Environmentalism

It is a jurisprudence which covers anything and everything about environment. There is as such no
defined theory of environmentalism, it has evolved through various cases, convention and conference.
The best example is M C Mehta v. UOI, 1986 from where India started reading environment with the
idea of generation of awareness. It was the time when terms like Global North and Global South got
emerged in the market. The post-modern environmentalism actually started after the WWII. In 1972
Stockholm Conference which came out with Stockholm Declaration. In 1990s after the end of the cold
war concern like ozone depletion, climate change got the attention. This was followed by LPG, market
got opened. Ideas like sustainable development came into lime light. In India environmentalism is huge
dichotomy between Development v. Environment.

How Environment is treated in India?

We have law, rules, regulations which touches almost everything. But at time we lack in enforcement
and implementation. Center and State both can make laws in regard to environment.

Article 248: Parliament has exclusive power to make law with respect to matters not there in concurrent
list or State list.

Article 249: Power of parliament to legislate with respect to a matter in the State List in the national
interest. If the Council of States passed a resolution by 2/3 majority of member present and voting.

Article 252: Power of the parliament to legislate for two or more state by consent.

Article 253: Parliament has power to make law for implementing any treaty agreement or convention if
made at international level.

Article 254: In case of the conflict between the Center and State on the Concurrent list, law of the
Center will prevail.

Swaran Singh Committee

 Recommended for addition of Article 45A and Article 51A(g).

 Forest and wildlife earlier were in State list now after recommendation shifted to the
Concurrent list.

What Constitution speak about environment?

As such there is no fundamental rights explicitly speaks about environment. But with set of events such
as shifting subject matter related to environment in the third list, Expansion of Article 21 post Maneka
Gandhi, 1972 Stockholm Conference, 1974 Water Act and PIL the ambit of the environment got
increased. Therefore, Courts started looking into DPSP, directed while making law DPSP has to be kept
in the mind. Under Article 21 court started expanding it with together reading with Article 14, Article 19,
DPSP and Fundamental Duties. Court introduced Right to have healthy environment under Article 21.

Article 39:

a) Citizen, men and women equally, right to livelihood.

b) Distribution of the material resources for common good.
 c) Prevent concentration of the wealth.

Article 47: Duty of the State to raise the level of nutrition and standard of living, and to improve public
health.

Article 48A: Protection and improvement of the environment and safeguarding forests and wild life.

Article 49: Protection of monument and places and objects of national importance.

E.g., Monument Taz Mahal- There was Lether industry in nearby vicinity of the Taz Mahal, which was
polluting the air, lead to acid rain. The challenge before court was to address the issue or consider the
livelihood of employee.

Court held that it is the responsibility of the government to relocate industry to a safer area.

Article 51(c) rw Article 253: The state shall make effort to respect the international law and treaty, and
the parliament has power to make law for such cause.

Article 51(g): Fundamental duty to protect and improve the natural environment (lakes, rivers and wild
life)

Venkatachaliah Committee Report, 2002

Proposed for “30-D. Right to safe drinking water, prevention of pollution, conservation of ecology and
sustainable development. -

Every person shall have the right –

a) (a) to safe drinking water;

b) (b) to an environment that is not harmful to one's health or well-being; and
c) (c) to have the environment protected, for the benefit of present and future generations so as
to –
i. prevent pollution and ecological degradation;
ii. promote conservation;
iii. and secure ecologically sustainable development and use of natural resources while promoting
justifiable economic and social development.”

Sustainable Development

1. Inter-generational Equity
2. Intra-generational Equity
3. Polluter Pay Principle
4. Precautionary Principle

Rural Litigation and Entitlement Kendra v. State of UP, 1985

Facts of the case.

This is the case of the mining in the Himalayan hill station Mussoorie. There was a lot illegal mining of
limestone happening. As per law the miners have to take license to start mining. Now there were three
categories of miners:
 1. Applied for license and granted and operating.
2. Applied for license and not granted but operating.
3. Not applied and but still operation

The third categories of the people were large in number. Further the situation got worse due to
opencast mining.

Judgement

Two major issues which court taken into consideration:

 It was very difficult to demarcate the line as to what is legal or what not. The court relied on the
data of registration between 1951 to 1969 as legal license holder. Also court said under Forest
Conservation Act government shall consider environment above everything.

Second question was how to balance economic interest?

 The court requested government to file affidavit stating how much out of the total requirement
can be substituted from the import from outside. Based on this data court allowed limited
mining and rest to import from outside. Also asked government to afforest this area as soon as
possible.

Olga Tellis v. Bombay Municipal Corporation, 1986

Facts of the case

In 1981 the Maharashtra State government and the Bombay Municipal Corporation decided to evict the
pavement dwellers and those who were residing in slums in Bombay. A writ petition was filed against
the government and BMC as violation of Art 14, 19 &21 in the HC.

