COMPARATIVE LAW

JURISPRUDENCE AND
INTRODUCTION
purcly
264 practical but the aim of ordinary law is to understand the basis of the 265
legal systen. At best, we can conclude Comparative law as a branch Hindu. Grock, nan Keltic). The ultimate aim, in
nonogeneticsis the tracing of the
of theevolution comparative
independently in its own way. That of specific
is
as such, rules and institutions.
juris1rudence.the Teason
goes auxiliary study
jurisprudence which is not included in the siudy of
Comparative law
Tuattain this
necded. For example, a biologist systems taking each as a whole
why Comparative Lay might make a
Scope of is AAfrican, a Chinese, a Russian, and an comparative study of the
The Nature and liver of an Italian; but he
comparative law is usually recognized as reach safe conclusions on the liver as could not
of Comparative Law heldhaving expect to a human organ
'Modern'
International Congress in begun in alreadystudied the complete body in the of each ofunless
he had
1900 at the attempts were made Paris, otherenvironment these races,
formulatewherethe
organized to as a composite entity of several
the first serious andComparative law.
environment.
organs in a special origin and
functions and aims of
the Congress, Lambert and Saleilles, obwoe branches may
The two founders of use, to sSome extent, the same
law.talked of a materials
law created by comparative
mankind, a world Lambert However, the first branch (i.e., Comparative Nomoscopy)
common law
CxpreSsed his visiOn
thus:
the materials for
all the three. But the three represent can furnish most of
different processes of
"..Conparative law must resolve the accidental and thought, and are scientifically distinct. !
dilfercnces in the laws of
people at similar stage of
cconomic development, and rcduce the number of
cultural and divisive The Contemporary Significance of Comparative Lawy
attributable not to the political, moral or s0cial qualities of the divergencies in law, Comparative Law has got different functions. Important among them
nations but to
historical accident or to tomporary or
2
contingent different are the following
(a) Comparative law as an academic discipline:
circumstances.
but lo0se term "Comneros:. (b) Comparative law as an aid to legislation and law
According to Wigmore the convenlent distinct Wharati. (e) Comparative law as a tool of construction;
reform:
bas served to cover three fields scientifically
Law"
the law (that 1s emphatically the only actul (d) Comparative law as a means of
vOs beyond the sphere ofand observe the systems of lawsthem outside. nroCrmt (e) Comparative
understanding legal rules;
law as a contribution tr the
ie. national law), systematic unification
Fo u
m0des of activity for our thought of and harmonization of law.?
past, we find thre and describe the othcr systems. as
Pirst. we may seek to ascertain denote the science of law in general Comparative Law as an Academic Discipline
Nomology to
fncts. If we take the term the description of the facts of any system of law: Comparative method encourages a
and Nomoscopy to denote Nomoscopy. multi-pronged analysis and methodologicalcritical approach through
techniques it helps one
its
branch Comparative merits of understund, the operations of legal rules and also as a forum for the to
then we can call this analyze the policies and relative cross-fertilization of experience, ideas, cultures and experience.
Socondly, we may seek to (e.g., the French and
the English

difforent legal
institutions procedural rules) with a view to Comparative Law as a Tool of Construction
American and the Comparative Nomothetics; this
inheritance-rules, or the The comparative method fills the gaps in
us call this branch also
provides the background and origin of legal legislation or precedents. It
moulding legislation; let systems in lnherited or rules, which have been
activity. evolution of the variouscan call ts transplanted to a legal system.
is the main trace the We
seek to
Thirdly, we may another in chronology and causes.
was the first moae
to one Nomogenetics. Sir Henry Maine general. POS,
Comparative Law as a Means of Understanding Legal Rules
their relation Law in field. Dareste
Comparative law has more relevance in the present world due to the
increased
branch
Comparative cultivate
Comarative of the almostal growing commercial interaction at the international level. The ever
undertake to it, in other
parts Were systenms influenceContracts
of
American corporations in foreign countries, drafting of
scholar to
came a little later, also advanced
others, enriched it.' Maine's works
scope of four or
five
tirnansnnt ional
ternational credit arrangements and
setting up of transnational law firms legal
have facilitated this international
and
Revillout, Kohler and
though in the
nomogenetic,
limited d
internatiunal convergence
Courts, the on a macro level, Sinmilarly for applying foreign law in national
genuinely (197
(1999), p. 15.documents: CongressLaw,
Vhd
Comparative method is as essential a requircment.
Comparative Lauw, et Comparative
Cruz, siances VolI l
1. Peter De process-verbaux des Introduction to (18928) 1.
2.Lambert (1905)
(/oit comparo:
Kotz, An
Zweigert and
World's Legal
Systems,
i8called
t
"Problems 1920).
Scribner,
of Law, ita
John
past, Present and Future"
Henry Wigmore, A Panorama
(Univorsity of Lectures, Now York.
of the World's Legal Systems
2. (1928),
hae

