Contemporary Developments MODULE - VIIA

Environmental Law and

Sustainable Development
“Every citizen has a fundamental right to have the enjoyment of quality
of life and living as contemplated in Art. 21 of the Constitution of India.”

Justice K. N. Singh in Subhash Kumar case observed:

“Right to live……...includes the right to enjoyment of pollution free

water and air for full enjoyment of life.”

The decisions of the Courts have widened the scope of the right to life by reading Notes
into it, the right to a clean environment. Thus, Courts in India have lived up
to the needs of the time and have made significant contributions in evolving new
principles and remedies.

INTEXT QUESTIONS 27.5

1. Whether expanding the dimensions of Article 21 of the Constitution can be
termed as an example of ‘judicial activism’?
2. Whether Article-32 of the Constitution of India can be used by approaching
the Supreme Court in case of violation of the right to clean environment?
3. Identify the nature of liability of an industry engaged in inherently dangerous
and hazardous activity towards the victim of pollution caused by it?
4. Whether right to clean environment is a fundamental right specifically given
by the Constitution of India?

27.6 ROLE OF PUBLIC INTEREST LITIGATION (PIL)

Contrary to the past practices (strictly as per the locus standi principle) wherein,
only a person himself/herself, being aggrieved, could have come knocking the
doors of the courts, today a person acting bona fide and having sufficient interest
can move the courts for redressing public injury, enforcing public duty or for
protecting social and collective rights and interests. This is known as the dilution
of the principle of locus standi. The ability to invoke the jurisdiction of the
Supreme Court and the High Courts under Articles 32 and 226 of the
Constitution of India is a remarkable step forward in providing protection for
the environment. Courts have widened the dimensions of the substantive rights
to health and a clean and unpolluted environment. In most cases, this progress
was made with aid of PIL. The courts by allowing a case to be filed as PIL
have shown that the procedure cannot come in the way of ensuring that the
justice is done. In Tarun Bhagat Sangh Alwar v. Union of India, a social
action group challenged the legality of granting a mining license in the protected
area of a forest. Upholding the contention, the Supreme Court observed;

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“This litigation should not be treated as the usual adversarial litigation.
Petitioners are aid of a purpose high on the national agenda. Petitioners
concern for the environment, ecology and the wildlife should be shared
by the Government”
The observation of the Court is important as it emphasises the rationale of PIL
in environmental issues. Any person who raises an environmental issue, whether
Notes individual, group or institution is equally concerned with the problem as is the
State. Such litigation can never be considered as one of adversarial confrontation
with the State. In the 1984 case of ‘Bandhua Mukti Morcha v. Union of India’,
Justice P. N. Bhagwati stated that if a person was physically or economically
unable to approach the Court, he/she “may move the Court even by just writing
a letter,” because the legal system would otherwise be inaccessible to some of
its citizens.
The range of issues in PILs has been very broad. It extends from compassion
to animals and privileges of tribal people and fishermen, to the eco-system of
the Himalayas and forests, eco-tourism, land use patterns and problems facing
a village due to ecological damage. The cause of environment has been taken
up before courts through PIL by a wide spectrum of people in society. Lawyers,
association of lawyers, environmentalists, groups and centres dedicated to
environment protection and forest conservation, welfare forums, consumer
research centres have successfully agitated environmental issues before Courts.

INTEXT QUESTIONS 27.6

1. Whether PIL is an example of the dilution of the strict principle of ‘locus
standi’?
2. Who can file a PIL?
3. What are the kinds of issues that can be raised in a PIL?
4. What do you understand by an Adversarial System of Justice Delivery?

27.7 TECHNIQUES OF ISSUING DIRECTIONS

The powers of the Supreme Court to issue directions under Article-32 and that
of the High Courts to issue directions under Article-226 have attained great
significance in environmental litigation. There are several such directions which
have resulted as milestones in the path of environmental protection.
1. Evolution of doctrines in environmental jurisprudence
The formulation of certain principles to develop a better regime for protecting
the environment is a remarkable achievement of PILs. In ‘M. C. Mehta v.
Union of India’, the Supreme Court formulated the doctrine of ‘absolute

