental sustainability can be achieved.

8 id. at 3.
9 BENTHAM JEREMY, AN INTRODUCTION INTO THE PRINCIPLES OF
MORALS AND LEGISLATION], 282-283 (Burns. J. H & HLA Hart ,1972).
10 Nicholas Stern, Stern Review On Economics Of Climate Change, HM Treasury, 449 (2006).
11 id.
124 Environmental Law and Practice Review [Vol. 7

POLICY INSTRUMENTS THAT REGULATE CARBON EMISSIONS

There are two broad categories of policy instruments through

which carbon emissions are sought to be controlled and subsequently
reduced. These approaches vary with respect to their effectiveness in
terms of reducing pollution as well as their efficiency i.e. abating
pollution at the least cost12. Therefore, a choice of emission policies
must be guided by the underlying target of reducing and eliminating
emissions at the least possible cost.

The first and relatively more traditional approach towards

environmental problems is that of direct regulation, which is
commonly referred to as the method of ‘Command and control’. This
method simply orders polluters to pollute less either by setting
uniform standards for industries or by imposing legislative bans13. It
is carried out either through ‘input control’ which mandates the use
of a specific technology or through ‘output control’ which limits the
total amount of an activity that forms a source of pollution14. The
inherent setback in the case of ‘input control’ is that the technology
so specified may not always be the most efficient method as a
consequence of the information asymmetry despite the said method
often turning out to be the cheapest method. Correspondingly, in the
latter scenario the cost of compliance with the established standard is

12 Simon Caney & Cameron Hepburn, Carbon Trading: Unethical, Unjust and Ineffective, 3,
(2011).
13 Rebecca Pearse, Carbon Trading for Climate Justice, 17 Asia Pac. J. Envtl. L. 111 (2014).
14 RICHARD POSNER, REGULATION OF POLLUTION, ECONOMIC ANALYSIS
OF LAW, 505 (9thed., 1972).
2018] Effectiveness of Carbon Markets: from Kyoto to Paris and Beyond 125

either extremely prohibitive or too disproportionate to the benefits of

pollution abatement that its fails to deliver any efficacy15.

An overview of this first approach portrays that the

command and control method imposes ultimate punitive sanctions
and instils the threat of litigation in cases of deviance. However, it
falls short in providing any intrinsic motive to comply apart from a
desire to avoid liability16. Furthermore, it does not really tackle the
dilemma of increasing emission levels nor is there any guarantee of
an optimal level of efficiency in abating carbon emissions. The second
approach pertains to a range of economic systems which rely on
individuals and market based incentives to determine the best
technologies to reduce emissions at the least cost. Market based
financial systems such as taxes and emission trading provide positive
gains over traditional methods as they coordinate social behaviour
and attitudes towards implementing environmentally sound
practices17. They hold the promise of controlling carbon emissions by
creating markets in what were deemed as ‘free services’ and allotting
such resources a positive price18. Such positive prices regulate
behaviour of individuals and firms in a manner that create and
promote incentives to innovate and develop alternate green
technologies and avoid the exploitation of environmental resources.
The simplest conceptual form of a market based incentive is that of a

15 id. at 6.
16 Braden Smith, Transnational Carbon-Trading Standards: Improving the Transparency and
Coordination of Post-Kyoto Carbon Trading Markets, 30 Pace Envtl. L. Rev. (2012).
17 Paul Street, Trading in Pollution: Creating Markets for Carbon and Waste, 9 Envtl. L. Rev. 260
(2007).
18 See Pearce, Markhandya & Babier, supra note 2, at 154.
126 Environmental Law and Practice Review [Vol. 7

‘carbon tax’ which is levied in proportion to the quantum of carbon

emissions. Based on the ‘polluter pays principle’ it represents a penalty to
be paid for generating carbon emissions. In contrast to the traditional
mechanism, a tax approach ensures that economic costs and
pollution reduction benefits are easily and flexibly integrated19 and
enables a polluter to choose how they will adjust to environmental
quality standards. However, the apparent disadvantage about carbon
tax is that there is no guarantee that the environmental quality
standard will be maintained essentially as those who have sufficient
finances can simply buy their way out through taxes. Thus, carbon
taxes fail to steer the global economy towards climate targets as there
is no explicit limit on the increase in greenhouse gas emissions in the
atmosphere. Finally and more importantly, carbon taxes do not
initiate any action to reduce the existing carbon emission levels.