Judgement

The Court held that right to livelihood is guaranteed in Article 21 as part of right to life and if consider
with DPSP Article 39(a). The order passed under the act are unjust and unreasonable.

Bhopal gas tragedy case.

Union Carbide Corporation v. Union of India, AIR 1988 SC 1531

Facts of the case

The Union Carbide Corporation, an American enterprise established a pesticide plant in India because of
its central location. The plant was supposed to produce Sevin, a pesticide. Union Carbide and the Indian
Government had a deal, and under this idea, the Union Carbide had a 50.9% share and the Indian
Investors had a 40.1% share. The plant was named as The Union Carbide India Limited (UCIL). The main
objective of the company was to manufacture chemicals, batteries, pesticides and other industrial
products. On the night of 2nd December 1984, the havoc of gas leak spread unleashed upon the people
of Bhopal. Methyl iso-cyanate escaped the parameters of the factory killing 2600 people instantly and
leaving thousands of them injured. Later reports disclosed the count of people who died reached 20,000
and around 60,000 people suffered irrecoverable physical damage. The government was apprehensive
in implementing strict liability despite the principle being in existence since the Stockholm Conference
came into existence. The Union of India immediately enacted the Bhopal Gas Leak Disaster (Processing
of Claims) Act, 1985 (The Bhopal Act) for speedy trial of this case and to prevent the accused from
escaping liability. The Union of India tried to litigate the case before the foreign courts but the foreign
courts dismissed their petition citing a jurisdictional conflict. The District Court awarded a sum of 350
million as interim compensation to the victims of the accident which was reduced by the High Court to
250 million. The dissatisfaction amongst the families of the victim led the Supreme Court to increase the
amount of compensation to 470 million.

Issues
The validity of the settlement order given by the High Court of Madhya Pradesh was challenged in the
case at hand on the grounds-

 Whether the settlement amount was justifiable or not?

 Is dropping of criminal proceedings against the Union Carbide justified?

Judgement

 The Supreme Court held that the dropping of criminal proceedings is not justified and thus it
quashed the earlier order and directed that criminal proceedings shall be initiated as soon as
possible.
 The Supreme Court also held that the amount compensated is adequate, reasonable and fair; in
case any deficiency arises in the rehabilitation of the victim, the government will take care of
that.
 The Union Carbide Corporation was ordered to indemnify 470 million dollars to the Union of
India to settle all claims payable on or before March 31, 1989.

OLEUM GAS LEAK CASE – MC MEHTA V. UNION OF INDIA, 1987

The Doctrine of Absolute Liability was introduced in this case by P.N. Bhagwati J.

Facts:

 The defendant, Shri Ram Food and Fertilizer Industry belonging to Delhi Cloth Mills Ltd.
produced dangerous chemicals.
 M.C. Mehta had already filed cases against this industry demanding closure of units of this
industry.
 On December 4 the oleum gas leaked from one of the units of the industry.
 Many people lost their lives in this accident including an advocate practicing in the Tis Hazari
Court.
 It is believed that the leakage was caused because of mechanical and human errors.
 not even two days after the accident there was another minor leakage of oleum gas from the
connecting pipes.
 District Court ordered Shriram industry to stop their production of lethal gases and chemicals.
 M.C. Mehta filed a Public Interest Litigation (PIL) under Article 32 of the Indian Constitution.

Judgment:

It was the second case of leakage of toxic gas after the leakage of MIC gas from the Union Carbide plant
in Bhopal within one year. The Supreme Court knew that if they applied the Doctrine of Strict liability
which was laid down in Rylands v. Fletcher case then the industries involved in hazardous work will
escape liability by using an exception to the rule of the strict article. Therefore, the Apex Court decided
to introduce a new rule which will align the Indian circumstances. It laid down the rule of Absolute
liability which did not have exceptions available to a person under strict liability. The court held the
defendant was liable under the rule of absolute liability.

The Court held that the petitioners could claim compensation for the same on behalf of the victims after
filing an action in an appropriate court.

The Court, while justifying the rule gave the following two reasons:

An industry knows all about its operations that are being carried out while producing commodities. It is,
therefore, the industry’s responsibility to have resources and safeguards in case of any danger.

When an industry is involved in a dangerous or hazardous activity for profit then it owes an obligation
towards the public for their safeguard. Therefore, in case of an accident, it has to compensate for the
sufferers.

Bhagwati C.J. while laying down the new principal gave the following statement:

“We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry
which poses a potential threat to the health and safety of the persons working in the factory and
residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure
that no harm results to anyone on account of hazardous or inherently dangerous activity which it has
undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or
inherently dangerous activity in which it is engaged must be conducted with the highest standards of
safety and if any harm results on account of such activity, the enterprise must be absolutely liable to
compensate for such harm and it should be no answer to the enterprise to say that it had taken all
reasonable care and that the harm occurred without any negligence on its part.”

