REMEDIES FOR ENVIRONMENTAL

PROTECTION
.
 .

Constitutional Provisions ?
 CONSTITUTIONAL PROVISIONS

To protect and improve the environment is a constitutional mandate.It is

commitment for a country wedded to the ideas of welfare state.The Indian
Constitution contains specific provisions for environmental protection under the
chapters of “Directive principles of state policy” and “Fundamental Duties.”
 Article -48 A

 Article -51(A)(g)

 Article-21

 Writs

 PIL’s
 ARTICLE-48 A

Article 48A -Protection and improvement of environment

and safeguarding of forests and wild life

The State shall endeavour to protect and improve the

environment and to safeguard the forests and wild life of the
country.
 ARTICLE-51(A)(g)
51A. Fundamental duties It shall be the duty of every citizen of India
(a) to abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem;

(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

(c) to uphold and protect the sovereignty, unity and integrity of India;

(d) to defend the country and render national service when called upon to do so;

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and

regional or sectional diversities; to renounce practices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and

to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

(i) to safeguard public property and to abjure violence;

(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of

endeavour and achievement.

 Article-21
(Right to Wholesome Environment)

"No person shall be deprived of his life or personal liberty except

according procedure established by law."

Maneka Gandhi v Union of India,

AIR 1978 SCR (2) 621
The Supreme Court while elucidating on the importance of the ‘right
to life’ under Art. 21 held that the right to life is not confined to mere
animal existence, but extends to the right to live with the basic
human dignity (Bhagwati J.)
 WRITS

A writ petition can be filed to the Supreme Court under Article-32 and the
High Court under Article-226,in case of a violation of a fundamental
right.Since a right to a wholesome environment has been recognised as an
implied fundamental right,the writ petitions are often resorted to in
environmental cases.

Generally writs of mandamus,certiorari and prohibition are issued in

environmental matters.
 PIL’s

In a public interest case,the subject matter of litigation is

typically a grievance against the violation of basic human rights
of the poor and helpless or about the content or conduct of
government policy.

This litigation is not strictly adversarial and in it a judge play a

important role in organising and shaping the litigation and in
supervising the implementation of relief.Most environmental
actions in India fall within this class.
 Important Case Laws
Right to live in a healthy environment
The right to live in healthy environment as a part of Article 21 was witnessed in the case of-

Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P.

(AIR 1985 S.C. 652)

A group of citizens wrote to the Supreme Court against the mining which deprives the Mussoori Hills of trees and the forest cover

and accelerated soil erosion that was resulting in landslides and blockage of the underground water channels which had fed a number

of rivers and springs in the valley. The Court considered this letter as writ petition under Article 32 of the Constitution. In the first place

the Court had appointed an expert committee in order to advise the bench on any technical issues arising. On the basis of the report of

the committee, the Court has ordered the closure of the lime- stone quarries damaging the Mussoorie hills. The court stated that , the

disturbance of ecology and pollution of water, air and environment by quarrying operation indeed affects the life of the person and

thus involves the violation of right to life and personal liberty under Article-21 of the Constitution. Article 21 guarantees the right to

life, a life of dignity, to be lived in a proper environment, free of danger of diseases and infection. It is a important fact that there

exists a close link between life and environment. Right to life would become meaningless ,if there is no healthy environment.
TAJ MAHAL CASE: M.C. Mehta v. Union of India and Others Writ Petition (Civil) No.13381 of 1984

Taj Mahal, one of the wonders of the world and the pride of India was facing

serious threat from pollution caused by Mathura Refinery, iron foundries, glass and

other chemical industries. As a result of very high toxic emissions from these

industries, the Taj Mahal and 255 other historic monuments within the Taj trapezium

were facing serious threat because of acid rain.

The Petition was filed in the year 1984. The Supreme Court of India delivered a

historic Judgement in December 1996.

The apex Court gave various directions including banning the use of coal and coke

and directing the industries to switch over to Compressed Natural Gas (CNG).
 .

ANY PROVISION IN INDIAN PENAL CODE 1860 ?

 Section 268 in Indian Penal Code-Public nuisance

A person is guilty of a public nuisance who does any act or is guilty

of an illegal omission which causes any common injury, danger or
annoyance to the public or to the people in general who dwell or
occupy property in the vicinity, or which must necessarily cause
injury, obstruction, danger or annoyance to persons who may have
occasion to use any public right.

A common nuisance is not excused on the ground that it causes

some convenience or advantage.
 .

