The problem of environmental protection is as old as the evolution of Homo sapiens on this planet. With the development of science and as there is advancement in technology came tremendous changes in the human environment. With high levels of pollution and rampant spread of industrial pollution the human race has seen colossal degradation in the environment. These have not only affected humans but also had a pernicious effect on flora and fauna. It, therefore, became necessary to cope with changing conditions and values to form laws to regulate human behavior. The Environment Protection Act 1986 is an umbrella legislation that has provided a myriad number of rules and regulations. The Environment Act, 1986 defines the expression “environment” as one which includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other creatures, plants, micro-organisms and property[1]. The right to live in a clean and healthy environment is not of recent origin; it had been given long back by the higher judiciary. Indians have not only provisions dealing with the environment in the constitution but also in Law of Torts, Indian Penal Code, Civil Procedure Code, Criminal Procedure Code etc.
Class Action and Public Interest Litigation
When more than one person has a common interest, one or more of such persons can file a suit is incorporated in the Code of Civil Procedure 1908[2]. The best example of class action is Bhopal gas leak litigation[3]. In most cases the progress was made with the aid of PIL. PIL has dealt with a plethora of issues related to the environment. It includes compensation to animals[4] , eco-tourism, privileges of fishermen and tribal people etc. In some cases letters and newspaper reports also acted as writ petition and judicial action was taken. The power of High Courts under Article 226 to issue directions and power of Supreme Court under Article 32 to issue directions have proved to have a paramount significance in environmental litigation. The Courts have made use of this power to rectify the environmental problems in the best possible manner. Now PIL has come to stay in the field of environmental litigation.
Evolution of Doctrines
The development of certain principles to build up a better regime for the environment is a remarkable achievement of the judicial process in India.
- The Polluter Pays Principle
Using the power in Article 32 , the supreme court had formulated the new liability known as Absolute Liability in MC Mehta v UOI[5] for injury caused by an inherently dangerous and harmful industry. The new remedy, based on the doctrine of absolute liability, was later focused on in the Sludge case[6]. The polluter is accountable for compensating the damage that is done by him. This includes the cost incurred in avoiding the pollution, environmental cost, direct cost to property or people and not just those related to remedying any damage. Absolute liability of hazardous and inherently dangerous industry is a high-water mark of the development of the polluter pays principle. The doctrine is limited in a sense that it can be applied after harm is done, that is at the remedial stage. In MC Mehta v UOI, the apex court held that the compensation that a polluter needs to pay will depend on the magnitude and capacity of the polluting industry. The court wanted to impose deterrence by making such a dictum. The principle doesn’t mean that the polluter will pollute and pay for it.
- Precautionary Principle
The principle follows the approach of being safe rather than being sorry. As per this principle, the burden of proof is shifted on the polluter. The principle stands on the phrase “ Prevention is better than cure”. The polluter needs to take required precautions before any mishap takes place. The Precautionary principle anticipates environmental damage and measures that one needs to take or to choose the least environmentally harmful activity. The principle was applied in MC Mehta V UOI[7], to protect Taj Mahal from air pollution. The court ordered the industry in the vicinity of Taj Mahal to take preventive measures to reduce pollution to protect Taj Mahal. In AP Pollution Control Board V MV Nayudu[8], is considered a landmark case in the growth of precautionary doctrine. Observing that it is better to err on the side of caution and prevent environmental harm, than to run risk of irreversible harm. The onus of proof is on the actor or industrialist or developer to show the actions are environmentally benign.
- Public Trust Doctrine
Another judicial innovation is recognition of public trust doctrine for the protection of natural resources. The Public Trust doctrine rests on the principle that resources such as water, forest and air have paramount importance, that it could amount to private ownership. Every person irrespective of social status has an equal right to access the natural resources . The doctrine puts the onus on the shoulders of the government to protect the resources rather than to permit their usage by industries; those end up with degradation of the environment. Public Trust Doctrine also extends to deep underground soil and water, that those resources belong to the state and the state can take every measure to protect those resources. The Andhra Pradesh High Court decision in MP Rambabu V District Forest Officer[9] points to the proposition that if a person uses his land in such a manner as to pollute the underground water or soil, the state can enforce and prevent contamination even in the absence of a specific law.
- Sustainable Development
Sustainable Development means to meet the needs of the present generation without compromising the needs of future generations. If all industries are directed to close considering the pollution, then it will augment poverty creating havoc. So the pollution should be kept within the prescribed limit. The aim of sustainable development is not only to protect the environment but also ensure a strong, healthy and just society. Sustainable development can bring many benefits in the short, medium and long term. Sustainable development is finding alternative methods of doing things both for the future and the present. Small actions, taken collectively, can add up to real change. The Sustainable Development Goals, also known as Global Goals, were adopted by the United Nations in 2015 as a universal call to action to end poverty, protect the planet, and ensure that by 2030 all people enjoy peace and prosperity. Countries have committed to emphasize advancement. The sustainable development goals are designed to end hunger, poverty, discrimination against women and girls and AIDS. Financial assistance, technological advancement, innovation from all of society is obligatory to attain the sustainable development goals in every context.[10] Apart from natural law’s obligation to protect and preserve the environment, there is also a constitutional obligation on every citizen to improve overhaul and protect the environment including forest, wildlife, rivers and to have benevolence for living creatures.