The Court gave the following statement as well:

“Where an enterprise is engaged in hazardous or inherently dangerous activity and harm results to
anyone on account of an accident in the operation of such hazardous or inherently dangerous activity
resulting, for example, in the escape of toxic gas, the enterprise is strictly and absolutely liable to
compensate all those who are affected by the accident and such liability is not subject to any of the
exceptions which operate vis-a-vis the tortious principle of strict liability under the rule of Rylands v.
Fletcher.”

Subhash Kumar v. State of Bihar (1991)

Facts of the case.

Subhash Kumar filed the petition as a Public Interest Litigation to avoid contamination of the river
Bokaro's water due to the release of sludge/slurry from Tata Iron & Steel Co. Ltd. washeries. The
Petitioner claimed that the Water (Prevention and Control of Pollution) Act, 1978 was passed by
Parliament to ensure the cleanliness of water and to avoid pollution. The State Pollution Control Board
was established to carry out the responsibilities set out in Section 17 of the Act. The Board is
recommended to examine trade effluents and sewage treatment plants, as well as evaluate data and
standards for water treatment. No one should intentionally create or permit discharge of any harmful or
contaminating materials in the river, according to Section 24 of the same legislation. The Petitioner
claimed that the Tata Iron and Steel Company executed mining activities in Jamshedpur, commonly
known as the West Bokaro Collieries.

Issues

1. Whether the PIL is maintainable or not and on what grounds?

2. Is the water of the river Bokaro contaminated by the release of sludge/slurry from the
Respondent's Company's washeries?

Judgement

 The Court held that the Public Interest Litigation was not filed in the interests of larger public
good but there was a personal interest involved of the petitioner. On behalf of the materials on
record and keeping in view the facts, the court observed that the petitioner had his own self-
interest and thereby the petition could not be maintainable in the court of law. The court
dismissed Subhash Kumar’s plea and he was also ordered to pay Rs. 5000/- to the Respondents
as costs.
 The court in this case, also focused upon the ambit of Article 21 of the Indian Constitution and
stressed on the need to widen its scope by promoting people’s right to live with a pollution free
environment. But the court decided against going into further detail since the petition was not
submitted in the public interest, but rather for personal gain.

Bichhri case (Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446)

Facts of the case.

An environmental association called the Indian Council for Environmental Legal Action lodged a writ
petition regarding this case. This Environmental group raised a particular issue to shed more light on the
miseries of individuals residing in a village called Bichhri Village, which was occupied by chemical
industries plants. This is a tiny village situated in the Udaipur district, Rajasthan. The village’s northern
section is held by plants such as Hindustan Zinc Limited and several other Chemical Industrial Plants. The
emphasis in this case was made that such businessmen see these opportunities which have the potential
of causing pollution in the area as ways to increase their profit margins by encouraging industrialization
and from exports.

The fourth defendant Hindustan Agro Chemicals Limited in 1987, began manufacturing a concentrated
type of sulphuric acid called oleum together with a single super-phosphate, that posed a serious threat
to the inhabitants of that specific region.

Judgement.

the supreme court implemented the polluter pays concept for the first time, ordering that remedial and
clean-up costs to repair the environment be collected from the polluter under the court’s writ
jurisdiction. This guideline was referred to by the court as a “universal rule” that would apply to all
polluters. As a result, the polluter was ordered to pay compensation for the harm done to the residents,
the soil, and the underground water supply.
Vellore Citizens’ Welfare Forum v. Union of India, AIR 1966 SC 2715

Facts of the case.

The pollution caused by the release of untreated effluent into agricultural fields, roadside, waterways
and open lands by the tanner industries in the state of Tamil Nadu was questioned here. During this
period there were about 299 industries owned by the Tamil Nadu Leather Development Corporation
(TALCO), which was governed by the Tamil Nadu Pollution Control Board. This wastewater was
eventually released into the Polar River, which was the community’s main source of water. The
petitioners argued that the residents of the area could not get clean water as the surface water as well
as the soil water of the Polar River was polluted.

These leather study institutes have also used more than 170 chemicals for this process. It was pointed
out that close to five liters of water is used for the 1kg processing process and therefore a large amount
of waste is released into the environment in a harmful manner. From all these facts it is clear that the
wastewater released by these industries changes the physical chemistry of the soil. As a result,
groundwater was severely damaged. According to a survey conducted by the Agricultural University
Research Center in Tamil Nadu, nearly 35,000 hectares of agricultural land on the border where these
institutes are located have become partially or completely uncultivable.

It was also confirmed that 35 out of 467 wells for drinking water were polluted and that women and
children had to walk long distances to get water. In addition to this investigation, an inquiry by lawyers
MR Ramanan and PS Subramanium at the request of the Legal Aid and Advice Board of Tamil Nadu
confirmed the following.

