Environment Law

Project Topic:

Role of Judiciary in Developing new Principles & Mechanisms to

Achieve Sustainable Development

Submitted to: Submitted By:

Sabina Salim Harkirat Singh
Roll. No. 283/16
Section C

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 ACKNOWLEDGEMENT
In preparation of my assignment, I had to take the help and guidance of some respected
persons, who deserve my deepest gratitude. As the completion of this project report gave me
much pleasure, I would like to show my gratitude to Sabina Salim ,UILS , Panjab University
for giving me a good guidelines for assignment throughout numerous consultations. I would
also like to expand my gratitude to all those who have directly and indirectly guided me in
writing this project report.
In addition I would like to thank Director of the Department, who provided me the
opportunity of completing the project.
Many people, especially my classmates have made valuable comment suggestions on my
report which gave me an inspiration to improve the quality of the project report.

Harkirat Singh

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 Table of Contents

1) Introduction 5

2) Salient Principles of Sustainable Development 8

3) History of the Concept 6

4) Inter-generational Equity 9

5) The Evolution of this Principal in India 23

6) Public Trust Doctrine 30

7) Public Trust Doctrine in India 32

8) Environmental Protection:Supreme Court Activism 38

9) Environmental Pollution & Sustainable Development 40

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 Table of Cases

i) K Guruprasad Rao v. St of Karnataka

ii) S. Jagannath v. Union of India
iii) Indian Handicrafts Emporium v. Union of India
iv) Citizen Consumer & Civic Action Group v. Union of India
v) Velfare Citizens Welfare Forum v. Union of India
vi) Narmada Bachao Andolan v. Union of India
vii) M.C Mehta v. Union of India
viii) A.P Pollution Control Board v. Prof M V. Nayadu
viii) Indian Council for Enviro Legal Action v. Union of India
ix) M.C Mehta v. Kamal Nath
x) Pravinbhai J. Patel v. St. of Gujarat
xi) Deepak Nitrite Ltd. v. St. of Gujarat
xii) M.C Mehta v. Union of India (Calcutta Tanneries Case)
xiii) Vijay Singh Punia v. St. of Rajasthan
xiv) Majra Singh v. Indian Oil Corporation
xv) M.I Builders Pvt. Ltd. v. Radhey Shyam Sahu
xvi) Bichhri Village Case
xvii) Portugal v. F.C Council
xviii) Goa Foundation v. Diksha Holdings Pvt. Ltd.
xix) D.K. Basu v. St. of West Bengal

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 INTRODUCTION

T he Brundtland Commission’s brief definition of sustainable development as the “ability

to make development
needs of the present without
sustainable—to ensure that it meets the
compromising the ability of future
generations to meet their own needs” is the standard definition
when judged by its widespread use and frequency of citation.
Sustainable development promotes the idea that social, environmental,
and economic progress are all attainable within the limits of our earth’s natural
resources. Another way to define sustainable development is in what it
specifically seeks to achieve.

Sustainable development constantly seeks to achieve social and economic progress in ways that
will not exhaust the earth’s finite natural resources. The needs of the world today are real and
immediate, yet it’s necessary to develop ways to meet these needs that do not disregard the
future. The capacity of our ecosystem is not limitless, meaning that future generations may not
be able to meet their needs the way we are able to now.
Sustainable development aims to maintain economic advancement and progress while protecting
the long-term value of the environment; it provides a framework for the integration of
environment policies and development strategies. This concept of conserving resources for
future generations is one of the major features that distinguish sustainable development policy
from traditional environmental policy, which also seeks to internalise the externalities of
environmental degradation. The overall goal of sustainable development is the long-term
stability of the economy and environment; this is only achievable through the integration and
acknowledgement of economic, environmental, and social concerns throughout the decision
making process.

The connections between the environment and development thus provide a powerful rationale for
environmental protection. This inherent interdependence between the long-term stability of the
environment and the economy is the foundation of the field of sustainable development.

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Sustainable development policies look to tackle the sources of environmental degradation, not
just the symptoms, while still providing opportunities and creating incentives for economic
advancement. The principle of sustainable development seeks to harmonize the conflict between
development which may be industrial, economic or social, and right to healthy environment. In
other words, the balance between environmental protection and developmental activities could
only be maintained by strictly adhering to the principle of sustainable development.

HISTORY OF THE CONCEPT:

The United Nations Conference on the Human Environment in Stockholm in

1972 gave birth to the first true notion of sustainable development, which was
called ‘eco development’ in those days. This founding conference was held in
an atmosphere of conflict between the ecology and the economy. It brought the
industrialised and developing nations together to delineate the ‘rights’ of the human family to a
healthy and productive environment.

The term ‘sustainable development’ remained virtually unnoticed until its revival in the Gro
Harlem Brundtland report 'Our common future', published in 1987. As the Prime Minister of
Norway and the chair of the World Commission on Environment and Development (WCED) at
the time, she aimed to clarify this concept of sustainable development as ‘development that
fulfils the needs of the present without compromising the ability of future generations to fulfil
theirs’. Since then, the concept of sustainable development has been accepted all over the world.

In June 1992, the first UN Conference on Environment and Development (UNCED) was held in
Rio de Janeiro and adopted an agenda for environment and development in the 21st Century.
Agenda 21: A Programme of Action for Sustainable Development. The spirit of the conference
was captured by the expression "Harmony with Nature", brought into the fore with the first
principle of the Rio Declaration: "Human beings are at the centre of concerns for sustainable
development. They are entitled to a healthy and productive life in harmony with nature".

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The 2002 World Summit on Sustainable Development marked a further expansion of the
standard definition with the widely used three pillars of sustainable development: economic,
social, and environmental.

In the recent United Nations Sustainable Development Summit 2015, the General Assembly
adopted an agenda as a plan of action for people, planet and prosperity. It also seeks to
strengthen universal peace in larger freedom. It recognises the need for eradicating poverty in all
its forms and dimensions, including extreme poverty, which is the greatest global challenge and
an indispensable requirement for sustainable development.

SCOPE:

The concept of sustainable development, as pointed out by the chairperson Ms. Brundtland in her
report (popularly called the Brundtland report) is aimed at meeting the needs of the present
without compromising the ability a future generations to meet their own needs. Commenting on
sustainable development, the Former President of the World Bank James D. Yolkenson observed,
“It is for us to think as to what kind of world we want. Do we want to bequeath a world for our
future generation a poorest world wherein innumerable people die of hunger, climate uncertainty,
biodiversity at its lowest ebb and social conditions most unstable? This observation of Volkenson
clearly shows that the central focus of sustainable development is not confined to the present
happiness of the people but it also expends to safeguarding the interests of the coming
generations. Sustainable development involves a multi-faceted approach i.e.

(1) economic, (2) human, (3) environmental, and (4) technological.

It is a process which seeks to bring improvement in the quality of human life along-with
conservation of the ecological system. Thus, development and environment, both are inter-
dependent and therefore, there cannot be development without protection of environment, nor
can there be conservation of environment without development.1

1 Philippe Sands: Principles of International Environmental Law (1995) p. 198

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The former U.N. General-Secretary Kofi-Annan had identified five areas for the applicability of
the principle of sustainable development. They are:

(1) Water, (2) Health, (3) Power and Energy, (4) Agriculture and (5) Bio-diversity.2

Former Prime Minister of India Smt. Indira Gandhi had categorically stated in her address at the
Stockholm Conference, 1972 that water, air, land, soil, plants, trees and living organisms must be
preserved because they are valuable natural resources for the benefit of the future generations.

OBJECTIVES:

The principle of sustainable development seeks to achieve the following three basic objectives:

(1) To maintain production of goods and services for development and efficiency;

(2) Conservation and management of natural resources including preservation of bio-diversity

and maintenance of biological integrity;

(3) Maintenance and enhancement of the quality of life adopting the principle of equitable
distribution of wealth and material resources.

These objectives may respectively be called as economic, environmental and social objectives of
the principle of sustainable development.

From the social perspective, advocates of sustainable development, recognize the social
component of development as an essential part of the new paradigm. A ‘human development’
approach emphasising issues of basic needs and equity is well grounded in the history of
economic theory.
Basic needs and equity in development have been the focus of the United Nations Development
Programme’s series of Human Development Reports. In addition to calculating the Human
Development Index, which offers a different measure of development success from per capita
GNP or GDP, the Human Development Reports focus each year on a different aspect of social
and economic development, such as democratic governance, gender inequity, and poverty

2 United Nations Conference on Environment & Development, Rio-de-Janerio, 1992

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 SALIENT PRINCIPLES OF SUSTAINABLE DEVELOPMENT

The principles of sustainable development received international recognition as a result of

Brundtland Commission Report (1987) which was overwhelmingly supported by all the nations.
Some of the salient principles which underlie the concept of sustainable development were
spelled out in the Rio Declaration, 1992. Therefore, these principles have got to be necessarily
followed in order to achieve the objective of sustainable development.

