ACCESS TO ENVIRONMENTAL JUSTICE AND ROLE OF NATIONAL

GREEN TRIBUNAL: A CRITIQUE

DONE UNDER THE SUPERVISION OF: SUBMITTED BY:

Prof. (DR.) S.P. SINGH ABHISHEK SEMWAL

B.Com LL.B. (H)

ENROLLMENT NO. – 05490103813

5th YEAR (9th SEMESTER)

 DECLARATION

I, Kanchan Semwal, student of B.A. LL.B. (H.), in Fairfield School of Law, Kapashera do
hereby declare that the research paper titled “Access To Environmental Justice And Role of
National Green Tribunal: A Critique” submitted by me to my institute is original work done
by me under the supervision of Dr. SP Singh.

I further declare that any reference to work done by any other person or any material obtained
from other sources have been duly cited, to show that this material has been adopted to support
my thesis.

Place: New Delhi KANCHAN SEMWAL

CERTIFICATE
This is to certify that the research work entitled “ACCESS TO ENVIRONMENTAL JUSTICE
AND ROLE OF NATIONAL GREEN TRIBUNAL” is the work done by Ms Kanchan Semwal
under my guidance and supervision for the partial fulfilment of the requirement of B.A.LLB
(H) degree of Fairfield institute of management and technology, Kapashera.

To the best of my knowledge and belief the dissertation:

i. Is the work of the candidate herself

ii. Is duly completed
iii. Is up to the standards both in respect of contents and language for being referred to
the examiner.

SUPERVISOR

Dr. SP SINGH

FAIRFIELD INSTITUTE OF MANAGEMENT AND TECHNOLOGY

ACKNOWLEDGEMENT
I would like to take this opportunity to express my sincere gratitude to my teacher DR. S.P.
Singh for providing his invaluable guidance, comments and constant encouragement
throughout the course of the research, which helped me in completing my paper.

His perceptive criticism kept me working to make this paper in a much better way.

Any material used from different sources has been thoroughly acknowledged

Thank you

Kanchan Semwal

TABLE OF CASES
ABBREVIATIONS
1. AIR – ALL INDIA REPORTER
2. ANR. - ANOTHER
3. B/W - BETWEEN
4. NGT – NATIONAL GREEN TRIBUNAL
5. SC - SUPREME COURT
6. EJ – ENVIRONMENTAL JUSTICE
7. EPA – ENVIRONMENTAL PROTECTION AGENCY
8. EMPR – ENVIRONMENTAL MANNAGEMENT PROGRAM REPORT
9. EJM – ENVIRONMENTAL JUSTICE MOVEMENT
10. EJATLAS – ENVIRONMENTAL JUSTICE
11. EJOLT -ENVIRONMENTAL JUSTICE ORGANISATION LIABILITIES AND
TRADE
12. ORS- OTHERS
13. &- AND
14. ECT – ENVIRONMENTAL COURT TRIBUNAL
15. EC – ENVIRONMENTAL COURT
16. PIL – PUBLIC INTEREST LITIGATION
17. SD – SUSTAINABLE DEVELOPMENT
 CONTENTS

DECLARATION

CERTIFICATE

ACKNOWLEDGEMENT

TABLE OF CASES

ABBREVIATTIONS

CONTENTS

ABSTRACT

CHAPTER 1: INTODUCTION

1.1 OBJECTIVE OF STUDY

1.2 DEFINITION
1.3 HISTORY OF ENVIRONMENTAL JUSTICE

1.4 PRINCIPLES OF ENVIRONMENTAL JUSTICE

1.5 IMPORTANCE OF ENVIRONMENTAL JUSTICE

1.6 CASES OF ENVIRONMENTAL JUSTICE ALL OVER THE WORLD

1.7 OBJECTIVES/ AIMS OF ENVIRONMENTAL JUSTICE

CHAPTER 2: ENVIRONMENTAL JUSTICE AND ITS ROLE

CHAPTER 6: RESEARCH ANALYSIS

6.1 Conclusion
 6.2 Suggestions

6.3 Bibliography

ABSTRACT

Access to environmental justice is a key component to ensure just and equitable outcomes for
sustainable development. Indian environmentalism has, for the most part, been about social
justice. Environmental degradation is one of the challenges faced by today‘s world. Advances
in science and technology have, no doubt conferred many benefits to society in the form of
better and improved quality of goods at comparatively reasonable prices & in comparatively
large quantities. This advent of technology has also brought in its trail the problem of pollution.
‘Pollution’ in ordinary parlance can be defined to mean the presence of wrong matter in wrong
quantity at wrong place. Therefore it is necessary to ensure that there is sufficient checks
against pollution.

This has accelerated the concerns for improved access to environmental justice, the
environmental rule of law, sustainable development and a green economy. The 21st century is
witnessing a dramatic change in environmental justice with the rapid growth in environmental
courts and tribunals (ECTs) as logical solutions to the traditional barriers of justice system.
Over 1,200 environmental courts and tribunals- focused on resolving environmental, natural
resource, land use development, and related issues now operating worldwide at the national
and state/provincial level. As a result of the dire need for speedy justice, India, too, is stepping
forward towards green justice by enacting National Green Tribunal Act, 2010 and hence
providing the provision for establishment of National Green Tribunal for effective and
expeditious disposal of environment related disputes.

The National Green Tribunal (NGT) was founded on 18th October 2010, as a dedicated
environmental court under the National Green Tribunal Act, 2010 and became fully operational
with effect from 4 July 2011 It is a statutory tribunal which was enacted by the parliament
especially for hearing the matters concerning to environmental issue.
 CHAPTER – 1

INTRODUCTION

Many communities around the world are facing the growing pressures from resource scarcity
and rising levels of pollution, posing risks to lives and livelihoods and which is making the
long-standing situation of structural inequality worse. In the absence of effective means to
enforce their rights, the poor lack effectively access to and benefits from the natural resources
they host, or to challenge the impacts of pollution on their health and welfare, and that of future
generations.

In a world of stark and growing inequality, ecosystem services and natural resources can be of
great benefit to achieving goals of inclusion and poverty reduction. But too often the critical
ecosystem services the planet provides us suffer from mismanagement and lack of effective
governance. Meanwhile, as critical ecosystem functions and resource security decline, it is the
poor who bear little responsibility but who suffer the most, with impacts on lives and
livelihoods. Around the world the poor suffer disproportionately from more frequent and severe
storms, floods and droughts, health impacts of toxic pollution, and insecurity of access to
productive resources such as arable land, freshwater and sustainable energy.

As the world seeks responses to converging risks from inequality and environmental change,
attention is placed on the role of improved governance for sustainable development. The way
in which ecosystems and natural resources are currently governed often results in multiple
deprivations, marginalization, and structural inequality. In many contexts “environmental
degradation generates further poverty by the exhaustion of natural resources and creates
prejudice to the exercise of basic rights.” Poor and vulnerable communities suffer from various
forms of environmental injustice, often unable to fight back and reverse trends which keep
them mired in a state of exclusion. Without a paradigm shift in how natural resources and the
environment are valued and governed, inequality will deepen and post-2015 development goals
will be threatened, if not reversed. Of particular importance are ways legal and institutional
innovations can empower the poor to challenge and reverse declining levels of natural capital
and ecosystem services.

The concept of environmental justice has arisen in this context: a mechanism of accountability
for the protection of rights and the prevention and punishment of wrongs related to the
disproportionate impacts of growth on the poor and vulnerable in society from rising pollution
and degradation of ecosystem services, and from inequitable access to and benefits from the
use of natural assets and extractive resources. In 1992, the Rio Declaration in Principle 10
declared “Environmental issues are best handled with the participation of all concerned
citizens, at the relevant level. At the national level, each individual shall have appropriate
access to information concerning the environment that is held by public authorities, including
information on hazardous materials and activities in their communities, and the opportunity to
participate in decision-making processes. States shall facilitate and encourage public awareness
and participation by making information widely available. Effective access to judicial and
administrative proceedings, including redress and remedy, shall be provided.”

1.1 DEFINITION
It is an emerging issue that can contribute in the fighting against legal discrimination,
eliminating poverty and reducing inequality. The term ‘environmental justice’ consists of
the two word ‘environment’ and ‘justice’. Academic scholars and activists of
environmental justice have demonstrated that the definition, contents and scope of the term
environmental justice ultimately depends on the fact that how one defines the terms
‘environment’ and ‘justice’.

The term ‘justice’ is a protean or versatile concept and therefore there has been
various theories of justice. Similarly term ‘environment’ has also been seen in narrow and
broader way. In its narrow perspective ‘environment’ has been confined to technical definition
which includes natural and manmade environment. One the other hand it its broader
perspective ‘environment’ has been co-related to social, political and economic factors. This
broader concept of environment has also been highlighted by the Report of the World
Commission on Environment and Development (WCED), 1987 published as Our Common
Future. This Report co-relates socio-economic factors such as poverty, economics and trade
etc. with the environment.1 Hence therefore we have attempted to present some various views
relating to definition and principles of the environmental justice. It is important to note there is
no one agreed-upon definition of “environmental justice.” The terrible effects of environmental
pollution—on health, safety, life expectancy, communities and culture—and the inextricable
links between exploitation of land and exploitation of people, have echoes throughout history.
The term “environmental justice”, however, developed after the struggle in Warren County and
other horrors drew national attention. Called by many the “next phase of civil rights”—the
burgeoning movement also drew many of its strategies and momentum from the success of
environmental litigation a decade before.

