Judiciary in modern-day India is the sharp-eyed protector of our democracy. Our democracy has been built upon a foundation with the Constitution at its centre considers it nothing less than a holy text. The Constitution has always been a caretaker of our environment with articles dedicated to its protection and preservation thus paying Mother Nature its homage. Provisions of the Constitution of India under Article 21 (Protection of life and personal liberty), Article 48-A (Protection and improvement of the environment) and 51-A(g) (To protect and improve the natural environment) are imminent examples to show the above character.
Considering all this and the present environmental issues it will not be wrong to say that these environmental variances being a threat to our Mother Nature have created striking case laws which in turn has helped in the creation of legislation solely dedicated to the protection of the environment in India. This way major impetus towards environment preservation has started from the side of Indian legislators and judiciary. Even though our legislators have been enacting laws for environmental preservation, it is our judiciary which lays down the basic principles on which Environmental Laws are based upon, thereby making it the defender of the environment. This article will discuss the principles on which the modern-day International and Indian Environmental Law are based upon.
Historical evolution of Environment Law Jurisprudence
Throughout history, governments have passed laws to protect the environment. The first instance of legislation for environment preservation was noted in AD 80 in Rome where legislation was passed to protect the city’s supply of clean water. The next recorded legislation was in the 14th century England where burning of coal and the disposal of waste into waterways were both prohibited. In the 19th century, during the Industrial Revolution, the British government passed regulations to implement methods to reduce the effects of coal-burning and chemical manufacture on the environment.
With the advent of the 20th century major conventions like the Convention for the Protection of Birds Useful to Agriculture of 1902, Convention for the Preservation and Protection of Fur Seals in 1911, and many more were concluded by different nations to protect and preserve the environment and its various assets.
It was the United States in the 1970s which led the founding stone for modern-day Environmental laws by passing an extraordinary number of legislations addressing solid-waste disposal, air and water pollution, and the protection of endangered species. In 1967 Japan enacted the world’s first basic Law for Environmental Pollution Control which was known as the Minamata Protocol.
In the 1971, 34 countries adopted the Convention on Wetlands of International Importance Especially as Waterfowl Habitat, also known as the Ramsar Convention. As of now it has nearly 100 parties and requires all the countries to designate at least one protected wetland area to maintain the ecological equilibrium.
In the United Nations Conference on the Human Environment, in 1972, the UN established the United Nations Environment Programme (UNEP) which oversees many modern-day agreements and conventions.
During the 1980s the world for the very first time witnessed the “transboundary effects” of environmental pollution in the case of the Chernobyl Disaster. This incident shocked the worlds and showed the world, the bane of nuclear harnessing. Consequently, transnational laws and regulations regarding environment preservation came into force which was usually designed to be flexible enough to accommodate changes in scientific understanding and technological capacity of different nations. Certain eminent transnational conventions are the Vienna Convention for the Protection of the Ozone Layer (1985), the Framework Convention on Climate Change, the Global Warming Convention, the United Nations Conference on Environment and Development (also know as the Earth Summit) and the list goes on.
In 1997 the Framework Convention on Climate Change adopted the Kyōto Protocol, which featured binding emission targets for developed countries. It asks developed nations to regulate their emission norms such that a standard could be established. Thus, was the evolution of Environment Law on a global level.
In India, the concept of Environment Preservation is as old as the nation itself. Since the beginning of our civilization men and women have constantly strived to protect and preserve the Jagat Janani, Mother Earth. In every religious text, one can refer to, protection of the environment has been made a distinct lesson and this culture of ours even reflects in modern-day India. India is the member of almost all the conventions, declarations, Conferences and Protocols dedicated to the protection of Environment Law. Some of them are as follows the Stockholm Declaration, United Nation Environment Program, Kyoto Protocol etc. Indian Judiciary and Legislation is striving to build good legislations backed up by judicial precedent so that a strong foundation for Environmental Law Jurisprudence could be construed. This way our India is on equal footing with other developed nations in the field of Environmental Law.
In M.C. Mehta v. Union of India[i], Apex Court laying the foundation of Indian environmental jurisprudence held that there is a need to be a synthesis of environment and economic imperative for the greater good of the people. Industrialisation should not mean genocide but human good.