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liability’ for harm caused by hazardous and inherently dangerous industries. Sustainable Development
In Sludge’s case (‘Indian Council for Enviro- Legal Action v. Union of
India’, when the people in a village suffering from lethal waste left behind
by a group of chemical industries were asked to be given the compensation
by such industries by the Supreme Court, the Court applied the ‘Polluter’s
Pay Principle’.
The ‘Precautionary Principle’ came to be directly applied in M. C. Mehta
v. Union of India, for protecting the Taj Mahal in Agra from air pollution. Notes
Expert studies proved that emissions from coke/coal based industries in the
vicinity of Taj Mahal had damaging effect on Taj Mahal. The Supreme Court
ordered that the potential polluters had to change over to natural gas as an
industrial fuel and those that were not in a position to obtain gas connections-
for any reason-should stop functioning in the vicinity of Taj Mahal and
relocate themselves in alternative plots outside the demarcated area within
a stipulated time.
The Supreme Court has also applied the principle of ‘Sustainable Development’
in several cases to balance the developmental concerns with the ecological
balance. The Rural Litigation and Entitlement Kendra v. State of U.P.
can be cited as an example here.
2. Protection of Social Environment
The rights to livelihood and clean environment are of grave concern to the
courts whenever they issue a direction in an environmental case. Labourers
engaged in the asbestos industry were declared to be entitled to medical
benefits and compensation for health hazards which were detected after
retirement by the Honourable Supreme Court in ‘CERC v. Union of India’.
3. Filling gaps in law and lacunae in administration
In most cases courts have issued directions to remind Government authorities
of their responsibility to protect the environment. Thus, directions were
given to local bodies, especially municipal authorities, to remove garbage
and waste and clean towns and cities.
4. Environmental awareness and education
The directives of the Supreme Court went to the extent of spreading
environmental awareness and literacy as well as the launching of environmental
education not only at the school level, but also at the college level. In M.
C. Mehta v. Union of India, the Supreme Court emphasised the need for
the awareness of environmental protection. The Court also required every
State Government and Education Boards to take steps for environmental
education.
Thus, it is clear from the above discussion that the PIL has played a very
important role in the field of environment protection by empowering the
courts in India to do whatever it can for this noble cause.

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INTEXT QUESTIONS 27.7

1. What do you mean by EPCA?
2. What do you mean by CNG?
3. What kind of pollution will be caused by vehicles?
Notes 4. What kind of pollution will be caused by industries putting their industrial
waste into rivers?

27.8 LEADING JUDGEMENTS TO PROTECT

ENVIRONMENT
We saw how ‘judicial activism’ has contributed immensely to the field of
environmental protection. There are hundreds of such judgements which have
collectively contributed to this cause, yet some of these judgements can be
specifically highlighted which have considerably impacted the field of
environmental protection. Most of these landmark judgements have also come
through the means of Public Interest Litigation (PIL). From making the polluter
to compensate for the pollution caused by it to declaring the concept of absolute
liability for industries involved in inherently dangerous or hazardous activities,
from forest preservation to initiatives for addressing the lack of civic amenities,
from pollution of river Ganga to the kind of air people breath in Delhi, from
directing the closure of mining operations posing environmental risk to
protecting Taj Mahal from losing its shine because of air pollution; all these
issues have been taken up by the courts in India to promote the objective of
a clean and healthy environment. Some of such landmark cases include-

1. The Delhi Vehicular Pollution Case

The PIL was filed by M.C. Mehta, an established environmental activist and
lawyer, in 1985. It is a citizen standing case. Mehta expressed his concern about
the alarming rise in the levels of air pollutants and suspended particulate matters
in the atmosphere over the city of New Delhi and the surrounding region. The
result was pollution-related illnesses that included tuberculosis, asthma, and
bronchitis and lung cancer. Mehta argued that the respondents, the Union of
India and Delhi Administration and the DTC had acted against the common law
of India and the environmental legislation. He claimed that he and Delhi residents
had a right to live in a clean environment and this right had been breached by
the respondents. He prayed that the Court would make an order against the
respondents to take action to stop those vehicles that were emitting noxious
gases.

