LECTURES L ENVIRONMENTAL LAW INTRODUCTION .. 1. Environment: Meaning and Defi 2. Pollution: Meaning and definition 3, Hazardous substance ...... 4 Sources of Environmental Pollution 5, Classification of pollution SUBJECT MATTER OF ENVIRONMENTAL LAW Environment is a Science ..... Advantages of Environmental Science 1. Environmental Law is a Public Law 2. Environmental Law is a Private Law INTERNATIONAL PARAMETERS OF ENVIRONMENT The Stockholm Declaration, 1972 . Rio Summit, 1992 .. The United Nations Environment Programme (UNEP.). y 4, Ozone Depletion 5. Acid Rains or Ai ication ENVIRONMENTAL PROTECTION : THE LAW Common Law aspects of Environmental Law 1. Nuisance : Meaning & Definition & Kinds...... Trail Smelter Arbitration Case ... Nuisance ; Relevant legal provision Municipal Council, Ratlam vs. Vardhichand 2. Trespass 3. Negligen : Meaning, efinition, Essentials 40, 41 Negligence : Relevant Legal Provisions 4. Strict and absolute liability Rylands vs. Fletcher (Rule of Strict Liabilit Absolute Liabilit Bhopal Gas Leak D: Oleum Gas Leak ... Judicial Activism and Environment . Judicial Activism and Public Interest Litigation Kamalnath Vs. Union of India Public Trust Doctrine ve .- 30. 31 35 % 4 ter Case Bwueee BER: viiEnvironmental Law tunicipalitics) Case ~ ee Forum Cas NAL PROVISIONS AND THE yrUTIO w CO RONMENTAL PROTECTION hradun Quarrying Case... vi pee ENVIRONMENT (PROTECT! HON) ACT, 1986 “ Salient features ... 7 VII ENVIRONMENTAL COURTS 8 1, The National Environment 2 The National Environment Appel & 3. The National ‘Authority (Appeal) Rules, aol THE WATER | (PREVENTION AND ™ OF POLLUTION) ACT, 1974 (THE WATER ACT) Salient Features of the Act .. Central Pollution Control Board State Pollution Control Boards .. Joint Boards Penalties and Procedure . Central Water Laboratory -.. Water Laboratory .... xX THEAIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 «. Salient Features of the A Constitution of Central Pollution n and Control of Air P Penalties and Proceduré XL FORESTANDENVIRONMENT Forest : Meaning & Definiti Forest Law : Historical Background gge2esHae SSSss a 113 13. 14 ~ 15: Wild Life (Protection) Act, 1972. 116 University Question Papers .... 121 LECTURE INTRODUCTION This lecture covers the following heads: }. Environment: Meaning and Definition. 2. Pollution: Meaning and Definition. 3. Hazardous Substance: Meaning and Definition. 4. Sources of Environmental Pollution; and 5. Classification or kinds of Pollution. 1. Environment; Meaning and Definition:— The Global problem of the present day is the Environmental pollution, which is at to the existence and survival of human race. As jothing and shelter are the basic human needs; “Unpolluted air (to breathe), uncontaminated water (to drink) and nutritious food ic condition to live in” are ‘Sine qua non’ for human y. Man, in making variety of efforts for progress and development, causes much damage to forests, wi ife, land surface, water resources and to atmosphere, which are part and parcel of the environment. Thus, the people, voluntary organisations and Governmental agencies should realise the importance of the protection and improvement of environment. Meaning:— The term ‘Environment’ is formulated on the ‘Environ’ derived from the French word ‘Environner’, which ’, Thus, the term ‘Environment’ literally means means “to surround”. “the surroundings and conditions under which man lives and works”. rid that we live In other words, “it is the physical and biological wo word Itis very difficult to define the term ‘environment’. Definition:— e term. Prominent among Many attempts were made to define tht them are stated below:—, 2 Environmental Law f Environmen 7 — (Secretary, Dept. of E ment, yee rN oe as “the sum total of all conditions nates ore that affect the development and life of all organ: influences " ws Th Bwvironment (Protection) Act 1986:— Ac cording to ic 7a) of the Act. ‘Environment includes water, air and land sotto inter reationshiP. which exists among and between water, sirand land and human beings, other living creatures, plants, micro. organism and property”. Environment is a very com the concept (environment), it is neces: eco-system and biosphere as explained hereunder: Ecology:— The term ‘ecology’ is @ greek word, connected t. Itis a branch of biology dealing with relations of irroundings. their habi , modes of life etc. “the study of ecosystems plex phenomenon. To understand sary to know about ecology, to environment living organisms to their RM. Dasmann' defined “ecology” as : to determine how they are organised, how the creatures within them interact and how total systems function”. According to the United States Council on Environmental Quality? ‘Ecology is the science of ig organisms and their the intricate web of relationships between livin, living and non-living surroundings”. Thus, it (ecology) may be described as “the science involved in the study of organisms in relation to their environment”. — Man cannot escape from his physical includes plants and animals. An assemblage of ng Ecosystem: environment, which species of plants and animals inhabiting a common area and havi effects on one another is known as a ‘biotic community’. A combination of such biotic community with the physical environment iscalled ‘ecosystem’. The United States Council on Environmental Quality’ observed that “‘the inter-dependence of living and non-living parts i.e. man, animals, plants, forests, lakes etc. make eco-system” 1. In his Environmental Conservation, 3rd Edn. 1972, p. 12 2, First Annual Report 6, 1970. 3. In its First Annual Report 6, 1970. Introduction x Ecosystem does not remain constant, as changes take place in it continuously in one form or the other, A small change even in one part of the ecosystem will have an impact on the entire system. However, the system tries to maintain stability as far as possible. Biosphere:— sphere’ is that part of the earth and ing beings. It is the surface atmosphere, which is inhabited by he earth, which is made up of the atmosphere, the oceans, continents and islands and d living things. which inhabit area of t upper surfaces of the land areas of the the fresh water associated with them an‘ this area. In this area, energy of sun is available to activate living Chemicals from air, water and soil are available as processes, building blocks for living organisms. 2. Pollu g and definiti Meaning:— The expression * ‘pollute’ means “to get spoil or to make unclean or impure or unhealthy”. The word ‘pollution’ derived from the Latin word ‘polutus’, which means “defiled or ion ‘pollution’ denotes “the d at wrong place”. to make dirty or to pollute”. presence of wrong matter in wrong quantity anc It refers to a process, by which a resource, material or man-made, is rendered unfit for some beneficial use due to some physical, chemical or biological factors. Definition:— It is very difficult to define the term ‘pollution’. However, several attempts were made to define the term. Prominent among them are stated hereunder: Working Definition:— As it difficult to define the term ‘pollution’ a working definition, which has been accepted, is given below: Every substance existing in the environment has definite composition, when a foreign body is introduced into it or the proportion of its constituents is modified, then that substance loses its original Asaconsequence of the changed constitution, character and qualities. the original substance does not serve its definite purpose. The modified version is termed as ‘polluted’ or ‘adulterated substance” and the process is called * ‘pollution’.Environmental Law As the concept ‘pollution’ refers to air, water etc. in the environment, the respective legislations viz. the Environment Act, the Air Act and the Water Act define the term as follows: The Environment (Protection) Act, 1986:— According to Section 2(c) of the Act, “Environmental Pollution’ means “the presence inthe environment of any environmental pollutant”. This definition is not comprehensive and should be read with ‘Environmental Pollutant’ and ‘hazardous substance’ as defined under Sec. 2(b) and 2(e) of the Act respectively as follows: Environmental Pollutant:— According to Sec. 2(b) of the “Environmental Pollutant’ means “any solid, liquid or gaseous Act, ch concentration as may be or tend to be substance present in su injurious to environment Hazardous Substance:— A hazardous substance is that substance, which is liable to cause harm to any living being, property or the environment. The substance by itself need not be harmful. If the effect produced by it is found to be harmful, it is a ‘hazardous substance’. According to Section 2(e) of the Act, ‘hazardous substance” means “any substance or preparation, which, by reason of its chemic: or physico-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plants, micro-organism, property or the environment”. The Air (Prevention and Control of Pollution) Act, 1981:— According to Sec. 2(b) of the Act, the term ‘Air Pollution’ means the presence in the atmosphere of any air pollutant” . According to Section 2(a) of the Act, ‘Air Pollutant’ means ‘any solid, liquid or gaseous substance including noise present in the anesbee i such concentration as may be or tend to be injurious juman beings or other living creatures or pla ieee plants or property or | legitimate uses or to the li Introduction 5 The Water (Prevention and Control of Pollution) Act, 1974:— According to Sec. 2(e) of the Act, ‘pollution’ means “such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water whether directly or indirectly as may or is likely to create anuisance or render such water harmful or injurious to public health or safety or to domestic, commercial, industrial, agricultural or other fe and health of animals or plants or of quatic organisms”. It may be noted that the water, which is unfit for domestic, commer dustrial, agricultural or other legitimate uses, itshall be deemed to be polluted. 