Principles of Environmental Law
Environmental Justice is all about the sacredness of Mother Nature. This sacredness can only be maintained if pure air and clean water which are the basic demands of all men could be preserved. But with the increase in the global pollution level and the deterioration of these basic amenities, this becomes difficult. This again leads to the violation of a human’s fundamental right to receive the same. It is during these hours of crisis where Environmental law comes into play. For every law, there are certain jurisprudential principles on which the law is based upon. Hereunder we would discuss the principles on which Indian Environmental Law is based upon. Carrying much of its jurisprudence from laws all around the world the principles are as follows:
The principle of sustainable development received an impetus with the adoption of Stockholm Declaration in 1972, World Charter for Nature 1982, Report of the World Commission on Environment and Development (Brundtland Report), Our Common Future of 1987, Caring for the Earth.
Brundtland Report defines Sustainable Development as a development that is in accordance to the needs of the present generation without deterring the resources of future generations. It rejects the old notion that when there is a development environment would be affected and therefore emphasizes that both are complementary to each other.
To simply put, it is a process to sustain development for generations to come by improving the quality of human life while harmonizing it with nature to maintain an ecosystem at equilibrium. It aims at improving the quality of human existence such that one can enjoy long, healthy and fulfilling lives without deteriorating the natural environment.
In India, this concept was first dealt in the case of Vellore Citizens Welfare Forum v. Union of India[ii] wherein the Hon’ble Supreme Court while discussing development and ecology, observed that the answer for an equilibrium between development and ecology, Sustainable Development is the only key. While exhaustively discussing this principle, court held that this is one of the founding principles of Environmental Law and other principles like Polluter Pays and Precautionary Principle are the offshoot of the same.
Then again in M.C. Mehta v. Union of India[iii], the Hon’ble Supreme Court while discussing the pollution of river Ganga flowing in Kanpur by sewage and trade effluents of tanneries directed the stoppage of the sewage effluent and installation of treatment plants by implementing the same principle.
The Precautionary Principle came into inception in 1992 in the Rio Declaration on Environment and Development. Paragraph 7 of the Bergen Ministerial Declaration, 1990 clearly states that the precautionary principle is the basis for sustainable development. It also defines it as “to anticipate, prevent and attack the causes of environmental degradation”.
In Vellore Citizens Welfare Forum v. Union of India[iv], Hon’ble Supreme Court observed that the Precautionary Principle means Environmental Measures to anticipate, prevent and attack the degradation. The definition here was a clear adoption of the Bergen Declaration and also cleared that the “Onus of Proof” is on the actor or the developer to show that his actions are not harmful to nature.
Calcutta High Court in Burn & Company Labourers Co-operative Credit Society Ltd v. Joydeb Datta[v] held that this principle is a part of the doctrine of sustainable development in environmental jurisprudence.
In AP Pollution Control Board v. Prof. MV Naydu[vi], Hon’ble Supreme Court comprehensively reviewed the precautionary principle and noted that uncertainty of scientific knowledge has led to the creation of new theories one of which is the precautionary principle and therefore with its application no further unwarranted actions should be left unseen.
Doctrine of Proportionality of Risk
This principle essentially means that if a project is beneficial for the larger group of people inconvenience to a smaller number of people could be accepted. Thus according to this principle inconvenience of some could be bypassed for the cause of the society.
In Narmada Bachao Andolan v. Union of India[vii], the Apex Court observed that in development matters, the risk of harm to the environment or human health is to be decided in accordance with the reasonable person test. This way welfare of the people at large has to be the concern of a responsible government.
Then again, the Apex Court in T.N. Godavarman Thirumalpad (through K.M. Chinnapa) v. Union of India and Others[viii] observed that where a commercial enterprise would be of greater use for the people, the difficulty of a small number of people has to be bypassed.
Polluter Pays Principle
The Polluter Pays Principle was promoted by the Organization of Economic Co-Operation and Development during the 1970s. The OECD Principles defines it as ” allocating costs of pollution prevention and control measures“. To simply put the Polluter Pays Principle demands that the polluting party pays for the damage done to the natural environment. It essentially asks that the financial cost of preventing the damage caused by the pollution should lie with the person who has caused it.
It clearly states that it is not the responsibility of government to meet the costs involved in either prevention of environmental damage, or in carrying out remedial action because this would shift the financial burden of the pollution incident to the taxpayer.
