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 Environmental Law in India
Third Edition

P. Leelakrishnan

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—_@ LexisNexiss——
Butterworths Wadhwa
Environmental Law in India
Environmental Law in India

Third Edition

P Leelakrishnan
MA (Aligarh), LLM (Kerala) PhD (London)
Formerly Professor and Dean
Faculty ofLaw, Cochin University ofScience and Technology

_@ LexisNexis-——
Butterworths Wadhwa agpur
For Editorial Questions concerning this publication, please contact:
Tel: +91 11 43559999

For Customer Assistance, please contact:

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© Reed Elsevier India Pvt Ltd, 2008

Publisher: LexisNexis Butterworths Wadhwa Nagpur (a division of Reed Elsevier India

Pvt Ltd), C 33 Inner Circle, Connaught Place, New Delhi 110 001

All rights reserved. No part of this publication may be reproduced or transmitted in any
form or by any means, including photocopying and recording, without the written permission
of the copyright holder, application for which should be addressed to the publisher. Such
written permission must also be obtained before any part of this publication is stored in a
retrieval system of any nature.

P Leelakrishnan, Environmental Law in India, third edition, 2008.

ISBN: 978-81-8038-177-5

Managing Director
Robert Rigby-Hall

Publishing Director
Chaitanya Kalbag

Managing Editor
Sheeba Bhatnagar

Editor
George Theimi

Typeset by Abhi Graphics, A-125, Dilshad Colony, Delhi 110095.

Printed by Rakmo Press, C-59, Okhla Industrial Area, Phase-I, New Delhi-110020.
The publisher has taken all care and effort to ensure that the legislative provisions reproduced
here are accurate and up to date. However, the publisher takes no responsibility for any
inaccuracy or omission contained herein or for advice, action or inaction based hereupon.
Reference must be made to the Official Gazette issued by the Government of India for the
authoritative text of any Act, Rule, Regulation, Notification or Order.
 Preface

Environment law in India is growing year by year. New dimensions of

legal control are added and new challenges are opened up before courts.
Since the publication of the second edition of the book in 2005, there have
been significant changes in the law and jurisprudence relating to
environment in India.
Formulation of management strategies, in lieu of policing technique, is
evident in some of the legislative and quasi-legislative measures in the realm
of environmental protection. Protection of the coast is such an example.
The CRZ Notification of 1992 is giving way to a new system of coastal
management with the inclusion of part of the maritime sea and region-
specific control on land area instead of uniform regulation in pre determined
zones. The Environment Impact Assessment Notification 2006 has
revamped the 1994 notification. It has also empowered the States to make
impact assessment. For generations, the forest dwellers were deprived of
title to lands in which they lived. The forest rights Act 2006 aims to remove
this historical injustice. However, the provision for ‘critical wildlife habitat’
has shown the way for a battle of wits between conservationists and
protectionists.
The right to a healthy environment under Article 21 of the Constitution
of India, the mandate on the state and the citizen to protect and improve
the environment and the emphasis on the concept of sustainable
l
development continue to have their sway in judicial review of environmenta
a user
decision-making. The proposition to levy net present value from
forest
agency, public or private, before permitting use of forest for non
ly
purpose is a signpost. Application of the proposal in other eco-unfriend
courts on
acts is a matter for future debate. The importance laid by the
d position
sustainable use of natural resources is remarkable. The age-ol
an emphasis
against total prohibition of cow slaughter is now overruled with
express their
on the duty to have compassion for living creatures. Courts
creatures in our
serious concern over the continuing cruelty to other living
 Foreword

environment. There are occasions when rules against cruelty to animals are
relaxed. Recently, courts have ventured into new terrains and extended
judicial review to a wider ambit of pollution control.
In sum, this edition of the book also deals with the changes the three
years have brought to the Indian environment regime.
There have been many who supported me while I revised this book.
New decisions of courts were collected and comments on cases and problems
were summarized. Mr. KS Vidyuth and Mrs Anila Vidyuth, both research
scholars, helped me in this endeavor. My former colleagues and students
in the Cochin University as well as the present ones in the National
University of Advanced Legal Studies, Kochi, were of memorable help. Mr
KP Sibiraj and Mrs Anita Pankajakshan did the data entry. Last but not
the least, the editorial department of LexisNexis Butterworths, especially,
Ms Sheeba Bhatnagar, Managing Editor, and George Theimi, Editor, did a
wonderful job with particular care to see the work completed on time. I
would like to acknowledge and thank the services rendered by all these
people.

Kochi-682021 PROFESSOR P LEELAKRISHNAN

1 July 2008

vi
 Preface to the Second Edition

This book was first published in the year 1999. Since then, the ethos of
judicial approach to environment have changed in consonance with the
mounting national awareness, and with the global perspectives of
environment and development. The changes have not gone unnoticed by
the eco-watchers and critics in the country. This revised edition highlights
this phenomenon, and examines the growing law and environmental
jurisprudence in the country.
The right to a healthy environment is now firmly established in
constitutional interpretations. It is widely used as a veritable foundation
for building up the jurisprudence. The duties of both the state and citizens
to protect and improve the environment have become the supreme
constitutional mandate. All agencies, public or private, as well as individuals,
are bound to follow the mandate. It is interesting to note the formulation
of collective obligations of entities on the basis of fundamental duty of the
citizens to protect and improve the environment. This development has
empowered the recognized groups of citizens to seek remedies without the
hurdle of locus standi.
More provisions in the Constitution came to be relied and explained
during the period for reconciling the conflicting interests. The rights to
the freedom of speech and expression and the freedom of religion are
guaranteed. However, augmentation of these rights does not permit making
g was
an aural aggression towards the unwilling listeners. Passive smokin
held as an infringement of the right to life of non-smokers. Restrictions
carrying
have also been placed on the freedom of trade and commerce, for
legislative
out the mandate to protect and improve the environment. The
ed.
conflicts between the Centre and the states in this field were also reconcil
now, as
The environment-development dilemma is no longer a problem
pt. However,
sustainable development has grown into a pragmatic conce
praised as
the development projects like Narmada and Tehri have been
s and social
well as criticised. The general public, environmental expert
 Preface to the Second Edition

activists were not happy with the deferential model of judicial review of
the projects, while development proponents rejoiced. The judicial review
of development projects leave open many problems for the future. How far
the concept of sustainable development will achieve the rehabilitation of
oustees, remains to be seen. Perhaps the finest hour in the history of judicial
review of environmental decision-making came about when in the Nayudu’s
case, the apex court admitted its lack of expertise, and referred the questions
to experts and expert agencies to study the issues. Such judicial crises have
inspired the Law Commission to formulate significant parameters for
environment courts. In addition to issue of pollution, courts began to look
at eco-problems in a wide canvas and strived for eco-security imbibing the
various dimensions and meanings of environment. Standards of forest
protection strategies of wildlife preservation, and methods of saving
ecologically fragile systems were given more significance and emphasis.
The second edition of this book incorporates the aforesaid development
reflected in a wide range of decisions.
In editing the book, I was assisted by several persons in the library of the
School of Legal Studies, Cochin University of Science and Technology, as
well as the library of Kerala High Court. I also had fruitful discussions
with some of my former colleagues in the Cochin University. Mr Sibiraj
helped me in data entry. Last but not the least, LexisNexis has co-operated
with me in a magnificent manner. Let me express my thanks to the editorial
personnel Ms Nisha Bopanna and Ms Richa Kachhwaha of LexisNexis.

6 June 2005 PROFESSOR P LEELAKRISHNAN

 Preface to the First Edition

International efforts for the protection and preservation of the global

environment started with the convening of the Stockholm Conference on
Human Environment in 1972. The journey from the Stockholm Conference
to the Rio Summit led to the recognition that all human beings are entitled
to a healthy and productive life in harmony with nature. It was this
recognition that was responsible for the enactment of various environmental
laws in India, which are designed not only to preserve and protect
environment, but also to prevent environmental pollution. In the
enforcement of these laws, the Indian judiciary has played a seminal role
and used public interest litigation as a convenient tool to create a new
environmental jurisprudence in the country.
The eighties and the nineties marked these significant changes. No doubt,
a country like India was confronted with a host of problems when it took
off to newer heights of industrial development. The legal regime had to
adjust itself to various kinds of demands of a socio-economic nature without
damaging the existing resources. Inevitably, the growth of environmental
law had to strike a balance between development and sustainable
development. This is a phenomenon typical of a ‘rule of law’ society, where
law becomes a dynamic instrument of change for a better environment.
The book talks of the environmental regime in India.
Chapter I is introductory. It takes a look at the law and practices in
ancient India, and explores the origin of environmental law and its relation
with other laws and also with other disciplines. Chapter II refers to one of
the big challenges that the nation has to face in the process of development,
namely, conservation of forests and protection of wildlife. The courts
energised and developed the slumbering law of public nuisance into a
powerful agency for environmental protection. Chapter III takes a look at
this aspect.
Protection of coastal zones is another challenge for environmental law in
India. Chapter IV enumerates the legal controls on coastal zone management
 Preface to the FirstEdition

with a comparative glance at a few other coastal states like the UK, USA,
Sri Lanka etc. Chapter V examines the apparatus of control on management
of land and water resources, and the measures planned for conservation of
biological diversity.
Chapter VI discusses the legislation for control of pollution of water and
air. The Environment (Protection) Act 1986 has added a new thrust to
environmental protection in India, with a plethora of delegated legislation
and delegated powers. Chapter VII examines them in detail.
Chapters VIII, IX and X deal with the development of environmental
jurisprudence. The right to a clean and healthy environment is a significant
contribution by the courts to the evolving environmental law in India.
This is traced in Chapter VIII, while the role of the judiciary in cushioning
the impact of mass disasters like that of Bhopal, is discussed in Chapter IX.
Most decisions relating to the environment are the outcome of Public Interest
Litigations (PIL). The parameters of PIL are explored in Chapter X.
A meaningful impact assessment is necessary for a viable environmental
regime with balanced and sustainable growth of industries. The growing
trend in this area is highlighted in Chapter XI. Public participation is
the balance-wheel on which a democratic process moves. Chapter XII
deals with the extent of public participation needed in environmental
decision-making.
In the last two decades, I have had the privilege of participating in a
number of environment-related seminars, workshops and research
programmes, and have also had the benefit of interacting with other
legal scholars, administrators, scientists and social activists. This
interaction had its influence on my approach to environmental law.
Prof NS Chandrasekharan, my colleague and Professor of Jurisprudence in
Cochin University, scanned every page of the book. His critical comments
and suggestions helped the process of improving the draft before it went to
the publishers. The research scholars and students in the University,
especially those of environmental law, assisted me not only in collecting
material, but also in reading the final proofs and in preparing the
bibliography. Mr S Navaneethan, familiar with my working style, bore
with me and did a wonderful job of data entry. Last but not the least,
I express my appreciation and thanks to the energetic editorial team of
Butterworths India for bringing out this publication in an excellent manner.

11 February 1999 PROFESSOR P LEELAKRISHNAN

 Contents

De hE Se hci ie oeasc isco eee ae v

Prejace to We Sctond Edition sccunimccesaee ett vit
UMEECE POLIO LUIS? EGIION 50. Svcterccctsciiee Orage ene ane Bech eM ts ix
CITT Siar de Below cece covactes GoceatasSoceres, SAARI Als IO. BI OES I cscs XL

TE Gy Maas A te nse. eee renee Mea RaahsetS rage mna Aaa seeSh tts Seewaeeetns xxi
CHAPTER 1
CA er emmnmne vorron ttn Teen terse are 1

RELATION, WILH ©)THER DISCIPLINES. ....c5acceacsssesaseotietata

deieltetecccwan 3
SourcES OF ENVIRONMENTAL LAWer dand cleo
er. edisl. cece 3
Becistons.of. Gourt:...22:5 aera, et), CIEE osecces 3
10.00. 4
Jutistic,Personality dand. LocusyStan dita, 20. 202 RTRRRARES.
Pablicpinteress, Cases 260k a SL eee..eed! . 6
SAG GES cccse cates, POMC IS) BT ee ere. FOI. nasened 7
W
RELATIONS HitO THER ACAWSEH. cok Rh.cesctnvnld
e of. .ccss 7
LMDEALS AMCIENT diRADITIONS Aiea oss vaS eS doceeseccceses 10
PROVISIONS IN THE CONSTITUTION OF INDIA .........csccccseeceeseceeees if

CHAPTER 2
Public Nuisance and Civil Remedies .............ccccccccecccececeeceeeeeeeeeees 15
SRTista SlsGIS
VA T)IFEERENT-PERSPRCTIVE Sxcxcoossocchelcleso o<seeessess
cnte 15
NUISANCE AND THE CODE OF CRIMINAL PROCEDURE 1973......... 18
PUBLIGINUISANCE: FARLIER: DAYS counse LR. 1 SLL
As Rikpeent 18
THE PEILOSOPHVORGINUISANCEvisesa. 320 EUL.203. tetera.sae 20
DOE ACTIVISM Ew ITE LAL, AS ae
The. Pathan Cast ocecceon ZAIRE GARRT, beSTH AMAIIIRTRTE
eerenson nson0050 23
Response of High Courts .....sessessecsecsessessssessesseeseesseneeseeneeneeneny 25
Krishna Gopal: A Critique .......ssessessesesseessseeseeneententennesseneenenes 26
 Contents

Contoursof Public Nuisaticet. 254500). Ok. Btn aeteaeons cease 27

CONFLICTING: LAWS*AND*JURISDICTION{5 2). N02. 0. eas 30
Differerit' Views ’s.325.. 25. D2 E Pea ae. eee 30
No Implied Powers When The Laws Occupy
Different: Fields Ae Sierh 222.
a 32
The Apex Court Resolves The Controversy ........sssssscseseeeseeeeees SZ
Civit REMEDIES FOR ENVIRONMENTAL HAZARDS .......sscccseeseeeeeeesees 34

