By Snehal Patel ~ KES Jayantilal H. Patel Law College, University of Mumbai
Introduction
The judiciary in India has developed a framework of environmental rights and legal principles, which now forms an integral part of the environmental jurisprudence in the country. The author aims at providing an in-depth analysis of the significant legal principles of environmental law and a comprehensive analytical understanding of the framework by exploring the origins of the principles, judicial reasoning, and underlying assumptions in landmark judgments given by the Supreme Court of India, various High Courts as well as the National Green Tribunal.
The Basic Principles Underlying the Environmental Law and Their Position
Modern environmental law is designed with the help of a set of concepts and principles which were outlined in publications such as ‘Our Common Future’ (1987) published by the World Commission on Environment and Development[1], and the United Nations Conference on Environment and Development (UNCED) also known as the Rio Declaration (1992). The following are the principles that have shaped the formation of environmental laws:
- The Precautionary Principle
Environmental laws are prominent in activities that involve high levels of science and developmental because of the nature of the activities, which make it difficult to suspect the damaged entailed upon the environment. The Precautionary Principle requires that, if there is a strong suspicion that a certain activity may have environmentally harmful consequences, it is better to take measures to control the activity than to wait for incontrovertible scientific evidence and destruction of the environment. This principle was expressed in the Rio Declaration,[2] which stipulates, “Threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”
The Indian Supreme Court has applied this principle in the landmark case of Vellore Citizens Welfare Forum vs Union of India & Ors.[3] The Supreme Court of India provided three guidelines, as stated below:
- Environment measures by the State Government and the statutory Authorities must anticipate, prevent and attack the causes of environmental degradation.
- Where there are threats of serious and irreversible damage lack of scientific certainty should not be used as the reason for postponing, measures to prevent environmental depredation.
- The “Onus of proof” is on the actor or the developer/industry to show that his action is environmentally benign.
In the case of Narmada Bachao Andolan v. Union of India,[4] the court observed, “On the other hand where the effect on the ecology of the environment of setting up of industry is known, what has to be seen is that if the environment is likely to suffer, then what mitigative steps can be taken to offset the same. Merely because there will be a change is no reason to presume that there will be an ecological disaster. It is when the effect of the project is known then the principle of sustainable development would come into play which will ensure that mitigative steps are and can be taken to preserve the ecological balance.”
- The Prevention Principle
The Prevention Principle was the foundation of the Basel Convention on the Control of Trans boundary Movements of Hazardous Wastes and their Disposal (1989),[5] which sought to minimise the production of hazardous waste and to combat illegal dumping. It is believed that the prevention of environmental harm is much cheaper, easier, and less environmentally dangerous than responding to the environmental harm that has already taken place.
The Prevention Principle is the fundamental notion behind environmental laws regulating the generation, transportation, treatment, storage, and disposal of hazardous wastes and laws regulating the use of pesticides. Most of the environmental legislation in Indian is based on the prevention principle. Some of them are the Air (Prevention and Control of Pollution) Act, 1981, Water (Prevention and Control of Pollution), 1974, Wild Life (Protection) Amendment Act, 2002, etc.
- The Integration Principle
Environmental protection is required to be given due consideration while making decisions that have the potential to cause damage to the environment. The Integration Principle has led to the inclusion of various provisions by the governments to assess the impact of decisions on the environment, such as the Environmental Impact Assessment, etc.
The principle of integration is embedded in the 2002 New Delhi Declaration of Principles of International Law Relating to Sustainable Development[6] (in short: the Delhi Declaration of International Sustainable Development Law (ISDL)) under the 7th Principle, which states
- The principle of integration and interrelationship must be applied, in particular to human rights and social, economic and environmental objectives.
- The principle of integration reflects the interdependence of social, economic, financial, environmental, and human rights aspects of principles and rules of international law relating to sustainable development as well as of the interdependence of the needs of current and future generations of humankind.
- All levels of governance – global, regional, national, sub-national, and local and all sectors of society should implement the integration principle, which is essential to the achievement of sustainable development.
- States should strive to resolve apparent conflicts between competing economic, financial, social, and environmental considerations, whether through existing institutions or the establishment of appropriate new institutions.
