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The Role Of Indian Judiciary In Upholding International Principle Of Environmental Law

Indian Judiciary which is the most powerful body protecting environment by providing different sort of Legislation provision section i.e. Environment Protection Act 1986 to give effect to the significant right of man to live in a sound environment and corresponding duty on stack and individual to ensure environmental preservation and conservation which is analyse and step taken by judiciary by adopting some of the international principle by an international authority created protocols, treaties, statues ,laws and bylaws to be duty followed by countries such as Rio declaration Stockholm Convention, Kyoto Protocol, UNFCCC, Precautionary Principle, Polluter pays Principle and public trust doctrine

As civilization advanced, man's materialism increased. He lived primarily for the purpose of accumulating more and greater sums of material wealth. This encouraged technological and scientific advancement, opening the door for the use of natural resources.

Rapid and unchecked industrialisation created a potential threat from environmental degradation. The Second World War and the industrial disaster caused extensive pollution and harm to the environment of the planet. People started to understand that if this continued, man's entire existence would be in danger.

Environment is the well spring of life on earth like water, air, soil etc and determine the presence, development of improvement of humanity and all its activities. Many new innovations like thermal power, atomic plant taken to protect an environment. In recent years sustained focus on the role played by judiciary in develop of monitoring the implementation of measures for pollution, control, conservation of forest of wildlife protection.

With respect to environmental law, the legislation authority in India has come on with various statutes like Environment Protection Act; Water control Act, Air Pollution Control Act and Wildlife Protection Act with their respective rules of bylaws. Many international principles uphold by an Indian Judiciary i.e

Objective Of The Study
The main object of this study is to understand on how the central government of India is working to improve and protect environmental quality, reduce and control pollution from the sources, and restrict or prevent the setting and operation of any industrial facility on environmental grounds

The Indian Judiciary has played a vital role in promoting sustainable development and fostering public and private industry while minimising the role of irreversible damage to the natural environmental, which is necessary to maintain the planets and India healthy flona and fauna. The Supreme court of India after following bylaws of international authorities made a tremendous harm to the environment and ecological protection, as well as protection of forest wildlife, among others.

Despite the court limited jurisprudence, it played an importance role in this regard. True, we have enough environmental regulations, but their executing is in hand of administrative authorities an in regard, excellent governance devoid of corruption is the most important requirement for environmental protection

Research Methodology
The method of research that is used while doing this research paper is theoretical research 'Doctrinal Method of Research' as the research is based on secondary sources of information such as Internet Articles, Journals, Text books, etc.

Research Questions
  1. How is government of India working on conserving environment and improving the quality of environment?
  2. What are the Principles derived from the Courts in India in order to protect the environment?

Scope Of Study And Limitation
In this Research paper I have covered all the main doctrines which the judiciary system has brought up by various judgements in protecting the environment and for its conservation of natural resources

Environmental Protection

Due to the lack of commercial growth and political unrest in India during the post-independence era, environmental conservation was not a top priority. After independence, creating markets, industries, and new jobs for the locals became the main focus.

However, environmental protection became a precedence after the Bhopal Gas tragedy. Following this incident, the scope of environmental control in the country expands, and judicial activity rises as well. People began to express worry after the first environmental protection initiative was implemented in 1986.

At the international level, environmental law is a recent development. Even three years before the Stockholm Conference, India's IV Five-year Plan (1969-1974), whose goal is for harmonious development, recognised the oneness of nature and man and included environmental considerations. Only on the basis of a thorough assessment of environmental challenges is such planning feasible.

There are situations where receiving appropriate and timely environmental advice could have aided in project design and in reversing adverse environmental effects that may indicate resource loss. Therefore, it is essential to incorporate the environmental component into planning and development. As a high-level advisory body to the government, a national council on environment planning and coordination was established. This committee handled environmental-related problems.

The higher judiciary in India did not invent the right to live in a sanitary and safe environment. For more than a century or so, the legal system in general and the judiciary in particular have been able to forecast the right. The right to live in a clean and healthy environment is now a fundamental right (FR); this is the sole change that the Indian Constitution forbids in the current industrialised age.