‘There are several working definitions of environmental justice and its core principles, and
ongoing tension between the oft-cited U.S. Environmental Protection Agency (EPA)
definition and the original “Principles of Environmental Justice” developed at the First
National People of Color Environmental Leadership Summit in 1991.’2

The United States Environmental Protection Agency defines environmental justice as

follows:

‘Environmental justice is the fair treatment and meaningful involvement of all people
regardless of race, colour, national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and policies. This
definition is based on the broader definitions of the environment and its surroundings with
respect to the conditions which a person lives. EPA has this goal for all communities and
persons across this Nation. It will be achieved when everyone enjoys the same degree of
protection from environmental and health hazards and equal access to the decision-making
process to have a healthy environment in which to live, learn, and work.’ 3

1. The WCED Report, 1987, has highlighted the growing contemporary tensions between development and
environment. It, therefore, highlighted the need for ‘sustainable development’ which has now become a buzz word
in contemporary academic debate.
2
https://lawforenvgrassroots.com/environmental-justice-and-injustices/impact-of-environmental-injustice/

3
https://en.wikipedia.org/wiki/Environmental_justice
 Other definitions include: equitable distribution of environmental risks and benefits; fair and
meaningful participation in environmental decision-making; recognition of community ways
of life, local knowledge, and cultural difference; and the capability of communities and
individuals to function and flourish in society. An alternative meaning, used in social sciences,
of the term justice is the distribution of social goods.

Environmental justice is fundamental to understanding and managing our

relationship with the biosphere. It’s invoked by scholars, activists and even diplomats.
But environmental justice is also a concept that means different things to different
people.

Environmental justice is based on the principle that all people have a right to be protected
from environmental pollution and to live in and enjoy a clean and healthful environment.
Environmental Justice is the equal protection and meaningful involvement of all people with
respect to the development, implementation and enforcement of environmental laws,
regulations and policies and the equitable distribution of environmental benefits.
(Commonwealth of Massachusetts 2002:2).

Environmental justice is the fair treatment and meaningful involvement of all people
regardless of race, colour, national origin, or income with respect to the development,
implementation and enforcement of environmental laws, regulations and policies.
Fair treatment means no group of people should bear a disproportionate share of the negative
environmental consequences resulting from industrial, governmental and commercial
operations or policies.
Meaningful involvement means:

 People have an opportunity to participate in decisions about activities that may affect their
environment and/or health;
 The public's contribution can influence the regulatory agency's decision;
 Community concerns will be considered in the decision making process; and
 Decision makers will seek out and facilitate the involvement of those potentially affected.

1.2 ENVIRONMENTAL JUSTICE MOVEMENT

The origin of the American environmental justice movement can be traced back to the
emergence of the American Civil Rights movement of the 1960s, and more specifically to
 the U.S. Civil Rights Act of 1964. The movement reached a new level with the emergence
of Robert Bullard’s work entitled Dumping in Dixie in the 1990’s, which constituted a
clarion call for environmental justice. The environmental justice movement is about thirty
years old, and it has been successful in confronting environmental degradation in poor and
minority communities.
Environmental justice started as a grassroots movement during the early 1980s in areas
of the United States where the minority and underprivileged faced disproportionate
environmental burdens. The movement was galvanized in 1982 in Warren county, North
Carolina, where an African American community was selected to be the site of
a hazardous-waste landfill following years of illegal dumping of polychlorinated
biphenyl-laden oil along the community’s roads. The events in Warren county led to the
coining of the term environmental racism, defined as minority communities’ being
targeted for the placement of waste-generating or waste-storage facilities and
discriminated against in the enforcement of environmental standards. The environmental
justice movement grew to combine traditional environmentalism with the conviction that
all individuals have the right to live in a safe environment. 4
According to Dr. Robert Bullard, a scholar and prominent environmental justice activist,
in an interview for Earth First! Journal, “Race is still the potent factor for predicting where
Locally Unwanted Land Uses (LULUs) go. A lot of people say its class, but race and class
are intertwined. Because the society is so racist and because racism touches every
institution – employment, housing, education, facility siting, land use decisions – you
really can’t extract race out of decisions that are being made by persons who are in power
when the power arrangements are unequal.” 5

The environmental justice (EJ) movement seeks to change that by giving

disenfranchised communities – often communities of colour – a voice and empowering them
to organize and get involved in decision making processes. As defined by Dr. Bullard, “The
environmental justice movement has basically redefined what environmentalism is all about.
It basically says that the environment is everything: where we live, work, play, go to school,
as well as the physical and natural world. And so we can’t separate the physical environment

4
https://www.britannica.com/topic/environmental-justice

5
https://www.goldmanprize.org/blog/environmental-racism-in-america-an-overview-of-the-environmental-
justice-movement-and-the-role-of-race-in-environmental-policies/
from the cultural environment. We have to talk about making sure that justice is integrated
throughout all of the stuff that we do.”

"Environmental Justice" is a movement comprising Civil Rights activists

and environmentalists working to ensure the rights of low-income and minority communities
to clean and healthy environments. Movements, often comprised of an aggregate of issues
and events, are usually defined in singular moments--catalysts for momentum towards
comprehensive, cohesive action and response.

The catalyst for the Environmental Justice/Equity Movement had its beginnings in a small,
predominately African-American community in the South. And while there had always been
an awareness of the disproportionate burden borne by minorities and low-income
communities, events did not give rise to a " movement " until 1982 in Warren County, North
Carolina.

Warren County, North Carolina

In the early eighties, the State of North Carolina decided to build a toxic waste landfill in an
overwhelmingly low-income and minority community in Warren County. This landfill was
created for the disposal of PCB-contaminated soil, removed from fourteen counties
throughout the State. Civil rights and environmental activists collaborated to stage numerous
demonstrations, which resulted in the arrest of more than 500 people, including Dr. Benjamin
F. Chavis, Jr.--then Executive Director of the United Church of Christ Commission for Racial
Justice (and formerly the Executive Director of the National Association for the
Advancement of Colored People), Dr. Joseph Lowery of the Southern Christian Leadership
Conference, and Congressman Walter Fauntroy (D- DC).

Effect of the Warren County Protests; GAO Study

Warren County became a rallying point for those eager to see national attention focused on
the inequities clearly present in the siting of unwanted land uses. At the behest of
Congressman Walter Fauntroy, the U.S. General Accounting Office (GAO) conducted a
study of the states comprising Region IV (Alabama, Florida, Georgia, Kentucky, Mississippi,
North Carolina, South Carolina, and Tennessee) "to determine the correlation between the
location of hazardous waste landfills and the racial and economic status of the
surrounding communities."

The study's conclusions, while not surprising, were disheartening. The report found that three
out of every four landfills, in the EPA's Region IV, were located near predominately minority
communties.

Commission on Racial Justice Report; Toxic Waste and Race

In 1987, a milestone Commission on Racial Justice report showed that the most significant
factor in determining the siting of hazardous waste facilities, nationwide, was race. The CRJ
study found that three out every five African-Americans or Hispanics live in a community
buttressing unregulated toxic waste sites. Additionally, the study noted that African-
Americans were heavily overrepresented in the populations of metropolitan areas with the
greatest number of uncontrolled toxic waste sites.

Results of other studies; race and economic considerations as factors

Other studies support the premise of race as a significant factor in the siting of unwanted land
uses; however, economic considerations also play a role in the decision to site in
predominately minority communites. Oftentimes, poor communities are intentionally chosen
to host undesirable land uses simply because there is no expectation of resistance from
community residents and/or leaders.

National Law Journal study; official response to EJ situations

Following closely on the heels of C.R.J. Report, the National Law Journal conducted a study
of its own and found that the Environmental Protection Agency (EPA) took 20% longer to
place abandoned sites in minority communities on the national priority action list and that
polluters of those neighborhoods paid fines 54% lower than polluters of white communities.

Grassroots Activism

Grassroots activists and community leaders have utilized the data developed
by environmental equity theorists, advocates, and sociologists to confront corporate entities
and inert and oftentimes ineffectual state and federal agencies over unwanted sitings.
Clinton Administration and Executive Order 12898

With the advent of a new administration, advocates have begun noting changes in the law, as
well as the overall reception given by government officials. On February 11, 1994, President
Clinton signed Executive Order 12898. This "Order" directs each federal agency to develop
an Environmental Justice strategy for "identifying and addressing... disproportionately high
and adverse human health or environmental effects of its programs, policies, and activities
on minority populations and low-income populations." Monies have been allocated to federal
agencies and state governments assisting communities develop strategies to
local environmental problems.

"Regulatory Reform" and Environmental Policy and Protection Rollbacks

In the mid-1990's, the advent of rising voter apathy, divisional politics, and a conservative
Congress resulted in stemming the tide of change in American Environmental Policies.
Under the guise of "regulatory reform," attempts were made to
rollback environmental protections developed in the last twenty years. Nonetheless,
grassroots organizers and local community activists were not stymied by these developments.
Throughout 1995 and 1996, community leaders, national advocacy groups and
environmentalists worked to prevent conservative legislators from gutting
existing environmental laws. Indeed, the very nation responded with a resounding "NO"
when offered a so-called "regulatory reform package"--an unpalatable range of bills designed
to decimate the very safeguards which afford every American clean water and clean air. 6

In recent years environmental justice campaigns have also emerged in other parts of the world,
such as India, South Africa, Israel, Nigeria, Mexico, Hungary, Uganda, and the United Kingdom. In
Europe for example, there is evidence to suggest that the Romani people and other minority groups
of non-European descent are suffering from environmental inequality and discrimination.

i. EUROPE: The European Union is trying to strive towards environmental

justice by putting into effect declarations that state that all people have a
right to a healthy environment. The Stockholm Declaration, the
1987 Brundtland Commission's Report – "Our Common Future", the Rio

