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Indian Constitutional provision of environmental law Art 252 empowers parliament to enact on state subject if two or more state

make such a request. Parliament enacted the water (prevention and control of population) Act 1974 for the control water at the request from states, under art 252 of Indian constitution. The 42nd constitutional amendment, made in 1976, changed this landscape by inducting Article 48-A[1] and Article 51A (g)[2] into this enviromyopic document. Simultaneously, the Supreme Court of India embarked on a creative activist phase of constitutional interpretation in the aftermath of the fiasco in A.D.M. Jabalpur v Shivakant Shukla[3] where it found itself helpless in defending the basic civil liberties of the citizens against executive excesses. Starting from early 1980s, the Court has developed a body of green constitutional law to safeguard the citizens health from the deleterious affects of environmental degradation. In M.C. Mehta v Union of India[4] (Oleum Gas Leakage case), the Supreme Court propounded the standard of absolute liability for payment of compensation to those affected by the accident in case of industries engaged in hazardous or inherently dangerous activities as opposed to the prevalent notion of strict liability under the Rylands v. Fletcher standard. Right to healthy environment is a universal acceptance. The right to a healthy environment got entrenched in Art. 21 of the constitution of India, courts in large measure relied on this right in addressing a variety of aspects relating to protection and improvement of environment. In Ivory traders & Manufacturing Association v. Union of India, the Delhi High Court held that right of an ivory dealer are subject to the paramount right of other people to have healthy and balance ecology. It also held that killing of elephants for procuring ivory should be stopped for a balanced environment. The Allahabad High court in S.K Garg v. State of Uttar Pradesh, the right of water is part of the right to life guaranteed by Art.21. the use of agricultural land for aquaculture causes pollution of underground water on the neibouring properties. M.P Rambabu v. Divisional forest officer, the Andhra Pradesh High court observed that under Art. 21 of the constitution of India, the right to live a decent life, a good environment and maintenance of ecology must be held to have primacy over the statutory right to hold and enjoy the property. Population is a consequence of abusing the environment and natural resources by human beings. Though part III of the constitution does not contain any provision to provide right pollution free environment as a fundamental right, but , in view of the liberal interpretation of Art 21 given by Apex Court, right to pollution free environment and protection of ecology came to acquire the status of a fundamental right. The Court has adopted an expanded view of life under Article 21 and enriched it to include environmental rights by reading it along with Articles 47, 48-A and 51A(g) and declaring: Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environ-ment, ecological balance free from pollution of air and water sanitation

without which life cannot be enjoyed. Any contra acts or actions would cause environmental, ecological, air, water, pollution, etc. should be regarded as amounting to violation of Article 21. By 1990s, it categorically declared that issues of environment must and shall receive the highest attention from this court. Indias Green Constitution now guarantees a right to healthy environment,[5] right to clean air,[6] right to clean water, enjoins the State and its agencies to strictly enforce environmental laws[7] while disclosing information in respect of decisions which affect health, life and livelihood and disallows inadequacy of funds and resources as a pretext for the evasion of obligations by the State. Significant environmental principles like polluter pays,[8] precautionary principle,[9] sustainable development,[10] public trust doctrine[11] and intergenerational equity[12] Law, Environment and Development Journal have become entrenched in the Indian law without explicit incorporation in any legislative framework. In Vellore Citizens Welfare Forum v Union of India & Ors[13] the Court employed the precautionary principle to invent the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, is placed on those who want to change the status quo viz. polluter or the industrialist. In the process, the apex Court has gone beyond the statutory texts to refer extensively to international conventions and obligations of India and even to the historical environmental values reflected in the edicts of Emperor Ashoka and verses of Atharva Veda. The Supreme Court has, in clear terms, advised the State to shed its extravagant unbridled sovereign power and to pursue a policy to maintain ecological balance and hygienic environment. The activist attitude ranges across a gamut of environmental issues viz. banning aquaculture industries in coastal areas to prevent drinking water from becoming saline, issuing directions for improving quality of air in the National Capital Territory of Delhi and protecting Taj Mahal, prohibiting cigarette smoking in public places, addressing issues of solid waste management, proscribing construction activities in the vicinity of lakes and directing the lower courts to deal strictly with environmental offences. In respect of forest governance, the Supreme Court has made an enormous contribution through the case of T.N. Godavarman Thirumulpad v. Union of India.[14] The case was set in the backdrop of critical state of national forest cover, appalling apathy of governments towards forest management and conservation and open violations of forest legislations by illegal felling in North-Eastern States. A three judge bench of the Court, known as the Green Bench or the Forest Bench, issued a continuing mandamus,[15] operative for past twelve years, and has been using it to deal with prominent issues including conversion of forest land for non-forest purposes, illegal felling, potentially threatening mining operations, afforestation and compensation by private user agencies for using forest land. In pursuance of the orders, the Government has constituted several High Powered Committees, a Compensatory Afforestation Management and Planning Authority and a Central Empowered Committee. The enormous significance of this single writ petition is evident from the fact that about 2000 interlocutory applications relating to forest issues have been disposed under it.

Of late, the apex Court has been confronted with intricate cases requiring resolution of the tension between the right to development and the right to environment.[16] The anxiety to resolve this tension and adopt a balanced approach is apparent in N.D. Jayal v Union of India,[17] a case involving construction of a large dam at Tehri in Himalayan foothills, where the Court refused to interfere by emphatically declaring the symbiotic relation between both these rights in the following words: Right to environment is a fundamental right. On the other hand, right to development is also one. Here the right to sustainable development cannot be singled out. Therefore, the concept of sustainable development is to be treated as an integral part of life under Article 21. Weighty concepts like intergenerational equity, public trust doctrine and precautionary principle, which we declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development. However, a gamut of recent cases seemingly projects an impression of Courts growing proindustry tilt while dealing with intricate issues of sustainable development. In Deepak Nitrite Ltd. v State of Gujarat & Ors.,[18] a case dealing with determination of standard of compensation in respect of industries which had flouted the norms laid down by the State Pollution Control Board, the Court held that mere non-compliance with these norms does not imply that environmental damage would result thereby; a strange and inexplicable conclusion indeed. Confronted with the issue of oil pipeline construction through Jamnagar Marine National Park and Sanctuary, the apex Court in Essar Oil Ltd. v Halar Utkarsh Samiti & Ors.,[19]permitted such laying of pipelines on the ground that it cannot invariably lead to the destruction or removal of the wild life in these ecologically sensitive areas. The Court, instead of taking independent expert evidence on the issue like it has done in all other cases, deferred to the States judgment of possible damage and the failure of respondent to place any contrary reports before it. Furthermore, given a choice between environment and development, in Research Foundation for Science Technology and Natural Resource Policy v Union of India & Ors., the Court seemed unequivocal of its choice to err on side of development. It clearly displayed that it was in favour of continuance of hazardous industry subject to safeguards being followed and seemingly took Indias economic growth rate of 9 per cent and economic interests in ship wrecking industry as overriding considerations. Lastly, in Karnataka Industrial Areas Development Board v Sri. C. Kenchappa & Ors.[20]Law, Environment and Development Journal the Court overturned a direction by the Karnataka High Court to the appellant to leave a land of one kilometer as a buffer zone to maintain a green area around the periphery of a village. In the absence of any evidence, it adjudged that these directions would have hindered land acquisition for industrial development. Justice P.N. Bhagawati once made a insightful observation: We need judges who are alive to the socio-economic realities of Indian life. In L.K Kulwal v. State,[21] The Rajasthan High court directing the municipal authorities to Jaipur to keep the city clean, laid emphasising on the fundamental duty of the citizens under Art.

