Environmental Law Notes

Biological Diversity Act, 2002 India is rich in biodiversity and associated traditional and contemporary knowledge system relating thereto. India is a party to the UN Convention on Biological Diversity signed at Rio de Janeiro on 5th June, 1992 and the said convention came into force on 29th December 1993. To give effect to the Convention on Biological Diversity and too attain the objectives of the convention, the Biological Diversity Act was enacted by the Parliament in the year 2002.

Objectives Following are the objectives of the BD Act, 2002: a. To provide for conservation of biological diversity; b. To provide for sustainable use of its components; and c. To provide for fair and equitable sharing of the benefits arising out of the use of biological resources; d. To regulate access of genetic resources.

Salient Features a. To involve local self-government for implementation of schemes made by government. b. To involve indigenous people at every stage for protection and improvement of environment. c. There is also provision for protection of traditional rights since the knowledge of local people regarding biodiversity should be protected. d. There is provision for conservation and development of those areas which are important from biological diversity point of view.

Authorities under the Act a. National Biodiversity Authority: The Act has constituted a National Biodiversity Authority at Chennai, consisting of 15 members and 1 Chairman who shall be an eminent person in the field of conservation and sustainable use of biodiversity. The Board shall advise the Central Govt. in matters relating to conservation of biodiversity, its sustainable use and equitable share of benefits. It shall also advise the State Govt. in the selection of the areas of biodiversity importance. b. State Biodiversity Board: The State Govt. may also establish State Biodiversity Boards which shall be body corporate. The functions of State Boards shall be to advise the State Govt. in matters relating to conservation of biodiversity, its sustainable use and equitable share of benefits; regulating by granting of approvals or requests for commercial utilisation or bio survey or bio utilisation of any biological resources by Indians; other necessary functions to carry out the provisions of the Act. The State Govt. are also authorised to notify the areas of biodiversity importance as biodiversity heritage site.

c. Biodiversity Management Committee: Every local body shall constitute a ‘Biodiversity Management Committee’ within its area for the conservation, sustainable use and documentation of biological diversity including preservation of habitat, conservation of landraces, folk varieties and cultivators etc. the State Govt. shall also provide local biodiversity funds.

wildlife protection act, 1972 The environment in which we live is regulated by a chain of cycles and if that chain is disturbed it causes imbalance in nature. Each organism plays an important role in maintaining the balance of the nature and the environment. Wildlife is one of our basic and natural resources that satisfies the needs or wants of civilisation. Therefore, this resource must be conserved, preserved and protected for the existence of mankind. So for preserving and protecting the wildlife, the Parliament in 1972 enacted Wildlife Protection Act, 1972.

Origin Since, the ancient era there have been various indirect provisions regarding wildlife protection. In the Vedic era there were various indirect provisions. In Rig Veda it has been said that one should not kill wild animals and those who did so were called as Yatudhan and were not considered as good citizens. Yajur Veda prescribed punishments for those who killed wild animals. In Manusmriti use of meat for food was condemned. Even Jainism and Buddhism preached philosophy of protection of wildlife. Arthashastra provided for a detailed procedure regarding prohibition of hunting of wild animals. Further, before Independence also there were enactments by the British for protection of particular or particular species. For example: Madras Elephant Preservation Act, 1873 and Elephant Preservation Act, 1879.

Objectives The objectives of this enactment are three-fold. a. to have a uniform legislation on wild life throughout the country; b. to establish a network of protected areas, i. e., national parks and sanctuaries; and c. to regulate illicit trade in wild life and its products.

Salient Features a. There are various authorities under this Act so as to ensure the proper implementation of the provisions of the Act. Under Section 3 the Central Government may appoint a Director of Wild Life Preservation. Under Section 4 the State Government may appoint Chief Wild Life Warden, Wild Life Wardens and Honorary Wild Life Wardens. The Wild Life Warden, the Honorary Wild Life Warden shall be subordinate to the Chief Wild Life Warden. Under Section 5-A the Central Government shall, within three months from the date of commencement of Wild Life (Protection) Amendment Act, 2002, constitute the National Board for Wild Life. Under Section 5-C it shall be the duty of the National Board for Wild Life to promote the conservation and development of wild life and forests by such measures as it thinks fit.

Under Section 6 the State Government shall, within a period of six months from the date of commencement of Wild Life (Protection) Amendment Act, 2002 constitute a State Board for Wild Life. Section 8 enumerates the functions of State Board for Wild Life. Under Section 38A, the Central Government shall constitute the Central Zoo authority. Section 38C enumerates the functions of Central Zoo authority. b. This Act provides for provisions wherein the Central Government may declare any particular area as National Park or Sanctuaries. c. The Act expressly prohibits trade and commerce of different animal articles. d. There is provision for forfeiture of property of anyone who is found guilty of hunting of animals.

Shortcomings of the Act a. The enforcement machinery is very weak. b. There is a provision that cognisance of offence can be taken by authority or private individual only after giving prior notice of 60 days. The criticism is that there is no need of 60 days prior notice. c. There is lack of technical and professional knowledge among staff in national boards, State boards and other authorities. However, for removing the abovementioned shortcomings recommendations have been made and the Wildlife Protection Amendment Bill, 2010 has been introduced by the Central Govt. in the Parliament but it is still pending.

environment protection act, 1986 EP Act was enacted by the Parliament in the year 1986. This Act was enacted with the object of providing for the protection and improvement of environment and related matters.

Objectives a. To implement decisions taken at Stockholm Conference, 1972; b. To take appropriate steps for the protection and improvement of human environment; and c. To prevent hazards to human beings, other living creatures, plants and property.

Definitions Section 2(a) defines ‘environment’ as that which includes water, air and land and the interrelationship which exists among and between water, air and land and human beings, other living creatures, plants, microorganism and property. Section 2(c) defines ‘environment pollution’ as the presence in the environment of any environment pollutant. Section 2(b) defines ‘environment pollutant’ as any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment.

Important Provisions Section 3of the EPA has prescribed certain powers which the Central Govt. shall have for the purpose of protecting and improving the quality of environment and preventing, controlling and abating environmental pollution. Some of the powers are:

To coordinate actions taken by the State Governments, Officers and other Authorities under the EP Act or under the Environment Protection Rules. To plan and execute a nationwide program for the prevention, control and abatement of environmental pollution. To lay down standards for the quality of environment. To restrict areas in which any industries or operations or processors shall be carried out. To lay down procedures a d safeguards for the handling of hazardous substances. To collect and disseminate information relating to environmental pollution. Section 4 has conferred on the Central Government power to appoint Officers for the purpose of entrusting on them such of the powers and functions prescribed under the EP Act. Section 5 conferred power on the Central Government to issue directions in writing to any person, Officer or any authority and such person, Officer or authority shall be bound to comply with such directions. Under this Section, the Central Government has the power to issue directions for: a. The closure, prohibition or regulation of any industry, operation or process; or b. Stoppage or regulation of the supply of electricity or water or any other service. Section 6 has empowered the Central Government to make rules to regulate environmental pollution but such rules are to be published in official gazette by notification. Such rules may include: Standards of quality of air, water or soil for various areas and purposes; The procedures and safeguards for handling of hazardous substances in hazardous areas; The maximum allowable limits of concentration of various environmental pollutants (including noise) for different areas; The prohibition and restriction on the location of industries and the carrying on processes and operations in different areas. Section 23 confers powers on Central Government to delegate its powers and functions under this Act to any officer, State Government or other authority as it may deem necessary by notification in the Official Gazette with the limitation that it cannot delegate its power under Section 25 and Section 3(3). Section 25 confers powers on Central Government to makes rules regarding specific matters by publishing the same in Official Gazette. The Environment Protection Rules, 1986 are made by the Central Government in exercise of the powers conferred by Section 25. Also rules like Hazardous Waste (Management and Handling) Rules, 1989; Manufacture, storage and import of Hazardous Chemical Rules, 1989; Bio-medical wastes (Management and Handling) Rules, 1998 are made by the Central Government in exercise of the powers conferred by Section 25.

the air (prevention and control of pollution) act, 1981 Air pollution has been described as the imbalance in the quality of air, which causes ill effects. To legally combat the problems created as a result of air pollution, the Parliament of India enacted a statute in the year 1981 named as ‘The Air (Prevention and Control of Pollution) Act in the exercise of its power under Article 253 of the Constitution. This is the first act enacted which is preventive in nature, before this act, all other acts were

punitive in nature.