Also, once these principles are accepted as part of the Customary International Law there would
be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition
of law that the rule of Customary International Law which is not contrary to the municipal law
shall be deemed to have been incorporated in the domestic law and shall be followed by the
Courts of Law.3

These principles are as follows:

• Inter-generational equity;

• Use and conservation of natural resources;

• Environmental protection;

• The precautionary principle;

• The ‘Polluter Pays’ principle;

• Principle of ‘public trust’

• Obligation to assist and co-operate;

• Eradication of Poverty

• Financial Assistance to developing countries

3 S. Jagannath v. Union of India AIR 1997 SC 811

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These principles are explained below -

INTER-GENERATIONAL EQUITY:

The principle of inter-generational equity pre-supposes the right of each generation of human
beings to benefit from cultural and natural resources of the past generation as well as the
‘obligation’ to preserve such heritage for future generations. The principle emphasises on
conservation of biodiversity resources and of the renewable sources like forests, water, soil etc.

The principle of inter-generational equity has its genesis in Principles 1 and 2 of the Stockholm
Declaration, 1972 wherein environment has been taken to be resource basis for the survival of
the present generation and right to be beneficially used by the future generations. Both these
principles are reproduced as follows:

Principle 1: 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 well-being, and he bears a solemn
responsibility to protect and improve the environment for the present and future generations.

Principle 2: The natural resources of the earth, including the air, water, lands, flora and fauna,
and especially representative samples of natural ecosystems, must be safeguarded for the benefit
of the present and future generations through careful planning and management, as appropriate.

In A.P. Pollution Control Board v. M.V. Nayudu4, the Apex Court observed that where the State
Government makes an attempt to balance the need of the environment and need of the economic
development, it would not be proper to prohibit it from doing so. In such a case, it would be safer
to apply the ‘protective principle’ and the ‘principle of polluter pays’, keeping in mind the
principle of sustainable development and the ‘principle of inter-generational equity.5

Similarly, Principle 3 of the Rio Declaration of 1992 says that – “the right to development must
be fulfilled so as to equitably meet the developmental and environmental needs of present and
future generations”. The natural resources, land, air and water on the planet earth cannot be

4 (1999) 2 SCC 718

5 P.S. Nathani : Environment, Natural Resources and Pollution, (2007) p. 53

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exhausted by the present generation to meet their needs. The present generation is under the
obligation to leave something for the next generation also. In other words, there is an inter-
generational equity and the developmental process to meet the essential needs of the present
generation by using the natural resources has to be on that basis. However, it must be
remembered that there is inequality between the people as a result of greed and the
maldistribution of power which is major obstacle in achieving sustainability.

In K.Guruprasad Rao v. State of Karnataka6, the appellant, an advocate filed a PIL praying for
the cancellation of the mining lease granted to respondent and stopping mining within the radius
of 1km from the Jambunatheswara temple (Karnataka). The court explained the ambit and scope
of inter-generational equity and sustainable development. Sustainable development includes
preservation and protection of archaeological/ historical monumental wealth for future
generations. Right to Sustainable development includes the whole spectrum of civil, cultural,
economic, political and social process for the improvement of people’s well being and realisation
of their full potential.

II) USE AND CONSERVATION OF NATURAL RESOURCES

This principle requires that earth's natural resources should be carefully used in such a way that
they may be conserved and enhanced for the future generation. It must be borne in mind that
natural resources are already depleting due to poverty, over- population, urbanisation,
industrialisation etc. and there is likelihood of acute shortage of these resources in future.
Therefore, there is dire need to develop techniques and technologies which may need minimal
utilisation of natural resources.

The principle of use and conservation of resources is founded on the theory that the present
generation should be modest in their exploitation of natural resources for the benefit of the future
generations. This will secure the conditions of survival for future generations. This principle has
been accepted by the international community in the form of Principles 8 and 23 of the Rio Earth
Summit Declaration, 1992.

6 (2013) 8 SCC 418

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Principle 8 provides that in order to achieve sustainable development and a high quality of life
for all people, States should reduce and eliminate unsustainable pattern of production and
consumption. Thus, use and conservation of natural resources should be an essential principle of
sustainable development. Similarly, Principle 23 of the Rio-Declaration (1992) specifically states
that the environment and natural resources of people under oppression, domination and
occupation, shall be protected by all means. Supreme Court applying the principle of careful use
and conservation of natural resources observed in the case of S. Jagannath v. Union of India7,
that activities of the industries violative of this principle and of, environmental legislations must
be discouraged.

In Indian Handicrafts Emporium v. Union of India8, the indigenous ivory or ivory articles were
prohibited from being exported as it impugned Wild Life (Protection) Act, 1972 and was also
against the moral claims embodied under Article 48-A of the Constitution and principle of
conservation of natural resources.

III) ENVIRONMENTAL PROTECTION

Environmental protection is an integral part of sustainable development. Most of the nations

have enacted environmental protection laws to ensure sustainable development within their
territories. In order to reinforce sustainable development, an effective environmental protection
mechanism is needed. It is generally seen that inadequate protection of environment or its
degradation affects the poorest sections of the society most as they draw a large part of their
livelihood from unmarked environmental resources such as forests, water from hand pumps, air
polluted and noisy slum dwellings etc. The problem of environmental protection generally
emanates from water resources, forests, agriculture, industry, energy and power etc., therefore,
policy decisions in these sectors should be environmental oriented and well planned so as to
ensure that there is no degradation in the natural environment.

7 AIR 1997 SC 811

8 AIR 2003 SC 3240

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In, Citizen Consumer and Civic Action Group v. Union of India9, the court observed that while
the courts have social accountability in the matter of protection of environment, there should be a
proper balance between the same and development activities, which are essential for progress.
There can be no dispute that the society has to prosper, but it shall not be at the expense of of
environment. In the like vein, the environment shall have to be protected, but not at the cost of
development of the society. Both development and environment shall co-exist and go hand-in-
hand. Therefore, a balance has to be struck and administrative actions ought to proceed in
accordance therewith and not de-hors the same.

The debate between the development and economic needs and that of the environment is
enduring one, since if the environment is destroyed for any purpose without any compelling
development cause, it will most probably run foul of the executive and judicial safeguards. In
response to this difficulty, policy makers and judicial bodies across the world have produced the
concept of sustainable development. Accordingly, the court has to follow the principle of
sustainable development and find a balance between the developmental needs and environmental
degradation. So far India is concerned, the Environment (Protection) Act, 1986 is the central
legislation. Besides, there are some other pollution control and prevention laws and States have
also framed their own anti-pollution laws according to their local requirements. The ultimate
object is to ensure sustainable development for protection of environment from being degraded
or polluted.

IV) PRECAUTIONARY PRINCIPLE:

In common language the principle means, “better safe than sorry”. The Precautionary Principle
denotes a duty to prevent harm, when it is within our power to do so, even when all the evidence
is not in.10 In short, the “precautionary principle” is a notion which supports taking protective
action before there is complete scientific proof of a risk; that is, action should not be delayed

9 AIR 2002 Mad 298

10 See also http//www.cela.ca/collections/pollution/precautionary-principle

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simple because full scientific information is lacking.11 The precautionary principle states that if
there is risk of severe damage to humans and/or the environment, absence of incontrovertible,
conclusive, or definite scientific proof is not a reason for inaction. It is a better-safe-than-sorry
approach, in contrast with the traditional reactive wait-and-see approach to environmental
protection. When there is uncertainty regarding the impacts of an activity, the precautionary
principle advocates action to anticipate and avert environmental harm. In other words,
inadequacies of science is the real basis that has led to the Precautionary Principle of 1982. It is
based on the theory that it is better to err on the side of caution and prevent environmental harm
which may indeed become irreversible. The principle of precaution involves the anticipation of
environmental harm and taking measures to avoid it or to choose the least environmentally
harmful activity.12 The precautionary principle pre-supposes that onus of proof is on the
industrialist to show that his action is benign, that is not harmful to environment.13

Definition: There two widely referred definitions of the Precautionary Principle – the first one,
The Rio Declaration (or Agenda 21) of 1992, states that: “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 degradation14.”

This definition given primarily with environmental issues in focus is also extended to cover
health issues. The second definition is based on 1998 Wingspread Statement on the
Precautionary Principle and it states: “…When an activity raises threats of harm to human health
or the environment, precautionary measures should be taken even if some cause and effect
relationships are not fully established scientifically. The process of applying the precautionary
principle must be open, informed and democratic and must include potentially affected parties. It

11 See also http;//www.wto.org/English/tratop_e/sps_agreement_cbt_e/c8s2p 1_e.htm

12 A.P. Pollution Control Board vs Prof.M.V.Nayudu (Retd.) & Others on 27 January, 1999

13 P.S. Jaswal and Nishtha Jaswal: Environmental Law, Allahabad Law Agency, Faridabad (2013) p. 120

14 Principle 15 of Rio Declaration.

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must also involve an examination of the full range of alternatives, including no action. In this
context the proponent of an activity, rather than the public, should bear the burden of proof.”