CHAPTER 3
Protection of Forest Habitat ..............scccccccssssssssssssscsscesccccesssssssees 39
FOREST AW oINFINDIA sa. Sti f0 Hitc IRS eB eo ee Rectan 40
Reserved- Forests: 220 2202: 2k ate ad tear ne eee eee eee 40
Forest As Source of Reventie), 215.400, JiR Senn Senne none 42
Forest Conservation: A Leap Forward ..........:sscssssssssssssssseseeees 43
NEW PERSPECTIVES TOWARDS FOREST LAWS .......ssccccsssscceseseeeeeeseees 44
SUSTAINABLE USE OF ForesTs: THE RIGHTS OF FOREST
TWIEECERS 2-550. o tees csscnaean coononesteacenancendueccetken
tere.tae 45
Tribal Rights to Minor Forests and Livelihood .............::.css0000 45
Atibal Lands ‘ccccssscsarsantnta onesStace A aT OA ae Bie ee 47
Tribal. People:. Friends. or Fot8s...Je 5 Aci uote een Bestest 48
Tribals: Ousted_in, Development .........0:0vitlis.0-stl. eteneetesdsnasa++s00 49
Empowerment of ‘TribalePeoplews.!. tian .1giscasatateen-a.oedethaete..s.0. 50
FOREST CONSERVATION: ROLE OF CENTRAL GOVERNMENT .........0+5 52
Prior Approval by the Central Government ..........:ccccceseeeeeees ae
The Godavarman Cases: The High-water Mark In Forest
PEOCECCIOMN dsncacasdgonsoansannandnasseck
Renee tena eV ate ee 56
The Influence of Godavarman Cases .........s:sscssssscsssssscsescessoesees 58
Net: Present. Values (NBV) caccossatastoncinsshncmnc
Rewriters sBatgedeamoud ces 59
Special Purpose, Vehicles ...)sm enchant
eae cae 61
Sawimillsi... ssssessSacvescscdeases
tegen ecueeeeeeee tasee 62
‘Godavarman’ Committees: A Dilemma or an
Escape: ROUtC? sacnisbsvcadesedeonessesgqutel
creases tatttebysshvtdeitcs cider 64
ECO-TOURISM AND FOREST PROTECTION ......ssssssssccceesessereeeeseeeees 64
WILDLIFE. Law: THE-BACKGROUND iA\. HAE 67
Amendments .to. WLPA ....sce. SRR a Red See 68
WILDLIFE: JUDICIAL, PERSPECTIVES. canaoccchesnecstascadtvacastaaecleuetct
anit 70
Immunisation..Progtam nes cnecesectucnsasnne92e-t,
APPAR Reese 74
In-situ. Protection ..c.c.ciscoscsssnscan
coolest MOREL, atk ROTO. c.cn0 a
Protection Against Trading In Wildlife ....... cts ceeseeeeeees 7?
xil
 Contents

Possession: Of ‘Trophies: ........:etcsc

seatsdointersiideea
siessccVR s Ti
Plugging The loophole: Imported Ivory ......s.sssssssssessseeseeeseessee 78
Mimppins OF Bards. 2. scccc.cutucre sete ae we eee eRe 80
JNDMENISTRATIVE ATTEMPTS wisnsosicSURO
ovnwv AINAG AL ee 80
savce
PROTECTION OF ForEST HABITAT: A CRITIQUE ...ccscscseccescescesceeeees 81

CHAPTER4
Coastal Zone Management siccc:.cissescasspsanated stavscsdiqanesenesen; te orsests 85
MOobDELs OF CoasTAL ZONE MANAGEMENT ......cesscesseessceesscesseessees 86
Uinated States sok A RI
MeriCa scecvniccondessucdvervasdinric cte 86
ooo:
United Kingdon. %..bas:naisesed cxiehelrigah.accaal )..s..<.- 88
REN oo edt aks1s cause ee capmae eh bes ce es 89
BRI pi odacaain nts ose eachuicecuesssacelpemiaar annett
ateaadiece e 90
PhaysicalcLimits Of Zones «...c.csscon:vocuseesvepsoccverense-suigem
ence esa 90
BrOIDITONS aNd EXCEPUONS 5 <....0+<.5s-aretagnsaaes-earangsccornaiene
sarees at
Plany esting <OL GEOUNGWALEE cand:coxcnc: consaantacincasntecazsatscehrtasectratenee 92
CS rsttCHIONy ACUIVICIES oir ctitecs ae cap eeeb-sedce esses eestor kame ven ee caecne 93
Regulation of Permissible Activities: The
Environmental C learance.....vv. teeter
secserovdeaAnctesetteatte
seces. 95
Coastal Zone Management Plans (CZMPS3) ........:csssesseseeeeeeees 94
CUASSIICATION OF ZONES oo coos socsec hosema deeewergieett
fheescyac gepeeos 95
Guidelines for Beach Resorts and Hotels .............:ccessceesseeeseees oF,
JUDICIARY ON COASTAL ZONE MANAGEMENT ......sssesssesseseesseseeeees 98
Resorts and Hotels on the Beach ............ssscccssescscssessovsessecsoseoes 98
Aquaculture in Coastal Zones ........sssessesessessssesessesesnsseeseeneens 100
Development Projects in CRZ .......sesssssessesesssessesssseeeeseseesenens 103
Multi-storied Buildings on the Coast .......scseseseeceseesesenseees 104
FROM REGULATION TO SUSTAINABLE MANAGEMENT .......sseceeeeeees 105
Integrated Management ........s.ssssssssssssssseeseeeseesseneenenneneeneencens 106
Overcoming Coastal Woes ......sssssesecsssesessseseseetesseenseneneeneeees 106
The Changing Role of Authorities .........:s:-ssssssseeseeertenenees 107
Coastal Zoties NEW PAraiicters..,.scc.0s<.c2-<012 <oncetusaseacosencentt epeeo's 107
Funding .....cssssessessesseeseeseessccseeseesesnsssacsnecsscsscenecnecncencenecancencess 108
CRZ to CMZ: The Proposed Classification «1.1... 108
CRZ TO CMZ: DRAFT NOTIFICATIONS .........ccccessececessnreeesseseeeeoees 110
SSUCIT nei ncaa eoerccccevnossvotockonseusssntsonseaseaerecvecoasest FEI
Categorization of ZOmnes.......ss.sssessescseceseesnternietnnteseeeseneenesen 111
CENTRE-STATE COOPERATION NECESSARY FOR CZM ......seseeeeete0e+ 113

xiii
 Contents

CHAPTER 5
Resource Mama cement vent stesseurgs-sace--venessirerseperaaren
ceseseceaaear teas

RIGHT; [O:_ DEVELOPMENT: iki 2S VE ee

LAND: RESOURCES. SiuieTis. 0285. cA EAE Daa. Shed Pee I Te
Mining and Natural Resources: Ecological Balance ..............
Ordinary Barth: Resources Protection otc -ncyssopor
atten eeeeeert
Change in Land Use: Conversion of Open Space 0.0...
Land Use Change and Agonies in Residential Colonies ........
SCALING nccencnaenocrsnctoncaranonncennencinn
REESE. SME GIs SIEMENS. on5
Urban Areas: Industry Location and Relocation ...........:.:000
Brick<Kilnsand-Stone-Crushersescer-crer ence ers ecw se.
ECOL OCICATEV SENSITIVE REARS 00s vacitretentc
teetree eeeenetnen eeee

Wise Use of Wetlands: An Obligation ...........:ssscssctseeneeseeees

Conversion-of Wetlands G458 6 AS ten feencacteeecenc Seecusen
Exploitation ‘of Wetlands nis. Sota ta eee elena:
WATER: RESOURCES, .,2ncsseseeannnncSKp@BbahGdes
183CMOFMSAIRELA cnasasnescaus
Inter-state Use of Water: War or Co-operation? .........ccceceeee 152
Interclinking-of Rivers ee 136
NVaMle Milian WAGET DOCHES caxcccancsesscauen
cnet nestereeereece ae
Water LOCgINg IeC AUeS ccs.:c22.. 50.05. 1ee tateetna eat oe eereenee ot
KSROUNDWALER ccscapssanctens of Pisact Radin ene eee eee

Depletion, of ,Groundwateinds Lin-berih tai core Ble e.<..0:

Impact of Aquaculture on Groundwater .........:ccsssssseseeeeeeseees
Rights of Superjacent Ownership Loses its Validity ..............
Need: for: Legislation’ }:d.:.ccen R200. ROR BIE?2:
COMPASSION For ANIMALS: PROTECTION OF OTHER LIVING

Restrictions on. Atpinal Fic... aie ee Ooi eee

Nuisance of Wandering Amimals scas.crstenesssenesi%-aceret hepato
PROTECTION OF ANCIENT MONUMENTS .......ccscsecsscsssecceceeceeceeees
BIOLOGIGAL, DIVERSTTNZL BA:-.:. 5c... eee he eee
Convention on Bio-diversity PCO e Coo e ee rereeeresseseserseeeeeereseessesesesees

The Indian Legishapioen tn scitnnseinsicteersdeneonmens

Sareeaeiseeenses
sanen
 Contents

CHAPTER 6
Control‘of Pollution ’::5:::5
Pe 5::;
ee ::02
ee 2; 159
POU RUATORVORIVIATER. 5). SOEIG sso dae cet irate 8 Sea sip 152
DEFINITION UNDER THE WATER ACT .u..ccsececsccssescesceccccssscesseseees 160
CENTRAL AND STATE POLLUTION CONTROL BOARDS .....sescseseeesees 162
Midler eiitral “DOard terre ee eee Le een ame beer 162
PEARCMESOAL reteset er aes ert Serre oe eR em 162
The Power to Issue Directions ...ccsccscssssssssssssssssssessessecseesecseee 162
Geanditions of -Gonsent: v.ccciis S8s. SO BEE as 163
Structure- of -Board-wcccs ees,srsinn
SS...e 164
AGENCY OF CONTROL: A CRITIQUE OF THE PROVISIONS ......000+++ 165
Powertssand Functions sesccconestcises ence eonae eee 165
SEPUMCCUNG eee cy correcvssecogedsdennec a AkPROD ee
ist ROenacncaosts vcsues 165
PEOCOGULE weececsc ec eas Ra ls ROR es BO, TIES. vise 166
LOSS -AMENDMENT Seresss ivecsSeiSa
iaveves seo hoeee
ssescs ott eneses 168
WATER ACT AND GROUNDWATER POLLUTION .....ssssccccesesssseeeeeees 169
ARASOELUTION tesste rsear toc tte eect
rreeee eestrr Nari ere ees 170
POLLUTION CONTROL: JUDICIAL PERSPECTIVES ........ssecccceseseseeeeees 171
Strcmethening the @iands Of AGENCIES... daspensaoac-n-ncirecsnensansys- 7)
Reethaeey-of- Boats: ccrsr Tepettocuatnati, sects. recesses
s 13
Dleeligence of, Other Auth origics oc sg-b-..resiilpmataeeoeFiaeeesg 174
Monitoring Observance of Conditions ..........ccsseseeseseeeesees 175
Pollution Control Board: Powers and Responsibilities .......... LT.
ENE DOSE AS (0. DE ADOVE-DOALG «i.<.nccccccsipesenser+seingeasestnassozenes 179)
Collection and Analysis of Samples: Safeguards ...........0.:00+ LZ)
eoeaacasnete 181
Oats POrsette WS TIUUCS cease clecccterneancasncneetugeas
Direction to Close an Industry, not a Blanket Power ............ 181
PyrEeretAS OL INSTITUTIONAL CONTROL -,00,. 5.522002 eseperpeeposagodsees 182
BAR PREIS Ce CONE ROLccce tse cussves tao cnargsoctheen Sienaaesaense 184
Pollution Offence: Corporate Criminal Liability .................. 184
re eccccgatogetcanors
Sharing of Cost in Pollution ROOIAEEOL eenaeti en 184
Exemption of a Particular Industry from Prohibition............. 186
POLLUTION FROM PLASTICS AND POLYTHENE ..........cesesesseeeeeeseees 186
MOP CIN soa esticn cance aannacnees sncooaetcestasesqmameoaunmagnascr: 188
Loudspeakers .......sssscsessesseseesessertesessecsseseeseensenseneceeenecneeneenncans 188
BR eae an redo titece ese ca canoes dsc tnsaseanccaeaeasse as 189
wenn?
Damages for Injury by Fire Crackers ......c.sssssecesereeeeeeeens 19
Te he Pras Biche siegtpanacnareaeceressseasceerensenanarspeosonnes 191
 Contents

POLLUTION: CUMULATIVE EFFECTS << .--0ssseseesesseneraceessss-es-c

Meee 192
AIR POLLUTION, CONTROL AREAS <.02-...00s00sss<s-sauauBioes
Shee teeSecaee 193
AIR POLLUTION AND CLEANER TECHNOLOGY ........:ssssseseeeeeeseeeees 194
BAR OF TORISDICTION eee ete rete eetececeeten eecre senceeee menmeeteS 194

CHAPTER 7
Envir onmien tet ee ETsorte oe nohnntenanaeinn 197
DELEGATED LEGISLATION: THE METHODOLOGY OF EPA ............. 201
‘Fhe"Environmene Rules 4 7i..\.)s:--aeaAgcecs
Foeee-peecoe eee eee 202
Envitonment Audit :s:sssssseeccsccrsessencst
een wep 204
Hazardous Substances and Industries ...........::sssssssseessssesseeeees 205
ECOMARK 6, Strassen 4 Some. 4 rnthiete amet aaced tases eras oc 207
GontroleGtyIN Oise irs Feet Fion cnn sacs cotecesadawscs dandus tenets ee sees 208
Disposal. of Bio-medical Waste .....::::.0-:--<:+-ase:-veauavenentltaoss... 209
The: Ozone’ Rushes: ..0.0:..2s00c0ssuseteecossssacesso
dk eeu aereitLe RCO 210
DELEGATION OF POWERS ea: sc -coscsermanee
eat ee ere Zit
EPA AND JUDICIAL INTERPRETATION ......2-00-:-.--s0-hereawearaee
cae 214

CHAPTER 8
Constitution and Environment ...............0sssssssccsscceceescessssecsccccees 223
RIGHT To: Live WITH HUMAN DIGNITY <cccsccvscetseccepscttotearcceeesa 224
ENT TURIIRET OCTANE on. iescancataesnctetictteccacoat
acote teararerentene sce 224
HIGH COURTS BECOME MORE ACTIVE sycosvasss.0bestgasisvans«ccedeceosees 277,
THE ARES COURT STRIMES «5 -/:.-.e:teiz cece eee oe 230
Open Spacer. .ahcciscstct ee ee are ee Bates 231
Extensiom of the Right tO Lite argc, ohn coerce eet 252
Misery ofa Village 02) ps. te eke recookacts that estore 232
RehabilttationsAGRigiit +n. nats, Mae oe oes 234
Right to a Healthy Environment: Universal Acceptance ....... 235
CONSTITUTIONAL MANDATE: COMBINED EFFECT
OF ECO-PROVISIONS IN THE CONSTITUTION ......ssseeeseeseeceeees 237
CONFEIGTS. AND- RECONCILIATION ogc osEe ee eae 240
Freedom of Speech and Noise Pollution ..........cccsccscescseeseeees 240
Religious Freedom and Environment. ..........:cssccscesecesseeeseseees 241
Relaxation: Relief or Hazard? oo c5vocccccce-
tee eee 243
Compassion ‘Por Living, Creates... vans psec. tae cco 243
REGULATORY POWER .a.c.rcccsesestterticcttt
scmeencyteea, eae eee 245
 Statutory Silence Does Not Rule Out Regulation ................ 246
How to Bring Trade and Business to
Environmental.DisciplineA.2u.21aland.arllAaNnds.... 246
LEGISLATIVE GONFLICTS: SOLVED HO AMARA NA BRON ss 248
Cefitre-Stace Harmonyiiniic ee. ass.
TA ed 248
CAMPA Fund: Who-Should. Share ...,.........tvsléerd-eieaioles. 250
Duties, in) Federal, Set-up, .......:0.:::-.avctnmeeottaviph
ania... 251
PA CORTE anos vestincncaca cilasdua ticssonduanais sa RPM aaron art,RENCE cas Ze