Objectives a. b. c. d. e.

To provide for the prevention, control and abatement of air pollution; For the establishment of Pollution Control Boards; For conferring and assigning powers and functions on such Boards; To implement the decisions taken at Stockholm Conference, 1972; and To lay down standards to maintain the quality of air.

Definitions Section 2(b) defines air pollution as “the presence in the atmosphere of any air pollutant’. Section 2(a) defines air pollutant as “as any solid, liquid or gaseous substance (including noise) present in the atmosphere in such concentration as may be, or tend to be, injurious to human beings or other living creatures or plants or property or environment”.

Authorities under this Act The Central Pollution Control Board (CPCB) constituted under Section 3 of Water (Prevention and Control of Pollution) Act, 1974 shall exercise the powers and perform the functions of CPCB for the Prevention and Control of Air Pollution under the Air Act. The CPCB shall also exercise the powers and perform the functions of the State Boards in Union Territories; or it may delegate such powers and functions to any person or body of persons as the Central Government may specify. The SPCB constituted by the State under Section 4 of Water (Prevention and Control of Pollution) Act, 1974 shall exercise the powers and perform the functions of SPCB for the prevention and control of air pollution under the Air Act. In any State in which the Water (Prevention and Control of Pollution) Act, 1974 is not in force the StateGovernment shall constitute a SPCB for the Prevention and Control of Air Pollution.

Constitution of CPCB CPCB consists of 17 members inclusive of 1 Chairperson and 1 Member Secretary. The post of Member Secretary is most crucial as he is the only one whose tenure is not fixed. He holds office till superannuation or till he is removed from his post by the concerned authority. Other member’s tenure is fixed as 3 years from the date of nomination. Out of the 17 members: Not more than 5 official members would be nominated by the Central Government to represent different departments of Government of India. Not more than 3 non-official members would be nominated by the Central Government to represent interests of agriculture, fishery or industry or trade or any other interest which, in the opinion of the Central Government, ought to be represented. 2 persons to represent the companies or corporations owned, controlled or managed by the Central Government, to be nominated by that Government. Not more than 5 members to be nominated by the Central Government from amongst the members of State Boards, of whom not more than 2 members represent local governments.

1 full-time chairman, being a person having special knowledge or practical experience in respect of matters relating to environmental protection or a person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the Central Government. 1 full-time member-secretary, possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the Central Government. If any member is absent in 3 consecutive meetings of the board without any valid reason then he’ll be removed but this provision is not applicable to member secretary.

Constitution of SPCB SPCB also consisits of 17 members inclusive of Chairman and Member Secretary. Out of 17 members: 1 chairman, being a person having special knowledge or practical experience in respect of matters relating to environmental protection or a person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the State Government. The chairman may be either whole-time or part-time as the State Government may think fit. 5 official members to be nominated by the State Government to represent that Government; 5 members to be nominated by the State Government from amongst the members of the local authorities functioning within the State; 3 non-official members to be nominated by the State Government to represent the interest of agriculture, fishery or industry or trade or any other interest which, in the opinion of the State Government, ought to be represented; 2 persons to represent the companies or corporations owned, controlled or managed by the State Government, to be nominated by that Government; 1 full-time member-secretary, possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the State Government. It is to be noted that if SPCB is already constituted then there is no need of reconstitution.

Nature of CPCB and SPCB a. Both CPCB and SPCB possess corporate personality. They are deemed as ‘legal person’ as they have power to acquire, purchase and sell any property. b. They can sue any party or person and can be sued in the name of CPCB or SPCB.

Criticisms of Air Act See from copy

Case Laws Mahabir Coke Industries v. SPCB. There is a provision in Air Act that SPCB can inspect any industry to see that whether pollution control devices are properly installed or not. Also SPCB is obligated to prescribe certain

standards to be followed by every industry. Herein, SPCB got the information that pollution control devices are not used by the industry and the same was found on inspection. SPCB recommended the State Government to stop the activities of the industry. HC gave a restrictive interpretation and held that if there is a provision for prescribing standards, then SPCB should first prescribe the standards and then carry out the inspection. MurliDeora v. Union of India In this SC analysed whether Parliament has enacted any law regarding smoking in public. SC found out that there are persons who are not smoking but are affected by smokers because of passive smoking and therefore restricted public smoking and also introduced fines in case of violation. The SC did not take the element of air pollution strictly but gave the judgment on grounds of Article 21. SC further observed that a State Act of Delhi i.e. Delhi Prohibition of Smoking and Non-Smokers Health Protection Act, 2003 was in operation and directed that there should be such an Act at the Central Level. At present there is Central Law regarding Public Smoking. The Cigarette and other Tobacco Products Act, 2004 prohibits various things such as sponsorship, advertisement and sale of cigarette to a person below 18 years of age. M.C. Mehta v. UOI Herein, the SC introduced the use of CNG in automobiles and held that cities where pollution is very high then the automobiles should Euro 1 and Euro 2 technology.

Structure under Air Act Chapter I: Preliminary Chapter II: Central and State Boards for the Prevention and Control of Air Pollution Chapter III: Powers and Functions of Boards Chapter IV: Prevention and Control of Air Pollution Chapter V: Funds, Accounts and Audit Chapter VI: Penalties and Procedures Chapter VII: Miscellaneous

Functions of CPCB Air Act under Section 16 provides for functions of CPCB. The main function of the Central Board is to improve the quality of air and to prevent, control or abate air pollution in the country. Some other functions are as follows: a. advise the Central Government on any matter concerning the improvement of the quality of air and the prevention, control or abatement of air pollution;

b. plan and cause to be executed a nation-wide programme for the prevention, control or abatement of air pollution; c. co-ordination the activities of the State Board and resolve disputes among them; d. provide technical assistance and guidance to the State Boards, carry out and sponsor investigations and research relating to problems of air pollution and prevention, control or abatement of air pollution; e. plan and organize the training of person engaged or to engaged in programmes for the prevention, control or abatement of air pollution on such terms and conditions as the Central Board may specify; f. organize through mass media a comprehensive programme regarding the prevention, control or abatement of air pollution; g. lay down standards for the quality of air; h. collect and disseminate information in respect of matters relating to air pollution; i. The Central Board may establish or recognize a laboratory or laboratories to enable the Central Board to perform its functions under this section efficiently. j. The Central Board may delegate any of its functions under this Act generally or specially to any of the Committees appointed by it; k. do such other things and perform such other acts as it may think necessary for the proper discharge of its functions and generally for the purpose of carrying into effect the purposes of this Act.

Powers of CPCB Section 31 A provides that CPCB may issue any direction in writing to any person, Officer or any authority and such person, Officer or authority shall be bound to comply with such directions. The power to issue any direction includes the power to direct: a. The closure, prohibition or regulation of any industry, operation or process; or b. Stoppage or regulation of the supply of electricity or water or any other service.

Functions of SPCB Air Act under Section 17 provides for functions of SPCB. The functions are as follows: a. to plan a comprehensive programme for the prevention, control or abatement of air pollution and to secure the execution thereof; b. to advise the State Government on any matter concerning the prevention, control or abatement of air pollution; c. to collect and disseminate information relating to air pollution; d. to inspect, at all reasonable times, any control equipment, industrial plant or manufacturing process ; e. to organise mass-education program relating to prevention, control or abatement of air pollution; f. to inspect air pollution control areas to such intervals as it may think necessary, assess the quality of air therein and take steps for the prevention, control or abatement of air pollution in such areas; g. to advise the State Government with respect to the suitability of any premises or location for carrying or any industry which is likely to cause air pollution; h. to perform such other functions as may be prescribed or as may, from time to time, be entrusted to it by the Central Board or the State Government; i. A State Board may establish or recognize a laboratory or laboratories to enable the State Board to perform its functions under this section efficiently.

