Environmental Law in India by Sayan S. Das-libre

PACE LAW SCHOOL, PACE UNIVERSITY

Environmental Law in India

The paper traces the history of environmental laws in India focusing on the influences of international environment laws on the domestic laws and court judgments along with a restatement of important environmental laws of India.

Sayan S. Das 5/14/2012


Comparative International Environmental Law Professor Nicholas Robinson 2011-12

2

INDEX

Serial Number Contents Page Number 1 Introduction Pg. 4

2

History of Environmental Laws in India Pg. 5 12

Ancient India Pg. 5 9 Medieval India Pg. 9 British India Pg. 9 12

3

An Overview of the Indian Constitution Pg. 13 17

4

The Constitution of Indian and the Environment Pg. 18 20

5

The Indian Legislature Pg. 21- 24

6

Indian Judiciary and Environmental Protection Pg. 25 45

The Evolution of the Indian Judiciary Pg. 25 29

The Indian Judiciary, Environmental Laws and

Principles Pg. 30 40

The National Green Tribunal Act, 2000 Pg. 41 45

7

India and International Environmental Laws Pg. 46 55

International Law, the Indian Constitution, Executive, and the

Legislature Pg. 47 49

Influences of International Environmental Law on

Domestic Laws Pg. 50 53



3

Influences of International Environmental Law on Constitution of India

Pg. 54 55

8

Restatement of Important Indian Environmental Laws Pg. 56 98

The Wildlife (Protection) Act 1972, Rules 1973 and

Amendment 1991 Pg. 56 62

The Water (Prevention and Control of Pollution) Act, 1974 Pg. 63 67

The Air (Prevention and Control of Pollution) Act, 1981 Pg. 68 72

The Environment (Protection) Act, 1986 Pg. 73 80

The Public Liability Insurance Act, 1991 and Rules and

Amendment, 1992 Pg. 81 84

The Biological Diversity Act, 2002 Pg. 85 91

Laws for Schedule Tribes Pg. 92 98

9

Issues with Environmental Laws in India Pg. 99 116

Development over Environmental Protection Pg. 103 105

Urban Bias of Environmental Laws Pg. 106 107

Failure of Indian Executive Pg. 108 110 Issues with Specific Indian

Laws Pg. 111 116

10

Recommendations Pg. 117 124

11

Conclusion Pg. 125 126



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a) INTRODUCTION

Since the Stockholm Conference India has been a major player in the world of international

environmental issues and debates. Currently it is the ring leader of a group of nations which

could define the upcoming Rio+20 Conference in Brazil in June, 2012. With such an

international presence, it is only fair that a country have environmental jurisprudence of some

depth. India has built such jurisprudence over the last forty years.

Yet it is a misconception that Indias torrid love affair with the environment only began in 1972, around the Stockholm Conference. Environmental issues have always held central position in

India with these issues being central to the holistic Hindu philosophy. Though medieval India

saw some disinterest towards the environment but independent India took over the lax British

laws and has tried to make them as successful as it can be. With a large country and as diverse as

India, the success of a particular law can be a debate. Yet the highest judiciary of the country has

been part of the success story with landmark judgments which have tried to uphold the stringent

measures of the laws that the legislature has passed over the years.

This paper traces the history of environmental law in India along with the influences of

international environmental law on the domestic laws of India. The paper also looks into

landmark judgments on environmental issues, restates important Indian environmental laws and

the many loopholes in the laws and the law making process.



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b) HISTORY OF ENVIRONMENTAL LAWS IN INDIA

India has had a colourful history. With each phase of colonization, either by the Aryans in one of

the earliest civilisations of the world- The Harrappa and Mohenjodaro civilization, to the

occupation of the country by the Mughals from Central Asia and finally the three hundred year

old domination by England, Environmental Laws have kept pace with each phase according to

the administrative desires of the occupants.

i. Ancient India

Indian philosophy of the Vedic period recognises five natural elements as panchmahabhut for

stavan, meaning worship. These five basic natural elements are water, earth, food-grains, sun, air

and sky. Since the Vedic period, Earth and Rivers are worshipped as mothers1:

Mata Bhumi Putaro Aham Prithvaiya

Hinduism, regarded by many as Sanatan Dharam, or the Eternal Truth, contains the one of the

oldest scriptures of the world. The scriptures contain in them the philosophy, theology and

spiritual guidance for life which forms the religion for over a billion people2.

1 Development and implementation of environmental law in India by Justice D. M. Dharmadhikari, Judge, Supreme

Court of India- http://data.iucn.org/dbtw-wpd/html/EPLP-060/section7.html Last Visited on 9th April, 2012

2 3 Hinduism, The Environment and the Long Term Future by Judge Weeramantry- http://www.asiantribune.com/index.php?q=node/6083



6

Ancient Hindu scriptures believed in establishing harmony amongst the components on the earth.

Natures as a whole, was an important component, and the scriptures believed that the nature

controlled man and not the other way around. Thus for man to live peacefully, establishing a

harmonic relationship with the nature was essential.

Ancient Hindu texts have specific teaching on environmental issues3.

Do not cut trees, because they remove pollution. (Rig Veda, 6:48:17) Do not disturb the sky and do not pollute the atmosphere. (Yajur Veda,5:43)

Destruction of forests is taken as destruction of the state, and reforestation an act of rebuilding the state and advancing its welfare. Protection of animals is considered a

sacred duty. (Charak Sanhita)

Resources are given to mankind for their living. Knowledge (Isha) of using them is necessary. - The first stanza of Isha Upanishad

In the Bhagvat Gita, Lord Krishna compares the world to a single large banyan tree which has

unlimited branches under which all species of animals, humans and life live. Thus the scriptures

have envisioned a bond not just between nature and man but also animal life and vegetation.

Another Hindu concept proposes the good of the community over personal good. This concept

falls under the aegis of Dharma, and is called Sarva Bhuta Hita. Amongst other components,

environmental safeguarding takes high priority under this concept4.

Last Visited 17th March, 2012



7

The Doctrine of Karma is another Hindu concept which speaks about the consequences of ones action, weather good or bad. The consequences of ones deed follow him through his life and the cycle does not stop at the end of the current life cycle but continues in the next birth. Every

action performed creates a chain of reactions. Polluting the environment is supposed to be bad

Karma and could lead to a cyclic reaction of unfavourable life consequences5.

Kautilya, a law-maker of distinction in Ancient India, wrote about environmental protection in

the larger canvas of ethical administration. His greatest production, Arthsastra has been the

foundation of legal philosophy in India. He wrote6-

The punishment of one eight Panna should be awarded to those who throw dust on the road. For muddy water one fourth Panna, if both are thrown then the punishment has to be

doubled. (Arthasasthra, 2.145)

In 256 BC India, the great King Ashoka (Piyadasi) of India, practicing Buddhism, issued Seven

Pillar edicts, one of which states: "Twenty-six years after my coronation various animals were

declared to be protected -- parrots, mainas, ruddy geese, wild ducks, bats, queen ants,

4 5

Hinduism, The Environment and the Long Term Future by Judge Weeramantry- http://www.asiantribune.com/index.php?q=node/6083 Last Visited 17th March, 2012

6 Ethical Perspective on Environmental Issues in India by George A. James



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terrapins, boneless fish, fish, tortoises, porcupines, squirrels, deer, bulls, wild asses, wild

pigeons, domestic pigeons and all four-footed creatures that are neither useful nor edible"7.

