DR.

RAM MAHOHAR LOHIYA NATIONAL

LAW UNIVERSITY

2017-18

Environment Law

Project On:

Role of Judiciary in Environment Protection

SUBMITTED TO: SUBMITTED BY:

Mr. Amandeep Singh Shivani Singh

Assistant Professor (Law) Roll no. 140101128

Dr. Ram Manohar Lohiya National Law B.A.LLB (Hons.)

University VII Semester

ACKNOWLEDGEMENT

I have taken efforts in this project however it would not have been possible to complete this
project without the kind support and help of many individuals. I would like to extend my
sincere thanks to all of them.

I would like to extend my sincere thanks to my teacher and Mentor, Mr. Amandeep Singh
for his able guidance and help. All through the exploration period, I have been guided by my
educator at whatever point I confronted any obstacles or was in a state of daze not having the
capacity to resolve the intricacies of the subject.

I would also like to express my special gratitude and thanks to my seniors for sharing their
valuable tips and my classmates for their constant support.

Shivani Singh

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TABLE OF CONTENTS

INTRODUCTION ..................................................................................................................... 4

MEANING OF ENVIRONMENT ............................................................................................ 5

NEED FOR JUDICIAL ACTIVISM ......................................................................................... 5

THE ROAD SO FAR................................................................................................................. 6

Before Stockholm Conference ............................................................................................... 6

After Stockholm Conference ................................................................................................. 7

Absolute Liability .................................................................................................................. 9

Polluters Pay Principle ........................................................................................................... 9

Precautionary Principle .......................................................................................................... 9

Balance of Conflicting Interests – Doctrine of Sustainable Development .......................... 11

Disseminating Environmental Awareness ........................................................................... 11

CONCLUSION ........................................................................................................................ 12

BIBLIOGRAPHY .................................................................................................................... 14

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INTRODUCTION

The concept of ecological protection and preservation is not new. It has been intrinsic to
many ancient civilizations. Ancient India texts highlights that it is the dharma of each
individual in the society to protect nature and the term ‘nature’ includes land, water, trees and
animals which are of great importance to us. . In the ‘Atharva Veda’, the ancient Hindu
Scepters stated “What of thee I dig out let that quickly grow over”.1

Over decades there has been over exploitation of resources, depletion of traditional resources,
industrialisation, urbanisation and population explosion. With the advent of industrialisation
there has been a constant need for utilisation of resources. This is more so in the case of
developing countries like India, as we move towards ‘development’, we are pushing our
environment backwards. Thus numerous legislative steps have been taken to give effect to the
significant right of man to live in a sound environment and the corresponding duty on state
and individuals to ensure environment preservation and conservation. However the same
cannot be effective without the steps taken by the judiciary to forward the goal of protecting
and conserving our environment.

It must be noted that India of the few countries whose constitution itself provides for specific
provisions for environmental protection. . Though at the time of its proclamation in 1950, the
Indian Constitution included some provisions for improvement in the quality of life,
environmental protection and improvement were explicitly incorporated into our Constitution
by Forty-Second Amendment in 1976. Article 48A was added to the article on directive
principles of state policy which reads as “the State shall endeavour to protect and improve
the environment and to safeguard the forests and wild life of the country”. Through Article
51(g) the Constitution of India imposes Fundamental Duty upon every Indian Citizen “to
protect and improve the natural environment including forests, lakes, rivers and wildlife and
to have compassion for the living creatures”.

1
MC Mehta, GROWTH OF ENVIRONMENTAL JURISPRUDENCE IN INDIA, p.71, 1999. As cited in
https://www.lawctopus.com/academike/role-indian-judiciary-protection-environment-india/ <accessed on
10.10.2017>

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MEANING OF ENVIRONMENT

Environment means the milieu in which an organism lives. It includes the sum of all of its
surroundings. This includes natural forces and other living things. It defines the conditions of
danger and damage to existence, as well as development and growth2 and it refer to
‘environmental factors’.3 It also refers to living and non living things and how they interact
with their surroundings including the atmosphere, air, water and land. It is the surrounding
which includes human as well as environment ecological dimensions and physical
environment.

Section 2(a) of Environment Protection Act, 1986 defines it as:

‘Environment’ includes water, air and land and the relationship which exists amongst
and between water, air and land, and human beings, other living creatures, plants,
micro-organisms and property.

