Until the enactment of the Environment Protection Act, 1986 the right to pursue the case was solely based in the hands of the Government. The Citizens suit provision under the Environment Act expanded the locus standi in environmental prosecutions. Similar provisions allowing citizens participation in the enforcement of pollution laws are found in Sec. 43 of the Air Act (As amended in 1987) and Sec. 49 of the Water Act (As amended in 1988). Section 19 of the EPA provides that any person, in addition to authorized government officials, may file a complaint with a court alleging an offence under the Act. However, the person must give notice of 60 days of the alleged offence and the intent to file a complaint. The citizens suit provision appears to give the public significant powers to enforce the Environment Act. However, this requirement of 60 days is criticized on the ground that it would give the polluter ample opportunity to clean up the mess and traces of the offence. Also though the Act allows any information, reports, statistics, returns by any industry to the government it does not require the same. Hence it is always said that compulsory dissemination of information would make citizens suit provision an effective tool to enforce environmental cases. PRECAUTIONARY PRINCIPLE 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 (Principle 6 of Stockholm Declaration, 1972), which assumed that science could provide policy makers with the information and means necessary to avoid encroachment upon the capacity of 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. Later the emphasis shifted to the precautionary principle (11 th Principle of UN Resolution on World Charter for Nature, 1982), and this was reiterated in the Rio Conference of 1992 in its principle 15 (in order to protect the environment, the precautionary approach shall be widely applied by states according to their capacities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation). The inadequacy of science is the real basis that has led to the precautionary principle of 1982 (As observed in the case of A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718). The precautionary principle is based on the theory that it is better to err in 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. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake (A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718) Essential ingredients of precautionary principle Environmental measures by the state government and the statutory authorities must anticipate, prevent and attach the causes of environment degradation. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. The onus of proof is on the actor or the developer/ industrialist to show that his action is environmentally benign (reversal of burden of proof). Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (justified) concern or risk potential. 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. In other words the burden of proof is to be placed on those attempting to alter the status quo. This is often termed as 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 that is not fair. Therefore, it is necessary that a 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. M.C. Mehta v. UOI (CNG Vehicle Case) AIR 2002 SC 1696 The Supreme Court observed that, it cannot be gainsaid that permission to use automobiles has environmental implications, and thus any auto policy framed by the Government must, therefore, of necessity confirm to the constitutional principles as well as overriding statutory duties cast upon the Government under EPA. The auto policy must adopt the precautionary principle and make informed recommendations which balance the need of transportation with the need to protect the environment and reverse the larger scale degradation that has resulted over the years, priority being given to the environment over economic issues. The court then observed, The emission norms stipulated by the Government have failed to check air pollution, which has grown to dangerous levels across the country. Therefore, to recommend that the role of the Government be limited to specifying norms is a clear abdication if the constitutional and statutory duty cast upon it to protect and preserve the environment, and is in the teeth of the precautionary principle. Though precautionary principle has emerged as basic guideline for the exercise of governmental discretion, the problem is that there is not much consensus on the exact scope of the principle. Every activity is fraught with certain risks and there can never be full scientific certainty. Taken literally, the principle would be dont do anything. In 2000, the European Commission dealt with the various aspects of implementation the precautionary principle and state that it would be applicable where preliminary objective scientific evaluation indicates that there are reasonable grounds to believe that the potentially dangerous effects on the environment and human, etc. may be inconsistent with the high level of protection chosen for the community. PUBLIC TRUST DOCTRINE
The ancient Roman Empire developed a legal theory known as the Doctrine of Public Trust. The Doctrine primarily rests on the principle that certain resources like air, water, sea 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 Supreme Court in India has also recognized that this doctrine is part of Indian Law. The Court in the below mentioned case held that the doctrine of public trust implies following restrictions on government authority:
1. The property subject to the trust must not only be used for public purpose, but it must be held available for use by the general public. 2. The property may not be sold even for a fair cash equivalent. 3. The property must be maintained for particular type of uses.