Powers of SPCB The SPCB is conferred with very important powers like: a. Power to grant, refuse and cancel consent: Section 21 of the Air Act provides that no person shall establish or operate any industrial plant in an air pollution control area, without the consent of the SPCB. The SPCB may on receipt of the application for consent and after making such enquiry may grant or refuse consent. b. Power to make application to Court for restraining persons from causing Air Pollution c. Power to take remedial measures to mitigate the emission of Air Pollutants. d. Power to Entry and Inspection: under Section 24, any person empowered by the SPCB shall have a right to enter any place at all reasonable times for performing any of the functions of SPCBas prescribed by the Act. e. Power to obtain information: for carrying out the functions entrusted to the SPCB it may call for any information from the occupier or any other person carrying on any industry or operating any control equipment or industrial plant. The officials of PSCB also have right to inspect the premises for verifying the correctness of such information. f. Power to take samples of Air or Emission: any officer empowered by the SPCB shall have the power to take samples of air or emission from any chimney, flue or duct or any other outlet in manner prescribed under Section 26 of the Air Act. g. Power to give Directions: SPCB may issue any direction in writing to any person, Officer or any authority and such person, Officer or authority shall be bound to comply with such directions. The power to issue any direction includes the power to direct: The closure, prohibition or regulation of any industry, operation or process; or Stoppage or regulation of the supply of electricity or water or any other service.

Penalties and Procedure (Section 37 – Section 46) Section 37 prescribes punishment for failure to comply with the provisions of Section 21 or Section 22 or with the directions issued under Section 31A. a person contravening the mentioned provisions shall be punishable with imprisonment for a term not less than 1 year and 6 months, which may extend up to 6 years with fine In case, the failure continues, he shall be punishable with an additional fine which may extend to 5000 rupees for every day during which the failure continues. The section further provides that if the failure continues beyond a period of 1 year after the date of conviction, the offender shall be punishable with imprisonment for a term which shall not be less than 2 years but which may extend to 7 years and with fine. Section 38 prescribes punishment for acts not covered under Section 37. This section provides that any person who commits the acts listed herein shall be punished with imprisonment for a term which may extend to 3 months or fine which may extend to rupees 10,000 or both. Example of offences under Section 38: non-furnishing of any information which a person is required to give under this Act; to damage any works or property belonging to the Board; presentation of false documents for obtaining NOC etc. Section 39 is a residuary clause which provides punishments for those acts or omissions which have not been covered by Sections 37 and 38 of the Act. Section 40 provides that where an offence has been committed by a company then every person who, at the time offence was committed was directly in charge of, and was responsible to the company for the conduct of the business shall be deemed to be guilty and punished accordingly. But such person can be absolved of his liability if he can prove that:

a. The offence was committed without his knowledge; or b. That he exercised all due diligence to prevent the commission of such offence. Section 40(2) provides that if it is proved that the offence was committed with the consent or knowledge of any director, manager, secretary or other officer of the company, then such person shall also be deemed guilty of the offence and be punished accordingly. As per the section ‘company’ means any body corporate, and includes a firm or other associations of individuals; ‘director’ in relation to a firm, means a partner in the firm. In the case of Municipal Corporation of Delhi v. J.B. Bottling Company Private Limited it has been held that since the punishment of imprisonment could not be awarded to a juristic person like a company, only fine can be imposed on it. Section 41 provides that where an offence has been committed by any department of the Government, the Head of the Department shall be deemed guilty of the offence and accordingly punished. But the Head of the Department can be absolved of his liability if he can prove that: a. The offence was committed without his knowledge; or b. That he exercised all due diligence to prevent the commission of such offence. Similarly, if an offence is committed by a department of the Government and if it is proved that the offence was committed with the consent or knowledge of any officer other than the Head of the Department, then such officer shall also be deemed guilty of the offence and be punished accordingly. It makes it clear that the liability of the Head of the Department is independent. Sections 42 and 44 provide protection to the members and officers of the Boards. Section 42 provides that an act done by the employee or member of the Board or officer of Government will not be punishable if done in good faith. Section 44 provides that all members, officers and other employees of the Board acting in pursuance of any provisions of this Act would be deemed to be public servants within the meaning of Section 21 of IPC. Section 43 provides that no Court inferior to that of Metropolitan Magistrate or Judicial Magistrate Court shall try an offence punishable under the Air Act. Also the cognizance can be taken only when the complaint is made by: a. The Board or any officer authorised on this behalf; b. Any person who has given notice of not less than 60 days to the Board or officer authorised declaring his intention to make a complaint. Section 46 provides that where an appeal lies to an appellate authority constituted under the Act, no civil court shall have jurisdiction to entertain a suit or suit or proceeding in this behalf. Further, the Court shall not determine or issue injunction against any court or authority in respect of the action taken or to be taken in pursuance of any power conferred by or under this Act.

Features of Air Act Section 22 if SPCB has specified some standards or limitations then the industrialists are bound by such standards or limitations.

Section 22A gives power to the board to initiate proceedings in court of law not below Judicial Magistrate regd. prevention of air pollution even against private individuals. Section 23 provides that any person or agency can furnish information to the StateBoard regd emission of air pollutants into the atmosphere in excess of the standards laid down by the State Board. Section 24 provides to any person empowered by the StateBoard a right to enter any place at all reasonable times for purpose of performing any functions of the board. Section 31A: written above

the water (prevention and control of pollution) act, 1974 Objectives To provide for the prevention and control of water pollution; To maintain or restore wholesomeness of water; To establish pollution control boards; and To confer on pollution control boards powers and functions relating to prevention and control of water pollution.

Constitution of CPCB Section 3 provides for constitution of CPCB. It consists of 17 members inclusive of 1 Chairperson and 1 Member Secretary. The post of Member Secretary is most crucial as he is the only one whose tenure is not fixed. He holds office till superannuation or till he is removed from his post by the concerned authority. Other member’s tenure is fixed as 3 years from the date of nomination. Out of the 17 members: Not more than 5 official members would be nominated by the Central Government to represent different departments of Government of India. Not more than 3 non-official members would be nominated by the Central Government to represent interests of agriculture, fishery or industry or trade or any other interest which, in the opinion of the Central Government, ought to be represented. 2 persons to represent the companies or corporations owned, controlled or managed by the Central Government, to be nominated by that Government. Not more than 5 members to be nominated by the Central Government from amongst the members of State Boards, of whom not more than 2 members represent local governments. 1 full-time chairman, being a person having special knowledge or practical experience in respect of matters relating to environmental protection or a person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the Central Government. 1 full-time member-secretary, possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the Central Government. The Central Government nominates all the above members.

Constitution of SPCB SPCB also consists of 17 members inclusive of Chairman and Member Secretary. Out of 17 members: 1 chairman, being a person having special knowledge or practical experience in respect of matters relating to environmental protection or a person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the State Government. The chairman may be either whole-time or part-time as the State Government may think fit. 5 official members to be nominated by the State Government to represent that Government; 5 members to be nominated by the State Government from amongst the members of the local authorities functioning within the State; 3 non-official members to be nominated by the State Government to represent the interest of agriculture, fishery or industry or trade or any other interest which, in the opinion of the State Government, ought to be represented; 2 persons to represent the companies or corporations owned, controlled or managed by the State Government, to be nominated by that Government; 1 full-time member-secretary, possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the State Government. It is to be noted that if SPCB is already constituted then there is no need of reconstitution.

