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VOLUME 1 ISSUE 1 2020

BURNISHED LAW JOURNAL

Pradip Kumar Kashyap & Sunit Dwivedi

Laws and Institutions Relating to Environmental Protection in India: Challenges for Enforcement

Pradip Kumar KashyapSunit Dwivedi1

“Earth provides enough to satisfy every man's needs, but not every man's greed.”

-Mahatma Gandhi

Abstract

The development of Indian environmental law has happened, for the most part, over the last

three decades, with a significant level of polarization around the latter half of this period.

Therefore, a paper detailing “recent developments in India” would necessarily involve a

thorough discussion of most relevant environmental issues and their consequences. The

development of the law in this area has seen a considerable share of initiative by the Indian

judiciary, particularly the higher judiciary, consisting of the Supreme Court of India, and the

High Courts of the States. The paper will dwell on this aspect and its effect on the strength of the

legal framework. Legislative schemes and initiatives have been created in most areas involving

the environment, albeit with some degree of overlap. The role of the administration, although a

critical factor in the success of any environmental management programme, has seen its share of

problems of scale and definition. The essence of the existing law relating to the environment has

developed through legislative and judicial initiative.

Through this article I would like to focused on the following matters

a) Phases of the Evolution of Environment Law

b) The Constitutional Framework, Legislative Measures for Protection of Environment

c) Role of Indian Judiciary in Environmental Protection

1 Research Scholar, CCS University Meerut,[email protected]., E-mail:- [email protected], P.no:- 08802437640

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d) Development of Environmental Law Principles

e) Challenges for Enforcement of Environment Legislation Effetely etc.

This research paper is totally based upon secondary source of data such as books, magazine,

newspaper, articles etc.

Key words: - Environment, Legislation, Sustainable Development, PIL, Hazards.

1. Introduction

Word "environment" is most commonly used describing "natural" environment and means the

sum of all living and non-living things that surround an organism, or group of organisms.

Environment includes all elements, factors, and conditions that have some impact on growth and

development of certain organism. Environment includes both biotic and a-biotic factors that have

influence on observed organism. A-biotic factors such as light, temperature, water, atmospheric

gases combine with biotic factors (all surrounding living species). Environment often changes

after some time and therefore many organisms have ability to adapt to these changes. However

tolerance range is not the same with all species and exposure to environmental conditions at the

limit of an certain organism's tolerance range represents environmental stress.

Environment is the immediate surrounding space around man. It includes a biotic and biotic

component. So environment not only means our environment but also varies of issues connected

with human activity and its impact on natural resources. It has been observed that in recent past

far reaching changes have taken place. Man has played a key role in modifying the environment

in his constant efforts towards improving the standard of living2

Today, the conservation, protection and improvement of human environment are major issues all

over the world. Human environment consists of both physical environment and biological

environment. Physical environment covers land, water and air. Biological environment includes

plants, animals and other organisms. Both physical and biological environment are inter-

dependent. Industrialization, urbanization, explosion of population, over-exploitation of

resources, disruption of natural ecological balances, destruction of a multitude of animal and

2 L.D Saini, Environmental Education, Kalyani Publisher, Ludhiana, p 1.



plant species for economic reasons are the factors which have contributed to environmental

deterioration.3

Environment is defined as the surroundings in which the organism lives. The environment may

be the physical environment, the chemical environment or the biological environment.Organisms

are dependent on the environment to fulfill their needs; man is also constantly interacting with

the environment in order to fulfill his needs. These needs include the basic needs of oxygen, food

and shelter in addition to the social needs like entertainment, medicines, etc. The things that man

requires for his survival and comfort are called the resources. The environment is a reservoir of

resources. Maintaining the natural resources of the environment and their careful use is called

conservation. The conservation of environment involves the conservation of the natural

resources.4

2. Phases of the Evolution of Environment Law in India

The evolution of environment Law in India can be divided into three phases.