II, p. 2. of the ofwhat

but Vol. III. p.
I and Wigmore, A
Panorama
the field
institutions, Poter De Cruz., 112l. Law, (1999), p. 18.
John Henry
3. 1120 & 1121.
chiefly in
have keptother 8ystems
or
comparatively.
Conypartive
nodern workors,
the des cribed genetics,
4. Most of Le. they have ntion, or
 JURISPRUDENCE AND COMPARATIVE LAW
Types of Comnparison
According to Hug following are the
(a) Comparison of foreign major types of
(b)
to ascertain systems with the
similarities and differences:
Studies which analyse
which various systems objectively and
comparisystemson:in
dor.estic
order
(c) offer for a
Studies which investigate the causal
different systems of law: systemnatproblem:
given legal ically solutions
(d)
(e)
Studies which compare the
systems; and
Studies which attempt
several
stagesrelationship between
of
generally
rccording to
to
discover
periods and
or
examine legal
various legal
Methods of Comparison systems,!
The study of
general processes comparison
of is knoWn as
eyvolution
1. comparison. meth odology.
laws on Geographical There are three
geographical Comparison,--It
basis.
systen of one country with It is the is the
comparison method of
those of another. lawsCompari
of theson of
2, of the
Material
particular
3.
legal ComparisonIn
topics
Methodological1
of one legal this method the
system with that of con.parative study
legal
of
comparative
derived from methods
all Comparison,-In
of
study are this another made.
method, the
is
methodsanalysed
the
and legal principles. above and observed and results of
to decide the defects in conclusion is
For the different laws
reports, bookspurpose
etc. , are
of the above
three mnethods of study sources like law
collected. In America necessary. In England,
are available on a also legislations, text legal volumes and reports are
account of the work donelarge scale. bOoks, and legal
Works are not in
other Encyclopaedia also gives commentanes
other countries satisfying they cancountries. jurists comprehens1ve
get the When the of find that these
materials
translated with the help of literary law available rou
An persons.
Cruz eight-point method of comparison
Step one-identify the provided in Peve
Step problem and state it precisely.
the
two-assuming that
jurisdiction being compared, identify the foreignjurisdiction
the home' jurisdiction1Sand if possible.
One of the

parent legal family to which it belongs following the usual criteria.

-SOurces, mode of legal thought,
Step three--decide
Or, which ideology'SOurces
which primary etc. of law are going to be needed
Step
materials are available. ncud'

primary andfour-gather
secondary
and assemble the
sources of relevant
material and
reflectins
Step law.
the legal five-organize the material in accordance with investigated.
headings
philosophy and ideology of the legal System being
1. Ibid. , p. 7.
 INTRODUCTION

out the posHible an8Wers t) the prhlem

siX--tentatively mapbearingin mind possihl: cultural differenss
comparative approach
Step
s0C10-conomicfactors,
through
religion, custom% ete.
seven--critically analyse the legal principle# ín tor8 f thcir
or
Step
intrinsicmeaning.
eight-set out your
conclusions within a cormparative framework
Step necessary, and with
commentary, whrever relevant,
critical
caveats. if
with the original purpose of your ernquiry.
relateit to
Neglecting Comparative Law
and
Reasons for importance and wa# neglocted in the
Comnarative law was not given
the following reasons : country may
past,due comparison of rules and prínciples of aComparatíve
1 Materials for of the
not beavailable and it makes the work
lawyer very difficult.
Hpecial
comparative methodology is a difficult task and needs
2. The
aptitude and qualification.
comparison are but a few.
3. Experts in the field of system and another differs frorn
of comparing one
4. The method fixed standard of comparison.
country to country and there is no into account the difference
cannot take
5. AComparative scholar practice. So, conclugion based on
between the law in theory and
such study will not be accurate. to the
"Translation of foreign law into the language known comparison
6. difficult, and hence
Comparative lawyer is very
becomes difficult. is
olitical background of each countrySo,
7. The economic, social and influences.
of all such
different and the law is the outcome without
objective comparison of the legal principles
culture of each
mere difference in
taking into considerationthe
Country is improper.
Origin and Development of Comparative Law
the origin of other lawB.
The origin
of Comparative law is different from
legal principles
reform the
C'mparative
ond unify thelaw
law isbyof bringing Its aim
the various
recent origin. is to closeto cach other.
nationg
of Comparative
law.
RxnanRomans the gtudy their
Were the first to establish natural law inperiod,
Tr ibunals
adninistration justice
he ComDarative of lawapplied
developed
Concept
theduring the
variety
over a of
of the
people) After
Justinian the Roman
period. In this period,
laws of the
other
another.
Sats had of people from one State to there was no methodlaw.
to be reduced to writing. Thoughthe ficld of Comparativewere
ot