Origin of the Concept: The term ‘precautionary principle’ had its origin in the
German word Vorsorgeprinzip. An alternative translation of this word
would mean ‘foresight principle’ – which could have given an active and
positive impression, as against the reactive and perhaps negative connotation
attached with precaution. Though the principle had its roots in the German
environmental policy, it has entered the centre-stage of the global environmental
policy in the past two-and- half decades with several global environmental treaties
invoking the PP for decision making. In Germany the Precautionary Principle may be traced
back to the first draft of a bill (1970) aimed at securing clean air. The law was passed in 1974 and
covered all potential sourced of air pollution, noise, vibrations and similar processes. The most
unambiguous elaboration of the precautionary principle in German environmental policy is from
a later date and reads: ‘Responsibility towards future generations commands that the natural
foundations of life are preserved and that irreversible types of damages, such as the decline of
forests, must be voided.’ Thus the principle of precaution commands that the damages done to
the natural world (which surrounds us all) should be avoided in advance and in accordance with
opportunity and possibility.

Assimilative Capacity to Precautionary Principle- A shift: The “Precautionary Principle” is a

component of the concept of ecologically sustainable development and has been defined in
Principle 15 of the Rio Declaration, 1992.” According to this principle, “where there is threat of
serious or irreversible environmental damage, lack of full scientific certainty should not be used
as a reason for postponing measures to prevent environmental degradation." In other words, any
human activity or behaviour which bears the harmful effect to the environment, has got to
prevented at all costs. It may be stated that prior to the precautionary principle as incorporated in
Principle 15 of the Rio-Declaration, 1992, Principle 6 of the Stockholm Declaration, 1972
relating to the Assimilative Capacity Principle was the governing rule which provided as, “The
discharge of toxic substances and the release of heat, in such quantities or concentrations as to

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exceed the capacity of the environment to render them harmless, must be halted in order to
ensure that serious irreversible damage is not inflicted upon ecosystem. The just struggle of the
peoples of all countries against pollution should be supported.”

Thus, the assimilative capacity principle assumed that science could provide policy-makers the
information and means necessary to avoid encroaching upon the capacity of the environment to
assimilate impacts and it is presumed that relevant technical expertise would be available when
environmental harm was predicted and there would be sufficient time to act in order to avoid
such harm. A basic shift in the approach to environmental protection occurred initially between
1972 and 1982. Earlier the Concept was based on the `assimilative capacity' rule as revealed
from Principle 6 of the Stockholm Declaration of the U.N.Conference on Human Environment,
1972. The said principle assumed that science could provide policy-makers- with the information
and means necessary to avoid encroaching upon the capacity of the environment to assimilate
impacts and it presumed that relevant technical expertise would be available when environmental
harm was predicted and there would be sufficient time to act in order to avoid such harm. But in
the 11th Principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982,
the emphasis shifted to the `Precautionary Principle', and this was reiterated in the Rio
Conference of 1992 in its Principle 15 which has been mentioned above.15

Which implies that When the impacts of a particular activity – such as emission of hazardous
substances – are not completely clear, the general presumption has usually been to let the
activities go ahead until the uncertainty is resolved completely. The PP counters such general
presumptions. When there is uncertainty regarding the impacts of an activity, the PP advocates
action to anticipate and avert environmental harm. Thus, the PP favours monitoring, preventing
and/or mitigating uncertain potential threats.

Onus of Proof: When an activity is likely to cause harm to the environment and/or humans, the
conventional practice is that the opponents of the activity have to provide the proof of the
harmful effects caused by the activity. The precautionary principle, on the other hand, shifts the

15 A.P. Pollution Control Board vs Prof.M.V.Nayudu (Retd.) & Others AIR 1999 SC .

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burden of proof to the proponents of the activity – i.e., the proponents have to establish that the
proposed activity will not cause any harm to the environment and/or human-beings. Further, it is
also argued that since scientific uncertainty is inherent in the environmental problems for which
the PP is typically applied, the decision making process based on the PP may become more
inclusive, participatory and democratic. It is to be noticed that while the inadequacies of science
have led to the `precautionary principle', the said `precautionary principle' in its turn, has led to
the special principle of burden of proof in environmental cases where burden as to the absence of
injurious effect of the actions proposed, - is placed on those who want to change the status quo
(Wynne, Uncertainity and Environmental Learning, 2 Global Envtl. Change 111 (1992) at p.123).
This is often termed as a reversal of the burden of proof, because otherwise in environmental
cases, those opposing the change would be compelled to shoulder the evidentiary burden, a
procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the
status quo by maintaining a less- polluted state should not carry the burden of proof and the party
who wants to alter it, must bear this burden. (See James M.Olson, Shifting the Burden of Proof,
20 Envtl. Law p.891 at 898 (1990)). (Quoted in Vol.22 (1998) Harv. Env.Law Review p.509 at
519, 550). The precautionary principle suggests that where there is an identifiable risk of serious
or irreversible harm, including, for example, extinction of species, widespread toxic pollution in
major threats to essential ecological processes, it may be appropriate to place the burden of proof
on the person or entity proposing the activity that is potentially harmful to the environment. (See
Report of Dr.Sreenivasa Rao Pemmaraju, Special Rapporteur, International Law Commission,
dated 3.4.1998, para 61). It is also explained that if the environmental risks being run by
regulatory inaction are in some way "uncertain but non- negligible", then regulatory action is
justified. This will lead to the question as to what is the `non-negligible risk'. In such a situation,
the burden of proof is to be placed on those attempting to alter the status quo. They are to
discharge this burden by showing the absence of a `reasonable ecological or medical concern'.
That is the required standard of proof. The result would be that if insufficient evidence is
presented by them to alleviate concern about the level of uncertainty, then the presumption
should operate in favour of environmental protection.16

16 A.P. Pollution Control Board vs Prof.M.V.Nayudu (Retd.) & Others, AIR 1999 SC 812 at 821.

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Precautionary Principle in Indian Concept: In India, there are lots of environmental
regulations as Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and
Control of Pollution) Act, 1981, and the Environment (Protection) Act, 1986 are aimed at
cleaning up pollution and controlling the amount of it released into the environment. They
regulate the harmful substances as they are emitted rather than limiting their use or production in
the first place. These laws are based on the assumption that humans and ecosystems can absorb a
certain amount of contamination without being harmed. But the past experience shows that it is
very difficult to know what levels of contamination, if any are safe and therefore, it is better to
err on the side of caution while dealing with the environment. The Precautionary Principle has
not been explicitly mentioned in any environmental laws in India. However, the Supreme Court
of India has invoked this principle while passing judgments.

Beginning with Vellore Citizens’ Welfare Forum v. Union of India17(Tamil Nadu Tanneries Case),
the Supreme Court explicitly recognised the precautionary principle as a principle of Indian
environmental law in a number of subsequent cases. In the instant case, , about 900 tanneries in
five districts of the State of Tamil Nadu were discharging enormous amount of untreated effluent
consisting of about 170 different types of chemicals into agricultural fields, roadside, waterways
and open land. About 35,000 hectares of land became partially or totally unfit for cultivation.
The water in the area including river Palar, which was the main source of drinking water in the
state became unfit for consumption and irrigation purposes. Therefore, the petitioners filed a
petition in the public interest under Article 32 of the Constitution of India, directed against the
pollution caused by enormous discharge. The Hon'ble Supreme Court held that "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." Drawing support from various articles of the Constitution of India (Article
21, 47, 48A, 51A(g)) and arguing that the Precautionary Principle is part of customary
international laws (and hence part of domestic laws), the Court has strongly supported the

17 AIR 1996 SC 2515

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application of precautionary principle. Justice Kuldip Singh of the Supreme Court in Vellore
Citizens case laid down the following rules with regard to precautionary principle :-

(1) The State Governments and local authorities are supposed to anticipate and then prevent the
cause of environmental degradation. They are supposed to check the activity which is damaging
for environment;

(2) Merely because there is a lack of scientific knowledge as to whether a particular activity is
causing degradation, it should not stand in the way of the Government;

(3) The onus of proof is on the actor (i.e. person who does the activity) or the developer/
industrialist to show that the action was environmentally friendly.

In order to achieve the above, the following precautions are supposed to be taken: 

(i) The decision should be based on best possible scientific information and analysis of risk; (ii)
Where there is uncertainty but potentially serious risk exists, even then precautionary measures
are supposed to be taken; (iii) Ecological impacts should be given paramount consideration,
more so when resources are non-renewable or where the result is irreversible; (iv) The indication
of the cost should be made known directly to the person who if does not take precaution, can be
called upon to meet the expense – a subject which may fall under the head “polluter pays
principle.” The Court further, while accepting the principle as part of domestic laws went on to
state that “In view of the above mentioned constitutional and statutory provisions we have no
hesitation in holding that the precautionary principle and the polluter pays pcinciple are part of
the environmental law of the country. Even otherwise once these principles are accepted as part
of the Customary International Law there would be no difficultly in accepting them as part of the
domestic law. It is almost accepted proposition of law that the rule of Customary International
Law which are not contrary to the municipal law shall be deemed to have been incorporated in
the domestic law and shall be followed by the Courts of Law.”

