Environmental Administration

View point 1: Introduction:

A rapid increase in global warming, deforestation, air, water and other forms
of pollution is posing a great threat to the environment and its living beings.
The degradation of the environment through a plethora of activities carried
on by individuals is detrimental to the health of all the living beings,
including human beings, plants and animals.

Fundamental status has been given to the concept of protecting the

environment as it is essential to promote human health to have a healthy
environment and affords a right to a healthy environment to all. Preserving
the environment protects the health of every individual and a healthy
individual promotes the development of the environment which is the need
of the hour.

To live in an environment which provides a pollution free atmosphere is not

only a basic human right but also enhances human dignity. Principle of
sustainable development is one such approach which if followed can fulfil
the basic human right of having a dignified life.

Law acts as a means of regularizing the human conduct and provides the
smooth functioning of society. Since the word ‘Environment’ did not find its
existence in the Indian Constitution, it became essential to insert provisions
in the constitution as it is the supreme law of the land and such insertion
thus, would prove to be fruitful to protect the environment from exploitation.

The preamble of the constitution and environment protection

The Preamble of Indian Constitution begins by stating that people of India

solemnly resolve to constitute India into a socialist country. This indicates
that our Constitution affords us with the socialist pattern of society. Thus,
aiming at dealing with and solving social problems first, rather than
concentrating on individual problems. Here, what is in the interest of the
public is of utmost importance.

Presence of pollutants in the atmosphere in excess of the prescribed limit is

one of the major social issues to be given due regard. It is not only exploiting
the health of living beings but is also degrading the quality of the
environment in each day.

www.kpias.net
The basic aim of Preamble is socialism and it is the responsibility of the
state to fulfil this by taking stringent measures to make the environment
free from all forms of pollution. The obligation of the state further includes
providing not only a pollution free environment but also a decent standard
of living to all living beings.

All the citizens of India intend to secure freedom which also includes
securing justice. Justice can be interpreted and sought in many forms.
Thus, citizens have a right to environmental justice. Increasing degradation
of the environment is posing a great threat to the lives of living beings and
hence, protecting the environment is becoming a crucial in each day of life
because ignoring it would pose a serious threat to the environment at large.

The state has the duty to comply with all the provisions and since India is
declared to be the Democratic Republic, the citizens of this country hold a
very essential right to have looked upon the conduct of the state and
provisions being taken by the government from time to time to restore the
environment.

Legislative powers and matters of environmental protection

Under the Indian Constitution, there are three types of lists, namely- Union,
state and concurrent.

Powers of the government are shared at the state and union level. Central
government deals with the matters of union list, where state government
deals with the matters of state list. Thus, the exclusive power to legislate the
matters of union list, which is the list I, is with the Parliament. State list
which is the list II covers matters like, sanitation, the health of the public,
drainage, supply of clean water etc. It covers matters relating to defence,
military, atomic energy, regulation of oil fields, air traffic etc.

Power of dealing with the matters of the concurrent list (list III) is shared
between both the state and central government. It covers matters like
protection of forests, wildlife, conserving mines, population control etc. But
in the instance of conflict, the decision of the central government prevails.

The legislative and administrative relations between the central and the
state government are specifically dealt in with the part XI of the
Constitution. The power to make rules for the whole country is with the
Parliament of the country, while for that of the state lies with the state
government of every state.

www.kpias.net
In an instance of passing state laws subsequent to the central laws, for it to
prevail, requires a Presidential assent first as in accordance with Article
254.

In the situation of national emergency, Parliament has the power to legislate

the state subjects also. The division of these legislative powers is essential
to make provisions which can deal with environmental problems.

There are various projects taken up by the state to develop the environment
but they might pose a serious threat to the environment. In such
circumstances there is always a conflict between development and
environment protection and such matters are dealt through the
Environment Impact Assessment (EIA). This has also been recognized by the
planning commission.

International Environmental Agreements

A plethora of international agreements dealing with environmental

protection have been made and India has been a signatory to it. Because at
the Stockholm declaration in 1972, it was held that the world has one
environment. India being a signatory to such international pacts is under an
obligation to translate those provisions and follow them in the country. This
has been clearly stated in Article 51(c) of the Indian constitution that state
shall foster respect for international law and the obligations of the treaties.

Another essential provision dealing in protecting the environment is Article

253 of the Constitution which empowers the Parliament of our country to
make laws which can be applicable to the whole or any territory of the
country for implementing any agreement or convention signed with the other
country or countries.

Parliament can further legislate to implement decisions taken at any

conference on an international level. Any provision made in the context of
environmental protection in accordance with Article 253 read with articles
13 and 14 cannot be questioned before the court of law on the grounds of no
legislative competence.

With the use of this power, it is pertinent to know that Parliament has
enacted Air (Prevention and Control of Pollution) Act 1981, and Environment
Protection Act, 1986. It has been clearly stated in the Preamble of these acts
that the purpose of their enactment was to implement the decisions taken at
the United Nations Conference on the Human Environment, held at
Stockholm in the year 1972.

www.kpias.net
In Vellore Citizens’ Welfare Forum v. Union of India, the supreme court held
that it is essential to incorporate the international customary laws in the
municipal laws, provided they are not contrary to them. It is an accepted
principle of law. Thus, it was considered essential to follow international
laws by the domestic courts of law.

Obligation of State and Environmental Protection

The authorities are under the obligation to follow the law and regularize the
conduct for the benefit of the people who have elected them. Article 47 puts
an obligation on the state that it shall regard the raising level of nutrition
and standard of living of its people. Also, the primary duty of the state shall
be to improve public health. It is the responsibility of the state to prohibit
except for medicinal purposes, the consumption of alcohol and drugs which
can be injurious to the health of the living beings and pose a great threat to
their lives.

From the word “responsibility” it can be interpreted that state shall take
effective, adequate and necessary steps to improve the health and standard
of living of all and promote awareness in the context of environmental
protection. In the environment development projects cannot be taken up by
the individuals who harm society as a whole. Thus, the state needs to keep a
stringent check on these activities and projects.

There have been various reasons due to which level of pollution in the
environment is constantly increasing. For eg., water pollution is commonly
caused due to the draining of impure water in the rivers and which not only
pollutes the natural resource of the country but affects the health of
citizens. This lead to the urgent need of making provisions to obligate the
state to preserve and protect the environment

In the case of Hamid Khan v. State of Madhya Pradesh, the state was
negligent to supply water from the hand pumps; colossal damage was
caused to the citizens, which affected their health massively. Hence, due to
this gross negligence on the part of the state, it was held that the state failed
to perform its basic duty.