51A (g). According to the court, the provision renders the citizen the right to move the court to see that state performs its duties faithfully and strives to protect and improve natural environment. It is the primary duty of the municipal council to remove filth, rubbish, noxios odour or any offensive matter, and financial inability cannot be plea. According to Apex court in M.C Mehta v. Union of India[22] Article 39 (e), 47, 48-A collectively cate duty on the state to secure the health of the people, improve public health and protect and improve the environment, on the premises to protect the health of the people of Delhi, the court issued several direction phase out grossly polluting old vehicles and non-CNG Buses. The Court rightly related the govt.s plea that CNG was in shot supply. The court observed. Confirming economic advantage upon industry by making available cheap gas in preference to need for supplying gas for environment reason is inconsistent with settled constitutional position. Some of the significant principles and guidelines laid down by the Supreme Court in M. C. Mehta cases to bring environmental protection within constitutional framework are as under: (a) Court's power to grant compensation under Article 32- -"Under Article 32 Jurisdiction and power of the Court is not only injunctive in ambit, i.e. preventing the infringement of a fundamental right, but it is also remedial in scope. . . The power to grant such remedial relief may include the power to award compensation in appropriate cases." (b) Article 21 - Scope and ambit expanded to include right to clean and healthy environment in the right to life. (c) Law of Torts: - Strict and Absolute liability of an enterprise engaged in a hazardous and inherently dangerous processes. Rule in Rylands v. Fletcher-- evolved at a time when all these developments of science & technology had not taken place -- cannot afford any guidance consistent with constitutional norms of the present day economy and social structure. (d) 'Polluter Pays Principle', 'Precautionary Principle' and 'Public Trust Doctrine' have become an integral part of the environmental law and policy in India. e) Maintainability of Public Interest Litigation Whether letters addressed to individual judges entertainable - Hyper technical approach to be avoided by this Court - Court must look at the substance and not the form. (f) Location of Hazardous Industry- National policy should evolve for location of chemical and other hazardous industries in areas where population is scarce. There should preferably be a green belt of 1 to 5 km width around such hazardous industries. (g) Jurisprudence and law It should keep pace with the changing socio-economic norms where a law does not fit into the present context, Court should evolve new law. (h) Environmental Courts - 'Since cases involving issues of environmental pollution, ecological

destruction and conflicts over natural resources are increasingly coming up for adjudication and these cases involve assessment and evolution of scientific and technical data, it might be desirable to setup special Environment Courts.' On the Supreme Court direction some of the High Courts in India have set up Green Bench to hear environment cases. The Supreme Court directed the Govt. of India to set up Authorities under Environment Protection act to get enforced orders and to further issue directions for the protection of environment and control of pollution. This statement explains the gradual shift in the judicial approach while dealing with the issues of sustainable development. These new cases have been set against the backdrop of a radically different socio-economic background of national life. The annual GDP growth rate of the Indian economy has catapulted to the levels of 8 to 9 per cent against a meager 5 to 6 per cent in the previous two decades and the annual growth rate of the industrial sector has skyrocketed from the range of 5 to 7 per cent to 11.6 per cent during the period of 2002 to 2007. Thus, industrial development has become a pressing need in the current phase of economic transformation. In such a scenario, it is impossible for the higher judiciary to remain oblivious of this critical facet of national life and therefore, there is an increased probability of a prodevelopment bias creeping into the judgments where courts are required to review choices made between environment and development. An important ingredient of environmental litigation is the element of procedural convenience. On the procedural side, locus standi requirements have been diluted in environmental actions and courts allow citizens to file Public Interest Litigation (hereafter PIL) for addressing violations of statutory mandates by the executive and private parties or situations where legal lacunae still persist. PILs have emerged as the most potent tool in the hands of Indian judiciary. The Court has the power to refer scientific and technical aspects for investigation and opinion to expert bodies such as the Appellate Authority under the National Environmental Appellate Authority Act, 1997 and the power to direct the Central Government to determine and recover the cost of remedial measures from the polluter under Section 3 of the Environment (Protection) Act, 1986. To sum up this section, despite all its downsides the long journey of environmental jurisprudence in India, when viewed in a holistic manner, can be best described in Supreme Courts own words as: This has been an interesting judicial pilgrimage for the last four decades. In our opinion, this is a significant contribution of the judiciary in making serious endeavour to preserve and protect ecology and environment, in consonance with the provisions of the Constitution. The Environment rules The environment (protection) Rule 1986 came into force on 19 nov. 1986. The EP Rule seek to carry out the provision of EPA, and to meet various specific problems in relation to the protection and improvement of the environment. The EP Rules specify the standards for emission or discharge of environment pollutant from industries, operations or processes. However, the central pollution control Boad or state pollution control board can stipulate more specific standards for any specific industry, operation or

process. The issuance of direction denotes a coercive power procedure safeguards are necessary for its proper use. The Environmental rule provides those safeguards. These safeguards include an opportunity of being heard. However, when the central government is of the opinion that in view of the likely hood of grave injury too the environment, it is not expedient to provide an opportunity to file objection against the proposed direction, it may, or reason, recorded in writing, issue direction without giving such an opportunity. The provision takes into account emergency situation when quick action is needed. The EP Rules lay down the factors, which the central government should consider while it prohibits or restrict the location of any industry, or carrying on of process and operation in different area, the topographic and climate feature of the area, the biological diversity, which, in the opinion of the central government, needs to be preserved, environmentally compatible land use and proximity to human settlement, are some of the significant factors to be considered. A notice with full detail of the proposed prohibition or restriction could be published, and objection filed within 60 days in writing. The time limit within which the central government should consider these objections was fixes originally as 120 days. However, the time limit was changed by several amendment notifications, and ultimately fixed at 286 days. The longer period of opportunity is neither reasonable nor in consonance with the objective of protection an improvement of the quality of the environment. The safeguards provided for taking samples and sending them for analysis are recognition of the right to a fair process. The E P Rule also lay down the functions of environment of laboratories qualifications of government analysis, and the manner of giving notice. The discharge of the environmental pollutants in excess of prescribed standards as of grave concern. That is the reason why a person in charge of the place is bound to give information of the actual occurrence apprehension of occurrence. The E. P rule specify the authorities to whom this information has to be givenThe officer in charge of emergency or disaster relief operation in a district the central pollution control board or a state pollution control board, or its authorised regional officer, or any authorities or agencies in the schedule to the E.P Rules. Environment auditThe Environment Protection Rule made the submission of an environment audit report compulsory. The originally stipulated to be filed on or before 15 may of every year. The audit report, subsequently worded as audit statement is to be filed on or before September every year to the state pollution control board. Every person carrying on an industry, operation or process requiring consent under the water Act or air Act or authorisation under the Hazardous wastes (management and handling) Rules 1989 has to submit this report for financial year, ending 31 march, to the state pollution control. The benefits of audit an be denied some of the remarkable benefits of audit includes grater industry compliance with environmental law, discloser of data on waste generation, adoption of clean technology for pollution prevention, waste minimisation, recycling any utilization, arrangement for offsite disposal, revealing of data on consumption of water and raw material. Hazardous substances-