A rather realistic approach which encompasses the price

mechanism is that of ‘Cap and Trade’. It stems from the Coase
Theorem which contemplates that externalities (pollution) can be
effectively eliminated through market transactions if property rights
are assigned to them20. Emission trading systems best serve at
internalising environmental costs as it encourages positive behaviour
through market signals by establishing a pre-ordained environmental
standard and then issuing ‘permits’ representing the total amount of
pollution that can be tolerated21. Once the overall cap is set, these
allowances are then distributed among emitting parties through

19 Nordhause, supra note 5, at 30.

20 Ronald Coase, The Problem Of Social Cost, 3 Journal of law and economics 1-44 (1960).
21 See Street, supra note 17, at 262.
2018] Effectiveness of Carbon Markets: from Kyoto to Paris and Beyond 127

auctions or purchases22. Given a pre-determined quantitative limit,

the participants in the market have the flexibility to administer this
limit in their own fashion, through technologies that cost the least.
Since the ‘cap’ reflects an absolute limit on the level of emissions, it is
the most favoured method by environmentalists as the only system
that incorporates a level of certainty. The ‘trade’ aspect reduces the
overall cost of the program, allowing market forces to manage the
pollution rather than allowing government bureaucracy to control a
rigid standard. Furthermore, on a global platform, carbon trading
demonstrates moral values of environmental integrity, reduction of
wastage and liberty to adopt individually feasible methods of
pollution abatement. Thus, well-designed cap-and-trade systems have
proven to be environmentally effective and cost-efficient as they not
only ensure that the overall environmental standard is not threatened
but also warrant for economically optimal outcomes23.

INTERNATIONAL FRAMEWORK

Kyoto Protocol

The concern about climate change as a global phenomenon

was raised by representatives from all around the world for the first
time at the Earth Summit, held in 1992. This later culminated to
become the Kyoto Protocol which came about as an instrument to
reduce net emission levels such that the concentration of greenhouse
gases in the atmosphere could be stabilized and anthropogenic

22 Rachel Feinberg Harrison, Carbon Allowances: A New Way of Seeing an Invisible Asset, 62
S.M.U. L. Rev. 1915 (2009).
23 See Caney and Hepburn, supra note 12, at 2.
128 Environmental Law and Practice Review [Vol. 7

interference with the climate system could be prevented24. Market

based approaches, which were not considered before, were integrated
for the first time to the design of the protocol. The agreement cast a
heavier burden on developed nations to reduce emission levels since
the primary source for the rise in greenhouse gas emissions in the
atmosphere was the rapid pace of industrialization in these nations.
The instrument of flexible mechanisms which were central to the
accord intended to expedite the promotion of newer and greener
technologies that curtail pollution levels. The first among such
mechanisms was that of Joint Implementation (JI) wherein developed
countries with a relatively high cost of domestic emission reduction
could fund carbon projects in other developed countries. Secondly, the
instrument of Clean Development Mechanism (CDM) enabled
developed countries to meet their emission standards by
implementing environment sustainable strategies in developing
nations offsetting the pollution in the developed countries25. Lastly
and more environmentally tenable, is the international emission
trading system which facilitates the trading of carbon credits within
the carbon market to cover the shortfall in allowances.

The policy framework under the Kyoto Protocol is proof that

the operation of the carbon markets is more nuanced in practice than
the theoretical economic concept. However, the 1997 protocol was
seen as a poorly effective mechanism, as in reality, it failed to have

24 Kyoto Protocol to the United Nations Framework Convention on Climate Change, art.
2, 1998.
25 Kyoto Protocol to the United Nations Framework Convention on Climate Change,
art.12, 1998.
2018] Effectiveness of Carbon Markets: from Kyoto to Paris and Beyond 129

any legitimate reduction in carbon emission levels. Instead, it

promoted an overall net zero effect on the increase in the level
greenhouse gas emissions as it did not include a majority of the
countries, which are major stakeholders in contributing to climate
change. The incentives provided by the Protocol proved to be
perverse from the point of view of the developed nations that were
well financed to continue polluting. Furthermore, the top-down
approach under Kyoto Protocol rendered it a problematic approach.
This failure stemmed from the exclusion of major developing
countries to abide by established commitments, the lack of any
consensus to include new countries, and an agreement that was
limited to a single period too short to exhibit any fruitful results.