In the year 1976, the constitution was amended. With this amendment,
Article 48-A was inserted in the constitution with the aim to afford better
provisions so as to preserve and protect the environment. The provision of
this article imposes the duty on the state to protect and improve the
environment and safeguard the forests and wildlife of the country. The word
“Environment” has been interpreted widely in this article. The state shall not

www.kpias.net
only play a role of being protectionists but also enact adequate measures for
improvement of the environment.

Every natural resource is interconnected with other natural resources of this

country. Forests are directly linked with providing pollution-free air, help in
reducing global warming and are also connected with water resources. They
help in maintaining the ecological balance. Thus, this resource is crucial
and hence, its protection is equally important to avoid atmospheric
pollution. Hence, the specific insertion of this section is justified.

Obligation of citizens and environmental protection

The duties of the state in protecting the environment are basically the rights
of the citizens. The concept of rights and duties respectively, co-exist. They
are interconnected. If citizens have the right to a decent standard of living
and a pollution free environment, then at the same time they are obliged to
protect it and not carry on activities which prove to be dangerous for the
society at large and all other living beings.

The concept of rights was quite prevalent in comparison to the concept of

duties prior to the 42nd amendment of the constitution. More importance
was attached to rights than duties by the supreme law of the land. But the
drafters of the constitution felt that it is necessary to shoulder the burden of
protecting environment between both the state and the citizens. Also,
citizens were more concerned with their rights and started neglecting their
duties. Thus, part IV–A was inserted by The Constitution (Forty Second)
Amendment Act, 1976.

Part IV-A of the constitution deals with Fundamental Duties. Article 51-A(g)
specifically deals with the fundamental duty of the citizens to protect and
improve the natural environment which includes forests, rivers, lakes,
wildlife and to have compassion for living creatures. Like the duty of the
state, it is the duty of all the citizens of not only protecting the environment
but also taking measures which are adequate enough to improve the
environment.

www.kpias.net
Nature has gifted us with the resources and a pollution free environment
and thus, this casts a duty upon the citizens to keep these resources in the
same condition for the future generations. Hence, the principle of
intergenerational equity plays a major role in environmental protection by
sustainable use of natural resources.

In Kinkeri Devi v. State, Himachal High Court that in Article 48-A and
Article 51-A(g) it was held that it is both constitutional pointer to the state
and the constitutional duty of the citizens not only protect the environment
but also improve it and to preserve and safeguard the forests, the flora and
the fauna, the rivers and the lakes and all other water resources of the
country.

The negligence to abide by the pointer or perform the duty is nothing

basically the straight betrayal of the fundamental law of the land.

In the case of betrayal, the courts cannot remain a silent spectator. A court
can intervene at any time to make the implementation of the provisions by
issuing writs, orders and directions as it thinks fit and necessary.

In L.K Koolwal v. State of Rajasthan and Ors, the municipality of Jaipur was
being negligent in carrying on its basic duty of maintaining the hygiene of
the state. This caused acute sanitation problem thereby leading to the to
have hazardous effects on the lives of the people of the state. Mr Koolwal
along with other residents moved an application under article 226 of the
Indian constitution before the high court highlighting the gross negligence of
the municipality.

While construing the true scope of Article 51-A in this case the court
explained that this article is not only a duty but is aright created in favour of
the citizens to have the locus standing to move to the court to have a check
on the conduct of the state activities, whether the authorities are performing
their duties or not in accordance with the fundamental law of the land. The
right to move to the court is granted to citizens for the proper enforcement of
the state’s duties and of their relevant departments, local bodies etc.

Being negligent in maintaining hygiene and sanitation standards slowly

affects the lives of living beings and poisons the environment at large. This
infringes the fundamental right of life of the citizen as provided under article
21, which also extends to have a decent standard of living and a clean and
safe environment and thus, citizens protecting their fundamental right to life
from being infringed is justified. Thus, the court directed the municipality to
remove the dirt and all the filthy material which was posing a great threat to
the lives and health of the people.

www.kpias.net
In another case of Goa Foundation v. the State of Goa, the petitioner was a
society registered under the rules relating to registration of societies and its
members were the citizens of India who had a fundamental duty to protect
and improve the environment, lakes, forests, rivers and have compassion for
living creatures as laid down under article 51-A . The question of whether
the society had locus standi to move to the court or not was raised before
the court

The answer to this question was given in a very affirmative manner by the
court and was held that the society had the same fundamental duty.
Petitioner was held to have a locus standi to move to the court to not only
prevent degradation of our ecology but also form and implement provisions
for the purpose of rehabilitating the ecology thereby maintaining ecological
balance.

Public interest litigation was filed before the high court by five persons, who
were residents of a specific area, in the case of Sitaram Champaran V. State
of Bihar to seek the directions of the court for the closure of the tyre
retreading plant, in the interest of public health. This plant was situated in
the residential area and was emitting carbon dioxide along with other
obnoxious gases causing harm to the environment. The respondents were
directed to wind up the plant in the interest of environmental protection and
were considered a fundamental duty under Article 51-A.

Right to life and Environment Protection

Article 21 of the constitution provides for the fundamental right of life. It

states that no person shall be deprived of his right to life or personal liberty
except in accordance with procedures established by law. The words “except
in accordance with procedures established by law” can be interpreted to
mean that this provision is subject to exception and is regulated by law
which varies from case to case.

Since the provision begins with the word ‘no’ that is the reason it has been
given a negative impact. But post-Maneka period this provision has been
given a positive interpretation and positively casts a duty on the state to
enforce the due implementation of this law.

Right to life includes the right to have a dignified life and also the bare
necessities of life like food, shelter, clean water and clothes. The right to live
extends to having a decent and clean environment in which individuals can
live safely without any threat to their lives. An environment shall be free
from diseases and all sorts of infections.

www.kpias.net
This is crucial because the right to life can be fulfilled only when one lives in
a clean, safe and disease-free environment, otherwise granting such right
would prove to be meaningless. This aspect of Article 21 has been evidently
discussed in the case of Rural Litigation and Entitlement Kendra, Dehradun
v. State of Uttar Pradesh, where the petitioner along with the other citizens
wrote to the supreme court expressing their views against the progressive
mining which denuded the Mussoorie hills of trees and forests and soil
erosion. This lead to having an adverse effect on the environment and
resulted in landslides along with blockage of underground water channels.

The registry was ordered by the Hon’ble Supreme Court to consider this
letter as a writ filed under article 32 of the Constitution.