The High Court determined it to be a basic right in the latter half of the 19th century, but it was not a fundamental right because it was covered by other laws such the Law of Torts, the Indian Penal Code, the Civil Procedure Code, Code of Criminal Procedure, etc. Environmental rights are seen as third generation rights in the modern, developing legal world.

Polluter Pay Principles

According to the widely accepted "polluter pays" principle, individuals who cause pollution should be responsible for paying the costs associated with controlling it in order to protect public health and the environment. For instance, a plant is often held accountable for the proper disposal of any potentially toxic waste that is produced as a by-product of its operations.

The larger concepts that govern sustainable development globally include the polluter pays principle. This principle has become a very popular concept lately. If you make a mess, it your duty to clean it up. Certain case law in which polluter pay Principle applied is Vellore Citizen Welfare forum V. Union of India. The case is as follows: -

In the present case the Petitioner- Vellore Citizens Welfare Forum, filed a PIL under Article 32 of the Constitution. The Petition was filed against the water pollution caused due to excessive release of pollutants by the tanneries and other industries in the State of Tamil Nadu into the river Palar. Palar River was the main source of water for the livelihood of the surrounding people.

Later, the Tamil Nadu Agricultural University Research Centre, Vellore discovered that approximately 35,000 hectares of agricultural land has turned either entirely or partially barren and not fit for cultivation. This is one of the landmark cases whereby the Supreme Court critically analysed the relationship between environment and industrial development.

Issue Raised:
  • Whether the tanneries should be permitted to keep on working at the expense of the health of individuals and the environment?
The Supreme Court after hearing both the parties and examining the report ruled making all efforts to maintain a harmony between environment and development. The Court observed that these Tanneries are the major foreign exchange earner to the country and also provide employment to several people. But at the same time, it harms the environment and poses a health hazard to everyone.

The Court ruled in favour of Petitioners and directed all the Tanneries to deposit a sum of rupees ten thousand in the office of Collector as fine. The Court further directed the State of Tamil Nadu to award Mr M. C. Mehta with a sum of Rupees Fifty thousand as a token of appreciation towards his efforts in protecting the environment. The Hon'ble Supreme Court also made it a point to emphasize on the formation of green benches in dealing with matters related to the protection of the environment.

Precautionary Principle

The precautionary principle (or precautionary approach) is a broad epistemological, philosophical and legal approach to innovations with potential for causing harm when extensive scientific knowledge on the matter is lacking. It emphasizes caution, pausing and review before leaping into new innovations that may prove disastrous.

When there is a risk of harm from a certain decision (such as following a particular course of action) but no definitive proof is yet available, the notion is frequently invoked by policymakers. For instance, a government may decide to delay or limit the broad use of a medication or innovative technology until it has undergone extensive testing. The guiding principle recognises that while advancements in science and technology have frequently been extremely beneficial to humanity, they have also played a role in the emergence of new dangers and risks.

It indicates that when a reasonable risk has been identified by science, society has a duty to safeguard the public from exposure to such harm. It is only appropriate to loosen these restrictions after additional scientific findings are made that offer solid support for the claim that nothing bad will happen.

Precautionary Principle reviewed from the Vellore Citizen Forum case which developed the following three concepts i.e.
  1. Environment Measure must anticipate, Prevent and attack the case of environmental degradation
  2. Lack of Scientific certainty should not be used as a reason for postponing measures
  3. Onus of proof is on the actor to show that his actions is benign

Absolute Liability

The rule of absolute liability, in simple words, can be defined as the rule of strict liability minus the exceptions. In India, the rule of absolute liability evolved in the case of MC Mehta v Union of India[1]. This is one of the most landmark judgments which relates to the concept of absolute liability. The case is as follows

In the centre of a population of 200,000 people in the area of Kirti Nagar, Shriram's Food and Fertiliser factory, Delhi was situated, which produced products like hard technical oil and glycerine soaps. M.C. Mehta, a social activist lawyer, submitted before the Supreme Court a writ petition seeking an order for closure and relocation of the Shriram Caustic Chlorine and Sulphuric Acid Plant to an area where no real danger to the people's health and security will exist. Pending disposal of the petition, the Supreme Court allowed the plant to restart its capacity and work.

