M.C Mehta v. Union of India
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This article is written by Shruti Goel, a 5th-year student of B.L.S LLB in Government Law College, Mumbai. This article is about the Right to Clean Environment.

Introduction

“Both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights, the right to life itself.”

United Nations, Stockholm, 1972

For leading a quality life a clean and a healthy environment is indispensable. A person will remain healthy only if he is provided with fresh air to breathe, clean water to drink and other basic requirements. So in order to live a dignified and healthy life it is important for a person to be surrounded by a clean environment. Thus, the right of the people to live in a clean and healthy environment is a basic human right, fundamental to live a decent life, the violation of which will be considered a violation of basic right to life.

The concept of protection of environment and its preservation can be traced back in our Vedas where references of ecological balance, environmental protection and other related topics are found to be made. But the advent of innovations like thermal plants, factories, automobiles, etc has lead to environmental deterioration the aftereffects of which are global warming, climate change, waste disposal, deforestation etc. Many people do not have clean air to breathe or clean water to drink or proper sanitation facilities due to increasing pollution and unbothered attitudes of the government. Almost all of these are the result of using natural resources in an unsustainable manner. Society’s oblivious behaviour towards environmental preservation has posed a severe problem because not only the present but also the future generations are going to be affected, if no steps are taken immediately. 

In the past several decades, there is a momentous shift in the international environmental concerns. The call for environmental protection and preservation has brought international recognition of the right to clean and healthy environment. For effective implementation of this notion and to create awareness globally, international organisations and communities have conducted numerous conferences and established various international instruments, resolutions and global and regional agencies. Around 200 treaties are registered under United Nations Environment Protection Programme and in total there are approx 900 bi-lateral and multilateral treaties.

International efforts

Stockholm Conference in 1972 was the first United Nations conference on Human Rights (UNCHE) which focussed on the issue of international environmental politics. This conference marked the beginning of international efforts towards the protection of ecosystem and placed it on the agenda of international policy and law. The concepts and ideas of almost every international conferences and treaties today have some snippets of the concepts and ideas discussed in this conference. Its key features were:

  • It linked environmental protection with sustainable development.
  • The meeting produced the Declaration of Human Rights and an action plan.
  • The Declaration contained 26 principles which are considered the foundation for modern international environmental law.
  • It facilitated the idea of International Environmental organisations both regionally and globally. 
  • It marked the development of United Nations Environment Programme (UNEP).
  • The Declaration stated that every human has a right to clean and healthy environment.

In 1983, the United Nations established World Commission on Environment and Development (WCED) also known as the Brundtland Commission to unite the countries all over the world for achievement of the common goal of sustainable development.

  • The outcome of the commission was the publication which was released in 1987 known as the Brundtland report titled ‘Our Common Future’.

Brundtland report laid the foundation for Rio de Janeiro Conference in 1992, also known as the ’Earth Summit’ which led to the establishment of the UN Commission on Sustainable Development.

  • The international community agreed to a plan of action for sustainable development in the 21st Century known as ‘Agenda 21’.
  •  It lead to the establishment of non-legally binding document on conservation and sustainable development of forests which is known as ‘forest principles’.
  • One important achievement of the conference was the agreement on Climate Change convention which ultimately led to the Kyoto Protocol and the Paris Agreement.

As a follow up to 1992 conference, Rio +5 also known as the Earth Summit 1997 was held in NewYork which appraised the status of Agenda 21.

Rio +10 was held in Johannesburg in 2002 to affirm the UN’s commitment to Agenda 21 and to establish Millenium Development goals. 

Rio +20 which was held in Brazil in 2012 was a 20 year follow-up of 2012 submit. The result of the conference was a non-binding document known as ‘The Future We Want’ where the heads of 192 countries renewed their political commitment to sustainable development.

All these conferences have, to a large extent shaped today’s international environmental law which is governed by certain general principles and bilateral and multilateral treaties.

Indian laws dealing with environmental issues

Environmental policy : Pre Stockholm period(prior to 1972)

During this period, legislation mainly focussed on infrastructural development because of which the need for environmental policy was overlooked. Certain laws were there for forest protection, unplanned town growth and preservation of mines and minerals. 

It was made punishable to kill, capture, sell or buy any wild bird and animal mentioned in its schedule.

It developed the framework and procedure for setting up and protection of reserved forest, protected forests and village forests.

It stressed upon the treatment of harmful gasses, liquid effluents and solid waste generated during the manufacturing process before its final disposal to decrease its adverse effects on the environment. 

The Union took under its control the regulation of mines and development of minerals to avoid any misuse of this wealth of nature.

Environmental policy : Post Stockholm period(after 1972) 

Stockholm Conference in 1972 has influenced to a large extent the framework of environmental policies in India. After the Stockholm Conference, the National Council for Environmental Policy and Planning was set up in 1972 within the Department of Science and Technology to establish a regulatory body to look after the environment-related issues. This Council evolved into a full-fledged Ministry of Environment and Forests (MoEF) in 1985. 

