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15 Landmark Judgments on Environmental Protection

The Indian Judiciary, the custodian of constitution, has been giving beacon light for protection of Environment while interpretation the constitution in positive manner. Judicial Chronology is full of landmark decisions, which embarked upon that Right to life far exceeds mere breathing and walking and developed Environment Jurisprudence. Judiciary plays a vital role in the protection of environment. Here are some of the Landmark judgment on Environment Protection:

1.      Rural Litigation and Entitlement Kendra & Ors. v. State of Uttar Pradesh & Ors. ; Supreme Court of India

Judgment- This case is also known as the ‘Dehradun Valley Litigation’. In Mussoorie hill range of Himalayas, the activity of quarrying was being carried out.  Limestone was extracted by blasting out the hills with dynamite. This practice has also resulted in cave-ins and slumping because the mines dug deep into the hillsides, which is an illegal practice per se. Due to lack of vegetation many landslides occurred, which killed villagers, and destroyed their homes, cattle and agricultural land. It was contended by the mining operators that the case should be dismissed by the court and the issue should be left to the administrative authorities under the Environment Protection but the Court rejected the miners’ arguments the ground that the litigation had already commenced and significant orders had been issued by the court before the adoption of the Environment Protection Act. Later a monitoring committee was made. Monitoring Committee directed the company in certain way but the lessee continued to quarry limestone in an unscientific manner and in disregard of the directions issued by the Monitoring committee. In an application filed by the committee, the court held that the mining activity secretly carried on by Vijay Shree Mines had caused immense damage to the area and directed the firm to pay Rs. 3 lakhs to the fund of the Monitoring committee. After years, the Supreme Court of India has held that pollution caused by quarries adversely affects the health and safety of people and hence, the same should be stopped. The right to wholesome environment is a part of right to life and personal liberty guaranteed under Article 21 of the Constitution. This case was the first requiring the Supreme Court to balance environment and ecological integrity against industrial demands on the forest resources. The Court issued the following directions:

· Orders that mine lessees whose operations were terminated by the court would be given priority for leases in new areas open to limestone mining.

· Orders that the Eco-Task Force of the central department of Environment reclaim and reforest the area damaged by mining and that workers displaced by mine closure be given priority for jobs with the Eco-Task Force operations in the region.

2.      Municipal Council, Ratlam v. Shri Vardhichand & Ors.; Supreme Court of India

Judgment- Ratlam is a city in the State of Madhya Pradesh in India. Some of the residents of the municipality filed a complaint before the Sub-Divisional Magistrate alleging that the municipality is not constructing proper drains and there is stench and stink caused by the exertion by nearby slum-dwellers and that there was nuisance to the petitioners. The Sub Divisional Magistrate of Ratlam district instructed the municipality to prepare a proper development plan within 6 months of the complaint submitted by the residents of Ratlam city (approved by High Court). Afterwards the municipality came in appeal before the apex court of India and alleged that they do not have proper financial support as well as proper funds to comply with the direction given by the sub divisional magistrate of Ratlam city. Respondents argued that the Municipality of Ratlam city had failed to meet its obligations given by the sub divisional magistrate to provide for public health including by failing to abate pollution and other hazardous waste from impacting their homes. Respondents focused to stop pollution caused by a runoff from a nearby alcohol plant resulting in form of malaria. The Supreme Court instructed the Municipal Council of Ratlam to immediately follow order given by the Sub Divisional Magistrate of Ratlam city to protect the area from pollution caused by alcohol plant flowing into the neighboring areas of the resident. Supreme court also ordered the municipal to take necessary steps to  fulfill their obligation by providing adequate number of public laterals for specifically men and women separately along with to provide water supply and scavenging service in morning as well as in evening to ensure proper sanitation. The court also ordered that these obligations to be fulfilled within six months of court order.   The problem was due to private polluters and haphazard town planning, it was held by Supreme Court that pollution free environment is an integral part of right to life under Article 21. The Court Further held that in case municipality feel the need of resources then it will raise its demand from State government by elitist projects, request loans from the State Government from the savings account of public health expenditure to fulfill the resource requirement for the implementation of courts order.

3.      M.C. Mehta v. Union Of India (Gas Leak In Shriram Factory); Supreme Court of India

Judgment- On the midnight of 2/3-12, 1984; there was a leakage of poisonous gas (methyl isocyanate) from Union Carbide Corporation India Limited, located at Bhopal, Madhya Pradesh. This disaster was described as “World’s worst industrial disaster” as it claimed the lives of 2260 people and caused serious injuries with a variety of complications to about 6 lakhs of people. When the matter was pending before the Supreme Court, another gas disaster took place from Shri Ram Foods and Fertilizer Industries (belonging to Delhi Textile Mills Ltd.), Delhi on 4th and 6th December 1985. One advocate died and several others injured. MC Mehta, a leading legal practitioner, Supreme Court filed a “public interest litigation” petition under Article 32 of the Constitution. The Supreme Court through P.N. Bhagwati, C.J., keeping in mind the one-year-old great gas disaster of Bhopal, evolved a new rule, “Absolute Liability” in preference to 1868 rule of Strict Liability. Issues Raised were- Whether the plant can be allowed to continue or not?

If not, what measures are required to be taken to prevent the leakages, explosions, air and water pollution? To find out the number of safety devices exists in the plant and others though necessary is not installed in the plant. Court held that the “absolute liability” of a hazardous chemical manufacturer to give compensation to all those affected by an accident was introduced in this case and it was the first time compensation was paid to victims. The court laid down following principles- The management, Shri Ram Foods was required to deposit in the court, Rs. 20 lakhs as security for payment of compensation to the victims. A green belt of 1 to 5 K.M. widths around such industries should be provided. The court directed the Central Government to set up an Environmental Court consisting of a Judge and two experts (Ecological Sciences Research Experts) as members to assist the judge in deciding the environmental cases. Pursuant upon the recommendation, the Govt. of India passed the National Environment Tribunal Act, 1995 to deal with the cases of environmental pollution.

4.      M.C. Mehta v. Union of India- Ganga Pollution Case; Supreme Court of India

Judgment- In 1985, M.C. Mehta filed a writ petition in the nature of mandamus to prevent these leather tanneries from disposing of the domestic and industrial waste and effluents in the Ganga River. In this petition, the petitioner requested the court to request the Supreme Court (the Court) to restrain the respondents from releasing effluents into the Ganga river till the time they incorporate certain treatment plants for the treatment of toxic effluents to arrest water pollution. The Court highlighted the importance of certain provisions in our constitutional framework, which enshrine the significance and the need for protecting our environment. Article 48-A provides that the State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51-A of the Constitution of India imposes a fundamental duty on every citizen to protect and improve the natural environment, including forests, lakes, rivers, and wildlife. The Court stated the importance of the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act). This act was passed to prevent and control water pollution and maintaining water quality. This act established central and stated boards and conferred them with power and functions relating to the control and prevention of water pollution. Now, the question was raised that what is Trade Effluent? A Trade Effluent is any substance in the form of solid, liquid, or gaseous state which is discharged from any establishment used for carrying out any trade or industrial activity, other than domestic sewage. It was noted that the leather industry is one of the significant industries besides paper and textiles consuming large quantities of water. Most of the water used is discharged as wastewater. The wastewater contains toxic substances that deplete the Oxygen content of the clean river water in which they are discharged. This results in the death of aquatic life and emanates foul odor. The Court held the despite provisions in the Water (Prevention and Control of Pollution) Act, 1974 Act no effective steps were taken by the State Board to prevent the discharge of effluents into the river Ganga. Also, despite the provisions in the Environment Protection Act, no effective steps were taken by the Central Government to prevent the public nuisance caused by the tanneries at Kanpur. In a historic judgment in 1987, the court ordered the closure of a number of polluting tanneries near Kanpur. The court held that- “Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence.” The Court ordered the tanneries to establish primary treatment plants, if not Secondary treatment plants. That is the minimum which the tanneries should do in the circumstances of the case.

5.      Vellore Citizens Welfare Forum v. Union of India; Supreme Court of India

Judgment- The petition was filed against the excessive pollution caused by River Palar due to the release of pollutants by the tanneries and other industries in the State of Tamil Nadu. Palar River is the main source of drinking and bathing water for the surrounding people. Later, the Tamil Nadu Agricultural University Research Centre, Vellore discovered that approximately 35,000 hectares of agricultural land have turned either entirely or partially unsuitable for cultivation. This is one of the landmark cases whereby the Supreme Court critically analyzed the relationship between environment and industrial development. The question which emerged for thought under the steady gaze of the Supreme Court was whether the tanneries ought to be permitted to keep on working at the expense of lives of lakhs of individuals. It was presented by the petitioner that the whole surface and sub-soil water of river Palar has been intoxicated and has resulted in the non-accessibility of consumable water to the inhabitants of the region. The Supreme Court analyzing the report conveyed its judgment putting forth all attempts to keep up a concordance among condition and improvement. The Court conceded that these Tanneries in India are the major foreign exchange earner and furthermore gives work to a large number of individuals. In any case, at the equivalent time, it wrecks nature and represents a wellbeing danger to everybody. The court conveying its judgment in favor of the petitioner guided all the Tanneries to submit a whole of Rs. 10,000 as fine in the Collector’s office. The Court additionally coordinated the State of Tamil Nadu to grant Mr. M. C. Mehta with an entirety of Rs. 50,000 as gratefulness towards his endeavors for the security of the Environment.

6.      A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) & Ors.; Supreme Court of India

Judgment- In this case the respondent industry is ought to be establishing a new factory for the production of vegetable oils in the State of Andhra Pradesh. Respondent industry purchased a piece of land in Indore village named Peddashpur. Within the range of the village the reservoirs that provides drinking water for the 5 million of people around the area. Issues raised were- The validity of the orders passed by the A.P. Pollution Control Board? The correctness of the orders of the Appellate Authority under section 28 of the Water Act, 1974? The validity of exemption granted for the operation of the 10 k.m. rule? In what ways that the technological aspects of the environmental law cases ought to be adjudicated? In the impugned judgment, the Supreme Court relied on the judicial doctrine of the Precautionary Principle. The Precautionary Principle as it is very name suggests needs the authorities in charge to anticipate, prevent and attack the reason behind environmental pollution. This rule is based on the salutary theory that it is better to err on the side of caution and safety than in the wrong way wherever environmental damage, once done, is also irreversible. In other words, one ought to take measures in anticipation of environmental damage, instead of to hunt cure when the damage is inflicted. It would be better to stay safe earlier then be sorry later. Hindrance is healthier than cure. The Court in the present judgment directed that the authority to be appointed under Section 3(3) of the Environment (Protection) Act, 1986 that shall implement the Precautionary Principle and also the Polluter Pays Principle. Further, it had been discovered that the new conception envisages that when a risk of great or irreversible damage to the environment is perceived, the burden of proof lies on the one that is proposing to undertake the activity in question.