An expert committee was appointed in this behalf by the Supreme Court to

advise the Hon’ble court with some technical issue. On the basis of the
report provided by the expert committee, the court provided the limestone
quarries to be closed because it was infringing the right to life and personal
liberty. Quarrying operations lead to ecological degradation and air and
water pollution, which affected the lives of the people to a great extent.

In L.K Koolwal v. State of Rajasthan and ORS, Rajasthan High Court held
that maintaining the quality of the environment, sanitation and health is
covered under the purview of Article 21 of the Constitution. Because non-
compliance to do so can adversely affect the lives of many citizens and slow
poisoning along with reducing the life of a citizen.

In Charan Lal Sahu v. Union of India, it was held that the duty of the state
is to take adequate and effective steps for the enforcement and protection of
Constitutional rights guaranteed under Article 21, 48-A and 51-A(g).

In M.C Mehta v. Union of India, due to stone crushing activities in and

around Delhi was causing a huge problem of pollution in the environment.
The court was conscious of the inevitable consequences and the ecological
problems caused due to the industrial activities in the country. In the name
of environmental development, it cannot be permitted to degrade the quality
of the ecology and increase different forms of pollution to the extent that it
becomes a health hazard to the lives of all the citizens. It was further held
that citizens have a right to fresh air and have a pollution-free environment
in which they live.

Further, the scope of article 21 was broadened by the judiciary to include

under its purview the right to livelihood as well. It includes the right of
citizens to earn their livelihood along with the right to life. The wider
interpretation of this article has proved to be beneficial in keeping a

www.kpias.net
strict check on the conduct and actions of the government in the context of
measures taken by the authorities to protect the environment. It is also
beneficial in keeping a check on the activities of the state which can have a
massive impact on the environment, health of the individuals and threat to
the livelihood of poor.

Indian judiciary has been very conscious while dealing with the matters of
development and the environment protection to avoid the conflict between
the two aspects.

In the famous Taj Mahal Case, ample of industries near Taj Trapezium Zone
were using coke and coal as an industrial fuel. These industries were
ordered to be relocated to an alternative site as provided under Agra Master
Plan. The rights and duties of the workmen in the industries were also
specified by the court following the principle of sustainable development.

Right to Equality and Environmental Protection

Equality before the law and equal protection of the law has been granted
under article 14 of the Constitution. This fundamental right impliedly casts
a duty upon the state to be fair while taking actions in regard to
environmental protection and thus, cannot infringe article 14. In cases of
exercise of arbitrary powers on behalf of the state authorities, the judiciary
has played a strict role in disallowing the arbitrary sanction. Use of
discretionary powers without measuring the interest of the public violates
the fundamental right of equality of the people.

In Bangalore Medical Trust V. B.S Muddappa, an improvement scheme was

prepared by the City Improvement Board of Bangalore for the purpose of
extending the city. A low-level park was to be developed for which an area
was kept under this scheme. But under the direction of the chief minister
the area kept for the low-level park was to be converted into the civic
amenity site where the hospital was to be constructed. As soon as the
construction began, the residents moved to the high court.

The petition moved in by the residents was allowed by the high court. But in
appeal to the Supreme Court, the appellant contended that the power to
allot sites is completely a discretionary one and the developing authority has
the right to allow the site for making hospital rather than a park. And thus,
the diverted use of the land was justified in the eyes of the appellant.

By explaining the importance of open spaces and parks in the development

of urban areas, the Supreme Court rejected the appeal. The Hon’ble court

www.kpias.net
further stated that the open spaces, recreation, playing grounds and
protection of ecology are the matters of vital importance in the interest of
public and crucial for the development. Keeping open spaces for the interest
of the public is justified cannot be sold or given on lease to any private
person solely for the sake of monetary gains.

Freedom of Speech and Expression and Environment

Right of speech and expression is a fundamental right expressly mentioned

in article 19(1)(a) of Part III of the Constitution. There have been a number of
cases where people have approached the court through the way of speech
and expressing themselves by writing letters like that in the case of Rural
Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh
where they have expressed the violation of their right to have a clean and
safe environment and a right to livelihood.

In India, the media has been playing a crucial role in moulding the
perception of people in issues relating to the environment. Thus, Article
19(1)(a) is interpreted to include the freedom of the press as well.

Freedom of Trade and Commerce and Environmental Protection

All the citizens of India have a fundamental right to carry on any profession
or business, trade or commerce at any place within the territory of India
under Article 19 (1)(g) of the Constitution. But this is not an absolute right
and thus, has reasonable restrictions to it. Article 19(6) of the Constitution
lays down the reasonable restriction to this fundamental right to avoid the
environmental hazards.

The purpose is to avoid the ecological imbalance and degradation of the

atmosphere in the name of carrying on a trade, business, occupation or
carrying on any profession. Thus, in the name of business or profession, one
cannot cause harm to the environment.

In M.C Mehta v. Union of India, AIR 1988 SC 1037 certain tanneries were
discharging effluents in the holy river Ganga which was causing water
pollution. Further, no primary treatment plant was being set up despite the
constant reminders. It was held by the court to stop the tanneries from
working because the effluents drained were ten times more noxious as
compared to the ordinary sewage water which flows into the river.

The court ordered while directing tanneries to be stopped from working

which have failed to take necessary steps as required for the primary

www.kpias.net
treatment of effluents from the industries. The court while passing this
order contended that, though the court is conscious about the
unemployment that might usher due to the closure of the tanneries but
health, life and ecology holds greater importance in the eyes of law.

In M.C Mehta v. Union of India, 1994, it was directed by the Supreme Court
that the industries who did not comply or adhere to, with the prior direction
of the Hon’ble court regarding the installation of air pollution controlling
system should be closed. In this case, the Supreme Court laid down its
greater emphasis on Article 19(6) of the Constitution.

In S. Jagannath v. Union of India, sea beaches and sea coasts were

considered to be the gifts of nature, by the Hon’ble Supreme Court and any
such activity which pollutes these natural resources or the gift of nature
cannot be permitted to function. In this case, a shrimp farming culture
industry by modern method causing degradation to the ecosystem,
discharge of polluting effluents, pollutes the potable ground-water and
depletion of the plantation. All of these activities were held to be violative of
constitutional provisions and other legislation dealing with environmental
matters, by the court.

The court further held that before the installation of any such industry in a
fragile coastal area it is essential for them to necessarily pass the strict
environmental test. In other words, reasonable restrictions can be laid in
accordance with Article 19(6) of the Constitution.

