1 Merged

TC- C042
Compendium
(Petitioner)
MANU/SC/0209/2002
Equivalent Citation: AIR2002SC 1533, [2002(93)FLR1134], JT2002(3)SC 219, 2002LabIC 1457, 2002(3)SC ALE203, (2002)4SC C 34,
2002(2)SC T547(SC ), 2002(2)SLJ497(SC ), 2002(2)SLJ497(SC ), 2002(3)SLR18(SC ), (2002)2UPLBEC 1567
IN THE SUPREME COURT OF INDIA

Appeal (civil) 7777 of 1997
Decided On: 20.03.2002
Appellants:Ashutosh Gupta
Vs.
Respondent:State of Rajasthan and Ors.
Hon'ble Judges/Coram:
G.B. Pattanaik, S.N. Phukan and Brijesh Kumar, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Shushil Kumar Jain and A.P. Dhamija, Advs
For Respondents/Defendant: S.K. Bhattacharya (NP), Sandhya Goswami and M.P.S.
Tomar, Advs.
Case Note:
Civil - Validity of rule - Rule 25 of Emergency Recruitment Rules, 1976 -
Petitions were filed by direct recruits against validity of Rule 25 - Single
Judge as well as Division Bench had upheld validity of Rule 25 - Hence, this
Appeal - Whether, recruitment under Emergency Recruitment Rules of 1976
by having a notional year of allotment was discriminatory - Held, necessary
materials had not been placed to show how there had been an unequal
treatment - Appellants had utterly failed to establish any materials from
which grievances about discrimination alleged could be made - Provision of
Section 25 had been specifically designed to meet all situations under which
people from different walks of life could be recruited to Rajasthan
Administrative Service under Emergency Recruitment Rules - They were
neither directed recruits under Recruitment Rules of 1954, nor were promoted
- For purpose of their seniority in cadre in Emergency Recruitment Rules, a
formula had been adopted - Formula could not be held to be discriminatory in
nature - Hardly a few people of those emergency recruits were on verge of
superannuation - There was no justification to interference with impugned
Judgment of High Court - Appeal dismissed.
Ratio Decidendi:
"If a person complains of unequal treatment burden lies on him to place
before Court sufficient materials from which it can be inferred that there is
unequal treatment."
JUDGMENT
G.B. Pattanaik, J.
1. The appellant is a direct recruit to the Rajasthan Administrative Service, having been
selected through the competitive examination held by the Rajasthan Public Service
Commission. The recruitment of the appellant had been made on 5.6.1975 under the
08-10-2020 (Page 1 of 7) www.manupatra.com Central University of South Bihar

or appointment to any office in the State does not prevent the State from making any
provision for the reservation of appointments to posts in favour of any backward class
of citizens which in the opinion of the State is not adequately represented in the
services of the State. Article 335 stipulates that the claims of the members of Scheduled
Castes and Scheduled Tribes shall be taken into consideration , consistent with the
maintenance of efficiency of administration, in the making of appointment to services
and posts in connection with the affairs of the union or of State. It is, thus, apparent
that even in the matter of reservation in favour of Scheduled Castes and Scheduled
Tribes the founding fathers of the Constitution did make a provision relating to the
maintenance of efficiency of administration. In this view of the matter, if any statutory
provision provides for a recruitment of a candidate without bearing in mind the
maintenance of efficiency of administration such a provision cannot be sustained being
against the constitutional mandate. But we are unable to accede to the contention of Mr.
Jain that those persons who got recruited to the Rajasthan Administrative Service under
the Emergency Recruitment Rules are either in-efficient or their suitability has been
adjudged on an inferior standard. It may be reiterated that those persons also had
undertaken a written test on specified subjects as indicated in the Rules and after
qualifying in the written test they were also subjected to interview conducted by the
Public Service Commission, in the same manner, as those who had been recruited to
Rajasthan Administrative Service under the Recruitment Rules of 1954 though there may
have been a variance on the subjects of which they had taken the test. But that by itself
would not be sufficient to hold that the candidates recruited under the Emergency
Recruitment Rules are less efficient or their suitability had been adjudged at a lesser
standard. We would, therefore, reject the submissions made by Mr. Jain on the ground
of discrimination, on the score.
5 . Article 14 of the Constitution secures equal protection to government servants and
Article 16 is a particular application of general guarantee provided in Article 14. The
doctrine of equality before law is a necessary corollary to concept of rule of law
accepted by the Constitution. It is well settled principle that if a person complains of
unequal treatment, the burden squarely lies on that person to place before the court
sufficient materials from which it can be inferred that there is unequal treatment.
Where, however, the necessary materials have not been placed to show how there has
been an unequal treatment, the plea of provisions being violative of Article 14 cannot be
entertained. We record this conclusion of ours, as in course of hearing of this matter.
Mr. Jain, learned counsel appearing for the appellant, had often repeated that the
provision of the Emergency Recruitment Rules has permitted even a beetle shop owner
with the minimum income as indicated therein to appear and compete at the test and on
being selected, the period for which he had been earning the aforesaid amount could be
taken into account for the purpose of seniority in the cadre even though there has been
no nexus between that period and the service to which he has been recruited. Apart
from making such submission on a hypothetical basis, no material has been produced to
indicate if anyone of the persons recruited under the Emergency Recruitment Rules has
reaped any undue advantage in respect of his past experience by adoption of the
formula in the Emergency Recruitment Rules for the purpose of allotting year of
allotment as 1976 -- (N 1 + N 2). In the absence of an iota of materials on this aspect,
we are not required to examine the correctness of the said submission of Mr. Jain, on
an. assumption that the provisions of the Recruitment Rules might have enabled the
professionals on being recruited to count their past experience for reckoning their
seniority in the cadre of Administrative Service even though the said experience might
not have any co-relationship with the Administrative Service. Even otherwise, the entire
experience of such recruits could not have been totally wiped off and, therefore, the
rule-making authority while making the rules for recruitment on emergency basis did

MANU/SC/0033/1952
Equivalent Citation: AIR1952SC 75, 1952C riLJ510, [1952]1SC R284

Cases Nos. 297 and 298 of 1951
Appellants:The State of West Bengal
Vs.
Respondent:Anwar Ali Sarkar
M. Patanjali Sastri, C.J., Saiyid Fazl Ali, M.C. Mahajan, B.K. Mukherjea, Sudhi Ranjan
Das, N. Chandrasekhara Aiyar and Vivian Bose, JJ.
Case Note:
West Bengal Special Courts Act 1950, ss., 3, 5-Constitution of India, 1950 Art.
14-Act constituting special courts and empowering State Government to refer
to such courts "cases" or "offences" or "classes of cases" or "classes of
offences -Constitutional validity-Fundamental right to equality before the law
and laws' protection-Construction of Act-Reference to preamble-Act does not
classify cases or laying down standard for classification-How far material is
Intention of legislature-Notification's validity under Act-Equality test before
law-Essentials of reasonable classification-Whether necessity for speedier
trial reasonable ground for discrimination.
JUDGMENT
M. Patanjali Sastri, C.J.
1. This is an appeal by the State of West Bengal from a judgment of a Full Bench of the
High Court of Judicature at Calcutta quashing the conviction of the respondent by the
Special Court established under section 3 of the West Bengal Special Courts Ordinance,
1949, (Ordinance No. 3 of 1949) which was replaced in March, 1950, by the West
Bengal Special Courts Act, 1950, (West Bengal Act X of 1950) (hereinafter referred to as
"the Act").
2. The respondent and 49 other persons were charged with various offences alleged to
have been committed by them in the course of their raid as an armed gang on a certain
factory known as the Jessop Factory at Dum Dum, and they were convicted and
sentenced to varying terms of imprisonment by the Special Court to which the case was
sent for trial by the Governor of West Bengal by a notification dated 26th January,
1950, in exercise of the powers conferred by section 5 (1) of the Act. Thereupon the
respondent applied to the High Court under article 226 of the Constitution for the issue
of a writ of certiorari quashing the conviction and sentence on the ground that the
Special Court had no jurisdiction to try the case inasmuch as section 5 (1), under which
it was sent to that Court for trial, was unconstitutional and void under article 13(2) as it
denied to the respondent the equal protection of the laws enjoined by article 14. The
High Court by a Full Bench consisting of the Chief Justice and four other Judges
quashed the conviction and directed the trial of the respondent and the other accused
persons according to law. Hence the appeal.

special court may not be subject to judicial review and may, in that sense, be absolute,
but that is very different from saying that it was intended to be arbitrary. Its exercise
must involve bona fide consideration of special features or circumstances which call for
a comparatively prompt disposal of the case or cases proposed to be referred. In other
words, section 5 (1) must, in my opinion, be read as empowering the State Government
to direct a special court to try such offences or classes of offences or cases or classes of
cases as, in its judgment, require speedier trial.
8 . The question next arise as to whether the provision, thus understood, violates the
prohibition under article 14 of the Constitution. The first part of the article, which
appears to have been adopted from the Irish Constitution, is a declaration of equality of
the civil rights of all persons within the territories of India and thus enshrines what
American Judges regard as the "basic principle of republicanism" [cf. Ward v. Flood 17
Am. Rep. 405. The second part which is a corollary of the firsts and is based on the last
clause of the first section of the Fourteenth Amendment of the American Constitution,
enjoins that equal protection shall be secured to all such person in the enjoyment of
their rights and liberties without discrimination or favoritism, or as an American Judge
put it "it is a pledge of the protection of equal laws" [Yick Wo v. Hopkins 118 U.S. 356,
369], that is, laws that operate alike on all persons under like circumstances. And as the
prohibition under the article is directed against the State, which is defined in article 12
as including not only the legislatures but also the Governments in the country, article
14 secures all person within the territories of India against arbitrary laws as well as
arbitrary application of laws. This is further made clear by defining "law" in article 13
(which renders void any law which takes away or abridges the rights conferred by Part
III) as including, among other things, any "order" or "notification", so that even
executive orders or notifications must not infringe article 14. This trilogy of articles thus
ensures non-discrimination in State action both in the legislative and the administrative
spheres in the democratic republic of India. This, however, cannot mean that all law
must be general in character and universal in application. As pointed out in Chiranjit
Lal's case MANU/SC/0009/1950 : [1950] S.C.R. 869, and in numerous American
decisions dealing with the equal protection clause of the 14th Amendment, the State in
the exercise of its governmental power must of necessity make laws operating
differently on different groups or classes of persons within its territory to attain
particular ends in giving effect to its policies, and it must posses for that purpose large
powers of distinguishing and classifying person or things to be subjected to such laws.
But classification necessarily implies discrimination between persons classified and
those who are not members of that class. "It is the essence of a classification" said Mr.
Justice Brewer in Atchison, Topeka & Santa Fe R. Co. v. Matthews 174 U.S. 96, 106,
"that upon the class are case duties and burdens different from those resting upon the
general public. Indeed the very idea of classification is that of inequality, so that it goes
without saying that the mere fact of inequality in no manner determines this matter of
constitutionality". Commenting on this observation in hi dissenting opinion in Connolly
v. Union Sewer Pipe Co. 184 U.S. 540, 566, 567, 568, (which later prevailed in Tigner
v. Texas 310 U.S. 141, Mr. Justice McKenna posed a problem and proceeded to answer
it. "It seems like a contradiction to say that a law having equality of operating may yet
give equality of protection. Viewed rightly, however, the contradiction disappears.....
Government is not a simple thing. It encounters and must deal with the problems which
come from persons in an infinite variety of relations. Classification is the recognition of
those relations, and, in making it, a legislature must be allowed a wide latitude of
discretion and judgment.... Classification based on those relations need not be
constituted by an exact or scientific exclusion or inclusion of person or things.
Therefore it has been repeatedly declared that classification is justified if it is not
palpably arbitrary.

MANU/SC/0406/1984
Equivalent Citation: AIR1986SC 515, (1985)1C ompLJ115(SC ), (1985)1C ompLJ115(SC ), [1986]159ITR856(SC ), (1985)1SC C 641

Writ Petns. Nos. 2656-60, 2935 to 2952, 3402, 3467, 3595, 3600-03, 3608, 3632,
3653, 3661, 3821, 3890-93, 4590-93, 4613-15, 5222, 5576, 5600-02, 5726-27, 7410,
8459-62, 8825. 8944 of 1981, 1325 of 1982, 470-72 of 1984, T.C. Nos. 23 of 1983 and
23 of 1984 and W.P. Nos. 3114-17, 3392-93, 3853 and 6446-47 of 1981
Appellants: Indian Express Newspapers (Bombay) Private Ltd. and Ors.
Vs.
Respondent: Union of India (UOI) and Ors.
O. Chinnappa Reddy, A.P. Sen and E.S. Venkataramiah, JJ.
JUDGMENT
E.S. Venkataramiah, J.
1. The majority of Petitioners in these petitions filed under Article 32 of the Constitution
are certain companies, their shareholders and their employees engaged in the business
of editing, printing and publishing newspapers, periodicals, magazines etc. Some of
them are trust or other kinds of establishments carrying on the same kind of business.
They consume in the course of their activity large quantities of newsprint and it is
stated that 60% of the expenditure involved in the production of a newspaper is utilized
for buying newsprint, a substantial part of which is imported from abroad. They
challenge in these petitions the validity of the imposition of import duty on newsprint
imported from abroad under Section 12 of the Customs Act, 1962 (Act 52 of 1962) read
with Section 2 and Heading No. 48.01/21 Subheading No. (2) in the First Schedule to
the Customs Tariff Act, 1975 (Act 51 of 1975) and the levy of auxiliary duty under the
Finance Act, 1981 on newsprint as modified by notifications issued under Section 25 of
the Customs Act, 1962 with effect from March 1, 1981.
2. The first set of writ petitions challenging the above levy was filed in May, 1981. At
that time under the Customs Act, 1962 read with the Customs Tariff Act, 1975 customs
duty of 40% ad valorem was payable on newsprint. Under the Finance Act, 1981 an
auxiliary duty of 30% ad valorem was payable in addition to the customs duty. But by
notifications issued under Section 25 of the Customs Act, 1962 the customs duty had
been reduced to 10% ad valorem and auxiliary duty had been reduced to 5% ad
valorem in the case of newsprint used for printing newspapers, books and periodicals.
3 . During the pendency of these petitions while the Customs Tariff Act, 1975 was
amended levying 40% ad valorem plus Rs. 1,000/- per MT as customs duty on
newsprint, the auxiliary duty payable on all goods subject to customs duty was
increased to 50% ad valorem. But by reason of notifications issued under Section 25 of
the Customs Act, 1962 duty at a flat rate of Rs. 550/- per MT and auxiliary duty of Rs.
275/- per MT are now being levied on newsprint i.e. in all Rs. 825/- per MT is now
being levied.
4. The Petitioners inter alia contend that the imposition of the import duty has the direct

7 3 . A piece of subordinate legislation does not carry the same degree of immunity
which is enjoyed by a statute passed by a competent legislature. Subordinate legislation
may be questioned on any of the grounds on which plenary legislation is questioned. In
addition it may also be questioned on the ground that it does not conform to the statute
under which it is made. It may further be questioned on the ground that it is contrary to
some other statute. That is because subordinate legislation must yield to plenary
legislation. It may also be questioned on the ground that it is unreasonable,
unreasonable not in the sense of not being reasonable, but in the sense that it is
manifestly arbitrary. In England, the Judges would say "Parliament never intended
authority to make such rules. They are unreasonable and ultra vires". The present
position of law bearing on the above point is stated by Diplock L.J. in Mixnam
Properties Ltd. v. Chertsey U. D C, (1964) 1 QB 214 thus:
The various grounds upon which subordinate legislation has sometimes been
said to be void can. I think, today be properly regarded as being particular
applications of the general rule that subordinate legislation, to be valid, must
be shown to be within the powers conferred by the statute. Thus the kind of
unreasonableness which invalidates a bye-law is not the antonym of
"reasonableness" in the sense of which that expression is used in the common
law, but such manifest arbitrariness, injustice or partiality that a court would
say: 'Parliament never intended to give authority to make such rules; they are
unreasonable and ultra vires.'
If the courts can declare subordinate legislation to be invalid for 'uncertainty,'
as distinct from unenforceable his must be because Parliament is to be
presumed not to have intended to authorize the subordinate legislative
authority to make changes in the existing law which are uncertain...
74. Prof. Alan Wharam in his Article entitled 'Judicial Control of Delegated Legislation,:
The Test of Reasonableness' in 36 Modern Law Review 611 at pages 622-23 has
summarised the present position in England as follows:
(i) It is possible that the courts might invalidate a statutory instrument on the
grounds of unreasonableness or uncertainty, vagueness or arbitrariness: but the
writer's view is that for all practical purposes such instruments must be read as
forming part of the parents statute subject only to the ultra vires test.
(ii) The courts are prepared to invalidate bye-laws, or any other form of
legislation, emanating from an elected, representative authority, on the grounds
of unreasonableness, uncertainty or repugnance to the ordinary law :but they
are reluctant to do so and will exercise their power only in clear cases.
(iii) The courts may be readier to invalidate bye-laws passed by commercial
undertakings under statutory power, although cases reported during the present
century suggest that the distinction between elected authorities and commercial
undertakings, as explained in Kruse v. Johnson, might not now be applied so
stringently.
(iv) As far as subordinate legislation of no statutory origin is concerned, this is
virtually obsolete, but it is clear from In re French Protestant Hospital (1951)
Ch 567 that it would be subject to strict control.
(See also H.W. R. Wade: Administrative Law (5th Edn.) pp. 747-748).

MANU/SC/0759/2001
Equivalent Citation: AIR2002SC 322, 2002(1)ALD66(SC ), 2002(1)ARBLR231(SC ), JT2001(Suppl2)SC 1, 2001(8)SC ALE417, (2002)2SC C 188

Appeal (civil) 4998 of 2000
Appellants: Sharma Transport Rep. by D.P. Sharma
Vs.
Respondent: Government of Andhra Pradesh and Ors.
B.N. Kirpal, K.G. Balakrishnan and Dr. Arijit Pasayat, JJ.
Counsels:
For Appearing parties: Harish Salve, Solicitor General, K.N. Bhat, G.L. Sanghi and K.
Amareswari, Sr. Advs., B.K. Choudhary, E.C. Vidya Sagar, A.T.M. Sampath, Irshad
Ahmad, R.S. Hegde, Somiran Sharma, Prashant Jain, P.P. Singh, S. Udaya Kumar Sagar,
S.R. Setia, Jaideep Gupta, Niranjana Singh, Anil Katiyar, T.V. Ratnam, K. Subba Rao and
K. Ram Kumar, Advs. and Guntur Prabhakar, Adv. (NP
Case Note:
Motor Vehicles - constitutional validity of order - Articles 73, 246, 254, 256,
301 and 304 of Constitution of India - constitutionality and legality of
Government Order challenged - Order issued by joint secretary directive in
nature - it cannot also be treated as subordinate legislation deriving its force
or power from Act or any other law made by Union - if Court is satisfied that if
in larger public interest it would be inequitable to hold Government or public
authority to promise or representation made by it, then promissory estoppel
cannot be pressed into action - as president's sanction has been obtained,
case would be relatable to Article 304 rather than Article 301 - for
applicability of clause (b), mere assent is not sufficient, but, tax has to be
levied in public interest.
JUDGMENT
Arijit Pasayat, J.
1 . These appeals relate to a common judgment of the Andhra Pradesh High Court by
which challenge to Notification issued by the State Government in G.O. Ms. No. 83,
Transport, Roads and Buildings (Tr.II) Department dated 5.6.2000 was rejected. By the
said Notification issued under Clause (b) of Section 9(1) of the Andhra Pradesh Motor
Vehicles Taxation Act, 1963 (in short 'the Taxation Act') an earlier order dated 1.7.1995
issued by the Transport, Roads and Buildings (Tr.II) Department, was cancelled. The
appellants who are operators of tourist buses originating from Karnataka State (their
home State) and plying in adjacent States including the State of Andhra Pradesh filed
the writ petitions assailing the legality and constitutional validity of the said Notification
dated 5.6.2000.
2 . Case of the appellants as canvassed before the High Court and reiterated in this
Court is essentially as follows:

obligation to act in a manner, i.e., fair and just or that it is not bound by the
considerations of honesty and good faith. In fact, the Government should be held a high
standard of rectangular rectitude while dealing with citizens. Since the doctrine of
promissory estoppel is an equitable doctrine, it must yield where the equity so requires.
If it can be shown by the Government that having regard to the facts as they have
transpired, it would be inequitable to hold the Government or public authority to the
promise or representation made by it, the Court would not raise an equity in favour of
the promise and enforce the promise against the Government. The doctrine of
promissory estoppel would be displaced in such a case, because on the facts, equity
would not require that the Government should be held bound by the promise made by
it. But the Govt. must be able to show that in view of the fact as have been transpired,
public interest would not be prejudiced. Where the Govt. is required to carry out the
promise the Court would have to balance, the public interest in the Government's
carrying out the promise made to the citizens, which helps citizens to act upon and alter
his position and the public interest likely to suffer if the promises were required to be
carried out by the Government and determine which way the equity lies. It would not be
enough just to say that the public interest requires that the Govt. would not be
compelled to carry out the promise or that the public interest would suffer if the Govt.
were required to honour it. In order to resist its liability the Govt. would disclose to the
Court the various events insisting its claim to be except from liability and it would be
for the Court to decide whether those events are such as to render it equitable and to
enforce the liability against the Govt.
27. It is equally settled law that the promissory estoppel cannot be used compelling the
Government or a public authority to carry out a representation or promise which is
prohibited by law or which was devoid of the authority or power of the officer of the
Government or the public authority to make. Doctrine of promissory estoppel being an
equitable doctrine, it must yield place to the equity, if larger public interest so requires,
and if it can be shown by the Government or public authority for having regard to the
facts as they have transpired that it would be inequitable to hold the Government or
public authority to the promise or representation made by it. The Court on satisfaction
would not, in those circumstances raise the equity in favour of the persons to whom a
promise or representation is made and enforce the promise or representation against
Government or the public authority. These aspects were highlighted by this Court in
Vasantkumar Radhakrishan Vora v. The Board of Trustees of the Port of Bombay
MANU/SC/0005/1991 : [1990]3SCR825 ,Sales-tax Officer and Anr. v. Shree Durga Oil
Mills and Anr. (supra) and Dr. Ashok Kumar Maheshwari v. State of U.P. and Anr.
MANU/SC/0094/1998 : [1998]1SCR147 . Above being the position, the plea relating to
promissory estoppel has no substance.
2 8 . It has been pleaded as noted above that withdrawal is without any rational or
relevant consideration. In this context, it has to be noted that the operators in the State
of Andhra Pradesh are required to pay the same tax as those registered in other states.
Therefore, there cannot be any question of irrationality. The tests of arbitrary action
applicable to executive action do not necessarily apply to delegated legislation. In order
to strike down a delegated legislation as arbitrary it has to be established that there is
manifest arbitrariness. In order to be described as arbitrary, it must be shown that it
was not reasonable and manifestly arbitrary. The expression "arbitrarily" means: in an
unreasonable manner, as fixed or done capriciously or at pleasure, without adequate
determining principle, not founded in the nature of things, non-rational, not done or
acting according to reason or judgment, depending on the will alone. In the present
cases all persons who are similarly situated are similarly affected by the change. That
being so, there is no question of any discrimination. That plea also fails.

MANU/SC/0048/1979
Equivalent Citation: AIR1979SC 1628, (1979)2C ompLJ112(SC ), (1979)IILLJ217SC , (1979)3SC C 489, [1979]3SC R1014

Civil Appeal No. 895 of 1978
Appellants:Ramana Dayaram Shetty
Vs.
Respondent:International Airport Authority of India and Ors.
P.N. Bhagwati, R.S. Pathak and V.D. Tulzapurkar, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Ashok H. Desai, Y.S. Chitale, Jai Chinai, P.G. Gokhale
and B.R. Agarwala, Advs
For Respondents/Defendant: G.B. Pai, O.C. Mathur and D.N. Mishra, Advs.
Case Note:
Commercial - Tender procedure - 4th Respondent was awarded contract by 1st
Respondent state to run a IInd class Restaurant and two Snack bars -
However, 1st Respondent set aside requirement of 5 years experience and
proceeded with 4th Respondent - Appeal of Appellant was rejected by High
Court - Hence, this Appeal - Whether, State was entitled to deal with its
property in any manner it liked or award a contract to any person it chose,
without any constitutional limitations upon it - Held, when 1st Respondent
entertained tender of 4th Respondents despite their inexperience, then,
others were denied equality of opportunity - Thus, acceptance of tender of 4th
Respondents was, in circumstances invalid as being violative of equality
clause of Constitution as also of rule of administrative law inhibiting arbitrary
action - In view of peculiar facts and circumstances of case, it would not have
been appropriate to upset High Court's decision and void contract - Moreover,
Petition had been filed by Appellant after more than five months after tender
of 4th Respondents had been accepted - During this period, 4th Respondent
had incurred considerable expenditure in making arrangements for putting up
restaurant and snack bars - Hence, It would have been most inequitous to set
aside contracts of 4th Respondents at instance of Appellant - Appeal
dismissed.
Ratio Decidendi:
"Cause of action should be borne immediately after alleged grievance has
taken place."
JUDGMENT
1. This appeal by special leave raises interesting questions of law in the area of public
law. What are the constitutional obligations on the State when it takes action in exercise
of its statutory or executive power? Is the State entitled to deal with its property in any
manner it likes or award a contract to any person it chooses without any constitutional
limitations upon it? What are the parameters of its statutory or executive power in the

is now well settled as a result of the decisions of this Court in E. P. Rayappa v. State of
Tamil Nadu MANU/SC/0380/1973 : (1974)ILL J172SC and Maneka Gandhi v. Union of
India MANU/SC/0133/1978 : [1978]2SCR621 that Article 14 strikes at arbitrariness in
State action and ensures fairness and equality of treatment. It requires that State action
must not be arbitrary but must be based on some rational and relevant principle which
is non-discriminatory : it must not be guided by any extraneous or irrelevant
considerations, because that would be denial of equality.
The principle of reasonableness and rationality which is legally as well as
philosophically an essential element of equality or non-arbitrariness is protected by
Article 14 and it must characterise every State action, whether it be under authority of
law or in exercise of executive power without making of law. The State cannot,
therefore act arbitrarily in entering into relationship, contractual or otherwise with a
third party, but its action must conform to some standard or norm which is rational and
non-discriminatory.
This principle was recognised and applied by a Bench of this Court presided over by
Ray, C.J., in Erusian Equipment and Chemicak v. State of West Bengal (supra) where
the learned Chief Justice pointed out that "the State can carry on executive function by
making a law or without making a law. The exercise of such powers and functions in
trade, by the State is subject to Part III of the Constitution. Article 14 speaks of equality
before the law and equal protection of the laws. Equality of opportunity should apply to
matters of public contracts. The State has the right to trade. The State has there the
duty to observe equality. An ordinary individual can choose not to deal with any person.
The Government cannot choose to exclude persons by discrimination. The order of
black-listing has the effect of depriving a person of equality of opportunity in the matter
of public contract. A person who is on the approved list is unable to enter into
advantageous relations with the Government because of the order of blacklisting.... A
citizen has a right to claim equal treatment to enter into a contract which may be
proper, necessary and essential to his lawful calling.... It is true that neither the
petitioner nor the respondent has any right to enter into a contract but they are entitled
to equal treatment with others who offer tender or quotations for the purchase of the
goods." It must, therefore follow as a necessary corollary from the principle of equality
enshrined in Article 14 that though the State is entitled to refuse to enter into
relationship with any one, yet if it does so, it cannot arbitrarily choose any person it
likes for entering into "such relationship and discriminate between persons similarly
circumstanced, but it must act in conformity with some standard or principle which
meets the test of reasonableness and non-discrimination and any departure from such
standard or principle would be invalid unless it can be supported or justified on some
rational and non-discriminatory ground.
22. It is interesting to find that this rule was recognised and applied by a Constitution
Bench of this Court in a case of sale of kendu leaves by the Government of Orissa in
Rashbihari Panda v. State of Orissa. MANU/SC/0054/1969 : [1969]3SCR374 . The trade
of kendu leaves in the State of Orissa was regulated by the Orissa Kendu Leaves
(Control of Trade) Act, 1961 and this Act created a monopoly in favour of the State so
far as purchase of kendu leaves from growers and pluckers was concerned. Section 10
of the Act authorised the Government to sell or otherwise dispose of kendu leaves
purchased in, such manner as the Government might direct. The Government first
evolved a scheme under which it offered to renew the licences of those traders who in
its view had worked satisfactorily in the previous year and had regularly paid the
amount due from them. The scheme was challenged and realising that it might be struck
down, the Government withdrew the scheme and instead, decided to invite tenders for
advance purchase of kendu leaves but restricted the invitation to those individuals who
had carried out contracts in the previous year without default and to the satisfaction of

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MANU/SC/2117/2007
Equivalent Citation: 2008(3)ALT1(SC ), 2007(2)BLJR1708, [2007(114)FLR236], [2008(2)JC R130(SC )], JT2007(5)SC 628, (2007)IILLJ724SC ,
2007(4)PLJR8, 2007(6)SC ALE45, (2007)4SC C 669, [2007]5SC R430, 2007(3)SC T255(SC ), 2007(4)SLR108(SC ), 2007(3)UC 1568

Civil Appeal No. 2106 of 2007 (Arising out of Special Leave Petition (Civil) No. 5187 of
2005)
Appellants:Management of Coimbatore District Central Co-operative Bank
Vs.
Respondent:Secretary, Coimbatore District Central Co-operative Bank
Employees Association and Ors.
C.K. Thakker and Tarun Chatterjee, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: K.V. Vishwanathan, B. Raghunath, Anup Kumar, Rajeev
Kumar Singh and R. Nedumaran, Advs
For Respondents/Defendant: N.G.R. Prasad and S.R. Setia, Advs.
Case Note:
(1) Industrial Disputes Act, 1947 - Sections 10 and 11A-Employment -
Punishment-Employees of appellant Bank went on strike-Settlement arrived
at between Management and Union-134 employees gave up 'strike call' and
resumed work-53 employees refused to join duty and continued their illegal
strike and acts of misconduct-They also prevented other employees from
joining duty and threatened them of dire consequences-Disciplinary
proceedings initiated against them and they were placed under suspension-
They did not participate in proceedings-In ex parte enquiry, workmen held
guilty of charges-Order of punishment passed-Punishment awarded was (i)
stoppage of increment for 1-4 years with cumulative effect-And (ii) non-
payment of salary for period of suspension-Labour court held that action of
Management could not be described as illegal, unlawful or improper-Demands
of workmen rejected-Single Judge of High Court held that workmen not
entitled to wages for suspension period-However, stoppage of 1 to 4 annual
increments, with cumulative effect was held to be 'harsh'-Order of stoppage
of increments set aside-Management directed to pay arrears with 12%
interest-Division Bench modified order of single Judge-And held that proper
punishment would be stoppage of increment(s) without cumulative effect-
Order of interest set aside-Whether single Judge and Division Bench justified
in interfering with order of punishment and award of Labour Court?-Held,
"no"-Order passed by labour court-Perfectly just, legal and proper and
required 'no interference'.
(2) Employment - Punishment-Doctrine of proportionality-Punishment should
not be disproportionate to misconduct alleged and established-Keeping in
view charges proved, labour court rightly held that punishment imposed on
workmen could not be said to be harsh so as to require interference.

