Kalinga University

Faculty of Law

Course : BALLB

Sem : 5th Sem

Subject : Environmental Law

Subject Code : BALLB501

Unit 1

Environment meaning

Environment can be defined as a sum total of all the living and non-living elements and their
effects that influence human life. While all living or biotic elements are animals, plants,
forests, fisheries, and birds, non-living or abiotic elements include water, land, sunlight,
rocks, and air.

Environment functions

(1) Provides the supply of resources

 The environment offers resources for production.

 It includes both renewable and non-renewable resources.

 Examples: Wood for furniture, soil, land, etc.

(2) Sustains life

 The environment includes the sun, soil, water, and air, which are essential for
human life.
  It sustains life by providing genetic and biodiversity.

(3) Assimilates waste

 Production and consumption activities generate waste.

 This occurs mostly in the form of garbage.

 The environment helps in getting rid of the garbage.

(4) Enhances the quality of life

 The environment enhances the quality of life.

 Human beings enjoy the beauty of nature that includes rivers, mountains, deserts,
etc.

 These add to the quality of life

ENVIRONMENT POLLUTION

The US Environmental Protection Agency (EPA) defines pollution as “any substances in

water, soil, or air that degrades the natural quality of the environment; offends [the senses];
causes a health hazard; or [impairs] the usefulness of natural resources.Put simply, pollution
is any substance that causes harm upon entering the environment.

There are many ways to classify pollution, but one common framework distinguishes “point
source” – or pollution that comes from a single identifiable source – from “non-point source,”
which is trickier to pin down.

Smokestacks from power plants emit carbon dioxide and particulate matter. Leakage from
gasoline storage tanks. Discharge pipes at a wastewater treatment plant. A drainage ditch on
a feedlot that seeps into groundwater – These are all examples of point-source pollution.
Nonpoint-source pollution, by contrast, is wider spread, originating from many sources
spanning large areas. For example, agricultural runoff containing fertilizers, pesticides, and
particulate matter from thousands of acres of farmland is considered a non-point source.
Urban and suburban runoff containing oil, grease, pet waste and other hazardous materials is
also non-point source pollution.

That said, there are many types of pollution that cause a wide range of environmental
problems. The list that follows offers a glimpse into several of these types.

7 Types of Pollution and Their Causes

The main causes of environmental pollution include urbanization and industrialization,

agricultural activities, mining, burning of fossil fuels, plastic and particulate matter. These all
contribute to the following:

 Air pollution

Air pollution is caused by harmful gases and aerosols (solids and liquids suspended in the air)
that are released through both natural processes and human activities. Wildfires and
volcanoes, for example, release particulate matter and greenhouse gases into the atmosphere.
A majority of air pollution, however, is generated by human activities, including the burning
of fossil fuels like coal, natural gas, and oil for electricity, transportation, and industry.

 Common air pollutants include:

Particulate matter (dust, dirt, soot, smoke, etc.)

Direct greenhouse gases such as methane (CH4), carbon dioxide (CO2), and nitrous oxide
(CH4), trap heat in the atmosphere and contribute to climate change.

Indirect greenhouse gases such as carbon monoxide, sulfur dioxide, and volatile organic
compounds (VOCs), are released during the burning of fossil fuels and biomass (e.g. wood).
These compounds chemically react in the atmosphere to form more dangerous substances that
intensify climate change and harm human health.Managing air pollutants is possible. For
example, a 1987 ban on CFCs (a common pollutant used in refrigeration) averted the
destruction of the ozone layer, which is crucial in protecting the earth from UV rays and
global warming.

 Water pollution

Water is an important natural resource that is crucial to all life on earth, though only .5% of
earth’s water is fresh, accessible, and drinkable.Water pollution in the form of microbial
pathogens, nutrients, and hazardous substances contaminates both freshwater and saltwater
ecosystems, harming aquatic life and public health.One notable example of water pollution is
nonpoint-source agricultural pollution. After intense rain events, agricultural fertilizers,
pesticides, and particulate matter from eroded soil can enter streams, rivers, lakes, bays and
even oceans. From here, excess concentrations of nutrients like phosphorous and nitrogen
spur the growth of algal blooms, which deplete the water of oxygen in a process known as
eutrophication. The resulting “fish kills,” “dead zones,” and drinking water crises are
common throughout the United States, from the Great Lakes to the Gulf of Mexico.
Agricultural practices that build soil health and minimize synthetic inputs can actually reduce
water pollution.In addition to agricultural runoff, other sources of water pollution include:

