“THERE
CAN NEITHER BE DEVELOPMENT AT THE COST OF THE ENVIRONMENT OR ENVIRONMENT AT THE
COST OF DEVELOPMENT”- A CRITIQUE
By
Dr T Padma., LLM., Ph D (Law)
LLD
Scholar (A P Law University)
kethepadma@gmail.com
"Earth provides
enough to satisfy every man's needs but not every man's greed."
-
Mahatma Gandhi
BACKGROUND
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.
CONSTITUTIONAL
PROVISIONS
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.
ENVIRONMENTAL
JURISPRUDENCE
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.
IMPORTANT
DECISIONS - INDIAN COURTS
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 the Oleum
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.
ECOLOGICAL PROTECTION Vs DEVELOPMENTAL
ACTIVITIES
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.
CONCLUSION
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?
----------------------------------------------------------------------------------------------------------
[Published in Andhra Law Times, (2012(2)ALT) A Fortnightly Law Journal , March, 2012.]
[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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