specific provision is made in E P Rule for handling hazardous substances a hazardous substances is defined not only as a substance, but also as a preparation, which by reason of its chemical or physio-chemical properties or handling, is liable to cause harm to human beings, other living creatures. Prior to permitting the handling hazardous substances in a area, the central government has to take into consideration hazardous nature of the substances and its potenta to damage the environment, human being, other living creatures, plants and property. The fact that the government has to apply its mind to the availability of substitute or of the state of technology for developing a sate substitute and the gestation period necessary for gradual introduction of a new substitute is a very significant provision in the E P Rule, the guarantees consideration of all relevant matter before taking decision on prohibition and restriction on the handling of hazardous substances. The E P Rule also provides the procedural safeguards of effective and meaning full notice and consideration of objection to the proposal. Control of noiseThe state government can classify the area on the basis of criteria in the schedule. All development authorities, local bodies, and other authorities concerned shall adopt measure in order to avoid noise menace, and to achieve the objective of maintain the ambient air quality standards in respect of noise an area of 100 meters around hospital, education institutions and courts may be declared as silence zone. A loud speaker on a public written permission from a specified a authority. A loud speaker or a public address system shall not be used at night between 10 pm to 6 am except in closed premises for communication within, for instance, auditoria, conference room, communication hall and banquet hall. No untreated bio medical waste shall be kept stored beyond period of 48 hours. The ozone ruleThe rule relating to control of ozone depletion provide for prohibition on new investment with ozone depleting substances, regulation of sale, purchase, use of ozone depleting substances and control of production and consumption or ozone depleting substances. There is regulation of import export and sale of products made with or containing ozone depleting substance. Use of Law Machinery for Environment Protection The primary effort of the courts while dealing with environmental issues had been to not only punish the offender but also to seek proper enforcement of such laws. In Indian Council for Enviro Legal Action v. Union of India[23] it was observed that: Even though, it is not the function of the court to see the day-to-day enforcement of the laws, that being the function of the executive, but because of the non-functioning by the enforcement agency, the courts as of necessity have had to pass orders or direction to the enforcement agencies to implement the law for the protection of the fundamental rights of the people. Here the question is whether civil action against the polluters by applying the precautionary principle and polluter-pays principle is enough or penal action should also be initiated against such offenders. Environment laws besides providing for protection of the environment also

provide for penal action against the polluters. For e.g. Section 15 of the Environment (Protection) Act, 1986 provides for contravention of the provisions of the Act and the rules and regulations issued under the Act to be punishable with imprisonment for a term which may extend to five years or with fine which may extend to one lakh rupees, or with both, and in case contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues.Similar are the provisions provided by the Air (Prevention and Control of Pollution) Act, 1981 as well as the Water (Prevention and Control of Pollution) Act, 1974. The Pollution Control Boards have powers to initiate action against the polluters. However, these Boards had till the recent past been functioning as record-keepers maintaining statistics regarding pollution and only during the last few years these Boards have taken some initiatives to protect and improve the environment after being directed by the courts. It is a matter of surprise that even where pollution was easily visible or was being felt for e.g. air pollution in Delhi, the Boards acted as silent spectators till the Court intervened. The environmental laws provide for a certain procedure for taking cognizance of offences for e.g. Section 49 of the Water (Prevention and Control of Pollution) Act, 1974 provides that no court shall take cognizance of any offence under this Act except on a complaint made by a Board or any officer authorised in this behalf by it; or any person who has given notice of not less than sixty days, of his intention to make a complaint, to the Board or officer authorised as aforesaid.Similar are the provisions relating to cognizance under Sections 43 and 19 of the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 respectively. The procedure for filing complaint should be simplified. The requirement of giving notice to the Board or to the Central Government in case of offences under the Environment (Protection) Act, 1986 should be done away and instead of this, it should be provided that every person should have a right to directly file a criminal complaint against the offender in accordance with the procedure laid down in Section 200 CrPC. However, as a matter of safeguard against malicious prosecution it can be provided that the court shall call for a report from the Pollution Control Board concerned before summoning the accused. But at the same time it should also be provided that the complainant shall have the right to challenge the report of the Board by way of scientific or other evidence. There are other special or local laws dealing with nuisance. But the Magistrate's power to act under Section 133 is not affected by them.[24] Even the Water (Prevention and Control of Pollution) Act, 1974 has not taken away powers of the Sub-Divisional Magistrate under Section 133 CrPC. The Sub-Divisional Magistrate has power to close a factory causing pollution, when appreciation certificate from the Pollution Control Board is not produced.[25] In Lakshmi Cement v. state[26] it was held that Section 133 CrPC does not automatically or impliedly get repealed after the commencement of the Air (Prevention and Control of Pollution) Act, 1981. So proceedings under Section 133 CrPC are not barred. But while passing an order under Section 133 the Magistrate should be very keen about the complaint and also should see

the fulfilment of the required conditions as stipulated. Otherwise the order passed by such Magistrate can be held illegal as it was in Chabila Roy v. State [27]where the Magistrate on receiving a complaint regarding the running of a "khatal" did not examine the petitioner and the local people about the physical discomfort or health hazard on account of the "khatal", passed an order. It was held that the order was illegal being in variance with express provisions of Section 133 CrPC. Indian constitution and international law India is a member of the United Nations organization since its inception. To some extent environmental problems can be dealt on regional basis but all problems cannot be said to be a local. All the nation on rich or poor, developed or developing, north or south facing the problem of pollution. Thus, the problem of pollution is to a large extent a transboundary problem and some time its effects are widely rampant and recognize no boundaries. It is true that we have one planet to live on and we have common future. In this regard, various international conferences have been organized to forge a common strategy to contain and central the pollution problems and many international agreement and regional acts have been entered into for this purpose. The first international conference on environment and development was organized at Stockholm in 1972 (5 Jun 1972) in which 107 nation were participated. But only two heads of states came to address the conference and one of them was the then prime minister of India Mrs Indira Gandhi, 26 principle were propounded which are known as magna-Carta, on human environment. Similarly, India has also participated in earth summit at Rio-de Janeiro (1992), Nairobi conference(1987), Kyoto Protocol (1997), Basel Conference (1989),convention of law of seas (1969), convention on international trade on endangered species (CITIES, 1973), Convention on Biological Diversity (1992), convention on climate change (1992) and many others. Effect of international agreements and declarations on Indian constitution Following are 3 ways in which international agreements, covenants etc. Become the part of the national law in India# Art. 51 of Indian constitution provided for promotion of international peace and security. It provides under clause (c) that the state shall Endeavour to foster respect for international law ad treaty obligations in the dealing of organized people with one another. Thus, the international treaties do not automatically become a part of our national law, it has to be incorporated in to the legal system by an appropriate law passed by Indian parliament. However, India courts while interpreting statues have to maintain harmony with the rule of international law. # Moreover, national legislation even if contrary to international law has to be respected and given priority. # An extra-ordinary treaty is to be construed as contact between participating nations and is to be affected. Art. 253 confers wide and overriding power on parliament to make any law for the whole or any part of India for implementing any treaty, agreement or convention with any other country or

countries or nay decision made at any international conference, association or body. This, rt. 253 fully authorizes parliament to enact legislation to implement the international treaties etc, even though they fall within the state list II. The power of the central government to enact law for Implementing the international treaty is not free from constitutional restriction such as they are subject to fundamental right. The supreme court in PUCL v. UOI[28] held that after referring to international covenant of civil and political rights, 1966 and the universal declaration of human rights, 1988 observed thatIt is almost an accepted proposition of law that the rule of customary international law which are not contrary to the municipal law shall deemed to be incorporated in the domestic law. Justice Sekri, C,J also clarified in Keshwanand Bharti v. state of Kerala,[29] thatIt seems that in view of Art. 51 of Indian constitution, this court must interpret the language of the constitution, if not intractable, which is after all a municipal law, in light of the UN charter and the solemn declarations subscribed by India.