Constitution of JPCB Section 13 of the Water Act provides for the Constitution of Joint Boards. This section provides for two types of Joint Boards. a. A Joint Board created by agreement between two or more governments of contiguous states. b. A Joint Board created by agreement between the Central Government (in respect of one or more UTs) and one or more governments of State contiguous to such UT or UTs. A Joint Board constituted in pursuance of an agreement between two or more governments of contiguous states, shall consist of following members: full-time chairman, nominated by the Central Government; two officials from each of the participating States to be nominated by the concerned participating State Government to represent that Government; one person to be nominated by each of the participating State Governments from amongst the members of the local authorities functioning within the State concerned; one non-official to be nominated by each of the participating State Governments to represent the interests of agriculture, fishery or industry or trade in the State concerned or any other interest which, in the opinion of the participating State Government, is to be represented; two persons to be nominated by the Central Government to represent the companies or corporations owned, controlled or managed by the participating State Government; a full-time member-secretary, possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the Central Government. A Joint Board constituted in pursuance of an agreementthe Central Government (in respect of

one or more UTs) and one or more governments of State contiguous to such UT or UTs, shall consist of the following members: a full-time chairman to be nominated by the Central Government; two officials to be nominated by the Central Government from the participating Union territory or each of the participating union territories, as the case may be, and two officials to be nominated, from the participating State or each of the participating States, as the case may be by the concerned participating State Government; one person to be nominated by the Central Government from amongst the members of the local authorities functioning within the participating Union territory or each of the participating Union territories, as the case may be and one person to be nominated, from amongst the members of the local authorities functioning within the participating State or each of the participating States, as the case may be, by the concerned participating State Government; one non-official to be nominated by the Central Government and one person to be nominated by the participating State Government or State Governments to represent the interests of agriculture, fishery or industry or trade in the Union territory or in each of the Union territories or the State or in each of the States, as the case may be, or any other interest which in the opinion of the Central Government or, as the case may be, of the State Government is to be represented. two persons to be nominated by the Central Government to represent the companies or corporations owned, controlled or managed by the Central Government and situate in the participating Union territory or territories and two persons to be nominated by Central Government to represent the companies or corporations owned, controlled or managed by the participating State Governments; a full-time member-secretary, possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the Central Government.

Functions of CPCB Water Act under Section 16 provides for functions of CPCB. The main function of the Central Board is to promote cleanliness of streams & wells in different areas of state. Some other functions are as follows: a. advise the Central Government on any matter relating to the prevention& control ofwater pollution; b. plan and execute a nation-wide programme for the prevention, control or abatement of water pollution; c. co-ordination the activities of the State Board and resolve disputes among them; d. provide technical assistance and guidance to the State Boards, carry out and sponsor investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution; e. plan and organize the training of person engaged in programmes for the prevention, control or abatement of water pollution; f. organize comprehensive programmes regarding the prevention& control of water pollutionthrough mass media; g. lay down, modify or annul the standards for a stream or well; h. The Central Board may establish or recognize a laboratory or laboratories to enable the CPCB to perform the above functions; i. Perform such other functions as may be prescribed.

Powers of CPCB The CPCB is vested with the following powers:

1. CPCB is empowered by Section 18 of the Water Act, to give directions to SPCB. 2. The CPCB has powers to perform any other functions of the SPCB in case of noncompliance of any directions given by the CPCB. 3. The CPCB is empowered to issue any direction under 33A including the power to direct: a. The closure, prohibition or regulation of any industry, operation or process; or b. Stoppage or regulation of the supply of electricity or water or any other service.

Functions of SPCB Water Act under Section 17 provides for functions of SPCB. The functions are as follows: a. to plan a comprehensive programme for the prevention, control or abatement of pollution of streams and wells in the state; b. to advise the State Government on any matter concerning the prevention, control or abatement of water pollution; c. to collect and disseminate information relating to prevention, control or abatement of water pollution; d. to encourage, conduct and participate in investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution; e. to collaborate with the Central Board in organising the training of persons engaged or to be engaged in programmes relating to prevention, control or abatement of water pollution and to organise mass education programmes relating thereto; f. to evolve economical and reliable methods of treatment of sewage and trade effluents, having regard to the peculiar conditions of soils, climate and water resources of different regions and more especially the prevailing flow characteristics of water in streams and wells which render it impossible to attain even the minimum degree of dilution; g. to evolve methods of utilisation of sewage and suitable trade effluents in agriculture; h. to evolve efficient methods of disposal of sewage and trade effluents on land; i. to lay down standards of treatment of sewage and trade effluents to be discharged into any particular stream; j. to lay down effluent standards to be complied with by persons while causing discharge of sewage or sullage; k. to advice the State Government with respect to the location of any industry the carrying on of which is likely to pollute a stream or well.

Powers of SPCB The SPCB is conferred with very important powers like: a. Power to make application to Court for restraining persons from causing Water Pollution (Section 33); b. Power to Entry and Inspection: under Section 23, any person empowered by the SPCB shall have a right to enter any place at all reasonable times for performing any of the functions of SPCB as prescribed by the Act. c. Power to obtain information (Section 20); d. Power to take samples of effluents for analysis (Section 21); e. Power to give Directions: SPCB may issue any direction in writing to any person, Officer or any authority and such person, Officer or authority shall be bound to comply with such directions. The power to issue any direction includes the power to direct: The closure, prohibition or regulation of any industry, operation or process; or Stoppage or regulation of the supply of electricity or water or any other service.

Comparison between Air Act & Water Act

1. The provision for penalties under both the Acts is similar. 2. The constitution and composition of CPCB & SPCB under both the Acts is similar but Air Act provides that if SPCB is not constituted as per the provisions of Water Act then while constituting SPCB there will be 2 extra members who have expertise in environment matters or practical experiences in cases of Air Pollution. 3. Water Act was enacted by the Parliament in exercise of its powers under Article 252 of the Constitution (12 states gave consent) whereas, Air Act was enacted by the Parliament in exercise of its powers under Article 253 of the Constitution. 4. The provision for declaration of an area as pollution control area is available only under Air Act & not under Water Act. 5. The provision for constitution of Joint Pollution Control Board is available only in Water Act & not under Air Act. 6. There are 64 sections and 8 chapters in the Water Act whereas Air Act has only 54 Sections & 7 chapters. 7. The Water Act was enacted in the year 1974 whereas the Air Act came into force only in the year 1981.

remedies Environment pollution is a big hazard and threatening the very existence of mankind. It also tends to destroy the gifts of Nature so kindly bestowed. Looking to threatening proportions of environmental pollution various measures have been adopted including administrative and legal measures from time to time. Various remedies available under environment law can be read under 2 major heads: 1. Civil which includes remedies available under Law of Torts; Writ Jurisdiction of SC & HC & Statutory remedies. 2. Criminal which includes remedies available under CrPC & IPC.

Remedies under Law of Torts The Common Law though has its origin in England, continues to be in force in India by virtue of Art. 372of the Constitution insofar it is not altered, repealed or amended by a Competent Legislature or Competent Authority. The Common Law remedies for environmental problems are available under Law of Torts.Law of torts is not much effective at present but earlier it was quite prevalent. Liability for a Tort arises, when a wrongful act complaint of amounts either to an infringement of a

legal private right or a breach or violation of a legal duty. Tortious liabilities for environmental pollution are available under the following heads: a. b. c. d.

Negligence Nuisance Trespass Strict Liability

Negligence Negligence is the breach of legal duty to take care which results in damage undesired by the defendant to the plaintiff. In an action for negligence, 3 things must be proved: a. The defendant owed a duty of care towards the plaintiff. b. There was a breach of such duty. c. Plaintiff suffered injury/damage due to that breach. In the case of NareshDuttTyagi v. State of UP, chemical pesticides were stored negligently in a godown in a residential area. Fumes emanating from pesticides leaked through the ventilators and caused death of 3 children & an unborn infant. The Court held that this was a clear case of negligence and awarded appropriate relief to the victims.