CHAPTER 9
Environmental Hazards:
MMiassH 1 Ort Actions -sc.secsistensessssnnccedsaavanccecis
setae Menon teveses 255
HAZARDOUS AND INHERENTLY DANGEROUS ACTIVITIES:
PBSOUIVE LIABILITY. & oss cca yseclondeasaebecahes
meeeaeel@-acensa veetias222 256
BORA LITIGATION scalhiathodinasd thesnsdacsmcset Aocaeeoatpetsdpacteeh o> 259
Doctrine of Parens Patriae in Mass Tort Cases ............essseeeeeee Lo),
Commients:on the, Keenan Judement ..555-cccse05) aape-oeorepeehent--* 260
From Interim Order to Compromise ........2....0s:3-+erespsesesenqneer 261
The Compromise Award: Mixed Comments ..........ssseseesee 262
Compromise Judgment Reviewed .......:scscseessesessseeteneseseeees 263
Mehta Principle and Review Judgment ..........:ssseeeseeeteees 265
Is the Mehta Principle Only Obiter? ...........cceeeesseeeeseeeees 266
COMPENSATION FoR OCCUPATIONAL DISEASES DIAGNOSED
BRTSEROSETIR EMIEINT 5 -seces0coccoss astre vreeens caren depen natatseweue cats 266
Mehta Reiterated and Explained ...........sssccsssesereeresscneeneseess 267
PUBLIC LIABINITIES INSURANCE ACT 199leo v.e cs. sh ier vereese seas 269

CHAPTER 10
Environmental Litigation and
Judicial Review .......sssssssssssssssetereresesescsssensneseneneneneneenenenenseeees Pe
Cass ACTION AND PUBLIC INTEREST LITIGATION ........:eesceeeseeees 27d
EVOLUTION OF DOCTRINES ....:000sssveseonsessonseresnernnerennannnnedsasaroe eas 276
The Polluter Pays Principle .......:ssscssssssesesseeseeesnenetenenenenenens 276
Precautionary Principle .......cscscsssessssseseseseseseseeneneeneneneaseeeees ZI.
Sustainable Development .......:cssessessesesesereretetstenseeeeeeeataenenens 283
OTHER CONTRIBUTIONS ...000000ssssseseevsesoosvoossestenesevesseeesinnsennaseses 287
Balance the Conflicting Values .........:sssssssssssssseeseenenenenenens 287
 Contents

Protection of Social Environment ............c::cccccsesccsssssscesssesseees

Filling Gaps in Law and Lacunae in Administration .............
Revealing Skeletons in Administrative Cupboard..................
Promoting Environmental Awareness and Education............
PuBLIC INTEREST LITIGTION FOR ENVIRONMENT, NoT For
PRIVATE; GAINS «.co:cssesn Boe, CONRAIL OIE. Peete nase
Bias-and?.Blacktmailing: seaseasvsssase. Stes. eA. MO MN or sas
Bonaitides ob Gitigan tein. Si ye A ee ed
Privates interest ligation ce... ossccsecqrecaaascaaszs cnasacadecepeamnesereeeee
SE OBA a RIG AR i oss csmessvvusobuacnivsdghotsiias Ivusanemmamamoretere
Reference: tovExperteOpinidndadivs..clewsed, deere
DNSy Miya scion cos casaxesnniiadadeasensaa~
Meee a ames ae
DEFERENTIAL ATTITUDE TO ENVIRONMENTAL DECISIONS .........00++
Deference to Administrative Wisdom ...........:::ccssecceeecceeeseceees
SU ratery Monit WCU ders wun ctenn se eaiossarzenteanreerienserrartarreter
rte.
SilenesValley*tos Narmada: A: Full Circle Gta pot See
ALTERNATIVE STRATEGY: ENVIRONMENT COURTS ........ceseeeseceeeeeeees

No Fine Without a Procedure Established by Law..........0.....

Fairness ih Tsstiitig Directions .cc.c.czsc,-cee
entice aevereseettcas tscases
Wome Wottoicte JUSICe ctor ia.casgcecetaM acer
HETCINESteere eee ste teecca ccs eerener tee eee eee eee ete

CHAPTER 11
Environmental Impact Assessment ............:ccs:cesscssseescssscssseccees
PREVENTION BETTERG HANUCURE. «.cccessssasecocsnsecerceleccessc
thaeee
COMPEEX: QUESTIONS ra, Hextsiz
heppsnmnwe
aeaoe BR ectont
ettecrene
(THE MANDATORY MObEtie:. Cigcd
tsRASOYniok
ccsphene AEAntothad

XVIii
 Contents

THLE. INDIAN: MODEL vevesess SHORAL

ssss
AGL. scoo
QIN.ss .. 325
EIA. Notificariom!1'994 9)..saivad. cncnt. pane...
atee . 225
BIA. Notification 2006... 21a, ROt. ANA. SON... 326
(A) Environmental Clearance Processes for
New. Projects sviagonsth eu vaaneal of ernie meen 326
(5) Expansion.or. Modernisation cocistc4-o/actec
see este cso29
(C} Giant of- Rejection ..cancs.c eed enn eae eee 329
(D) Post-clearance Monitoring and Transferability................ 330
(E) Projects and Activities Requiring Environmental
Cleatta nce \sioccsisscceseic issu RUStROR aA ee 330
CE) Viagra Liinigt ce, cet 2 occ. ca tees ated Meadeten sos aseCotes Seekoctereee saree 333
PORATION CASE wie. Wide sagh.eclecesaeteneemteeOeeee eee tes 334
prneriVial Gtityensya Mawes ess classe ee tan cree earise cece 334
MESS ORE, SITY, PRRs BA Mec oiiosssscs Beeemeng cacao eng os ee Ja7
The Narmada Case: The Plethora of Questions ............::000 338
PPE TPErIRD DOAN CORSE 3os cass anse'yornate Mipgsteades obs Mette tee BAR ones 338
Conditional Clearance v.2.di...s.s.0 RR PED asncianaia sos eteareceeees 59)
RE DISSE Mabe pe ccap geben se Snes noseMURR OR IT ae Tele ee 342
Inpace Or KONKAN: RAILWAYS ..... PA a ee, 343
MAT OG VAIING POEs oc ocaccotis cacseey cceceeat -ancecds <cangtp ont-nncitenens 344
RReEECBITTATING SICKMINDUSTRUES «052. occ. yasgoe ccnagy-caesdoasobssasecnsctees 346
Acquisition for Information Technology Industry ...............+ 346
CMTIOUE OF [HE INDIAN MODEL 82 i betas. welraene. oh torent de 347

CHAPTER 12
Public Participation in Environmental Decision Making ........... 351
Mones, OF PUBLIC. PARTICIPATION Detnny.LAe ewuee deencots 351
fe. eensoik,
Ne P EBIILC MOARBUCIPN Milian «:ssc-coctcerctosttest-cresonvecearenernepetascess eye
Bridging The Gap ...esesscssessessessesesseeseeseessenseesscnneeneeneensenneeneeny a2)
Improving The Quality of Decisions .......-::scseserereessesieees 250
Generating Public Confidence ..........ssecssseeseereseeteneenenneneeneneey 354
EXPERIENCE IN OTHER COUNTRIES .....sesseesessescesssssssecccesssseereeees 354
United States of America ........iiv.scssslsvoaetevarstebecensossssossaoensoes 354
United Kingdom ...c.ccssesseseseesesessesessesssessenseneeneenensenneaseneesseess 399
Geet: COUELIES Hoteiwczreseisila secaseouspaatfanesceeea se 507
acnanecacstentssunssazas
TINGDTANT LAW Bh cc ledecs sudcnc seedeccedas sno ORS DIR EON 0830s 358
PUBLIC INQUIRY .sssssescsseseesesesscsceseaseceecscescseescsceasseeeneneenenennensnees 360
PUBLIC CONSULTATION HIGH .......scseceesesccesssnseneregnnasseneoseosnanessnones 361
Public Hearing .........scsscsssseseeceesesesesseseeneneeneenensesensesseseneenenens 361
 Contents

Proceedings in the Inqaity 205.) ce Ie Pk 362

Responses from Persons having Plausible Stake ................0. 363
Project, Proponent thar Matters Sao. Hae ea SSse. 363
STANDARDS FOR IMPACTHHIEARING He ati AA. 364
CITIZEN Surts To PROTECT THE ENVIRONMENT .......s0cccccceeseceees 367
VBUO LOOT DYea Ns SiMe decowedi htc okies seu, an F\ puttin i sexs ce eu eee S 371

Index sii, eee has waenacht..eonmeste

seFt. AG coc: 385
 Table of Cases

A Balram Kumawat v Union of India,

79, 247
Abdul Hamid v Gwalior Rayon Silk
Bangalore Medical Trust v BS Mudappa,
Manufacturing Co, 30
120,9234,,.27532/6,328)
Ajay Construction v Kakateeya Nagar
Banswara Marble Mines v Union of
Co-op Housing Society Ltd, 174
India, 58
Ajeet Mehta v State of Rajasthan, 28
Banwasi Seva Ashramv State of Uttar
Ajendra Singh v State of Uttar
Pradesh, 45, 275, 276, 287,
Pradesh, 63
288, 297
Akhil Bharat Goseva Sangh (3) v State of
Basudev Yadav v State of Bihar, 63, 245
Andhra Pradesh, 151, 218, 245
Bhandhua Mukti Morcha v Union of
Alloy Steel Rolling Mills v West Bengal
India, 232
Pollution Control Board, 194
Bijayananda Patra v District Magistrate,
Ambica Quarry Works v State of Gujarat,
Cuttack, 190
53, 345 Bimal N Desai v State of Karnataka, 122
Ambuga Petro Chemicals v Andhra
BL Wadehra v Union of India, 275,
Pradesh Pollution Control Board, 177
289, 291
Andhra Pradesh Pollution Control Bombay Burmah Trading Corporationv
Board II v MV Nayudu, 34, 135, Field Director Project Tiger and
186, 236, 278, 298, 299, 306, 339 Conservator of Forests, 72
Andhra Pradesh Pollution Control Board Bombay Dyeing & Mfg Co Ltd (3) v
v NV Nayudu, 34 Bombay Environment Action Group,
Animal and Environment Legal Defense 121, 140, 284, 285, 346
Fund v Union of India, 48, 186, Boomer v Atlantic Cement Co, 6
275, 288
Brindavan Phosphate Pvt Ltd v
Animal Welfare Board of India v Karnataka State Pollution Control
Ombudsman for Local Self-Governing Board, 309
Institutions, 152 BV Joshi v State, 53
AR Ponnuswamy v Thoppalan, 36, 195
Attorney General v PYA Quarries, 3, 4 C
B Centre for Environmental Law WWF-1
v Union of India, 74
‘B’ Block Residents Welfare Association, Centre for Social Justice v Union of
New Delhi v Delhi Development India, 365, 367
Authority, 123, 234
 Table ofCases

CERC v Union of India, 275, 288 Divisional Forest Officer v S

CESC Ltd v Subhash Chandra Bose, 232 Nageswaramma, 53
Chaitanya Pulvarising Industry v Doon Housing v State of Uttaranchal, 40
Karnataka State Pollution Control
Board, 177 E
Chandmari Tea Co v State of Assam, Executive Engineer, AV project v EE
7239 Protection Samiti, 275
Chandrakumar v Union of India, 308
Chandrasekharan Pillai v State of F
Kerala, 141
Faquirchand v Sooraj Singh, 16
Charan Lal Sahu v Union of India,
Fatesang Gimba Vasava v State of
17; 259
Gujarat, 45, 275
Charles Sobraj v Superintendent, Central FK Hussain v Union of India, 141,
Jail, Tihar, 232
144, 229
Chhetriya Pardushan Mukti Sangarsh Forest Friendly Camps Pvt Ltd v State of
Samati v State of Uttar Pradesh, 176,
Rajasthan, 66
230, 293
Forum for Socio-economic Studies v
Chief Forest Conservator, Wild Life v
Comm of Land Revenue, 121
Nisar Khan, 80
Forum, Prevention of Environment &
Church of God (Full Gospel) in India v
Sound Pollution v Union of
KKR Majestic Colony Welfare
India, 189
Association, 190, 242
Francis Corlie Mullin v The
Citizen, Consumer and Civic Action
Administrator, Union Territory of
Group v Union of India, 104
Delhi, 224
Consumer Education and Research
Free Legal Aid Cell v Government of
Centre (CERC) v Union of India,
NCT of Delhi, 191
232, 237, 266
Friends of Mammoth v Board of
D Supervisors of Mono Country, 355

Dahanu Taluka Environment Project G

Group v Bombay Suburban
Goa Foundation v Conservator of
Electricity Supply Company Ltd,
Forests, Panaji, 58
287, 302
Goa Foundation v Diksha Holding Pvt
Dahanu Taluka Environment Protection
Ltd, 104
Group v BSES, 275
Goa Foundation v Konkan Railway
Dahyabhai Solanki v State of Gujarat, 180
Corporation, 128, 214, 215, 275,
Deepak Nitrite Limited v State of
343
Gujarat, 259, 277
Goa Foundation v State of Goa, 239
Delhi Bottling Co Private Ltd v Central
Govind Singh v Shanti Swaroop, 22
Pollution Control Board for
GR Simon v Union of India, 76
Prevention and Control of
Greater Kailash Part I] Welfare Assn v
Pollution, 180
DLF Universal Ltd, 124
Deshi Sugar Mill v Tupsi Kahar, 18
Dhirendra Agarawal v State of Bihar, 54 GS Oberoi v State of Punjab, 183

