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This article is written by Vishesh Gupta from the Institute of Law, Nirma University, Ahmedabad. This is an exhaustive article on the Indian Environmental laws. It also discusses why Right to Pollution free environment is a fundamental right.

Introduction

The recent gas leaks of Visakhapatnam and Chattisgarh makes us realise the importance of a good and healthy environment which plays a big factor in improving the quality of life. This article discusses the various environmental laws in India, the role of the judiciary in developing the field of environmental laws and why a pollution-free environment is an essential fundamental right.

Development of environment protection in India can be analysed in 2 parts that are- Pre 1972 and post 1972. In the Pre 1972 era, there were no precise and definitive environmental policies and the planning commission did not attempt to develop any policies for environment protection in India. Article 21 was interpreted narrowly and did not include the right to a pollution-free environment. 

However, this changed after the United Nations Conference on the Human Environment, Stockholm, 1972 in which the Declaration on the Human environment was devised. This was the beginning of an environmental movement in not only India but also in the world. 

International Conventions on Environment Protection

There have been multiple international conventions and bilateral/multilateral agreements for environmental protection. However, in this article, only 2 international conventions would be discussed because these 2 conventions have had a direct impact on Indian environmental law.

United Nations Conference on the Human Environment, Stockholm, 1972

This was the first United Nation convention on environmental issues. It is the foundation of environmental law around the whole world. 25 principles were elucidated concerning the environment. The most notable principles were

  1. It recognised human rights as a part of environmental protection and therefore the right to quality environment is a fundamental right of a human. 
  2. Promotion of sustainable development. Non-renewable resources must be used in such a manner as to guard these resources from exhaustion in the future. 
  3. Man has the fundamental duty to protect the wildlife and its habitat. 
  4. States have the duty to protect and preserve the environment and to develop such laws which promote sustainable development. 

The report of the Stockholm Convention is available here.

United Nation Conference on Environment and Development, Rio De Janeiro in 1992

Agenda 21, The Rio Declaration on Environment and Development and Sustainable Management of Forests were adopted at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro, Brazil, 1992.

Agenda 21 is a comprehensive global plan of action to promote sustainable development around the world with the help of many actors like governments, major groups etc. 

An important aspect of this conference was the recommendation of establishing judicial and administrative procedures for quick and efficient disposal of cases relating to environmental issues.

The report of the UNCED, Rio De Janeiro is available here.

Environmental law in India

In India, there are multiple legislations for the protection of the environment. 

However, the umbrella legislation was enacted in 1986 titled The Environment (Protection) Act, 1986 in the wake of the Bhopal Gas Tragedy. For the present article only the Environment (Protection) Act and the National Green Tribunal Act will be substantiated. 

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The Environment (Protection) Act, 1986

This legislation was enacted, according to Article 253 of the Indian Constitution, with the objective of protection and improvement of the environment by implementing the decisions taken at the United Nations Conference on the Human Environment, 1972 Stockholm. 

Central Authority 

Section 3 of the Act prescribes the powers of the Central Government for the purpose of protecting and improving the quality of the environment and preventing and controlling environmental pollution. One of the powers, as mentioned in Section 3(3), is the power to constitute an authority which can perform the functions as mentioned in Section 3(2) and also give directions to individuals or corporations under Section 5. 

Ministry of Environment, Forests and Climate Change

The Central authority prescribed in Section 3(3) is the Ministry of Environment, Forests and Climate Change (MoEFCC). MoEFCC was first established in 1985 with a different name, Ministry of Environment and forest. It is the administrative body of the Central Government for the planning, promoting, coordinating and overseeing the execution of India’s environmental policies and programmes.

Central Pollution Control Board is a statutory authority under MoEFCC entrusted with powers under The Water (Prevention and Control of Pollution) Act, 1974 and The Air (Prevention and Control of Pollution) Act, 1981.

Powers of MoEFCC

Powers of the MoEFCC are prescribed in Section 3(2) of the Act:

  1. Establishing standards for the quality of the environment.
  2. Establishing standards for emission or discharge of environmental pollutants from various sources.
  3. Establishing procedures and safeguards for the prevention of mishappenings which can cause environmental pollution. 
  4. Carrying out investigations.
  5. Inspection of premises, plant, equipment, machinery, manufacturing or other processes. 
  6. Establishment or recognition of environmental laboratories.