'nparaive Study, there was 80me research in and German law8 laws
iparDured ingandthe 16th Century, Koman laws Roman
Improvementsin was made
law common
many books were published. England, Roman
Studying German laws.) ln started
influencing
and thug Roman law
Pp. 235-238.
 INTRODUCTION
JURISPRUDENCE AND COMPARATIVE LAw 23
268
Comparative Law
law. So. comparison of English
Common law and Rorman law wo Types of :
published. here are three types of Comparative Jaw
books on this were
By comparative
study of laws of other States, the Greek Pure or Abstract Comparative law.-The basic concents t
introduced new changes in their lawWs. In the 17th century, Rac States also are alnost the same in all Jegal systems, but they differ in emphasis and
that comparative study of the
laws of other countries shall suggested
improve application. The study of the basic concepts, variations,
resemblance,
during this period thet lawa law etc. .
of one's country. Mr. Seldom, a famous pleader forms the study of Pure Comparative
of comparative method of legal studies in his Descriptive Comparative law.--lt deals with translation of lerrt
the importance writings.
The
others who contributed to the development of Comparative law were Grotius, work of other
countries into the English
language. For
Vicku and Montesquieu. worhntive Jaw, legal materials in the same language aretlhenecessary.
system of
A
Montesquieu studied lcws of different countries and
dernonstrated the ist cannot spend his time 1n searching for books, and so band bobe
advantages of Comparative law. He is regarded as the Father or Founder nrvelopacdias, bibliographies and other literatures form the st1udy
Comparative law. deseriptive Comparative law.
In the 19th century, Comparative law gained popularity and 4 Anplied Comparative law.-This is the
most important division
significance. In 1846, a University was established at Paris for the of comparative law. This has a specific and
Comparative law. lorialation of different countrics to produce a practical object. It gives the
In England, Comparative law was introduced by Sir Henry Maine u annlicable to all the countrics. It is the study single uniform system egually
of codificatinn, unification and
published the book Ancient law, in 1861. He compared the Roman law k harmonisation of ccnflicting laws. The study is now
European law and the present law and in some other countries traced th people closer and nearer. expanding to ring the
development of law. Study of Comparison of Laws
In 1869, Comparative jurisprudence was established in Oxford
1,
University with Henry Maine as the Head. In 1884, the University College International LaW.-The Private International law
in London established Comparative law study. In 1895, English ociety df international principles conflicting with the principles of other contains
Cxample, slavery is countrics. For
comparative legislation was established. In the 20th century, the
American Foreign country. So Public prohibited in one country but it is cncouraged in another
International law was evolved by the comparative study
comparative law study developed rapidly in America. Theseparate section in different Private International
1932, a
law As80ciation was established in 1925. In Wigmore, laws. League of of
Comparative law was organised by Dr.
the Advocate f establishedof to apply and develop Internati onal law.Nations and U.N.O. were
outcome the study of International law is the
Comparative law. 2. Comparative law.
In England, the necessity of comparative
study of law was realized is
country. In 1945, Cambridg? law. For Personal Laws,-Unification
instance India, the laws of of law is als0 a study of
in
order to improve the defects of law in their own
University College Tgon and there was no Hindus were Cornparativeto
University started a Department of Comparative
law. At
w# Copiete study of codification uniformity. By the study different from
of Comparativeregon
of Comparative and Historical Law
London, the Quain professorship Legal 3. Mercantile Laws.-Internationalof Hindu and Moham1medan laws was law, a
established. Institute of Advanced Studics has been founded at Londt made.
of Comparative law. Dr. Wore} rapidly and no
University in order to encourage the study commerce shouldcountry can live isolated andCommerce is growing verv
Manchester University. be independently. International
guided research in Comparative
Thus the development of
law at
Comparative law is the successful evolution u
dipromi
fferentssory uniformly
note, etc., nmust be maintained. For example, bill of exchange.
uniform.
convenience a8 also by way of codificationon a global scale. same in the merchants were unified to form the different
The custom and usages of
Mercantile law, which is almost
and itsnc
Courts were international
established level.
International
to apply the same law toTribunals and Commercial
Development in India of 4.
inatednAdmi ionistrative Law.Administrative
has been formed all merchants.

origad1ni istratFrance.
Indian Committee of Comparative law University ese
at Madras and
in of a law mainly deals with rules
meeting was held on 25th September 1953the subjects of studysubjcts The COuntry by the executive. The administrative law
of CXistingof Now
legal education Comparative law is one
some Universities have introduced Comparative
law as one
of the
utcome
law Administrative
AdminiAdministrative
strative law is sprcad all over the world.
law in England, America and India are all the
master of law course curriculum.
wide scope
in
India
sesere French law, through the study of Comparative
AdvantagespracticalstudyComparative
a in
Development of Comparative law has student of research of
Comparative law would prove helpful for a 1.
areas of law. The of Law
Comparative law is very advantangeous
problems and maintain unity and harmony in the
to solve the
Society. Uniform standards can be achieved in certain matters.
 COMPARATIVE LAW
INTRODUCTION
JURISPRUDENCE AND 271
with increasing
international
By observation of different laws, the same law can be introduced
times, debates as to the nature of dealings and
commerce. There are
say that it Comparative
270
law. Some
method or form ofjurists
various is a
2. in other countries.
in legislation and science and others opine that
jurisprudence helps school of legal technigue.
3.
Comparative
of laws. It
also helps in Lunderstanding of our own improvement
laws in a
itis
There js yet
independent
another thought that
branch of law like other Comparative
branches of Positive law is an
law. Prof. Lambert
acvocates this theory says that the
4.
better manner.
Comparison of laws provides information and knowledge. It helps who Comparative
is scientific and the other practical. Thus,
law has two
to Jocate the
defects and remove
them.
Comparative law is not a science and its majn
the
conclusive viewaims-one
is that
prOcess of codification, the Comparative law plays a very various legal systems. objective is only to
compare
5. In the role. By way of codification of different
important
laws, uniformitý and
certainty are brought about
differen egal systems is another cnt
conflicting
6 The integration of
law. It finds the best law to be toapplicable
of Comparative
humanity. betweer
interest
7 Comparative lawW promotes thought and
nations.
lawyers of different international level es
Understanding and agreement at improve a
countries shall
brought about. Relations between be applied in another cont
one country can be made to
from the Jegal
be improved by comparing
g Education in law willcountries.
different Research lawyers with a wide
Systems in
the different legal systems on
flexible approach can compare
subject matter.
geographical basis and
silernt on any point, the
law is ambiguous or
10. When Indian
ofComparative law is useful.
assistance a foreign country and in
engaging a lawyer both in Comparative law.
11. A foreigner be benefited by knowledge of foreign Law is to be
India may International Law when .question
12. During
conflicts of useful. Any new can be
Comparative law proves other country
some
applied, already solved in
arising which is together
followed by the court. bring the nations
comparative law is to
aim of
Thus the main uniform system of law.
ruled by a
and to be Comparative law a
Suggestions for Improvemnent study of
materials for the
literary other countr lav.
I. The
insufficient. and Fngland,of
Comparative
growth
America development hinders the
countries like the
2. Except in
much interest different languages interpretation be
must
not take laws in methods of translators
existence of legal
The Comparative law. The
3. of S

defined and many law. very

eew
be
translation musteffective translation of law are
of literature
Advocatesaad

for good Comparative

trained in volumes
literary works
te increase
the encouraging law. ree
Comparative i n
4. The
improvements made by en Jrominence
must be in
Comparative law researches
gaining
and do
jurists to study subject which is
Comparative law is a
 CHAPTER 11