7.      M. C. Mehta v. Kamal Nath & Ors.; Supreme Court of India

Judgment- The Indian Express published an article reporting that a private company, Span Motels Private Ltd. (‘the Motel Company’), owner of Span Resorts, had floated an ambitious project called Span Club. Kamal Nath who was the Minister of Environment and Forests had direct links with this company. The company encroached upon 27.12 big has of land which also included forest land. The land was regularized and subsequently leased out to the company on 11th April 1994. Issues raised were- Whether the court has wrongly inducted Mr. Kama Nath as a Respondent in the present petition? Whether the construction activity carried out by the Motel Company justified? The Supreme Court rejected this contention and held that the forest lands which have been given on lease to the Motel by the State Governments are situated at the bank of the river Beas. The Beas is a young and dynamic river and it changes its course very often. The right bank of the river is where the Motel is located comes under forest. The area is ecologically fragile and therefore it should not be converted into private ownership. The Supreme Court applied the ‘Doctrine of Public Trust’ to the present case. Doctrine of Pubic trust is an ancient legal doctrine which states that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, water and the forests have such a great importance to the people as a whole that it would be unjustified to make them a subject of private ownership. Therefore- The Court quashed the lease-deed by which forested land was leased to the Motel Company and held that the construction activity carried out by the Motel Company was not justified. The Motel was ordered to pay compensation by way of cost for the restitution of the environmental and ecology of the area. The Motel was ordered to construct a boundary wall at a distance of not more than 4 meters for the building of the motel beyond which they were not allowed to use the land of the river basin. The Court restricted the Motel from discharging untreated effluent into the river. Himachal Pradesh Pollution Control Board was directed to inspect and keep a check.

8.      M.C. Mehta v. Union of India- Vehicular Pollution Case; Supreme Court of India

Judgment- Union Territory of Delhi has a total population of 96 lakhs. Out of this population approximately 90 lakh people reside in urban areas. At the time of independence the population of Delhi was around 5 lakh. In nearly 40 years, it multiplied by 19 times. This writ petition was filed by M.C. Mehta requesting the court to pass appropriate orders for the reduction of Vehicular Pollution in Delhi. Supreme Court in this case held that Indian constitution recognizes the importance of protection of environment, life, flora and fauna by the virtue of Article 51-A and Directive principles of state policy. Therefore, it is the duty of the state to protect the environment and all the persons using automobiles should have a fair idea of the harmful effects on the environment due to emissions caused by their vehicles.  A committee was setup to look in to the problem and decide on what can be done. The committee was setup with the following objectives –

• To make an assessment of the technologies available for vehicular pollution control in the world;
• To make an assessment of the current status of technology available in India for controlling vehicular pollution;
• To look at the low cost alternatives for operating vehicles at reduced pollution levels in the metropolitan cities of India.
• To examine the feasibility of measures to reduce/eliminate pollution from motor vehicles both on short term and long term basis and make appropriate recommendations in this regard;
• To make specific recommendations on the administrative/legal regulations required for implementing the recommendations.

The committee was ordered to give reports in two months and also mention the steps taken.

9.      Subhash Kumar v. State of Bihar & Ors.; Supreme Court of India

Judgment- The petition was filed by the way of Public Interest Litigation by Subhash Kumar for preventing the pollution of the water of the river Bokaro from the discharge of sludge/slurry from the Tata Iron & Steel Co. Ltd. The Petitioner alleged that the Parliament enacted Water (Prevention and Control of Pollution) Act, 1978 for maintaining the wholesomeness of water and for the prevention of water pollution. The State Pollution Control Board failed to take actions against the Company and permitted the pollution of the water and the State of Bihar instead of taking actions, it is granting a lease on the payment of royalty for collection of slurry to various persons. Issue raised was whether the water of the river Bokaro is polluted by the discharge of the slurry from the Company? The apex court held that the right to get pollution free water and air is a fundamental right under Article 21. Following this, the right to pollution free environment was incorporated under the head of right to life and all the laws courts within the Indian Territory were bound to follow. Public health and ecology were held to be the priorities under Article 21 and the constitution of a green bench was also ordered by the Supreme Court. The Tata Iron & Steel Co. has been granted sanction from the Board for discharging effluents from their outlets under Sections 25 and 26 of the Water Prevention and Control of Pollution Act, 1974. Before granting the discharge of the effluents to the Bokaro River, the Board has analyzed and monitored that the effluents generated did not pollute the river. It was clear from the facts that and pleadings on behalf of the Respondent that there was no good reason to accept Petitioner’s contentions that the water of Bokaro River was polluted by the discharge of slurry/sludge from the respondent Company, on the other hand, the bench found that effective steps were taken by State Pollution Control Board to check pollution. Therefore, the petition was dismissed.

10.  Samit Mehta v. Union of India & Ors.; National Green Tribunal

Judgment- In this case, an environmentalist filed an application regarding the damage caused by the sinking of a ship which was carrying coal, fuel oil and diesel. Due to the sinking, a thick oil layer was formed on the surface of the sea which caused damage to the marine ecosystem. This case was held to involve questions of public importance and significance of environmental jurisprudence. The tribunal noticed the negligence. The sinking of the ship was the result of the negligence of the Respondents and upholding the principle of Polluter Pay. The Tribunal has further held that it has power to grant compensation for the costs incurred by the Central Government to clean the wrecks which may pose hazards to navigation and to marine environment. The Court thereby reaffirmed the “Precautionary Principle” and “Polluter Pays Principle” and also recognized Right to clean environment as a fundamental right under Article 21 of the Constitution of India which guarantees protection of life and personal liberty. The Tribunal held that the ship sinking accident is said to have led to the pollution of the marine environment on three counts: (a) Dumping of the cargo on the ship, i.e., coal in to the sea; (b) Release of the Fuel oil stored on board and the resultant oil spill caused by it and (c) wreckage of the ship itself, which contained the materials. In the present case, the ship used in the transport is unseaworthy and the respondents should have never used the ship for transport purpose. Therefore, in the present case, sinking of the ship is held equivalent to dumping. Environmental compensation of Rs. 100 crores was imposed. This is one of the biggest compensation ever made by private entity to government.

11.  Ms. Betty C. Alvares v. The State of Goa and Ors. ; National Green Tribunal

Judgment- A complaint regarding various instances of illegal construction in the Coastal Regulation Zone of Candolim, Goa was made by a personal of foreign nationality. Her name was Betta Alvarez. The first objection was that Betty Alvarez had no locus standi in the matter because she was not an Indian citizen and thus legally incompetent to file the petition under Article 21 because as a non-citizen, she has not been guaranteed any right under the Indian Constitution. The second objection was that the matter was barred by the law of limitation and should be dismissed. The case was initiated in the Honorable High Court of Bombay Bench at Goa in the form of a PIL but by an order dated Oct 23, 2012, the Writ Petition was transferred to the National Green Tribunal. Therefore The Tribunal in bold terms stated that even assuming that the Applicant – Betty Alvarez is not a citizen of India, the Application is still maintainable as she had filed several other writ petitions and contempt applications before she filed the present application, in which she had asserted that the Respondents had raised some illegal constructions by way of which they were encroaching the sea beaches along with governmental properties. The Court laid down in very bold terms that once it is found that any person can file a proceeding related to the environmental dispute, Ms. Betty’s application is maintainable without regards to the question of her nationality.

12.  Art of Living Case on Yamuna Flood Plain; National Green Tribunal

Judgment- The National Green Tribunal (NGT) held the Art of Living Foundation of Sri Sri Ravi Shankar responsible for the alleged damage caused to the Yamuna floodplains due to the World Cultural Festival organized in March 2016. NGT Panel found that the organizers of the Art of Living Festival violated the environmental norms and it has severely damaged the food plane area at the bank of Yamuna River in Delhi. Earlier, the Government of Delhi and Delhi Development Authority (DDA) has permitted the Art of living festival organizers but it was an under some conditions. The NGT panel imposed a penalty of Rs. 5 Crore on Art of Living Foundation as environmental compensation after coming down heavily on the foundation for not disclosing its full plans. The panel also warned AOL Foundation that in case of failure to pay the penalized amount the grant of Rs.2.5 crore which the ministry of culture is supposed to pay AOL will be attached. While reacting with dismay to the verdict, the Art of Living Foundation expressed disappointment and claimed that it had complied with all environment laws and norms and its’ submissions were not considered by NGT. The Art of Living Foundation said in a statement that-“We will appeal to Supreme Court. We are confident that we will get justice.”

13.  -Save Mon Region Federation and Ors. v. Union of India and Ors. ; National Green Tribunal

Judgment- The Save Mon Region Federation, on behalf of the Monpa indigenous community, challenged the environmental clearance granted for the construction of a hydroelectric dam on the Naymjang Chhu River.  The Federation pointed to faults in the environmental impact assessment (EIA) procedure and a lack of close scrutiny of the project by the expert appraisal committee (EAC). The National Green Tribunal concluded: “It is true that hydel power project provides eco friendly renewable source of energy and its development is necessary, however, we are of the considered view that such development should be ‘sustainable development’ without there being any irretrievable loss to environment. We are also of the view that studies done should be open for public consultation in order to offer an opportunity to affected persons having plausible stake in environment to express their concerns following such studies. This would facilitate objective decision by the EAC on all environmental issues and open a way for sustainable development of the region.” Therefore, the project was close to a wintering site for a bird Black-necked Crane, which is included under Schedule I species under the Wildlife Protection Act of 1972. It also comes under the ‘Threatened Birds of India’ literature by the appellants in this case. It also had other endangered species such as the red panda, snow leopard, etc. The tribunal gave orders to suspend the clearance for the project. It also directed the EAC to make a new proposal for environmental clearance. The tribunal also directed the Ministry of Environment and Forest in the country to prepare a study on the protection of the bird involved in the case.

14.  Almitra H. Patel & Ors. v. Union of India and Ors. ; National Green Tribunal

Judgment- This case has been the biggest case dealing with the solid waste in India. In this case, Mrs. Almitra Patel and another had filed a PIL under Article 32 of the Constitution of India before the Apex Court whereby the Petitioner sought the immediate and urgent improvement in the practices that are presently adopted for the way Municipal Solid Waste or garbage is treated in India. The Tribunal found that the magnitude of the problem was gigantic because over a lakh tonnes of raw garbage is dumped every day and there is no proper treatment of this raw garbage which is dumped just outside the city limits on land, along highway, lakes. The Tribunal noted the requirement of conversion of this waste into a source of power and fuel to be used for society’s benefit, taking into consideration the Principles of Circular Economy. The tribunal considered it one of the major problems faced by India over the last few years as lakh tonnes of garbage go without proper treatment and just dumped outside the city in the outskirts. The tribunal noted the requirement to solve this problem and make it a source of power for the benefit of society. After hearing the case the tribunal issued over 25 directions. The tribunal asked all the states and UTs to strictly follow and implement the Solid Management Rules, 2016. A complete prohibition on open burning of waste on lands was made after the case. Absolute segregation has been made mandatory in waste to energy plants and landfills should be used for depositing inert waste only and are subject to bio-stabilization within 6 months. The most important direction of the Tribunal was a complete prohibition on open burning of waste on lands, including at landfills.

15.  K.M. Chinnappa, T.N.  Godavarnam v. Union of India & ors. ; Supreme Court of India

Judgment- The court held that- Environmental law is an instrument to protect and improve the environment and to control or prevent any act or omission polluting or likely to pollute the environment. In view of the enormous challenges thrown by the industrial revolutions, the legislatures throw out the world are busy in this exercise. In a number of cases, sentences of imprisonment have been imposed. Apart from the direct cost to business of complying with the stricter regulatory controls, the potential liabilities for non compliance are also increasing. In the present case the Forest Advisory Committee under the Conservation Act on 11/07/2001 examined the renewal proposal in respect of the Company’s mining lease. The Ministry of Environment and Forests deferred a formal decision on the said recommendation as the matter was pending before this court. Taking note of factual background, it is proper to accept the time period fixed by the Forest Advisory Committee constituted under Section 3 of the Conservation Act. That means mining should be allowed till the end of 2005 by which the time the weathered secondary ore available in the already broken area should be exhausted. This is, however, subject to fulfillment of the recommendations made by the Committee on ecological aspects.  Before, we part with this case; note that with concern that the State and Central Government were not very consistent. Whatever be the justification, it was but imperative due application of mind should have been made before taking particular stand. Certain proceedings have been initiated against the company and these proceedings shall be considered by the respective forums/courts.