M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 (Span Motel Case)
In this case the Supreme Court for the first time applied this doctrine. It took notice of a news item in the Indian Express newspaper dated 2 nd Feb 1996. The respondents family had direct links with Span Motel, which owned a resort, Span Resorts. The family floated another venture, Span Club, encroaching upon a land, including forest land. It was reported that the regularization of this encroachment was made when the first respondent was the Minister for Environment and Forests in the Central Government. Span Reports management used bulldozers and earth movers to control the course of river Beas, and to keep the high intensity of flow away from the motel. It was feared that such change would cost landslide and floods. Once the diversion of the river is complete, the span management had plans to go in for landscaping.
While deciding the case the court went into the history of public trust doctrine as follows:
The ancient Roman Empire developed a legal theory known as the doctrine of public trust. It was founded on the idea that certain common properties such as rivers, seashores, forests and the air were held by government in trusteeship for the free and unimpeded use of the general public. Our contemporary concern about the environment bears a very close conceptual relationship to this legal doctrine. Under the Roman law, these resources were either owned by no one (res nullius) of by everyone in common (Res Communious). Under the English common law, however, the sovereign could own these resources but the ownership was limited in nature, the crown could not grant these properties to private owners if the effect was to interfere with the public interest in navigation of fishing. Resources that were suitable for these uses were deemed to be held in trust by the crown for the benefit of the public. Joseph L sax, Professor of Law, University of Michigan proponent of the modern Public Trust Doctrine in an erudite article, PUBLIC TRUST DOCTRINE IN NATURAL RESOURCES LAW: EFFECT JUDICIAL INTERVENTION, MICHIGAN LAW REVIEW, VOL 68, PART 1, P 473, has given the historical background of the public trust doctrine as under :
The source of modern public trust law is found in a concept that received much attention in Roman and English law the nature of property rights in rivers, sea and seashore. That history has been given considerable attention in the legal literature need not be repeated in detail here. But two points should be emphasized. First, certain interests, such as navigation and fishing, were sought to be preserved for the benefit of the public; accordingly, property used for those purposes were distinguished from general public property which the sovereign could routinely grant to private owners. Second, while it was understood that in certain common properties such as the seashore, highways, and running water perpetual use was dedicated to the public, it was never been clear whether the public had an enforceable right to prevent infringement of those interests. Although the state apparently did protect public uses, no evidence is available that public rights could be legally asserted against a recalcitrant government.
MI Builders Pvt Ltd. V Radhey Shyam Sahu AIR 1999 SC 2468
In this case the Lucknow Nagar Mahapalika permitted the appellant, MI Builders Pvt. Ltd., to construct an underground shopping complex beneath Jhandewala Park. The major part of the work was completed. The High Court quashed the relevant resolution that permitted the construction. When it set aside the agreement, the high court had noticed certain facts. The park was of historical importance, which Mahapalika did not deny. Preservation or maintenance of the park was necessary from the environmental perspective. The only reason advanced by Mahapalika for construction of 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. The builders appealed. The Supreme Court observed,
The park is of historical importance. Because of the construction of underground shopping complex and parking it may still have the appearance of park with grass grown and path laid but it has lost the ingredients if a park in as much as no plantation now can be grown. Trees cannot be planted and rather while making underground construction many trees have been cut. Now it is more like a terrace park. Qualitatively it may still be a park but it is certainly a park of different nature. By construction of underground shopping complex irreversible changes have been made.
The 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 in the case of Kamalnath.
Further the court observed that there is no principle agent relationship between the builder and the government and it was on principal to principal level and the very fact that the construction was done without sanction of the building plan the construction per se is illegal.
The court observed that,
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.. The agreement smacks of arbitrariness, unfairness and favoritism. The agreement was opposed to public policy.
Referring to literature the court quoted that the idea of public trusteeship rests upon three related principles.