The effect of the Conference was such that it lead to the amendment of the Constitution to include the principle of environmental protection and preservation.

Constitutional provisions

The Constitution of India, 1950 didn’t include any provision for environmental protection or preservation. However the Constitution (Forty-second Amendment) Act, 1976 introduced Article 48-A and 51A (g) which conferred constitutional status to environmental protection.

Directive principles 

This article says: “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”. Though directive principles are not enforceable in the Courts ,the State has to comply with its provisions when creating laws.

An attempt has also been made to provide for the right to a healthy environment to its citizens by Article 47 which states that the “State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties.”

Fundamental duties

It is a duty of every citizen to protect and preserve the environment under Article 51-A(g) which says that “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.”

Fundamental rights

The provision of Article 19 (1) of the Constitution which deals with freedom of speech and expression has been used by the Supreme Court to approach the problem of noise pollution. It has been stated that right to speech and expression doesn’t include right to use amplifiers or loudspeakers. Such right cannot be used so as to cause problems for others.

Article 21 of the Constitution deals with Protection of life and personal liberty which states that ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’. It is a negative duty of the State to not to do anything which deprives a person of his life or his personal liberty. To safeguard this right and other fundamental rights Article 32 of the Constitution empowers the Supreme Court to move whenever there is any violation of Fundamental Rights. Although the right to a clean environment was not explicitly recognised by the Constitution, it has been held to be implicit in Right to life under Article 21 by the judiciary through its pronouncements. Courts have given widest connotation to Article 21, it was argued that right to life doesn’t mean merely ‘animal existence’ but a life with ‘human dignity’. It was held that right to life to incorporate all those rights that are essential and basic for the enjoyment of the standard of life, like the right to shelter, right to food, etc. free from environmental pollution and other environmental hazards.

Article 32 and Article 226 of the constitution has been used time and again to raise the issue of environmental protection through Public Interest Litigation (PIL).

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Environment protection laws

The Stockholm Conference of 1972 has largely influenced the environmental policy making in India. Several important legislation has taken place after that. Following Acts were produced to tackle the problem of environment pollution.

The Water (Prevention and Control of Pollution) Act,1974

  • The aim of the Act is to maintain wholesomeness of the water of the country and to promote cleanliness of streams and rivers.
  • It led to the establishment of Central Pollution Control Board (CPCB) and State Pollution Control Board (SPCB).
  • It prohibits the discharge of effluents into the water bodies beyond a certain level.
  • It was last amended in 2003.

The Air (Prevention and Control of Pollution) Act, 1981

  • It provides for prevention, control and abatement of air pollution.
  • The boards created by the ‘Water Act’ were entrusted with the responsibility to implement the provisions of this Act also.
  • It empowers the State Government, after consultation with the SPCBs, to declare any area or areas within the Sate as air pollution control area or areas.
  • Under the Act, establishing or operating any industrial plant in the pollution control area requires consent from SPCBs.

The Environment (Protection) Act, 1986

  • This Act was a result of the unfortunate Bhopal Gas tragedy in 1984.
  • It is considered as an umbrella legislation to fill the lacuna of the existing legislation and to help CPCBs and SPCBs coordinate their activities under various legislations.
  • The Act empowers the Centre to take all such measures as it deems necessary by setting standards for emissions and discharges of pollution in the atmosphere by any person carrying on an industry or activity; regulating the location of industries; management of hazardous wastes, and protection of public health and welfare.

The National Green Tribunal Act, 2010

  • It led to the establishment of National Green Tribunal (NGT) for speedy disposal of cases relating to environment protection and preservation.
  • The Act envisages establishment of NGT in order to deal with all environmental laws relating to air and water pollution, the Environment Protection Act, the Forest Conservation Act and the Biodiversity Act as have been set out in Schedule I of the NGT Act.

Certain policies were also created to achieve the aim of environmental protection. Some of them are:

  • National Environment Policy, 2004
  • Marine fishing Policy, 2004
  • National Environment Policy, 2006
  • 11th 5 Year Plan (2007 -2012)
  • National Wetland Conservation Programme

Penal provisions

Under Indian Penal Code, 1860 there are certain provisions defining various crimes relating to public nuisance. 

Public nuisance is defined under Section 268 of IPC.

Sections 269 to Section 271 of the IPC deals with negligent acts which are likely to spread infection of disease dangerous to the life of people. These acts are punishable under the said sections.

Section 277 of IPC relates to water pollution. It makes fouling water of public spring or reservoir punishable with imprisonment or fine or both.

Section 278 of IPC relates to air pollution. It states that whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way, shall be punished with fine which may extend to five hundred rupees.