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Environmental Governance and Policy

1 January 2019

Indian Environmental Law: Key Concepts and Principles

Shibani Ghosh

For more than three decades now, the Indian courts have delivered far-reaching judgments on a range of significant environmental matters. In their effort to adjudicate complex disputes with serious environmental repercussions, involving the interplay of multiple social, economic and political factors, the courts have developed a framework of environmental rights and legal principles, which now forms an integral part of Indian environmental jurisprudence. The judiciary invokes this framework creatively to identify constitutional, statutory and common law obligations of public and private actors to protect the environment, and to enforce the performance of related duties. There is, however, limited in-depth study of these crucial rights and principles in existing legal literature. Indian Environmental Law: Key Concepts and Principles fills this gap through its critical analysis of the evolution of this environmental legal framework in India. It studies the origins of environmental rights, substantive and procedural, and the four most significant legal principles— principle of sustainable development, polluter pays principle, precautionary principle and the public trust doctrine—and elaborates how Indian courts have defined, interpreted and applied them across a range of contexts. As environmental litigation and legal adjudication struggle to respond to worsening environmental quality in the country, conceptual clarity about the content, application and limitations of environmental rights and legal principles is crucial for the improvement of environmental governance. With chapters written by Saptarishi Bandopadhyay, Lovleen Bhullar, Shibani Ghosh, Dhvani Mehta and Lavanya Rajamani, this book explores the judicial reasoning and underlying assumptions in landmark judgments of the Supreme Court, the High Courts and the National Green Tribunal, and aims to provide the reader with a comprehensive understanding of the framework of rights and principles. Download the book here. Indian Environmental Law: Key Concepts and Principles has been reviewed by The Hindu and Down to Earth. To learn more about this book, read the chapter descriptions below. Chapter 1: The Judiciary and the Right to Environment in India: Past, Present and Future By Lovleen Bhullar Bhullar discusses the evolution of the right to environment as a substantive right in Indian environmental law. Drawing from judgments of different fora, she identifies the linkages made by the Indian judiciary between environmental protection and the Constitution, specifically Articles 21, 47, 48A and 51A(g). She finds the courts to have adopted a predominantly anthropocentric approach to environmental protection, with occasional recognition of the right of the environment. While the path of evolution of the right to environment, and its realization, has been problematic, Bhullar argues that the inherent imprecision of the right, while unfortunate in some cases, allows courts the flexibility to adapt their directions to a given fact situation, often in the interest of the environment. Chapter 2: Procedural Environmental Rights in Indian Law By Shibani Ghosh Ghosh examines three procedural environmental rights – the right to information, the right to public participation, and the right to access to justice – in detail, and identifies loopholes and limitations in the adjudication of each right. In particular, the chapter refers to relevant provisions of the Environment (Protection) Act 1986, the EIA Notification 2006, the Right to Information Act 2005, the Forest Rights Act 2006, and the National Green Tribunal Act 2010. Ghosh concludes that despite statutory expression of procedural environmental rights, there is no room for complacency as these three rights are routinely curtailed and denied. Chapter 3: Sustainable Development and Indian Environmental Jurisprudence By Saptarishi Bandhopadhyay Bandhopadhyay critically analyses the principle of sustainable development, as interpreted and applied by the Indian judiciary. The chapter provides a succinct description of the historical evolution of the principle internationally. It analyses the Vellore judgement to distill the Indian Supreme Court’s definition of the principle, and examines the Narmada judgement to reveal how the Supreme Court has ‘instrumentally harnessed the vagueness inherent in sustainable development’. Bandopadhyay concludes that while the interpretive flexibility of the principle diminishes the extent to which litigants and lawyers can expect the Court to justify its determinations, this flexibility is not necessarily undesirable, as it leaves the field of legal argumentation and political struggle relatively open. Chapter 4: The Polluter Pays Principle: Scope and Limits of Judicial Decisions By Lovleen Bhullar Bhullar discusses the origin of the polluter pays principle in Indian judicial decisions, and poses five questions to understand how the Indian courts have operationalised it – who is the polluter; how and when is the application of the principle triggered; how is the loss assessed and compensation determined; what does the polluter pay; and finally, what are the limits of the principle. She concludes that while the flexible way in which the Indian judiciary has operationalised the principle has allowed different aspects of the principle to be fleshed out in each case, it has also led to courts speaking in contradictory voices. Chapter 5: The Precautionary Principle By Lavanya Rajamani Rajamani explores the conceptual underpinnings of the precautionary principle, tracing its definition, interpretation and legal status in international law, before turning to Indian law. She argues that the application of the principle in the Vellore judgement is at odds with the Supreme Court’s own definition of the principle. The chapter discusses this lack of clarity in the Court’s engagement with the principle, and the blurring of lines between two distinct legal principles – precaution and prevention. Rajamani concludes that the invocation of the indigenous version of the precautionary principle may be instrumentally useful in arriving at environmentally favourable judicial outcomes, but it does not bode well for the development of a clear line of jurisprudence. Chapter 6: Public Trust Doctrine in Indian Environmental Law By Shibani Ghosh Ghosh traces the growth and application of the public trust doctrine, and explains why it is difficult to identify how the doctrine could lend predictability to decision-making regarding public trust properties. She explains the contours of the doctrine as inferred from Indian judicial pronouncements – the source of the doctrine, properties that are held in public trust, and principles that are applied by courts while implementing the doctrine. Rather than insisting on its redundancy, she argues that it is desirable to make the doctrine more relevant, and proposes ways in which it may afford greater protection to natural resources held in trust. Chapter 7: The Judicial Implementation of Environmental Law in India By Dhvani Mehta Mehta provides an overview of the compliance and enforcement mechanisms available to environmental regulatory authorities in India, and then, with references to case law (many of which rely on the four legal principles in this book), illustrates the implementation mechanisms developed by the Indian courts. She concludes that judicial implementation mechanisms have had mixed success. Apart from external factors, there are certain internal weaknesses that impact the implementation process: courts have been inconsistent while deploying implementation mechanisms, their orders require more robust legal reasoning and they need to integrate better with the existing regulatory framework.

Previously known as Law portal

Landmark Judgments on Environmental Protection in India

Table of Contents

Introduction

Environmental law is a branch of law that is not only held by its major Acts but also the case laws – in fact, many a time, it is these cases that had prompted the legislation into forming new laws or Acts to accommodate the changing needs of the contemporary times. On that note, several such cases had emerged as landmark judgements that not only affected the Indian scope of environmental law but the whole globe altogether.

In this article, we will discuss five such judgements that helped shape environmental law as we know it.

M.C. Mehta v/s Union of India (Taj Trapezium case) [1]

With there been so many cases with similar petitioner and respondent, this case was more commonly known as the ‘Taj Trapezium Case’ due to it dealing with the trapezium-shaped area of about 10,400 sq. km around the monument of Taj Mahal in Agra. This area covers about five districts in the region of Agra and used to have a large amount of pollution emitting industries that caused corrosion of the marble of the Global Heritage Site.

Gases like Sulphur-dioxide and carbon monoxide were released by the nearby industries located in the Taj Trapezium, resulting in acid rain in the given region which caused the marble of the Taj Mahal to corrode and turn into a yellowish hue instead of its previous healthy white. In fact, in some places of the monument, the yellow spots had worsened into ugly black and brown spots.

This condition of a monument with international repute was noticed by the petitioner M.C. Mehta, a public interest litigator when he visited the monument on his last visit. So, upon such observation, he filed a petition in the Court, asking for some directions to be given to the respective authorities regarding effective measures to prevent the monument from further degradation.

After hearig the facts, the Supreme Court directed the Uttar Pradesh Pollution Control Board (U.P.P.C.B.) to make a report on all the factories in the area and to issue a notice to all of them regarding proper anti-pollution measures – which turned out to be a total number of five hundred eleven industries. Upon collection of such data, the Court further directed these industries to either adopt an anti-pollution approach or relocate themselves.

M.C. Mehta v. Union of India (Oleum Gas leak case) [2]

This is one of those cases that brought in a new concept in the Law of Tort. This case, due to the reoccurring theme of common petitioner and respondent as many other cases, is more commonly known as the ‘Oleum Gas leak’ case. The facts of the case start by not the incident itself, but rather the writ petition filed by the public interest litigator M.C. Mehta, who filed the petition upon noticing the fertilizer manufacturing industry named ‘Shriram Industries’ engaging in hazardous substances while being located in a densely populated area of Kirti Nagar, Delhi.

Since the Bhopal Gas Tragedy was still a very recent event, the petitioner filed the writ before the Court regarding the evidently dangerous circumstances. Unfortunately, while the petition was still pending, there was a leakage of oleum gas from the said industry, resulting in the death of an advocate and health issues to several others living nearby the region.

Due to this being the second incident of gas leak within the span of a year, the Court showed deep concern regarding the repetition of such incidents. To prevent these kinds of incidents in the future along with the prospect of compensating those who have been wrongly harmed, the Court evolved the rule of absolute liability on the rule of strict liability and stated that the defendant would be liable for the damage caused without considering the exceptions to the strict liability rule.

Such evolution was made due to the fact that the industries such as these opted for the exceptions of the strict liability, resulting in them washing their hands off the damage they caused while the ones wrongly harmed could do nothing as technically the industries did not directly have a hand such incidents. Absolute liability, however, did not allow that – instead, holding the industries liable without any exceptions. This rule laid down in the oleum gas leak case was also followed by the Supreme Court while deciding on the case of Bhopal Gas Tragedy case.

Vellore Citizens Welfare Forum vs Union of India [3]

This is a landmark judgement where the principle of sustainable development was adopted by the Supreme Court as a balancing concept, rejecting the old ideology that development and environmental protection cannot go hand in hand. The facts of this case start with the petition filed by Vellore Citizens Welfare Forum against the certain tanneries in Tamil Nadu who were discharging untreated effluent from their tanning into the river Palar whose water was used for irrigation by several agricultural fields along with other roadsides and waterways as open lands.

Upon hearing all the facts and how water pollution is affecting several people’s livelihood, the Supreme Court critically analysed the relationship between development and the environment and issued several comprehensive directions for maintaining the standards given by the Pollution Control Board.

M.C. Mehta v. Kamal Nath [4]

This is one of the landmark judgements where the Court analysed the concept of private ownership and whether forest areas and other wildlife aspects should be even considered to be privately owned. The facts of the case start from when the printed media ‘The Indian Express’ published an article regarding the construction of a Resort on the land near river Beas that included the forest region near the said river.

This Resort had been constructed by a private company named the Span Motels Private Ltd with which the Minister of Environment and Forests, Kamal Nath, had a direct relation and share in. This construction included the redirection of the river Beas, which resulted in the floods due to all the river water – a disaster that caused the destruction of property worth Rs. 105 crores.

The Court held that the forest regions in the nation could not be privately owned – they were public property and thus, should be considered as Government property. This was backed by the principle of ‘Doctrine of Public Trust’ which states that certain resources like air, water, forests, etc that are common and needed for the basic necessities should not be under private ownership; but rather held by the State for the use of the general public. In addition to that, the Court not only quashed the lease of the forest and river area under the Motel Company but also held that the construction done by the company was not justified; thus, ordering them to compensate the damage they caused to both the property as well as the ecology of the area.

M.C. Mehta v. Union of India (CNG Vehicular Case) [5]

India’s increased a lot since the time of the nation’s independence – so much so, that the Capital city (Delhi) which initially started out with a population of only five lakhs is now over ninety lakhs. Due to this amount of increase in population, the usage of vehicles and other transportation increased as well – making the emission of air pollutants increase tremendously. Based on this fact, M.C. Mehta filed a petition to request the Court to establish new guidelines to contain the air pollution caused due to vehicular emission in Delhi.

