Environmental Protection during Ancient

and Medieval Periods

India is a unique sub-continent with vast variations in geographic area,
topography and climate. It has a great diversity of ecosystems from the cold
and high Himalayan ranges to the seacoasts, from the wet northeastern green
rainforests to the dry northwestern arid deserts. Natural and biological
resources in the country being abundant, the kind of exploitation they had to
undergo through the ages has also been awful, leading to the large-scale
degradation of the environment in multifarious ways. Since time immemorial,
the efforts of the people to conserve and utilize the natural resources in a
sustainable manner have been quite exemplary. Many customary and
community norms were evolved by the society to protect the environment.
With changing times and scenario, these undocumented traditional doctrines
took a back seat, paving the way to codified laws in India.

Environmental protection is not a new concept to Indians. It has been a 5000-

year-old history and tradition for them. In early days, many religious and
customary norms governed environmental conservation. It was the dharma of
each individual in the society to protect nature. The people worshipped the
objects of nature. The trees, water, land and animals gained important
position in the ancient time. Natural resources management was given prime
importance in ancient India. Conservation of water bodies and protection of
forests and wildlife were considered to be important aspects of governance by
the rulers and local people. Punishments were prescribed for causing injury to
plants. According to evidences in Vedas and Kautilya’s Arthasasthra , different
dynasties accorded top priority to environmental protection and sustainable
use of its components. All of the tree parts were considered important and
sacred and Kautilya fixed punishments based on the destruction of the specific
part of the tree. Some of the important trees were even elevated to the
position of God. Manu imposed a condition on mankind to protect forests.
The rivers also enjoyed a high stature in the society. The Ashoka Edicts,
especially the 5th Pillar Edict, states that how animals and birds were
protected in those days. In medieval period, though there have been instances
of establishment of nature parks, gardens, and fruit orchards by the Mughal
rulers around their palaces and along banks of rivers, they did not have any
definite policy to protect the forests or wildlife. Rather they were merely
considered to be a good source of revenue and pleasure. The notable feature
of the Mughal regime was the growth of interest in natural history. Both
Babar’s account of Indian flora and fauna and Jahangir’s investigations in
natural history are well known while Salim Ali, the celebrated ornithologist,
drew attention to their contributions as naturalists long ago. Adbul Qadir
Badauni lists among sins and offences, the three sins, of cutting down a shady
tree, making a profession of killing animals, and selling away human beings, as
heinous. Akbar’s efforts in promoting afforestation in common property
resources, management of water bodies, and his disapproval of killing animals
are legendary.

Constitutional Mandate
The Constitution contained provisions such as Articles 39 (b), 47, 48 and
49 which provided an indirect and tangential reference to environment, they
did not prescribe a comprehensive national agenda to protect and conserve
the environment in its totality. The Constitution of India was amended in
1976 to incorporate two important provisions on environment in the
Constitution. Article 48-A was inserted into the Part IV of the Constitution
making environmental protection a part of Directive Principles of State Policy.
Article 48-A directs the State "to protect and improve the environment and to
safeguard forests and wildlife". Article 51-A(g) declared that it shall be the
fundamental duty of every citizen of India "to protect and improve the natural
environment including forests, lakes, rivers and wildlife and to have
compassion for living creatures". Article 48-A mandated the State to make
new laws and policies for the protection of environment. Taking cue from the
fundamental duty under Article 51-A(g) and ‘Right to Life’ under Article 21,
many Public Interest Litigations (PIL) were filed by the Indian citizenry to assert
their environmental rights. The Forty Second Amendment inserted a new entry
"Population Control and Family planning" into the Concurrent List, while
"Forests" and "Protection of Wild Animals and Birds" were moved to the
Concurrent List from the State List enabling the Parliament and the State
Legislatures to enact suitable laws. Part IX and IX-A were added into the
Constitution by 73rd and 74th Amendments in 1992 to give constitutional
sanction to democracy at the grass root level through panchayats and
municipalities. The local bodies are assigned with the powers to perform
various environmental matters as enumerated in Eleventh and Twelfth
Schedule of the Constitution.