(iii) They prevented other employees who returned for work from joining duty
by administering threat to them; and
(iv) They prevented the employees who came to receive wages on April 17,
1972.
10. At the enquiry, all the charges leveled against the employees were established. In
the light of the said finding, the Management imposed punishment of (i) stoppage of
increment of 1 to 4 years with cumulative effect; and (ii) non-payment of salary during
period of suspension. In our considered opinion, the action could not be said to be
arbitrary, illegal, unreasonable or otherwise objectionable. When the Union challenged
the action and reference was made by the 'appropriate Government' to the Labour
Court, Coimbatore, the Labour Court considered all questions in their proper
perspective. After affording opportunity of hearing to both the parties, the Labour Court
negatived the contention of the Union that the proceedings were not in consonance with
principles of natural justice and the inquiry was, therefore, vitiated. It held that the
inquiry was in accordance with law. It also recorded a finding that the allegations
leveled against the workmen were proved and in view of the charges leveled and proved
against the workmen, the punishment imposed on them could not be said to be
excessive, harsh or disproportionate. It accordingly disposed of the reference against
the workmen. In our considered opinion, the award passed by the Labour Court was
perfectly just, legal and proper and required 'no interference'. The High Court, in
exercise of power of judicial review under Article 226/227 of the Constitution, therefore,
should not have interfered with the well-considered award passed by the Labour Court.
11. The learned Counsel for the Union, however, submitted that under the 'doctrine of
proportionality', it was not only the power, but the duty of the 'Writ Court' to consider
whether the penalty imposed on workmen was in proportion to the misconduct
committed by the workmen. Our attention, in this connection, was invited by both the
sides to several decisions of English Courts as also of this Court.
DOCTRINE OF PROPORTIONALITY
12. So far as the doctrine of proportionality is concerned, there is no gainsaying that
the said doctrine has not only arrived at in our legal system but has come to stay. With
the rapid growth of Administrative Law and the need and necessity to control possible
abuse of discretionary powers by various administrative authorities, certain principles
have been evolved by Courts. If an action taken by any authority is contrary to law,
improper, unreasonable, irrational or otherwise unreasonable, a Court of Law can
interfere with such action by exercising power of judicial review. One of such modes of
exercising power, known to law is the 'doctrine of proportionality'.
13. 'Proportionality' is a principle where the Court is concerned with the process,
method or manner in which the decision-maker has ordered his priorities, reached a
conclusion or arrived at a decision. The very essence of decision-making consists in the
attribution of relative importance to the factors and considerations in the case. The
doctrine of proportionality thus steps in focus true nature of exercise - the elaboration
of a rule of permissible priorities.
de Smith states that 'proportionality' involves 'balancing test' and 'necessity test'.
Whereas the former ('balancing test') permits scrutiny of excessive onerous penalties or
infringement of rights or interests and a manifest imbalance of relevant considerations,
the latter ('necessity test') requires infringement of human rights to the least restrictive
alternative.

MANU/UKPC/0024/1998
Equivalent Citation: [1999]1 AC 69, [1998]UKPC 30, [1998] 3 WLR 675
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

Privy Council Appeal No . 42 of 1997
de Freitas v. The Permanent Secretary of Ministry of Agriculture, Fisheries,
Lands and Housing and Others (Antigua and Barbuda)
Hon'ble Judges:
Lord Browne-Wilkinson Lord Lloyd of Berwick Lord Hoffmann Lord Clyde
JUDGMENT
Lord Clyde
1. The question in this appeal arises out of the participation by a civil servant in certain
demonstrations in September and October 1990 against Government corruption in
Antigua and Barbuda.Â In 1990 the appellant was an Extension Officer in the Ministry
of Agriculture, Fisheries, Lands and Housing of Antigua and Barbuda.Â In that year a
Commission of Inquiry was held in Antigua relating to the transhipment into Antigua of
a consignment of guns.Â In the course of the Inquiry various allegations of
Government corruption were made.Â Some of these allegations were directed at the
Minister of Agriculture, Mr. Hilroy Humphreys.Â The appellant admitted in an affidavit
that on 24th and 25th September 1990, after the Inquiry and while he was on vacation,
he was one of several persons peacefully picketing the Headquarters of the Ministry.
Some of the placards displayed by the appellant were critical of Mr. Humphreys.
2. The Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing,
who is the first respondent, immediately claimed that the appellant was acting in breach
of the restraints imposed on civil servants by section 10(2)(a) of the Civil Service Act
Laws of Antigua and Barbuda c. 87 and threatened to refer the matter to the Public
Service Commission for disciplinary action.Â That body is the second respondent.Â
The appellant replied denying that he was infringing that section and referred to the
Constitution of Antigua and Barbuda, sections 12 and 13 of which protected his rights of
expression and assembly. On 27th September 1990 while he was still on vacation and
on 2nd October after he had returned to work he made further peaceful demonstrations.
After further communications between himself and the first respondent the latter, under
a power which he possessed under the Public Service Commission Regulations 1967,
interdicted the appellant from the exercise of the powers and functions of his office.Â
In November 1990 the appellant issued an Originating Motion seeking redress under
section 18 of the Constitution, which makes provision for the enforcement of the
protective provisions in the Constitution.Â The motion was opposed by the first and
second respondents and by the Attorney-General who is the third respondent.Â The
matter came before Redhead J. and on 26th February 1993 he declared that section
10(2)(a) of the Civil Service Act was unconstitutional.Â He took the view that it had not
been demonstrated that section 10(2) fell within the permissible limits prescribed by the

"The language of (the section) is so inclusive that (the trial judge) declined to provide any definition of its scope
but rather preferred to deal with the activity of each of the plaintiffs individually in measuring the restriction
imposed by the section against the Charter. The number of instances in which the operation of the section would
otherwise have been in breach of ... the Charter is extensive.Â On this basis there is little doubt that in future other
instances will arise which will require a similar reading down of the section.Â In the final analysis, a law that is
invalid in so many of its applications will, as a result of wholesale reading down, bear little resemblance to the law
that Parliament passed and a strong inference arises that it is invalid as a whole ... In my opinion, it is Parliament
that should determine how the section should be redrafted and not the court. Apart from the impracticability of a
determination of the constitutionality of the section on a case-by-case basis, Parliament will have available to it
information and expertise that is not available to the court."
24. It is precisely the same considerations which in the view of their Lordships apply to
the solution proposed by the Court of Appeal and render it inadequate to save the
validity of the provision in question.
25. Even if the subsection, with or without the supplementary provision sought to be
implied by the Court of Appeal satisfied the first of the two requirements already
referred to, namely that was a restraint upon the freedom of civil servants "reasonably
required for the proper performance of their functions", it would still have to satisfy the
second requirement of being "reasonably justifiable in a democratic society".Â Their
Lordships were referred to three cases in which that phrase has been considered.Â In
Government of the Republic of South Africa v. The Sunday Times Newspaper [1995] 1
L.R.C. 168 Joffe J. adopted from Canadian jurisprudence four criteria to be satisfied for
a law to satisfy the provision in the Canadian Charter of Rights and Freedoms that it be
"demonstrably justified in a free and democratic society".Â These were a sufficiently
important objective for the restriction, a rational connection with the objective, the use
of the least drastic means, and no disproportionately severe effect on those to whom
the restriction applies.Â In two cases from Zimbabwe, Nyambirai v. National Social
Security Authority [1996] 1 L.R.C. 64 and Retrofit (Pvt.) Ltd. v. Posts and
Telecommunications Corporation, [1996] 4 L.R.C. 489, a corresponding analysis was
formulated by Gubbay CJ., drawing both on South African and on Canadian
jurisprudence, and amalgamating the third and fourth of the criteria. In the former of
the two cases at page 75 he saw the quality of reasonableness in the expression
"reasonably justifiable in a democratic society" as depending upon the question whether
the provision which is under challenge "arbitrarily or excessively invades the enjoyment
of the guaranteed right according to the standards of a society that has a proper respect
for the rights and freedoms of the individual".Â In determining whether a limitation is
arbitrary or excessive he said that the Court would ask itself:-
"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures
designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right
or freedom are no more than is necessary to accomplish the objective."
26. Their Lordships accept and adopt this threefold analysis of the relevant criteria.

MANU/UKHL/0041/2007
Equivalent Citation: [2007]2 AC 167, [2007]4All ER15, [2007]UKHL 11, [2007] 2 WLR 581
UNITED KINGDOM HOUSE OF LORDS

Huang v. Secretary of State for the Home Department
Hon'ble Judges:
Lord Bingham of Cornhill, Lord Hoffmann, Baroness Hale of Richmond, Lord Carswell
and Lord Brown of Eaton-under-Heywood
Counsels:
Appellant: Monica Carss-Frisk QC Adam Robb (Instructed by Treasury Solicitor)
Respondent : Nicholas Blake QC Raza Husain (Instructed by TRP Solicitors) Second
Appeal: Kashmiri Rabinder Singh QC Duran Seddon (Instructed by Luqmani Thompson &
Partners) Monica Carss-Frisk QC Adam Robb (Instructed by Treasury Solicitor)
JUDGMENT
ORDERED TO REPORT
The Committee (Lord Bingham of Cornhill, Lord Hoffmann, Baroness Hale of
Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood) have met and
considered the causes Huang (FC) (Respondent) v. Secretary of State for the Home
Department (Appellant) and Kashmiri (FC) (Appellant) v. Secretary of State for the Home
Department (Respondent). We have heard counsel on behalf of the appellants and
respondents.
1. The following is the opinion of the Committee.
2. These two appeals have been heard together. They raise a common question on the
decision-making role or function of appellate immigration authorities (adjudicators, the
Immigration Appeal Tribunal, immigration judges) when deciding appeals, on
Convention grounds, against refusal of leave to enter or remain, under section 65 of the
Immigration and Asylum Act 1999 and Part III of Schedule 4 to that Act.
3. Mrs Huang is a Chinese citizen born on 29 March 1942. Her husband (from whom
she is separated), daughter, son-in-law and two grandsons are British citizens living in
this country. Mr Kashmiri is an Iranian citizen born on 4 July 1981. His parents and two
siblings came to this country in 2000 and were in due course granted indefinite leave to
remain as refugees, but Mr Kashmiri's claim to asylum has been refused. It is
unnecessary for purposes of deciding these appeals to explore the underlying facts of
these two cases, and given our conclusion on the outcome of the appeals it is
undesirable to do so.
4. Mrs Huang appears before the House as a respondent in an appeal by the Secretary
of State and Mr Kashmiri as an appellant in an appeal against the Secretary of State, but
it is convenient to refer to them as "the applicants". Neither of the applicants qualifies
for the grant of leave to remain in this country under the Immigration Rules and
administrative directions currently promulgated. Both claim that the refusal of leave to
remain is unlawful because incompatible with their Convention right to respect for their
family life guaranteed by sections 2, 3 and 6 of and article 8 in Schedule 1 to the

for present purposes to attempt to summarise the Convention jurisprudence on article 8,
save to record that the article imposes on member states not only a negative duty to
refrain from unjustified interference with a person's right to respect for his or her family
but also a positive duty to show respect for it. The reported cases are of value in
showing where, in many different factual situations, the Strasbourg court, as the
ultimate guardian of Convention rights, has drawn the line, thus guiding national
authorities in making their own decisions. But the main importance of the case law is in
illuminating the core value which article 8 exists to protect. This is not, perhaps, hard to
recognise. Human beings are social animals. They depend on others. Their family, or
extended family, is the group on which many people most heavily depend, socially,
emotionally and often financially. There comes a point at which, for some, prolonged
and unavoidable separation from this group seriously inhibits their ability to live full
and fulfilling lives. Matters such as the age, health and vulnerability of the applicant,
the closeness and previous history of the family, the applicant's dependence on the
financial and emotional support of the family, the prevailing cultural tradition and
conditions in the country of origin and many other factors may all be relevant. The
Strasbourg court has repeatedly recognised the general right of states to control the
entry and residence of non-nationals, and repeatedly acknowledged that the Convention
confers no right on individuals or families to choose where they prefer to live. In most
cases where the applicants complain of a violation of their article 8 rights, in a case
where the impugned decision is authorised by law for a legitimate object and the
interference (or lack of respect) is of sufficient seriousness to engage the operation of
article 8, the crucial question is likely to be whether the interference (or lack of respect)
complained of is proportionate to the legitimate end sought to be achieved.
Proportionality is a subject of such importance as to require separate treatment.
Proportionality
19. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and
Housing [1999] 1 AC 69, 80, the Privy Council, drawing on South African, Canadian and
Zimbabwean authority, defined the questions generally to be asked in deciding whether
a measure is proportionate:
"whether: (i) the legislative objective is sufficiently important to justify limiting a
fundamental right; (ii) the measures designed to meet the legislative objective are
rationally connected to it; and (iii) the means used to impair the right or freedom
are no more than is necessary to accomplish the objective."
This formulation has been widely cited and applied. But counsel for the applicants
(with the support of Liberty, in a valuable written intervention) suggested that the
formulation was deficient in omitting reference to an overriding requirement which
featured in the judgment of Dickson CJ in R v Oakes [1986] 1 SCR 103, from which this
approach to proportionality derives. This feature is (p 139) the need to balance the
interests of society with those of individuals and groups. This is indeed an aspect which
should never be overlooked or discounted. The House recognised as much in R (Razgar)
v Secretary of State for the Home Department MANU/UKHL/0055/2004 : [2004] UKHL
27, [2004] 2 AC 368, paras 17-20, 26, 27, 60, 77, when, having suggested a series of
questions which an adjudicator would have to ask and answer in deciding a Convention
question, it said that the judgment on proportionality
"must always involve the striking of a fair balance between the rights of the
individual and the interests of the community which is inherent in the whole of the
Convention. The severity and consequences of the interference will call for careful

MANU/SC/0066/1974
Equivalent Citation: AIR1974SC 1232, 1973(21)BLJR171, 1974MPLJ729, (1974)4SC C 788, [1974]3SC R624

Writ Petition No. 1177 of 1973
Appellants:Naraindas Indurkhya
Vs.
Respondent:The State of Madhya Pradesh and Ors.
A.N. Ray, C.J., A. Alagiriswami, H.R. Khanna, K.K. Mathew and P.N. Bhagwati, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Bhasker Sen, K.P. Munshi, Umesh Kumar Khaitan and
S.R. Agarwala, Advs
For Respondents/Defendant: Y.S. Dharmadhikari, Ram Panjwani, I.N. Shroff,
V.N.Ganpule and Urmila Sirur, Advs.
Case Note:
Constitution - text books - Section 4 (1), 4 (2), and 4 (3) of Madhya Pradesh
Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon
Sambandhi Vyavastha) Adhiniyam, 1973 and Articles 32 and 162 of
Constitution of India - power of State Government to select and prescribe text
books under Section 4 (1) challenged - Apex Court observed that power to
select and prescribe text books for obligatory use by students in schools can
be potent and powerful weapon in hands of executive to inculcate its social,
economic or political philosophy and ideology in young impressionable minds -
such young minds have not yet developed capacity to think independently for
themselves and are easily amenable to thoughts, ideas, and influence to
which they are continually exposed - it is therefore necessary that in
selection and prescription of text books all political and other extraneous
influences should be eliminated - objective must be to give to student best
possible text book possessing highest degree of merit and quantity from a
purely objective and academic point of view - there is nothing to prevent
State Government from setting up an independent committee on lines
indicated by Secondary Education Commission for purpose of assisting it in
task of selecting and prescribing text books - this can be done by Government
by making appropriate rules under Section 8 and there is no reason to
suppose that State Government will not do so - power conferred upon State
Government to select and prescribe text books under Section 4 (1) not liable
to be struck down as invalid on ground of contravention of Article 14.
JUDGMENT
P.N. Bhagwati, J.

the petitioners to carry on their business of preparing, printing, publishing and selling
textbooks was infringed by the - notifications issued by the State Government in
furtherance of their policy of nationalisation of text books for students and the
petitioners were, therefore, not entitled to any relief under Article 32 of the
Constitution. Mukherjea, C.J., speaking on behalf of a unanimous Court, pointed out:
The procedure hitherto followed was that the Government used to invite
publishers and anthers to submit their books for examination and approval by
the Education Department and after selection was made by the Government, the
size, contents as well as the prices of the books were fixed and it was left to
the publishers or authors to print and publish them and offer them for sale to
the pupils. So long as this system was in vogue the only right which publishers,
like the petitioners had, was to offer their books for inspection and approval by
the Government. They had no right to insist on any of their books being
accepted as text books. So the utmost that could be said is that there was
merely a chance or prospect of any. or some of their books being approved as
text books by the Government. Such chances are incidental to all trades and
businesses and there is no fundamental right guaranteeing them. A trader might
be lucky in securing a particular market for his goods but if he loses that field
because the particular customers for some reason or other do not choose to buy
goods from him, it is not open to him to say that it was his fundamental right
to have his old customers for ever. On the one hand, therefore, there was
nothing but a chance or prospect which the publishers had of having their
books approved by the Government, on the other hand the Government had the
undisputed right to adopt any method of selection they liked and if they
ultimately decided that after approving the text books they would purchase the
copyright in them from the authors and others provided the latter were willing
to transfer the same to the Government on certain terms, we fail to see what
right of the publishers to carry on their trade or business is affected by it.
Nobody is taking away the publishers' right to print and publish any books they
like and to offer them for sale but if they have no right that their books should
be approved as text books by the Government it is immaterial so far as they are
concerned whether the Government approves of text books submitted by other
persons who are willing to sell their copyrights in the books to them, or choose
to engage authors for the purpose of preparing the text books which they take
up on themselves to print and publish The action of the Government does not
amount to an infraction of the fundamental right guaranteed by Article 19(1)(g)
of the Constitution.
23. These observations are equally applicable where the State Government instead of
prescribing text books in exercise of its executive power does so in exercise of statutory
power such as that conferred under Section 4, Sub-section (1). No fundamental right
guaranteed to the petitioners under Article 19(1)(g) is infringed if the State Government
in exercise of the statutory power conferred under Section 4, Sub-section (1) does not
prescribe text books printed and published by him. The challenges based on Article
19(1)(g) must, therefore, fail.
24. That takes us to the challenge based on Article 14 of the Constitution. Tin's Article
ensures equality before law and strikes at arbitrary and discriminatory State action.
Where State Government exercises any power, statutory or otherwise, it must not
discriminate unfairly between one person and another. Every State action must be
guided by certain norms and standards which are in themselves not objectionable as
being discriminatory in character. If power conferred by statute on any authority of the

MANU/SC/0935/2004
Equivalent Citation: AIR2005SC 186, 2005(1)ALLMR(SC )19, 2005(2)ALT8(SC ), [2005]126C ompC as356(SC ), 2004(5)C TC 376, JT2004(9)SC 379,
2004(4)RC R(C ivil)724, 2004(9)SC ALE215, (2005)1SC C 496

Civil Appeal Nos. 6350-6374 of 1997 with C.A. 7079/2004 (Arising out of SLP (C) No.
11607/2001)
Appellants:Distt. Registrar and Collector, Hyderabad and Ors.
Vs.
Respondent:Canara Bank and Ors.
R.C. Lahoti, C.J. and Ashok Bhan, J.
Counsels:
K. Amareswari, Sr. Adv., T.V. Ratnam, K. Subba Rao, O.S.G. Prasuna, K. Ram Kumar,
Pradeep Dewan, Manmohan Sharma, Pramod B. Agarwala, Praveena Gautam, Anupam
Dhingra, S. Srinivasan, A. Ranganadhan, Buddy A. Ranganadhan, A.V. Rangam, P.P.
Singh, S.N. Bhat, Y. Prabhakar Rao, Y. Raja Gopala Rao, V. Sudeer, M.B. Rama Subba
Raju, Balaji Srinivasan, S. Sunita, Devendra Singh and Ghan Shyam Vasisht, Advs. for
appearing parties
Case Note:
Civil - Indian Stamp Act, 1899 - Section 73 as incorporated by Andhra Pradesh
Act No. 17 of 1986 by amending Central Act - Constitutional Validity of - Right
to privacy - Protection of law from arbitrary interference with person's
privacy, family, home and correspondence - Entitlement to Writ Petitions
challenging amendment of Section 73 on ground that it empowered any
person authorized in writing by collector to have access to documents in
private custody or custody of a public officer without regard to fact whether
documents were sought to be used before any authority competent to receive
evidence - Grievance of petitioners that Section 73 did not lay down any
guidelines for determining person who could be authorized by collector to
exercise powers conferred by Section 73 and that power was capable of being
exercised at all reasonable times and was not preceded by any requirement of
reasons being recorded by collector or person authorized for his belief
necessitating search - Grievance of Writ Petitioners that Section 73 was
unconstitutional as it interfered with personal liberty of citizens as it allowed
intrusion into privacy and property of citizens - Section 783 struck down by
High Court as ultra vires provisions of Indian Stamp Act and Article 14 -
Appeal to Supreme Court - Unbridled power available to be exercised by any
person whom the collector may think proper to authorize without laying down
any guidelines as to persons who may be authorized and without recording
availability of grounds which would give rise to belief, on the existence
whereof only, power may be exercised deprives provision of quality of
reasonableness - Since Under garb of power conferred by section 73 the
person authorized may go on rampage searching house after house exercise
would prove to be absolutely disproportionate to purpose sought to be
achieved - Hence High Court held justified in holding Section 73 as amended

that be the correct view of the law, we cannot accept the line of Miller in which the
Court proceeded on the basis that the right to privacy is referable to the right of
'property' theory. Once that is so, then unless there is some probable or reasonable
cause or reasonable basis or material before the Collector for reaching an opinion that
the documents in the possession of the Bank tend, to secure any duty or to prove or to
lead to the discovery of any fraud or omission in relation to any duty, the search or
taking notes or extracts therefore, cannot be valid. The above safeguards must
necessarily be read into the provision relating to search and inspection and seizure so
as to save it from any unconstitutionality.
55. Secondly, the impugned provision in sec. 73 enabling the Collector to authorize
'any person' whatsoever to inspect, to take notes or extracts from the papers in the
public office suffers from the vice of excessive delegation as there are no guidelines in
the Act and more importantly, the section allows the facts relating to the customer's
privacy to reach non-governmental persons and would, on that basis, be an
unreasonable encroachment into the customer's rights. This part of the Section 73
permitting delegation to 'any person' suffers from the above serious defects and for that
reason is, in our view, unenforceable. The State must clearly define the officers by
designation or state that the power can be delegated to officers not below a particular
rank in the official hierarchy, as may be designated by the State.
5 6 . The A.P. amendment permits inspection being carried out by the Collector by
having access to the documents which are in private custody i.e. custody other than that
of a public officer. It is clear that this provision empowers invasion of the home of the
person in whose possession the documents 'tending' to or leading to the various facts
stated in sec. 73 are in existence and sec. 73 being one without any safeguards as to
probable or reasonable cause or reasonable basis or materials violates the right to
privacy both of the house and of the person. We have already referred to R.
Rajagopal's case wherein the learned judges have held that the right to personal
liberty also means the life free from encroachments unsustainable in law and such right
flowing from Article 21 of the Constitution.
57. I n Smt. Maneka Gandhi v. Union of India and Anr., MANU/SC/0133/1978 :
[1978]2SCR621 - a 7-Judges Bench decision, P.N. Bhagwati, J. (as His Lordship then
was) held that the expression 'personal liberty' in Article 21 is of the widest amplitude
and it covers a variety of rights which go to constitute the personal liberty of man and
some of them have been raised to the status of distinct fundamental rights and given
additional protection under Article 19 (emphasis supplied). Any law interfering with
personal liberty of a person must satisfy a triple test: (i) it must prescribe a procedure;
(ii) the procedure must withstand the test of one or more of the fundamental rights
conferred under Article 19 which may be applicable in a given situation; and (iii) it
must also be liable to be tested with reference to Article 14. As the test propounded by
Article 14 pervades Article 21 as well, the law and procedure authorizing interference
with personal liberty and right of privacy must also be right and just and fair and not
arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the
requirement of Article 14 it would be no procedure at all within the meaning of Article
21.
58. The constitutional validity of the power conferred by law came to be decided from
yet another angle in the case of Air India v. Nergesh Meerza and Ors.,
MANU/SC/0688/1981 : (1981)IILL J314SC , it was held that a discretionary power may
not necessarily be a discriminatory power but where a statute confers a power on an
authority to decide matters of moment without laying down any guidelines or principles

or norms, the power has to be struck down as being violative of Article 14.
59. An instrument which is not duly stamped cannot be received in evidence by any
person who has authority to receive evidence and it cannot be acted upon by that
person or by any public officer. This is the penalty which is imposed by law on the
person who may seek to claim any benefit under an instrument if it is not duly stamped.
Once detected the authority competent to impound the document can recover not only
duty but also penalty, which provision, protects the interest of revenue. In the event of
there being criminal intention or fraud, the persons responsible may be liable to be
prosecuted. The availability of these provisions, in our opinion adequately protects the
interest of revenue. Unbridled power available to be exercised by any person whom the
Collector may think proper to authorize without laying down any guidelines as to the
persons who may be authorized and without recording the availability of grounds which
would give rise to the belief, on the existence where of only, the power may be
exercised deprives the provision of the quality of reasonableness. Possessing a
document not duly stamped is not by itself any offence. Under the garb of the power
conferred by Section 73 the person authorized may go on rampage searching house
after house i.e. residences of the persons or the places used for the custody of
documents. The possibility of any wild exercise of such power may be remote but then
on the framing of Section 73, the provision impugned herein, the possibility cannot be
ruled out. Any number of documents may be inspected, may be seized and may be
removed and at the end the whole exercise may turn out to be an exercise in futility.
The exercise may prove to be absolutely disproportionate with the purpose sought to be
achieved and, therefore, a reasonable nexus between stringency of the provision and
the purpose sought to be achieved ceases to exist.
6 0 . The abovesaid deficiency pointed out by the High Court and highlighted by the
learned counsel for the respondents in this Court has not been removed even by the
rules. The learned counsel for the respondents has pointed out that under the Rules the
obligation is cast on the bank or any other person having custody of the documents
though it may not be a party to the document, to pay the duty payable on the
documents in order to secure release of the documents.
61. For the foregoing reasons we agree with the view taken by the High Court that
Section 73 of the Indian Stamp Act as amended in its application to the State of Andhra
Pradesh by Andhra Pradesh Act No. 17 of 1986 is ultra vires the Constitution. As we do
not find any infirmity in the judgment of the High Court all the appeals are dismissed.
© Manupatra Information Solutions Pvt. Ltd.