3. Hazardous substance:— Meaning:— The expression ‘hazardous substance’ is that substance, which is liable to cause harm to any living being, property stance itself need not be harmful. If armful, it is a hazardous substance. or the environment. The sub: the effect produced by it is hi tance, which by virtue of its chemical ities causes harm to all living and non- It is very dangerous and harmful to the It is an object or subs and physio-chemical prope! ing in the environment. existence of human life. Definition:— The Environment (Protection) Act and the National Environment Tribunal Act define the term as follows: The Environment (Protection) Act, 1986:— Section 2(e) of the Act, defines the term shazardous substance’ as “any substance or preparation which by reason of its chemical or physio-chemical properties or handling, is Table to cause harm to human beings, other living creatures, plants, micro-organism, property ‘or the environment”. The National Environment Tribunal Act, 1995:— According to Sec. 2(f) of the Act, “any substance or preparation, substance in Environment (Protection) Act, 1986 and exceeding such quality as specified by the Central6 Environmental Law inder the Public Liability Insurance Act, 1991”. of the Act, handling in relation to azard( bstance means “the manufacture, processing, et hasten eta rage transportation by vehicle, use, collection, dear conversion, offering for sale, transfer or the like of such hazardous substance”. Procedural Safeguards:— As the hazardous substance is very dangerous and harmful, necessary precautions are to be taken in handling the same. Section 8 of the Environment (Protection) Act, 1986 provides for the procedural safeguards as follows: Government u! According to Section 2(e) “No person shall handle or cause to be handled any hazardous substance except in accordance with such procedure and after complying with such safeguards as may be prescribed”, In simple words, a person handling the hazardous substance must strictly comply with the safeguards provided for under Section 8 of the Environment (Protection) Act, 1986. 4, Sources of Environmental Pollution:— There are various sources/factors causing Environmental Pollution. The main sources are explained below: 1, Natural Causes (Natural Pollution); and 2. Artificial Causes (Artificial Pollution) (i) Population Growth; and (ii) Industrialisation. 1. Natural Causes:— Pollution caused by the natural hazards viz., cyclones, floods, earthquakes ete. is called “Natural Pollution or pollution by Natural Causes”. | 2 Artificial Causes:— Pollution caused by artificial causes viz., intervention of human agency is called “Artificial Pollution or Pollution by Artificial Causes”. They are two, namel Introduction a (i) Population Growth; and (ii) Industriali: ition. (i) Population Growth:— Population explosion is a serious threat to the developing countries like India. Today, population is growing by leaps and bounds. The world’s population rose to 6 billion (600 crores) by 1998. Population explosion and living increase the discharge of waste products, street filth, insects and rodents. Increasing population demands additional requirement of food products, goods and commodities. To meet the increasing demand, production on scientific lines, despite adverse effect on environment, is incompatible. Further, urbanization at faster rate increases density of population and accumulation of domestic and industrial wastes in drainages. Almost all rivers in India including Ganga got polluted as a consequence of over population. (Eg. Ganga Pollution (Municipalities) Case, page 61, Vellore Citizens’ Welfare Forum (Tanneries) Case, page 63 etc.). In thickly populated cities like Delhi, the serious problem is air-pollution and deficit of oxygen in the air. Hence, it is found necessary to open oxygen Bars in such cities. (ii) Industrialisation:— The main source of environmental pollution is rapid growth of industrialisation. Industries release noxious and hazardous gases into the atmosphere. When dust and smoke in the atmosphere combine with water vapours, it forms as ‘smog’, which is very dangerous. Asa consequence of the smog in the year 1952, 4000 persons died in London (U.K.) and 8000 persons in Tokyo. (Japan) suffered from ear, nose and throat troubles. In Bhopal (India), poisonous gas (Methylisocynate gas) released from Union Carbide Corporation India Ltd., on December 4, 1984 claimed thousands of lives. The Bhopal Gas Leak was described as the World's Great Gas Disaster. Further, rapid growth of industrialisation results in ozone depletion, acid rains, atmospheric turbidity etc. Smokes released from the factories cause air pollution. Similarly, the wastes and effluents from the factories are released into rivers and hence, almost all the rivers in India including Ganga got polluted.a, Environmental Law 8 5, Classification of poltution pollution or Environmental Pollution may be classified under following wo heads: 1, Natural Pollution; and 2, Artificial Pollution. 1. Natural Pollution:— Pollution caused by natural hazards’ yiz., cyclones, floods, earthquakes, ozone depletion, acid rains et is called “Natural Pollution”. 2. Artificial Pollution:— Pollution caused by the intervention of the human agency is called “Artificial Pollution”. Rapid growth jain causes of artificial of population and industrialisation are the m: pollution. Following are the different kinds of artificial pollutions: @) Air-Pollution; (i) Water Pollution; (ii) Land/Soil Pollution; (iv) Noise/Sound Pollution; (v) Food Pollution; and (vi) Radio-Active Pollution. @ Air Pollution:— Air is the chief constituent of human life without which we cannot survive for a few minutes. Air-pollution isnot anew problem. Ithas been with us for centuries. Tremendous growth of population and urbanisation; expansion of industrialisati ventilated the gravity of the effects of air-pollution. Air-pollution is mainly caused by the smokes and gases released from the factories and motor vehicles. Thus, air is a mechanical mixture of gases. It gets polluted by dust, smoke, toxic gases, chemical vapours etc., and erie cra te ‘ing this problem due to heavy vehicular traffic. He i i : . Hence, the air-poll a termed as ‘automobile pollution’ an Introduction 9 Air-pollution cannot be prevented/minimised without a concerted effort through International Co-operation. The Indian Parliament passed the Air (Prevention and Control of Pollution) Act, 1981 with a view to prevent the air-pollution. ‘The concept of Air-Pollution: ‘air-pollution’. Air-pollution in commo introduction into some parts of the at are either foreign to it or are in quantities exceeding the natural concentration”. (Eg. Personal pollution, by in luals by causing foul smell through negligently throwing domestic wastes, cigarette smoking etc. occupational air pollution as a consequence of harmful air pollution in working environment). The definition adopted by the World Health Organisation is as follows: "Substances put into air by the activity of mankind in concentration sufficient to cause harmful effects on his health, vegetation, property or to interfere with the enjoyment of his property”. According to Sec. 2(b) of the Air (Prevention and Control of ‘Air Pollution’ means “the presence in the utant" Section 2(a) of the Act defines ‘Air Pollutant" as “any solid, liquid or gaseous substance including noise present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment”. ‘on under Sec. 2(b) is quite comprehensive since it covers/includes ‘noise’ as a potential air pollutant. Sources of Air-Pollution:— The main sources causing air pollution are; i) The combustion of fuels to produce energy for heating and power; i) Transportation (vehicular traffic); iii) Industrial and Commercial processes; iv) Incineration (burning of wastes, its rubber, plastic products etc. without combustion equipment); v) Agricultural activities etc. cerse effect on the environmental Effects:— Air-pollution has adve and climatic conditions; human health and safety; plants and animals and other socio-economic conditions. .— It is very difficult to define n parlance involves, undesirable mosphere, of substances that Pollution) Act, 1981 atmosphere of any air p: 10 Environmental Law 1991)2SCC 353, ie ie ther, ( Union of India and Other, M.C. Mehta vs. M.C, Mehta is @ leading legal practitioner ssaneeyinth _ He became very popular by filing (Advocate) ! « sitions in the Supreme Court under Ary, pai «+ Jitjgation writ petitions in . Art, public ise ee onsttution. In this case, he filed a writ-petition 32 of the Indi Court against the heavy vehicular traffic pollution in the Supreme directed the Central Government i Jhi, The Supreme Court dire econ n in a committee to study/examine various issues relating to 0 ay the traffic pollution and to take necessary steps to prevent the same, Measures taken for Prevention of Air-Pollu' iion:— As the air-pollution is aglobal problem, India also is not free from the serious threat of air-pollution. In view of industrialisation and onnes of sulphur dioxide, seven isati illion t urbanisation, about four mi mar t e million tonnes of carbon monoxide million tonnes of particulates, on : etc. are released into the air every year. Thus, there is an urgent need to take stringent steps against the threatening dimensions of air-pollution. Complete eradication of air-poll a! technically impossible. Itcan be controlled to some extent by: taking technological, legislative and administrative measures. Containment (prevention of escape of toxic substances into air by engineering devices), Reduction of concentration of toxic substances etc. are the technological measures. The exclusive legislation on air-pollution is the Air (Prevention and Control of Pollution) Act, 1981. The Act also provided for the administrative mechanism by creating Central and State Pollution Control Boards. (ii) Water Pollution:— Life without water is unimaginable. Water