The Court held the petitioner’s worry valid and observed that appropriate steps are needed to be taken as a precaution to avoid further pollution. With that, the Court applied the doctrine of ‘Precautionary Principle’ and observed that any auto-policy made by the government should adopt that principle as well as and must make informed recommendations which balance the needs of transportation with the needs to protect the environment.

In addition to this, the Court also established a committee to look into the problem and make an assessment regarding the current status of technology that can be used to control air pollution through vehicular means – one that is not only cost-effective but also reduces vehicular pollution on short term as well as long-term basis.

• Shyam Diwan & Armin Rosencranz, ‘Environmental Law and Policy in India’, Oxford University Press
• Krishan Keshav, ‘Law and Environment’, Singhal Law Publications
• Gurdip Singh, Environmental Law in India, MacMillan Publisher

[1] 1987 AIR 1086, 1987 SCR (1) 819

[2] 1987 SCR (1) 819; AIR 1987 965

[3] AIR 1996 SC 2715: (1996) 5 SCC 647

[4] (1997) 1 SCC 388

[5] 1991 SCR (1) 866, 1991 SCC (2) 353

Author: Debapriya Biswas, Amity Law School, Noida (2nd year)

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National Green Tribunal of India—an observation from environmental judgements

• Trend Editorial
• Published: 23 March 2018
• Volume 25 , pages 11313–11318, ( 2018 )

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• Sridhar Rengarajan 1 ,
• Dhivya Palaniyappan 1 ,
• Purvaja Ramachandran 1 &
• Ramesh Ramachandran 1  

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Introduction

Improving the environmental rule of law, access to justice and environmental dispute resolution is essential for achieving the UN’s 2030 agenda for Sustainable Development and the Sustainable Development Goals (SDGs), particularly SDG Goal 16—‘to provide access to justice for all and build effective, accountable and inclusive institutions at all levels’, according to Pring and Pring ( 2016 ). To accomplish this goal, establishing specialised courts and tribunals dealing exclusively with environmental matters is becoming essential. All over the world, more than 1200 environmental courts and tribunals are functioning in various countries, and more such courts have been planned for the future, as discussed by Pring and Pring ( 2016 ).

As far as India is concerned, the need for establishing environmental courts in India arose in different circumstances and in different times. In the cases of M.C. Mehta Vs. Union of India (AIR 1987 SC 965), Indian Council for Enviro-Legal Action Vs. Union of India ( 1996 3 SCC 212) and A.P. Pollution Control Board Vs. Professor M.V. Nayudu (1992 2 SCC 718), the Indian Supreme Court (orders of 1986, 1996 , 2001 ) observed that as environmental cases frequently involve assessment of scientific data, setting up environmental courts on a regional basis with a legally qualified judge and two experts would help speed the judicial process.

The Law Commission of India (186th Report 2003 ) recommended the establishment of environmental courts in India. This recommendation was based on a review of the technical and scientific problems that came before the courts and the inadequacy of judicial knowledge on the scientific and technical aspects of environmental issues. ( http://lawcommissionofindia.nic.in/reports/186th%20report.pdf ).

Establishment of environmental courts

The NGT was established in the year 2010 under the National Green Tribunal Act of 2010 to dispose of civil cases relating to environmental protection and conservation of forests and other natural resources, including enforcement of any legal rights related to the environment (National Green Tribunal n.d. ). The Act was enacted through the Parliament of India, under the provision of Article 21 of the Constitution of India, which emphasises the right to live in a clean and healthy environment.

The NGT replaced the existing National Environment Appellate Authority of the Ministry of Environment and Forest. The tribunal, according to the NGT Act of 2010, shall have the ‘jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and such question arises out of the implementation of the enactments specified in Schedule I’, namely The Water (Prevention and Control of Pollution) Act of 1974, the Water (Prevention and Control of Pollution) Cess Act of 1977, The Forest (Conservation) Act of 1980, The Air (Prevention and Control of Pollution) Act of 1981, The Environment (Protection) Act of 1986,The Public Liability Insurance Act of 1991 and The Biological diversity Act of 2002.

At present, the NGT is functional in five locations. New Delhi is the principal seat of the Tribunal (Principal Bench) and Bhopal (Central Zone), Pune (West Zone), Kolkata (East Zone) and Chennai (South Zone) are the other seats of the tribunal as zonal benches. By establishing zonal benches, people from different parts of the country can have access to the tribunal. Each tribunal will have Judicial and Expert Members. Additionally, the NGT constituted circuit benches to convene in places, viz. Shimla, Shillong, Jodhpur and Kochi, to hear cases pertaining to particular states. This was mainly to reduce the constraints of accessibility, especially for the poor and tribal populations living in remote areas of the country.

The NGT is a ‘quasi-judicial body’ and has limited power. It has authority similar to law-enforcement agencies, but it is not like a normal court. The courts have the power to adjudicate all types of disputes, but NGT has the power of enforcing laws on administrative agencies. NGT was created to ease the burden on the normal courts. NGT’s actions may be appealed to a court of law. For example, in cases of crime and other offences, NGT can only issue recommendations for punishment, depending on the nature and gravity of the offence. However, such punishment can be challenged in a court of law, which is the final authority. In this context also, the NGT’s role appears limited.

Very few studies have been conducted on the functioning and effectiveness of NGT. An empirical analysis of NGT judgements from its inception in October 2010 to December 2013 analysed the impact of NGT and the locations of conflicts in India (Patra and Krishna 2015 ). While discussing the subject of environmental justice in India, Gill ( 2016 ) argued that ‘the involvement of technical experts in decision-making promotes better environmental results while simultaneously recognizing the uncertainty in science’ and also stated that ‘India’s record as a progressive jurisdiction in environmental matters through its proactive judiciary is internationally recognized’.

Shrotria ( 2015 ) discussed the NGT, its jurisdiction, powers, functions, significant cases, principles applied, accessibility and value addition to environmental jurisprudence, and stated that NGT has had an important role in providing access to justice on matters concerning the environment. It also realised that a review on the provisions of the NGT Act is needed with a view toward removing obstacles to making the NGT more effective. Shrotria ( 2015 ) also categorised the cases that are adjudicated by the NGT into five types, which include (i) original applications filed by aggrieved persons arising under those legislations within the purview of the NGT Act, (ii) original applications seeking compensation, (iii) applications from the implementing authorities seeking enforcement and legitimacy of conditions imposed on polluters, (iv) appeals from industries against the decision of the implementing authorities and (v) appeals from NGO’s/aggrieved persons regarding non-compliance to rules/notifications/clearances/etc.

Rajan ( 2014 ) attempted to highlight the history of environmental justice in India since 1970. He discussed the ways environmental justice was promoted, considering the environment and development; the emergence of a red-green environmentalism during the 1980s and 1990s, and the Bhopal Gas Tragedy and its implications. It is believed that environmental justice has become significant with the existence of a vibrant civil society and its capacity to inform state policy and engender institutional evolution in Indian democracy.

Twelve key characteristics were found to be appropriate for assessing the successful operation of environmental courts and tribunals (ECT) (Preston 2014 ). These include (i) status and authority; (ii) independence; (iii) centralised jurisdiction; (iv) knowledge of judges and members; (v) operating as a multi-door courthouse; (vi) access to scientific and technical expertise; (vii) facilitating access to justice; (viii) quick and cheap resolution of disputes; (ix) responsiveness to environmental problems; (x) development of environmental jurisprudence; (xi) underlying ethos and mission and (xii) flexible, innovative and provides value-adding function.

The application of international environmental law principles, such as sustainable development, and precautionary and ‘polluter pays’, to the NGT was discussed by Gill ( 2014 ).

The ‘pros’ and ‘cons’ of the establishment of green tribunals were discussed in the Indian context from a comparative perspective, and it was concluded that green tribunals appear to be very useful tools to satisfy the growing needs of environmental protection and sustainable development in the Asian region, in terms of efficacy and social legitimacy of sustainable laws (Amirante 2012 ). While commenting on the establishment of NGT, Sharma ( 2008 ) argued that the constitution of a new court system may not be such a ‘green’ plan unless it is made capable of adjudicating in an atmosphere independent of dominating political interests, and suggested the establishment of specialist divisions within the existing Indian High Courts as an alternative.

Up to the year 2016, 2051 judgements were delivered by the NGT (including zonal benches) in total for various cases of environmental matters across the nation. It is agreed that all of them are related to the environment from a broad perspective. However, there is a need to know the predominant areas in the Environment, such as water, air, waste, noise and environmental compensation, on which appeals or petitions were made to the tribunal and Judgements were delivered. This is needed to understand the areas of greatest conflict that NGT faces.

In view of the above-mentioned limited studies on the functioning and effectiveness of NGT, the present work was formulated to address the research question: How do the effects of sensitive environmental issues emerge from natural and man-made causes, which lead the NGT to pronounce various directions? The present study also made observations on the environmental judgements of the NGT, with special emphasis on cases in the year 2016, to reveal the priority areas regarding the environment that can be strengthened with appropriate environmental monitoring mechanisms.

Methodology

For the present study, all the judgements for the year 2016 (Total no. of judgements: 510) were collected from the NGT Website ( http://www.greentribunal.gov.in/ ). Each judgement was carefully examined to learn the details of the Appellants and Respondents, main petition by the Appellant, background of the case and the judgement given by the tribunal. Based on the petition of the appellants and the core point of the order, the judgements were classified and grouped under several sectors concerning the environment. The judgements were also grouped based on the zonal representations in India. Further, the judgements of the NGT for each year from 2011 to 2016 were also counted from the NGT website to observe their increasing or decreasing trends.

Results and discussion

The number of environmental judgements delivered by the NGT from its inception is on an increasing trend, indicating the growing environmental concerns in a developing country like India. Based on analysis of the judgements of NGT, so far, a total of 2051 judgements were delivered by the NGT (including zonal benches) from the inception year 2011 to the year 2016, for various cases of environmental matters across the nation. The minimum was seen in the year 2011 (28 orders) and the maximum was seen in the year 2015 (821 orders) (Fig. 1 ) . Further, a majority of the judgements were from the Southern Zone (318), followed by the Principal bench-New Delhi (79), West Zone (78), East Zone (25) and Central zone (10) (Fig. 2 ).

Environmental judgements delivered by the NGT from 2011 to 2016

Judgements from different zones of NGT. SZ South Zone, EZ East Zone, CZ Central Zone, WZ West Zone

We examined the NGT judgements, taking the year 2016 as a case study, to understand the petitions behind the judgements. There were 510 judgements delivered by NGT in 2016 and they were classified under different sectors of environmental law. This was done considering the jurisdictions of the NGT. When NGT was established, it was defined that NGT would adjudicate on the matters coming under the various Acts, viz. The Water (Prevention and Control of Pollution) Act, 1974, The Water (Prevention and Control of Pollution) Cess Act, 1977, The Forest (Conservation) Act, 1980, The Air (Prevention and Control of Pollution) Act, 1981, The Environment (Protection) Act, 1986, The Public Liability Insurance Act, 1991 and The Biological Diversity Act, 2002. Accordingly, the judgements were classified into different environmental sectors, namely Air, Water, Waste, Noise, Nature, Industry Operations, Thermal Power Plants, Mining Operations, Environmental Compensations and Others. The classification details of different sectors analysed in the present study are given in Table 1 .

