Thursday, April 26, 2012



By K P C Rao.,

"Earth provides enough to satisfy every man's needs but not every man's greed."

-         Mahatma Gandhi

The word environment is a broad spectrum which brings within its hue hygienic atmosphere and ecological balance. Saving this planet Earth is now of utmost concern to the entire humanity. The world is witnessing a global crisis of environmental degradation. The future of the earth is entirely linked with the sustainable development that may take place in the various countries, both developed and developing. They have to adopt a visionary approach in consonance with the needs of the man and the earth. There is human threat to air, water and land.

India had been under the colonial rule for about two centuries and even prior to that there were minor kingdoms which did not pay attention to any sort of environmental concerns. After the independence the primary concern of the administrators was to eradicate poverty. Millions of people were below the poverty line and the literacy rate was also very poor. The population growth was at alarmingly high rate. All these factors contributed to serious environmental degradation and the persons who were mostly affected by this environmental degradation were the poor and the disadvantage sections of the society. They were the first victims of the poor sanitation, bad air, contaminated water, scarce food, fuel and fodder. For millions of Indians their only wealth and common property resources were threatened by environmental degradation.


Article 226 and Article 32 of the Constitution gives the right to citizens to approach the High Court and Supreme Court respectively to enforce their fundamental rights. It is also to be noted that Article 21 of the Constitution guarantees one of the important fundamental right to the citizens and says that no person shall be deprived of his life "right to life" contained in Article 21 has been given a very wide interpretation by the Supreme Court of India. Article 48-A which is one of the Directive Principles of State Policy states that the State shall Endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Part IV – A was added to the Constitution by the Constitution (42nd Amendment) Act, 1976 and Article 51-A(g) thereof specifically says that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.


Legal Principles Evolved

1)     Absolute  Liability

Rylands vs. Fletcher[1], the celebrated UK case decided in 1868, laid down a cardinal rule, “A person who, for his own purpose, brings on his land and collects and keeps there, anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.” In other words, the duty is not merely the general negative duty to refrain from active injury, but, a positive duty to guard and protect one’s neighbours, lest they suffer harm by reason of dangerous things artificially brought on one’s land – and the duty is absolute because it is independent of any negligence on the part of the defendant or his servants. This rule is referred to as the rule of “strict liability” or “absolute liability”. It is also referred to as “no fault liability”, where the wrong-doer will be liable with or without proof of fault by the claimant. However, it does recognize some exceptions also.

In the Indian context, the Supreme Court laid down the principle of “absolute liability” in Shriram Gas Leak case [M.C. Mehta vs. Union of India[2]].In this case it was held “Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to any one on account of an accident or in the operation of such hazardous or inherently dangerous activity resulting for example, escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortuous principle of strict liability under the rule in Rylands v Fletcher.” Furthermore, the Parliament has codified the principle of absolute liability by enacting the Public Liability Insurance Act 1991. Section 3 of the said Act says that, in any claim the claimant shall not be required to plead and establish that the death, injury or damage in respect of which the claim has been made was due to any wrongful act, neglect or default of any persons.

2)     Producer’s Liability

After strict liability, the concept of strict “Product Liability” was developed in Donogue vs. Stevenson[3],another well-known case. It is a kind of product related strict liability, which exempts non-interfering middle agencies such as links between maker and seller. The House of Lords held that a manufacturer of products, which he sells in such a form as to show that he intends them to reach the consumer in the form in which they left him, owes a duty to the consumer to take reasonable care. There is no contractual duty in this situation as there was no contract at all. But a tortuous duty is presumed by courts of law, breach of which makes the manufacturer liable. From this, emerged the “Consumer Rights and Product liability” rule.