Nuisance The term nuisance is derived from the French word ‘nuire’ which means to do hurt or to annoy someone.Nuisance is interference in other’s rights to harm them without any lawful justification causing public or private discomfort.

For private nuisance the only remedy available is in civil Court, but for public nuisance both civil & criminal remedies are available. Public Nuisance

It is an act affecting public at large or considerable portion of it; and it must interfere with rights which members of the community might otherwise enjoy. In order to entitle a person to maintain an action for damage caused by that which is a public nuisance, the damage must be particular direct & substantial. In the case of Vasant Manga Nikumba v. BaburaoBhikanna Naidu, it was observed that nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence. Private Nuisance It is the using or authorising to use of one’s property or of anything under one’s control so as to injuriously affect an owner or occupier of property by physically injuring his property or by interfering materially with his health comfort or convenience.

Trespass Trespass in its widest sense means any transgression or offence against the law of nature, of society, or of the country, whether relating to a man’s person or to his property. To constitute the wrong of trespass, neither force nor unlawful intention, nor actual damage nor the breaking of enclosure is necessary. In nuisance it has to be proved that there has been actual damage, but it is not required in trespass.

Strict Liability The principle of strict liability was laid down by the House of Lords in Rylan v. Fletcher. Blackburn J. gave the judgmentfrom which it can be concluded that if a person makes a nonnatural use of land in his occupation in the course of which there is escape of something which causes damage to person or property outside the person’s premises, then such person is liable irrespective of any question of negligence on the basis of rule of strict liability. House of Lords itself recognised that the liability is not absolute and is subject to the following exceptions: 1. 2. 3. 4.

Act of God (Vis Major); Wrongful act of a third party; Plaintiff’s own default; Artificial work maintained for the common benefit of Plaintiff & defendant or if there was the consent of plaintiff; 5. When it is the consequence of an act done for public purposes in the discharge of a pubic duty under the express authority of a statute.

Till 1987 this principle of strict liability was followed, until Bhagwati J. introduced the concept of absolute liability. “If a person brings in a dangerous thing within a territory & that thing escapes & causes damage, in that case the person will be absolutely liable even if they have taken all necessary precautions and such liability is not subject to any of the exceptions which operate vis-à-vis the tortuous principle of strict liabilty under the rule in Rylands v. Fletcher.” This view of SC was reiterated in the case of Indian Council for enviro-legal action v. UOI, wherein SC imposed absolute liability on enterprises carrying on hazardous and inherently

dangerous activites.

Writ jurisdiction of HC & SC SCOI & HCs have constantly held in various cases that right to live in a clean and healthy environment is a fundamental right guaranteed by Art. 21 of the Constitution of India. Right to live with human dignity becomes illusory in the absence of humane & healthy environment. Remedies for enforcement of fundamental right to live in a clean & healthy environment are provided under Articles 32 & 226 of the Constitution of India. Remedies under Article 32 Article 32 of the Constitution of India guarantees the right to move to Supreme Court by appropriate proceedings for enforcement of fundamental rights. In BandhuaMuktiMorchacase it was held that “The word ‘appropriate’ does not refer to any form but to purpose of the proceeding and therefore so long as the purpose of the proceeding is enforcement of a fundamental right, it is appropriate and when it relates to the enforcement of the fundamental rights of the poor , disabled or ignorant by a public spirited person “even a letter addressed by him (to the court) can legitimately be regarded as an ‘appropriate proceeding’.” In MC Mehta v. UOI it was held that “The letter need not be in particular form nor need it be addressed to the Chief Justice or to the Court.” In Mohan Lal Sharma v. State of U.P., it was held that “Accordingly letters in any form including postcards and telegram addressed to any judge have been entertained as appropriate proceedings.” But once the proceedings have been initiated then the parties cannot be allowed to address letters directly to the judges. To facilitate these epistolary proceedings a PIL cell has been opened in the SC to which all the letters addressed to the Court or individual judges are forwarded which are placed before the Chief Justice after scrutiny by the staff attached to the cell. Though the SC is bound to issue ‘appropriate’ direction, order or writ for enforcement of the FRs, there is no obligation in the SC to give any particular kind of remedy to the petitioner. In KanuSanyal v. District Magistrate, Darjeeling Case it was held that the appropriate remedy to be given to the petitioner for the enforcement of the FR sought by him is a matter for the Court to decide under Article 32(2). Moreover, the power of the SC is not confirmed only to the issuance of writs. It extends to issuing of any directions or orders that may be appropriate for enforcement of any FRs. Remedies Under Article 226: This article confers powers on the HCs to issue directions, orders, and writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of rights guaranteed under Part III of the CoI. A 226 had conferred discretionary powers of a most extensive nature on the HCs. The HCs can in the exercise of its discretion pass orders in terms of public interest and equity. The discretionary powers conferred on the HC under A 226 are for doing justice and correcting injustice.

Hence the HCs exercise its jurisdiction in accordance with the judicial considerations and well established principles of Law. Following are some of the principles which regulate the exercise the jurisdiction by HCs under A 226: 1. Alternative Remedy: the remedy under this article is a discretionary remedy and the HC has always the discretion to refuse the grant of any writ if it is satisfied that the aggrieved party can have an equally efficient and adequate remedy elsewhere, unless there is any exceptional reason for dealing with the matter under writ jurisdiction. 2. Delay: Though there is no prescribed period of limitation and though the provisions of the limitation act do not apply to a petition under A 226 inordinate delay in invoking the jurisdiction of the HC may be a good ground for declining the grant relief. 3. Suppression of Facts: The HC may reject a petition and would refuse to consider it on merits of the applicant for a writ under A 226 is guilty of suppression of material facts in the application and attempts to mislead the court. 4. Futile writ: if the writ applied for is not likely to serve any useful purpose, the court may in its discretion reject the application on ground of futility. 5. Disputed questions of fact: The proceedings under A 226 are of summary nature and are not suitable for agitation of disputed questions of fact. In such cases the HC may refuse to provide remedy under A 226. 6. Frivolous/reckless/vexatious grounds: The HC may decline to entertain a petition under A 226 if the claim made in the writ petition is without substance or prima facie unjust. 7. Joinder of Parties: A petition under A 226 many not be heard without impleading all the necessary parties who may be affected by the decision of the HC. 8. Res Judicata: The general principle of res judicata applies to writ petitions filed under A 226. Where the same question has been decided by the HC in a writ petition filed under the A 226 and the court comes to the conclusion that no relief can be granted to petitioner, such a decision operates res judicata in a subsequent petition for same relief. However the rule of res judicata will not apply to matters of grave public importance. Green Bench The SC in Vellore Citizen Welfare Forum Case and MC Mehta Case, has observed that the HC would be in a better position to deal with environmental issues pertaining to region over which it exercises jurisdiction and directed the registry of the SC to send records to the HCs of the concerning state and requested the CJ of respective of respective HCs to form Green Bench for purpose of adjudicating public interest environmental cases.

Statutory Remedies This remedy has not been used much. After Bhopal Gas Tragedy 1984 & Oleum leak 1985 took place Bhagwati J. propounded absolute liability & an act named ‘Public Liability Insurance Act, 1991’ (PLIA) was introduced. As per the provisions of this Act if death, injury or damage to property is caused to any person (even other than a workman) as a result of an accident caused while handling hazardous substance, then, the owner shall be liable to give relief. In 1991, under PLIA compensation was made compulsory for any effect due to hazardous effects. It was not limited to victims only, any person who was injured by dangerous thing were entitled to compensation. In 1992, Rio conference happened. To implement the decision taken at Rio conference and to make more stringent laws, the govt. enacted National Environment Tribunal Act, 1995. Herein, there was provision for expeditious remedy & the tribunal had both judicial and administrative people. This Act was finally repealed by National Green Tribunal Act, 2010.