1. First, certain interests like air and sea have such importance to the citizenry that it would be unwise to make them the subject of private ownership. 2. Secondly, they should be made freely available to the entire citizenry without regard to economic status. 3. Thirdly, it is the principle purpose of government to promote the general public rather than to re-distribute public goods from broad public use to restrict private benefit.
MP Rambabu v. Divisional Forest Officer AIR 2002 AP 256
In this case state of AP High Court had to deal with the problem of salinity of underground water. It was feared that digging bore wells and excessive usage of agricultural lands for aquaculture caused salinity. The court said that deep underground soil and water belong to the state in the sense that the doctrine of public trust extends to them. Manifestly, their use is subject to the state regulation even in the absence of a specific law. The underground water can be used only for a purpose for which the superjacent land is held. If it is used for a different purpose and causes pollution of underground water or soil, the state can interfere and prevent contamination. Applying, the proposition to a person, who holds lands for agricultural purpose, the court held:
.under no circumstance, he can be permitted to restrict flow of water to the neighboring lands or discharge the effluent in such a manner so as to affect the right of his neighbor to use water for his own purposes. On the same analogy he does not have any right to contaminate the water to cause damage to the holders of the neighboring agricultural fields.
POLLUTER PAYS PRINCIPLE
It means that the polluter should bear the cost of pollution as the polluter is responsible for pollution. This principle demands that the financial costs of preventing and remedying damage caused by pollution should lie with the undertaking which cause the pollution. Under it, it is not the role of government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer.
Origin of the principle
The principle was promoted by the Organisation for Economic Co-operation and Development (OECD) during 1970s when there were demands on government and other institutions to introduce policies/ mechanisms to protect the environment and the public from the difficulties inherent in defining the principle, the European Committee accepted it as a fundamental part of its strategy on environmental matters. Thus this principle has been incorporated into the European Community Treaty. Article 102 R (2) of the Treaty states that environmental considerations are to play a part in all the policies of the Community, and that action is to be based on three principles 1. The need for preventive action 2. The need for environmental damage to be rectified 3. The polluter pays
Polluter pays principle and the Apex Court
It may be noted that the polluter pays principle evolved out of the rule of absolute liability as laid down by the Apex Court in Shriram Gas Leak Case. In the Bichri case/ H acid case [Indian Council for Enviro- Legal Action v. UOI AIR 1996 SC 1446] 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 for pollution. The Court further observed,
That section 3 and 5 of the EPA empower the central government to give directions and take measures for giving effect to this principle. The Power to lay down the procedures, safeguards and remedial measures under the omnibus power of taking all measures impliedly incorporated the polluter pays principle.
Calcutta Tanneries Case [M.C. Mehta v. UOI (1997) 2 SCC 411] The task of assessment and recovery of restoration costs were assigned to an authority appointed by the state government. The Apex Court also directed polluters to pay a pollution fine with the proceeds being credited to an environment protection fund for the restoration of the local environment.
M.C. Mehta v. Kamalnath (1997) 1 SCC 388 In this case Span Motel was also asked to pay compensation for the restitution of the environment and ecology.
Deepak Nitrite Ltd. v. State of Gujarat, 2004 The issue in this case 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.
Vijay Singh Puniya v. State of Rajasthan AIR 2004 Raj 1 In this case the High Court on the principle of Polluter pays directed that each of the polluting industrial units shall pay to state industrial corporation, 15% of its turnover by way of damages.
Vellore Citizens Welfare Forum v. UOI (AIR 1996 SC 2715) In this case certain tanneries in the state of Tamil Nadu were discharged untreated effluent into agricultural field, 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 the essential features of sustainable development. Further the court held that, the polluter pays principle means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation.
In this case the Apex Court directed the Central government to constitute an authority under section 3 of the EPA 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.
