UNIT II

1. Explain the scope of writ jurisdiction regarding the environmental protection with the help of
decided cases. **
2. Examine the significance and scope of the Writ Jurisdiction in environmental matters.
3. Trace the pre-independence history of forest policy and legislation in India. **
4. Discuss the environmental protection during Post independence era.
5. Enumerate India’s Environmental Policy during Post Independence era.
6. Explain the significant role of Supreme Court of India in protection of Environment in India.
7. Discuss the principles and doctrines evolved by Supreme Court of India for Protection of environment.
8. State the constitutional provisions relating to protection of Environment in India. **
9. Examine the constitutional obligation of the state to protect the natural environment.
10. Explain the constitutional remedies to check and control pollution.
11. ‘Is the right to Clean Environment a Fundamental Right’? Discuss with reference to decided cases.
12. Discuss right to live in a healthy environment as a basic human right and as a constitutional right.
13. Right to Wholesome environment is an integral part of Article 21 of Indian Constitution. Describe.
14. ‘Article 21 of Indian Constitution is wide enough to encompass various aspects of right to clean
environment and earn livelihood’. Discuss with the help of decided cases.
15. Discuss the environmental dimensions of Article 21 of Indian Constitution with the help of decided
cases. **
16. Explain the scope of Article 14 and Article 19(1)(g) of Indian Constitution relating to environmental
protection. *
17. Explain ‘Polluter Pays Principle’ with the help of leading cases. **
18. Explain the principle of Public Trust, Polluter Pays and Precautionary Principles with the help of decided
cases. **
19. Critically analyse the theory of Intergrenerational Equity with the help of decided cases.
20. Explain the significance of Absolute Liability Principle with reference to Environamental Pollution.
21. Discuss the rule of ‘Absolute Liability’ with the help of decided cases. **
22. State the Public Interest Litigation in respect of Noise Pollution with the help of leading cases.
23. Explain the role of Public Interest Litigation in Environmental Protection. *

SHORT NOTES
1. Absolute Liability ***
2. Polluter Pays Principle. ***
3. Genisis of Precautionary Principle.
4. Public Interest Litigation
5. Public Trust Doctrine.
6. Right to clean and healthy environment.
I. WRIT JURISDICTION

24. Explain the scope of writ jurisdiction regarding the environmental protection with the help of decided
cases. **
25. Examine the significance and scope of the Writ Jurisdiction in environmental matters.

INTRODUCTION

A writ petition can be filed before the Supreme Court, and the High Court under Articles 32, and 226
respectively, in order to safeguard the fundamental right that has been infringed. Writ petitions have often
been restored in environment cases since the right to a free and healthy environment has been an implied
fundamental right recognized by Part III of the Constitution of India.

 Subhash Kumar v. the State of Bihar (1991)

The Supreme Court of India in the well-known case of Subhash Kumar v. the State of Bihar (1991) clarified
the fact that public interest litigation cannot include any personal interest of the person submitting a PIL
before the court of law. In the present case, the petitioner had filed a writ petition before the top court by
means of a PIL alleging that the respondents, TISCO were responsible for polluting the river Bokaro by
discharging surplus waste in form of slurry as effluent from their washeries into the river thereby making the
water unfit for drinking and irrigation purposes, and causing risk to the health of the people. The petition
mentioned that the State of Bihar and the State Pollution Control Board had failed to take appropriate
measures for the prevention of pollution and the State of Bihar had also granted leases on payment of royalty
to various persons for collection of slurry. The petitioners had contended that Article 21 of the Constitution
of India, 1950 includes the right to the enjoyment of pollution-free water and air, and this allows a citizen to
invoke Article 32 for removing pollution.

After finding out that there existed no concrete evidence on the part of the petitioner which could support his
allegations on the respondent, the Supreme Court observed that public interest litigation should only be
resorted to by a person in order to protect the interest of the society. Enforcing personal interests by
grabbing public interest litigation is an abuse of the process of the court of law, and therefore the same must
not be entertained.

 AP Pollution Control Board v. MV Naidu (1999)

A bench of Justices S.B. Majmudar, and M. Jagannadha of the Supreme Court of India while deciding on the
case of AP Pollution Control Board v. MV Naidu (1999) 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 judgment of the Apex Court in this present case is interesting to note because of the following
observations that have been made by the Court in light of the present case;

1. A suggestion regarding setting up of Environmental Courts on the regional basis with one
professional Judge and two experts was provided to the Government of India concerning the
increasing number of cases in relation to the environment protection involving assessment and
evolution of scientific and technical data appearing before the Court.
 2. The Supreme Court restricted its jurisdiction only to entertain appeals in cases mentioned in the
previous pointer.
3. A need for amending the notifications issued under Rule 12 of the Hazardous Wastes
(Management & Handling) Rules, 1989 was highlighted by the Supreme Court in this case.
4. A team of both judicial, and technical members are to be included appellate authority under the
Water (Prevention of Pollution) Act, 1974, the Air (Prevention of Pollution) Act, and the
appellate authority under Rule 12 of the Hazardous Wastes (Management & Handling) Rules,
1989, under the notification issued under Section 3(3) of the Environment (Protection) Act, 1986
for National Capital Territory and under Section 10 of the National Environment Tribunal Act,
1995 and other appellate bodies.
5. The principle of inter-generational equity was highlighted by this Court while reiterating the need
for protecting the environment from degradation from the provisions of the 1972 Stockholm
Declaration.
6. The respective state governments were directed to take adequate steps to communicate the
present judgment to their respective State Pollution Control Boards and other authorities dealing
with such subjects so as to adopt appropriate actions that can be taken expeditiously as indicated
in this judgment.

 Narmada Bachao Andolan v. Union of India (1998)

A well-known case that received worldwide attention in concern with the fifth largest river in India,
Narmada knocked the doors of the Supreme Court of India by the name of Narmada Bachao Andolan v.
Union of India (1998). The issue, in this case, was the construction of the Sardar Sarovar Dam on the
Narmada river. The petitioners, in this case, had sought to contend that it was extremely necessary for some
independent judicial authority to review the entire Sardar Sarovar Dam project thereby carrying out
examination on the basis of the current best estimates of all costs (social, environmental, financial), benefits
and alternatives in order to determine whether the project was required in its present form in the national
interest or whether it needs to be re-structured for the future. The petitioners went ahead to point out that no
work should proceed till environment impact assessment had been fully carried out and its implications for
the project viability was being assessed in a transparent and participatory manner. This would therefore
serve as a comprehensive review of the project.

The Supreme Court of India while disposing of the case laid down ten directions that were to be adopted by
the respondent in the process of construction of the said dam;

1. The construction of the dam should abide by the directions provided by the tribunal;
2. Environment clearance was required to be given by the Environment Sub-group under the
Secretary, Ministry of Environment & Forests, Government of India.
3. Clearance on the construction of the dam was to be given by the Relief and Rehabilitation Sub-
group.
4. Permission as to whether the height of the dam could be raised beyond 90 meters was to be
provided by the Narmada Control Authority, from time to time.
5. The states of Madhya Pradesh, Maharashtra, and Gujarat were to abide by the reports of the
Grievances Redressal Authorities.
6. The Environment Sub-group was to continue monitoring and ensuring that all steps were taken
not only to protect but to restore and improve the environment.
7. The Review Committee was to mandatorily meet whenever it was required to do so in order to
solve unresolved disputes.
8. An Action Plan was to be implemented in order to ensure relief and rehabilitation of pari passu
with the increase in the height of the dam.
9. The Grievances Redressal Authorities were provided with the necessary liberty in order to issue
appropriate directions to the respective States for environmental protection.
 10. Every possible measure was to be adopted to see that the project was to be completed
expeditiously.

