ROLE OF JUDICIARY IN CURBING NUISANCE RELATED TO

ENVIRONMENT

ENVIRONMENTAL LAW

Submitted by:

Sahitya subhash

(2014100)

SEMESTER V

Submitted to

Dr.k.sudha

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

Visakhapatnam

October 2016

1
 TABLE OF CONTENTS
S.No Topic Page No.
.
1. Acknowledgement 3

2. Tale of Cases 4

3. Objective and Scope of Study 6

4. Hypothesis and Review of Literature 6

5. Abstract 7

6. Chapter 1: Judicial Activism 8

7. Chapter 2: Role of Judiciary in Environment Protection 6

8. Chapter 3 : Environmental Jurisprudence in Public Nuisance 10

9. Chapter- 4 : Doctrines adopted by the Courts 16

10. Conclusion 18

11. Bibliography 20
a. Statutes Referred
b. Books Referred
c. Articles Referred

2
ACKNOWLEDGEMENT

I have endeavoured to attempt this project. However, it would not have been feasible without
the valuable support and guidance of Dr.k.sudha. I would like to extend my sincere thanks to
her.

I am also highly indebted to Damodaram Sanjivayya National Law University Library Staff,
for their patient co-operation as well as for providing necessary information & also for their
support in completing this project.

My thanks and appreciations also goes to my classmates who gave their valuable insight and
help in developing this project.

3
Table of Cases

1. A.P. Pollution Control Board v. M.V. Nayudu, AIR 1999 SC 812.

2. Akhil Bharat Go-seva Sangh v. State of Andhra Pradesh, (2006) 4 SCC 162.

3. Almitra H. Patel v. Union of India, AIR 2000 SC 1256.

4. Bimal L. Desai v. State of Karnataka, AIR 2003 SC 2246.

5. Bombay Dyeing Mfg. Co. Ltd. v. Bombay Environmental Action Group, (2006) 3 SCC
434.

6. Church of Lord [Full Gospel] in India v. K.K.R. Majestic Colony Welfare Association,
AIR 2000 SC 2773.

7. Dr. Ram Raj Singh v. Babulal, AIR 1982 All 285.

8. Gobind Singh v. Shanti Swaroop, AIR 1979 SC 143.

9. Gopi Aqua Firms v. Union of India, AIR 1997 SC 3519.

10. Himmath Singh v. Bhagwan, 1988 Cri LJ 614.

11. In re: Bhavani Rivers Shakthi Sugars Ltd., AIR 1998 SC 2059.

12. Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446.

13. J.C. Galstaun v. Dunia Lal Seal, (1905) 9 CWN 612.

14. Janki v. Sardar Nagar Municipality, AIR 1986 Guj 49.

15. Krishna Gopal v. State of Madhya Pradesh, 1986 Cri LJ 396.

16. Krishna Panicker v. Appukuttan Nair, (1993) 1 KLJ 725.

17. M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388.

18. M.C. Mehta v. Kamal Nath, AIR 2002 SC 1515.

19. M.C. Mehta v. Shri Ram Foods and Fertilizer Industries, AIR 1987 SC 965.

20. M.C. Mehta v. Union of India, (1987) 4 SCC 463.

21. M.C. Mehta v. Union of India, AIR 1988 SC 1037.

22. M.C. Mehta v. Union of India, AIR 1988 SC 1115.

4
23. M.C. Mehta v. Union of India, AIR 1996 SC 851.

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

25. M.C. Mehta v. Union of India, AIR 1998 SC 2663.

26. M.C. Mehta v. Union of India, AIR 1999 SC 291.

27. M.C. Mehta v. Union of India, AIR 1999 SC 3192.

28. Maneka Gandhi v. Union of India, AIR 1978 SC 853.

29. Marbury v. Madison, 5 US (1 Cranch) 137 (1803).

30. Mumbai Kamghar Sabha v. Abdul Bhai, AIR 1976 SC 1465.

31. Municipal Council, Ratlam v. Vardhichand, AIR 1980 SC 1622.

32. Murli S. Deora v. Union of India, AIR 2002 SC 40.

33. Rural Litigation and Entitlement Kendra v. State of U.P., (1985) 2 SCC 431

34. Rylands v. Fletcher, (1868) LR 3 HL 330.

35. S. Jagannath v. Union of India, AIR 1997 SC 811.

36. State of Madhya Pradesh v. Kedia Leather and Liquor Ltd., (2003) 7 SCC 389.

37. Subhash Kumar v. State of Bihar, AIR 1991 SC 420.

38. T. Damodhar Rao v. S.O. Municipal Corporation, Hyderabad, AIR 1987 AP 171.

39. T.N. Godavarman Thirumulpad v. Union of India, (2006) 1 SCC 212.

5
OBJECTIVE AND SCOPE OF THE STUDY

The aim of the project is to study the role of Indian judiciary and the judicial pronouncements
related to emergence of environmental jurisprudence. The project also has a detailed analysis
of some of the landmark cases and the doctrines emerged thereto from the judicial decisions.

