ENVIRONMENTAL PROTECTION IN INDIA:  A JUDICIAL STUDY

This article was written by Kushan Gidwani, a student of Amity Law School, Noida.

The environmental awareness needs to be cultivated in any society for it to be an ideal society. This is a basic principle that needs to be implemented rigorously for the protection and conservation of the rapidly ruining nature. India being a rapidly developing and populating country has the pressing need to push ahead with rapid industrial development. With this, comes an enormous amount of untreated toxic waste that is released into the water bodies without putting much thought into it as free drinking water is still available in our nation. As long as something is freely and easily available, people do not recognize the need to keep it that way. Human behavior has become so reckless that the value for precious natural resources is utterly lost. These resources are still being taken for granted, even after acknowledging the fact that they may become extinct if they are continued to be taken for granted.

Sufficient environmental laws are even in place to handle these situations, but their implementation lacks enforcement. It is well known that the major cause of such destruction of the environment is the human’s activities, but still these activities are directed only towards making the most profit without even showing concern for their impact on the environment.

India’s rapid growth is driving an equally rapid environmental destruction. It has been argued that it is considered unfair to ask the Indian society to make equal considerations for the environment while moving forward with development and industrialization whereas the Western countries were not required to make similar choices. The reasonable counter to this argument is that India, being a country of 1 billion, faces unique challenges and shall react to them in unique ways. The situation of the environment was not in the past as it is in the present. Thus there was no obligation on anyone at that time to maintain the sanctity of the environment. But now, when destruction of the environment is at its peak, it is high time to follow the law and help protect mother nature in the best ways possible.

ENVIRONMENT, POLLUTION AND JUDICIAL REMEDIES

Section 2(a) of the Environment (Protection) Act of 1986 describes environment as one which “includes water, air and land and the inter-relationship that exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property”. The focus is on the ‘positive’ inter-relationship between the natural biological entities – including flora and fauna – and humans. The positive inter-relationship needs to take the form of respectable coexistence as it is then that positive development of the world will actually begin. Preventing, controlling and abating pollution of air, water and soil, abstinating from merciless killing of rare species of animals are some of the most important steps to be undertaken for positive inter-relationship to become a reality.

Some of the remarkable principles that were propundedby our judicial system are:

1. Doctrine of Absolute Liability

The principle of absolute liability states that

• when an enterprise is engaged in a hazardous or inherently dangerous industry, and
• if there is any harm resulting on account of such activity

then that enterprise is liable, on an absolute level, to pay compensation for such harm and the enterprise shall be in no position to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. The reason behind this is the extremely dangerous nature of the industry that is taken part into by the enterprise and, thus, one tries to anticipate the worst that could happen, even if it is highly unlikely, and not only guard against it, but prepare to contain it and make sure that there is no way for that to even take place. This liability shall be imposed upon even if there may not be negligence on the part of the accused. In the case of absolute liability, even the defenses available under strict liability would not be given importance. In such a case, it would be no good defense to argue that the direct or even the proximate cause of the accident had nothing to do with the process of carrying out of such hazardous activity, but it actually was an Act of God or that it was due to some third party intervention. Even if the company had taken extreme precautions to ensure that such events do not take place, responsibility of the damages that take place from any accident, deliberate or unintentional, would still be fixed on them.

The highly infamous example for this doctrine is the case of Bhopal Gas Tragedy[1]. Bhopal gas tragedy is, till date, the world’s worst industrial disaster. In the February of 1985, the Fovernment of India filed a case in the U.S Court for a claim of $3.3 billons against the Union Carbide Corporation (UCC). But by 1986 all these litigations in the U.S District were transferred to India. This was done following the procedure for the case to be transferred to a more convenient forum for the trial to proceed smoothly. Meanwhile in March 1985, the Bhopal Gas Leak Disaster (Processing of Claims) Act was enacted which consequently empowered the Central Government to become the sole representative of all the victims in all such kinds of litigations relating to such disastrous and hazardous, unforeseen accidents so that interests of the victims of the disaster are fully protected and the claims for compensation are pursued speedily. In the year 1987, cases were filed in the Bhopal District Court which ordered the Union Carbide Corporation to pay 350 crore rupees as interim compensation. But the interim order could not be decreed and therefore the UCC refused to pay the amount. Later on, at the High Court, this interim compensation amount was reduced to 250 crores. Both the Union of India and the UCC preferred appeals by special leave against this High Court’s order.

2. Polluter Pays Principle

Principle 16 of the Rio declaration states that:

“National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment”.
It is quite obvious that the objective of the above principle was to make the polluter liable not only for the compensation to the victims but also for the cost of restoring the environmental degradation caused by him or her. Once the actor is proved to be guilty, he/she is liable to compensate for his/her act notwithstanding the fact that he/she was involved in the process of development.