According to Buddhist scholar Ven. S. Dhammika, Ashoka is significant today "With

widespread disillusionment in prevailing ideologies and the search for a political philosophy

that goes beyond greed (capitalism), hatred (communism) and delusion (dictatorships led by

"infallible" leaders), Asoka's edicts may make a meaningful contribution to the development

of a more spiritually based political system."8

Gandhi, an environmentalist amongst many other things, drew inspiration from the deep Hindu

traditions of trusteeship. In Ishopanishad there is a verse saying that a selfish man over-utilizing

the resources of Nature to satisfy his own ever increasing needs is thieves because using

resources beyond ones needs would result in the utilization of resources to which others have a right9. This influenced Gandhi when he said the following- The countrys development has to be in harmony with nature each member of a community has to live in communion with nature. The earth has resources to meet everybodys needs, but not anybodys greed. Man must voluntarily limit his wants. We must learn to live lives of simplicity and austerity. Hindu philosophy saw Nature as a sustainer of humanity, and harnessing it should be governed by

principles of need and reverence. In essence, nature was as an asset is to be held in a trust. This is

7 8 Environmental History Timeline- http://www.radford.edu/~wkovarik/envhist/1ancient.html


9 Development and implementation of environmental law in India by Justice D. M. Dharmadhikari, Judge, Supreme

Court of India- http://data.iucn.org/dbtw-wpd/html/EPLP-060/section7.html Last Visited on 9th April, 2012



9

turn is how the global concept of sustainable development is seen today and Hindu philosophy

provides a strong philosophical base for this concept10.

ii. Medieval India

Medieval India was marked by the emergence of the Islamic rule of the Mughals. Known for

their lavish architectural heritage, the Mughal took pride in building great gardens, orchards, and

parks throughout the length and breadth of the country which were used as resorts or summer

retreat houses. Islam sought harmony between man and the nature. During this period people

lived in such a way as not to destablise the eco-system. The Mughals never codified any law

regarding the environment; they did make laws regarding hunting. The lack of laws affected

forest conservation though the Mughals were known to be deep lovers of the environment11.

iii. British India

The British colonised India and for the next three hundred years and plundered the natural

resources in the country with profit motive being the mechanism behind the exploitation. Though

environmental laws were passed, they were myopic with limited territorial reach. These laws did

not have any teeth because the law which existed to prosecute the exploiters was made by the

exploiters themselves. In essence, the British were the only entity which invested in the

10

Hinduism, The Environment and the Long Term Future by Judge Weeramantry- http://www.asiantribune.com/index.php?q=node/6083 Last Visited 17th March, 2012

11 12 13 14 An Appraisal Of Environmental Law: Birth Of The Right To Environment In India by Sangeetha Mugunthan- http://www.legalserviceindia.com/articles/evn.htm

Development of Environmental Institutions and Laws in Pakistan by Mujahida Naureen- http://www.nihcr.edu.pk/Latest_English_Journal/Development_of_Environmental_Institutions.pdf



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exploiting the natural resources and the laws were made by them, thus environmental protection

took a backseat. Environmental laws mostly regulated forest, water pollution and wildlife

issues12.

The greatest exploitation of any natural resource in India was the forests. Due to the geographical

diversity in India, forests provided many different types of timber. The British slowly extended

their domination over Indian natural resources in 1805 when they formed a commission to

enquire into the availability of teak in the forests of south India. The Conservator of Forest was

appointed but the conserver in turn plundered the forest and the post was abolished in 182313.

Removal of forest added land to the British territory and thus they were systematically

decimated. This land was to be used as agricultural land which in turn led to huge revenues for

the colonial power. Forests were also cleared to fuel the demand of timber for the British Navy

and the expansion of the railway network in the country14.

In 1855 Lord Dalhousie, the then Governor General of India, started the Indian Forest

Department which led to the annexation of large tracts of land under the pretext of conservation

of forests. These forests became protected and were staffed by professionals. The Indian Forest

Department did not have intentions to protect the forests or give the royals a place to hunt, but it

was established strictly for income generation from selective exploitation of Indian forests and

Environment Protection Laws in the British Era by Bharat Budholai- http://www.legalserviceindia.com/articles/brenv.htm Last Visited by 18th March, 2012



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increasing the clout of the imperial power with the symbolic alliance of environmental protection

under the increasingly powerful state administration15.

Some of the important environmental legislations passed by the British were16:

1. The Shore Nuisance (Bombay and Kolaba) Act, 1853

2. The Orient Gas Company Act, 1857

3. The Indian Fisheries Act, 1897

4. The Indian Ports Act, 1901

5. The Bengal Smoke Nuisance Act, 1905

6. The Explosives Act, 1908

7. The Indian Ports Act, 1908

8. The Bombay Smoke Nuisance Act, 1912

9. The Indian Steam Vessels Act, 1917

10. The Indian Forest Act, 1927

In the end, the British hardly helped save the environment of India, but they did leave behind a

text of environmental laws which had no teeth. After India achieved independence, these laws

were suitably amended and then put into greater force. After the Stockholm Conference in 1972,

15 16 An Appraisal Of Environmental Law: Birth Of The Right To Environment In India by Sangeetha Mugunthan- http://www.legalserviceindia.com/articles/evn.htm




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environmental laws in India were brought with greater enthusiasm and ably supported by the

judiciary with landmark judgments17.

17

An Appraisal Of Environmental Law: Birth Of The Right To Environment In India by Sangeetha Mugunthan- http://www.legalserviceindia.com/articles/evn.htm




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c) AN OVERVIEW OF THE INDIAN CONSTITUTION

The Constitution of India is the supreme law of the land in India. The text exhaustively covers

the working of the governmental machinery operating through the length and breadth of India.

The Constitution puts in writing the fundamental political principles, defining the structure of

governance, laying down the procedures, powers and duties of the government and its officials.

It also gives the citizen of the country, fundamental rights, directive principles and fundamental

duties. The Constitution of India is the longest written document in the world containing

395 articles in 22 parts, 12 schedules and 115 amendments. According to the Constitution, India

is a sovereign, socialist, secular, democratic republic and its citizens are guaranteed

justice, equality, and liberty.

Salient Features18

1) Written, Lengthy and Detailed Constitution: Our Constitution is written, lengthy and

detailed. The Constitution of India is an elaborate document and is the most voluminous

Constitution in the world. An important reason for the extraordinary volume of the

Constitution is that it contains detailed provisions regarding numerous aspects of

governance. This was done to minimize confusion and ambiguity in the interpretation of the

Constitution, another reason for its unusual lengthy is the incorporation of the good points

18

Salient Features of Indian Constitution- http://kish.in/salient_features_of_indian_constitution/ Last visited 10th February, 2012



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of various constitutions of the world. The vastness of our country and its peculiar problems

has also added to the bulk of the Constitution.

2) Partly Rigid and Partly Flexible Constitution: The Indian Constitution is neither very

flexible nor very rigid. Some provisions of the Constitution can be amended by a simple

majority of Parliament but for the very important provisions of the Constitution an

amendment passed by a two-thirds majority of Parliament should also be ratified by at least

one-half of the State legislatures. The Indian Constitution thus combines the flexibility of

the British Constitution and the rigidity of the American Constitution.