Of the total judgements delivered in 2016 (510 Nos.), the majority of petitions were related to Industry Operations (176) which was followed by the other environmental sectors namely, Nature (143), Mining Operations (61), Water (43), Waste (26), Environmental Compensations (12), Noise (11) and Air (9), as shown in Fig. 3 . Depending on the nature of the cases, the Ministry of Environment, Forest and Climate Change (MoEF&CC) was made one of the Respondents. In the cases of 2016 taken for analysis, in the majority of petitions, the MoEF&CC became one of the Respondents.

Appeals/Petitions to the NGT from various environmental sectors in 2016. A Air, WT Water, WS Waste, N Noise, NT Nature, IO Industry Operation, TPP Thermal Power Plant, MI Mining Operation, E.Comp Environmental Compensation, OT Others

As can be seen, the greatest number of petitions during 2016 concerned Industry Operations and secondly Nature issues. Here, the sector Industry Operations covers various appeals concerning Impact Assessment, Environmental Clearances, Small Industrial Units, Consent to Operate and Standards. The sector Nature covers those appeals about Nature Conservation, Forests, Tree Cutting, Green Belts, Wetlands, Landscape and Construction. Overall, the sector Industry Operations is based on the environmental clearances of projects and their monitoring activities. The present regulatory provisions for protecting our environment and institutional mechanism that are already in place to monitor these activities need to be reviewed from the awareness and implementation points of view, as the majority of cases are related to Industry Operations.

The MoEF&CC in the central government is the nodal agency for overseeing the implementation of the country’s environmental policy and programme relating to conservation and protection, taking the principle of sustainable development as the main guidance. The existing system for issuing environmental clearances for projects and their monitoring activities are well constituted. From the environmental protection point of view, prior environmental clearances are issued by the MoEF&CC before any developmental projects are implemented in the country, in accordance with the Environment Impact Assessment (EIA) Notification of 2006. Further, the environmental norms issued for developmental projects are monitored by the Regional Offices of the Ministry and the relevant State Pollution Control Boards and Pollution Control Committees of Union Territories. The process of prior environmental clearance includes screening, scoping, public consultation and appraisal. The process includes prescription of Terms of Reference, collection of data and preparation of draft EIA/EMP report, public consultation, finalisation of EIA/EMP report, appraisal by the Expert Appraisal Committee and examination in the MoEF&CC for grant of environmental clearance.

Further, violation cases are taken in parallel by the MoEF&CC for appropriate action. The regional offices of the MoEF&CC are located at Bangalore, Bhopal, Bhubaneswar, Chandigarh, Chennai, Dehradun, Lucknow, Nagpur, Ranchi and Shillong, which inter-alia monitor the implementation of conditions and safeguards stipulated by the Ministry while granting clearances to development projects under rules specified under the provisions of the Environment (Protection) Act, 1986. In addition to the above, the MoEF&CC also engages the National Centre for Sustainable Coastal Management (NCSCM) for EIA studies and monitoring activities for environmental projects of CRZ nature.

In the matter of Rajendra Singh Bhandari Vs State of Uttarakhand and Others (Original Application No. 318 of 2013), the NGT issued detailed guidelines to the State Governments/Union Territories for preventing and controlling water pollution through the State Pollution Control Boards. NGT also highlighted that the constitution of the Pollution Control Boards and eligibility criteria and appointment of Chairman/Member Secretary of the Boards/Committees should be in accordance with the Water Act and Air Act.

Suo motu applications

From the study, we observed that, in several important environmental matters, the NGT takes suo motu appeals in the interest of environmental protection and public health. In the context that NGT does not have power for suo motu appeals under the NGT Act, the question of ‘can NGT take S uo Motu cognisance of an environmental matter?’ was discussed by Shrotria ( 2015 ), citing examples of a few of the cases that the NGT dealt with. The act of suo motu by NGT was challenged in the Madras High Court, which disagreed with the argument made by the tribunal, i.e. the tribunal is empowered to evolve its own procedure and it can take suo motu cognisance of an environmental issue.

In the year 2016, there were a total of eleven (11) suo motu appeals taken by the NGT. Among them, the Water sector ranked first (5) and both Industry Operations (2) and Nature (2) sectors ranked second and Mining and Waste sectors, having one appeal each, ranked third. In the matter of suo motu proceedings initiated on a petition received from Sri.K.J. Poulose, Ernakulam (Application No.389 of 2013), the NGT issued directions to the State Pollution Control Board (SPCB) for prevention of pollution of the river Periyar by Industries and to take appropriate action in case of violation, including closure of the units, after following due process of law.

We noted that in one of the suo motu appeals (Application No. 182 of 2013 in the matter of suo motu Vs. The Secretary to Government, Municipal Administration and Water Supply Department, Government of Tamil Nadu), the tribunal took a complaint of poor quality of government tap water in Chennai City and issued directions to the authorities concerned. From the above facts, we can understand that the NGT is functioning effectively, and the NGT is seen as ‘Responsive to Environmental Problems’, as one of the characteristics of successful environmental courts and tribunals.

Coastal Regulation Zone issues

From the judgements of the year 2016, there were 17 judgements related to the Coastal Regulation Zone (CRZ). In such CRZ matters, the NGT handled the applications and dealt with them after examining the nature of the individual case. We noted that in several cases of CRZ nature, the NGT made the following observations and directions:

NGT stressed that the public hearing process is necessary before finalising a Coastal Zone Management Plan.

In appropriate cases, NGT refers cases back to the respective coastal zone management authorities to examine the matter for appropriate action in accordance with the provisions of CRZ Notification.

In some cases, NGT will also hold the clearances issued, until an action is taken by coastal zone management authorities.

NGT issues directions to the MoEF&CC and CZMA to carry out inspections to ensure compliance to CRZ/EC conditions and Environmental Regulations.

Environmental compensations

Under the category of environmental compensation, the NGT provides relief and compensation to the victims of pollution and other environmental damage as well as for restitution of property damaged and for restitution of the environment. In several judgements, NGT has directed environmental compensations to be made on the basis of the ‘polluter pays principle’. In the matter of Samir Mehta Vs. Union of India and Others, as per the judgement dated 23-08-2016, the NGT directed that an environmental compensation to be paid by the Respondent of concern for the damage caused to the ecosystem, loss to ecology and livelihood in accordance with the ‘Polluter Pays Principle’.

In the matter of Manoj Mishra Vs. Union of India and Others, as per the Judgement dated 13-01-2015 pertaining to the clean and rejuvenated Yamuna River, Delhi, the NGT issued directions to the Civic and Municipal authorities of Delhi to charge every household an environmental compensation fee as part of the property/house tax. Similarly, in the case of Krishan Kant Singh Vs. National Ganga River Basin Authority (2014), NGT directed, in its judgement delivered on 16 October 2014, the defaulting industrial unit to pay a compensation of Rupees Five Crores to the concerned State Pollution Control Board based on the Polluter Pays Principle for undertaking remedial activities to ensure river conservation. In another judgement (R K Patel Vs. Union of India, judgement delivered 18 February 2014), the NGT directed for environmental compensation of Rupees Ten Lakhs to the aggrieved farmers at Vapi, Gujarat due to the hazardous waste pollution.

The progress of environmental justice in India has been on increasing trend, with effective usage of NGT. While this reflects that there is a growing trust in NGT by the people, there may be enormous pressure on NGT, which needs more manpower, probably in the context that NGT aims to dispose of cases within 6 months. The effects of sensitive environmental issues that emerge from natural and man-made sources have caused the NGT to pronounce various directions for the benefit of environment protection, and for justice to victims affected by environmental damages. From the judgements examined for the cases of the year 2016, the majority were from two major sectors, namely Industry Operations and Nature. These sectors cover various issues such as Impact Assessment, Environmental clearances, small industrial units, consent, standards for operation, Nature conservation, forests, tree cutting, green belts, wetlands, landscape and construction. As a recommendation based on the present research work, we can suggest that since more petitions for environmental justice were from the sectors of Industry Operations and Nature, there needs to be more attention given to the related matters of environmental clearances and monitoring activities.

The way in which the issues have been handled and justice given by the NGT shows that the judiciary is there for each and every common man as his right to live in a pollution-free environment, as emphasised in Article 21 of the Constitution of India. This has stressed the importance of the doctrine of public trust, which enjoins the State to act as a trustee of the natural resources for the benefit of all human beings. From the above study, we can understand that NGT is seen as ‘Responsive to Environmental Problems’, as one of the characteristics of any successful environmental court.

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Acknowledgements

We wish to thank the Director, NCSCM, Chennai for providing support for the research work. Views expressed are those of the authors only and not necessarily those of the affiliated organisations.

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Sridhar Rengarajan, Dhivya Palaniyappan, Purvaja Ramachandran & Ramesh Ramachandran

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Rengarajan, S., Palaniyappan, D., Ramachandran, P. et al. National Green Tribunal of India—an observation from environmental judgements. Environ Sci Pollut Res 25 , 11313–11318 (2018). https://doi.org/10.1007/s11356-018-1763-2

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Received : 23 August 2017

Accepted : 13 March 2018

Published : 23 March 2018

Issue Date : April 2018

DOI : https://doi.org/10.1007/s11356-018-1763-2

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Environmental Law and Policy in India: Cases and Materials (3rd edn)

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This book studies environmental law and policy in India, which affects all sections of society. Those most deeply affected by it are the poor. They are the first victims of poor sanitation, polluted air, and contaminated water. Since the 1970s, efforts to protect environmental quality have met with limited success, posing enduring challenges for policy designers and decision-makers entrusted with protecting and preserving natural resources. This third edition retains the familiar analytical structure of the second edition and includes all major developments since then. It focuses on Indian environmental law, policy, problems, and needs. The book covers air and water pollution, forests, wildlife, noise pollution, common property resources and tribal communities, environmental impact assessment, coastal regulations, large projects, urban problems, the National Green Tribunal, hazardous substances, transnational environmental policies, and international environment law. In addition, It identifies and analyses emerging conflicts in Indian environmental jurisprudence with a focus on environmental justice.

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Ten Most Important Environmental Law Judgments in India

In this article, Sachin Vats of Rajiv Gandhi National University of Law discusses Ten Most Important Environmental Law Judgments in India.

The Indian Heritage and Culture has an intimate relation with the conservation and protection of the environment. The Indian State has also enshrined it in the Constitution which requires both the State and the Citizen to “protect and improve the environment”. The Environment Act, 1986 is one of those acts which extends to the whole of India without any exception.  

Constitutional Interpretation of Environment:-

• The 42nd Amendment to the Constitution of India added Article 48A and 51A(g) which comes under the Directive Principle of State Policy and the Fundamental Duties respectively.The Supreme Court of India in “ Sachidanand Pandey v. State of West Bengal AIR 1987 SC 1109 ” stated that the Court is bound to bear in mind the above said articles whenever a case related to Environmental problem is brought to the Court.
• The Article 48A states: “The State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country.”
• The Article 51A(g) imposes a duty upon every citizen of India to protect and improve the natural environment and confers right to come before the Court for appropriate relief.
• The Apex Court in “ Damodar Rao v. S.O. Municipal Corporation AIR 1987 AP 171 ” held that the environmental pollution and spoliation which is slowly poisoning and polluting the atmosphere should also be regarded as amounting to violation of Article 21 of the Indian Constitution.