From a legal point of view, a substantial right regarding the environment is very often the
paradigm used for explaining the sort of protected position within a legal system that could
be referred to the citizens faced with the environment. It should mean that law ensures the
guarantee of the final outcome the individual is aiming at, since no one can interfere with his
interest. As a consequence, environmental law might be defined as the set of legal rules that
protects these ‘full’ rights.4

NEED FOR JUDICIAL ACTIVISM

Governance, as we all know, is a decision making process, which has always existed since
the dawn of human civilization. The role of judiciary lies in protecting the interest of
individuals and others against the misuse of power by public authorities. Despite judicial
review and Public Interest Litigation, there is an erosion of public confidence in the system
itself due to lack of effective access to justice, huge backlog of cases and long delay in
decisions.

2
Environment, <http://thelawdictionary.org/environment/> Accessed on 15.10.17.
3
Which means Known characteristics in an environment that impact the survival, operations, and growth of an
organization. This identifiable element exists as a physical, cultural, demographic, economic, political,
regulatory, or technological characteristic.
4
Md Al Amin, Zakir aby mohd syed, ‘Application of Judicial Activism in Protecting the Environment: An
Analysis’, Volume 21, Issue 1, Ver. 5 (Jan. 2016) PP 35-48, IOSR Journal Of Humanities And Social
Science

5
“The keys to good governance, as articulated by the United Nations Development
Programme, are rule of law, participation, and accountability and transparency.” The role of
the judicial branch of government is critical in ensuring the implementation of the principles
of both the rules of law and accountability. Firstly, the functioning of a society according to
the rule of law is based on the judiciary. Secondly, the judiciary ensures the accountability of
other institutions of government and individuals.

In the case of environmental governance, the judiciary also has the difficult role of
considering not only environmental instruments, but also economic, developmental and
political as well as social instruments. The compliance and enforcement of sustainable
development instruments also serves in the promotion of synergies or inter-linkages among
multiple issues also known as the inter-linkages approach. This is because compliance and
enforcement requires cooperation and coherence in policies across multiple departments and
branches of government.

On environmental law interpretation and law making, although most people would argue that
judges are there merely to interpret legislation and not to make laws, several distinguished
jurists have pointed out that the judiciary also contributes to defacto ‘law making’ through
precedents. On the capability of jurists, several issues need attention, but one possible
solution is the enhancement of their awareness and knowledge of global and regional
environmental issues viewed from a wider context of sustainable development.

THE ROAD SO FAR

After the 1972 UN Conference on Environment and Human Development at Stockholm,

Indian government amended the Indian Constitution and adopted Articles 48A, Article
51A(g), and Article 253. On the basis these articles, the Indian Parliament enacted the Wild
Life Protection Act, 1972, Water Act, 1974, Prevention Control of Pollution Act, 1981 (Air
Act), and the Environmental Protection Act of 1986. What is to be seen is how did the
judiciary tackle this situation before the legislative changes and how did the enactments help
the judiciary in further development of environmental law in India.

Before Stockholm Conference

Before 1972, the concept of environmental pollution and environmental protection had not
found the recognition it should by the Indian Judiciary. No remarkable contribution was made

6
in the field of environment protection by the judiciary before the Stockholm conference. 5 The
focus during this period (after independence) was more on economic development rather than
environment protection. Natural resources were exploited for development of industries. No
adequate law existed to define the scope of environmental pollution.6

After Stockholm Conference

The Stockholm Conference 1972 led the government of the day and the governments to come
to enact the following laws in the field on environment law:

1. The Wildlife Protection Act, 1972,

2. The Water (Prevention and Control of Pollution) Act, 1974,
3. The Forest (Conservation) Act, 1980
4. The Air (Prevention and Control of Pollution) Act, 1981
5. Environmental (Protection) Act, 1986,
6. Protection of Plant Variety and Farmers Right Act, 2001,
7. Biological Diversity Act, 2002,
8. Wild Life (Protection) Amendment Act, 2002
9. National Green Tribunal Act, 2010 (NGT)

Alongwith various statutes that have been brought into force for environmental protection,
judiciary has played an active role in implementing and laying down principles for the
protection of environment. For instance, in Subhash Kumar v State of Bihar7, the court
declared that the right to life under Art 21 includes the right to clean water and air. In the
same case, the rule of locus standi was enlarged so that the court could take cognizance of
environmental degradation and regulate the prevention of the same in an effective manner.