3)     Public Trust Doctrine

American Courts

The American courts developed a Public Trust Doctrine to the effect that the resources like air, sea, water and forests were of such great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership.  These resources were the gifts of nature and they should be made freely available to everyone irrespective of the status in life.  State has the duty to protect the resources for the enjoyment of the general public rather than to permit their exploitation for commercial purposes by private owners.  The American courts emphasized that protection from ecological pollution was among the purposes of public trust.

Indian Courts

In its efforts to protect the environment, the Indian Judiciary in general have relied on the ‘public trust doctrine’, ‘precautionary principle’, ‘polluter pays principle’, ‘the doctrine of strict and absolute liability’, ‘the exemplary damages principle’, ‘the pollution fine principle’ and ‘inter-generational equity principle’ apart from the existing law of the land. Another guiding principle has been that of adopting a ‘model of sustainable development’. The consistent position adopted by the courts as enunciated in one of its judgments has been that ‘there can neither be development at the cost of the environment or environment at the cost of development’.

The position taken by the American Courts was quoted with approval by the Indian Supreme Court in M.C. Mehta v Kamal Nath[4].  Subsequently the Hinch Lal Tiwari V Kamala Devi and others[5] , the Supreme Court reaffirmed the view stating:

It is important to notice that material resources of the community like forests, ponds, hillock, mountains etc., are nature’s bounty.  They maintain delicate ecological balance.  They need to be protected for a proper and healthy environment which enables people to enjoy a quality of life which is the essence of the guaranteed right under Article 21 of the Constitution.


One of the earliest cases which came to the Supreme Court of India was Municipal Council, Ratlam, vs Vardhichand[6] followed by a series of other public interest litigations concerning vehicular pollution, illegal mining, pollution of Ganga water, pollution of water by tanneries, Taj Mahal.  In many of these cases, Expert Committee were constituted and the  court expanded the scope of Article 32 and said that in appropriate cases the court can award compensation to the affected party deviating  from the established principles of  exceptions to the ‘Rule of  strict liability’ laid down  in  Rylands vs Fletcher.[7]

Bhopal Gas Tragedy

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

Corporate Liability

The right to life is a fundamental right in India. So this macro-murder, the worst industrial carnage in history, is a huge blot. An untested facility was installed in India with no examination of the potential dangers, as if it were a mere soda factory. The act of installation in itself was a crime. A corporate Director usually does not personally commit crimes himself or herself. These are committed perhaps without their knowledge, but with their connivance and vicarious awareness. Nevertheless, culpability exists in a higher dimension of punitive jurisprudence. This is the basis of culpability in corporate crimes and offences. To plead that Union Carbide or Anderson did not physically switch on equipment or were not responsible for the acts of commission or omission that caused the leakage is no argument of innocence. But for the installation of such a facility, the deaths would not have happened.

Delhi Sees the Rising Sun

Sometime after the start made in Sachidanand Pandey[8] and the Bangalore Urban Development Authorities cases there followed a deluge of decisions by Justice Kuldeep Singh.  If today the children of Delhi are able to see the rising sun, which they could not during the previous quarter century, it is entirely due to the orders of Justice Kuldeep Singh directing the removal of several factories emitting black smoke and creating smog all over Delhi skies.

The Taj Case

If today a tourist can see the Taj Mahal in its white marble glory and not a grayish Taj Mahal it is again due to the order of Justice Kuldeep Singh prohibiting the construction of hazardous chemical factories within the radius of some kilometers around the Taj.  After quoting several authors and poets about the great beauty of the Taj, Justice Kuldeep Singh proceeded to consider the question  of preservation of the beauty and the glory of the great inheritance from India’s past which was turning grayish in a few patches here and there because of the pollution of the atmosphere caused mainly by Sulpher dioxide gas emitted by Mathura Refinery and other industries in the surrounding areas.  After considering at great length the question of prevention of discolouration of the white marble of the Taj, Justice Kuldeep Singh directed some of the industries to switch over to natural gas instead of other fuels which they were hitherto using and, where that could not be done, he directed the closure and removal of the factories elsewhere.