MANU/SC/8127/2008
Equivalent Citation: AIR2009SC 904, JT2008(11)SC 520, 2009-2-LW222, (2009)5MLJ1464(SC ), 2008(13)SC ALE783, (2009)1SC C 180

Civil Appeal No. 6143 of 2008 (Arising out of S.L.P. (C) No. 10230 of 2006)
Appellants:Sethi Auto Service Station and Ors.
Vs.
Respondent:Delhi Development Authority and Ors.
C.K. Thakker and Devinder Kumar Jain, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Arun Jaitley, Sr. Adv., R.S. Suri and Mohd. Wasay
Khan, Advs
For Respondents/Defendant: A. Sharan, A.S.G., Vishnu Bahadur Saharya, Advs. for
Saharya & Co., H.K. Puri, S.K. Puri, V.M. Chaudhary, Priya Puri, Parijat Sinha, Reshmi
Rea Sinha, S.C. Ghosh and Snehasish Mukherjee, Advs.
Case Note:
Commercial - Relocation of - Petrol pump - Commercially unviable - Doctrine
of legitimate expectation - Appellant filed for re-locating two petrol pumps
owned by him due to construction of fly over- Respondent No. 1 rejected
proposal for relocation of two petrol pumps - Appellants filed writ petitions -
Respondent No. 1 contended that new policy does not contain any provision
for allotment of an alternative site for an existing petrol pump located on
private land or land allotted by other agency such as the AAI and no vested
right accrued in favour of Appellants till final decision was taken by
Competent Authority - Learned Single Judge dismissed the Writ Petitions -
Letters Patent Appeal preferred by Appellants also dismissed by Division
Bench - Whether the Courts below justified in dismissing the appeal - Held,
Notings in departmental file do not have sanction of law to be an effective
Order - Notings culminate into an executable Order, only when it reaches the
final decision making authority in the department; gets approval and the final
Order is communicated to the person concerned - In the instant case there
were several notings which recommended consideration of the Appellants'
case for relocation but finally no official communication was addressed to or
received by the Appellants accepting their claim - Concept of legitimate
expectation has no role to play where the State action is as a public policy or
in the public interest unless the action taken amounts to an abuse of power -
Appeal dismissed.
Case Category:
ORDINARY CIVIL MATTER - DEALERSHIP AND DISTRIBUTORSHIP OF PETROLEUM
PRODUCTS
JUDGMENT
Devinder Kumar Jain, J.

16. Finally, the Vice Chairman concurred with the view of the Commissioner; proposals
for re-sitement were rejected and consequently decision was taken to put the two plots,
on which the appellants had staked their claims for auction.
17. From the afore-extracted notings of the Commissioner and the order of the Vice
Chairman, it is manifest that although there were several notings which recommended
consideration of the appellants' case for relocation but finally no official communication
was addressed to or received by the appellants accepting their claim. After the
recommendation of the Technical Committee, the entire matter was kept pending; in the
meanwhile a new policy was formulated and the matter was considered afresh later in
the year 2004, when the proposal was rejected by the Vice Chairman, the final decision
making authority in the hierarchy. It is, thus, plain that though the proposals had the
recommendations of State Level Co-ordinator (oil industry) and the Technical
Committee but these did not ultimately fructify into an order or decision of the DDA,
conferring any legal rights upon the appellants. Mere favourable recommendations at
some level of the decision making process, in our view, are of no consequence and
shall not bind the DDA. We are, therefore, in complete agreement with the High Court
that the notings in the file did not confer any right upon the appellants, as long as they
remained as such. We do not find any infirmity in the approach adopted by the learned
Single Judge and affirmed by the Division Bench, warranting interference.
1 8 . We may, now, consider the plea relating to the legitimate expectation of the
appellants in terms of DDA's policy dated 14th October, 1999 and the impact of change
of the policy, in June, 2003, thereon.
1 9 . The protection of legitimate expectations, as pointed out in De Smith's
Judicial Review (Sixth Edition), (para 12-001), is at the root of the constitutional
principle of the rule of law, which requires regularity, predictability, and certainty in
government's dealings with the public. The doctrine of legitimate expectation and its
impact in the administrative law has been considered by this Court in a catena of
decisions but for the sake of brevity we do not propose to refer to all these cases.
Nevertheless, in order to appreciate the concept, we shall refer to a few decisions. At
this juncture, we deem it necessary to refer to a decision by the House of Lords in
Council of Civil Service Unions and Ors. v. Minister for the Civil Service [1984]
3 All ER 935, a locus classicus on the subject, wherein for the first time an attempt was
made to give a comprehensive definition to the principle of legitimate expectation.
Enunciating the basic principles relating to legitimate expectation, Lord Diplock
observed that for a legitimate expectation to arise, the decision of the administrative
authority must affect such person either (a) by altering rights or obligations of that
person which are enforceable by or against him in private law or (b) by depriving him
of some benefit or advantage which either: (i) he has in the past been permitted by the
decision maker to enjoy and which he can legitimately expect to be permitted to
continue to do until some rational ground for withdrawing it has been communicated to
him and he has been given an opportunity to comment thereon or (ii) he has received
assurance from the decision-maker that they will not be withdrawn without first giving
him an opportunity of advancing reasons for contending that they should be withdrawn.
20. I n Attorney General of Hong Kong v. Ng Yuen Shiu (1983) 2 All.ER 346, a
leading case on the subject, Lord Fraser said: "when a public authority has promised to
follow a certain procedure, it is in the interest of good administration that it should act
fairly and should implement its promise, so long as the implementation does not
interfere with its statutory duty.

21. Explaining the nature and scope of the doctrine of legitimate expectation, in Food
Corporation of India v. Kamdhenu Cattle Feed
IndustriesMANU/SC/0257/1993 : AIR1993SC1601 , a three-Judge Bench of this
Court had observed thus:
The mere reasonable or legitimate expectation of a citizen, in such a situation,
may not by itself be a distinct enforceable right, but failure to consider and give
due weight to it may render the decision arbitrary, and this is how the
requirement of due consideration of a legitimate expectation forms part of the
principle of non-arbitrariness, a necessary concomitant of the rule of law. Every
legitimate expectation is a relevant factor requiring due consideration in a fair
decision-making process. Whether the expectation of the claimant is reasonable
or legitimate in the context is a question of fact in each case. Whenever the
question arises, it is to be determined not according to the claimant's
perception but in larger public interest wherein other more important
considerations may outweigh what would otherwise have been the legitimate
expectation of the claimant. A bona fide decision of the public authority reached
in this manner would satisfy the requirement of non-arbitrariness and withstand
judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the
rule of law and operates in our legal system in this manner and to this extent.
22. The concept of legitimate expectation again came up for consideration in Union of
India and Ors. v. Hindustan Development Corporation and
Ors.MANU/SC/0219/1994 : AIR1994SC988 . Referring to a large number of foreign
and Indian decisions, including in Council of Civil Service Unions and Kamdhenu
Cattle Feed Industries (supra) and elaborately explaining the concept of legitimate
expectation, it was observed as under:
If a denial of legitimate expectation in a given case amounts to denial of right
guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of
power or violation of principles of natural justice, the same can be questioned
on the well-known grounds attracting Article 14 but a claim based on mere
legitimate expectation without anything more cannot ipso facto give a right to
invoke these principles. It can be one of the grounds to consider but the court
must lift the veil and see whether the decision is violative of these principles
warranting interference. It depends very much on the facts and the recognised
general principles of administrative law applicable to such facts and the concept
of legitimate expectation which is the latest recruit to a long list of concepts
fashioned by the courts for the review of administrative action, must be
restricted to the general legal limitations applicable and binding the manner of
the future exercise of administrative power in a particular case. It follows that
the concept of legitimate expectation is "not the key which unlocks the treasury
of natural justice and it ought not unlock the gate which shuts the court out of
review on the merits", particularly when the element of speculation and
uncertainty is inherent in that very concept.
23. Taking note of the observations of the Australian High Court in Attorney General
for New South Wales v. Quinn (1990) 64 Aust L JR 327 that "to strike down the
exercise of administrative power solely on the ground of avoiding the disappointment of
the legitimate expectations of an individual would be to set the Courts adrift on a
featureless sea of pragmatism", speaking for the Bench, K. Jayachandra Reddy, J. said
that there are stronger reasons as to why the legitimate expectation should not be
substantively protected than the reasons as to why it should be protected. The caution

sounded in the said Australian case that the Courts should restrain themselves and
restrict such claims duly to the legal limitations was also endorsed.
24. Then again in National Buildings Construction Corporation v. S. Raghunathan and
Ors. MANU/SC/0550/1998 : AIR1998SC2779 , a three-Judge Bench of this Court
observed as under
The doctrine of "legitimate expectation" has its genesis in the field of
administrative law. The Government and its departments, in administering the
affairs of the country, are expected to honour their statements of policy or
intention and treat the citizens with full personal consideration without any iota
of abuse of discretion. The policy statements cannot be disregarded unfairly or
applied selectively. Unfairness in the form of unreasonableness is akin to
violation of natural justice. It was in this context that the doctrine of "legitimate
expectation" was evolved which has today become a source of substantive as
well as procedural rights. But claims based on "legitimate expectation" have
been held to require reliance on representations and resulting detriment to the
claimant in the same way as claims based on promissory estoppel.
2 5 . This Court in Punjab Communications Ltd. v. Union of India and
Ors.MANU/SC/0326/1999 :[1999]2SCR1033 , referring to a large number of
authorities on the question, observed that a change in policy can defeat a substantive
legitimate expectation if it can be justified on "Wednesbury" reasonableness. The
decision maker has the choice in the balancing of the pros and cons relevant to the
change in policy. Therefore, the choice of the policy is for the decision maker and not
for the Court. The legitimate substantive expectation merely permits the Court to find
out if the change in policy which is the cause for defeating the legitimate expectation is
irrational or perverse or one which no reasonable person could have made. (Also see:
Bannari Amman Sugars Ltd. v. Commercial Tax Officer and
Ors.MANU/SC/0994/2004 : (2004)192CTR(SC)492 )
2 6 . Very recently in Jitendra Kumar and Ors. v. State of Haryana and
Anr.MANU/SC/8192/2007 : (2008)2SCC161 , it has been reiterated that a legitimate
expectation is not the same thing as an anticipation. It is distinct and different from a
desire and hope. It is based on a right. It is grounded in the rule of law as requiring
regularity, predictability and certainty in the Government's dealings with the public and
the doctrine of legitimate expectation operates both in procedural and substantive
matters.
2 7 . An examination of the afore-noted few decisions shows that the golden thread
running through all these decisions is that a case for applicability of the doctrine of
legitimate expectation, now accepted in the subjective sense as part of our legal
jurisprudence, arises when an administrative body by reason of a representation or by
past practice or conduct aroused an expectation which it would be within its powers to
fulfill unless some overriding public interest comes in the way. However, a person who
bases his claim on the doctrine of legitimate expectation, in the first instance, has to
satisfy that he has relied on the said representation and the denial of that expectation
has worked to his detriment. The Court could interfere only if the decision taken by the
authority was found to be arbitrary, unreasonable or in gross abuse of power or in
violation of principles of natural justice and not taken in public interest. But a claim
based on mere legitimate expectation without anything more cannot ipso facto give a
right to invoke these principles. It is well settled that the concept of legitimate
expectation has no role to play where the State action is as a public policy or in the

MANU/SC/0149/1997
Equivalent Citation: AIR1997SC 568, JT1997(1)SC 288, 1996(9)SC ALE318, (1997)1SC C 301, [1996]Supp10SC R321, 1997(1)UJ187

Writ Petn. (C) No. 256 of 1991
Appellants: People's Union of Civil Liberties (PUCL)
Vs.
Kuldip Singh and Saiyed Saghir Ahmad, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Kapil Sibal, Rajinder Sachar, Rashmi Kapadi and Sanjay
Parikh, Advs
For Respondents/Defendant: Venugopal Reddy, P. Parmeswaran, Hemant Sharma and
Anil Katiyar, Advs.
Case Note:
Constitution - telephone-tapping - Sections 5 (2) and 7 of Telegraph Act,
1885 and Articles 19 and 21 of Constitution of India - petitioner challenged
constitutional validity of Section 5 (2) or in alternative contended that said
provisions be suitably read down to include procedural safeguards to rule out
arbitrariness and to prevent indiscriminate telephone tapping - Section 5 (2)
provided that in event of occurrence of public emergency or in interest of
public safety messages could be intercepted - rules required to be framed
under Section 7 (2) (b) for providing procedural safeguards not framed - it
was alleged Act lays down situations when such power can be exercised but
manner in which such power is to be exercised not provided in Act - right to
privacy is part of right to "life" and "personal liberty" enshrined under Article
21 - telephone-tapping unless comes within reasonable restrictions under
Article 19 (2) is infringement of right to freedom of speech and expression
contained in Article (1) (a) - to protect right to privacy of people necessary to
lay down procedural safeguards - Order for telephone-tapping under Section 5
(2) shall be issued by Home Secretary of Central or State Government who
shall maintain proper records of intercepted communications and disclosure of
materials intercepted - total period for operation of Order shall not exceed six
months - Court provided for Review Committees which shall review Orders
under Section 5 (2) and set aside Orders where there appears to be
contravention of provisions of Section 5 (2).
ORDER
Kuldip Singh, J.
1. Telephone-Tapping is a serious invasion of an individual's privacy. With the growth
of highly sophisticated communication technology, the right to hold telephone
conversation, in the privacy of one's home or office without interference, is increasingly

the Constitution. This freedom means the right to express one's convictions and
opinions freely by word of mouth, writing, printing, picture, or in any other manner.
When a person is talking on telephone, he is exercising his right to freedom of speech
and expression. Telephone-tapping unless it comes within the grounds of restrictions
under Article 19(2) would infract Article 19(1)(a) of the Constitution.
2 1 . India is a signatory to the International Covenant on Civil and Political Rights,
1966. Article 17 of the said covenant is as under:
Article 17
1. No one shall be subject to arbitrary or unlawful interference with his privacy,
family, human or correspondence, nor to lawful attacks on his honour and
reputation.
2. Every one has the right to the protection of the law against such interference
or attacks.
Article 12 of the Universal Declaration of Human Rights, 1948 is almost in similar terms.
2 2 . International law today is not confined to regulating the relations between the
States. Scope continues to extend. Today matters of social concern, such as health,
education and economics apart from human rights fall within the ambit of International
Regulations. International law is more than ever aimed at individuals.
23. It is almost an accepted proposition of law that the rules of customary international
law which are not contrary to the municipal law shall be deemed to be incorporated in
the domestic law.
24. Article 51 of the Constitution directs that the State shall endeavour to inter alia,
foster respect for international law and treaty obligations in the dealings of organised
peoples with one another. Relying upon the said Article, Sikri, C.J in Kesavananda
Bharathi v. State of Kerala MANU/SC/0114/1972 : 1972CriLJ1526 , observed as under:
It seems to me that, in view of Article 51 of the directive principles, this Court
must interpret language of the Constitution, if not intractable, which is after all
a municipal law, in the right of the United Nations Charter and the solemn
declaration subscribed to by India.
In A.D.M. Jabalpur v. 5. Shukla, Khanna J. in his minority opinion observed as under:
Equally well established is the rule of construction that if there be a conflict
between the municipal law on one side and the international law or the
provisions of any treaty obligation on the other, the Courts would give effect to
municipal law. If, however, two constructions of the municipal law are possible,
the Courts should lean in favour of adopting such construction as would make
the provisions of the municipal law to be in harmony with the international law.
on treaty obligations. Every statute, according to this rule is interpreted, so far
as its language permits, so as not to be inconsistent with the comity of nations
on the established rules of international law, and the Court will avoid a
construction which would give rise to such inconsistency unless compelled to
adopt it by plain and unambiguous language.
In Jolly George Varghese v. Bank of Cochin MANU/SC/0014/1980 : [1980]2SCR913 ,
Krishna Iyer, J. posed the following question:

MANU/SC/0040/1967
Equivalent Citation: AIR1967SC 1836, 1968(70)BOMLR1, [1967]3SC R525

Writ petitions Nos. 230 of 1966 and 30 of 1967
Appellants:Satwant Singh Sawhney
Vs.
Respondent:D. Ramarathnam and Ors.
K. Subba Rao, C.J., C.A. Vaidialingam, J.M. Shelat, M. Hidayatullah and R.S. Bachawat,
JJ.
Case Note:
Constitution - right to travel abroad - Articles 14, 21 and 32 of Constitution of
India - petitioner engaged in business of export and import - for purpose of
business petitioner required to visit countries outside India - regular
passports for traveling abroad granted to petitioner on two occasions -
decision to withdraw passport facilities extended to petitioner by Central
Government - petitioner called upon to surrender both passport - writ before
Supreme Court for Order of mandamus against decision which was conveyed
via letters issued by Regional Passport Officer Bombay - majority decision laid
out that Article 21 to include liberty to travel abroad - exercise of arbitrary
discretion to refuse issue of passport in contravention of Article 14 - minority
decision observed that Article 21 does not grant absolute right to a citizen to
obtain a passport from Government as it has right to scrutinize credentials of
passport holder - petitioner found to undertake illegal import and export
activities - denial of passport not arbitrary - Apex Court held, that Order of
mandamus to be passed and passport to be restored to petitioner.
JUDGMENT
K. Subba Rao, C.J.
1 . Satwant Singh Sawhney, the petitioner is a citizens of India. He carries on the
business of Importer, Exporter and Manufacture of automobile parts and engineering
goods in the name and style of Indi-Europeans Trading Corporation. he also carries on
another business in engineering goods in the name of "Sawhney Industries". For the
purpose of his business it is necessary for the petitioner to travel abroad. From the year
1958 he was taking passports for visiting foreign countries in connection with his
business. On December 8, 1965 be obtained a regular passport form the Government of
India which is valid upon March 22, 1969. So too, on October 27, 1965 he obtained
another passport which was valid upto March 22, 1967. On August 31, 1966 the
Assistant Passport Officer, Government of India, Ministry of External Affairs, New Delhi,
the 1st respondent herein, wrote to the petitioner calling upon him to return the said
two passports as the 3rd Respondent, the Union of India, had decided to withdraw the
passport facilities extended to the petitioner. So too the 2nd respondent the Regional
Passport Officer, Bombay wrote to the petitioner a letter dated September 24, 1966,
calling upon him to surrender the said two passports immediately to the Government

8 8 . Now it is obvious that Blackstone, when he defined 'personal liberty' was not
writing a commentary on the Indian Constitution. The generality of his observations
cannot be woven into our Constitution without paying heed to the context in which the
words occur. It seems strange that the Constitution should have guaranteed the right of
motion, in one place, limited to the territories of India, and in another, without
specifying the right of motion given an added fundamental right to leave India. This, in
our opinion, has been earlier noticed indirectly in the two cases of this Court already
referred to.
8 9 . Gopalan's case MANU/SC/0012/1950 : 1950CriL J1383 is one of them. It was
concerned with preventive detention and was not directly concerned with the question
whether Art. 21 comprehends the right to travel abroad or to leave India as an attribute
of personal liberty. The point now before us did not really arise. However, varied
opinions were expressed by the Constitution Bench. Kania,C.J. did not express any clear
view. According to him there was no conflict between Arts. 19 and 21. He thought of
personal liberty in terms of right to eat or sleep when one likes, to work or not to work.
To him personal liberty meant liberty of the physical body. Fazl Ali, J. accepted that
freedom of movement was the essence of personal liberty; but observed at p. 139 as
follows :
"In my opinion, the words 'throughout the territory of India' were used to
stretch the ambit of the freedom of movement to the utmost extent to which it
could be guaranteed by our Constitution. " (Italics added).
90. Patanjali Sastri, J. (later C.J.) thought that personal liberty in Art. 21 was used in a
sense which excluded freedoms dealt with in Art. 19, that is to say, personal liberty in
the context of Part III of the Constitution was something distinct from the freedom to
move freely throughout the territory of India. Das, J. (later C.J.) dealing with Art. 19
observed at p. 301 :
"Its purpose, as I read it, is not to provide protection for the general right of
free movement but to secure a specific and special right of the Indian citizen to
move freely throughout the territories of India regarded as an independent
additional right apart from the general right of locomotion emanating from the
freedom of the person. It is a guarantee against unfair discrimination in the
matter of free movement of the Indian citizen throughout the Indian Union. In
short, it is a protection against provincialism. It has nothing to do with the
freedom of the person as such. That is guaranteed to every person, citizen or
otherwise, in the manner and to the extent formulated by article 21."
9 1 . Mahajan J. (later C.J.) thought that in providing that life and liberty might be
deprived only in accordance with procedure established by law, the intention was to
give immunity against exercise of despotic power by the Executive. Mukherjea J. (later
C.J.) thought that movement throughout the territory of India could be curtailed in the
interest of other public but movement outside could only be curtailed by law.
92. The learned Chief Justice has selected the views of Fazl Ali and Das JJ. and drawn
the conclusion that personal liberty in art. 21 is a more comprehensive concept and has
a much wider connotation than the right conferred by Art. 19(1)(d). The learned Chief
Justice refers to Kharak Singh's case MANU/SC/0085/1962 : 1963CriL J329 and observes
as follows :
"This Court, adverting to the expression "personal liberty", accepted the
meaning put upon the expression 'liberty' in the 5th and 14th Amendments to

MANU/SC/0133/1978
Equivalent Citation: AIR1978SC 597, (1978)2C ompLJ62(SC ), (1978)1SC C 248, [1978]2SC R621

Writ Petition No. 231 of 1977
Appellants:Maneka Gandhi
Vs.
Respondent:Union of India (UOI) and Ors.
M. Hameedullah Beg, C.J., N.L. Untwalia, P.N. Bhagwati, P.S. Kailasam, S. Murtaza Fazal
Ali, V.R. Krishna Iyer and Y.V. Chandrachud, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Madan Bhatia and D. Goburdhan, Advs
For Respondents/Defendant: S.V. Gupte, Attorney General, Soli J. Sorabjee, Additional
Sol. Genl. Of Indian, R.N. Sachthey and K.N. Bhat, Advs.
Case Note:
(i) Constitution - validity of provision - Articles 14, 19 and 21 of Constitution
of India and Section 10 (3) (c) of Passports Act, 1967 - validity of Section 10
(3) (c) challenged - procedure in Article 21 means procedure which conforms
to principles of natural justice - power conferred under Section 10 (3) (c) not
unguided and it is implied in it that rules of natural justice would be
applicable - held, Section 10 (3) (c) not violative of Article 21.
(ii) Right of dignity - right to live is not merely confined to physical existence
- it includes within its ambit right to live with human dignity.
(iii) Inter-relationship - principle of reasonableness provided under Article 14

must apply to procedure as contemplated under Article 21 - Article 21
controlled by Article 19 also - in case a law does not infringe Article 21 even
then it has to meet challenges of Articles 14 and 19.
(iv) Post-decisional hearing - petitioner's passport impounded and not given

pre-decisional notice and hearing - Government contended that rule audi
alteram partem must be excluded because it may have frustrated very
purpose of impounding passport - concept of post-decisional hearing
developed to maintain balance between administrative efficiency and fairness
to individual - Court stressed that fair opportunity of being heard following
immediately Order impounding passport would satisfy mandate of natural
justice.

prescribes the procedure whereby an application for a passport may be granted fully or
partially, with or without any endorsement, and a passport once granted may later be
revoked or impounded. But the mere prescription of some kind of procedure cannot
ever meet the mandate of Article 21. The procedure prescribed by law has to be fair,
just and reasonable, not fanciful, oppressive or arbitrary. The question whether the
procedure prescribed by a law which curtails or takes away the personal liberty
guaranteed by Article 21 is reasonable or not has to be considered not in the abstract or
on hypothetical considerations like the provision for a full-dressed hearing as in a
Courtroom trial, but in the context, primarily, of the purpose which the Act is intended
to achieve and of urgent situations which those who are charged with the duty of
administering the Act may be called upon to deal with. Secondly, even the fullest
compliance with the requirements of Article 21 is not the journey's end because, a law
which prescribes fair and reasonable procedure for curtailing or taking away the
personal liberty guaranteed by Article 21 has still to meet a possible challenge under
other provisions of the Constitution like, for example, Articles 14 and 19. If the holding
in A. K. Gopalan v. State of Madras [1950] SCR 88 that the freedoms guaranteed by the
Constitution are mutually exclusive were still good law, the right to travel abroad which
is part of the right of personal liberty under Article 21 could only be found and located
in that article and in no other. But in the Bank Nationalisation Case (R. C. Cooper v.
Union of India [1973] 3 SCR 530 the majority held that the assumption in A. K-
Gopalan MANU/SC/0012/1950 : 1950CriL J1383 that certain articles of the Constitution
exclusively deal with specific matters cannot be accepted as correct. Though the Bank
Nationalisation case [1973] 3 SCR 530 was concerned with the inter-relationship of
Article 31 and 19 and not of Articles 21 and 19, the basic approach adopted therein as
regards the construction of fundamental rights guaranteed in the different provisions of
the Constitution categorically discarded the major premise of the majority judgment in
A. K. Gopalan (supra) as incorrect. That ;is how a seven-Judge Bench in Shambhu Nath
Sarkar v. State of West Bengal and Ors. MANU/SC/0537/1972 : [1973]1SCR856
assessed the true impact of the ratio of the Bank Nationalisation Case (supra) on the
decision in A. K. Gopalan (supra) in Shambhu Nath Sarkar MANU/SC/0537/1972 :
[1973]1SCR856 it was accordingly held that a law of preventive detention has to meet
the challenge not only of Articles 21 and 22 but also of Article 19(1)(d). Later, a five-
Judge Bench in Haradhan Saha v. State of West Bengal and Ors. MANU/SC/0419/1974 :
1974CriL J1479 adopted the same approach and considered the question whether the
Maintenance of Internal Security Act, 1971 violated the right guaranteed by Article
19(1)(d). Thus, the inquiry whether the right to travel abroad forms a part of any of the
freedoms mentioned in Article 19(1) is not to be shut out at the threshold merely
because that right is a part of the guarantee of personal liberty under Article 21. I am in
entire agreement with Brother Bhagwati when he says :
The law must, therefore, now be taken to be well settled that Article 21 does
not exclude Article 19 and that even if there is a law prescribing a procedure for
depriving a person of 'personal liberty' and there is consequently no
infringement of the fundamental right conferred by Article 21, such law, in so
far as it abridges or takes away any fundamental right under Article 19 would
have to meet the challenge of that article.
41. The interplay of diverse articles of the Constitution guaranteeing -various freedoms
has gone through vicissitudes which have been elaborately traced by Brother Bhagwati.
The test of directness of the impugned law as contrasted with its consequences was
thought in A. K. Gopalan (supra) and Ram Singh [1951] SCR 451 to be the true
approach for determining whether a fundamental right was infringed. A significant
application of that test may be perceived in Naresh S. Mirajkar MANU/SC/0044/1966 :