Paris Agreement

The groundbreaking climate policy through the Paris

Agreement endeavored to mitigate overall global emissions along
with long term objectives which are to be achieved by the year 2020.
The Treaty aims to strengthen the global response to the threat of
climate change in the context of sustainable development. While the
Kyoto Protocol only included industrialized countries under its
emission caps, the Paris agreement transcended into a broader agenda
and accounted for universal application, hence resolving the
contrasting dilemma between the developed and developing
countries as seen in the previous regime26. The intention of
implementing UNFCC’s principle of equity and common but differentiated

26 William R Moomaw & Patrick Verkooijen, The Future of the Paris Climate Agreement: Carbon
Pricing as a Pathway to Climate Sustainability, 41 Fletcher F. World Aff. 69 (2017).
130 Environmental Law and Practice Review [Vol. 7

responsibilities has been the driving force of this accord. This is

reflected through differentiation in terms of flexibility and
adaptability. It recognized that a binary split between developed and
developing countries isn’t the most credible way to resolve a problem
commonly faced by the world. Therefore, there was a construction of
various streamlined policy measures by accounting for diverse
national circumstances, vulnerabilities and capabilities in accentuating
mitigation goals at a domestic level. The agreement aims at pursuing
efforts to limit global temperature rise to 1.5 C by way of long term
deep de-carbonization methods and thereby mitigating climate
change through collaborative action and endorsing climate integrity27.
It lays down a combined approach of both market mechanisms and
non-market mechanisms through the Sustainable Development
Mechanism (SDM) which provides for the integration of CDM and
JI mechanisms as under the erstwhile Kyoto protocol to address
climate change by assuring intergenerational equity. The aspect of
accountability and the need for collective action has been addressed
by providing for the “Intended Nationally Determined
Contributions” (INDCs) by each nation under Article 4 of the
Agreement28. Intended Nationally Determined Contributions
(INDCs) are the voluntary plans that each country would undertake
at a domestic level to meet the predetermined global targets. The
paradigm shift from the Kyoto Protocol is witnessed by employing a

27 Carbon Market Watch submission to SBSTA on the Sustainable Development

Mechanism, (6th Oct., 2016).
https://carbonmarketwatch.org/publications/carbon-market-watch-submission-to-sbsta-on-the-
sustainable-development-mechanism/
28 Paris Agreement to the United Nations Convention on Climate Change, art. 4 (2015).
2018] Effectiveness of Carbon Markets: from Kyoto to Paris and Beyond 131

bottom-up approach wherein countries are encouraged to voluntarily

adopt transfer of mitigation outcomes to realize their respective
INDCs, as laid out under Article 6. The INDCs across borders
demonstrate varied, comprehensive steps taken by each nation
towards climate change in their respective countries, as per their
circumstances and capabilities, through both market and non-market
based mechanisms.29 The concept of Internationally Transferred
Mitigation Outcomes (ITMOs30) are to purport the flexible and
inclusive nature of this international accord as well as to facilitate the
exchange of carbon credits among nations. In essence, this approach
gives way for the creation of international markets by recognizing
that countries will voluntarily co-operate to mitigate climate change at
the least possible cost and with little or no impediment to their
economic growth. The bottom- up approach is easier to catalyze
owing to its highly flexible design giving way to a great scope of
individuality. The actions of member states in implementing their
NDCs is proof enough of the first steps of global cooperation.
However, the shortcoming lies in the heterogeneity of each market
which poses significant challenges to global cooperation and co-
ordination31. Over and above that, the advocacy of carbon trading

29 ANDREI MARCU, GOVERNANCE OF CARBON MARKETS UNDER ARTICLE

6 OF THE PARIS AGREEMENT, THE PARIS AGREEMENT AND BEYOND:
INTERNATIONAL CLIMATE CHANGE POLICY POST-2020, 53 (Harvard
Solutions on Climate Change 2016).
30 Paris Agreement to the United Nations Convention on Climate Change, art. 6.2 (2015).
31 WILLIAM A. PIZER, GOVERNMENT-TO-GOVERNMENT CARBON
TRADING, THE PARIS AGREEMENT AND BEYOND: INTERNATIONAL
CLIMATE CHANGE POLICY POST-2020, 63 (Harvard Solutions on Climate Change
2016).
132 Environmental Law and Practice Review [Vol. 7

inevitably gives rise to the fundamental problem of offsetting and

raises questions with regard to the pricing policies of carbon credits.