Role of the Supreme Court in environmental protection

In lieu of the wide range of cases dealt by supreme court with regard to
environmental protection, a plethora of judgements have been passed which
have laid down various principles to be taken care of before indulging in any
activity which might pose a threat to the environment. Also, different
aspects of the environment have been highlighted by giving them immense
importance like natural resources. Air and water have been given the status
of the gift of nature and inalienable part of life.

While incorporating the important features to the fundamental right

provided in Article 21, certain principles were ascertained by the supreme
court to be necessarily ensured for the protection of the atmosphere, which
are as follows-

Polluter Pays Principle

The basic concept behind this principle is that “ if you make a mess, it
becomes your duty to clean it up”. The polluter pays principle does not lay

www.kpias.net
emphasis on the ‘fault’ rather on the curative approach to repair the
ecological damage caused by any person or group of persons. This principle
was for the first time referred to in the year 1972 in the OECD Guiding
Principles concerning International Economic Aspects of Environmental
Policies.

Further, this principle was also applied in the case of Vellore Citizens
Welfare Forum v. Union of India. In M.C Mehta v. Union of India and Ors(
Calcutta Tanneries Case), the polluter pays principle was applied where
industries were directed to be relocated and these industries were ordered to
pay 25% of the cost of the land.

The industries which did not pay the cost of the land and did not comply
with the direction of the court were further directed to be closed. The
Hon’ble court again restored to the directions which were earlier given in the
Vellore Citizens Welfare Forum v. Union of India.

Precautionary Principle

Principle 15 of the Rio Declaration provides for the precautionary principle.

According to this. In order to protect the environment, it is essential to apply
the precautionary principle. This principle means that where there is a
chance of great threat or irreversible damage to the environment, lack of full
scientific certainty cannot be taken as a reason of not issuing the cost-
effective methods.

In M.C Mehta v. Union, popularly known as Taj Mahal Case, was another
judgement of the court passed on the basis of the precautionary principle. In
this case, public interest litigation was filed alleging the degradation of Taj
Mahal due to environmental pollution. Court referred the case to the expert
committee to seek technical on the matter. On the basis of the report of the
committee. This monument is a monument of international repute. The
industries located in the Taj Trapezium Zone(TTZ) were using coke/coal as
the industrial fuel, thus emitting effluents.

It was held by the court that, the Taj apart from being a cultural heritage, is
also an industry by itself and thus, it was directed to all the industries
operating in TTZ to use natural gas as a substitute for coke/coal as an
industrial fuel and if they cannot be restored to it for any reason, they must
stop functioning and they may relocate themselves as per directions of the
.`The industries on the relocation in new areas were to be given the
incentives.

www.kpias.net
The doctrine of Public trust

This doctrine rests on the principle that certain resources which are
required for fulfilling the basic amenities of life like air, water etc hold great
importance to the people at large that it would be completely unjustified to
make these resources available to the private ownership. Since these
resources are the gift of nature that is why they should be made freely
available to every individual of the society irrespective of the status in life,
The doctrine obliges the government to protect resources for public use
rather than being exploited by a private person for making economic gains.

Thus, commercial use of natural resources is completely prohibited under

this doctrine. For the effective and optimum utilization of resources, this
doctrine mandates an affirmative action of the state authorities. Also,
citizens are empowered to question the authorities if resource management
is ineffective.

In M.C Mehta v. Kamal Nath, 1997, the state government granted a lease of
riparian forest land to a private company having a mote located at the bank
of river Beas, for commercial purposes. The hotel management was
intervening with the natural flow of the river by blocking the natural spill
channel of the river. This was questioned before the court through public
interest litigation. The court explained the scope of public trust doctrine and
observed that the doctrine rests on the primary principle that certain
resources like air, water, sea and forests have great importance to people
and it would be unjustified to make them subject to the private ownership.

Sustainable Development

The term sustainable development was for the first time used at the cocoyoc
declaration. Thereafter it received further impetus through the Stockholm
declaration where it was held that the world has just one environment and
the man is both the creator and moulder of the environment. Further, in the
Brundtland report, the definition of sustainable development was given
according to which it is the optimum utilization of resources for both the
present and future generations. Thus, intergenerational equity is a must.
Resources have to be protected for both the present and future generations.

Conclusion

This article begins with laying down emphasis on why environmental

protection is necessary, why did a need arise to protect the environment
followed by the causes of ecological degradation in the introductory part.
Various reasons have been considered to be a major factor in polluting the

www.kpias.net
environment and affecting the lives of the people and posing a great threat
to other living beings of the country.

In earlier times, the word “environment” was not specifically mentioned in

the Constitution and no specific provisions were laid down in the
Constitution to deal with the environmental hazards and to regulate the
activities of the people who thereby were contributing a huge part in
degrading the quality of the environment in the name of exercising their
fundamental rights. The constitution is the supreme law of the land. Thus,
inserting the clauses to specifically deal with the environmental issues
would prove to be beneficial for the environment.

42nd Amendment to the Indian Constitution proved to be a solution for this

major health hazard. The provisions in the article begin with highlighting
the provisions from the base. Starting from the words democratic, socialist
and republic used in the Preamble to the Constitution and its connection
with the protection of the environment. Followed by duties of the state to
protect the environment as being an authority elected by the people they are
obliged to work for the people. Then the concept of rights and duties has
been dealt with, wherein the right of a citizen to have a healthy environment
has been mentioned and also the duties of citizens towards the environment
in which they live to protect and preserve it.

A number of landmark cases have been mentioned to make the concept even
clearer and how these plethoras of judgements have clearly mentioned the
importance to protect this environment. It can also be concluded that the
Supreme Court has played a major role in laying down the environmental
jurisprudence. Also, fundamental rights are essential and cannot be
infringed upon but in accordance with the reasonable restrictions can be
dealt with.

To have a healthy environment is so essential because a healthy

environment promotes good health of the greater number which leads to less
diversion of resources or spending of the huge amount of money on the
treatment of the people. In these situations, the poor suffer the most as they
do not have enough resources to afford their health issues. Moreover,
healthy beings are valuable assets for the country who when healthy and fit
can contribute much towards the economy and develop the nation
thoroughly by paving a path of progress, generating employment and
increasing the GDP.

www.kpias.net
View Point 2:

Various provisions and laws in India relating to protection of environment,

we are surviving because of environment and it is our duty to protect it
along with maintenance of Sustainable Development.