COMPARATIVE STUDIES OF
ENVIRCNMENTAL PROTECTION
The right to healthy
generation' human right er.vironment has
in recent years. "The been considered as a third
which means 'surround'.
The word
word environ is a French term
surroundings. In its widest sense environment environment therefore means
various physical and biological elements that means combination of the
affect the life of organisms!
Environment is a God's gift.
Water, air,
things for living beings. However this soil etc. are the most important
affected by the contamination and nornal environment is adversely
invention of latest excess use of natural
resources. The
technology has caused the establishment of
industrialization
way for
and urbanization. The
modern techniques, thus paved the
environmental pollution.
The most dangerous factors to the environment are
explosion, automobile and industries. population
50% of the environment pollution
said to be caused by the is
global warming. automobiles. Air pollution causes 0zone
depletion,
Urban human sewage also produces pollution.
pollution is also one of the najor problems to the environmnent.
Noise
The United Nations is very much
cautious about the nuclear plant,
nuclear test and nuclear weapons. The first and second world wars have
caused dangerous effect on Hiroshima and Nagasaki.
technology is achieved by several countries. If the third Now the nuclear
world war occurs,
this earth will disappear by using nuclear weapons. The Atomic
Energy Ael.
1962 was enacted by the Indian Parliament. The object 1s to regulate the
nuclear energy and radioactive substances in India.
Environmental Protection in India and
In India, as elsewhere in the world, uncontrolled growth
consequential environmental problems are fast assuming. Today mos dayby hy
rivers are polluted. Deforestation of most of our forests is increasing solid
day. Leakage of poisonous gases and other harmful gases, liquids andof the
wastes from all industries has almost become a regular phenomenon is at
big cities
in
present day. The problem of noise pollution, particularly emergedin
and

alarming stage. The problem of water pollution has recently drains

graver form. Industrial wastes discharged in the rivers, streams, Heavy
polluted.
the water resources have made 80% of the available water environment.
exist
Act, 1986 defines which
1. Section 2 (a) of the Environment (Protection) inter-relationship creature.
Environment includes water, air and land and the other
living
among and between water, air and land. and human beings
plants, micro-organism and property.
( 340 )
 cOMPARATIVE STUDIES OF ENVIRONMENTAL PROTECTION 341