ANY PROVISION IN THE CODE OF CRIMINAL

PROCEDURE ?
 Section 133 in The Code Of Criminal Procedure, 1973

133. Conditional order for removal of nuisance.

(1) Whenever a District Magistrate or a Sub- divisional Magistrate or any other Executive Magistrate specially

empowered in this of behalf by the State Government, on receiving the report of a police officer or

other information and on taking such evidence (if any) as he thinks fit, considers-

(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river

or channel which is or may be lawfully used by the public; or

(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the

health or physical comfort of the community, and that in consequence such trade or occupation should be

prohibited or regulated or such goods or merchandise should be removed or the keeping thereof

regulated; or

(c) that the construction of any building, or, the disposal of any substance, as is likely to occasion configuration

or explosion, should be prevented or stopped; or

 .
(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall

and thereby cause injury to persons living or carrying on business in the neighbourhood or

passing by, and that in consequence the removal, repair or support of such building, tent or

structure, or the removal or support of such tree, is necessary; or

(e) that any tank, well or excavation adjacent to any such way or public place should be fenced

in such manner as to prevent danger arising to the public; or

(f) that any dangerous animal should be destroyed, confined or otherwise disposed of, such

Magistrate may make a conditional order requiring the person causing such obstruction or

nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise,

or owning, possessing or controlling such building, tent, structure, substance, tank, well or

excavation, or owning or possessing such animal or tree, within a time to be fixed in the

order-

(i) to remove such obstruction or nuisance; or

 .
(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or

occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be

directed; or

(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or

(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or

(v) to fence such tank, well or excavation; or

(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if

he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and

place to be fixed by the Order, and show cause, in the manner hereinafter provided, why the order should not be

made absolute.

(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.

Explanation- A" public place" includes also property belonging to the State, camping grounds and grounds left

unoccupied for sanitary or recreative purposes.

 .

ANY PROVISION IN THE CODE OF CIVIL

PROCEDURE ?
 SECTION-91 Public nuisances of CPC

(1) In the case of a public nuisance the Advocate General or two or more persons
having obtained the consent in writing of the Advocate General, may institute
a suit, though no special damage has been caused, for a declaration and
injunction or for such other relief as may be appropriate to the circumstances
of the case.

(2) Nothing in this section shall be deemed to limit or otherwise affect any right
of suit which may exist independently of its provisions.
 .

COMMON LAW REMEDIES

 .
A common law tort action against the polluter is one of the major
and among the oldest of the legal remedies to abate pollution.Most
pollution cases in tort law fall under the categories of
nuisance,negligence and strict liability.
A plaintiff in a tort action may sue for damages or an injunction or
both.
 a) Nuisance

Nuisance is related to unlawful interference with one's

enjoyment of land or any right arising from it, thereto. It may
be categorized into Public Nuisance or Private Nuisance.
As the name suggests, public nuisance deals with interference
with a right pertaining to public. Whereas, private nuisance is
interference with right which is exercised exclusively by a
private entity or an individual.
 b) Negligence

It is a point to note that in order to bring a successful action vis-à-vis negligence, it

is necessary to establish a direct nexus between negligence and the damage
caused. The other ingredient that constitutes negligence is that the respondent did
not take sufficient care to avoid public nuisance that the person was required to
take such care under the law. 
 c) Strict Liability

The concept of strict liability started from the case of (Rylands v. Fletcher), "the person

who, for his own purposes, brings on his land and collects and keeps there anything likely to

do mischief, if it escapes, must keep it in at his own peril and if he does not do so, is prima

facie answerable for all the damage which is the natural consequence of its escape". The

exceptions to the rule of strict liability are as follows:

i.) Act of God

ii.) Act committed by a third party

iii.) Any fault committed by plaintiff himself

iv.) An act committed after obtaining expressed or implied consent of the plaintiff

v.) Natural use of land by the defendant

 The locus classicus vis-à-vis strict liability in Indian
Scenerio

M C Mehta v. Union of India

AIR 1987 SC 1086, popularly known as Oleum Gas Leak Case
In this case, the Hon'ble Supreme Court observed that if a hazardous or inherently
dangerous activity is being carried out in any premises and in case of a release of such toxic
substance any damage is caused, such enterprise is strictly and absolutely liable for all the
damages arising thereto, and any of the exceptions listed out above are not applicable as a
defense in a case of strict liability.

In addition to this, the court also held in the 

Union Carbide Corporation v. Union of India
1991 4 SCC 584
that the compensation has to be directly proportional to magnitude and capacity of the
enterprise because such compensation needs to have a deterrent effect.
 .

PRINCIPLE OF SUSTAINABLE DEVELOPMENT ?