The first phase can be dated back to pre Vedic age, when the Manusmriti is supposed to be

created. The society at that time respected and even prayed the environment, as the components

of environment, like animals, trees had considerable importance in our ancient texts. Examples

of this are, the concept of Panchvati and the fact that Manusmriti punishes for causing injury to

plants. Kautilya, described penal actions against a person hurting a tree on the basis of the

sanctity adorned to the tree. The nature of the duty of individual to protect the environment was

not only to punish the culprit but also to balance the eco system. The concept of Sustainable

Development as defined by the Brunt land Commission was the essence of duty imposed upon

an individual to protect the environment by the ancient manuscripts in India. These manuscripts

had the force of law, so these can be said to be the first phase of Environment Legislation in

India. Most of the laws were codified by the British in the second half of the 19 th century. .

Similarly many environment protection oriented legislation like- The Shore Nuisance Act, 1853,

Indian Forests Act, 1865, Wild Birds and Animals protection Act, 1912 -Explosive Substance

Act, 1908, The Poison Act, 1919. The objective of these laws was to protect the environment by

preventing discharge of polluting substances, by limiting or banning their discharge, and the

objective was also to prevent hunting, poaching and tree felling. In the Constitution of India, all 3Sachidanand Pandey v. State of West BengaAIR 1987 SC 1109.4Our Environment Introduction, Available at http://www.tutorvista.com/content/science/science-ii/ environment /introduction.php.


http://www.tutorvista.com/content/science/science-ii/%20environment


natural resources except forests were given to states for management and forests were kept in the

concurrent list. Many legislations like Water (Prevention and Control of Pollution Act), 1974,

Environment Protection Act, 1986, Air (Prevention and Control of Pollution Act), 1981. The

Article 48 and 51, Directive Principles of State Policy and Fundamental Duties of every citizen

of India, envisage to rotect the environment. These are some laws by which the Parliament began

its legislations on Environment.

The third phase of environment legislations began in India, when the Supreme Court over ruled

the principle of Strict Liability (Rylands v Fletcher) and formulated the principle of Strict

Liability in the case of MC Mehta v Union of India5, which says that for every non natural use of

land, by bringing a hazardous thing on that land, and if that escapes even without fault of

defendant, the defendant is absolutely liable for its escape and defenses are very less. During this

phase, the concept of filing a public interest litigation for environment related causes, where

anyone could approach the courts to stop an activity causing environmental degradation. Also

there are parameters like Environment Impact Assessment, Environment Management Plan

which every industry have to make and follow.6

3. The Constitutional Framework

Stockholm Declaration of 1972 was perhaps the first major attempt to conserve and protect the

human environment at the international level. As a consequence of this Declaration, the States

were required to adopt legislative measures to protect and improve the environment.

Accordingly, Indian Parliament inserted two Articles, i.e.,, 48A and 51A in the Constitution of

India in 19767. Article 48A of the Constitution rightly directs that the State shall endeavour to

protect and improve the environment and safeguard forests and wildlife of the country. Similarly,

clause (g) of Article 51A imposes a duty on every citizen of India, to protect and improve the

natural environment including forests, lakes, river, and wildlife and to have compassion for

living creatures. The cumulative effect of Articles 48A and 51A (g) seems to be that the 'State' as

well as the 'citizens' both are now under constitutional obligation to conserve, perceive, protect

and improve the environment. Every generation owes a duty to all succeeding generations to

develop and conserve the natural resources of the nation in the best possible way8. In the 5AIR 19876Raghav Joshi, Evolution of Environment Law in India, Available at http://lawpeedia.blogspot.in.7 Inserted by the Constitution (Forty-second Amendment) Act, 1976.8State of Tamil Nadu v. Hind Store, AIR 1981 SC 711; see also Rural Litigation and Entitle Ji: at Kendra v. State of Uttar Pardesh, AIR 1987 SC 359.


https://plus.google.com/108849682296709490415


Constitution of India it is clearly stated that it is the duty of the state to ‘protect and improve the

environment and to safeguard the forests and wildlife of the country’. It imposes a duty on every

citizen ‘to protect and improve the natural environment including forests, lakes, rivers, and

wildlife’. Reference to the environment has also been made in the Directive Principles of State

Policy as well as the Fundamental Rights. The Department of Environment was established in

India in 1980 to ensure a healthy environment for the country. This later became the Ministry of

Environment and Forests in 1985.

