JAMIA MILLIA ISLAMIA

FACULTY OF LAW

ENVIRONMENT LAW ASSIGNMENT

Submitted by

Name: Adiba Khan

Student ID: 20183052
B.A. LL.B. (Hons.) (VI Semester) (Regular)
Faculty of Law, Jamia Millia Islamia

Submitted to: Dr. Ghulam Yazdani, Associate Professor (Faculty of Law, Jamia Millia Islamia,
New Delhi)

(Date of Submission: 20.04.2021)

INTRODUCTION:

 “Plans to protect air and water, wilderness and wildlife are in fact plans to protect man.”

—Stewart Udall

An ecosystem can be visualized as a functional unit of nature, where living organisms interact
among themselves and also with the surrounding physical environment. Ecosystem varies greatly
in size from a small pond to a large forest or a sea. Many ecologists regard the entire biosphere
as a global ecosystem, as a composite of all local ecosystems on Earth….The earth is losing its
quality environment. With the threats of climate change and resource depletion looming over the
world, humans must come together. Measures are taken to protect the environment from
activities that harm and degrade. Environmental Protection gives rise to a host of problems for a
developing nation. Harmonization of environmental values by administrative and legislative
strategies with developmental values is a must. It is to be formulated in the light of prevalent
socio-economic conditions in the country. Protection of the environment and keeping ecological
balance unaffected is a task which not only the government but also every individual, association
and corporation must undertake. India has many laws centering different aspects of the
environment. The Environment (Protection) Act 1986, however, is the only legislation with a
general and wider scope. It supplements and strengthens previous laws. It provides for wide
discretionary powers to the Central Government to ensure the strict protection and preservation
of the environment around us.1

1
Environment Protection Act, 1986, available at https://lexlife.in/2020/05/07/environment-protection-act-1986/
(Last visited April 11, 2021).
ENACTMENT OF TH EENVIRONMNET (PROTECTION) ACT, 1986

The protection of environment was not important in post-independence era of India, because of
need of industrial development and political disturbances. Post-independence, the main concern
was to setup markets, industries, to make new jobs for the citizens. Article 253 of the
Constitution of India empowers the Parliament to enact laws to execute international obligations
or decisions from international conferences and associations. India was an active participant of
the UN Conference on Human Environment held at Stockholm in June 1972. It was an important
event in the history of world environmental laws, as it was the first major conference to be held
on international environmental issues. It is still considered as a turning point in international
environmental politics.

However, after the Bhopal Gas tragedy, Environment protection became priority. After this
incident, the area of Environmental law widens in the country and judicial activity also increases.
After 1986, when first act related to the environmental protection was passed, people showed
some concern about it. The main purpose of the act was to implement the decisions of the United
Nations Conference on the Human Environments.2

The Act is like a safe guard for the nature from the newly emerged industries and the
urbanization. Before this act of 1986, a major enactment was come out just after 2 years after the
Stockholm Conference in 1974. The Indian Parliament makes important change in the area of
environmental management to implement the decisions that were taken at the conference. It was
this time when environmental protection was granted a Constitutional status and environment
was included in DPSP by the 42nd Constitution Amendment. Moreover, laws such as the Air
Act, 1981, Water Act, 1974, and the Wildlife Protection Act, 1972 among others have also been
enacted. The Environment (Protection) Act, 1986 is an umbrella law that seeks to ensure this
protection and improvement of environmental resources.3

2
Priya Bohra, Role of judiciary in environmental protection
3
Environment Protection Act, 1986, available at https://lexlife.in/2020/05/07/environment-protection-act-1986/
(Last visited April 11, 2021).
This Act supplements the existing environment laws and seeks to address the environmental
concerns in totality. It consists of 4 Chapters and 26 sections. It provides for a framework that
aids the coordination between the state and central authorities established under previous
environmental laws.