Pollution Related Laws

The earlier legislative efforts were piecemeal and inadequate until the 1970s
when the central government began to enact comprehensive environmental
laws. As far as environmental laws are concerned, they can be classified into
two categories: laws dealing with pollution and laws pertaining to the
conservation of nature such as forests and wildlife.

Among the laws dealing with pollution, the Water (Prevention and Control of
Pollution) Act, 1974, the Water (Prevention and Control of Pollution) Act 1977,
the Air (Prevention and Control of Pollution) Act, 1981, the Environment
(Protection) Act, 1986, the Public Liability Insurance Act, 1991, the National
Environment Tribunal Act, 1995, and the National Environmental Appellate
Authority Act, 1997, require special mention. These are special enactments to
deal with the problems posed by industrial activities.

The Water (Prevention and Control of Pollution) Act, 1974

The Water Act of 1974 represented one of India’s first attempts to deal
comprehensively with an environmental issue. As water is a State subject
under the Constitution, it was enacted under Article 252 (Clause 1) that
empowers the Parliament to make laws on any entry found in the State List if
two or more State Legislatures consent to a Central Law. The Act provides for
the prevention and control of water pollution and maintenance and
restoration of wholesomeness of water. It establishes a Central Pollution
Control Board at the national level and State Pollution Control Boards in every
State in order to administer and implement the Act. Before the establishment
of an industry which is likely to discharge sewage or trade effluents, the
project proponent should get prior consent of the State Pollution Control
Board and comply with the conditions laid down by the Board. Any violation
of the provisions of the Act will attract penal provisions. The State Pollution
Control Board and citizens can launch prosecution against the polluting
industry.
The Water (Prevention and Control of Pollution) Cess Act, 1977
The purpose of the Water Cess Act is to levy and collect cess on water
consumed by persons carrying on certain industries and by local authorities
with a view to augment resources of Central and State Boards constituted
under Water Act 1974. According to the Act, the industries and local
authorities are subject to the cess if they use water for (a) industrial cooling,
spraying in mine pits, or boiler feed, (b) domestic purposes, (c) processing
which results in water pollution by biodegradable water pollutants, or (d)
processing which results in water pollution by pollutants which are not easily
biodegradable or are toxic. A rebate of 25% is available for the person or local
authority for installing plants for the treatment of sewage or trade
effluents [56] . The rebate will not be available for persons who consume water
in excess of the maximum prescribed quantity or fail to comply with the Water
Act, 1974 and the Environment (Protection) Act, 1986.

The Air (Prevention and Control of Pollution) Act, 1981

The Air Act was enacted for the prevention, control and abatement of air
pollution. The Central and State Pollution Control Boards were envisaged by
the Act, and for the purpose of this Act, the Boards constituted under the
Water Act, 1974 shall be deemed to be the Boards for the Prevention and
Control of Air Pollution. The State Governments are empowered to declare air
pollution control areas. Consent of the State Pollution Control Board is
required to establish or operate any industry in an air pollution controlled
area [60] . The State Pollution Control Boards can launch prosecutions against
the industries violating the conditions laid down in the consent orders or other
provisions of the Act. An Amendment made to the Act in 1987 empowered the
citizens to file cases against polluting industries after giving sixty days’ notice
to the State Pollution Control Board.

Rio de Janeiro conference

The United Nations Conference on Environment and Development (UNCED), also

known as the Rio de Janeiro Earth Summit, the Rio Summit, the Rio Conference, and
the Earth Summit (Portuguese: ECO92), was a major United Nations conference held in Rio
de Janeirofrom 3 to 14 June 1992. More than 100 heads of states met in Rio de Janeiro in
Brazil...Earth Summit was created as a response for Member States to cooperate together
internationally on development issues after the Cold War. Due to conflict relating
to sustainability being too big for individual member states to handle, Earth Summit was
held as a platform for other Member States to collaborate. Since the creation, many others
in the field of sustainability show a similar development to the issues discussed in these
conferences, including non-governmental organizations (NGOs). In 2012, the United
Nations Conference on Sustainable Development was also held in Rio. An important
achievement of the summit was an agreement on the Climate Change Convention which in
turn led to the Kyoto Protocol and the Paris Agreement. Another agreement was to "not to
carry out any activities on the lands of indigenous peoples that would cause environmental
degradation or that would be culturally inappropriate". The Convention on Biological
Diversity was opened for signature at the Earth Summit, and made a start towards
redefinition of measures that did not inherently encourage destruction of
natural ecoregions and so-called uneconomic growth.