Fundamental Principles of Environmental Protection Sustainable Development The concept of sustainable use of earths resource is an ancient one. Without the principles of sustainability as a way of life, humans would not have survived in the 20th century. The principle of sustainable development received impetus with the adoption of StockholmDeclaration in 1972, World Conservation Strategy prepared in 1980 by the World ConservationUnion (IUCN) with the advice and assistance of the United Nations Environment Programme(UNEP), World Charter for Nature of 1982, Report of the World Commission on Environmentand Development under the chairmanship of Geo Harlem Brundtland (Brundtland Report), Our Common Future of 1987, the document Caring for the Earth; A Strategy for the SustainableLiving developed by the second world conservation project comprised of the representatives of the IUCN, UNEP and the Worldwide Fund for the Nature. The concept of sustainabledevelopment is the foundation stone of the Montreal Protocol for the Protection of Ozone Layer of 1987 and the instruments adopted at the UN Conference on Environment and Development(World Summit) held at Rio in 1992. Meaning and Definition The Brundtland Report defines, sustainable development as development that meets the needsof the present generation without compromising on the ability of the future generations to meettheir own needs. The report emphasizes that sustainable development means an integration of economics and ecology in decision making at all levels.The Caring for the Earth document defines sustainability as a characteristic or state that can bemaintained indefinitely whereas development is defined as the increasing capacity to meethuman needs and to improve the quality of human life. This means that sustainable developmentwould imply improving the quality of human life within the carrying capacity of the supportingecosystems.The concept of sustainable development rejects the old notion that development and environmentare antithesis of each other. On the contrary, it emphasizes that development and environmentare synthesis of each other. Both are complimentary and mutually supportive.Sustainable Development is a

process in which development can be sustained for generations. Itmeans improving the quality of human life while at the same time living in harmony with natureand maintaining the carrying capacity of the life supporting ecosystem. Development meansincreasing the societys ability to meet human needs. Economic growth is an importantcomponent but cannot be a goal in itself. The real aim must be to improve the quality of humanexistence to ensure people to enjoy long, healthy and fulfilling lives.Sustainable development focuses at integration of development and environmental imperatives.It modifies the previously unqualified development concept. To be sustainable, developmentmust possess both economic and ecological sustainability. The concept of sustainabledevelopment indicates the way in which development planning should be approached.For being sustainable development must be both economic and environmentally viable. The necessary condition for achieving sustainable development is ecological security, economicefficiency and social equity. Sustainable development is, in fact, a multi-dimensional conceptinvolving three interacting aspectsecology, economy and ethics. Ecological restoration,economic betterment and social justice mutually reinforce one another. In practice environment protection is the development because environment degradation leads to poverty and distorteddevelopment. Sustainable development is the only path for conserving and promoting the socio-economic well-being of people. H owJudiciaryInterpreted Sustainable Development? Indian judiciary has demonstrated exemplary activism to implement the mandate of sustainabledevelopment. In the past, Indian courts did not refer expressly to sustainable development butimplicitly gave effect to it. The Supreme Court has recognized the principle of sustainabledevelopment as a basis for balancing ecological imperatives with developmental goals. In RuralLitigation and Entitlement Kendra, Dehradun v. State of U.P., the Supreme Court was faced withthe problem of the mining activities in the limestone quarries in DehradunMussoorie area. Thiswas the first case of its kind in the country involving issues relating to environment andecological balance and brought into sharp focus the conflict between development andconservation. In this case, the Supreme Court emphasized the need for reconciling developmentand conservation in the larger interest of the country.In Kinkri Devi v. State of Himachal Prades h, the Himachal Pradesh High Court observed that 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 creating of ecological imbalance then there mayultimately be no real economic growth and no real development.In People united for Better Living in Calcutta v. State of West Bengal, the Calcutta High Courtobserved that it is true that in a developing country there shall have to be developments, but thatdevelopments must be in harmony with the environment. There has to be a proper balance between the economic growth and environment. So that both can exist without affecting eachother.The Supreme Court in Indian Council for Enviro-legal Actions v. Union of India , recognized polluter pays principle as an integral feature of sustainable development and observed that theremedy and betterment of damaged society is part of the process of sustainable development.In Vellore Citizens Welfare Forum v. Union of India

, the Supreme Court of India recognized thePrinciple of sustainable development as a basis for balancing ecological imperatives withdevelopmental goods. Rejecting the old notion that development and environment cannot gotogether, the Supreme Court gave a landmark judgment and held that sustainable development isa viable concept to eradicate poverty. It will improve the quality of human life if human beingslive within the carrying capacity of the life supporting ecosystem.The Supreme Court in A.P. Pollution Control Board v. M.V. Nayudu , observed that in order toensure that there is neither damage to the environment nor to the ecology and, at the same timeensuring sustainable development it can refer scientific and technical aspects for investigationand opinions to statutory expert bodies having combination of both judicial and technical

expertise in such matter.The Supreme Court in M.C. Mehta v. Union of India , observed that the development and the protection of environments are not enemies. If without degrading the environment or minimizingadverse effects thereupon by applying stringent safeguards, it is possible to carry on developmentactivity applying the principles of sustainable development, in that eventuality, the developmenthas to go on because one cannot lose sight of the need for development of industries, projects,etc. including the need to improve employment opportunities and the generation of revenue. A balance has to be struck.In N.D. Jayal v. Union of India , Court held that the right to clean environment and right todevelopment are integral parts of human right covered byArticle21 of Constitution. The Court laid down that the principle of sustainable development is a means to achieve the object and purpose of Environment Protection Act, 1986 as well as protection of life envisaged under Article21 of Constitution. The Court found that the conditional clearance that the Ministry of Environment and Forests had granted for the construction of Tehri Dam was not properlyimplemented. The conditional clearance granted by the ministry related to catchment areatreatment, command area development, rehabilitation, disaster management, flora fauna, water equality maintenance, Bhagirathi Besan management authority. Supreme Court laid down thatdisaster management must be integrated with development activities. Court said that people whoare displaced from the area on account of the construction of the Dam have a right under Article 21 to lead a decent life and earn livelihood in rehabilitated located. Court observed thatrehabilitation must take place 6 months before the sub emergence of area.In Fertilizers and Chemicals Praveucore limited. employees association v. Law society of India,the court held that where public sector undertakings manufacture chemicals and fertilizers for thelarger benefit of the community asking them to relocate as they cause a threat to the life of the people in neighbourhood areas, would not be a practical solution. Therefore court recommendedthat such industries should continue their production subject to taking effective measures to protect and prevent the risk of environmental accident. How has Judiciary Interpreted Sustainable Development? Indian judiciary has demonstrated exemplary activism to implement the mandate of sustainable development. In the past, Indian courts did not refer expressly to sustainable development but