6
https://www.uow.edu.au/~sharonb/STS300/environment/history/artecojust.html
 Declaration, and Article 37 of the Charter of Fundamental Rights of the
European Union, all are ways that the Europeans have put acts in place to
work toward environmental justice. Europe also funds action-oriented
projects that work on furthering Environmental Justice throughout the
world. For example, EJOLT (Environmental Justice Organisations,
Liabilities and Trade) is a large multinational project supported through
the FP7 Science in Society budget line from the European Commission.
From March 2011 to March 2015, 23 civil society organizations and
universities from 20 countries in Europe, Africa, Latin-America, and Asia
are, and have promised to work together on advancing the cause of
Environmental Justice. EJOLT is building up case studies, linking
organisations worldwide, and making an interactive global map of
Environmental Justice.
ii. SWEDEN: Sweden became the first country to ban DDT in 1969 due to
the efforts of women protesting its usage in forests. In the 1980s, women
activists organized around preparing jam made from pesticide-tainted
berries, which they offered to the members of parliament. Parliament
members refused, and this has often been cited as an example of direct
action within ecofeminism.
iii. UNITED KINGDOM: Whilst the predominant agenda of the
Environmental Justice movement in the United States has been tackling
issues of race, inequality, and the environment, environmental justice
campaigns around the world have developed and shifted in focus. For
example, the EJ movement in the United Kingdom is quite different. It
focuses on issues of poverty and the environment, but also tackles issues
of health inequalities and social exclusion. A UK-based NGO, named
the Environmental Justice Foundation, has sought to make a direct link
between the need for environmental security and the defence of basic
human rights. They have launched several high profile campaigns that
link environmental problems and social injustices. A campaign against
illegal, unreported and unregulated (IUU)fishing highlighted how 'pirate'
fisherman are stealing food from local, artisanal fishing
communities. They have also launched a campaign exposing the
environmental and human rights abuses involved in cotton production
 in Uzbekistan. Cotton produced in Uzbekistan is often harvested by
children for little or no pay. In addition, the mismanagement of water
resources for crop irrigation has led to the near eradication of the Aral Sea.
The Environmental Justice Foundation has successfully petitioned large
retailers such as Wal-Mart and Tesco to stop selling Uzbek cotton.
iv. AUSTRALIA: In Australia, the "Environmental Justice Movement" is
not defined as it is in the United States. Australia does have some
discrimination mainly in the siting of hazardous waste facilities in areas
where the people are not given proper information about the company.
The injustice that takes place in Australia is defined as environmental
politics on who get the unwanted waste site or who has control over where
factory opens up. The movement towards equal environmental politics
focuses more on who can fight for companies to build, and takes place in
the parliament; whereas, in the United States Environmental Justice is
trying to make nature safer for all people.
v. SOUTH AFRICA: Under colonial and apartheid governments in South
Africa, thousands of black South Africans were removed from their
ancestral lands to make way for game parks. Earth life Africa was formed
in 1988 (www.earthlife.org.za), making it Africa's first environmental
justice organisation. In 1992, the Environmental Justice Networking
Forum (EJNF), a nationwide umbrella organization designed to
coordinate the activities of environmental activists and organizations
interested in social and environmental justice, was created. By 1995, the
network expanded to include 150 member organizations and by 2000, it
included over 600 member organizations.

With the election of the African National Congress (ANC) in 1994, the
environmental justice movement gained an ally in government. The ANC noted "poverty and
environmental degradation have been closely linked" in South Africa. The ANC made it clear
that environmental inequalities and injustices would be addressed as part of the party's post-
apartheid reconstruction and development mandate. The new South African Constitution,
finalized in 1996, includes a Bill of Rights that grants South Africans the right to an
"environment that is not harmful to their health or well-being" and "to have the environment
protected, for the benefit of present and future generations through reasonable legislative and
other measures that

1. prevent pollution and ecological degradation;

2. promote conservation; and
3. Secure ecologically sustainable development and use of natural resources while
promoting justifiable economic and social development".

South Africa's mining industry is the largest single producer of solid waste, accounting for
about two-thirds of the total waste stream. Tens of thousands of deaths have occurred among
mine workers as a result of accidents over the last century. There have been several deaths and
debilitating diseases from work-related illnesses like asbestosis. For those who live next to a
mine, the quality of air and water is poor. Noise, dust, and dangerous equipment and vehicles
can be threats to the safety of those who live next to a mine as well. These communities are
often poor and black and have little choice over the placement of a mine near their homes.
The National Party introduced a new Minerals Act that began to address environmental
considerations by recognizing the health and safety concerns of workers and the need for land
rehabilitation during and after mining operations. In 1993, the Act was amended to require each
new mine to have an Environmental Management Program Report (EMPR) prepared before
breaking ground. These EMPRs were intended to force mining companies to outline all the
possible environmental impacts of the particular mining operation and to make provision for
environmental management.

In October 1998, the Department of Minerals and Energy released a White Paper entitled A
Minerals and Mining Policy for South Africa, which included a section on Environmental
Management. The White Paper states "Government, in recognition of the responsibility of the
State as custodian of the nation's natural resources, will ensure that the essential development
of the country's mineral resources will take place within a framework of sustainable
development and in accordance with national environmental policy, norms, and standards". It
adds that any environmental policy "must ensure a cost-effective and competitive mining
industry."7

7
https://en.wikipedia.org/wiki/Environmental_justice
1.3 HISTORY OF ENVIRONMENTAL JUSTICE

The notion of environmental justice was conceived in the United States (US) in the mid-
1980s, in the context of the struggle for racial equality. And was further developed in the
US and has spread across the globe. Although it was not labeled as such, environmental
justice activism has been an underlying frame in the politics of communities of people of
color for more than a century. Since the beginning of modern conservationism,
environmental thinkers and nature advocates applied arguments about injustice related to
environmental rights in making claims about human-environment relations, and advocated
for environmental policies and action.

Thus, the environmental justice movement is only the latest in a series of

environmental mobilizations that employ the notion of injustice but, unlike its
predecessors, the environmental justice movement makes the injustice frame explicit. This
is because it is the first branch of the environmental movement to examine human-human
and human-nature relations through the lenses of race, class, and gender. In other words,
environmental justice not only acknowledges the existence of environmental injustice in
the form of humans harming nature, it also recognizes that environmental injustice arises
from racial, gender, and class discrimination.

1.4 PRINCIPLES OF ENVIRONMENTAL JUSTICE

Principles of environmental justice developed throughout the 1980’s and 1990s in convenings
of environmental grassroots organizations, indigenous communities and nations. Taken
together, they represent critical ideological pillars of the environmental justice and
environmental movements, including:

 Principles of Environmental Justice

 Principles of Working Together
 Jemez Principles of Democratic Organizing
‘17 principles of environmental justice were drafted and adopted by delegates to the first
National People of Colour Environment Leadership summit held on October 1991 in
Washington DC.’8 Since, these principles have served as the cornerstone for environmental
justice. The following are the 17 principles according to the document drafted and adopted in
the 1991 summit:

1. Environmental Justice asserts that mother earth is sacred, that everything

on earth is connected ecologically and is interdependent, and that every
species has a right to freedom from ecological destruction.
2. Environmental Justice requires all public policies to be founded on justice
and mutual respect for all people without any bias or discrimination.
3. Environmental justice advocates for the right to use land and renewable
resources responsibly, ethically and in a way that is balanced in pursuit of
a sustainable planet for humanity and other living organisms.
4. Environmental justice asks for universal protection from indiscriminate
nuclear testing, the production and discarding of toxic waste and toxins and
testing of nuclear material that threaten the very important right to clear the
air, water, land and food.
5. Environmental justice confirms the elementary right to economic, cultural,
political and environmental volition of every person.
6. Environmental justice calls for a stop to production of toxic wastes
and radioactive substances, and that the past and present producers should
be accountable for the people, the detoxification and management
of hazardous wastes at the production point.
7. Environmental justice appeals for the right to participation as equal
partners at every decision that needs to be made with regards to their
environmental surrounding, including assessment of needs from
assessments, planning, implementation and enforcement.
8. Environmental justice confirms every workers right to a healthy and safe
working environment without having to choose between unemployment and
an unsafe source of livelihood. It also confirms that those who work from
home have a right to freedom from environmental hazards.

8
https://www.conserve-energy-future.com/environmental-justice-principles-importance-examples.php
 9. Environmental justice protects the rights of those who fall victim to
environmental injustice to receive reparations and full compensation for
damages they incur and also receive great health care.
10. Environmental justice considers any acts of environmental injustice by the
government a violation of international laws; the United Nations Convention
on Genocide and the Universal Declaration on Human Rights.
11. Environmental justice has to recognize a national and legal relationship
between the regional natives and the government through agreements,
compacts, treaties and covenants that affirm self-determination and
sovereignty.
12. Environmental justice confirms the urban and rural ecological policies
needs to clear and reconstruct urban and rural areas to be in balance with
Mother Nature, respecting and recognizing the cultural integrity of
communities and providing equal access to all available resources.
13. Environmental justice appeals for enforcement of the principles of
informed consent and a stop to testing of experimenting of medical and
reproductive procedures and products and vaccines on people of colour.
14. Environmental justice argues against the operations that are destructive
carried out by multinational corporations.
15. Environmental justice disapproves of occupation, exploitation and
repression of land, people and their different cultures and other forms of life
by the military.
16. Environmental justice asks for empowerment of current and future
generations that addresses social and environmental issues based on current
experience and appreciation for the different cultural perspectives.
17. Environmental justice requires that we make our choices both personally
and as consumers to consume as little as we can of the earth’s resources and
produce as little waste as we can. We have to make the decision to
reprioritize and challenge our lifestyles in order to ensure a healthy world
for the current and future generations.

1.5 IMPORTANCE OF ENVIRONMENTAL JUSTICE

 1. It defines human relationship with the environment

The human relationship with the environment revolves around perception and value and the
role that these two play in our behaviour and lives. One thing that shapes our values is justice.
It drives and shapes us into being who we are. Most people recoil against injustice towards
other humans and other species of living organisms. Those who are empowered on
environmental injustice understand that it protects humanity and other lives by protecting the
environment.

Thus, they condemn environmental pollution which can harm communities, individuals and
ecosystems. People also value outcomes they see as just. When people realize that
environmental justice protects environmental elements and commons that belong to their
community, they support it. When people realize this, they protect current and future
generations by being empowered through environmental justice initiatives.

2. It highlights the importance of conservation and fair usage of natural resources

People get to conserve natural resources when they follow environmental justice. Given that
communities debate over justice when it comes to distributing available resources like water
fairly, it ensures the resources are used wisely. For instance, unfair distribution and usage of
natural resources can be dangerous especially in areas where they are scarce.

Environmental justice therefore emphasizes on fair distribution and opposes wastage. When
the principles of environmental justice are followed, injustices associated with natural
resources are forgotten and things like wars and clashes over usage of natural resources are
forgotten.