 MC Mehta v. Union of India (2008)

The case of MC Mehta v. Union of India (2008), familiarly known as the Taj Trapezium case, involved the
Supreme Court of India to direct the Uttar Pradesh government to implement protective measures for
securing the environment that was being affected by the industries surrounding the Taj Mahal monument.
With the monument being threatened with deterioration and damage not only by means of the traditional
causes of decay, but also by changing social and economic conditions, and the latter being in a much more
aggravated form in comparison to the former, it drew the attention of the top court. The major sources of
damage caused to the Taj according to the petitioners are the chemical and hazardous industries and the
refineries at Mathura. The particular matter contributing to the overall pollution, and degradation of the
monument in totality was sulphur dioxide as was found by the Report of the Expert Committee called
“Report on Environmental Impact of Mathura Refinery” (Varadharajan Committee) and was published by
the Government of India in 1978. Further, the Apex Court had also taken note that due to the rapid industrial
development in the Agra-Mathura region, acidic emissions have resulted into the atmosphere at an alarming
rate thereby not only affecting the monument but also the people residing in the region. The directions that
were given by the Court in light of this case as a part of the judgment have been listed below;

1. The Court ordered the setting up of the hydrocracker unit and various other devices by the
Mathura Refinery so as to curb the growing degradation of the environment.
2. The Court directed the Mathura Refinery to set up a 50-bed hospital and two mobile dispensaries,
so as to provide medical aid to people living around the refinery.
3. The construction of the Agra bypass to divert all the traffic which passes through the city was
also directed.
4. The construction of Gokul Barrage for the supply of drinking water to the residents of Agra was
ordered by the Apex Court.
5. The green belt was to be set up on the recommendation of NEERI.
6. The Planning Commission (presently the Niti Ayog) was suggested to sanction a separate
allocation of land for the city of Agra and the creation of a separate cell under the control of the
Central Government to safeguard and preserve the Taj.
7. Shops functioning within the Taj monument were directed to be closed.

 Lafarge India Pvt. Ltd. v. Union of India (2011)

The High Court of Himachal Pradesh while deciding the case of Lafarge Emami Pvt. Ltd. v. Union of India
(2011) took note of the danger possessed by environment clearance for the purpose of infrastructural
development in the nation. Appeals were filed by the National Environmental Appellate Authority
concerning the same. The petitioner company had contended in this case that the environment clearance was
granted to the company following the process laid down by the Environment Impact Assessment. The
Hon’ble High Court was of the view that even if the matter in concern was an administrative one, the
doctrine of judicial review will be applicable as the administrative authorities are bound by the common law
doctrines just like the judiciary.

 Gulf Goans Hotel Company Ltd. v. Union of India (2014)

A bench of Justices Ranjan Gogoi and M.Y. Eqbal took note of an appeal filed by the Gulf Goans Hotel
Company Ltd against the respondent, a non-Governmental body who had claimed to be dedicated to the
cause of environmental and ecological safeguard, and well being of the state of Goa, in the present case of
Gulf Goans Hotel Company Ltd. v. Union of India (2014). While deciding on this case also, the Apex Court
took reference to international conventions and treaties, majorly focusing on Principles 7,11,14, 23, 24 of the
Stockholm Conference. While dismissing the writ petition filed by the appellants, the Supreme Court of
India noted that the respondents’ contention involved the well-being of a large number of people living in
the state and their right to life under Article 21 of the Constitution. The Court further held that violation of
Article 21 cannot be subjectively and individually determined when parameters of permissible and
impermissible conduct are to be legislatively determined under Sections 3 and 6 of the Environment
Protection Act, 1986.

 Indian Council for Enviro-legal Action vs. Union of India (2011)

The Supreme Court of India made an extraordinary observation in the case of the Indian Council for Enviro-
legal Action vs. Union of India (2011), a case which was breathing for over 15 years to reach a logical
conclusion. This case sets a classic example of the abuse of the process of law by the respondent company.
Familiarly known as the Bichhri village case, the present case shows the sanctity and credibility of the
judicial system in general. The Apex Court directed that all chemical industries irrespective of their size
should be allowed to be established only after taking into consideration all the environmental aspects that are
to be abided by and monitoring their functions to ensure that they do not pollute the environment around
them. Taking into account that most of the industries in association with this case are water-intensive
industries, it was advised that the establishment of these industries in arid areas may also require
examination, and appropriate directions were directed to be issued as per need, in accordance with Sections
3 and 5 of the Environment Act. It is the responsibility of the Central Government to mandatorily ensure that
the directions given by it are implemented efficiently.
II. CONSTITUTIONAL PROVISIONS

1. State the constitutional provisions relating to protection of Environment in India. **

2. Examine the constitutional obligation of the state to protect the natural environment.
3. Explain the constitutional remedies to check and control pollution.
4. ‘Is the right to Clean Environment a Fundamental Right’? Discuss with reference to decided cases.
5. Discuss right to live in a healthy environment as a basic human right and as a constitutional right.
6.Right to Wholesome environment is an integral part of Article 21 of Indian Constitution. Describe.
7.‘Article 21 of Indian Constitution is wide enough to encompass various aspects of right to clean
environment and earn livelihood’. Discuss with the help of decided cases.
8.Discuss the environmental dimensions of Article 21 of Indian Constitution with the help of decided cases.
**
9.Explain the scope of Article 14 and Article 19(1)(g) of Indian Constitution relating to environmental
protection. *

INTRODUCTION

Our Constitution has enormously grown and evolved over the years and is said to be one of the most
amended constitution so far. In the Indian background, the status of environment protection has not only
raised to the fundamental law of land but after a long time in recent past it is corresponded with human
rights and is now accepted as well established fact that it is basic human right to every citizen of India

The fundamental duties enshrined in our constitution imposes duty on individuals to protect environment in
order to provide each and every human clean environment and a life with dignity and harmony.

In our Constitution, it is vividly expressed that Directive Principles of state policy are bent towards the ideas
of Welfare State and healthy environment is said to be an essential ingredient for welfare state. Article 47
states that the State shall regard the raising of the level of nutrition and the standard of living of its people
and also the improvement of public health which includes the protection and improvement of environment
as a part of its primary duties.

The Constitution of India under part III guarantees fundamental rights which are essential for the
development of every individual and to which a person is inherently entitled by virtue of being human alone.
Right to environment is also a right without which development of individual and realisation of his or her
full potential shall not be possible. Articles 21, 14 and 19 of this part have been used for environmental
protection.

ARTICLE 14 - Right To Equality

Equality before the law and equal protection of the law has been granted under Article 14 of the
Constitution. This fundamental right impliedly casts a duty upon the state to be fair while taking actions in
regard to environmental protection and thus, cannot infringe Article 14. In cases of exercise of arbitrary
powers on behalf of the state authorities, the judiciary has played a strict role in disallowing the arbitrary
sanction. Use of discretionary powers without measuring the interest of the public violates the fundamental
right of equality of the people.

In Bangalore Medical Trust V. B.S Muddappa, an improvement scheme was prepared by the City
Improvement Board of Bangalore for the purpose of extending the city. A low-level park was to be
developed for which an area was kept under this scheme. But under the direction of the chief minister the
area kept for the low-level park was to be converted into the civic amenity site where the hospital was to be
constructed. As soon as the construction began, the residents moved to the high court.The petition moved in
by the residents was allowed by the high court. But in appeal to the supreme court, the appellant contended
that the power to allot sites is completely a discretionary one and the developing authority has the right to
allow the site for making hospital rather than a park. And thus, the diverted use of the land was justified in
the eyes of the appellant.By explaining the importance of open spaces and parks in the development of urban
areas, the supreme court rejected the appeal. The Hon’ble court further stated that the open spaces,
recreation, playing grounds and protection of ecology are the matters of vital importance in the interest of
public and crucial for the development. Keeping open spaces for the interest of the public is justified cannot
be sold or given on lease to any private person solely for the sake of monetary gains.