3) Partly Federal and Partly Unitary: Our Constitution declares India a Union of States

(federation). It prescribes dual set of governments-the Union Government and the State

Governments. The subjects of administration have also been classified into three lists-the

Union List, the State List and the Concurrent List. Both the Union Government and the

State Governments operate within the spheres of their authority. The Union Parliament and

the State Legislatures enjoy co-equal powers to make laws in regard to the Concurrent

subjects. However, if there is a conflict between a Union law and a law passed by one or

many State Legislatures, the law made by the Union Parliament would prevail over the State

law. The Indian Constitution possesses other features of a federation too, for example,

supremacy of the constitution.

The Indian Constitution, though federal in form, has a strong unitary bias. The Central

Government possesses extensive powers compared to the State Governments. The exercise



15

of these powers by the Centre gives the Constitution the strength of a unitary government. A

unitary feature of our Constitution is that it gives Union Parliament the power to alter the

boundaries of the existing States or to carve out new States out of the existing ones. It is on

account of these features that the Indian Constitution is said to be federal in form but unitary

in spirit.

4) Parliamentary System: The Constitution of India adopts Parliamentary system of

government at the Centre and in the States. In such a system of government, the executive

power is wielded by the Council of Ministers which is collectively responsible to the

legislature. The Ministers continue in office so long as they enjoy the confidence of a

majority of Members in the legislature. The Ministers are duty-bound to answer all such

questions and satisfy the Members of the legislature.

5) Fundamental Rights: Certain rights are considered basic or fundamental as they provide

suitable conditions for the material and moral uplift of the people. The Indian Constitution

guarantees a number of such rights to the citizens of India. The fundamental rights as

envisaged in the Constitution of India are justiciable. The Fundamental Rights of

India conferred by the Constitution are:

a) The Right to Equality;

b) The Right to Freedom;

c) The Right against Exploitation;



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d) The Right to Freedom of Religion;

e) Cultural and Educational Rights; and

f) The Right to Constitutional Remedies.

6) Directive Principles of State Policy: These Principles embody certain ideals and objectives

which should be kept in mind by the Union and State Governments while making laws and

implementing policies. The implementation of these directives was not made compulsory

due to the paucity of resources. The framers of the Constitution expected that as and when

the future Governments would mobilise resources, they would do their best to implement

these directives. The Directive Principles of State Policy are non-justifiable. However, these

principles are considered important in the governance of the country. It becomes a moral

duty of every government to follow them and realise the purpose behind them.

7) Independence of the Judiciary: Our Constitution has taken special care to establish an

independent and impartial judiciary. The judges of the Supreme Court and the State High

Courts have been provided security of service. Once appointed, their salaries and allowances

cannot be altered to their disadvantage by the Government during the course of their tenure.

Nor can they be dismissed before the age of their retirement except in case of proven

misconduct supported by a resolution of Parliament passed by a two-thirds majority.

Security of service of judges is in keeping with the dignity and prestige of the highest

judicial organs of the country. This provision has been made in the Constitution to keep the

judges independent and immune from the control and influence of the Executive. The judges



17

can exercise their discretion in the dispensation of justice even if their decisions go against

the Government.

8) Adult Franchise and Joint Electorates: The Constitution provides for Universal Adult

Franchise. The citizens of India who are 18 years of age and above have been granted the

right to vote irrespective of any qualification pertaining to education, possession of property

or payment of income tax.

9) Establishment of a Welfare State: The Preamble to the Constitution, as modified by the

Forty-second Amendment Act, 1976 and the Directive Principles of State Policy aim at the

establishment of a Welfare State in India. Keeping in view the inherent spirit of the

Constitution, the successive governments at the Centre have been pursuing a policy of

democratic socialism to remove gross inequalities of wealth and to usher in an era of social

and economic equality.



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d) THE CONSTITUTION OF INDIA AND THE ENVIRONMENT

The Constitution of India has a few particular provisions with regards to the environment. The

42nd Amendment of the Constitution took place in 1976, four years after the Stockholm

Conference. This amendment incorporated two significant Articles to protect the environment.

Art. 48-A: "The state shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country".

Art. 51- A (g): It shall be a duty of every citizen India.......... "to protect and improve the environment including forests, lakes and wild life and to have compassion for living

creatures".

Principle 1 of the Stockholm Declaration can be retraced in the Fundamental Rights that are

among the basic features of the Constitution of India. Principle 1 of the Stockholm Declaration

states- Man has the fundamental right to freedom, equality and adequate conditions of life, in

an environment of quality that permits a life of dignity and wellbeing.

Articles 14, 19 and 21 reflect the Principle stated above.

Article 14- Right to Equality The state shall not deny to any person equality before the law or equal protection of the laws

within territory of India.



19

In the case, Sushila Saw Mills vs. State of Orissa19, the Supreme Court held that a ban

imposed on the saw mill business operating in the confines of the protected forests did not

violate Article 14, and was neither unreasonable nor arbitrary.

Articles 19 (1) (g) and 19 (6) - Freedom of trade and business guaranteed All citizens shall have the right to practice any profession, trade or business.

Art. 19(6) under which reasonable restrictions' can be imposed upon such right in the interest of the general public.

These freedoms are not absolute. The Constitution recognises the tendencies of a few trades

and businesses which are prone to polluting the flora and fauna of the land along with

discharging sewage into running water bodies like rivers and lakes. This behavior in turn

leads to damaging impacts on vegetative cover, animals, plants, aquatic species, soil, and

human health. Thus Article 19 (6) sets our restrictions on such behavior which adversely

affects the natural resources of the country.

In the case of MC Mehta vs Union of India20, the river Ganga was being polluted by the

discharges of the tanneries which were operating on its banks. The Supreme Court ordered

the business to establish effluent plants within six months of the court order or face closure.

19

(1995) 5 SCC 615

20 (1995) 5 SCC 615



20

Article 21- Right to Life No person shall be deprived of his life or personal liberty except according to procedure

established by law.

Though not expressly mentioned, the Right to life encompasses in it, the right to a healthy

environment. In the case of Rural Litigation and Entitlement Kendra (RLEK) vs State of

UP21, the mining operation of limestone in the valley was causing ecological disturbance as

contended by the petitioner. The Supreme Court established Committee of Experts which

found the ecological balance to have been damaged. Though the petitioner never contended

redressal of injury under Article 21, but it is an accepted notion, that the court did operate on

the same premise.

In the Seventh Schedule of the Constitution of India, under Article 246, three lists have been

drawn up giving exclusive legislative powers to the Union and state. The Union list empowers

the Central Government, the State list gives powers to the States and the Concurrent list lists

items on which both the Union and States can make laws, though laws made by the Union

supersede the one made by the States.