3. Sustainability can only be well comprehended through environmental justice

Sustainability revolves a lot around the indefinite time renewable resources can be harvested
while pollution reduces and humanity can stop being overly dependent on non-renewable
resources. Justice is about which rights are owed to what or who and assigning the right
treatments appropriate to behaviour and circumstance.
According to Wolfgang Sachs and Tilman Santarius have noted in their book, Fair Future,
everyone should be accountable according to their needs and rights. When we weigh the
benefits of environmental justice such as natural resources and burdens such as pollution,
responsibility is learned and solutions to attain sustainability are taken. Sure sustainability
might be in a distant future but the actions we take in the present through environmental justice
initiatives take us a step toward it.

4. It defines the need for just distribution of resources (distributive justice)

Because it is not wrong for one person to have more resources than others, distributive justice
is not about equally sharing resources. Just distribution of resources revolves around how the
people involved are involved with one another. Justice applies not when one has more resources
that another, but if one person takes resources from another person’s environment. It also
applies when one has more resources than they need while another is suffering for lacking any,
this is injustice. Environmental justice thus emphasizes on the law of distribution.

5. It strengthens environmental laws, policies, and regulations

Justice falls under two categories; procedural justice which revolves around how policies are
decided on and consequentialist justice which is what comes off those decisions and actions.
For procedural justice, the rights of people have to be respected in making decisions. Since it
redistributes benefits and burdens, environmental justice supports the policies about the
environment. The principles of environmental justice support and strengthen environmental
laws through equal distribution of resources and laws regarding pollution.

1.6 CASES OF ENVIRONMENTAL JUSTICE ALL OVER THE WORLD

The following are the cases of environmental justice over the years and cases where
environmental justice was applied. According to Ejolt, only about thirty five percent of cases
on environmental justice cases reach any sort of conclusion compared to seventeen percent of
the global cases. As these numbers suggest, in most cases justice is not exactly served but in
some cases, environmental justice is followed:-

1. 1972, Pittston coal

The case by workers against the Pittston coal company is one of the successful environmental
cases. It was after the workers strike following Pittson Company terminating health care
benefits for retirees, widows and miners who are disabled and the displacement of thousands
of people causing an environmental nightmare of epic proportions.

The company’s sludge bi-products flowed from uphill creating sludge dams that were ignored
by the company. In February 1972 however, the dams gave way and ended up displacing so
many people by turning the ground to marsh. It is for these reasons that legal action was taken
against Pittston Coal Company to settle the people. Federal and state resources are still being
used in attempt to fix all the land there.

2. 1989, Exxon Valdez disaster

This is one of the most known environmental disasters and cases where environmental justice
applied. An oil tanker, Exxon Valdex, containing thirty eight gallons of crude oil ran aground.
This was at a Prince William Bligh reef which is offshore Alaska. It killed marine life for
thousands of miles within the ocean and it continued for many years thereafter. Exxon Oil
Company paid millions in fines and litigation in addition to taking care of cleaning up.

3. 1993, Chevron Refining

In 1993, Chevron refining company wanted to expand its operations to Richmond in California.
There was much opposition due to concerns for the health of the locals and environmental
pollution, Chevron ignored these and still went ahead with operations. Citizens however
formed a coalition called the county toxics coalition.

The coalitions formed a judicial pact with Chevron refining company that allowed chevron to
continue operations as long as they provided a five million dollar grant funding the city’s future
environmental programs. The coalition is effective to this day.

4. 2010, BP

BP is an oil company that is known and operates internationally. In 2010 however, they caused
the worst disaster ecologically speaking yet. While BP was pumping oil from the Gulf of
Mexico at the ocean floor, the rig exploded resulting in a rupture of the highly pressurized
pipeline fill of oil.

Millions of gallons of oil spilled and since there was no known way to stop the spillage, there
was massive leakage. The well head was eventually capped but the damage was done. Marine
life was killed, ecological and even human fatalities were found. Despite the lawsuits, levies
and clean up funds, the damages are still suffered up to date.

5. 2016, Fracking

‘A new technology called fracking is highly booming in the United States. It pumps highly
pressurized liquids to create fissures on the shale rock from which oil and natural gases can
escape. Its advocates had managed to ease the storm around fracking but a recent study by
researchers from Duke Universities have stirred it up by presenting facts about the ecological
impact of fracking.’9

Facts show environmental pollution and direct impact on human lives around the areas of
mining. Litigations and lawsuits are now gearing up, some successful while some still ongoing.

1.7 OBJECTIVES/ AIMS OF ENVIRONMENTAL JUSTICE

a. The primary aim of environmental justice is therefore to ensure each and every
person benefits from equal degree of protection from environmental and
health hazards.

b. It also ensures everyone has the same degree of access to decision-making process
to have an environment with healthy living, working and learning conditions.
Broadly, environmental justice is all about equal distribution of the benefits and
risks of the environment accompanied with participatory decision-making on
environmental matters.

9
https://www.conserve-energy-future.com/environmental-justice-principles-importance-examples.php
1.8 OBJECTIVE OF STUDY
 CHAPTER 2

ENVIRONMENTAL JUSTICE AND ITS ROLE IN THE ENVIRONMENT

Environmental justice (EJ) is based on the principle that all people have a right to be protected
from environmental pollution, and to live in and enjoy a clean and healthful environment.
Environmental Justice refers to those cultural norms and values, rules, regulations, behaviours,
policies, and decisions to support sustainability, where all people can hold with confidence that
their community and natural environment is safe and productive. Environmental Justice is
realized when all people can realize their highest potential, without interruption by
environmental racism or inequity. Environmental Justice is supported by decent paying and
secure jobs; quality schools and recreation; decent housing and adequate health care;
democratic decision-making; and finally, personal empowerment. A community of
Environmental Justice is one in which both cultural and biological diversity are respected, and
where there is equal access to institutions and ample resources to grow and prosper.
2.1 ENVIRONMENT DEFINITION

Coming up with a definition for the environment is more complex than one can imagine,
because the environment encapsulates all that lies between particles existing at sub atomic
levels to cosmic objects of unimaginable size that orbit space. Such is the vastness and
complexity of the environment that we live in.

‘Environment is everything that is around us. It can be living or non-living things. It

includes physical, chemical and other natural forces. Living things live in their environment.
They constantly interact with it and adapt themselves to conditions in their environment. In the
environment there are different interactions between animals, plants, soil, water, and other
living and non-living things.’10

Since everything is part of the environment of something else, the word 'environment' is used
to talk about many things. People in different fields of knowledge use the word environment
differently.

Word "environment" is most commonly used describing "natural" environment and means
the sum of all living and non-living things that surround an organism, or group of organisms.
Environment includes all elements, factors, and conditions that have some impact on growth
and development of certain organism. Environment includes both biotic and a-biotic factors
that have influence on observed organism.

According to the Webster Dictionary, it is defined as the “Aggregate of all the

external condition and influences affecting the life and development of an organism.”

Under Section 2(a) of the environment (protection) act, 1986, 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 analysing 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.

Introduction

The term ‘environment’ can describe a limited area or the entire planet, even including a part
of the outer space which surrounds it. The term ‘biosphere’ used in particular by UNESCO,

10
https://simple.wikipedia.org/wiki/Environment
corresponds to one of the broadest definitions, since it designates the totality of the human
environment, the part of the universe where, according to present knowledge all life is
concentrated.21 The definition of environment affects the scope of legal rules which are
intended to protect the environment law cannot affect the natural processes that cause
environmental changes. However, the obligatory character of law and the sanctions which can
ensure the enforcement of legal rules should prevent and eliminate acts and behaviours which
are detrimental to the environment. Nonbinding principles and rules, formulated in
recommendation or declaration by international organization or conferences play an increasing
role in international law, especially in the field of environmental protection. Their function is
to guide State authorities and also other actors in their action but they can also contribute to the
emergence of new obligatory rules.

Stages in Environmental Protection

The social mechanism of environmental protection can be characterized by a three stage

approach.

• In the first stage law mainly national Constitutions, laws with a large environmental scope
and major intentional declaration or treaties defines the environmental values to be preserved
and protected.

• In the second stage environmental policy determines the objectives and strategies which
should be used in order to ensure the respect of environmental values, taking into account the
prevailing economic, social and cultural situation.

• In the third stage legal instruments are used to reach the objectives fixed by the environmental
policy. The content of such instruments can be economic, political, social or educational. As a
feedback, their implementation often needs the support of public opinion, the consensus of
which was the very basis of the recognition of the environment as a fundamental value.

The main characteristics of environmental law is the necessity for an inter disciplinary
approach because of the complexity of the subject. In order to prepare appropriate modern legal
rules, legal research should be undertaken in the two fields of legal history and comparative
law.

Environmental Doctrines
Right to wholesome environment is a fundamental right protected under Article 21 of the
Constitution of India. However the important question is that whether the environment can be
protected at present times when almost all the countries in South-East Asia are still at their
developing stages? Development comes through industrialization, which in turn the main factor
behind the degradation of environment. To resolve the issue, the experts worldwide have come
up with a doctrine called 'Sustainable Development', i.e. there must be balance between
development and ecology. The concept of 'Sustainable Development' had come to be known
as early as in 1972 in the Stockholm declaration. It had been stated in the declaration that:
“Man has the fundamental right to freedom, equality and adequate conditions of life, in an
environment of a quality that permits a life of dignity and well-being and he bears a solemn
responsibility to protect and improve the environment for present and future generations”.

The concept was given a definite shape in a report by World Commission on Environment,
which was known as ' our common future' (the Brundtland Report). The commission, which
was chaired by the then Norway Prime Minister, Ms. G.H. Brundtland defined 'Sustainable
Development' as “Development that meets the needs of the present without compromising the
ability of the future generations to meet their own needs".

The concept was further discussed under agenda 21 of UN conference on environment and
development held in June 1992 at Rio de Janeiro, Brazil and later on in the Johannesburg
Conference held in 2002. Some of its basic principles as described in 'Brundtland report' are as
follows:

• Inter-Generational Equity: The principle talks about the right of every generation to get
benefit from the natural resources. Principle 3 of the Rio declaration states that:

"The right to development must be fulfilled so as to equitably meet developmental and

environmental needs of present and future generations." The main object behind the principle
is to ensure that the present generation should not abuse the non-renewable resources so as to
deprive the future generation of its benefit.