Responsibility of an Individual

The Act also includes the responsibilities of a person or a corporation. They have the responsibility to follow the rules made by MoEF. As per Section 9 of the Act, if the discharge of pollutants is in excess of the prescribed standard, the person has the duty to mitigate the damage as much as possible and also to inform the relevant authority about the breach of rules. 

Penalty

Section 15 prescribes the punishment for non-compliance which is imprisonment that may extend till 5 years and/or fine which may extend to one lakh rupees. The penalty can be imposed on individuals, companies and governmental departments. 

As per Section 15(1), if the non-compliance continues, a penalty of additional Rs 5,000 for every day till the non-compliance exists.

If the non-compliance continues till 1 year after the conviction, the offender, under Section 15(2), is punishable for the imprisonment which may extend till 7 years. 

The National Green Tribunal Act, 2010

The National Green Tribunal Act, 2010 was enacted with the purpose of creating a National Green Tribunal for the speedy and efficient disposal of cases related to environmental protection and conservation. This Act was made in accordance with the decisions of the United Nation Conference on Environment and Development held at Rio De Janeiro in 1992 where deliberations were held related to effective access to judicial recourse for environmental issues.

Establishment of the Tribunal

According to Section 3 of the National Green Tribunal Act, the central government has the duty to establish a Tribunal which will have the jurisdiction of issues related to environmental preservation and protection. The Tribunal benches have been divided into 4 zones that are West Zone (Pune), Central Zone (Bhopal), Southern Zone (Chennai) and Kolkata (Eastern Bench). 

Composition of the Tribunal 

As per Section 4, the tribunal shall be consist of: 

  1. Chairperson, who shall be, as per Section 5(1), either a current or retired Judge of the Supreme Court or the current or retired Chief Justice of a High Court. The chairperson shall be appointed by the Central Government on the recommendation of the Chief Justice of India. 
  2. Full-time judicial members, minimum 10 and maximum 25, on the discretion of the Central Government. The judicial members must be active or retired High Court judges.
  3. Expert members, minimum 10 and maximum 25, on the discretion of the Central Government. The qualification of the expert member, as per Section 5(2) are:
  • Degree in Master of Science with either a Doctorate degree or Master of Engineering or Master of Technology + 15 years of practical experience in the relevant areas which includes 5 years of practical experience in the area of environment and forest in a reputed national institution.

OR

  • Administrative experience of 15 years which includes 5 years in the field of environment and forest either under Central/State Government or in a reputed national institution.

Powers of the Tribunal 

As per Section 14(1), only civil cases related to environmental issues are admissible in the Tribunal and the limitation period for filing an application before Tribunal is 6 months.

The tribunal has the power to order under Section 15(1) of the National Green Tribunal Act:

  1. Relief and compensation to the victim to pollution.
  2. Restitution for property damaged or for the damage caused to the environment.

These orders are in addition to the relief paid under the Public Liability Insurance Act, 1991.

Environmental protection under the Indian Constitution 

Right to life under Article 21

History of Indian Judiciary shows that the 1980s was a period where the Indian Judiciary became more liberal and very creative. In the case of Rural Litigation and Entitlement Kendra vs. State of Uttar Pradesh, 1985, the importance of air and water as the most indispensable gift of nature for the preservation of life was discussed. The judges did not expressly discuss Article 48A or Art 21. Still, this case is considered as the start of liberal interpretation of Article 21. 

The Supreme Court in Subhash Kumar v. State of Bihar, 1991 held that Article 21 includes the right to a wholesome environment. They followed the liberal thinking which started in the Rural litigation case and had laid down an expansive interpretation of the word “life” in Article 21 by including environmental protection in Right to Life. 

This position was again reaffirmed in Virender Gaur v. State of Haryana,1994, where it was held that enjoyment of life and right to live with dignity includes the protection and preservation of the environment and without it, life could not be enjoyed.

It is important to understand what is the relation between the environment and quality of Life. To understand this, some incidents have been discussed.