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The case was filed in 1985 but no action was taken until 1990. Thereafter, a Sustainable Development
series of directions were passed by the Supreme Court. There was progress,
albeit slow. From 1990 to 1992 the Court ordered periodic vehicle emission
checks, particularly focusing on public buses, with the power to cancel the
registration certificates of faulty vehicles. As the litigation progressed, the Court
responded by directing the authorities to introduce and use unleaded fuel in a
three-phased manner, starting in Delhi and encompassing all India by 2001;
converting Government vehicles to compressed natural gas; ensuring two- and Notes
three-wheeler vehicles had catalytic converters and compressed gas or unleaded
fuel; and that a body be established to oversee the implementation of the Court’s
orders.
In January 1998, the Supreme Court endorsed the Central Government’s
proposal to create an expert authority, to be known as the Environment Pollution
(Prevention and Control) Authority (EPCA).
However, in July 1998, the Court passed an ‘historic’ order which became the
public battleground for the various stakeholders over an issue which claims more
victims than the terrorists’ guns. It included the phasing out of all commercial
vehicles and taxis which were more than 15 years old as of October 1998; a
ban on the supply of 2T oils at petrol stations by December 1998; the increase
of public transport to 10,000 buses by April 2001, the stoppage of leaded petrol
within NCT Delhi by September 1998; replacement of all pre-1990 auto
rickshaws and taxis to new vehicles on clean fuel by 31 March 2000; no eight-
year-old buses to ply except on CNG (Compressed Natural Gas) or other clean
fuel by 1 April 2000; entire city bus fleet (DTC and private) be steadily converted
to single fuel mode on CNG by 31 March 2001. The Court further stressed and
directed that the authorities must take effective and adequate steps to bring to
the notice of the public, both through print and electronic media, the directions
issued by the judiciary from time to time. The July 1998 order provided time
lines to be adhered to for bringing the change in the city. The judges, while
delivering the order, stated: ‘This timeframe, as given by EPCA and today by
this Court, in consultation with the learned counsel for the parties, shall be
strictly adhered by all the authorities. We administer a strong caution to all the
concerned that failure to abide by any of the direction would invite action under
the Contempt of Court Act against the defaulters.’
The next target of the Supreme Court was diesel vehicles, accounting for 90
per cent of the nitrogen oxide and respiratory suspended particulate matter. The
diesel particulate is toxic and chronic exposure to such toxic air would lead to
300 cases of lung cancer per million. In 1999, restrictions were imposed on the
monthly registration of diesel driven vehicles. Also, diesel taxis were prohibited
in National Capital Region (NCR) Delhi unless they conformed to safety
standards.

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Sustainable Development From 2000-2003, the focus of the Supreme Court was on the implementation
of its orders. The Court applied the ‘precautionary principle’ to the auto fuel
policy. The auto fuel policy focused upon the measures to anticipate, prevent
and attack the cause of environmental degradation. These efforts eventually
meant that all buses now run on CNG. The transport sector, including private
vehicles, was given priority over the industrial sector with regard to the
allocation of CNG. Thus, the mission embarked upon by the Supreme Court
Notes was successfully accomplished.
The ‘Delhi Vehicular Pollution’ case reflects the commitment and dedication
shown by the Supreme Court of India to protect the lives of the citizens. Judicial
progress was slow, as was the implementation of its directions, but as a
consequence of PIL actions Delhi’s atmosphere is now relatively clean.

2. M. C. Mehta v. Union of India, Ganga Pollution case (AIR 1998 SC 1037)

The tanning industries located on the banks of Ganga were alleged to be
polluting the river. The Supreme Court issued directions to them to set up
effluent plants within six months from the date of the order. It was specified
that the failure to do so would entail closure of business. The Court issued
directions to the Central Government, U. P. Pollution Control Board and the
District Magistrate concerned. The Court concluded that the closure of
industries might result in unemployment and loss of revenue- life, health and
ecology had greater importance. The Court is still monitoring the task of
cleaning the river Ganga.

3. Indian Council for Enviro-legal Action v. Union of India, The Bichhri

Village Case
Bichhri is a little-known village in the Udaipur district of Rajasthan. However,
in 1988, a group of chemical industries established plants to produce hydrochloric
acid and related chemicals for export. Although the production of this acid is
prohibited in European countries, there remains a need for it. Thus, a remote
village in India became a site for the production of this lethal chemical. ‘Rogue
Industries’ commenced production of these chemicals without obtaining the
appropriate ‘no objection certificates’ from the pollution control authorities. The
factories’ waste products amounted to between 2,400 and 2,500 metric tonnes
that were highly toxic. At least 400 farmers and their families in eleven villages
were directly affected by the groundwater pollution.

However, in October 1989, a PIL was filed in the Supreme Court by a Delhi-
based NGO, the Indian Council for Enviro-Legal Action, led by Mr M.C. Mehta.
The NGO presented the subhuman living conditions being experienced by the

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villagers and requested remedial action by the court. The Supreme Court Sustainable Development
accepted the petition and thus began the legal struggle which continues to this
day. Between 1989 and 1994, Orders were passed by the court. They included
a request to establish an expert committee to examine the situation in and around
the affected area and thereafter provide recommendations for both short- and
long-term remedial action.

In February 1996, the Court declared the final order. It stated that ‘absolute Notes
liability’ rested with the rogue industries to compensate for the harm caused by
them to the villagers in the affected area, to the soil and underground water
and that they were bound to take all necessary measures to remove the sludge
and other pollutants and defray the costs of remedial measures required to
restore the land and underground water. The Court invoked the ‘polluter pays’
principle and empowered the central Government to determine and recover the
cost of remedial measures from the industries. The Court ordered the closure
of all chemical plants located in the Bichhri area. It is noteworthy that the Court
suggested the establishment of dedicated environmental courts for the adjudication
of such matters and the establishment of the National Green Tribunal fulfils this
long standing demand made by the Court.