HYPOTHESIS

This project deals firstly deals with the idea of environment and nuisance related to it. It
further poses a question whether these judicial pronouncements have been effective in
curbing the nuisance related to the environmental problems. Are the guidelines laid by the
Supreme Court is practically followed in true sense or is mentioned in just letters. It is also
evident that the Judicial Activism has also developed time and again in while protecting
environmental law sphere. Further the researcher would also analyse the concept whether the
judicial activism is beneficial for the environment as well as for people.

RESEARCH QUESTIONS:

The research questions that this Article seeks to answer are as follows:

1. What is the trend of Judicial Response to the problem of Public Nuisance on

Environment?

2. Does the Judicial Response transgress the boundaries of Judicial Decision-making and
embrace Judicial Activism?

REVIEW OF LITERATURE

As the Topic call for the First hand study of the cases decided directly in the court of law on
the subject topic of Curbing the environmental problems by the Judiciary. There has been
various articles as well as research papers analysed as well as studied to get an in depth
analysis for this topic. Further, there has been detailed case studies for the landmark case
decided by the Honble Apex Court. Further the researcher has referred a some articles for the
explaining the evolution of the doctrine developed through judicial pronouncements.

RESEARCH METHODOLOGY

Doctrinal Research Methodology has been applied.

6
ABSTRACT

The problem of environmental pollution has assumed massive and grave proportions over
the decades. It has been left to the courts in India to go behind the letter of the law into
the spirit of the law to find out the plausible solutions for the problem though evolution of
the law of public nuisance into environmental law. Though the implementation of statutory
provisions, as also by embracing various international doctrines, the Supreme Court of
India as well as various High Courts have tried time and again to develop environment-
friendly jurisprudence in India through the recognition of the principle of Sustainable
Development. However, the actions of the judiciary has been under attacks from other
organs of the State alleging that the judiciary is transgressing its boundaries and stepping
into the realms of the executive and the legislature. This paper is an effort to trace the
environmental jurisprudence in India and to find out whether judicial activism can actually
lead to sustainable development.

Keywords: Environmental Pollution, Sustainable Development, Polluter Pays,

Precautionary Principle, Public Nuisance, Judicial Activism.

INTRODUCTION

The problem of environmental pollution is as old as the evolution of Homo sapiens on the
earth. Environmental pollution in its magnified form as is today, is affecting the lives of
human beings and other organisms on the surface of the earth, which has become a
cause for immediate concern. In the United Nations Conference on Human Environment
held in Stockholm in the year 1972, various nations came together and adopted the
Stockholm Declaration (1972) which is called the Magna Carta of environment protection
and development. This Declaration adopted the concept of Sustainable Development which
was first discussed in the Tokyo Declaration on Environment and Development in the
early 1970s. The concept came up for further discussion in the Report of the World
Commission on Environment and Development (1982) and the Brundtland Report (1987).
This was further given impetus to in the historic Rio Declaration in the Earth Summit in
1992. The Summit recognizes the principle of Sustainable Development as a balancing

7
concept of development and ecology.1 With the participation of India in the Stockholm and
the Rio Conferences, the need arose to have specific legislations to implement Sustainable
Development and thus were enacted the Water (Prevention and Control of Pollution) Act,
1974, the Air (Prevention and Control of Pollution) Act, 1981, the Environment
(Protection) Act, 1986 and the Forest (Conservation) Act, 1980.

CHAPTER 1 - JUDICIAL ACTIVISM

Judicial Activism was first noticed in the historic American case of Marbury v. Madison23,
and adopted by the Supreme Court of India in the case of Mumbai Kamghar Sabha v.
Abdul Bhai3 , though without the nomenclature. It was recognized later in the case of
Maneka Gandhi v. Union of India4, and has been actively followed by the Indian judiciary
thereon. The concept of Judicial Activism goes against the very doctrine of Separation of
Powers among the Legislative, the Executive and the Judiciary. The Constitution of India
demarcates all these powers and their areas of operation. However, sometimes with the
failure of the Legislature and the Executive, the Separation of Powers remain a theory only
in textbooks and the third wing of governance, the judiciary assumes powers unprecedented
for under the name and guise of Judicial Review, which is a very basic feature of the
Constitution of India.5 This is known as Judicial Activism. By stretching the letter of the
law a little and acting according to the spirit behind it, the judiciary has intervened in
cases where there is blatant misuse of discretion of executive authority or a lacking
attitude towards booking the corrupt and other anti-social elements in society.