• The Precautionary Principle: This principle has widely been recognized as the most important
principle of 'Sustainable Development'. Principle 15 the Rio declaration states that: "In order
to protect the environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or irreversible damage, lack
of full scientific certainty shall not be used as a reason for postponing cost-effective measures
to prevent environmental degradation." In other words it means:

1) Environmental measures by the state government and the local authority must anticipate,
prevent and attack the causes of environmental degradation.

2) Where there are threats of serious and irreversible damage, lack of scientific certainty should
not used as a reason for postponing measures to prevent environmental degradation.

3) The 'onus of proof' is on the actor or the developer to proof that his action is environmentally
beginning.

• Polluter Pays Principle: Principle 16 of the Rio declaration states that:

"National authorities should endeavor to promote the internalization of environmental

costs and the use of economic instruments, taking into account the approach that the
polluter should, in principle, bear the cost of pollution, with due regard to the public
interest and without distorting international trade and investment."

It is quite obvious that the object of the above principle was to make the polluter liable not only
for the compensation to the victims but also for the cost of restoring of environmental
degradation. Once the actor is proved to be guilty, he is liable to compensate for his act
irrelevant of the fact that whether he's involved in development process or not.

These concepts of have become an integral part of Environmental Law. Most of the doctrines
are recognized worldwide and have been adopted and implemented everywhere, including in
India. Judiciary in India, more precisely, the Supreme Court and the High Courts has played
an important role in preserving the doctrine of ' Sustainable Development '. Parliament has
enacted various laws to deal with the problems of environmental degradation. In such a
situation, the superior courts have played a pivotal role in interpreting those laws to suit the
doctrine of 'Sustainable Development'.

“The Polluter Pays” principle has been held to be a sound principle by this Court in Indian
Council for Environment - Legal Action v. Union of India, AIR 1996 SC 1446.
The Court observed, "We are of the opinion that any principle evolved in this behalf should be
simple, practical and suited to the conditions obtaining in this country”. In this case the number
of private companies operated as chemical companies were creating hazardous wastes in the
soil, henceforth, polluting the village area situated nearby, and they were also running without
licenses, so an environmental NGO, filed writ petition under article 32 of the Constitution of
India, which sought from the court to compel SPCB and CPCB to recover costs of the remedial
measures from the companies.

The Court ruled that "Once the activity carried on is hazardous or inherently dangerous, the
person carrying on such activity is liable to make good the loss caused to any other person by
his activity irrespective of the fact whether he took reasonable care while carrying on his
activity. The rule is premised upon the very nature of the activity carried on". Consequently
the polluting industries are "absolutely liable to compensate for the harm caused by them to
villagers in the affected area, to the soil and to the underground water and hence, they are bound
to take all necessary measures to remove sludge and other pollutants lying in the affected
areas". The "Polluter Pays" principle as interpreted by the Court means that the absolute
liability for harm to the environment extends not only to compensate the victims of pollution
but also the cost of restoring the environmental degradation. Remediation of the damaged
environment is part of the process of "Sustainable Development" and as such polluter is liable
to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.
It is worthwhile to mention here that principle 10 of Rio declaration, 1992 states that:

"Environmental issues are best handled with participation of all concerned citizens, at the
relevant level. At the national level, each individual shall have appropriate access to
information concerning the environment that is held by public authorities, including
information on hazardous materials and activities, in their communities, and the opportunity to
participate in decision-making processes. States shall facilitate and encourage public awareness
and participation by making information widely available. Effective access to judicial and
administrative proceedings, including redress and remedy, shall be provided”. Environment
and development are two sides of the same coin. Any one of these cannot be sacrificed for the
other. On contrary, both are equally important for our better future. Thus the responsibility lies
on the Supreme Court and the various High Courts to deal with these cases with caution of high
degree. Then only, we will achieve our goal i.e. to secure a pollution free developed country
for our next generation.
2.2 PROBLEMS OF THE ENVIRONMENT INJUSTICE

Environmental injustice or Environmental racism has existed for long, considering the fact
it is mostly the prosperous and wealthy people who have access to good water, good housing,
good protection good environment and overall a good healthy lifestyle while the poor live in
detrimental conditions which eventually leads to multiple deprivations. This pattern has been
seen commonly over the ages in most places and societies, that it has been accepted to be like
any other natural phenomenon.

Environmental racism is the disproportionate impact of environmental hazards on people of

colour. Environmental justice is the movement’s response to environmental racism.
‘Environmental racism refers to the institutional rules, regulations, policies or government
and/or corporate decisions that deliberately target certain communities for locally undesirable
land uses and lax enforcement of zoning and environmental laws, resulting in communities
being disproportionately exposed to toxic and hazardous waste based upon race.’11
Environmental racism is caused by several factors, including intentional neglect, the alleged
need for a receptacle for pollutants in urban areas, and a lack of institutional power and low
land values of people of colour. It is a well-documented fact that communities of colour and
low-income communities are disproportionately impacted by polluting industries (and very
specifically, hazardous waste facilities) and lax regulation of these industries.

‘Environmental injustice, often in the form of environmental racism, occurs when local
governments or companies build environmentally detrimental infrastructure in minority
communities. Not only do the communities suffer from the health effects of these projects, but
their access to health care is also limited by the often rural and low-income nature of their
towns.’ 12

‘Examples of environmental burdens that may be considered under the umbrella of

environmental justice cover many aspects of community life. These burdens can include any
environmental pollutant, hazard or disadvantage that compromises the health of a community
or its residents.’13 For instance, one of the environmental justice issues and examples is

11
http://greenaction.org/?page_id=420
12
https://sites.duke.edu/docst110s_01_s2011_sb211/what-is-environmental-justice/definitions/
13
https://study.com/academy/lesson/what-is-environmental-justice-definition-principles-examples-issues.html
inadequate access to healthy food. Certain communities, particularly lower-income or minority
communities, often lack supermarkets or other sources of healthy and affordable foods.

Another issue is inadequate transportation. While public transportation may be available in

urban areas, policies must be monitored to avoid cuts in service and fare hikes that make it
difficult for community residents to pursue employment or an adequate living standard.

Air and water pollution are major environmental justice issues. Because many lower-income
or minority communities are located near industrial plants or waste disposal sites, air and water
quality can suffer if not properly monitored.

Reverend Benjamin Chavis, the Executive Director of the Commission for Racial Justice of
the United Church of Christ during the Toxic Wastes and Race in the United States report in
1987 and a well-recognized environmental justice (EJ) advocate, refers to “environmental
racism” as racial discrimination in:

 Environmental policymaking

 Enforcement of environmental laws and procedures

 Targeting of communities for the siting of waste disposal and polluting industries

 Excluding people of colour from decision making boards

Some people consider racism an important aspect of the Environmental Justice Movement
(EJM) because it illustrates a foundation in the Civil Rights Movement.

The Civil Rights movement gave headway for activists to begin using the word 'environmental
racism,' framing racism as a causation of environmental inequities. This perspective of
"characterizing the absence of environmental justice as environmental racism sharpened the
appeal of the cause (Getches and Pellow in Mutz et al., 2001)," motivated communities of
colour to fight for environmental protection under the decree of social justice.

Thus, activists began viewing environmental injustices as an extension of institutional

racism. Institutionalized racism can be viewed as political practices, cultural norms, and
power structures that knowingly, or even unintentionally, affect groups of people
disproportionately.

EJM calls not only for an end to environmental inequities, but for an end to discrimination in
housing, land, education, and employment along with equal access to the political processes
where these decisions are being made. It should be mentioned that while the EJ movement
does have solid roots in empowering minorities, its work is not limited to communities of
colour. “All of the issues of environmental racism and environmental justice don’t just deal
with people of colour. We are just as much concerned with inequities in Appalachia, for
example, where white people are basically dumped on because of lack of economic and
political clout and lack of having a voice to say ‘no.’ That is environmental injustice.”

A full understanding of environmental justice requires knowledge of various causes of

injustice, which may be rooted in discrimination. It is only in the recent past that Environmental
Justice has found a voice and is trying to address these issues.

2.2.1 IN INDIA

According to environmental justice atlas, India has most cases of social and environmental
conflict.

Most cases of conflict in India have arisen from bad management and misappropriation of
water resources, leading to shortage of water and conflicts, researcher says.

Many conflict cases have also resulted from mining projects, extraction of mineral ores and
industrial activities, according to the atlas.

However, coverage of conflict cases in EJatlas still has some gaps, expert says, and coverage
of conflict cases in countries like China, Indonesia, North Africa, and Central Asia needs to
increase.

Often-controversial developmental projects, such as hydropower plants and mining

activities, are fuelling social and environmental conflict across India, according to the
Environmental Justice Atlas. In fact, India has the most number of reported cases of socio-
environmental conflict in the atlas.

‘The EJAtlas is an online interactive map that documents cases of people’s resistance against
projects like mining, hydropower plants, disposal of toxic waste, and improper water
management. An initiative of the European Commission-supported EJOLT project
(Environmental Justice Organizations, Liabilities and Trade), EJAtlas aims to “make
ecological conflicts more visible and highlight the structural impacts of economic activities on
the most vulnerable populations”. The mapping project began in 2012 and is a work in
progress.’14

Several cases of conflict in India have also arisen from mining and industrial
activities, extraction of mineral ores, and the improper disposal of waste materials, according
to the EJAtlas.

The infamous Bhopal Gas Tragedy, for instance, is counted among the world’s worst industrial
accidents. In December 1984, industrial negligence at Union Carbide India Limited’s Bhopal
plant led to the accidental release of 30 metric tons of toxic methyl isocyanate gas into the
atmosphere affecting hundreds of thousands of people in the city and surrounding areas.