Objectives and purposes of the Act

The following can be stated as the main objectives and purposes of this Act:

i. The main objective of this Act is to “provide for the protection and improvement of the
environment and all matter connected with it.”
ii. Most importantly, it aims to implement the decisions reached at the UN Conference on
Human Environment which was held in Stockholm in June 1972, of which India had also
been a participant.
iii. The previous environment-related laws were all very specific and due to the same, they
left certain gaps. This Act serves the purpose of covering all those gaps left behind by
previous laws by having a general and wider scope.
iv. The Act aims to facilitate effective coordination between the different central and state
authorities indulged in environment protection and preservation, as established by
existing laws.
v. It aims to confer the Central Government with wide powers to carry out effective
environment protection measures as it sees fit.
vi. It aims to lay down a detailed structure that would provide more stability and clarity on
the environmental laws of the country.
vii. It also aims to provide deterrent punishment to those who endanger the environment,
health, and safety.4

4
SCOPE AND COMMENCEMENT OF THE ACT

The Section 2 of the Environmental protection Act, 1986 (EPA) deals with some of the
information about the definition of the Act of Environment, Environmental Pollutants, Handling,
Environmental Pollution, Hazardous substance, Occupier. Through the definitions of these terms
the Environmental protection Act tends to cover a wide range of matters related to the
environment protection. The Act vested power to the central government that they can take any
reasonable and valid steps and measures for the purpose of the protection and improvement of
the quality of the environment. These measures are taken for the prevention, control and
abatement of environmental Pollution. The central government has the power to authorize or
constitute other authorities for the accurate implementation of powers and duties.5

As per the Section 7   of the Environment Protection Act 1986 suggest that no person in the
country shall be carrying any of the activity or operation in which there is a large emission of
gases or other substances which may lead to excess environmental pollution. It also provides that
any person who is handling the hazardous substance needs to comply with the procedural
safeguards.6

Section 15 states that any person who is not complying to the provisions stated in this act and its
failure or contravention will make him liable and punishable, In terms of imprisonment up to the
extension of the time span of five years, With fine which may extend to the term of one lakh
rupee. Alternatively, the liable person has to deal with both of the punishments. If the
contravention of the offence that continues for one year, the punishment can extend up to seven
years. A provision that if any offence is punishable under the Environment Protection Act and
also under other Act, then the person shall not be liable under the Environment Protection Act,
1986.7

The Environment (Protection) Rules, 1986

5
s. 3
6
S. 8
7
Section 24  
The rules of Environment protection came into force on 19th November 1986 and these rules
provide for the following:

1. The standards of quality of air, soil and water for various areas and purposes of
environment.
2. The standard set up to know about the limits of the environmental pollutants.
3. Rules include the procedure and safeguards needed to handle the hazardous substance.
4. Restrictions and some prohibitions on handling the hazardous substances in different
areas and premise
5. The procedures and safeguards required for the prevention of accidents which may
cause environmental pollution and also the remedies for it.
6. The prohibition and restrictions possessed on the location of industries in different
areas.

ROLE OF CONSTITUTION IN PROTECTION OF ENVIRONMENT

The constitution of India is not an inert but a living document which evolves and grows with
time." The specific provisions on environment protection in the constitution have resulted in this
evolving nature and growth potential of the fundamental law of the land. The original version of
the Constitution lacked rights related to environment as it was prominently dominated by
political and property rights, But in early 1980s, the Supreme Court and the Parliament
understood the growing importance of environment and changed its view from ignorance to
preservation of environment. The 42nd Constitution Amendment Act, 1976, changed the
landscape by inserting specific provisions for environmental protection in the form of Directive
Principles of State Policy and Fundamental Duties. The Preamble to our constitution ensures a
socialist pattern of society along with dignity of the individual and a decent standard of living
and pollution free environment are inherent in this.8

o Article 48A (Directive Principle) enunciates that ‘the state shall endeavor to protect and
improve the environment and to safeguard the forests and wild life of the country’.

8
Siddhanth Saxena & Shivam Narain, Environment Court in India: improving access to Justice, THE
ENVIRONMENT, LAW AND SOCIETY JOURNAL (ELSJ), 3, 2015, p. 25-42.
 o Also entries 17(A) and 17 (B) (protection of wild animals and birds) have been added to
the concurrent list.
o Article 51A (g) (Fundamental Duty) enunciates that ‘it shall be the duty of every citizen
of India to protect and improve the natural environment including forests, lakes, rivers,
wildlife and to have compassion for living creatures’.
o The cumulative effect of Articles 48A and 51A (g) enjoins that both the ‘State’ as well as
the ‘citizens’ are now under the constitutional obligation to conserve, perceive, protect
and improve the environment.