INTERGENERATIONAL EQUITY
Intergenerational equity that is moral obligation of the current generation to use natural resources in a manner without jeopardizing the aesthetic and economic welfare of the future generation is advanced as an argument in favour of sustainable development and natural resource use. If present generation continues consume and deplete resources at unsustainable rate, future generations will suffer the environmental consequences.
Origin of the principle
The origin of the principle can be seen in the Principle 1 and 2 of the 1972 Stockholm Declaration. These principles lay down the solemn responsibility on the man to safeguard the natural resources of the earth for the benefit of the present and future generations through careful planning and management. The report of WCED (Brundtland), 1987, emphasizing the importance of sustainable development talked not only of equity for the present but of intergenerational equity. And thus the wheel of human reasoning came full circle 2000 years ago the Isopanishad had stated:
all in this manifest world, consisting of moving or non moving, are governed by the lord. Use its resources with restraint. Do not grab the property of others distant and yet to come.
Dehradun Quarrying Case (AIR 1987 SC 359)
The Court observed, We are not oblivious of the fact that natural resources have got to be trapped for the purposes of the social development but one cannot forget at the same time that tapping of resources have to be done with requisite attention and care so that ecology and environment may not be affected in any serious way. It has always to be remembered that these are permanent assets of mankind and not intended to be exhausted in one generation.
Mathew Lukose v. Karnataka SPCB, 1990 (2) KLT 686 Explaining the principle of intergenerational equity the court held, The world belongs to us in usufruct, but we own a duty to the posterity and to the unborn to leave this world at least as beautiful as we found it.
State of Himanchal Pradesh v. Ganesh Wood Products AIR 1996 SC 149 It is contrary to public interest involved in preserving forest wealth, maintenance of environment and ecology and consideration of sustainable growth and intergenerational equity. After all, the present generation has no right to deplete all the existing forests and leave nothing for the next and future generations.
Coastal Protection Case (1996) 5 SCC 281 The Supreme Court held,
Violation of anti pollution laws not only adversely affects the existing quality if life but the non enforcement of legal provisions often results in ecological imbalance and degradation of environment, the adverse effect of which will have to be borne by the future generations.
Shrimp Culture Case [S. Jagannath v. UOI (1997) 2 SCC 87] The Apex Court in this case held,
Sustainable development should be the guiding principle for Shrimp aquaculture and by following the natural method, though the harvest is small but sustainable over long periods and it has not adverse effect on the environment and ecology. It held that there must be an environment impact assessment before permission is granted to install commercial shrimp forms. The assessment must take into consideration the intergenerational equity.
SUSTAINABLE DEVELOPMENT Sustainable development means an integration of development and environmental imperatives. It means development in harmony with environmental considerations. To be sustainable, development must possess both economic and ecological sustainability. It is a development process where exploitation of resources, direction of investment, orientation of technology development and industrial changes are all in harmony.
Sustainable development is multi dimensional concept with three interacting angels- ecology, economics and ethics. The necessary conditions for achieving sustainable development are ecological security, economic efficiency and social equity. Sustainable development does not end with the sustainability of just the environment and resource system but requires the sustainability also of economic and social system.
Ecological restoration, economic betterment and social justice mutually reinforce one another (coordination between them is only apparent and not real) and call for same set of policies and actions. In fact, environment protection is development, because environment deterioration leads to poverty and distorted development.
Eco-development is a related concept. It is a process of ecologically sound development, of positive management of environment for human benefit. For example, banning tree felling in rural poor and tribals; development of community or common lands for rural subsistence needs; and, developing privately owned cultivated lands for Biomass needs of industries; towns and villages. These are the components of the new development strategy. The components of the eco-development also includes alternative development strategies: Biogas, substitutes for natural resources, social forestry, micro-irrigation (an alternative to big dams) and recycling of waters to prevent pollution.
The Report of WCED (Brundtland Report), 1987, produced a document Caring for the Earth: A Strategy for Sustainable Living. The document defined and explained the concept of sustainable development. Sustainable development is development that meets the needs of the present without compromising the ability of the future generations to meet their own needs.