The constitutional provisions are backed by a number of laws – acts, rules, and notifications. The

EPA (Environment Protection Act), 1986 came into force soon after the Bhopal Gas Tragedy and

is considered an umbrella legislation as it fills many gaps in the existing laws. Thereafter a large

number of laws came into existence as the problems beganarising, for example, Handling and

Management of Hazardous Waste Rules in 1989.

3.1. Major Constitutional Amendments Related to Environment

The 42nd Constitution Amendment Act, 1976, inserted specific provisions for environmental

protection in the form of Directive Principles of State Policy and Fundamental Duties. Article

48A (Directive Principles) enunciates that ‘the state shall endeavor to protect and improve the

environment and to safeguard the forests and wild life of the country’. Article 51A (g)

(Fundamental Duties): ‘To protect and improve the natural environment including forests, lakes,

rivers, wildlife and to have compassion for living creatures’. Two entries 17A – Forests and 17B

– Protection to wild animals and birds were added in the Concurrent List.The 73rdand

74thConstitutional amendments of 1992 recognized the three-tier structure of the government by

devolution of power to the local bodies viz. panchayats in rural areas and municipalities in urban

areas. With the passage of bills by the state legislatures and devolving powers and allocating

revenue sources, these local bodies can become institutions of self-government. The eleventh

schedule contains environmental activities such as soil conservation, water management, social

forestry and non-conventional energy that panchayats can undertake. The twelfth schedule lists

activities such as water supply, public health and sanitation, solid waste management and

environmental protection which the municipalities can undertake.

4. Legislative Measures for Protection of Environment



It is possible to suggest with conviction that the beginnings of Indian environmental law were

sown at the United Nations Conference on the Human Environment held at Stockholm in 1972,

A National Committee on Environmental Planning and Coordination (NCEPC) was set up in the

Department of Science and Technology in 1972 to make necessary preparations for the

Conference. The Government of India took a number of steps to implement the decisions taken

at the Conference by means of amendments to the Constitution, new legislations relating to

environmental protection and creation of institutions for implementing the legislations. Many

Supreme Court judgments in the late eighties and the nineties refer to the decisions made at the

Stockholm Conference. The Bhopal gas tragedy claiming more than 3000 lives triggered the

passage of environmental legislations and formulation of rules relating to the use of hazardous

substances. where India was a participant, leading to some sort of realization that a framework of

laws was necessary to deal with environmental hazards that would result from the stage of

development that India was entering in the 1970s.9Prior to this phase, Indian environmental law

mainly consisted of claims made against tortious actions such as nuisance or negligence. The

Water (Prevention and Control of Pollution) Act of 1974 gave the statute book its first real

foundation for environmental protection. Other major enactments followed in 1980 (The Forest

(Conservation) Act), 1981 (The Air (Prevention and Control of Pollution) Act and 1986 (The

Environment (Protection) Act).

Apart from the constitutional mandate to protect and improve the environment, there are a plenty

of legislations5 on the subject but more relevant enactments for our purpose10Following are the

list of the environmental legislations that have come into effect.

1) General

2) Forest and wildlife

3) Water

4) Air

I. General

9 This is in contrast to laws in countries such as England, which were sometimes a direct result of some mass environmental disaster; for example, the Clean Air Act of 1956 was the outcome of the deadly smog that killed over 4000 people in London in 1952. (The Act has since been replaced by the Clean Air Act of 1993). See Harish Salve, “Justice between Generations: Environment and Social Justice”, Supreme But Not Infallible: Essays in Honour of the Supreme Court of India, Oxford University Press, New Delhi, 2000, pp.360-380. Salve adds: “In the fullness of time, political upheavalsbrought home the realization that freedom can only survive if it honours basic human rights and is founded onprinciples of natural justice.”10E.g. Indian Forest Act, 1927; the Factories Act, 1948; the Atomic Energy Act, 1962; insecticide 1968.