Category 4
Category 3
Category 2
0 0.5 1 1.5 2 2.5 3

14
https://news.mongabay.com/2016/02/india-has-most-cases-of-social-and-environmental-conflict-according-
to-environmental-justice-atlas/

Das AK (2015) Environmental Justice Atlas (EJAtlas.org): India reaches the top while mapping the ecological
conflicts and environmental injustices. Current Science 109 (12) pp 2176-2177.
 CHAPTER 3

NATIONAL GREEN TRIBUNAL

The National Green Tribunal (NGT) was founded on 18th October 2010, as a dedicated
environmental court under the National Green Tribunal Act, 2010 and became fully operational
with effect from 4 July 2011 It is a statutory tribunal which was enacted by the parliament
especially for hearing the matters concerning to environmental issue.

Main reasons for creation of ECT worldwide includes complexities and technicalities involved
in handling the environmental and land use issues, pendency and high cost of litigation, delay
in justice, lack of public information and participation, among others. As a result of this dire
need for speedy justice, NGT was established.

In the words of Justice Brian Preston, Chief Judge of the Land and Environment Court of the
State of New South Wales, Australia the first EC established as a superior court of record in
the world: “The judiciary has a role to play in the interpretation, explanation and enforcement
of laws and regulations. … Increasingly, it is being recognized that a court with special
expertise in environmental matters is best placed to play this role in the achievement of
ecologically sustainable development.”

It was a result of the long procedure and the demand for such tribunal started long back in the
year 1984 after the Bhopal gas tragedy. Then the Supreme Court specifically mentioned the
need for such tribunals in the case where the gas leaked from Shri Ram food and fertilizers
limited in Delhi. The Supreme Court then in a number of cases highlighted the difficulty faced
by judges in adjudicating on complex environmental cases and laid emphasis on the need to set
up a specialized environmental court. It became functional only because of repeated directions
of the Supreme Court while hearing the Special Leave Petition titled the Union of India v.
Vimal Bhai.

The National Green Tribunal [NGT] is one element of a reformist approach to environmental
governance. The Tribunal aims to adjudicate environmental protection and forest conservation
cases in an effective and expeditious manner. This includes enforcement of any legal right
relating to the environment together with available relief and compensation for damages to
persons and property. The NGT started functioning from 4th July 2011. The Principal Bench
is based at New Delhi with circuit benches at Chennai, Bhopal, Pune and Kolkata so that it can
reach remoter parts of India. The principal bench and the regional benches are active. India has
joined a handful of forward looking countries including Australia and New Zealand to have a
dedicated green court. The creation of NGT is an important initiative.

NGT’s potential is being realised in terms of type and volume of cases coming before it. The
'multi-faceted and multi-skilled' NGT with a wide jurisdiction is gradually earning the
reputation of being a ‘fast-track court’. It aims to strike a right balance between environment
and development. The nature of cases which have come before the NGT include environmental
clearances for developmental projects including dams, steel plants, hydro- electric projects and
thermal power plants; coastal zone regulations; encroachments on the floodplains; issues
relating to pollution and imposition of environmental fines. The principles of inter-generational
equity, precautionary and polluter pays principle, public trust doctrine underpinning the
international environmental law have been foundational norms in deciding the matters before
the NGT.

3.1 NATIONAL GREEN TRIBUNAL ACT, 2010

3.2 THE ROLE OF NATIONAL GREEN TRIBUNAL IN ENVIRONMENTAL

JUSTICE

The NGT was constituted as a multidisciplinary body with the necessary expertise for the
effective and speedy disposal of cases relating to environmental protection, forest conservation
and enforcement of legal right relating to environmental protection.
1. Effective and expeditious disposal of cases related to environmental protection, and
conservation of the environment, including forests and natural resources.
2. Enforcement of environmental laws and regulations, and protection of the rights of citizens
to a safe and sound environment.

A. As a custodian of natural resources

In case of Shobha Phadanvis v. State of Maharashtra & ANR, the question raised
was about the conservation, preservation and protection of forests and the ecology
where the forests were destroyed immensely and without prior permission of the
 authorities. Tribunal has directed the forest authorities to continue the order of
precautionary principle and to prepare a Disaster Management Plan (DMP) for
protection of Forests. Tribunal observed that forests are a vital component to sustain
the life support system on the earth.
B. In daily life
NGT has not only decided matters of major industries but also of daily concerns which
are of much importance for a common man for instance in case of Dileep B. Nevatia
v. Union Of India & Ors the main question arose of violation of the Noise Pollution
(Regulation & Control) Rules, 2000 made under the provisions of the Environment
(Protection) Act, 1986 by vehicles using multi- tone horns and sirens. It was also
noticed in this case that no standard is also specified with regard to use of horns and
sirens in the ambulances and Police vehicles. In the said order the Ministry of Road
Transport & Highways was directed to notify the standards for sirens and multi-tone
horns used by different vehicles either under Government duty or otherwise.

3.2 REASONS FOR ESTABLISHING NGT

National Green Tribunal (NGT) is a tribunal, which was set up for dealing exclusively with
environmental cases. It was established by the National Green Tribunal Act 2010, and has been
functioning since 2010.

The reasons for setting it up were:

1.Huge burden of cases with the judiciary, and environmental cases receiving not so much
attention.
2. The need for specialized and flexible procedures for dealing with environmental cases.

3.3 NOTABLE ORDERS GIVEN BY NGT

 The Yamuna floodplain case

Recently, in March 2015, NGT imposed a fine of Rs 5 crore on Art of Living
Foundation because it has organized World Cultural Festival on Yamuna floodplain
and affected the environment.
  Yamuna Conservation Zone
On 25 April 2014, The NGT said that the health of Yamuna will be affected by the
proposed recreational facilities on the river. The NGT also recommended the
Government to declare a 52 km stretch of the Yamuna in Delhi and Uttar Pradesh as a
conservation zone.

 Coal Blocks in Chattisgarh Forest

The National Green Tribunal has cancelled the clearance given by the then Union
Environment and Forests Minister, Jairam Ramesh, to the Parsa East and Kante-Basan
captive coal blocks in the Hasdeo-Arand forests of Chhattisgarh, overruling the
statutory Forest Advisory Committee.

 Ban on decade old Diesel vehicles at Delhi-NCR

An attempt to minimize air pollution at the capital of India and NCR PM 2.5 particles
have reached alarming level. As per this order, 10 yrs., old vehicles are not allowed to
ply.

3.4 CRITICAL APPRAISAL OF THE WORK DONE BY THE NGT SO FAR:

1.The tribunal has served as an institution for the marginalized and deprived, where they have
been able to get justice for violation of their environmental rights.
2. Its stance against activities such as illegal sand mining.
3. Its efforts in curbing environmental pollution and climate change, highlighted through its
verdict of the banning of crop waste in the National Capital Region, and asking the government
to be more clear-cut, and expeditious in its actions to contain the problem of crop waste
burning.
4. Its verdict, banning the registration of diesel-run vehicles in NCT of Delhi, indicated its
concern for environmental pollution over the concern for ensuring ease of doing business, and
protecting the interests of private concerns.

However, its institutional integrity and autonomy is being believed to have eroded over the
years based on the following grounds:
1. In the recent Finance Act, 2017, provisions were incorporated to bring about a change in the
terms of conditions and service for the members of all the tribunals, including the NGT,
including the selection of its members in the future by a government committee, and not a
committee headed by a Supreme Court judge.
2. Sufficient provisions have not been provided in the parent act for the enforcement of its
orders.
3. Its verdicts pertaining to the pollution of the Ganga River as well the pollution of the Yamuna
floodplains were rendered ineffective through repeated violations. And in the second instance,
the tribunal could not even ensure the payment of the due compensation by the organizers of
the cultural event for polluting the Yamuna floodplain.

The National Green Tribunal has undoubtedly proved to be a remedy, and it has
achieved its objectives effectively. It is not bound by procedure and does not include any
structural formalities. There is no delay in the resolution of cases and it has fulfilled all the
objectives for which it was created. Environmental protection, being the most important
concern of the nation, the creation of the tribunal seems to be an appropriate step taken at an
appropriate time. Its constitution has not only led to fruitful results in the national context but
has also marked its image as a rising star on the international front.

This legislation has proved to be a great success due to its accuracy in provisions of its
dispute resolution mechanism, in providing adequate remedy and at the same time not taking
away the remedies of other courses of law. NGT has the power to hear the initial complaints
and also the appeals from lower courts.

CHAPTER 4

LEGISLATIVE REFORMS

Environmental Law is a body of law, which is a system of complex and interlocking statutes,
common law, treaties, conventions, regulations and policies which seek to protect the natural
environment which may be affected, impacted or endangered by human activities. Some
environmental laws regulate the quantity and nature of impacts of human activities: for
example, setting allowable levels of pollution or requiring permits for potentially harmful
activities. Other environmental laws are preventive in nature and seek to assess the possible
impacts before the human activities can occur. Environmental law as a distinct system arose in
the 1960s in the major industrial economies. It is fast becoming an important and specialized
branch of law. Many of its doctrines are gradually becoming clear. The questions addressed to
by environmental law are substantive in nature, whereas, the remedies of these issues are
mainly procedural. In recent years, environmental law has become seen as a critical means of
promoting sustainable development. Policy concepts such as the precautionary principle,
public participation, environmental justice, and the polluter pays principle have informed many
environmental law reforms in this respect. There has been considerable experimentation in the
search for more effective methods of environmental control beyond traditional "command and
control" style regulation. Eco-taxes, tradable emission allowances, voluntary standards such as
ISO 14000 and negotiated agreements are some of these innovations.