Public Liability and Public Nuisance:-

• “ M.C. Mehta and Anr. Etc vs. Union Of India and Ors. Etc 1986 SCR (1) 312” discusses the concept of Public Liability. This case is also known as Oleum Leakage Case. It is a landmark judgment in which the principle of Absolute Liability was laid down by the Supreme Court of India. The Court held that the permission for carrying out any hazardous industry very close to the human habitation could not be given and the industry was relocated.
• The instant case evolved the “Deep Pocket Principle”. This judgment guided the Parliament to add a new chapter to the Factory Act, 1948. The Public Liability Act was passed and the policy for the Abatement of Pollution Control was also established.
• When the Directive Principles of State Policy has clear statutory expressions then the Court will not allow Municipal Government to make fun of the Statutes by sitting idly. It was decided by the Supreme Court in the “ Municipal Corporation, Ratlam vs. Vardhichand AIR 1980 SC 1622” . The plea of lack of fund will be poor alibi when people in misery cry for justice. The office in charge and even the elected representatives will have to face a penalty if they violate the constitutional and other statutory directives.

Sustainable Development

• The Bench of Justices PN Bhagwati and Ranganath Mishra in “ Rural Litigation and Entitlement Kendra, Dehradun vs. State of Uttar Pradesh AIR 1987 SC 2187” introduced the concept of “Sustainable Development”.An NGO named RLEK filed a case against limestone quarrying in the valley in 1987.
• It was stated that the permanent assets of mankind are not to be exhausted in one generation. The natural resources should be used with requisite attention and care so that ecology and environment may not be affected in any serious way.

Environmental Impact Assessment

• Justice Jeevan Reddy in the landmark judgment of “ Indian Council for Enviro-Legal Action vs. Union of India AIR 1999 SC 1502 ” held that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution by adopting the “Polluter Pays Principle”.
• The Court set a time limit for the coastal states to formulate coastal management plans and banned industrial or construction activity within 500 metres of the High Tide Line.

Water Pollution

• The writ petition filed by the activist advocate M.C. Mehta in the Supreme Court highlighted the pollution of the Ganga river by the hazardous industries located on its banks. Justice ES Venkataramiah gave a historic judgement in “M .C. Mehta vs. Union of India AIR 1988 SCR (2) 538 ” ordering the closure of a number of polluting tanneries near Kanpur.
• In this judgment it was observed that just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot setup a primary treatment plant cannot be permitted to continue to be in existence.

Animal Welfare

• The Hon’ble Supreme Court in prohibited Jallikattu and other animal races and fights. It was observed that the Bulls cannot be performing animals in the case of “ Animal Welfare Board of India vs. A. Nagaraj and Ors. (2014) 7 SCC 547 ”.
• The court alluded to the section 3 and section 11 of the Prevention of Cruelty to Animals Act, 1960 and declared that animal fights incited by humans are illegal, even those carried out under the guise of tradition and culture. The Court listed various recommendations and overhauled the penalties and punishment in the Prevention of Cruelty to Animals Act, 1960 to function effectively.

Air Pollution

• The pride of India and one of the wonders of the world i.e., Taj Mahal, was facing threat due to high toxic emissions from Mathura Refineries, Iron Foundries, Glass and other chemical industries. The acid rain was a serious threat to the Taj Mahal an 255 other historic monuments within the Taj Trapezium.
• The Apex Court in “ M.C. Mehta vs. Union of India (Taj Trapezium Case) AIR 1987 ” delivered its historic judgment in 1996 giving various directions including banning the use of coal and cake and directing the industries to Compressed Natural Gas (CNG).

Environmental Awareness and Education Case

• The Supreme Court in “ M.C. Mehta vs. Union of India WP 860/1991 ” ordered the Cinema theatres all over the country to exhibit two slides free of cost on environment in each show. Their licenses will be cancelled if they fail to do so. The Television network in the country will give 5 to 7 minutes to televise programmes on environment apart from giving a regular weekly programme on environment.
• Environment has become a compulsory subject up to 12th standard from academic session 1992 and University Grants Commission will also introduce this subject in higher classes in different Universities.

Wildlife and Forest Protection Case

• The livelihood of forest dwellers in the Nilgiri region of Tamil Nadu was affected by the destruction of forests. The Supreme Court in “ TN Godavarman Thirumulpad vs. Union of India and Ors. ” passed a series of directions since 1995, till the final judgment in 2014.
• The Apex Court decided to set up a Compensatory Afforestation Funds Management and Planning Authority (CAMPA) to monitor the afforestation efforts, to oversee th compensation who suffered on account of deforestation, and to accelerate activities for preservation of natural forests.
• A writ petition was filed by the Tarun Bharat Sangh in the Supreme Court to stop mining activities in the Sariska Wildlife Sanctuary. The Court in the case of “ The Tarun Bharat Sangh vs. Union of India and Ors. (1991) ” banned all the mining activities in the Sanctuary.

Public Trust and Right to Life

• The Bench of Justices Kuldip Singh and Sagir Ahmed held that the Government violated the Doctrine of Public Trust in “ M.C. Mehta vs. Kamal Nath and Ors. (1996) ”. The Himachal Pradesh State Government had leased out a protected forest area on the bank of river Beas to motels, for commercial purposes.
• In 1996, the Supreme Court passed a judgment that would hold the State more responsible for maintaining natural resources.
• The Right to Pollution Free Environment was declared to be a part of Right to Life under Article 21 of the Constitution of India in the case of “ Subhash Kumar vs. State of Bihar and Ors. (1991) ”. Right to Life is a Fundamental Right which includes the Right of enjoyment of pollution free water and air for full enjoyment of life.  

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India Program

Project overview.

In 1998, ELI launched its India Program to promote environmental law, policy, and management in India. The Institute works in conjunction with the government, NGOs, industry, and academic institutions to strengthen the legal, policy, and institutional infrastructure for sustainable development, environmental protection, and natural resource conservation in India. ELI has worked with its partners to build the capacity of the judiciary and enforcement agencies, to build the capacity of civil society to participate in environmental decision making, to build the capacity of industry to comply with environmental law, and to strengthen implementation of environmental law.

Senior Attorney John Pendergrass leads ELI’s India Program.

Enforcement Capacity-Building for Indian States

In 2010, ELI began working with the U.S. Environmental Protection Agency and the Ministry of Environment and Forests of Indian to build the capacity of state officials to enforce India’s environmental laws. The three organizations plus the Central Pollution Control Board (India) collaborated on a “Workshop on Environmental Compliance and Enforcement,” which took place on January 18 and 19, 2011, at the Environment Protection Training and Research Institute (EPTRI) in Hyderabad, Andhra Pradesh. 

After the workshop, ELI focused on building the capacity of the hazardous waste staff of the State Pollution Control Boards (SPCBs) of Andhra Pradesh, Karnataka, and Gujarat. ELI engaged the National Law School of India University (NLSIU) to research India’s hazardous waste rules and case studies on best practices in enforcing the rules. NLSIU and ELI drafted Enforcing Hazardous Wastes Rules in India: Strategies and Techniques for Achieving Increased Compliance .

Study Tour on Hazardous Waste Management for State Pollution Control Board Officials

In August 2013, ELI hosted nine high-ranking enforcement officials from India on a U.S. study tour that focused on the enforcement of hazardous waste rules. The group heard from hazardous waste enforcement officials from Wyoming, Maryland, and the U.S. EPA. They also met with members of the environmental justice community, developers building on  brownfields, and a private cement manufacturer with experience incinerating hazardous waste. Participants were members of the SPCBs of the states of Andhra Pradesh, Karnataka, and Gujarat.

Factory Manager Compliance Training

Since 2003, ELI has worked with industry, state pollution control boards, NGOs, and academia to build the capacity of India’s private sector to comply with environmental law. Supported by the GE Foundation and by USAID, and working with Environmental Management and Policy Research Institute (EMPRI) of Bangalore and the Federation of Indian Chambers of Commerce and Industry (FICCI), ELI developed two courses for managers of small and medium sized enterprises on how to comply with environmental law. FICCI and ELI delivered a pilot workshop to managers of electroplating facilities clustered in Mathura in northern India.

Contemporaneously, EMPRI and ELI delivered a pilot workshop in Bangalore for a diverse audience of managers of small and medium sized enterprises. In addition to segments on India’s water, air, hazardous waste, and other substantive laws, the course covered why it is beneficial to industry to comply with environmental law. Faculty included senior officials of the Karnataka State Pollution Control Board, Professor MK Ramesh, experts from NGOs and industry, and ELI Senior Attorney John Pendergrass. ELI and EMPRI prepared a Pocket Guide to Environmental Compliance, which provided information on the environmental rules applicable to industry. The Bangalore workshop included a site visit to a model facility to observe good environmental management in practice. A follow up session three months later demonstrated the value of the training as the majority of participants described specific improvements to environmental performance at their facilities.

In 2008, with additional support from several multinational corporations in India, ELI worked with academic institutions and state pollution control boards in Gujarat and Karnataka to expand the coverage of the course to include segments on occupational health and safety and product stewardship and to involve managers from staff of suppliers. The courses were hosted by Indus Institute of Technology and Engineering in Ahmedabad and the National Law School of India University (NLS) in Bangalore, with the respective state pollution control boards as additional sponsors and speakers. In Ahmedabad, the course was keynoted by India’s retired Chief Justice PN Bhagwati, author of several seminal decisions by the Indian Supreme Court on environmental rights. ELI and its academic, industry, and state pollution control board partners repeated the course in Bangalore in November 2009 and in Ahmedabad and Bangalore in January 2011.

Building the Capacity of Judges to Enforce Environmental Law

India’s Supreme Court has been a leader in improving access to courts for poor and disenfranchised citizens, remedying pollution, and providing relief for damage claims in environmental cases, but trial courts have not followed this lead. Beginning in 1999, ELI collaborated with state High Courts, judicial academies, and NGOs to build the capacity of trial court judges to implement environmental law. ELI convened, with NLS, a two-day planning meeting of leading jurists from Maharashtra, Karnataka, Tamil Nadu, and Kerala to discuss the needs for educational programs for judges on environmental law and specific topics to be covered. The judges included some of the leading green bench judges at the time as well as those active in judicial education generally. As a result of this workshop the Bombay High Court asked ELI to organize a workshop for judges in Maharashtra. ELI and the Lawyers Collective delivered the first such workshop on environmental law for High Court and trial judges from Maharashtra in Mumbai in 2000.

ELI was asked by Center for Advancement in Environmental Law to assist it in delivering a course for trial court judges from Orissa. The workshop for fifty trial court judges was held in Bhubaneswar, Orissa in 2002, with ELI Senior Attorney John Pendergrass as a featured speaker on enforcement, access to information, and access to justice. Also in 2002, ELI partnered with the Judicial Academy of Karnataka, the High Court of Karnataka, and Environment Support Group, an NGO in Bangalore, to hold a workshop for trial court judges from Karnataka. The following year, in partnership with the Centre for Environmental Education - Lucknow and the Judicial Training and Research Institute (JTRI), ELI conducted a program for thirty trial judges from Uttar Pradesh. The workshop was designed so that the faculty of the JTRI would be capable of providing similar training in the future. Several judges noted that the program had opened their eyes to a new area of the law.

Building the Capacity of Enforcement Officers to Litigate Environmental Cases

During 2002, ELI worked with the Ministry of Environment and Forests (MoEF) and the Central Pollution Control Board to develop a workshop to build the capacity of enforcement officials of the central and state pollution control boards (SPCBs) to effectively litigate enforcement cases. The workshop included exercises designed to allow the participants to practice skills learned during the program, such as drafting affidavits and other legal documents essential to litigating enforcement cases. Enforcement staff from twelve SPCBs participated in the program along with staff from the legal cell of the CPCB.