Critics point out that many of the agreements made in Rio have not been realized regarding
such fundamental issues as fighting poverty and cleaning up the environment.

Green Cross International was founded to build upon the work of the Summit.
The first edition of Water Quality Assessments, published by WHO/Chapman & Hall, was
launched at the Rio Global Forum.

Emergence of PIL in India

“Access to justice through class actions, public interest
litigation and representative proceedings is the present
Constitutional jurisprudence”.( Akhil Bhartiya Soshil Karmachari
Sangh (Railway) Vs Union of India A.I.R. 1981 S.). The method was
to redress the public grievances and relax the governing rules of
locus standi. The Supreme Court has lowered the standing barriers
by widening the concept of the “Person Aggrieved”. The traditional
approach of PIL was restricted only to a person whose own right
was in jeopardy was entitled to seek the remedy.

Article 32 and 226 of Indian

Constitution
The powers of the Supreme Court to issue directions under Article
32 and that of High Court to issue directions under Article 226 of
the Indian Constitution have attained great significance in
environment legislation. Courts have made use of these powers to
remedy past maladies and to check immediate and future assaults
on the environment.
Article 226 of Indian Constitution
An important aspect of Indian Constitution is the jurisdiction it
confers upon High Court to issue writs. The writs have been among
the great safeguards provided by the British judicial system for
upholding the rights and liberties of people. It was an act of wisdom
and foresight on the part of the constitution makers to introduce
writ system in India and thus constitute the High Court into the
category of guardian and protector of people’s legal right. Under
Article 226, a High Court is empowered to issue directions, orders or
writs including writs in the natures of Habeas Corpus, Mandamus,
Prohibition, Quo- Warranto and Certiorari for the enforcement of
many rights conferred by Part III of Indian Constitution. The
Jurisdiction conferred upon on a High Court is to protect not only
the Fundamental Rights but even any other legal right as is clear
from the words “Any other Purpose”.

Public Interest Litigation- A Dynamic

Concept
The traditional rule of Locus Standi that a petition under Article 32
can be filed by a person whose fundamental Rights is infringed has
now been considerably relaxed by the Supreme Court in its ruling.
The court permits Public Interest Litigation or Social Action
Litigation at the instance of “Public Spirited Citizens” for the
enforcement of constitutional and the legal rights of any person or
group of persons who because of the poverty or socially,
economically or due to disadvantaged position are unable to
approach the court for any kind of relief. “Personal interest cannot
be enforced through the process of this court under Article 32 of the
Constitution in the grab of public interest litigation. Public interest
litigation contemplates legal proceedings for vindication or
enforcement of fundamental rights of a group of person or
community which are not able to enforce their fundamental rights on
account of their incapacity, poverty or ignorance of law. A person
invoking the jurisdiction of this court under Article 32 must approach
this court for the vindication of the fundamental rights of affected
persons and not for the purpose of vindication of his personal
grudge or enmity. It is [the] duty of this court to discourage such
petition and to ensure that the course of justice is not obstructed or
polluted by unscrupulous litigants by invoking the extra ordinary
jurisdiction of this court for personal matters under the grab of the
public interest litigation”. Public Interest Litigation (PIL) has to come to
stay in India. Contrary to the past practices today a person acting a bonafide
and having sufficient interest can move to the court for redressing public
injury, enforcing public duty, protecting social and collective rights and
interest and vindicating Public interest. The concept of class action is
embodied in the Code of Civil Procedure 1908 where numerous people have
common interests; one or more of such person can file a suit. An example of
class action was Bhopal Disaster Litigation. The interest of the community
can also be agitated under the law of public nuisance incorporated under the
Criminal Procedure Code, 1973. An individual or any group or an executive
magistrate, suo moto can move the courts. This provision proved to be very
important and potent factor and weapon for regulatory measures as well as
affirmative action by the government and local bodies for “the protection
of the environment.”