implicitly gave effect to it. The Supreme Court has recognized the principle of sustainable development as a basis for balancing ecological imperatives with developmental goals. In Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P., the Supreme Court was faced with the problem of the mining activities in the limestone quarries in Dehradun-Mussoorie area. This was the first case of its kind in the country involving issues relating to environment and ecological balance and brought into sharp focus the conflict between development and conservation. In this case, the Supreme Court emphasized the need for reconciling development and conservation in the larger interest of the country. In Kinkri Devi v. State of Himachal Pradesh, the Himachal Pradesh High Court observed that 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 creating of ecological imbalance then there may ultimately be no real economic growth and no real development. In People united for Better Living in Calcutta v. State of West Bengal, the Calcutta High Court observed that it is true that in a developing country there shall have to be developments, but that developments must be in harmony with the environment. There has to be a proper balance between the economic growth and environment. So that both can exist without affecting each other. The Supreme Court in Indian Council for Enviro-legal Actions v. Union of India, recognized polluter pays principle as an integral feature of sustainable development and observed that the remedy and betterment of damaged society is part of the process of sustainable development. The Supreme Court in A.P. Pollution Control Board v. M.V. Nayudu, observed that in order to ensure that there is neither damage to the environment nor to the ecology and, at the same time ensuring sustainable development it can refer scientific and technical aspects for investigation and opinions to statutory expert bodies having combination of both judicial and technical expertise in such matter. The Supreme Court in M.C. Mehta v. Union of India observed that the development and the protection of environments are not enemies. If without degrading the environment or minimizing adverse effects thereupon by applying stringent safeguards, it is possible to carry on development activity applying the principles of sustainable 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 opportunities and the generation of revenue. A balance has to be struck. In N.D. Jayal v. Union of India Court held that the right to clean environment and right to development are integral parts of human right covered by Article 21 of Constitution

Precautionary Principle In Vellore Citizens Welfare Forum v. Union of India (Tamil Nadu Tanneries Case), about 900tanneries in five districts of the State of Tamil Nadu were discharging enormous amount of untreated effluent consisting of about 170 different types of chemicals into agricultural fields,roadside, waterways and open land. About 35,000 hectares of land became partially or totallyunfit for cultivation. The water in the area became unfit for consumption and irrigation purposes.In his judgment, Justice Kuldip Singh (known to be a Green Judge) observed that, evenotherwise once these principles are accepted as part of the Customary International Law, therewould be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of municipal law, that the rule of customary international law, which are not contraryto the municipal law shall be deemed to have been incorporated in the domestic law and shallalso be followed by the Courts of laws of the country. One of the significant directions given bythe Supreme Court in this litigation was contained in an order passed in 1995 whereby some of the industries were required to set up effluent treatment plants. In another order passed in 1996,the Supreme Court issued notices to some of the tanneries to show cause why they should not beasked to pay pollution fine. The Supreme Court also recognized the Precautionary Principle,which is one of the principles of sustainable development. It was said that in the context of municipal law, the Precautionary Principle means : (1) Environmental measures To anticipate, prevent and attack the causes of environmental degradation. (2) Lack of scientific enquiry should not be used to postpone measures for prevention of environmental degradation.(3) The onus of proof is on the actor, developer or industrialist to show that his action isenvironmentally benign. The introduction of the onus of proof as a factor relevant for environmental protection wasdeveloped for the first time in this case. Precautionary duties must not only be triggered by thesuspicion of concrete danger but also by (justified) concern or risk potential.In A.P. Pollution Control Board v. M.V. Nayudu , the Supreme Court made a reference to theStockholm Declaration and the U.N. General Assembly Resolution on World Charter for Nature,1982. The principle has recently been extended and quite significantly so, in a case pertaining tothe import of hazardous waste, to include the cost not only of avoiding pollution, but alsoremedying the damage. Reference was made to Principles 15 and 16 of the Rio Declaration andit was said, The nature and extent of cost and the circumstances in which the principle willapply may differ from case to case.The Stockholm Declaration accepted the assimilative capacity rule which assumed that theenvironment could assimilate impacts and science could provide the necessary information andtechnology to deal with environmental degradation. The World Charter for Nature shifted theemphasis, which came to be known and accepted in the Rio Declaration on Environment andDevelopment, 1992 as the Precautionary Principle. This principle is based on the lack of fullscientific certainty. The basic idea behind this principle is that it is better to err on the side of caution and prevent activities that may cause serious or irreversible harm. An informed decisioncan be made at a later stage when additional data is available or resources permit further research.Significantly, the Supreme Court recognized that environmental concerns are asimportant as human rights concerns. It was said, In fact, both are to be traced toArticle21which

deals with the fundamental right to life and liberty. While environmental aspects concernlife, human rights aspects concern liberty. In our view, in the context of emerging jurisprudence relating to environmental matters, - as is the case in matters relating to humanrights, - it is the duty of this Court to render justice by taking all aspects into consideration. Inview of certain technical matters involved in this case, the Supreme Court resorted to the provisions of the National Environmental Appellate Authority Act, 1997 and referred twoquestions for its opinion. After obtaining the report of the Appellate Authority and considering italong with two other reports, the Supreme Court applied the Precautionary Principle and passedappropriate orders.In Narmada Bachao Andolan v. Union of India , precautionary principle came to be considered by the majority of judges. The Court also took the view that the doctrine is to be employed onlyin cases of pollution when its impact is uncertain and non-negligible.In M.C. Mehta v. Union of India, the Supreme Court once again followed the path of sustainabledevelopment and directed that the industries operating in Taj Trapezium Zone using a coke/coalas industrial fuel must stop functioning and they could relocate to the alternate site providedunder the Agra Master Plan. It further stated that not even 1% chance could be taken whenhuman life a part, the preservation of a prestigious monument like the Taj was involved.

In Shobha Rama Subramanayyam v. The Member Secretary , Chennai Metropolitan Authority,The Court stated that the construction builders have a duty to use modes for digging foundationfor multistory buildings, so that it does not cause noise pollution in the neighboring areas.In S. Jagannath v. Union of India , the Supreme Court held that sea beaches and sea coasts aregifts of nature and any activity polluting the same cannot be permitted. The intensified shrimp(prawn) farming culture industry by modern method in coastal areas was causing degradation of mangrove ecosystem, depletion of plantation discharge of highly polluting effluents and pollution of potable as well as ground water.The Precautionary Principle led to the evolution of the special principle of burden of proof mentioned inVellore Citizens Welfare Forum. As per this special principle, the burden is on the person wanting to change the status quo to show that the actions proposed will not have aninjurious effect, the presumption operating in favor of environmental protection. This concept of reverse onus requires that the burden of proof for safety rests on the proponent of a technologyand not on the general public a new technology should be considered dangerous unless provedotherwise.The Precautionary Principle is relatable to risk assessment and environmental impact assessment.Broadly, it postulates that decisions that may have an impact on the environment need to allowfor and recognize conditions of uncertainty, particularly with respect to the possibleenvironmental consequences of those decisions. Under the circumstances, it is essential to take preventive action or avoid effects, which may be damaging even if this cannot be proven. Polluter Pays Principle
In Indian Council for Enviro-Legal Action & Ors v. Union of India, (Bichhri Village case) theSupreme Court accepted the Polluter Pays principle. In this case, some chemical factories inBichhri (Udaipur District) produced hazardous chemicals like oleum etc. These industries did nothave the requisite clearances, licences, etc. nor did they have necessary equipment for thetreatment of discharged toxic

effluents. Toxic sludge and untreated waste waters resulted in the percolation of toxic substances into the bowels of the Earth. Aquifers and subterranean suppliesof water got polluted; wells and streams turned dark and dirty; water not only became unfit for human consumption but also unfit for cattle to drink and for irrigation of land. So much so, eventhe soil became unfit for cultivation. Death, disease and other disasters gradually resulted and thevillagers in the area revolted as a result of this enormous environmental degradation. The District