is an important factor, which covers two thirds of the earth’s surface and represents the present circulation system of our planet. Water is said to be contaminated/polluted, when it contains infective and parasitic agents, poisonous chemical substances, industrial or other wastes or sewage. In legal sense, pollution of water means a departure from a normal sense. The expression ‘normal sense” denotes unaffected or least affected physical and biological conditions of water for human activities, ution is very difficult and Introduction, u g Water pollution has been defined as “the change in the composition of water in such a way, that it becomes not only unsafe but also unwholesome for human consumption'”. Water-pollution, today has been considered as one of the major problems of the world and the states (nations) were directed to pass appropriate legislations to prevent the water-pollution. Therefore the Indian Parliament passed the Water (Prevention and Control of Pollution) Act, 1974, According to Section 2(e) of the Act, water pollution means “such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to the domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of aquatic organisms”. Sources of Water Pollution:— The main cause of water pollution is the discharge of solid or liquid waste products containing pollutants. They are: (i) domestic and commercial wastes ; (ii) Industrial wastes ; (iii) agricultural wastes; (iv) air-pollution; (v) chemical substances; (vi) thermal wastes; (vii) radio active substances; (viii) suspended matters ete. Effects: — Water pollution causes deleterious effects on the environment, which includes public health and safety, plants and animal life, land, property etc. The extent of water pollution in India, is very obvious since all the 14 major rivers are highly polluted. It is estimated that more than 60 per cent of the diseases in India are due to the pollution of water. Preventive Measures:— Various measures have been taken ater pollution in India. The Indian Parliament passed the Water (Prevention and Control of Pollution) Act, 1974 as supplement to the Environment (Protection) Act, 1986 relating to quality of water. Both at the Centre and in the States, Water “Legal Control of Environmental Pollution, 1996 Edn. p-64). for prevention of w: 1. Mahesh Mathur,aT ll Environmental Law 12 n set up to promote cleanlineg Pollution Control Boars best + rineipal bodies are entrust of water and to oe ates through treatment plants, througho wihieente ee Ministry of Forests, Environment and Wil the eatin plans for the prevention of pollution of t en coe ‘and Yamuna. Despite above a the massiv problem of water pollution remains uw abate 4 - (ii) Land/Soil Pollution:— The soil is the heart of life. An sickness of the: soil will inevitably affect the health of man. Destructioy of soil, erosion of soil, creation of dust bowls etc. render the land| polluted. The major source of land pollution is the massive amount of solid wastes deposited of by use here and there. Household refuse, industrial waste ete. are Jand pollutants. The} most dangerous is plastic component (plastic bags, plastic papers etc.), Chemicals also create land pollution. The major source of land| pollution is urbanisation. Agricultur: operations, mining operations, felling of trees result in land pollution. (iv) Noise/Sound Pollution:— Noise is a form of sound. It is an unwanted or undesired and unpleasant sound. It is also known as ‘misplaced sound’, which produces bad effect on health (loss of hearing capacity, fatigue, digestive system, blood pressure etc.). Harell defined noise as “an unwanted sound which increases fatigue and under some industrial condition: ‘s deafness According to J. Tiffin, "Noise is a sound, which is disagreeable for the individual and which disturbs the normal way of an individual". Industries, Loudspeakers, Automobiles, Aircrafts, Trains, Con ruction| works, Radio, T.V., Microphones etc. are the main source: Many countries perceived/regarded noise as the major factor affecting the quality of health. In the United States, noise inked only second tocrime. It is high time for us to realise the importance’ of protection against noise pollution. Noise Pollution Control Laws:— In England, N Abatement Act of 1960 was passed. In America. there is Noise! Pollution and Abatement Act, 1970” for prevention of Noise Pollution. Isqas Introduction 13 In India, there is no law exclusively dealing with the problem of noise. However, the following provisions are provided: (1) Articles 39(e), 47, 48-A and 51(g) of the Indian Constitution. (2) Sections 268 and 290 of Indian Penal Code, 1860. (3) Chapter III of Factories Act, 1948. (4) Motor Vehicles Act, 1988 and Rules Framed thereunder; and The Environmental (Protection) Act, 1986 (provides for certain provisions). (v) Food Pollution:— Food gets polluted from its source to its use. Food pollution begins, when chemicals are used from plant growth, These chemicals directly and indirectly affect the quality of food. Food also gets polluted during processing, storage, transportation and retailing. When polluted or adulterated food is consumed, it affects the health of the consumer. (vi) Radio Active Pollution:— Radio active pollution is “the pollution caused by the blast of atoms”. Some elements such as radium uranium etc. emit invisible effects known as radiation. The emission of these invisible radiations is known as ‘radio activity’ and such substances are called ‘radio active substances’. The term ‘radio activity’ has been defined as “property exhibited by unstable isotopes of elements which decay, emitting radiation, principally alpha, beta and gamma_ particles, is known as: radioactivity”. Radiation, which is emitted from, radioactive substance is part onment. When the amount of radiation received is then it causes (5) of man’s envir exceeded (i.e. when it crosses the permissible limits), pollution known as radioactive pollution. Questions and How to Answer As per the revised syllabus with effect from the academic year 1998-99, the question paper contains 3 parts. Part-A contains Short Questions, Part-B contains Essay Questions and Part-C contains the Questions on ‘Case Comment’. As far as Part-A and Part-B are concerned, the students have rich experience in answering short questions and essay questions. The questions under Part-C will be asked in the form of a problem or in the form of a case itself.Environmental Law 14 ins problems. The questions «on Paper contains prov'e neque: Part-C ofthe AU. ee Universities will — eo if the under Part-C of NX th problems and cases ince! es, form of case itself and bow PAY. gid down in the case, Muncipal (Eg. Explain the factsane PT lk 1980SC 1622). The problem Council, Ratlam vs. Or basing: on a decided case, If the student under Part-C is ee decided case on which the given problem is ed al ia sen to which it relates, then the student will be able to cae the problem effectively. / he asked | -« Lecture-I, short questions may be asxes (under 1, From this ment or Pollution/Environmental Pollution or ani Soa If so, the student has to write in brief, the Le ic asked. In case, Environment or Pollution/ - val Polltion is asked as an essay question ( under Part ee abot environment, hazardous substance and pollution and a add Trail Smelter case (page 31) at the end. 2. In case, classification of pollution i ) asked as an essay question (Under Part-B), the student has to write the meaning and definition of pollution; kinds of pollution in brief and also add/include relevant cases wherever necessary. Eg. Ganga Pollution case to Water Pollution, Delhi, Traffic Pollution case to Air-Pollution and so on. 3. Incase, Water Pollution or Air-Pollution or other is asked as a short question, write about it in brief. In case water pollution or Air Pollution is asked as an essay question (under Part B), write briefly the meaning and definition of pollution in general, name/ mention the kinds of pollution and then write in detail about the pollution asked covering its meaning, definition, sources, effects, relevant case law and preventive measures. 4, Regarding Case Laii,write about the relevant cases wherever necessary in brief in respect of essay questions under Part-B. The | Case Law must be presented more elaborately covering all aspects (for details, refer the guidelines given in the last sheet : inner page of the book). In simple, the student is suggested to present his answer commensurate to the marks allotted to the question. LECTURE-IT SUBJECT MATTER OF ENVIRONMENTAL LAW — Environment is a Science:— The billion dollar question is whether Environment is a Science? The answer is in the affirmative (yes) since it is concerned with the study of both living and non- living beings on the globe. Environmental Science is anew subject, which was evolved 30 years ago. [t witnessed tremendous growth and development in the recent past. Science : Meaning and Definition:— The term ‘Science’ means “systematized knowledge” or “knowledge ascertained by systematic observation, experiment and reasoning”. Goode and Hatt defined: “Science is an accumulation of systematised knowledge”. The word "knowledge" refers to the goal of science, while the word ‘systematic’ refers to the method that is used in reaching that goal. According to L.L. Bernard, “Science may be defined in terms of six major processes that take place within it. These are testing, verification, definition, classification, organization, orientation, which includes prediction and application”. According to Aristotle, “Science begins, when, from a great number of experiences one general conception is formed, which will embrace all similar cases”. Science is of two kinds, namely: 1. Physical Science; and 2. Social Science. Physical Science includes both physical and natural/ biological science. The latter (the natural or biological science) deals with living organisms while the latter (the physical