1 Environmental Justice: Scope and Access, by Justice Sunil Ambwani, Allahabad High Court at the
Workshop on Sustainable Development, organized by The Energy and Resources Institute, New
Delhi. Available at http://districtcourtallahabad.up.nic.in/articles/environmental.pdf, accessed on 26 th
September, 2016..

2 5 US (1 Cranch) 137 (1803).

3 AIR 1976 SC 1465.

4 AIR 1978 SC 853.

5 Deva, Surya, Public Interest Litigation in India: A Critical Overview, (June 22, 2009). Civil Justice
Quarterly, Vol. 28, pp. 19-40, 2009. Available at SSRN: http://ssrn.com/abstract=1424236, accessed
on 26th September, 2016.

8
CHAPTER 2 ROLE OF JUDICIARY IN ENVIRONMENT PROTECTION

Over the last two hundred years, the stand taken by law in order to remedy
environmental pollution problems can be divided broadly into four approaches6

i. Liability-Compensation Approach

This approach takes into account the fact that risk and injuries are inevitable in
progress and development. Law cannot stop development in order to put an
end to pollution. Hence this method seeks to put liability on the perpetrators and
award compensation to the victims appropriately. However, in view of the recent
enormity in pollution cases, this method has virtually ceased to exist.

ii. Conservation-Co-operation Approach

Here the focus is on the prevention of the harm and intelligent management of
resources by co-operation among the stakeholders. Sustainable development is the
mantra and not taking liberties with ecology is the approach.

iii. Bargain-Trade-off Approach

Development would involve environmental costs. Therefore it is for the law to see
how and where to absorb these costs, thereby keeping the damage to the
minimum. If harm still occurs, Polluter Pays Principle comes into play. This
is a popular approach endorsed in environmental laws.

iv. Rights-Sovereignty Approach

People have sovereign rights over natural resources and the function of the State is
to regulate them. There is a Constitutional right to clean environment which is a
part of right to life.7 Hence environmental law is to be looked at from the point
of people and construed accordingly.

6 Jethmal Jain, Nuisance, 2008. Available at Silicon India:

http://blogs.siliconindia.com/jethmal/NUISANCE- bid-utO9LBH680530813.html, accessed on 27th
September, 2015.

9
CHAPTER - 3 ENVIRONMENTAL JURISPRUDENCE IN PUBLIC NUISANCE

The remedies in public nuisance under criminal law are quite old but during the recent years
the higher judiciary has imparted new dimensions to these remedies by their extensive
construction to enable citizens to bring actions against the public bodies to force them to
be vigilant to keep the environment unpolluted.8

The Calcutta High Court judgment in Galstaun case 9 may be said to be earliest reported
case relating to pollution. The court held that no private person can claim a right to foul an
ordinary drain by discharging into it what it is not intended to carry off and then throw on
the municipality an obligation to alter the drain in order to remedy the nuisance.10

Gobind Singh v. Shanti Swaroop11 is the first case in which the Supreme Court examined
the scope of Section 133 of the Cr.P.C. to approve the order of the magistrate to demolish
the oven and the chimney of a baker as the baking process caused air pollution. The
Supreme Court stated as follows:

It is clear from the judgment of the learned Sub-Divisional Magistrate that the
evidence disclosed that the smoke emitted by the chimney constructed by the
appellant was injurious to the health and physical comfort of the people living or
working in the proximity of the appellants bakery and that there was no

7 M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388; Subhash Kumar v. State of Bihar, AIR 1991 SC 420; A.P.
Pollution Control Board v. M.V. Nayudu, AIR 1999 SC 812; M.C. Mehta v. Union of India, AIR 1988 SC 1037;
M.C. Mehta v. Union of India, AIR 1999 SC 3192; M.C. Mehta v. Union of India, AIR 1997 SC 734; Vellore
Citizens Welfare Forum v. Union of India, AIR 1996 SC 2721; Indian Council for Enviro-Legal Action v. Union
of India, AIR 1996 SC 1446; M.C. Mehta v. Union of India, AIR 1998 SC 2663; M.C. Mehta v. Union of India,
AIR 2001 SC 1948; M.C. Mehta v. Union of India, (2002) 4 SCC 356; M.C. Mehta v. Union of India, (2002) 4
SCC 378; M.C. Mehta v. Union of India, (2002) 5 SCALE 538. Cited in: Prof. M.P. Jain, Indian Constitutional
Law, 5th ed. Reprint 2006, Wadhwa (Nagpur), pp. 1137-1139.