The ability to invoke Jurisdiction under Article 32 and Article 226 of the
Indian Constitution is a remarkable step forward in providing protection of
the environment. Courts have widened the aspect and dimensions of the
substantive “Right to health and clean and unpolluted environment”. In most
of the cases, this was made possible only due to because of PIL. Thus in
order to reap the benefits of substantive environment rights, court has
opened the path of “Processual Justice” without enslaving themselves to the
procedural compulsions. In Tarun Bharat Sangh, Alwar v. Union of India a
social action group of people challenged the legality of granting a mining
license in the protected area of forest cover. Upholding the contention the
Supreme Court observed that-

“This litigation should not be treated as the usual adversarial

litigation. Petitioners are acting in aid of a purpose high on the
national agenda. Petitioners concern for the environment, ecology
and the wildlife should be shared by the government. ”

This observation of the Supreme Court is important as it emphasises the

rationale of PIL in environmental issues. It is the duty of the state to protect
the environment- a duty imposed by the Directive Principle of State Policies
and Fundamental Duties, incorporated by Forty second Amendment Act of
the Constitution. Any person who raise environmental issues, whether
individual, group or any institution is equally concerned with the problem.
Such Litigation can never be considered as one of the adversarial
confrontation with the State.

It is only because of the concept of PIL that the Supreme Court is able to
give the wider interpretation to the environmental laws in India. Some of
these notable interpretations are as follows-

1. Every person enjoys the Right to wholesome environment which is facet of

right to life guaranteed under Article 21 of Indian Constitution.
2. Enforcement agencies are under the obligation to strictly enforce
environmental laws.
3. Government agencies may not plead non availability of funds, inadequacy
of Staff or other insufficiencies to justify the non performance of their
obligation under environmental laws.
4. The Polluter Pays principle which is a part of basic environmental law of
the land requires that the polluter bear the remedial clean up costs as well
as the amount payable to compensate the victims of Pollution.
5. The precautionary principle requires government authorities to participate
and anticipate, prevent and attack the causes of environment pollution.
This principle also imposes onus of proof on the developer and
industrialists to show that his or her action is environmental benign.
In this manner, our judiciary has used the tool of PIL quite effectively for the cause of
environmental protection. But the judiciary has shown wisdom in denying false petitions seeking
to advance private interests through PIL as evident from the decision of the Supreme Court
in Subhash Kumar vs. State of Bihar (6). Hence, PIL has proved to be a great weapon in the
hands of higher courts for protection of environment & our judiciary has certainly utilized this
weapon of PIL in best possible manner.

Precautionary Principle
The Precautionary Principle has been adopted in many environmental
instruments all over the world. The principle states that if there is a risk of
severe damage to the environment absence of any scientific or conclusive proof
is not to be given as a reason for the inaction. The Precautionary Principle shifts
the burden of proof on the shoulders of the person who is arguing that the
activity he is carrying out is not harmful. The principle follows the approach of
being safe than being sorry. This principle is in contrast to the wait-and-watch
approach which is generally followed in environmental issues. The Precautionary
Principle encourages “action taking” to antedate and prevent damage to the
environment. The Precautionary Principle is one of the most popular legal
approaches in the field of environmental law today.

Definition of Precautionary Principle

There are two definitions of Precautionary Principle which are widely accepted-

1. The first definition is given in the Rio Declaration of 1992. It states that in order to
protect the environment every state should apply the principle to the best of their
abilities. When there are chances of irreversible and serious damage, lack of full
scientific should not be the reason for the postponement of preventive measure.
2. The second definition is based on the Wingspread Statement on Precautionary
Principle, which was given 1998. This definition states that when there is a threat
to the environment and human health, precautionary measures should be taken
even when full scientific data is not available. The principle should examine the
alternative options available (even the option of taking no action).

There is a significant difference between the two definitions. The first definition
talks about “irreversible and serious damage, but the second definition talks
about “harm” to the environment and human health in general. Thus, the scope
of the second definition is wider.