The nature and requirement of the procedure under Article 21.
56. Now, the question immediately arises as to what is the requirement of Article 14 :
what is the content and reach of the great equalising principle enunciated in this article
? There can be no doubt that if is a founding faith of the Constitution. It is indeed the
pillar on which rests securely the foundation of our democratic republic. And, therefore,
it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt
should be made to truncate its all-embracing scope and meaning for, to do so would be
to violate its activist magnitude. Equality is a dynamic concept with many aspects and
dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We
must reiterate here what was pointed out by the majority in E. P. Royappa v. State of
Tamil Nadu and Anr. MANU/SC/0380/1973 : (1974)ILL J172SC namely, that "from a
positivistic point of view, equality is antithetic to arbitrariness. In fact equality and
arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the
other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is
implicit in it that it is unequal both according to political logic and constitutional law
and is therefore violative of Article 14".
Article 14 strikes at arbitrariness in State action and ensures fairness and equality of
treatment. The principle of reasonableness, which legally as well as philosophically, is
an essential element of equality or non-arbitrariness pervades Article 14 like a brooding
omnipresence
and the procedure contemplated by Article 21 must answer the best of reasonableness
in order to be in conformity with Article 14. It must be "right and just and fair" and not
arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied.
57. How far natural justice is art essential element of procedure established by law.
58. The question immediately arises : does the procedure prescribed by the Passports
Act, 1967 for impounding a passport meet the test of this requirement ? Is it 'right or
fair or just' ? The argument of the petitioner was that it is not, because it provides for
impounding of a passport without affording reasonable opportunity to the holder of the
passport to be heard in defence. To impound the passport of a person, said the
petitioner, is a serious matter, since it prevents him from exercising his constitutional
right to go abroad and such a drastic consequence cannot in fairness be visited without
observing the principle of audi alteram partem. Any procedure which permits
impairment of the constitutional right to go abroad without giving reasonable
opportunity to show cause cannot but be condemned as unfair and unjust and hence,
there is in the present case clear infringement of the requirement of Article 21. Now, it
is true that there is no express provision in the Passports Act, 1967 which requires that
the audi alteram partem rule should be followed before impounding a passport, but that
is not conclusive of the question. If the statute makes itself clear on this point, then no
more question arises. But even when the statute is silent, the law may in a given case
make an implication and apply the principle stated by Bytes, J., in Cooper v.
Wandsworth Board of Works [1863] 14C B.N.S. 180. "A long course of decisions,
beginning with Dr. Bentley's case and ending with some very recent cases, establish
that, although there are no positive words in the statute requiring that the party shall be
heard, yet the justice of the common law will supply the omission off the legislature".
The principle of audi alteram partem, which mandates that no one shall be condemned
unheard, is part of the rules of natural justice. In fact, there are two main principles in
which the rules of natural justice are manifested, namely, Nemo Judex in Sua Causa and
audi alteram partem. We are not concerned here with the former, since there is no case

MANU/SC/0012/1950
Equivalent Citation: AIR1950SC 27, 1950C riLJ1383, 1942-55-LW638, 1950-63-LW638, (1950)2MLJ42, [1950]1SC R88

Petition No. XIII of 1950
Appellants:A.K. Gopalan
Vs.
Respondent:The State of Madras
H.J. Kania, C.J., B.K. Mukherjea, M.C. Mahajan, M. Patanjali Sastri, Sudhi Ranjan Das
and Sir Saiyid Fazl Ali, JJ.
Overruled / Reversed by:
Sambhu Nath Sarkar v. The State Of West Bengal And Others, MANU/SC/0163/1973;
Bachan Singh v. State of Punjab MANU/SC/0055/1982;Ashok Kumar Gupta and Anr. v.
State of U.P. and Ors. MANU/SC/1176/1997 ; Khudiram Das vs. The State of West
Bengal and Ors. (MANU/SC/0423/1974); M Nagaraj v. Union of India,
MANU/SC/4560/2006 (2006) 8 SCC 212
Case Note:
Constitution - Validity of detention order - Articles 13, 19, 21, 22(5) and 32 of
the Constitution of India - Petitioner challenges legality of detention order
passed by parliament on ground that Preventive Detention Act IV of 1950
contravenes provisions of Articles 13, 19 and 21 and provisions of that Act
were not in accordance with Article 22 of the Constitution - Hence, this
Petition - Held, right to move Supreme Court was given to a person not for
sake of moving only but for moving Court for enforcement of some rights
conferred by Part III - Therefore, to attract Application of Article 32, person
applying must first satisfy that he had got a right under Part III which had to
be enforced under Article 32 - Further, disclosure of grounds would afford
detenu opportunity of making a representation against order supposing that
Authority did not give any grounds at all as distinct from facts referred to in
clause (6) - Detenu lost a fundamental right because he was prevented from
making representation against order of detention - Therefore, suppose
authority handed over to detenu a piece of paper with some scribbling on it
which do not amount to any ground at all for detention - Then also detenu
could legitimately complain that his right had been infringed - Moreover,
Court could not judge whether he had actually get grounds which he was
entitled to under Article 22(5) of the constitution - Detenu may well complain
that both his substantive right under Article 22(5) as well as his right to
constitutional remedies under Article 32 have been infringed - Since, grounds
communicated to detenu was not in conformity with Part III of Constitution
and was, therefore, void under Article 13(2) - Thus, impugned Act was a valid
law except as to Section 14 in so far as it prevents grounds being disclosed to
Court - Petition dismissed.
Ratio Decidendi:
"No person shall be arrested or detained without being at once informed of

(4) No law providing for preventive detention shall authorise the detention of a
person for a longer period than three months unless -
(a) an Advisory Board consisting of persons who are, or have been, or
are qualified to be appointed as, Judges of a High Court has reported
before the expiration of the said period of three months that there is in
its opinion sufficient cause for such detention :
Provided that nothing in this sub-clause shall authorise the
detention of any person beyond the maximum period
prescribed by any law made by Parliament under sub-clause
(b) of clause (7); or
(b) such person is detained in accordance with the provisions of any
law made by Parliament under sub-clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law
providing for preventive detention, the authority making the order shall, as
soon as may be, communicate to such person the grounds on which the order
has been made and shall afford him the earliest opportunity of making a
representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as
is referred to in that clause to disclose facts which such authority considers to
be against the public interest to disclose.
(7) Parliament may by law prescribe -
(a) the circumstances under which, and the class or classes of cases in
which, a person may be detained for a period longer than three months
under any law providing for preventive detention without obtaining the
opinion of an Advisory Board in accordance with the provisions of sub-
clause (a) of clause (4) :
(b) the maximum period for which any person may in any class or
classes of cases be detained under any law providing for preventive
detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry
under sub-clause (a) of clause (4)."
107. Mr. Nambiar urged that the word "law" in article 21 should be understood, not in
the sense of an enactment but as signifying the immutable and universal principles of
natural justice - the jus natural of the civil law - and that the expression "procedure
established by law" meant the same thing as that famous phrase "due process of law" in
the American Constitution in its procedural aspect. Numerous American decisions were
cited to show that the phrase implied the basic requirements of (1) an objective and
ascertainable standard of conduct to which it is possible to confirm, (2) notice to the
party of the accusation against him, (3) a reasonable opportunity for him to establish
his innocence, and (4) an impartial tribunal capable of giving an unbiased judgment.
Mr. Nambiar conceded that these requirements might have to be modified or adapted to
suit the nature of the particular proceeding and the object it had in view, as for
instance, in a case of preventive detention, previous notice, which might result in the
person concerned going underground might be dispensed with. Learned counsel insisted

MANU/SC/0039/1985
Equivalent Citation: AIR1986SC 180, 1986RRR290, 1985(2)SC ALE5, (1985)3SC C 545, [1985]Supp2SC R51

Writ Petitions Nos. 4610-4612 and 5068-5079 of 1981
Appellants: Olga Tellis and Ors.
Vs.
Respondent: Bombay Municipal Corporation and Ors.
Y.V. Chandrachud, C.J., A. Vardarajan, O. Chinnappa Reddy, S. Murtaza Fazal Ali and
V.D. Tulzapurkar, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Indira Jaising, Rani Jethmalani, Anand Grover and
Sumeet Kachwaha, Advs. in W.P. No. 4610-12 of 1981 and Ram Jethmalani, Adv. in
W.P. Nos. 5068-79 of 198
For Respondents/Defendant: L.N. Sinha, Attorney General, P. Shankaranarayanan and
M.N. Shroff, Advs. for Respondent Nos. 2 and 3 in W.P. Nos. 4610-12 of 1981 and for
Respondent Nos. 1 and 3 in W.P. Nos. 5068-79 of 1981, K.K. Singhvi, F.N.D. Mollo,
Advs. for Respondent No. 2 in W.P. No. 5068-79 of 1981
Case Note:
Constitution - fundamental right - Articles 14, 19, 21, 32, 37, 39 and 41 of
Constitution of India and Sections 312, 313 and 314 of Bombay Municipal
Corporation Act, 1888 - petition seeking direction against Government Order
regarding demolition of dwelling units of petitioners - petitioners contended
that provisions of Act of 1888 specially Section 314 ultra vires Constitution of
India - Section 314 empowered Municipal Commissioner to cause to be
removed encroachments on footpaths or pavements over which public have
right of passage of access without notice to affected persons - Court observed
that Section 314 cannot be read to mean that Commissioner must cause
removal of encroachment without issuing previous notice - Section 314 or
other provisions of Act of 1888 held not to be unreasonable or violative of
Article 21 as no person has right to encroach on footpaths pavements or other
place reserved for public purpose by erecting structure on it - State
Government assured Court that alternative would be provided to slum
dwellers who were caused to be evicted - Ordered accordingly.
JUDGMENT
Y.V. Chandrachud, C.J.
1 . These Writ Petitions portray the plight of lakhs of persons who live on pavements
and in slums in the city of Bombay. They constitute nearly half the population of the
city. The first group of petitions relates to pavement dwellers while the second group
relates to both pavement and Basti or Slum dwellers. Those who have made pavements
their homes exist in the midst of filth and squalor, which has to be seen to be believed.

prescribed by Section 314 of the B.M.C. Act being arbitrary and unfair, it is not
"procedure established by law" within the meaning of Article 21 and, therefore, they
cannot be deprived of their fundamental right to life by resorting to that procedure. The
petitions are clearly maintainable under Article 32 of the Constitution.
32. As we have stated while summing up the petitioners' case, the main plank of their
argument is that the right to life which is guaranteed by Article 21 includes the right to
livelihood and since, they will be deprived of their livelihood if they are evicted from
their slum and pavement dwellings, their eviction is tantamount to deprivation of their
life and is hence unconstitutional. For purposes of argument, we will assume the factual
correctness of the premise that if the petitioners are evicted from their dwellings, they
will be deprived of their livelihood. Upon that assumption, the question which we have
to consider is whether the right to life includes the right to livelihood. We see only one
answer to that question, namely, that it does. The sweep of the right to life conferred by
Article 21 is wide and far reaching. It does not mean merely that life cannot be
extinguished or taken away as, for example, by the imposition and execution of the
death sentence , except according to procedure established by law. That is but one
aspect of the right to life. An equally important facet of that right is the right to
livelihood because, no person can live without the means of living, that is, the means of
livelihood. If the right to livelihood is not treated as a part of the constitutional right to
life, the easiest way of depriving a person his right to life would be to deprive him of
his means of livelihood to the point of abrogation. Such deprivation would not only
denude the life of its effective content and meaningfulness but it would make life
impossible to live. And yet, such deprivation would not have to be In accordance with
the procedure established by law, if the right to livelihood is not regarded as a part of
the right to life. That, which alone makes it possible to live, leave aside what makes life
livable, must be deemed to be an integral component of the right to life. Deprive a
person of his right to livelihood and you shall have deprived him of his life.
Indeed, that explains the massive migration of the rural population to big cities. They
migrate because they have no means of livelihood in the villages. The motive force
which people their desertion of their hearths and homes in the villages that struggle for
survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus
between life and the means of livelihood. They have to eat to live : Only a handful can
afford the luxury of living to eat. That they can do, namely, eat, only if they have the
means of livelihood.
That is the context in which it was said by Douglas J. in Baksey that the right to work is
the most precious liberty because, it sustains and enables a man to live and the right to
life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois (1877) 94
U.S. 113, means something more than mere animal existence and the inhibition against
the deprivation of life extends to all those limits and faculties by which life is enjoyed.
This observation was quoted with approval by this Court in Kharak Singh v. The State of
U.P. MANU/SC/0085/1962 : 1963CriLJ329
33. Article 39(a) of the Constitution, which is a Directive Principle of State Policy,
provides that the State shall, in particular, direct its policy towards securing that the
citizens, men and women equally, have the right to an adequate means of livelihood.
Article 41, which is another Directive Principle, provides, inter alia, that the State shall,
within the limits of its economic capacity and development, make effective provision for
securing the right to work in cases of unemployment and of undeserved want. Article 37
provides that the Directive Principles, though not enforceable by any court, are
nevertheless fundamental in the governance of the country. The Principles contained in
Articles 39(a) and 41 must be regarded as equally fundamental in the understanding

MANU/SC/0300/1977
Equivalent Citation: AIR1977SC 2279, (1977)6C TR(SC )354, (1977)4SC C 98, 1977SC C (Tax)536, [1978]1SC R338, [1977]40STC 497(SC )

Civil Appeal Nos. 533, 1004, 1410 and 1671-1685 of 1975
Appellants: R.S. Joshi and Ors.
Vs.
Respondent:Ajit Mills Limited and Ors.
M. Hameedullah Beg, C.J., N.L. Untwalia, P.N. Bhagwati, P.S. Kailasam, S. Murtaza Fazal
Ali, V.R. Krishna Iyer and Y.V. Chandrachud, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: S.T. Desai and R.M. Mehta, M.N. Shroff Radha
Rangaswamy and Fali Sam Nariman, Advs
For Respondents/Defendant: K.H. Kaji, Sunanda Bhandare, M.S. Narasimhan, A.K.
Mathur, A.K. Sharma, Advs.
Case Note:
Sales Tax - Forfeiture - Sections 37(1) and 46 of Bombay Sales Tax Act, 1959
- High Court struck down sale-tax project of State of Gujarat - Hence, this
Appeal - Whether, forfeiture clause in Sections 37(1) (a) and 46(2) of Act,
were beyond legislative power conferred by Entry 54, List II, Schedule VII of
Constitution - Held, forfeiture being penal terminologically, excluded mens
rea and penal forfeiture could be enormous germane to legislative policy, not
for judicial compassion - However, express penalty in Section 37(1) (a) had
ceiling while additive forfeit was unlimited - Moreover, limited penalty,
without forfeiture might prove illusory where illegal collections run into
millions, but forfeiture in Section 37(1) was competent legislation -Thus,
sales tax law would have to demarcate articles on which tax could be
collected and prohibitted collection of tax in any manner not authorized by
law - Hence, provisions of Section 37(1) were with-in competence of State
legislature - Appeal allowed.
Ratio Decidendi:
"If it is an act of mere transference of money from dealer to State, then it
falls outside the legislative entry."
JUDGMENT
V.R. Krishna Iyer, J.
1. This bunch of appeals brought by the State of Gujarat by certificate has a pan-Indian
impact, as the sale-tax project which has been struck down by the High Court may
adversely affect cousin provisions in like statutes in the rest of the country.
Contradictory verdicts on the constitutionality of a certain pattern of sales tax
legislation, calculated to counter consumer victimisation by dealers, have been rendered
by different High Courts and what complicates the issue is that reasonings in the prior

fall within any entry assigned to that legislature in pith and substance, or as covered by
the ancillary powers implied in that Entry ? Can the legislation be read down reasonably
to bring it within the legislature's constitutional powers ? If these questions can be
answered affirmatively, the law is valid. Malice or motive is beside the point and it is
not permissible to suggest parliamentary incompetence on the score of mala fides.
17. So much is well-established law. Therefore, if the dealers in the appeals before us
charge the enactment with the vice of colourability, they must make out that in pith and
substance the impugned legislation does not fall within Entry 54 read with Entry 64 of
List II, that it is not embraced even by the expansive connotation of ancillary powers
and that it is not possible to save the law even by reading down some of the wide
expressions used. In the present case, the narrow issue is as to whether the forfeiture
clause in Section 37(1) is bad because of the besetting sin of colourability. If it is a
punitive measure to protect public interest in the enforcement of the fiscal legislation, it
falls squarely within the area of implied powers. Therefore, the finer point stressed by
Shri Kaji is that the expression 'forfeiture' is a ritualistic recital to cover up a secret
design to snatch from the traders sums which cannot be reached at except by the device
of forfeiture. In frank fact, it is not a measure of penalty but an oblique methodology to
do an illegitimate thing which is beyond the legislature's legitimate reach. We have,
therefore, to examine this short point in the light of the decisions of this Court.
18. Coming to 'forfeiture', what is the true character of a 'forfeiture' ? Is it punitive in
infliction, or merely another form of exaction of money by one from another ? If it is
penal, it falls within implied powers. If it is an act of mere transference of money from
the dealer to the State, then it falls outside the legislative entry. Such is the essence of
the decisions which we will presently consider. There was a contention that the
expression 'forfeiture' did not denote a penalty. This, perhaps, may have to be decided
in the specific setting of a statute. But, speaking generally and having in mind the
object of Section 37 read with Section 46, we are inclined to the view that forfeiture has
a punitive impact. Black's Legal Dictionary states that 'to forfeit' is 'to lose, or lose the
right to, by some error, fault, offence or crime', 'to incur a penalty.' 'Forfeiture', as
judicially annotated, is 'a punishment annexed by law to some illegal act or negligence.
. . .'; 'something imposed as a punishment for an offence or delinquency.' The word, in
this sense, is frequently associated with the word 'penalty', According to Black's Legal
Dictionary.
The terms 'fine', 'forfeiture' and 'penalty', are often used loosely and even
confusedly; but when a discrimination is made, the word 'penalty' is found to
be generic in its character, including both fine and forfeiture. A 'fine' is a
pecuniary penalty and is commonly (perhaps always) to be collected by suit in
some form. A 'forfeiture' is a penalty by which one loses his rights and interest
in his property.
19. More explicitly, the U. S. Supreme Court has explained the concept of 'forfeiture' in
the context of statutory construction. Chief Justice Taney, in the State of Maryland v.
The Baltimore & Ohio RR Co. 11 Led. 714. observed:
And a provision, as in this case, that the party shall forfeit a particular sum, in
case he does not perform an act required by law, has always, in the
construction of statutes, been regarded not as a contract with the delinquent
party, but as the punishment for an offence. Undoubtedly, in the case of
individuals, the word forfeit is construed to be the language of contract,
because contract is the only mode in which one person can become liable to

MANU/SC/0014/1953
Equivalent Citation: AIR1953SC 375, 20(1954)C LT1(SC ), [1954]1SC R1

Civil Appeals Nos. 71 to 76 of 1953
Appellants:K.C. Gajapati Narayan Deo and Ors.
Vs.
Respondent:The State of Orissa
M. Patanjali Sastri, C.J., B.K. Mukherjea, Ghulam Hasan, N.H. Bhagwati and Sudhi
Ranjan Das, JJ.
Case Note:
Constitution - constitutional validity - Articles 31 (2), 31 (4) and107 of
Constitution of India, Sections 23, 26, 27 and 37 of Orissa Estates Abolition
Act, 1952, Orissa Agricultural Income-tax (Amendment) Act, 1950 and
Section 110 of Code of Civil Procedure, 1908 - appeal before High Court
challenging constitutional validity of Orissa Estates Abolition Act, 1952 (Act) -
appellant firstly contended validity of Orissa Agricultural Income-tax
(Amendment) Act, 1950 claiming it to be colourable legislation as its object
was to reduce income of intermediaries in order to pay them less
compensation and as it was based upon provisions of Bihar Land Reform Act -
secondly that in relation to Madras Estates Land (Amendment) Act, 1947 that
improper delegation of legislative power to Provincial Government and
provision were against Article 14 of Constitution - thirdly that building was
treated as part of gross assets of estates thereby reducing compensation
payable to intermediaries and provisions of Act give no compensation in
relation to kudivaram rights - fourthly that manner of payment of
compensation was invalid - Supreme Court decided that bill receiving assent
of President was protected from ground of non-compliance with provisions of
Article 31 (2) - even if deductions stated in Bihar Act were improper it did not
make Legislation invalid unless it was unrelated to facts upon which it was
based - in relation to Madras Act contention were not relevant as provisions of
Orissa Estates Abolition Act, 1952 relating to computation of gross asset on
basis of rent payable was not illegal - no objection in relation to inadequacy
of compensation on rental basis can be raised in view of provision of Article
31 (4) - Section 37 of Act contained provision regarding form and manner in
which compensation for acquired properties was to be paid and thus it came
within provision of Constitution - Supreme Court overruled all contentions
raised by appellant.
JUDGMENT
B.K. Mukherjea, J.
1 . The six appeals arise out of as many applications, presented to the High Court of
Orissa, under article 226 of the Constitution, by the properties of certain permanently
settled estates within the State of Orissa, challenging the constitutional validity of the

Bill, it is further pointed out, synchronized with a change in the Ministry of the Orissa
State. The original amended bill was introduced by the then Chief Minister, Mr. H. K.
Mahtab, who was in favor of allowing suitable compensation to expropriated zemindars;
but his successor, who introduced the revised bill, was said to be a champion of the
abolition of zemindary rights with little or no compensation to the proprietors. In these
circumstances, the argument of the learned counsel is that the agricultural income-tax
legislation being really not a taxation statute but a mere device for serving another
collateral purpose constitutes a fraud on the Constitution and as such is invalid, either
in its entirety, or at any rate to the extent that it affects the estate abolition scheme. We
have been referred to a number of decisions on this point where the doctrine of
colourable legislation came up for discussion before courts of law; and stress is laid
primarily upon the pronouncement of the majority of this court in the case of (The State
of Bihar v. Maharaja Kameshwar Singh and Others [1955] S.C.R. 889. which held two
provisions of the Bihar Land Reforms Act, namely, sections 4(b) and 23(f) to be
unconstitutional on the ground, among others, that these provisions constituted a fraud
on the Constitution. The fact that the provisions in the amended Agricultural Income-tax
Act were embodied in a separate statute and not expressly made a part of the Abolition
Act itself should not, it is argued, make any difference in principle. As the question is of
some importance and is likely to be debated in similar cases in future, it would be
necessary to examine the precise scope and meaning of what is known ordinarily as the
doctrine of "colourable legislation".
9. It may be made clear at the outset that the doctrine of colourable legislation does not
involve any question of bona fides or mala fides on the part of the legislature. The
whole doctrine resolves itself into the question of competency of a particular legislature
to enact a particular law. If the legislature is competent to pass a particular law, the
motives which impelled it to act are really irrelevant. On the other hand, if the
legislature lacks competency, the question of motive does not arise at all. Whether a
statute is constitutional or not is thus always a question of power (Vide Cooley's
Constitutional Limitations Vol. I, p. 379.). A distinction, however, exists between a
legislature which is legally important like the British Parliament and the laws
promulgated by which could not be challenged on the ground of incompetency, and a
legislature which enjoys only a limited or a qualified jurisdiction. If the Constitution of a
State distributes the legislative powers amongst different bodies, which have to act
within their respective spheres marked out by specific legislative entries, or if there are
limitations on the legislative authority in the shape of fundamental rights, questions do
arise as to whether the legislature in a particular case has or has not, in respect to the
subject-matter of the statute or in the method of enacting it, transgressed the limits of
its constitutional powers. Such transgression may be patent, manifest or direct, but it
may also be disguised, covert and indirect and it is to this latter class of cases that the
expression "colourable legislation" has been applied in certain judicial pronouncements.
The idea conveyed by the expression is that although apparently a legislature in passing
a statute purported to act within the limits of its powers, yet in substance and in reality
it transgressed these powers, the transgression being veiled by what appears, on proper
examination, to be a mere pretense or disguise. As was said by Duff J. in Attorney-
General for Ontario v. Reciprocal Insurers and Others [1924] A.C. 328.),
"Where the law making authority is of a limited or qualified character it may be
necessary to examine with some strictness the substance of the legislation for
the purpose of determining what is that the legislature is really doing."
10. In other words, it is the substance of the Act that is material and not merely the
form or outward appearance, and if the subject-matter in substance is something which

MANU/SC/0014/1980
Equivalent Citation: AIR1980SC 470, 1980(1)APLJ (SC ) 27, [1982]52C ompC as70(SC ), 1980(1)KarLJ193, (1980)2SC C 360, [1980]2SC R913,
1980(12)UJ379

Civil Appeal No. 1991 of 1979
Appellants: Jolly George Varghese and Ors.
Vs.
Respondent: The Bank of Cochin
R.S. Pathak and V.R. Krishna Iyer, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: M.M. Abdul Khader and K.M.K. Nair, Advs
For Respondents/Defendant: K.M. Iyer and V.J. Francis, Advs.
Case Note:
Civil - arrest - Section 51 and Order 21 Rule 37 of CPC, 1908 - whether
contractual liability under Section 51 read with Order 21 Rule 37 can be
enforced by imprisoning judgment debtor without taking into consideration
his bona fide attempt to discharge debt - simple default to discharge is not
enough - element of bad faith beyond mere indifference to pay in form of
some deliberate disposition must be established - Order of arrest made
without considering attitude of refusal to pay on demand is liable to be set
aside.
JUDGMENT
V.R. Krishna Iyer, J.
1. This litigation has secured special leave from us because it involves a profound issue
of constitutional and international law and offers a challenge to the nascent champions
of human rights in India whose politicised pre-occupation has forsaken the civil debtor
whose personal liberty is imperilled by the judicial process itself, thanks to Section 51
(Proviso) and Order 21, Rule 37, Civil Procedure Code. Here is an appeal by judgment-
debtors- the appellants-whose personal freedom is in peril because a court warrant for
arrest and detention in the civil prison is chasing them for non-payment of an amount
due to a bank-the respondent, which has ripened into a decree and has not yet been
discharged. Is such deprivation of liberty illegal?
2. From the perspective of international law the question posed is whether it is right to
enforce a contractual liability by imprisoning a debtor in the teeth of Article 11 of the
International Covenant on Civil and Political Rights. The Article reads:
No one shall be imprisoned merely on the ground of inability to fulfil a
contractual obligation.

abscond or leave the local limits of the jurisdiction of the Court.
(2) Where appearance is not made in obedience to the notice, the Court shall, if
the decree-holder so requires, issue a warrant for the arrest of the judgment-
debtor.
10. Right at the beginning, we may take up the bearing of Article 11 on the law that is
to be applied by an Indian Court when there is a specific provision in the Civil
Procedure Code, authorising detention for non-payment of a decree debt. The Covenant
bans imprisonment merely for not discharging a decree debt. Unless there be some
other vice or mens rea apart from failure to foot the decree, international law frowns on
holding the debtor's person in civil prison, as hostage by the court. India is now a
signatory to this Covenant and Article 51(c) of the Constitution obligates the State to
"foster respect for international law and treaty obligations in the dealings of organised
peoples with one another". Even so, until the municipal law is changed to accommodate
the Covenant what binds the court is the former, not the latter. A.H. Robertson in
"Human Rights- in National and International Law" rightly points out that international
conventional law must go through the process of transformation into the municipal law
before the international treaty can become an internal law. P. 13
11. From the national point of view the national rules alone count.... With regard to
interpretation, however, it is a principle generally recognised in national legal system
that, in the event of doubt, the national rule is to be interpreted in accordance with the
State's international obligations.
12. The position has been spelt out correctly in a Kerala ruling Xavier v. Canara Bank
Ltd. 1969 K.L.T.927 on the same point. In that case, a judgment-debtor was sought to
be detained under Order 21, Rule 37 C.P.C. although he was seventy and had spent
away on his illness the means he once had to pay off the decree. The observations there
made are apposite and may bear excerption:
The last argument which consumed most of the time of the long arguments of
learned Counsel for the appellant is that the International Covenants on Civil
and Political Rights are part of the law of the land and have to be respected by
the Municipal Courts. Article 11, which I have extracted earlier, grants immunity
from imprisonment to indigent but honest judgment- debtors.
The march of civilization has been a story of progressive subordination of
property rights to personal freedom; and a by-product of this subordination
finds noble expression in the declaration that "No one shall be imprisoned
merely on the ground of inability to fulfil a contractual obligation." This
revolutionary change in the regard for the human person is spanned by the
possible shock that a resuscitated Shylock would suffer if a modern Daniel were
to come to judgment when the former asks the pound of flesh from Antonio's
bosom according to the tenor of the bond, by flatly refusing the mayhem on the
debtor, because the inability of an impecunious obligee shall not imperil his
liberty or person under the new dispensation proclaimed by the Universal
Declaration of Human Rights. Viewed in this progressive perspective we may
examine whether there is any conflict between Section 51 CPC and Article 11 of
the International Covenants quoted above. As already indicated by me, this
latter provision only interdicts imprisonment if that is sought solely on the
ground of inability to fulfil the obligation. Section 51 also declares that if the
debtor has no means to pay he cannot be arrested and detained. If he has and

MANU/SC/0375/1998
Equivalent Citation: AIR1998SC 2340, 1998 (33) ALR 714, (1998)3C ompLJ240(SC ), JT1998(4)SC 41, 1998(3)SC ALE602, (1998)6SC C 60,
1986Supp(1)SC C 562B, [1998]3SC R340

W.P. (C) No. 13029 of 1985 (with W.P. Nos. 939/1996 and 95/97)
Appellants: M.C. Mehta
Vs.
Dr. A.S. Anand, B.N. Kirpal and V.N. Khare, JJ.
(ii) Policy - acute environmental problem increasing alarmingly - to fight with

environment-friendly policy to be taken in consonance with principles of sustainable
development.
Case Category:
LETTER PETITION AND PIL MATTER - AIR POLLUTION MATTERS, I.E. INDUSTRIAL,
VEHICULAR, POWER STATIONS ETC.
ORDER
1. This Court has, keeping in view the mandate of Articles 47 & 48A of the Constitution
of India, issued directions from time to time with a view to tackle the problem arising
out of chaotic traffic conditions and vehicular pollution. We are not satisfied with the
performance of the concerned authorities in tackling the acute problem of vehicular
pollution and traffic regulations in Delhi. Environmental protection appears to have
taken a back seat. In fact we are distressed to find that the directions given by this
Court, from time to time, have not evoked the response they were expected to evoke.
When this Court gave those directions it treated it as a legal issue and proceeded to
examine the impact of the right flowing from Article 21 of the Constitution of India viz-
a-viz decline in environmental quality. Law casts an obligation on the State to improve
public health and protect and improve the environment. The directions issued by this
Court were aimed at making the State to effectively discharge their obligations. In their
response the Delhi Administration and the Union of India have pleaded, among other
factors, lack of man power to deal with the growing menace of chaotic traffic and
decline in the environmental quality.
2 . The directions issued by this Court are meant to be complied with and we wish to
emphasise that it is the obligation of the State to comply with the same. On our part,
we are considering the desirability of appointing Court Officers to assist the
administration with a view to ensure compliance of the directions issued by this Court.
Article 144 of the Constitution of India provides "All authorities, civil and judicial, in the
territory of India shall act in aid of the Supreme Court." We have suggested to learned
counsel for the parties to give us a list of persons from every colony/area in each of the

9 Police Districts of Delhi, who may be appointed as such Court Officers and suggest
the manner in which they can assist the administration to carry out its obligations. This
exercise by the Court, we clarify would be with a view to supplement and augment the
efforts of the Delhi Administration and the Union of India to deal with the acute
problem. Let the needful be done in ten weeks.
3. The learned Additional Solicitor General is also directed to have affidavits filed from
the Ministry of Petroleum and Ministry of Surface Transport to disclose the steps taken
for supply of lead free petrol and the use of catalytic converter on the new as well as
existing vehicles so as to use lead free petrol throughout the country. The status report
in this behalf together with the affidavits shall be filed within ten weeks.
4. On 7th January, 1998 a Committee had been constituted under the Chairmanship of
Shri Bhure Lal, known as "Environment Pollution (Prevention and Control) Authority for
the National Capital Region". We have so far not received any report from that
Committee. A direction shall issue to the Committee to submit a report about the action
taken by the Committee for controlling vehicular pollution and the connected matters.
The Committee may also submit a draft action plan to tackle the situation. The needful
shall be done within ten weeks.
5. List the matters after ten weeks. T.N.A. Petition still pending.
© Manupatra Information Solutions Pvt. Ltd.