Environmental Laws and Constitutional Provisions in India

It is interesting to note that natural resources had been stored virtually

untouched in the Earth for millions of years. But since the start of the
industrial revolution vast amounts of these resources had been exploited
within a period of just a couple of hundreds of years at unimaginable rates,
with all the waste from this exploitation going straight in the environment
(air, water, land) and seriously damaging its natural processes. Although
pollution had been known to exist for a very long time (at least since people
started using fire thousands of years ago), it had seen the growth of truly
global proportions only since the onset of the industrial revolution during
the 19th century.

Environmental degradation in India has been caused by a variety of social,

economic, institutional and technological factors. Rapidly growing
population, urbanization and industrial activities have all resulted in
considerable deterioration in the quality and sustainability of the
environment. Environmental ethics have also formed an inherent part of
Indian religious precepts and philosophy.

The importance of Judiciary in a democratic setup for protection of life and

personal rights can hardly be overestimated. India has a highly developed
judicial system with the Supreme Court having plenary powers to make any
order for doing complete justice in any cause or matter and a mandate in
the Constitution, to all authorities, Civil and Judicial, in the territory of
India to act in aide of the Supreme Court. The scope of Writ Jurisdiction of
the High Courts is wiser than traditionally. Understood and the judiciary is
separate and independent of the executive to ensure impartiality in
administration of justice.

In considering the role of the judiciary in environmental governance, there

are two issues that need to be considered. The first is the role the judiciary
in the interpretation of environmental law and in law making and the
second is the capability of jurists to effectively interpret the increasingly
cross-linked issues brought to their attention.

Historical View:

The Environment Protection Act 1986 defines environment as

www.kpias.net
“Environment includes water, air and land and the inter-relationship which
exists among and between water, air and land, and human beings, other
living creatures, plants, microorganism and property.”

Besides the physical and biological aspect, the “environment” embraces the
social, economic, cultural, religious, and several other aspects as well. The
environment, thus, is an amalgamation of various factors surroundings an
organism that interact not only with the organism but also among
themselves. It means the aggregation of all the external conditions and
influences affecting life and development of organs of human beings,
animals and plants.

Policy and Laws in Ancient India:

In the ancient India, protection and cleaning up of environment was the

essence of the Vedic culture. The conservation of the environment formed an
ardent article of faith, reflected in the daily lives of the people and also
enshrined in myth folklore, art, culture and religion. In Hindu theology
forests, trees and wildlife protection held a place of special reference.

Policy and Laws in British India:

By around 1860, Britain had emerged as the world leader in deforestation,

devastation its own woods and the forest of Ireland, South Africa and north
eastern United States to draw timber for shipbuilding, iron-smelting and
farming. In the early nineteenth century, the Raj carried out a fierce
onslaught on the sub continent’s forests. The revenue orientation of the
colonial land policy also worked towards the denunciation of forests.

The imperial forest department was formed in1864, with the help of experts
from Germany, the country which was at the time the leading European
nation in forest management. The first inspector-general of forests, Dietrich
Brandish, had been a botanist and recognise awesome task of checking the
deforestation, forging legal mechanism to assert and safeguard states
control over the forests. it was his dual sense that the railway constituted
the crucial watershed with respect to the water management in India- the
need was felt to start an appropriate department, and for its effective
functioning legislation was required to curtail the previously untouched
access enjoyed by the rural communities.

Policy and Laws post-independence of India:

The Indian Constitution, as adopted in 1950, did not deal with that the
subject of environment or prevention and control of pollution as such (until
1976 Amendment). The original text of the constitution under Article 372(1)

www.kpias.net
has incorporated the earlier existing laws into the present legal system and
provides that notwithstanding the repeal by this constitution of enactment
referred to in article 397, but subjected to the other provisions of the
constitution, all laws in force immediately before the commencement of the
constitution shall remained in force until altered, repealed or amended by a
competent legislature or other competent authority. As a result, even after
five decade of independence. The plethora of such laws is still in operation
without any significant changes in them.

The Principles on environment

With a view to protecting and improving the environment, different

legislations have been made and different regulations, rules have been
issued. The Government of India, through its Ministry of Environment and
Forests is administering has enacted nationwide comprehensive laws.

1972 Stockholm Declaration affirms that "Man has the fundamental right to
freedom, equality and adequate conditions of life, in an environment of
quality that permits a life of dignity and well-being, and he bears a solemn
responsibility to protect and improve the environment for present and future
generations..." This shows that it has been internationally recognized that
man's fundamental rights embraces the need to live in an uncontaminated
environment but it also puts forth man's obligation to protect the
environment for posterity.

The Supreme Court has laid down that the "Precautionary principle" and the
"Polluter Pays Principle" are essential features of "sustainable development".
These concepts are part of Environment Law of the country. The
"Precautionary Principle" establishes that a lack of information does not
justify the absence of management measures. On the contrary, management
measures should be established in order to maintain the conservation of the
resources. The assumptions and methods used for the determination of the
scientific basis of the management should be presented.
The essential ingredients of the precautionary principle are:
(i) Environmental measures- by the state government and the statutory
authorities- must anticipate, prevent and attack the causes of environment
degradation.
(ii) When there are threats of serious and irreversible damage, lack of
scientific certainty should not be used as a reason for postponing measure
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.

www.kpias.net
(iv) Precautionary duties must not only be triggered by the suspicion of
concrete danger but also by concern or risk potential.

M.C. Mehta v Union of India (CNG Vehicle Case) (AIR 2002 SC 1696)

The supreme court observed that any ‘auto-policy’ framed by the

Government must, therefore, of necessity conform to the constitutional
principles well as overriding statutory duties cast upon the government
under the EPA. The auto policy must adopt a ‘precautionary principles’ and
make informed recommendations which balance the needs of transportation
with the need to protect the environment.

The “polluter pays” principle came about in the 1970's when the importance
of the environment and its protection was taken in world over. It was
subsequently promoted by the Organization for Economic Cooperation and
development (OECD). The ‘polluter pays' principle as interpreted
by the 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.

In other words, Polluter should bear the cost of pollution as the polluter is
responsible for pollution’. The principle demands that financial costs of
preventing or remedying damage caused by pollution should lie with the
undertakings which cause pollution.

It may be noted that the polluter pays principle evolved out of the rule of
‘absolute liability’ as laid down by the apex court in Sriram Gas Leak Case.

Sustainable Development:

Sustainable Development means an integration of development and

environment imperative it means development in harmony with
environmental consideration. To be sustainable, development must possess
both economic and ecological sustainability. It is a development process
where exploitation of resources, direction of investment, orientation of
technology development and institutional changes are all in harmony.
Sustainable development also implies local control over the resource use,
and is the only path for conserving and promoting socio-economic wellbeing
in a democratic form.