Precautionary Principle and Indian Law

The Indian Judiciary actively supports the Precautionary Principle. In the judicial
pronouncement of Vellore Citizens Welfare Forum v UOI, the Court opined that
sustainable development t is the need of the hour. The court emphasized on the
fact that there should be a balance between economic growth and protection of
the environment. The Court rejected the traditional concept that ecology and
development are opposed to each other. The Court also reviewed the
development of the concept of sustainable development in the international
sphere. The Court referred to the Stockholm Declaration of 1972, Caring for
Earth, 1991, the Earth Summit, and the Rio Declaration of 1992 and opined that
the Precautionary Principle and the Polluter Pays Principle are indispensable
features of Sustainable Development. In the case of M C Mehta v Kamal Nath,
the Supreme Court reiterated the decision given in Vellore Citizens Welfare
Forum case stating that the Precautionary Principle is a part of the environment
law in India.

The Precautionary Principle was very comprehensively reviewed by the Apex

Court in the case of AP Control Pollution Board vs. Prof M V Nayadu. The Court
stated that it is better to go wrong in taking caution and prevent environmental
harm rather than waiting for the issue to materialize into an irreversible
problem. The Court opined that the Precautionary Principle was evolved because
of lack of scientific certainty only, and the principle involves anticipating the
harm the environment may suffer and act on the basis of that. In the case of
Narmada Bachao Andolan v UOI, the Apex Court very clearly laid down the
proposition of law, and specifically of Precautionary Principle. The Court stated
that when an issue pertains to environmental damage, the onus of proof is on
the person who is contending that the activities carried on by him are not
harmful to the environment. The party who is giving such contention also has to
satisfy the Court of the same, that there will be no environmental degradation
due to his activities.
Judiciary plays an immense role in linking the law with the concept of
sustainable development. So, it is vital that the judiciary also supports this kind
of approaches. The support of the judiciary is required so that protection of
environment gets a legal sanctity. As an offshoot of legal recognition, the
Precautionary Principle was also adopted by the National Environmental Policy
as a guiding principle. However, there is still a long way to go for the
Precautionary Principle to gain its rightful place in the field of environmental
law. And till it does not get its rightful place, it will be very difficult to implement
it.

PUBLIC TRUST DOCTRINE

The doctrine of public trust has evolved over the years to emerge as one of the core
principles for the judiciary to substantiate the legitimacy of governmental action
that interferes with the use by the general public of natural resources. The
incorporation of this doctrine into our legal system has resulted in the imposition of
a much required check upon governmental authorities who seek to divest State
control over such natural resources in favour of private parties. The public trust
doctrine “is based on the notion that the public holds inviolable rights in certain
lands and resources, andthat regardless of title ownership”, and that “the state
retains certain rights in such lands and resources in trust for the public. Public trust
doctrine serves two purposes: it mandates affirmative state action for effective
management of resources and empowers citizens to question ineffective
management of natural resources . At its widest, it could be used by the courts as a
tool to protect the environment from many kinds of degradation. In some countries,
the doctrine has formed the basis of environmental policy legislation, allowing
private rights of action by citizens for violations by the state (directly or indirectly)
of the public trust. The Rule of Law runs close to the rule of life and the Indian
Constitution, in its humanist vision, has made environmental-ecological
preservation a fundamental value. The higher jurisprudence of Article 21 of the
Constitution (right to life) embraces the protection and preservation of nature's gift
without which life ceases to be viable and human rights become a simulacrum. In
other words, this right to life under article 21 has been extended to include the right
to a healthy environment and the right to livelihood. The third aspect of the right to
life is the application of public trust doctrine to protect and preserve the public
land. When the Indian courts have applied the public trust doctrine, they have
considered it not only as an international law concept, but one, which is well
established in their national legal system.

The doctrine is first mentioned in M.C. Mehta v Kamal Nath and others where the
Indian Supreme Court applied public trust with regard to the protection and
preservation of natural resources. In this case, the State Government granted lease
of riparian forestland to a private company for commercial purpose. The purpose
of the lease was to build a motel at the bank of the River Beas. A report published
in a national newspaper alleged that the motel management interfered with the
natural flow of the river in order to divert its course and to save the motel from
future floods. The Supreme Court initiated suo motu action based on the
newspaper item because the facts disclosed, if true, would be a serious act of
environmental degradation.