Industrial waste may include organic compounds, heavy metals, nutrients or radioactive
material.Marine dumping (when garbage and other waste products are dumped into the
ocean)Solid wastes, wastewater, and sewage that escape outdated treatment plants pose a
threat to human health and aquatic ecosystems, introducing hazardous compounds and
pathogens into waterways.Oil leaks and oil spills are high-profile examples of water
pollution.Greenhouse gases can actually affect water quality. The ocean, for example, is a
“carbon sink,” meaning it absorbs CO2 from the atmosphere. This actually acidifies the
ocean, making it inhospitable for certain creatures.

Although water pollution is serious business, it is not without solutions. New efforts focused
on sensitive watersheds aim to limit agricultural pollution through nutrient load limits and
waste management incentives, while laws like the Clean Water Act regulate industrial waste
in developed countries.

 Plastic pollution

Of the 380 million tons of plastic produced per year, some 31 million tons will enter the
environment and around 8 million will enter the ocean.As they degrade in the environment,
plastic bottles and plastic waste becomes “microplastics,” small particles of plastic that find
their way into food chains, soil, rain, snow – even our lungs – in high levels. A recent study
demonstrates that people ingest around a credit card’s worth of microplastics every week,
with yet unknown health effects. Some scientists speculate chemical toxicity from
microplastics might affect pregnancy or cause cancer. Others fear “nano-plastics” – plastic
particles even smaller still – may enter cells and disrupt cellular activity. Mitigation efforts
such as re-cycling only go so far; for example, much of the plastic that is “re-cycled” is not,
in fact, recycled, instead of shipped to developing countries where it re-enters the
environment.

 Soil contamination

Contaminated soils are common throughout the industrialized world, with the most common
pollutants including agrochemicals, petrochemicals, microplastics, acid rain, and industrial
waste.In some cases, soils are polluted through agricultural practices, including the
application of pesticides, fertilizers, and irrigation water that contain microbial pathogens,
heavy metals like cadmium, lead, mercury and arsenic, and other bio-toxic substances. While
some pesticides and herbicides degrade readily, other agrochemicals are “persistent,”
meaning the agrochemical and its byproducts linger in the soil, sometimes up to 10 years.
Other sources of contaminated soil include industrial waste. These may be known as
“brownfields” — areas that require remediation before they are suitable for human use. When
contaminated soil comes in direct contact with humans and wildlife via food or dust, or
indirectly by seeping into drinking water, a number of negative health effects may result
depending on the contaminant, concentration, and exposure.

 Noise pollution and light pollution

Seemingly harmless compared to plastic, water, and air pollution, noise and light pollution
can damage ecosystems. Often associated with urbanization, noise pollution is defined by the
EPA as “unwanted or disturbing sound” and light pollution as “excessive brightness that
causes discomfort.” Both noise and light pollution can harm human health and wildlife,
affecting sleep, decreasing fitness, and altering behavior.

 Radioactive contamination

When thinking about radioactive contamination, Fukushima or Chernobyl may come to mind.
However, radioactive contamination is more widespread than these isolated incidents, with
possibly 45,000 sites contaminated with radioactive materials across the US, according to the
EPA.Radioactive contaminants are generated by uranium mines, nuclear reactors, and test
laboratories, where they can enter the environment. For example, uranium mining can release
radiation into the soil, at which point rain washes this material into drinking water. In fact, up
to 170 million Americans drink tap water contaminated with radioactive materials. High
levels of exposure to these materials can cause cancer, reproductive dysfunction, and myriad
other health effects.

 Electromagnetic pollution

Much of the technology we use today — from our cell phones to our laptops to the wi-fi that
connects them — generates an electromagnetic field. At certain frequencies and exposure
levels, this energy can be considered toxic (for example, strong fields have been shown to
cause burns).