'eco-development’ is a related concept. It is a process of ecologically sound

development, of positive management of environment for human benefits.
For example banning tree felling in reserve forests and permitting harvesting

www.kpias.net
 of minor forest products by rural poor and tribal; development of community
or common lands for rural subsistence needs of industries, towns and
villages. These are the components of the “new development strategies”. The
component of eco-developmental so includes alternative development
strategies; biogas, substitute for natural resources, social forestry, micro
irrigation and recycling of waste to prevent pollution

Vellore Citizens Case:

In a landmark judgment where the principle of sustainable development has

been adopted by the Supreme Court as a balancing concept, while rejecting
the old notion that development and environmental protection cannot go
together, the apex court held the view that sustainable development has
now come to be accepted as “a viable concept to eradicate poverty and
improve the quality of human life while living within the carrying capacity of
the supporting eco system.” Thus, pollution created as a consequence of
development must be commensurate with the carrying capacity of our
ecosystem.

FACTS - In this case, certain tanneries in the State of Tamil Nadu were
discharging untreated effluent into agricultural fields, roadsides, waterways
as open lands. The untreated effluent finally discharges in the river which
has the main source of water supply to the residence of Vellore. The
Supreme Court issued comprehensive directions for maintaining the
standards stipulated by the Pollution Control Board.

Observations:

The Supreme Court Observe that the “precautionary principle” and the
“polluter pays principle” are part of the Environment law of the country.
These principles 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 cause of the
environmental degradation
ii. Where there are threats of serious irreversible damages, lack of
scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation
iii. The “onus of proof “in on the actor /industrialist to show that his action
is environmentally benign.

www.kpias.net
DECISION: - The Supreme Court directed the Central government to
constitute an authority under sec. 3 of the Environment Act, 1986 and
confer on the said authority all the powers necessary to deal with the
situation created by the powers necessary to deal with the situation created
by the tanneries and other polluting industries in the State of Tamil Nadu.
The authority (headed by retired judge of the High Court) shall implement
the precautionary and polluter pays principles. The authority should
compute the compensation under two heads, namely, for reserving the
ecology and for the payment to individuals.

The Constitutional and Legislative measures – The Constitution of

India and Environment

To protect and improve the environment is a constitutional mandate. It is

the commitment for a country wedded to the ideas of a welfare State. The
Indian constitution contains specific provisions for environmental protection
under the chapters of Directive Principles of the State Policy and
Fundamental Duties. The absence of any specific provision in the
Constitution recognising the fundamental right to (clean and wholesome)
environment has been set off by judicial activism in the recent times.

Article 48A and 51 (A)(g)

A global adaption consciousness for the protection of the environment in the

seventies prompted the Indian Government to enact the 42nd Amendment
(1976) to the Constitution. The said amendment added Art. 48A to the
Directive Principles of State Policy, It Declares:-

“The State shall endeavor to protect and improve the environment and to
safeguard the forests and wildlife of the country”. A similar responsibility
imposed upon on every citizen in the form of Fundamental Duty –

Art. 51(A) (g)

“To protect and improve the natural environment including forest, lakes,
rivers and wildlife, and to have compassion for living creatures”

The amendments also introduced certain changes in the Seventh Schedule

of the Constitution. ‘Forest’ and ‘Wildlife’ were transferred from the State list
to the Concurrent List. This shows the concern of Indian parliamentarian to
give priority to environment protection by bringing it out the national
agenda. Although unenforceable by a court, the Directive Principles are
increasingly being cited by judges was a complementary to the fundamental
rights. In several environmental cases, the courts have guided by the

www.kpias.net
language of Art. 48A. and interpret it as imposing “an obligation” on the
government, including courts, to protect the environment.

In L.K Kollwal V State of Rajasthan, a simple writ petition by citizens of

Jaipur compelled the municipal authorities to provide adequate sanitation.
The court observes that when every citizen owes a constitutional duty to
protect the environment (Art.51A), the citizen must be also entitled to enlist
the court’s aid in enforcing that duty against recalcitrant State agencies. The
Court gave the administration six month to clean up the entire city, and
dismissed the plea of lack of funds and staff.

The Public Trust Doctrine, evolved in M.C. Mehta v. Kamal Nath, states that
certain common properties such as rivers, forests, seashores and the air
were held by Government in Trusteeship for the free and unimpeded use of
the general public. Granting lease to a motel located at the bank of the River
Beas would interfere with the natural flow of the water and that the State
Government had breached the public trust doctrine.

A matter regarding the vehicular pollution in Delhi city, in the context of Art
47 and 48 of the Constitution came up for consideration in M.C. Mehta vs.
Union of India (Vehicular Pollution Case). It was held to be the duty of the
Government to see that the air did not become contaminated due to
vehicular pollution. The Apex court again confirming the right to healthy
environment as a basic human right stated that the right to clean air also
stemmed from Art 21 which referred to right to life. This case has served to
be a major landmark because of which lead-free petrol supply was
introduced in Delhi. There was a complete phasing out old commercial
vehicles more than 5 years old as directed by the courts. Delhi owes its
present climatic conditions to the attempt made to maintain clean air.

The Ganga Water Pollution case: M C Mehta V. Union of India, AIR

1988, SC 1037

The owners of some tanneries near Kanpur were discharging their effluents
from their factories in Ganga without setting up primary treatment plants.
The Supreme Court held that the financial capacity of the tanneries should
be considered as irrelevant while requiring them to establish primary
treatment plants. The Court directed to stop the running of these tanneries
and also not to let out trade effluents from the tanneries either directly or
indirectly into the river Ganga without subjecting the trade effluents to a
permanent process by setting up primary treatment

In the very recent case of T.N. Godavarman Thirumulpad v. Union of India, a

case concerning conservation of forests, Justice Y.K. Sabharwal, held:

www.kpias.net
Considering the compulsions of the States and the depletion of forest,
legislative measures have shifted the responsibility from States to the
Centre. Moreover any threat to the ecology can lead to violation of the right
of enjoyment of healthy life guaranteed under Art 21, which is required to be
protected. The Constitution enjoins upon this Court a duty to protect the
environment.

Article 246

Art.246 of the Constitution divides the subject areas of legislation between

the Union and the States. The Union List (List I) includes defence, foreign
affairs, atomic energy, intestate transportation, shipping, air trafficking,
oilfields, mines and inter-state rivers. The State List (List II) includes public
health and sanitation, agriculture, water supplies, irrigation and drainage,
fisheries. The Concurrent list (List III) (under which both State and the
Union can legislate) includes forests, protection of wildlife, mines and
minerals and development not covered in the Union List, population control
and factories. From an environmental standpoint, the allocation of
legislative authority is an important one – some environmental problem
such as sanitation and waste disposal, are best tackled at the local level;
others, like water pollution and wildlife protection, are better regulated
uniform national laws.