The Paris Agreement which contemplates a realist strategy has been

applauded for its effort in attempting to rectify the drawbacks of
previous regimes. Yet, it still attracts criticisms asthe assurance that
the mechanism provided thereunder being infallible is uncertain. This
uncertainty stems from the possibility of political discords in terms of
the contributions from different nations. Furthermore, since the
INDCs remain to be voluntary, it becomes difficult to assess how a
state would be answerable in the event that they fail to keep up to
their promises. Though the treaty specifies that the ultimate goal is
that of maintaining intergenerational equity through the mechanisms
provided, the manner of implementation continues to remain
unclear. The absence of explicit numerical targets for individual
countries displays no meaningful mechanism for ensuring
accountability. There is adequate ambiguity in the pledges made by
the nations to reduce emission levels.32 Furthermore, the agreement
aims to achieve environmental integrity and transparency while
allowing for emission trading which becomes difficult to account for.
For instance, while adhering to the compliance standards of
sustainable development goals, it fails to outline the manner and
method by which the NDCs will be uniformly adopted by each
country. The agreement thus aims to achieve several idealistic
standards which lie on the probability of success of implementation
while it failing to give an assurance to curbing the carbon emission

32 Paris Agreement to the United Nations Convention on Climate Change, art. 14 (2015).
2018] Effectiveness of Carbon Markets: from Kyoto to Paris and Beyond 133

levels and at the same time does not incentivize all nations to join in
the collective act of mitigating climate change.

Beyond Paris

The existing carbon markets that facilitate trade in carbon

credits are broadly based on the template provided under the Kyoto
Protocol. Evidence from the regulatory systems as seen in the
European Union’s ETS, United Kingdom’s ETS, the RGGI
mechanism in United States and the very recent ETS in China reflect
that well designed emission trading systems that are in practice the
most cost-effective.33 The structural frameworks in terms of
monitoring, verification and auditing vary across these systems but
have displayed positive results. As the existing markets mature and
new markets emerge, despite being in their nascent stages, there is a
strong push for convergence of existing carbon markets into a global
market.34 One reason for this is that despite the recent adoption of
the Paris climate agreement, countries taking climate change action
are still faced with a potential risk of carbon leakage.35 Autonomous
carbon markets, be it on the national or sub-national levels, have
limited choices of abatement. Such markets are susceptible to high
price volatility and greater transaction cost. Through linkages the cost
of pollution abatement would drastically diminish thereby improving
the functioning of national markets. Linking systems with different

33 Bruno Zeller, Systems of Carbon Trading, 25 Touro L. Rev. 909 (2009).

34 Jillian Button, Carbon: Commodity or Currency? The Case for an International Carbon Market
Based on the Currency Model, 32 Harv. Envtl. L. Rev. 571 (2008).
35 Melita Carevic, Carbon Leakage in the EU in the Light of the Paris Climate Agreement, 11
Croatian Y.B. Eur. L. & Pol’y 47 (2015).
134 Environmental Law and Practice Review [Vol. 7

designs also stands as a positive arrangement from the perspective of

economic efficiency. Another reason to promote linking of markets is
to do away with the idea offsetting. An overview of the prevailing
emission trading systems portrays that ‘offsetting’ of pollution
becomes counter-intuitive in reducing in global emission levels. It is
undisputed that offsetting permits a country to pollute beyond
established limits by purchasing additional permits because the
environmental gain does take place, only in another country36. But
since countries’ trading might not necessarily have a degree of
geographical nexus, this might lead to the possibility of carbon
hotspots where emission levels are extremely high in one nation and
low in another. Thus, the best instrument through which the
heterogeneity in markets can be overcome and the behaviour of
major emitters can be regulated is through a uniform pricing system.

The Paris Agreement and regimes preceding it, contemplated

the resort to carbon market mechanisms and technologies never
before developed. This being said, the fact that markets are driven by
economic logic and not socio-environmental concerns requires
attention because incidents from existing systems have shown that
market failures are inevitable. Such failures can only be resolved
through non-market approaches. If such non-market approaches are
made mandatory, then the failure of carbon markets would be
rectified by the benefits derived from non-market approaches. For
instance, in the situation where the carbon market results in
offsetting pollution by creating carbon hotspots elsewhere, the

36 See Street, supra note 17, at 262.

2018] Effectiveness of Carbon Markets: from Kyoto to Paris and Beyond 135

regulatory hands of non-market measures plays a vital role.