XXil
 Table ofCases

Guhiram v Uday Chandra, 15 K

Gujarat Pollution Control Board v K Muniaswamythewar v Dy
Parmar Devusinh Shersinh, 179 Superintendent of Police, 149, 239
Gyan Prakash v General Manager, Kailash Chand v Gudi, 15
Ordnance Factory, Khamaria, Kamal Kishore v State of Madhya
27A5295 Pradesh, 59
Kamal Nagar Welfare Association v
H Government of Andhra Pradesh, 234
Hamid KhanvState, 174 Kamalject Singh Alluwalia v State of
Himmath Singh v Bhagwana, 26, 188 Bihar, 55
Karnataka Industrial Area Development
Hinch Lal Tiwari v Kamala Devi, 139,
Board v C Kenchappa, 128, 285, 346
236, 238, 281
Kenchappa v State of Karnataka, 239
HJ Vyas v Police Inspector, Sabarmati Kinkri Devi v State, 118, 287, 324
Police Station, Ahmedabad, 35, 191 KM Chinnappa v Union of India, 1, 54,
236
I KP & Industries v Addl District
Indian Council for Enviro-Legal Action v Magistrate & DL & LRO, 119
Union ofIndia, 36, 94, 98, 99, 217, Krishna Gopal v State of Madhya
218, 232,292,207, 2)0s 29Os 278, Pradesh, 25, 34, 175, 188, 323
209,297,299, DU)
L
Indian Handicrafts Emporium v Union
of India, 78, 247 Lingappa Pochannav State of
Intellectual Forum, Thirupathi v State of Maharashtra, 47
LK Koolwal v State of Rajasthan, 230,
Andhra Pradesh, 139, 282, 283
238; 21), 207
IvoryTraders & Manufacturers
Association v Union of India, 78, M
235, 246 M Krishna Panicker v Appukuttan
Nair, 32
J M Prabhakar Reddy v Andhra Pradesh, 46
Jadav Soap Works v Union of Maa Dasabhuja Furniture Unit v State of
India, 182 . Orissa, 59
Jagannath v Union of India, 216, 276 Madhavi v Thilakan, 28, 188, 229
Jawaharlal Sharma v Divisional Forest Madhya Pradesh State Electricity Board,
Officer, Uttar Pradesh, 62 Jabalpur v Collector, Mandla, 270
Jayakrishna Panigrahi v Hrisikesh Maheshkumar Virjibhan Trivedi v State
of Gujarat, 74, 310
Panda, 27
Maitress Sansad v State of Orissa, 209
JM Desai v Roshan Kumar, 273
Mandu Distillers Pvt Ltd v Madhya
JN Chaturvedi v Commissioner, Pradesh Pradushan Niwaran
Allahabad, 141 Mandal, 176

xxiii
 Table ofCases

Maneka Gandhi v Union of India, 224 N

Mars Holdings Pvt Ltd v Municipal Nagarahole Budakattu Hakku Sthapana
Corporation of Greater Mumbai, 151 Samithi v State of Karnataka, 65, 275
Masood Ahmad v State, 237 Nandlal v State of Uttar Pradesh, 62
MC Mehta v Kamal Nath, 65, 140, Narasingh Podhiaryv State of Orissa, 75
141, 186, 236, 276, 278, 280, 290, Narayana Saw Mills v State of Bihar,
308, 310, 324 63, 248
MC Mehta vState of Orissa, 133, 299 Naresh Kumar v Dy Commissioner, 55
MC Mehta v Union of India, 35, 124, Narmada Bachao Andolan v Union of
125, 126;.127, 142, 171 <07 2505, India, 49, 234, 251, 279, 295, 303,
225,226, 227; 238, 256,266; 271, 311, 334, 336, 339, 345, 367
275, 276, 278, 287, 288, 289, 292, Narula Dyeing and Printing Works v
296, 297, 299, 304, 312, 324, 344 Union ofIndia, 174, 175, 219
MC Mehta v Union of India on behalf National Mineral Development
of Monitoring Committee, 290, 349 Corporation Ltd v State of Karnataka,
MI Builders Pvt Ltd v Radhey Shyam
248, 249
National Organization of the Reform of
Sahu, 121, 281
Marijuana Law v United States, 317
Milkman Colony Vikas Samiti v State of
Nature Lovers Movement v State of
Rajasthan, 151, 187
Kerala, 239
Modern Educational and Cultural Navin M Raheja v Union of India, 75
Society v Nizam, 121, 282 ND Jayal v Union of India, 219,
Mohan Vaniya Viniyog Private Ltd v 299,539
State of West Bengal, 138, 160 Nitin Wadia v Union of India, 75
Mohd Hanif Quareshi v State of Niya Vedi v State, 275
Bihar, 243 Niyamavedi v State of Kerala, 58, 65
Mohd Hazi Rafeegq v State of Niyamavedi v Union of India, 312
Uttaranchal, 63, 238
Moulana Mufti Syed Md Noorur O
Rehman Barkati v State of West Obayya Pujari v Member Secretary,
Bengal, 188, 241 Karnataka State Pollution Control
MP Rambabu v Divisional Forest Officer, Board, Bangalore, 127
143, 144, 235, 246, 281 Olga Tellis v Bombay Municipal
MR Pillai v Executive Officer Pathiyoor Corporation, 232, 234
Panchayat, 175 Om Birangana Religious Society
v State,
Mullaperiyar Environmental Protection 241, 188

Forum v Union of India, 134 Orissa State (Prevention and Control of

Pollution) Board v Orient Paper
Mullers Hospital v Member Secretary,
Mills, 193
DD
Municipal Council, Ratlam v P
Vardhichand, 23, 24, 289
P Rami Reddyv State of Andhra
Murali S Deora v Union of India,
Pradesh, 47
1925237

XXIV
 Table ofCases

PA Jacob v Superintendent of Police, Samatha v State of Andhra Pradesh, 47,

Kottayam, 240 275, 288
Partha Pratim Ghosh v State of West Sashikant Vasudev Tadkodkar v State of
Bengal, 281 Karnataka, 122
Pathrose v State, 176 Satyavani v Andhra Pradesh Pollution
People United for Better Living in Control Board, 275, 276, 293
Calcutta v State of West Bengal, 130 Sayeed Maqsood Ali v State of Madhya
People’s Union of Democratic Rights v Pradesh, 189
Union of India, 224 Shajimon Josephv State of Kerala, 237
Perumal Naicker v Rathina Naicker, 16 Shastri Nagar Colony Welfare
Pradeep Krishen v Union of India, 48, Community v Calicut Development,
74, 275, 288 12h
Pranab Kumar Chakraborty v Md Akram Shaukat Hussain v Sheodayal, 19
Hussain, 28 Sheikh Ikram Sheik Israil v State of
Pyarelal v State (Delhi Admn), 77 Maharashtra, 191
Pyari Devi v State of Uttar Pradesh, 54 Sierra Club v Morton, 4, 252
Siraj MK v District Collector, 151
R Sirikoti Narayana Rao v Andhra Pradesh
RA Goel v Union of India, 182 Pollution Control Board, 192
Raghunandan v Emperor, 19 SK Garg v State of Uttar Pradesh, 235
Rajesh Singh Buddhpriya v Patna Sneha Mandal Co-op Housing Society
Regional Development Authority, 239 Ltd v Union of India, 103
Rajni Kant v State, 188, 240 SP Gupta and others v Union of India,
Ram Baj Singh v Babulal, 20 273
Ram Gopal v State of Rajasthan, 152, 249 Sreenivasa Distilleries v SR Thyagarajan,
Ramanath Das v Collector, Balasor, 127 36, 194
Rameshwar Prasad Thakurdin Pande v Sri Manchegowda v State of Karnataka, 47
Deputy Collector (ENC), Bandra, State of Andhra Pradesh v State of
124 Karnataka, 134
Ravindra Tyagi v State of Rajasthan, 121 State of Bihar v Banshi Ram Modi, 52
Roma Dutta v Municipal Corporation of State of Bihar v Murad Ali Khan, 76
Delhi, 121 State of Gujarat v Mirzapur Moti
Rural Litigation and Entitlement Kendra Kureshi Kessab Jamat, 244
v State of Uttar Pradesh, 8, 39, 44, State of Himachal Pradesh v Umed Ram
53, 118, 135, 147, 275,296, 524 Sharma, 232
Ryland v Fletcher, 257 State of Kerala v Gwalior Rayons, 43
State of Madhya Pradesh v Kedia Leather
S and Liquor Ltd, 32, 33, 178, 274
State of Madhya Pradesh v Krishnadas
S Jagannath v Union of India, 92, 101,
102, 110, 114, 144, 288, 297, 325
Tikaran, 53
State of Tripura v Sudhir Kumar Ranjan
Sachiadanand Pandeyv State of West
Bengal, 8, 301 Nath, 44
Salva and Associates v National Capital Stella Silks Ltd v State of Karnataka, 177
Territory of Delhi, 189 Subhash Kumar v State of Bihar, 176,
230, 293
 Table ofCases

Sukdev Singh v State of Harayana, 127, U

176, 294 Union Carbide Corporation v Union of
Sunil Batra v Delhi Administration, 232
India, 17, 255, 258, 262, 263, 310
Suo motu v Ahmedabad Municipal
Union of India v Kamath Holiday
Corporation, 172
Resorts Pvt Ltd, 65
Supreme Court Monitoring Committee v
Union of India v Union Carbide
Mussoorie Dehradun Development
Corporation, 17, 260, 266
Authority, 54
Unnikrishnan v State of Andhra Pradesh,
Suresh Lohia v State of Maharashtra,
Zz
46, 275
Upendra Jhav State of Bihar, 53
Susetha v State of Tamil Nadu, 140,
Uttar Pradesh Pollution Control Board v
283, 284
Modi Distillery, 173
a Uttar Pradesh Pollution Control Board v
Mohan Meakins Ltd, 184
T Damodar Rao v Special Officer,
Municipal Corporation Hyderabad, Vv
119, 120,227,238
V Lakshmipathy v State of Karnataka,
TN Godavarman Thirumulpad v Union
1207229 5+ 2.6
of India, 286
Vellore Citizens Welfare Forum v Union
Tarun Bharat Sangh, Alwar v Union of
of India, 174, 185, 215, 275, 278,
India, 73, 274, 297
279, 288, 289, 290, 324
Tata Tea Limited v State of Kerala, 30,
Vijay Singh Punia v Rajasthan State
aioe
Board for Prevention and Control of
Tehri Bandh Virodh Sangarsh Samiti v
Water Pollutio, 1, 185
State of Uttar Pradesh, 338
Vijayanagar Education Trust v KSPC,
Tennessee Valley Authority v Hiram
Bangalore, 166
G Hill, 336
Vishaka v State of Rajasthan, 129
The Rural Litigation and Entitlement
Kendra v State of Uttar Pradesh, 224 Ww
Thilakan v Circle Inspector of Police,
119, 246 Wadehra v Union of India, 172
TN Godavarman Thirumulpad v Union Wing Commander Utpal Barbara v State
ofIndia, 3, 56, 57, 58, 59, 60, 61, of Assam, 187
63, 131, 132, 236, 250, 286, 294, Wipro GE Medical Systemv State of
297, 313, 314 Jharkhand, 53

XXV1
CHAPTER 1

Introduction

The problem of environmental pollution dates back to the evolution of

homo sapiens on this planet. The development of science and technology
and the ever-increasing world population brought about tremendous changes
in the earth’s environment. These changes upset the ecological laws, thereby
shaking the balance of human life. It, therefore, became necessary to regulate
human behaviour and social transactions with new laws, designed to suit
the changing conditions and values. In order to manage and face the myriad
challenges of the ever-changing environment, a new branch of law, known
as environmental law, emerged.
The Environment (Protection) Act 1986' (EPA) is a watershed. The law
generated a plethora of rules and regulations, and facilitated delegation of
powers of the Central Government to the various agencies for Centre and
state. Procedural strategies for environmental decision-making process such
as environmental impact assessment (EIA) and public hearing were evolved
under the delegated power of making regulations. The EPA defines
environment as one which ‘includes water, air and land and the inter-
relationship which exists among and between water, air and land, and
human beings, other living creatures, plants, micro-organisms and
property.” This is an inclusive definition of environment. The Supreme
Court in KM Chinnappa v Union of India’ and the Rajasthan High Court
in Vijay Singh Punia v Rajasthan State Board for Prevention and Control of

1 Environment (Protection) Act 1986 is referred to as EPA in this book. Although most of
its provisions relate to control of pollution only, EPA is the first Indian legislation that
acted as a potent instrument with a holistic view of environment for protecting and
improving the environment. See chVII below.
2 The Environment (Protection) Act 1986, s 2 (a).
3 AIR 2003 SC 724, pp 729-33.
 Environmental Law in India

Water Pollution,‘ quote verbatim the famous reply of the Red Indian chief
when the land of his tribe was sought to be bought by the great White
chief in Washington. According to the Red Indian chief, the sale would
nullify many facets of environment—the sacredness of the land, the
freshness of the air, the sparkle of water, the midst of dark woods, the
music of the minds, the songs of the humming insects and the fragrance of
the flowers. The words of the Red Indian chief highlight how trees, beasts,
rivers, sky and other facets of nature are closely-knit with the lives of human
beings. The Rajasthan High Court illustrates:

The concept of inter-relationship and inter-dependency which exists

between human beings, nature and other life forms, is the essence of
well-being of the human race. To illustrate the point, one may give
the example of a lonely earthworm. It works for human beings. It
enriches the soil and makes it fertile for them to reap the benefits.”
In a wider sense, the environment may embrace all forms of life on this
planet. Rodgers defines environmental law as ‘the law of planetary
housekeeping, protecting the planet and its people from activities that
upset the earth and its life-sustaining capacities’.° Environmental law,
therefore, relates to the management of the environment and the strategies
for tackling the problems affecting the environment. It is generally believed
that in modern times, environmental protection is mostly confined to the
control of pollution by hazardous products, gases and effluents that are the
by-products of industrialisation. However, preventive and remedial measures
to meet the hazards of pollution are also major concerns of environmental
law. The environmental law embraces a wide spectrum. This may include,
the natural environment, namely, physical conditions of land, air and water,
and the human environment namely health, social and other man-made
conditions affecting human beings on earth. It is here, that the inclusive
definition of environment under EPA assumes importance. Environmental
law involves conservation of natural resources for their better use by the
present and future generations, and it also governs the inter-relationship
between natural resources and human beings. The domain of environmental
law extends to the relationship between natural resources and other living
creatures.

4 AIR 2003 Raj 286.

5 Ibid, p 293.
6 WH Rodgers Jr, Environmental Law, 1977, pl.

2
 Introduction

RELATION WITH OTHER DISCIPLINES

Environmental law has to derive its strength from many other disciplines
such as biology, biotechnology, ecology, economics, hydrology, medicine,
political science, psychology and public administration. It is a settled
position that environmental law cannot be separated from politics and its
study also demands an understanding of ecology and economics.’ All
pervasive influence of economics in forest protection was very much evident
in one? of the landmark Godavarman cases where the apex court emphasised
the need to assess long term tangible and intangible losses and benefits of
forest given for non-forest purposes of ‘development’ and to levy net present
value (NPV) from the users. The court went into the various dimensions of
the assessment, but left it to the experts specialized in the field of
environmental economies to evolve the modalities of assessment.

SouRCES OF ENVIRONMENTAL LAw

The interdependence of environmental law with other disciplines makes it

a distinct branch of law. The law relating to the environment is derived
from two principal sources, namely, Common Law developed by courts
through judicial precedents, and the statute law comprising regulations or
bye-laws.’ It is said that environmental law is an amalgam of Common
Law and statutory principles.’°

Decisions of Court

Under the Common Law, a person can sue for nuisance when an act
endangers his life, health, property and comfort or obstructs his enjoyment
of the rights common to all people. However, in most environmental
accidents, the question may be one of public nuisance, when the act
materially affects the reasonable comforts and convenience of a class of
people’! or unreasonable interference with a right common to the general
public.’ Private nuisance is a substantial and unreasonable interference
with the use and enjoyment of land, whereas public nuisance covers a wide

ThomasJ Schoenbaum, Environmental Policy Law, 1985, p xxii.

conTN Godavarman Thirumulpad v Union ofIndia [2006]
1 SCC 1.
9 McLonglin, The Law Relating to Pollution , 1972, pp 8-10.
10 WH Rodgers Jr, Environmental Law, 1977, p 100.
11 Attorney General v PYA Quarries [1957] 2 QB 167.
12 WH Rodgers Jr, Environmental Law, 1977, p 102.