 Constitution of India
 Part IV- Article 37, 39(e), 48A, 49, 51(c)
Article 48A. Protection and improvement of environment and
safeguarding of forests and wild life The State shall endeavour to protect
and improve the environment and to safeguard the forests and wild life
of the country. The parliament had considerable debate over the wording
of the draft Article 48A. Several amendments were moved in both the
houses of the Parliament. H.M. Seervai has correctly pointed out:
Article 48-A reflects an increasing awareness of people all over the word
of the need to preserve the environment from pollution, especially in
urban areas. Smoke, industrial waste, deleterious exhaust fumes from
motor cars and other combustion engines are injurious to the health and
well-being of the people and foul the atmosphere. The preservation of
forests and their renewal by afforestation has long been recognised in
India as of great importance both with reference to rainfall and to
prevent erosion of the soil by depriving it of forests which protect it. The
preservation of wild life is looked upon as necessary for the
‘preservation of ecological balance’. Article 48-A rightly emphasis the
 fact that the State should try not only to protect but to improve the
environment.
Article 39(e), 47 and 48-A of the Directive Principles of State Policy
have a definite bearing of environmental problems. They, by themselves
and collectively impose a duty on the State to secure the health of the
people, improve public health and protect and improve the environment.
Environmental pollution may damage the monuments of national
importance, the protection of which is a duty of the State under Article
49 of the Constitution. Article 49 of the Directive Principles of State
Policy provides for the obligation of the State to protect monuments,
places and objects of national importance. In the Taj case the Supreme
Court of India seems to have got inspiration from Article 49 while
protecting the Taj Mahal, a monument protected under the Ancient
Monuments and Archaeological Sites and Remains Act, 1958, from
harmful Industrial emissions originating in and around Agra. Article
51(c) directs the State to foster respect for international law and treaty
obligations in the dealings of organised peoples with one another.
Therefore, in view of the range of international treaties law and treaty
obligations in Article 51 (c), read to conjunction with the specific treaty
provision, may also serve to strengthen the hands of pro-conservation
judge.
 Part IVA- Article 51A
Article 51A (g) . Fundamental duties
It shall be the duty of every citizen of India to protect and improve the
natural environment including forests, lakes, rivers and wild life, and to
have compassion for living creatures; Then Indian Constitution has
imposed a joint responsibility upon the State; and every citizen of India
to protect and improve the natural environment. In the words of
Ranganath Mishra, J.: “Preservation of environment and keeping the
ecological balance unaffected is a task which not only Government but
also very citizen must undertake. It is a social obligation and let is
remind every citizen that it is his fundamental duty as enshrined in
Article 51-A (g) of the Constitution”
 After making reference to Article 48-A and Article 51-A (g), the High
Court of Himachal Pradesh concluded-
Thus there is both a Constitutional pointer to the State and a
Constitutional duty of the citizens not only to protect but also to improve
the environment and to preserve and safeguard the forests, the flora and
fauna, the rivers and lakes and all the other water resources of the
country. The neglect or failure to abide by the pointer or to perform the
duty is nothing short of a betrayal of the fundamental law which the
State and, indeed, every Indian high or low, is bound to uphold and
maintain.
The Courts have reminded time and again to both State as well as
citizens about their duties towards environment while deciding
environmental issues by referring to Article 48-A and 51- A(g) of the
Constitution.
 Part III- Article 14, 21, 32, 19(1)(g)
Article 21. Protection of life and personal liberty No person shall be
deprived of his life or personal liberty except according to procedure
established by law.
Article 32. Remedies for enforcement of rights conferred by this Part
(1) the right to move the Supreme Court by appropriate proceedings for
the enforcement of the rights conferred by this Part is guaranteed. (2)
The Supreme Court shall have power to issue directions or orders or
writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate,
for the enforcement of any of the rights conferred by this Part. It was the
Maneka Gandhi case that heralded the new era of judicial thought. The
court started recognising several unarticulated liberties that were
implied by Article 21 and during this process the Supreme Court
interpreted, after some hesitation the right to life and personal liberty to
include the right to wholesome environment. The conflict between
development needs and environmental protection has been the most
controversial issue before the courts in decide in environmental matters.
Incidentally the Dehradun Quarries case that paved the way for right to
wholesome environment has also focused on this continuing conflict.
The judgments in Dehradun quarries cases were passed under Article 32
of the Constitution and involved closure of some of the quarries on the
ground that their operation was upsetting ecological balance of the area.
The indirect approval of the right to humane and healthy environment
by the Supreme Court continued further in the Oleum gas leak case.
Life cannot be possible without clean drinking water therefore; right to
clean water is one of the attributes of the right to life in Article 21 of the
Constitution. The industrial establishments in and around residential
colonies are another cause of concern, more so, when the industries have
mushroomed contrary to the development plans. In V. Lakshmipathy v.
State of Karnataka, the same issue came before the High Court of
Karnataka. The High Court held that once a development plan had
earmarked the area for residential purpose, the land was bound to be put
to such use only. Thus, High Courts, it seems, were more enthusiastic
and active in accepting and declaring that ‘right to life’ in Article 21
includes ‘right to environment’.
Article 14 of the Constitution guarantees to every person the right –not
to be denied equality before the law or the equal protection of the laws.
The possibility of infringement of this Article by a government decision
having impact on the environment cannot be ruled out. Article 14 strikes
at arbitrariness because an action that is arbitrary must necessarily
involve a negation of equality.”
Thus, permission for contractions that is contrary to town planning
regulation by the municipal authority may be challenged. Similarly,
Article 14 may be invoked to challenge governmental sanction of
projects having adverse impact on the natural environment and where
such sanctions involve arbitrary considerations.
Article 19(1) (g) of the Constitution guarantees to all citizens of India,
the right to practice any profession or to carry on any occupation or trade
or business. The freedom however, is not uncontrolled. The aggrieved
industrialist may resort to Article 19 in case his trade and business
interests are affected by the action of governmental agencies in the name
of the environmental protection. “As environmental regulation grows
more stringent and its enforcement becomes more vigorous, industrial
 challenge to agency action is likely to increase. Courts will then need to
balance environmental interests with the fundamental right it carry on
any occupation, trade the fundamental right to carry in any occupation,
trade or business guaranteed in Article 19(1) (g). Various standards have
been prescribed by the Government for the discharge of different
pollutants. An industry may challenge a very stringent standard which
cannot be complied with, despite best efforts by available technology or
if it is otherwise unreasonable.
 Article 243-B, 243-G
The Constitution (Seventy-third Amendment) Act 1992 and the
Constitution (Seventy –fourth Amendment) Act 1992 have given a
Constitutional status to the panchayats and the Municipalities
respectively. Article 243-B provides or the establishment of
intermediate and district levels. Article 243-G authorises the legislature
of State to endow the Panchayats with such powers and authority as may
be necessary to enable them to function as institution of self-
government. The Eleventh Schedule along with other matters contains
following maters which are directly or indirectly related to environment
like, agriculture, soil conservation, water management and watershed
development; fisheries; social forestry and farm forestry; minor forest
produce; drinking water; health and sanitation; and maintainace of
community assets.

The matters which are related to environment in the twelfth Schedule

may be enumerated as follows- Urban planning including town planning
regulation of land use water supply; public health, sanitation,
conservancy and solid waste management, urban forestry, protection of
the environment and promotion of ecological aspects;
provision of urban amenities such as park grounds ; cremation grounds
and electric crematoriums; prevention of cruelty to animals regulation
slaughter houses and tanneries. Thus it is evident that the Constitution
imposes the duty to protect and preserve the environment in all the there
tiers of the Government i.e. Central, state and local.
  Article 32 and 226
One of the most innovative parts of the Constitution is that the Writ
Jurisdiction is conferred on the Supreme Court under Article 32 and on
all the High Courts under Article 226. Under these provisions, the courts
have the power to issue any direction or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever is appropriate. This has paved way for one of
the most effective and dynamic mechanisms for the protection of
environment, that is, Public Interest Litigations.

 Law of Crimes and Environment

 Indian Penal Code, 1860-Section 277,278,425
Section 277. Fouling water of public spring or reservoir. Whoever
voluntarily corrupts or fouls the water of any public spring or reservoir,
so as to render it less fir for the purpose for which it 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.
Section 278. Making atmosphere noxious to health. Whoever
voluntarily vitiates the atmosphere in any place so as to make it noxious
to the health of persons in general dwelling or carrying on business in
the neighbourhood or passing along a public way, shall be punished with
fine which may extend to five hundred rupees.
The above two provisions have direct relevance to environmental
protection as they seek to prevent water and air pollution through a penal
strategy. However, their effective application towards achieving this
objective is doubtful, because the technicalities of Indian criminal law
require a complete satisfaction of the ingredients of the offence as
stipulates in the penal provisions. Take for instance, the provision
relating to fouling of water. The wording requires proof of the voluntary
 corruption or fouling of water, that the water must be of public spring or
a reservoir and that the water must have been rendered less fit for the
purpose for which it was ordinarily used. Such wording not only creates
a burden for the prosecution to prove, but also provide the accused
enough grounds to argue his way out. The above provisions did not
liberate the criminal justice process from the difficulties of the common
law demanding elaborate evidence for sundry matters as well as
technical interpretations of obvious things and events.
Section 425. Whoever with intent to cause, or knowing that he is likely
to cause, wrongful loss or damage to the public or to any person, causes
the destruction of any property, or any such change in any property or
in the situation thereof as destroys or demises its value or utility or
affects injuriously, commits “mischief”
Explanation 1: it is not essential to the offence of mischief that the
offender intended to cause loss or damage to the owner of the property
injured or destroyed. It is sufficient is he intends to cause damage to any
person by injuring any property, whether it belongs to that person or not.
Explanation 2: Mischief may be committed by an act affecting property
belonging to the person who commits the act or to that person and others
jointly causing diminution of water supply has been treated as mischief
in section 430 of the code and the possible direct cause may also be
pollution. Adulterating of food or drink so as to make it noxious has also
been make punishable.
 The Indian Criminal Procedure Code of 1973 (CrPC) – Section 133
The processes that are envisaged under Section 133 of the CrPC have a
social justice component. The remedies available, and the powers
exercisable, under the provison are conducive to the demands of the rule
of law necessitated by the conditions of developing countries. The
Supreme Court had no hesitation in the endorsing the view that the
municipality should prepare a scheme and abate the nuisance which was
allowed to continue only due to the lack do initiative from the
municipality.
 Law of Torts and Environment
 The Environment (Protection) Act 1986
Litigation related to environmental contamination and toxins has grown
at a rapid pace, as businesses come under greater scrutiny for their
environmental practices and face potentially costly claims.
Industrialization has posed serious concern for the protection of
environment. If we follow the development around the world in last two
decades or so, it is clear that both judicial and legislative processes have
applied the yardstick of ‘Strict or Absolute Liability’ to judge the
conduct of the polluters. A toxic tort is a special type of personal injury
lawsuit in which the plaintiff claims that exposure to a chemical caused
the plaintiff's toxic injury or disease.