Environmental Law and the Indian Constitution

INTRODUCTION

Our constitution is not an inert but has grown and evolved over the years. In the Indian
scenario, environment protection, has not only been raised to the status of fundamental law of
the land, but it has also been webbed with human rights approach and is now considered as a
well-established fact that it is the basic human right of every individual, to live in a pollution
free environment with complete human dignity. The Constitution of India imposes an
obligation on the “state” as well as its “citizens” to protect as well as improve the
environment.i The provisions contained for environmental protection by the Indian
Constitution has been followed by other nations in the world. One such nation is South
Africa. Similar provisions for environmental protection have been incorporated by the
framers of constitution.

OBLIGATION TO IMPLEMENT INTERNATIONAL AGREEMENTS

The South African The objectives of the international agreements can only be achieved if all
the relevant countries become parties to them. India is a signatory to a number of
international treaties and agreements relating to regional and sometimes global environmental
issues.
India has played a leading role from 1972 UN Conference on Human Environment at
Stockholm to 1992 UN Conference on Environment and Development at Rio de Janerio and
also in the Earth summit Plus 5 of 1997 at New York. India is therefore under an obligation
to translate the contents and decisions of the international conferences, treaties & agreements
into the stream of its national laws. Article 51 (c) states that “the state shall endeavor to foster
respect for international law and treaty obligations in the dealings of organized people with
one another.”

Article 253 of the Constitution empowers the parliament “to make any laws for the whole or
any part of the territory of India for implementing any treaty, agreement or convention with
any other country / countries/ any decision made by any international conference, association
or other body.” Entries number 13 and 14 of the Union list includes items on which
parliament can make laws provides “participation in international conferences, associations
and other bodies, implementing of decisions made thereat.”ii and “entering into treaties and
agreements with foreign countries and implementing of treaties, agreements and conventions
with foreign countries.”iii

Thus, Article 253 is read with entries 13 & 14 of the Union list, we can conclude that the
parliament can pass any law including laws on environmental protection and the same cannot
be challenged before the courts on the ground that the Parliament lacks legislative
competencyiv to do so. These provisions served as potent weapons in the armory of the
courts to uphold any parliamentary legislation if it is in pursuance of Article 253 read with
entries 13 & 14 of the Union list. Parliament has made use of this power to enact Air
(Prevention and Control of Pollution) Act, 1981 and Environment (Protection) Act, 1986.
Preambles of both the laws clearly indicate that that these laws were enacted to implement
the decisions reached at the United Nations Conference on Human Environment held at
Stockholm in 1972.

The preamble of the constitution and environment protection

The Preamble of Indian Constitution begins by stating that people of India solemnly resolve
to constitute India into a socialist country. This indicates that our Constitution affords us with
the socialist pattern of society. Thus, aiming at dealing with and solving social problems first,
rather than concentrating on individual problems. Here, what is in the interest of the public is
of utmost importance. Presence of pollutants in the atmosphere in excess of the prescribed
limit is one of the major social issues to be given due regard. It is not only exploiting the
health of living beings but is also degrading the quality of the environment in each day. The
basic aim of Preamble is socialism and it is the responsibility of the state to fulfill this by
taking stringent measures to make the environment free from all forms of pollution. The
obligation of the state further includes providing not only a pollution free environment but
also a decent standard of living to all living beings.

All the citizens of India intend to secure freedom which also includes securing justice. Justice
can be interpreted and sought in many forms. Thus, citizens have a right to environmental
justice. Increasing degradation of the environment is posing a great threat to the lives of
living beings and hence, protecting the environment is becoming a crucial in each day of life
because ignoring it would pose a serious threat to the environment at large.

The state has the duty to comply with all the provisions and since India is declared to be the
Democratic Republic, the citizens of this country hold a very essential right to have looked
upon the conduct of the state and provisions being taken by the government from time to time
to restore the environment.