ARTICLE 19(1)(a) - Freedom of Speech and Expression and Environment

Right of speech and expression is a fundamental right expressly mentioned in Article 19(1)(a) of Part III of
the Constitution. There have been a number of cases where people have approached the court through the
way of speech and expressing themselves by writing letters like that in the case of Rural Litigation and
Entitlement Kendra, Dehradun v. State of Uttar Pradesh where they have expressed the violation of their
right to have a clean and safe environment and a right to livelihood.

In India, the media has been playing a crucial role in moulding the perception of people in issues relating to
the environment. Thus, Article 19(1)(a) is interpreted to include the freedom of the press as well.

ARTICLE 19(1)(g) - Freedom of Trade and Commerce and Environmental Protection

All the citizens of India have a fundamental right to carry on any profession or business, trade or commerce
at any place within the territory of India under Article 19 (1)(g) of the Constitution. But this is not an
absolute right and thus, has reasonable restrictions to it. Article 19(6) of the Constitution lays down the
reasonable restriction to this fundamental right to avoid the environmental hazards.

The purpose is to avoid the ecological imbalance and degradation of the atmosphere in the name of carrying
on a trade, business, occupation or carrying on any profession. Thus, in the name of business or profession,
one cannot cause harm to the environment.

In M.C Mehta v. Union of India, AIR 1988 SC 1037 certain tanneries were discharging effluents in the holy
river Ganga which was causing water pollution. Further, no primary treatment plant was being set up despite
the constant reminders. It was held by the court to stop the tanneries from working because the effluents
drained were ten times more noxious as compared to the ordinary sewage water which flows into the
river.The court ordered while directing tanneries to be stopped from working which have failed to take
necessary steps as required for the primary treatment of effluents from the industries. The court while
passing this order contended that, though the court is conscious about the unemployment that might usher
due to the closure of the tanneries but health, life and ecology holds greater importance in the eyes of law.

In M.C Mehta v. Union of India, 1994, it was directed by the Supreme Court that the industries who did not
comply or adhere to, with the prior direction of the Hon’ble court regarding the installation of air pollution
controlling system should be closed. In this case, the supreme court laid down its greater emphasis
on Article 19(6) of the Constitution.

In S. Jagannath v. Union of India , sea beaches and sea coasts were considered to be the gifts of nature, by
the Hon’ble supreme court and any such activity which pollutes these natural resources or the gift of nature
cannot be permitted to function. In this case, a shrimp farming culture industry by modern method causing
degradation to the ecosystem, discharge of polluting effluents, polluting the potable ground-water and
depletion of the plantation. All of these activities were held to be violative of constitutional provisions and
other legislation dealing with environmental matters, by the court.The court further held that before the
installation of any such industry in a fragile coastal area it is essential for them to necessarily pass the strict
environmental test. In other words, reasonable restrictions can be laid in accordance with Article 19(6) of
the Constitution.
ARTICLE 21

Introduction

This is the basic essence of Article 21 which is a fundamental right and fundamental rights are justifiable
only against the state, therefore, one can only approach the judiciary for the infringement of this article if the
state violates it.
This article under three main heads:
1. Right to Life
2. Right to Personal Liberty
3. The procedure established by law

RIGHT TO LIFE

This onerous task of interpreting the word 'life' in Article 21 is left to the judiciary by our Constitution-
makers; hence, a new perspective comes into the picture and the ambit of Article 21 keeps on widening.

The court in the case Kharak Singh v. the State of UP, for the first time, talked of life as something more
than mere animal existence, the judiciary came with the following view:
By the term, life as here used something more is meant than mere animal existence. The inhibition against
its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally
prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the
destruction of any other organ of the body through which the soul communicates with the outer world, by
the term liberty, as used in the provision something more is meant than mere freedom from physical restraint
or the bonds of prison.

A broader sense to the same argument was given in succeeding judgments where the right to life also
included the right to live a healthy life and to protect and save one's cultural values. A new dimension to
right to life was given by the landmark judgment of Maneka Gandhi v. Union of India and later by Bandhua
Mukti Morcha v. Union of India.

Facts: The petitioner Bandhua Mukti Morcha is an NGO which works for the welfare of the people. While
they were conducting a survey, they found some stone quarries in Faridabad where the workmen were in
extreme situations. The working conditions there were very unhygienic and unsuitable for these workers
who had come from different parts of the country to work here. The petitioner wrote a letter to Justice
Bhagwati regarding the workplace and working conditions of those workmen. This letter was taken as a writ
petition under Article 32 of the constitution and a commission was made to enquire about the allegations put
forth by the petitioner. The commission proved the allegations to be right and there was infringement of the
rights of the labourers.

RIGHT TO PERSONAL LIBERTY

The Supreme Court has interpreted personal liberty as something more than freedom from bodily restraint,
liberty not only in the physical sense but also in every aspect of life be it be liberty of thoughts, liberty of
choice and other freedoms which constituent essential part of personal liberty. One such concept is the right
to privacy, which is in a lot of debate due to the Aadhar issue. It was in the case of MP Sharma v. Satish
Chandra when the issue of privacy was talked about for the first them and at that time it was not even
considered a right in India.

Subsequently, in the case of Kharak Singh, Justice Subba Rao, although in the minority opinion observed an
excellent point which set forth the future of the right to privacy as a fundamental right.

Though what all will constitute part of a person's privacy is still a very subjective question and the judiciary
cannot list down the elements. The fact that is important here to note is definition will change with the
situation to situation but having a law to safeguard your freedom creates a sense of security in the minds of
citizen that their fundamental rights would not be hampered.
It was finally in the case of Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors.,where the
right to privacy has been recognized as a fundamental right under the Indian Constitution and it was held
that privacy as a right cannot be restricted to only Article 21 as it has its place in all the fundamental rights
in some of the other ways.

PROCEDURE ESTABLISHED BY LAW

The only exception upon which the state can deprive a person of his right to life and personal liberty is
depriving according to the procedure established by law i.e. on lawful grounds. The best example to explain
this could be the court's order for the death penalty for heinous offences. The Supreme Court in various
pronouncements has laid down the basis of procedure established by law. The judiciary in the case of
Maneka Gandhi v. Union of India observed that-

'The procedure prescribed by law for depriving a person of his life and personal liberty must be 'right, just
and fair' and not 'arbitrary, fanciful and oppressive,' otherwise it would be no procedure at all and the
requirement of Article 21 would not be satisfied.'

ARTICLE 21 CONCERNING ENVIRONMENTAL JUSTICE

An average person would never agree to live in these conditions, and living in these conditions would only
amount the literal meaning of living which would be equivalent to animal existence and as already discussed
right to life does not mean mere animal existence but living in better humanly living conditions with proper
access to basic needs such as clean air and water. And in this way, the right to a clean environment has been
made an essential part of Article 21 of the Constitution.

In Andhra Pradesh Pollution Control Board v. M.V Nayudu, Justice Jagannatha Rao placed the human rights
issues and environmental problems on the same pedestal. He does not doubt in saying that both human rights
and environmental rights derive strength from Article 21 of the Constitution of India. He further observed-
'Environmental concerns arising in this Court under Article 32 or Article 136 or Article 226 in the High
Courts are, in our view, of equal importance as Human Rights concerns. Both are to be traced to Article 21
which deals with the fundamental right to life and liberty. While environmental aspects concern life, human
rights aspects concern liberty. In our view, in the context of emerging jurisprudence relating to
environmental matters, - as it is the case in matters relating to human rights, this Court must render Justice
by considering all aspects.

There are a lot of judgments in which the Supreme Court has shown concern towards the jurisprudence of
environmental matters. The apex court has also held that in cases where a person's right to the enjoyment of
pollution-free air and water is hampered, he can file public interest litigation for the same. This landmark
judgment was given in the case of Subhash Kumar v. the State of Bihar.