On 4 and 6 December 1985, Oleum gas leaked from one of its units during the pending lawsuit, causing substantial harm to local residents as a result of the plant's gas leakage. As stated by the petitioner, a lawyer who practised in the Tis Hazari Courts also died as a result of oleum gas inhalation. As a result of the collapse of the structure on which it was built, the leakage resulted from the bursting of the tank containing oleum gas, and it generated fear among the citizens residing there.

The people had hardly recovered from the shock of this tragedy when, within two days, another leakage occurred, though this time a minor one, due to the escape of oleum gas from a pipe's joints, after which the claims for compensation were filed, for the people who had suffered damage as a result of Oleum Gas escape, by the Delhi Legal Aid & Advice Board and the Delhi Bar Association.

The oleum gas leak case led to various issues to come into the light, which was:
  • Whether these harmful industries should be permitted to operate in these areas?
  • Whether a regulating mechanism should be established if they are permitted to function in such areas?
  • How should the liability and amount of compensation be determined in such cases?
  • How does Article 32 of the Constitution extend in these cases?
  • Whether the rule of Absolute Liability or Ryland v Fletcher is to be followed?
  • Whether 'Shriram' could be considered to be a 'State' within the ambit of Article 12?

Showing extreme concerns for the safety of the people of Delhi from the leakage of hazardous chemicals, J. Bhagwati stated the proposal to eliminate toxic and hazardous factories could not be followed because they still contribute to improving the quality of life. Industries must, therefore, be established even if they are harmful as they are necessary to economic and social development.

He was of the view that the risk or danger factor towards the public can only be hoped to be reduced by taking all the measures required to position these industries in an environment where the public is least vulnerable and the safety requirements are maximized in such industries. It was also noted that permanent factory closure would result in the unemployment of 4,000 workers in the caustic soda factory and which would add to the social poverty problem.

Consequently, the court ordered that the factory be opened temporarily under 11 conditions and appointed a committee of experts to control the activity of the industry.

The main provisions set up by the government were:
  • The Central Pollution Control Board appoints an inspector to check that emissions levels are in compliance with the Water (Prevention and Control of Pollution) Act, 1974 and the Air (prevention and control of pollution) Act, 1981.
  • To create a safety committee for employees.
  • Industry to publicize about the consequences and the proper treatment of chlorine.
  • To train and instruct the employees regarding the safety of the plant through audio-visual services and to install loudspeakers to alert neighbors in case of gas leakage.
  • Staff to use protective equipment, such as helmets and belts.
  • That the employees of Shriram furnish the undertaking of the Chairman of Delhi Cloth Mills Limited that they will be "personally liable" for paying compensation for any death or injury in the event of gas escape resulting in death or injury to staff or people living in the vicinity.

Public Trust Doctrine

The population grew in the second half of the 20th century, which also saw an increase in the overuse and depletion of the planet's natural resources. The increase of pollution, industrialization, conflict, poverty, and other factors were the primary causes of this depletion. But we never asked ourselves if there is a limit to how far we can rely on the earth's natural resources to support our existence.

Who is in charge of the natural resources of Earth? And for many years, we have witnessed conflict between those who use the earth's natural resources for their own personal gain and those who merely use them to meet their own needs.

People have the right to criticise how natural resources are used, which is why a Roman legal expert coined the phrase "public trust doctrine" more than 1500 years ago. They claimed that either everyone has access to resources or nobody does. This philosophy questioned the idea of using natural resources for personal gain. Many philosophers and legal experts are disputing the rights of the general public regarding the use of the planet's natural resources because this idea is regarded as an ethical principle.

In India, this doctrine evolved in the courts and it also has its significance in the constitution. There are various landmark judgments through which this doctrine was evolved. The article further explains public trust doctrine and examines various dimensions of Public trust doctrine in India.

