Environmental Jurisprudence in India -Part 2

Cont. from Part 1

Some important court petitions and judgements

In the case of M.C. Mehta vs. Union of India (AIR 1987 SC 1086), Ganga Tanneries Case, the S.C. by further extending the scope of Article 21 held that the enterprise is strictly and absolutely liable to compensate – no exception…

In the Oleum Leak case 1985, a Writ Petition by Shri. M.C.Mehta in 1985 sought directions from the Hon’ble Court that various units of Shriram Industries were hazardous to the community and therefore be directed to closed; Judgment on 17.2.1986; Before that a leakage of Oleum gas in Dec 1985; Claim for compensation for victims; Issues raised involved substantial question of law relating to the interpretation of Article 21 and 32….

The Judgement-

            “… where there is a violation of a fundamental or other legal right of a person or class of persons who by reason of poverty or disability or socially or economically disadvantaged position cannot approach a Court of Law for justice, it would be open to any public spirited individual or social action group to bring an action for vindication of the fundamental or other legal right of such individual or class of individuals and this can be done not only by filing a regular writ petition but also by addressing a letter to the court”.

            “… Article 32 does not merely confer power on this Court to issue direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people particularly in the case of poor and the disadvantaged who are denied their basic human rights and to whom freedom and liberty have no meaning”

In L.K. Koolwal vs. State Of Rajasthan and Ors. 1986, petition for the problem of sanitation in Jaipur city.

the judgement-  “…..Article 51A gives a right to the citizen to move the Court for the enforcement of the duty cast on State, instrumentalities, agencies, departments, local bodies and statutory authorities created under the particular law of the State. It provides particularly under Clause (g) that the State and its instrumentalities and agencies should strive to protect and prove the natural environment….”

“…Mr. Koolwal has approached this Court in exercise of rights vested in him under Article 51A, though it is said to be a duty, that the Court should issue directions against the respondents to implement the law, the Municipal Law and to perform the obligatory duties cast on the State. Maintenance of health, preservation of the sanitation and environment falls within the purview of Article 21 of the Constitution as it adversely affects the life of the citizen and it amounts to slow poisoning and reducing the life of the citizen because of the hazards created, if not checked….”

“….In the result, I accept the writ petition and hereby direct the Municipality to remove the dirt, filth etc. within a period of six months and clean the entire Jaipur City and particularly in relation to the areas mentioned in the list submitted by the petitioner with this writ petition….”

“….Municipality cannot say that because of the paucity of fund or because of paucity of staff they are not in a position to perform the primary duties. If the Legislature or the State Govt. feels that the law enacted by them cannot be implemented then the Legislature has liberty to scrap it, but the law which remains on the statutory books will have to be implemented, particularly when it relates to primary duty….”

M. C Mehta v State of Orissa AIR 1992, writ petition to prevent pollution from sewage by SCB Medical College, Cuttack and Municipal Committee Cuttackwhich was causing health problems for citizens.

The Judgement-

“…The Indian Constitution, in the 42nd Amendment, has laid the foundation in Articles 48A and 51A for a jurisprudence of environmental protection. Today, the State and the citizens are under a fundamental obligation to protect and improve the environment, including forests, lakes, rivers, wildlife and to have compassion for living creatures…”

“…If there is necessity and desirability of having Sewage Treatment Plant or Plants, the same be set up without further delay. The Storm Water Drain may be operated in such a manner as to prevent entry of sewage water through it to the rivers. The exercises indicated by us and such other decisions and exercises as may be necessary to prevent pollution of water may be taken within one year from today…”

Some other noteworthy cases

• B. L Wadhera vs. Union of India AIR 1996 SC 2969
• Municipal Council Ratlam vs. Vardhichand and ors. AIR 1980 SC 1622
• Bangalore Medical Trust vs. B. S Muddappa AIR 1991 SC 1902
• Rampal vs. State of Rajasthan AIR 1981 Raj. 121
• Indian Council for Enviro-Legal Action vs. Union of India AIR 1996 SC 1446
• M. C Mehta vs. Union of India AIR 1997 SC 734 (Taj Trapezium case)
• Subhash Kumar vs. State of Bihar AIR 1991 SC 420
• Centre for Environmental Law (WWF) – India v. Union of India ; WP No 337 of 1995