industrial sewage is expelled from various industries such as jute mills,

distilleries, textile mills etc. According to Central Pollution Control
large
Board, industrial effluents, waste etc. discharged into water is the biggest
India.
source of water pollution in
The concern for environment protection in India can be traced back
P a00 B.C. The ancient Indian law on environmental protection is found
Kautilva's Arthasasthra. It was the Dharma' of each individual in the
ociety to protect the nature. The people worshiped the object of nature. The
raes. water, land and animals gained important position in the ancient
davs. The cultural and religious heritage of India shows a deep concern for
the protection and preservation of the environment. The ancient heritage of
India provided that nobody shall destroy vegetation and no one shall kill
animal. Certain trees, animals and rivers are considered to be sacred and
they are worshiped. Hinduism considered the nature as the body of the God.
Thus the nature has been directly inter-connected with the religion and
religion had a direct role in the conservation and protection of environment.
It is the Dharma' of every individual, according to ancient Indian heritage,
to protect and preserve the environment.
During the 19th century attempts were made to regulate water
pollution, wildlife and land use by enacting laws by the British Government.
The Forests Act, 1865, Indian Fisheries Act, 1895, Bombay Smoke Nuisance
Act, 1912 etc. were enacted for protection of environment. In the Indian
Penal Code, 1860, ard in the Cr.P.C., 1973 there are provisions for
environmenta! protection.
After independence India stood up to achieve the economic development
In order to become self dependent. Industrialization became the main source
gaining the goalof economic development. The industrialization has thus
Started growing rapidly and has affected the natural environment adversely.
After independence, Factories Act, 1948 was passed. The purpose of the
Ct 1s to provide for the safety of workers, discharge of pollutants and
CCupational health of workers. Industries (Development &Regulation) Act,
01 was passed aiming to control industries from the environmental point
iew. The Mines Act, 1952 dealt with safety of mining activities and the
altn and well being of the workers in mines. The Insecticides Act, 1968
"as passed to regulate the manufacture. sale, transport and the use of
insecticides in agriculture, which causes a formidable threat to the
environment . Section 91 of the C.P.C., 1908 also contains the provisions
regarding the abatement of air and water pollution which becomes nuisance
public.
During the Vth Five Year Plan (1974-79) and subsequentlyin the VIth
Five Year Plan
nCreteof action (1980-1985)
concern about the environment has turned into
and several.programmes for improving the environmental
qpaneliplan.
ty Itlife. Achapter on "environment and development" was included in
emphasizes the importance of sound environment and ecological
piniples in the use of land for agriculture, forestry, water, air, marine
eheaitaienGuneralroThenmbeecause
entglobal , humaninterest
settlement etc.
and concern about environmental pollution has
of the first conference of human environment convened by
Assembly of UN at Stockholm in 1973. India is a signatory to
 industrialization adoptionWas scientific among
them.
sea(Protection) (Prevention
(Protection) 342
exploring, enactnments
1974, After the
environment
1. ad and Declaration.
aspects. authority
control Government
Central forsays The The the having
environmental environmental
g1ve pollution.
pollution. substances. accident
action. pollutants, hoc, the
environmental pollution. environmental
pollution. Environment of
standards
provision anysuch officers
to person
environment
shall
of
10Tof
designation
Act7Section 6. 5. 4. 3. 2. 1.matters that exploiting, Law
studies for
the direction
11. 9. 8. 7. Itar.d
Government
It It sporadicearlyprotection National
Act., Act, and by
years 5 implementation as 14. 13. 12. 10.
lt It It It It
under the of signed
other It which. shall shall shall shall controlling
purpose it 4 It It It It It shall shallshall abatement connected to Act on the 1972, 1986,' framing Therefore
laid as empowers
may wi
such
th shall shall shall hall hall legislation Control
or shall shall talke the were
process to examine
prescribe
mayrestrict plan this
prescribe coordinate (Protection) is and Sea, JURISPRUDENCE
fineunder may carry prescribe prescribe conserving Environment the the
deem establish
collect such may to and the
inspect measures
Act. various
upto be
shall
this
andAct deal
provide cause provide
ofand therewith. limited 1982 environmental long a it
fit. th e officers out areas
environmental take preservation
undertaken Forest Water Stockholm
of owes
Sections such of the the
prescribed.
Rs. information any the the
enumerate of at
incorporated
dischargeSectionCentral environment investigations such
environmental standard for Act, Pollution) term
1 manuals,
other to procedure
procedure
in standard actionsuch to inthe
aspects and (Prevention AND
lakh. 7 which protect the1986 (Conservation) a
entrust
them talkemanufacturing
premises,
measuresSection national scope. duty
and
Government. protection managing Tribunal action COMPARATIVE
Sectionprovides
that
or matters in steps forpollution. a by contain Declaration
8. omit any for of of pollution towWards
respect
laboratories. and nation the and to
The rules the Bilateral
plant, and pollution and
industry the 3 the marineseveral Act,
l5 for for safeguards emission State to
improvement plan
punishment such sponsor safeguards quality wide all of
and 26 level.
understand and
provides relating
tothe th e process, environment. the Act, LAW
of or sections.
this
no environmentprevention
appoint machinery improvement 1981, has and the
is Governments, environment.
effective
the
and
carried for programme any fishery The natural
provisions Act,Control a
research of Act 1995,
to materials for implementing been
of world
Punishment
violatiofonr
powers
prevention manufacturing
remedial
the
discharges
for environment the of
empowers
The
adoption 1980
Environment the
mass
CArrying out. the
pollutant
be protection. control relating handling the following conventions preamble the
the passed.of
and as measures forofficers of Thisresources Pollution) of to
imprisonment are prevention of
environment. environment balancing are
in on function and the At protcct
any and to likely
of
environmental in
matters
the ofled this important Wild preventive
effects
prevention.
excinesdustry
under
of
cont rol
abalemi
process prouic hazardousto 101 various
its and
Central the
of
treatits
to time of
The them.
this we:
extended
the of
of
such this
ar Act of and a Sune
of other The and Act the of the the Life Act, Air the
 cOMPARATIVE STUDIES OF ENVIRONMENTAL PROTECTION 343

adopted in the mid-nineteenth century to prevent exploitation.' The first

vention was adopted in 1931.
whaling con
othe Law of the Sca, 1982 the Indian Parliament enacted "The
Territorial Waters, Continental Shelf, Exclusive Economic Zune and the
Maritime Zones Act, 1976".The primary purpose of this Act is to provide the
Use of territorial waters and other zones for navigation and exploitation of
resources. However there are only a few provisions in the Act
marine
pollution.
regarding the prevention of marine
Constitutional Provisions relating to Environmental
Protection
The Constitution of India originally did not contain any provision for
nrtection of environment. However, some of the provisions make tangential
relerence to the problem, e.g., Articles 39, 42, 47, 48 and 49 of the
Constitution consist of certain directives to the government.
At the very outset, the preamble of the Constitution of India provides
that our country is based on 'socialist pattern of society'. The basic aim of
socialism is to provide "decent standard of life to all', which is possible only
in apollution free environment. The objective of prcamble is reflected clearly
and in specific ternms in Part IV of the Constitution. The preamble als0
declares India to be a Democratic Republic. In a democratic system people
have the right to participate in Government decisions. They have the right
to have access into the information of Government policies which is very
important for the success of the environmental policies.
Article 39 of the Constitution lays down that the State shall direct its
polhey towards securing an adequate means of livelihood cqually for all
citizens. It also provides that the health and strength of workers and the
lender age of children are also not abused and the citizens are not forced by
oOROmic necessity to enter avocations unsuited to their age and strength.
Aicle 42 of the Constitution empowers the State to make provisions for
Uring just and human conditions of work and of maternity relief. This
atcle also directed the State to provide the workers clean environment.
risingArticle 47 of the
of the level Constitution
of nutrition provides
and the that theofState
improvement publicshall regard
health and the
the
standard of living of its people. This Article also provides for the State to
bring about prohibition of the consumption of intoxicating drinks and of
drugs
that thewhich are injurious to health. Article 48 of the Constitution provides
State shall endeavour to organize agriculture and animal
husbandry on modern and scientific lines
COWs and other milky cattles.
and prohibiting the slaughter of

the Article 49 of the Constitution provides that it shall be the obligation of

State to protect every nonument or place or objcct of artistic or historic
IStntaetreest hasfrom spoilation, removal, disposal or export. By this Article the
to make efforts to improve the cnvironmcnt for protecting
monuments
1,
and places and objects of national importance.