The higher judiciary in India has recognized the principle of sustainable development as a basis for balancing ecological imperatives with developmental goals. The Dehradun Quarrying Case (AIR 1987 SC 359) was the first case of its kind in the country involving issues relating to environment and ecological balance which brought into sharp focus the conflict between development and conservation. The Supreme Court emphasized the need for reconciling the two in the larger interest of the country.
Kinkri Devi v. State of Himachal Pradesh (AIR 1988 H.P. 4) In this case the Court relied on the above-mentioned case and observed If industrial growth sought to be achieved by reckless mining resulting in loss of life, loss of property, loss of amenities like water supply and creation of imbalance, there may ultimately be no real economic growth and no real prosperity.
People United for Better Living in Calcutta v. State of W.B. AIR 1993 Cal 215 observed, While it is true that in a developing country there shall have to be developments, but that development shall have to be in closest possible harmony with the environment, as otherwise there would be development but no environment, which would result in total devastation..There has to be a proper balance between the development and environment so that both can co-exist without affecting and other.
The Court further observed It is now a well-settled principle of law that socio-economic conditions of the country cannot be ignored by court of law because the benefit of the society ought to be the prime consideration of law courts. Thus, the courts must take cognizance of the environmental problems. However, law courts ought not to put an embargo to any development project which may be in the offing. The Courts are required to strike a balance between the development and ecology and there should be no compromise with each other.
Vellore Citizens Case is a landmark judgment where the principle of sustainable development has been adopted by the Supreme Court as a balancing concept. While rejecting the old notion that development and environmental protection cannot go together, the Apex Court held the view that sustainable development has now come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystem. Thus, pollution created as a consequence of development must be commensurate with the carrying of our ecosystem. The court observed,
Though the leather industry is of vital importance to the country as it generates foreign exchange and provide employment avenues, it has no right to destroy the ecology, degrade the environment and pose a health hazard.
M.C. Mehta v. UOI [Aravalli Hills Range Case] AIR 2004 SCW 4033 The Apex Court in this case observed,
The development and the protection of environment are not enemies. If without degrading the environment or minimizing adverse effects thereupon by applying stringent safeguards, it is possible to carry on development, in that eventuality, the development has to go on because one cannot lose sight of the need for development of industries, projects etc. including the need to improve employment opportunity and the generation of revenue. A balance has to be struck.
In such matters, many a times, the option to be adopted is not very easy or in a strait- jacket. If an activity is allowed to go ahead, there may be irreparable damage to economic interest. In case of doubt, however, protection of environment would have precedence over the economic interest.
In the instant case, a notification has been issued under rule 5, Environment Rules, 1986, which prohibited undertaking expansion/ modernization of any mining activity/ new project without clearance from the Central Government. However, the MoEF later issued a circular giving time to defaulting units to obtain ex post facto environmental clearances. The Supreme Court held that this shows total non-sensitivity of MoEF to principles of sustainable development and the object behind issue of notification. A statutory notification cannot be nullified by issue of circular.
Goa Foundation v. Diksha Holdings (P)(Ltd.) AIR 2001 SC 184 In this case a PIL was filed against construction of hotel and sea beach resort in Goa Coastal area on the ground that it would cause environmental damage. Held that the permission granted to the proposed hotel project was based on consideration of relevant material and the grant of permission was not in violation of any statutory provisions.
Further no evidence of ecological degradation on construction of the proposed hotel complex was available. Hence, the court would not be justified in thwarting the hotel project in the contextual facts. The central government has taken due care in obtaining reports from the authorities of the Goa Government as well as deputed its own scientists to have a spot inspection and report about the feasibility of the hotel project being cleared up. The court observed,
while maintaining and preserving environment and ecology, economic development of the state has to be kept in mind and a balance has to be struck between the two.