                In the case of Vellore Citizens’ Welfare Forum vs. Union of India[2], the dispute was over the tanneries in the state of Tamil Nadu. These tanneries were discharging harmful effluents into the river Palar, which in turn was the primary source of drinking water for the state. Thus, the court held that there will not be any hesitation in applying the polluter pays principle and the precautionary in the the present case. It consequently also held that where the pollution is the cause of such disruption of precious environment and is not being even assessed at this level, it is the sole responsibility of the polluter to pay for the damage caused by such heavy disruption, which shall include the cost to be paid to the individual sufferers and also the cost for reversing the effects of disruption caused to the ecology.

In M.C. Metha v. Kamal Nath and Others[3], the court held that

“…pollution is a civil 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 (compensation) for restoration of the environment and ecology. He has also to pay damages to those who have suffered loss on account of the act of the offender. The powers of this court are not restricted and it can award damages in Public Interest Litigation or a Writ Petition as has been held in a series of decisions. In addition to damages aforesaid, the person guilty of causing pollution 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…”

In M. C. Metha v. Union of India[4], the Court held that “…we are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part…”

3. Precautionary Principle

As the title suggests, this doctrine refers to the logical and scientific ability and method for making sure of the cleanliness and treatment of the procedures and processes of the polluting industries so that precaution beforehand is taken for the protection of the sanctity of the environment, rather than doing the designated damage and then spending tons of financial instruments for its repair. It is a principle of sheer common sense among the learned, and must to be applied in every possible situation of possibility of damage or harm to the environment.

In the same case of Vellore Citizens’ Welfare Forum vs. Union of India, three major guidelines were issued by the Supreme Court on Precautionary Principle as below:

1. The environment protection bodies and their regulations shall anticipate, prevent and attack environmental degradation
2. It shall be no reason for not applying measures for environment protection, whether at a large or minute scale, or enforcing laws for the same that there was no scientific certainty for the pollution, degradation and damage to actually take place. Mere anticipation of harm to the environment is reason enough for the concerned authorities to discharge appropriate measures for environment protection.
3. The onus of proof for proving that no harm has been caused to the environment is on the accused, which may be the in-charge or owner of the industry or mines.

In Narmada Bachao Andolan’s [5]case, Chief Justice Anand and Justice Kirpal gave the following findings:

 The precautionary principle and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is not known. When there is a statutory uncertainty due to lack of date 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 o the industry or the unit which is likely to cause pollution.

4. Sustainable Development

This is, by far, the most important topic of the whole article and the crux of all the rules, regulations, policies and judicial decisions of the nation on protection of environment.

This term was first used at the Stockholm Declaration in 1972. It was stated in the declaration that:

“Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well being and he bears a solemn responsibility to protect and improve the environment for present and future generations”.

But the term was ultimately given a definite shape by the then Prime Minister of Norway, Ms. G.H. Brundtland, in a report by the World Commission on Environment, which popularly came to be known as the “Brundtland Report”. It stated that 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 report also talked about the concept of Inter Generational Equity  which talks about the benefits that are to be derived and equally shared by the present and future generations and are not to be indiscriminately used by the present generation only.

Again at the summit held in June 1992 at Rio de Janeiro, Brazil, the third principle of the Rio Declaration stated that – “the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations”.

All these international declarations induced a responsibility upon our national legislators to promote sustainable development in India and form conforming policies and legislations:

According to the National Conservation Strategy and Policy Statement on Environment and Development, 1988 the Ministry of Environment and Forests (MoEF) constituted an expert committee to recommend a framework and an action plan for the conservation of resources. The crux of the strategy policy directs attention to the economic development of the nation to protect the interest of the citizens. The strategy also declares that the government’s commitment to re-orient policies and action in ‘unison with environmental perspective’.[6]

Then according to the National Environmental Policy(NEP), 2004, the country faces major environmental challenges that relate to the close relationship of environmental degradation with poverty in its various dimensions, and economic growth. These challenges are intrinsically connected with the scenario of environmental resources, such as land, water, air and their flora and fauna. Thus, this policy of 2004 plans, programs and projects for environmental conservation; and critically reviews the enactment of legislations by the administrative bodies of the Central, State and Local Governments. The key and relatable principles of the NEP, 2004 are as follows[7]:

• Human beings are at the centre of Sustainable Development concerns;
• Right to Development;
• Environmental protection is an integral part of the development process;

These above-mentioned and analysed environmental policies of the government provide helpful and positive insight into the goals and roles of the government in protecting our environment along with maintaining development in various economic and industrial fields. But it was duly noted by our judiciary that these policies and regulations had proved to be inadequate in solving the purpose for which they were made, i.e. amalgamation and harmonious construction of development and protection of environment. The primary focus of the government was still inclined towards economic and industrial development which seems to be inevitable, considering that our nation is a rapidly evolving economy. Thus the role of judiciary and judicial activism came into action for balancing the role of the government.