Criminal Remedies Provision under IPC Chapter 14 of IPC deals with the provision relating to offences affecting public health, safety, convenience decency & moral. Section 268 provides for punishment relating to offence of public nuisance. Section 269 provides for punishment relating to offence of negligent act likely to spread infection of disease dangerous to life. Section 270 provides for punishment relating to offence of malignant act likely to spread infection of disease dangerous to life. Section 277 provides for punishment relating to offence of fowling water of public spring or reservoir. Section 278 provides for punishment relating to offence of making the atmosphere noxious to health. ProviosionsUnderCrPC Part B of Chapter X of CrPC deals with public nuisances. Sections 133-143 & 144 deal with abatement of Public Nuisances. Section 133 gives power to Magistrate (District or Sub-Divisional or any other Executive) to deal with Public Nuisances. The provisions of this section are attracted only in cases of emergency and imminent danger to the health of physical comfort of the community. Ratlam Municipality Case Layman filed an appli complaining that municipality was not working properly in Ratlam city, human excreta was flowing in the drainage system. The Sub-Divisional Magistrate did not take any action & therefore he appealed in the HC & finally SC. J. Krishna Iyer held that financial capacity is no reason for Sub-Divisional Magistrate not to perform his duty. Also, the power given under 133 is not discretionary but is mandatory. Govind Singh v. ShantiSwaroop Executive Magistrate on basis of complaint (Police Report) gave order to bakery situated in residential area to remove oven & chimneys which caused air pollution. Bakery didn’t follow order and went to appeal. SC upheld Executive Magistrate’s decision. Also power given under 133 is discretionary in nature.

UN’s Millennium Declaration At its Fifty-Fifth session, the UN General Assembly on 8th September, 2000 adopted the UN

Millennium Declaration. It raised concern for a variety of aspects affecting the world body, and made the world community realize that they have got a collective responsibility to uphold the principles of human dignity, equality, and equity at the global level. Amongst other things the Declaration pledged to work for the protection of our common environment. The declaration is divided into eight sections and has set out certain fundamental values which are essential for international relations. ‘Respect for nature’ is one such fundamental value. On this point the declaration says that “prudence must be shown in the management of all living species and natural resources, in accordance with the precepts of sustainable development. Only in this way can be immeasurable riches provided to us by nature, be preserved and passed on to our descendants”. The Millennium Development Goals (MDG) includes 8 goals, 18 targets & over 40 indicators. It has significantly focused the work of the UN. The UN strategy for the MDG includes: i. The Millennium project, which analyses policy options and will develop a plan of implementation for achieving the MDG. ii. The Millennium Campaign, which mobilizes political support for the Millennium Declaration among developed and developing countries. iii. Country-level monitoring of progress towards achieving the MDG. iv. Operational country-level activities, coordinated across agencies through the UN Development Group, which helps individual countries to implement policies necessary for achieving the MDG. Section IV which deals with environment declares under the caption “protecting our common environment” that: “We must spare no effort to free all of humanity, and above all our children & grandchildren, from the threat of living on a planet irredeemably spoilt by human activities, and whose resources would no longer be sufficient for their needs”.

We resolve, therefore, to adopt in all our environment actions a new ethic of conservation and stewardship & as first steps, we resolve: To make every effort to ensure the entry into force of the Kyoto Protocol, preferably by the tenth anniversary of the UN conference on Environment and Development in 2002, and to embark on the required reduction in emissions of greenhouse gases. To intensify our collective efforts for the management, conservation and sustainable development of all types of forests. To press for the full implementation of the convention on Biological Diversity and the Convention to Combat Desertification in those countries experiencing serious Drought or Desertification, particularly in Africa. To stop the unsustainable exploitation of water resources by developing water management strategies at the regional, national and local levels, which promote both equitable access and adequate supplies. To intensify cooperation to reduce the number and effects of natural and manmade disasters. To ensure free access to information on the human genome sequence.

Expanded Standing and the emergence of PIL in India PIL in India was initiated and fostered by a few judges of the SC. The method they used to relax public grievances was, to relax the traditional rules governing locus standi. Principle of locus standi: Only whose rights were violated can come to the court of law. A court will not hear a party unless he or she has sufficient stake in the controversy, judicial perception of who has sufficient interest i.e. ‘the person aggrieved’ is critical to determine the standing of a party. The SC has lowered the standing barriers by widening the concept of ‘the person aggrieved.’ In 1970’s two forces combined to erode the doctrinal limitations of the standing. 1. Representative Standing: It is the modification of traditional rule of understanding which permits the poor and oppressed to be represented by volunteers.

In the case of People’s union for Democratic rights v. UOI, the court allowed a group of social activists to petition on behalf of exploited govt. construction workers, who were being paid less than statutory minimum wage. 2. Citizen’s standing: It is the second modification of classical standing doctrine where a concerned citizen or a voluntary organization may sue, not as a representative of others but in his or her own right as a member of citizenry to whom the public debt is owed. In the case of M.C. Mehta v. UOI (Ganga Pollution case), the SC upheld the standing of a Delhi resident to sue the govt. agencies whose prolonged neglect had resulted in severe pollution of the river. However, the later the SC judgments have failed toappreciate this distinction and have muddled the separate rationales in to a single doctrine.

Epistolary Jurisdiction In epistolary jurisdiction the court has the power to treat letter written to individual judges and court as writ petition. These letters usually contain a bare outline of the grievance, the unsuccessful steps taken by the writer to secure relief from the official agencies, and a request to the court to set matters right. In the case of S.P. Gupta v. UOI and PUDR v. UOI,epistolary jurisdiction was recognized. But in RLEK v. State of U.P.it concretely acknowledged the epistolary jurisdiction and allowed a letter from Rural Litigation and Entitlement Kendra, to be treated as a writ petition under Art.32 of the Constitution of India.

Oleum Gas Leak Case: (M.C.Mehta v. UOI) Question: Whether any private Corporation established under functional operation of Govt. should be treated as a state under Art. 12? The court regarding this question held that private body cannot be treated as a state under Art. 12 but the court said that the power of the Supreme Court to grant remedial relief for a proved infringement of a fundamental right includes the power to award compensation. Thus, the court not only widened the scope of Article 21 by including in it protection of environment but also included a liability in tort for those who harmed others by pollution.

In this caseShriram food and fertilizers Co. was a subsidiary of Delhi Cloth Mills Pvt. Ltd. The Co. was emerged in manufacture of Caustic soda, hydrochloric acid, vanaspati, Sodiunsulphate and sulphur. Plant in question manufactured chlorine. On 4th December 1985, a major leakage of oleum gas took place from one of the units. Leakage affected a large no. of people. One practicing advocate of Tis Hazari court died. Leakage occurred due to bursting of tank containing gas due to collapse of structure on which tank was mounted. District magistrate on 6th December ordered for closure off the unit under S. 133 of CrPC. After that a writ petition was filed under Art. 32 on 7th September. Sc accepted the claim of the petitioner and held that an expert committee to should be appointed. Chief Metropolitan Magistrate was appointed as the head of the committee. Petitioner was also asked to appoint another committee to look in to the matter and the same was appointed asG.D.Agrawal Committee. Agrawal committee brought to notice that there were

various inadequacies and the plant should be shifted to another location. Another committee was appointed under the head of NilayChaudhri and two other members to inspect and submit the report on following 3 points: 1. Whether the plant should be allowed to work at the same location under the present condition? 2. If the plant should not be allowed in the present condition then what measures should be taken so that the leakage does not happen in future? 3. How many safety desires were present and how many were to be installed? After verification, NilayChaudhri Committee agreed with other committees and gave 14 point recommendation to prevent leakage in future. Meanwhile proceedings were going on, inspector of factories using power under Factories Act prohibited manufacture of caustic soda, chlorine and sulphuricacid till proper safety measures were taken. Court considered report of all committees and observed that all devices were installed 35 years ago were not sufficient and new devices should be installed not only in the plant in question but also in all other plants. Court further observed that since chlorine gas is very dangerous its escape from storage tank or cylinders will affect the well-being of the people. Therefore, precautionary measures should be taken and all industries were ordered by the SC to take consent letter from the central state control board and State pollution control board depending upon area where the plant is situated. In this case P.N.Bhagwati J recognized the principle of absolute liability and denied to accept the strict liability principle laid down in Rylands v. Fletcher since, the circumstances in India are different from thst in foreign land. Principle of absolute liability: When an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to any one on account of an accident in the operation of such hazardous and inherently dangerous activity. The enterprise is absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any exceptions. The court said absolute liability is an indigenous principle.