Shrimp Culture

In S. Jagannath v Union of India [9]  noticing the extensive damage to agricultural land and otherwise by shrimp farming along with coast, the Supreme Court gave appropriate directions for the regulation of shrimp farming and also directed the Government of India to appoint an authority, under the provisions of the Environmental Protection Act 1986, conferring upon such authority all the powers necessary to save the ecologically fragile coastal areas and in particular to deal with the situation created by the shrimp culture Industry.

Polluter Pays

In Calcutta Tanneries[10], Taj Trapezium[11] and other cases, the Court developed , the “Pollutor pays Principle ‘ that one who pollutes the environment must pay to reverse the damage caused by his acts.  In Dr. Ashok V Union of India [12] in regard to insecticides and chemicals hazardous to health., notwithstanding the Insecticides Act, 1968, the Court issued directions to the government to constitute a committee from various ministries involved to take suitable measures in future in respect of such insecticides and chemicals.  In theOleum Gas case [13] noticing the various hazards to the workmen and to the community which an industry posed, the court recognized the absolute liability of the industry to prevent any and all such hazards in a suitable manner well proportioned to the magnitude and capacity of the enterprise.

Emission of Gases by Motor Vehicles

In M.C. Mehta v Union of India, the Apex Court, after noticing the gravity of the situation concerning the atmospheric pollution of Delhi caused by the emission of gases from motor vehicles directed the entire city bus fleet to change over to single fuel of CNG and further that no eight year old bus shall ply except on CNG or other clean fuel. The order of the Court was stated to be not an order in personam and therefore binding on all persons whether they were parties to the litigation or not. The Court further added that the directions given were intended to protect the health of the people and, therefore pursuant to the right to life guaranteed by Article 21 of the Constitution. The directions therefore overrode provisions of every statute including the Motor Vehicles Act as they would militate against the constitutional mandate of Article 21.

Protection of Ganga and Yamuna

In one of the earliest cases M.C. Mehta v Union of India, Mehta who turned out to be an environmental crusader brought an action concerning the pollution of the waters of the Ganga River as mostly the result of wastage and effluent discharge into the waters of the river by several industries and factories near the banks of the river. Mehta was able to persuade the court to issue certain directions to protect the waters of the river from further pollution.

Noise Pollution

In Noise Pollution v In Re[14] the question of noise pollution and its prevention was considered in great detail by the Apex Court.  It stated with the statement that freedom from noise pollution was a part of right to life guaranteed by Article 21 which extended far beyond mere survival or existence but included ‘ a right of persons to life with human dignity , which included all aspects of life, which go to make a person’s life  meaningful, complete and worth living.  Human life has its charm and there is no reason why life should not be enjoyed along with all permissible pleasures.  After referring to the innumerable causes and grave consequences of noise pollution, the Court issued directions for the control of noise pollution which they considered as one of the most common of human problems dangerous to health and harmonious living.


Occasionally, conflicts arise between ecological protection and development activity. In the case of Goa Foundation, Goa v Diksha Holdings Pvt Ltd [15] the court observed that in cases involving such a conflict it was the duty of the courts to strike a balance between the two. Perhaps it was not a wise statement while developmental activities can be shifted elsewhere, ecological protection cannot brook any disturbance. Ecological protection is the undoubted need of the hour considering the disturbing, destructive tendencies evidenced by ecological disturbances throughout the world.  However, the idea expressed in the ‘Goa case’was further pursued in Karnataka Industiral Areas Development Board v C. Kenchappa [16] where the learned judges held “A nation’s progress largely depends on development, therefore the development cannot be stopped but we need to control it rationally. No government can cope with the problem of environmental repair by itself alone; people’s voluntary participation in environmental management is must for ‘sustainable development’.

Forest Conservation Law has also been significantly been impacted through another case, Centre for Environmental Law (WWF) – India v. Union of India[17] concerning national parks and sanctuaries. While hearing this case, the Supreme Court through one of its interim orders has restrained all State Governments from de-reserving national parks, sanctuaries and forests.