Another one of its kind judgment in this way was Murli S. Deora v. Union of India, where the court
recognized passive smoking as a serious issue and it was held that a person's right to life is hampered when
he is subjected to passive smoking and is made a victim of smoker's act.

RIGHT TO CLEAN WATER UNDER ARTICLE 21

Water has always been considered sacrosanct and of a lot of importance since time immemorial, we find
traces of this from our old texts such as the Rigveda, the Atharvaveda and the Yajurveda. It is so essential to
human survival that even the apex court has considered it necessary to recognize as a fundamental right.

In the landmark judgment of Susetha v. State of Tamil Nadu, the Supreme Court observed that:
The water bodies are required to be retained. Such requirement is envisaged not only since the right to water
as also the quality of life is envisaged under Article 21 of the Constitution of India, but also because the
same has been recognized in Articles 47 and 48-A of the Constitution of India. Article 51-A of the
Constitution of India furthermore makes it a fundamental duty of every citizen to protect and improve the
natural environment including forests, lakes, rivers and wildlife.

Similarly, in the case of Subhash Kumar v. the State of Bihar, it was held that the right to water is a
fundamental right under the right to life of the Indian Constitution and that one can approach the court upon
the infringement of the same.

There are several cases in which the issue has been raised and where the right to clean and pure water has
been given importance. One such case is against Coca-Cola Kerala State in which the court recognized the
state as a trustee to protect the natural resources. 'The presiding judge, Justice K Balakrishnan Nair, asserted
that the government had a duty to act to protect against excessive groundwater exploitation and the inaction
of the State in this regard was tantamount to infringement of the right to life of the people guaranteed under
Article 21 of the Constitution of India. Apart from the Constitution, the right to clean water has also taken
place in the Indian Penal Code (IPC) and tort law of India and the code of criminal procedure.

 Section 277 of the IPC provides Fouling the water of public spring or reservoir:

Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, to render it less fit for the
purpose for which it is ordinarily used, shall be punished with imprisonment of either description for a term
which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

Though this provision is narrow in nature as it does not provide apply to run water sources such as river or
canals. Also, there is a general provision under section 268 of IPC which defines public nuisance, here this
covers water pollution also.

 Under the law of tort, pollution of water is a tortuous act and is covered under nuisance as it hampers
a person's right to health.

In the case of Pakkle v. P Aiyasami Ganapathi, the court held that rendering a person's right to water by
making it less fit for drinking and using in any way gives rise to nuisance.

The Criminal Procedure Code (CrPC), 1973 likewise has some broad arrangements which cover pollution
exercises. Sections 133 and 144 of CrPC enable the District or Executive Magistrate to take quick measures
to prevent or subside the toxic movement of pollution.

The landmark outline of the application of this example is Municipal Council, Ratlam v. Vardichan. In this
case, occupants of Ratlam filed an objection under Section 133 CrPC claiming that the region had neglected
to keep the release from the adjacent liquor plant of foul liquids from the general population and give sterile
smell on the streets. The SC guided the directed to pursue the statutory obligations and prevent the effluents
from the liquor plant from streaming into the road.

There are numbers of landmark judgments which clearly highlights the active role played by the judiciary in
environmental protection. Some of these are as follows:

Municipal Council, Ratlam vs Shri Vardhichand & Ors, 1980

It was one of the first cases which contributed to the expansion of horizons of environmental protection. In
this case a petition was filed by the residents of a municipality in Ratlam alleging that the municipality is not
constructing proper drains resulting in stench and stink caused by the excretion by nearby slum-dwellers. It
was stated by Supreme Court that Right to life includes Right to a wholesome environment and the
residents have the right to exercise it against State. It acknowledged the effects on poor of deteriorating
environment and compelled the municipality to build proper sanitation and drainage.
Rural Litigation and Entitlement Kendra v. State of UP, 1989

In 1987, a petition was filed by Rural Litigation and Entitlement Kendra on behalf of Doon valley residents
to stop the quarrying of limestone in the Mussorie valley. It was argued that these quarrying activities are
disturbing the ecological and environmental balance in the valley. SC ordered to stop the quarrying activities
in the valley which was later declared an ecologically fragile area under the Environment Protection Act.

F.K. Hussain vs Union Of India And Ors, 1990

Recognising that right to health is a part of the right to live under Art. 21, the Kerala High Court has
observed that the right to clean water and air are attributes of the right to life.
III.ROLE OF SUPREME COURT

1. Explain the significant role of Supreme Court of India in protection of Environment in India.
2. Discuss the principles and doctrines evolved by Supreme Court of India for Protection of environment.

Introduction

The word “environment” relates to surroundings. It includes virtually everything. It can be 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.

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.”
Thus, 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.

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. The
statutory remedies incorporate 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 Section 268 for open irritation, under the 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.

Principles and doctrines propounded by the Indian judiciary:-

1. Doctrine Of Absolute Liability

The Bhopal Case: Union Carbide Corporation v. Union Of India

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

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 environmental 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 India

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

The 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
forests have such 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 Others

The public trust doctrine, as discussed by the court in this judgment is a part of the law of the land.

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”. There is a need for the courts to strike a balance between development and the
environment.

Rural Litigation and Entitlement Kendra v. the State of UP

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 Forum

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 Supreme Court of India has adopted the sustainable development principles

Sustainable development is not a new notion; many societies throughout history have recognized the
importance of achieving a balance between the environment, society, and economics. The articulation of this
concept of global industrial and information society in the twenty-first century is novel. Sustainable
development means many things to different individuals, but according to the Brundtland Report.

“Sustainable Development is a development that meets the needs of the present without compromising the
ability of future generations to meet their own needs.”

Sustainable development focuses on raising the living standards of all people on the planet without risking
the environment’s ability to supply them indefinitely; it necessitates an understanding that actions have
consequences, and we must find innovative ways to change institutional structures and individual behaviour,
in other words, it’s about taking action, changing policy, and practice at all levels.

The Supreme Court of India has stated that the United Nations Conference on Human Environment raised
environmental consciousness. The idea of “sustainable development” was also established for the first time
at the Stockholm Conference in 1972, and it is now recognized as a part of Customary International Law

The Supreme Court of India recognizes the following principles of sustainable development, which can be
defined as a programme or strategy for sustained economic and social progress without compromising the
environment and natural resources on which continued activity and development are dependent.

1. Inter-general equity consists of: – “Right development must be accomplished so that equality
meets developmental and environmental demands to current generations,” says Principle 3 of the
Rio de Janeiro Declaration. In the case of Bombay Dyeing & Mfg. Co. Ltd. vs. Bombay
Environmental Action Group, the Supreme Court of India supported this approach. The
principle’s major goal is to ensure that the current generation does not misuse nonrenewable
resources in order to deprive future generations of their benefits.
2. The Precautionary Principle is as follows: – “In order to conserve the environment, the
precautionary approach shall be extensively adopted by States according to their capacities,” says
Principle 15 of the Rio de Janeiro Declaration. “Lack of full scientific certainty shall not be used
as an excuse to postpone cost-effective steps to avoid environmental degradation where there is a
threat of catastrophic or permanent damage.” The Indian Supreme Court embraced this approach
in a modified version, explaining that it has resulted in the principle of burden of proof in
environmental matters, where those seeking to change the status quo bear the burden of proof as
to the absence of detrimental effects of the proposed acts.
3. Principle 16 of the Rio Declaration: states that “national authorities should endeavor to promote
the internationalization 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 for the public interest and without distorting international trade and investment.” It is
obvious from the preceding note that the goal of the above concept is to hold polluters responsible
not just for compensating victims, but also for the costs of rehabilitating the ecosystem.

The Indian judiciary’s crucial role in interpreting laws to suit the sustainable development doctrine.

The Indian Supreme Court and High Courts have played a significant role in upholding the Sustainable
Development Doctrine. Various laws have been enacted in India to avoid environmental deterioration. In
this case, the higher court has played a critical role in interpreting those statutes in accordance with the
Sustainable Development Doctrine.