science) deals with the non-living physical world. The other branch i.e. Social Science deals with the man and society. Eg.: Sociology, Economics, History ete. Environment is a science, connected with both physical and social sciences and hence it deals with both the living and non-living organisms. Majority of the physical and social scientists agree/admit that environment is a science, since it fulfils all characteristic features Isof science. strengthened —_—S Environmental Law wnt that “Environment js a Science” can be further The stateme! n y for the following reasons: ment aims to suggest/ascertain 1. The study af ee 1 eradicate the environmental Tn the environmentalists take the assistance of Pea social sciences i the scientific investigation, a scientists, environmentalists also undertake experiments 0 calculate the volume of effluents and their impact on ecology, animals and human beings. Ld The study is proved to be successful as a explaining various causes for environmental pollution and necessary solutions for controlling the same. Preparation of hypothesis is a pre-requisite for study ofa social phenomenon. (The expression ‘hypothe: s’ is an imaginative idea or guess, which forms basis for investigation, Goode and Hatt defined it as “a propo: ition, which can be put to test to determine validity”). Like a researcher or a social scientist, the environmentalist hypothesis for study of an environmental problem. . Like other sciences, the study of Environment involves » > Subject Matter of Environmental Law 17 . Environmental protection has been accepted and protected all over the world. The Supreme Court of India, in interpreting Art. 21 of ‘Constitution said that “Right to life under Art. 21 also includes “right to live with fresh air, (unpolluted air to breathe), water (uncontaminated water to drink) and land”. |. The subject also aims to teach ethics. Ethics means “Science of morals concerned with human conduct and character”. . Environmental pollution increases crime rate. The study envisages the pollution control and hence, reduces the crime rate and ensures social security. . The study of environmental science is of great significance and of global importance and drew the attention of all concerned including the judiciary. In India, the Supreme Court and High Courts under Articles 32 and 226 respectively are entertaining the writ petitions pertaining to environmental pollution as the petitions of Public Interest Litigation (The Supreme Court in M.C.Mehta and Another vs, Sri Ram Foods and Fertilizer Industries and others, (Oleum Gas Leak Case) AIR 1987 SC 965, evolved the principle of ‘Absolute Liability’. In Kamainath vs. Union of India, (1997) SCC 388, the Court evolved Public Trust Doctrine and delivered landmark judgments in various cases evolving principles of great significance and public importance). Whether Environmental Law is a Private Law or a Public to ascertain various cases for environmental pollution and Law:— Before examining the question, whether Environmental Law a Private Law or a Public Law, it is necessary to know in brief to suggest necessary solutions to control the same. 2. Environmentalists enlighten/warn the people from time to about Law; Private Law and Public Law. ‘Law’ is an instrument, time to take necessary precautions against the threats of which regulates human behaviour. In other words, through the environmental pollution. strumentality of law, the state regulates the conduct of human being. (man) and thereby maintains law and order and ensures social security. The Law may be categorised as: 1) Private Law; and 2) collection of data from industries to calculate the volume of effluents and their impact on the environment. Advantages of Environmental Science:— Following are the advantages of the study of Environmental Science: 1. The main object of the study of Environmental Science iEnvironmental Law 18 ts of an individual or group the righ Public Law. The former protects eng t, 1872, The Transfer of Eg. Indian Contract Ac of individuals. tects the rights of the people . The latter pro! 3 Property Act. 1382 on eneral or society as a whole. Eg. Crimina} in general or pul lew etc. Further, in case of private law, the Law, Constitutional affected (aggrieved or in approach the Court for r jured) person/persons alone can moves f, Eg. Private Nuisance. Whee in ; 1 of the public can move/approach ee EA pn ae In acaition, any public spiriteg oa sea mee the court by filing a public interest litigation petition ‘aSupreme Court under Art. 32 or the concerned High Court under ‘Art. 226 of the Indian Constitution. Now the question is: Whether Environmental Law is a Private | Law ora Public Law? There had been a great controversy on this point. However, much can be said on both the sides as enumerated | hereunder. 1, Environmental Law is a Public Law:— The subject, | Environmental Law has no territorial mits or boundaries. (Territorial | Laws viz. Indian Contract Act, Indian Evidence Act etc. apply to | the whole of India except the State of Jammu and Kashmir. Whereas personal laws viz. Hindu Marriage Act, 1955; Hindu Succession Act, | 1956 apply to Hindus only. Similar are the Muslim Law and Christian Law. According to N.D. Tiwari Committee’s Report, 1980, there || are about two hundred Central and State Statutes. But the principal environmental statutes are twelve (viz. The Environment (Protection) Act, 1986, The Water (Prevention and Control of Pollution) Act, 1974, The Air (Prevention and Control of Pollution) Act, 1981, The National Environment Tribunal Act, 1995 etc. etc.), The main object of all the environmental legislations is to regulate human behaviour So as to control the environmental pollution. The concept of environmen State (nation/country) has the en words, environment a global phenomenon, since no ronment of its own. In other one and the same in the entire universe as | and the Earth. However, i may vary from Subject Matter of Environmental Law ig State to State (country to country) or even place to place in a State. ion and loss of territories take place on the earth resulting in environmental complexities. Thus, every nation must feel environmental problem as the national problem and should take necessary steps to protect and improve the environment. In view of the above discussion, environmental law may be regarded as a branch of public law. 2. Environmental Law is a Private Law:— Environmental pollution causes damage not only to the public as a whole but also to the individuals or group of individuals in particular. When an individual is affected, he alone can move the court (under the Principle of Locus Standi). When the public as a whole is affected, any public spirited citizen can move the court (by filing public interest litigation petition). Thus, Environmental Law may also be regarded as a branch of private law. In view of the above, we cannot rightly say that Environmental Law is neither purely a branch of public law nor purely a branch of private law. Much can be said on both the sides. Therefore, it is a branch of public law from the broader point of view and also a branch of private law from the narrower point of view. Questions and How to Answer 1, Environment is a Science - Discuss? If this question is asked as a short question, write in brief about “Environment is a Science’ from the Lecture. If it is asked as an essay question, write the meaning and definition of environment first (from Lecture-I) and then write Lecture-II completely.LECTURE INTERNATIONAL VIRONMENT PARAMETERS OF E PARAM This Lecture covers the following topics: 1, The Stockholm Declaration, 1972 (U.N. Conference on Human Environment); 2, Rio Summit, 1992 (Rio Declaration on Environment and Development); 3, The United Nations Environment Programme (U.N.E.P 4, Ozone Depletion (Depletion of Ozone Layer or Risks to Ozone Layer); and 5. Acid Rains or Acidification. Earlier, there was no precise environmental policy. The seventies witnessed a new dimension in the history of environmental policy at global level. The developments that took place during this decade gave new direction for environmental protection. A brief survey of the policy prospectives is stated hereunder. 1. THE STOCKHOLM DECLARATION, 1972 (The United Nations Conference on Human Environment) (THE STOCKHOLM DECLARATION AND ITS IMPACT) ‘The year 1968 marks a watershed in the history of environment management, The Economic and Social Council of the United Nations passed a resolution (No.1346) on 30th July, 1968 for convening an International Conference on the problems of human environment. This was followed by a resolution No.2398 (XXIID). passed on 3rd December, 1968 by the United Nations General Assembly. In pursuance of the resolution, the United Nations Conference on Human Environment for the first time, was held at Stockholm from 5th to 16th June, 1972. 