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The Environment (Protection) Act11 authorizes the central government to protect and

improve environmental quality, control and reduce pollution from all sources, and

prohibit or restrict the setting and /or operation of any industrial facility on environmental

grounds.This Act was enacted in the aftermath of the Bhopal gas tragedy 12claiming more

than 3000 lives. The Statement of Objects and Reasons of this Act refers to the decisions

taken at the Stockholm Conference in June 13 and expresses concern about the decline in

environmental quality, increasing pollution, loss of vegetal cover and biological diversity,

excessive concentrations of harmful chemicals in the ambient atmosphere, growing risks

of environmental accidents and threats of life system. According to this Act14

environment includes ‘water, air and land and the interrelationship which exists among

and between water, air and land, and human beings, other living creatures, plants, micro

organism and property’. It defines hazardous substance as ‘any substance or preparation

which, by reasons of its chemical or physiochemical properties or handling, is liable to

cause harm to human beings, other living creatures, plants, micro-organism, property or

the environment’

The Environment (Protection) Rules15 lay down procedures for setting standards of

emission or discharge of environmental pollutants.

The objective of Hazardous Waste (Management and Handling) Rules 16is to control the

generation, collection, treatment, import, storage, and handling of hazardous waste.

17The Manufacture, Storage, and Import of Hazardous Rules define the terms used in this

context, and sets up an authority to inspect, once a year, the industrial activity connected

with hazardous chemicals and isolated storage facilities.

18The Manufacture, Use, Import, Export, and Storage of hazardous Micro-organisms/

Genetically Engineered Organisms or Cells Rules were introduced with a view to protect

111986 12 in 198413 197214 Sec-2b151986 161989 17 1989 181989



the environment, nature, and health, in connection with the application of gene

technology and microorganisms.

The Public Liability Insurance Act and Rules and Amendment,19was drawn up to provide

for public liability insurance for the purpose of providing immediate relief to the persons

affected by accident while handling any hazardous substance.

The National Environmental Tribunal Act20 has been created to award compensation for

damages to persons, property, and the environment arising from any activity involving

hazardous substances.

The National Environment Appellate Authority Act21 has been created to hear appeals

with respect to restrictions of areas in which classes of industries etc. are carried out or

prescribed subject to certain safeguards under the EPA.

The Biomedical waste (Management and Handling) Rules22 is a legal binding on the

health care institutions to streamline the process of proper handling of hospital waste

such as segregation, disposal, collection, and treatment.

The Environment (Siting for Industrial Projects) Rules, 231999 lay down detailed

provisions relating to areas to be avoided for siting of industries, precautionary measures

to be taken for site selecting as also the aspects of environmental protection which should

have been incorporated during the implementation of the industrial development projects.

24The Municipal Solid Wastes (Management and Handling) Rules, 2000 apply to every

municipal authority responsible for the collection, segregation, storage, transportation,

processing, and disposal of municipal solid wastes.

The Ozone Depleting Substances (Regulation and Control) 25Rules have been laid down

for the regulation of production and consumption of ozone depleting substances.

191991 201995 211997 221998 231999 242000 252000



26The Batteries (Management and Handling) Rules, 2001 rules shall apply to every

manufacturer, importer, re-conditioner, assembler, dealer, auctioneer, consumer, and bulk

consumer involved in the manufacture, processing, sale, purchase, and use of batteries or

components so as to regulate and ensure the environmentally safe disposal of used

batteries.

The Noise Pollution (Regulation and Control) (Amendment)27 Rules lay down

such terms and conditions as are necessary to reduce noise pollution, permit use of loud

speakers or public address systems during night hours (between 10:00 p.m. to 12:00

midnight) on or during any cultural or religious festive occasion

The Biological Diversity Act28 is an act to provide for the conservation of biological

diversity, sustainable use of its components, and fair and equitable sharing of the benefits

arising out of the use of biological resources and knowledge associated with it

II. Forest and wildlife

The Indian Forest Act and Amendment, 198429, is one of the many surviving colonial

statutes. It was enacted to ‘consolidate the law related to forest, the transit of forest

produce, and the duty leviable on timber and other forest produce’.

The Wildlife Protection Act, Rules 1973 and Amendment 199130 provides for the

protection of birds and animals and for all matters that are connected to it whether it be

their habitat or the waterhole or the forests that sustain them.

The Forest (Conservation) Act and Rules, 31, provides for the protection of and the

conservation of the forests.