The Indian judiciary has played a vital role in promoting sustainable development and fostering public and
private industry while minimising the risk of irreversible damage to the natural environment, which is
necessary to maintain the planet’s and India’s healthy flora and fauna. It should be mentioned that all
lawsuits involving environmental issues have been brought before the court through Public Interest
Litigation (PIL) under Article 32 or Article 226 of the Indian Constitution.

The Supreme Court of India has made a tremendous contribution to environmental and ecological
protection, as well as the protection of forest wildlife, among other things. Despite the court’s limited
jurisdiction, it has played an important role in this regard. True, we have enough environmental regulations,
but their execution is in the hands of administrative authorities, and in this regard, excellent governance
devoid of corruption is the most important requirement for environmental protection.

Court verdicts pertaining to the environmental protection

This should be noted that the Indian judiciary has taken a leading role in environmental protection and
sustainable development in India. The judiciary’s commitment to social good in general, and environmental
protection in particular, has resulted in the innovative use of “public interest litigation” under Articles 32
and 226 of the Indian Constitution as a tool for social and environmental justice.

The right to a healthy environment has been incorporated directly and indirectly into Indian top court
judgments, with the first link between environmental quality and the right to life being established in the
case of Charan Lal Sahu Etc. vs. Union of India and Others, also known as the Bhopal Case.

In Subhash Kumar vs. the State of Bihar, the Supreme Court of India construed Article 21 of the Indian
Constitution to hold that the right to life includes the right to a healthy environment, which includes the right
to pollution-free water and air for the full enjoyment of life. The Supreme Court has recognized the right to a
healthy environment as a basic right in this judgment.

The Supreme Court introduced the new concept of “absolute liability” for disasters arising from the storage
or use of hazardous materials from their factories in M.C. Mehta vs. Union of India & others, also known as
the Oleum Gas Leak case. The enterprise must ensure that no harm has been caused whether negligence
occurred or not.

The Supreme Court of India held in Vellore Citizen Welfare Forum vs. Union of India while businesses are
important for a country’s development, the doctrine of sustainable development must be adopted by them as
a balancing concept, and the ‘precautionary principle’ and the ‘polluter pays principle’ must also be
accepted as part of the law.

The Supreme Court stated in M. C. Mehta vs. Kamal Nath that “any disruption of the basic environment
elements, namely air, water, and soul, which are necessary for existence, would be hazardous to life.” As a
result, a court exercising jurisdiction under Article 32 can award not only damages but also fines for
environmental degradation.

The Gujarat High Court stated in Abhilash Textiles vs. Rajkot Municipal Corpn. that “the petitioners cannot
be allowed to harvest profit at the expense of the public health.”
IV.POLLUTER PAYS PRINCIPLE

1. Explain ‘Polluter Pays Principle’ with the help of leading cases. **

2. Explain the principle of Public Trust, Polluter Pays and Precautionary Principles with the help of decided
cases. **
3. Polluter Pays Principle. ***(6)

Introduction

In India, the ‘polluter pays principle was for the first time applied and defined in the 1996 case of the Indian
Council of Enviro-Legal Action vs Union of India. In this case, Justice Dalveer Bhandari determined that
reversing the imbalance caused to the ecology is the part and parcel of the industrial process. Thus, the
financial responsibility of taking prevention and controlling measures for the pollution caused should rest
upon the industry which caused pollution. The financial burden cannot be shifted to the shoulders of the
government neither in preventing nor in correcting the dent.

Polluter Pays Principles is a globally well-recognized and much-celebrated environment law principle.
There is no definition of the term polluter pays principle similarly the scope of its application is also
doubtful and there is a lack of clear agreement on permissible expectations. The polluter pays principle is the
commonly accepted practice that those who produce pollution should bear the cost of managing it to prevent
damage to human health or the environment.

The Rio declaration adopted in 1992 also recognised the polluter pays principle. According to principle 16
of the declaration, 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, weather due regard to the public interest and without distorting inter-
nation trade and investment
Thus the principal means
1. The polluter should before the administration of the pollution control system
2. The pollutant should pay for the consequence of the pollution, for example, compensation and clean-up.

Meaning

The ‘polluter pays’ principle is an environmental policy principle which requires that the costs of pollution
be borne by those who cause it. The ‘polluter pays’ principle is normally implemented through two different
policy approaches: command-and-control and market-based. Command-and-control approaches include
performance and technology standards, such as environmental regulations in the production of a given
polluting technology. Market-based instruments include pollution or ecotaxes, tradable pollution permits and
product labelling.
The Polluter Pays Principle imposes liability on a person who pollutes the environment to compensate for
the damage caused and return the environment to its original state regardless of the intent.

Case Laws

Indian Council for environmental legal action vs union of India 2011

In case, the polluter pays principle was applied for the first time in India, the court tried to define the polluter
pays principle and its scope. Justice Dalveer Bhandari and Justice H.L. Datta said, “ the polluter pays
principle to demand that the financial cost of preventing or remedying the damage caused by pollution
should lie with the undertaking which causes the pollution or produce the good which causes the pollution.
Vellore Citizens Welfare Forum vs Union of India & Ors

In this the citizens complained that the untreated effluents of tanneries and other industries of Tamil Nadu
are discharged into rivers. In the tanneries about 200 tons of leather were produced each day; every one kilo
utilizes 40 litres of water in the process and every litre of water contained 176 different forms of toxic acids.
Such toxic nature of the effluents resulted in contamination of potable water. Due to rain and floods in the
nearby town the river water flowed into the adjoining lands. The lands adjoining were mostly used for
cultivation and agricultural purposes. As a result, the agricultural land was contaminated due to the effluents.
Hence, in this case, the industrialists ought to take the necessary steps for the restoration of the environment.

M.C. Mehta Vs Kamal nath 1997

In this case also known as Span Motel Case the court opened that ' one who pollutes the environment must
pay to reserve the damage caused by his act' It was proved that the motel administration changed the course
of the river in order to save the model from future floods. The court held that the motel should pay
compensation by way of cost for the restitution of the environment and ecology of the area.

Vineet Kumar Mathur v. Union of India (1996) 7 SCC 714

In this case, Public Interest Litigation was filed alleging the pollution of Gomti River water due to the
discharge of effluents from the distillery of Company (Mohan Meakin Ltd). The Court issued orders
granting time for removal of deficiencies in the effluent treatment plant of the Company. The Company
deliberately violated the orders of the Court. Rejecting the unconditional apology of the containers a
compensatory cost of five lakhs was imposed on it with a direction to deposit the same in the court within
the period of four months and the said amount was to be utilised for the purposes connected with cleaning of
Gomti River.

M.C. Mehta Vs Union of India 1987

In this case also known as the drum gases leak case Shri Ram food and fertilizer a subsidiary of Delhi cloth
mill limited was manufacturing caustic chlorine and oleum at a plant surrounded by physically polluted
colonies Environment list and lawyer, M.C. Mehta requested the supreme court for the immediate closure
and relocation of the industrial complex.On the 4th of December 1985, one month after the petition was
filed oleum head lead from the complex into the surrounding community resulting in one fertility and many
injuries. Justice P.N. Bhagwati writing for a constitution branch discusses the need for the development of
the polluter pays principle in the Indian sustainable development. The court also discussed the concept of
strict liability and absolute liability citing the famous Rylands Vs Flethcher case.