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In Narmada Bachao Andolan v. Union of India18, the Apex Court explained that “when there is a
state of uncertainty due to lack of data or material about the extent of damage or pollution likely
to be caused, then in order to maintain ecological balance, the burden of proof that the said
balance will be maintained, must necessarily be on the industry or the unit which is likely to
cause pollution.”

In M.C.Mehta vs. Union Of India19 the Supreme Court issued directions towards the closing of
mechanical stone crushing activities in and around Delhi, which was declared by WHO as the
third most polluted city in the world. However it realised the importance of stone crushing and
issued directions for allotment of sites in the new 'crushing zone' set up at village Pali in the state
of Haryana.

In AP Pollution Control Board v. Prof. M V Nayudu20, the Supreme Court comprehensively

reviewed the precautionary principle. An application was submitted by a company to the
Pollution Control Board for permission to set up an industry for production on “BSS Castor Oil
Derivatives”. Although a letter of intent had later been received by the company, the Pollution
Control Board did not give its no objection certificate to the location of the industry on the site
proposed by it. The Pollution Control Board, while rejecting the application for consent, inter
alia, stated that the factory fell under the red category of polluting industry and it would not be
desirable to locate such an industry in the catchment area of Himayat Sagar, a lake in Andhra
Pradesh. The appeal filed by the company against the decision of the Pollution Control Board
was accepted by the appellate authority. A writ petition was filed in the nature of public interest
litigation and also by the Gram Panchayat challenging the order of the appellate authority but the
writ petition was dismissed by the High Court. On the other hand, the writ petition filed by the
company was allowed and the High Court directed the Pollution Board to grant consent subject
to such conditions as may be imposed by it. The decision of the High Court was the subject
matter of challenge in the Supreme Court of India. The Supreme Court referred to the difficulty

18 A.I.R 2000 S. C. 3751

19 [1992] INSC 165

20 AIR 1999 SC 812 at 821.

20
courts face in dealing with highly technological or scientific data. The Court noted that
uncertainty in science in the environmental context has led international conferences to formulate
new legal theories and rules of evidence. One of these is the precautionary principle.21
The Supreme Court discussed the earlier decision in Vellore Citizens Welfare Forum v Union of
India22 where it was held that the precautionary principle, and the shifting of the burden of proof
onto the developer or industrialist who is proposing to alter the status quo, are part of the
environmental law of the country. They found it “necessary to explain the meaning of the
principles in more detail, so that courts and tribunals or environmental authorities can properly
apply the said principles in the matters which come before them”

“The principle of precaution involves the anticipation of environmental harm and taking
measures to avoid it, or to choose the least environmentally harmful activity. It is based on
scientific uncertainty. Environmental protection should not only aim at protecting health,
prosperity and economic interest, but also protect the environment for its own sake.
Precautionary duties must not only be triggered by the suspicion of concrete danger, but also by
(justified) concern or risk potential”.23

V) POLLUTER PAYS PRINCIPLE:

“The ‘polluter pays principle’ states that whoever is responsible for damage to the environment
should bear the cost associated with it.”24 The Polluter Pays Principle is one of the internationally
recognized principles that influence the shaping of environmental policy at both the national and
international level. This principle has become a popular catchphrase in recent times. 'If you make
a mess, it's your duty to clean it up'- this is the main basis of this slogan. The “polluter pays

21 Address of His Holiness the XIV Dalai Lama on 7 June 1992 to the Parliamentary Earth Summit (Global Forum)
of the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro, Brazil
(Environment and Development Desk, 2004: 26).

22 AIR 1996 SC 2715.

23 AIR 1999 SC 812 at 821.

24 Taking Ac4on, Chapter 2 pg 3. Published by the United Na4ons Environmental Programme[sic]. Found
atwww.rona.unep.org.ac4on.02.htm

21
principle”(PPP) provides that the producer of goods of other items should be responsible for the
cost of preventing or dealing with any pollution that the process caused. This included
environmental cost as well as direct cost to the people or property; it also covered cost incurred
in avoiding pollution and not just those related to remedying any damage. It would include full
environment cost and not just those which are immediately tangible. The principle also does not
mean that the polluter could pollute and pay for it. The main goals of this principle are cost
allocation and cost internalisation. The principle is regarded as a regional custom because of the
strong support it has received in most Organisation for Economic Co-operation and Development
(OECD) and European Community (EC) countries.
Defining Pollution:
There are legislative definitions of what constitutes a pollutant in the Water (Prevention and
Control) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the
Environmental Protection Act, 1986. The Water Act defines pollution as "such contamination of
water. ..likely to create a nuisance or liable to render such water harmful and injurious to health"
and the definitions in the subsequent legislations are similar. It is evident from these definitions
that the emphasis is on the fact that pollution must have a tendency to cause harm, or must
actually cause harm. Emissions per se are not pollution. Pollution is the coercive imposition of a
harmful waste product or emission onto another person or their property; it is a "trespass" under
the principles of common law. If the trespass is so minor that it creates no harm or inconvenience
to the property owner, it will normally be tolerated. Hence, as the definition of pollution is
commonly understood, for the pollutant to result in or cause pollution there must be some
consequent harm or threat of harm.
Origin of this Concept:

The first major reference to the Polluter Pays Principle appeared in 1972 under the International
Organisation of Economic Cooperation and Development [OECD]. The OECD Guiding
Principles define the PPP as an instrument for “allocating costs of pollution prevention and
control measures".25 Further, the European Community in its Action Programme on Environment

25 stats.oecd.org/glossary/detail

22
had accepted the ‘polluter pays’ principle as a part of its strategy on environmental matters. The
principle was incorporated in Article 130 R (2) of the action programme which reads as follows:-

(i) Preventive action is always preferable to remedial action;

(ii) Environmental damage should be rectified at source;

(iii) The polluter should pay the costs of the measures taken to protect and preserve the
environment;

(iv) environmental policies should be a component of the European Community’s other policies.

Later, the “polluter pays” principle was recognised as an integral part of the sustainable
development by the international community arid and was incorporated as Principle 16 of the Rio
Declaration of Earth Summit, 1992. The principle reads as : “National authorities should
endeavour to promote the internationalisation 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.” Also, this principle was already accepted and included as Principle 4 of the
Stockholm Declaration in 1972 but it was legally and internationally recognised as a substantive
principle of environmental law under Principle 16 of the Rio Declaration, 1992.

The Evolution of this Principle in India:

Despite the potential that the polluter pays principle holds to protect the environment, it was not
a part of the law in India till it was invoked in the Enviro-Legal Action case26 as late as 1996. In
this case the court affirmed the principle of absolute liability as stated in the Oleum Gas Leak27
case and extended it. The court laid down, "The polluter pays principle demands that the
financial costs of preventing or remedying the damage caused by pollution should lie in the
undertakings which cause the pollution or produce the goods that cause the pollution." The

26 Indian Council for Enviro-Legal Ac4on v. Union of India. (1996) 3 see 212 at 215.

27 M.C. Mehta v. Union of India, (1987) 1 see 395

23
judgement of the above case on the polluter pays principle and the justification for invoking it
was reaffixed by another Bench in 1996, in the case of Velore Citizens Welfare Forum v. Union
of India28. In these cases the use of the polluter pays principle has been justified via the
constitutional mandate29, statutory provisions30 and international customary law.

Extension of the Principle of Absolute Liability:

The polluter pays principle is an extension of the principle of absolute liability. The principle of
absolute liability is invoked regardless of whether or not the person took reasonable care and it
makes him liable to compensate those who suffered on account of his inherently dangerous
activity31. The polluter pays principle extends the liability of the polluter to the costs of repairing
the damage to the environment. The polluter pays principle broadens the ambit of the principle of
absolute liability. The importance of this principle is that the damage to the environment may be
remedied and this is extremely essential to sustainable development. "The polluter is liable to
pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.32
'Exxon Valdez' case is the best example of this criterion of Polluter Pays Principle. In 1989, an oil
tanker owned by Exxon Valdez spilled out over 300,000 barrels of crude oil into the sea and
caused a significant environmental hazard. Exxon was forced to pay $125 million in fine to the
Federal Government and the State of Alaska and $900 million into a fund for environmental
projects controlled by the Government including habitat protection and scientific research.33

28 (1996) 5 see 647. In this case tanneries and other industries in the state of Tamil Nadu were discharging
untreated effluents into the agricultural fields, roadsides, waterways and open lands. The untreated effluents were
finally discharged into the River Palar, which was the main source of water supply to the residents of that area.

29 Under Ar4cJe 21 and Ar4cJe 47. The most relevant provision invoked was Ar4cJe 48-A, which states that the
State will endeavour to protect and improve environment, and Ar4cJe 51 -A(g) which ensures the protec4on of the
natural environment.

30 Water Act. 1974. The Air Act, 1981 and The Environmental Protec4on Act, 1986.

31 Supra at 4

32 Supra at 3

33 http://environment.about.com/od/environmentalevents/p/exxon_valdez.htm

24
 In the Bichhri Case34 the apex Court nicely weighed and balanced the conspectus of absolute
liability and polluter pays principle. The court interpreted the principle to mean that the absolute
liability for harm to the environment extends to the cost of restoring the environmental
degradation in addition to compensating the victims of pollution. The court observed that
Sections 3 and 5 of the Environment (Protection)Act, 1986, empower the Central Government to
give directions and take measures for giving effect to this principle.
Defects in the Principle: It is true that polluter pays principle has a positive effect to reduce
pollution. However, most developing countries, have not yet subscribed to the PPP as a main
environmental policy guideline. This is due to adverse economic conditions.