Magistrate of the area had to resort to Section 144 of the Criminal Procedure Code to avoid anyuntoward incident.A writ petition under Article32 of theConstitutionwas filed in the Supreme Court and the Court asked for a report to be prepared by the National Environmental Engineering Research Institute(NEERI) as to the choice and scale of available remedial alternatives. NEERI suggested theapplication of the Polluter Pays principle inasmuch as the incident involved deliberate release of untreated acidic process waste water and negligent handling of waste sludge knowing fully wellthe implication of such acts. The cost of restoration was expected to be in the region of Rs. 40crores. The Supreme Court examined all the available material and concluded that the industriesalone were responsible for the damage to the soil, underground water and the village in general.The Supreme Court endorsed the Polluter Pays principle. It was said, The Polluter PaysPrinciple as interpreted by this Court means that the absolute liability for harm to theenvironment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of damaged environment is part of the process of sustainable development.The Supreme Court held that as per the Polluter Pays principle once the activity carried on ishazardous or inherently dangerous, the person carrying on such activity is liable to make goodthe loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised on the very nature of theactivity carried on.The Supreme Court cited with approval the following passage pertaining to the Polluter Pays principle: - The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of Government to meet the costs involved in either prevention of such damage, or in carrying outremedial action, because the effect of this would be to shift the financial burden of the pollutionincident to the taxpayer.Adopting this principle, the Supreme Court directed that The task of determining the amountrequired for carrying out the remedial measures, its recovery/realization and the task of undertaking the remedial measures is placed upon the Central Government. It was directed thatthe amount so determined should be recovered from the polluting industries.The villagers were permitted to file suits for recovery of damages, but more importantly, theSupreme Court accepted the principle of absolute liability laid down in the Oleum Gas Leak caseand also approved the suggestion for setting up Environmental Courts.While applying the principle of Polluter Pays, the Supreme Court later expressed the view thatcompensation to be awarded must have some correlation not only with the magnitude andcapacity of the enterprise but also the harm caused by it. The applicability of the principle of Polluter Pays should be practical, simple and easy in application.

In the M.C. Mehta v. Union of India & Ors (Calcutta Tanneries Case), the Polluter Pays principlerelating to relocation of industries was applied with a direction to those relocated industries to pay 25% of the cost of land. Those who did not pay for the cost of land were directed to beclosed. The Supreme Court again resorted to directions earlier given in Vellore Citizens WelfareForum for setting up effluent treatment plants.It needs to be mentioned that a strict interpretation of the Polluter Pays principle requires that the polluter should pay for causing the pollution and consequential costs for any generaldeterioration of the environment while another view is that the

polluter is only responsible for paying the costs of pollution control measures. Generally speaking, the polluter must pay for The cost of pollution abatement. The cost of environment recovery. Compensation costs for victims of damages if any, due to pollution. In Vellore Citizens Welfare Forum v. Union of India , Resultantly, the Supreme Court recognizedSustainable Development, the Precautionary Principle and the Polluter Pays principle as a part of our environmental jurisprudence.In S. Jagannath v. Union of India , the Supreme Court held that sea beaches and sea coasts aregifts of nature and any activity polluting the same cannot be permitted. The intensified shrimp(prawn) farming culture industry by modern method in coastal areas was causing degradation of mangrove ecosystem, depletion of plantation discharge of highly polluting effluents and pollution of potable as well as ground water.We have no hesitation in holding that the precautionary principle and the polluter pays principleare part of the environmental law of the country.Even otherwise once these principles are accepted as part of the Customary International Lawthere would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of law that the rule of Customary International Law which is not contrary to themunicipal law shall be deemed to have been incorporated in the domestic law and shall befollowed by the Courts of Law

Conclusion In Vellore Citizens Welfare Forum v Union of India & Ors*13+ the Court employed the precautionary principle to invent the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, is placed on those who want to change the status quo viz. polluter or the industrialist. In the process, the apex Court has gone beyond the statutory texts to refer extensively to international conventions and obligations of India and even to the historical environmental values reflected in the edicts of Emperor Ashoka and verses of Atharva Veda. The Supreme Court has, in clear terms, advised the State to shed its extravagant unbridled sovereign power and to pursue a policy to maintain ecological balance and hygienic environment. The activist attitude ranges across a gamut of environmental issues viz. banning aquaculture industries in coastal areas to prevent drinking water from becoming saline, issuing directions for improving quality of air in the National Capital Territory of Delhi and protecting Taj Mahal, prohibiting cigarette smoking in public places, addressing issues of solid waste management, proscribing construction activities in the vicinity of lakes and directing the lower courts to deal strictly with environmental offences. In respect of forest governance, the Supreme Court has made an enormous contribution through the case of T.N. Godavarman Thirumulpad v. Union of India.[14] The case was set in the backdrop of critical state of national forest cover, appalling apathy of governments towards forest management and conservation and open violations of forest legislations by illegal felling in North-Eastern States.

A three judge bench of the Court, known as the Green Bench or the Forest Bench, issued a continuing mandamus,*15+ operative for past twelve years, and has been using it to deal with prominent issues including conversion of forest land for non-forest purposes, illegal felling, potentially threatening mining operations, afforestation and compensation by private user agencies for using forest land. In pursuance of the orders, the Government has constituted several High Powered Committees, a Compensatory Afforestation Management and Planning Authority and a Central Empowered Committee. The enormous significance of this single writ petition is evident from the fact that about 2000 interlocutory applications relating to forest issues have been disposed under it. Of late, the apex Court has been confronted with intricate cases requiring resolution of the tension between the right to development and the right to environment.*16+ The anxiety to resolve this tension and adopt a balanced approach is apparent in N.D. Jayal v Union of India,[17] a case involving construction of a large dam at Tehri in Himalayan foothills, where the Court refused to interfere by emphatically declaring the symbiotic relation between both these rights in the following words: Right to environment is a fundamental right. On the other hand, right to development is also one. Here the right to sustainable development cannot be singled out. Therefore, the concept of sustainable development is to be treated as an integral part of life under Article 21. Weighty concepts like intergenerational equity, public trust doctrine and precautionary principle, which we declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development. However, a gamut of recent cases seemingly projects an impression of Courts growing pro-industry tilt while dealing with intricate issues of sustainable development. In Deepak Nitrite Ltd. v State of Gujarat & Ors.,[18] a case dealing with determination of standard of compensation in respect of industries which had flouted the norms laid down by the State Pollution Control Board, the Court held that mere non-compliance with these norms does not imply that environmental damage would result thereby; a strange and inexplicable conclusion indeed. Confronted with the issue of oil pipeline construction through Jamnagar Marine National Park and Sanctuary, the apex Court in Essar Oil Ltd. v Halar Utkarsh Samiti & Ors.,[19]permitted such laying of pipelines on the ground that it cannot invariably lead to the destruction or removal of the wild life in these ecologically sensitive areas. The Court, instead of taking independent expert evidence on the issue like it has done in all other cases, deferred to the States judgment of possible damage and the failure of respondent to place any contrary reports before it. Furthermore, given a choice between environment and development, in Research Foundation for Science Technology and Natural Resource Policy v Union of India & Ors., the Court seemed unequivocal of its choice to err on side of development. It clearly displayed that it was in favour of continuance of hazardous industry subject to safeguards being followed and seemingly took Indias economic growth rate of 9 per cent and economic interests in ship wrecking industry as overriding considerations. Lastly, in Karnataka Industrial Areas Development Board