Section 290 of IPC makes public nuisance punishable and prescribes punishment for the same.

Section 133 of Criminal Procedure Code, 1973 empowers the Magistrate to take immediate actions for removal of any public nuisance that might have been reported to it by the police after considering any evidence as it thinks fit.

Role of Judiciary in evolving environmental laws

Judiciary has played a really important role in the protection of the environment. The timeline of past few decades which is filled with landmark judgements is evident of the role played by judiciary by giving wide interpretation to the Fundamental rights of the individuals of this country. One of the major developments was the introduction of Public Interest Litigation (PIL). Supreme Court realised that the vast majority of our country is unable to approach court because of the rule of locus standi which means only the party aggrieved can approach the court. But in the 1980s the judiciary relaxed this rule which allowed every citizen whose interest has been affected in some way or the other to approach the court. PIL got its constitutional sanction in the 42nd Amendment of the Constitution. PIL proved to be a game-changer, particularly in the field of environmental cases as it expanded the horizon of social justice. It encouraged individuals, NGOs, organisations affected by any particular activity or project to approach court for the interest of society as a whole without paying any court fees. 

There are numbers of landmark judgments which clearly highlights the active role played by the judiciary in environmental protection. Some of these are as follows:

It was one of the first cases which contributed to the expansion of horizons of environmental protection. In this case a petition was filed by the residents of a municipality in Ratlam alleging that the municipality is not constructing proper drains resulting in stench and stink caused by the excretion by nearby slum-dwellers. It was stated by Supreme Court that Right to life includes Right to a wholesome environment and the residents have the right to exercise it against State. It acknowledged the effects on poor of deteriorating environment and compelled the municipality to build proper sanitation and drainage.

In 1987, a petition was filed by Rural Litigation and Entitlement Kendra on behalf of Doon valley residents to stop the quarrying of limestone in the Mussorie valley. It was argued that these quarrying activities are disturbing the ecological and environmental balance in the valley. SC ordered to stop the quarrying activities in the valley which was later declared ecologically fragile area under the Environment Protection Act.

Recognising that right to health is a part of the right to live under Art. 21, the Kerala High Court has observed that the right to clean water and air are attributes of the right to life.

Evolution of principles by Indian Judiciary

Judiciary has taken the guidance of certain principles from International environmental law to help them decide disputes in environmental cases. These principles are:

Inter-generational Equity

  • According to this principle, the State is obliged to conserve and use environment and its natural resources for the benefit of present as well as future generations. It states that every generation holds Earth in common, therefore its resources should be used judicially and for the common benefit of all.
  • It is the foundation of sustainable development.
  • Right to a clean environment is not only an individual right but a collective right available to both present and future generations equally.
  • G. Sundarrajan v. UOI 2013

It was stated by SC that Sustainable Development and CSR are inseparable twins, integrated into the principles of Inter-Generational Equity which is not merely human-centric, but also eco-centric. It a duty of company to take into consideration the outcomes of their thermal projects on environment at present and its aftereffects on the future generations.

 Polluter Pays Principle

  • It was first introduced in 1972 by the Organization for Economic Cooperation and Development (OECD) Guiding Principles concerning International Economic Aspects of Environmental policies.
  • It states that the polluter should bear the cost of damage caused by it to the natural environment.
  • Vellore Citizens’ Welfare Forum v.. Union of India 1996

Court interpreted the principle of Polluter Pays as an absolute liability of the polluter, not only to compensate the victims for the hurt caused to them but also to pay costs for the restoration of natural environment damaged by the activities of the polluter.

Precautionary Principle

  • The precautionary principle was adopted in the Rio Declaration, 1992 (Principle 15).
  • It states that even in the absence of scientific evidence, measures must be taken to anticipate and prevent the causes of environmental degradation. It is the social responsibility of the State to protect the public from any plausible risk.
  • AP Control Pollution Board vs. Prof M V Nayadu 1999

Court held that it is better to take precautions to protect the environment from harm than to wait for the issue to materialize. It is important to take steps even if there is no scientific evidence of the potential harm to the environment.

Public trust Doctrine

  • It states that resources like water, air, sea and forest have a great importance to the general public that it would be unjustified to make it the subject of private ownership. It poses a duty on the State to protect such resources for the benefit of all and not to permit any commercial use of it. 
  • Public at large is the beneficiary and State is the trustee who is under a legal duty to protect these resources.
  • M C Mehta v. Kamal Nath 1997

In this case an attempt was made to divert the flow of the river to support the commercial activities of a motel. It was held that the State is the trustee of all natural resources which cannot be permitted to be used for commercial purposes and can only be used for the benefit of public as a whole.

Sustainable Development Principle

The Supreme Court invalidated a forest-based industry, recognizing the principle of intergenerational equity as being central to the conservation of forest resources and sustainable development.