- In their interpretation and application, the above principles are interrelated, and each of them should be construed in the context of the other principles of this Declaration
The principle has led to the integration of various policies and law reforms after the Bhopal Gas Leak Case[7] in the year 1984. The judiciary refused to play a passive role and involved itself in judicial activism to environmental issues and concerns. The constitution of various judicial and quasi-judicial forums such as the State Regulatory Boards, National Green Tribunals, etc., and the amendments to the existing laws such as the constitution of a Commission on ‘Review of Administrative Law’ in 1998 were enhanced. Following the recommendations, all departments have to propose necessary amendments, repeal, etc., concerning the Acts. Accordingly, the Forest Policy and Law Division of the Ministry of Environment and Forest has initiated necessary action in a phased manner for the amendment of the Water (Prevention and Control of Pollution) Act 1974, the Air (Prevention and Control of Pollution) Act 1981 and the Environment (Protection) Act 1986 to cater the needs of the growing environmental issues.
In the case of M.C. Mehta vs Union of India (Kanpur Tanneries),[8] the Court issued various directions to the Kanpur tanneries. The scope of the petition was enlarged, and the industries located in various cities on the banks of River Ganga were called upon to stop discharging untreated effluent into the river. Similarly, in the case of M.C. Mehta vs Union of India and Ors,[9] the court considered the tanneries located at Tangra, Tiljala, Topsia, and Pagla Danga, the four adjoining areas in the eastern fringe of the city of Calcutta (the Calcutta tanneries). Under the NEERI Reports, it was observed by the inspection team that no appropriate wastewater drainage and collection systems are available in any of the tannery clusters. The untreated wastewater flows through open drains causing severe environmental, health, and hygiene problems. It was further stated, “Virtually shifting of the tanneries from the present location to another place and construction of common effluent treatment plant, is the only practicable solution to control the environmental degradation as a whole.” Thus, the court in both the cases as mentioned above applied the principle of integration and directed the industries to integrate a system of effluent treatment within the industry to control the pollution caused due to the discharge of such effluents.
- The Public Trust Doctrine
The Public Trust Doctrine theory was developed in the ancient Roman Empire. According to the doctrine, specific resources, like air, sea, waters, forests, have great value and significance to the public as a whole. Hence, it would be unjustified to make such resources subject to private ownership. Such resources should be made freely available to the public, irrespective of their status in life. Under the doctrine, the duty is cast upon the government to safeguard the resources to be used by the public as a whole and restrict the use of such resources by private bodies for commercial purposes. The government acts as a custodian of these resources and is not the owner.
In the case of M.C. Mehta v Kamal Nath and Ors.[10] the Public Trust Doctrine was mentioned for the first time. In this case, the State Government granted a lease of riparian forestland to a private company for commercial purposes. Based on the article published in the newspaper, the Supreme Court initiated suo moto action. Applying the Doctrine of Public Trust, the Court held the Himachal Pradesh government liable for committing a patent breach of public trust by leasing out the ecologically fragile land to be developed. The Court also held the developer liable under the doctrine of polluter pays and directed the developer to pay compensation by way of cost for the restitution of the environment and ecology of the area.
In the case of Majra Singh and Ors. vs Indian Oil Corporation and Ors.,[11] the High Court opined that “the doctrine is part and parcel of the Article 21 of the Indian Constitution and that there can be no dispute that the state is under an obligation to see that forests, lakes and wildlife and environment are duly protected.” According to the Court, the idea that the public has a right to expect certain lands and natural areas to retain their natural characteristics is finding its way into the law of the land.
- The Principle of Public Participation
The Principle of Public Participation has become an essential component in environmental decisions not just at the national, but at the international level as well. People’s voices play a significant role in shaping the decisions in the field of environmental policies and legislation.
In India, it has been recognized as a fundamental right of the people under Article 21 of the Indian Constitution. Article 21 talks about the Right to Life, which ensures the right to a healthy environment, as the environment plays a crucial role in the quality of life for an individual. As a result, various movements have been led by the people who have helped in the protection of the environment such as, the Save Dehing-Patkai, Save Aarey, Climate Action Strike, #RighttoBreathe Protest, etc.