B
 Environmental Law in India

range of interference aes common rights of the general public. Lord

Denning has observed:
...public nuisance is a nuisance which is so widespread in its range or
so indiscriminate in its effect that it would not be reasonable to expect
one to take proceeding on his responsibility to put a stop to it, but
that should be taken as the responsibility of the community at large.
Inevitably, it is an act or illegal omission, which causes any common injury,
danger or annoyance to the public who dwell, or occupy property in the
vicinity. It may also be an act causing injury, obstruction, danger or
annoyance to a person who may have occasion to exercise public rights.’

Juristic Personality and Locus Standi

Lome. standi no longer remains a hurdle in environmental law cases in
India’? due to the enormous growth ofpublic i interest litigation. However,
in USA, class action may not be possible in civil litigation relating to
environment, as it raises procedural difficulties such as proving of locus
standi and the question whether the complainant had suffered direct
substantial injury.'® Sierra Club v Morton,'’ decided by the Supreme Court
of USA is often quoted as an illustration for cases involving difficulty in
rendering locus standi to environmental protection groups. In the above
mentioned case, construction of a ski resort in a valley was challenged by
Sierra club on the ground that it would adversely affect the scenery, wild
life, natural and historical objects and impair the enjoyment of the valley
for the future generations. The court held that this did not constitute an
injury, suffered by the club and denied locus standi to the club. However,
the dissenting words of Douglas J are illuminating and should influence
courts in any land when they are seized of a question of protecting the
environment. Justice Douglas observed:
Inanimate objects are sometime parties in litigation. A ship has a
legal personality, a fiction found useful for maritime purposes... so it
should as respects valleys, alpine meadows, rivers, lakes, estuaries,
beaches, ridges, groves of trees, swamp lands or even air...!8

13 Attorney Generalv PYA Quarries [1957] 2 QB 167, pp 190, 191.

14 Indian Penal Code 1860, s 268; Also see Bhopal Gas Leak Disaster (Processing of Claims)
Act 1985.
I SeSeerch ee
16 Fora discussion, see ‘Development of the Law: Class Actions’, Harvard Law Rey, vol 89,
1976, p 1319.
17 405 U'S 727, 31 L Ed 2d 636.
18 Ibid, p 741.
 Introduction

Natural objects feel the destructive pressures of modern technology and

modern life. The river is cited as the living symbol of all the life it sustains
and nourishes. The judge declared that the fisherman, the canoeist or a
logger who has a meaningful relation to that body of water must be able to
speak for the values which the river represents, and which are threatened
with destruction."? Justice Douglas further observed:
The voice of the inanimate object therefore should not be stilled ...
Before those priceless bits... are forever lost or are so transformed as to
be reduced to the eventful rubble of urban environment, the voice of
the existing beneficiaries of these environmental wonders should be
heard.?°
According to Christopher D Stone, it is not inevitable, nor is it wise, that
natural objects have no rights to seek redress in their own behalf. He observed
that:
It is no answer to say that streams and forests cannot have standing because streams
and forests cannot speak. Corporations cannot speak either; nor can states, estates,
infants, incompetents, municipalities or universities. Lawyers speak for them, as
they customarily do for the ordinary citizen with legal problems.”"

The legal issues pertaining to natural objects are to be dealt with in a

manner similar to that of persons incapable of managing their legal affairs,
for instance, persons of unsound mind. In such contingencies, persons
concerned with the well-being of the legally incompetent person make a
representation to the court, and the court designates a representative with
the authority to manage the affairs of the legally incompetent person.
Where a person is injured in an automobile accident, the injured person's
expenses are imposed on the responsible party. Stone is categorical in
pointing out that comparable expenses to a polluted river would be the
costs of dredging, restocking with fish, and so forth.”
The attempt to attribute a juristic personality to all living and non-
living things is not alien to the Indian legal system. The Constitution of
India guarantees every ‘person’ right to live.’? A noted Indian
environmentalist has quoted the Mahabharata and the research carried out

19 405 US 727, 31 LEd 2d 636.

20 Ibid.
21 Christopher D Stone, ‘Should trees have standing?—Toward legal rights for natural
objects’, Southern California Law Review, vol 45, 1972, p 450, at p 460.
22. Ibid, p 476.
23 Constitution of India 1950, art 21.
 Environmental Law in India

by scientists like Jagatish Chandra Bose to support his view that trees are
not dead things as modern economists see them, but living beings like
humans.”“ As seen above, Douglas J of the Supreme Court of USA rightly
endowed alegal personality on ‘valleys, beaches, ridges, groves of trees,
swamp lands or even air that feels the destructive pressures of modern
technology and modern life.”

Public Interest Cases

Recourse to judicial proceedings is a costly exercise for those who suffer

substantial injuries from public nuisance. Even if the aggrieved party takes
recourse to judicial proceedings, the court may only settle disputes between
the complainant and the polluter, and the rights of other aggrieved persons
may remain unsettled. In an American case, Boomer v Atlantic Cement Co,”
this dilemma is quite evident. In that case, the plaintiff was awarded damages
for injury from cement dusts emitted by the company. Professor Ira C
Lupa, comments on the helplessness of those who did not go to the court:

While the Boomers may not have been displeased at sucha result, those neighbours
slightly further downwind surely took no satisfaction from it. The practical
consequence... was no more than the creation of a permanent ‘license fee’ to pollute.
Boomer teaches us an important lesson about the need to protect and_allow
vindication of both private and public interests in environmental protection
legislation.”

Judicial remedies for environmental maladies will have effective results only
if the remedies benefit those who are not parties to the litigation. It is here,
where public interest litigation—a litigation in which a person or group
can take up a public cause before courts—assumes importance. The question,
however, is whether the courts will settle and lay down the law for better
environmental behaviour in future. One has to examine how far judicial
activism allows courts to break traditional barriers of judicial review such
as jurisdictional facts, locus standi and laches, and interferes with
administrative decisions in environmental cases.
The burden of proof, which ordinarily lies on the plaintiff, is a hurdle
for environmental litigation. For instance, the problem can be demonstrated
by the difficulties experienced by thousands of Vietnam war veterans who

24 Sundarlal Bahuguna, ‘Environmental Conservation for Survival’, Indian Journal of Public

Administration, vol XXXVI, 1989, p 374, at p 375.
25 405 US 727, 31 L Ed 2d 636.
26 26 NY 2d 219 (1970).
27 NIrving Sax, ‘Factors Influencing the Development of Environmental Law’, [Industrial
Pollution, 1974, p 567.
Se ee Introduction
es

suffered damages due to exposure to ‘Agent Orange’ in the 1970s.2° Such

problems may also arise in the Indian context, and it remains to be seen
whether public interest litigation can be a remedy for the same.

Statutes

Statute law, the second source of environmental law, has many advantages
over Common Law. A statute can declare a certain action or inaction to be
an offence, and lay down deterrent sanctions as well as effective remedies.
It can provide for an administrative agency clothed with the authority for
making decisions and imposing sanctions in order to act as an effective
instrument of environmental management. Moreover, a statute provides
for better opportunities of public participation in environmental decision-
making, and avoids costly and protracted litigation. Statute law can provide
class action and citizen suits and is useful in eliminating Common Law
hurdles.” The provision for complaint by citizens for criminal action against
the offender enshrined in the EPA is a notable Indian example of statute
law.*° A similar provision®' was subsequently introduced by way of
amendments to the laws relating to air and water. However, the aforesaid
provision is confined to criminal action after giving sixty days’ notice to the
authorities. There is no specific statute other than the general civil law that
moves for civil action against environmental violations.”

RELATION WITH OTHER Laws

Environmental law is a synthesis of principles, concepts and norms

generated by other laws. For remedying environmental harm, concepts of
civil liability, which had their origin in tort, have been accepted, with or

28 Lettie M Wenner, ‘Environmental Policy in the Courts’, in Norman J Vig and Michael E
Kraft, Environmental Policy in 1990s, 1990, p 190.
29 The Federal Water Pollution Control Act 1972. Under the said American Act, any person
may commence acivil action for violation of effluent standards. However, another provision
defines ‘citizen’ as a ‘person’ or persons having an interest, which is or may be adversely
affected. The American Clean Air Act 1970 also provides for citizen suits. However, the
definition does not put the limitation of adverse impact on the citizen as a condition
precedent for civil action against violation of emission standards. For text, see Hans
Tarlock and Hanks, Environmental Law, 1974, pp 1123-24 and pp 1172-73.
30 The Environment (Protection) Act 1986, s 19.
31 Air (Prevention and Control of Pollution) Act 1981, s 43 and Water (Prevention and
Control of Pollution) Act 1974, s 49 introduced by 1987 and 1988 amendments respectively.
32 The Public Liabilities Insurance Act 1991 which provides for an immediate relief for
compensation is only the tip of an iceberg. See ch IX.

iE
 Environmental Law in India

without modification. The Supreme Court of India has tried to evolve the
jurisprudence of strict liability for harm caused by an industry engaged in
hazardous or inherently dangerous activities. The attempt was to interpret
art 32 of the Constitution of India by holding that the provisions under it
make it possible for the court to fashion any kind of remedies.** The close
relationship of environmental law with constitutional law will be seen in
the judicial interpretation given to the concept of right to live as including
the right to a clean and humane environment. The concern for protecting
the environment also has its impact upon labour welfare laws.** However,
environmental law has its closest relationship with administrative law. The
consent granting mechanism” in pollution control laws is an example.
The relaxation of proving locus standi in environmental cases is another
development in administrative law.*° The need to consider valid criteria
before making a decision on the-environment is a general principle in
administrative decision-making.” The mechanism of delegated legislation
under the Indian environmental laws for environmental management is
also a phenomenon of close relationship between administrative and
environmental laws.** The concept of mens rea in environmental offences
and the problem of enforcement by penal sanctions have attracted criminal
law into the domain of environmental law. The need to impose an effluent
charge or to levy a pollution tax or cess brings tax laws also into the net.”
The problem of environment is not only of national concern, but has
grown to international dimensions. The Chernobyl nuclear accident
deposited radio nuclides throughout the northern hemisphere and ever
since, the dominant concern of the world citizenry has been the future
risks to health.“” The cumulative weight of scientific evidence on ozone
depletion, acid-rain, climate change, deforestation and species extinction
has such global impact that new forms of human restraint and international
co-operation are necessary to solve the problem.“ It is also pertinent to
note that the dangers of ecological catastrophe are clear and present and

33ucSeerch: EXe
34 Rural Litigation Kendra v State of Uttar Pradesh AIR 1985 SC 652.
35 Water (Prevention and Control of Pollution) Act 1974.
36 See ch X.
37 Sachidanda Pandey v State of West Bengal AIR 1987 SC 1109, p 1127.
38 See ch VII.
39 Water (Prevention and Control of Pollution) Cess Act 1974.
40 Lynn R Anspaugh, “The Global Impact of Chernobyl Reactor Accident’, Science, 16
December 1988, p 1513.
41 NormanJ Vig and Michael E Kraft, ‘Conclusion Towards a New Environmental Agenda,
Environmental Policy in the 1990s, 1990, p 28, at p 31.

8
 Introduction

they affect not a part of the globe, but the globe as a whole.” The concern
for the destruction of the coastal environment of South Asian countries hit
by tsunami is an example. Environment knows no political boundaries,
but accepts only bio-regional or eco-boundaries.” Inevitably, norms of
interdependence have emerged at the international level for protecting the
environment, and enabling environmental law to go beyond the limits of
municipal law and extending to the field of international law.“4
The United Nations Conference on the Human Environment, held in
Stockholm in the year 1972, was a landmark towards the protection of the
deteriorating environment at the international level. The conference
emphasised that the capabilities of the human race to transform the natural
surroundings must be wisely used, and that wrong and heedless use of the
natural resources can do incalculable harm to human beings, and the human
environment. The conference suggested that developing countries must
direct their efforts towards balancing their priorities with the need to check
the increasing population. The conference identified the areas and laid
down the principles on which the nations should enact laws for protecting
and improving the environment. The document prepared during the
conference, highlighting these principles, is known as the Stockholm
Declaration.”
Twenty years later, in the year 1992, United Nations Conference on
Environment and Development (UNCED), held in Rio de Janeiro, laid
down a global partnership for the protection of environment.”° The road
from Stockholm to Rio de Janeiro was encircled by several international
attempts at protection of human environment. The institutional framework
of United Nations Environment Programme (UNEP) and its measures”
for control of transboundary movements of hazardous wastes and disposal
are noteworthy. However, it was the report*® of the UNCED, headed by
Gro Bruntand that gave impetus to the Rio Conference, which set the

42. Lester Brown, ‘A Global Plan to Save Our Planet’s Environment’, USA TODAY, January
1990, p 28, at p 31.
43 Patricia M Mische, ‘Ecological Security and the Need to Conceptualise Sovereignty’,
Alternatives, vol XIV, p 389, at pp 391-393.
44 United Nations Conferences on Human Environment 1972, 1982, 1992 and 2002;
IUCN World Conservation Strategy, 1980; Commission on Environment and Development,
Our Common Future, 1987.
45 For the text, see British Institute of International Environmental Law, Selected Documents
on International Environmental Law,1917, pp 3-5.
46 Sir Maurise Strong’s statement at the closing meeting of the Rio Conference.
47 Convention on the Control of Trans-boundary Movements of Hazardous Wastes Disposal,
signed at Basel on 22 March 1989.
48 Commission on Environment and Development, Our Common Future, 1987.
9
 Environmental Law in India

planet on a new course to global sustainable development.” States became

concerned with climatic changes, their impact and the need to protect
biological diversity. Thus, a system of international environmental law
emerged with greater emphasis on regulatory framework for protection of
environment.” Ten years later in 2002 at Johannesburg, the World Summit
on Sustainable Development’’ committed themselves to build a humane,
equitable and caring society. For this the summit assumed acollective
responsibility to advance and strengthen the interdependent and mutually
reinforcing pillars of sustainable development, economic development, social
development and environment, at the local, national, regional and global
levels. Among other issues, the Johannesburg Declaration stressed the need
to promote the development of small island states and least developed
countries, and recognise the role of indigenous people in sustainable
development. Notably, it emphasised that in pursuit of the legitimate
activities the private sector, both large and small companies, has a social
accountability towards the evolution of equitable and sustainable societies.