International Journal of Law

ISSN: 2455-2194
Impact Factor: RJIF 5.12
www.lawjournals.org
Volume 4; Issue 1; January 2018; Page No. 20-22
Judicial contribution in enhancing environmental jurisprudence

Dr. VG Shinde
Assistant Professor, Law College, Osmanabad, Maharashtra, India
Abstract
Healthy environment is need of everyone. It impacts our life in several ways. Therefore, it is our duty to protect environment, the
environmental protection is need of day. Today we witness ecological imbalance, degrading environment, depredated earth,
traumatic subversion of the eco-system, poisoning of air, water and food and technological plunder of resources of nature.
Constitution of India is basic law of land and played very important role in protection of environment. It is observed that, Indian
Constitution contains several provisions which require the State and the citizens to protect environment. Indian judiciary is said to
be the first to show greater concern and due attention to the protection of environment from various pollinations. A perusal of the
thought provoking decisions of various High Court’s as well as the Supreme Court speaks volumes about the significant role
played by the judiciary has opened new aspirations in the arena of environmental protection. Through its activist approach took
initiative in development of environmental Jurisprudence.
Keywords: environmental pollution, protection of environmental, judicial activism, environmental jurisprudence, role of the
judiciary
Introduction has chosen doctrinal method as method of research for the

In India protection of environment is not a new concept but present article and has used books, laws, case laws, journals,
has been prevalence from times immemorial. During ancient research articles for preparation of the same.
times man and environment were said to be inseparable.
Tremendous use of science and technologies have given birth Objectives of the Study
too many problems of the environmental protections. Healthy The main objectives of the research work are:
environment is need of everyone. It impacts our life in several 1. To study the concept of environment justice in detail.
ways. Therefore, it is our duty to protect environment, the 2. To analyze the role of the judiciary in protection of
environmental protection is need of day. Today we witness environment.
ecological imbalance, degrading environment, depredated 3. To find out Constitutional mandate about protection of
earth, traumatic subversion of the eco-system, poisoning of environment.
air, water and food and technological plunder of resources of 4. To study role of judiciary in implementation of
nature. The global community including India facing environmental administration in India.
problems like global warming, cyclones, earthquake, tsunami,
flood, draught, and what not. Air, water, land pollution and Concept of Environment and Pollution
radiation have leads to the contamination of food with In India protection of environment is not a modern concept
chemicals which leads to causes serious diseases to living but has been prevalence from times immemorial. During
beings. Therefore protection of environment shall not be ancient times man and environment were said to be
neglected at the cost of human life and loss of living being inseparable. Environment includes everything on the earth in
from the earth. To meet these challenges to mankind various natural state. It majorly includes soil, stone, water, air, living
measures have been adopted in India. The development of the creatures also. The concept of environment cannot be defined
environmental jurisprudence in India through the innovative precisely. Environment means sum total of all conditions and
judicial decisions of the Supreme Court and High Courts is influences that affects the development of life of all organisms
[1]
probably great inspiration to protection of environment. . According to McLaughtin environmental pollution means
Judiciary played significant role it has opened new aspirations introduction by man into any part of the environment, of
in the arena of environmental protection. Through its activist wastes, water energy or energy or surplus energy which so
approach took initiative in development of environmental changes the environment directly or indirectly adversely to
Jurisprudence affect the opportunity of men to use or enjoy it. Environmental
pollution means the presence in the environment of any
Methodology environmental pollutants [2]. As per section 2 (b) of
The researcher methodology used for the present research Environment (Protection) Act, 1986, environment pollution
article doctrinal research method. As most of the information means any solid, liquid or gaseous substance present in such
can be sought from the available literature, so the researcher concentration as may be or tend to be injurious to
20
environment. In other words it can be also stated as the environment including forests, lakes, rivers and wildlife and to
unfavorable alteration of our surroundings. Environmental have compassion for living creatures [8]
pollution is categorized as air pollution, water pollution, soil In India the law relating to environment has gained significant
pollution etc. The environmental pollution caused due to movement only through the public interest litigation. It is an
industrialization, urbanization and due to natural calamities instrument for seeking administration of justice when there is
also. It is very derogatory for human life and all living beings. gross violation of fundamental rights. There is a the original
jurisdiction of Supreme Court and High Courts under Article
Importance of Environmental Protection 32 and 226 of the Constitution is a remarkable step forward in
There is abundantly use of science and technologies have providing protection for the environment. Courts have
given birth too many problems of the environmental widened the dimensions of the substantive rights to health and
protections. Healthy environment is need of everyone. It a clean and unpolluted environment. In Tarun Bharat Sangh
impacts our life in several ways. Therefore, it is our duty to Alwar v. Union of India [9] a social action group challenged
protect environment, the environmental protection is need of the legality of granting a mining license in the protected area
day. Today we witness ecological imbalance, degrading of a reserved forest. Upholding the contention the Supreme
environment, depredated earth, traumatic subversion of the Court observed that, this litigation should not be treated as the
eco-system, poisoning of air, water and food and usual adversarial litigation. Petitioners are acting in aid of a
technological plunder of resources of nature. The global purpose high on the national agenda. Petitioners concern for
community including India facing problems like global the environment ecology and the wildlife should be shared by
warming, cyclones, earthquake, tsunami, flood, draught, and the government.
what not. Air, water, land pollution and radiation have leads to In M. C Mehta v. Kamal Nath [10] the court held that as a
the contamination of food with chemicals which leads to trustee of all natural resources was under a legal duty to
causes serious diseases to living beings. Therefore protection protect them, and that the resources were meant for public use
of environment shall not be neglected at the cost of human life and could not be transferred to private ownership. The most
and loss of living being from the earth. To meet these remarkable contributions of Judiciary have been adoption of
challenges to mankind various measures have been adopted in sustainable development as a hardcore of environment in
India including legal measures. Many laws have been passed India.
by the Indian Parliament and State legislatures to minimize
problem of environmental pollution. Judicial Contribution in Environmental Jurisprudence
Indian judiciary is said to be the first to show greater concern
Constitutional Mandate and due attention to the protection of environment from
Constitution of India is basic law of land and played very various pollinations. A perusal of the thought provoking
important role in protection of environment. It is observed decisions of various High Court’s as well as the Supreme
that, Indian Constitution contains several provisions which Court speaks volumes about the significant role played by the
require the State and the citizens to protect environment. judiciary has opened new aspirations in the arena of
Though in the Constitution as it stood on 26th Jan, 1950, there environmental protection. Through its activist approach took
was no specific provision for environmental protection, there initiative in development of environmental Jurisprudence.
were other significant provisions, like Article 21 of the
Constitution stated as No person shall be deprived of his life Sustainable Development
or personal liberty except according to procedure established M C Mehta v. Union of India [11] while taking note of the
by law. The state shall make provisions for security just and disastrous effects that the emissions from the Mathura Oil
humane conditions of work and for maternity relief [3]. The Refinery had on the Taj Mahal Supreme Court applied the
State shall regard the rising of the level of nutrition and the principle of sustainable development to the case and apart
standard of living of its people and the improvement of public from passing various directions stepped in to execute and
health as among its primary duties and in particular, the state surprise the resultant actions.
shall endeavor to bring about prohibition of the consumptions
for medicinal purposes of intoxicating drinks and of drugs Right to Live in Pollution Free Environment
which are injurious to health [4]. It shall be obligation of the M C Mehta v. Union of India [12] the Supreme Court treated the
State to protect every monument or place or object of artistic right to live in pollution free environment as a part of
or historic interest, declared by or under law made by fundamental right to life Under Article 21 of the Indian
parliament, to be a national importance, from spoliation, Constitution. Also A. P. High Court in T. Damodar Rao v. S.
disfigurement, destruction, removal, disposal or export, as the O. Municipal Corporation, Hyderabad [13] laid down that right
case may be [5]. to live in healthy environment was specifically declared to be
The Stockholm Declaration of 1972 however resulted in part of Article 21 of the Constitution.
several amendments to the Constitution. 42nd amendment [6]
under directive principles of State policy says that the State Absolute Liability Principle
shall endeavor to protect and improve the environment and to In the M C Mehta v. Union of India (Oleum Gas Leak Case)
safeguard the forests and wild life of the country [7]. There [14]
the principle was adopted to compensate victims caused by
after a new chapter added to the Constitution by the same inherently dangerous industries. Also in Narmada Bacho
amendment act directing to protect and improve the natural Andolan v. Union of India [15] Supreme Court held that, the
21
precautionary principle could not be applied to the decision 2. There must be implement existing legal framework and
for building a dam whose gains and losses were predictable stringent punishments must be provided for violations of
and certain. environmental rules and regulations
3. Guidelines on preventions of industrial pollutions must be
Public Trust Doctrine supervised and monitored by environmental pollution
In case of M C Mehta v. Kamal Nath [16] where in attempt was boards.
made to divert flow of a river for augmentation facilities at a 4. To establish of fast tract courts to tackled problems of
motel, it was held that, State and its instrumentalities as environmental pollution.
trustees have a duty to protect and preserve natural resources 5. There must be required mass education and awareness
also in M I Builders Pvt. Ltd. V. Radhet Shyam Sahu [17] s city environmental pollution
development authority was asked to dismantle an underground 6. It is duty of each country and their citizens to maintain
market built beneath a garden of historical importance ecological balance.
Application of Law of Public Nuisance Conclusion

In Ratlam Municipal Corporation v. Vardihchand [18] Supreme Since primitive society loves environment and environment in
Court made the use of dormant provisions of code of criminal turns nourishes them. Environment and society are thus
procedure 1973 as a potent instrument for resolving pollution interdependent and it is duty of society to protect
problems and for the enforcement of statutory duty. environment. Therefore, In India number of Act enacted by
Parliament for the protection of environment, and effectively
Precautionary Principles interprets by the court of law. Indian judiciary has been very
A. P. Control Board v. M. V. Nayudu and Others [19] in this sensitive and alive to protection of environment. The Supreme
case Supreme Court was called upon to decide a question as to Court has refashioned its institutional role to readily enforce
whether a cashew factory was a polluting unit. The Court rights of the people to clean and healthy environment and
relied upon precautionary principle and explained that the even impose positive obligations on the state. It is not only
principle of precaution involves the anticipation of duty of judiciary to protect the environment, but it is duty of
environmental harm and taking measures to avoid it or to every country and their citizen to protect the environment.
choose least environmentally harmful activity. In Vellore
Citizen’s Welfare Forum v. Union of India [20] the Reference
precautionary principle established that, a lack of information 1. R.P. Anand Law, Science and Environment Ed. 1987 P.
does not justify the absence of management measures. On the xxix
contrary management measures should be established in order 2. U/S 2 (c) of the Environment (Protection) Act,1986
to maintain the conservation of the resources. The 3. Article 43 of the Indian Constitution
assumptions and methods used for the determination of the 4. Article 47 of the Indian Constitution
scientific basis of the management should be presented. 5. Article 49 of the Indian Constitution
6. The Constitution (Forty-second amendment) Act,1976
To Stop Illegal mining hazardous to Environment (which came into force on 03/01/1977)
In the R.L. & E. Kendra and Others v. State of U P [21] 7. Article 48 A of the Indian Constitution
(Popularly known as Dehradun Quarrying Case) the Supreme 8. Article 51 (a) (g) of the Indian Constitution
Court complained about the illegal / unauthorized miming in 9. AIR 1992 SC 514
the Missouri, Dehradun belt. As a result the ecology of the 10. (1999) 1 SSC 702
surrounding area was adversely affected and it leads to the 11. AIR 1997 SC 734
environmental disorder. The Supreme Court treated the letter 12. AIR 1987 SC 1086
as a writ petition under Article 32 of the Constitution and 13. AIR 1987 A. P 171
directed to stop the excavation (illegal mining). 14. AIR 1987 SC 1086
15. AIR 2000 SC 375
Polluter pays Principles 16. (1996) 1 SCC 38
The main object of this principle is to make the polluter liable 17. AIR 1996 SC 2468
for the compensation to the victims. In Vellore Citizen’s 18. AIR 1980 SC 1622
Welfare Forum v. Union of India [22] the Court held that, 19. AIR 1999 SC 812
precautionary principle and the polluter pays principle are part 20. AIR 1996 SC 2718
of environmental law of the country. 21. AIR 1988 SC 2187
22. AIR 1996 SC 2718
Suggestions
After analysis of need and importance of environmental
protection and judicial contribution in environmental
protection the author would like to recommended following
suggestions
1. It is essential things that, all Government must be an
effective implementation plan and monitory mechanisms.
22
International Journal of Pure and Applied Mathematics
Volume 120 No. 5 2018, 2161-2172
ISSN: 1314-3395 (on-line version)
url: http://www.acadpubl.eu/hub/
Special Issue
http://www.acadpubl.eu/hub/
ENVIRONMENTAL PROTECTION AND CONSTITUTIONAL

REMEDIES
1
SRIMONISHA
1
Student,3rd Year, BBA.LL.B.,Saveetha School Of Law, Saveetha Institute Of Medical And
Technical Sciences,Saveetha University Chennai- 77,Tamilnadu,India.
2
R. DHIVYA
2
Asst.Prof Of Law, Saveetha School Of Law, Saveetha Institute Of Medical And Technical Sciences
,Saveetha University , Chennai- 77,Tamilnadu,India.
1
babulu796@gmail.com , 2divyar.ssl@saveetha.com
Abstract
Our constitution is not an inert but has grown and evolved over the years. In the
Indian scenario, environment protection, hasn‟t been raised only to the status of fundamental
law of the land, but it has been webbed with human rights approach and is now taken into
account as a well-established fact that it is the basic human right of all individual, to live in a
pollution less environment with a complete human dignity. The fundamental duties imposes
a duty on all the citizens to protect the environment. The Directive principles further are
directed towards the ideals of building a welfare state. Healthy environment is one of the
most essential element of a welfare state. Article 47 states that the State shall regard to the
raising of the level of nutrition and the enrichment of the standard of living of its people and
the improvement of public health which includes the protection and improvement of
environment as a part of their primary duties. Article 48-A of the constitution states that the
state shall endeavour to protect and improve the environment and to safeguard the forests and
wild life of the country. Part III guarantees fundamental rights which are essential for the
development of an individual. The paper meticulously deals in the remedies under Article 36
and 226 and also forms a notion for al the readers that knowledge of these provisions is very
essential to bring greater public participation, environmental awareness amongst the masses.
2161
International Journal of Pure and Applied Mathematics Special Issue
Keywords: environment, fundamental duties, protection, public health, awareness

Introduction
Environment is the wellbeing of life on earth like water, air and soil. It also determines the
presence, of development and improvement of humanity and all the human activities. The
concept of ecological protection and preservation is never a new concept . It has been rooted
to many ancient civilizations. Ancient texts highlights that it is dharma of each individual in
the society is to protect nature and the very 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 these I dig out let that quickly grow over”.3 In India, the concern for
environmental protection has not only raised the status of fundamental law of the land, but
also wedded along with human rights approach and it is well established that, it has become
the basic human right of all individual to live in pollution free environment with full human
dignity. In view of all the constitutional provisions and other statutory provisions contained in
various laws in relation to environment protection, the Supreme Court has held that the
essential feature of “sustainable development” such as the “precautionary principle” and the
“polluter pays principle” are part of the environmental law of the country.(Friends of the
Earth 1972)4 Moreover, according to the Indian pattern of legislature to make numerous
legislations as opposed to addressing the reason for failure and disappointment, and passing
new bills consistently is a well known thing . Therefore, there arises a need for a
comprehensive analysis of the protection of the environment. When our constitution was
drafted, initially it did not contain any specific provisions for environment and even the word
“Environment” did not find any place in the constitution, there are certain provisions which
has direct bearing on the environment such as improvement of public health , organisation of
agricultural and animal husbandry on modern and scientific lines disfigurement and
protection of natural monuments from spoliation and disfigurement5. The way to environment
for protections and many constitutional remedies took place with the international treaties
that India has signed into. The Helsinki conference sowed seeds for the need of laws and
statutory bodies for environmental protection. The judicial intervention in many cases have
made an important role in the interpretation of various provisions of constitution to address
3
MC Mehta, GROWTH OF ENVIRONMENTAL JURISPRUDENCE IN INDIA, p.71, 1999.
4
Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647 at 659-660.
5
Article 49 “It shall be the obligation of the State to protect every monument or place or object of
artistic or historic interest, declared by or under law made by Parliament to be of national importance,
from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be”.
2162
the importance of pollution free environment to the citizens. India was a contracting party by
ratifying treaties.
Aim of the study :

To recognise the remedies available in our constitution.
OBJECTIVE
● To know the constitutional provisions available for environmental protection
● To analyse the different statues such as the environmental act,water act, air act.
● To understand the tortious and strict liability
RESEARCH METHODOLOGY
The data used in this non-empirical study is the secondary data for analysis and the
information was collected through online articles, journals, government reports and various
websites.
LIMITATIONS OF THE STUDY

● The paper is restricted to a secondary means of research, conducted only by means of
internet sources and the books.
● A primary way of research could not be adopted for the same due to the nature of the
topic
International agreements
The objectives of all the international agreements can be achieved only if all of the relevant
countries become parties to the treaties. India is a signatory to most of the international
treaties and the agreements relating to its regional and sometimes even to all the
environmental issues globally. India has played a vital role since 1972 UN Conference on
Human Environment at Stockholm (conference) in 1992 UN Conference on Environment and
Development at Rio de Janerio and also in the Earth summit Plus 5 of 1997 at New
York.(United Nations 1993) India is therefore under an obligation to translate and transform
the contents and decisions of all the international conferences, treaties & agreements into the
stream of its national laws. Article 51 (c) states that “the state shall endeavour to force respect
2163
for international law and treaty obligations in the dealings of organised people and organised
countries with one another.” Article 253 of the Constitution enables the parliament “to make
any laws for the whole or any part of the territory of India inorder to implement any treaty,
agreement or convention with any other country or countries or any decision made by any
international conference, association or other body.”(B. and Sreya 2013) Entries number 13
and 14 of the Union list includes items on which parliament can make laws and provides
“participation in international conferences, associations and other bodies implementing the
decisions made there at.”6and “entering into any treaty and agreement with any foreign
countries and implementing of treaties, agreements and conventions with foreign
countries.”7 Thus, Article 253 is read along with entries 13 & 14 of the Union list, we can
conclude that the parliament can pass or make any law inclusive of laws on environmental
protection and the it cannot be challenged before the courts on the ground that the Parliament
lacks legislative competency to do.8These provisions served as a potent weapons in the
armoury of the courts to uphold any parliamentary legislation if its of pursuance of Article
253 read with entries 13 & 14 of the Union list. The Parliament has made use of its power to
enact Air (Prevention and Control of Pollution) Act, 1981 and Environment (Protection) Act,
1986.( 1999) Preambles of both the laws clearly indicate that that these laws were enacted to
implement the decisions reached out at the United Nations Conference on Human
Environment held at Stockholm in 1972.(Friends of the Earth 1972)
Legislation
Under the Indian system, governmental powers are divided between the Union government
and the State government. Part XI of the Constitution governs the legislative and the
administrative relations between the union and the states. Parliament is entitled with the
power to legislate for the entire country, and the State Legislatures are empowered to enforce
laws for their respective states.
Article 246 of the Constitution splits the matters of concern between legislation, the union
and the states.9 The union list (List I) in the VII schedule to the Constitution contains subjects
over which parliament has absolute powers to legislate . (Bhatia 2001)This also includes
6
Entry No.13 of the Union List in the VII Schedule to the Constitution.
7
Entry No.14 of the Union List in the VII Schedule to the Constitution.
8
P.S. Jaswal and Nishtha Jaswal, Environmental Law, 39-40 (Allahabad Law Agency, Haryana, 3 Edn., 2009).
9
Article 246
(1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), parliament has exclusive power to make laws.
2164
defence, foreign affairs, atomic energy, inter-state transportation etc . The state legislature has
got absolute powers to legislate on the state list (List II) in matters like sanitation, public
health, agriculture etc. The concurrent list is where both the union and states has divided
powers in making laws in matters such as protection of wildlife, factories, mines etc. The
parliament is also empowered to legislate in the „national interest‟ on matters
enumerated in the State List.10 Thus the Water (prevention and pollution)Act was enacted by
the parliament in the year 1974.11When any project is proposed by the states if it has impact
on the environment the centre has the power to disprove such projects.This has often led to a
conflict between the state and the centre. This conflict is resolved by the Environmental
Impact Assessment (EIA) which has to make an effort to anticipate measures and weigh the
socio-economic and ecosystem changes as well as the positive and negative impact it has on
environment as a result of the proposed project. This EIA was recognised in the seventh five
year plan. (Manoj and Prasannakumar 2002)
Fundamental duties
The 42nd Amendment in 1976 added a new part IV- A that deals with Fundamental Duties in
the Constitution of India. Article 51-A of this part have enlisted 11 fundamental duties. This
part was added on the recommendations made by the Swarn Singh Committee with the
efforts in bringing the Constitution of India in line with Article 29(1) of the Universal
Declaration of Human Rights. The intention behind it was to make the citizens and the State
to shoulder their responsibilities to protect the Constitutional order as their moral duty.Rights
and duties are very important elements of Law. They correlated to each other in such a way
that one cannot be conceived without the other.
A right is always against someone upon whom they correlative duty is imposed.12 (Manoj and
Prasannakumar 2002; Kumar 2012)Article 51-A (g) specifically denotes the fundamental
duties with respect to environment that: “It shall be the duty of every citizen of India to
protect and improve the natural environment including forests, lakes, rivers and Wildlife and
to have compassion for living creatures”. The interrelationship between Articles 48, 48-A and
10
Article 249 Power of Parliament to legislate with respect to a matter in the State List in the national interest
(1) Notwithstanding anything in the foregoing provisions of this Chapter
11
Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India, 43 (Oxford University Press
New Delhi 2nd Edn 2003)
12 st
Dr.Sukanta K.Nanda, Environmental Law, 78 (Central Law Publication: Allahabad, 1 edn 2001)
2165
51-A (g) of the constitution has been explained by the Supreme Court in the State of Gujarat
v. Mirzapur Moti Kureshi Kassab Jamat.13
In L. K. Koolwal v. State of Rajasthan and Ors14 High Court held that under Article 226 and
highlighted that, Municipality had failed to discharge its “primary duty” resulting in the
sanitation problem in Jaipur which is very hazardous and imposes a threat to life of the
citizens of Jaipur. The Court explained the scope of Article 51-A “We can call Article 51-A
ordinarily as the duty of the citizens, but it is in fact that it is the right of the citizens as it
creates the right in favour of citizens to move to the court to see whether the State performs
its duties faithfully or not as well as the obligatory and primary duties are performed in
accordance with the law of the land. Omissions are brought to the notice of the court by the
citizens and thus , Article 51-A gives right to the citizens to move the court for the
enforcement of the duty caste on the state, instrumentalities, agencies, departments, local
bodies and statutory authorities created under the particular law of the state.(Agrawal and
Singh 2016)
15
In Goa Foundation v. State of Goa The question of locus standi was examined by the
within the premises of the fundamental duties under the constitution of India. In this case the
petitioner was a society registered under the law relating to registration of societies and their
members were citizens of India having fundamental duty under Article 51-A to protect and
improve the natural environment including forests, lakes, rivers and wildlife and to have
compassion for living creatures. The question before the Court was that whether such a
society has also got the same duty.
The Court gave answer to the question in an affirmative and held that such a society has
same duty. On the basis of this the petitioner society was able to have a locus standi to move
to Court in order to prevent ecological degradation, and to formulate and implement the
programme for rehabilitation of environment and to restore ecological balance. The state has
also got certain duties to be performed towards environmental protection it was held, In
Hamid Khan v. State of Madhya Pradesh16 negligence on part of the state government in not
taking necessary measures for treatment of water ,before supplying drinking water from
13
AIR (2005) 8 SCC 534
14
AIR 1988 Raj 2.
15
AIR 2001 Bom 318 at 319
16
AIR 1997 MP 191.
2166
hand-pumps has resulted in colossal damage to the people, the Court held that the State
responsible and has failed to perform its primary responsibility.(Fredericks 1988)
With the aim of providing better protection to the environment, the Constitution was
amended in the year 1976 and Article 48-A was inserted to the Constitution which reads:
“The State shall endeavour to protect and improve the environment and safeguard the forests
and wild life of the country”.This Article uses the word „Environment‟ in a wider meaning
which affects all the living being including flora and fauna and influences the conditions of
their lives. Water and air are among the most essential factors which support the life of the
citizens. Many evolutionary years have passed and the society is still dependant on water and
it will continue to do, thus proving the necessity and its vitality for the existence of the
mankind. Hence, it becomes the utmost duty and responsibility of the State to protect the
water and all the water resources within whole environment from all the activities. So if we
interpret the Article, this imposes a need for the state to adopt protection policy for the
improvement of the environment.
Right to live in a healthy environment
The right to live in healthy environment as a part of Article 21 was witnessed in