Public Trust Doctrine's Purpose

The Public Trust Doctrine has historically only been used to defend rights related to fishing, hunting, boating, and navigation for standing or anchoring. However, given the current situation, it examines and analyses the state's resource management actions. It declares that the state is a trustee and that it is the owner of all resources. The state has a responsibility to safeguard, prevent, and protect the resources for usage by the general population. The state must carry out its constructive responsibility.

India's Public Trust Doctrine

In India, the Public Trust theory developed as a result of important rulings. The court ruled that because we adhere to common law, the public trust doctrine is part of our constitution's jurisprudence. The court applied this approach to safeguard the environment and took both procedural and substantive rights seriously. The court also cited various sections of the Indian constitution, including Article 48A, which inserted the right to a clean environment under Article 21 and Article 39, which addresses the equitable distribution of resources.

India's highest court went farther and emphasised the Public Trust Doctrine because that country does not have distinct environmental rights. There are numerous examples of this, such as when the Indian Supreme Court ruled that illegal mining in a region that caused environmental damage was prohibited because it violated Article 21 of the Indian Constitution and because a healthy environment is essential for defending and preserving the rights of individuals.

In another case, the High Court of Kerala ruled that when a government action harmed a freshwater supply, it could not be considered a violation of Article 21. The court connected the right to life and a healthy environment in the Bhopal disaster case. Government and private property rights in India are constrained by the public trust theory. It is unclear how the court applied the public trust theory after reviewing judgements and different interpretations.

Whether the public trust doctrine was a component of Indian law at one point or not is unclear. The court just noted that the idea should be included in India because it is included in the United States through numerous judgments, British law also contains it, and we also follow common law. However, the court determined that in order to safeguard people' rights and hold the state accountable for doing so under public trust doctrine.

The Public Trust doctrine didn't exist in India as a doctrine but it came through a landmark judgement which was M.C Mehta vs Kamalnath[2].

M.C Mehta v. Kamalnath
The public trust doctrine first alluded in India through this landmark case. This case is also known as SPAN Motel case. In this case, a PIL challenged the minister of environment Mr Kamalnath [respondent] who allowed SPAN Motel company to construct a hotel near the mouth of river Beas in Himachal Pradesh and also allowed the company to change the course of the river for the construction by blasting the river bed.

The construction of the hotel was planned on land which was taken on a 99 years lease from the government. It was allowed by the ministry as well as the gram panchayat of that area. The supreme court held that "the public trust is more like an order for the state to use the public property for public purposes".

It is the duty of the state to protect the environment, lakes and public heritage and it can be only abdicated in a rare case when it is inconsistent with the public trust. The court observed that earth's natural resources are the gift of nature; it should be protected and it also stated that the values and law must adhere to the environment.

The court observed that the Public at large is beneficiary of the earth resources like water, air and wetlands and as the state is the trustee it is the obligation of the state to protect these resources and shall not give it to private ownership for the fulfilment of its own goal.

The court cited United States law review, experts on environmental law to protect the environmental rights. For example, the court cited a lengthy passage from Harvard environmental law review and the court also stated Justinian saying on public trust doctrine and also quoted Joseph sax to justify its notion.

The court asked the company to pay compensation for the restoration of the environment of that area under the polluter pay principle.

Doctrine Of Sustainable Development

The world commission on environmental and development in its report prominently known as the Brundtland Report (1987) which highlight the concept of sustainable development.

Which specifies that development that meets the needs of the present without compromising the ability of the future generation to meet their own needs. The principle of sustainable development emphasises on two basic needs, firstly, need for socio-economic development and secondly, need of limitation imposed on the environment's capability to cope with the present and future requirements.

This is the need for the count to strike a balance between development and environment. According to chairperson Ms. Brundtland's study, commonly known as the Brundtland report, the goal of sustainable development is to meet the requirements of the present without sacrificing the capacity of future generations to meet their own needs. Former World Bank President James D. Yolkenson said, "It is for us to think as to what kind of world we want, with reference to sustainable development.