Procedural Safeguards and Limitations
- Exemplary Damages instead of Fine but only with Procedure established by Law
Does the power granted in Article 32 to award damages to compensate environmental harm be imposed without trial? Supreme Court had imposed fine in MC Mehta V Kamal Nath[11] Case as when the doctrine of public trust was evolved without conducting proper trial. However it was reviewed in MC Mehta V Kamal Nath[12] after three years. The court came to the conclusion that the fine on polluters should be imposed after fair trial. Hence, the court withdrew the notice for the levy of pollution fine. Article 142 of the Constitution cannot be used to build a new edifice by ignoring express provisions dealing with a subject, and to achieve something indirectly which cannot be achieved directly.
- Fairness in Issuing Direction
Courts can issue directions and orders under Environment Protection Act 1986, and in other laws such as Indian penal Code or Criminal Procedure Code leading to closure of industries. But is it fair to close an industry which is running for a long period of time and who has a valid license without an opportunity of being heard? Rule 4(5) of the Environment Protection Rules 1986 dispenses with the opportunity when it is found to be not expedient in view of the likelihood of grave injury to the environment. According to the Karnataka High Court in Brindavan Phosphates Ltd V Karnataka State Pollution Control Board, Bangalore,[13] such action could not be held valid under this provision. Affording an opportunity is a rule; denial an exception. The sub-rule also mandates to state reasons why the opportunity is denied.
- Contempt against Violation of Environment
Dishonoring court orders to protect the environment is frequent and on rise. The reasons behind it could be lack of concern towards not only the environment but the decisions made by the judiciary have no significance in their eyes. Therefore, the judiciary needs to punish the constant violators of the environment using its contempt power. In one of Godavarman cases[14]The Supreme Court initiated contempt proceedings against foreign minister of Maharashtra, chief secretary and principal secretary for granting permission to six plywood units in willful disobedience of the Supreme Court’s order that no permission should be given without the approval of the Central Empowered Committee.
Indian Constitution and Environment
Through the Constitution the onus of protection of the environment was imposed upon the state by Forty Second Amendment Act, 1976. Article 48A and Article 51(A)g specifically deals with preservation of the environment. Article 48 A states that, the state shall endeavor to protect and improve the environment and to safeguard the forest and wildlife of the country and Article 51(A)g states that, it shall be duty of every citizen of India to protect and improve the natural environment including forests lakes and wildlife and to have compassion for living creature.
Protection of Environment under general laws
- Law of Torts
1.Nuisance
The law of torts recognizes two types of nuisance., private nuisance and public nuisance. Private nuisance causes substantial and unreasonable interference with the use and enjoyment of plaintiff property, public nuisance is unreasonable interference with the general right of the public.
2.Negligence
Where there is a failure of the duty to take care and this results in environment pollution, a suit can in a fit case, be filed for the tort of negligence.
3.Rule of strict and absolute liability
In case of strict liability there were several exceptions given by the court such as, an act of god, an act of a third party, the fault of the plaintiff etc. Later, it was realized that, with the increase of chemical based industries in India, more and more hazardous substances are being used and stored. So, the traditional doctrine could not provide adequate relief in some cases due to its manifold exceptions. After the Bhopal Gas Leak Case, the court came up with absolute liability which has no exceptions.
- Indian Penal Code
S 269 to 271 of the IPC provide for punishment for negligent acts which are likely to spread infection and diseases. In cases where pollution is caused by any act which spreads an infectious disease, these provisions can surely be avail of. S277 of the IPC makes it an offense to do any act whereby a person voluntarily fouls the water of a public spring, well or reservoir, rendering it less fit for which it is ordinarily used. This provision can thus be used to prevent water pollution. S278 of IPC, a person is punishable if he voluntarily vitiates the atmosphere of any place so as to make it noxious to the people in general. It is equally an offense to commit any rash or negligent act with regard to any p;oisonous substance (S 284) or with fire or any combustible matter (S 285) or with any explosive substance(S 286), so as to endanger human life or cause hurt or injury to any person.
The provision of S 290 of the IPC has been invoked in the past if any act or omission of a person causes injury to another person by polluting the environment. Similarly S 426 to 432 of the IPC deal with the offense of mischief, if any pollution is caused as a result thereof, these provisions can be usefully invoked in fit cases.
- Code of Criminal Procedure
Section 133 of the Criminal Procedure Code, 1973 is a condition order to remove nuisance. This provision is usually used in urgent cases where public nuisance needs to be removed. Section 133 CRPC is a specific provision that deals with offenses pertaining to public nuisance. However, Section 144 CRPC is a general provision and is used to keep a check on the presence or formation of unlawful assemblies that can be a danger to public tranquility and human life.
[1] Section 2(a), The Environment Protection Act 1986
[2] Code of Civil Procedure,1908,rule 8
[3] Union Carbide Corporation V Union of India, AIR 1988 SC 1531
[4] Animal Welfare Board of India V A Nagaraja, (2014) SCC 547
[5] MC Mehta v UOI, AIR 1986 SC 1086
[6] Indian Council for Enviro-Legal Action V UOI, AIR 1996 SC 1446
[7] MC Mehta V UOI, AIR 1997 SC 734
[8] AP Pollution Control Board V Nayudu, AIR 1999 SC 812
[9] MP Rambabu V District Forest Officer, AIR 2002 AP256
[10] https://www.undp.org/sustainable-development-goals
[11] MC Mhehta V Kamal Nath, (1997) 1 SCC 388
[12] MC Mehta V Kamal Natah, AIR 2000 SC 1997
[13] Brindavan Phosphates V Karnataka State Pollution Control Board, Bangalore, AIR 2003 Kant 476
[14] TN Godawari Thirumulpad V UOI, AIR 2006 SC1774
Author: Areen Shaikh
Juris Centre 