One of the earliest cases which came to the Supreme Court of India was Municipal Council,
Ratlam, v Vardhichand8. Ratlam is a city in the State of Madhya Pradesh in India. Some of
the residents of the municipality filed a complaint before the Sub-Divisional Magistrate
alleging that the municipality is not constructing proper drains and there is stench and stink

5
Khalid Shamim, ‘Role of Indian Judiciary in Protection of Environmental Pollution’, Indian J. Sci. Res 6(2),
2015, ISSN : 2250-0138 (Online)
6
Offences affecting public health, IPC Sections: 268-278, as the punishments has no deterrent effect on the
polluters of the environmental. On the other hand civil law dealing with nuisance, trespass, negligence and strict
liability as tort the remedies was not adequate.
7
AIR 1991 SC 420
8
AIR 1980 SC 1622

7
caused by the excretion by nearby slum-dwellers and that there was nuisance to the
petitioners. The Sub-Divisional Magistrate directed the municipality to prepare a plan with
six months to remove the nuisance. The order passed by the SDM was approved by the High
Court. The Municipality came in appeal before the Supreme Court of India and contended
that it did not have sufficient funds to carry out the work directed by the SDM. The Supreme
Court of India gave directions to the Municipality to comply with the directions and said that
paucity of funds shall not be a defence to carry out the basic duties by the local authorities. It
interpreted Article 21 which guarantees the fundamental right to life and personal liberty, to
include the right to a wholesome environment and held that a litigant may assert his or her
right to a healthy environment against the State by a writ petition to the Supreme Court or a
High Court.

In Virender Gaur v. State of Haryana9, the Apex Court confirmed that for every citizen, there
exists a constitutional right to healthy environment and further conferred a mandatory duty on
the state to protect and preserve this human right. Another landmark and revolutionary
judgement is Indian Council for Enviro-Legal Action v. Union of India10, a case concerned
serious damage by certain industries producing toxic chemicals to the environment of
Bichchari District in Rajasthan. Directions for the closure of the industry were given and the
decision in the Oleum Gas Leak case11 regarding absolute liability for pollution by hazardous
industries was reaffirmed. Moreover, the polluter pays principle was explicitly applied for the
first time in the Bichchari case.

A foundation for the application of the Precautionary Principle, the Polluter Pays Principle
and Sustainable Development, having been laid down, the three principles were applied
together for the first time by the Supreme Court in Vellore Citizens Welfare Forum v. Union
of India12, a case concerning pollution being caused due to the discharge of untreated
effluents from tanneries in the state of Tamil Nadu. The Court, referring to the precautionary
principle, polluter pays principle and the new concept of onus of proof, supported with the
constitutional provisions of Art.21, 47, 48A and 51A (g) and declared that these doctrines
have become part of the environmental law of the country.

9
(1995) 2 SCC 577
10
(1996) 5 SCC 647
11
MC Mehta v Union of India, AIR 1987 SC 965
12
AIR 1996 SC 2715

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Absolute Liability

In MC Mehta v Union of India13 it was held that one of the principles underlying
environmental law is sustainable development. The court observes that where an industrial
unit is engaged in a hazardous or naturally unsafe activity and harm results to anyone on
account of an accident in the operation, then the industrial unit is strictly and absolutely liable
to compensate all those who are effected by the accident and such liability is not subject to
any of the exceptions which operate vis-a-vis the tortious principle of strict liability that had
been evolved in Rylands v Fletcher. The enterprise cannot defend itself by saying that it had
taken all reasonable care and that the ham occurred without any negligence on its part.

Polluters Pay Principle

The polluter pays' principle came about in the 1970's when the importance of the
environment and its protection was taken in world over. It was subsequently promoted by the
Organization for Economic Cooperation and development (OECD). It was further developed
by the courts in the case of Vellore Citizens Welfare Forum v Union of India. The polluter
pays' principle as interpreted by the Court means that the absolute liability for harm to the
environment extends not only to compensate the victims of pollution but also the cost of
restoring the environmental degradation.