“These industries earn India a large amount of foreign exchange. The question arises as to whether
these activities should be encouraged when considering the detrimental effects of money on the lives
of millions of people with increasing human populations. That is, it became clear that most of the
tangible establishments that had been established by now did not have at least a healthy
environment.”

Based on these facts, the petition was filed by the Vellore citizens welfare forum as a public welfare case
under Article 32 of the Constitution of India.

Judgement

 The Court ruled in favor of Petitioners and directed all the Tanneries to deposit a sum of rupees
ten thousand in the office of Collector as fine.
 The Supreme Court observed that “the polluter is liable to pay the cost to the individual who
suffers, as well as the cost of reversing the damaged ecology, hence remedying the damaged
environment is part of the process of sustainable development.”
 Precautionary principle was considered by the court.
 Article 142 was extensively used by court especially J. Kuldeep in lieu of his misunderstanding
that these are customary international law.

Can State take away rights?

Section 3 of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights
Act) Act of 2006 defines forest right.
(a) Right to hold and live in the forest land under the individual or common occupation for habitation or
for self-cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other
traditional forest dwellers.

(c) Right of ownership, access to collect, use, and dispose of minor forest produce which has been
traditionally collected within or outside village boundaries.

(m) (2) (ii) The clearance of such developmental projects shall be subject to the condition that the same
is recommended by the Gram Sabha

14. Power to make rules. – (1) The Central Government may, by notification, and subject to the
condition of previous publication, make rules for carrying out the provisions of this Act.

(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is
made, before each House of Parliament, while it is in session, for a total period of thirty days which may
be comprised in one session or in two or more successive sessions, and if, before the expiry of the
session immediately following the session or the successive sessions aforesaid, both Houses agree in
making any modification in the rule or both Houses agree that the rule should not be made, the rule
shall thereafter have effect only in such modified form or be of no effect, as the case may be; so,
however, that any such modification or annulment shall be without prejudice to the validity of anything
previously done under that rule.

Further it can be challenge under 32 as violation of art 21.

Public participation.

Section 4,5,6 Forest Right Act, 2006

Environment Impact Assessment in India is statutorily backed by the Environment Protection Act, 1986

It mandatory for various projects such as mining, thermal power plants, river valley, infrastructure
(road, highway, ports, harbors and airports) and industries including very small electroplating or foundry
units to get environment clearance.

Bichhri case, 1996

Samatha v. State of Andhra Pradesh & Ors, 1997

Facts of the case.

This case concerns the leasing of tribal lands for mining and industrial purposes. The State of Andhra
Pradesh granted leases to several non-tribal persons to mine tribal lands. Samatha, a group
representing the rights of affected tribal persons, filed a petition in the High Court of Andhra Pradesh
arguing that the granting of leases to tribal lands to non-tribal persons for mining purposes violated the
Andhra Pradesh Scheduled Areas Land Transfer Regulation (1959) and the Forest Conservation Act
(1980). The petition was rejected by the High Court and Samatha subsequently appealed to the
Supreme Court of India.

The serious threat to the Adivasis in the country today is the pressure on the provisions of the Fifth
Schedule, which prohibits the transportation of tribal land to non-tribal people/companies.
Judgement

 Under the 73rd Amendment Act, 1992, “each Gram Sabha shall have jurisdiction to safeguard in
accordance with clause (m) (ii), the power to prevent land alienation in the Scheduled Areas and
to take effective action to restore any unlawful alienation of a scheduled tribe’s property.”
 Minerals to be mined by tribals themselves or by cooperative societies with state’s financial
assistance.
 In the absence of absolute prohibition, as part of the project expenditure, the court defined
certain duties and responsibilities to the lessee: at least 20 per cent of net profits as a
permanent fund for development needs apart from reforestation and ecology conservation.
 Transfer of land in Scheduled Areas by way of lease to non-Tribals, aggregate companies, etc. is
prohibited in any manner to avoid their exploitation.
 Transfer of mining leases to non-tribal, private, aggregate companies or alliance firms, etc., is
illegal, invalid and inoperative. State instruments such as APMDC are exempted from the
prohibition.
 A lease extension is a fresh lease grant and therefore any such extension is forbidden.
 In states where there are no acts providing for a complete ban on mining land leases in
Scheduled Areas, the Committee of Secretaries and Sub-Committees of the State Cabinet should
be established and the decisions are taken thereafter.
 Conference of all the chief ministers, ministers holding the ministry concerned and the prime
minister concerned, and the central ministers concerned will take a policy decision for a clear
tribal lands scheme across the country.

1. 1985-2000 Golden period of the Indian Environmental Law.