• The primary problem with this principle occurs with the fact that by its very nature,
environmental pollution is not always easy to narrow down to a single source which can be
strictly punished. Ambiguity still exists in determining 'who is a polluter'. In legal
terminology, a 'polluter' is someone who directly or indirectly damages the environment or
who creates conditions relating to such damage. This definition is so broad and is thus
unsupportive in many situations. For Example, Mr. A drives a Hummer. If his hummer is
emitting harmful gas in the atmosphere, he is directly liable for the emission. Furthermore,
the manufacturer of the vehicle will be indirectly liable for the damage to the environment. If
that is the case, even the retailer and the petrol filler shall also be made liable. Even the
Government can be made liable for making roads and rules for using vehicles which cause
pollution. Thus, identifying a perpetrator is both difficult and in some cases, technically
unfeasible.

• Secondly, a large number of poor households, informal sector firms, and subsistence farmers
cannot bear any additional charges for energy or for waste disposal.

• Thirdly, small and medium-size firms from the formal sector, which mainly serve the home
market, find it difficult to pass on higher costs to the domestic end-users of their products.

34 Ibid

25
• Fourthly, exporters in developing countries usually cannot shift the burden of cost
internalisation to foreign customers due to elastic demand.

All of these problems make it difficult to implement the PPP as a guideline for environmental
policy in developing countries. Despite the fact that Polluter Pays Principle was publicised by
early conservationists as a means to reduce ecological pollution, still many consider it as a 'vague
idea'.35

Judicial Response: The judiciary in India recognises the Polluter Pays Principle as is seen from
the judgment delivered by the Supreme Court of India in Indian Council for Enviro-Legal Action
v. Union of India36. As mentioned above, the Supreme Court held that “The Polluter Pays
Principle means that absolute liability of harm to the environment extends not only to
compensate the victims of pollution, but also to the cost of restoring environmental degradation.
Remediation of damaged environment is part of the process of sustainable development.” The
Court further observed, "any principle evolved in this behalf should be simple, practical and
suited to the conditions obtaining in this country".

In this case the number of private companies operating as chemical companies were creating
hazardous wastes in the soil, henceforth, polluting the village area situated nearby, and they were
also running without licenses, so an environmental NGO, filed writ petition under Article 32 of
the Constitution of India, which sought from the court to recover costs of the remedial measures
from the companies. The Court ruled that "Once the activity carried on is hazardous or inherently
dangerous, the person carrying on such activity is liable to make good the loss caused to any
other person by his activity irrespective of the fact whether he took reasonable care while
carrying on his activity. The rule is premised upon the very nature of the activity carried on".
Consequently the polluting industries are "absolutely liable to compensate for the harm caused
by them to villagers in the affected area, to the soil and to the underground water and hence, they
are bound to take all necessary measures to remove sludge and other pollutants lying in the
affected areas".

35 http://www.unece.org/ie/intersol/documents/s.8e.pdf (Who can pay for depollution ? an economic approach)

36 AIR 1996 SC 1446

26
In Vellore Citizens’ Welfare Forum v. Union of India37, certain tanneries in the state of Tamil
Nadu were discharging untreated effluent into agricultural fields, roadsides, waterways and open
lands. The untreated effluent finally discharged in a river which was the main source of water
supply to the residents of Vellore. The Supreme Court issued comprehensive directions for
maintaining the standards stipulated by the Pollution Control Board. The Supreme Court
observed that the “precautionary principle” and the “polluter pays principle” are part of the
environmental law of the country. These principles are essential features of “sustainable
development”. The “Polluter Pays” principle means that the absolute liability for harm to the
environment extends not only to compensate not only the victims to pollution but also the cost of
restoring the environmental degradation.

The apex court in this case directed the Central Government to constitute an authority under
Section 3 of the Environment Act, 1986 and confer on the said authority all the powers necessary
to deal with the situation created by the tanneries and other polluting industries in the state of
Tamil Nadu. The authority shall implement the polluter pays principle and the precautionary
principle. The authority shall compute the compensation under two heads namely, for reversing
the ecology and for payment to individuals.

In M.C. Mehta v. Kamal Nath 38[Span Motel Case] A news item appeared in Indian Express
stating that a lease granted by the State Government of riparian forest land for commercial
purposes to a private company having a motel located at the bank of river Beas (the family of
Kamal Nath, a former Minister for Environment and Forest) The motel management interfered
with the natural flow of river by blocking spill channel of the river, ostensibly to save the motel
from future floods. The Supreme Court took note of the same and a consequent writ petition held
that the State Government committed a breach of public trust by leasing the ecologically fragile
land to the motel management. Span motel was directed to pay compensation for restitution of
the environment and ecology. In the similar case39 the apex court noted, “Pollution is a civil

37 AIR 1996 SC 2515

38 (1997) 1 SCC 388

39 AIR 2000 SC 1997

27
wrong. By its very nature, it is a tort committed against the community as a whole. A person,
therefore, who is guilty of causing pollution, has to pay damages for restoration of the
environment. He is also to pay damages to those who have suffered loss on the account of the act
of the offender. Further, the offender can also be held liable to pay exemplary damages so that it
may act as a deterrent for others not to cause pollution in any manner. However, the court cannot
impose any pollution fine in absence of any trial and finding of guilt under the relevant statutory
provisions.”

In Pravinbhai J. Patel v. State of Gujarat40 the court directed the polluting units to either shut
down or pay one percent of its gross turnover towards ‘Socio-Economic uplift’ of the affected
villages.

In Deepak Nitrite Limited v. State of Gujarat41, the issue was when damages for, on account of
‘polluter to pay’ can be awarded in case of pollution caused by industries. The court held that
compensation to be awarded must have some broad correlation not only with the magnitude and
capacity of the enterprise but also with the harm caused by it.

In the present case the industrial units were not observing norms prescribed by the State
Pollution Control Board. However, the High Court gave no finding that such lapse has caused
damage to environment. Thus, the payment of one percent of turnover as compensation ordered
by the High Court was not proper. The apex court directed the High Court to further investigate
in each of these cases and find out broadly whether there has been any damage caused by any of
industrial units and that exercise need not to be undertaken by High Court as if present
proceeding is an action in tort but an action in public law. In this process, it is open to the High
Court to consider whether one percent of turnover itself would be an appropriate formula or not.

In the M.C. Mehta v. Union of India & Ors42 (Calcutta Tanneries Case), the task of assessment
and recovery of restoration cost was assigned to an authority appointed by the State Government.

40 1995 (2) Guj LR 1210

41 2004 AIR SCW 3285

42 (1997) 2 SCC 411

28
The apex court directed the polluter’s to pay a ‘pollution fine’ with the proceeds being credited to
an ‘environment protection fund’ for the restoration of the local government.

In Vijay Singh Punia v. State of Rajasthan43 the High Court, on the principle of ‘polluter pays’
directed that each of the polluting industrial units shall pay to State Industrial Corporation,
fifteen percent of its turnover by way of damages.

RECENT NEWS44

• Trucks entering Delhi to pay "pollution fee"

Gopal Rai [ Delhi transport minister] said the government would levy a "pollution fee" on
commercial vehicles entering the city. The announcement comes a day after the Supreme
Court slammed the Centre as well as the state government for allowing a large number of
trucks to pass through Delhi and letting its air quality to deteriorate.

The pollution charge has been fixed according to the capacity of the commercial vehicle. The
government has proposed to levy a fee on entry of vehicles in Delhi. While the entry charge
for tempo (light commercial vehicle) will be Rs 100, it will be Rs 500 for four-wheel trucks,
Rs 750 for six-wheel trucks, Rs 1,000 for 10-wheel trucks and Rs 1,500 for fourteen-wheel
trucks.


The pollution charge or pollution "fee", as the government proposal calls it, was originally
introduced in the budget earlier this year.
• Keetham Lake pollution: Anand Engg College, Sharda Group told to pay up Rs 10 crore
fine:

The forest department issued a recall notice to the Anand Engineering College and
Hindustan College of Science and Technology of the Sharda Group [Agra] asking it to

43 AIR 2004 Raj. 1

44 h]p://4mesofindia.india4mes.com/city/agra/Keetham-Lake-pollu4on-Anand-Engg-College-Sharda-Group-told-
to-pay-up-Rs-10-crore-fine/ar4cleshow/51363956.cms

29
 pay a total of Rs 10 crore as environmental compensation for discharging effluents into
Keetham Lake. Anand Engineering College has been asked to cough up Rs 6 crore and
Hindustan College of Science and Technology Rs 4 crore.

Since their establishment till 2010, the two institutes have been found to discharge
effluents generated from their premises into the lake."