Article 14 and Article 19 (1) (g)

ART. 14 states: “The states shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India.’’ The
right to equality may also be infringed by government decisions that have an
impact on the environment. An arbitrary action must necessary involve a
negation of equality, thus urban environmental groups often resort to Art.14
to quash arbitrary municipal permission for construction that are contrary
to development regulations.

Article 21

(Right to Wholesome Environment)

"No person shall be deprived of his life or personal liberty except according
procedure established by law."

In Maneka Gandhi v Union of India, the Supreme Court while elucidating on

the importance of the ‘right to life’ under Art. 21 held that the right to life is
not confined to mere animal existence, but extends to the right to live with
the basic human dignity (Bhagwati J.)

www.kpias.net
Similarly while interpreting Art.21 in Ganga Pollution Case as discussed
before, Justice Singh justified the closure of polluting tanneries observed:
"we are conscious that closure of tanneries may bring unemployment, loss
of revenue, but life. Health and ecology have greater importance to the
people."

Environmental Laws in India

THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT 1974

The Act prohibits discharge of pollutants into water bodies beyond a given
standard and lays down penalties for non-compliance with its provisions.
It set up the Central Pollution Control Board (CPCB) which lays down
standard for the prevention and control of water pollution. At the state level,
the State Pollution Control Board (SPCB) functions under the direction of
CPCB.

The functions of CPCB have been laid down in section 16 whereas the
functions of SPCB have been laid down in section 17.

The sampling of effluents for test has been laid down in section 21.

In Delhi Bottling Co. Pvt. Ltd. V. CPCB, AIR 1986 Del 152, it was found that
the representatives of board got the samples analysed from a non-recognized
laboratory by the state. The court held that since section 21 was not
complied upon, the test results were inadmissible as evidence.

The Air (Prevention And Control Of Pollution Act, 1981)

To implement the decision taken in the Stockholm Conference, the

Parliament enacted the Air Act under Article 253.
It controls mainly air pollution and its abatement. Also establishes air
quality standards. The Central and State Boards set up under section 16
and 17 independently notify emission standards.
Every industrial operator within a declared air pollution area, must obtain a
permit from the State Board (Sec-21(1) and (2)).
Within four months from the date of application for the permit, the board
must complete the formalities – either grant or refuse consent.

Power of the Boards:

 Power of entry and inspection

 Power to take samples

www.kpias.net
 Power to give directions

Other important laws:

1986 - The Environment (Protection) Act authorizes the central government

to protect and improve environmental quality, control and reduce pollution
from all sources, and prohibit or restrict the setting and /or operation of any
industrial facility on environmental grounds.

1989 - The objective of Hazardous Waste (Management and Handling) Rules

is to control the generation, collection, treatment, import, storage, and
handling of hazardous waste.

1991 - The Public Liability Insurance Act and Rules and Amendment, 1992
was drawn up to provide for public liability insurance for the purpose of
providing immediate relief to the persons affected by accident while handling
any hazardous substance.

2000 - The Municipal Solid Wastes (Management and Handling) Rules,

apply to every municipal authority responsible for the collection,
segregation, storage, transportation, processing, and disposal of municipal
solid wastes.

2002 - The Noise Pollution (Regulation and Control) (Amendment) Rules lay
down such terms and conditions as are necessary to reduce noise pollution,
permit use of loud speakers or public address systems during night hours
(between 10:00 p.m. to 12:00 midnight) on or during any cultural or
religious festive occasion.

1927 - The Indian Forest Act and Amendment, 1984, is one of the many
surviving colonial statutes. It was enacted to ‘consolidate the law related to
forest, the transit of forest produce, and the duty leviable on timber and
other forest produce’.

1948 – The Factories Act and Amendment in 1987 was the first to express
concern for the working environment of the workers. The amendment of
1987 has sharpened its environmental focus and expanded its application to
hazardous processes.

Writs and PILs for Safeguarding the Environment

A writ petition can be filed to the Supreme Court under Art.32 and the High
Court under Art.226, in the case of a violation of a fundamental right. Since
the right to a wholesome environment has been recognised as an implied
fundamental rights, the writ petitions are often restorted to in environment

www.kpias.net
cases. Generally, the writs of Mandamus, Certiorari and Prohibition are
used in environmental matters. For instance, a Mandamus (a writ to
command action by a public authority when an authority id vested with
power and wrongfully refuses to exercise it ) would lie against a municipality
that fails to construct sewers and drains, clean street and clear garbage
(Rampal v State of Rajasthan) likewise, a state pollution control board may
be compelled to take action against an industry discharging pollutants
beyond the permissible level.

The writs of certiorari and prohibition are issued when an authority acts in
excess of jurisdiction, acts in violation of the rules of natural justice, acts
under a law which is unconstitutional, commits an error apparent on the
face of the record, etc. For instance, a writ of certiorari will lie against a
municipal authority that consider a builder’s applications and permits
construction contrary to development riles e.g. wrongfully sanctions an
office building in an area reserve for a garden. Similarly, against water
pollution control board that wrongly permits an industry to discharge
effluents beyond prescribe levels.

A writ of Certiorari will lie against a municipal authority that permits

construction contrary to development rules or acts in excess of jurisdiction
or in violation of rules of natural justice for instance wrongly sanctioning an
office building in an area reserved for garden. When a fundamental right,
which includes right to wholesome environment is violated Art. 32 and 226
provide appropriate remedy.

In E.Sampath Kumar v. Government of Tamil Nadu, 1998, AIHC 4498

The party an individual was troubled by the excessive noise pollution and
vibrations caused by electrical motors, diesel engines, and generator used by
a Hotel. The high court held that an affected person can maintain a writ
petition while rejecting the hotel owner’s plea that a civil suit would be
proper remedy.

Public interest litigation describes legal actions brought to protect or enforce

rights enjoyed by members of the public or large parts of it.

In a public interest case, the subject matter of litigation is typically a

grievances against the violation of basic human rights of the poor and
helpless or about or about the content or conduct of government policy this
litigation is not strictly adversarial (in a adversarial procedure, each party
produces his own evidence tested by cross-examination by other side) and in
it a judge play a large role in organising and shaping the litigation and in
supervising the implementation of relief. Since the 1980s public interest

www.kpias.net
litigation (PIL) has altered both the litigation landscape and the role of the
higher judiciary in India. Supreme Court and High Court judges were asked
to deal with public grievances over flagrant human rights violations by the
state or to vindicate the public policies embodied in statutes or
constitutional provisions. This new type of judicial business is collectively
called public interest litigation.