the case of Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P.17 A group of
citizens wrote to the Supreme Court against the mining which deprives the Mussoori Hills of
trees and the forest cover and accelerated soil erosion that was resulting in landslides and
blockage of the underground water channels which had fed a number of rivers and springs in
the valley. The Court considered this letter as writ petition under Article 32 of the
Constitution. In the first place the Court had appointed an expert committee in order to advise
the bench on any technical issues arising. On the basis of the report of the committee, the
Court has ordered the closure of the lime- stone quarries damaging the Mussoorie hills. The
court stated that , the disturbance of ecology and pollution of water, air and environment by
quarrying operation indeed affects the life of the person and thus involves the violation of
right to life and personal liberty under Article-21 of the Constitution. Article 21 guarantees
the right to life, a life of dignity, to be lived in a proper environment, free of danger of disease
17
AIR 1985 SC 652 (popularly known as Doon Valley Case)
2167
and infection. It is a important fact that there exists a close link between life and environment.
Right to life would become meaningless ,if there is no healthy environment.18
Sterility Industries lets Vs Union of India and Ors.19 There was a huge agitation of the people
Tamil Nadu recently where they demanded the closure of sterlite copper smelting plants in
Thoothukudi. The plant had created tremendous impact on the health of the public by air and
water pollution it has caused over the years. There was an increase of diseases like cancer,
asthma etc. The court held that closure of these plants because under Article 21 right to clean
environment is a right guaranteed under this article.
In M.C.Mehta vs Union of India.Ors.20 The principles where laid down for any approval of
environmental clearance. The principles involved the water act and the air act I order to make
a clearance, authorities must consider all these factors while approving a project.
Judicial remedies
There are two kinds of remedies available for environmental protection in India they are
statutory law and torturous remedies. Writ petition can also be filed under Article 32 in
Supreme Court and Article 226 in the High Court.
Tortious liability
● Damage
The polluter pay principle was used in the judgment of the M.C Mehta oleum gas case. The
principle is derived from Ancient Greek philosophy where the one who spoils the water
intentionally will have to compensate the damages as well as pay to clean the stream. In the
Oleum gas case the court gave judgement that the polluters liability or compensation would
depend on their ability to pay, thus by applying this principle the defender is made both to
clean up the pollution caused as well to punish the polluter.
18
P.S. Jaswal and Nishtha Jaswal, Environmental Law, 48 (Allahabad Law Agency: Haryana, 3rd Edn 2009)
19
Sterlite Industries vs Union of India Ors[(2009) 6 SCC 141]
20
M.C.Mehta vs Union of India Ors.[(1996) 5 SCC 647]
2168
● Injunction
It is the order of the court to stop the work temporarily or permanently if in case of any
environmental damage. It also includes closure of any Industry that causes environmental
problems. It is done to prevent the happenings of continuous wrong.
● Nuisance : It is of two types where public nuisance and private nuisance. It is usually
a hindrance of enjoyment of the inherent rights. Anything that causes hindrance to the
citizens of India from enjoying their right to clean air and water is also nuisance.
Strict liability
In the case Rylands v. Fletcher by Blackburn J. If any person holds any item that is likely to
be of mischief he will take the responsibility of the damages it causes if once it is escaped.
The doctrine of strict liability has considerable utility in environmental pollution cases
especially cases dealing with the harm caused by the leakage of hazardous substances.(Sebert
1966)
Recommendations
There are various measures that have been taken by the government to protect and prevent
environmental pollution. But how far it is effective remains a big question mark. Thus there
should be more stringent measures that has to be taken to control pollution. The state
government plays a vital role in the part of protecting environment. All the state governments
should adopt a lot of schemes to make our environment a better place to live in. It is
individuals rights o live in pollution free environment with full human dignity. In view of all
the constitutional provisions and other statutory provisions contained in various laws in
relation to environment protection, the Supreme Court has held that the essential feature of
“sustainable development” such as the “precautionary principle” and the “polluter pays
principle” are part of the environmental law of the country. Moreover, according to the Indian
pattern of legislature to make numerous legislations as opposed to addressing the reason for
failure and disappointment, and passing new bills consistently is a well known thing .
2169
THE “RIGHT” RIGHT TO
ENVIRONMENTAL PROTECTION:
WHAT WE CAN DISCERN FROM THE
AMERICAN AND INDIAN
CONSTITUTIONAL EXPERIENCE
Deepa Badrinarayana*
INTRODUCTION .......................................................................... 76
I. ENVIRONMENTAL PROTECTION AND THE U.S.
CONSTITUTION .......................................................................... 83
A. Understanding the Environmental Justice Problem ....... 83
B. Constitutional Law and Environmental Justice ............. 86
II. ENVIRONMENTAL PROTECTION AND THE INDIAN
CONSTITUTION .......................................................................... 96
A. Constitutional Law and Environmental Protection in
India...................................................................................... 97
1. The Supreme Court’s Interpretation of Constitutional
Provisions on Standing and Right to Life ......................... 97
2. Articles 32 and 21 and Environmental Protection ..... 100
* Professor of Law, Chapman University Fowler School of Law. I am in-

debted to Thomas J. Campbell, Daniel Farber, Michael Faure, and Jacqueline
Peel for their valuable comments. I would like to thank participants at the
following events for their invaluable comments and suggestions: 2017 Annual
Meeting of the Association for the Study of Law, Culture, and Humanities at
Stanford Law School; 2016 Annual Colloquium on Environmental Scholarship
at Vermont Law School; 2016 Symposium on Transnational Problems, Univer-
sity of Iowa School of Law; 2016 COTES Workshop at Chapman University
Fowler School of Law; 2016 South Asian Legal Academics (SALA) Workshop;
and 2016 Annual LatCRIT, particularly Carmen Gonzalez. Thanks also to
Dean Donald Kochan for brainstorming the idea with me and to Fowler School
of Law Chapman University for providing funding. I am indebted to Sherry
Leysen and her team at the Hugh & Hazel Darling Law Library for their in-
credible research support. Thanks also are owed to the editors of the Brooklyn
Journal of International Law, particularly to Ms. Jessica Martin, for their
painstaking editing. Any shortcomings in the article are all my own.
Electronic copy available at: https://ssrn.com/abstract=3103440

80 BROOK. J. INT’L L. [Vol. 43:1
waste disposal in New Delhi.15 Also, because the right to life in

both the Indian and the U.S. Constitutions is a negative right, it
can be limited by due process of law. Thus, a constitutional right
to environmental protection, as part of a right to life alone, is not
adequate and will not address the environmental injustice prob-
lem. Thus, what should be the “right” right to environmental
protection?
The American and Indian experiences, in framing environ-
mental protection as a constitutional right, provide valuable les-
sons for mapping the critical components of a right to environ-
mental protection. America’s experience with the environmental
justice movement demonstrates that even robust environmental
protection laws may not protect all individual rights equally.
The Indian experience, on the other hand, demonstrates that
failure of the legislative and executive branches can be some-
what counteracted by judicial intervention. It also shows that
symbolic and creative interpretation can promote meaningful
protection of fundamental constitutional rights. Therefore, an
effective right to environmental protection should incorporate
and/or supplement at least the following three rights: 1) the
right to life, 2) the right to equal protection under environmental
laws, and 3) the right to judicial review and access to courts.
While normatively desirable, these rights need not be articu-
lated in the Constitution, as constitutional amendments or ex-
pansive interpretation of constitutional provisions could present
practical difficulties. In the United States, any change to the
Constitution would require a constitutional amendment, which,
under Article V,16 requires a supermajority vote of the legislative
branch, making constitutional amendments extremely diffi-
cult.17 Given the history of the judiciary’s interpretation of the
Equal Protection Clause, it is unlikely that the U.S. Supreme
Court will interpret it to redress unequal protection under envi-
ronmental laws, nor is it likely that the U.S. Supreme Court will
recognize a right to healthy environmental protection under the
15. See infra Section III.B.

16. U.S. CONST. art. V.
17. JEB RUBENFELD, FREEDOM AND TIME 175 (2001) (noting that Article V’s
super-majoritarian vote requirement to amend the Constitution “creates a pro-
cess very difficult to negotiate.”).
MANU/SC/0032/2020
Equivalent Citation: 2020(1)ALT251, 2020(10)FLT438

IA Nos. 158128 and 158129 of 2019 in Writ Petition (C) No. 13029 of 1985 (Under
Article 32 of the Constitution of India)
Appellants: M.C. Mehta
Vs.
Arun Mishra and Deepak Gupta, JJ.
Counsels:
For Appearing Parties: Harish Salve, Aparajita Singh, Sr. Advs., A.D.N. Rao, Siddhartha
Chowdhury, Advs. (A.Cs.), Atmaram N.S. Nadkarni, Pinky Anand, ASGs, Aishwarya
Bhati, Siddharth Dave, P.S. Narasimha, Anitha Shenoy, Gopal Jain, Abhishek Manu
Singhvi, Gopal Sankaranarayanan, Sr. Advs., D.L. Chidananda, Rajesh Kumar Singh,
Suhasini Sen, Salvador Santosh Rebello, Vijay Prakash, Gurmeet Singh Makker, Anil
Katiyar, Sanjay Kumar Visen, Rajeev Kumar Dubey, Kamlendra Mishra, Nithin P., Vijay
Panjwani, Ruchi Kohli, Vibhu Shankar Mishra, Snidha Mehra, B.V. Balaram Das, Chirag
M. Shroff, Riya Thomas, Yashika Verma, Devendra Kumar Singh, Rajesh Katyal, Baldev
Attrey, Karunakar Mahalik, Ajay Bansal, Praveen Swarup, Lokender Kumar, Gaurava
Yadava, Archana Sharma, Advs., S. Narain and Co., Uttara Babbar, Bhavana Duhoon,
Manan Bansal, Sindoora V.N.L., Rahul G. Tanwani, Aditi Tripathi, Kanti, Srishti Agnihotri,
Sharon Mathew, Sumit Gupta, Madhu Smita, Astha Tyagi, Rohit K. Singh, S.K.
Bhattacharya, Bimal Roy Jad, Saurav Agrawal, Anshuman Chowdhury, Vibhu Anshuman,
Sanjeet Singh, Gayatri Verma, Anish Sethi, Surjeet Singh, Sneha Z. Masan, Senthil
Jagadeesan, Shrutanjaya Bhadwaj, Divya Roy, R.D. Upadhyay, Ajit Pudussery, Palak
Mishra, Prashant Bexboruah, Munawwar Naseem, Bina Gupta, Gaurav Juneja, Dibranshu,
Aayush Jain, Sanjeev K. Kapoor, Advs., Khaitan and Co. and Party-in-Person
Case Category:
LETTER PETITION AND PIL MATTER - AIR POLLUTION MATTERS, I.E. INDUSTRIAL,
VEHICULAR, POWER STATIONS ETC.
Case Note:
Environment - Pollution - Steps to combat - Present matter was relating to
environment pollution caused by various factor and failure of Government to
prepare a proper scheme - Whether necessary directions were liable to be
issued in view of affidavits filed by Governments.
Facts:
The matter pertains to the environment pollution. Not only the air pollution is
being caused unabettingly, but we are also faced with the pollution of rivers
in the country. With respect to the pollution been caused in Delhi and NCR,
this Court while considering IA No. 127792 of 2017 has passed various orders
and disposed of the application dated 29th January, 2018 and while taking up

Directions/order to be effective unless otherwise ordered.
List on 06.11.2019 at 3.30 P.M.
2 . It was noted by this Court that there is a blatant violation of Article 21 of the
Constitution i.e., Right to Life by the serious kind of pollution which is being caused by
various factors including stubble burning. The stubble burning in the month of
October/November comprises approximately 40% of the pollution, but for the remaining
period, stubble burning is not the cause of pollution in Delhi and NCR region. It was
noted by this Court that various other factors which were responsible for causing
pollution are as under:
1. Construction and demolition activities.
2. Open dumping of waste/garbage.
3. Unpaved roads/pits.
4. Road dust.
5. Garbage burning.
6. Traffic congestion.
3 . Various hot-spots in Delhi and NCR regions were identified as noted in the report.
This Court has noted the problem of farmers in stubble burning as short gap between
two crops due to which agriculturists indulge in stubble burning. We have seen the
satellite images of Punjab where stubble burning was more as compared to Haryana and
Western Uttar Pradesh from the records of the previous years.
4. We have observed that the entire machinery involved in the administration has to be
held responsible for such a tortious act. Particularly, in view of the fact that this
problem is not new and is continuing since long, and the authorities have not been able
to find a solution, every year, hue and cry is raised. The same reflects badly on the
administration, its lethargy is writ large by not taking appropriate action timely and
preparing a scheme for its prevention.
5. In the circumstances, we have issued directions to the Chief Secretaries of the States
of Rajasthan, Haryana, Punjab, and NCT of Delhi. This Court has also issued directions
to all the authorities including panchayats and concerned administrative authorities to
ensure that stubble burning does not take place. Other directions were also issued to be
taken care of by the Environmental Pollution (Prevention and Control) Authority (EPCA).
Considering the precarious situation, we also restrained demolition and construction
activities for the time being and directed the Municipal Authorities, Zonal
Commissioners and Deputy Zonal Commissioners to take care of the situation.
6. Some learned Counsels have pointed out the fallacy of the odd-even scheme also as
this was applied to the cars which are contributing to three percent of the pollution and
also 28% caused by the vehicular pollution and then approximately 50% cars operate in
Delhi even on those days having odd or even numbers. Thus, it was pointed out that it
was not the solution. We have called for certain data in this regard also.
7 . The matter was taken on 6.11.2019 by this Court. We have heard the Chief
Secretaries of various States, including the Attorney General and passed the following
order:

MANU/SC/0697/2013
Equivalent Citation: 2013XI AD (S.C .) 511, 2013(4) AKR 295, 2013(8)SC ALE629, (2013)8SC C 418

Civil Appeal No. 4823 of 2013 (Arising out of SLP (C) No. 20180 of 2010)
Appellants: K. Guruprasad Rao
Vs.
Respondent: State of Karnataka and Ors.
G.S. Singhvi and Ranjana Prakash Desai, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Uday Umesh Lalit, Sr. Adv., G.V. Chandrashekar, N.K.
Verma, Sandeep Narain, Balaji Srinivasan, Jaikriti S. Jadeja, A.D.N. Rao, Anitha Shenoy,
Kiran Suri, S.J. Amith, Nakibur Rahman Barbhuiya, Ranjana Narayan, Gaurav Sharma,
S.K. Kulkarni and Ankur S. Kulkarni, Advs.
Case Note:
Civil - Preservation and protection of ancient and historical monuments -
Ancient Monuments and Archaeological Sites and Remains Act, 1958 (1958
Act); Ancient Monuments and Archaeological Sites and Remains Rules, 1959
(1959 Rules); Karnataka Ancient and Historical Monuments and
Archaeological Sites and Remains Act, 1961 (Karnataka Act); Rules 11 to 15
of Karnataka Ancient and Historical Monuments and Archaeological Sites and
Remains Rules, 1966 (Karnataka Rules); Mines and Minerals (Development
and Regulation) Act, 1957 (1957 Act) - Appellant filed a writ Petition and
prayed for cancellation of mining lease granted to Respondent No. 4 and for
issue of a mandamus to official Respondents to stop mining activity within
one kilometer from temple - He further prayed for issue of a direction to
Respondent No. 9 to take steps for restoration of temple to its original state -
High Court dismissed writ Petition without dealing with any of issue raised by
Appellant - Hence, present Appeal - Whether certain restriction should be
imposed as recommended by Committee appointed by Court (Committee) -
Held, report submitted by Respondent No. 9 showed that extensive damage
caused to temple and its surroundings due to blasting carried out by
leaseholders - Mining operations/activities in vicinity of ancient and historical
monuments and archaeological sites were governed by 1958 Act and similar
enactments made by State Legislatures including Karnataka Act - 1959 Rules
and Karnataka Rules provided for grant of permission licence in prescribed
form to undertake any mining operations in a protected and/or regulated area
- Private Respondents having not obtained such licence under Rules 11 to 15
of Karnataka Rules, for permission to undertake mining operations within
prohibited and/or regulated area, could not be allowed to operate mines in
protected and/or regulated area - Committee unanimously agreed that mining
operations carried out using blasting operations at a distance of less than 200
meters from temple had already caused irreparable damage to temple and
eco-environs of its immediate neighbourhood - Detailed reasons recorded by
Committee for not accepting recommendations of expert bodies about

(1996) 5 SCC 281, this Court described the principle of sustainable development in the
following words:
While economic development should not be allowed to take place at the cost of
ecology or by causing widespread environment destruction and violation; at the
same time the necessity to preserve ecology and environment should not
hamper economic and other developments. Both development and environment
must go hand in hand, in other words, there should not be development at the
cost of environment and vice versa, but there should be development while
taking due care and ensuring the protection of environment.
72. In Vellore Citizens' Welfare Forum v. Union of India MANU/SC/0686/1996 : (1996)
5 SCC 647, this Court acknowledged that the traditional notion of conflict between
ecology and development is no longer acceptable and sustainable development is the
answer.
7 3 . In Essar Oil Ltd. v. Halar Utkarsh Samiti (supra) this Court referred to the
Stockholm Declaration and observed:
This, therefore, is the aim, namely, to balance economic and social needs on
the one hand with environmental considerations on the other. But in a sense all
development is an environmental threat. Indeed, the very existence of humanity
and the rapid increase in the population together with consequential demands
to sustain the population has resulted in the concreting of open lands, cutting
down of forests, the filling up of lakes and pollution of water resources and the
very air which we breathe. However, there need not necessarily be a deadlock
between development on the one hand and the environment on the other. The
objective of all laws on environment should be to create harmony between the
two since neither one can be sacrificed at the altar of the other.
74. We may now notice some of the judgments which have bearing on the scope of the
Court's power to issue directions but which may appear to be contrary to the statutes
operating in the particular field. In Bandhua Mukti Morcha v. Union of India
MANU/SC/0051/1983 : (1984) 3 SCC 161, this Court considered whether a letter
addressed to a Judge of this Court could be treated as a writ petition under Article 32 of
the Constitution and whether directions could be issued for release of an indeterminate
number of citizens who were held as bonded labourers. While dealing with the scope of
Article 32 of the Constitution, this Court observed:
...It will be seen that the power conferred by Clause (2) of Article 32 is in the
widest terms. It is not confined to issuing the high prerogative writs of habeas
corpus, mandamus, prohibition, certiorari and quo warranto, which are hedged
in by strict conditions differing from one writ to another and which to quote the
words spoken by Lord Atkin in United Australia Limited v. Barclays Bank Ltd.
1941 AC 1 : (1939) 2 KB 53 in another context often "stand in the path of
justice clanking their mediaeval chains". But it is much wider and includes
within its matrix, power to issue any directions, orders or writs which may be
appropriate for enforcement of the fundamental right in question and this is
made amply clear by the inclusive clause which refers to in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is not
only the high prerogative writs of mandamus, habeas corpus, prohibition, quo
warranto and certiorari which can be issued by the Supreme Court but also
writs in the nature of these high prerogative writs and therefore even if the

immediate effect. The NEERI has also suggested the development plan
and the type of trees to be planted. We direct the Chief Conservator of
Forests, Haryana, District Forest Officer, Faridabad and all other
officers concerned of the Forest Department to start the plantation of
trees for developing the green belts and make all efforts to complete
the plantations of trees before the monsoons (1996).
3 . We direct the Director, Mining and Geology, Haryana, the Haryana
Pollution Control Board to enforce all the recommendations of NEERI
contained in para 6.1 of its report (quoted above) so far as the mining
operations in the State of Haryana are concerned. All the mine-
operators shall be given notices to implement the said
recommendations. Failure to comply with the recommendations may
result in the closure of the mining operations.
4. We further direct that no construction of any type shall be permitted
now onwards within 5 km radius of the Badkal lake and Surajkund. All
open areas shall be converted into green belts.
5 . The mining leases within the area from 2 km to 5 km radius shall
not be renewed without obtaining prior "no objection" certificate from
the Haryana Pollution Control Board as also from the Central Pollution
Control Board. Unless both the Boards grant no objection certificate the
mining leases in the said area shall not be renewed.
79. In M.C. Mehta (Taj Trapezium Matter) v. Union of India : (1997) 2 SCC 353, this
Court considered whether the foundries, chemical-hazardous industries and the refinery
at Mathura should be closed down because they were threat to the very existence of Taj
Mahal. In the course of judgment. The Court referred to the reports of various expert
bodies including NEERI and the Central Pollution Control Board which unequivocally
pointed out the damage caused to the monument by the industries and proceeded to
order closure of industries, which were not in a position to make change over to the
natural gas by recording the following observations:
The Taj, apart from being a cultural heritage, is an industry by itself. More than
two million tourists visit the Taj every year. It is a source of revenue for the
country. This Court has monitored this petition for over three years with the
sole object of preserving and protecting the Taj from deterioration and damage
due to atmospheric and environmental pollution. It cannot be disputed that the
use of coke/coal by the industries emits pollution in the ambient air. The
objective behind this litigation is to stop the pollution while encouraging
development of industry. The old concept that development and ecology cannot
go together is no longer acceptable. Sustainable development is the answer.
The development of industry is essential for the economy of the country, but at
the same time the environment and the ecosystems have to be protected. The
pollution created as a consequence of development must be commensurate with
the carrying capacity of our ecosystems.
Based on the reports of various technical authorities mentioned in this
judgment, we have already reached the finding that the emissions generated by
the coke/coal consuming industries are air pollutants and have damaging effect
on the Taj and the people living in the TTZ. The atmospheric pollution in TTZ
has to be eliminated at any cost. Not even one per cent chance can be taken

SCC 213 and refused to modify order dated 6.5.2002 by which mining activities were
banned but appointed a Monitoring Committee for suggesting recommencement of
mining in individual cases.
82. In M.C. Mehta v. Union of India MANU/SC/0768/2009 : (2009) 6 SCC 142, this
Court considered the question of whether in view of Section 4A of the 1957 Act, it
would be appropriate to exercise power under Article 32 read with Article 142 for
suspending mining operations in the Aravalli Hills. After taking cognizance of the fact
that indiscriminate mining had resulted in large scale environmental degradation in the
area and the arguments of the senior counsel appearing on behalf of the leaseholders,
the Court observed:
44. We find no merit in the above arguments. As stated above, in the past
when mining leases were granted, requisite clearances for carrying out mining
operations were not obtained which have resulted in land and environmental
degradation. Despite such breaches, approvals had been granted for subsequent
slots because in the past the authorities have not taken into account the macro
effect of such wide-scale land and environmental degradation caused by the
absence of remedial measures (including rehabilitation plan). Time has now
come, therefore, to suspend mining in the above area till statutory provisions
for restoration and reclamation are duly complied with, particularly in cases
where pits/quarries have been left abandoned.
4 5 . Environment and ecology are national assets. They are subject to
intergenerational equity. Time has now come to suspend all mining in the
above area on sustainable development principle which is part of Articles 21,
48-A and 51-A(g) of the Constitution of India. In fact, these articles have been
extensively discussed in the judgment in M.C. Mehta case MANU/SC/0247/2004
: (2004) 12 SCC 118 which keeps the option of imposing a ban in future open.
46. Mining within the principle of sustainable development comes within the
concept of "balancing" whereas mining beyond the principle of sustainable
development comes within the concept of "banning". It is a matter of degree.
Balancing of the mining activity with environment protection and banning such
activity are two sides of the same principle of sustainable development. They
are parts of precautionary principle.
47. At this stage, we may also note that under Section 13(2)(qq) of the 1957
Act, rules have been framed for rehabilitation of flora and other vegetation
destroyed by reason of any prospecting or mining operations. Under Section 18
of the 1957 Act, rules have been framed for conservation and systematic
development of minerals in India and for the protection of environment by
preventing or controlling pollution caused by prospecting or mining operations
which also form part of the Mineral Concession Rules, 1960 and the Mineral
Conservation and Development Rules. 1988.
48. Under Rule 27(1)(s)(i) of the Mineral Concession Rules, 1960 every lessee
is required to take measures for planting of trees not less than twice the
number destroyed by mining operations. Under the Mineral Conservation and
Development Rules, 1988, vide Rule 34, mandatory provisions for reclamation
and rehabilitation of lands are made for every holder of prospecting licence or
mining lease to be undertaken and that work has to be completed by the
lessee/licensee before abandoning the mine or prospect.

International Journal of Pure and Applied Mathematics
Volume 120 No. 5 2018, 2365-2379
ISSN: 1314-3395 (on-line version)
url: http://www.acadpubl.eu/hub/
Special Issue
http://www.acadpubl.eu/hub/
A STUDY ON PRINCIPLE AND DOCTRINE BY SUPREME COURT

FOR PROTECTION OF ENVIRONMENTAL LAW
1
MEGARAJAN. V
1
Student,4th Year B.A.,L.L.B.(Hons),Saveetha School Of Law, Saveetha Institute Of Medical And
Technical Sciences,Saveetha University, Chennai-77,Tamilnadu,India.
2
DHIVYA. R
2
Assistant Professor Of Law, Saveetha School Of Law,Saveetha Institute Of Medical And Technical
Sciences,Saveetha University, Chennai-77,Tamilnadu,India.
1
megarajan.11111.mr@gmail.com, 2divyar.ssl@saveetha.com
Abstract:
The black ebony staves of judiciary which has thumped time and again for protection
of man miniature against excruciating blows of evil is known on the aspiration for protecting
environment. Although 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, my endeavour, in this
study, is to analyse the steps taken by judiciary to forward this goal. The main objective
behind this research is to identify the present scenario and study the nature and extent of till
date developments in various environmental statuses through various statutes, law and
convention and various issues regarding the court decisions and judicial process. This paper
commences with the meaning and need for environmental laws. It also analyses the judicial
remedies available for environmental protection and some remarkable principles and doctrine
propounded by the Indian judiciary. It further views upon the constitutional aspects and the
new trends in judicial approach in environmental protection. The proposed study will lead to
a more descriptive and comprehensive understanding of the environment law and the policy
along with the role of Supreme in today‟s context to the new emerging threat which need to
be combat effectively.Basically, the ancient Roman Empire developed this legal theory i.e.
2365
Doctrine of the Public Trust. 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 the
people as a whole that it would be wholly unjustified to make them a subject of private
ownership. The said resources being a gift of nature, they should be made freely available to
everyone irrespective of the status in life. The doctrine enjoins upon the Government to
protect the resources for the enjoyment of the general public rather than to permit their use
for private ownership or commercial purposes.
Keywords: Environmental law, Absolute liability, polluter pays principle, precautionary

principle, public trust doctrine.
INTRODUCTION
Environment is the wellspring of life on earth like water, air, soil, etc., and determines
the presence, development and improvement of humanity and all its activities. The concept of
ecological protection and preservation is not new. It has been intrinsic to many ancient
civilizations.(Chandra Mehta et al. 2018) 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”.3
At the same time, new innovations like, thermal power, atomic plant and so on
without any sufficient natural assurance pose another danger to the situations, the aftereffect
of which results in issues like global warming, climate change, acid rain, etc. Moreover,
according to pattern of Indian legislature to make a number of legislations as opposed to
addressing the reason for failure and disappointment, and passing new bills consistently is
just like „old wine in new bottle‟.(Managi 2015) Therefore, there arises a requirement for a
comprehensive analysis of the protection of the environment. In recent years, there has been a
sustained focus on the role played by the higher judiciary in devising and monitoring the
implementation of measures for pollution control, conservation of forests and wildlife
protection. Many of these judicial interventions have been triggered by the persistent
incoherence in policy-making as well as the lack of capacity-building amongst the executive
3
MC Mehta, GROWTH OF ENVIRONMENTAL JURISPRUDENCE IN INDIA, p.71, 1999.
2366
agencies. Devices such as Public Interest Litigation (PIL) have been prominently relied upon
to tackle environmental problems, and this approach has its supporters as well as critics.4
Aim of the Study:

To analyse the doctrine of absolute liability, precautionary principle and the supreme court
ruling and guidelines to prevention and protection of environment.
Hypothesis:
Negative: The supreme court is trying to fill the gap and stretching the provision not7
preventing or protecting the people of India.
Positive: The supreme court laid down principle to prevent and protect the
environment for the people.
Research Questions:
● Whether the supreme court laid down principles are protecting and preventing or
stretching and filling gap of the environmental provision?
Materials and methods
● Materials mainly internet source and some book in online.