Do we want to leave the worst possible planet to the next generation, one in which a great number of people perish from hunger, climate change, declining biodiversity, and insecure socioeconomic conditions? Volkenson's observation demonstrates unequivocally that the pursuit of sustainable development is not limited to maximising people's enjoyment in the here and now.

Sustainable development involves a multi-faceted approach i.e. (1) economic, (2) human, (3) environmental, and (4) technological. It is a process which seeks to bring improvement in the quality of human life along with conservation of the ecological system. Thus, development and environment, both are inter-dependent and therefore, there cannot be development without protection of environment, nor can there be conservation of environment without development.

The Fundamental goals of sustainable development
The three basic goals of sustainable development are:
  • To maintain production of goods and services for development and efficiency.
  • Manage natural resources, including the preservation of biological diversity, and maintain biological integrity.
  • The third goal is to maintain and improve overall quality of life by implementing the equitable distribution of wealth and material resources.
A.P. Pollution Control Board v. M.V. Nayudu[3], the Apex Court observed that where the State Government makes an attempt to balance the need of the environment and need of the economic development, it would not be proper to prohibit it from doing so. In such a case, it would be safer to apply the 'protective principle' and the 'principle of polluter pays', keeping in mind the principle of sustainable development and the 'principle of inter-generational equity!

Objectives Of The Judiciary

In India, environmental contamination has long been an issue. As a result, the framers of the Constitution had already incorporated Articles 47, 48, and 48A. In accordance with these provisions, the state has obligations to safeguard the environment and preserve the nation's natural resources. Since India was a signatory to the Stockholm Declaration of 1972, the Parliament added Article 51(1)(g) to the constitution. According to this article, people have a duty to protect and enhance the natural environment, which includes woods, lakes, rivers, and wildlife, as well as to show compassion for all living things.

In addition, the Parliament passed a number of legislations to combat pollution, including the Environmental (Protection) Act 1986, The Water (Prevention and Control of Pollution) Act 1974, The Air (Prevention and Control of Pollution Act 1981, The Hazardous Wastes (Management and Handling) Act 1972, The Biological Diversity Act 2002, etc. to protect the Environment.

The public generally has a positive opinion of the Supreme Court of India compared to the state's legislative and executive branches because it is a respected institution. The Supreme Court has dealt with a difficult, complicated, and fast evolving field of technology and multi-disciplines successfully. A comprehensive Indian environmental legislation has been developed thanks to the multiple advancements brought about by judicial activism.

Thus, the Supreme Court of India has demonstrated its superiority in the area of environmental justice administration not only before the legislative and executive, but also before its counterparts in industrialised and developing countries, regardless of their age.

The judiciary is protected by the Indian Constitution from the influence of the legislative and executive branches of government, making it less susceptible to pressure from both.

Five sections make up the remaining portion of the document. The next section explores the body of writing already written about sustainable development. Part 3 discusses how important it is for the Indian courts to interpret laws in accordance with the sustainable development theory, and Part 4 discusses a court decision on environmental protection. The final portion contains the conclusion and suggestions.

As Judicial authority is the supreme authority in body in India. Judiciary made up mercy legislation for provide protection for the environment not only to nature but also to human and its surrounding. The environment protection act 1986 is:
  • Enacted with the prime motto of providing protection and improvement of the environment and the things associated with it
  • To take strict action against those who harm the environmental
  • To safeguard the better environment and environmental condition
  • To apply the decision made by United Nations of Conference on Human Environment which was held in year 1972 in Stockholmes
  • To enforce law regarding the protecting of the environment in the regions, which are not including in the Prevailing law

The main purpose of the judiciary to make environment protecting as a fundamental right which is not only obliged on state but also to individual Environment protection will lead to better surrounding for human. By providing sustainable development awareness government brings up the knowledge and those who don't follow this on those who pause the environment will be backed by sanctions by applying the principle laid down by the UNCHE