113 States including India represented by 20 International Parameters of Environment 2 the then Prime Minister, Mrs. Indira Gandhi participated. A declaration under the head “The Magna Carta of Our Environment” was passed in the conference. It contains 26 principles providing for an International policy for the protection and improvement of the Environment. The Conference is of particular reference to India. Mrs. Gandhi, while addressing the conference, drew the attention of the world community towards our peculiar environmental problems. India shared the view with other developing states that environmental problems are mainly due to lack of development rather than excessive development. Thus, every Government in the world, in the process of development encourages the establishment of industries to eradicate poverty, mal nutrition, unemployment etc. At the same time, the process of development should be designed in such a way that it should not result in environmental pollution. Significant Features:— The Stockholm declaration contains 26 principles. Following are the significant features: 1. Man is both creator and moulder of his environment. He can transform his environment in countless ways and on an unprecedented . The protection and improvement of the human environment is major issue, which affects the well-being of peoples and economic development throughout the world; it is the urgent desire of the peoples of the whole world and the duty of all Governments. “Sustainable Development” came to be 1 the first time in Stockholm Declaration in 1987 by the World Commission on snment and Development” in its report entitled “Our Common Future”. The expression “Sustainable Development” means “the development that meets the needs of the present without compromising ity of the future generations to meet their own needs”. The ‘atures of sustainable development are yet to be finalised ional Jurists. However, Inter-Governmental Equity, ‘ation of Natural Resources, Environmental Protection, polluter pays principle, obligation to assist 2. The concept of known in international sphere for and was given definite shape i salient by the Internati use and conserv: the precautionary principle,Environmental Law 22 i and financial assistance to the eradication of poverty —— and co cous may be regarded as the features nab “ome prevent pollution of the 3, States shall take possible steps to that seas by the substances that 2 living resources and marine life. 4, Resources should be made availab the environment (Principle 12). , i i instituti st be entrusted with the ropriate national institutions must b task je managing or controlling the environmental reso environmental quality (Principle 17). ee 6. Scientific Research and development in the context of . both national and multinational must be i blems, eancted in it counties, especially in developing countries (Principle 20). 7. In accordan: Principles of International Law. exploit their own resources pursu: policies (Principle 21). 8. International matters concert improvement of the environment should be ha spirit by all countries, big or small on an eq' the multinational or bilateral agreements/treaties (Pri azards to human he; are causing hi je to preserve and improve ce with the provisions of the U.N. Charter and States have sovereign rights to ant to their own environment andled Effects of Stockholm Declaration:— The recc of the Stockholm Declaration drew the atte states and the same were confirmed by the U.N. Gene! (Vide Resolution No.2997 27th Session, 1973). The U recommendations of the Stockholm Decla Governments Passed appropriate legislations for protection and improvement of environment. In India, nearly 200 Central and State International Parameters of Environment 23 legislations on environment were passed. However, the principal legislations are twelve. Further, the Stockholm Declaration, had an impact on the Indian Judiciary. The Courts in India (The Supreme Court and the High Courts) also have given anew interpretation to constitutional provisions relating to environmental prospectives and delivered landmark judgments. In Vellore Citizen’s Welfare Forum vs. Union of India and Others, (AIR 1996 SC 2115), the Supreme Court critically analysed the relationship between environment and development and has given its approval to “sustainable development” rather than absolute development or development at all costs”. Similarly, the court evolved the principle of “Absolute Liability” in preference to Strict Liability in “Bhopal Gas Disaster case’ (1991 4 SCC 584); "Public Trust Doctrine” in Kamalnath v. Union of India (1997 1 SCC 388) and laid down in other cases the principles of great importance. The successful results of the Stockholm Conference paved the way for holding of some other International Conventions on environmental protection. 2. RIO SUMMIT, 1992 (RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT) The most revolutionary step in the present decade was the so known as the ‘Earth Summit’. It , the capital of Brazil from 3rd to 14th June, It is the largest convention in the history of international ns. About 20,000 delegates from 178 states/nations attended conference and hence it is called as the “Earth Summit”, Maurice Strong, the U.N.C.E.D. (United Nations Conference on Environment and Development) Chief described it as “Parliament of the Planet”. Ade n under the head “The Rio Declaration on Environment and Development, 1992” was passed in the conference. The document produced at the Earth Summit, as it is called, has 40 chapters, having 800 pages. It reaffirmed Stockholm Declaration, 1972 seeking to——SS—— Environmental Law 24 anew and equitable g} festablishing alo Jations among the mem oh th n it with the £0 of friendly Te ild uy cat romotiol partnership and p! states. Main features: 1. The Declaratis gs are (Principle 1). nsure that their developmental activiti es shall not cause damage beyond the; tes/nations (Principle 2). .— The Rio Declaration Proclaims that: ‘on contains 27 Pri entitled to healthy productive life j inciples. 2, Human bein; harmony with nature 3, The states must © and environmental polic! national jurisdictions to other stal 4, All states shall co-operate for eradicating poverty fe sustainable development and to promote standard of livin, (Principle 5). in a spirit of global partnership tq 5, States shall co-operate f ; health and integrity of the Earth's conserve, protect and restore the ecosystem (Principle 7). 6. States shall enact effective environmental legislations and| shall maintain environmental standards (Principle 11). he environment, the precaution 7. In order to protect U plied by States according to thei approach shall be widely ap) capabilities (Principle 15). 8. States shall immediately notify other states of any natu disasters or other emergencies that are likely to produce sudd harmful effects on the environment of those states (Principle 18). 9. Peace, development and environment protection interdependent and indivisible (Principle 25). 10. States shall resolve all their environmental disputes peace: and by appropriate means in accordance with the charter of United Nations. International Parameters of Environment 25 3. THE UNITED NATIONS ENVIRONMENT PROGRAMME (U.N.E.P.) The first international conference on human environment under the aegis of United Nations was held at Stockholm from Sth to 16th June, 1972. A declaration under the head “The Magna Carta of ‘our Environment” was passed. It (the Stockholm Declaration) called n international policy for the protection and improvement of the ‘As a result, the United Nations Environmental t up in Geneva in June, 1973. The U.N.E.P. was Mr. Maurice Strong. The main objective of the U.N.EP. is to implement successfully, the recommendations of the Stockholm Declaration. The U.N.E.P. strove hard for institutionalising the conceptual framework of the Stockholm Declaration. The U.N.EP. plays significant role in harmonizing environmental policies relating to international trade and to bring about effective control over environmental threats faced by the member states beyond their territorial jurisdiction. The U.NEDP. in 1981 organised ameeting of Governmental concerns on Environmental Law. Another Conference was organised by the U.N... at Vienna in 1985, on the protection of Ozone Layer. The U.N.EP., through the “Earth Watch” programme undertakes research on environmental problems. It also provides for exchange of information among the Scientists and Governments. 4. OLONE DEPLETION (DEPLETION OF OZONE LAYER OR RISKS TO OZONE LAYER) the present day, “Ozone Depletion serious threat to the existence for at environment. Programme (U.N.E.P.) was se! first executive Director of the Among the global problems: of or Depletion of Ozone Layer” is a and survival of human race. :— The expression ‘Ozone’ is an allotrope a different form of life sustaining ) instead of the usual two (O,). The Ozone : Meaning: or derivative of oxygen. It is oxygen having three atoms O,mntal Law Environme! . «inated by chronic iro, js very unstable and can 7 eliminal ry ird atom is Very ll thi Jess with a peculi ae It is colour coverin :— The outer “Ozone Layer”. In siny Ozone Layer’ trays of Sun is cal On iy" + alton ee arth from ultra va Fozone accumulated int pe phe; ol words, “the amount 4 er’. js called ‘Ozone hi vie The amount of ozone accumulated Ozone Depletion® screens the earth from harmfy upper atmosphere (ozone YB). This screen, as revealed Ultra-Violet Blue Radial ted and a hole in the ozone layer has bee, studies, is getting i id growth of population, industria detected above Anta instrumental for environmental pollution and See i vith of the ozone layer. The decrease of wot ; veris called “Qzone Depletion”. Scientists say th, width of zone WOT siready been depleted by 1%. However, thery the ozone layer has a oath easure the rate of depletion, is no technical equipment to meas . Causes for Ozone Depletion: — Rapid growth of Population, industrialisation, urbanisation and advancement of Science and) Technology resulting in environmental pollution are the main causeg for ozone depletion. Scientists found that there is a close link between the family foam mattress, refrigerator and the air conditioning system of an, average home and Ozone Layer 50 to 70 K.M. above the earth] Chlorofluorocarbons (CFCs) emitted into atmosphere from Refrigeration and Air-conditioning systems cause serious damage to| the Ozone Layer. They believe that free chronic irons into the atmosphere from plastics and other chemicals remove the extra atom of oxygen, which makes the ozone, The developing states aiming for green revolutions resorted to the use of Nitrogenous fertilizer, The chemicals that are released from the Nitrogen fertilizer cau: viene ne enone Lave The present world consumpti fo reath ian oa lizer is about 50 megatons and it is expect megatons within 20 years, International Parameters of Environment 27 Hydrogen Oxides cause heavy damage to the Ozone Layer. Thousands of