Therefore, a rather viable solution which may be considered as a
complementary factor in making carbon markets more effective and
feasible is to employ regulatory, non- market approaches.

PRICING POLICIES TO EFFECTUATE CARBON TRADING

It is an established fact that heterogeneity in markets is a

pervasive and unavoidable factor. Taking due regard of this inherent
problem, the best method of narrowing down heterogenous
standards is through pricing policies. The ‘Carbon Price’ has emerged
to be one of the key concepts of the economics of climate change37.
It provides a natural way to understand the stringency of mitigation
programmes across jurisdictions38. A price is attached to every
emission of carbon dioxide that is equivalent to the social cost of
such emission. This measures the present value of additional social
and economic damage that is preempted to occur in the future.
Attaching such a positive price to a public good prevents free riding.
However, the need for uniformity or harmonized prices arises
because the prices set across different markets may be too low to
achieve the overall target or too high to incentivize participation. On
the contrary, administering a blanket carbon price would also render
the free market mechanism to be redundant. Hence, the best possible
method of ensuring this price uniformity is by creating benchmarks
through price ceilings and price floors.

37 See Nordhause, supra note 5, at 19.

38 ROBERT N. STAVINS & ROBERT C. STOWE, MARKET MECHANISMS AND
THE PARIS AGREEMENT, 31 (Harvard Solutions on Climate Change 2017).
136 Environmental Law and Practice Review [Vol. 7

A price floor would reflect the minimum carbon price, below which
no trade shall be permitted. Considering the fact that the aim at
present – as laid down by the Paris Agreement – is to maintain the
global temperature level to 2 degree Celsius, the minimum price shall
be determined accordingly. The carbon price shall be based on two
criteria: first, it shall reflect the total social cost of every incremental
ton of carbon emission and secondly, the global cost-effective
attainment of the 2 degree Celsius limit. Such a price floor would
prevent countries from manipulating the market devices of demand
and supply to set the carbon price so low that the effect of the price
on reducing pollution would be negligible or even futile. The
implementation of the price floor will be vested with a central
authority – in case of the Paris Agreement, the Central Monitoring
Authority. When prices are driven below the minimum limit, the
central authority will buy back or retire the allowances, thus bringing
a stability in price. Similarly, setting a ‘price ceiling’ sets the maximum
price at which allowances will be sold39. This acts as a safety valve in
limiting the potential for prices to escalate in times of intense power
need or growth. Such a ceiling would come into play when the prices
rise beyond a particular threshold making it necessary for a central
authority to issue incremental allowances. This gives leeway in
exceptional circumstances when the cap set by a particular market is a
‘hard cap’40. Thus, by setting a minimum and maximum threshold,
the flexibility of market mechanisms guarantees that economic
development through healthy trade is not hampered. At the same

39 See Feinberg, supra note 22, at 64.

40 See Stavins & Stowe, supra note 39, at 28.
2018] Effectiveness of Carbon Markets: from Kyoto to Paris and Beyond 137

time, it ensures that no particular country manipulates the flexibility

of these market tools to distort a collective goal of environmental
sustainability.

Another suggestion that has heightened the discourse on the

efficiency of ‘cap and trade’ is a hybrid approach between emission
trading and carbon taxation. The hybrid approach contemplates an
amalgamation of the strengths of carbon taxation and carbon trading.
It prescribes for supplementing the quantitative approach under
trading schemes with a non-linear tax that is a function of
environmental and economic variables.41 In effect, it will compel
countries operating under an unfair trade advantage by not
undertaking mitigation plans and avoiding cost of pollution to reduce
their emission levels. For instance, in a global political scenario, the
United States of America– who have backed out of the Paris
Agreement – can be compelled to indirectly turn to greener sources
by subjecting its imports to tariffs which is inclusive of carbon-
pollution tax. This policy stands effective by reducing price volatility
and mitigating incentives for corruption. However, the scope of its
implementation has not been reflected in any international
convention till date and remains only a technique, that stands good in
practice. Thus, an overview of these proposals throws light on the
fact that a controlled regulatory framework is essential in delivering
the effectiveness of market based systems to tackle the global
dilemma of climate change mitigation.