2. 2000-2014 Good laws + Good judgement.
3. 2014-till now Low Phase

Vellore Citizens’ Welfare Forum v. Union of India, AIR 1966 SC 2715

Polluter Pays Principle

In this case, the principle of “Polluter Pays” was expressly implemented, as the Court ruled that, under
Section 3 and Section 5 of the Environment (Protection) Act, 1986, the Court has the authority to
undertake steps to put such a rule into effect. It was introduced under Principle 16 of the Rio Summit of
1992 which specified that the polluter must principally pay for the pollution charges.

This principle in the Indian context was a result of the continued evolution of the ‘absolute liability’
principle which was set down in the M.C. Mehta v. Union of India case, in which the court-mandated
that the polluters must pay a penalty for causing pollution, which will be used for improving the
environmental and residential conditions for the inhabitants of the regions affected. The concept
developed further with the case of Indian Council for Environment-Legal Action v. Union of India (UOI)
and Ors, in which the Court also included accountability, remuneration to the people affected from the
environmental deterioration with the absolute liability rule for the damage caused to the environment
of the region.
Although the principle of Polluter Pays was accepted by the courts in India, however, its reference does
not seem to be included in the prevailing or prospective laws. The Court established in the Vellore
Citizens Welfare Forum v. Union of India and Ors, case that this principle was regulated by Articles 48-A
and 51-A(g) of the Indian Constitution and that the principle may be inferred with the prevailing
legislation. In many cases even where the pollution created was well within the limitations which were
placed on them, the Courts have still made the polluters pay adequately. For instance, in the case of
Oleum Gas Leak, in which even though Shriram Factories complied with applicable laws like the Air Act
of 1981, the Supreme Court found them responsible for the leakage of oleum gas and for the
deterioration of the environment.

There is also a debate about whether only a civil action against the polluter is satisfactory or whether
there is a necessity to make the polluters criminally liable as well. The provisions of Sections 268 and 290
of the Indian Penal Code were already being utilized to declare the accused criminally responsible for
public nuisance in relation to environmental disturbance, which was way before the adoption of the
Stockholm Declaration in 1972. Following the Stockholm Declaration, the Water Pollution Prevention
and Control Act of 1974, and the Air Pollution Prevention and Control Act of 1981 contain the provisions
for the initiation of criminal proceedings against such polluters.

The environmentalists generally describe a ‘polluter’ in a broader sense and not just as an individual
who causes harm to others but rather as people who use their own assets and resources in such a
manner that damages the environment. Since, there are no victims requiring compensation in such
situations, the payment amount is generally assessed by the degree that it would further discourage
such kinds of conduct. The reimbursement, irrespective of the presence of real victims, is generally
made in the form of a tax to the government. In these kinds of situations, the Polluter Pays Principle is
applied to support an environmental program instead of ensuring that the true polluters pay
remuneration for their activity to the actual victims.

Environment Protection Act, 1986

Section 2(a) “environment” includes water, air and land and the inter-relationship which exists among
and between water, air and land, and human beings, other living creatures, plants, micro-organism and
property (almost include everything)

Section 3. Power of Central Government to take measures to protect and improve environment. ( An
extension of Article 48A)

Section 5. Power to give directions.—Notwithstanding anything contained in any other law but subject
to the provisions of this Act, the Central Government may, in the exercise of its powers and
performance of its functions under this Act, issue directions in writing to any person, officer or any
authority and such person, officer or authority shall be bound to comply with such directions.

Explanation. —For the avoidance of doubts, it is hereby declared that the power to issue directions
under this section includes the power to direct—

(a) the closure, prohibition or regulation of any industry, operation or process; or

(b) stoppage or regulation of the supply of electricity or water or any other service.
Section 24. Effect of other laws.—(1) Subject to the provisions of sub-section (2), the provisions of this
Act and the rules or orders made therein shall have effect notwithstanding anything inconsistent
therewith contained in any enactment other than this Act.

(2) Where any act or omission constitutes an offence punishable under this Act and also under any
other Act then the offender found guilty of such offence shall be liable to be punished under the other
Act and not under this Act.

Right to rehabilitation.

Narmada Bachao Andolan and Others v. Union of India and Others, 2022

Facts of the case.

There was a water dispute regarding the river Narmada between the states of Rajasthan, Madhya
Pradesh and Gujarat. The dispute was regarding the control of the waters, use and distribution. By
applying section 4 of the interstate disputes act 1956 the government of India constituted a tribunal for
that purpose and the matter was referred to it. This tribunal determined the height of the dam. It
directed the state of Gujarat to construct the dam. The tribunal gave the award for constituting the
interstate administrative authority i.e., Narmada control authority and the review committee that would
review the decisions of the NCA. Independent machinery of environment subgroup was also created by
NCA. On 23 April 1994 under the decision of the ministry of water resources there was the closure of ten
construction sluices. The petitioners of the writ petition requested for the independent judicial authority
should review the entire project. The major contention given by the petitioners was of article 21 of the
Indian constitution and ILO convention no 107. They also contended the catchment area treatment
program and rehabilitation needed to be done well before the reservoir filling.