 General Introduction
The well recognized principle of sustainable development for the protection and

improvement of environment has been unanimously accepted by the world countries as a

strategy that caters to the needs of the present without depriving the future generations of

their right to available natural resources. It has been rightly said that sustainable

development is meant to secure a balance between developmental activities for the benefits

of the people and environmental protection and therefore, “it is a guarantee to the present

and bequeath to the future generations.” The principle of sustainable development seeks to

harmonise 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.

Basic objectives of Sustainable Development

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.

 What is “sustainable development”

The principle of sustainable development has evolved on the basic assumption of co-existence
of two apparently conflicting notions i.e. development and environment. But from the practical
point of view, ecological, economic and social aspects of sustainability are inseparable. As
William Rees has rightly pointed out that maintenance of ecological integrity has to be accorded
primacy over achievement of socio-economic human needs, thus there should be a
convergence between ecological and economic factors in the developmental process.

The principle of sustainable development emphasises on two basic needs,

firstly, need for socio-economic development and

secondly, need of limitation imposed on the environment's capability to cope with the present
and future requirements.
 Salient Principles of Sustainable Development
The principle of sustainable development which received international recognition as a result of

Brundtland Commission Report (1987) 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 and Agenda 21. Therefore, these principles have got to be necessarily followed in order

to achieve the objective of sustainable development. These principles are as follows:

(1) Inter-generational equity;

(2) Use and conservation of natural resources;

(3) Environmental protection;

(4) The precautionary principle;

(5) The ‘Polluter Pays’ principle;

(6) Poverty eradication; and

 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.
 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 likely to be acute

shortage of these resources in future. Therefore, there is dire need to

develop techniques and technologies which may need minimal

utilization of natural resources.

 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.

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.

 Precautionary Principle
The precautionary principle seeks to ensure that a substance or human activity which may

cause a threat to the environment is prevented from causing harm to environment, even if

there is no conclusive scientific proof of linking that particular substance or human activity to

environmental damage. Thus, 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.

The precautionary principle in the context of environmental protection is essentially about

the management of scientific risk. It 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.
 Vellore Citizens’ Welfare Forum v. Union of India (AIR 1996 SC 2515)

The Supreme Court explicitly recognised the precautionary principle as a principle of Indian environmental law in a number of

subsequent cases. Justice Kuldeep 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 list 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.”
Narmada Bachao Andolan v. Union of India (1999) 2
SCC 718 (739)

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.”
 “Polluter Pays” Principle

All the member countries participating in the Organisation For Economic Co-operation and

Development (O.E.C.D.) agreed to incorporate in their environmental policies the principle of

'polluter pays' so as to discourage subsidies that could be detrimental for trade. They deemed

this necessary for the protection of environment and save the country from threats posed by

environmental pollution in modernised industrial societies. “Polluter Pays” principle was

considered to be one of the best method for prevention of environmental pollution. But there

were practical difficulties in working out an exact definition of the principle as there could be

dispute as to the limits on payment for damages caused and exact scope of the applicability

of principle.
 M.C. Mehta v. Kamal Nath
1997 1 SCC 388
The Supreme Court in this case observed that ‘polluter pays principle has been recognised as

fundamental objective of Government's environmental policy to prevent and control pollution. The

Court in this case observed that the calculation of environmental damages should not be on the basis

of claim put forward by the party, but it should be on the basis of examination of the situation by the

Court, keeping in view the factors such as deterrent nature of the award.

In Vellore Citizens’ Welfare Forum v. Union of India (AIR 1996 SC 2515), the Supreme Court directed

the Central Government to constitute an authority under Section 3 (3) of the Environment (Protection)

Act, 1986 and confer on this authority all the powers necessary to deal with the situation created by

tanneries and other polluting industries in the State of Tamil Nadu. The authority so constituted shall

implement the ‘precautionary principle’ and the ‘Polluter Pays Principle.’

 Poverty Eradication

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.

 Conclusion
It is true that in order to improve and protect the environment from pollution
sustainability must be there between environment and development. The concept
of sustainable development based on the notion that natural resources should be
exploited for the benefit of both present and future generation. As we know that
increased industrial activity worldwide requires the use of natural resources which
are depleting day by day. It is also true that the need for resource conservation,
efficient use of resources and environment friendly corporate policies and
behaviour has now been recognised worldwide. The country needs an
Environmental policy and planning, while being globally sensitive must be based
on local needs. Finally, if sustainable development has to move from mere wishful
thinking and slogan-mongering into a reality, the world (developed and
developing) as a whole has to move towards a new world order in which new
economic and technological orders are dovetailed. Such an order has to be aimed
at benefiting the poor because in the chain of sustainable development, the
weakest links are poverty and inequality. Last but not least, if the principles of
sustainable development are followed then definitely with the economic growth
and industrial development of a country environment protection can be
maintained.