III. Water

262001 272002 282002 291927 301972 311981



1882 - The Easement Act allows private rights to use a resource that is, groundwater, by

viewing it as an attachment to the land. It also states that all surface water belongs to the

state and is a state property.

1897 - The Indian Fisheries Act establishes two sets of penal offences whereby the

government can sue any person who uses dynamite or other explosive substance in any

way (whether coastal or inland) with intent to catch or destroy any fish or poisonous fish

in order to kill.

1956 - The River Boards Act enables the states to enroll the central government in setting

up an Advisory River Board to resolve issues in inter-state cooperation.

1970 - The Merchant Shipping Act aims to deal with waste arising from ships along the

coastal areas within a specified radius.

1974 - The Water (Prevention and Control of Pollution) Act establishes an institutional

structure for preventing and abating water pollution. It establishes standards for water

quality and effluent. Polluting industries must seek permission to discharge waste into

effluentbodies.The CPCB (Central Pollution Control Board) was constituted under this

act.

1977 - The Water (Prevention and Control of Pollution) Cess Act provides for the levy

and collection of cess or fees on water consuming industries and local authorities.

1978 - The Water (Prevention and Control of Pollution) Cess Rules contains the standard

definitions and indicate the kind of and location of meters that every consumer of water is

required to affix.

1991 - The Coastal Regulation Zone Notification puts regulations on various activities,

including construction, are regulated. It gives some protection to the backwaters and

estuaries.

Leading Case:-



In the Ganga Water Pollution case32 the owners of some tanneries near Kanpur were

discharging their effluents from their factories in Ganga without setting up primary

treatment plants. The Supreme Court held that the financial capacity of the tanneries

should be considered as irrelevant while requiring them to establish primary treatment

plants. The Court directed to stop the running of these tanneries and also not to let out

trade effluents from the tanneries either directly or indirectly into the river Ganga without

subjecting the trade effluents to a permanent process by settingup primary treatment

plants as approved by the State Pollution Control Board.

IV. Air

1948 – The Factories Act and Amendment in 1987 was the first to express concern for

the working environment of the workers. The amendment of 1987 has sharpened its

environmental focus and expanded its application to hazardous processes.

1981 - The Air (Prevention and Control of Pollution) Act provides for the control and

abatement of air pollution. It entrusts the power of enforcing this act to the CPCB .

1982 - The Air (Prevention and Control of Pollution) Rules defines the procedures of the

meetings of the Boards and the powers entrusted to them.

1982 - The Atomic Energy Act deals with the radioactive waste.

1987 - The Air (Prevention and Control of Pollution) Amendment Act empowers the

central and state pollution control boards to meet with grave emergencies of air pollution.

1988 - The Motor Vehicles Act states that all hazardous waste is to be properly packaged,

labeled, and transported.

5. Role of Indian Judiciary in Environmental Protection

The Supreme Court and the High Courts have played an active role in the enforcement of

constitutional provisions and legislations relating to environmental protection. The fundamental

right to life and personal liberty 33has been held to include the right to enjoy pollution free air and

32M.C.Mehta v. Union of India, AIR 1988 SC 1037. See also Bhavani River v. Sakthi Sugar Limited AIR 1998 SC 2059.33 Article 21 of the Constitution.



water. In R.R. Delavoi v. The Indian Overseas Bank case34the Madras High Court pointed out:

‘Being aware of the limitations of legalism, the Supreme Court in the main and the High Courts

to some extent for the last decade and a half did their best to bring law into the service of the

poor and downtrodden under the banner of Public Interest Litigation. The right of a person to

pollution free environment is a part of basic jurisprudence of the land. The Supreme Court has

interpreted the right to life and personal liberty to include the right to wholesome environment.35

Judicial and Quasi Judicial Bodies for Environmental Protection are the Courts or Authorities

established under various environmental Protection Legislations for interpretation and effective

implementation of these statutes.