8 Dr. Rambabu Dubey and Geeta Shrivastava, The Realistic School and Judicial Activism in India,
Central India Law Quarterly, Vol. XIII, 2000, p. 432-441. Available at:
http://www.cili.in/article/download/1643/1812, accessed on 27th September, 2016.

9 J.C. Galstaun v. Dunia Lal Seal, (1905) 9 CWN 612

10 Dharmendra S. Sengar, Environmental Law, Prentice Hall of India Pvt. Ltd., (New Delhi) 2007,
p. 116.

11 AIR 1979 SC 143.

10
 justification on the part of the appellant for discharging the smoke from the
chimney. Considering the nature of this construction and the volume of smoke
emitted by it the learned Magistrate concluded that the chimney was not only an
encroachment upon a public place but its construction led to a graver
consequence. Allowing the use of the oven and the chimney was, according
to the Magistrate, virtually playing with the health of the people.

The case occurred at a time when pollution free equipments were not popular in the
country. In modern times, when eco-friendly equipments are available in plenty, the
observation of the court becomes very relevant despite the fact that the demolition of
the oven and the chimney as ordered in the case amounted to the stoppage of the bakers
business.

Judicial activism of the eighties made its impact felt in the area of environment
protection through the landmark judgment of Municipal Council, Ratlam v.
Vardhichand12. The Supreme Court identified the responsibilities of local bodies towards
the protection of environment and developed the law of public nuisance in the Cr.P.C. as
a potent instrument for enforcement of their duties. The residents within Ratlam
municipality were suffering from a long time from a pungent smell from open drains. The
odour caused by public excretion in slums and the liquids flowing on to the street from the
distilleries forced the people to approach the magistrate for a remedy. Following a direction
from the magistrate to remove the drain, a six-month time bound program had to be
adopted for constructing drainage and public latrines. Instead of complying with the order,
the municipality opted to challenge it, pleading financial constraints and inability to carry
out the scheme. When the case came to the Supreme Court, Justice V.R. Krishna Iyer, in
his inimitable style held:

A responsible municipal council constituted for the precise purpose of preserving

public health and providing better finances cannot run away from its principal duty
by pleading financial inability. Decency and dignity are non-negotiable facets of
human rights and are a first charge on local self governing bodies. Similarly,
providing drainage systems- not pompous and attractive, but in working condition
and sufficient to meet the needs of the people- cannot be evaded if the municipality
is to justify its existence.
12 AIR 1980 SC 1622.

11
 Thus, the judgment of the Supreme Court in Ratlam Municipality case is a landmark
in the history of judicial activism in upholding the social justice component of the rule of
law by fixing liability on statutory authorities to discharge their legal obligation to the
people in abating public nuisance and making the environment pollution free even if there
are budgetary constraints.13

Following the decision in Ratlam, the courts have issued directions to remind
statutory authorities and local bodies to remove garbage and to keep cities and towns clean.
By entrusting them directly with the responsibility of studying the state of the environment
and ecology, like identification of hazardous industry, and asking them to issue notice of
closure or relocation of industries, courts have moulded these bodies into dynamic
independent environmental protection agencies.14

In Dr. Ram Raj Singh v. Babulal15, the Allahabad High Court went into the contours of
the concept of nuisance embedded in the statute.

In December, 1984, India witnessed one of the greatest man-made calamities in Bhopal, the
capital city of the State of Madhya Pradesh, from a factory owned by Union Carbide India
Limited. Methyl Isocyanate, a highly poisonous gas leaked out and it resulted in the
death of more than two thousand persons who were mostly the hutment-dwellers in the
near vicinity of the factory. The air carried the leaked deadly poisonous gas to the thickly
populated areas and about two lakhs people suffered various bodily injuries. The Union
Carbide India Limited is a company incorporated in India by Americans. The Bhopal Gas
Tragedy was an eye opener and the protection of environment was taken as a serious
matter. The Indian Parliament passed the Environment (Protection) Act, 1986. The
Environment Protection Act empowers the Central Government to take measures to
protect and improve the environment. Rules were also framed for implementation of the
provisions of the Act.16

13 Kailash Thakur, Environmental Protection Law and Policy in India, Deep & Deep Publications Pvt. Ltd.
(New Delhi), 1st ed. Reprint, 2005, p. 307.