"The forest department had sent several notices earlier. Since they did not respond, a
notice, asking to pay Rs 10 crore as compensation for damaging Keetham Lake was sent.
The two institutes then approached the high court in 2012 to challenge the notice. The
cases remain pending in the court.

It’s good that India that imbibed the Polluter Pays Principle (PPP) in their Law of land. And, it
also had actually helped in imposing damages on the polluter but still the problem with
this principle is that it hasn’t been implemented properly. If we look at the exemplary damages
granted to span motels does not serve the purpose of the exemplary damages. Ten lakhs rupees is
nothing for the big corporation like span motels. For them at least Ten crores rupees exemplary
damages should be given. Similarly, in the Vellore Citizens Case it is shocking that how ten
thousand rupees can justify the pollution spreader by the tanneries in the nearby areas. We should
reconsider the criteria laid to decide the compensation amount. It should deter the polluters from
spreadingpollutionThis principle needs a strict interpretation from our judiciary with immediate e
ffect and we just can’t afford any sort of delay in its proper implementation.

VI) PUBLIC TRUST DOCTRINE:

T he doctrine of public trust has evolved over the years to emerge as one of the core
principles for the judiciary to substantiate the legitimacy of governmental action that
interferes with the use by the general public of natural resources. The incorporation of
this doctrine into our legal system has resulted in the imposition of a much required check upon
governmental authorities who seek to divest State control over such natural resources in favour
of private parties.

30
Concept: Another major principle accepted by the Supreme Court is the public trust doctrine for
the protection of natural resource. The public trust doctrine primarily rests on the principle that
certain resources like air, sea waters and the forests have such a great importance to the people as
a whole that it would be wholly unjustified to make them a subject of private ownership. The
said resources being a gift of nature, they should be made freely available to everyone
irrespective of the status in life. The doctrine enjoins upon the government to protect the
resources for the enjoyment of the general public rather than to permit their use for private
ownership or commercial purposes.

Public trust doctrine serves two purposes: it mandates affirmative state action for effective
management of resources and empowers citizens to question ineffective management of natural
resources. It is a common law concept, defined and addressed by academics in the United States
and the United Kingdom. Various common properties; including rivers, the seashore, and the air,
are held by the government in trusteeship for the uninterrupted use of the public. The sovereign
could not, therefore, transfer public trust properties to a private party if the grant would interfere
with the public interest.

History of the Doctrine: Roman law recognised the public trust doctrine whereby common
properties such as rivers, seashore, forests and the air were held by the Government in trust for
free and unimpeded use of the public. These resources were either owned by no one (res
nullious) or by everyone in common (res communious). In English law, the public trust doctrine
is more or less the same but with an emphasis on certain interests such as navigation, commerce
and fishing which are sought to be preserved for the public. American Courts have also accepted
the public trust doctrine and applied it in their case law and, the Supreme Court observed, it has
now become a part of our environmental jurisprudence also.45 The public trust doctrine "is based
on the notion that the public holds inviolable rights in certain lands and resources, and that
regardless of title ownership”, and that the state retains certain rights in such lands and resources
in trust for the public. This conception of public rights has two ancient bases.46 “First, under

45 P.S. Jaswal and Nishtha Jaswal: Environmental Law, Allahabad Law Agency, Faridabad (2013)
46 Thor Matthew Krisch 46 Duke L. J. 1169

31
Roman law the air, running water, the sea, and consequently the sea shore' were the property of
no man but rather were common to all." “Second, early English common law provided that title
to tidelands had two components”: “the King's right of privates, which could be alienated, and
themes publicumrights of navigation and fishing, which were held by the King in inalienable
trust for the public”.47

Doctrine of Public Trust in India: The Rule of Law runs close to the rule of life and the Indian
Constitution, in its humanist vision, has made environmental-ecological preservation a
fundamental value. The higher jurisprudence of Article 21 of the Constitution (right to life)
embraces the protection and preservation of nature's gift without which life ceases to be viable
and human rights become a simulacrum. In other words, this right to life under article 21 has
been extended to include the right to a healthy environment and the right to livelihood. The third
aspect of the right to life is the application of public trust doctrine to protect and preserve the
public land. When the Indian courts have applied the public trust doctrine, they have considered
it not only as an international law concept, but one, which is well established in their national
legal system.

Thus, the Public Trust doctrine has grown from Article 21 of the Constitution of India. Accepting
public trust doctrine as a part of common law, the Indian courts have applied this explicitly in
three recent cases, the first one in 1997 and two cases in 1999. Articles 48A and 51A of the
Constitution of India also furnish the principles of jurisprudence. Under this doctrine, the state
has a duty as a trustee under Art 48A to protect and improve the environment and safeguard the
forests and wildlife of the country.

The Stockholm Declaration of United Nations on Human Environment evidences this seminal
proposition: “The natural resources of the earth, including the air, water, land, flora and fauna
and especially representative samples of natural system, must be safeguarded for the benefit of
present and future generations through careful planning or management, as appropriate...”

47Id. In other words, the public trust is an affirmation of the duty of the state to protect the people's common
heritage of tide and submerged lands for their common use.

32
Judicial Response: Earlier the Supreme Court and High Courts did not specifically refer to the
Doctrine of Public Trust directly but in many cases they have given effect to this doctrine
implicitly. But now the Supreme Court has discussed and given this Doctrine to Indian
environmental jurisprudence in the case of M C Mehta v Kamal Nath. Though traditionally this
doctrine was applied only for the protection of access to the common for public benefit, but now
the doctrine is being applied even to prevent over exploitation of the environment. Now this
doctrine is being used as a legal and planning tool for the fulfilment of sovereign’s role as trustee
of environment for future generations.This doctrine came up for consideration in M.C. Mehta v.
Kamal Nath and Ors48. A rather unusual situation had arisen in this case. The flow of the river
Beas was deliberately diverted because it used to flood Span Motels in the Kullu Manali valley
in which a prominent politician's family had a direct interest. The motel was also allotted
protected forestland by the State Government and had also encroached on protected forestland,
which encroachment was subsequently regularised. The area which was ecologically fragile and
full of scenic beauty should not have been permitted to be converted into private ownership and
for commercial gains.The Supreme Court used the public trust doctrine in this case to restore the
environment to its original condition. Briefly, this doctrine postulates that the public has a right
to expect that certain lands and natural areas will retain their natural characteristics.
Applying the public trust doctrine, the Supreme Court cancelled the lease of forestland granted in
favour of Span Motels and the State Government was directed to take over the area and restore it
to its original condition. The motel was directed to pay compensation (damages for restitution of
the environment and ecology of the area). It was also asked to show cause why a pollution fine
be not imposed. While deciding the show cause notice regarding imposition of a pollution fine,
the Supreme Court held that in law the fine could not be imposed without a trial and a finding
that the motel is guilty of an offence under the Water (Prevention and Control of Pollution) Act,
1974. Accordingly, no pollution fine was imposed on Span Motels but it was asked to show
cause why it should not pay exemplary damages. After considering the reply of Span Motels,
exemplary damages of Rs.10 lakhs were imposed.

48 (1997)1 SCC 388

33
The Supreme Court further stated that the Public Trust Doctrine primarily rests on the principle
that certain resources like air, sea, waters and forests have such great importance to the people as
a whole that it would be unjustified to make them a subject of private ownership. The court
observed that: Our Indian Legal system, which is based on English Common law, includes the
public trust doctrine as part of its jurisprudence. The state is the trustee of all natural resources,
which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the
seashore, running waters, airs, forests and ecologically fragile lands. The state as a trustee is
under a legal duty to protect the natural resources. These resources meant for public use cannot
be converted into private ownership. As rivers, forests, minerals and such other resources
constitute a nations’s wealth. These resources are not to be frittered away and exhausted by any
one generation. Every generation owes a duty to all succeeding generations to develop and
conserve the natural resources of the nation I the best possible way. It is in the interest of the
mankind. It is in the interest of the nation. Thus, the public doctrine is a part of law of the land
and that the prior approval granted to the government to lease the forest land for the creation of
the motel is quashed and that the government of Himachal Pradesh shall take over the areas and
restore it to its original natural conditions. Chronologically, the second case on this principle is
Majra Singh v Indian Oil Corporation49, where the petitioner objected to the location of a plant
for filling cylinders with liquefied petroleum gas. It was held that the High Court can only
examine whether authorities have taken all precautions with a view to see that laws dealing with
environment and pollution have been given due care and attention. The High Court found that
the Indian Oil Corporation (IOC) had taken all the precautions and followed all the safeguards
required by the law. Giving to the go ahead to the installation of the LRG plant located in the
vicinity of a polluted village, the Court ordered Ioc to take due precautions, so that pollution is
not caused to the environment and to plant fast growing trees like poplar eucalyptus. Though the
case was decided on the basis of the precautionary principle, it confirmed that the PublicTrust
Doctrine has become part of the Indian legal thought processes. In the High Court's opinion, the
doctrines is a part and parcel of Article 21 of the 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