Precautionary Principle

The precautionary principle (which is in concurrence with principle 15 of the Rio Conference
on Environment and Development 199214) was elucidated by the Supreme Court in Vellore
Citizens' Welfare Forum v. Union of India15 and other states that the state government and its
agencies must anticipate, prevent, and attack the causes of environmental degradation. States
should not take up any activity and measure which is not environmentally benign. The
precautionary principle states, if an action or policy has a suspected risk of causing harm to
the public or to the environment, in the absence of scientific consensus that the action or
policy is harmful, the burden of proof that it is not harmful falls on those taking the action.

13
AIR 1986 SC 1086
14
In order to protect the environment, the precautionary approach shall be widely applied by states according to
their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall
not be used as a reason for postponing cost effective measures to prevent environmental degradation.‘
15
AIR 1996 SC 2715

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It seems that lack of sufficient funds allocation to the Ministry of Environment and Forests,
lack of sufficient number of qualified and trained staff such as academicians, legal
professionals, medical experts and technologists in the Ministry and its subordinate offices all
over the country, lack of commitment of the people and awareness about the environment
protection and improvement, complicated procedures for approvals and authorizations of the
Pollution Control Boards, are the main reasons for ineffective implementation of
environmental laws. If proper reforms are made in this area, probably the environmental laws
will be implemented effectively thereby ensuring problem free environment.

Public Trust Doctrine

Indian legal system is essentially based on common law, and includes the public trust
doctrine as part of its jurisprudence. The state is the trustee of all natural resources, which are
by nature meant for public use and enjoyment. Public at large is the beneficiary of seashore,
running waters, airs, forests, and ecologically fragile lands. The state as trustee is under a
legal duty to protect the natural resources. These resources meant for public use cannot be
converted into private ownership.

The Public Trust Doctrine, evolved in M.C. Mehta v. Kamal Nath16, states that certain
common properties such as rivers, forests, seashores and the air were held by Government in
Trusteeship for the free and unimpeded use of the general public. Granting lease to a motel
located at the bank of the River Beas would interfere with the natural flow of the water and
that the State Government had breached the public trust doctrine.17 The public trust doctrine
primarily rests on the principle that certain resources like air, sea waters and forests have such
a great importance to the people as a whole that it would be wholly unjustified to make them
a subject of private ownership.

16
(1977) 1 SCC 388
17
The respondent‘s family had direct links with Span Motel, which owned a resort, Span Resorts. The family
floated another venture, Span Club, encroaching upon a land, including forestland. It is reported that
regularization of this encroachment was made when the first respondent was the Minister of Environment and
Forest in the Central Government. Span Resorts management used bulldozers and earthmovers to control the
course of river Beas, and to keep the high intensity of flow away from the motel. It is feared that this change
caused landslides and floods. Once the diversion of the river is complete, the Span management has plans to go
in for landscaping. In his counter affidavit, the Minister had denied the allegations against his involvement, and
described the allegation as exaggerated and mischievous.

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Balance of Conflicting Interests – Doctrine of Sustainable Development

The progress of a society lies in industrialization and financial stability. But, industrialization
is contrary to the concept of preservation of environment. These are two conflicting interests
and their harmonization is a major challenge before the judicial system of a country. The
judiciary, in different pronouncements, has pointed out that there will be adverse effects on
the country‘s economic and social condition, if industries are ordered to stop production.
Unemployment and poverty may sweep the country and lead it towards degeneration and
destruction. At the same time, polluting industries impend the stability of the environment.

Thus, the pollution limit should be within the sustainable capacity of the environment. There
should be a balanced approach in the fulfillment of the social needs, through industrialization
and preservation of environment, because the polluted environment is the major cause of
health hazards, especially of persons working in the factories or residing in the surrounding
areas. It, may, therefore, be asserted that India has found its appropriate answers in the
concept of sustainable development.