14 Karni Singh, Environmental Justice: Experience Vs. Expectations. Available at Legal Service
India.com: http:// www.legalserviceindia.com/articles/ev_ex.htm, accessed on 27th September, 2016.

15 AIR 1982 All 285.

12
 In Rural Litigation and Entitlement Kendra v. State of U.P17., the court ordered the
closure of certain limestone quarries on the ground that there were serious deficiencies
regarding safety and hazards in them.

In Janki v. Sardar Nagar Municipality18, the High Court of Gujarat entertained a writ
petition under Article 226 in a public interest case. It persuaded the municipality and the
State Government to provide sewerage and drainage systems for the residents of that area.

In Krishna Gopal v. State of Madhya Pradesh19, the Indore bench of the M.P. High Court
held that the order of dismantling the alkaline factory causing noise and odour in the
residential locality was valid despite the fact that only a single person took up the matter
with the executive magistrate.

In M.C. Mehta v. Union of India20, the court ordered the closure of tanneries at
Jajamau near Kanpur which were polluting the Ganga river, till they took up steps to set up
treatment plants.

In T. Damodhar Rao v. S.O. Municipal Corporation, Hyderabad21, the A.P. High Court
allowed a petition forbidding the construction of houses for government organizations on
land allocated for a recreational park.

The famous Ganga River Pollution case22 is another landmark judgment in the history of
public nuisance litigation in India. The river Ganga got polluted due to discharge of

16 Ravi Kant, Judicial Activism and the Role of Green Benches in India. Available on Law Resource
India: http://indialawyers.wordpress.com/2009/05/24/judicial-activism-and-the-role-of-green-
benches-in-india/ accessed on 27th September, 2016.

17 (1985) 2 SCC 431.

18 AIR 1986 Guj 49.

19 1986 Cri LJ 396.

20 (1987) 4 SCC 463

21 AIR 1987 AP 171.

22 M.C. Mehta v. Union of India, AIR 1988 SC 1115

13
 industrial wastes, effluents, human excreta into the river. Further, a number of dead
bodies are being thrown into the river at Kasi, with a belief that the dead persons would go
to heaven directly since they consider Kasi as holy place and the river as sacred. The
petitioner, Advocate M.C. Mehta filed a P.I.L petition in the Supreme Court under Art. 32
of the Constitution against the Union of India, Kanpur Municipal Corporation and others
for removal of public nuisance caused by the polluted Ganga water. The Supreme Court
allowed the petition and directed the authorities concerned to take up necessary steps for
removal of the public nuisance and also appreciated the petitioner for taking imitative in
this regard.23

In Himmath Singh v. Bhagwan24, the Rajasthan High Court held that when sand winds
carried particles of fodder from a fodder cutting machine, which itself caused noise and
offensive smell, to the residential locality, it created public nuisance.

In Krishna Panicker v. Appukuttan Nair25, the Kerala High Court held that the special
acts like the Water Act or Air Act cannot be held as repealing Section 133 of the Cr.P.C.36

In the famous Bichhri Village case26, the Supreme Court suggested that High Courts
would be the appropriate forums to decide on matters pertaining to environmental pollution
because of the localized nature of the problems. Also the lower judiciary would have the
necessary means to assess the matrix of the problem and correctly ascertain its
implication before passing any judgment.

In Vellore Citizens Welfare Forum v. Union of India27, after issuing various

directions for closure and relocation of polluting tanneries in Tamil Nadu, the Supreme

23 Kamaluddin Khan, Public Interest Litigation and Judicial Activism. Available on TwoCircles.net:
http://www.twocircles.net/legal_circle/public_interests_litigation_and_judicial_activism_kamaluddin
_khan.ht ml, accessed on 29th Septembet, 2016.

24 1988 Cri LJ 614

25 (1993) 1 KLJ 725

26 Confirmed by the Supreme Court in State of Madhya Pradesh v. Kedia Leather and Liquor Ltd., (2003) 7
SCC 389.

27 AIR 1996 SC 2715

14
 Court entrusted the Madras High Court with the responsibility of monitoring matters as if
they were a part of the petition. The notable request made by the Supreme Court to the
Chief Justice of the Madras High Court was to constitute a special bench - a Green
Bench- to deal with the case and other environmental matters, as is done in Calcutta,
Madhya Pradesh and in some other High Courts.28

The court also directed the Central Government to constitute an authority under Section
3(3) of Environment (Protection) Act, 1986, to monitor the implementation of the treatment
plants, close the industries, which did not take any steps for installation of treatment plants,
impose fine on the tanneries for delay in installations of treatment plants and set up
Environment Protection Fund for compensating the affected persons identified by the
authority. It also approved the standards for total dissolve of solids recommended by
NEERI (National Environmental Engineering Research Institute).