In Indian Council for Enviro-Legal Action v. Union of India[ix] the Apex Court held that the polluting industries are absolutely liable to compensate for the harm caused by them to the affected area. Enunciating the polluter pays principle the court observed that the liability extends not only to compensate the victim of the pollution but also the cost of restoring environmental degradation. This principle was again used in the case of Union Carbide Corporation v. Union of India[x] to compensate the victims of the Bhopal Gas Tragedy.
Public Trust Doctrine
The public trust doctrine states that certain natural resources like air, sea, forests etc. have great importance to the people in a community and cannot be made private ownership, therefore they should be made freely available to everyone. It enjoins the government duty to protect the resources for the general public and not permit their privatization or commercialization.
With its root in the Roman law, the public trust doctrine states that common properties such as rivers, forests etc. are only held by the Government as a protector of the same on behalf of the common citizen and are either owned by no one (res nullious) or by everyone (res communious).
The Apex Court in M.C. Mehta v. Kamal Nath[xi] while considering the public trust doctrine held that certain common properties are held by the Government in trusteeship for the use of the general public. These resources being a gift of nature should be made freely available to everyone and should not be made private property.
Further in M.C. Mehta v. Union of India[xii], the Apex Court held that the Public Trust Doctrine imposes a duty on the government to protect the resources and not to permit their privatisation.
Public Liability Insurance
In January 1991, the Indian Parliament enacted the Public Liability Insurance Act, giving statutory recognition to ‘no-fault’ liability in small measure. It was enacted after Bhopal’s Oleum leak case to provide for immediate relief to the victims of industrial accidents. This laid the foundation of a new principle in Environmental Jurisprudence under which victims of an industrial accident become entitled to compensation at prescribed levels, without proof of negligence. Under this statute the maximum compensation is limited to Rs, 25,000 and claims for larger damages are expressly reserved. The statute also requires all hazardous enterprises to obtain sufficient insurance cover before handling any hazardous substance for covering any liability that may arise during an accident involving these substances.
The rationale behind this principle is that the growth of hazardous industries in India has made people prone to fatal industrial accidents. Many a time the employer for one or another reason elopes from compensating people in accidents thereby leaving them remedy-less. Therefore, this principle having a close relation to the Polluter Pays Principle comes to the aid of such victims by providing them with some compensation even in case of ‘no-fault’. Such liability insurance, not only safeguards the interests of the victims but also enables the industry to discharge its liability to settle large claims arising out of major accidents.
The Public Liability Insurance Act 1991, not only prescribes maximum compensation for injury or death but also limits compensation in respect of damage to private property to Rs. 6000. It is to be noted here that accidents because of war or radio-activity are excluded from the scope of the Act. The statute also provides for the creation of an Environmental Relief Fund with the additional money collected from the owners of industries to provide for immediate relief to the victims.
In a nutshell, we can concur with all these principles that our Indian Judiciary is very active in cases relating to the environment thereby establishing a jurisprudence of its own. But it is high time now, considering the global threats of major environmental deterrents judicial activism is the need of the hour because even though our legislature is trying to be as advanced as it could be, it is still lagging in filling up the loopholes in the existing legislation. It is also to be noted here that as observed by our Hon’ble Supreme Court environment and development are two facets of the same paradigm. If one is altered surely the other too would be affected. Therefore, it becomes our responsibility to make them work in consonance with one another. It is indeed correct that a perfect equilibrium cannot be achieved between the two but if we strive, we could surely be close to the ideal type of that equilibrium and that would be a win-win situation for us. It is only when we can maintain such kind of condition can we sustain this nature of ours for the generation to come.
Edited by Shikhar Shrivastava
Approved & Published – Sakshi Raje
[i]M.C. Mehta v. Union of India, AIR 1987 SC 965.
[ii]Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715.
[iii]M.C. Mehta v. Union of India, (1987) 4 SCC 463.
[iv] Supra note 2.
[v]Burn & Company Labourers Co-operative Credit Society Ltd v. Joydeb Datta, AIR 2006 Cal. 74.
[vi]AP Pollution Control Board v. Prof. MV Naydu, AIR 1999 SC 812.
[vii]Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664.
[viii]T.N. Godavarman Thirumalpad (through K.M. Chinnapa) v. Union of India and Others, (2002) 10 SCC 142.
[ix]Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 281.
[x]Union Carbide Corporation v. Union of India, (1991) 4 SCC 484.
[xi] M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388.
[xii]M.C. Mehta v. Union of India, (1997) 1 SCC 388.