FUNDAMENTAL DUTIES

The 42nd Amendment in 1976 added a new part IV- A dealing with Fundamental Duties in
the Constitution of India.v Article 51-A of this part enlists 11 fundamental duties. This part
was added on the recommendations of the Swarn Singh Committee bringing the Constitution
of India in line with Article 29(1) of the Universal Declaration of Human Rights.Article 51-A
(g) specifically deals with the fundamental duty with respect to environment. It provides: It
shall be the duty of every citizen of India to protect and improve the natural environment
including the forests, lakes, rivers and wildlife, and also to have compassion for living
creatures. Article 51-A (j) further provides: It shall be the duty of every citizen of India to
strive towards excellence in all spheres of individual and collective activity, so that the nation
constantly rises to higher level of endeavor and achievements. The basic motive behind the
fundamental duties is to inculcate a sense of responsibility among the people and to promote
their participation in restructuring and building a welfare society. The protection of the
environment is a constitutional priority and it is the concern of every citizen.
In Kinkeri Devi v. State, Himachal High Court that in Article 48-A and Article 51-A(g) it
was held that it is both constitutional pointer to the state and the constitutional duty of the
citizens not only protect the environment but also improve it and to preserve and safeguard
the forests, the flora and the fauna, the rivers and the lakes and all other water resources of
the country. The negligence to abide by the pointer or perform the duty is nothing basically
the straight betrayal of the fundamental law of the land. In the case of betrayal, the courts
cannot remain a silent spectator. A court can intervene at any time to make the
implementation of the provisions by issuing writs, orders and directions as it thinks fit and
necessary.

• Duty of the State ( Part IV)

Part IV of the Constitution deals with directive principles of State policy. These directive
principles represent the socio-economic goals which the nation is expected to achieve. The
directive principles form the fundamental features and the social conscience of the
Constitution and the Constitution enjoins upon the State to implement these directive
principles.vii These directive principles are designed to guide the destiny of the nation by
obligating three wings of the State i.e. legislature, judicature and executive to implement
these principles.

Article 47 of the Constitution is one of the directive principles of State policy and it provides
that the State shall regard the raising of the level of nutrition and the standard of living of its
people and the improvement of health as its primary duties. The improvement of public
health also includes protection and improvement of the environment without which public
health cannot be assured.

The 42nd Amendment of the Constitution in 1976 added a new directive principle in Article
48-A, dealing specifically with the conservation and improvement of the environment. It goes
as under: The state shall endeavor to protect and improve the environment and to safeguard
the forests and wildlife of the country.

Article 37 of the constitution provides:

The provisions contained in part IV shall not be enforceable by any court, but the principles
therein laid down are nevertheless fundamental in the governance of the country and it shall
be the duty of the state to apply these principles in making laws. The court cannot directly
enforce the directive principles by compelling the state to apply them in making the law but
only when the state commits a breach of its duty by acting in a way which is contrary to these
principles The directive principle serves the courts as a code of interpretation. They now
stand as elevated to inalienable fundamental human rights. Even they are justifiable by
themselves.

In M.C. Mehta v. Union of India,viii the court observed that Articles 39(e), 47 and 48-A by
themselves and collectively cast a duty on the state to secure the health of the people or to,
improve public health and to protect and improve the environment.

FUNDAMENTAL RIGHTS

The essence of Principle 1 of the Stockholm Declaration can be seen in our constitution in
Articles 14, 19 and 21 dealing with the Right to Equality, Freedom of expression and the
right to life and personal liberty respectively.ix

Part III of the Indian constitution deals with the fundamental

rights.

The basic idea behind fundamental rights is to achieve the goals mentioned in directive
principles and must be construed in the light of the directive principles.x A right can be
recognized as a fundamental right even though it is not expressly mentioned in the
constitution. Thus, we can say that there are many unenumerated fundamental rights in Part
III and judicial activism in India has taken a lead in interpreting various unenumerated rights
in Part III of the Constitution.xi Environment protection is one of them. Specific provisions
are only provided in the part dealing with Directive Principles and Fundamental Duties, yet
right to live in a healthy environment has been interpreted by the judiciary into various
provisions of Part III dealing with fundamental rights. Thus, the judiciary in India has
provided impetus to the Human Rights approach for the protection of the environment.

Right to Wholesome Environment

Article 21 of the constitution provides for the fundamental right of life. It states that no
person shall be deprived of his right to life or personal liberty except in accordance with
procedures established by law.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.In Maneka Gandhi v Union of India, the Supreme Court while
elucidating on the importance of the ‘right to life’ under Art. 21 held that the right to life is
not confined to mere animal existence, but extends to the right to live with the basic human
dignity (Bhagwati J.)Right to life includes the right to have a dignified life and also the bare
necessities of life like food, shelter, clean water and clothes. The right to live extends to
having a decent and clean environment in which individuals can live safely without any threat
to their lives. An environment shall be free from diseases and all sorts of infections.This is
crucial because the right to life can be fulfilled only when one lives in a clean, safe and
disease- free environment, otherwise granting such right would prove to be meaningless.M.C.
Mehta v. Union of India, the Supreme Court impliedly treated the right to live in pollution
free environment as a part of the fundamental right of life under Article 21 of the
constitution.