Union List- Fisheries beyond territorial waters, regulation and development of interstate rivers and river valleys

State List- Land, Water (storage, drainage and embankment, water power, canals and irrigation, water supplies)

Concurrent List- Forest, Wildlife, Boilers 21

(1995) 5 SCC 615



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e) THE INDIAN LEGISLATURE

(A survey of Environmental Laws in India)

Environmental law, post-independence, started growing its roots in India in the early 70s. Inspired by the Stockholm conference, and the fact that India was represented by its head of

state, the only nation to do so, various laws were passed. The Wildlife (Protection) Act 1972 was

the first such statute to be promulgated. In the following years the Water (Prevention and Control

of Pollution) Act of 1974, The Forest (Conservation) Act 1980, The Air (Prevention and Control

of Pollution) Act 1981, and The Environment (Protection) Act 1986 collectively gave the

country a bundle of strong laws.

The Wildlife (Protection) Act 1972 was the first piece of legislation passed to protect the

environment. The Wildlife Act sought to protect species of animals and birds which were under

threat of extinction. There are 410 species of mammals in India which account for 8.86% of the

world's mammals22. Nearly 89 species are listed as threatened in the International Union for

Conservation of Nature and Natural Resources (IUCN) Red List of Threatened Animals (IUCN

2006)23. This includes two species that are locally extinct from India are the Cheetah and the

Indian Javan Rhinoceros. The biggest loss has been the extinction of Asiatic lion. Other

endangered species include endangered mammals like Asiatic Golden Cat, Asiatic Cheetah,

22

Endangered Species of India- http://moef.nic.in/downloads/publicinformation/critically_endangered_booklet.pdf Last visited on 28th January, 2012

23 List of Endangered Species, IUCN- http://www.iucnredlist.org/apps/redlist/search

Last visited on 28th January, 2012



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Indian Wild Ass or Khur and Asiatic Wild Dog/ Dhole. There is a huge governmental and non-

governmental drive to save the tiger despite of which the number of tigers in the country

continues to decrease24.

In essence India had a definitive set of environment protection and enhancement acts before the

Rio Declaration came into force. It can be concluded that India thus had a set of laws which

could counter any environment issue but as is typical fell short due to huge expanse of the laws

which give an easy through-fare to exploiters.

The Water (Prevention and Control of Pollution) Act, 1974 was an effort to reduce and stop

pollution in rivers. The Air (Prevention and Control of Pollution) Act, 1981 is made on similar

lines as the Water Act but it goes a few steps forward in terms of details. It was made to take

appropriate steps for the preservation of the natural resources of the earth which, among other

things, includes the preservation of the quality of air and control of air pollution. It became the

first environmental act to not only put into words the complete spectrum of environmental issues

affecting the air pollution in one act but also gave guidelines to not only protected the air but to

also improved its quality. The act must be lauded for it has an all-inclusive outlook towards

defining key environmental terms. The act also puts forwards meticulous standards of air

pollution with particular regard to industries. These standards are effectively backed by severe

penalties. Offences in the Act include flouting the restrictions on the establishments on certain

industries in air pollution control areas, the emission of air pollutants by any person operating an 24

Current Status of Tigers in India- http://www.wpsi-india.org/tiger/tiger_status.php Last Visited on 31st January, 2012



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industry in an air pollution control area and listed offences by companies. Penalties include

imprisonment of between 1.5 and 6 years, and fine, additional fine in case of a continuing

offence and continuing offence after one year of conviction: imprisonment of between 2 and 7

years, and fine25.

The Environment (Protection) Act (EPA), 1986, is the first Indian legislation to deal with

environment protection and its components in a holistic way. The EPA was purportedly framed

to give effect to the decisions taken at the UN conference on the human environment held in

1972; however, many critics say that it was the Bhopal tragedy that precipitated the enactment of

the legislation. The EPA provided a framework for management of hazardous substances, prior

assessment of the environmental impact of major developmental projects, discharge of industrial

pollutants and effluents into the environment, guidance for industrial sitting, and management of

chemical accidents.

The EPA takes away the independence of the States with regards to action and legislation

towards issues of the environment. The Act requires the States to get clearance from the Centre

to flag off projects. This political invasion leads to many foreseeable delays26. Additionally the

central clearance requirement does not always weed out projects which are given the green signal

25

Section 15 of the Air (Prevention and Control of Pollution) Act, 1981 prescribes penalties

26 Maheshwar Dam Issue in Madhya Pradesh- http://www.thaindian.com/newsportal/india-news/madhya-pradesh-

cm-meets-manmohan-singh-on-maheshwar-dam-issue_100358954.html Last Visited on 28th January, 2012



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are not always the most eco-friendliest of projects. Some of the projects allowed to flourish are

plain exploitative and ecologically damaging.

The Public Liability Insurance Act, 1991 came on the heels of the Bhopal Gas tragedy27. Its main

aim was to provide relief to victims of industrial disaster victims. It became obligatory for

industrial set-ups to obtain insurance which was equivalent to the capital needed to establish the

industry. The District Administration was responsible in giving compensation to the effected

person in reasonable time.

In June 2010 the National Green Tribunal (NGT) Bill was passed. It heralded a new dawn in

environmental protection. The court has been set in Bhopal and five benches spread around the

country with the sole mission to quickly dispose of environmental protection cases. The court

has been designated to be headed by a sitting or retired Supreme Court judge or the Chief Justice

of a High Court. Its first target will be to wrap up 5,600 cases taken from all the High Courts to

of the country. Compensation can be claimed in case of death, disability, damage to property and

loss of business or employment. Though no limit has been fixed for the compensation, the

tribunal may provide relief and compensation to the victims as it may think fit.

27

The Bhopal disaster (also referred to as the Bhopal gas tragedy) is the world's worst industrial catastrophe. It occurred on the night of December 23, 1984 at the Union Carbide India Limited (UCIL) pesticide plant in Bhopal, Madhya Pradesh, India. A leak of methyl isocyanate (MIC) gas and other chemicals from the plant resulted in the exposure of several thousands of people.



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f) INDIAN JUDICIARY AND ENVIRONMENTAL PROTECTION

i. The Evolution of the Indian Judiciary

The Indian Judiciary has seen the same transformation as has the Indian economy and culture.

From the highly strung cultural and economic transformation into an India which is much more

open and receptive, the Judiciary similarly has gone through a revolution which was both

inspiring and trail blazing. Justice Krishna Iyer, in his own vivid terms, explained that:

A Nineteenth Century text, when applied to Twentieth-Century conditions, cannot be construed by signals from the grave.

Justice Krishna Iyer in the landmark decision of Rajendra Prasad vs. State of U.P. observed

that:

When the legislative text is too bald to be self-acting or suffers zigzag distortion in action, the primary obligation is on Parliament to enact necessary clauses by appropriate amendments.

But if legislative under taking is not in sight, judges who have to implement the Code cannot

fold up their professional hands but must make the provision viable by evolution of

supplementary principles, even if it may appear to possess the flavour of law-making.28 Late 1970s saw the Indian courts swing into action under the aegis of Justice P.N. Bhagwati and Justice V.R. Krishna Iyer when they realised that relaxing the requirements of the doctrine of 28

How far is Judicial Activism Justified?- http://airwebworld.com/articles/index.php?article=1204 Last Visited on 29th January, 2012



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locus standi was essential to provide justice to the underprivileged sections of society29. As the

emergency faded away and politics rolled back into an unsteady democracy, a subconscious

understanding was formed amongst the lawyers, judges and social activists who took the aid of

investigative journalism to increase the accountability of law enforcement agencies. These

investigations exposed custodial errors, repression of facts, corruption and loopholes in the

chaotic governmental and administrative systems30.