The Taj Trapezium Case

In M.C. Mehta vs Union of India and Ors, it was reiterated by the apex court reiterated the ‘polluter pays
principle and emphasized the need for application of the principle. The yellowing and decaying of the
priceless national monument, the Taj Mahal, was a matter of concern in this case. According to the report of
the National Environment Engineering Report Institute and Varadarajan Committee in 1990 and 1995
respectively, the foundries, chemical industry and Mathura refineries were the major polluters of the Taj
Mahal. The court ordered the industries to switch to gas from fuel or shift their location of work. The
industries which did not comply with orders, those industries were shut down unconditionally. Justice
Kuldeep Singh added a new dimension to the ‘polluter pays principle. He stated that the workers of the
industries should suffer as a result of closure or shifting of location. The workers were ought to be given
compensatory benefits in the form of residential accommodation, continuity of their job till the industry
restart etc. Since then the courts have time and again emphasized that the rights and duties of the workers
cannot be compromised. This incident was a watershed in the history of environmental law management.
Conclusion

Although there is no statutory mandate on the ‘polluter pays principle. Nevertheless, it takes more effort to
comply people to the principle rather than mandating it. The judicial pronouncements on this principle have
been clear, crisp and indisputable. It was realised that industries are also social units having rights and duties
towards their surroundings and community. The old concept of development hand in hand with ecological
balance does not hold good in the 21st century. Yet ravaging nature in the name of development is no more
acceptable.

In fact, the lockdown mandated throughout the world during the coronavirus infection is rest to nature. The
animals of nature coming to the streets during the lockdown is analogous to humans captured in cages and
animals on a visit. Over the years our behaviour towards nature has been inhumane. Nature has been put to
overwork in the last two decades.
V.PRECAUTIONARY PRINCIPLE

1. Explain the principle of Public Trust, Polluter Pays and Precautionary Principles with the help of decided
cases. **
2. Genisis of Precautionary Principle.

Introduction

The Precautionary Principle has been adopted in many environmental instruments all over the world. The
principle states that if there is a risk of severe damage to the environment absence of any scientific or
conclusive proof is not to be given as a reason for the inaction. The Precautionary Principle shifts the burden
of proof on the shoulders of the person who is arguing that the activity he is carrying out is not harmful. The
principle follows the approach of being safe than being sorry. This principle is in contrast to the wait-and-
watch approach which is generally followed in environmental issues.

The precautionary principle is accepted in India as a fundamental tool to promote sustainable development
and is employed within Indian environmental governance to promote better health in the role of the Supreme
Court of India in recognizing the precautionary principle as an essential feature of sustainable development
and a part of customary international law promoted its derivative application from constitutional mandates
namely Articles 21, 48A and 51A(g).

In 1996, Kuldip Singh J in Vellore Citizen Welfare Forum v Union of India declared that the principle
involves three conditions:
● State government and statutory authorities must anticipate,
● prevent and
● attack the causes of environmental degradation.

Definition of Precautionary Principle

There are two definitions of the Precautionary Principle which are widely accepted-

1. The first definition is given in the Rio Declaration of 1992. It states that in order to protect the
environment every state should apply the principle to the best of its abilities. When there are
chances of irreversible and serious damage, lack of full scientific should not be the reason for the
postponement of preventive measures.
2. The second definition is based on the Wingspread Statement on Precautionary Principle, which
was given in 1998. This definition states that when there is a threat to the environment and human
health, precautionary measures should be taken even when full scientific data is not available.
The principle should examine the alternative options available (even the option of taking no
action).

There is a significant difference between the two definitions. The first definition talks about “irreversible
and serious damage, but the second definition talks about “harm” to the environment and human health in
general. Thus, the scope of the second definition is wider.

Precautionary Principle and Indian Law

The Indian Judiciary actively supports the Precautionary Principle. In the judicial pronouncement of Vellore
Citizens Welfare Forum v UOI, the Court opined that sustainable development is the need of the hour. The
court emphasized the fact that there should be a balance between economic growth and the protection of the
environment.The Court rejected the traditional concept that ecology and development are opposed to each
other. The Court also reviewed the development of the concept of sustainable development in the
international sphere. The Court referred to the Stockholm Declaration of 1972, Caring for Earth, 1991, the
Earth Summit, and the Rio Declaration of 1992 and opined that the Precautionary Principle and the Polluter
Pay Principle are indispensable features of Sustainable Development.

In the case of M C Mehta v Kamal Nath, the Supreme Court reiterated the decision given in the Vellore
Citizens Welfare Forum case stating that the Precautionary Principle is a part of the environment law in
India.

The Precautionary Principle was very comprehensively reviewed by the Apex Court in the case of AP
Control Pollution Board vs. Prof M V Nayadu. The Court stated that it is better to go wrong in taking
caution and preventing environmental harm rather than waiting for the issue to materialize into an
irreversible problem. The Court opined that the Precautionary Principle evolved because of a lack of
scientific certainty only, and the principle involves anticipating the harm the environment may suffer and
acting on the basis of that.

In the case of Narmada Bachao Andolan v UOI, the Apex Court very clearly laid down the proposition of
law, specifically of the Precautionary Principle. The Court stated that when an issue pertains to
environmental damage, the onus of proof is on the person who is contending that the activities carried on by
him are not harmful to the environment. The party who is giving such contention also has to satisfy the
Court of the same, that there will be no environmental degradation due to his activities.

In April 2020, in Alembic Pharmaceuticals v Rohit Prajapati & Ors., the Court held that the precautionary
principle precludes granting ex-post facto environmental clearances. Effectively, it disallowed the operation
of certain activities, pending a comprehensive environmental impact assessment to ascertain their impacts
on the environment and human health. Albeit the principle was applied appropriately, the Court only
mentioned the principle en passant, without actively engaging with it or clarifying the parameters for its
application. Consequently, the ambiguity persists.
VI.ABSOLUTE LIABILITY

1. Explain the significance of Absolute Liability Principle with reference to Environamental Pollution.
2. Discuss the rule of ‘Absolute Liability’ with the help of decided cases. **
3. Absolute Liability *** (6)

Introduction

The concept of absolute liability evolved in India after the case of M.C Mehta vs. Union of India famously
known as the Oleum Gas Leak case. This is one of the historic cases in the Indian Judiciary. The case of
M.C Mehta is based on the principle of strict liability but with no exceptions given and the individual is
made absolutely liable for his acts. It is based on this principle that the defendant won’t be allowed to plead
defense if he/she was at fault as it was laid down in Ryland vs. Fletcher case.

After the Bhopal gas leak case, many people lost their lives and are suffering from some fatal diseases
throughout the generation and because of this, there was an urgent need to develop a rule under strict
liability which had no exceptions available to the defendant to escape from the liability.

The rule laid down by the Honorable Supreme Court of India is much wider with respect to the rules laid
down by the House of Lords in the case of Ryland vs. Fletcher. It was propounded by the Supreme Court
that where an enterprise is engaged in a hazardous or inherently dangerous activity and if any harm results to
anybody on account of the accident in operation, the enterprise would be held strictly and absolutely liable
to compensate all those who are affected by the accident.

Scope of Absolute Liability

ABSOLUTE LIABILITY = STRICT LIABILITY - EXCEPTIONS

Absolute Liability has been brought up in the case of M.C Mehta vs. Union of India (oleum gas leak case)
also this is one of the landmark judgments in India’s legal history. The rule which was laid down after this
case was that any enterprise which is engaged in any kind of hazardous or inherently dangerous material
which if there might result in any kind of harm then the enterprise would be absolutely liable to compensate
all the people who are affected by the same as it also happened in Bhopal Gas Tragedy case. FACTS - In the
city of Delhi in 1985, there was severe leakage of oleum gas in the month of December 1985. This incident
took place in one of the units of Shriram Foods and Fertilizers Industries which belonged to the Delhi Cloth
Mills Ltd. and as a result of this accident an advocate in the Tis Hazari Court had died because of the
poisonous fumes and many others were severely harmed. This incident led to the filing of PIL (Public
Interest Litigation) in the courts in India.