Thus, it gives directive to the State for protection and improvement of environment and imposes
a duty on every citizen to help in the preservation of natural environment. The phrase ‘protect
and improve’ appearing in both the Articles 48A and 51A (g) seems to contemplate an
affirmative government action to improve the quality of environment and not just to preserve the
environment in its degraded form. This constitutional reform initiated a deep involvement of
judges in environmental matters.

Article 47: The State shall regard the raising of the level of nutrition and the standard of living of
its people and the improvement of public health as among its primary duties. The improvement
of public health may be related to the improvement of the environment.
Article 21: The Right to Live in a Clean and Peaceful Environment. The Hon’ble Supreme Court
of India, while laying down the scope of Article 21 of the Constitution of India, held that the
fundamental right of protection of life and personal liberty envisaged under this Article also
embraces not only the physical existence but also the quality of life. The Court has adopted an
expansive view of ‘life’ under Article 21 and enriched it to include environmental rights by
reading it along with Articles 47, 48-A and 51A(g) and declaring:

“Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment
including their right to life with human dignity encompasses within its ambit, the protection and
preservation of environment, ecological balance free from pollution of air and water, sanitation
without which life cannot be enjoyed. Any contra acts or actions would cause environmental,
ecological, air, water, Pollution, etc. should be regarded as amounting to violation of Article
21.”9

In M.C Mehta v. Union of India10, the Supreme Court treated the right to live in healthy and
pollution-free environment as a part of fundamental right to “life” under Article 21 of the
Constitution. Public Interest Litigation under Articles 32 and 226 of the Constitution of India
also resulted in a wave of environmental litigation. As explained, the real growth in the field of
environmental law took place in the exercise of the original jurisdiction of the Supreme Court of
India under Article 32 of the Constitution by way of enforcement of the right to a clean
environment as a facet of the right to life itself.
Thus, India’s ‘Green Constitution’ now guarantees a right to healthy environment, right to clean
air, right to clean water, enjoins the State and its agencies to strictly enforce environmental laws.
While disclosing information in respect of decisions, which affect health, life and livelihood, and
disallows inadequacy of funds and resources as a pretext for the evasion of obligations by the
State. Significant environmental principles like polluter pays, precautionary principle,
sustainable development, public trust doctrine and intergenerational equity have become
entrenched in the Indian law without explicit incorporation in any legislative framework. In this
way, through the interpretation of Article 21, the Court has sought to convert formal guarantees
into positive human rights.
However, the expansion of fundamental right by the Court recognizing right to environment as a
part of right to life has neither been statutorily established nor has it been recognized in national
environmental policy program.

ROLE OF SUPREME COURT

In M. C. Mehta v. Union of India11, popularly known as Shriram Food and Fertilizer Case, the
Supreme Court directed the Company manufacturing hazardous and lethal chemicals and gases
posing danger to health and life of workmen and people living in its neighborhood, to take all

9
Ibid.
10
AIR 1987 SC 1086.
11
AIR 1987 SC 1086.
necessary safety measures before reopening the plant. Thus in this case also the Supreme Court
recognized right to live in a healthy environment as part of right to life.
In the instant case, there was leakage of chlorine gas from the plant resulting in death of one
person and causing hardships to workers and residents of the locality. This was due to the
negligence of the management in maintenance and operation of the caustic chlorine plant of the
company. The matter was brought before the Court through a public interest litigation. The
management was directed to deposit a sum of Rs. 20 lacs by way of security for payment of
compensation claims of the victims of Oleum gas leak with the Registrar of the Court. In
addition, a bank guarantee for a sum of Rs 15 lacs was also directed to be deposited which would
be encashed in case of any escape of chlorine gas within a period of three years from the date of
the judgment resulting in death or injury to any workman or any person living in the vicinity.
Subject to these conditions, the court allowed the partial reopening of the plant.