2. Conve
1867 nandtion North
between Pranco and (ireat Britain relative to Pislheries, 11th November.
Sea Pisheries (Over Fishing Convention), 1882.
Convgntion o the Regulation of Whaling. Geneva. 24h September, 1931.
 Article isIndia
withinOrissa.
slow affectcasesredressalenvironmental
therefore
the Supremne .Judicial underprotection.
parliament
provisions effectiveprotection
Citizens 'in.prove
3. 2. 1. through of
Indian 44
4.
nuisance Sec. Theenvironment Article
toand Article trustee In poisoning
"The Sec.diseasecoMmon Sec. the The
M.C. adopted
description
Sec. both. 21 the A.I.R. provided theRight
Wrongiully
1994 both).0r (6 (3 The
signing Aller
the
Sec.by
punished
Negligent Under have
monthsmonths
268 improve in a enforcement of
Pariament
inserted
the has the
offender
277 272 269 following purview citizens
writ Supreme Court
Constitution to of
Activism the Indian this
S.C.C, 430 dangerous 51A(g) 48A
connection and
Sec. injury, compassion
who
Mehta of 1992, his 42nd human
provides conduct or I.P.C. or
of
proviaes provides provides
for provides the the and under that of aConstitutionenvironment country
and
diverting
400. 285 shall are provides
the isgrievances
India clean the Penal
Rs.
Rs, a danger does principle
v. adversely of
environmental
the Amendment
natural environment. to a Court of onvironmnt
negligent deals
1000/- 500/-punishment
term to
punishment
the Article Articleclear against to Declaration
JURISPRUDENCE
Stockholm
punishment
be any fosafeguard
r Kamal withn Orissa environment
directly of State
environmental
punishment
mischieffor with life. that Code
water punishment India. protect
fine
punished which
with or
act living that of of and
animal fine The environment violation regarding
annoyance the
Nath, the effect 21 32 India legislaturesIndia
(5
conduct
orthe or it of High Environmental als0
or may
offender creature. shall theState of is under The inposing and Act two
years
(shall with both). for for is for environment. Public for AND
offence with forest the
the Court
maintainable. pollution
andaggrieved is contains
confers improve 1976 COMPARTIVE
extend guilty in
with adulteration the public be the of the
tho
imprisonment imprisonment to regard
including shall Article a
protection." Article8,
both).
be shal the Constitution. life Article the
respect of negligent the of Supremne
and Trust fundamental to
fouling to nuisance. duty
endeavour held
of Environmental for apresent (which
be and incorporate
fundamental
wide
6 public. any to wildlife various sothe
punished environmment forest, of
months Under the 32
persorn
to of illegal Doctrine that, 21 enacting Articles LAW
injury water act Consequent of legislativeApartmany natural
food every citizens In Pollution and
or with pulling up
A lake, of
Court
of the providcd
fine likely to The
to or to or
or with omission person the insanitation
this M.C. the High canright future
Rs. down citizen protect provisions
or public 6 with stated Constitution. from the 48A!
works 1000- months drink
imprisonment to inrivers country. doctrine while
SuremeConstitution and Mehta environment.
law
witn Pollution
Courts move duty to
or fine spread Indian
is of and problems powers
spring intended which of the provision
Heneration), & 'defend'
of firepairing
ne guilty andIndia that hence relating
o or or interpreting petition the
irrigation Penal wildife improve the Court livesState v. aforesaid for upon 51A
or or ine withinfection causes to State
in
in
citizen on
6 tst tor bouh of of it
protect State falls which many the the for (g? and
ormonths bui ld in g si eltner
pubile
any
Code.
and the is
to and the for to
the
by o of a of
 cOMPARATIVE STUDIES OF ENVIRONMENTAL PROTECTION 345