Right to livelihood

The Judicial interpretation has further broadened the scope and ambit of Article 21 and now
“right to life” includes “right to livelihood”, Even the right to earn livelihood is considered as
part of the right to life under Article 21. This broad interpretation is very helpful as it helps in
checking the governmental action which has an environmental impact that threatens the poor
people of their livelihood by dislocating them from their place of living or otherwise
depriving them of their livelihood. The right to livelihood has been recognised by the
Supreme Court in the case of Olga Tellis v. Bombay Municipal Corporation. The Court
issued directions to the Municipal Corporation to provide alternative sites or accommodation
to the slum and pavement dwellers ear to their original sites; and to provide amenities to
slum-dwellers.

Right To Equality and Environmental Protection

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

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

Freedom of Speech and Expression and Environment

Right of speech and expression is a fundamental right expressly mentioned in article 19(1)(a)
of Part III of the Constitution. There have been a number of cases where people have
approached the court through the way of speech and expressing themselves by writing letters
like that in the case of Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar
Pradesh where they have expressed the violation of their right to have a clean and safe
environment and a right to livelihood.In India, the media has been playing a crucial role in
moulding the perception of people in issues relating to the environment. Thus, Article 19(1)
(a) is interpreted to include the freedom of the press as well.

Freedom of Trade and Commerce and Environmental Protection

All the citizens of India have a fundamental right to carry on any profession or business, trade
or commerce at any place within the territory of India under Article 19 (1)(g) of the
Constitution. But this is not an absolute right and thus, has reasonable restrictions to it.
Article 19(6) of the Constitution lays down the reasonable restriction to this fundamental
right to avoid the environmental hazards. The purpose is to avoid the ecological imbalance
and degradation of the atmosphere in the name of carrying on a trade, business, occupation or
carrying on any profession. Thus, in the name of business or profession, one cannot cause
harm to the environment.

In M.C Mehta v. Union of India, AIR 1988 SC 1037 certain tanneries were discharging
effluents in the holy river Ganga which was causing water pollution. Further, no primary
treatment plant was being set up despite the constant reminders. It was held by the court to
stop the tanneries from working because the effluents drained were ten times more noxious as
compared to the ordinary sewage water which flows into the river.

The court ordered while directing tanneries to be stopped from working which have failed to
takenecessary steps as required for the primary treatment of effluents from the industries. The
court while passing this order contended that, though the court is conscious about the
unemployment that might usher due to the closure of the tanneries but health, life and
ecology holds greater importance in the eyes of law.

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

Role of Panchayat and Municipalities

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 res pectively. 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 maintenance 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.

REMEDIES FOR THE ENFORCEMENT AND WRIT JURISDICTION

According to Doctor B.R. Ambedkar, Article 32 is the backbone of the Indian Constitution.
He regarded this article as the most important article in our constitution. It is the most
innovative part of the Indian Constitution as fundamental rights can be enforced in the
Supreme Court under this article by filing a writ. It is also conferred upon the High Courts of
the country under Article 226 of the Constitution. Under these provisions the Supreme Court
and High Courts have the power to issue any direction or orders or 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.

PIL

The Public Interest Litigation was initiated by few Judges of the Supreme Court. The method
was to redress the public grievances and relax the governing rules of locus standi. Standing is
required to have a court for hearing the aggrieved person. Since court will not hear the party
unless the person has sufficient stake in the particular case, judicial perception of who has
sufficient interest (i.e. the person aggrieved) is critical. The Supreme Court has lowered the
standing barriers by widening the concept of the “Person Aggrieved”. The traditional
approach of PIL was restricted only to a person whose own right was in jeopardy was entitled
to seek the remedy. When the term was extended to public action this meant that a person
asserting a public right or interest has to show that he or she had suffered some grave or
special injury over and above what members of public had generally suffered. In 1970’s two
forces combined to erode the doctrinal limitation of standings.The first of these arose at the
start of the decade with the spreading of the concept of Social Justice and second was the
emergence of Legal Aid Movement. Justice Krishna Iyer and Justice P.N Bhagwati one of the
most remarkable Judges of Supreme Court who delivered early judgements liberalizing
standing were also deeply involved in fostering legal service institution for the weak,
aggrieved and poor.Significantly both judges played a very important and crucial role in
widening the aspect of PIL in India and it was the National Committee on Judicare which in
its final report in August 1977, expressly recommended the broadening of the rule of Locus
Standi as a means of encouraging Public Interest Litigation.