In Vellore Citizens Welfare Forum v. Union of India, the Supreme Court opined, ‘the
traditional concept that development and ecology are opposed to each other, is no longer
acceptable, sustainable development is the answer’. The genesis of the concept of sustainable
development was in the Stockholm Declaration in 1972. Subsequently, the World
Commission on Environment and Development 1987 (known as the Brundtland Report) in its
report, called ‘Our Common Future’, gave a definite shape to this concept. In 1992, at the Rio
Conference it was reaffirmed and contended that the implementation of this concept of
sustainable development is the true mode of achievement of development. The court accepted
the definition of sustainable development given by this commission. It reads as, ‘Sustainable
Development that meets the needs of the present without compromising the ability of the
future generation to meet their own needs’. Sustainable development is a balancing concept
between development and protecting ecology.

Disseminating Environmental Awareness

The Supreme Court played an important role in disseminating environmental awareness. In

M.C. Mehta v UOI18 held that “In order for the human conduct to be in accordance with the
prescription of law it is necessary that there should be appropriate awareness about what the

18
AIR 1992 SC 362

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law requires. This should be possible only when steps are taken in the adequate measures to
make people aware of the indispensable necessity of their conduct being oriented in
accordance with the requirements of law.”

Consequently, 'Environmental Studies' was introduced and made part of the curriculum at
every level of education. Even Bar council of India introduced 'Environmental Law' as a
compulsory paper for legal education at the graduate level.

Supreme Court while dealing with the environmental issues experienced gaps in existing laws
and lack of administrative efforts. So it went to the extent to ask the government to constitute
national and state regulatory authorities or environment courts. It gave directions to local
bodies, especially municipal authorities, to remove garbage and waste and clean towns. In,
Vellore Citizens Welfare Forum v. Union of India the Supreme Court made request to the
Chief Justice of the Madras High Court to constitute a special bench 'A green bench' to deal
with the environment related matters and similarly to the Calcutta, Madhya Pradesh and some
other High Courts.

CONCLUSION

A close analysis of different pronouncement of the Supreme Court reveals that it had tried
very hard to protect the land, water, air, coastal areas, seashores, towns and cities, public
health& safety, forests and wildlife, environment degradation. Not only this, but it has
attained the optimum by declaring pollution free environment as fundamental right under
Article 21 of the Constitution (Ratlam Municipality v Vardhichand19 ).

Indian Courts did not hesitate to entertain PIL to secure environmental justice in India.
Through PIL the Court has addressed each and every environmental problem ranging from
the leakage of hazardous gases like chlorine from the Shriram Fertilizer Industries, waste
material from alcohol plant resulting in spreading of obnoxious smells apart from mosquito
breeding, highly toxic discharge from tanneries into river Ganga , safety and insurance for
employees at the cost of employer , issue of harmful drugs ban, welfare of the children
suffering with congenital defects as consequence of leakage of MIC gas from the Union
Carbide Plant at Bhopal, awareness about the environment protection , discharge of untreated
effluents making the land unfit for cultivation, protecting the Taj Mahal noise pollution in

19
AIR 1980 SC 1622.

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residential areas , protection of environment & the construction of Narmada dam , etc. and by
doing so the judiciary has made the environmental protection as its constitutional obligation.

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BIBLIOGRAPHY

The following resources have been referred to for the completion of this project:

1. Singh Gurdip. “Environmental Law.” Eastern Book Company 2nd edition (2016).
2. P. M. Prasad. "Environment Protection: Role of Regulatory System in India."
Economic and Political Weekly 41, no. 13 (2006): 1278-288.
http://www.jstor.org/stable/4418031.
3. Md Al Amin, Zakir aby mohd syed, ‘Application of Judicial Activism in Protecting
the Environment: An Analysis’, Volume 21, Issue 1, Ver. 5 (Jan. 2016) PP 35-48,
IOSR Journal Of Humanities And Social Science
4. Khalid Shamim, ‘Role of Indian Judiciary in Protection of Environmental Pollution’,
Indian J. Sci. Res 6(2), 2015, ISSN : 2250-0138 (Online)
5. http://shodhganga.inflibnet.ac.in/bitstream/10603/76671/13/13_chapter%206.pdf
6. https://www.lawctopus.com/academike/role-indian-judiciary-protection-environment-
india/
7. http://www.legaldesire.com/role-of-judiciary-in-environmental-protection/
8. http://www.yourarticlelibrary.com/essay/the-role-played-by-indian-judiciary-in-
environmental-protection/38440/
9. http://himanshuaroras.blogspot.in/2013/07/role-of-judiciary-in-protection-of.html

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