trustee of the people and environment and it is the duty of the State to
the
protectthe people, their heritage, lakes, water, air and such other provisions
providing a healthy environment. Article 21 provides that "no person shall
deprived of his life and personal liberty except according to the procedure
established by law", Article 21 has both negative as well as positive
Psions. "Life and personal liberty" does not eliminate the positive right
ve in healthy environment. So right to life includes right to live in
healthy environment.
In the following cases the Supreme Court gave remedies to the citizen
nder Article 32 against Environmental Pollution :
In R.L. &E Kendra, Dehradoon v. State of U.P. (Doon Valley Case), the
Supreme Court held that Article 21 guarantees a fundamental right to
life--a life of dignity, to be lived in a proper environment, free of danger of
disease and infection. It is an established fact that there exists a close link
between life and environment. The talk of fundamental rights and in
particular right to life would become meaningless if there is no healthy
cnvironment. The judicial grammar of this interpretation has the effect that
"right to live in healthy environment has the sanctum sanctorum of human
right." The first indication of recognition that right to live in healthy
environment is a part of Article 21l was provided by the Supreme Court in
this case.
In this case, the Rural Litigation and Entitlement Kendra, Dehradoon
and a group of citizens wrote to the Supreme Court against the progressive
mining which damaged the Mussoorie Hills of trees and forest and
accelerated soil erosion resulting in land slides and blockade of underground
Water channels. The Court ordered the Registrar of the Court to treat the
letter as writ petition under Article 32 of the Constitution. Initially the
COurt appointed an Expert Committee and as per the report of the
Committee, the Court ordered the closure of mining works. The court held
tnat quarrying operation definitely affects the life of the person and thus
hYolves the violation of right to life and personal liberty enshrined under
Article 21 of the
Constitution.
In M.C. Mehta v. Union of India,' the Supreme Court once again
treated the right to live in pollution free environment as a part of
Fundament
LK. Koolwalal v.Right
under Article 21 of the Constitution. Similarly in
StatetooflifeRajasthan,' the Rajasthan High Court observed that
maiwithinntenance of health preservation, of sanitation and environment falls
the purview of Article 21 of the Constitution as it adversely affects
the life of the citizens and amounts to slow poisoning and reducing the life
oi the citizen because of the hazards created, if not checked.
In Municipal Council, Ratlam v. Vardichandh, the Supreme Court has
ven mandatory direction to public bodies to implement specific plans to
prowiovingde into the
proper drainage system to stop the effluent from the alcoholic plants
number of latrines etc. In Dr.
KC Malhotra v. streets, M.P thesufficient
State ofto provide Madhya Pradesh High Court directed
1.
Z. AI.R.11938
A.l.R. 987, Raj.
S.C. 1086 (0leum Gas Leakage Case).

4, AI.R. 1980 S.C. 2.1622.

AJR. 1994 M.P. 43.
346 JURISPRUDENCE AND COMPARATIVE LAW
that the drainage must be covered and there
public conservancy which should be should be proper
Department lavatCourt ories alsofor
regularly
directed the State Public ealth Engineering
that they should ensure that the
cleaned. The
and C
contaminated where there are joints. pipelines of
Similarly in Damodar Rao v.
was held that the slow
poisoning Municipal
by pollutedCorporation,
Corporations
drinking water are not.
environmental
Article 21 of the pollution and
Constitution. spoilation shoud be atmosphere Hyder abad, it
held that any In
failure or neglect Kinkari Devi v. regarded as causod by
environment will amount to on the part of the H.P. violation to
State,
Articles 14 and 21 of violation of Stato High
to Court
the Supreme Court the Constitution. In
ensuring enjoyment
right to life under
fond that public
of
fundamental
Subhash
interest
pollution free water andlitigation isKumarrights conferred
v. State of
protecth
Bihar
In State of
recognized the need to
Article
Tamil
2l of the
Nadu Constitution.
V. Hind
air which is
mai nta i
includedn able
in
for
the
forest and minerals Stone
comserve and protect natural Supreme Court has
the
Krishra V. Union ofwhich India,contitute resources inlike ivers,
natural wealth. Similarly,
Government
In
to the
initiate action within6 Supreme Court directed the M.PPradeen
West Bengal Sachidanandha
has allottedPandey v. Statemonths
of
Supreme Court interfereda inlandthefor the West Bengal,"of tl.a
for
protecting forests.
State
environment should not matterconstruction Government
5 Star
Hotel, The
of
In
issued theMunicipal
be
disturbed. providing that the ecology and
writ of Corporation
of Mandamus to the
v.
Adromee
unicipalBuilder,
the
discharge
In M.C. domestic dirty water and the Supreme Court
Board to construct
Mehta v. Sreeram Food & rain water drains for
Oleun gas affected Fertil izer.s where major
strict and absolute large number of persons. The Supreme Court leakage ot
awarded Rs. 10,000liability to
as cOst tocompensate victims of the gas. Mr. applied
Ltd. be paid by the Sriram
In M.C. Food and Mehta waS
Fertilisers
Supreme CourtMehta
v.
Union of Indiu (Ganga
directed the
purpoSe of providimg measures authorities Water Pollution CasSe
to implement the rules made tor
Court also provide that to prevent
pollution in the Ganga river
financial incapacity of the industries is irrelevantorder
setting up
to stop the pre-treatment plants and for treating the
for
pollution of water trade effluents in
in the Ganga
river.
1. A.I.R. 1987 A.P. 171.
2. A.l.R. 1988 H.P. 4.
3. A.I.R. 1991
S.C, 420.
4. A.I.R. 19)81 S.C. 711.
5. A.I.R. 1996 S.C.
2040.
G. A.I.R. 1987 S.C. 1109
7. A.I.R. 1)92 S.C.
(Calcutta Taji Hotel Case).
8. A.1.R, 1987 S.C. 10.
9. A.I.R. 1988 S.C. 1037.
 cOMPARATIVE STUDIES OF ENVIRONMENTAL PROTECTION 347

c Mehta v. Union of India, the Supreme Court directed the

Mahanagarpalika to increase the size of sewers so that sewage may
Kanpur
carriedsmoothly and construct sufficient number of public latrines and
be
urinalsfor the use of poor people. Similarly, in Subha Rao v. State of
Ilimachal Pradesh, the Court ordered the closure of bone factory which wa
polluting environment by its smell and making the life of the people
miscrable.
MC Mehta v. Union of India, the Supreme Court gave direction to
Government to save the natural lake of Nainital from irreversible
the
degradation. In Dr: Ajay Singh Raval v. Union of lndia, the Supreme Court
dircted162 Jeather tanneries in Tamil Nadu to be closed down because they
were pollutingthe aiir and the water in the surrounding areas.
In MC. Mehta v. Union of India,° the Supreme Court issued directions
wrarding the environmental pollution in New Delhi and ordered ciusure of
Rindustries and these industries cannot be permitted to operate and
inetion in Delhi. Again in M.C. Mehta v. Union of India," (Taj Mahal Case)
he Supreme Court issued directions for the relocation of 292 industries
located and situated in Agra which were damaging the Taj Mahal.
Thus through a series of illuminating judgments the higher juticiary
narticularly the Supreme Court has supplemented and strengthened the
environmental law.