Public Interest Litigation- A Dynamic Concept

The traditional rule of Locus Standi that a petition under Article 32 can be filed by a person
whose fundamental Rights is infringed has now been considerably relaxed by the Supreme
Court in its ruling. The court permits Public Interest Litigation or Social Action Litigation at
the instance of “Public Spirited Citizens” for the enforcement of constitutional and the legal
rights of any person or group of persons who because of the poverty or socially, economically
or due to disadvantaged position are unable to approach the court for any kind of
relief.“Personal interest cannot be enforced through the process of this court under Article 32
of the Constitution in the grab of public interest litigation. Public interest litigation
contemplates legal proceedings for vindication or enforcement of fundamental rights of a
group of person or community which are not able to enforce their fundamental rights on
account of their incapacity, poverty or ignorance of law. A person invoking the jurisdiction of
this court under Article 32 must approach this court for the vindication of the fundamental
rights of affected persons and not for the purpose of vindication of his personal grudge or
enmity. It is [the] duty of this court to discourage such petition and to ensure that the course
of justice is not obstructed or polluted by unscrupulous litigants by invoking the extra
ordinary jurisdiction of this court for personal matters under the grab of the public interest
litigation”. Subhash Kumar Vs State o f Bihar, A.l.R. 1991 S.C. 420

CASES
Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh, where the
petitioner along with the other citizens wrote to the supreme court expressing their views
against the progressive mining which denuded the Mussoorie hills of trees and forests and
soil erosion. This lead to having an adverse effect on the environment and resulted in
landslides along with blockage of underground water channels.The registry was ordered by
the Hon’ble supreme court to consider this letter as a writ filed under article 32 of the
Constitution. An expert committee was appointed in this behalf by the Supreme Court to
advise the Hon’ble court with some technical issue. On the basis of the report provided by the
expert committee, the court provided the limestone quarries to be closed because it was
infringing the right to life and personal liberty. Quarrying operations lead to ecological
degradation and air and water pollution, which affected the lives of the people to a great
extent.

In landmark case Vellore Citizens' Welfare Forum vs. Union of India (5) the Supreme Court
allowed standing to a public spirited social organization for protecting the health of residents
of Vellore. In this case the tanneries situated around river Palar in Vellore (T.N.) were found
discharging toxic chemicals in the river, thereby jeopardising the health of the residents. The
Court asked the tanneries to close their business.

• Sanitation in Ratlam In a landmark judgment in 1980, the Supreme Court explicitly

recognized the impact of a deteriorating urban environment on the poor. It linked basic public
health facilities to human rights and compelled the municipality to provide proper sanitation
and drainage

• Doon Valley Quarrying In 1987, the Rural Litigation and Entitlement Kendra, on the
behalf of residents of the Doon valley, filed a case in the Supreme Court against limestone
quarrying. This case was the first requiring the Supreme Court to balance environmental and
ecological integrity against industrial demands on forest resources. The courts directed the
authorities to stop quarrying in the Mussoorie hills

• Gas leak in Shriram Factory: In the historic case of the oleum gas leak from the
Shriram Food and Fertilizer factory in Delhi, in 1986, the Supreme Court ordered the
management to pay compensation to the victims of the gas leak. The “absolute liability” of a
hazardous chemical manufacturer to give compensation to all those affected by an accident
was introduced in this case and it was the first time compensation was paid to victims.
• Construction in Silent Valley: In 1980, the Kerala High Court threw out a writ filed
by the Society for the Protection of the Silent Valley seeking a ban on construction of a
hydro-electric project in the valley. However, despite an unfavorable judgment, active
lobbying and grassroots action by environmentalists stopped the project.