Calcutta and Kanpur tanneries case: (M.C.Mehta v. UOI) This case is related to Sec 16 and 17 of Water Act and Sec. 3 and 5 of EP Act. In this case M.C.Mehta read an article named ‘Fix in Ganga’ which emphasized on how Ganga was polluted because of trade effluents and how it was unfit for drinking, bathing or any other purpose. Petitioner claimed that neither people nor govt. agencies are taking pains towards protection and improvement of rivers in India. After hearing the case, court directed issuance of notice under provisions of CPC to respondents. While deciding this case SC quoted DPSPs (A.48A and 51(1)(g)). And since the writ petition was accepted under Article 32 it is presumed that various Environmental rights to be FRs. Court also invokedSec. 16 and 17 of Water Act and Sec. 3 and 5 of EP Act and order was given for installation of primary as well as secondary treatment plants in each industry. Various industrialists pleaded that they did not have sufficient financial capacity for installation. The Supreme Court declared that the financial capacity of the Kanpur tanneries is irrelevant in

directing them to establish primary-treatment plants to pre-vent any further pollution of the Ganga. The Court held that tanneries which have no financial means of establishing primary treatment plants cannot be allowed to operate. Some principles laid down are: a. Under A.32 PIL can be filed. b. Statutory provisions must be strictly enforced and authorities concerned must be implement them strictly.

Vehicular Pollution case: (M.C.Mehta v. UOI) The Supreme Court in the case of M.C. Mehta v. Union of Indiacourt emphasized the significance of principle of sustainable development is one the principles underlying environmental law ad precautionary principle and polluter pays principle are two essential features of sustainable development.

Judicial Pronouncements T. DamodharRao v. S. 0. Municipal Corporation Hyderabad In instant case Andhra Pradesh High Court allowed a petition forbidding the construction of houses for government organizations on land allocated for a recreational park. In instant case it was stated that, the law on environmental protection gains priority as a right to life and personal liberty. Court resorted to the Constitutional mandates under Articles 48A and 51A(g) to support this reasoning and went to the extent of stating that environmental pollution would be a violation of the fundamental right to life and personal liberty as enshrined in Article 21 of the Constitution. A.P Pollution Control Board v. Prof. M.P. Nayudu (Part I) A.P Pollution Control Board v. Prof. M.P. Nayudu (Part II) AttakoyaThangi v. UOI R.V. Lakshmipati v. State of Karnataka Rajiv Ranjan singh v. State of Bihar Virendragour v. state of Haryana

Doctrines Precautionary Principle Vellore Citizen’s Welfare Forum v. UOI The Hon’ble Supreme Court in the case of Vellore Citizen’s Welfare Forum v. UOI, developed following three concept of Precautionary Principles: • Environmental measures must anticipate, prevent and attack the causes of environmental Degradation. • Lack of scientific certainty should not be used as a reason for postponing measures. • Onus of proof is on the actor to show that his action is benign.

Public Trust Doctrine

The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to people as a whole that it would be wholly unjustified to make them a subject of private ownership. In the case of M.C.Mehta v. Kamal Nath and Othersthe public trust doctrine was held to be a part of the law of the land. This case is popularly known as the river pollution caseinvolved encroachment of forest land

and an attempt to change the course of the River Base to facilitate the construction of a motel by a company reportedly having direct links with the family of Kamal Nath, former Minister of Environment and Forests. The Supreme Court took notice of a news item regarding the above developments and proceeded to quash the approval granted by the central government, court gave the order for restitution of the environment and ecology of the area and to prohibit from discharging untreated effluents into the river. While directing the company to construct a boundary wall separating the building from the river basin, the Court made it clear that the river bank and the river basin were to be left open for public use. Sustainable Development According to Brundtland Report, SD means “development that meets the needs of the present without compromising the ability of the future generations to meet their own needs.”The courts are often require to strike a balance between development and environment. In Rural Litigation and Entitlement Kendra v. State of UP, court first time came across the issue relating to the environment and development; and held that, it is always to be remember that these are the permanent assets of mankind and are not intended to be exhausted in one generation.

In Vellore Citizen’s Welfare Forum case Supreme Court observed that sustainable development has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco- system.

Intergenerational Equity This doctrine was opined by the SC in the case of State of Tamilnadu v. Hind Store. The idea behind this doctrine is that “every generation should leave water, air and soil resources as pure and unpolluted as and when it came to earth. Each generation should leave undiminished all the species of minerals it found existing on earth.”

Polluter pays Principle (From Copy)

Absolute liability (Mentioned above)

HISTORY OF ENVIRONMENTAL PROTECTION IN INDIA The History of the evolution of Law to handle pollution and other environmental problems in India can be studied under the four periods; 1. 2. 3. 4.

In Ancient India In Medieval India During the British period; and The post Independence period.

Environmental Protection InAnceint India In the Hindu theology forests, wildlife, trees were held to be in high esteem and given high respect. A detailed description of trees, plants and wildlife and their importance to people was

given in Vedas, Puranas and Upanishads. The Rig Veda highlighted the potentialities of nature in controlling the climate, increasing fertility and improvement of human life emphasizing for intimate kinship with nature. Atharva Vedaconsidered trees as abode of various gods and goddesses. Yajur Veda emphasized that relationship with nature and animals should not be that of dominion and subjugation but of mutual respect and kindness. The Hindu society was conscious of adverse environmental effects caused by deforestation and extinction of animal species. As the cutting of trees was prohibited during the Vedic period and there was a penalty for cutting trees under YajnavalkyaSmriti.Many instructions for the use and maintenance of water were given in CharakSamhita. There also existed a relationship of mutual respect and kindness between Animals and humans. Ancient Hindu Scriptures strictly prohibited the killing of birds and animals. In Yajur Veda it is said that no person should kill animals, but being helpful to all and by serving them, should obtain happiness. Environment protection has been an important facet of Hindu way of life, the civilization of Mohenjodaro, Harappa lived in consonance with its ecosystem, small population and their needs, maintained the harmony with environment. The Mauryan period was the most glorious chapter of the Indian History from environmental protection point of view. It was in this period detailed and perspective legal provisions were found inKautilya’sArthashastra. The necessity of forest administration was realized, the state assumed functions of maintenance of forest, regulation of forest produce and protection of wild life during the Mauryan reign.

Under Arthashastra various punishments were prescribed for cutting trees, damaging forests, and for killing animals etc. Wild life in sanctuaries enjoyed complete protection from being killed except when they turn harmful. There were also punishments prescribed for causing of pollution and uncivic sanitation. To sum up ancient India had a philosophy of environmental management enshrined in old injunctions as they were contained in many scriptures. Abuse and exploitation of nature for immediate gains was considered unjust, irreligious and against environmental ethics of Hindu culture.