v Sri. C. Kenchappa & Ors.[20]Law, Environment and Development Journal the Court overturned a direction by the Karnataka High Court to the appellant to leave a land of one kilometer as a buffer zone to maintain a green area around the periphery of a village. In the absence of any evidence, it adjudged that these directions would have hindered land acquisition for industrial development. Justice P.N. Bhagawati once made a insightful observation: We need judges who are alive to the socioeconomic realities of Indian life. In L.K Kulwal v. State,[21] The Rajasthan High court directing the municipal authorities to Jaipur to keep the city clean, laid emphasising on the fundamental duty of the citizens under Art. 51A (g). According to the court, the provision renders the citizen the right to move the court to see that state performs its duties faithfully and strives to protect and improve natural environment. It is the primary duty of the municipal council to remove filth, rubbish, noxios odour or any offensive matter, and financial inability cannot be plea. According to Apex court in M.C Mehta v. Union of India[22] Article 39 (e), 47, 48-A collectively cate duty on the state to secure the health of the people, improve public health and protect and improve the environment, on the premises to protect the health of the people of Delhi, the court issued several direction phase out grossly polluting old vehicles and non-CNG Buses. The Court rightly related the govt.s plea that CNG was in shot supply. The court observed. Confirming economic advantage upon industry by making available cheap gas in preference to need for supplying gas for environment reason is inconsistent with settled constitutional position. Some of the significant principles and guidelines laid down by the Supreme Court in M. C. Mehta cases to bring environmental protection within constitutional framework are as under: (a) Court's power to grant compensation under Article 32- -"Under Article 32 Jurisdiction and power of the Court is not only injunctive in ambit, i.e. preventing the infringement of a fundamental right, but it is also remedial in scope. . . The power to grant such remedial relief may include the power to award compensation in appropriate cases." (b) Article 21 - Scope and ambit expanded to include right to clean and healthy environment in the right to life. (c) Law of Torts: - Strict and Absolute liability of an enterprise engaged in a hazardous and inherently dangerous processes. Rule in Rylands v. Fletcher-- evolved at a time when all these developments of science & technology had not taken place -- cannot afford any guidance consistent with constitutional norms of the present day economy and social structure. (d) 'Polluter Pays Principle', 'Precautionary Principle' and 'Public Trust Doctrine' have become an integral part of the environmental law and policy in India.

e) Maintainability of Public Interest Litigation Whether letters addressed to individual judges entertainable - Hyper technical approach to be avoided by this Court - Court must look at the substance and not the form. (f) Location of Hazardous Industry- National policy should evolve for location of chemical and other hazardous industries in areas where population is scarce. There should preferably be a green belt of 1 to 5 km width around such hazardous industries. (g) Jurisprudence and law It should keep pace with the changing socio-economic norms - where a law does not fit into the present context, Court should evolve new law. (h) Environmental Courts - 'Since cases involving issues of environmental pollution, ecological destruction and conflicts over natural resources are increasingly coming up for adjudication and these cases involve assessment and evolution of scientific and technical data, it might be desirable to setup special Environment Courts.' On the Supreme Court direction some of the High Courts in India have set up Green Bench to hear environment cases. The Supreme Court directed the Govt. of India to set up Authorities under Environment Protection act to get enforced orders and to further issue directions for the protection of environment and control of pollution. This statement explains the gradual shift in the judicial approach while dealing with the issues of sustainable development. These new cases have been set against the backdrop of a radically different socio-economic background of national life. The annual GDP growth rate of the Indian economy has catapulted to the levels of 8 to 9 per cent against a meager 5 to 6 per cent in the previous two decades and the annual growth rate of the industrial sector has skyrocketed from the range of 5 to 7 per cent to 11.6 per cent during the period of 2002 to 2007. Thus, industrial development has become a pressing need in the current phase of economic transformation. In such a scenario, it is impossible for the higher judiciary to remain oblivious of this critical facet of national life and therefore, there is an increased probability of a pro-development bias creeping into the judgments where courts are required to review choices made between environment and development. An important ingredient of environmental litigation is the element of procedural convenience. On the procedural side, locus standi requirements have been diluted in environmental actions and courts allow citizens to file Public Interest Litigation (hereafter PIL) for addressing violations of statutory mandates by the executive and private parties or situations where legal lacunae still persist. PILs have emerged as the most potent tool in the hands of Indian judiciary. The Court has the power to refer scientific and technical aspects for investigation and opinion to expert bodies such as the Appellate Authority under the National Environmental Appellate Authority Act, 1997 and the power to direct the Central

Government to determine and recover the cost of remedial measures from the polluter under Section 3 of the Environment (Protection) Act, 1986. To sum up this section, despite all its downsides the long journey of environmental jurisprudence in India, when viewed in a holistic manner, can be best described in Supreme Courts own words as: This has been an interesting judicial pilgrimage for the last four decades. In our opinion, this is a significant contribution of the judiciary in making serious endeavour to preserve and protect ecology and environment, in consonance with the provisions of the Constitution.

It is no doubt correct that the leather industry in India has become a major foreign exchange earner and at present Tamil Nadu is the leading exporter of finished leather accounting for approximately 80% of the country's export. Though the leather industry is of vital importance to the country as it generates foreign exchange and provides employment avenues it has no right to destroy the ecology, degrade the environment and pose as a health hazard. It cannot be permitted to expand or even to continue with the present production unless it tackles by itself the problem of pollution created by the said industry. 10. The traditional concept that development and ecology are opposed to each other, is no longer acceptable. "Sustainable Development" is the answer. In the International sphere "Sustainable Development" as a concept came to be known for the first time in the Stockholm Declaration of 1972. Thereafter, in 1987 the concept was given a definite shape by the World Commission on Environment and Development in its report called "Our Common Future". The Commission was chaired by the then Prime Minister of Norway Ms. G.N. Brundtland and as such the report is popularly known as "Brundtland Report". In 1991 the World Conservation Union, United Nations Environment Programme and World Wide Fund for Nature, jointly came out with a document called "Caring for the Earth" which is a strategy for sustainable living. Finally, came the Earth Summit held in June, 1992 at Rio which saw the largest gathering of world leaders ever in the history - deliberating and chalking out a blue pring for the survival of the planet. Among the tangible achievements of the Rio Conference was the signing of two conventions, one on biological diversity and another on climate change. These conventions were signed by 153 nations. The delegates also approved by consensus three non binding documents namely, a Statement on Forestry Principles, a declaration of principles on environmental policy and development initiatives and Agenda 21, a programme of action into the next century in areas like poverty, population and pollution. During the two decades from Stockholm to Rio "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 won needs". We have no hesitation in holding that "Sustainable Development' as a balancing concept between ecology and development has been accepted as a part of the Customary International Law though its salient features have yet to be finalised by the International Law jurists.