● Methods of study is doctrine which is theoretical study by which using the secondary
source of data.
PRINCIPLES LAID DOWN BY SUPREME COURT
The word “environment” relates to surroundings. It includes virtually everything. It

can be can defined as anything which may be treated as covering the physical surroundings
that are common to all of us, including air, space, land, water, plants and wildlife.5 According
to the Webster Dictionary, it is defined as the “Aggregate of all the external condition and
influences affecting the life and development of an organism.6 (Kumar & Bhadauriya
2013)The Environment (Protection) Act, 1986 Section 2(a) environment “includes water, air
4
Former Chief Justice Mr. K.G. Balakrishnan, THE ROLE OF THE JUDICIARY IN ENVIRONMENTAL
PROTECTION IN D. P SHRIVASTAVA MEMORIAL LECTUER, p. 1, March 20,2010.
5
Dr. Jai Jai Ram Upadhyay, ENVIRONMENTAL LAW, p.2, Allahabad: Central Law Agency, (2005)
6
R.M. Lodha, ENVIRONMENTAL RUIN: THE CRISES OF SURVIVAL, P.364 .New Delhi: Indus
Publishing Company,(1993).
2367
and land and the interrelationship which exists among and between water, air and land, and
human beings, other living creatures, plants, micro-organism and property.7Thus, after
analyzing all the above definitions, the basic idea that can be concluded is that environment
means the surroundings in which we live and is essential for our life.
Need for environmental laws
Today we are living in nuclear arena. No one can overlook the harm caused to the
environment by the nuclear bombs, dropped by airplanes belonging to the United States on
the Japanese urban communities of Hiroshima and Nagasaki amid the last phases of World
War II in 1945. Day to day innovation and advancement of technology, apart from
development additionally expands the risk to human life. Accordingly, there arises an intense
and an acute need of the law to keep pace with the need of the society along with individuals.
So now the question of environmental protection is a matter of worldwide concern, it is not
confined to any country or territory.(Anon 2007)
Judicial remedies for environment pollution
The remedies available in India for environmental protection comprise of tortuous as well
as statutory law remedies. The tortuous remedies available are trespass, nuisance, strict
liability and negligence.(Thakur 1997) The statutory remedies incorporates: Citizen‟s suit,
e.g.,
● an activity brought under Section 19 of the Environmental (Protection) Act, 1986,

● an activity under area 133, Criminal Procedure Code, 1973.and
● and activity brought under the Section 268 for open irritation, under Indian Penal
Code,1860
Apart from this, a writ petition can be filed under Article 32 in the Supreme Court of
India or under Article 226 in the High Court.
Tortious liability
The Indian judiciary has developed the following tortuous remedies:
7
envfor.nic.in/legis/env/env1.html
2368
2) The interference with the personal or proprietary rights must be direct rather than
consequential.
Negligence
It connotes failure to exercise the care that a reasonably prudent person would
exercise in like circumstances.
Strict Liability
The rule enunciated in Rylands v. Fletcher by Blackburn J. is that the person who for
his own purpose brings on his land and collects and keeps there anything likely to be a
mischief, if it escapes, must keep it as its peril, and if he does not do so is prima facie even
though, he will be answerable for all the damage which is the natural consequence of its
escape. The doctrine of strict liability has considerable utility in environmental pollution
cases especially cases dealing with the harm caused by the leakage of hazardous
substances(Nolan 1989)9
Some remarkable principles and doctrines propounded by the Indian judiciary:
1. Doctrine of Absolute Liability
THE BHOPAL CASE: Union Carbide Corporation v. Union Of India10
In this case, the court held that, where an enterprise is occupied with an inherently
dangerous or a hazardous activity and harm results to anybody by virtue of a mishap in the
operation of such dangerous or naturally unsafe movement coming about, for instance, in
getaway of poisonous gas, the enterprise is strictly and completely obligated to repay every
one of the individuals who are influenced by the accident and such risk is not subject to any
exemptions. Accordingly, Supreme Court created another trend of Absolute Liability without
any exemption.
2. Polluter Pays Principles
“If anyone intentionally spoils the water of another … let him not only pay damages,
but purify the stream or cistern which contains the water…” – Plato
9
urisonline.in/2010/…/role-of-supreme-court-in-environment-protection.
10
AIR 1990 SC 273
2370
Polluter Pays Principle has become a very popular concept lately. „If you make a
mess, it‟s your duty to clean it up „- this is the fundamental basis of this slogan. It should be
mentioned that in environment law, the „polluter pays principle‟ does not allude to “fault.”
Instead, it supports a remedial methodology which is concerned with repairing natural harm.
It‟s a rule in international environmental law where the polluting party pays for the harm or
damage done to the natural environment.
Vellore Citizen’s Welfare Forum v. Union of India11
The Supreme Court has declared that the polluter pays principle is an essential feature
of the sustainable development.
3. Precautionary Principle
The Supreme Court of India, in Vellore Citizens Forum Case, developed the
following three concepts for the precautionary principle:
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
4. Public Trust Doctrine
The Public Trust Doctrine primarily rests on the principle that certain resources like
air, water, sea 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.
M.C.Mehta v. Kamal Nath and Others12
The public trust doctrine, as discussed by court in this judgment is a part of the law of
the land.
11
AIR 1996 SCC 212.
12
1997)1 SCC 388.
2371
5. Doctrine of Sustainable Development
The World commission on Environment and Development (WCED) in its report

prominently known as the „Brundtland Report‟ named after the Chairman of the Commission
Ms. GH Brundtland highlights the concept of sustainable development. As per Brundtland
Report, Sustainable development signifies ” development that meets the needs of the present
without compromising the ability of the future generations to meet their own needs” 13. There
is a need for the courts to strike a balance between development and environment.
Rural Litigation and Entitlement Kendra v. State of UP14
The court for the first time dealt with the issue relating to the environment and
development; and held that, it is always to be remembered that these are the permanent assets
of mankind and or not intended to be exhausted in one generation..
Vellore Citizen’s Welfare Forum15
In this case, the 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.
THE CONSTITUTIONAL ASPECTS ON ENVIRONMENTAL LAW
The Indian Constitution is amongst the few in the world that contains specific
provisions on environment protection. The chapters directive principles of state policy and
the fundamental duties are explicitly enunciated the nation commitment to protect and
improve the environment. It was the first time when responsibility of protection of the
environment imposed upon the states through Constitution (Forty Second Amendment) Act,
1976. (Yadav 2011)
Article 48-A16the provision reads as follows: “The State shall endeavour to protect
and improve the environment and to safeguard the forest and wildlife of the country. “The
13
S .Shanthakumar, ENVIRONMENTAL LAW AN INTRODUCTION, pp. 122, 123, Chennai: Surya
Publication,(2001).
14
AIR 1987 SC 1037
15
AIR 1996 5 SCC 647
16
THE CONSTITUTION OF INDIA, 1950.
2372
Amendment also inserted Part VI-A (Fundamental duty) in the Constitution, which reads as
follows:
Article 51-A (g)17 “It shall be duty of every citizen of India to protect and improve
the natural environment including forests, lakes,, and wildlife and to have compassion for
living creature.”
In Sachidanand Pandey v. State of West Bengal18
The Supreme Court observed “whenever a problem of ecology is brought before the
court, the court is bound to bear in mind Article 48-A and Article 51-A(g).
Environmental protection: the judicial approach
There are numbers of the following judgments which clearly highlight the active role
of judiciary in environmental protection these are follows:
(a) The right to a wholesome environment
Charan Lal Sahu Case
The Supreme Court in this case said, the right to life guaranteed by Article 21 of the
Constitution includes the right to a wholesome environment.19
Damodhar Rao v. S. 0. Municipal Corporation Hyderabad
The 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 Constitution20
17
Id. 3
18
AIR 1987 SC 1109
19
HUMAN RIGHTS APPROACH TOWARDS POLLUTION FREE ENVIRONMENT, available at
www.indiastat.com/Article/14/indira/fulltext.pdf – United States
20
C. M. ABRAHAM and SUSHILA ABRAHAM, THE BHOPAL CASE AND THE DEVELOPMENT OF
ENVIRONMENTAL LAW IN INDIA P. 362, Vol. 40 International and Comparative Law Quarterly April
1991,available at http://heinonline.org
2373
(b) Public nuisance: the judicial response
Ratlam Municipal Council v. Vardhichand21
The judgment of the Supreme Court in instant case is a land mark in the history of
judicial activism in upholding the social justice component of the rule of law by fixing
liability on statutory authorities to discharge their legal obligation to the people in abating
public nuisance and making the environmental pollution free even if there is a budgetary
constraints., J. Krishna Iyer observed that,” social justice is due to and therefore the people
must be able to trigger off the jurisdiction vested for their benefit to any public
functioning.”Thus he recognized PIL as a Constitutional obligation of the courts.(Tromans
2001)
(c) Judicial relief encompasses compensation to victims
Delhi gas leak case: M.C. Mehta v. Union of India22
In instant case, the Supreme Court laid down two important principles of law:
1) The power of the Supreme Court to grant remedial relief for a proved infringement
of a fundamental right (in case if Article 21) includes the power to award compensation.
2) The judgment opened a new frontier in the Indian jurisprudence by introducing a

new “no fault” liability standard (absolute liability) for industries engaged in hazardous
activities which has brought about radical changes in the liability and compensation laws in
India. The new standard makes hazardous industries absolutely liable from the harm resulting
from its activities.
(d) Fundamental right to water
The fundamental right to water has evolved in India, not through legislative action but
through judicial interpretation. In Narmada Bachao Andolan v. Union of India and Ors., the
Supreme Court of India upheld that “Water is the basic need for the survival of human beings
and is part of the right to life and human rights as enshrined in Article 21 of the Constitution
21
AIR 1980 SC 1622
22
AIR 1987 SC 965
2374
MANU/SC/0416/2000
Equivalent Citation: AIR2000SC 1997, 2000(4)ALT12(SC ), (2000)5C ompLJ196(SC ), JT2000(7)SC 19, 2001-1-LW449, 2000(3)RC R(C ivil)392,
2000(5)SC ALE69, (2000)6SC C 213, [2000]Supp1SC R389, 2000(2)UJ1196

W.P. (C) No. 182 of 1996
Appellants:M.C. Mehta
Vs.
Respondent:Kamal Nath and Ors.
Saiyed Saghir Ahmad and Doraiswamy Raju, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: M.C. Mehta, an Seema Midha, Advs
For Respondents/Defendant: Altaf Ahmad,Additional Solicitor Gen. N.C. Kochhar, G.L.
Sanghi, Sr. Advs., Naresh K. Sharma, N.S. Vashisht, Uday Kumar, Kapil Sharma, Enakshi
Kulshrestha, Rajiv Dutta, Vijay Panjwani, Anish Garg, (in-person) for (Hotel Hilton), B.V.
Balaram Das, Devendra Singh
Case Note:
(i) Environment - punishment and fine - Environment (Protection) Act, 1986 -
sine qua non for punishment of imprisonment and fine is fair trial in
Competent Court - punishment of imprisonment or fine can be imposed only
after person found guilty - accused held liable to pay damages - quantum of
damages under process of being determined - Court directed notice to be
issued to show cause why pollution fine be not imposed - fine cannot be
imposed without finding whether person in question guilty of offence or not.
(ii) Civil wrong - Article 32 of Constitution of India - pollution is civil wrong -
pollution is tort committed against community as whole - person guilty of
causing pollution had to pay damages for restoration of environment and
ecology - polluter had also to pay damages to those who suffered loss on
account of his act - under Article 32 Apex Court can award damages - in
addition to damages polluter can also be held liable to pay exemplary
damages so that it may act as deterrent for others not to cause pollution in
any manner.
Case Category:
LETTER PETITION AND PIL MATTER
JUDGMENT
Saiyed Saghir Ahmad, J.
1. This case, which was finally decided by this Court by its Judgment dated December
13, 1996, has been placed before us for determination of the quantum of pollution fine.
It may be stated that the main case was disposed of with the following directions:

1. The public trust doctrine, as discussed by us in this judgment is a part of the
law of the land.
2 . The prior approval granted by the Government of India, Ministry of
Environment and Forest by the letter dated November and the lease-deed dated
April 11, 1994 in favour of the Motel are quashed. The lease granted to the
Motel by the said lease-deed in respect of 27 bighas and 12 biswas of area, is
cancelled and set aside. The Himachal Pradesh Government shall take over the
area and restore it to its original-natural conditions.
3 . The Motel shall pay compensation by way of cost for the restitution of the
environment and ecology of the area. The pollution caused by various
constructions made by the Motel in the river bed and the banks of the river
Beas has to be removed and reversed. We direct NEERI through its Director to
inspect the area, if necessary, and give an assessment of the cost which is
likely to be incurred for reversing the damage caused by the Motel to the
environment and ecology of the area. NEERI may take into consideration the
report by the Board in this respect.
4 . The Motel through its management shall show cause why pollution fine in
addition be not imposed on the Motel.
5. The Motel shall construct a boundary wall at a distance of not more than 4
meters from the cluster of rooms (main building of the Motel) towards the river
basin. The boundary wall shall be on the area of the Motel which is covered by
the lease dated September 29,1981. The Motel shall not encroach/cover/utilise
any part of the river basin. The boundary wall shall separate the Motel building
from the river basin. The river bank and the river basin shall be left open for
the public use.
6. The Motel shall not discharge untreated effluents into the river. We direct the
Himachal Pradesh Pollution Control Board to inspect the pollution control
devices/treatment plants set up by the Motel. If the effluent/waste discharged
by the Motel is not conforming to the prescribed standards, action in
accordance with law be taken against the Motel.
7. The Himachal Pradesh Pollution Control Board shall not permit the discharge
of untreated effluent into river Beas. The Board shall inspect all the
hotels/institutions/factories in Kullu-Manali area and in case any of them are
discharging untreated effluent/waste into the river, the Board shall take action
in accordance with law.
8 . The Motel shall show cause on December 18, 1996 why pollution-fine and
damages be not imposed as directed by us. NEERI shall send its report by
December 17, 1996. To be listed on December 18,1996.
2. Pursuant to the above Order, notice was issued requiring the Motel to show-cause on
two points; (i) why the Motel be not asked to pay compensation to reverse the
degraded environment and (ii) why pollution fine, in addition, be not imposed.
3. Mr. G.L. Sanghi, learned Senior Counsel, appearing for M/s. Span Motel Private Ltd.,
has contended that though it is open to the Court, in proceedings under Article 32 of the
Constitution, to grant compensation to the victims whose Fundamental Rights might
have been violated or who are the victims of an arbitrary executive action or victims of

MANU/SC/1508/2019
Equivalent Citation: 2020(10)FLT1, (2020)3MLJ274, 2019(14)SC ALE641, 2020 (2) SC J 722

Civil Appeal Nos. 8398-8399 of 2019 (Arising out of SLP (C) Nos. 21375-21376 of
2017)
Appellants: Tata Housing Development Company Ltd.
Vs.
Respondent: Aalok Jagga and Ors.
Arun Mishra, M.R. Shah and B.R. Gavai, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Shyam Divan, Sr. Adv., Manu Nair, Neelabh Shreesh,
Suvarna Kashyap and S.S. Shroff, Advs.
For Respondents/Defendant: A.N.S. Nadkarni, ASG, Ashok Kumar Srivastava, P.S.
Patwalia, Puneet Bali, Sr. Advs., Pranay Ranjan, Vijay Prakash, Gurmeet Singh Makker,
Dhruv Sheoran, Gauravjit Singh Patwalia, Ashok Kumar Mahajan, Natasha Dalmia, Karan
Bharihoke, Raj Kamal, Siddhant Sharma, Aditya Soni, Navkiran Bolay, Manmeet Arora,
Nidhi Mohan Parashar, Samapika Biswal, Keshav, S. Shriram, Sangram S. Saron,
Vandana Rani, Rahul Gupta, Shubham Bhalla and Lalit Kumar, Advs.
Case Note:
Environment - Construction of project - Permission thereto - Appellant
proposed to develop housing project, in revenue estate of village - Appellant
applied for environmental clearance from SEIAA - MoEF recommended for
environmental clearance in its meeting - Nagar Panchayat Naya Gaon also
granted permission to raise construction to Appellant - On writ petition before
High Court, High Court had given finding that project site was found to be
part of area of Sukhna Lake and permission granted by Nagar Panchayat had
been set aside - Hence, present appeal - Whether housing activities were
permissible within short distance from Sukhna Wildlife Sanctuary.
Facts:
The Appellant proposed to develop a project in the revenue estate of village.
Appellant applied for environmental clearance from SEIAA. The MoEF
recommended for environmental clearance in its meeting. The Nagar
Panchayat Naya Gaon granted permission to raise the construction to
Appellant. The High Court had ultimately given the finding that the project
site was found to be a part of the area of Sukhna Lake. The permission
granted by Nagar Panchayat to Appellant had been set aside. On writ petition,
the High Court had ultimately given the finding that the project site was
found to be a part of the area of Sukhna Lake. The permission granted by
Nagar Panchayat to Appellant had been set aside.
Held, while dismissing the appeal:

with the public interests in navigation or fishing. Resources that were suitable
for these uses were deemed to be held in trust by the Crown for the benefit of
the public. Joseph L. Sax, Professor of Law, University of Michigan -- proponent
of the Modern Public Trust Doctrine -- in an erudite Article "Public Trust
Doctrine in Natural Resource Law: Effective Judicial Intervention", Michigan Law
Review, Vol. 68, Part 1 p. 473, has given the historical background of the Public
Trust Doctrine as under:
The source of modern public trust law is found in a concept that
received much attention in Roman and English law -- the nature of
property rights in rivers, the sea, and the seashore. That history has
been given considerable attention in the legal literature, need not be
repeated in detail here. But two points should be emphasized. First,
certain interests, such as navigation and fishing, were sought to be
preserved for the benefit of the public; accordingly, property used for
those purposes was distinguished from general public property which
the sovereign could routinely grant to private owners. Second, while it
was understood that in certain common properties -- such as the
seashore, highways, and running water -- 'perpetual use was dedicated
to the public,' it has never been clear whether the public had an
enforceable right to prevent infringement of those interests. Although
the State apparently did protect public uses, no evidence is available
that public rights could be legally asserted against a recalcitrant
government.
25. 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
the people as a whole that it would be wholly unjustified to make them a
subject of private ownership. The said resources being a gift of nature, they
should be made freely available to everyone irrespective of the status in life.
The doctrine enjoins upon the Government to protect the resources for the
enjoyment of the general public rather than to permit their use for private
ownership or commercial purposes. According to Professor Sax, the Public Trust
Doctrine imposes the following restrictions on governmental authority:
33. It is no doubt correct that the public trust doctrine under the English
common law extended only to certain traditional uses such as navigation,
commerce, and fishing. But the American Courts in recent cases have expanded
the concept of the public trust doctrine. The observations of the Supreme Court
of California in Mono Lake case, 33 Cal 3d 419, clearly show the judicial
concern in protecting all ecologically important lands, for example, freshwater,
wetlands, or riparian forests. The observations of the Court in Mono Lake case
to the effect that the protection of ecological values is among the purposes of
public trust may give rise to an argument that the ecology and the environment
protection is a relevant factor to determine which lands, waters or airs are
protected by the public trust doctrine. The Courts in United States are finally
beginning to adopt this reasoning and are expanding the public trust to
encompass new types of lands and waters. In Phillips Petroleum Co. v.
Mississippi, MANU/USSC/0183/1988 : 108 SCT 791 (1988), the United States
Supreme Court upheld Mississippi's extension of public trust doctrine to lands
underlying non-navigable tidal areas. The majority judgment adopted ecological
concepts to determine which lands can be considered tidelands. Phillips
Petroleum case assumes importance because the Supreme Court expanded the

MANU/SC/0315/2019
Equivalent Citation: 2019(2)BomC R901, 2019(9)FLT586, (2019)3MLJ396, 2019(4)SC ALE218

Civil Appeal Nos. 5016, 8002-8003, 12326, 9227 of 2016, 1343 of 2017, 10995, 10993,
10994 of 2016, 2246 of 2018, 10992, 12157, 12152, 12156, 12158, 12160, 12159 of
2016, 4923-4924 and 14966 of 2017
Appellants: Mantri Techzone Pvt. Ltd.
Vs.
Respondent: Forward Foundation and Ors.
A.K. Sikri, S. Abdul Nazeer and M.R. Shah, JJ.
Counsels:
For Appearing Parties: Udya Holla, Adv. General, Shashi Kiran Shetty, Maninder Singh,
Dharuv Mehta, Mukul Rohatgi, Neeraj Kishan Kaul, R. Venkataramani, Sajan Poovayya,
Kiran Suri, Basavaprabhu S. Patil, Sr. Advs., Mahesh Thakur, Anuparna Bordoloi,
Savyasachi Sahai, Vipasha Singh, Gaurav Goel, V.N. Raghupathy, Advs., Devasa & Co.,
Devashish Bharuka, Justine George, Prabhas Bajaj, Kanika S., Ravi Bharuka, Sarushree,
Satish Kumar, Gaurav Agrawal, George Thomas, Anurag Gharote, A.S. Bhasme, Abid Ali
Beeran P., Nishanth Patil, Rohit Prasad, Ananth Suresh, S.K. Kulkarni, M. Gireesh Kumar,
Ankur S. Kulkarni, Shekhar G. Devasa, Bhuvanendra K.V., S. Mahesh, Manish Tiwari, Luv
Kumar, Praveen Vignesh, Priyadarshi Banerjee, Pratibhanu S. Kharola, Saransh Jain,
Meka Venkata Rama Krishna, Madhavam Sharma, Sriparna Dutta Choudhury, Udayaditya
Banerjee, Mahesh Agarwal, Ankur Saigal, Sarans Jain, Tanvi Manchanda, Nithin P.,
Priyanka M.P., E.C. Agrawala, S.J. Amith, Rithika Gambir, A. Shwarya Kumar, Vipin
Gupta, Parikshit P. Angadi, Chinmay Deshpande, Geet Ahuja, Parikshit Angadi, Anup
Kumar, O.P. Bhadani, Rajesh Mahale, Anand Sanjay M. Nuli, Dharm Singh, Sandeep
Grover, Pankhuri Bhardwaj and Pai Amit, Advs.
Case Category:
APPEAL AGAINST ORDERS OF STATUTORY BODIES - TRIBUNALS
Case Note:
Environment - Construction of project - Imposition of penalty - Sections 14,15
and 33 of National Green Tribunal Act, 2010 - Applicants filed original
application before National Green Tribunal by contending that ecologically
sensitive land was allotted by Karnataka Industrial Area Development Board
(KIADB) to Respondent Nos. 9 and 10 - Applicants further contended that
Respondent No. 9 violated conditions and commenced construction of project
- There was also violation of stipulations stated in approval of SEAC in
relation to buffer zone and construction over Rajakaluves - Applicant
submitted that conversion of land from Protected Zone to Residential
Sensitive Area was violative of law - Tribunal decline to pass any direction or
order to stop further progress and/or demolition of project or any part thereof
at this stage - However, Tribunal constitute Committee to inspect projects in
question and submit report to Tribunal and also imposed penalty against
original Respondent No. 9 and 10 - Hence, present appeals - Whether

fresh appreciation or re-appreciation of facts and evidence in a statutory appeal under
this provision.
39. The first question raised by the learned Counsel is in relation to the maintainability
of the application before the Tribunal.
4 0 . The Tribunal has been established under a constitutional mandate provided in
Schedule VII List I Entry 13 of the Constitution of India, to implement the decision
taken at the United Nations Conference on Environment and Development. The Tribunal
is a specialized judicial body for effective and expeditious disposal of cases relating to
environmental protection and conservation of forests and other natural resources
including enforcement of any legal right relating to environment. The right to healthy
environment has been construed as a part of the right to life Under Article 21 by way of
judicial pronouncements. Therefore, the Tribunal has special jurisdiction for
enforcement of environmental rights.
41. The jurisdiction of the Tribunal is provided Under Sections 14, 15 and 16 of the
Act. Section 14 provides the jurisdiction over all civil cases where a substantial question
relating to environment (including enforcement of any legal right relating to
environment) is involved. However, such question should arise out of implementation of
the enactments specified in Schedule I.
4 2 . The Tribunal has also jurisdiction Under Section 15(1)(a) of the Act to provide
relief and compensation to the victims of pollution and other environmental damage
arising under the enactments specified in Schedule I. Further, Under Section 15(1)(b)
and 15(1)(c) the Tribunal can provide for restitution of property damaged and for
restitution of the environment for such area or areas as the Tribunal may think fit. It is
noteworthy that Section 15(1)(b) & (c) have not been made relatable to Schedule I
enactments of the Act. Rightly so, this grants a glimpse into the wide range of powers
that the Tribunal has been cloaked with respect to restoration of the environment.
43. Section 15(1)(c) of the Act is an entire island of power and jurisdiction read with
Section 20 of the Act. The principles of sustainable development, precautionary
principle and polluter pays, propounded by this Court by way of multiple judicial
pronouncements, have now been embedded as a bedrock of environmental
jurisprudence under the NGT Act. Therefore, wherever the environment and ecology are
being compromised and jeopardized, the Tribunal can apply Section 20 for taking
restorative measures in the interest of the environment.
44. The NGT Act being a beneficial legislation, the power bestowed upon the Tribunal
would not be read narrowly. An interpretation which furthers the interests of
environment must be given a broader reading. (See Kishore Lal v. Chairman,
Employees' State Insurance Corporation MANU/SC/2148/2007 : (2007) 4 SCC 579,
para 17). The existence of the Tribunal without its broad restorative powers Under
Section 15(1)(c) read with Section 20 of the Act, would render it ineffective and
toothless, and shall betray the legislative intent in setting up a specialized Tribunal
specifically to address environmental concerns. The Tribunal, specially constituted with
Judicial Members as well as with Experts in the field of environment, has a legal
obligation to provide for preventive and restorative measures in the interest of the
environment.
4 5 . Section 15 of the Act provides power & jurisdiction, independent of Section 14
thereof. Further, Section 14(3) juxtaposed with Section 15(3) of the Act, are separate
provisions for filing distinct applications before the Tribunal with distinct periods of

MANU/SC/0686/1996
Equivalent Citation: AIR1996SC 2715, (1996)5C ompLJ40(SC ), JT1996(7)SC 375, (1996)5SC C 647, [1996]Supp5SC R241

Writ Petn. (C) No. 914 of 1991
Appellants:Vellore Citizens Welfare Forum
Vs.
Kuldip Singh, Faizanuddin and K. Venkataswami, JJ.
Counsels:
For Appearing Parties: R. Mohan, V.A. Bobde, Kapil Sibal, M.R. Sharma and V.C.
Mahajan, Advs
Background :
Environment - Public interest Litigation(PIL) - Section 63 of the Water
Prevention and Control of Pollution Act 1974 - PIL filled under Article 32 of
the Constitution of India by Vellore Citizens Welfare Forum - Directed against
the environmental degradation
Issues :
Whether right to fresh air is a constitutional and a right which is statutory
recognized?
Holding :
It is the Constitutional and statutory provisions to protect a persons right to
fresh air, clean water and pollution free environment, but the source of the
right is the inalienable common law right of clean environment. Article 21 of
the Constitution of India guarantees protection of life and personal liberty
which includes right to fresh air.
Ratio Decidendi:
The "Polluter Pays" principle as interpreted by this 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. Remediation of the damaged environment is part of the process
of "Sustainable Development" and as such polluter is liable to pay the cost to
the individual sufferers as well as the cost of reversing the damaged ecology.
ORDER
Kuldip Singh, J.
1. This petition - public interest - under Article 32 of the Constitution of India has been
filed by Vellore Citizens Welfare Forum and is directed against the pollution which is

the seven operational CETPs are not functioning to its satisfaction. NEERI has made
several recommendations to be followed by the operational CETPs. Out of the 30 CETP-
sites which have been identified for tannery clusters in the five districts of North Arcot
Ambedkar, Erode Periyar, Dindigul Anna, Thrichi and Chengai MGR. 7 are under
operation 10 are under construction and 13 are proposed. There are large number of
tanneries which are not likely to be connected with with any CETP and are required to
set up pollution control devices on their own. Despite repeated extension granted by
this Court during the last five years and prior to that by the Board the tanneries in the
State of Tamil Nadu have miserably failed to control the pollution generated by them.
9. It is no doubt correct that the leather industry in India has become a major foreign
exchange earner and at present Tamil Nadu is the leading exporter of finished leather
accounting for approximately 80% of the country's export. Though the leather industry
is of vital importance to the country as it generates foreign exchange and provides
employment avenues it has no right to destroy the ecology, degrade the environment
and pose as a health hazard. It cannot be permitted to expand or even to continue with
the present production unless it tackles by itself the problem of pollution created by the
said industry.
10. The traditional concept that development and ecology are opposed to each other, is
no longer acceptable. "Sustainable Development" is the answer. In the International
sphere "Sustainable Development" as a concept came to be known for the first time in
the Stockholm Declaration of 1972.
Thereafter, in 1987 the concept was given a definite shape by the World Commission on
Environment and Development in its report called "Our Common Future". The
Commission was chaired by the then Prime Minister of Norway Ms. G.N. Brundtland and
as such the report is popularly known as "Brundtland Report". In 1991 the World
Conservation Union, United Nations Environment Programme and World Wide Fund for
Nature, jointly came out with a document called "Caring for the Earth" which is a
strategy for sustainable living. Finally, came the Earth Summit held in June, 1992 at Rio
which saw the largest gathering of world leaders ever in the history - deliberating and
chalking out a blue print for the survival of the planet. Among the tangible
achievements of the Rio Conference was the signing of two conventions, one on
biological diversity and another on climate change. These conventions were signed by
153 nations. The delegates also approved by consensus three non binding documents
namely, a Statement on Forestry Principles, a declaration of principles on environmental
policy and development initiatives and Agenda 21, a programme of action into the next
century in areas like poverty, population and pollution. During the two decades from
Stockholm to Rio "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-systems. "Sustainable Development" as
defined by the Brundtland Report means "development that meets the needs of the
present without compromising the ability of the future generations to meet their won
needs".
We have no hesitation in holding that "Sustainable Development' as a balancing concept
between ecology and development has been accepted as a part of the Customary
International Law though its salient features have yet to be finalised by the International
Law jurists.
11. Some of the salient principles of "Sustainable Development", as culled-out from
Brundtland Report and other international documents, are Inter-Generational Equity,
Use and Conservation of Natural Resources, Environmental Protection, the Precautionary