Judgement.

The court ruled for Andolan, effecting an immediate stoppage of work at the dam and directing the
concerned states to complete the rehabilitation and replacement process.

It deliberated on this issue further for several years and finally upheld the Tribunal Award and allowed
the construction to proceed, subject to conditions. The court introduced a mechanism to monitor the
progress of resettlement pari passu with the raising height of the dam through the Grievance Redressal
Authorities (GRA) in each party state. The decision referred in this document, given in 2000 after 7 years
of deliberations, has paved the way for completing the project to attain full envisaged benefits. The
court's final line of the order states, "Every endeavor shall be made to see that the project is completed
as expeditiously as possible".

AP Pollution Control Board v. NV Naidu, 1999

Facts of the case.

 In this case a new factory for the creation of vegetable oils should be built by respondents in the
state of Andhra Pradesh. Respondent industry bought a land parcel in Indore town named
Peddashpur. Inside the scope of the village the supplies that give drinking water to the 5 million
individuals around the space.
  In the year 1988 the Ministry of Forest and Environment set up the red list of unsafe enterprises.
In that red list, the name of respondent's industry was likewise recorded.
 This warning was given by the Central Government dependent on its force under the Eater
counteraction and control of Pollution Act of 1974 just as the Air anticipation and control of
contamination Act of 1981.
 In 1994 under the Directive Principles of Central Government, the State Government forces a
warning where it was referenced that the foundation of any industry inside 10 kilometers of
repositories is to be restricted by law.
 In 1995 could not apply for getting the NOC from the territory of Andhra Pradesh Pollution
Control Board for the foundation of his industry into that space. It was established by the
climate authority of the state.
 Government reaffirmed the standard in 1996. Thus, the State of Andhra Pradesh Pollution
Control Board dismissed the application because of that standard.
 The respondent was informed by the Commission of Industries that he should select an elective
region however he did not pay attention to the commission of ventures different common works
and introduced apparatus.
 Without a doubt, the State of Andhra Pradesh Pollution Control Board the respondent applied
for a NOC.
 Then, at that point likewise the Board dismissed the application.
 Then, at that point reacted fought that he contributes a lot of cash to the foundation of the
business and its activities
 Thereafter, State Government in the wake of assessing demand made by the respondent.
 Then, at that point the authorization and the solution alongside the rules to the respondent
were given to be followed water contamination.
 Thereafter respondent recorded an apple before the investigative Authority under Section 28 of
the Water Act.
 Investigative position switches the orders made by the province of Andhra Pradesh Pollution
Control Board by giving thinking that the respondent had utilized the most recent method for to
prevent ecological contamination.
 At last, the giving of NOC is passable to the respondent.

Judgement

A bench of Justices S.B. Majmudar, and M. Jagannadha of the Supreme Court of India accepted that the
Precautionary Principle and the Polluter Pay Principle are significant parts of the environmental law of
India. The respondent’s company was incorporated as a public limited company with the object of
setting up an industry for the production of B.S.S. Castor oil came under the radar of the petitioner who
contended that the respondent company could not have commenced civil works and construction of its
factory, without obtaining the clearance of the petitioner.

The court reverse the decision made by the appellate authority and considers the application of
respondent for obtaining. First of all, court focus on a question that whether Central government to
exempt and individual hazardous industry within the 10 km area around the reservoir even if he is
following all the procedures and protection measures to safeguard environment. For this particular
question court comes to a conclusion that for the protection of environment and with the regard of 10
kilometer rule the exemption should not to be appropriate in nature and NOC to the respondent could
not be issued. Secondary Court considered second issue that whether as per the report submitted in the
court, respondent could claim exemption from the court or not. In the light of this question court came
to an outcome that the respondent industry will not cause any water pollution even if it was established
under the 10 kilometers area of reservoirs because respondent promised to take necessary actions and
measures to safeguard environment. But Court rejected promissory estoppel made by the to take
necessary action and precautions. Court came to the conclusion that reservoirs is significant as millions
of publics relied upon his reservoirs for drinking water and to give safeguard measures to respondent.
Court held that safeguards good could be failed because of any error human operation or by an
accident. Court does not want to take risk in this matter and you lied on the precautionary principle.
Therefore, it was held that court can’t supersedes the policy decision of the Government thus cannot
issue NOC to respondent.

Orissa Mining Corporation v. Ministry of Environment & Forest & Others, 2013
A landmark decision by the Supreme Court of India, which declared that Gram Sabha has a role to play in
safeguarding the customary and religious rights of the STs and other Traditional Forest Dwellers (TFDs)
like Dangaria Kondha etc. under the Forest Rights Act. The Apex Court maintained that the decision lies
with the locals.