Filing a PIL in the Court relating to the issues of the environment is a classic example of the principle of public participation, such as PILs filed in the cases of Rural Litigation and Entitlement Kendra vs the State of U.P.,[12] India vs KKR Majestic Colony Welfare Association, [13]Indian Council for Enviro-Legal Action vs Union of India, etc.[14]
- The Polluter Pays Principle
The Polluter Pays Principle has become the dominant factor in environmental law since the 1970s. Several economists have claimed that most of the harm caused to the environment is by the producer who externalizes the cost of their activities, which in turn is borne by society as a whole. This principle guides the policies of various governments from all over the world. Such policies have been adopted at the state and the local levels. The Indian courts have interpreted the meaning of this principle as ‘absolute liability’, which was laid down by the Honourable Supreme Court for the first time in the case of Bhopal gas leak tragedy.[15]
- The Principle of Sustainable Development
In today’s world, the Principle of Sustainable Development has become a trending feature of almost all governments in the formulation of environmental policies and regulations. The Principle of Sustainable Development emerged as an idea, along with the industrial revolution. It was officially addressed at the first United Nations Conference on Environment and Sustainable development in the year 1972. There is no concrete definition of sustainable development. However, a general definition was produced in the Brundtland Report in the year 1987, which reads “sustainable development is the human ability to ensure that the current development meets the needs of the present without compromising the ability of future generations to meet their own needs”.[16]
Various efforts have been made all around the world to enforce this principle by the governments as well as the private entities. In the case of N. D. Jayal and Anr. vs Union of India and Ors.[17] It has been observed by the Court that “sustainable development is a development strategy that caters the needs of the present without negotiating the ability of upcoming generations to satisfy their needs. The strict observance of sustainable development will put us on a path that ensures development while protecting the environment, a path that works for all peoples and all generations. It is a guarantee of the present, and a bequeath to the future.”
Conclusion
The above mentioned principles and concepts are very well recognized, both at the national as well as international level. Despite their acceptance and adoption in the modern environmental legislation in India, these principles lack assertion. The concept of precaution is still neglected due to the presence of corruption and a lack of value to the environment, which is often replaced by the importance of development. Due to the presence of remedies, the producers of environmental hazards behave negligently. Prevention principle is the basis of most laws on the environment. However, the principle is not followed religiously due to lack of coordination between different levels of forums, financial gains, inadequate period of the judicial proceedings, and sometimes lack of sufficient evidence to prove the harm being done. In reality, the Courts are engaged in giving responses to the known risks and not the unknown risks, which also pose a problem in working on the preventive principle.
Shifting the burden of proof to the industrialists change the dynamics of the decision-making process. Even after the various judgments passed by the Hon’ble Supreme Court, High Courts, and Tribunals, the various processes and technology to be integrated by the industries and other establishments to reduce the harm caused to the environment are not in place. The regulating authority is sometimes negligent in taking actions on one or the other ground.
Lack of public participation and motivation to take action against environmental issues is another concern. The compensation allotted under the polluter pays doctrine is not adequate, as nature cannot be reversed to its original form with such amount. It takes time and investment regularly. The compensation provided to the people who suffer from such hazards is also irrational. Even in judicial participation in such matters, there is always an effort to balance developmental and environmental considerations, but the environment is never kept as the priority.
Lack of scientific data and analysis also plays a significant role in such environmental issues.
The measures taken by the international organisations and various national governments through the formation of numerous treaties require financial cooperation, technology transfer, and differential implementation schedules and obligations, which are often not complied with by the parties. The Environmental (Protection) Act of 1986 has loopholes, as meanings of some essential words have not been provided due to which it lacks adjudication on matters falling under those categories, and it calls for an amendment to fit the situation of today’s world.
The principles and concepts must be religiously followed during legislative actions as well as the judicial decisions to safeguard the environment. Science and technology should be emphasized during the policy making process, which is vital in the sphere of environmental legislation. The integration principle must be given due importance as a precautionary measure to avoid environmental hazards.
Citaions
[1] The Editors of Encyclopaedia Britannica, United Nations Conference on Environment and Development: International Conference (1992). https://www.britannica.com/event/United-Nations-Conference-on-Environment-and-Development
[2] Supra note 1.
[3] 1996 5 SCR 241
[4] (2000) 10 SCC 664
[5] Report of the UN Environment Programme, Basel Convention on the Control of Transboundary Movements of Hazardous Wastes, (July 2011). https://wedocs.unep.org/bitstream/handle/20.500.11822/8385/-Basel%20Convention%20on%20the%20Control%20of%20Transboundary%20Movements%20of%20Hazardous%20Wastes%20-20113644.pdf?sequence=2&%3BisAllowed=
[6] United Nation’s World Summit on Sustainable Development (August 9, 2002). http://www2.ecolex.org/server2neu.php/libcat/docs/LI/MON-070850.pdf
[7] 1989 SCC (2) 540
[8] 1987 (4) SCC 463
[9] 1996 Supp(10) SCR 383
[10] (1997)1 SCC 388
[11] AIR 1999 J K 81
[12] AIR 1985 SC 652
[13] AIR 2000 SC 2773
[14] AIR 1996 SC 1446
[15] Union Carbide Corporation vs Union of India Etc1989 SCC (2) 540.
[16] You Matter, Sustainable Development- What Is It? Definitions, History, Evolution, Importance and Examples (May 26, 2020) https://youmatter.world/en/definition/definitions-sustainable-development-sustainability/
[17] 1999 (1) SCALE 463