The National Commission that is set up to review the working of the Constitution of India in its report submitted to the Central Government has recommended the addition of a separate article (30-D) in the Constitution of India which would confer the stature of a fundamental right within the Indian Constitution to the right to save drinking water, clean environment etc.

National Green Tribunal

The National Green Tribunal (NGT) Bill was passed by the Lok Sabha on 30th April, 2010 seeks to create special courts for environmental matters. The NGT comes in response to the 186th Report of Law Commission of India and the suggestions made by the Supreme Court to Constitute Environmental Courts. The NGT Bill, 2009 is meant to replace NEAA Act of 1997 and NET Act of 1995.

The National Green Tribunal will replace the existing National Environment Appellate Authority (NEAA).

The birth of NGT is a consequence of a “reformed approach of the Government to environmental governance”, and in the right direction to address about 5,600 environment related cases pending in the courts, provided that the proposed body should not be made parking bay of retired bureaucrats and technocrats, who care little for forests, animals, soil, air and water.


The Father of the Nation, Mahatma Gandhi, perhaps foresaw as early as in the 1920s the developments in the context of sustainable development in 2012. As writers and philosophers, and admirers and critics of Gandhi admit, here is a man whose vision was so forward-looking and inclusive that almost all of what we intend to define and re-define, and at the same time struggle to realise, was noted, analysed, linked and suggested by this great human being decades before.

Distinguishing between the needs and wants of human society, the Gandhian vision and philosophy are finding new breath in today's discourses related to reducing consumerism, respect for nature and ensuring equitable development.

Gandhiji's focus on sustainable development came decades before we understood the meaning of such development. Sanitation, maternal health, primary education, gender balance, reduction of hunger, and ensuring partnerships for development formed the basis for Gandhi's life and practice long before the Millennium Development Goals were designed. His ‘antyodaya approach’ is something that will remain the basis for sustainable development not just in 2012 but many decades and centuries to come.

The issue of inter-generational equity that forms the basis of our discourse on sustainable development was aptly captured by Gandhi thus: “The earth, the air, the land and the water are not an inheritance from our forefathers but on loan from our children. So we have to hand over to them at least as it was handed over to us.” The practice today is exactly the opposite for many. Enjoy what you have as tomorrow is not certain. How do we reconcile such change of attitudes?

[1] Rylands vs. Fletcher; (1868) LR 3 HK 330
[2] M.C. Mehta vs. Union of India; (1987) 1 SCC 395, AIR 1987 Sc 965
[3] Donogue vs. Stevenson; 1932 AC 562
[4] M.C. Mehta v Kamal Nath (1997) 1 SCC 388
[5] Hinch Lal Tiwari V Kamala Devi and others (2001)6 SCC 496
[6] Municipal Council, Ratlam, vs Vardhichand, AIR 1980 SC 1622
[7] Rylands vs Fletcher; (1868) LR 3 HL 330
[8] Sachidanand Pandey v. State of West Bengal , AIR 1987 SC 1109
[9] S. Jagannath v Union of India AIR 1997 SC 811
[10] M.C.Mehta v Union of India – (1997) 2 SCC 411
[11] M.C. Mehta v Union of India and others; 1997(2)SCC 353 (356, 376, 384, 385, 386 and 387)
[12] Dr. Ashok V Union of India ;AIR 1997 SC 2298
[13] Oleum Gas case AIR 1987 SC 965
[14] Noise Pollution v In Re (2005) 5 SCC 733
[15] Goa v Diksha Holdings Pvt Ltd AIR 2001 Sc 184
[16] Karnataka Industiral Areas Development Board v C. Kenchappa  2006 AIR SCW 2546
[17]  Centre for Environmental Law (WWF) – India v. Union of India ; WP No 337 of 1995

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