In Ramdas Shenoy v The Chief Officer, Town Municipal Council, Udipi a rate
tax payer’s right to challenge an illegal sanction to convert a building into a
cinema was upheld by Supreme Court.

In Mahesh R Desai V. Union of India, a journalist complained to the

Supreme Court that the national coastline was being sullied by unplanned
development that violated a Central Government directive. The Supreme
Court registered the letter as a petition, requested the court’s legal aid
committee to appoint a lawyer for the petition and issued notice to the
Union Government and the government of the all States.

Taj Mahal Case:

In Taj Mahal's case (M C Mehta V. Union of India, AIR 1997, SC 734), the
Supreme Court issued directions that coal and coke based industries in Taj
Trapezium (TTZ) which were damaging Taj should either change over to
natural gas or to be relocated outside TTZ. Again the Supreme Court
directed to protect the plants planted around Taj by the Forest Department
as under:

The Divisional Forest Officer, Agra is directed to take immediate steps for
seeing that water is supplied to the plants... The Union Government is
directed to release the funds immediately without waiting for receipt of the
proposal from the U.P. Government on the basis of the copy of the report.
Funding may be subsequently settled with the U.P. Government, but in any
set of circumstances for want of funds the officer is directed to see that
plants do not wither away.

The Court held that 292 industries located and operating in Agra must
changeover within fixed time schedule to natural gas as industrial fuel or
stop functioning with coke /coal and get relocated. The industries not
applying for gas or relocated are to stop functioning with coke/coal from 30-
04-97. The Shifting industries shall be given incentives in terms of the
provisions of Agra Master Plan and also the incentive normally extended to
the new industrial units.

www.kpias.net
The integration of the international principles of environmental law into the
Indian legal framework is an important consequence of the emergence of
Public Interest Litigation in the realm of environmental law. (Razzaque,
2004) In fact, the application and re-interpretation of international
legal principles in the Indian context reflect a greater concern with making
hazardous industrial enterprises responsible towards environmental
concerns. In M C Mehta v Union of India the Supreme Court extends the
principle of strict liability drawing from the Rylands v Fletchers case in
English law to formulate a principle of absolute liability whereby an
enterprise carrying out a hazardous activity is “absolutely liable” to
compensate for any harm arising from such activity. The principle of strict
liability in English common law states that “a person will be strict liable
when he brings or accumulates on his land something likely to cause harm
if it escapes, and damage arises as a natural consequence of its
escape.”(Razzaque, 2004: 210) However, in formulating a principle
of absolute liability, the Court contends that such liability is not subject to
any of the exceptions“ under the rule in Rylands v Fletcher.”

The Bhopal Gas Leak Case

The Bhopal disaster raised complex legal questions about the liability of
parent companies for the acts of their subsidiaries, the responsibilities of
multinational corporations engaged in hazardous activities, the transfer of
hazardous technologies and the applicable principles of liability. Bhopal was
inspirational factor for the judicial innovation in the area of evolving
principles of corporate liability for use of hazardous technology.

On December 3, 1984,highly toxic methyl isocyanides (MIC), which had been

manufactured and stored in Union Carbide’s chemical plant in Bhopal,
escaped into the atmosphere and killed over 3,500 people and seriously
injured about 2 lakh people.

The Bhopal gas leak disaster (Processing of Claims) Act, 1985 was passed by
parliament to ensure that the claims arising out of the Bhopal disaster were
dealt with speedily, effectively, equitably and to the best advantage of the
claimants.

High Court Judgment:

Justice Seth used English Rules of procedure to create an entitlement to

interim compensation (i.e. it is permissible for courts to grant relief of
interim payment under the substantive law of torts). Under the English
rules, interim relief granted in personal injury cases if a prima facie case is

www.kpias.net
made out. He said that “more than prima facie case have been made out”
against the Carbide.

He observed that the principle of absolute liability without exceptions laid

down in M.C. Mehta case applied more vigorously to the Bhopal suit. He
holds that Carbide is financially a viable corporation with $ 6.5 billion
unencumbered asset and $200millions encumbered assets plus an
insurance which could cover up to $250millions worth of damages. Given
carbide’s resources, it is eminently just that it meet a part of its liability by
interim compensation (Rs.250cr.)

In Union Carbide Corporation v Union of India (AIR 1990 SC 273), the

Supreme Court secured a compromise between the UCC and Government of
India. Under the settlement, UCC agreed to pay US $470 million in full and
final settlement of all past, present and future claims arising from the
Bhopal disaster. In addition to facilitate the settlement, the Supreme Court
exercised its extraordinary jurisdiction and terminated all the civil, criminal
and contempt of court proceedings that had arisen out of the Bhopal
disaster. It was declared by the court that if the settlement fund is
exhausted, the Union of India should make good the deficiency.

Review petition under Art.137 and writ petitions under Art.32 of the
Constitution of India were filed questioning the constitutional and under the
Bhopal Act (providing for the registration and processing of claims) and the
resultant categorization of the victims was also upheld. It was laid down that
there is no need to tie down the tortfeasor to future liability [UCC v UOI AIR
1992 SC 248].

Criminal Liability of Carbide Officials:

In UCC v UOI (AIR 1992 SC 248), the supreme court reinstate criminal
charges for homicide not amounting to murder’ (Sec. 304,Part II, IPC)
against top executives at Union Carbide( viz. nine UCIL employees and three
foreign accused, including Warren Anderson, the CEO) while uploading the
rest of the settlement. The CBI in December 1993 finally prepared the
documents necessary to extradite Warren Anderson.

Conclusion:

The powers vested to the Pollution Control Boards are not enough to prevent
pollution. The Boards do not have power to punish the violators but can
launch prosecution against them in the Courts which ultimately defeat the
purpose and object of the Environmental Laws due to long delays in

www.kpias.net
deciding the cases. Thus, it is imperatively necessary to give more powers to
the Boards.

What we need is social awareness from below, not laws from the above. No
law works out smoothly unless the interaction is voluntary. In order to
educate people about the environmental issues, there should be exhibition
of slides in the regional languages at cinema houses and television free of
cost. Further, as directed by the Supreme Court of India in M C Mehta Case
(M C Mehta V Union of India 1992, SC 382) school and college levels in
graded system so that there should be general growth of awareness.

www.kpias.net