Central and state acts for the protection of the environment are:

Central Acts

State Acts

The Shore Nuisance (Bombay and Cobalt) Act, 1853The Orient Gas Company Act, 1857The Indian Penal Code, 1860The Police Act, 1861The Cattle Trespass Act, 1871The Northern Indian  Canal and Drainage Act, 1873The Obstruction in Fairways Act, 1881The Indian Easements Act, 1882The Indian Forest Act, 1897 The Indian Fisheries Act, 1897 The Explosive Act, 1908 The Indian Port Act, 1908 The Indian Steam Vessels Act, 1917 The Poison Act 1919 The Indian Boilers Act, 1923 The Indian Forest Act, 1927 The Petroleum Act, 1934 The Inflammable Substances Act, 1942 The Mines and Minerals (Regulation and Development) Act, 1947 The Factories Act, 1948 The Atomic Energy Act, 1969 The Merchant Shipping (Amendment) Act The Radiation Protection Rules, 1971 The Wildlife (Protection) Act, 1972 The Code of Criminal Procedure, 1973 The Water (Prevention and Control of Pollution) Act, 1974 The Water (Prevention and Control of Pollution) Rules, 1975 The Territorial Waters and Maritime Zone Act, 1976 The Water (Prevention and Control of Pollution) Cess Act, 1977 The Water (Prevention and Control of Pollution Amendment) Act, 1978 The Indian Forest Act, 1978 The Water Supply and Swage Corporation Act, 1979 The Forest Conservation Act, 1980 The Air (Prevention and Control of Pollution) Act, 1981 The Water (Prevention and Control of Pollution) Amendment Act, 1983 The Merchant Shipping (Amendment) Act, 1983 The Environment (Protection) Act, 1986 The Environment (Protection) Rules, 1986 The Air (Prevention and  Control of Pollution) Amendment Act, 1987 The Motor Vehicles Act, 1988 The Public Liability Insurance Act, 1991 The National Environment Tribunal Act, 1995 The National Environment Appellate Authority Act, 1997 The Wild Life (Protection) Amendment Act, 2002 The Biodiversity Act 2002 The Water (Prevention and Control of Pollution) Cess (Amendment) Act, 2003

Orissa River Pollution Prevention Act, 1953Maharashtra Prevention of Water Pollution, 1969The Bengal Smoke Nuisance Act, 1905The Bombay Smoke Nuisance Act, 1912The Gujarat Smoke Nuisance Act, 1963The Mysore Destructive Insects and Pests Act, 1917The Andhra Pradesh Agricultural Pests and Disease Act, 1919The Assam Agricultural Pests and Disease Act, 1954The U.P. Agricultural Disease and Pests Act, 1954 The Kerala Agricultural Pests and Disease Act, 1958 The Andhra Pradesh Improvement Scheme  Act, 1949 The Acquisition of Land and Flood Control and Prevention of Erosion Act, 1955 The Delhi Restriction of Uses of Land Act, 1964 The Bihar Waste Lands (Reclamation, Cultivation and Improvement) Act, 1974

References

(1) Basu D.D., ‘Introduction to the Constitution of India’: Lexin Nexis Butterworths Wadhwa, 2008 , (2) http://www.ceeraindia.org/ ,(3) http://www.nlsenlaw.org/ , (4) http://www.indiankanoon.org/ ,(5) www.ecolex.org

Further Reading

• “The Environmental Politics of the Environment” by Hurrel & Kingbury
• “The Human Impact on Natural Environment” by Andrew Gaudie
• “Silent Spring” by Rachel Carson
• “A moment on the Earth – the coming age of environment optimism” by Gregg Easterbook
• “The politics of the Environment – ideas, activism, policy” by Neil Carter
• “Global warming – can civilization survive?” by Paul Brown
• “Growth of the soil” by Knut Hamsun

Return to Part 1

Article by Mr. Puskar Pande