PIL has thus become a necessary rejection of the laissez faire notions of traditional

jurisprudence. PIL today is a system which allows for redressal of the grievances of those

individuals who do not have adequate means to directly approach the Courts. The first reported

case of PIL in 1979 focused on the inhuman conditions of prisons and under trial prisoners31.

The judgments passed by the courts since then became far more consequential, in public

significance and kept in touch with the letter and spirit of law.

Justice V.R. Krishna Iyer started the principle of liberal interpretation of Article 142 of the

Constitution32. Justice Krishna Iyer quoted Lord Denning in his interpretation of Article 2133:

29

Social Change and Public Interest Litigation in India- http://www.ngosindia.com/resources/pil_sc.php Last Visited on 29th January, 2012

30 Anil Yadav v. State of Bihar, AIR 1982 SC 1008

31 Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360

32 Article 142, Constitution of India- Enforcement of decrees and orders of Supreme Court and orders as to

discovery, etc

33 Article 21, Constitution of India- Right to Life



27

Many of the Judges of England have said that they do not make law. They only interpret it. This is an illusion which they have fostered. But it is a notion which is now being discarded

everywhere. Every new decision - on every new situation - is a development of the law. Law

does not stand still. It moves continually. Once this is recognised, then the task of the Judge is

put on a higher plane. He must consciously seek to mould the law so as to serve the needs of

the time. He must not be a mere mechanic, a mere working mason, laying brick on brick,

without thought to the overall design. He must be an architect - thinking of the structure as a

whole, building for society a system of law which is strong, durable and just. It is on his work

that civilised society itself depends.34

M. P. Jain, a legal luminary, argues that judicial interpretation of Article 21, which provides that

No person shall be deprived of his life or personal liberty except according to procedure established by law; has led to a vast extension of substantive rights.

According to Jain:

The interpretation of Article 21 is the Indian version of the American concept of due process of law, but the scope of the expansion into the substantive domain engineered by the Indian

Court far exceeds that of its American counterpart. The Indian Court has emerged relatively

unscathed in recent decades as a leading actor in the ordering of domestic priorities within the

34

Judicial Interpretation of Article 21 of Constitution of India by Abhay Ostwal- http://legal-articles.deysot.com/constitutional-law/judicial-interpretation-of-article-21-of-the-indian-constitution.html Last Visited on 28th January, 2012

Rajendra Prasad v State of U.P, 1979 SCR (3) 78



28

polity can be attributed in no small measure to a constitutional ethos that encourages all

institutions, including the judiciary, to become active participants in the realization of

particular ideological aspirations. In effect there exists a constitutional mandate for judicial

activism.35

This interpretation is seen in the case of Maneka Gandhi vs. Union of India. The case involved

the refusal by the government to grant a passport to Gandhi, which thus restrained her liberty to

travel. In its ruling in the case, the Supreme Court of India in a departure from its earlier stand

taken in its ruling in A.K. Gopalan vs. State of Madras expanded the scope and content of the

right to life and liberty by introducing the concept of substantive due process to Indian law. In

writing that decision, Justice M Hamedullah Beg found that:

"Democracy is based essentially on free debate and open discussion, for that is the only

corrective of government action in a democratic setup."36

In the SP Gupta case37 the Supreme Court put into fine words the concept of PIL as it is

recognized under Indian Jurisprudence:

35

MP Jain Indian Constitutional Law (2 Vols), 6th Edition 2010, Revised by Samraditya Pal & Ruma Pal 36

Maneka Gandhi vs Union of India, 1978 AIR 59

37 SP Gupta v. Union of India and Others AIR (1982) SC149



29

Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in

contravention of any constitutional or legal provision or without authority of law or any such

legal wrong or legal injury or illegal burden is threatened and such person or determinate

class of persons by reasons of poverty, helplessness or disability or socially or economically

disadvantaged position unable to approach the court for relief, any member of public can

maintain an application for an appropriate direction, order or writ in the High Court under

Article 22638 and in case any breach of fundamental rights of such persons or determinate

class of persons, in this court under Article 3239 seeking judicial redress for the legal wrong or

legal injury caused to such person or determinate class of persons.

38

Article 226, Constitution of India- Power of High Courts to issue certain writs

39 Article 32, Constitution of India- Remedies for enforcement of rights conferred by this Part.



30

ii. Landmark Indian Cases and Environmental Laws and Principles

The Indian judiciary, as a part of its activism, has for long used established international

environmental principles while adjudicating a host of landmark environmental cases in India.

These cases reflect the high standards of awareness of the Indian judiciary which not only took

judicial activism to unseen heights in the country but also provided strong precedents in

environmental actions. The various cases discussed below have had the Judiciary seeking

arguments from various quarters of the world- The various UN Conventions, European Union

Laws and Precedents from Common Law Nations.

The Supreme Court of India has referred to the Stockholm Declaration to be the Magna Carta of our environment40. The Supreme Court refers to several declarations as enacted. In a case the Rio Declaration on Environment and Development was described as agreements which were enacted although their importance is rarely discussed41. With the emphasis placed on such non-binding agreements by the countys highest court has also encouraged environmental lawyers to consider them as logical and heavyweight arguments. The Legislators are also influenced and

begin to consider these declarations as significant. Thus, they are informally transformed into

"Customary International Law. As the Courts believe these unincorporated documents to hold

40

Essar Oil Ltd. v. Halar Utkarsh Samiti, [2004] 2 S.C.C. 392

41 Karnataka Indus. Areas Dev. Bd. v. Kenchappa, 2006, A.I.R. SC 2546, para. 54: "The Earth Summit held in Rio

de Janeiro in 1992 altered the discourses of environmentalism in significant ways. Sustainability, introduced in the 1987 Brundtland Report-Our Common Future-and enacted Rio agreements, became a new and accepted code word for development"



31

values that the Indian Constitution elucidates, it becomes a natural extension for the Courts to

refer to them and implement them in their awards42.

The Polluters Pays Principle and Precautionary Principle Indian Council for Enviro-legal Action v. Union of India43

AP Pollution Control Board v. Nayudu44

Vellore Citizens Welfare Forum v. Union of India45 The Organization of Economic Co-operation and Development and the European Community

starting with the early 1970s supported the idea of Precautionary Principle which gained statutory recognition in many European Nations- including Belgium, France and Germany. This

Principle is today one of the fundamental principles of the environmental policy of European

Community. The Treaty Establishing the European Community, under Title XIX Environment,

provided in the Article 174.246. Principle 15 of the Rio Declaration on Environment and

Development also supports this principle47 and is laid down in Principle 11 of the UN General

42

Research Found. for Sci., Tech. and Natural Res. Policy v. Union of India, 2005 (10) SCC 510

43 1996(3) SCC 212.

44 [2000]Supp5SCR249

45 1996(5) SCC 647, (at 659)

46 Title XIX Environment, Article 174.2: Community policy on the environment shall aim at a high level of

protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

47 Principle 15 of Rio Declaration on Environment and Development: In order to protect the environment, the

precautionary approach shall be widely applied by States according to their capabilities. Where there are 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.