In one of the earliest cases, for the first time in Society for Protection of Silent Valley v. Union of India[8], the court held that the construction of a hydroelectric project leads severe deforestation along with the extinction of several endangered species of animals and birds which would ultimately have a drastic impact on the climatic conditions and would interfere with the intricate balance of nature.

In Kinkri Devi v. State[9], the court helped in realizing the relationship of Article 14[10], Article 19[11] and Article 21[12] of the Constitution of India with environmental protection and sustainable development. In the present case, government’s arbitrary grant for mining activities was challenged in violation of Article 14. The court held that fundamental right to carry on any occupation, trade or business guaranteed in Article 19(1) (g) of the Constitution is subject to reasonable restrictions as provided for in Article 19(6) of the Constitution[13]. The court accepted this version and held:

“The attainment of the Constitutional goal of the protection and improvement of the natural, wealth and environment and of the safeguarding of the forests, the lakes, the rivers, and the wildlife and to protect the people inhabiting the vulnerable areas from the hazardous consequences of the arbitrary exercise of the power of granting mining leases and of indiscriminate operation of the mines on the strength of such leases without due regard to their life, liberty and property, the court will be left with no alternative but to intervene effectively by issuing appropriate writs, orders and directions including the direction as to the closure of mines, the operation whereof is proving to be hazardous and the total prohibition of the grant or renewal of mining lease till the government evolves a long term plan based on a scientific study with a view to regulating the exploitation of the minerals in the State without detriment to the environment, the ecology, the natural wealth and the resources and the local population.”

In K. M. Chinnappa v. Union of India[14] the Apex court observed that

“It cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as necessity to maintain the environment. Where the commercial venture or enterprise would bring in results, which are far more useful for the people, difficulty of a small number of people has to be by-passed. The balance has to be struck between the two interests.”

Thus, it is realized here that though protection of the environment must be kept in mind at all instances of performing any developmental activity that comprises the possibility of disruption of the environment and its entities, it cannot be ignored that if a developmental activity is such that would bring a far more useful impact on the society then the minority view of avoiding some damage to the environment has to be by-passed. This was a landmark instance where the judiciary acted in favour of importance rather than being the Guardian Angel solely for the environment.

CONCLUSION

India is a religious land of sanctity and spirituality. It has always held in its treasure the most beautiful sceneries comprising of dense forests, beautiful lakes, rivers, streams, waterfalls, along with its extreme and admirable variety flora and fauna. It is said that taking a dip the holy Ganges and even the sight of the Narmada is purifies our soul of all our sins. But all of this beauty is being made the dumping zone of all the innumerable kinds of hazardous and non-perishable wastes created by God’s own creation – us, humans. We subsided our interest in nature and went ahead with the industrial boom, invention of the steam engine, creation of nuclear facilities including warheads and much more. And then went ahead, a step further in the destruction activities of nature and dumped toxic wastes in water bodies, lead the aquatic life to its demise, indiscriminately blew up mountains for mining, brought numerous species of animals under the tag of ‘rare’ and ‘extinct’, polluted even our own air that we breathe which is laughable and hysterical at the same time.

It is literally high time to check our activities or rather put an urgent end to them for the time being. A life of sophistication can in no way be compared to the indiscriminate felling of trees, homelessness of various fauna, polluting and destroying the environment. The important activities that must go on for the highly praised economic development of the country must, at least, be regulated with the help of legislations, policies and rules & regulations that are needed to be necessarily imposed and staunchly enforced. Considering the selfish nature of humans, I can at least expect people to understand when I say that we should make the earth a better place for ourselves to live in comfortably. Otherwise we shall need to face the truth, as has been properly  remarked by learned man, that we need the Earth and its instruments to live and survive, but the Earth does not need us.

[1] Union Carbide Corporation v. Union of India  AIR 1990 SC 273

[2] AIR 1996 SCC 212

[3] (2006) 6 SCC 213

[4] (1987) 1 SCC 395

[5] Narmada Bachao Andolan v. Union of India & Others, AIR 2000 SC 3751; (2000) 10 SCC 664

[6] Envfor.nic.in/sites/default/files-nep2004e.pdf

[7] Envfor.nic.in/sites/default/files-nep2004e.pdf

[8] WP Nos. 2949 and 3025 of 1979, Kerala High Court

[9] AIR 1987 HP 4

[10] Article 14 reads: Equality Before Law and Equal Protection of Laws: The State shall not deny equality before law and equal protection of Laws. However, there are exceptions recognised in the name of protection discrimination only to achieve the constitutional goals that are enunciated both in the Preamble and Part IV of the Constitution of India, 1950.

[11] Article 19 Fundamental Freedoms of Citizens of India, Constitution of India, 1950.

[12] No person shall be deprived of life or personal liberty except according to procedural established by law.

[13] Article 19 (6) describes the power of state to impose reasonable restrictions against the freedom enshrined in Article 19 (g).

[14] AIR 2002 SC 724