Environmental Protection InMedievial India From the point of view of environment conservation, a significant contribution of Moghul emperors has been the establishment of magnificent gardens, fruit orchards and green parks round about their palaces, central and provincial headquarters, public places, on the banks of the rivers and valleys and dales which they used as holiday resorts or places of retreat or temporary headquarters during summers. Among the officials empowered for administration of justice by the Sultans and emperors of India, ‘Muhtasibs’were vested with the duty of prevention of pollution. Though the Moghul emperors were great lovers of nature they didn’t make any attempts to conserve forest. To the Moghul emperors the forests were just wooded lands where they could hunt, for their governor’s they were properties which generated revenue. A few species of trees enjoyed patronage and were

called as ‘royal trees’ and had a restriction on being cut. However, there was no restriction in cutting of other trees. In the absence of any protective management, forests shrank during this period. The waste and forestlands were treated as open access resources. Untrammeled use of forest and other natural resources however did not mean that they could be used or misused by one and all without any restraints. Rather the resources were quite effectively managed with the help of complex range of rules and regulations woven around the socio cultural and economic activities of the local communities.

Environmental Protection During The British Rule In India Early days of British rule in India were days of plunder of natural resources. There was total indifference to the needs of forest conservancy. They caused a ‘fierce onslaught’ on India’s forests; it was due to the increasing demands for military purposes, for British Navy, for local construction, supply of teak and sandalwood for export trade etc. The British Government started exercising control over forests in the year 1806 when a commission was appointed to enquire into the availability of teak in Malabar and Travancore by way for appointment of Conservator of forests. This move failed as the conservator plundered the forest wealth instead of conserving it. The second half of the 19th century marked the beginning of an organized forest management in India with some administrative steps taken to conserve forest; the formulation of forest policy and legislations to implement the policy decisions. The systematic management of forest resources started with the appointment of first Inspector General of Forest in 1864. The task of forest department under the Inspector gen. was that of exploration of resources, demarcation of reserves, protection of forests etc. The objective of management of forests thus changed from obtaining timber to protection and improvement of forests. Forest Act, 1865 was enacted as the 1st step of the British govt. to assess the state monopoly right over the forest. The Act was revised in 1878 and extended to most of the territories under British rule. It expanded the powers of the state by providing for reserved forest, which was close to people and by empowering the forest administration to impose penalties for any transgression of the provision of the Act. On 19th October 1884, the British Govt. declared its first Forest Policywith the following objectives: 1. Promoting the general well being of the people in the country; 2. Preserving climatic and physical conditions in the country; and 3. Fulfilling the need of the people. This policy also suggested classification of forest into various categories such as 1. 2. 3. 4.

Forests, preservation of which was essential on climatic and physical grounds; Forests which offered a supply of valuable timber for commercial purposes; Minor forests which produced only the inferior sorts of timber; and Pastures which were forests only in name.

To implement the forest policy of 1884, the Forest Act of 1927 was enacted. Apart from the management of forest resources the British Government also concentrated on certain other areas like water pollution, air pollution, wildlife and land use by enacting

numerous legislations. Some of the important legislations made by the British Govt. were IPC (1860), Indian Easement Act (1862) etc.which contained provisions for the regulation of water pollutionand also prescribed punishments for the violation of these legislations. For controlling Air pollution the British Govt. enacted Bengal Smoke Nuisance Act (1905) and Bombay Smoke Nuisance Act (1912). For protection of Wildlife the British Govt. made provisions like The Elephant’s Preservation Act (1879), The Wild Birds and Animals Protection (1912) aimed at the conservation of Biodiversity. British Government enacted various provisions for prevention of pollution and for conservation of natural resources. Though it is pointed out that the British enacted the legislations to earn revenue and not conserve environment. But then also the legislations can be regarded as the 1st step towards conservation of natural resources. Though made with ulterior motives these legislations have contributed significantly to the growth of environmental jurisprudence in India.

Environmental Protection During The Post Independence Era The post independence era witnessed a lot of changes in the policies and attitudes of the Governments with respect to environmental protection. The Constitution of India came into force on 26th January 1950, had few provisions regarding environmental management. Article 39(b) provides that “the state shall direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good”. Article 47 provides that the State shall regard the rising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. Article 48 direct that “the State shall endeavor to organize agriculture and animal husbandry on modern and scientific lines and take steps for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other milch and draught cattle. Article 49 directs that “it shall be the obligation of the State to protect every monument or places or object of artistic or historic interest, declared to be of national importance, from spoliation, disfigurement, destruction, removal, and disposal or export as the case may be”. From the above articles, one can understand that the COI was not environmentally blind, though the word environment was not expressly used in the Constitution; the object of the above articles is to conserve the natural resources and to protect the natural environment. Van Mahtsava, National Festival of planting trees was adopted in 1950, with an object to create mass awareness about the value of forests in human well being. National Forest Policy was formulated for the purpose of proper management of forests of the country and to maximize the benefits of forests formed in the year 1952. The Pitambar Pant Committee on Human Environment was set up to prepare a report on the

state of environment for representation at the United Nations Conference on Human Environment held at Stockholm in 1972. The year 1972 was a landmark year in the history of Environmental Management in India, because the Stockholm conference was held in Stockholm. The views expressed in the conference influenced many policies in India. In the year 1972 on the recommendation of the Pitambar Pant committee, NCEPC (National committee on Environmental planning and coordination) was set up in Dept. of Science and technology to plan and coordinate environmental programs and policies and advise various ministries in matters relating to environment protection. In 1972, Wild life (protection) Act was enacted for protection of ‘wild animals, birds and plants’ and to prevent the hunting; control trade in wild life products. In 1973, centrally sponsored scheme “Project Tiger” was launched to ensure maintenance of population of tigers in India. In 1974, the Water (Prevention and Control of Pollution) Act was passed for the purpose of prevention and control of water and for restoring wholesomeness of water. The Act also provides for Pollution Control Boards. In 1976, the COI was amended by the 42nd Amendment Act, two new articles were added inPart IV and part IV- A of the COI. The newly added A-48a directs the State that ‘the State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country. In the Part IV-A a list of Fundamental duties of citizens of India was prescribed. In 1980, The Tiwari Committee was formed under the Chairmanship of Deputy Chairman of the Planning Commission Mr. N.D. Tiwari. The report of this committee suggested a number of administrative and legal measures for environmental protection.Based on its recommendations, the Government of India set up a Department of Environment with effect from November 1, 1980. In April 1981, National Committee on Environmental Planningwas constituted for preparing annual ‘State of Environment’ Report. The eighties witnessed the creation of many ecospecific organisations like: Botanical Survey of India, National Museum of Natural History, Zoological Survey of India etc. In 1981, the Air (Prevention and Control of pollution) Act was enacted to provide prevention, control and abatement of air pollution. In January 1985, the Department of Environment became part of a new Ministry of Environment and Forests. It consisted of two departments, viz., the Department of Environment and the Department of Forests & Wildlife. In 1986, ‘Environment (Protection) Actwas made to empower the Central Government to take all necessary measures to protect and improve the environment and to prevent hazards to human beings, other living creatures, plants and property. In 1987, the Govt. formulated the “National Water Policy” with the object to develop, conserve, utilize and manage the water resource as the water resource is scarce and precious and utmost national importance. In 1988, the ‘National Forest Policy’ was formulated with the aim of ensuring environmental stability and maintenance of ecological balance. In the year 1991-92, ‘The Project Elephant’ was launched aiming at ensuring long term survival of identified viable population of elephants and tackling problematic elephant

populations causing serious depredation. In 1995, the National Environment Tribunal Act was enacted to provide for strict liability for damages arising out of any accidents occurring while handling any hazardous substance.

In 2000, the Central Government by virtue of powers conferred on it by the Environment (Protection) Act, 1986 made the following rules; 1. 2. 3. 4.

The Noise Pollution (Regulation and Control) Rules, 2000; Ozone Depleting Substances (Regulation and Control) Rules, 2000; The Municipal Solid Wastes (Management and Handling) Rules, 2000; and Batteries (Management and Handling) Rules, 2001.

Apart from the above eco-specific legislations, realizing that there is no comprehensive legislation dealing with bio-diversity in India, and to fulfill its international obligation under Convention on Bio-Diversity (CBD), the Govt. of India has enacted the Biological Diversity Act 2002.