With a view to preserve environment and control pollution within the vicinity of tourist
resorts of Bodknul and Surajkund, the court directed the stoppage of mining activity within
two kilometer radius of these two tourist resorts in M.C. Mehta v. Union of India.29

In Vineet Kumar Mathur v. Union of India30, intervention of the court was sought to
prevent pollution of river Gomti in U.P. due to discharge of effluents from the distillery of
Mohan Meakins Ltd. The court directed the removal of deficiencies in the effluent
treatment plant as well as imposed a fine of Rs. 5 lakhs on the company.

Another important case is the Taj Trapezium (TTZ) case31 filed for protecting the Taj
Mahal, the historic monument of India from emissions from carbon and coke based
industries in the TTZ zone. The Court ruled that industries, identified by the Pollution
Control Board as potential polluters, had to change over to natural gas as an industrial fuel
and those that were not in a position to obtain gas connections for any reason should stop
functioning in TTZ and relocate themselves in alternative plots outside the demarcated area
28 Karni Singh, Environmental Justice: Experience Vs. Expectations. Available at Legal Service India.com:
http:// www.legalserviceindia.com/articles/ev_ex.htm, accessed on 27th September, 2016.

29 AIR 1996 SC 851.

30 (1996) 7 SCC 714.

31 M.C. Mehta v. Union of India, (1997) 2 SCC 353

15
 within the stipulated time. International treaties, agreements, conventions and decisions
taken at international conferences have to be incorporated into the law of the land by
parliamentary legislation. The Taj decision is an instance of judicial strategy of applying a
norm formulated at the international level into the facts of the case and accepting it as part
of the legal system.

The directives of the Apex Court went to the extent of spreading environmental awareness
and literacy as well as the launching of environmental education programs.The
directions of the Court to All India Radio and Doordarshan, to focus their programmes
on various aspects of the environment, have been immediately complied with. The Court
also required every State Government and education board to take steps for
environmental education.

The long line of cases, thereafter, regulating shrimp culture industry in the ecologically
fragile coastal areas32, directing the Pollution Control Board regarding proper search of
effluents in lagoons33, controlling vehicular pollution in Delhi by use of CNG and phasing
of old vehicles 34 , protecting the Yamuna river, regulating solid waste disposal and cleaning
of metropolitan cities35, prohibiting the use of amplifiers for religious propagation
causing disturbance to the sick, the aged, the children and the students36, imposing
exemplary damages for restoration of environment and ecology on construction of Span
Hotels Pvt. Ltd. on Beas river37, banning smoking in public places38, protecting Cubban

32 S.Jagannath v. Union of India, AIR 1997 SC 811.

33 In re: Bhavani Rivers Shakthi Sugars Ltd., AIR 1998 SC 2059.

34 M.C. Mehta v. Union of India, AIR 1999 SC 291.

35 Almitra H. Patel v. Union of India, AIR 2000 SC 1256.

36 Church of Lord [Full Gospel] in India v. K.K.R. Majestic Colony Welfare Association, AIR 2000
SC 2773.

37 M.C. Mehta v. Kamal Nath, AIR 2002 SC 1515.

38 Murli S. Deora v. Union of India, AIR 2002 SC 40.

16
 park at Bangalore39, issuing directions for disposal of imported contaminated waste oil40,
rationalizing meat export promotion policy41and intervening in town planning in Mumbai
on the principle of Sustainable Development42 in a series of orders and many other matters
have finally established environmental jurisprudence in India.

The Apex Court has taken many unpopular decisions which have proved beneficial in
the long run. Judicial directions in matters like pollution of our holy rivers, the Ganges
and the Yamuna, pollution of underground water, choking of Delhi, Calcutta and other
metros due to air pollution, protection of national historical monuments like the Taj Mahal,
have rendered great service to humanity. Seeds have been planted, path has been
shown, and direction has been given. However, our law enforcement has yet to catch up
with these efforts. Law cannot reach where enforcement cannot follow. Without proper
enforcement of laws our court orders will not be able to achieve desired results.