5.1 Supreme Court of India

I. Public Interest Litigation (PIL) 36

II. Special Leave Petition 37

I. Public Interest Litigation (PIL)

This is a new remedy available to public spirited individuals or societies to go to the court 38

for the enforcement of the fundamental right to life (including clean air and water) contained

in Article 21. A Public Interest Litigation (PIL) can be filed in any High Court or directly in

the Supreme Court. It is not necessary that the petitioner has suffered some injury of his own

or has had personal grievance to litigate. PIL is a right given to the socially conscious member

or a public spirited NGO to espouse a public cause by seeking judicial for redressal of public

injury. Such injury may arise from breach of public duty or due to a violation of some

provision of the Constitution. Public interest litigation is the device by which public

participation in judicial review of administrative action is assured. It has the effect of making

judicial process little more democratic39

M. C Mehta v State of Orissa 40

34 AIR 1991,35Rural Litigation and Entitlement Kendra, Dehradun V. State of U.P., AIR 1988 SC 1037.36 Under Article 32 of the Constitution.37 Under Article 136.38Under Article 3239 Available at http://www.ngosindia.com/resources/pil.php, Last visited on 10.12.2015, at 3:40 IST.40AIR 1992.



A writ petition was filed to protect the health of thousands of innocent people living in

Cuttack and adjacent areas who were suffering from pollution from sewage being caused by

the Municipal Committee Cuttack and the SCB Medical College Hospital, Cuttack.

The main contention of the petitioner was that the dumping of untreated waste water of the

hospital and some other parts of the city in the Taladanda canal was creating health problems

in the city. The State, on the other hand contended that a central sewerage system had been

installed in the hospital and that there is no sewage flow into the taladanda canal as alleged.

Further, it was asserted that the State had not received any information relating to either

pollution or of epidemic of water borne diseases caused by contamination of the canal. Also,

the health department shrugged off the responsibility for supply of drinking water and passed

the buck to the Municipality which refuted the contentions of carelessness and callousness.

The Court reprimanded the authorities and directed the government to immediately act on the

matter. Also, the court recommended setting up of a committee to take steps to prevent and

control water pollution and to maintain wholesomeness of water meant for human

consumption amongst other things. A responsible Municipal Council is constituted for the

precise purpose of preserving public health. Provision of proper drainage system in working

conditions cannot be avoided by pleading financial inability.

M. C Mehta v Union of India 41

On the eve of his retirement, J. Kuldip Singh delivered the judgment in the Taj Trapezium case,

culminating a long and arduous battle fought by M. C Mehta for over a decade. The case was

first placed in 1984, wherein the petitioner warned of damage to the TajMahal from air

pollutants from the Mathura refinery.

It was alleged by the petitioner that the suplphur dioxide emitted by the Mathura refinery and

the industries when combined with Oxygen-with the aid of moisture-in the atmosphere forms

suplphuric acid which has a corroding effect on the gleaming white marble of the Taj.

Industrial/Refinery emissions, brick-kilns, vehicular traffic and generator sets are primarily

responsible for polluting the ambient air around Taj Trapezium. The petition states that the

white marble has yellowed and blackened in places. It is inside the Taj that the decay is more

apparent. Yellow pallor pervades the entire monument. In places the yellow hue is magnified

41 AIR 1997 SC 734.



by ugly brown and black spots. Fungal deterioration is worst n the inner chamber where the

original graves of Shah-Jahan and Mumtazmahallie.The Court observed that the Taj, apart from

being cultural heritage, is an industry by itself, More than two million tourists visit the Taj

every year. It is a source of revenue for the country.Various orders were passed by the Court.

The Court created a Taj Trapezium which consisted of 10, 400 sq. Kms in the shape of a

trapezium to regulates activities in relation to air pollution.Industries were asked to shift to eco

friendly fuel and use lessen the use of diesels generators, and asked the State to improve power

supply the city. Tanneries operating from Agra were asked to shift from the Trapezium.

Bangalore Medical Trust v B. S Muddappa42

In this case it was held that absence of open space and public park, in present day when

urbanization is on increase, rural exodus is on large scale and congested areas are coming up

rapidly, may give rise to health hazard. To say, therefore, that by conversion of a site reserved

for low lying park into a private nursing home social welfare was being promoted was being

oblivious of true character of the two and their utility.

M. C. Mehta (Badkhal and Sujratkund Lakes Matter) vs. Union of India 43

The court held that Articles 21, 47, 48A and 51A (g) of the Constitution of India give a clear

mandate to the state to protect and improve the environment including forests, lakes, rivers and

wildlife and to have compassion for living creatures. The "precautionary principle" makes it

mandatory for the State Government to anticipate, prevent and attack the causes of environment

degradation.