49 AIR 1999 J&K 81

34
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.
In M.I. Builders Pvt. Ltd. V. Radhey Shyam Sahu50, Lucknow nagar Mahapalika permitted M.I.
Builders Pvt. Ltd. (the appellant herein) to construct an underground shopping complex beneath
the Jhandewala Park. The major part of the work was completed. The High Court quashed the
relevant resolutions that permitted the construction. When it set aside the agreement, the High
Court had noticed certain facts. The park was of historical importance, which the Mahapalika did
not deny. Preservation or maintenance of the park was necessary from the environment angle.
The only reason advanced by the Mahapalika for construction of the underground commercial
complex was to ease the congestion in the area. The High Court said that construction of the
underground shopping complex would only complicate the situation and the present scheme
would further congest the area. It added that the public purpose, which is alleged to be served by
construction of the underground commercial complex seemed totally illusory.
On Appeal the court held that the facts and circumstances when examined point to only one
conclusion that the purpose of constructing the underground shopping complex was a mere
pretext and the dominant purpose was to favour the M.I. Builders to earn huge profits. By
allowing the construction Mahapalika had deprived its residents as also others of the quality of
life to which they were entitled to under the Constitution and the Act. The agreement smacks of
arbitrariness, unfairness and favouritism. The agreement was opposed to public policy. It was not
in public interest. Whole process of law was subverted to benefit the builder. The Supreme Court
went on to say that Mahapalika is the trustee for the proper management of the park. When true
nature of the park, as it existed, is destroyed it would be violative of the doctrine of public trust
as expounded by this court, the court said “that the idea of public trusteeship rests upon three
principles. Firstly, certain interests like the air and the sea have such importance to the citizenry
that it would be unwise to make them the subject of private ownership. Secondly, they should be
made freely available to the entire citizenry without regard to economic status. Thirdly, it is
principle purpose of government to promote the general public rather than to redistribute public
goods from broad public use to restrict private benefit”.

50 (1999) INSC 228

35
VII) OBLIGATION TO ASSIST AND COOPERATE:

The environmental problem is not the problem of an individual or that of one country. It is a
global problem and can be tackled only with the assistance and cooperation of all. This principle
has been specifically incorporated in Rio-Declaration (1992) as Principle 9 which provides that
the States should co-operate to strengthen indigenous capacity building for sustainable
development by improving scientific understanding through exchanges of scientific and
technological knowledge and by enhancing the development, adaptation, diffusion and transfer
of technologies including new and innovative technologies.

Principle 10 of the Rio-Declaration further provides that environmental issues are best handled
with the participation of all concerned citizens at the relevant level. Emphasising the need for
mutual cooperation in environmental matters, Principle 12 requires the States to cooperate to
promote a supportive and open international economic system that would lead to economic
growth and sustainable development in all countries, in order to address the problem of
environmental degradation in a better way. Finally, Principle 27 of the Rio Declaration expects
people and the States to co-operate in good faith and in a spirit of partnership in the future
development of international law in the field of sustainable development.

VIII) ERADICATION OF POVERTY:

Poverty is perhaps the worst contributing factor for polluting the environment and causing its
degradation. Smt. Indira Gandhi, the Late former Prime Minister of India, addressing the
Stockholm Conference on Human Environment in 1972 said, “of all pollutants we face, the worst
is poverty”. The Brundtland Report (1987) also attributed poverty as a potential cause of
environmental degradation as it reduces people’s capacity to use resources in a sustainable
manner, which eventually brings more pressure on environment and results into its deterioration.
Most of the developing countries’ are facing the problem of poverty which is adversely affecting
the environmental quality.

36
The Earth Summit, 1992 also projected that elimination of poverty was utmost necessary for
achieving the goal of sustainable development, particularly in the developing countries. India
being a developing country, more than 30 per cent people are living below the poverty line. The
pitiable condition 'of slum-dwellers, scarcity of food, fuel, kerosene oil etc. are serious threats for
environment. Due to lack of residential, houses crores of poor men, women and children are
compelled to live in slums and even on road-side temporary hutment in most unsanitary
conditions without sufficient food and water. Thus, they have to live in unwholesome
environmental conditions. Therefore, India needs cooperation and assistance from the developed
countries to help and support the poverty alleviation programme and maintenance of wholesome
environmental conditions.51

IX) FINANCIAL ASSISTANCE TO DEVELOPING COUNTRIES:

It has already been explained above that the developing countries face poverty as the worst
pollutant. The people in the developing countries strain their natural resources and over exploit
them to meet their basic needs. The developing countries
also do not have the finances and modern technology to
follow the path of development which is
sustainable. Therefore, the financial assistance and transfer
of technology from the developed nations to the
developing nations is a must if we want to achieve the goal of sustainable development and
environment protection. In fact, this was one of the major demands of developing countries at the
“Earth Summit” of 1992.

In Chapter 33 of Agenda 21 it was provided that the provision to developing countries of

effective means, inter alia, financial resources and technology, without which it will be difficult
for them to fully implement their commitment, will serve the common interests of developed and
developing nations and of human kind in general, including future generations. It was further
provided that the implementation of the huge sustainable development programme of Agenda 21

51 http://www.ecolex.org/ecolex/ledge/view/RecordDetails;jsessionid?id=COU-144332&index=courtdecisions

37
will require the provision to developing countries of substantial new and additional financial
resources.

It is worth mentioning here that the World Bank, in addition to various other international
institutions, has been playing key role in response to the clarion call of sustainable development
at “Earth Summit”.

It is submitted that the challenges of the environment protection and sustainable development are
daunting. The concept of sustainable development had grown from Stockholm Conference to Rio
Summit and thereafter various national international fora. Some of the salient features of
sustainable development have been identified. But the real task that lies ahead is that of
implementation. For this what we need is the political will of the North and the South to act in
coordination to protect planet Earth from further deterioration.

ENVIRONMENTAL PROTECTION: SUPREME COURT ACTIVISM

The most remarkable contribution of the Supreme Court has been the
adoption of the right to sustainable development as a hard core principle
of environmental law in India. The concept of sustainable development
itself is comparatively young. It first appeared in the International Union
for Conservation of Nature and Natural Resources (IUCN) Report of
1980 in respect of world Conservation strategy. From there, it was
picked up by the Report of the World Commission on Environment and Development in 1987,
properly called the Brundtland Report. The report itself was the product of 900 days of
deliberation by an international group of politician, civil servants and experts on environment.52

The concept of sustainable development is in its infancy. Holmberg and Sandbrook identified
some 70 definitions of sustainable development. However a commonly accepted definition has
been proposed by Mrs. G.H. Brudthland in her 1987 report. According to her, sustainable

development is the development that ‘meets the needs of the present without comprising the

52 W.M. Adams, Green Development: Environment and sustainability in the third world (1990).

38
ability of future generation to meet their own needs’. This definition has strong ethical
orientation focusing upon the satisfaction of human needs rather than wants. It does not lay
emphasis on the protection of environment in general. The Supreme Court has however been
careful to distinguish between the concept of sustainable development and its definition by
Brundtland preferring not to fall for any given content for the concept and thus open the way for
an active definition of sustainable development with a varying content. At least at the moment, it
has chosen to avoid the need to go for any precision. In a few leading cases sustainable
development has been adopted as the principle of environmental law.

Encouraged by an atmosphere of freedom and articulation in the aftermath of the Emergency, the
Supreme Court entered one of its most creative periods. Specifically, the court fortified and
expanded the fundamental rights enshrined in part III of the Constitution. In the process, the
boundaries of the fundamental right to life and personal liberty guaranteed in Article 21 were
expanded to include environmental protection.53

In a series of cases which may not be large in number but which have much economic
significance, the Supreme Court had to consider the application of the principle of sustainable
development. All these cases involved industries generating sizeable revenues and significantly
contributing to the industrial development of the country. However, these also show that the
industries hardly cared for the environment and which were not only significant polluters but
were also persistent. Repeatedly the environmental agencies implored upon them to rectify their
pollutant emissions and effluents but the industries hardly cared. Even directions issued by the
high courts and Supreme Court were ignored. In a sense, the behavioural pattern of the industry
was irresponsible. The situation seemed to be destined for doom for the industry hardly cared
and the environmental agencies could not really bring their weight to bear upon the industries.
The industries classically represent the case of too powerful defendants who continue to flex
their muscles totally ignoring the degradation of environment caused by the industries. Such
muscle flexing is common in soft states where the majesty of law is often compromised by
Considerations of state and wealth.

53 Article21 states: ‘No person shall be deprived of his life or personal liberty except according to procedure
established by law.’

39
 ENVIRONMENTAL POLLUTION AND SUSTAINABLE DEVELOPMENT

The first case involving claims to sustainable development was the Bichhri Village Case54

wherein a big public sector concern was producing chemicals. Its sister concern, started
producing ‘H’ acid in the same complex. The chemical was meant exclusively for exports. The
acid was highly toxic and the effluents from it posed grave danger to land in the surrounding
areas. The effluents poisoned the earth, the water and everything else. The industries produced
25 hundred metric tons of highly toxic sludge. The waste waters were allowed to flow out in the
open and the toxic sludge was thrown in the open in and around the complex. The toxic
substances percolated deep into the earth polluting the subterranean supply of water. The water in
the wells and the streams became unsuitable for human consumption as wells as irrigation. The
people revolted and a serious law and order situation was created forcing the district magistrate
to close the industries in January 1989. Yet nothing was done to remove the sludge. The long
lasting damage to earth and to underground water continued to exist.