In November 1997, the Court required the industries to pay Rupees 37.38
Crores towards the cost of environmental remediation and Rupees 34.28 Lakhs
to the villagers, which were not immediately complied with. Finally, in 2011,
the Supreme Court imposed a compound interest of 12 per cent on the remedial
amount of Rupees 37.38 Crores on the polluter for the 15-year delay in making
the payment. The polluters were given two months to make the payment; failure
to do so would result in the recovery being made as arrears. The polluting
industries had no other option but to comply with the orders of the Court this
time.

The importance of the Bichhri case is that it allowed the villagers’ grievances
to be heard via PIL. The application of Article 21, ‘absolute liability’ and the
‘Polluter Pays Principle’ makes the case a landmark judgment in India’s emerging
environmental jurisprudence.

4. T. N. Godavarman Tirumulkpad v. Union of India, (AIR 1997 SC 1228)

The idea of ‘sustainable development’ had its influence on the judiciary in
interpreting the provisions of law relating to forest. Various dimensions of the
problem came to be examined by the Supreme Court in this case. The decision
of the Court can be summarised as follows:

z Mining license in forest area without proper approval by the Government

is violative of the Forest (Conservation) Act. All on-going activities under

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Sustainable Development such invalid license must cease. The State Governments have to take
necessary remedial measures.
z Running saw mills of any kind is a non-forest activity. All saw mills within
a distance of 100 kilometres from the border of the State of Arunachal
Pradesh are to be wound up.
z Responsibility was imposed on each State Government to report on the
Notes number of saw mills, actual capacity of mills, proximity to the nearest forest
and their sources of timber.
z Complete ban on felling of trees in the forests of Arunachal Pradesh. Felling
of forests in other States also suspended except in accordance with working
plans.
z Movement of cut trees and timber banned.
z Each State Government to constitute expert committees to identify forest
areas and forests covered by plantation trees and to assess the sustainable
capacity of the forest in relation to saw mills.
z In State of Jammu & Kashmir, no private agencies should deal in felled trees
or in timber.
z In Tamil Nadu the tribals who are residing in the forest area to continue
to grow and cut trees according to the Government scheme and in
accordance with the law applicable.
The case came back within four months for review of the follow up action as
directed by the Court. Interestingly, the Court proceeded to constitute a
committee to oversee the implementation of its orders in the north-eastern region
of India. Unlicensed saw mills and veneer and plywood industries in the States
of Maharashtra and Uttar Pradesh were directed to be closed. All trees felled
in the janman areas of Tamil Nadu were ordered to be delivered by the
plantations to the State Government.

The orders passed by the Supreme Court clearly demonstrates the failure of
executive to ensure compliance with the forest laws of India, so much so that
even for the supervision of the implementation of the Court orders, the Court
had to constitute a committee, a work which otherwise should have been done
by the executive.

Many developing countries look to India as a country where human rights are
championed by an independent judiciary and certainly in the area of environmental
protection through the means of PIL, the Indian judiciary has led by some
landmark examples which aptly shows the commitment of the Courts in India
towards this cause.

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INTEXT QUESTION 27.8

1. Name four leading cass relating to protection of Enviornment.

WHAT HAVE YOU LEARNT

Notes
A Tribunal is established for the adjudication of disputes related to some specific
areas, whereas courts exist for the adjudication of all kinds of disputes regardless
of any specific area. Whenever a Tribunal is created by law the jurisdiction of
courts to adjudicate the disputes related to that area for which the Tribunal is
created is taken away from it and given to the Tribunals.

The National Green Tribunal was established under the National Green Tribunal
Act, 2010 for the effective and expeditious disposal of cases relating to
environmental protection and conservation of forests and other natural resources
including enforcement of any legal right relating to environment and giving relief
and compensation for damages to persons and property and for matters
connected therewith or incidental thereto.

National Green Tribunal is empowered to provide by an order:

z Relief and compensation to the victims of pollution and other environmental

damage arising under the enactments specified in Schedule I (including
accident occurring while handling any hazardous substance) of the Act.
z For restitution of property damaged
z For restitution of the environment for such area or areas
A ‘hazardous substance’ is defined under the Hazardous Wastes (Management
and Handling) Rules, 1989, not only as a substance, but also as a preparation,
which by reason of its chemical or physico-chemical properties or handling is
liable to cause harm to human beings, other living creatures, plants, micro-
organisms, property or the environment.

The ‘Kyoto Protocol’ sets binding obligations on industrialised countries to

reduce emission of Greenhouse gases.

International Instruments are like legislations and rules drafted by the different
countries coming together at the international level to make laws applicable to
them. There are several such International Instruments which collectively
constitute what is known as International Environmental Law.

The clean air people in Delhi breath is largely because of the PIL which was
heard by the Supreme Court highlighting the dangers of the air pollution caused
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