Effect on Human Lives

Enjoyment of a pollution-free environment is directly in relation to the quality of life. As the environment, which includes natural resources, are essential for a healthy life, any pollution or damage to the environment could have adverse effects on human beings. This has been proven by various incidents that changed the jurisprudence of environmental law in India.

Bhopal Gas tragedy 

On the fateful night of December 2, 1982, India faced the biggest chemical leak the world had ever seen. Methyl isocyanate, a highly toxic chemical, leaked from the pesticide factory of Union Carbide India Limited made Bhopal a gas chamber. It was the first and the biggest environmental disaster that India has faced. 

  • The effect of Bhopal gas tragedy on the environment 

30 tonnes of Methyl isocyanate was leaked in the air of Bhopal which led to the death of 15,000 people and 6,00,000 people were adversely affected. The effect was not limited to the affected people, their future generations were also affected. Those who were affected way back in 1982, still to this day, suffer from the effects of that hazardous chemical. 

The chemical leak also affected the trees and the animals. Thousands of animals died and the lands turned barren. 

The factory was not demolished and some portions of the chemical still remain in the abandoned factory which is contaminating the water that people drink. The doctors till date have not been able to find an antidote to cure the affected people. 

  • Legal implications 

A case was filed by the Union of India claiming damages on behalf of the affected people, under the Bhopal Gas Leak Disaster (Processing of Claim) Act, 1985 from Union Carbide Indian Limited for the lives lost and the damage to the environment. Both the Union of India and UCIL filed separate appeals against the judgement of the Madhya Pradesh High Court. Madhya Pradesh High Court reduced the amount of damages from 350 Million to 250 Million as interim compensation. There was an out of the court settlement according to which UCIL had to pay $470 million for damages caused. However, the court laid down certain guidelines.

  1. Families of the dead were to be granted Rs.1,00,000- 3,00,000.
  2. Fully or practically disabled were to be granted Rs. 50,000- 5,00,000.

Oleum Gas leak (M.C. Mehta vs Union of India, 1986)

Shriram Industries was engaged in manufacturing of hazardous substances and was located in a densely populated area of Kirti Nagar, Delhi. There was a leakage of oleum gas because of which one person died and several people were hospitalized. This incident was more feared because it took place after only 1 year of the Bhopal Gas tragedy. The legal implications of this case will be discussed in the section of ‘liability’.

Visakhapatnam gas leak 

During the unprecedented times of lockdown, India faced another big setback on 7th May, 2020, when a gas named styrene leaked from the LG Polymers Private ltd. plant located in Visakhapatnam and took 11 lives. 400 people were hospitalized. The gas also took the life of animals.

National Disaster Response Force 

The National Disaster Response Force helped in evacuating over 1200 families in the Visakhapatnam gas leak. 

NDRF was established under Section 44(1) of The Disaster Management Act, 2005. It has been constituted for the purpose of protecting and responding to natural and man-made disasters. There are 12 Battalions with each Battalion consisting of 1149 personnel.

NDRF is constituted on 3 levels. NDRF is the main body at the central level. State Disaster Response Force (SDRF) is the main body at the state level and according to Section 14 of The Disaster Management Act, 2005 every state mandatorily has to create SDRF. The 3 level is the District level which consists of Police officers, Fire and Emergency Services, NGO’s. 

These incidents show that any damage to the environment directly affects human life, flora and fauna and therefore the right to a pollution-free environment is essential for a quality and healthy life and should be included in “life” under Article 21. 

Directive Principle of State Policy

Before 42nd Amendment

Article 47

Article 47 puts a duty on the state to raise the standard of living and to improve public health. Standard of living and public health depends upon the quality of the environment. This is evident from the case studies discussed before. A disaster like Bhopal gas tragedy contaminates and destroys the natural resources like air and water which are essential for human beings, therefore, putting a risk on the public health.

After 42nd Amendment

Inspired by the Stockholm Convention, which was attended by the Prime Minister of India at that time, Swaran Singh Committee recommended the creation of a separate chapter on Fundamental Duties in the Indian Constitution which included Art 48A and 51A(g)

Article 48A

Article 48A puts a duty on the State to protect and improve the environment and further to safeguard the forests and wildlife. To enable this duty, wildlife and forests have been inserted in the concurrent list so that both the Central Government and State Government can fulfil their duty of protecting wildlife. 