PIL is filed by a group of individuals or by any person in the Supreme Court or high court of India. PIL is
the tool to armor public interest and this instrument is brought by the court, not by the aggrieved party. But
is brought in by the court of law or by any private party other than the aggrieved person in the society. It was
in SP Gupta vs. Union of India that the Supreme Court of India defined the term PIL in its elaborate form.
The traditional rule of “locus standi” that held that a person whose right is infringed alone could file a PIL,
has now been removed by the Supreme Court in its decision over the period of time as declared in Badhua
Mukti Morcha vs Union of India, Parmanand Katara vs. Union of India and many more. Now any public-
spirited citizen has all the rights and can approach the court for the public cause by filing a PIL in the
Supreme Court of India under article 32 and High Court under article 226 or even could be filed by
approaching the Court of Magistrate under section 133 of CrPC.

A tort is a civil wrong for which the remedy is an action taken by law for the unliquidated damage and
which is not exclusively breach of any contract or promise or any other kind of obligations. There are
principles in law which only holds a person liable when he/she is at fault whereas in certain principles the
individual is held liable without him being at fault. This is the ‘no-fault liability principle’ This no-fault
liability principle has two main landmark judgements Ryland vs Fletcher (strict liability) and MC Mehta vs
Union of India. In both these cases the individual was made liable even though he was not responsible for
the damage caused.

Essential Elements of Absolute Liability

● Dangerous Thing– As per the rules laid down, the liability of escape of a thing from an
individual’s land will arise only when the thing which is collected is a dangerous thing that is a
thing which likely causes damage or injury to other people in person or their property on its
escape. In various torts cases which have happened all over the world, the doctrine of strict
liability has held a large body of water, gas, electricity, vibrations, sewage, flag-pole, explosives,
noxious fumes, rusty wires etc are certain things which come under the ambit of dangerous
things.

● Escape– Anything which has caused damage or mischief should have escaped from the area
which was under the control of the defendant to come under the ambit of absolute liability. Like it
happened in the case of Read vs Lyons and Co. where the plaintiff was working as an employee
in the defendant’s company which was engaged in manufacturing shells. The accident happened
while she was on her duty that day within the company’s premises. It happened when a piece
which was being manufactured there exploded and due to this the plaintiff suffered harm. After
this incident and a case was filed against the defendant’s company but the court eventually let go
of the defendant and gave the verdict that strict liability is not applicable here in this particular
case. This was declared by the court because the explosion that took place was within the
defendant’s premises and not outside. And the concept says that it should have escaped the
dangerous thing like shell here from the boundaries of the defendant premise which didn’t happen
and was missing over here. So, the negligence on the part of the defendant could not be proved in
court.

● Non-natural use of land– Water collected on land for domestic purposes does not amount to
non-natural use of land but if one is storing it in large quantities like in a reservoir as it was the
case in Ryland vs Fletcher then it amounts to non-natural use of land. The difference between
natural and non-natural use of land is by keeping in mind the surrounding social conditions. As
the growing of trees and plants on land is considered a natural use of land but if one starts
growing trees which are poisonous in nature then it will be considered a non-natural use of land.
If an issue arises between the defendant and the plaintiff even though the defendant is using the
land naturally, the court will not hold the defendant liable for his conduct.

● Mischief- To make the person liable under this principle, the plaintiff at first needs to show that
the defendant had done the non-natural use of land and escaped the dangerous thing which he has
on his land which resulted in the injury further.

In the case of Charing Cross Electric Supply Co. vs Hydraulic Power Co., the defendant was
assigned to supply water for industrial works. But he was unable to keep their mains charged with
the minimum pressure that was required which led to the bursting of the pipeline at different places.
This resulted in causing heavy damage to the plaintiff which was proved in a court of law. The
defendants were held liable in spite of this that they were not at fault. These are the few rules where
this doctrine is applied
 M.C. Mehta V.S. Union Of India

FACTS: On the fourth and sixth of December, 1985, there was a monstrous spill of oleum gas in Delhi. It
happened in one of the divisions of the Shriram Foods and Fertilizers Industries undertaking, which has a
place with Delhi Cloth Mills, Ltd. A few groups were injured in this assault, and one individual passed on,
who turned out to be a lawyer working in the Tis Hazari Court. The attorney M.C. Mehta himself
documented a writ request as a Public Interest Litigation (PIL) for the situation.

This was not the first instance of gas spillage in Quite a while that prompted numerous causes. The primary
concern was that assuming severe obligation enactment was rehearsed, any of these glitches coming about
because of the activities of those huge organizations would straightforwardly go under the exceptions to the
previously mentioned responsibility. Thus, they will pull off no fault for the harm they do over the span of
their hazardous aqctivity.

It would not exclusively be low to the individuals who have endured because of the harm, however, it would
likewise give the feeling that huge partnerships are excluded to obligation.

JUDGEMENT: Following the Court's consideration of the above questions, it decided to develop a new
rule; the statute of absolute responsibility, as formulated by (then) Chief Justice of India, P.N. Bhagwati.
This new law was a more modernised, recent version of its predecessor, strict liability, but it lacked
exemptions.

 Bhopal Gas Tragedy / Union Carbide Corporation v. Union of India, (1991) 4 SCC 548

This doctrine was upheld in the infamous Bhopal Gas Tragedy which took place between the intervening
night of 2nd and 3rd December 1984. Leakage of methyl-iso-cyanide(MIC), poisonous gas from the Union
Carbide Company in Bhopal, Madhya Pradesh led to a major disaster and over three thousand people lost
their lives. There was a heavy loss to property, flora and fauna. The effects were so grave that children in
those areas are born with deformities even today. A case was filed in the American New York District Court
as the Union Carbide Company in Bhopal was a branch of the U.S.-based Union Carbide Company. The
case was dismissed there owing to no jurisdiction. The Government of India enacted the Bhopal Gas
Disaster (Processing of Claims) Act, 1985 and sued the company for damages on behalf of the victims. The
Court applying the principle of ‘Absolute Liability’ held the company liable and ordered it to pay
compensation to the victims.

 Indian Council For Enviro-Legal Action Vs. Union Of India, Air 1996 Sc 1446

A PIL filed under Article 32 of the Indian Constitution voiced protests of the petitioners over the presence of
industries that was causing large-scale environmental pollution and endangering the lives of the villagers
who resided in the vicinity of the industries. It violated their right to life and liberty given under Article 21
of the Indian Constitution as they were unable to live in a healthy environment. The Supreme Court initiated
instant action and ordered the Central Government and the Pollution Control Board to constitute strict
measures against the said industries. The court upheld the Doctrine of Absolute Liability here stating that the
polluted environment must be restored to a pollution-free one conducive to healthy living by utilizing anti-
pollution scientific appliances. The expenditure so incurred in this process must be paid by the industries
even if their properties need to be attached for this purpose. The industries were made absolutely liable for
paying monetary damages for the restoration of the environment.

 Klaus Mittelbachert vs. East India Hotels Ltd., A.I.R 1997 Delhi 201 (single judge)
Absolute Liability can also be upheld by the courts in case of a single death without any mass
destruction of property or pollution of the environment.
In this case, the plaintiff, a German co-pilot suffered grave injuries after diving into the swimming pool of
the five-star restaurant. Upon investigation, it was seen that the pool was defectively designed and had an
insufficient amount of water as well. The pilot’s injuries left him paralyzed leading to his death after 13
years of the accident. The court held that five-star hotels that charge hefty amounts owe a high degree of
care to their guests. This was violated by Hotel Oberoi Inter-continental, New Delhi when the defectively
designed swimming pool left a man dead. This made the hotel absolutely liable for the payment of damages.
The hefty amounts taken from the guests by the hotel owners guaranteed them to pay exemplary damages to
the deceased or in any such further cases. It was decided that the plaintiff would receive Rs. 50 lakhs for the
accident caused. However, with the death of the plaintiff, while the suit was still pending in the court, the
cause of action also died and the aforesaid decision was reversed on appeal by the defendant party.
VII.PUBLIC INTEREST LITIGATION

1. State the Public Interest Litigation in respect of Noise Pollution with the help of leading cases.
2. Explain the role of Public Interest Litigation in Environmental Protection. *
3. Public Interest Litigation (6)

Introduction

The Indian judiciary adopted the technique of public interest litigation for the cause of environmental
protection in many cases. The Supreme Court & High Courts shaded the inhibitions against refusing
strangers to present the petitions on behalf of poor and ignorant individuals. The basic ideology behind
adopting PIL is that access to justice ought not to be denied to the needy for the lack of knowledge or
finances. In PIL a public-spirited individual or organization can maintain a petition on behalf of poor &
ignorant individuals.