Comparative Approach to the International Standards

Throughout the world we hear the cry against the environmental
pollution. Environmental problem has global consequence such as acid rains,
depletion of the Ozone layer, global warming etc. Hence the protection of
cnvironment is a global issue and it is not a problem of any area or nation.
According to the 1996 World Her lth Report, 50,000 people are dying
Kery day by infectious diseases. In the last 20 years at least 30 new such
uisCases have emerged which are threatening the health of hundreds of
Multons of people. Many of thesc diseases have no treatment, cure and
cCine. We are standing on the brink of global crisis of infectious diseases.
Ihe problem arising from pollution to human environment was not
Talzed carlicr and thereforc attention was not paid to make rules and
T(gulations in this regard. But United Nations now realized totake steps to
the pollution to human being by conferences and declarations.
StoTheckholmUnited
(Sweden) Conference" on Human Environment
Nation's Conference on Human Environment held at
StKkhom
Telve the from
global5th problem June in 1972 was the first major effort to
June to of16thprotection and improvement of the human
ironment
lhe conierence by international
l.
conference on universal level. The main aim of
was tO encourage and provide guidclines or action by
2, AIR. 198% S.C.
S. AJR. 1989 S.C.
1115.
3. SC.O, 1994 S.C, 17).
b. MR. 1995 S.C. 117.
ALR. 1996 S.C. 266.
2231.
 cOMPARATIVE STUDIES OF ENVIRONMENTAL PROTECTION 349

programmefor the pollution of cnvironment consisting of 54 members newly

The Conference also formed an Environment Secretariat
for 3 years.
elected the United Nation's programme. A Board called
to co-0rdinate
Environmental Co-ordination Board is constituted by the Board for secring
maximum cO-ordination of United Nations Environmental Programme. A
known as Environmental Fund is established in order to
voluntary fund
provide additional financing for environmental programmes.
Programme (UNEP)
United Nations Environmental
through adoption of a resolution on 15th December,
General Assembly
Council for United Nations Environmental
set up a Governing
1972 composed of 58 menbers. General Assembly
Programme. The Council was
main functions of the Council are :
alocts members for 3 years. The field
1. To promoteinternational co-operation in the environment
and to recommend appropriate policies.
guidance and co-ordinate for
2. To provide general policy
environmental programme.
periodic report on the implementation
3. To receive and review the
of Environmental Programme. international
promote the contribution of the relevant technical
4. To professional communities to the
scientific and other
programmes.
aspects of environment and
and study the impact of environment policies
5. To maintain developing countries.
measures on fund.
resources of the environment
6. Utilization of required to report annually tc the
of UNEP is
The Governing Council
comments on the report as may
deem necessary.
general assembly such

Nairobi Declaration
was decided by General Assembly to convene
1980 it on
Accordingly the session18th
On 5th December. governing council. to
;special session of UNEP May
on 10th Declaration"
Environment was held "Nairobi
United Nations Conference on
declaration called
May at Nairobi. In the session, a commitments to the Stockholm
the Declaration are the
was adopted. The declaration reaffirned Nairobi
provisions of
Declaration. The important consummation
fol owing1, as well as
It was recognized that poverty environment.
wasted

pattern are also threat to the greatly

benefit from an
would of any
2. The human environmentwhich is free from the threat
international atmosphere development of
War especially nuclear war. the
progressive
3. All the States should promote
environmental law. developing countries to deal
assist
4. countries should
environnmental problems.
Developed
with their most seriousshould be adapted against damage to
5. measures
Preventive
environment. States solemnly reaffirms its
6. The community of
world
 350 JURISPRUDENCE AND COMPARATIVE LAW
comn1itment to the
Stockholm Declaration and its
governments and the action plans.
The Nairobi Declaration urged all
world tc discharge their historic
to ensure that our small planet isresponsibility, people of the
collectively
and
passed over to the
condit:on which generates life and human dignity for future
all.
individually
gener ation in a
Rio Declaration - 1992
The UN (Earth Summit)
popularly knownConference
on
as Earth
SummitEnvironment and
was held in JuneDevelopment
More than l50 1992 at Rio De(UNCED)
largest UN Governments
conference ever heldparticipated
in the Summit.
This Janeiro.
of sustainable development an it
resolved to put the world onwasa the
without which aims at meeting the path
needs. compromising the ability of future needs of the present
generation to meet their own
The Rio Declaration
and proclaimed 27 recognized the inter-dependent nature of the
principles. Some
follows : of the important principles areearthas
1, The State must exploit their own
to cause resources in such a way as not
damage to the environment of other States.
2. The right to
sustanable development must be fulfilled so as to
satisfy the needs of present and future generations.
3. All States and all people
shall co-operate with the task of
eradicating poverty.
4. Environmental issues are best handled with the participation of
all concerned citizens
5. The State shall facilitate and encourage public awareness about
environmental policies. State must provide every citizen effective
remedy through administrative action against environmental
disaster.
6. The State shall develop national law in accordance with e
international commitment for solving environmental cris1s.