• In 1985, Activist-Advocate M C Mehta filed a writ petition in the Supreme Court to

highlight the pollution of the Ganga by industries and municipalities located on its banks. In a
historic judgment in 1987[4], the court ordered the closure of a number of polluting tanneries
near Kanpur. Justice E S Venkataramiah, in his judgment, observed: “Just like an industry
which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which
cannot set up a primary treatment plant cannot be permitted to continue to be in existence.”

• Mining in Sariska: A writ petition was filed in the Supreme Court in 1991 by the
Tarun Bharat Sangh to stop mining in the Sariska wildlife sanctuary. The court banned
mining in the sanctuary

ENVIRONMENT AND LAW OF TORTS

Background

Tort Law and the Environment

Man is using earth.s resources not only to the limit of exhaustion, but has also consciously
contributed the degradation of the resources that remain. Habitats naturally present on earth
have been dangerously altered to the point that species have started to undergo extinction. As
a result, there has been a worldwide increase in concern towadrs the quality of environment.
In india, owing to increased national concern for environmental conservation, authorities
have, over the last couple of decades started taking steps to increase the scope and impact of
environmental laws and other protection schemes. Following this, other laws relating to
water, air and forest inter alia have been enforced with an increased vigor. Local government
laws, criminal laws, tort laws were all sorts of remedies provided and applied to protect the
environment.

Tortious remedies are available against polluters in India. Since common law remedies have
been available to us since the colonial times with the word .equity, justice and good
conscience. applied previously in all judicial proceedings. Common Law based tort rules
continue to function and remain valid due to Article 372 of our constitution that talks about
and applies the continuance of existing laws. Blackstone.s commentary on English Law of
nuisance published in 1876 was quoted in the case of Vellore Citizens Welfare Forum v.
Union of India6 and the judges held that the right of a pollution free environment was a part
of the basic jurisprudence of the land since the Indian legal system was founded on the
principles of English Common Law. Common torts that have a relation to the environment
are negligence, nuisance, strict and absolute liability and trespass.

Remedies available under common law vis-à-vis Environmental Protection

a) Nuisance

Nuisance is related to unlawful interference with one’s enjoyment of land or any right arising
from it, thereto. It may be categorized into Public Nuisance or Private Nuisance. As the name
suggests, public nuisance deals with interference with a right pertaining to public. Whereas,
private nuisance is interference with right which is exercised exclusively by a private entity
or an individual. There are a few remedies available vis-à-vis public nuisance in Criminal
Procedure Code, 1973. Section 91 of the Criminal Procedure Code, 1973 prescribes that a
suit may be filed to obtain a suitable relief or injunction for any cause of action affecting or
likely to affect public nuisance. Also, in Criminal Procedure Code, a magistrate is
empowered to restrain any person from carrying out an act that may give effect to public
nuisance. In Ramlal v. Mustafabad Oil and Oil Ginning Factory, the Punjab and Haryana
Court observed that once a noise is found to be above the necessary threshold to attract the
liability of public nuisance, it is no valid defense to contend that such noise arose out of any
legal activity. Apart from this, public nuisance has been made punishable under the Indian
Penal Code, 1860.

b) Negligence

It is a point to note that in order to bring a successful action vis-à-vis negligence, it is

necessary to establish a direct nexus between negligence and the damage caused. The other
ingredient that constitutes negligence is that the respondent did not take sufficient care to
avoid public nuisance that the person was required to take such care under the law. In Naresh
Dutt Tyagi v. State of Uttar Pradesh, fumes released from the pesticides leaked to a nearby
property through ventilators that resulted in the death of three children and foetus in a
pregnant woman. It was held by the court that it was a clear-cut case of negligence.

c) Trespass

It is an unlawful interference with another’s possession of property. The primary ingredient to

establish a case of trespass is that there should be an intentional invasion of another’s
physical possession of property. Thus, two primary ingredients to establish a case of trespass
are:

i.) There should be intentional interference.

