Environment law in India - an overview

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Introduction

It is to the credit of the courts in India, particularly the higher judiciary, that a truly strident march has been made in India in the protection of the environment. In fact, it would not be an exaggeration to say that the development of environment law in India is inextricably intertwined with the growth and development of the judicial institution in the country. A sub-continental nation-state of striking cultural, economic and ethnic diversity, burdened with the world’s second largest population, the majority of which is steeped in illiteracy and poverty, poses challenges of governance which are indeed unique. The written Constitution which the people gave themselves on attaining independence, provides extensive fundamental rights, however the realisation of these rights has not been an easy task. The various developments in the body politic led to a situation where the courts were seen as the last surviving bastion of the rights and liberties of the people.

The post emergency era, particularly the 1980s, witnessed an activist judiciary at work and this was also the period when new and interesting developments took place in environment law. The focus shifted from the conventional approach of treating environmental violations as offences and/or civil wrongs, to the approach of treating environmental concerns as a part of the fundamental rights enshrined in the written Constitution.

Conspectus of constitutional provisions and legislation

The Indian Constitution specifically provides for protection and improvement of the environment. Article 48A, which is a part of the Directive Principles of State Policy under Chapter IV of the Constitution of India, requires the State to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51A(g) casts a duty on every citizen of the country to protect and improve the environment.

Although not enforceable in a court of law, an activist judiciary has given effect to the objective underlying these Principles by reading them in conjunction with the fundamental rights, which are enforceable in a court of law.

The right to life under Art 21, it was held by the Supreme Court, was not limited to a mere animal existence. This article was later interpreted to bring within its sweep the right to a pollution free environment. Art 32 and 226 provide for issuance of prerogative and other writs have been invoked to grant reliefs. Art 32 enables an individual to approach the Supreme Court directly for infringement of a fundamental right. Art 226 empowers a High Court to issue a writ for violation of a fundamental right or any other legal right. Further, the rulings with regard to the expansion of the principle of locus standi for invoking these provisions were applied to protect against environmental degradation.

Perhaps the most important piece of legislation in this field of law is the Environment Protection Act 1986. Enacted in the wake of the Bhopal Gas Tragedy, this Act covers the whole gamut of environment issues. ‘Environment’ has been defined under the Act to include water, air and land and the inter-relationship which exists among and between them and human beings, other living creatures, plants, micro-organisms and property. The Act empowers the central government to take such measures as it deems necessary to protect and improve the quality of the environment and to prevent, control and abate environmental pollution. An ‘umbrella’ legislation, this Act authorises the Central government, inter alia, to set new standards for emissions etc., regulate location of industries, devise procedures for handling hazardous substances, safeguard against accidents causing environment pollution and generally collect and disseminate information regarding environmental pollution.

The common law principle of ‘nuisance’ offers a legal basis for initiating action against environmental violations. The Code of Civil Procedure 1908 (‘CPC’), the Indian Penal Code 1860 (‘IPC’) and the Code of Criminal Procedure 1973 (‘CrPC’) contain provisions in respect of public nuisance. Section 91 of the CPC entitles two or more persons to institute a suit for a public nuisance affecting or likely to affect the public. In the Bhopal Gas Tragedy, the Central Government enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act 1985, conferring on it the exclusive right to represent the claims of the victims in parens patriae suits. The validity of this legislation was upheld by the Supreme Court in Charan Lal Sahu v Union of India. Public nuisance is an offence punishable under the IPC. Several provisions of the IPC deal with various types of nuisance which cause public injury. The CrPC under s133, empowers a magistrate to remove a public nuisance of an environmental nature, ss 142 and 144 empower the magistrate to take immediate action to prevent danger or injury of a serious kind. The Ratlam case in 1980 is a major landmark in terms of the application of this provision as an effective tool for enforcing duties of local bodies. The case concerned provision of drainage facilities by the local body to the residents of the area. The financial inability pleaded by the council for not providing the facilities was rejected by the Supreme Court by holding that ‘decency and dignity are non-negotiable facets of human rights and are a first charge on the local self governing bodies’. Even before this decision, the Supreme Court in the case of Govind Singh v Shanti Swaroop dealing with nuisance caused by smoke emanating from a bakery, held that what is involved is not merely the right of a private individual but the health, safety and convenience of the public
at large.

The Air Act11 and The Water Act provide for a regime of regulation and control of discharge of pollutants through a system of licensing/permits. The provisions are administered by Central and State Boards established for this purpose. The violations of standards prescribed under these enactments attract penalties, which now include closure of an industry/plant. The Water Cess Act imposes a levy on the consumption of water, which is used to enforce the provisions of The Water Act. The Act provides a 70 per cent rebate on the cess payable upon installation of effluent treatment equipment.