The Supreme court in M.C. Mehta started that the Public Trust Doctrine primarily
rests on the principle that certain resources like air, sea, waters and forests have
such great importance to the people as a whole that it would be unjustified to make
them a subject of private ownership . The court observed that:
Our Indian legal system, which is based on English common law, includes the
public trust doctrine as part of its jurisprudence. The State is the trustee of all
natural resources, which are by nature meant for public use and enjoyment. Public
at large is the beneficiary of the seashore, running waters, airs, forests and
ecologically fragile lands. The State as a trustee is under a legal duty to protect the
natural resources. These resources meant for public use cannot be converted into
private ownership. Every generation owes a duty to all succeeding generations to
develop and conserve the natural resources of the nation in the best possible way. It
is in the interest of mankind. It is in the interest of the nation. Thus, the Public
Trust doctrine is a part of the law of the land. The court also ruled that there is no
any justifiable reason to rule out the application of the public trust doctrine in all
ecosystems in India.

In this case, the Supreme Court was faced with the classic struggle between those
members of the public who would preserve our rivers, lakes and open lands in their
pristine purity and those charged with administrative responsibilities who find it
necessary to encroach to some extent upon open land.... It stated that the public
bodies should apply public trust doctrine when there is no legislation to protect the
natural resources.
It is interesting to note that in the Kamal Nath case the Supreme Court held that
even if there is a separate and a specific law to deal with the issue before the Court,
it may still apply public trust doctrine. If there is no suitable legislation to preserve
the natural resources, the public authorities should take advantage of this doctrine
in addition to the fact that there was a branch of municipal law.

Conclusion

From the above discussions on the doctrine and various case laws, it is evident that
the state is not the owner of the natural resources in the country but a trustee who
holds fiduciary relationship with the people. By accepting this task the government
is expected to be loyal to the interests of its citizens and to discharge its duty with
the interest of the citizens at heart and involve them in decision-making process
concerning the management of natural resources in the country. The Public Trust
Doctrine may provide the means for increasing the effectiveness of environmental
impact assessment laws. Thus, under this doctrine, the state has a duty as a trustee
under art. 48A to protect and improve the environment and safeguard the forests
and wildlife of the country.

POLLUTA PAYS PRINCIPLE

The ‘polluter pays’ principle is an environmental policy principle which requires

that the costs of pollution be borne by those who cause it. The ‘polluter pays’
principle is normally implemented through two different policy approaches:
command-and-control and market-based. Command-and-control approaches
include performance and technology standards, such as environmental regulations
in the production of a given polluting technology. Market-based instruments
include pollution or ecotaxes, tradable pollution permits and product labelling.
Most of the time, the ‘polluter pays’ principle takes the form of a tax collected by
government and levied per unit of pollution emitted into the air or water. As a
policy instrument for the control of pollution, a tax on emissions will theoretically
reduce pollution, because firms or individuals will reduce emissions in order to
avoid paying the tax. Under a range of market conditions, standard economists
assume that pollution tax will generally be more cost-effective at reducing
pollution than regulations: the total abatement cost of achieving a specified level of
pollution reduction will generally be lower under a pollution tax than for a
command-and-control approach that achieves the same reduction in pollution. The
‘polluter pays’ principle has received support from most countries of the
Organisation for Economic Co-operation and Development (OECD) and from the
European Community (EC). In international environmental law, it is mentioned in
Principle 16 of the 1992 Rio Declaration on Environment and Development.
Despite the fact that the ‘polluter pays’ principle was publicised by early
conservationists as a means to reduce ecological pollution or in general ecological
damages, many observers still consider it a ‘vague concept’. However, the Exxon
Valdez case would be an example of its application. In 1989, the oil tanker ran
aground and over 300,000 barrels of crude oil poured into Alaskan waters. Exxon
was in principle required to pay USD 125 million in fines to the US Federal
Government and the state of Alaska, as well as USD 900 million for a fund to be
doled out by government officials for environmental projects, among other things.
In addition, Exxon was put under tremendous political pressure to restore the
shoreline. It thus engaged in an extensive and costly clean-up operation, with
controversial results.