6. Development of Environmental Law Principles

The Court has successfully isolated specific environmental law principles upon the interpretation

of Indian statutes and the Constitution, combined with a liberal view towards ensuring social

justice and the protection of human rights. The principles have often foundreflection in the

Constitution in some form, and are usually justified even when not explicitlymentioned in the

concerned statute. There have also been occasions when the judiciary hasprioritized the

42AIR 1991 SC 1902.43W.P. (C) No.4677/ 1985 decided on Oct.11, 1996.



environment over development, when the situation demanded an immediateand specific policy

structure.44

The Precautionary Principle

Beginning with Vellore Citizens’ Welfare Forum v. Union of India45, the Supreme Court has

explicitly recognized the precautionary principle as a principle of Indian environmental law.

More recently, in A.P. Pollution Control Board v. M.V. Nayudu46, the Court discussed the

development of the precautionary principle.47Furthermore, in the Narmada case48, the Court

explained that “When there is a state of uncertainty due to the lack of data or material about

theextent of damage or pollution likely to be caused, then, in order to maintain the ecology

balance, the burden ofproof that the said balance will be maintained must necessarily be on

the industry or the unit which is likelyto cause pollution.”

The “Polluter Pays” Principle

The Supreme Court has come to sustain a position where it calculates environmental

damages not on the basis of a claim put forward by either party, but through an examination

of the situation by the Court, keeping in mind factors such as the deterrent nature of the

award.49However, it held recently that the power under Article 32 to award damages, or even

exemplary damages to compensate environmental harm, would not extend to the levy of a

pollution fine.50 The “polluter pays” rule has also been recognized as a fundamental objective

of government policy to prevent and control pollution.51

The Doctrine of Public Trust

To further justify and perhaps extract state initiative to conserve natural resources, the Court

enunciated Professor Joseph Sax’s doctrine of public trust, obligating conservation by the

state. In M.C. Mehta v. Kamal Nath52, the Court held that the state, as a trustee of all natural

44M.C. Mehta v. Union of India, (1987) 4 SCC 463. The Court held: “ life, public health and ecology has priority over unemployment and loss of revenue problem.”45AIR 1996 SC 2715.46AIR 1999 SC 812.47See also S. Jagannathv. Union of India (Shrimp Culture case), AIR 1997 SC 811.48Narmada BachaoAndolanv. Union of India, AIR 2000 SC 375149See also the explanation for the principle of absolute liability in M.C. Mehta v. Union of India (Oleum Gas case), AIR 1987 SC 965, and its subsequent application in Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212.50M.C. Mehta v. Kamal Nath, AIR 2000 SC 1997.51Ministry of Environment and Forests, Government of India, Policy Statement for Abatement of Pollution, para 3.3, February 26, 1992.52 (1997) 1 SCC 388.



resources, was under a legal duty to protect them, and that the resources were meant for

public use and could not be transferred to private ownership.

7. Challenges for Enforcement of Environment Legislation Effetely

We have more than 200 Central and State legislations which deal with environmental issues.

More legislation means more difficulties in enforcement. There is a need to have a

comprehensive and an integrated law on environmental protection for meaningful enforcement.

It is not enough to enact the legislations. A positive attitude on the part of everyone in society is

essential for effective and efficient enforcement of these legislations. The powers vested to the

Pollution Control Boards are not enough to prevent pollution. The Boards do not have power to

punish the violators but can launch prosecution against them in the Courts which ultimately

defeat the purpose and object of the Environmental Laws due to long delays in deciding the

cases. Thus, it is imperatively necessary to give more powers to the Boards.

You must be aware that despite all this legislative activity the state of the environment in India

continues to be gloomy. The rivers and the lakes continue to be choked with sewage and

industrial waste. The air quality in some major cities has gained the dubious distinction of being

worse than that of the American cities like Chicago and New York.

Forests continue to disappear, and the consequent loss of soil has led to the scourge of floods

with sickening regularly. What can the country do to reverse the process and restore a balanced

state of the environment?