INp1a’s ANCIENT TRADITIONS

India has an ancient tradition of protecting the environment. There exist

several writings, which prove that in ancient India every individual had to
practice the dharma to protect and worship nature.” A look at the
environmental ethics of the olden times contained in vedas, upanishads,
smritis and puranas discloses environmental harmony and conservation since
sun, air, fire, water and earth were considered as manifestations of divine
personification.”? Sacred groves were kept unmolested and undisturbed
since time immemorial.** Causing harm to these groves was believed to
offend the forest spirits and deities.”> Trees were worshipped,” © rivers were

49 David Frustone, The Road from Rio: International Environmental Law after the Earth Summit,
Journal of Environmental Law, vol 6, no 2, p 193.
50 Ibid, p 218.
51 From 2 to 4 September 2002
52 CM Jariwala, ‘Changing Dimensions of Indian Environmental Law’, in P Leelakrishnan,
Law and Environment, 1992, p 1, at p 2.
53 Fora short and illuminating discussion, see SC Sastri, Environmental Law; 2004, pp 1-5.
Also see PS Jaswal and Nishtha Jaswal, Environmental Law, 1999, pp 4-8.
54 VD Vartak, ‘Sacred Groves—A Sanctuary for Lofty Trees and Lianas’, in Eco-development
of West of Western Ghats, Kerala Forest Research Institute, 1986, p 55, at p 58.
55 Ibid, p 55.
56 HD Battacharya, “Minor Religious Sects’, in RC Majumdar, Advanced History of India,
1968, vol II, p 473.

10
 Introduction

considered goddesses.” Rishis warned against deforestation and cutting of

trees as such acts would result in poor rainfall.”* Yagnas were performed in
vedic societies to purify the surrounding air.’ However, during the period
of Aryan civilisation, nature was exploited, and forests cleared for satisfying
the fast-expanding social needs. The concept of systematic management
of forests was envisaged by Kautilya, whereby, the quantum of punishment
for felling of trees was proportionate to the utility of the trees. This concept
of management of forests was conditioned by the need for promotion of
forest-based industries or crafts, and exploitation of forest wealth for making
household articles and for defense purposes.” Timber cut from the forest
was also exported.” While the holders of political power, like their
counterparts of the present, were concerned with the physical and worldly
comforts, the religious leaders and writers had a fundamentally positive
approach towards the protection of the environment.

PROVISIONS IN THE CONSTITUTION OF INDIA

Four years after the Stockholm Conference, the forty-second amendment”

to the Constitution of India introduced certain significant provisions relating
to environment. Under the new provisions enshrined in the Directive
Principles, which guide the state in moulding its laws, the state shall
endeavour to protect and improve the environment and to safeguard the
forest and wildlife of the country.“ Among the fundamental duties of the
citizens incorporated by the forty-second amendment, the duty to protect
the environment is significant. Every citizen has a fundamental ‘duty to
protect and improve the natural environment including forests, lakes, rivers
and wildlife and to have compassion for living creatures’. Forest, wildlife

57 VP Agarwala, Forest in India,1985, p 3.

58 Ibid, pp 26, 27.
59 Subhir K Bhatnagar, ‘Sanitary Environment: The Constitution and Judicial Approaches’,
in Paras Diwan, Environment Protection: Problems, Policy, Administration, Law, 1987,
p 447.
60 VP Agarwala, Forest in India, 1985, p 26.
61 Rama Jois, Seeds of Public Law in Ancient Indian Jurisprudence, 1992, pp 115, 116;
RP Kangle, The Kautilya Arthasastra Part I, 1972, stanza 17, s 35, ch 17, book 2,
Kupyadhyakasha, pp 129, 130. Also see Max Muller, The Sacred Books of the East, 1965,
vol XIV, part II, p 385.
al
62. Teakwood from Malabar has been found in ancient places in Babylonia. See Jawaharl
Nehru, Glimpses of World History, 1982, p 23.
into force with
63 The Constitution (Forty-second Amendment) Act 1976, which came
effect from 3 January 1977.
64 Constitution of India 1950, art 48A.
65 Ibid, art 51 (g).
11
 Environmental Law in India

and population control were subjects on which the states had exclusive
power to make laws, but now the Concurrent List enables both the Central
Government and the state governments to make laws on these areas.°° The
states already had the power to make laws on certain aspects of environmental
protection. Thus, public health and sanitation, agriculture, land and
fisheries within state territory are subjects on which only the states have
power to make a law.°” Water® also comes under the State List. Atomic
energy, oil fields and resources, mines, interstate rivers and valleys and
fishing in territorial waters are subjects related to environmental protection,
and are in the Union List and, therefore, subjects for union legislation.
Ancient monuments declared by Parliament to be of national importance,”
those not declared as such’ and archaeological sites not declared by
Parliament to be of national importance,” are areas where Parliament, the
state legislatures, and both Parliament and state legislature can enact
respectively. Nomadic tribes, social and economic planning, monopolies,
factories and electricity, which may have close connection with
environmental protection, are in the Concurrent List and are areas on which
both the Parliament and the state legislatures can make law.”* The need to
amend the Constitution by placing ‘environment protection’ as a specific
entry in the Concurrent List was canvassed by an expert committee,”
appointed by the Central Government, while the rationale for such a step
has been emphasised in the past by writers who have dealt with Indian
environmental law,” and environmental management in India.”
Parliament enacted the Water (Prevention and Control of Pollution) Act
1974” (Water Act), for the control of pollution of water at the request

66 Constitution of India 1950, seventh schedule, list III. The forest is mentioned in
entry 17A, wildlife in entry 17B and pollution control in entry 20A.
67 Ibid, list II, entries 6, 14, 18 and 21.
68 Ibid, list II, entry 17.
69 Ibid, list I, entries 6, 53, 54, 55, 56 and 57.
70 Ibid, list I, entry 67.
71 Ibid, list II, entry 12.
72. Ibid, list III, entry 40.
73 Ibid, list III, entries 15, 20, 21, 29, 36, 37 and 38.
74 A committee headed by ND Tiwari, appointed by the Department of Science and
Technology, Government of India, made the suggestion. See ‘Report of the Committee for
Recommending Legislative Measures and Administrative Machinery for Ensuring
Environmental Protection’, 1980, p 24. However, there was a dissent by Dr Nagendra
Singh of the committee, who asked for an entry under the Union List.
75 For earlier suggestion in this respect, see P Leelakrishnan, ‘Statutory Control of
Environmental Pollution’, Cochin University Law Review, 1979, p 141, at p 164.
76 TN Khoshoo, Environmental Priorities in India and Sustainable Development, 1986, p 208.
77 Act 6 of 1974. The Act was passed to restore the wholesomeness of water and for establishing
pollution control boards.

12
 Introduction

from states, under art 252 of the Constitution. Article 252 empowers
Parliament to enact on astate subject if two or more states make such a
request. Water being a state subject, the co-operative model of federal law-
making was felt necessary. The Air (Prevention and Control of Pollution)
Act 1981”° (Air Act), was passed by Parliament with a view to implementing
the decisions of the Stockholm Conference, which asked the member states
to take appropriate steps, among other things, for the preservation of quality
of air and control of air pollution. EPA” was enacted for a wider purpose of
protecting and improving the human environment, a goal laid down by
the Stockholm Conference. As mentioned in their respective preambles,
the Air Act and EPA were enacted by making use of the ‘external affairs’
clause of the Constitution for implementing the decisions made at
international fora.®° Similar to the Water Act, the Air Act is a mechanism
for co-operative federalism under which the states are given power to establish
state pollution control boards for regulation and control of pollution.”
The impact of EPA, which confers sweeping powers on the Central
Government to carry out its responsibilities as custodian of the environment,
requires detailed study.”

78 Act 14 of 1981.
79 Act 29 of 1986.
has the power to
80 Constitution of India 1950, art 253. Under this provision, Parliament
ion, or any
make any law for implementing any international treaty, agreement, or convent
body.
decision made at any international conference, association or other
81 See ch VI below.
82 See ch VII below.
13
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CHAPTER 2

Public Nuisance and Civil Remedies

The roots of environmental law can be found in the Common Law concept
of nuisance. The definition of pollution under the Water (Prevention and
Control of Pollution) Act 1974 (Water Act), establishes that contamination
of water can be said to be pollution, when it may or is likely to create a
nuisance.' Nuisance can be divided into two categories—private nuisance
and public nuisance. While private nuisance is interference with the use of
land, public nuisance denotes an interference with a right common to the
general public.” Although, both categories have substantial nexus with
environment management, the law of public nuisance has a predominant
connection with environmental law and is an effective remedy at the
grassroots. |

A DIFFERENT PERSPECTIVE

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

thereof free from air, water or noise pollution.’ This law enables an aggrieved
individual to challenge any act of pollution’ by moving a court under the
provisions of Code of Civil Procedure 1908 (CPC).’ In all cases where
environmental assaults amount to private nuisance, this provision can be
invoked. The court can give different kinds of remedies.°

See ch VI.
WH Rodgers Jr, Environmental Law, 1977, p 102; see also ch 1.
The Indian Easement Act 1882, s7 illusts (b)-(f) and (h).
Guhiram v Uday Chandra AIR 1963 Pat 455; Kailash Chand v Gudi AIR 1990 HP 17.
QOCode of Civil Procedure 1908, s 9. This provision empowers the court to try suits of civil
NHN
Wood
nature and reads: ‘The court shall...have jurisdiction to try all suits of a civil nature
excepting suits of which their cognisance is either expressly or impliedly barred’.
6 Relief in the form of damages, injunction, interim orders, declaration and decree.
 Environmental Law in India

Only when the harm is of such a nature, that it affects a lot of people,
does it attain the character of public nuisance, but the extent of harm may
not be ascertainable. Nor will it be easy for the court to quantify the damages
and apportion them. The court may also find the problem of standing as a
hurdle. To overcome such crisis, there are techniques tailored into our legal
system. One method is found in CPC,’ under which the Advocate General,
or with the leave® of the court, two or more persons, can institute a suit,
irrespective of whether special damage is caused to such persons. A suit
may be filed in case of a public nuisance or other wrongful acts affecting or
likely to affect the public.” The remedy may be either a declaration, or
injunction, or any other relief as may be appropriate in the circumstances
of the case. In the year 2004, the provision in CPC for suing for public
nuisance attracted the attention of the Madras High Court in Perumal
Naicker v Rathina Naicker.'® According to the court, the provision deals
with ‘public nuisance’, which is the combination of civil and criminal
characters. There could be both civil action and criminal prosecution.
‘Nuisance’ is an obstruction, risk or injury caused to any person. If the
same is caused in a public place it becomes ‘public nuisance’. The facts of
the case show that while constructing a building, the defendant encroached
upon the common pathway. The lower courts found that there was in
existence a pathway, which the defendant had encroached. The high court
issued mandatory injunction to the defendant to remove obstruction of
pathway. The nuisance action envisaged under s 91 of CPC does not prevent
an individual, personally affected, to file suit for declaration or injunction
merely because the nuisance also affects the public from freely making use
of the path for reaching important places such as school, river and
graveyard."
The provision in s 91 of CPC is a reservoir for class action’ against
environmental violations. However, it is not widely used. It is necessary to
develop this remedy as a potent weapon against ecological maladies that
spring up in the form of public nuisance. The procedure laid down in CPC

7 Code of Civil Procedure 1908, s 91.

8 Ibid. Earlier, it was with the leave of the Advocate General. However, if the members of a
class suffer some special damage, the action is maintainable even without the consent of
the Advocate General (See Faquirchand v Sooraj Singh AIR 1949 All 467). The 1976
amendment to Code of Civil Procedure 1908, made it possible for two or more persons to
sue with the consent of the court, instead of that of the Advocate General.
9 Ibid. The provision is not extended to wrongful acts other than public nuisance affecting
or likely to affect the public.
10 AIR 2004 Mad 492.
~ 11 AIR 2004 Mad 492, pp 493, 494.
12 Code of Civil Procedure 1908, O 1, r 8 is an amplification of the concept of class action
with the permission of the court.

16
 Public Nuisance and Civil Remedies

is to be followed when a representative suit is filed; notice by personal

service or by advertisement is to be given. The court has discretion to allow
impleading a party. The decree will be binding on all parties on whose
behalf or for whose benefit the suit is instituted. It is enough that the
persons, who sue, have the same interest in the suit. It is not necessary to
establish that such persons have the same cause of action as the persons on
whose behalf or for whose benefit they sue.
Another method was adopted in Bhopal litigation'> for overcoming the
difficulties of class actions, The Bhopal Gas Leak Disaster (Processing of
Claims) Act 1985" was passed by Parliament conferring on the Central
Government, the exclusive right to represent the claims of the victims in
parens patriae suits. This was done in order to secure that the claims arising
out of or connected with the disasters were dealt with ‘speedily, effectively,
equitably and to the best advantage of the claimants’. The Supreme Court
in Charan Lal Sahu v Union of India has upheld the validity of this
legislation.”°
The Indian Penal Code 1860 provides punishment for the offence of
committing a public nuisance. It states that:
...a person is guilty of a public nuisance who does any act or is guilty of
an illegal omission which causes any common injury, danger or annoyance
to the public or to the people in general who dwell or occupy property in
the vicinity, or which must necessarily cause injury, obstruction, danger
or annoyance to persons who may have occasion to use any public right. a
A negligent act resulting in an infection that is dangerous to life’” and the
acts of adulteration of food, drinks and drugs’® are offences inviting
punishment of a varying nature. Contaminating the water of a public spring
or reservoir to make it unfit for ordinary use,’” or poisoning the atmosphere
to the detriment of persons living in the neighbourhood or passing along a
public way” are punishable offences. Negligence in the use of poisonous

13. Union of India v Union Carbide Corporation (1986) 2 Comp LJ 169; Union Carbide
Corporation v Union ofIndia AIR 1990 SC 273; Charan Lal Sahu v Union ofIndia AIR
1990 SC 1480.
14 This Act came into force on 29 March 1985.
15 AIR 1990 SC 1480. See ch9 for the history of litigation culminating in a compromise
between the parties.
16 The Indian Penal Code 1860, s 268.
17 Ibid, ss 269, 270.
18 Ibid, ss 272 to 276.
19 Ibid, s 277.
20 Ibid, s 278.
7.
Exploring the Variety of Random
Documents with Different Content
such words of explanation were given. The prophets knew how the
Jews would understand them, and yet they let it go at that. Are we
to understand that God, through his prophets, deceived the Jews?
Surely not. The prophets foretold the return of the Jews from
captivity. The Jews would understand them to refer to their return
from Babylonian captivity. What then? Sound principles of exegesis
demand that these circumstances and conditions be taken into
consideration in the application of these prophecies. This the future-
kingdom advocates fail to do. But they tell us that some of the
promises in these prophecies concerning the return of the Jews from
captivity have not yet been fulfilled. But such an affirmation ignores
the conditionality of God’s promises. It is the same blunder that is
made by the advocates of the impossibility of apostasy. Even if it
could be shown that some things promised to the Jews on their
return to Palestine were never fulfilled, that would not prove that
they will yet be fulfilled. The human side must be taken into
consideration. Hear the Lord through Jeremiah: “Behold, as the clay
in the potter’s hand, so are ye in my hand, O house of Israel.... And
at what instant I shall speak concerning a nation, and concerning a
kingdom, to build and to plant it; if they do that which is evil in my
sight, that they obey not my voice, then I will repent of the good,
wherewith I said I would benefit them.” (Jer. 18:5-10.) This is God’s
warning to Israel, but it has no weight with the future- 38
kingdom advocates.