32

Assembly Resolution on World Charter for Nature48. It has also been mentioned in the 1992

Framework Convention on Climatic Change (UNFCC) and in the preamble to the 1992

Convention on Biological Diversity (CBD). These factors led the Court to implement this

principle in this case.

In AP Pollution Control Board v. Nayudu the Indian Supreme Court applied the precautionary

principle in considering a petition against the development of certain hazardous industries. The

Court held that "It is necessary that the party attempting to preserve the status quo by

maintaining a less-polluted state should not carry the burden or proof and the party who

wants to alter it, must bear this burden.

This Supreme Court of India has devised an innovative method to calculate damages to be borne

by the polluter where the Court examines the situation independently, regardless of the claims

put forward by both parties. This allows the court to keep a watch on the deterrent nature of its

award49. It has also held under Article 3250 of the Constitution that pollution fines would not be a

48 Principle 11 of World Charter for Nature- The environmental policies of all States should enhance and not

adversely affect the present or future development potential of developing countries, nor should they hamper the attainment of better living conditions for all, and appropriate steps should be taken by States and international organizations with a view to reaching agreement on meeting the possible national and international economic consequences resulting from the application of environmental measures.

49 M.C. Mehta v. Union of India (Oleum Gas case), AIR 1987 SC 965

50 Article 32, Constitution of India- Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )



33

part of damages; ordinary or exemplary51. In a policy statement issued by the Government of

India, it has been accepted that the Polluters Pays principle has to be an essential aim of the

government policy to prevent and control pollution52.

In the case brought by the Indian Council for Enviro-legal Action, the petitioners sued to stop

and remedy the pollution caused by chemical producing plants, operating without permits, in the

north-western state of Rajasthan. Apart from oleum and single super phosphate, the plants

produced a form of a highly toxic chemical banned in western countries called H Acid.

This landmark case saw the Indian apex court use the Polluters Pays principle inspired by the

Principle 16 of the Rio Declaration on Environment and Development which supports Polluter

Pays Principle53. The court held that if an enterprise is engaged in an inherently dangerous

activity, which might cause harm to another in course of the actions, will have to bear the

financial burden of preventing or remedying the damages that might been caused by the pollution

being created by the manufacturing process. The enterprise would also be strictly and absolutely

liable for the damages caused by his actions.

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

51 M.C. Mehta v. Kamal Nath, AIR 2000 SC 1997

52 Ministry of Environment and Forests, Government of India, Policy Statement for Abatement of Pollution, para

3.3, February 26, 1992.

53 Principle 16 of Rio Declaration on Environment and Development: National authorities should endeavour to

promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.



34

In the Vellore Citizens Welfare Forum case, tanneries in the South Indian state of Tamil Nadu were discharging effluents without treating them which caused huge tracts of agricultural land to

become infertile and groundwater to be severely polluted.

The Court held that Polluters Pays principle, in this case, must extend to paying damages for the

environmental degradation caused by the pollutants discharged by them. The Court also

observed that sustainable development, polluters pay and precautionary principles were part of

international customary law and as such, it had to apply to Indian cases as well. The Court held:

"We have no hesitation in holding that the precautionary principle and polluter pays principle

are part of the environmental law of India. Remediation of the damaged environment is part

of the process of 'Sustainable Development' and as such polluter is liable to pay the cost to the

individual sufferers as well as the cost of reversing the damaged ecology."

This case also formalized Precautionary Principle as a customary international law.

Absolute Liability M.C. Mehta v. Union of India (Oleum Gas case)54

In the Oleum Leak case, the petitioner brought a suit in the Supreme Court of India as a writ

petition where a fertilizer manufacturing plant, operating in a densely populated part of the city

of New Delhi, had a case of leaked oleum gas. This incidence killed a person and severely 54

AIR 1987 SC 965



35

injured others. The closure of the plant caused widespread angst because 4000 workers were

rendered unemployed.

The Supreme Court of India laid down in the case that any industry engaged in a hazardous or

inherently dangerous activity owes an absolute and non-delegable duty to the immediate

community to ensure no harm is done to them. This applies if the activity undertaken in the

facility could create a health or safety hazard not only for the workers but also for those people

who live in the adjacent areas. The enterprise will still be liable if it has taken every possible

precaution and no negligence can be accounted to it. The Court also observed that the larger

physical and economic structure of the enterprise, the heftier would be the compensation.

The Court in its award modified the rule in Rylands v. Fletcher55 and the way it applied to the

Indian cases. Enterprises could not get away with proving the fact that they could not foresee the

injury that was caused and that the activity on their land and premise was not an unnatural use to

begin with.

55

[1868] LR 3 HL 330



36

Sustainable Development and Inter-generational Equity Narmada Bachao Andolan v. Union of India56

M.C. Mehta v. Union of India57

State of Himachal Pradesh v. Ganesh Wood Products58

Sustainable Development has received a global definition thanks to the Brundtland Commission,

in which it was suggested that the phrase covered development that meets the needs of the present without compromising the ability of future generations to meet their own needs.

Yet in Indian context sustainable development primarily meant material or economic progress.

Though the courts have led the environmental protection brigade with extreme enthusiasm which

has allowed concerned citizens to raise their voices effectively, it has had a particularly

controversial position in Indias largest environment law dispute- the Narmada Bachao Andolan v. Union of India wherein it was observed that Sustainable development means what type or extent of development can take place, which can be sustained by nature/ecology with or

without mitigation.

The Narmada Bachao Andolan had filed a written petition with the Supreme Court of India, with

the goal to stop the work on the dam. The Supreme Court first ruled in favour of the petitioners

and stayed the construction till the entire rehabilitation work was done as envisaged. After seven

56

2000 (10) SCC 664 at p.727

57 AIR 1997 SC 734

58 AIR 1996 SC 149



37

years, the Supreme Court gave the green signal to the construction of the dam but also brought

about a machinery which ensured the continuous rehabilitation of the affected population and

kept a strict eye on the issue of raising the height of the dam through the Grievance Redressal

Authorities (GRA) which was established in every state which had a stake in the project.

The court's final line of the order states-

"Every endeavour shall be made to see that the project is completed as expeditiously as

possible".

Subsequent to the courts verdict, Press Information Bureau (PIB) featured an article59 which states that:

"The Narmada Bachao Andolan has rendered a yeoman's service to the country by creating a

high-level of awareness about the environmental and rehabilitation and relief aspects of

Sardar Sarovar and other projects on the Narmada. But, after the court verdict it is incumbent

on it to adopt a new role. Instead of 'damning the dam' any longer, it could assume the role of

vigilant observer to see that the resettlement work is as humane and painless as possible and

that the environmental aspects are taken due care of."

As a developing economy, the Courts have given Sustainable Development a new model where

certain ecologically harmful measures in the name of development are permissible as long as it

59

Dinkar Shukla "Verdict on Narmada 2000". Press Information Bureau, Government of India http://pib.myiris.com/features/article.php3?fl=001108161656 Last Visited on 28th January, 2012



38

does not harm the community critically. This is done so that the future generations may be able

to get benefits from a strong law and ethical developmental practices. This was seen in the Taj

Trapezium case60.