Although the legislative measures taken and the administrative set-up is sufficiently indicative of

the Government’s concern, the implementation does not reflect a sound appreciation of the issue

involved in eco-management and development.

Environment is a resource-perhaps the most precious of all the Earth’s resources. It should be

treated as such. The measures adopted by the Government until now do not reveal an equal

emphasis on the management and development aspects of this vital resource. Often these

measures reflect a fire-brigade approach rushing to the spot of fire, after it breaks out. The

strategy should lay equal emphasis on attacking the cause of fires. An ounce of prevention in the

filed of environment is literally worth a gallon of cure.

Take for example the river pollution in India. It is well known that the major source of pollution

of rivers is domestic sewage, which municipalities nonchalantly dump in the nearest rivers.

Ninety percent of the pollution of Ganga stems from the 100-odd littoral municipal waste

dumpings.



The colossal cleaning-up operation, Ganga Action Plan, will be an exercise in futility if it is not

accompanied by a massive effort to prevent the municipalities from dumping their wastes in the

river. Every one knows that the technology for treating municipal waste exists. But it costs

money and most of the municipalities cannot afford it.

If the Environment (Protection) Act is taken seriously, all the municipalities abutting the Ganga

will have to be prosecuted. The Act, rightly, makes no distinction between private and public

polluters. But that would be taking a very restrictive view of the law.

The more modern view is that the law must guide and help people and establish a trend of

acceptance. Environmental law has little chance of acquiring effectiveness unless accompanied

by a whole set promotional measures, ranging from direct financial subsidies to cost sharing, for

example, in installing treatment plants.

Litigation is an expensive affair. Environment litigation is more expensive than other types of

disputes, since it involves expert testimony, technical evidence and so on. State Boards will-have

to be able to afford the expertise and the administrative backing. Most of the State Boards suffer

from inadequate expertise and funds to pursue their objectives. There is, therefore, a tendency to

seek to exercise gentle pressure on the polluting industry and pursue settlements outside the

courts.

There is nothing fundamentally wrong with out-to-court settlement of environmental disputes. In

fact, in some developed countries, like the United States, a preference is shown toward such a

procedure. But in India, officially initiated and sanctioned out of court settlements may aggravate

the perennial problem of corruption. Sharing the costs of anti-pollution measures taken by the

industry seems to be a better strategy than state-sponsored expensive and length prosecutions.

Admittedly, the state of environment of the country is not rosy; the imperatives of development

have sometimes come into sharp conflict with those of the environment; the administrative

machinery set up to solve the problems of environment has often failed in its task; the laws

enacted to meet the challenger have been generally inept. But these are the failings of a nation

wresting with hundreds of problems on thousands of fronts. The water of survival, which is what

the sorry state of the nation’s environment poses to the country, inquires first and foremost the

will to survive. The Government and, more importantly, the people have demonstrated it in

abundance. The rest is a matter of skill and experience, which we seem to be acquiring slowly

but steadily.53

53J DURGA, What are the Difficulties faced in Enforcement Environmental Legislation?,Available at www.Preservearticles.com/



9. Conclusion

Environment is an important part of human life and a healthy environment is a must for human

existence. Therefore, it is crucial that we take care of our surroundings and help nature maintain

ecological balance so that we could hand over to the coming generations the environment as we

found it, if not any better. In the recent past there has been a lot of damage to the ecology. Air,

water and soil have been polluted and there appears to be no decisive end to it. The scientific

advancement and rapid industrialization has taken its toll.Nowadays protection of the

environment is very important as the world is moving into a new era without considering any of

the major problems of pollution with rapid industrialization. The best way to protect the

environment is conservation. Conservation is the philosophy and policy of managing the

environment to assure adequate supplies of natural resources for future as well as present.

Tropical forests are being destroyed at an ever-increasing rate. Estimates of the extent and rate of

loss vary, but it appears that nearly half of the world tropical forests already have been lost, and

the remainder will all but disappear in the next two to three decades. The loss is incalculable.

These forests provide habitat for an estimated half of the world plant and animal species, provide

water and fuel for much of the world population, and influence regional and global climate.

Commercial logging, clearance for agriculture,


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