Building Capacity of the Public to Participate in Environmental Decision-Making

Public participation is a critical element of environmental governance and is key to India’s sustainable development and conservation efforts. Including citizens’ voices in decision-making promotes governmental accountability and increases the likelihood that decisions will take into account the concerns of those directly affected by them. Effective public participation requires the recognition of environmental rights and a citizen cause of action, standing before the courts, clear environmental standards, access to information, genuine opportunities for participation and clearly defined procedures for such participation, and an independent and well-informed judiciary. ELI, through its judicial training programs and through workshops and study tours for NGO activists and environmental lawyers, has worked to foster the conditions in India in which public participation can thrive. ELI held its first study tour for environmental lawyers and activists in 1998. This tour included a week in Washington focusing on federal environmental programs, federalism, and civil society’s involvement in national environmental issues. A second week included participation in the annual meeting of environmental activists in Eugene, Oregon, where the study tour participants joined counterparts from all over the world to discuss citizen activism in environmental issues. A second study tour following a similar model was held in 2003 and included judges as well as lawyers and representatives of civil society.

In 1999, ELI and its local partner, the Center for Science and the Environment (CSE), held a two-day NGO Workshop on Public Participation in Environmental Decision-making in New Delhi to identify strategies for more effective involvement of civil society in environment and development decisions in India. More than forty public interest lawyers, NGO representatives, and journalists participated in this workshop. Workshop participants exchanged ideas on Access to Justice, the Right to Information, the Right to Natural Resources, and Civil Society Interventions.

Assessment of State Implementation of Environmental Law (1999)

ELI, in conjunction with local partners TERI, the Center for Symbiosis of Technology, Environment, and Management (STEM), and the C.P.R. Environmental Education Centre (CPREEC) developed detailed case studies on the implementation of environmental law at the state level. These studies analyzed Karnataka’s efforts under the 1989 Hazardous Waste Rules, the Environmental Audit Statement requirement in Tamil Nadu, and implementation of Supreme Court-ordered air pollution measures for foundries in West Bengal. Each of these studies diagnosed implementation problems at the local level, and also provided recommendations for improving the effectiveness of implementation of the law.

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Environmental Laws – Notes, Case Laws And Study Material

Access comprehensive resources on environmental laws, including notes, case laws, and study material for in-depth understanding..

The environment is the wellspring of life on earth. Environmental laws have assumed greater importance in the past few decades because of climate change and global warming. However, the concept of environmental protection and preservation is not new. It has been intrinsic to many ancient civilizations. Ancient Indian texts highlight that it is the dharma of each individual in society to protect nature. The ancient Hindu text Atharvaveda states:

"What of thee I dig out, let that quickly grow over".

Legal Bites has created the best study material on environmental laws on the internet. The three modules of this course will help readers get an in-depth knowledge of topics ranging from the Environmental Protection Act, 1986 to the National Green Tribunal Act, 2010. The study material also provides an excellent analysis of wide-ranging environmental issues as well as both Indian and international environmental laws. Keep reading to find out more.

Important articles and study material on Environmental Laws – Click on the links to Read

• Protection of Environment in the Ancient Indian and Medieval Period
• Protection of Environment During the British Period: Major Legislations
• Protection of the Environment Post-Independence
• Future Environmental Law Challenges: A Perspective
• Development and Environment: The Conflict of Interest
• 20 Landmark Cases relating to Environmental Laws in India
• Nature and Scope of Environment laws
• Environmental Protection Act, 1986 In A Nutshell
• Environmental Protection under the Indian Constitution
• Fundamental Right To a Clean and Healthy Environment
• Right to a Wholesome Environment
• Public Awareness and its Contribution towards the Prevention of Environmental Degradation in India
• Environmental Impact Assessment | Explained
• Fundamental Principles of International Environment Law
• National Green Tribunal Act, 2010; An Overview
• Natural Resources Accounting; All You Need To Know

Module IV (Important Cases)

• Vellore Citizens Welfare Forum v. Union of India & Ors, (1996)
• Narmada Bachao Andolan v. Union of India and Ors, (2005)
• Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Association
• MC Mehta v. Union of India (2002) | CNG Vehicle Case
• Rural Litigation and Entitlement Kendra & Ors. v. State of Uttar Pradesh & Ors. (1985)
• Pradeep Kishen v. Union of India, (1996) | Forest Rights of Tribals
• Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors., (1985)
• MC Mehta v. Union of India (1996)
• Karnataka Industrial Areas Development Board v. C. Kenchappa, (2006)

Noise Pollution and Regulatory Framework

Judicial Contributions to Environmental Protection and Conservation

• Laws enacted to control Air Pollution

Case Analysis: Vellore Citizens Welfare Forum v. Union of India & Ors, (1996) | Significance of the 'Precautionary Principle' & the 'Polluter Pays Principle'

• Environmental Impact Assessment: From a National and International Perspective
• Environmental Justice, Equity and Governance
• Water (Prevention And Control of Pollution) Act, 1974 – Bare Act
• The Wildlife (Protection) Act, 1972 – Bare Act
• Law of Torts & Environment
• Law of Crimes & Environment
• Role of Indian Judiciary in the evolution of Environmental Jurisprudence
• Absolute Liability: A Journey from Strict Liability
• Polluter Pays Principle: An Economic Or A Legal Principle?
• Environmental Degradation
• Public Trust Doctrine
• Firecrackers Ban: Inter-relation between Constitutional and Environmental Law
• Growth and Emergence of Sustainable Development
• The Intersection of Human Rights and Environmental Law

Your valuable feedback in the form of comments or any desired inputs are encouraged and always welcome. Every contribution toward a goal is valuable, regardless of how small it may be.

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Legal Bites Study Materials correspond to what is taught in law schools and what is tested in competitive exams. It pledges to offer a competitive advantage, prepare for tests, and save a lot of money.

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Introduction to Environment and Environmental Law

• Environment Law Blogs Subject-wise Law Notes
• May 10, 2021

Introduction

Environment is an essential element in the lives of humans. Destruction of environment can affect the livelihood of the people. Environmental laws are essential to protect the environment from exploitation of man-made activities. It ensures and provides guidelines to the people on conducting activities that might harm the environment. The laws are amended according to the problems faced by the country. Environment laws are not constant, they are evolving concept. The legislation and judiciary has contributed and shown great concern regarding environmental laws by passing important legislations and landmark judgements respectively. Before looking into the legislations enacted under environmental laws, let us try to understand the meaning of environment.

Meaning of Environment

The term environment is derived from a French word ‘Environia” which means to surround. In other words environment can be defined as the sum total of all the living and non-living things and their effects that influence human life.

In layman’s words, environment refers to the physical elements. It includes the land, water and air. It is the living ecosystem that maintains the existence of human life. Destruction of the environment can lead to various calamities. In order to prevent such disaster or calamities, laws are implemented to protect the environment for the livelihood of present and future generations

Environmental Protection Act, 1986:- Section 2(a) states that environment 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 and property.

Environmental Issues Faced in India

The main environmental issues faced in India are pollutions namely air pollution, water pollution, noise pollution, disposing chemical waste improperly, leakage of harmful gases, etc. are just few among the environmental problems.

Pollutions refer to imbalance caused in the environment through the actions of humans. This imbalance can lead to health-related issues which can affect the future generations. It is caused by man-made activities. It is necessary to protect the environment because the present generations are mere care-takers of the future generations. It is their responsibility to give the earth to the future in a proper and healthy manner. Let us try to understand the different types of pollution and their effects on the environment.

Air Pollution:

“Air pollution is the release of pollutants such as gases, particles, biological molecules, etc. in to the air that is harmful to human health and the environment.” In other words, it refers to the contamination of air by harmful gases, dust and smoke which affect biotic and abiotic things. It is necessary to maintain the correct amount of gases present in the atmosphere such as 78% of nitrogen, 21% of oxygen and the remaining is other gases. When there is an increase of other gases in the atmosphere it can result in global warming, ozone layer depletion, cancer diseases, breathing issues, skin problems, acid rains, asthma, etc.

For example: Delhi is the existing example of air pollution. It causes a new weather in Delhi know as smog which is a mixture of smoke (emitted from vehicles, factories and other sources) and fog. It causes serious health issues for the people living there.

Noise/Sound Pollution

Noise pollution refers to that unwanted sound that interferes with a person’s peaceful existence. India is a developing country. Movement of people and goods for such economic and urban development is necessary. As a result, there is immense noise produced by the trains, buses, vehicles, trucks, airplanes, huge rallies for various reasons, etc. In residential areas we can see loud music played by residents. High noises levels can lead to cardiovascular and permanent hear impairment. It can even cause change in the behavioural aspect of a person. It can cause stress, lack of sleep, and other harmful effects on the health of an individual. Moreover, this earth not only belongs to humans. Loud noises can frighten animals as well; it can cause sudden heart attacks to such animals.

Water Pollution

Water pollution is the contamination of water bodies with man-made affluents, chemicals, waste, etc. Such disposal is harmful for humans and the living organisms in such water-bodies. There are instances of where the court has stopped an industry from functioning due to improper disposable of waste in the locality. The effect of water pollution often leads to death, skin rashes, pinkeye, respiratory infections, tuberculosis, etc. Three-fourth of the Earth is covered with water. But less than 1% of the earth’s freshwater is accessible to us.

Land Pollution

This pollution is on-process and the effects such pollution will be evident at an unexpected situation. The land is abused and deteriorating constantly. This is caused by the solid wastes, untreated chemical affluents, etc. In other words, it is the degradation or destruction of the soil and groundwater.

Evolution of Environmental Laws

Pre-Independence Era Environmental Law

The necessity of environmental hygiene is seen from the historical evidences of Indus valley civilisation where there is ventilated houses, proper drainage systems, etc. This continues till the current era. But proper legislations were established during the British era i.e. 1800-1947 AD. The following are the legislations:-

• Shore Nuisance (Bombay and Kolaba) Act, 1853
• Merchant Shipping act, 1858
• Offences that pollute the environment were included in the Indian Penal Code, 1860 and it was punishable under Chapter XIV of the code.
• The Fisheries Act, 1897
• The Bengal Smoke Nuisance Act, 1905
• The Bombay Smoke Nuisance Act, 1912
• Wild Birds and animals Protection Act, 1912
• Indian Forest Act, 1927

Post-independence Era Environmental Law

When India got independence from British Rule, India formed its own constitution by 1950 but The leaders of the country gave more priority to the economic development and elimination of poverty in the country. As a result, the constitution did not deal much about the environmental aspects. It was only in 1972, during a United Nations Conference on Human Environment held at Stockholm led to adoption of various measures to preserve the environment and prevent pollution. Accordingly, Indian Parliament inserted two Articles, i.e., 48A and 51A in the Constitution of India in 1976.

• Article 48 A states that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
• Article 51A: This article mentions the Fundamental Duties that should be followed by the citizens. It also mentions to protect and improve the natural environment including forest, lakes, rivers and wild life, and to have compassion for living creatures.
• Apart from these two articles, Article 21 of the constitution includes the right to clean and healthy environment.

The National Council for Environmental Policy and Planning was set up in 1972 which was later evolved into Ministry of Environment and Forests (MoEF) in 1985.

The various legislations that came post-independence are as follows-

• The Prevention of Air and Water Pollution, 1974, 1981. It was in this act that the Central Pollution Control Board (CPCB) was constituted.
• The Forest Conservation Act, 1980. It was enacted by the Central govt to provide conservation of forests and matters connected with deforestation
• The Air Prevention and Control of Pollution, 1981.
•  The Environmental Protection Act, 1986. It came into force soon after the Bhopal Gas Tragedy.
•  The Environmental Conservation Act. 1989.
• The National Environmental Tribunal, 1995.
• National Environmental Appellate Authority Act, 1997.
• National Environment Management Act (NEMA), 1998
• Handling and Management of Hazardous Waste Rule in 1989.
• The Public Liability Insurance Act (Rules and Amendment), 1992

Case Laws That Shaped Environmental Laws

• Chipko Movement, 1973:

A major impact of the Chipko movement or the Chipko andolan was that it prompted the Union government to amend the Indian Forest Act, 1927, and introduced the Forest Conservation Act 1980, which says forest land cannot be used for non-forest purpose.