In the area of environmental protection, PIL has proved to be an effective tool. In Rural Litigation and
Entitlement Kendra vs. the State of U.P., the Supreme Court prohibited the continuance of mining
operations terming it to be adversely affecting the environment.

Evolution Of Public Interest Litigation In India

The expression ‘Public Interest Litigation’ has been borrowed from American jurisprudence, where it was
designed to provide legal representation to previously unrepresented groups like the poor, racial minorities,
unorganized consumers, citizens who were passionate about environmental issues, etc. The Indian PIL was
an upgraded version of the American PIL.

In India, the first PIL was filed in the year 1976 Mumbai Kamgar Sabha v. M/S Abdulbhai Faizullabhai and
others {1976 (3) SCC 832}. The seed of PIL was sown by Justice Krishna Iyer through this landmark
judgement. Soon thereafter, with the efforts of justice Bhagwati, the concept of PIL evolved and developed
to a great – extent. He is in fact known as the Champion of PIL in India.

The other historical PIL is the one filed for prisoner’s rights, Hussainara Khatoon v. State of Bihar which
focused on the inhuman conditions of prisoners under trial prisoner’s. Many have regarded this case as the
First PIL in India as well. It was filed by Kapila Hingroni and was signed by the prisoners of the Bihar jail
and the case was filed in the Supreme Court of India before the bench headed by justice P.N. Bhagwati. The
petition was filed under the name of a prisoner, Hussainara Khatoon, and the case was heard in Supreme
Court. In this case, the attention of the court was drawn to the incredible situation of the under-trial prisoners
in Bihar who had been detained pending trial for periods far in excess of the maximum sentence for the
offence they were charged with. So In this case, Supreme Court decided that prisoners should receive free
legal aid and fast hearings. As a result, 40,000 prisoners were released from jail.

It was held that a speedy trial and speedy justice is a fundamental rights enshrined under Article 21 of the
Indian Constitution. Thereafter many similar cases have been registered in the Supreme Court by way of
PIL.

Before the 1980s the judiciary and the Supreme Court of India entertained litigation only from parties
affected directly or indirectly by the defendant. But now a person who is not directly involved in the case
may bring matters of Public Interest to the court. A new era of the OIL. The movement was hearded by
justice P.N. Bhagwati in the case of S. Gupta vs. Union of India AIR 1981.
 ● In this case it was held that “Public Interest Litigation” can be directly filed by an individual or
group of people NGOs in the Supreme Court or High Court of India under Articles 32 and 226
respectively.
● The person who is filing the petition must not have any personal interest in the litigation, this
petition is accepted by Court only if there is the interest of large public involved.
● However, the Court itself can also take cognizance of such cases, which can be taken up under
public Interest litigation.
● PIL differs from ordinary Litigation. It does not involve the enforcement of the rights of one
person against other people. Rather, this type of litigation is filed to provide justice to the
deprived sections of the society.

Article 21 states that no person shall be deprived of his life or personal liberty except according procedure
established by law. The scope of Article 21 of Indian Constitution has been considerably expanded by
Indian Supreme Court which has interpreted the right to life mean the right to live a civilized life and it also
includes the right to clean environment. So, the right to live guaranteed by Article 32 also includes the right
of enjoyment of pollution free water and air, for full enjoyment of life. A healthy environment is an
important aspect of life, not just got citizen but also for other animals in the planet. Violation, therefore, of
the right to a healthy environment is potentially a violation of the essential right to life.

Articles 21,48A and 51(g) of the Indian Constitution take measure to guard the right to healthy environment.
Article 32 and 226 of the Constitution has been used time to time and again to raise the issue of
environmental protection PIL has proved to be an effective tool. Even 95% action takes place in the Court of
law to protect the environment is through PIL. MC mehta has filed a number of PIL in the supreme Court
relating to the different aspect of environment protection. Some of the landmark judgment arising out of
PILs filed by him are :-

● The Oleum gas leak case

● The Delhi vehicle Pollution case
● The Child Labour case
● The Gamma rays case
● The Ganga pollution case.

Instances Of PIL For Environment Protection:-

 Rural Litigation And Entitlement Kendra Vs. State Of U.P. Air 1985 Sc 652

This is an important case of PIL and well known as Doon Valley case. The dispute arose due to over mining
in hilly areas. In this case RLEK and a group of citizens wrote a letter to the Supreme Court against the
progressive mining which affected the Mussoorie tree and forest cover and accelerated soil erosions
resulting in land slides and blockage of ground water.

The Court held Closure of all mines and reforestation of Valley

 MC mehta vs. Union of India 1987

The victims of the gas leak were heard and successful in claiming damages by the means of PIL where the
gas leaked from the plant of shriram foods and fertilizer industries caused injuries to several person. The
supreme Court repeatedly made it clear that right to life under Article 21 of Indian Constitution includes
right to pollution free air and water.

 MC Mehta vs. Union of India, 1991 Delhi Vehicular pollution Case

Union territory of Delhi has s total population of 96 lakhs. Out of this population approximately 90 lakh
people resides in urban areas. This petition was filed by M.C. Mehta requesting the Court to pass appropriate
orders for the reduction of vehicular pollution in Delhi. Supreme Court directed the Central government to
take steps to spread information and knowledge relating to environment through audio visual media and also
passed direction to introduce environment as a compulsory subject in educational institutions. It was held to
be the duty of government to see that air did not become contaminated due to vehicular pollution. The apex
Court again confirming the right to healthy environment is a basic human rights and stated that right to clean
air also contained under Article 21 which refer to right to life.

 Vellore Citizens Welfare Forum v. Union of India and Ors. 1996

In the instant case dispute arose over some tanneries in a state of Tamil Nadu. These tanneries were
discharging pollutants in the river palar which was the main source of drinking water. The Supreme Court
ordered the central government to constitutes an authority and confer on it all powers, necessary to deal with
the situation. The supreme Court examining the report delivered it’s judgment making all efforts to maintain
a harmony between environment and development. The Court admitted that these tanneries in India are the
major foreign exchange earner and also provides employment to several thousands of people. But at the
same time, it destroy the environment and posses a health hazard to everyone.

The Court delivering it’s judgment in favor of petitioners directed all the, tanneries to deposit a sum of Rs.
10000 as fine in the office of collector as fine. The court further directed the state of Tamil Nadu to award
Mr. M.C. Mehta with a sum of Rs. 50000 as appreciation towards his efforts For protection of Environment.
The court in this case also emphasize on the Constitution of Green Benches in India dealing specifically
with matters relating to environment protection also for speedy and expeditious disposal of environmental
cases.

 Aarey forest Case 2019

Aarey colony, popularly known as the green lung of Mumbai is a, suburban located in Goregaon. This
lovely region has more than five lakh trees combining the Sanjay gandhi national park. While a project for a
construction of a new car shed is on the way, a lot of trees are being to cut to give room for the said metro
project. The law students had written a letter to C.J.I Ranjan Gogoi, urging him to direct the state
government to stop cutting trees. The Supreme Court registered the letter as a PIL and took sup motu
cognizance of the matter. The supreme Court directed the Maharashtra government not to cut any more trees
at the Aarey forest in Mumbai. The Court made, it clear that if the trees can not be cut legally, it can not be
done at all. Supreme Court order status Quo on cutting of trees for Mumbai metro car shed.