ii.) Such interference should be direct in nature

d) Strict Liability

The concept of strict liability started from the case of Rylands v. Fletcher14, "the person who,
for his own purposes, brings on his land and collects and keeps there anything likely to do
mischief, if it escapes, must keep it in at his own peril and if he does not do so, is prima facie
answerable for all the damage which is the natural consequence of its escape"15. The
exceptions to the rule of strict liability are as follows:

i.) Act of God

ii.) Act committed by a third party

iii.) Any fault committed by plaintiff himself

iv.) An act committed after obtaining expressed or implied consent of the plaintiff

v.) Natural use of land by the defendant

The locus classicus vis-à-vis strict liability in Indian setting is M C Mehta v. Union of
India16, popularly known as Oleum Gas Leak Case. In this case, the Hon’ble Supreme Court
observed that if a hazardous or inherently dangerous activity is being carried out in any
premises and in case of a release of such toxic substance any damage is caused, such
enterprise is strictly and absolutely liable for all the damages arising thereto, and any of the
exceptions listed out above are not applicable as a defense in a case of strict liability. In
addition to this, the court also held in the Union Carbide Corporation v. Union of India17 that
the compensation has to be directly proportional to magnitude and capacity of the enterprise
because such compensation needs to have a deterrent effect.

ENVIRONMENT LAW AND LAW OF CRIMES

There are specific penal provisions in various legislations for the protection of environment.
Chapter XIV of the Indian Penal Code (hereinafter referred as IPC), containing section 268 to
294-A, deals with offences relating to public health, safety etc. The main object of these
provisions is to protect the public health, safety and convenience by rendering those act\s
punishable which make the environment polluted and dangerous to the life of an individual.
Section 268 of the Indian Penal Code, 1860, defines the term public nuisance and section 290
of the IPC makes public nuisance punishable. Thus, under these provisions if any act or
omission causing injury to any person by polluting the environment takes place, the same can
be subjected to prosecution. Noise pollution is also punishable under Section 268 of IPC.

In K Ramkrishnan v. State of Kerala.18, the court held that smoking in public place comes
under the category of public nuisance. It is punishable under section 290 of Indian Penal
Code.

Also, in Murli S. Deora v. Union of India19, the Supreme Court held that under Article 21,
smoking in public place is a violation of fundamental right of those who don’t smoke.

Sections 269 to 271 deal with negligent acts which are likely to spread infection of diseases
dangerous to the life of people. These acts are punishable under sections 269 to 271. The
punishment provided u/s 269 and 271 is imprisonment up to six months or fine or both.
Section 277 can be used for preventing the water pollution. a) As regards to water pollution
section 277 requires: –

(i) There must be a voluntary corruption or fouling waters.

(ii) The water must be of a public spring or reservoir.

(iii) The water must be rendered less fit for the purpose for which it is ordinarily used.

b) Fouling of the water of river running in a continuous stream is not an offence under section
277 of IPC. But yet it may be an offence under section 290, if evidence shows that the act
was such as to cause common injury or danger to the public. Under section 277 punishment
of imprisonment is up to three months or a fine up to 500 Rupees or both. Apart from these,
under section 426, 430, 431 and 432 of IPC, pollution caused by mischief is also punishable.

REMEDIES OF ENVIRONMENTAL PROTECTION IN CRPC

The provisions of Chapter X of the Criminal Procedure Code of 1973 provide effective,
speedy and preventive remedies for public nuisances cases including insanitary conditions,
air, water and noise pollution. It contains provisions for enforcement of various provisions of
the substantive law. Section 133 of the Criminal Procedure Code provides that a district
magistrate or sub divisional magistrate or any other executive magistrate specially
empowered on this behalf by the State government can make a conditional order to remove
such nuisance, and if the nuisance maker objects to do so, the order will be made absolute.

a) The remedy under section 133 of Cr. P.C. has several advantages that should lead to
its choice in seeking to prevent environmental damage. Any person can simply complain to
an executive magistrate to set it in motion keeping in mind the mandatory nature that has
been read into section 133.

b) It is also comparatively speedier and when evidence is taken under section 138 it is to
be taken as in summons case which provided for trial in a summary manner.

Section 144 of the Criminal Procedure Code confers powers on an executive magistrate to
deal with emergent situations by imposing restriction on the personal liberties of individuals,
whether in a specific locality or in a town itself, where the situation has the potential to cause
unrest or danger to peace and tranquility in such an area, due to certain disputes.In addition s.
144 of Cr. P.C provides for situations of emergency where orders can be passed exp-parte,
without giving notice etc. The magistrate has wide powers under s.133 to stop or remove the
nuisance even he can pass orders requiring public bodies to perform their mandate.