industries, nitrogen based industries in particular emit hydrogen oxides into the environment causing heavy damage to the Ozone Layer. In addition, advanced science and technology, Nuclear weapons, Nuclear wastages etc. are responsible for ozone depletion. Effects:— Though the Ozone Layer accounts for one millionth part of the earth's atmosphere, its depletion has a great impact on the earth’s life forms. Scientists warn that there is a considerable danger caused to the ozone layer. It has been revealed that the rate of ozone depletion is sufficiently large to produce serious consequences for man, animals and plants. Measures taken to protect Ozone Layer:— Since ozone depletion is a serious threat to the Globe as a whole, there is an urgent need to protect the Ozone Layer with the co-operation of the member states under the aegis of the United Nations. In 1985, “Convention for the protection of the Ozone Layer” was held under the aegis of the United Nations. The convention provided for Scientific Research and periodical conferences to find out various measures to protect the Ozone Layer. The member states were directed to bring about appropriate legislations to protect the Ozone Layer. As such, the Australian Government passed a Legislation in 1994 eliminating the use of Chlorofluorocarbon and Halon. Let us hope that the member States in near future make similar legislations. In India, such a legislation has not yet been made. 5. ACID RAINS OR ACIDIFICATION Every one admits the importance of rains, without which there is no survival of human race. However, rain in certain parts of the earth has taken on a new and threatening complexity. Industries emit noxious and hazardous substances and gases into the environment. A part of such water evaporated from the sea reaches the clouds and causes rains. In certain parts of the earth gases and hazardous substances released from industries are accumulated in the seas. By evaporation such sea water reaches clouds and causes acid rains.Environmental Law 28 Technically speaking, burning fossil fuels of POWET Slat fi ies and motor vehicles mix with air and it rings own i Su .d nitric acid and thereby cause acid rains. Rapid gro, sean va ation and growth of cities in the world, in particyy, ee tries are the main causes for acidification. Acid y, arava whenever fossil fuels are intensively used, . : ly injurious to health and safety of hu; ge to wild life, water life, forests, 9 Jands and also to the world’s most important ancient monuments E, Taj Mahal). Some of the world’s greatest cultural treasures includ; 2 Parthenen in Athens and Trojan's Column in Rome were destroy by the acid rains. Earlier, acidification was regarded as a re; gional problem. confined rial areas of the northern hemisphere. The rate o being increased from time to time and has been; recognized as an international environmental problem. A spe conference on acidification of the environment was held at Stockhol in 1982. It reviewed and assessed a large amount of scientifi information pertaining to the acidification. Questions and How to Answer uy Acid rains are not onl life but also cause heavy dama to the indust acidification is 1, Basing on the above lecture, if the Stockholm Declaration’ or Ozone Depletion. is asked as an essay question, write in det as given in this lecture. In case it is asked as short notes, writ in brief commensurate to the marks allotted 2. The remaining topics namely. Rio Summit, U.N.E.P. al Acid Rains may be asked as short questions. LECTURE-IV ENVIRONMENTAL PROTECTION : THE LAW This lecture covers the following topics, namely:— 1. Nuisance; 2. Trespass; 3. Negligence; and 4. Strict Liability and Absolute Liability. Environmental Protection is sine qua non for growth and development of any nation. In the absence of effective/appropriate legal machinery environmental standards cannot be maintained. Many states, as part of national concern, took steps to increase the scope and effectiveness of environmental protection laws. The Government of India, passed about 200 Central and State Legislations. Prominent among them are twelve, which includes the Water (Prevention and Control of Pollution) Act, 1974; the Air (Prevention and Control of Pollution) Act, 1981; and the Environment (Protection) Act, 1986. Further, an aggrieved can file public interest litigation petition (PIL) in the Supreme Court under Art. 32, High Courts under Art. 226 of the Constitution and in the Court of the District Magistrate under Sec. 133 Cr.P.C. against the environmental polluter. Before the emergence (passing) of environmental legislations and the PIL, an aggrieved could invoke (seek) relief under Common Law of Tort by instituting an action for Nuisance, Trespass, Negligence and Strict Liability; or under the Specific Relief Act, 1963. The present chapter deals with legal framework provided for Common Law aspects of environmental protection in India. Common Law aspects of Environmental Law Common Law, which is also known as ‘judge made law’ is one of the oldest sources of Environmental Law. It(Common Law) 29“Lex Communis”, whichisa body judicial decisions. the Environmental Polluti tated hereunder: 1, Nuisance; 2. Trespass; 3. Negligence; and 4, Strict and Absolute Li bility. +— The deepest roots of modern environment, ! on law principles of nuisance. R.N.D, rse for Environmental Harm) says that ironment is basically 1. Nuisance: are found in the comm Private cou! w for the protection of the envi ing nuisance”. ning & Definition: — The word ‘nuisance’ rd ‘nuire’ and Latin word ‘nocere’ which means “to do hurt or to annoy”. It is an act or omission, interfering with the right of another to enjoy some property, causing damage or physical discomfort. Eg. digging a trench on highway, listening to radio in loud noise causing discomfort to neighbours, It is very difficult to define ‘nuisance’ accurately. However, the prominent definitions are given below: 1. Winfield:— According to Prof. Winfield, a nu be described as “unlawful interference with a person’s use or enjoyment of land or some right over, or in connection with it”. law Hamilton (in his the substantive la the common law relati Nuisance : Mea! is derived from the French wo! 2. Salmond:— According to Salmond, the wrong of nuisance consists in causing or allowing without lawful justification, the escape of any deleterious thing from his land or from elsewhere into land. in possession of plaintiff. Kinds of Nuisance:— Nuisance is of two kinds namely: 1. Public or General or Common Nuisance; and 2. Private Nuisance or Tort of Nuisance. 31 Environmental Protection the Law 1. Public nuisance:— It is an act or omission causing injury or damage or annoyance to the public at large and people in general. Public nuisance is both a tort (civil wrong) and crime (public wrong cran offence). The acts that amount to environmentally damaging public nuisance include carrying of trades causing offensive smells, intolerable noises, dust vibrations, rubbish dumps etc., that affect the health or habitability of a locality. Section 268 of the Indian Penal Code defines public nuisance as “an act or omission, which causes any common injury, danger or annoyance to the public or to the people in general, who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right”. Sections 269 to 290 of I.P.C. provide punishment for public nuisance. Underlying Principle:— The underlying principle of an action for nuisance is based on the Latin maxim “Sic utere tuo ut alienum non laedas”, which means “every one must so use his own as not to damage another”. In simple, words, it means “enjoy your own property without causing loss or damage to your neighbour. This rule is also applicable to states in the International Law. Thus, states, in the process of progress and development may establish industries and at the same time, they must also take necessary steps to prevent environmental pollution from such industries. The above maxim was first applied and was accorded international recognition in the case of: Trail Smelter Arbitration U.S. vs. Canada 3 RAI. 1911 (1938) Facts of the case: Trail Smelter, a Canadian Company was established in the year 1920 on the banks of Columbia river at Trail town, which is 10 miles away from Canada - U.S. Border. It was engaged in the process of smelting lead and zinc. By 1930, the Company rose to the level of consuming per day 300 tons of sulphur.shied I air and effluents and wastage, ‘The Bae ei ote ced considerable dam: ge to 7 uae nthe American Govt. after negotiatio, US. red the matter (0 the Internation, The Commission in its report age for the period from 1929 e Canadian Govt. (0 pay the State of Washington ol “+h ehe Canadian Governtne withthe igsion for Arbitrat ns Joint Comms 1931 assessed the dam: submitted in 5 ected th and directe! ; 10 1931 08 35 oman continued the smelting proces, 1 neti fs a a 4 same to Am fay 300 and above 00 of sulphur as usual. The consuming a day ion dollars as compensation for the| Amer IO wo lian Govt. did not agree ss caused from 193 * ‘tration. The tri ty it, the matter Was referred to Arbitration. the tribu 0 pay it, amage: los, Oded seventy eight thou: s dam nges Lo the loss awa ' ein 1930-1937. (P.S.: Ifthe above case Is asked under oa c cease comment OF in the form of a problem, the student has Part-C ; case « down etc. as s to present : issues im below). Issues Involved:— The is: case are: 1, Since the case is the first of its kind, the question that arose was, what law is to be applied to re: olve the dispute? (in the absence of appropriate legal machinery). 2. Whether the Trail Smelter Company should be required to refrain from causing damage in future to the State of Washington. volved, principles I volved in the instant sues/questions With regard to the first question, there was no appropriate legal regime to settle the international issues/disputes pertaining to air and water till 1941, The Federal Court of Switzerland was conferred power to settle the disputes between the cantons. Similarly, the Federal Court of America resolved the disputes between the States / of America. The Tribunal followed the same procedure to resolve — pines of international law, the law of, concent. 