The Lord brought the Jews back from captivity and planted them in
their land. They would have had God’s choicest blessings had they
obeyed his voice; but they failed him, and plunged into the grossest
sins. This criminality culminated in their murdering the Son of God
and many of his saints. It was not the crimes of individuals here and
there, but the deliberate crimes of the nation. Death is the
punishment for deliberate murder. National murder demanded
national death. The Jewish nation suffered that death in the
destruction of Jerusalem.
When God sent his Son into the world, he did not send him to
reorganize the Jewish kingdom, but to open up a way of salvation
for sinners. He did not fail to accomplish what he was sent to do, as
the future-kingdom advocates claim. Hear his own words: “I glorified
thee on the earth, having accomplished the work which thou hast
given me to do.” (John 17:4.) That statement should settle a lot of
speculation about the rejected king and the postponed kingdom.

When Jesus comes again, he will not come to rebuild the temple in
Jerusalem, but to render judgment. (Matt. 25:31-46; 2 Thess. 1:6-
10.) His temple is here now. “Upon this rock I will build my church.”
(Matt. 16:18.) That church is his temple. “Know ye not that ye are a
temple of God, and that the Spirit of God dwelleth in you? If any
man destroyeth the temple of God, him shall God destroy; for the
temple of God is holy, and such are ye.” (1 Cor. 3:16, 17.) 39
“Being built upon the foundation of the apostles and prophets,
Christ Jesus himself being the chief corner stone; in whom each
several building, fitly framed together, groweth into a holy temple in
the Lord; in whom ye also are builded together for a habitation of
God in the Spirit.” (Eph. 2:20-22.) In the old material temple, animal
sacrifices and other material sacrifices were offered; in this new
spiritual temple, spiritual sacrifices are offered. “Ye also, as living
stones, are built up a spiritual house, to be a holy priesthood, to
offer up spiritual sacrifices, acceptable to God through Jesus Christ.”
(1 Pet. 2:5.) Can any one believe that we are to give up this glorious
spiritual temple for the old material temple? this spiritual worship for
the carnal ordinances of the material temple? If so, he has poor
taste for the spiritual.

The temple in Jerusalem was but a type, a shadow, of this glorious

spiritual temple. (Heb. 9:1-10.) This spiritual house is a “greater and
more perfect tabernacle.” (Heb. 9:11.) Now, we are gravely told that
in the millennium we will exchange this glorious spiritual temple for
the material temple with its animal sacrifices, give up the substance
for the shadow, give up the gospel of grace for the law of the
temple, which means the law of Moses. That temple, we are
informed, will be again sanctified by the blood of animals. Such
material conceptions as this whole future-kingdom idea suits very
well such materialists as the Russellites, but has no place in the
thinking of one who glories in the cross of Christ and in his blood-
bought church.

As a sample of the passages relied on to prove that the Jews 40

are yet to be restored to Palestine and their temple rebuilt,
read Ezek. 34:11-31; also chapters 37; 39:21-29, and to the close of
Ezekiel. Remember, as you read, that Ezekiel prophesied while he
and his nation were in captivity. In the temple of which Ezekiel
speaks there were to be all the offerings and ceremonies required by
the law of Moses. The blood of the animal sacrifices served the same
purposes as the law specified. The priests were of the tribe of Levi.
This cannot refer to the future, for no Jew now knows to what tribe
he belongs. With the blood of animals atonement was to be made
for the people. If a man can believe all this is yet future, he can
believe anything that suits his fancy; facts will be no barrier to
anything he wants to believe.

Pointed Paragraphs:

From Alabama comes this request: “Explain Ezek. 37, concerning the dry bones
and sticks. When did this take place?”

The children of Israel were then in captivity; from that captivity they were to be
delivered. (See verses 21, 22.) The dry bones coming to life represented their
return from captivity. Their return would be as if they were coming alive from
the dead. Their captivity was their burial; their return would be as if they were
coming from their graves. They had been divided into two kingdoms. Joining the
two sticks into one stick represented the joining of the two peoples into one
nation after their return. Their return is told in Ezra and Nehemiah. After that
return they were one people. And they would have had a glorious kingdom had
they obeyed Jehovah. The prophecies of the Old Testament concerning the fate
of the Jews in their disobedience are being fulfilled all down the ages.

41
 PROPHECY OF AMOS 9:13-15
Has the prophecy in Amos 9:13-15 been fulfilled?—Mrs. X, Detroit.

Amos 9:13-15: “Behold, the days come, saith Jehovah, that the
plowman shall overtake the reaper, and the treader of grapes him
that soweth seed; and the mountains shall drop sweet wine, and all
the hills shall melt. And I will bring back the captivity of my people
Israel, and they shall build the waste cities, and inhabit them; and
they shall plant vineyards, and drink the wine thereof; they shall
make gardens, and eat the fruit of them. And I will plant them upon
their land, and they shall no more be plucked up out of their land,
which I have given them, saith Jehovah thy God.”

Amos had gone from his home at Tekoa to Bethel to prophesy

against the kingdom of Israel, which had become very corrupt, and
to warn the people of their coming doom. (Amos 1:1; 7:7-17.) They
were to be sifted, scattered, among the nations. As Amos was
speaking of their captivity, which they later suffered, it seems
reasonable to conclude that the verses in question referred to their
return from that captivity. All who wanted to return from that
captivity to their own land had abundant opportunity. There is no
evidence that the Jews will again be carried out of their own land
into captivity, so as to be brought out of captivity in the future. All
the prophecies that speak of a return of the Jews out of captivity
have been fulfilled. One thing is sure: they are not now in 42
captivity; therefore, they could not now be brought out of
captivity, unless again carried into captivity.

Pointed Paragraphs:

ALL THINGS THAT PERTAIN

“Seeing that his divine power hath granted unto us all things that pertain unto
life and godliness, through the knowledge of him that called us by his own glory
and virtue.” (2 Pet. 1:3.) We are in the habit of saying that God has given us in
the gospel everything that is essential to life and godliness; but Peter goes a
little farther than that and affirms that God has given us all things that pertain
to life and godliness. There is a difference. To illustrate: There are certain things
that are essential to an automobile; and there are other things that pertain to
an automobile; but are not essential to it. When you have all things that are
essential to an automobile, you can go to a supply house and purchase a lot of
extras that pertain to an automobile. But suppose you have all the essentials of
an automobile, and then you add all the things that pertain to an automobile,
nothing else could be added that would make it any more complete. God has
not only given us all things that are essential to life and godliness, but he has
given us all things that pertain to life and godliness.

But do religious people believe it? If so, why all these flummeries that God has
said nothing about? If you will read the verse again, you will notice that he has
given us all these things through the knowledge of Christ. The knowledge of
Christ means the knowledge that has been revealed about him—the gospel of
Christ. Hence, through the gospel God has not only given us all things that are
essential to life and godliness, but all things that pertain to life and godliness. If
there is, therefore, anything in your religion that did not come to you through
the gospel, it does not so much as pertain to life and godliness. Is it not time to
check up on our religion and see if we have anything that we cannot find in the
New Testament? Any person of intelligence can do that for himself.

43
 MATTHEW 16:28 EXPLAINED
Please explain Matt. 16:28. I have to contend with the Boll theory. What I want
to know is how the disciples were to “see” the Son of man coming in his
kingdom.—W. C. Anderson.

Matthew 16:28.

“Verily I say unto you, There are some of them that stand here, who
shall in no wise taste of death, till they see the Son of man coming
in his kingdom.”

In this verse it is stated that some would taste of death—some of

them would see the Son of man coming in his kingdom. Taste and
see—are these terms used literally? A little study of both words will
help. “Oh taste and see that Jehovah is good.” (Ps. 34:8.) “Sweet are
thy words unto my taste.” (Ps. 119:103.) “Tasted of the heavenly
gift”; “tasted the good word of God.” (Heb. 6:4, 5.) If you make see
represent the actual functioning of one of the five senses, why not
make taste do the same? No man actually tastes death as he tastes
food. The future-kingdom folks stress giving words their literal
meaning, but even they will not say that a man tastes Jehovah, his
word, or death, as he tastes food. So also the word see has a variety
of meanings, or uses. To see often means to know. “Taste and see
(know) that Jehovah is good.” To see often means to experience. We
see joy and we see a good time; we see trouble and sorrow. Taste
death—experience death, or suffer death. The parallel passages,
Mark 9:1 and Luke 9:27, say: “Verily I say unto you, There are 44
some of them that stand by, who shall in no wise taste of
death, till they see the kingdom of God come with power.” “But I tell
you of a truth, There are some of them that stand here, who shall in
no wise taste of death till they see the kingdom of God.” To see the
Son of man coming in his kingdom and to see the kingdom of God
come with power and to see the kingdom of God are different
expressions of the same idea. When the kingdom of God came with
power, it was Christ coming in his kingdom. Just as certain as some
of those standing by would die before the kingdom came, or the Son
of man came in his kingdom, just that certain some would live till
that event occurred. Ye—those standing by, not those of some future
date—shall see the Son of man coming in his kingdom, or see the
kingdom of God come with power, and they would see it before they
died. The future-kingdom folks do not see that part of what Jesus
said; they see only “see the Son of man coming in his kingdom.” And
yet no man literally sees a kingdom, as he sees a material object; for
the “kingdom of God cometh not with observation”—that is, not in
such a manner that it can be watched with the eyes; i. e., in a visible
manner. (Luke 17:20.) Jesus made that statement in answer to the
Pharisees’ question as to when the kingdom of God would come.
Hence, some of the disciples to whom Jesus was talking would see
Jesus coming in his kingdom; yet they would not see with their eyes.
Jesus himself declared that his kingdom would not come in that
manner.

The future-kingdom folks put stress on the statement: “They shall

see the Son of man coming on the clouds of heaven with 45
power and great glory.” But notice the change in pronouns
—“ye shall see,” “they shall see.” They tell us that this coming on the
clouds will be when he comes in his kingdom. They also tell us that
when he thus comes the wicked dead will not see him, for they will
not be raised till the end of a thousand years. But there is a hitch in
that. Certainly the high priest who condemned Jesus to death
belongs in the class of the wicked dead yet Jesus said to him and to
the court: “Ye shall see the Son of man sitting at the right hand of
Power, and coming on the clouds of heaven.” Notice the word
henceforth—from now on. Notice, too that this wicked court was
henceforth to see the Son of man sitting on the right hand of power.
No man sees him sitting with his natural eye. The word see here has
two objects, sitting and coming; or, rather, the same persons shall
see Jesus sitting and coming. Even a child should be able to see that
the word see could not here mean a mental conception as to one of
its objects and an actual seeing with the eyes as to the other object.
A word may have several meanings, but it cannot have two
meanings at one and the same time. As some of the disciples then
living were to see Jesus coming in his kingdom and the Sanhedrin
were to see him sitting on the right hand of power, the Lord came in
his kingdom during the lifetime of these people.

Pointed Paragraphs:

The apostles were practical men. Some were fishermen; one, a tax collector.
Both callings teach a person not to believe all he hears.

46
 MATTHEW 19:28; 25:31; LUKE 22:28-30; 1
COR. 6:2 EXPLAINED
Matthew 19:28; 25:31; Luke 22:28-30; 1 Cor. 6:2, 3. Please explain
—Owen W. Smith.

1. Matt. 19:28: “And Jesus said unto them, Verily I say unto you,
that ye who have followed me, in the regeneration when the Son of
Man shall sit on the throne of his glory, ye shall also sit upon twelve
thrones, judging the twelve tribes of Israel.” Read the context. The
rich young man had refused to follow Jesus. Peter said: “We have
left all, and followed thee; what then shall we have?” The reply of
Jesus does not mean that they had followed him in the regeneration,
for Jesus had passed through no regeneration. Luke says they had
followed him in his temptation. Jesus was telling his apostles what
they would have in the regeneration. The regeneration is that period
of time in which people are being regenerated. The other passage in
which the word “regeneration” occurs shows that people are being
regenerated in this dispensation. (Tit. 3:5.) But it was during this
time of regeneration that Christ was to sit on the throne of his glory
and the apostles were to sit on thrones. Hence, both Jesus and his
apostles are now on their thrones, for all were to sit on thrones at
the same time. On Pentecost, Peter declared that God had raised up
Jesus to sit on David’s throne and had made him both Lord and
Christ. (Acts 2:30-36.) Jesus himself declared that all authority had
been given to him. Those who say that he has all authority, 47
but is not exercising it, overlook the therefore in the next
verse. Suppose Jesus had expressed that idea, it would have read
something like this: “All authority has been given me, but I am not
exercising it; and because I am not exercising it, go into all the
world and make disciples of all the nations.” The command was
based on his having all authority. Some have overlooked the
therefore. As Jesus is on his throne, so are the apostles on their
thrones. But how are they judging? McGarvey says on this point:

This statement of Paul that “the saints shall judge the world” (1 Cor. 6:2) has
led many to suppose that the judging here mentioned is to take place at the
final judgment. But clearly the judging and the sitting on the thrones are
declared to be contemporaneous with the regeneration and with Christ’s sitting
on his throne; and, therefore, they must be regarded as now in progress. If we
are correct in this, of which we entertain no doubt, the judging consists in
pronouncing decisions on questions of faith and practice in the earthly kingdom,
and the twelve are figuratively represented as sitting on thrones, because they
are acting as judges. During their personal ministry they judged in person; since
then they judge through their writings. True, we have written communications
from only part of them, but judgments pronounced by one of a bench of judges
with the known approval of all are the judgments of the entire bench.

On the twelve tribes he remarks:

The apostles have sustained no such relation to the twelve tribes of Israel,
literally so called, as the text indicates, nor is there any intimation in the
Scriptures that they ever will. Their work is with the true Israel, and not with
Israel according to the flesh; consequently, we are to construe the terms
metaphorically, the twelve tribes representing the church of God of which they
were a type.

In judging, the apostles declare who is free from guilt and who is
condemned. This is made plain in John 20:23: “Whose soever sins
ye forgive, they are forgiven unto them; whose soever sins ye 48
retain, they are retained.”

2. Matt. 25:31: “But when the Son of man shall come in his glory,
and all the angels with him, then shall he sit on the throne of his
glory.” This verse is incomplete, and is really explained by the rest of
the chapter. He shall sit on the throne of judgment, and before him
will be gathered all nations for judgment; but the people will be
judged as individuals and not as nations. It is not a judgment of
nations, or governments, as has sometimes been said. Even a little
attention to the gender of the Greek words of the passage will show
how ill-founded is that assumption. “Nations” is neuter in the Greek;
it cannot, therefore, be the antecedent of them in verse 32, for it is
masculine. And so is ye blessed in verse 34, and ye cursed in verse
41. Both these and the righteous in verse 46 are masculine. It is,
therefore, not a judgment of nations, as such, but of the people. The
passage is in perfect harmony with 2 Thess. 1:6-10. Here he comes
to take vengeance on the wicked and to be glorified in his saints. It
is, therefore, the judgment at the last day.