CHAPTER -4 PRINCIPLES AND DOCTRINES ADOPTED BY THE COURTS

In evolving enviro-legal jurisprudence in India, the courts have adopted various common
law principles and various international doctrines time to time and have merged them with
Indian environmental law. They are as follows:

i. Doctrine of Sustainable Development

Sustainable development has 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 Eco-systems. Sustainable Development as defined by the Brundtland
Report means Development that meets the needs of the present without compromising
the ability of the future generations to meet their own needs. Sustainable Development
as a balancing concept between ecology and development has been accepted as a part of

39 Bimal L. Desai v. State of Karnataka, AIR 2003 SC 2246.

40 Research Foundation for Science v. Union of India, (2005) 13 SCC 675.

41 Akhil Bharat Go-seva Sangh v. State of Andhra Pradesh, (2006) 4 SCC 162.

42 Bombay Dyeing Mfg. Co. Ltd. v. Bombay Environmental Action Group, (2006) 3 SCC 434.

17
 the Customary International Law though its salient features have yet to be finalised by the
International Law Jurists.43

ii. Doctrine of Absolute Liability

This doctrine was evolved in the case of M.C. Mehta v. Shri Ram Foods and
Fertilizer Industries44. This case was filed for the shifting of caustic chlorine and
sulphuric acid plants located in a thickly populated area in Delhi. From that
very plant, oleum gas leaked out and it caused some panic among the
neighbourhood residents. The court said that where an enterprise is engaged in a
hazardous or inherently dangerous activity and harm results to anyone on account
of an accident in the operation of such hazardous or inherently dangerous
activity, the enterprise is strictly and absolutely liable to compensate all
those who are affected by the accident and such liability is not subject to any of the
exceptions which operate vis-a-vis the tortuous principles of strict liability under
Rylands v. Fletcher45.

ii. Polluter Pays Principle

This was invoked by the court in the case of Indian Council for Enviro-Legal
Action v. Union of India46. Once the activity carried on is hazardous or inherently
dangerous, the polluter carrying on such activity is liable to make good the loss
caused to any other affected party by polluters activity irrespective of the fact
whether the polluter took reasonable care while carrying on his activity. In this
case, the Court has stated that the Polluter Pays Principle means that the
absolute liability for harm to the environment extends not only to compensate the

43 Justice V.R. Krishna Iyer, Environmental Justice Through Judicial Process: From Ratlam to
Ramakrishnan, 2002. Available at: http://www.esgindia.org/projects/kja2002/docs/RATLAM%20TO
%20RAMAKRISHNAN %20J%20Krishna%20Iyer.htm, accessed on 27th July, 2009

44 AIR 1987 SC 965.

45 (1868) LR 3 HL 330.

46 AIR 1996 SC 1446.

18
 victims of the pollution but also the cost of restoring the environmental
degradation. Subsequently, Polluter Pays Principle as interpreted by the Court
has been recognised as a fundamental objective of government policy to
prevent and control pollution.

iii. Precautionary Principle

This principle was applied by the court in the case of Vellore Citizens Welfare
Forum v. Union of India47. It imposes an obligation on every developer, industry
and governmental agency to anticipate, prevent and attack the causes of
environmental degradation. The Court also held that if there are threats of
serious and irreversible damage then any lack of scientific certainty should not
be used as a reason for postponing measures to prevent environmental
degradation. Finally, the Court emphasised that the onus of proof shall be on the
actors or the industrialists to show that their action is environmentally benign.

v. Doctrine of Public Trust

This doctrine has been referred to by the court in the case of M.C. Mehta v.
Kamal Nath48. The doctrine extends to natural resources such as rivers, forests,
sea shores, air etc., for the purpose of protecting the eco-system. The State holds
the natural resources as a trustee and cannot commit breach of trust. In the above
case, the States order for grant of a lease to a motel located on the bank of the river
Beas, which resulted in the Motel interfering with the natural flow of the water, has
been quashed and the public company which got the lease has been directed to
compensate the cost of restitution of environment and ecology in the area.

CONCLUSION

The contribution of the Supreme Court of India in protecting the environment and
ecology, forest, wild life, etc. has been phenomenal. But the main points remain they been
practically implemented or achieved so far. They are not successfully implemented in its true
sense. In many of cases of the cases though the Supreme Court decision has a Despite the

47 AIR 1996 SC 2715.

48 (1997) 1 SCC 388.