In Sher Singh vs State of Hp 2014, the National Green Tribunal held that the State is under a constitutional obligation to protect and improve the environment.

In M.C. Mehta vs Union of India, 2002, the court held that Article 39(e), 47 and 48A collectively cast a duty on State to secure public health and environment protection. 

Article 51A(g)

Article 51A(g) puts a fundamental duty on the citizens to protect and preserve the environment.

The Supreme Court in A.I.I.M.S Students Union vs A.I.I.M.S, 2001 held that the duty of citizens under Article 51-A does not exclude the duty of the states. 

Further in Sachidananda Pandey vs State Of West Bengal & Ors.,1987, it was held that whenever a problem of ecology is brought before the court, Art 48-A and 51-A(g) has to be considered. The role of the judiciary was also discussed. It was emphasized by the Supreme Court that the duties under Article 51-A, even though being a directive principle, shall not be ignored by the court. The Court may examine whether appropriate considerations are taken while developing a policy under Article 51-A.

In the State of West Bengal & Ors. v. Sujit Kumar Rana, 2004 powers under Section 52 of The Indian Forest Act were challenged. The Court held that Articles 48 and 51-A(g) of the Constitution were read together and the Court expressed that by applying the rule of purposive construction, these provisions have to be kept in mind while interpreting statutory provisions of the Indian Forest Act, 1927.

Role of Indian Judiciary in developing Indian Environmental law

Most of the important principles of Environmental laws in India are customary international laws which have been adopted by the Indian judiciary to be a part of Indian Environmental laws.

Sustainable development 

The balancing concept can be considered as the origin of sustainable development. The objective of sustainable development is to fulfil the current needs of the people without diminishing the ability of future generations to get access to natural resources. 

Vellore Citizens’ Welfare Forum vs. Union of India, 1996 is the leading source of law for the principle of sustainable development, precautionary principle and polluter pays in India. This case formalised the application of these principles in India. 

In this case, the Vellore Citizens Welfare Forum filed a Public Interest litigation under Article 32 of the Indian Constitution against the pollution created by tanneries and the other industries in the State of Tamil Nadu. The untreated affluence generated from these tanneries polluted the river water which was the main source of drinking water. 

The ratio of the case was:

  1. The Court held that the above-said principles are accepted as part of the Customary International Law and hence were a part of Indian law. 
  2. The Central and State government under Section 3(3) of the Environment (Protection) Act, 1986 have the duty to implement the `Precautionary Principle’ and the `Polluter Pays Principle’.
  3. The “Onus of proof” is on the actor who wants to change the status quo of the environment. The actor has to show that the changing of status quo is environmentally friendly.
  4. These 3 principles were a part of the Indian Environmental Law.

Some of the salient principles for sustainable development according to the Brundtland report are the Precautionary Principle and Polluter Pays.

Precautionary Principle

This principle advocates that measures for preventing environmental degradation should be implemented when there is a threat of serious or irreversible damage even though the threat lacks scientific certainty. It is based on the principle that it is better to have errors on the side of caution. 

This principle replaced the Assimilative Capacity Principle which was developed in the Stockholm Declaration of the U.N.Conference on Human Environment, 1972. The Assimilative Capacity Principle presumes that science can give information to assess the threat to the environment and also reveal the measures to protect the environment.

However, it was realised that scientific certainty is not always possible and therefore, the precautionary principle was devised in the 11th Principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982. 

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Polluter Pays Principle

The polluter pays principle states that the undertakings have to pay financial costs for preventing or remedying the damages caused to the environment by the pollution created by those undertakings. 

In India, the polluter pays was first recognised in M.C. Mehta vs Union of India, 1986 which is also known as the oleum gas leak case. There was a leak of a hazardous gas named oleum from the units of Shriram Foods and Fertiliser Industries which caused damage to the public and the environment. Shriram was held to be absolutely liable to compensate for the harm caused by the company irrespective of the reasonable care taken by them. It was further declared that the larger the company causing damage, the higher the compensation they have to pay.

In Indian Council for Enviro-Legal Action vs. Union of India, 1996, it was held that the Central Government had the power under Section 3 and Section 5 of the Environment (Protection) Act, 1986 to determine compensation for damaging the environment. 