11. Some of the salient principles of "Sustainable Development", as culled-out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays principle, Obligation to assist and cooperate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that "The Precautionary Principle" and "The Polluter Pays" principle are essential features of "Sustainable Development". The "Precautionary Principle" - in the context of the municipal law - means : (i) Environmental measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation. (ii) 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. (iii) The "Onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign. 12. "The Polluter Pays" principle has been held to be a sound principle by this Court in Indian Council for Enviro - Legal Action v. Union of India, J.T. (1996) 2 196. The Court observed, "We are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country". The Court ruled that "Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on". Consequently the polluting industries are "absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas". The "Polluter Pays" principle as interpreted by this Court 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. Remediation of the damaged environment is part of the process of "Sustainable Development" and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology. 13. The precautionary principle and the polluter pays principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty. Article 47 48A and 51A(g) of the Constitutional are as under : 47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health. - The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and in particular, the State shall endeavour to bring about prohibition of the consumption except from medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

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. 51A(g). To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Apart from the constitutional mandate to protect and improve the environment there are plenty of post independence legislations on the subject but more relevant enactments for our purpose are : The Water (Prevention and Control of Pollution) Act, 1974 (the Water Act), The Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment Protection Act 1986 (the Environment Act). The Water Act provides for the Constitution of the Central Pollution Control Board by the Central Government and the Constitution of the State Pollution Control Boards by various State Governments in the country. The Boards function under the control of the Governments concerned. The Water Act prohibits the use of streams and wells for disposal of polluting matters. Also provides for restrictions on outlets and discharge of effluents without obtaining consent from the Board. Prosecution and penalties have been provided which include sentence of imprisonment. The Air Act provides that the Central Pollution Control Board and the State Pollution Control Boards constituted under the Water Act shall also perform the powers and functions under the Air Act. The main function of the Boards, under the Air Act, is to improve the quality of the air and to prevent, control and abate air pollution in the country. We shall deal with the Environment Act in the later part of this judgment. 14. In view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country. 15. Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of law that the rule of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of Law. To support we may refer to Justice H.R. Khanna's opinion in Addl. Distt. Magistrate Jabalpur v. Shivakant Shukla MANU/SC/0062/1976 : 1976CriLJ945 , Jolly George Varghese's case MANU/SC/0014/1980 : [1980]2SCR913 and Gramophone Company's case MANU/SC/0187/1984 : 1984(2)ECC142 . 17. Our legal system having been founded on the British Common Law the right of a person to pollution free environment is a part of the basic jurisprudence of the land. 18. The Statement of Objects and Reasons to the Environment Act, inter alia, states as under : The decline in environmental quality has been evidenced by increasing pollution, loss of vegetal cover and biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threats to life support systems. The world community's resolve to protect and enhance the environmental quality found expression in the decisions taken at the United Nations Conference on the Human

Environment held in Stockholm in June, 1972. Government of India participated in the Conference and strongly voiced the environmental concerns. While several measures have been taken for environmental protection both before and after the Conference, the need for a general legislation further to implement the decisions of the Conference has become increasingly evident....Existing laws generally focus on specific types of pollution or on specific categories of hazardous substances. Some major areas of environmental hazardous are not covered. There also exist uncovered gaps in areas of major environmental hazards. There are inadequate linkages in handing matters of industrial and environmental safety. Control mechanisms to guard against slow, insidious build up of hazardous substances, especially new chemicals, in the environment are weak. Because of a multiplicity of regulatory agencies, there is need for an authority which can assume the lead role for studying, planning and implementing long-term requirement of environmental safety and to give direction to, and co-ordinate a system of speedy and adequate response to emergency situations threatening the environment.... In view of what has been stated above, there is urgent need for the enactment of a general legislation on environmental protection which inter alia, should enable co-ordination of activities of the various regulatory agencies, creation of an authority or authorities with adequate powers for environmental protection, regulation of discharge of environmental pollutants and handling of hazardous substances, speedy response in the event of accidents threatening environment and deterrent punishment to those who endanger human environment, safety and health. 19. Sections 3 4 5 7 and 8 of the Environment Act which are relevant are as under : 3. Power of Central Government to take measures to protect and improve environment. - (1) Subject to the provisions of this Act, the Central Government shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quantity of the environment and preventing controlling and abating environmental pollution. (2) In particular, and without prejudice to the generality of the provisions of Section (1), such measures may include measures with respect to all or any of the following matters, namely: (i) co-ordination of actions by the State Governments, officers and other authorities(a) under this Act, or the rules made thereunder, or (b) under any other law for the time being in force which is relatable to the objects of this Act; (ii) planning and execution of a nation-wide programme for the prevention, control and abatement of environmental pollution; (iii) laying down standards for the quality of environment in its various aspects; (iv) laying down standards for emission or discharge of environmental pollutants from various sources whatsoever :

Provided that different standards for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources; (v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards; (vi) laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents; (vii) laying down procedures and safeguards for the handling of hazardous substances; (viii) examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution; (ix) carrying out and sponsoring investigations and research relating to problems of environmental pollution; (x) inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution; (xi) establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act; (xii) collection and dissemination of information in respect of matters relating to environmental pollution; (xiii) preparation of manuals, codes or guides relating to the prevention, control and abatement of environmental pollution; (xiv) such other matters as the Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act. (3) The Central Government may, if it considers it necessary or expedient so to do for the purposes of this Act, by order, published in the Official Gazette, constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue directions under Section 5) of the Central Government under this Act and for taking measures with respect such of the matters referred to in Sub-section (2) as ma)' be mentioned in the order and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise the powers or perform the functions or take the measures so mentioned in the order as if such authority or authorities had been empowered by this Act to exercise those powers or perform those functions or take such measures.

4. Appointment of officers and their powers and functions (1) Without prejudice to the provisions of Sub-section (3) of Section 3, the Central Government may appoint officers with such designations as it thinks fit for the purposes of this Act and may entrust to them such of the powers and functions under this Act as it may deem fit. (2) The officers appointed under Subsection (1) shall be subject to the general control and direction of the Central Government or, if so directed by that Government, also of the authority or authorities, if any, constituted under Sub-section (3) of Section 3 or of any other authority or officer. 5. Power to give directions. - Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its power and performance of its functions under this Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions. Explanation. - for the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct(a) the closure, prohibition or regulation of any industry, operation or process; or (b) stoppage or regulation of the supply of electricity or water or any other service. 7. Persons carrying on industry, operation etc., not to allow emission or discharge of environmental pollutants in excess of the standards. - No person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or emitted any environmental pollutant in excess of such standards as may be prescribed. 8. Persons handling hazardous substances to comply with procedural safeguards. - No person shall handle or cause to be handled any hazardous substance except in accordance with such procedure and after complying with such safeguards as may be prescribed. 20. Rule 3(1), 3(2), and 5(1) of the Environment (Protection) Rules 1986 (the Rules) are as under : 3. Standards for emission or discharge of environmental pollutants. - (1) For the purposes of protecting and improving the quality of the environment and preventing and abating environmental pollution the standards for emission or discharge of environmental pollutants from the industries, operations or processes shall be as specified in (Schedule I to IV). 3.(2) Notwithstanding anything contained in Sub-rule (1), the Central Board or a State Board may specify more stringent standards from those provided in (Schedule I to IV) in respect of any specific industry, operation or process depending upon the quality of the recipient system and after recording reasons, therefore, in writing. 5. Prohibition and restriction on the location of industries and the carrying on processes and operations in different areas - (1) The Central Government may take into consideration the

following factors while prohibiting or restricting the location of industries and carrying on of processes and operations in different areas : (i) Standards for quality of environment in its various aspect laid down for an area. (ii) The maximum allowable limits of concentration of various environment pollutants (including noise) for an area. (iii) The likely emission or discharge of environmental pollutants from an industry, process or operation proposed to be prohibited or restricted. (iv) The topographic and climatic features of an area. (v) The biological diversity of the area which, in the opinion of the Central Government, needs to be preserved. (vi) Environmentally compatible land use. (vii) Net adverse environmental impact likely to be caused by an industry, process or operation proposed to be prohibited or restricted. (viii) Proximity to a protected area under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or a sanctuary, National Park, game reserve or closed area notified, as such under the Wild Life (Protection) Act, 1972, or places protected under any treaty, agreement or convention with any other country or countries or in pursuance of any decision made in any international conference, association or other body. (ix) Proximity to human settlements. (x) Any other factors as may be considered by the Central Government to be relevant to the protection of the environment in an area.