0 the principles of Justice, Equity and good Environmental Protection the Law 33 With regard to the second question, the Tribunal held that the Trail Smelter should refrain from causing damage through gases and fumes to the State of Washington. Principles laid down and observations:— 1. The Tribunal adopted the principle “Sic utere tuo ut alienum non laedas” in the Trail Smelter case. It means “every one must so use his own as not to damage another”. In simple words, it means “enjoy your own property without causing any loss or damage to your neighbour”. Similarly, the Tribunal directed the Trail Smelter to see that the gases and [umes released from the Trail Smelter should not . the State of Washington. ‘air-pollution’ cause damage to the neighbour be made to refrain it from entering into the atmosphere. 3. The Tribunal suggested that the States should take necessary \d pass appropriate legislations to prevent the air and water 4. It is significant to note in the Trail Smelter case, that the compensation was paid to the aggrieved party in International Law as in the case of Law of Torts, Further, the liability was imposed on the State (Canada) and not on the private party ie. The Trail Smelter Company. Effect:— The Tribunal’s decision in Trail Smelter, case has a great impact on the liability of the States in International Community, and the same was incorporated in Principle 22 of the Stockholm Declaration, 1972. Who can sue for Public Nuisance:— Public Nuisance is a crime under Sec. 268 I.P.C. and every affected person cannot sue. However, the following persons can sue: 1. Attorney General in England. 2. Advocate General in Presidency towns and Collectors in the places other than presidency towns.Environmental Law 34 ided he suffers speciay « aividual also cam Sue, Prov! 3, An individual - persons © jore n aumasey soning cose inwnl : law:— Dymond vs. Pearce, (1972) 2 WLR aw ain this case that leaving a lorry on the highway os sue period was public nuisance. for a consi De Held, (1851) 2 Sim. N.S. 133) : The plaintite Soltau vs. ide Roman Catholic Chapel. The chapel bell was = ey ad night. The defendant was held liable for causing Samazet io the plaintiff in particular. 2. Private nuisance:- If the nuisance (unauthorised user of one’s own property) causes injury or damage to i individual or group of individuals, itis called ‘Private Nuisance’. an sue without proof of special ting from the Advocate Genera), Definition:— According to Underhill, “a private nuisance is some unauthorised user of a man’s own property causing damage to the property of another or some unauthorised interference with the property or proprietary rights of another, causing damage, but not amounting to trespass”. Elements of Private Nuisance:— To constitute private nuisance, the following elements are to be satisfied: 1, Unlawful or Unreasonable Interference; and 2. Damage. 1 Unlawful or Unreasonable Interference:— The plaintiff Must establish that there is a substantial interference with his right to the use and enjoyment of his land or property. Hollywood Silver Fax Farm Ltd. vs. Emmett, (1936) 2 KB. “ ee this case, the Plaintiff set up a farm for breeding foxes —— aan saying “Hollywood Silver Fox Farm”. His = ) wanted to develop a housing estate on the land ‘eauested the plaintiff to remove the board as it would deter slit natn it eased ebdamentscas eet aimattanttce Environmental Protection the Law his customers. But the plaintiff refused defendant wamed the plaintiff to shoot ae the we oad The board is not removed. The defendant did accordin; Wn ay if the damage to ‘plaintiff's animals, which are extremely eee and caused not breed at loud noise may kill the young ones, ina acilon and do the defendant, the plaintiff was entitled to get injunction an oF Hao on the ground that “no Person can create Noise on his own Ee causing annoyance to others”, 35 2. Damage:— In an action for nuisance, the plaintiff has to prove some actual damage he suffered, Dr. Ram Baj Singh vs. Babulal, (AIR 1982 All. 285) — In this case, the dust and fumes from the defendant's brick grinding machine caused inconvenience to his neighbour ic. the plaintiff, who was a medical practitioner. In an action against the defendant, permanent injunction was granted. Nuisance : Relevant legal provisions Apart from various legislations for Prevention and control of environmental pollution, some specific provisions relating to Nuisance are stated below: 1. Law of Crimes (Indian Penal Code, 1860) and Environmental Protection; 2. Criminal Procedure Code, 1973; and 3. Civil Procedure Code, 1908. 1. Indian Penal Code, 1860:— Indian Penal Code declares certain acts affecting environment as offences. Chapter XIV containing Sections 268 to 294-A deal with offences affecting the public health, safety, convenience, decency and morals. Section 268 LP.C. defines Public Nuisance and Sections 269 to 290 provide punishment for public nuisance. Sections 272 to 276 deal with the adulteration of food, drinks and drugs. Sec. 277 aims to prevent water pollution. This section provides that fouling of water of public spring, well or reservoir rendering it less fit for purposesSe ir 1 Law Environmental Environmental Pp, * ishable with impri \ eeton the Lay otc ardinafi , shall be punishable with imprisonme,, | _ ; 37 for which it is ordinarily ie up to rupees five hundred or bon’ Facts of the case:— The residents — upto three months or with in ae trade, business or manufactun, he. Municipality, Madhya Pradesh were facing bie No.12, Ratlam ‘ - a , business | ins, ie nui The section further provides t the residential area, which prody Ing! by open drains, effluents from alcohol plant and open Sate cused acess shall be carried out n le ces by nearby slum-dwellers. Vardhichand and oth Public excretion i ‘ous and offensive smell. q filed a complaint before the Sub-Dj Sana) aeeteved Fesidents jminal Procedure Code, 1973:— The Code of Crimingy' under Section 133 Cr.P.C. requesting to direct pete of Ratlam 5 mon rovide for certain provisions for preventing and take steps for removal of the Public nuisance, The nicipaly to Procedure, 1 PI sgance causing air, water and noise pollution directions to the Municipality to draft a plan fo he te issued controlling public nu! " . 33 to M4 . nuisance within six months. On appeal, the Sin the removal of Chapter X, Part-B containing Sections 133 to 3 and Pan. the order of the Magistrate. On further appeal re Cour, Teversed C containing Section 144 provide for most effective and Speedy aside the order of the Sessions Court and approved Court set remedies. Magistrate. The Municipality preferred an appeal ote ae the ion 133 Cr.P.C.:— According to Section 133 of the Court and took the plea of “financial inability” to comph eer Section ce Magi -Divisiona i der. From Trial Court to the Su Comply with the CrP.C., the District Magistrate or Sub-Divisional Magistrate oy or preme Court, it took 8 year Executive Magistrate, if he is so empowered by the State Government, The Supreme Court through Krishna lyer, J., rejected the from police officer or other information, ma) of financial instability and held that “the Cod, i Plea on receipt of report Pp ann 'y : le of Criminal Procedure make conditional order to remove the public nuisance causing pollution, operates against the statutory bodies and others Tegardless of the The conditional order may be made absolute and if the person | cash in their coffers”. The court directed the Municipality to provide concerned fails to carry it out, he can be prosecuted under Section for drainage system within one year and approved a scheme of Rs, 188 of the L.P.C. Even the head of the Government Department | 6 lakhs for construction of drainage. The Court also directed the blic bodies can be prosecuted for defying the orders. | Magistrate of Ratlam to inspect the progress of the work every three or pul Pl Ty | months and prosecute the concerned officials i It may be noted that Section 133 Cr.P.C. can be used even) vith the corded (P.S.: In case, the aboveame oakley against statutory bodies like Municipalities, Corporations and other | ©. case comment, the student has to add/include the following heads Government bodies causing public nuisance and env ironmental | viz., questions involved, principles laid down etc, as given below): pollution. In some cases, the statutory bodies, instead of rectifying their act (or omission causing public nuisance) fight the legal battle, taking the plea of financial instability. The relevant leading case on Issues/Questions Involved:— The questions involved in the instant case are: this point is: 1. Whether Section 133 Cr.P.C. is applicable to the Statutory Municipal Council, Ratlam vs. Vardhichand, AIR 1980 $C, Bodies Tike Municipalities? 1622 (P.S.: This case is very important and is relevant to public 2. Whether the Municipality has a responsibility to remove he nuisance, 133 Cr.P.C., Public Interest Litigation, Judicial Activism. public nuisance? If so, what are the relevant legal provisions? portion Environmental Pollution etc. and may be asked in With regard to the first question, Section 133 CPC isapplicb le i | Clee: comment). even against statutory bodies like Municipalities, Corporations ——vironmental law “ i je nuisaee and environme, Governmet bodies aint applicuble to the Rati rio ence, See i he instant case Peanicipality. te nd question. the respondent (Ratlgy with regard to the seco! yy to remove the public nuisance unde v es Act, 1961 and, «ality pasa Nu pall jes.acls al Sec. =e Mh lia Constitution, 1950, ‘ + icles 38 and 48-4 © under Articles 38 e Court rejected the plea of “finanay Further, ine Sipe Ra Municipality to provide for drainage scetailty" and i ear. system within ne down:— The Supreme Court through Krishng 1 he Ratlam Municipality case Jaid down the f ™ 1. Decency and dignity are non-nege ol i a first charge rights and are due to open or breeding i nuisance on wherever there is a public nuisance. 