41 See Stavins & Stowe, supra note 39, at 135.

138 Environmental Law and Practice Review [Vol. 7

CONCLUSION

Human induced climate change is a negative externality which

cannot be resolved through individual action alone. Climate, as a
public good with trans-boundary characteristics, efficient outcomes
with respect to its regulation can only be achieved through regimes
which facilitate collective action. The climate change regime in the
present scenario is functionally sound in terms of defining
participants and assigning roles42. Additionally, the framework
established under the Paris Agreement has unquestionably generated
momentum to advance the issue by engaging an including even
reluctant parties in negotiations. Nevertheless, it is not without
controversy and significant weaknesses. The Paris Agreement
attempted to fill the lacunae in the Kyoto Protocol in terms of linking
systems. Under the Kyoto Protocol’s template that provided for a
separation of international commitments and domestic actions,
parties were not obliged to link their reduction goals as the reduction
targets by themselves were different. But the tryst for global action
has motivated the world community to formulate a more transparent,
efficient and cost-effective skeleton, the implementation of which
still remains debatable.

On one hand, the institutional apparatus for addressing issues

of pollution between nations is meagre43. International law being soft
law lacks compelling force mandating the complete participation of

42 DIETER HELM AND CAMERON HEPBURN. THE ECONOMICS AND

POLICTICS OF CLIMATE CHANGE, 434 (Oxford University press 2011).
43 id. at 278.
2018] Effectiveness of Carbon Markets: from Kyoto to Paris and Beyond 139

each and every nation. Countries such as the United States of

America opt out of positive actions simply because climate change is
believed to be a hoax and to subject domestic economies to
international environmental standards would render them ‘rule takers’
a cost they do not desire. In the midst of such reluctance, where the
hands of law are tied, it only becomes imperative to employ the free
hand of economic markets which will invariably drive such nations to
undertake climate change mitigation strategies. While on the other
hand, the drastic common goals set out in the 2015 accord take into
account the individual capacities of each country, despite the risk of
uncertainty of the voluntary mitigation actions that are undertaken.
The erstwhile regimes applied the polluter pay principle that
obligated the nations with highest emission levels to engage in
affirmative action. A similar approach would be required to address
the problem of accountability.

Carbon markets and emission trading systems in particular

have proven to be environmentally the most cost-effective, yet their
success rate has been impaired as a consequence of high carbon price
volatility. The best way to overcome this minor glitch in the system is
by employing standardisation in price through accurately calculated
price ceilings and floor prices along with harmonized carbon taxes.
The alternative model suggested in this paper is that of a hybrid
approach, which is inclusive of the existing carbon taxes and the cap-
and-trade mechanisms. In effect, the emerging outcome will enable
unperturbed trade without jeopardizing the environment. A pre-
determined ambit of price for all nations promises long term
140 Environmental Law and Practice Review [Vol. 7

certainty to actors allowing them to invest and adjust their behaviour

without the fear of being disadvantaged. Furthermore the gap
between emission levels of various nations will diminish thereby
doing away with the possibility of creating pollution hotspots through
offsets which is a significant drawback in existing trading systems.

Finally, going on the assumption that climate change does in

fact exist and is indeed a serious threat, the opinions of critics who
view that securing a mere 2 degree Celsius temperature limit if futile,
gives way for deliberations. The goal of mitigating climate change will
only manifest if the focus of actions is not the reduction in the
emission of greenhouse gases but reduction in the concentration of
greenhouse gases in the atmosphere. Thus, in addition to the goals
set out in the Paris Agreement, what nations can gradually strive to
achieve on national levels are positive measures that improve the
quality of air. The Paris Agreement alone is not sufficient to tackle
climate change which poses as a matter of international urgency.
Affirmative actions like improving afforestation projects through
climate sequestration projects and directing focus to R&D on
technology that not only reduce carbon emissions but improve
quality control. Additional action at both the domestic and
international level is imperative to ensure that the objectives of
achieving long term decarbonisation may be met with.

Thus, it can be concluded that carbon markets have proven

to be a guiding mechanism to successfully address environmental
problems but can be at their most efficient through the regulation
of said markets with carbon prices at the focal point.
Vol. 7 ENVIRONMENTAL LAW & PRACTICE REVIEW 2020

NALSAR University of Law

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