Inter-generational equity is held in high regard as well and is seen as an important component of

conservation of nature and sustainable development, with the Supreme Court invalidating forest

based industry61. In the case Indian Council for Enviro-Legal Action v. Union of India, the

Court noted that the principle would be violated if there were a substantial adverse ecological

effect caused by industry.

Public Trust Doctrine MC Mehta v. Kamal Nath62

Public Trust is a principle that the state has a certain obligation to protect and preserve resources

which are for public use. In the case of MC Mehta v. Kamal Nath, the Court quoted Professor

Joseph Saxs doctrine of public trust63, obligating conservation by the state. In this case, a motel was constructed over the River Beas which interfered with its flow. The court quashed this action

and the private enterprise which was constructing the hotel had to pay compensation to reverse

the damage to the ecology and environment of the area. The Court also held that property meant

for public use and enjoyment could not be transferred to the private domain and ownership.

60

M.C. Mehta v. Union of India, AIR 1997 SC 734

61 State of Himachal Pradesh v. Ganesh Wood Products AIR 1996 SC 149

62 (1997) 1 SCC 388

63 (1997) 1 SCC 388, Para. 24



39

Other Important Cases

Forest Conservation Law has also been significantly been impacted through cases concerning

national parks and sanctuaries64. While hearing this case, the Supreme Court through one of its

interim orders has restrained all State Governments from de-reserving national parks, sanctuaries

and forests.

April 1996 saw another important step being taken when the Supreme Court under the aegis of

Justices Kuldip Singh and S. Saghir Ahmed directed the Chief Justice of the Calcutta High Court

to constitute a special division bench to hear environment-related petitions. Thus this became the

first Green Bench of India. The Supreme Court asked the Calcutta High Court to convene once a week to deliberate on cases related to environmental issues. While deliberating in The

Vellore Citizens Forum case65 the Supreme Court asked the Chennai High Court to constitute a special green bench to deal exclusively with environmental matters in that state. The initiative of

the Supreme Court in setting up these green benches is a very welcome step for a more effective

redressal of environmental disputes.

In the last two-and-a-half decades, the contribution of the Indian judiciary to the evolution of

environmental law regime has been commendable. The higher judiciary has creatively

interpreted the constitutional provisions in the light of emerging principles of environmental

64

Centre for Environmental Law (WWF) India v. Union of India

65 Vellore Citizens Forum v. Union of India and Others (1996) 5 SCC 647



40

jurisprudence to determine liability of industry for damage to environment and human health.

Principles such as precautionary principle, polluter pays, sustainable development and absolute liability are now an integral part of the countrys environmental law regime. The precautionary and polluter-pays principles are articulated under the Environmental Protection

Act, and its rules wherein duty of care and liability for environmental restoration have been cast on the industry.

The judiciary finds itself in a tough spot when it comes to considering environmental issues. The

leading factor remains the balance one has create in terms of interpreting two sets of laws and

economic reality- The law of the land and Constitutional rights, the international laws most

importantly the Rio Declaration along with economic, political and social principles and facts.

The other issue is the pressure put on the capability of jurists and judges on effectively

interpreting these multi-dimensional issues.



41

iii. The National Green Tribunal Act, 2000

Introduction

The Lok Sabha (The lower and most important National Legislative House of India) passed

the National Green Tribunal (NGT) Act of 2000 on 18 October 2010. It encompasses within it

the Fundamental Right to a Healthy Environment that is enshrined in the Indian Constitution

under Article 2166. It heralded a new dawn in environmental protection and will replace the

National Environment Tribunal Act, 1995 and the National Environment Appellate Authority

Act, 1997. The Tribunal in essence is a fast track court specializing in dispensing justice on

environmental issues thus displacing the burden that the Indian courts are bearing at this moment

and giving judicial legitimacy to Principle 13 of the Rio Declaration67. After Australia and New

Zealand, India is the third country to have a dedicated all-encompassing Green Tribunal68.

The National Green Tribunal Act, 2000

The court has been set in Bhopal and five benches spread around the country with the sole

mission to quickly dispose of environmental protection cases. The three circuit benches are set

66

Article 21, Indian Constitution- Right to Life

67 Principle 13, Rio Declaration- states shall develop the national law regarding liability and compensation for the

victims of Pollution and other environmental damage

68 National Green Tribunal Starts Functioning- http://articles.economictimes.indiatimes.com/2011-07-

04/news/29736147_1_national-green-tribunal-ngt-environment-ministry Last Visited 29th March, 2012



42

up in Kolkata, Chennai, and Pune. The court has been designated to be headed by a sitting or

retired Supreme Court judge or the Chief Justice of a High Court. Its first target will be to wrap

up 5,600 cases taken from all the High Courts to of the country. Compensation can be claimed in

cases of death, disability, damage to property and loss of business or employment. Though no

limit has been fixed for the compensation, the tribunal may provide relief and compensation to

the victims as it may think fit. The court must dispose the case in six months. To ease the

disposal of cases the courts are not bound by the Code of Civil Procedure but they are bound by

the principles of natural justice. The Central Government funds the working of the courts. Justice

L.S. Panta, Former Judge of the Supreme Court has been appointed as the first Chairperson of

the NGT69.

Salient features of the Act70

The Act in its Preamble gives a complete view of it motivations that are based in the

international environmental conferences in Stockholm and Rio de Janeiro and the commitments

India made there. The Act makes it clear that it will call on cases which have an unanswered

substantial question of law regarding the environment. The Act also clearly states that it would

69

http://www.greenworldinvestor.com/2011/07/04/national-green-tribunal-ngt-of-india-what-you-need-to-know-historychallengescircuit-benchesnecessity/ Last Visited 29th March, 2012

70 National Green Tribunal Act, 2000- http://moef.nic.in/downloads/public-information/NGT-fin.pdf


The National Green Tribunal Act: An Overview by Aruna B. Venkat (Nalsar Law Review)- http://www.commonlii.org/in/journals/NALSARLawRw/2011/7.html Last Visited 29th March, 2012



43

only encourage cases that affect the broader community at large but they might steam from a

complaint by an individual. Thus, it will not entertain individual actions unless it reflects on the

community as a whole. No civil court in India can entertain cases which fall under the

jurisdiction of the Green Tribunal.

The Act allows a time limitation of six months to file a complaint though it might entertain cases

beyond the limitation period if circumstances dictate so. It also states a limitation period of five

years to apply the relief which has been granted by the Tribunal. Relief can be in form of

compensation, fines, and restitution of private or public property and the damaged environment.

The Act lays down a few principles it will work on. It will entertain complaints and appeals from

other Environmental Authorities established under other environmental laws of India. The Courts

will apply the Principles of Natural Justice and International Environmental Principles, Treaties

and Conventions that India has ratified while following while deciding cases. The Court has been

exempt from following the rules of the Code of Civil Procedure. This will expedite proceedings

and allow the court to not waste time in useless proceedings

The Act provides that an application for grant of relief or compensation or settlement of dispute

may be made to the Tribunal by any person who has sustained the injury, the owner of the

property to which the damage has been caused, all or any of the legal representatives of the

deceased where death has resulted from the environmental damage, any agent duly authorized by

such person or owner of such property or all or any of the legal representatives of the deceased,



44

as the case may be and any person aggrieved including any representative body or

organization.