In M.C Mehta Mehta v. Union of India12, the Supreme Court ordered the closure of tanneries at
Jajmau near Kanpur, polluting river Ganga. The petitioner, a social worker, through a Public
Interest Litigation, brought the matter to the notice of the Court. The Supreme Court said that
notwithstanding the comprehensive provisions contained in the Water (Prevention and Control of
Pollution) Act and Environmental (protection) Act, 1986, no effective steps have been taken by
the Government to stop the grave public nuisance caused by the tanneries at Jajmau, Kanpur. In
the circumstances, it was held that the Court was entitled to order the closure of tanneries unless
they took steps to set up treatment plants.

In Sachidanand Pandey v. State of West Bengal13, the appellants through a public interest
litigation challenged the Government of West Bengal's decision to allot a land for the
construction of a Five Star Hotel near the Zoological Garden of Kolkata. It was argued that
multi-storied building in the vicinity of the Zoo would disturb the animals and the ecological
balance and would affect the bird migration which was a great attraction. The decision was thus
taken without considering its impact on the Zoo.

12
AIR 1988 SC 1115.
13
AIR 1987 SC 1109.
The Supreme Court held that although in view of the Articles 48-A and 51-A (g) of the Indian
Constitution, whenever a problem of ecology is brought before the Court it would not refuse to
interfere only on the ground that priorities are matter of policy and so it is a matter for the policy
making authority. At least the court may examine whether appropriate considerations are borne
in mind and irrelevancies excluded. The court has always the power to give necessary directions.
In the present case, however it was held that the interference of the Court was not called for. It
was held that the decision to allot the land for the construction of Hotel was taken openly by the
Government after taking into consideration all facts and considerations including ecology. Its
action was neither against the interest of the Zoo nor against the financial interest of the state.
The government has acted bona fide in allotting the land to the Taj Group of Hotels for the
construction of a Five Stare Hotel at the vicinity of the zoo.

In 1995 in the case of Virendra Gaur v. State of Haryana14, the Supreme Court once again
asserted that right to life under Article 21 includes right to have pure and pollution free water and
air. It said- “Article 21 protects the right to life as a fundamental right. Enjoyment of life and its
attainment including their right to live with human dignity encompasses within its ambit the
protection and preservation of environment, ecological balance free from pollution of air and
water, sanitation, without which life cannot be enjoyed. Environmental, ecological, air, and water
pollution should be regarded as amounting to violation of Article 21. Therefore hygienic
environment is an integral facet of right to healthy life and it would be impossible to live with
human dignity without a human and healthy environment”.

In Vellore Citizens Welfare Forum v. Union of India and Others15 the petitioner, Vellore
Citizen's Welfare Forum filed a writ petition by way of public interest litigation drawing the
attention of the Court towards the pollution caused by enormous discharge of untreated effluent
by the tanneries and other industries in the State of Tamil Nadu. It was said that the tanneries are
discharging untreated effluent into agricultural fields. Water ways, open land and rivers
rendering the river water unfit for human consumption, contaminating the subsoil water and had
spoiled the physico-chemical properties of the soil making it unfit for agricultural purposes. The
Supreme Court held that such industries though are of vital importance to the country’s
14
1995 (4) SCC 57.
15
AIR 1996 SC 2715.
development but they cannot be allowed to destroy the ecology, degrade the environment and
pose a health hazard and cannot be permitted to continue their operation unless they set up
pollution control devices.

In Andhra Pradesh Pollution Control Board16, the court relied on the Vellore case before
pondering over the various dimensions of the precautionary principle. It was held that the
principle of precaution involves anticipation of environmental harm and taking measures to
avoid it or to choose the least environmentally harmful activity. It is based on scientific
uncertainty. Environmental protection should not only aim at protecting health, property and
economic interest, but also protect the environment for its own sake. Precautionary duties must
not only be triggered by the suspicion of concrete danger but also by concern or risk potential.
The precautionary principle suggests that where there is an identifiable risk of serious or
irreversible harm including, for example extinction of species, widespread toxic pollution in
major threats to essential ecological processes, it may be appropriate to place the burden of proof
on the person or entity proposing the activity that is potentially harmful to the environment.

CONCLUSION

16
AIR 1999 SC 812.
BIBLIOGRAPHY