• M.C. Mehta v. Union of India & Ors.

(AIR 1987 SC 1086) Writ Petition (Civil) No. 12739 of 1985

Shriram Food Fertilizer Case/ Oleum Gas Leak Case

This case deals with the leakage of oleum gas leaks on 4 th and 6 th of December, 1985. This came immediately after the Bhopal Gas Tragedy case where many people died. As a result, there was a need to develop a new rule under Strict Liability without exceptions. This came to be known as Absolute Liability. This case led to the formation of Environment Protection Act, 1986.

(AIR 1997 SC 734) Writ Petition (Civil) No. 13381 of 1984

Taj Trapezium Case

The Supreme Court in Taj Trapezium case instructed the coal and coke industries that surrounded Taj Mahal should take alternative measures or else they should shift their industries to some other place. This measure was taken as a result of change in colour of India’s famous tourist destination, Taj Mahal. At the same time the quality of air, water and land started being harmful for the residents of the area. It was essential to protect the rights of people enshrined in Article 21.

(AIR 1988 SC 1037) Writ Petition (Civil) No. 3727 of 1985

Ganga Pollution Case/ Kanpur Leather Tanneries Case

In 1985, M.C. Mehta filed a writ petition in the form of mandamus to prevent leather tanneries from disposing of the domestic and industrial waste and effluents in the Ganga River. The Supreme court stated that Article 51-A of the Constitution of India imposes a fundamental duty on every citizen to protect and improve the natural environment, including forests, lakes, rivers, and wildlife. The Court also stated the importance of the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act). This act was passed to prevent and control water pollution and maintaining water quality. This act established central and stated boards and conferred them with power and functions relating to the control and prevention of water pollution. 

• Indian Council for Enviro-Legal Action v. Union of India

Writ Petition No. 967 of 1989

Ground Water Pollution Case

A PIL was filed under Article 32 for the violation of Article 21. Various protests occurred over the presence of industries causing large scale environmental pollution and endangering the lives of the villagers who resided in the vicinity of the industries. The SC initiated instant action and ordered Central Govt to constitute strict measures against the said industries. It upheld the doctrine of Absolute Liability stating that the polluted environment must be restored to pollution free for the healthy living by utilising anti-pollution scientific appliances. The industries were liable for monetary damages for restoration of the environment.

• Vellore Citizen’s Welfare Forum v. Union of India

(AIR 1996 SC 2715) Writ Petition (Civil) No. 914 of 1991

Tamil Nadu Tanneries Case

The petition was filed against the excessive pollution caused by the tanneries and other industries in the State of Tamil Nadu in the River Palar. This river is the main source of drinking and bathing water for the surrounding people. The Supreme Court directed that all attempts should be taken to improve the situation and guided all the Tanneries to submit a  Rs.10,000 as fine in the Collector’s office. The Court additionally coordinated the State of Tamil Nadu to grant M. C. Mehta with an entirety of Rs. 50,000 as gratefulness towards his endeavours for the security of the Environment.

For Important Case Laws of Environmental Law, Click Here.

For more articles on Environmental Law, Click Here.

For law notes, Click Here.

Author Details: Silpa Ann Koshy (Kristu Jayanti College of Law)

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Why Goa could be the next Wayanad

Goa's landscape — characterised by plateaus and steep slopes — is particularly vulnerable to erosion and landslides if its natural features are disturbed..

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• Goa’s 400-odd villages have played a crucial role in protecting these hills
• For generations, the local communities have regarded the hills as sacred,
• However, this reverence is under threat, as infrastructure projects boom

In the wake of the devastating landslide in Kerala's Wayanad, in July, which claimed hundreds of lives, concerns are rising among environmentalists and residents in Goa.

The fear is that unchecked hill-cutting in the state could lead to similar catastrophic events. Goa, a state known for its unique topography and rich biodiversity in the Western Ghats, is facing rampant destruction of its hills to facilitate commercial and infrastructural developments.

Environmentalists are intensifying their efforts to halt what they describe as "massive hill-cutting," driven by both private and government-led construction projects.

The situation has been exacerbated by recent amendments to the Town and Country Planning (TCP) Act, specifically Section 39A, which grants the chief town planner significant authority to alter regional and development plans.

Critics argue that this change concentrates too much power in a single office, allowing land to be rezoned with minimal oversight. Activists believe that this move is intended to fast-track commercial ventures, bypassing the rigorous scrutiny such projects typically require.

Prabhudessai and other activists emphasise that these developments are short-sighted and could cause irreversible damage to Goa's natural ecosystems. They point out that unchecked construction could lead to a loss of biodiversity, increased pollution, and water shortages. Furthermore, they argue that these decisions are being made without adequate public consultation, sidelining local communities and environmental experts.

"There is no permission for hill-cutting that has been given by my department in the last six months," Rane said, adding that his department has filed 900 complaints about such activities. However, environmentalists remain unconvinced, pointing to ongoing projects like those along National Highway 17B, where hill-cutting continues unabated.

As hill-cutting and construction accelerate, environmentalists fear that Goa is on the brink of an ecological crisis.

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Bengal’s ‘anti-rape’ law will actually reduce convictions, say experts. Here’s why

The bill, passed after public outrage over the rg kar medical college rape case in kolkata, has introduced the death penalty for rape..

The so-called anti-rape bill passed by the West Bengal Legislative Assembly on Tuesday is a political stunt that will actually make it harder to secure convictions in rape cases, legal experts have warned.

The bill prescribes the death penalty for rape. It also proposes special task forces and special courts in each district in the state to investigate and try rape and acid attacks on women. It has mandated that the police complete investigations of such offences within 21 days and that the accused be tried within 30 days.

Experts noted that though punishments for such crimes were made much more stringent in 2013 after the Delhi gangrape case the previous year, this has not had any significant impact on lowering the number of sexual assaults on women.

“Practically speaking, the higher the punishment, the less certain a conviction becomes,” said Delhi-based Senior Advocate Rebecca M John.

Instead, the experts said that better policing, enhancing the capacity of the criminal justice infrastructure and other non-legislative measures are more likely to deter crimes against women.

Bill’s provisions

The Aparajita Women and Child (West Bengal Criminal Laws Amendment) Bill, 2024, was passed weeks after a junior doctor was raped and murdered in Kolkata’s RG Kar Medical College and Hospital on August 9.

The legislation seeks to give discretion to courts to award the death penalty for the offences of rape and sexual offences against children.

At present, under the Bharatiya Nyaya Sanhita, among sexual offences against women, only the rape of a girl under 12, the gangrape of a girl under 18 years, the causing of injury during rape that may cause death of the victim or cause her to be in a persistent vegetative state, and a second conviction for rape may be punishable with death. The other rape-related offences under the Bharatiya Nyaya Sanhita and the Protection of Children from Sexual Offences Act are punishable with at most imprisonment for the remainder of the convict’s life.

The Bengal bill also prescribes a compulsory death penalty for the offence of committing rape and inflicting injury that results in the death of the victim or causes her to be in a vegetative state.

This is an unprecedented penal provision since no other offence in any other law has a mandatory death sentence.

The bill proposes to shorten the maximum time in which rape offences against women and sexual assault of children must be investigated from two months from when the first information report has been filed to less than half of it – 21 days. It mandates that courts conclude the trials of rape and acid attack cases within 30 days from when the chargesheet has been filed, halving it from the present time frame of two months.

West Bengal’s ruling All India Trinamool Congress Party has been urging the Union government to adopt similar measures across the country.

Given the harrowing statistic of a RAPE EVERY 15 MINUTES, the demand for a COMPREHENSIVE TIME-BOUND ANTI-RAPE LAW is more pressing than ever. BENGAL is leading the charge with its ANTI-RAPE BILL. The Union must now take decisive action - whether by ordinance or BNSS amendment in… — Abhishek Banerjee (@abhishekaitc) September 3, 2024

‘Ineffective, will reduce convictions’

Legal experts that Scroll spoke with severely criticised the bill, questioning its efficacy. They variously describing it as “a political gimmick”, “patronising”, “outrageous”, “disappointing”, “a knee jerk reaction” and “a form of showmanship”.

“The death penalty is awarded in the rarest of rare cases,” Rebecca John explained. “If death penalty or imprisonment for life are the only options before a judge, they will demand an excessively high standard of proof.”

Delhi-based advocate and women’s rights researcher Mihira Sood agreed. “When the death penalty is sought, one cannot expect shortcut justice,” she said. “In such cases, much greater judicial scrutiny comes into play. Judges might hesitate to convict, resulting in lower conviction rates.

She added: “This is not a serious measure. It won’t have any impact.”

Mumbai-based women’s rights lawyer Flavia Agnes told Scroll that after high-profile crimes against women take place, the death penalty and time-bound investigations and trials are always demanded.

But, she noted, their effectiveness is doubtful. “How often is the death penalty given?” she asked.

In the past ten years, only five persons have been executed by the death penalty in India after being convicted of crimes. At the end of 2021, there were 488 prisoners on death row across India.

All three experts made references to the criminal law amendment passed in 2013, in the wake of the 2012 Delhi gang rape and murder, popularly known as the Nirbhaya case and the public outrage it triggered.

The amendment broadened the scope of and increased punishments for offences against women. However, this has failed to significantly increase conviction rates for such crimes. In fact, a study of trial courts in Delhi found that convictions decreased considerably after the amendment.

“Without systematic changes, the only answer that the government has is to increase penalties,” rued John. “When things don’t change even after providing death penalty, what other option will the government have?”

Unrealistic timelines

The experts also criticised the timelines set by the bill for completing investigations and trials, contending that they were unrealistic.

“Time-bound investigations are a wonderful idea in theory, but can only be implemented properly when our infrastructure matches the needs of the population,” said Sood.

She added: “Public discourse must be measured and educated about what is the reasonable length of a trial.”

John noted that the Indian police does not “have a great track record in evidence collection”, which is “a difficult and cumbersome process”.

She said that instead of setting unreasonable timelines, police personnel should be trained to collect evidence more efficiently, a sufficient number of forensic laboratories should be set up to issue reports within the time frame, and storage facilities for evidence with air-conditioning should be constructed to preserve evidence.

She also flagged the possibility of investigating police officers blaming innocent persons under pressure of complying with these timelines.

Sood noted that delays are more likely to be due to the lack of infrastructural capacity rather than intentional tardiness or apathy by the courts or police. “Not every step can be fast-tracked,” she said.

She added, “The capacity of our system must be increased to match its caseload.”

Highlights of the anti-rape bill passed by West Bengal Assembly Read more here: https://t.co/jRjtnbwYGX pic.twitter.com/UeJUltVYWL — Bar and Bench (@barandbench) September 3, 2024

Reforms actually needed

Instead of instinctively reaching for the death penalty to quell public outrage in cases of crimes against women, there are several systemic and structural solutions to these attacks, experts said.

India needs more regular courts with trained judges, rather than fast-track courts, said Sood.

Agnes’ suggestion was one which is widely accepted in the criminal justice world as a deterrent. “We need certainty of punishment, not higher punishment,” she said.

John said that the solution should be prevention rather than prosecution. “There should be socio-cultural conversations about how we treat women and why they face such attacks,” she said.

She added: “The answer to brutal crimes is better policing, better care, better safety, constitutional equality between men and women.”

• West Bengal
• Death penalty