 The Factories (Amendment) Act 1987

Strict liability for ultra-hazardous activities might also be considered a
general principle of law as it is found in the national law of many states
in relation to ultra- hazardous activities. Under the English law,’ a
person who for his own purposes brings on his own land and collects
and keeps there anything likely to do mischief if it escapes, must keep it
in at his peril, and, if he does not do so, is prima facie answerable for all
the damage which is the natural consequence of its escape’ as laid down
by the landmark judgment of Ryland v. Fletcher. Absolute liability for
the harm caused by industry engaged in hazardous and inherently
dangerous activities is a newly formulated doctrine free from the
exceptions to the strict liability rule in England. The Indian rule was
evolved in MC Mehta v. Union of India, which was popularly known as
the Oleum gas leak case. It was public interest litigation under Article
32 of the Indian constitution.
In the judgment, on the substantive law it was emphasized that the
principle of absolute liability should be followed to compensate victims
of hazardous and inherently dangerous activity’. Industries engaged in
such activities are absolutely liable to compensate those who are
affected by the harm arising from such activities.
 The Public Liability Insurance Act, 1991 (PLIA)
Legislation in the late 80’s and the 90’s reflect the law’s growing
recognition of the capacity of ‘hazardous substances’ to cause damage
to person, property and the environment. The Bhopal Gas Disaster and
the judgement of the court in the Oleum Gas Leak case were the prelude
to the Environment (Protection) Act 1986, the Factories (Amendment)
Act 1987 and the Public Liability Insurance Act, 1991 (PLIA). The UN
Conference on Environment and Development held at Rio de Janeiro in
1992 provided further spurt, as did environmental activism and
environmental litigation. The National Environmental Tribunal Act,
1995 (NETA) is the most recent in the field of ‘accident’ law. The long
title to the Act suggests that it is enacted to provide for strict liability for
damages arising out of any accident occurring while handling any
hazardous substance and for establishing a National Environmental
Tribunal. The NETA and PLIA are both concerned with the aftermath
of the same occurrences. While the PLIA deals with interim
compensation, the NETA established a tribunal, and provides
guidelines, to adjudicate all claims arising out of “accidents”. There are
points of convergence as well as difference, between the two Acts. The
principles of liability and of compensation according to an enacted
schedule are common to the PLIA and the NETA. Both legislations
provide for no fault liability, making the “owner” liable for paying
compensation assessed under the Acts. Both legislations exclude
“workman” who is covered by the Workmen’s Compensation Act.
However, while PLIA resorts to the device if insurance to spread risk
and cost and requires the owner to go deep only where it goes beyond
the limits set in the PLIA rules and the capacity of the Environment
Relief Fund (ERF), the NETA appears to leave it to the owner to find
the resources to pay compensation. There is a penal provision in the
NETA which provides for a term of imprisonment up to three years , or
fine which may extend to Rs. 10 Lakhs or both, where any person “fails
to comply with an order made by the Tribunal”. Confronted with the
possibility of mass torts resulting in injury, and loss to a number of
victims, the more visible efforts of the state are in the direction of
 expediting the computing and payment of compensation. There is a
consequent delinking of these issues from questions of culpability,
answerability and of safety. The schedule to the Act lists out the heads
under which compensation may be claimed. It includes harm caused to
the person, damage, loss or destruction of private property, expenses
incurred by the government in the aftermath of an accident claims
connected with harm, damage or destruction of fauna, flora and the soil,
air, water, land and ecosystems; loss of business or employment and a
residual head to cover “any other claim arising out of, or connected with,
any activity of handling of hazardous substance”. It is significant that
there is no priority of claims. The crediting of the amount ordered to be
paid on the ground of damage to the environment into the ERF merits
scrutiny, particularly since the amounts in the ERF are intended to be
used as a buffer between the exhaustion of insurance payments and the
liability of the owner to cover the difference under the PLIA. The
unresolved questions of liability of the state as a joint tortfeasor, and of
compensation resurfaced in Naresh Dutt Tyagi v. State of U.P. In this
case, the Primary Cooperative Society, Garh Mukteshwar, District
Ghaziabad, said to be a federating unit of the U.P. Cooperative Union
Ltd. stored certain chemical pesticides in a godown. Fumes emanating
from the pesticides leaked to the contiguous property through the
ventilators killing three children and causing the petitioner’s wife to
miscarry. Proceedings to establish fault were on when the Supreme
Court was approached to rule on “whether such large scale stocks of
hazardous chemicals are permissible to be stored in a residential block,
whether the storage is regulated by statutory provisions, if not , whether
any breach of common law duty has occurred and whether the
governmental authorities are liable in damages.
 Civil Procedure Code, 1908
Under the Civil Procedure Code of 1908, civil suits against the
perpetrators of public nuisance were allowed. By the amendment of the
Civil Procedure Code in 1976, the procedure was made easier for the
general public to seek recourse in the civil courts. Section 91 of the Code
now reads as follows:
Public Nuisances and other wrongful acts affecting the public:-
(1) In the case of a public nuisance or other wrongful act affecting, or
likely to affect, the public, a suit for a declaration and injunction on for
such other relief as may be appropriate in the circumstances of the case,
may be instituted,-
(a) By the Advocate-General, or
(b) With the leave of the court, by two or more persons, even though no
special damage has been caused to such persons by reason of such public
nuisance or other wrongful act.
(2) Nothing in this section shall be deemed to limit or otherwise affect
any right of suit which may exist independently of its provision.
Prior to the amendment in 1976 such suits were allowed only with the
sanction of the Advocate General. Thus a modification was brought
about to the standing requirement which had been an obstacle in civil
actions against environmental degradation. This is an important instance
of early relaxation of procedural rules in the wider context of developing
Indian public interest litigation. Order 1 Rule 8 under the Civil
Procedure Code of 1908, as amended in 1976 complements the above
section and is significant for environmental litigation in India. This rule
permits one person to sue or defend on behalf of all having the same
interest in what are known as representative suits over a single cause of
action. Where the interest of the community at large is affected, the court
has the power to direct one person or few to represent the whole
community so that members of a class should have a common interest
in a common subject matter and a common grievance and the relief
sought should be beneficial to all. This rule is an enabling provision and
does not prevent an individual from pursuing the same matter on his own
right to seek relief. An important feature of the civil litigation strategy
adopted in India is the resort to injunctive relief rather than damages.
Although in theory damages form an important principle in a tort action,
in practice injunctive relief is used more in India for abating pollution.
Lawyers in India, intent on abating pollution, often seek a temporary
injunction against the polluter followed by a perpetual injunction on
decree.
 The Environment (Protection) Act, 1986 (EPA)
 Introduction
The Environment (Protection) Act (Annexure 1) was enacted in the year
1986. It was enacted with the main objective to provide the protection
and improvement of environment and for matters connected therewith.
The Act is one of the most comprehensive legislations with pretext to
protection and improvement of environment. The Constitution of India
also provides for the protection of the environment. Article 48 A of the
Constitution specifies that the State shall endeavor to protect and
improve the environment and to safeguard the forests and wildlife of the
country. Article 51 A further provides that every citizen shall protect the
environment.
 Premises of the Act
It is now generally accepted that environment is threatened by a wide
variety of human activities ranging from the instinctive drive to
reproduce its kind to the restless urge of improving the standards of
living, development of technological solutions to this end, the vast
amount of waste, both natural and chemical, that these advances
produce. Paradoxically, this urge to grow and develop, which was
initially uncontrolled is now widely perceived to be threatening as it
results in the depletion of both living and non-living natural resources
and life support systems. The air, water, land, living creatures as well as
the environment in general is becoming polluted at an alarming rate that
needs to be controlled and curbed as soon as possible.
The 1986 Act was enacted in this spirit. From time to time various
legislations have been enacted in India for this purpose. However, all
legislations prior to the 1986 Act have been specific relating to precise
aspects of environmental pollution. However, the 1986 Act was a
general legislation enacted under Article 253 (Legislation for giving
effect to international agreements. Notwithstanding anything in the
foregoing provisions of this Chapter, Parliament has power to make any
law for the whole or any part of the territory of India for implementing
any treaty, agreement or convention with any other country or countries
 or any decision made at any international conference, association or
other body) of the Constitution, pursuant to the international obligations
of India. India was a signatory to the Stockholm Conference of 1972
where the world community had resolved to protect and enhance the
environment.
The United Nations conference on human environment, held in
Stockholm in June 1972, proclaimed that “Man is both creator and
molder of his environment, which gives him physical sustenance and
affords him the opportunity for intellectual, moral, social and spiritual
growth. In the long and tortuous evolution of the human race on this
planet a stage has reached when through the rapid acceleration of science
and technology man has acquired the power to transform his
environment in countless ways and on unprecedented scale. Both
aspects of man's environment, the natural and man made are essential to
his well being and to the enjoyment of basic human rights even the right
to life itself”. While several legislations such as The Water (Prevention
and Control of Pollution) Act, 1974 and The Air (Prevention and Control
of Pollution) Act, 1981 were enacted after the Conference, the need for
a general legislation had become increasingly evident. The EPA was
enacted so as to overcome this deficiency.
 Objectives
As mentioned earlier, the main objective of the Act was to provide the
protection and improvement of environment and for matters connected
therewith. Other objectives of implementation of the EPA are:
• To implement the decisions made at the UN Conference on Human
Environment held at Stockholm in June, 1972.
• To enact a general law on the areas of environmental protection which
were left uncovered by existing laws. The existing laws were more
specific in nature and concentrated on a more specific type of pollution
and specific categories of hazardous substances rather than on general
problems that chiefly caused major environmental hazards.
• To co-ordinate activities of the various regulatory agencies under the
existing laws.
 • To provide for the creation of an authority or authorities for
environmental protection.
• To provide a deterrent punishment to those who endanger human
environment, safety and health.

CHAPTER 6
RESEARCH ANALYSIS
6.1 CONCLUSIONS