The Indian Forest Act 1927 and The Forest (Conservation) Act 1980 are important. The later Act envisages permission of the Central Government for dereserving a reserved forest, use of forestland for non-forest purposes or assignment of forestland and other issues concerning reforestation. Mention may also be made of The Wild Life Protection Act 1972, The Atomic Energy Act 1962 and The Factories Act 1948.

In addition, there are Rules made under the Environment Protection Act including The Hazardous Wastes (Management and Handling) Rules 1989 and The Hazardous Micro-organisms Rules 1989 which deal with manufacture, use, import, export and storage of hazardous micro-organisms and genetically engineered cells.

A reference may also be made to the Public Liability Insurance Act 1991 and also to the National Environment Tribunal Act 1995. The Public Liability Insurance Act provides for mandatory public liability insurance for installations handling hazardous substances to provide minimum relief to the victim. The Environment Tribunal Act envisages imposition of strict liability for damages, by reason of accidents caused by handling hazardous substances. The Act enables the Central Government to establish a national tribunal and benches to hold enquiries and make awards which appear to be ‘just’. In fact, by a recent decision15, the Supreme Court has enabled the courts to refer the scientific and technical aspects of environmental concerns, arising out of Arts 32 and 226, of the Constitution earlier.

Public interest litigation and environment law

A distinctive feature of the growth of environment law in India is the fact that major developments in the law have been at the instance of non-governmental organisations and public spirited individuals. As mentioned earlier, the judiciary assumed a more activist role during the 1980s as new modes of justice-delivery were devised. The courts overcame the limitations imposed by the traditional adversarial system by expanding the principle of locus standi. In the celebrated SP Gupta case, the Supreme Court declared that any member of the public acting bonafide can maintain an action for redress where a public wrong or injury is caused by the state. It is significant to note that the court ruled that such a member of the public may approach the court on behalf of a person(s) who has been injured but is not able to approach the courts by reason of disabilities like poverty, social or economic hardship. This expansion of locus standi has been extensively used by environment groups and individuals to seek redress against environmental degradation by taking recourse to Arts 32 and 226 of the Constitution.

However, it is not to be forgotten that such expansion of locus standi to enable any member of the public to approach the court to vindicate the public interest is not an unmixed blessing. The courts have not hesitated to discourage and in fact strongly deprecate actions which are not bona fide. The Supreme Court laid down in unequivocal terms in the Chhetriya Pardushan case ‘… this can only be done by any person interested genuinely in the protection of the society on behalf of the society or the community. This weapon as a safeguard must be utilised and invoked by the court with great circumspection and caution. While it is a duty of this court to enforce fundamental rights, it is also the duty of this court to ensure that this weapon … should not be misused or permitted to be misused …’. More recently in the Raunuq International case, the Supreme Court has held that if any developmental project were to be stalled by reason of any public interest action before a court of law and ultimately, it is found that the action is not bona fide, the petitioner would be liable to pay exemplary costs. It can be seen therefore that while the scope of public interest litigation is extensive, courts have taken care to see that it is not abused.

March of the law

A major portion of the jurisprudence in this area is attributable to the creative approach of the higher courts, particularly the Supreme Court. To start with, the decisions which held that a pollution free environment was a fundamental right were not explicit. In a matter concerning limestone quarries in the Doon Valley which caused soil erosion, deforestation and other environmental problems, the Supreme Court held that people have the right to live in a healthy environment with minimal disturbance of the ecological balance. Later on, the court referred to the fundamental duty of a citizen to preserve the environment. It was in the Bhopal Gas Leak case21 that the Supreme Court declared in explicit terms that the right to a pollution-free environment is a part of the right to life under Art.

It would at this juncture be appropriate to refer to some other leading decisions, the significance of these rulings is that the courts have held principles like ‘Sustainable Development’, ‘Polluter Pays’ and ‘precautionary principle’ to be a part of the law of the land, though there has bee no specific incorporation of these principles to the municipal law.