1. Natural Resource Management/ Public Trust Doctrine

2. Public Nuisance/ IPC CrPC.
3. Common Law Rights/ Easement Act
4. Water Act 1974

1. Natural Resource Management/ Public Trust Doctrine

 70% of the surface water is not fit for drinking.

 Urbanization is increasing which leads to more water pollution

M. C. Mehta v. Kamal Nath, 1996

Facts of the case.

Span Motels Private Limited.' was a private company controlled by the owners of Span Resorts that
launched a new project by the name of "Span Club, which was built on the bank of the river. A famous
newspaper called the "Indian Express" published an explosive article titled "Kamal Nath dares the
mighty Beas to keep his dreams afloat" which disclosed issues with the construction of the Span Club.
After the article was published, it was discovered that the 'then Minister of Environment and Forests: Mr
Kamal Nath had a direct connection with the Span Motel Case.

By letter dated November 24, 1993, the Ministry of Environment and Forests gave its prior consent to
the company leasing around 27.12 bighas of additional forest land (dated April 11, 1994). This approval
gave the owners of the company permission to build their ambitious project, named "Span Club, which
led to the overrunning of the swollen river. Also, due to the pressure from the use of bulldozers, tractor
trolleys, and earthmovers, which were used to construct heavily cemented embankments along the
river, which led to a change in the swollen Beas river's course, this also led to the washing away of the
adjoining lawns. An extraordinary flood caused by the Beas River in 1995 destroyed property worth
around 105 crores.

Judgement

In court, this case was judged by a 2-judges bench, who ordered and directed that: After a long
discussion, the court granted the "Public Trust Doctrine" in this case. The public trust doctrine, as
mentioned by the judges during the judgment should be considered as a part of the Land laws. The prior
approval, which was granted by the Ministry of Environment and Forests, and the lease deed in respect
of an area of 27.12 bighas in favour of the company, were quashed by the court. The Himachal Pradesh
Government was directed to take charge of the area and restore it to its primary natural and
environmental conditions. The motel was directed by the court to pay the cost of compensation for the
restitution of the environment and ecology under the Polluter Pay Principle.

The court ordered that the pollution caused by the construction of the motel on the banks of the Beas
River be reversed and removed. It was directed that NEERI should check the pollution control plans
regulated by the motel. The motel was required to build a 4-meter-long boundary wall for its
construction, beyond which they were not permitted to use the river basin's property. The Motel even
should not utilize a single part of the river basin. The river basin should be left untouched from the
Motel's boundary wall. The bank & basin of the river should be left open for the general public use. The
motel was not permitted to discharge the untreated waste into the river. The Board was directed to
examine all the hotels/institutions/factories within the location of Kullu-Manali and simply just in case
any of them gets caught red-handed for discharging untreated waste into the river, the Board should
take strict actions against them as per the law. The Motel through its management should show the
cause of why an additional pollution fine is not obligatory on the Motel. NEERI was directed to submit
the reports by 17th December 1996 which would be listed on 18th December 1996. The writ petition
was disposed of except for the restricted purpose indicated above.

3 Basic Principle

1. Property subject to trust must not only be used only be used for public purpose, but it must be
held available for use by the general public.
2. Property may not be sold even fair cash equivalent.
3. The property must be maintained for particular type of usage

National Audubon Society v. Superior Court, 1983

Facts of the case.

Mono Lake is a saline lake that contains no fish but supports a large number of brine shrimp that feed
vast numbers of nesting and migrating birds. The lake receives some of its water from rain and snow on
the lake surface, but is mostly fed by water flowing from five streams: Mill, Lee Vining, Walker, Parker,
and Rush creeks. These creeks are fed by snowmelt from the Sierra Nevada mountains. In 1940, the
Division of Water Resources, predecessor to the California Water Resources Board, granted to the
Department of Water and Power for the City of Los Angeles (DWP) a permit to appropriate the entire
flow of four out of the five streams flowing into the lake. DWP constructed the facilities to divert the
flow of the streams into the Owens Valley aqueduct. In 1970, DWP constructed another diversion
tunnel, which handled nearly the entire flow of the streams. As the result of the diversions the level of
the lake has dropped and the surface area has diminished by one-third. One of the two principal islands
of the lake has been turned into a peninsula, which allows predators to get access to the birds. The
scenic and ecological value of the lake has been impaired. Plaintiffs filed suit to enjoin the DWP
diversions on the theory that the lake is protected by a public trust.

Judgement

The Supreme Court of California held that diversions from the streams feeding the lake were modified
by the public trust doctrine. Although the granted diversions had been made with great care taken, to
comply with both prior appropriation and riparian law, the court found that public trust rights in the lake
had always existed and must be accommodated when consumptive water rights were granted.
Environmental factors, as wells as appropriation rights, must be taken into account when conducting a
study of the effect of the diversions on the public trust. The public trust doctrine and the appropriative
water rights system are parts of an integrated system of water law. The public trust doctrine serves the
function in that integrated system of preserving the continuing sovereign power of the state to protect
public trust uses, a power which precludes anyone from acquiring a vested right to harm the public
trust, and imposes a continuing duty on the state to take such uses into account in allocating water
resources. The Court issued a peremptory writ of mandate issue that commanded the trial court to
vacate its judgment and to enter a new judgment.