The Supreme Court in Vellore Citizens’ Welfare Forum vs. The Union of India held that the polluter’s objective is to compensate the victims of pollution and also to restore the environmental degradation. The restoring of the environment is a part of Sustainable development. 

Public trust

The doctrine of public trust comes from the tradition of the Roman Empire. The public trust doctrine promotes the idea that natural resources like air, sea, water cannot be rested in the hand of private ownership and that these resources are held by the government or the regulatory authority as a trustee for the free and unimpeded use of the general public.

This doctrine was integrated into the environmental law of India in the case of M.C. Mehta vs Kamal Nath & Ors, 1996.

The doctrine of Public trust has been explained in detail in a case from the International jurisprudence (California) titled National Audubon Society v. Superior Court of Alpine Country, 1983. The court said that the doctrine of Public Trust mandates affirmative action by the State to protect the common heritage of people who reside in natural resources. As natural resources are essential for human beings there shall be a high degree of judicial scrutiny. This was affirmed for Indian jurisprudence in the case of Intellectuals Forum, Tirupathi vs State of A.P. & Ors., 2006. 

Liability 

In the M.C. Mehta vs Union of India, 1987, the concept of absolute liability was devised. The relevance of the strict liability, which was devised in Ryland vs Fletcher, 1868, was discussed. Strict liability provides that a person who brings to his land any inherently dangerous or hazardous thing which is escaped would cause damage to others, has the responsibility to keep it secure. If it escapes the property, he is prima facie liable for the damage.

However, in strict liability, there are certain exceptions which releases the defendant of his liability. These are:

  1. Plaintiff’s own fault: If the damage caused to the plaintiff is because of his own fault, the defendant would not be liable.
  2. Act of God: The dangerous substance escapes the property of the defendant because of the Act of God.
  3.  Act of third party: The rule of strict liability does not apply when the damage or the escape of a dangerous thing is caused by a third party.
  4. Consent of plaintiff: If the plaintiff consents to the risks involved with the dangerous thing, then the defendant is not liable. 

Justice P.N. Bhagwati in the M.C. Mehta vs Union of India (Oleum Gas Leak case) stated that the concept of strict liability was not adequate and apt for the current conditions. He believed that a new concept was needed to deal with risks and damages in the current time where there have been economic and technological advances and there is no reason to rely on a law made by English Courts a century back. He further stated that India should not hold back on making its own law. 

This led to the introduction of absolute liability. It provides that an enterprise which is involved in an inherently dangerous or hazardous industry which poses a potential threat to the health and safety of people either working in the enterprise or living in surrounding areas owes an absolute and non-delegable duty to these people. 

If the dangerous activity escapes and damages the surrounding, the enterprise will have the absolute liability to pay compensation and unlike strict liability, there are no exceptions available to the enterprise. 

Thus, in M.C. Mehta vs Union of India (Oleum Leak case) and Union Carbide India Ltd. vs Union of India (Bhopal gas tragedy), the enterprises that caused damage to the environment (Shriram Industries and UCIL) were held liable as per the absolute liability principle and had to pay compensation. 

The compensation in these kinds of cases shall be in direct relation to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect on the enterprise.

In Union Carbide India Ltd. vs Union of India, UCIL was liable to pay Rs. 470 million whereas in the Visakhapatnam gas leak case, LG polymer had to pay Rs. 50 crore.

Conclusion

India faced its biggest environmental disaster in 1982. But then India was not ready to face it as there were no definitive and absolute laws to protect and preserve the environment. But since that incident, India has come a long way in the field of Environment protection. In the past 38 years, an umbrella legislation, Environment (Protection) Act was enacted, right to pollution-free environment was recognised as a Fundamental Right under Article 21, various principles like Sustainable Development were adopted and special tribunals were created for dealing with environmental issues. 

India’s progress in environmental law can be seen in the amount of work and efficiency in the work done in Visakhapatnam to limit the damage caused by the gas leak.

However, the fact that 6 out of the 10 most polluted cities are located in India. This is a worrisome statistic. In my opinion, India has a strong environmental law, however, the execution is not adequate. Building unnecessary buildings, red-tapism and failure to control people from bursting crackers are some of the examples which show the shortcomings in the execution.


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