In the Vellore Citizens Forum case, the large-scale pollution caused by the tanneries in the southern state of Tamil Nadu was sought to be stopped. The Supreme Court held that ‘sustainable development’ as a balancing concept between ecology and development has been accepted as a part of customary International Law. In this regard the court referred to various instruments starting from the Stockholm Declaration to the Rio Declaration including the Bruntland Report, the UN Convention on Climate Change, etc. Holding further that the ‘precautionary principle’ and the ‘polluter pays’ are essential attributes of ‘sustainable development’, the court read these to be part of municipal law as they do not conflict with the Constitution and statutory law in force in India. The court went on to grant various reliefs including the creation of an ‘environmental fund’, constituted by the fines paid by the polluters to be utilised for reclamation of the affected areas and rehabilitation. The ‘polluter pays’ and ‘precautionary’ principles were also applied in subsequent cases like the Calcutta Tanneries case, the Shrimp Farming case, the Taj Trapezium case and the Kamalnath case.

The Kamalnath case needs special mention for the invocation of the public trust doctrine. The court was concerned with the ecological damage caused by the artificial deviation of a river in forestland for augmenting the facilities of a motel. Whilst imposing the responsibility of restoring the environment and ecology, the Supreme Court held that: “Our legal system based on English common law includes the public trust doctrine as part of its jurisprudence. The state is the trustee of all the natural resources, which are by nature meant for public use and enjoyment. The public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The state as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership”.

In the Shrimp Farming case, the Supreme Court referring to the UN Convention on the Law of the Sea 1982, held that the central and state governments of the coastal states are ‘under a legal obligation to control marine pollution and protect the coastal environment.' The need to protect the coastal zone was recently emphasised by the Supreme Court in Navin Kumar’s case.

Some decisions have gone beyond the traditional standard of strict liability and have imposed ‘absolute liability’ on polluting industries. In the Oleum Gas Leak case, the Supreme Court was concerned with the leakage of oleum gas resulting in death and injury. Even though stringent conditions were laid down for re-starting the industry, the court held the industry to be absolutely liable for the pollution caused. The court said “we have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy”. The court further held “(w)here an enterprise is engaged in a hazardous and inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous and inherently dangerous activity, for example, in the escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident…”. Later on, in the Indian Council for Enviro-Legal Action case, the Supreme Court referring to this principle said, “according to the rule, once the activity carried on is inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. It was in this ruling that for the first time the principle of ‘polluter pays’ was applied by citing the Rome Declaration.

The Taj Trapezium case involved protection of the Taj Mahal from the air pollution caused by the coal based industries nearby. The anxiety of the court in preserving this monument is well reflected: “the atmospheric pollution in TTZ has to be eliminated at any cost. Not even one per cent chance can be taken when the preservation of a prestigious monument like the Taj is involved”.

It can therefore be seen that the courts in India have not felt constrained or constricted by the procedural limitations imposed by the law in force. The court has not hesitated to order relocation of industries from residential areas, has given directions for the creation of a fund for taking up remedial and rehabilitation action for affected areas and people and has ordered stoppage of any activity that is hazardous. The court has, on several occasions, directed installation of effluent treatment plants on a time-bound basis as a condition to recommencement of hazardous industries. In keeping with the spirit of public interest litigation, the court has often sought for and relied on reports from expert bodies to verify and ascertain the actual impact of any activity complained of. The Supreme Court has gone to the extent of establishing ‘green benches’ both in the Supreme Court and also in the various High Courts in the country to deal exclusively with environment cases. Presently, the Supreme Court is in the process of hearing two public interest writ petitions concerning India’s forests and the large-scale vehicle emissions in Delhi.

Conclusion

The jurisprudence in environment law with its focus on human rights has provided for the internationally recognised third generation right to development. The law in India has thus evolved whereby quality of life of the individual has been sought to be enhanced. The interpretation and application of the fundamental rights provisions in conjunction with Directive Principles of State Policy and Fundamental Duties to grant substantive relief, is indeed a unique approach. Such an approach may, to a puritan, appear to be a deviation from established legal norms, but the need and necessity of the times has warranted it. With the onset of the millennium and the globalisation that is taking place in all walks of life, there are crucial issues to be tackled. Areas like bio-technology are growing at such a rapid pace that legal regimes all over the world need to adapt quickly to the changes taking place. The dynamism of the courts in India is a welcome approach. The approach adopted by the Indian courts for providing substantive relief and remedy to its people who constitute a substantial portion of the international population and a country which boasts some unique ecosystems should serve as an example to consider and apply.

S. Guru Krishnakumar
Advocate, Supreme Court of India

S. Guru Krishnakumar is an advocate practising in the Supreme Court of India. He specialises in the fields of corporate and commercial law. He also appears before the High Court in Delhi, also the Monopolies Commission and the Consumer Grievance Redressal Commission in New Delhi. He lived in the UK recently as a British Chevening Scholar studying English and EC Commercial Law.