Most of the sophisticated theoretical developments of the ‘polluter pays’ principle

that have been carried out in the neoclassical economics literature have relied on
strong assumptions about the workings of the economy including competitive
markets, profit-maximising firms, rational consumers, and, in mathematical terms,
‘well-behaved’ preferences and technologies for production. Thus, it should be
remembered that relaxing one of these assumptions can alter the conclusions
reached and thus that results must always be evaluated and interpreted with great
care.

POLLUTA PAYS PRINCIPLE

The Polluter Pays Principle was first introduced in 1972 by the Organization for
Economic Cooperation and Development (OECD) Guiding Principles concerning
International Economic Aspects of Environmental policies where under the polluter was
held responsible for the environmental damage and pollution. Subsequently, the Rio
Declaration laid down the guidelines for sustainable development meaning thereby a
strategy to cater the needs of the present generation without compromising the needs of
the future generation. In furtherance of the aim of sustainable development Rio
Declaration Principle 16 of the Rio Declaration enshrined the Polluter Pays principle
stating that the polluter should bear the cost of pollution.

The Concept

The Polluter Pays Principle imposes liability on a person who pollutes the environment
to compensate for the damage caused and return the environment to its original state
regardless of the intent.

View of the Indian Judiciary

The Indian Judiciary has incorporated the Polluter Pays Principle as being a part of the
Environmental Law regime is evident from the judgments passed.
  Indian Council for Enviro-Legal Action vs. Union of India 1996(3) SCC 212
The Court held 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.
 Vellore Citizens' Welfare Forum vs. Union of India 1996(5) SCC 647
The Court interpreted the meaning of the Polluter Pays Principle as the absolute
liability for harm to the environment extends not only to compensate the victims
of the 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 the polluter is liable to pay the cost to the individual
sufferers as well as the cost of reversing the damaged ecology."
 The Oleum Gas Leak case (M.C. Mehta vs. Union of India) AIR 1987 SC 1086
The Court laid down that an enterprise engaged in a hazardous or inherently
dangerous industry which poses a potential threat to the health and safety of
persons working in the factory and to those residing in the surrounding areas,
owes an absolute and non-delegable duty to the community to ensure that no
harm results to any one on account of hazardous or inherently dangerous nature
of the activity which it has undertaken. The enterprise is absolutely liable to
compensate for such harm and irrespective of all reasonable care taken on his
account. The larger and more prosperous the enterprise, greater must be the
amount of the compensation payable for the harm caused on account of an
accident in the carrying on of the hazardous or inherently dangerous activity by
the enterprise.
 M. C. Mehta vs Kamal Nath & Ors (1997)1SCC388
The Court held that pollution is a civil wrong and is a tort committed against the
community as a whole. Thus, any person guilty of causing pollution has to pay
damages (compensation) for restoration of the environment and ecology. Under
the Polluter Pays Principle, it is not the role of Government to meet the costs
involved in either prevention of such damage, or in carrying out remedial action,
because the effect of this would be to shift the financial burden of the pollution
incident to the taxpayer.

STOCKHOLM CONFERENCE

United Nations Conference on the Human Environment, byname Stockholm

Conference, the first United Nations (UN) conference that focused on
international environmental issues. The conference, held in Stockholm, Sweden,
from June 5 to 16, 1972, reflected a growing interest in conservation issues
worldwide and laid the foundation for global environmental governance. The final
declaration of the Stockholm Conference was an environmental manifesto that was
a forceful statement of the finite nature of Earth’s resources and the necessity for
humanity to safeguard them. The Stockholm Conference also led to the creation of
the United Nations Environment Programme (UNEP) in December 1972 to
coordinate global efforts to promote sustainability and safeguard the
natural environment. The roots of the Stockholm Conference lie in a 1968 proposal
from Sweden that the UN hold an international conference to examine
environmental problems and identify those that required international cooperation
to solve. The 1972 conference was attended by delegations from 114 governments.

Documents created during the conference influenced international environmental

law; one notable example was the final declaration, which elucidated 26 principles
concerning the environment. The conference also produced the “Framework for
Environmental Action,” an action plan containing 109 specific recommendations
related to human settlements, natural-resource management, pollution, educational
and social aspects of the environment, development, and international
organizations. The final declaration was a statement of human rights as well as an
acknowledgment of the need for environmental protection. The first principle
began “Man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits a life of dignity and
well-being.”