M C Mehta v. Union of India 1986

The Shriram gas leak case was a landmark judgement in the field of environmental activism. Supreme court in this case tried to reinstate the faith of the public in the machinery of justice by rectifying the mistake done a year ago in Bhopal gas tragedy case.

Facts of the case

  • Shriram Food and Fertilizer Industry, a subsidiary of Delhi Cloth Mills Limited, was a privately owned company engaged in the manufacturing of caustic chlorine and oleum gas.
  • A writ petition was filed by social activist lawyer M.C Mehta for the closure of Shriram Food and Fertilizer Industry as it was situated in a very densely populated area of Delhi.
  • While the petition was still pending ,on December 4th and 6th 1985, a major leakage of petroleum gas took place from one of the units of Shriram Food and Fertilizers Limited in the heart of the capital city of Delhi which resulted in one death and several health issues.
  • Two orders were issued to shut down the plant on the 7th and 24th of December respectively under the Factories Act (1948) by the Inspector of Factories and the Assistant Commissioner of Factories.
  • Shriram responded by filing writ petitions of itself (No. 26 of 1986) to nullify the two orders and interim opening of its caustic chlorine plant manufacturing; glycerine, soap, hard oil, etc.
  • On behalf of the gas leak victims the Delhi Legal aid and Advice Board and the Delhi Bar Association filed for compensation along with the original petition of M.C. Mehta and was also pleaded to not allow the closed establishment to restart.

Issues raised

The case was first heard by three judges bench who, in their judgement permitted the reopening of the closed establishment on certain conditions. Considering that the issues are of constitutional importance the case was then referred to a larger bench of five judges.

Issue 1

Whether Shriram should be allowed to restart its operation of manufacturing caustic chlorine and oleum which is potentially a health hazard and whether it would be a violation of Article 21 ?

It was argued on behalf of the petitioner that Shriram Industry should be ordered to close permanently as it posed a risk to life and health of the community settled in the close vicinity of the industry as it would be a violation of the fundamental right guaranteed under Article 21. Though Right to health and clean environment is not explicitly mentioned in the Constitution but it is inherent under the Right to life. The directive principles under the Constitution provides for improvement of healthcare and how State should take measures to improve the standard of health and lifestyle. Though these are not enforceable in court, it is the duty of State to act in accordance with these guidance.

Issue 2

What is the measure of liability of an enterprise which is engaged in the manufacturing of a hazardous or inherently dangerous substance which poses potential risk to the health of community at large?

It was argued that the nature of activity undertaken by the said industry was dangerous and potentially risky to the health of community at large. It was stated that the company should have an absolute and non-delegable liability to ensure that no harm is caused to the community because of the dangerous nature of activity they have undertaken and to make them accountable for that.

Issue 3

Whether Shriram Industry is a ‘state’ and comes under the ambit of Article 12 so as to hold it liable under Article 21?

It was held that the manufacturing of chemicals by the industry was of public interest according to state industrial policy which was originally intended to be carried out by the Government but instead Shriram was permitted to carry out such activities under the control of government according to their rules and regulations. It was held that activities which are integral for the functioning of the society should be necessarily considered governmental functions.

Issue 4

Can compensation from Shriram Industries be claimed under Article 21?

It was argued by the petitioner that compensation should be paid to all the victims as all the applications for compensation had right to life as their basis which also guarantees right to health and clean environment. It was the absolute duty of the Shriram Industry to take safety measures so as not to cause harm or pose any risk to the health of the community. 

But later Court decided not to adjudicate on this matter.

Judgement

  • Judgement was delivered on 19th December 1986.
  • Supreme Court decided not to adjudicate on the matter whether compensation should be paid by Shriram Industries under Article 21.
  • They directed Delhi Legal Aid and Advise Board to file a comprehensive action on behalf of all those who claimed to have suffered from this incident before an appropriate court within two months from the date of judgement.
  • It also stated that the amount of compensation should be equal to the magnitude of the harm caused to the community and should also be correlated to the capacity of the Shriram industry so as to have a deterrent effect.
  • The court also instructed Shriram to comply with all the recommendations of the Nilay Choudhary and Manmohan Singh Committees and issued a strict notice that failure to do so will result in the immediate closure of the plant.

Analysis & Conclusion

The judgement of the case proved to be significant for the enviro-legal cases to come as it produced several important stances which are celebrated even today. The Supreme Court took a proactive role in the disposal of the case and made sure that the Fundamental rights of the people are not violated, by giving wide connotation to Right to life under Article 21. It was important for the Court to address the concerns raised after the judgement of Bhopal Gas tragedy, which came just a year ago, to reinstate their faith of the country in the system of judiciary. It was felt necessary to have such a strong judgement to ensure the public that industries will be held absolutely liable for their actions and will be punished for jeopardizing the life of the community.


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