The facts revealed that the units were established without obtaining no objection certificate from
the pollution control board for production of ‘H’ acid. They also revealed that Supreme Court
had issued a direction as early as 11 December 1989 for supply of drinking water to the affected
villages and on 5 march 1990, the court directed that appropriate steps be taken for
transportation, treatment and safe storage of the sludge from open spaces and required that the
sludge be stored in a safe place. But nothing happened. In the succeeding year, the industry tried
to camouflage the sludge. Yet, they did nothing to remove it. Again, on 17 February 1992, the
court directed an assessment by experts who were also to suggest a package of remedies for its
transportation and safe storage. But still nothing happened. In 1994, the National Environmental
Engineering Research Institute (NEERI) submitted a report which showed that only 720 metric
tons of sludge was Bichhri entombed while the rest of the waste was just spread over the fields.

54 India Council for Environ legal Action v. Union of India, (1996) 3SCC

40
The NEERI report concluded that the indiscriminate and wilful disposal activity by the industry
was further aggravating the contamination problem.

These facts highlight the non cooperative attitude of the industry to the danger which it had itself
created to the detriment of the environment. Appalled by the state of affairs, the Supreme Court
quickly reacted to the situation. The court held that once the activity carried on is hazardous or
inherently dangerous, the person carrying on such activity is liable to make good the loss caused
to any other person by his activity irrespective of the fact that he took reasonable care while
carrying on his activity. The court did not refer in terms to the ideals of sustainable development.
Nevertheless the situation in this particular case classically represents the conflict between the
claims of development and the claims of sustainable environment. In fact Jeevan Reddi J
portrayed the conflict in the opening words of his opinion which are worth reproducing. “It
highlights the disregard, nay, contempt for law and lawful authorities on the part of some among
the emerging breed of entrepreneurs, taking advantage, as they do, of the country’s need for
industrialisation and export earnings. Pursuit of profit has absolutely drained them of any feeling
for fellow human beings- for that matter, for anything else. And the law seems to have been
helpless. Systemic defects? It is such instances which have led many people in this country to
believe that disregarded of law pays and that the consequences of such disregard will never be
visited upon them – particularly, if they are men with means.”

The next case, Vellore citizen’s welfare forum v. Union of India, involved the same kind of
problem related to tanneries in Tamil Nadu.55 The tannery industry is a significant foreign
exchange earner but its effluents are released on the lands, the rivulets and the rivers polluting
the sub-soil water and arable lands. Facts indicated that the industries were reluctant to provide
for treatment of effluents. The court felt that even though the industry was earning foreign
exchange and providing employment, contributing to development, ‘it has no right to destroy the
ecology, degrade the environment and pose a health hazard. The court held that sustainable
development is the answer to the problem of conflict between development and ecology. Without
much discussion of the content of sustainable development the court held that sustainable

55 AIR 1996 SC 2715

41
development is a balancing concept and has been accepted as part of the customary international
law. The court even went one step further to declare that the precautionary principle and the
polluter pays principle have been accepted as part of the law of the land in India.

In A.P. Pollu<on Control Board II v. Prof. M.V. Nayudu (Retd.),56 the Supreme Court took the

question for in-depth consideration. The matter involved the question of permission for
establishment of industry within 10 km. of the two big water reservoirs, the Himayat Sagar and
the Osmam Sagar, serving the twin cities of Hyderabad and Secunderabad. Jagannadha Rao J,
speaking for the court, adopted the principle of sustainable development. It was asserted that in
today’s emerging jurisprudence, environmental rights are described as 3rd generation rights. The
United Nation’s General Assembly has declared the right to sustainable development as an
inalienable human right. Rio Conference was also referred to which adopted as principle 1 the
principle that every human being is entitled to a healthy and productive life in harmony with
nature. The judge went on to refer to the Earth Summit Meeting of 1997 which reflected his
principle. He also referred to decision of the European Court of Justice in Portugal V. F.C.

Council,57 which emphasised the need to promote sustainable development while taking account

of the environment. The judge further referred to four recent decisions, one from Brazil, the other
from Philippines, another from Columbia and the fourth from Union of South Africa. The
reference to all these international sources clearly indicated the willingness of the Supreme Court
to adopt the principle of sustainable development from the international domain as a basic
principle of environmental law in India. Rao J categorically stated: ‘There is building up’ in
various countries, a concept that a right to healthy environment an to sustainable development
are fundamental human rights implicit in the right to “life”.

The facts of the Nayadu Case clearly bring out the tensions generated by the principle of

sustainable development. The affected industries has spent valuable resources in setting up the
plants and their claim was that they should be allowed to function otherwise all the resources
would go waste. The state government has recommended their application. Even though the

56 (2001) 2 SCC 62.

57 3 CMLR 331 (1997)

42
central government refused the permission, the industry went on with the construction of its
plants. The court was not swayed by these claims. Instead, it took into account expert reports
from three different sources and after considering these reports felt that the court could not rely
upon a bare assurance that care will be taken in the storage of hazardous material. The court
preferred to proceed on the precautionary principle rather than a mere promise of the industries,
holding that a chance of accident in such a close proximity of reservoir cannot be ruled out. The
Supreme Court in the Nayudu case weighed the claims of development against the claims of

sustainability of the supply of pure water for drinking purposes. It gave precedence to the human
need for drinking water over and above the possible economic advantage which could be
generated by the industry for the state could be generated by the industry for state.

In the next case, the same conflict arose again but with contrary results. In Goa Founda<on v.

Diksha Holdings Pvt. Ltd 58 another division bench of the Supreme Court again faced a contest in

the claims of sustainability and development. Diksha Holdings sought permission to build a hotel
in Goa which it claimed would contribute to business of tourism which was the main resource
earner for the State of Goa. Which it claimed would contribute to business of tourism which was
the main resource earner for the state of Goa. The Goa Foundation contended that the hotel was
located in an area which fell in the Coastal Regulating Zone-1 (CRZ-1) where no building was
allowed. It also contended that the construction of the hotel will destroy the ecology of coastal
areas.

The adoption of sustainable development as the basic principle of environmental law in India
received its maximum acceptability in M.C. Mehta v. Union of India.59 In this case, a three judge

bench of the Supreme Court was considering the question of issuing directions to substitute
diesel vehicles on the roads of city of Delhi with vehicles driven by compressed natural gas
(CNG). The matter had been in the court for as long as 16 year. As early as 23 September 1986,
the court had directed the Delhi Administration to file and affidavit specifying the steps to be
taken for controlling pollution caused by emission of smoke etc. from vehicles plying in Delhi. A

58 (2001) 2 SCC 97 at 108.

59 Air 2002 SC 169 at 1698.

43
committee called the Bhure Lal Committee was established under section 3 of the EPA, 1986 and
its report was accepted by the court on 28 July 1998. A time limit was fixed for switching over
diesel vehicles to CNG vehicles. The government had been dragging its feet and sought to dilute
the directions of the Bhure Lal Committee by constituting another committee called the
Mashelkar Committee which recommended that emission norms must be laid down but the
choice of fuels must be left with the user.The Supreme Court categorically rejected the
suggestion of the Mashelkar Committee on the ground that nothing concrete had resulted from
adopting the process of fixing emission norms and directed that a time bound programme of
replacing diesel buses with CNG buses be implemented.The opinion of court is particularly
noticeable for pronouncing the fundamental nature of sustainable development as an underlying
principle. The court observed, “One of the principles underlying environmental law is that of
sustainable development. This principle requires such development to take place which
ecologically sustainable. The two essential features of sustainable development are – (a) the
precautionary principle, and (b) the polluter pays principle.”

To sum up, the courts have not been sufficiently successful in establishing the right to
wholesome environment as a fundamental right. Had it been so, the efforts would have been far
more impact making. Fundamental rights have a supervening character. Any man can approach
the highest court for their enforcement. Writ petitions can lie in every high court. Any act,
legislative or executive, which seeks to abridge or take away any fundamental right can be
challenged. Greater vigor is, therefore, required to ensure that right to wholesome environment is
treated as a fundamental right. One option to establish it firmly as a fundamental right is to try
the remedy of constitutional tort. D.K. Basu v. State of W.B60 the Supreme Court has recognised

that violation of fundamental right may give rise to a constitutional tort for which compensation
may be awarded. This claim for compensation in public law is based on strict liability and is in
addition to the claim available in private law for damages. ‘This is in addition to the traditional
remedies and not in derogation of them’. The court pointed out that this is remedy available in
public law assures that citizens live under a legal system wherein their rights and interested shall

60 (1997) 1 SCC 416

44
be protected and preserver. The court held, “It is now a well- accepted proposition in most of
jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective
and sometimes perhaps that only suitable remedy for redressed of the establishes infringement of
the fundamental right to life of a citizen.”

45