Methods Adopted By Judiciary

Certain Methods has been adopted by the judiciary to protect the environment from being polluted. Certain principles are not enough to provide protection following approaches to be laid down which highlights the role of judiciary in protecting environment:
  1. Right to A wholesome Environment: Judicial recognition of environmental jurisprudence, in backdrop of industrialization, reached 7 peak with the pronouncement of Supreme Court that right to wholesome environment is a part of Article 21 of Constitution

    In Charan lal Sahu Case supreme court held that the right to life guaranteed by Article 21 of Constitution include the right to a wholesome environment.
  2. Public Nuisance: The Judicial Response: In Rathore Municipal Council V Vandhichand, the SC is instant case is a landmark judgement in the history of judiciary activism in uploading the social justice component of the rule of the law by fixing liability on statutory authorities to discharge their legal obligation to the people in abating public nuisance and make up the environmental pollution free even if there is a budgetary constants J krishna Iyer observed; that social justice is due to and therefore the people must be able to tigger off the jurisdiction rested for their benefit to any public function
  3. Judicial Relief Encompasses compensation to victims: In Mc Mehta V Union of India Supreme Court laid down two concept principle of law: The power of the Supreme court to grant remedial relief for a proved infringement of fundamental right includes the power to award compensation. The judgement opened a new frontier in the Indian jurisprudence by including a new "no fault" liability standard for industries engaged in hazardous activities which has brought about radical change in the liability and compensation laws in India
  4. Fundamental Right to water: The fundamental right to water has evolved in India, not through legislative action but through judicial interpretation which was stated in case Narmada Bachao Andolen V Union of India

The Indian Judiciary Has Done Important Interpretation Of The Constitution Vis-Vis Health And Environment:

In case of Subhash Kumar v State of Bihar[4] the apex court of our country recognized Water and Air are an inalienable part of life under Article 21 of the Constitution of India.

In Vellore Citizen's case[5] judges have formulated the concept of Sustainable Development for the first time in India in Environmental Jurisprudence explaining the importance of the environment and health aspects of life.

In case of Rural Litigation and Entitlement Kendra, Dehradun v State of Uttar Pradesh[6] the apex court held that protection and safeguarding the rights of the people to live in a healthy environment has to be done even it bears some economical cost.

Water is the basic need for the survival of human beings and is part of the right t life and human rights as enshrined in Article 21 of the Constitution of India[1].

While incorporating certain features into the fundamental right of the Right to life and Liberty through wide interpretation the apex court had developed some important doctrines that are necessary to live in a healthy environment.

In light of the aforementioned decisions, we conclude that the Supreme Court now interprets the various environmental protection laws. When there is a lack of legislation, the legal system strives to fill in the gaps in this fashion. These fresh developments and expansions brought about by judicial activism in India open up a variety of options for aiding the nation. Since the loss of natural resources cannot be remedied, Indian courts are extremely aware of and vigilant about the specific character of environmental rights.

There are some references that must be taken into account. Law cannot be implemented unless it is successful and effective, and public awareness is a prerequisite for effective implementation. Consequently, having the proper consciousness is crucial.

In the case of M.C. Mehta v. Union of India, the Apex Tribunal likewise supported this declaration. In this case, the court effectively ordered the Union Government to give orders to all state and union governments to impose requirements as a condition of licence on all cinemas, including the requirement that no fewer than two slides or environmental messages be shown in the middle of each performance. The Indian Law Commission also filed its 186th report in support of the creation of Environment Courts.

In order for the judiciary to carry out its role more effectively, it is important to strengthen its capabilities by creating unique environmental courts, each with a professional judge to handle environmental cases/crimes.

  1. 1990 AIR 273, 1989 SCC (2) 540
  2. (1997) 1 SCC 388
  3. (1999(2) SCC 718) (dated 27.1.1999)
  4. 1991 AIR 420 1991 SCR (1) 5 1991 SCC (1) 598 JT 1991 (1) 77 1991 SCALE (1)8 ACT
  5. 1996 5 SCR 241, ILDC 443 (IN 1996), 1996 5 SCC 647, 1996 AIR 2715, JT 1996, 375
  6. 1985 AIR 652, 1985 SCR (3) 169

Written By: Suraj Reddy P

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