3. Luke 22:28-30: “But ye are they that have continued with me in

my temptations; and I appoint unto you a kingdom, even as my
Father appointed unto me, that ye may eat and drink at my table in
my kingdom; and ye shall sit on thrones judging the twelve tribes of
Israel.” Read the context. They had just eaten the Passover and the
Lord’s Supper. A contention had arisen between the disciples as to
who would be accounted the greatest; and Jesus had told them that
there was to be no one among them exercising lordship over 49
the others, but that service would be the thing that counted.
The apostles had faithfully followed him in his temptation; he would,
therefore, appoint them a kingdom, and they would eat and drink at
his table in his kingdom. On account of the fact that they had just
eaten the Lord’s Supper we naturally associate the Lord’s table with
the Lord’s Supper. They, therefore, would eat the Lord’s Supper in
his kingdom. But the Lord’s Supper will not be eaten after he comes
again. But as they were to eat it in his kingdom, it is certain that
they ate it in his kingdom while they lived. The kingdom now in
existence is, therefore, the kingdom he appointed them. In Luke
12:32, Jesus said: “Fear not little flock; for it is your Father’s good
pleasure to give you the kingdom.” The Father was to give this
kingdom to the “little flock.” This cannot mean that he will give his
kingdom to his followers at the end of this dispensation, when the
little flock shall have swelled into “a great multitude, which no man
could number, out of every nation and of all tribes and peoples and
tongues.” (Rev. 7:9.) No; it was to be given to a little flock and not
to a numberless host, and the language clearly shows that it was to
be given to those who were then present. And that was the kingdom
which he appointed to them, and in which they sit on twelve thrones
judging the twelve tribes of Israel. On this last point, see comments
above on Matt. 19:28.

4. 1 Cor. 6:2, 3: “Or know ye not that the saints shall judge the
world? and if the world is judged by you, are ye unworthy to judge
the smallest matters? Know ye not that ye shall judge angels? how
much more, things that pertain to this life?”

Commentators have had no end of trouble over these verses, 50

and there is little agreement among them. In some sense
saints judge the world and angels, but how? and when? It is a
hazardous and foolish thing to build a theory on a difficult passage,
especially when little, if any, light on the point can be gained from
other Scriptures. But it does not seem possible that Christians will be
judges in the last day, when all shall be judged. From Matt. 25:31-46
we learn that the righteous will be judged along with the wicked.
Saints will not then occupy judgment thrones, but will be gathered
before the judgment throne. They cannot be judges while being
judged. After that they cannot judge the world, for the world will
already have been judged. And there is no Scripture that teaches
that the heavenly angels will then be judged by any one. But the
gospel is God’s law, and every time it is preached sinners are judged
as guilty, as are also the devil and his angels. And saints have this
same law by which to judge among themselves. These are facts,
whether the passage in question has that meaning or not. This view
has the merit of not being out of harmony with the general teaching
of the New Testament. But let us be sure not to build a theory on a
difficult passage of Scripture, nor use it in support of a theory. We
might be found wresting the Scripture to our own destruction.

51
QUESTIONS ABOUT THE JEWS, THE KINGDOM
AND SALVATION
Tell me: When, or how, did Christ offer the Jews the kingdom? What
passage, or passages, or teaching as a whole do you think the
earth-kingdom advocates rely on to prove the statement that the
kingdom was offered the Jews?

Was the kingdom offered the Jews in any sense that salvation was
not offered them?

Did they reject the kingdom in any sense they did not reject
salvation?

If the kingdom was offered the Jews, and they rejected it, and the
Lord for that reason postponed the kingdom, why is it he did not
also postpone the salvation offered?—X

Perhaps I might as well answer the foregoing questions as a whole

as to answer each one separately. The querist has been doing some
close thinking, and his questions open up a field for some profitable
investigation.

The querist evidently refers to the Jews as a nation, and not as

individuals. It is claimed by the kingdom speculators that Jesus
offered the kingdom to the Jewish nation on condition that the rulers
and people alike repent, but the assertion is not backed up by any
definite proof. The advocates of that notion arrive at such a
conclusion by assumptions and deductions. They assume that 52
the prophets foretold the restoration of the old kingdom of
Israel, a kingdom that was born in rebellion against God and in
rejection of him as King! They assume that Jesus offered the
kingdom to the Jews as a nation, but they gave no proof that Jesus
offered that kingdom or anything else to a national Israel. But as
such a kingdom did not come into being, they conclude that both
the king and his kingdom were rejected. Matt. 3:2 is quoted in this
connection, but they do not show how that Scripture proves their
contention. John was preaching to individuals, and not to the nation
as such. The fact is that he never did go and preach to the rulers,
nor did they come to him. They did send a committee to inquire into
his work.

I see no way to separate the kingdom from salvation, nor can I see
how one can exist apart from the other. Of course the old kingdom
had citizens who were not in a saved state, but I do not see how
that could be true of the kingdom of Christ. However, we are told
that only Jews who are born again will be citizens of the kingdom
which they suppose Christ will set up when he comes again. In that
respect, as well as in many others, this supposed kingdom will not
be like the old kingdom.

That the future-kingdom advocates realize they have no certain

proof of their rejection and postponement theory is shown by the
fact that they do not agree on any certain Scripture, nor as to the
time of this supposed rejection and postponement. John R. Rice puts
it in the tenth chapter of Matthew; Scofield, in the eleventh; R. H.
Boll, in the twelfth. John R. Rice says the kingdom at hand was
never preached after the tenth chapter; the offer was then 53
withdrawn. He should have read what Jesus a year later
instructed the seventy to preach. (Luke 10:11.) In a note on Matt.
11:20-24 Scofield says: “The kingdom of heaven announced ‘at
hand’ by John the Baptist, by the King himself, and by the twelve,
and attended by mighty works, has been morally rejected. The
places chosen for the testing of the nation—Chorazin, Bethsaida, etc.
—having rejected both John and Jesus, the rejected King now
speaks of judgment. The final official rejection is later. (Matt. 27:31-
37).” On verses 28-30 he says: “The new message of Jesus. The
rejected King now turns from the rejecting nation and offers not the
kingdom, but rest and service to such in the nation as are conscious
of need. It is a pivotal point in the ministry of Jesus.” R. H. Boll says:
“In chapter twelve the antagonism of the Pharisees, stirred to its
height by his Sabbath healing, came to a terrible climax: they went
out and took counsel against him how they might destroy him.
(12:14.) This was a great turning point.” As they find no Scripture
which says what they claim, they depend on assumptions and
deductions, and their deductions do not agree.

A PROPOSITION: The gospel plan of salvation is the scheme of

redemption foretold in promise and prophecy.

54
 SOME QUESTIONS CONSIDERED
A brother has presented to me a few questions for my consideration.
The questions are about matters that are being much agitated these
days. The first question indicates that somebody thinks the Lord
refused some people the privilege of believing, lest he might get
more followers on his hands than he needed for future rulers! But to
the questions:

1. “Was there ever a time when God refused any one the privilege to
believe in Christ, as indicated in John 12:39, 40? If so, has he
revealed the purpose thereof?”

The passage mentioned says: “For this cause they could not believe,
for that Isaiah said again, He hath blinded their eyes, and he
hardened their heart; lest they should see with their eyes, and
perceive with their heart, and should turn, and I should heal them.”
The quotation is from Isa. 6:10. In Isaiah’s day the people of Judah
had become very corrupt, and were growing worse. To these people
Jehovah said: “Ah sinful nation, a people laden with iniquity, a seed
of evil-doers, children that deal corruptly! they have forsaken
Jehovah, they have despised the Holy One of Israel, they are
estranged and gone backward.” (Isa 1:4.) They had reached the
point where they were utterly unfit to manage their own affairs of
government. The great majority were beyond the hope of
reformation. They would not even consider Jehovah, and were more
senseless as to their own good than the ox or the ass. “The ox 55
knoweth his owner, and the ass his master’s crib; but Israel
doth not know, my people doth not consider.” (Verse 3.) When
people reach that stage, there is nothing to do but to hasten them
on to their doom. Hence, Jehovah said to Isaiah when he sent him
to prophesy to the people of Judah: “Make the heart of this people
fat, and make their ears heavy, and shut their eyes; lest they see
with their eyes, and hear with their ears, and understand with their
heart, and turn again, and be healed.” (Isa. 6:10.) Isaiah could do
this only by his teachings and warnings. They were so determined in
their rebellion that the more Isaiah warned them, the harder their
hearts became. Their sinfulness resulted in the Babylonian captivity.
The Jews had again become so sinful that a worse calamity was
soon to come upon them. The leaders rejected the preaching of
John and dogged the steps of Jesus every move he made. They
were so rebellious that the miracles and teaching of Jesus hardened
their hearts instead of converting them. There was no direct
operation on their hearts to keep them from believing. The things
that made believers of some hardened the hearts of others. The
Lord never did keep any honest heart from believing. The prophecy
quoted in John 12:39, 40 is quoted by the Savior in Matt. 13:14, 15
in such a way as to show that the people were responsible for their
hardness of heart. When people will not believe the truth, God sends
them strong delusions that they may believe a lie and be damned.
(See 2 Thess. 2:8-12.) The reason there are so many fool notions
believed now is because people will not believe the truth. God will
have all men to be saved, but they will not.

2. “Did the crucifixion of Christ depend upon the Jews’ 56

rejection of him?”

Jesus came at a time when everything was ready for the working out
of God’s plans. “But when the fulness of the time came, God sent
forth his Son, born of a woman, born under the Law.” (Gal. 4:4).
God was not experimenting to see if his plans would work out. He
knew what would be done, and was not bothering his mind as to
what he would have to do about it, if the Jews did not reject and
crucify Jesus, for he knew what they would do. Then why should I
worry my mind about it? I cannot entertain an idea that implies that
God did not know enough to know when to send his Son, or that he
did not know what would happen when he did send him. Why
people raise such questions is a puzzle, for no one can do anything
about it, no matter what might or might not have happened.
3. “Did God anticipate their acceptance universally?”

Suppose he did or did not, what can we do about it? People raise
questions that, in various ways, reflect on God. Being the all-wise
God, he knew that the Jews would not all accept Jesus as the
Messiah, the Son of God. Jesus himself said that only a few would
find the narrow way. Paul showed that the prophets taught that only
a remnant of Israel would be saved. (See Rom. 10:16-21; 11:1-10.)
But what gives rise to such questions? It grows out of the new
speculation that Jesus came to establish an earthly kingdom, or
rather to restore the kingdom of Israel, but failed in his purpose
because the Jews rejected him. God knew the Jews would 57
crucify Jesus. (See Acts 2:23; 4:27, 28; 13:27.)

4. “If they had, would he have set up an earthly kingdom?”

There is not the least indication that God did not accomplish what he
intended to accomplish by sending his Son into the world, nor that
the kingdom he set up was not what he intended to set up. On the
other hand, there is plenty of evidence that he inaugurated the very
system he had in mind, and which he had foretold through the
prophets. To say that his plans did not work out as he intended is
equal to saying that the things he foretold through the prophets
turned out to be false. If it be replied that the prophets said nothing
about what some call “the church age,” it only shows that some
people have read the Scriptures with little profit. The evidence is
abundant that the apostles and other inspired preachers and writers
taught that Christianity, or the gospel plan of salvation, is exactly
what the prophets foretold. On Pentecost, Peter referred to certain
prophecies as fulfilled on that day. Again: “Yea and all the prophets
from Samuel and them that followed after, as many as have spoken,
they also told of these days.” (Acts 3:24.) In preaching the gospel of
Christ, Paul said nothing but what the prophets and Moses did say
should come. (Acts 26:22.) Paul also affirms that the gospel which
he preached God had “promised afore through his holy prophets in
the holy scriptures.” (Rom. 1:2.) But why offer more proof? The
apostles knew what they were talking about, or rather the Holy
Spirit, who spoke through them, knew. Yet the future-kingdom
advocates generally contend that the Old Testament 58
prophecies center in an earthly kingdom, and say nothing
about Christianity as revealed through the apostles. One writer said:
“But the Old Testament knows nothing whatever of Christianity.”
Ponder this question: If God did not set up the kingdom which they
say the prophets foretold, but instead gave them something the
prophets said nothing about, is it any wonder that the Jews rejected
it? The wonder would be that any of them accepted it.

Pointed Paragraphs:

Notice the prayer of Asa; notice other prayers in the Bible. With the exception of
Solomon’s prayer at the dedication of the temple and the prayer of Jesus on the
night of his betrayal, all are very short. Notice the manner in which they
addressed Jehovah. No endearing terms are used, but terms expressive of
reverence for the power and majesty of God. Such expressions as “our dear
heavenly Father” are not found in the Bible. Such expressions should have no
place in our prayers today. Christians need to know how to pray, and a study of
the prayers of the Bible will help us to pray as we ought.

“Again I say unto you, that if two of you shall agree on earth as touching
anything that they shall ask, it shall be done for them of my Father who is in
heaven.” (Matt. 18:19.) Here it is supposed that they agree on what to ask for
before they pray. Would it not be a good thing for a group of worshippers to
know what they are going to pray for, rather than for someone to lead out in a
long, rambling prayer that is supposed to be appropriate to all occasions, and is,
therefore, never appropriate to any occasion? Delivering an oration to the Lord,
under pretense of praying, is not praying at all.

59
 THE OLIVE TREE FIGURE OF ROM. 11
I wish you would give an explanation of Rom. 11. The part that I am the most
interested in is the figure of the olive tree. Is there anything in this chapter, or in
any other, that teaches that the Jews as a nation will ever accept Christ?—
Oklahoma.

We cannot at present give space to a discussion of the entire

chapter. The verses containing the olive-tree illustration read as
follows:

But if some of the branches were broken off, and thou, being a wild olive, wast
grafted in among them, and didst become partaker with them of the root of the
fatness of the olive tree; glory not over the branches: but if thou gloriest, it is
not thou that barest the root, but the root thee. Thou wilt say then, Branches
were broken off, that I might be grafted in. Well; by their unbelief they were
broken off, and thou standest by thy faith. Be not high-minded, but fear: for if
God spared not the natural branches, neither will he spare thee. Behold then the
goodness and severity of God: toward them that fell, severity; but toward thee,
God’s goodness, if thou continue in his goodness: otherwise thou shalt be cut
off. And they also, if they continue not in their unbelief, shall be grafted in: for
God is able to graft them in again. For if thou wast cut out of that which is by
nature a wild olive tree, and wast grafted contrary to nature into a good olive
tree; how much more shall these, which are the natural branches, be grafted
into their own olive tree? (Rom. 11:17-24.)

Care should be used in dealing with another man’s illustrations and

figures of speech. The language quoted is an illustration of God’s
dealings with Jews and Gentiles. Because of unbelief the Jews had
been severed from God’s favor; by faith the Gentiles had been
brought into union with God. Neither Jew nor Gentile has any special
favors from God; the standing of each depends on their faith. That is
the point Paul is making, and to make his illustration do 60
service beyond the point illustrated is to do violence to his
language.
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