In addition, the Central or State Governments, or a Union Territory administration or the Central

or State Pollution Control Boards or any environmental authority constituted or established under

the Environment (Protection) Act, 1986 or any other law for the time in force, can also move the

Tribunal.

Cases in the Tribunal

The Green Tribunal officially started functioning on 4th July, 201171. In a recent order by the

NGT in a case regarding coal fired thermal plants, could affect such plants all over India. In the

present case, the residents of a town in Maharashtra were opposing the expansion of a thermal

plant. In the order, the Tribunal directed the Union Ministry of Environment and Forests (MoEF)

to make a detailed assessment of the supposed radiation caused by the thermal power plants in

the country. A week before that, the tribunal had asked MoEF to get prescribed national

standards from Department of Atomic Energy (DAE) within a year on the permissible levels of

nuclear radiation in residential, industrial and ecologically sensitive areas72.

71

National Green Tribunal Starts Functioning- http://articles.economictimes.indiatimes.com/2011-07-04/news/29736147_1_national-green-tribunal-ngt-environment-ministry Last Visited 29th March, 2012

72 Green Tribunal Seeks Details on Radiation from Thermal Power Plants-

http://www.downtoearth.org.in/content/green-tribunal-seeks-details-radiation-thermal-power-plants Last Visited 29th March, 2012



45

In another case, The NGT suspended the environmental clearance obtained by a Belgaum-based

mining company to extract iron ore from the south Maharashtra sea-coast. The tribunal's order

was in response to an appeal filed by the affected villagers, found serious procedural lapses in

grant of environmental clearance by an expert Advisory Committee (EAC) of the MoEF to the

company73.

In two recent cases the Tribunal came into prominence, first because it could get its biggest case

yet and in the second instance it delivered its biggest judgment till date. In the first case the

dispute was regarding the environmental clearance over a residential township being built over a

hilly terrain in the state of Maharashtra. In the said case the Bombay High Court suggested the

case along with the pending PILs regarding the project, be take over the NGT. The High Court has sought the positions of the parties involved in the case if they agree to the suggestion. If

these cases are moved to the NGT, it will be the biggest and the most high profile case to be

given to the Tribunal. In the second instance, the NGT cancelled the steel plant being built by the

South Korean steel giant POSCO, which consequently sent back the largest foreign direct

investment in India back to the drawing board. The $12 million steel plant has been a hotly

debated issue for over seven years because of its location in the tribal heartland which could take

away large tracts of forest land, cause tribal and human rights violation, human displacement,

and potential large scale environmental and ecological disaster74.

73

Green Tribunal Suspends Environmental Clearance to Gogte Minerals- http://www.downtoearth.org.in/content/green-tribunal-suspends-environmental-clearance-gogte-minerals Last Visited 29th March, 2012

74 Lavasa Petitions Can be Heard BY Green Tribunal, Says HC- http://economictimes.indiatimes.com/news/news-

by-industry/indl-goods-/-svs/metals-mining/lavasa-petitions-can-be-heard-by-green-tribunal-hc-uggests/articleshow/10754888.cms



46

g) INDIA AND INTERNATIONAL ENVIRONMENTAL LAW

The fact remains that they have a persuasive value and command respect. The Rio Declaration is the product of hectic discussion among the leaders of the nations of the world

and it was after negotiations between the developed and the developing countries that an

almost consensus declaration had been sorted out. Environment is an international problem

having no frontiers creating trans-boundary effects. In this field every nation has to cooperate

and contribute and for this reason the Rio Declaration would serve as a great binding force

and to create discipline among the nations while dealing with environmental problems75

Since the United Nations Conference on the Human Environment, held in Stockholm in 1972,

India has been an active participant in every such conference and has passed numerous

environmental laws relating to environmental protection. International environmental law has

deep foundations in these laws and India has not only ratified many UN Conventions but the

judiciary has actively implemented them on its own accord in the many landmark judgments, as

far back as the 1980s. India also has a burgeoning NGO community which is deeply resourceful and committed to making India an environmentally friendly state. As India is a Commonwealth

nation, one can frequently look to countries like England, USA, and Australia for precedents.

This gives legislators, lawyers, and judges access to global jurisprudence, which is unparallel and

brings to them a wealth of knowledge.

Poscos Steel Dreams Laid to Rest- http://www.tehelka.com/story_main52.asp?filename=Ne140412POSCO.asp Last Visited 31st March, 2012

75 Zia v. WAPDA, P L D 1994 Sup. Ct. 693



47

i. International Law, the Indian Constitution, Executive and Legislature

Articles 24676 and 25377 read with Entries 13 and 14 of List I78 of the Seventh Schedule of the

Indian Constitution give the Government of India the authority to implement any international

treaty that the country has signed. Article 253 gives the Central Government the power to enact

laws on such international instruments unless it violates the division of powers as given under

Article 246 when read with the Seventh Schedule.

Under Article 5379, the executive powers of the Union rest with the President of India. The

President may execute the powers through the Presidential office or through subordinate officers.

76

Article 246, Constitution of India- Subject matter of laws made by Parliament and by the Legislatures of States (1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List) (2) Notwithstanding anything in clause ( 3 ), Parliament, and, subject to clause ( 1 ), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List) (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List

77 Article 253, Constitution of India- Legislation for giving effect to international agreements

Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body 78

Entry 13- Participation in international conferences, associations and other bodies and implementing of decisions made thereat. Entry 14- Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign Countries. 79

Article 53, Constitution of India- Executive power of the Union (1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution (2) Without prejudice to the generality of the foregoing provision, the supreme command of the Defense Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law (3) Nothing in this article shall (a) be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority; or (b) prevent Parliament from conferring by law functions on authorities other than the President



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Article 7380 of the Indian Constitution confers upon the government of India executive powers.

India follows the dualist theory of implementing international law through national laws. It

means, that every international treaty, declaration, accord or agreement, has to be passed as a

Legislation for the courts to implement it as law81. Thus, international laws cannot automatically

form part of national laws unless they are incorporated by the Parliament through legislation.

Article 51 (c)82 of the Indian Constitution is the instrument by which International Law becomes

enforceable by laws in India. Article 51 (c) has been made part of the Indian Constitution as

Directive Principle of State Policy. This is a principle which is directive and not enforceable. Yet

the states are morally duty bound by enforce these directives though one cannot bring a suit in

the Courts of the country if the state does not fulfill its moral obligations with regards to these

directive principles. Good faith is the inspiration behind India to implement international laws in

the Indian context. Though there is strict division of powers in India, the judiciary often finds

80 Article 73, Constitution of India- Extent of executive power of the Union

(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend (a) to the matters with respect to which Parliament has power to make laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the government of India by virtue of any treaty on agreement: Provided that the executive power referred to in sub clause (a) shall not, save as expressly provided in this constitution or in any law made by Parliament, extend in any State to matters with respect in which the Legislature of the State has also power to make laws (2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution Council of Ministers

81 Gramophone Company of India Ltd. v. Birendra Bahadur Pandey AIR 1984 SC 667

82 Article 51 (c), Constitution of India- Promotion of international peace and security

The State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and encourage settlement of international disputes by arbitration



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itself interpreting international laws in cases, on its

Environmental Law in India by Sayan S. Das-libre

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