4. The Supreme Court condemned the Municipal Council, Ratlam by preferring prolonged implementing the orders of the Magistrate. Such ttitude amounts icks played by the 1s without to misuse of the public trust and infringement of Fun of the Constitution, 5, The Supreme Court reiterated that this deci: to other wards and colonies of the Ratlam Mun} Municipalities in the country, Krishna Gopal vs. State of Madhya Pradesh, (1986) Krishna Gopal, a partner of M/s Caplic Company, ¢' pera r for producing glucose saline in @ | colony in Indore, “No Objection Certificate” to that effect Environmental Protection the Low ey { hy the Joint Director, Town and C . ve emitting ash, gases and smoke jnio fee ‘The ic nuisance to the residents of the em af the residents. Smt. Sarala Tripathi omplaint ‘ ivisional Magistrate under Sexton 139 of publ n ce us her husband, who Was a heart um ep due to smoke and noise from the factory, These ate asked the Police Officer to enquire into the report. The Sub-Divisional Magistrate, on the ne report submitted by the Police Officer ordered the M/s. Caplic Company to vacate it from the residential One , one of the partners of the Cap! ic Company went Sessions Judge contending that objection cannot be accepted as public nuisance and ons under Section 133 Cr.P.C. are not attracted. Judge did not agree with the contention of the the orders of the Sub-Divisional Magistrate r the removal of the boiler and factory from the ny. On further appeal, the Indore Bench of the desh High Court confirmed the orders of the Sub- tc. The court also appreciated the petitioner Smt. ja Trip: aking initiative and was awarded Jamages of Rs. ,000/- towards the costs payable by the Caplic Company. The 9 accused the authorities concerned for issuing the ‘No Madhya P' 3, Civil Procedure Code, 1908:— Section 91 of Code of re, 1908 provides for an action in respect of public . According to Sec. 91 C.P.C., in case of public nuisance fecting or likely to affect, the public a suit unction or for such other relief as may be cumstances of the case may be instituted. a) by the, Advocate General; oravivonmertal Law Court, by 10 OF MOFE PETSONS ey,’ , of the mn aused to such persons y special Jae08% has Pe iher wrongful act. though 7° ve qussarice OF aor . ait or affect any right of suit, whigg | Thus, the persons sing are liable for POSECUtign property) literaljy “any wansgses™ yg to a man’s person OF Lo hig or of te on . concerned with “trespass to Jand’, property”, Jn tain OP Bg. Throwing 4 heap 0 another's kand. “Trenpass ‘of Indian Penal Code, 1864 Pol 5 anaction fornuivance, Bul canes are sarcly voked. despite its wide scope, regard to (reypass in environmen! are required to land in environment”, 3, NEGLIGENCE In environmental cases, the tort of negligence is utilized, when | other torts of nuisance or trespass are not available. A: negligence ema ei stituted for injury, damage or physical discomfort, luents, industrial wastes, human excreta etc. are thrown | Environmental Protection the Law 4 ao the municipal drainages, canals, rivers , inte any environmental legislations imposi ol negiigently. There the industrialists. They (the industrialists) must stri vom restrictions and see that the j jal w. ily comply with the soently. ‘astes are not released Meaning:— The term ‘negligence’ sa duty to take care and the care is not taken ling in inj nother”. Jn other words, infliction of an ufone a result of failure to take care is called ‘negligence’. The tort of negligence may be described as “two in one tort”, That is to _(j) Jt isan independent tort; and (2) a mode of commiting certain torts. Independent or specific tort in the sense, the plaintiff can sue the defendant for the tort of negligence itself, Mode of committing m1 in the sense, when a tiff sues for a specific tort espass etc. the ff has to prove the negligence nce was made an independent tort in the early 20th century in the case. Blyth vs, Birmingham Water Works Co. Means “where a person ion to do something, which a those considerations, which ordinarily |. That the defendant owed a duty of care towards the plaintiff (Defendant’s duty to take care towards the Plaintiff), 2. That the defendant committed a breach of such duty (Breach of Duty by the Defendant); andEnvironmental Law ° sequence th intiff sul ered damage as aconseq| may re towards the plaintiff:— The 1, Defendan fendant owed a duty of care towards ve ta a ‘on in the following leading case: Lord Atkin laid down (evolved/coined) the 7 . Ab ” to decide the existence of such duty In the instan hbourhood principle of “neigt of care. . : ° Facts in Brief:— The plaintiff/appellant, while consuming in a restaurant, found the decomposed body of a snail part. Consequently, she suffered ill-health and sued ised the suit. On appeal to The trial court dismi 1 Lord Atkin, J., held the manufacturers (defendant ginger beer, in the remaining the manufacturer. the House of Lords, respondent) liable. Lord Atkin, while delivering the judgment laid down the principle of “neighbourhood”, which says “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would likely to injure your neighbour”, ‘The expression “neighbour” denotes every person, who is likely to be affected as a consequence of not taking care. ‘The defendant has a duty to take care towards the plaintiff, if the injury is foreseeable. If the injury is not foreseeable, the defendant owes no duty of care towards the plaintiff. 5 In Palsgraf vs. Long Island Rail Road Co., (1928) 284 N.Y. ee NE 92, the defendant railway servants, with an intention Ip a passenger to board the moving train, pushed him in. A packet in his hand fell on rails and exploded. Consequently, so: scales at a distance of 25 feet fell down and injured th ai iff Fy action by the plant the defendants were held not Table on e 7 the injury was not foreseeable. detenantcomminede cn a plaintiff has to prove that the observance of a dy" or fale luty. Breach of Duty means “non- ire to take care”. Whether the ee Environmental Protection the Law 43 had taken necessary care (standard of Care) or not depends nt ieee following factors: up 1) Jmportance or Utility of the Act; ji) Grav ry of the risk; and iii) Cases of Emergency. 7 c ility of th a i Importance or utility e act:— The ) by the defendant depends upon the nalaie of te ar rming. Eg. Establishment of a fertilizers facto act, he -mto the surrounding people. But the production of ferdlinee, increases the output of food grains and promotes economy of thi le nation. if) Gravity of Risk:— The degree of care to be taken by the ant, depends upon the gravity of risk involved in the act A person handling explosives or dangerous substances has to take greater care, when compared with a person handling non-dangerous substances. iii) Cases of Emergency:— To observe standard of care, certain speed limits are prescribed for motor vehicles within the town limits. This restriction is liberalised in respect of emergency cases, For instance, excessive speed by Fire Engines to rescue fire accident victims. 3. Proximate Damage:— (Damage as a consequence of breach of duty by the defendant) :— The tort of negligence is not actionable per se. The plaintiff has to prove that he had suffered substantial loss or damage as a consequence of the defendant’s act. The damage suffered by the plaintiff must be proximate, but not very remote. defend: Relevant case law:— 1. Union Carbide Corporation vs. Union of India, AIR 1990 SC 2730 (Please refer page No. 51) 1 2. Trail Smelter Arbitration U.S. vs. Canada, 3 R.LI. 1911 (1938 & 1941) (Please refer page No. 31).Environmental Law | LEVANT LEGAL PROVISION specifically Prescribed ¢ provisions relatin, ee 44 NEGLIGENCE * RE ‘ous legislations, Spe n ofenvironmental pollution, certain f negligence are stated below: Code, 1860: igent act likely to spread infection of dise, | sung According to Section 269 of the Code, woe unlawfully or negligently does any act, which is and which he kno, or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment either description for aterm, which may extend to six months or wit, | fine or with both. (In simple words according to Sec. 269 L.P.c, whoever, negligently by an act spreads infection of any disease dangerous to life shall be punished with imprisonment of either description which may extend to 6 months or with fine or with both), 2. Malignant act likely to spread infection of disease _— Section 270 says that “whoever malignantly he knows or had reason to believe n of any disease dangerous to life, In addition to vari preventio the tort of Indian Penal dangerous to life:- does any act which is and which to be, likely to spread the infectior shall be punished with imprisonment of either description fora term, | which may extend to two years or with fine or with both. (In simple words, according to Sec. 270, whoever, malignantly (i.c. maliciously or with evil intent or guilty mind) does an act to spread the infection of any disease, dangerous to life, shall be punished with imprisonment of either description for a term, which may extend to two years or with fine or with both). 3. Negligent conduct with respect to poisonous substance:— According to Section 284, whoever does, with any poisonous substance, any act in a manner so rash or negligent as | to endanger human ife, or to be likely to cause hurt or injury to any Person or knowingly or negligently omits to take such order with 'y poisonous substance in his possession as is sufficient to guard against any probable danger to human life from such poisonous | Environmental Protection the Lay ished with imor: «ce, shall be punis ith imprison, s

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