2. Public Nuisance/ IPC CrPC.

Section 268 IPC: A person is guilty of public nuisance.

Section 133-144 CrPC: Magistrate has power to pass any order deem to fit.

Municipal Council Ratlam v. Vardhichand 1980

Facts of the case.

The facts in the current case pertain to Ratlam city in Madhya Pradesh where the residents faced issues
due to pungent smell emanating from open drains. One major cause was the overflow of remains from
the distilleries from the drains which could create a health hazard for the public. Incidents of open
defecation were also reported due to lack of toilets and presence of slums in the area.

In light of the given circumstances, the residents approached the executive magistrate to deal with the
problem. Accordingly, the magistrate passed an order directing the municipality to chart out a
plan/program to remove the drain and construct proper ones along with latrines to avoid open
defecation within 6 months' time.

However, the municipality displayed inability to comply with the order due to lack of funds and the
matter came before this hon’ble court.

Judgement

Justice Krishna Iyer identified the provisions in the IPC and CrPC relating to the law of public nuisance
and interpreted them in the current case.

Firstly, as far as the statutory obligation goes, the municipality cannot shy away from its responsibility in
violation of its rule book/legislation which puts a positive duty on it.
Secondly, the court considered the aspect of public nuisance in contravention of Section 133. of CrPC.

Section 133. to S.143 of CrPC are unique provisions which lay down procedural as well as substantive
law. They are also called “summary remedies”. Section 133. lay down the powers of Magistrate/Sub Div.
Magistrate along with the process where a “conditional order” can be given. For instance, one can really
compel a police officer to take action which can be passed on to the magistrate who issues show cause
notice as to the reason asking the violator why the conditional order shouldn’t be passed. He needs to
appear before the magistrate for the same. This order can be subsequently vacated (if compiled with)
otherwise can be made permanent.

A public authority’s direction cannot be defied and if not followed is punishable u/s 188 of the IPC 1860.
S.188 of the IPC, mandates the satisfaction of following ingredients to constitute a violation,

A lawful order promulgated by an authority/public servant

Knowledge of the order

Disobedience of that order

Result likely to follow due to disobedience of such order

For it to constitute an offence under this section, disobedience should have a consequence attached like
annoyance or obstruction. In this case, the consequence is closely related to public nuisance as non-
compliance of the magistrate’s order would lead to health and environmental issues. The municipality
took the usual defense taken against this section which was that the order was wrong in the sense that
they lacked funds. The court construed this right of the citizens as a “human right” and lack of funds is
no excuse which can stand against such a right. Court in this regard said,

“Decency and dignity are non-negotiable facets of human rights and are a first charge on local self-
governing bodies. Similarly, providing drainage systems-not pompous and attractive, but in working
condition and sufficient to meet the needs of the people-cannot be evaded if the municipality is to
justify its existence”

The court also opined that such self-defense is disgraceful as the municipality has funds to fight the case
but not alleviate the problems faced by the public. It says,

“Had the municipal council and its executive officers spent half this litigative zeal on cleaning up the
street and constructing the drains by rousing the people’s sramdan resources and laying out the city’s
limited financial resources, the people’s needs might have been largely met long ago.”

Court observed that order u/s 133 CrPC is obligatory and mandatory for the municipality to abide by and
the plea of financial inability is totally unjustified in such cases where public nuisance is caused. This
section also furthered the cause of social justice and rule of law in lights of international developments
and the position India took concerning the environment. Therefore, the municipality was directed to
come out with a plan and comply with the order of the magistrate.

Adding to the above discussion court also cited the Gobind Singh case which involved the magistrate
directing the owner of the bakery to demolish his oven and chimney as it caused inconvenience to the
public at large under the relevant sections discussed above. The Supreme court however did not
completely agree with the complete closure which would shut down the baker’s trade (asking baker to
cease trade), but relied on the findings of the Sub Divisional magistrate in local inspection of the site.
This was a change in position from the earlier precedents in which the court questioned the “scientific
evidence” or the findings of the magistrate. Therefore, the court took positive aspect from the
judgement in Gobind Singh case and quoted it,

“We are of the opinion that in a matter of this nature where what is involved is not merely the right of a
private individual but the health, safety and convenience of the public at large, the safer course would
be to accept the view of the learned Magistrate, who saw for himself the hazard resulting from the
working of the bakery.”

3. Common Law Rights/ Easement Act

Section 7 of the Easement Act, 1882

Each every riparian downstream has the right to enjoy unpolluted water.