19
limitations of jurisdiction, the Court played a vital role in expanding the principles as well
as doctrines related to environment protection but in many cases it was evident that it was not
harsh towards the culprits or the person found liable or damaging the environment. The case
of Shriram Gas Food Fertilizers, Bhopal Gas Tragedy, Kamal Nath Case pose a distinct
question that whether liability should only be in terms of monetary compensation or there
needs to be a stricter criminal responsibility. These people would always have enough money
to use it as escaping their liability but what about the harm already caused to the
environment, what about the lives that have been lost due to wilful blindness of these
industrialist. The society as well as the judiciary should not be ignorant that they consider
monetary liability over the lives and environmental degradation. Further, the court have also
been stringent on companies that abuse the judicial process in order to avoid their liability,
the glaring example being the Bicchri Case. There is no doubt that the judiciary has doen a
commendable job in preserving and protecting the Environment. The Court in Subash Kumar
and in other landmark cases held that right to clean environment is intrinsic and is within the
ambit of Article 21. Further the DPSPs also ensure the environment protection measure to be
adopted by the government. A pertinent point to be taken into consideration is the
responsibility to protect the environment is not entrusted on the shoulders of government but
it is a collective responsibility encompassed on the shoulders society, government and every
prudent homo sapein. The fundamental rights are the goals to be achieved by the state
whereas DPSPs are the means to achieve those goals. This means is qualified to be accessed
and availed by everyone because it belongs to people as a whole. There has been various
conventions, treaties, pacts , summits , conferences which is ratified by India but has we been
following it in the practical and true sense is the main concern. There also needs to
environment awareness campaign as well as programmes to be organised at various levels in
order to make people aware of the environment problems and the method to curb it.
One of the tool that has been extensively used by Environmentalists, social thinkers,
academicians to brought serious environment concerns before the Higher Judiciary is through
PIL. M.C.Mehta, Prof. G.D.Agrawal and other NGOs are regarded as the torch bearers of
environment protection in India. The court at various stages have applauded this methodology
in Delhi CNG case, Kamal Nath case and in several others.
The judicial activism of the Apex Court is also commendable and applaudable in several
environmental health hazards and its implications on the masses. The case may be of illicit
mining, toxic gases released through factories or be it the cigarette smoking which was
decided in Murli Deora case. The courts have always taken humanitarian approach based on
20
the effects of such things on general masses, ecological imbalance, preservation of flora and
flauna while deciding these cases.
More importantly what is needed from an environmental angle is a vision for the future. We
have got enough laws to protect the environment, but its implementation is in the hands
of administrative authorities. Good governance free from corruption is the basic need to
protect the environment. The words of Justice Frankfurter are apt, quoting An onerous
obligation we owe to posterity clean air, clean water, greenery and open space. They ought
to be elevated to the status of birth right of every citizen.

BILIOGRAPHY

Statutes/ Bare Acts:

1. The Constitution of India, 1950.

2. The Environment (Protection) Act, 1986.

3. The Forest (Conservation) Act, 1980.

Books/ Commentaries:

1. Dharmendra S. Sengar, Environmental Law, Prentice Hall of India Pvt. Ltd., (New Delhi)

2007

2. Kailash Thakur, Environmental Protection Law and Policy in India, Deep & Deep
Publications Pvt. Ltd. (New Delhi), 1st ed. Reprint, 2005

3. M.P. Jain, Indian Constitutional Law, 5th ed. Reprint 2006, Wadhwa (Nagpur)

4. P. Leelakrishnan, Environmental Law Case Book, Lexis Nexis Butterworths (Delhi), 2004

5. Paras Diwan & Peeyushi Diwan, Environment Administration Law and Judicial Attitude,
Vol. I, 2nd ed., 1997, Deep & Deep Publications, (New Delhi)

Articles:

1. Arpita Saha, Judicial Activism in India: A Necessary Evil, (July 8, 2008). Available at
SSRN: http://ssrn.com/abstract=1156979

21
2. C.M. Abraham & Sushila Abraham, The Bhopal Case and the Development of
Environmental Law in India, The International and Comparative Law Quarterly, Vol. 40, No.
2, (Apr., 1991), pp. 334-365. Available at JSTOR: http://www.jstor.org/stable/759728

3. Geetanjoy Sahu, Implications of Indian Supreme Courts Innovations for Environmental

Jurisprudence, 4/1 Law Environment and Development Journal (2008) p. 1. Available at
http://www.lead-journal.org/content/08001.pdf

4. Karni Singh, Environmental Justice: Experience Vs. Expectations. Available at Legal

Service India.com: http://www.legalserviceindia.com/articles/ev_ex.htm.

5. Rambabu Dubey and Geeta Shrivastava, The Realistic School and Judicial Activism in
India, Central India Law Quarterly, Vol. XIII, 2000, p. 432-441. Available at:
http://www.cili.in/article/download/1643/1812

22