Apart from the constitutional mandate to protect and improve the environment there are
plenty of post independence legislations on the subject but more relevant enactments
for our purpose are : The Water (Prevention and Control of Pollution) Act, 1974 (the
Water Act), The Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the
Environment Protection Act 1986 (the Environment Act). The Water Act provides for the
Constitution of the Central Pollution Control Board by the Central Government and the
Constitution of the State Pollution Control Boards by various State Governments in the
country. The Boards function under the control of the Governments concerned. The
Water Act prohibits the use of streams and wells for disposal of polluting matters. Also
provides for restrictions on outlets and discharge of effluents without obtaining consent
from the Board. Prosecution and penalties have been provided which include sentence
of imprisonment. The Air Act provides that the Central Pollution Control Board and the
State Pollution Control Boards constituted under the Water Act shall also perform the
powers and functions under the Air Act. The main function of the Boards, under the Air
Act, is to improve the quality of the air and to prevent, control and abate air pollution in
the country. We shall deal with the Environment Act in the later part of this judgment.
14. In view of the above mentioned constitutional and statutory provisions we have no
hesitation in holding that the precautionary principle and the polluter pays principle are
part of the environmental law of the country.
1 5 . Even otherwise once these principles are accepted as part of the Customary
International Law there would be no difficulty in accepting them as part of the domestic
law. It is almost accepted proposition of law that the rule of Customary International
Law which are not contrary to the municipal law shall be deemed to have been
incorporated in the domestic law and shall be followed by the Courts of Law. To support
we may refer to Justice H.R. Khanna's opinion in Addl. Distt. Magistrate Jabalpur v.
Shivakant Shukla MANU/SC/0062/1976 : 1976CriL J945 , Jolly George Varghese's case
MANU/SC/0014/1980 : [1980]2SCR913 and Gramophone Company's case
MANU/SC/0187/1984 : 1984(2)ECC142 .
16. The Constitutional and statutory provisions protect a persons right to fresh air,
clean water and pollution free environment, but the source of the right is the inalienable
common law right of clean environment. It would be useful to quote a paragraph from
Blackstone's commentaries on the Laws of England (Commentaries on the Laws of
England of Sir William Blackstone) Vol. III, fourth edition published in 1876. Chapter
XIII, "Of Nuisance" depicts the law on the subject in the following words :
Also, if a person keeps his hogs, or other noisome animals, 'or allows filth to
accumulate on his premises, so near the house of another, that the stench
incommodes him and makes the air unwholesome, this is an injurious nuisance,
as it tends to deprive him of the use and benefit of this house. A like injury is,
if one's neighbour sets up and exercises any offensive trade; as a tanner's, a
tallow-chandler's or the like; for though these are lawful and necessary trades,
yet they should be exercised in remote places; for the rule is, sic utere "tuo, ut
alienum non laedas;" this therefore is an actionable nuisance. And on a similar
principle a constant ringing of bells in one's immediate neighbourhood may be
a nuisance;.... With regard to other corporeal heriditaments; it is a nuisance to
stop or divert water that used to run to another's meadow or mill; to corrupt or
poison a water-course, by erecting a dye-house or a lime-pit, for the use of
trade, in the upper part of the stream; 'to pollute a pond, from which another is
entitled to water his cattle; to obstruct a drain; or in short to do any act in
common property, that in its consequences must necessarily tend to the

prejudice of one's neighbour. So closely does the law of England enforce that
excellent rule of gospel-morality, of "doing to others, as we would they should
do upto ourselves.
17. Our legal system having been founded on the British Common Law the right of a
person to pollution free environment is a part of the basic jurisprudence of the land.
18. The Statement of Objects and Reasons to the Environment Act, inter alia, states as
under :
The decline in environmental quality has been evidenced by increasing
pollution, loss of vegetal cover and biological diversity, excessive
concentrations of harmful chemicals in the ambient atmosphere and in food
chains, growing risks of environmental accidents and threats to life support
systems. The world community's resolve to protect and enhance the
environmental quality found expression in the decisions taken at the United
Nations Conference on the Human Environment held in Stockholm in June,
1972. Government of India participated in the Conference and strongly voiced
the environmental concerns. While several measures have been taken for
environmental protection both before and after the Conference, the need for a
general legislation further to implement the decisions of the Conference has
become increasingly evident....Existing laws generally focus on specific types of
pollution or on specific categories of hazardous substances. Some major areas
of environmental hazardous are not covered. There also exist uncovered gaps in
areas of major environmental hazards. There are inadequate linkages in
handing matters of industrial and environmental safety. Control mechanisms to
guard against slow, insidious build up of hazardous substances, especially new
chemicals, in the environment are weak. Because of a multiplicity of regulatory
agencies, there is need for an authority which can assume the lead role for
studying, planning and implementing long-term requirement of environmental
safety and to give direction to, and co-ordinate a system of speedy and
adequate response to emergency situations threatening the environment.... In
view of what has been stated above, there is urgent need for the enactment of a
general legislation on environmental protection which inter alia, should enable
co-ordination of activities of the various regulatory agencies, creation of an
authority or authorities with adequate powers for environmental protection,
regulation of discharge of environmental pollutants and handling of hazardous
substances, speedy response in the event of accidents threatening environment
and deterrent to those who endanger human environment, safety and health.
19. Sections 3 4 5 7 and 8 of the Environment Act which are relevant are as under :
3 . Power of Central Government to take measures to protect and improve
environment. - (1) Subject to the provisions of this Act, the Central
Government shall have the power to take all such measures as it deems
necessary or expedient for the purpose of protecting and improving the quantity
of the environment and preventing controlling and abating environmental
pollution.
(2) In particular, and without prejudice to the generality of the provisions of
Section (1), such measures may include measures with respect to all or any of
the following matters, namely:
(i) co-ordination of actions by the State Governments, officers and

MANU/SC/1191/2018
Equivalent Citation: AIR2018SC 5731, 2019 1 AWC 455SC , 2019(9)FLT93, 2018(14)SC ALE209, (2019)13SC C 523, 2019 (1) SC J 164

IA Nos. 6, 8 of 2016, 10, 11, 80176, 96202, 109668, 109720, 122778 of 2017, 68888,
68897 of 2018 in Writ Petition (Civil) No. 728 of 2015 (Under Article 32 of the
Constitution of India), Writ Petition (Civil) Nos. 891, 895, 899 of 2016 and 213 of 2017
Appellants: Arjun Gopal and Ors.
Vs.
Respondent: Union of India (UOI) and Ors.*
A.K. Sikri and Ashok Bhushan, JJ.
Counsels:
For Appearing Parties: Atmaram N.S. Nadkarni, ASG, Anil Grover, AAG, Vibha Datta
Makhija, Shekhar Naphade, Dhruv Mehta, Ajit Kumar Sinha, Sr. Advs., Gopal
Sankaranarayanan, Pooja Dhar, Amit Bhandari, Haripriya Padmanabhan, Shery Patnaik,
Aishwarya Kane, Veera Mahuli, Astha Sharma, Anubhav Kumar, Abhishek Swaroop, Ankit
Agarwal, Disha Vaish, Vinod Khanna B., A. Sriram, Abhikalp Pratap Singh, Prateek Rusia,
Advs. for Corporate Law Group, Sarla Chandra, Vijay Panjwani, Rahul Mehra, Chirag M.
Shroff, Neha Sangwan, Charu Wali Khanna, Sanjana Nangia, Rohini Musa, Abhishek
Gupta, Zafar Inayat, D.R. Raghunath, V.D. Khanna, Anish R. Shah, Aishwarya Bhati,
Prakash Gautam, Shashank Shekhar Singh, Sachin Mittal, Sagar Kothari, Mansi Bhatia,
Pawan Sharma, Yoginder Handoo, Bijender Singh Chaudhary, Hitesh Kumar Sharma,
S.K. Rajora, Vijay Pratap Singh, Kailash Chand, Garima Bajaj, Aakanksha Kaul, M.A.
Chinnaswamy, C. Rubavathi, P. Raja Ram, S. Peer Mohammad, V. Senthil Kumar,
Supriya Juneja, Adihja Singla, Bharat Monga, M.K. Aswathi, S. Manoj Selvaraj, Arvind
Kumar, Nancy Mittal, Ashok Kumar Gupta-II, Suvidutt M.S., Mohinder Jit Singh Rupal,
S.K. Verma, Yugandhara Pawar Jha, Uttara Babbar, Bhavana Duhoon, Deboshree
Mukherjee, Shyam Kumar, Sanjay Kumar Visen, D.N. Goburdhan, Wasim A. Qadri, M.P.
Gupta, Pallavi Chopra, Gurmeet Singh Makker, Pallavi C., Baij Nath Patel, Ritesh Kumar,
Suhasini Sen, Kiran Bhardwaj, B.V. Balaram Das, M. Yogesh Kanna, Sujatha Bagadhi, S.
Partha Sarathi, Aviral Saxena, Sandeep Singh, Sanjay Kumar Tyagi, J. Sai Deepak,
Vinesh K. Sharma, Ashutosh Nagar, Pradeep Mishra, Daleep Kumar Dhyani, Suraj Singh,
Chandan Kumar, Gaurang Kanth and Vandana Sehgal, Advs. and Applicant-in-person
Case Category:
LETTER PETITION AND PIL MATTER - SOCIAL JUSTICE MATTERS
Case Note:
Environment - Ban - Fireworks - Regulation - Petitioners had prayed for
direction to official Respondents to take possible measures for checking
pollution by striking at causes of pollution, which included seasonal crop
burning, indiscriminate dumping of dust/malba and other pollutants, etc.
Prayer also included banning use, in any form, of firecrackers, sparkles and
minor explosives, in any form, during festivals or otherwise - Whether there
had to be a complete ban on display of fireworks during Diwali or it could be
controlled/regulated in a manner which may not result into air pollution or

Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to
Assist and Cooperate, Eradication of Poverty and Financial Assistance to the
developing countries. We are, however, of the view that "The Precautionary
Principle" and "The Polluter Pays Principle" are essential features of
"Sustainable Development". The "Precautionary Principle"--in the context of the
municipal law--means:
(i) Environmental measures--by the State Government and the
statutory authorities--must anticipate, prevent and attack the causes of
environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of
scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation.
(iii) The "onus of proof" is on the actor or the developer/industrialist to
show that his action is environmentally benign.
xx xx xx
14. In view of the above-mentioned constitutional and statutory provisions we
have no hesitation in holding that the Precautionary Principle and the Polluter
Pays Principle are part of the environmental law of the country.
15. Even otherwise once these principles are accepted as part of the Customary
International Law there would be no difficulty in accepting them as part of the
domestic law. It is almost an accepted proposition of law that the Rules of
Customary International Law which are not contrary to the municipal law shall
be deemed to have been incorporated in the domestic law and shall be followed
by the courts of law. To support we may refer to Justice H.R. Khanna's opinion
in A.D.M. v. Shivakant Shukla, Jolly George Varghese case and Gramophone Co.
case.
16. The constitutional and statutory provisions protect a person's right to fresh
air, clean water and pollution-free environment, but the source of the right is
the inalienable common law right of clean environment....
3 2 . The precautionary principle accepted in the aforesaid judgment was further
elaborated in A.P. Pollution Control Board's case as under:
31. The "uncertainty" of scientific proof and its changing frontiers from time to
time has led to great changes in environmental concepts during the period
between the Stockholm Conference of 1972 and the Rio Conference of 1992. In
Vellore Citizens' Welfare Forum v. Union of India a three-Judge Bench of this
Court referred to these changes, to the "precautionary principle" and the new
concept of "burden of proof" in environmental matters. Kuldip Singh, J. after
referring to the principles evolved in various international conferences and to
the concept of "sustainable development", stated that the precautionary
principle, the polluter-pays principle and the special concept of onus of proof
have now emerged and govern the law in our country too, as is clear from
Articles 47, 48-A and 51-A(g) of our Constitution and that, in fact, in the
various environmental statutes, such as the Water Act, 1974 and other statutes,
including the Environment (Protection) Act, 1986, these concepts are already
implied. The learned Judge declared that these principles have now become

part of our law. The relevant observations in the Vellore case in this behalf read
as follows: (SCC p. 660, para 14)
1 4 . In view of the above-mentioned constitutional and statutory
provisions we have no hesitation in holding that the precautionary
principle and the polluter-pays principle are part of the environmental
law of the country.
The Court observed that even otherwise, the abovesaid principles are accepted
as part of the customary international law and hence there should be no
difficulty in accepting them as part of our domestic law. In fact, on the facts of
the case before this Court, it was directed that the authority to be appointed
Under Section 3(3) of the Environment (Protection) Act, 1986.
shall implement the 'precautionary principle' and the 'polluter-pays
principle'.
The learned Judges also observed that the new concept which places the burden
of proof on the developer or industrialist who is proposing to alter the status
quo, has also become part of our environmental law.
32. T he Vellore judgment has referred to these principles briefly but, in our
view, it is necessary to explain their meaning in more detail, so that courts and
tribunals or environmental authorities can properly apply the said principles in
the matters which come before them.
33. A basic shift in the approach to environmental protection occurred initially
between 1972 and 1982. Earlier, the concept was based on the "assimilative
capacity" Rule as revealed from Principle 6 of the Stockholm Declaration of the
U.N. Conference on Human Environment, 1972. The said principle assumed that
science could provide policy-makers with the information and means necessary
to avoid encroaching upon the capacity of the environment to assimilate
impacts and it presumed that relevant technical expertise would be available
when environmental harm was predicted and there would be sufficient time to
act in order to avoid such harm. But in the 11th Principle of the U.N. General
Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted
to the "precautionary principle", and this was reiterated in the Rio Conference
of 1992 in its Principle 15 which reads as follows:
Principle 15.--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
proposing cost-effective measures to prevent environmental
degradation.
3 4 . In regard to the cause for the emergence of this principle, Chairman
Barton, in the Article earlier referred to in Vol. 22, Harv. Envtt. L. Rev. (1998),
p. 509 at p. 547 says:
There is nothing to prevent decision-makers from assessing the record
and concluding that there is inadequate information on which to reach
a determination. If it is not possible to make a decision with 'some'
confidence, then it makes sense to err on the side of caution and

The Polluter Pays Principle:
________________________________
A Proper Guide for Environmental
Policy
by Roy E. Cordato, Ph.D.
Institute for Research on the Economics of Taxation

Studies in Social Cost, Regulation, and the Environment: No. 6
Roy E. Cordato, Ph.D., Project Director
Institute for Research on the Economics of Taxation

1730 K Street, NW • Suite 910 • Washington, D.C. 20006
Phone: (202) 463-1400 • Fax: (202) 463-6199 • Internet: www.iret.org
The Polluter Pays Principle:
A Proper Guide for Environmental Policy
By Roy E. Cordato, Ph.D.*
"The ‘polluter pays principle’ states that whoever is responsible for damage to the environment
should bear the costs associated with it."1
Few people could disagree with what seems at first glance to be such a straightforward
proposition. Indeed, properly construed, this is not only a sound principle for dealing with those
who pollute but is an extension of one of the most basic principles of fairness and justice: people
should be held responsible for their actions. Those who cause damage or harm to other people
should "pay" for that damage. This appeal to our sense of justice is why the "polluter pays
principle" (PPP) has come to resonate so strongly with both policy makers and the public.
As a general rule, sound economic analysis of pollution and environmental problems must
also be based on the principle of responsibility. Forcing polluters to bear the costs of their
activities is good economics too; it not only advances fairness and justice, but also enhances
economic efficiency. In other words, with appropriate policies based on a PPP, we should not
have to give up the economic efficiency of a free market system based on private property in
order to obtain environmental protection, nor vice versa.
But as with most such general principles, the devil is in the details. In this case, the
details relate to three basic questions that any application of the PPP must answer. First, how
do we define pollution and therefore a polluter? Second, how much should the polluter pay, once
he is identified? Third, to whom should the payment be made? The answers to these questions
are at the heart of whether any application of the PPP will be either just or economically
efficient.
A correctly construed polluter pays principle would penalize those who injure other
people by harming their persons, or by degrading their property.
Too often, however, the PPP is misdefined and misused to suppress private economic
activity that benefits the parties directly involved and does no specific damage to other people,
*
The author is Vice President for Research and Resident Scholar, John Locke Foundation.
1
Taking Action, Chapter 2, p. 3. Published by the United Nations Environmental Programme [sic], found at
www.rona.unep.org.action.02.htm.
1
12 August 1992 A/CONF.151/26 (Vol. I) REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT
United Nations A/CONF.151/26 (Vol. I)
General Assembly
Distr. GENERAL
12 August 1992
ORIGINAL: ENGLISH
REPORT OF THE UNITED NATIONS CONFERENCE ON

ENVIRONMENT AND DEVELOPMENT*
(Rio de Janeiro, 3-14 June 1992)
Annex I
RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT
The United Nations Conference on Environment and Development,
Having met at Rio de Janeiro from 3 to 14 June 1992,
Reaffirming the Declaration of the United Nations Conference on the Human

Environment, adopted at Stockholm on 16 June 1972, a/ and seeking to build upon
it,
With the goal of establishing a new and equitable global partnership

through the creation of new levels of cooperation among States, key sectors of
societies and people,
Working towards international agreements which respect the interests of

all and protect the integrity of the global environmental and developmental
system,
Recognizing the integral and interdependent nature of the Earth, our

home,
Proclaims that:
Principle 1
Human beings are at the centre of concerns for sustainable development.

They are entitled to a healthy and productive life in harmony with nature.
Principle 2
States have, in accordance with the Charter of the United Nations and the
principles of international law, the sovereign right to exploit their own
resources pursuant to their own environmental and developmental policies, and
the responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment of other States or of areas
beyond the limits of national jurisdiction.
http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm 1/5
A/CONF.151/26 (Vol. I) REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT
encourage public awareness and participation by making information widely

available. Effective access to judicial and administrative proceedings,
including redress and remedy, shall be provided.
Principle 11
States shall enact effective environmental legislation. Environmental

standards, management objectives and priorities should reflect the
environmental and developmental context to which they apply. Standards applied
by some countries may be inappropriate and of unwarranted economic and social
cost to other countries, in particular developing countries.
Principle 12
States should cooperate to promote a supportive and open international

economic system that would lead to economic growth and sustainable development
in all countries, to better address the problems of environmental degradation.
Trade policy measures for environmental purposes should not constitute a means
of arbitrary or unjustifiable discrimination or a disguised restriction on
international trade. Unilateral actions to deal with environmental challenges
outside the jurisdiction of the importing country should be avoided.
Environmental measures addressing transboundary or global environmental
problems should, as far as possible, be based on an international consensus.
Principle 13
States shall develop national law regarding liability and compensation

for the victims of pollution and other environmental damage. States shall also
cooperate in an expeditious and more determined manner to develop further
international law regarding liability and compensation for adverse effects of
environmental damage caused by activities within their jurisdiction or control
to areas beyond their jurisdiction.
Principle 14
States should effectively cooperate to discourage or prevent the

relocation and transfer to other States of any activities and substances that
cause severe environmental degradation or are found to be harmful to human
health.
Principle 15
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.
Principle 16
National authorities should endeavour to promote the internalization of

environmental costs and the use of economic instruments, taking into account
the approach that the polluter should, in principle, bear the cost of
pollution, with due regard to the public interest and without distorting
international trade and investment.
Principle 17
http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm 3/5
ASEAN AGREEMENT ON TRANSBOUNDARY
HAZE POLLUTION
The Parties to this Agreement,
REAFFIRMING the commitment to the aims and purposes of the

Association of Southeast Asian Nations (ASEAN) as set forth in the
Bangkok Declaration of 8 August 1967, in particular to promote regional
co-operation in Southeast Asia in the spirit of equality and partnership
and thereby contribute towards peace, progress and prosperity in the
region,
RECALLING the Kuala Lumpur Accord on Environment and

Development which was adopted by the ASEAN Ministers of
Environment on 19 June 1990 which calls for, inter alia, efforts leading
towards the harmonisation of transboundary pollution prevention and
abatement practices,
RECALLING ALSO the adoption of the 1995 ASEAN Co-operation

Plan on Transboundary Pollution, which specifically addressed
transboundary atmospheric pollution and called for, inter alia,
establishing procedures and mechanisms for co-operation among ASEAN
Member States in the prevention and mitigation of land and/or forest fires
and haze,
DETERMINED to give effect to the 1997 Regional Haze Action Plan

and to the Hanoi Plan of Action which call for fully implementing the
1995 ASEAN Cooperation Plan on Transboundary Pollution, with
particular emphasis on the Regional Haze Action Plan by the year 2001,
RECOGNISING the existence of possible adverse effects of

transboundary haze pollution,
3. The ASEAN Centre shall regularly and expeditiously provide to
Parties and relevant international organisations the information
referred to in paragraph 2 above.
Article 7
Monitoring
1. Each Party shall take appropriate measures to monitor:
a. all fire prone areas,

b. all land and/or forest fires,
c. the environmental conditions conducive to such land and/or
forest fires, and
d. haze pollution arising from such land and/or forest fires.
2. Each Party shall designate one or more bodies to function as

National Monitoring Centres, to undertake monitoring referred to
in paragraph 1 above in accordance with their respective national
procedures.
3. The Parties, in the event that there are fires, shall initiate immediate
action to control or to put out the fires.
Article 8
Assessment
1. Each Party shall ensure that its National Monitoring Centre, at

agreed regular intervals, communicates to the ASEAN Centre,
directly or through its Focal Point, data obtained relating to fire
prone areas, land and/or forest fires, the environmental conditions
conducive to such land and/or forest fires, and haze pollution
arising from such land and/or forest fires.
2. The ASEAN Centre shall receive, consolidate and analyse the data
communicated by the respective National Monitoring Centres or
Focal Points.
3. On the basis of analysis of the data received, the ASEAN Centre

shall, where possible, provide to each Party, through its Focal
Point, an assessment of risks to human health or the environment
7
arising from land and/or forest fires and the resulting
transboundary haze pollution.
Article 9
Prevention
Each Party shall undertake measures to prevent and control

activities related to land and/or forest fires that may lead to
transboundary haze pollution, which include:
a. Developing and implementing legislative and other

regulatory measures, as well as programmes and strategies to
promote zero burning policy to deal with land and/or forest
fires resulting in transboundary haze pollution;
b. Developing other appropriate policies to curb activities that

may lead to land and/or forest fires;
c. Identifying and monitoring areas prone to occurrence of land

and/or forest fires;
d. Strengthening local fire management and firefighting

capability and co-ordination to prevent the occurrence of
land and/or forest fires;
e. Promoting public education and awareness-building

campaigns and strengthening community participation in fire
management to prevent land and/or forest fires and haze
pollution arising from such fires;
f. Promoting and utilising indigenous knowledge and practices

in fire prevention and management; and
g. Ensuring that legislative, administrative and/or other relevant

measures are taken to control open burning and to prevent
land clearing using fire.
8
Article 10
Preparedness
1. The Parties shall, jointly or individually, develop strategies and

response plans to identify, manage and control risks to human
health and the environment arising from land and/or forest fires and
related haze pollution arising from such fires.
2. The Parties shall, as appropriate, prepare standard operating

procedures for regional co-operation and national action required
under this Agreement.
Article 11
National Emergency Response
1. Each Party shall ensure that appropriate legislative, administrative

and financial measures are taken to mobilise equipment, materials,
human and financial resources required to respond to and mitigate
the impact of land and/or forest fires and haze pollution arising from
such fires.
2. Each Party shall forthwith inform other Parties and the ASEAN
Centre of such measures.
Article 12
Joint Emergency Response through the Provision of Assistance
1. If a Party needs assistance in the event of land and/or forest fires or

haze pollution arising from such fires within its territory, it may
request such assistance from any other Party, directly or through
the ASEAN Centre, or, where appropriate, from other States or
international organisations.
2. Assistance can only be employed at the request of and with the

consent of the requesting Party, or, when offered by another Party
or Parties, with the consent of the receiving Party.
3. Each Party to which a request for assistance is directed shall

promptly decide and notify the requesting Party, directly or through
the ASEAN Centre, whether it is in a position to render the
assistance requested, and of the scope and terms of such assistance.
9
3. A Party providing or receiving assistance in response to a request
referred to in paragraph (1) above shall co-ordinate that assistance
within its territory.
Article 14
Exemptions and Facilities in Respect of the Provision of Assistance
1. The requesting or receiving Party shall accord to personnel of the

assisting Party and personnel acting on its behalf, the necessary
exemptions and facilities for the performance of their functions.
2. The requesting or receiving Party shall accord the assisting Party

exemptions from taxation, duties or other charges on the equipment
and materials brought into the territory of the requesting or
receiving Party for the purpose of the assistance.
3. The requesting or receiving Party shall facilitate the entry into, stay
in and departure from its territory of personnel and of equipment
and materials involved or used in the assistance.
Article 15
Transit of Personnel, Equipment and Materials in Respect of the
Provision of Assistance
Each Party shall, at the request of the Party concerned, seek to

facilitate the transit through its territory of duly notified personnel,
equipment and materials involved or used in the assistance to the
requesting or receiving Party.
PART III. TECHNICAL CO-OPERATION AND SCIENTIFIC

RESEARCH
Article 16
Technical Co-operation
1. In order to increase the preparedness for and to mitigate the risks to

human health and the environment arising from land and/or forest
11
fires or haze pollution arising from such fires, the Parties shall
undertake technical co-operation in this field, including the
following:
a. Facilitate mobilisation of appropriate resources within and

outside the Parties;
b. Promote the standardisation of the reporting format of data

and information;
c. Promote the exchange of relevant information, expertise,

technology, techniques and know-how;
d. Provide or make arrangements for relevant training,

education and awareness-raising campaigns, in particular
relating to the promotion of zero-burning practices and the
impact of haze pollution on human health and the
environment;
e. Develop or establish techniques on controlled burning

particularly for shifting cultivators and small farmers, and to
exchange and share experiences on controlled-burning
practices;
f. Facilitate exchange of experience and relevant information

among enforcement authorities of the Parties;
g. Promote the development of markets for the utilisation of

biomass and appropriate methods for disposal of agricultural
wastes;
h. Develop training programmes for firefighters and trainers to

be trained at local, national and regional levels; and
i. Strengthen and enhance the technical capacity of the Parties

to implement this Agreement.
2. The ASEAN Centre shall facilitate activities for technical co-

operation as identified in paragraph 1 above.
12
Article 17
Scientific Research
The Parties shall individually or jointly, including in co-operation

with appropriate international organisations, promote and,
whenever possible, support scientific and technical research
programmes related to the root causes and consequences of
transboundary haze pollution and the means, methods, techniques
and equipment for land and/or forest fire management, including
fire fighting.
PART IV. INSTITUTIONAL ARRANGEMENTS
Article 18
Conference of the Parties
1. A Conference of the Parties is hereby established. The first meeting

of the Conference of the Parties shall be convened by the
Secretariat not later than one year after the entry into force of this
Agreement. Thereafter, ordinary meetings of the Conference of the
Parties shall be held at least once every year, in as far as possible in
conjunction with appropriate meetings of ASEAN.
2. Extraordinary meetings shall be held at any other time upon the

request of one Party provided that such request is supported by at
least one other Party.
3. The Conference of the Parties shall keep under continuous review

and evaluation the implementation of this Agreement and to this
end shall:
a. Take such action as is necessary to ensure the effective

implementation of this Agreement;
b. Consider reports and other information which may be

submitted by a Party directly or through the Secretariat;
c. Consider and adopt protocols in accordance with the Article

21 of this Agreement;
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