PROJECT WORK

TOPIC :- MC MEHTA AND DEVELOPMENT OF

ENVIRONMENTAL JURISPRUDENCE IN INDIA

INTERNSHIP PERIOD:- 9TH - 29TH OF AUGUST

Submitted by:- submitted to:-

Hitesh kumar valeja mr. sanjay shukla

(student of department of legal registrar, central zone bench,

studies and research, national green trbunal,

barkatullah university, Bhopal) Bhopal)

Synopsis

Topic Page no. 1. Introduction. 3

2. Meaning of Environment. 3

3. Meaning of environmental jurisprudence. 3-4

4. Environmental Jurisprudence in India. 4-6

5. Hierarchy of environmental jurisprudence in India. 6-7

6. Judicial Activism and Environment Jurisprudence in India . 7-9

7. The Role of Indian Judiciary in Protection of Environment. 9

8. Materials and Methods adopted by Supreme Court. 9-11

9. Judicial Remedies for Environment Pollution in India. 12-15

10. Environmental Protection: The Judicial Approach. 15-16

11. Contribution of MC Mehta in environmental

Jurisprudence in India. 17-18

12. Role of MC Mehta in environmental jurisprudence

in India. 18-19

13. Some of the landmark cases fought by MC Mehta :- 19-23

MC Mehta (Taj Trapezium matter) v. union of india,1986

MC Mehta (Shriram food fertilizer case) v. union of india, 1987

MC Mehta (Kanpur Tanneries) v. union of india,1988

MC Mehta v. Kamal Nath, 1997

14. Role of National Green Tribunal in protection of environment. 24

15. Conclusion. 25

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Introduction Environmental Law is a developing branch of law in India. This growth is

conspicuous by the remarkable activism on part of the judiciary and the

legislature in the latter part of the 20th century. A large number of socio-

economic problems faced in the nation were discussed by the courts in various

cases over a broad range of issues which cropped up from time to time , with

the eventuality that old laws were sharpened to meet the changing societal

needs. New laws were framed to meet the emerging challenges- the

Environmental Protection Act, 1986 being a watershed.

Meaning of Environment The word “environment” relates to surroundings. It includes virtually everything. It can be can defined as anything which may be treated as covering

the physical surroundings that are common to all of us, including air, space, land, water, plants and wildlife. According to the Webster Dictionary, it is

defined as the “Aggregate of all the external condition and influences affecting

the life and development of an organism.”

As per The Environment (Protection) Act, 1986

Section 2(a) 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, micro-organism and property.”

Thus, after analyzing all the above definitions, the basic idea that can be

concluded is that environment means the surroundings in which we live and is

essential for our life.

Meaning of environmental jurisprudence

Environmental jurisprudence is a philosophy of law and human governance that

is based on the idea that humans are only one part of a wider community of

beings and that the welfare of each member of that community is dependent

on the welfare of the Environment as a whole. It states that human

societies will only be viable and flourish if they regulate themselves as part of

this wider Earth community and do so in a way that is consistent with the

fundamental laws or principles that govern how the universe functions.

Environment jurisprudence is intended to provide a philosophical basis for the

development and implementation of human governance systems, which may

include ethics, laws, institutions, policies and practices. It also places an

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emphasis on the internalisation of these insights and on personal practice, in

living in accordance with Environment jurisprudence as a way of life.

Environmental jurisprudence has drawn its knowledge base from different

disciplines of studies like basic sciences, earth science and Common Law

jurisprudence. Study of this discipline is concerned more with enforcement

‘right’, for environmental pollution may affect individuals as well as the public

at large. The impact of pollution may be on the lives of people in the place of

occurrence as well as in a larger geographical territory. Further, the impact

might be even larger on generations to come. Therefore, if pollution is termed

either as a wrong or crime. It requires different understanding of law because

of its very nature, wherein the study of environmental jurisprudence gains

importance.

The specific applications of Environment jurisprudence will vary from society to

society, while sharing common elements. These elements include:

a recognition that the universe is the source of the fundamental ‘Earth rights’ of all members of the Earth community, rather than some part of the human governance system and accordingly these rights cannot be validly

circumscribed or abrogated by human jurisprudence;

a means of recognising the roles and ‘rights’ of non-human members of the

Earth community and of restraining humans from unjustifiably preventing them fulfilling those roles;and

an approach to condoning or disapproving human conduct on the basis of

whether or not the conduct strengthens or weakens the bonds that constitute the Earth community.

Need for environmental laws Today we are living in nuclear arena. No one can overlook the harm caused to

the environment by the nuclear bombs, dropped by airplanes belonging to the United States on the Japanese urban communities of Hiroshima and Nagasaki

amid the last phases of World War II in 1945. Day to day innovation and advancement of technology, apart from development additionally expands the

risk to human life. Accordingly, there arises an intense and an acute need of the law to keep pace with the need of the society along with individuals. So now

the question of environmental protection is a matter of worldwide concern, it is

not confined to any country or territory.

Environmental Jurisprudence in India The causes of environmental problems are manifold. Some of them are a direct

result of unfavorable negative impacts of various developmental activities while

some arise due to lack of development itself. These maybe at the global level

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such as global warming and climate change, at local level due to failure of

environmental safeguards and their implementation in projects which lead to

pollution (air, water, noise etc).

“The Supreme Court has held that the right to life as enshrined in Article 21

means something more than survival or animal existence and would include

the right to live with human dignity. It would include the right to minimum

subsistence allowance during suspension and all those aspects which go to

make a man’s life meaningful, complete and worth living.”

This has been asserted time and again by the judiciary. The right to

environment is thus enshrined in the basic framework of law of each and every

country; various laws and checks have been put in place however either by way

of local laws or international treaties to guarantee a clean environment to the

people. Every person must have a basic understanding of the rights and laws to

which he is entitled without which he will never succeed in the pursuit of

happiness.

History of Environmental Conservation

1. Indus Valley Civilization- No direct evidence of environmental conservation measures but the people of Harappa did not ignore the

environment completely. This is evident through the planned cities with uniform urban planning, carefully executed layout, water supply &

drainage etc.

2. Mauryan period- Regular and independent Forest Department at the time of Chandragupta Maurya; it also find mention in Kautilya’s arthashastra; Wildlife sanctuaries & protection find mention; the

hierarchy was as follows: (1) Pashuvan (Game Forest), (2) Mrigvan (Deer Forest), (3) Dravyavan (Productive Forest), (4) Hastivan (Elephant Forest)

3. Gupta Period- The Gupta Kings were also concerned about the state of forests and wildlife.

4. Many acts were promulgated from 1897 onwards such as the Indian Fisheries act, Bengal & Bombay Smoke Nuisance Acts, AP Agri, Pest & Diseases Act, The Factories Act, and Orissa River Pollution & Prevention

Act.

5. 1900-47- Severe and unheeded exploitation of natural resources without much consideration of ecological consequences

6. 1947- 1970- The priority was industrial development and Environment was not the major concern; National Parks & Wildlife Sanctuaries were set up but with a bias towards timber yield & revenue generation;

private forest under govt. control.

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7. 1970 and thereafter- It marked the beginning of environmental movement and various legislations were drafted for the protection of the environment; several international treaties and legislations also

came into being to stress on the need to protect the environment. Some of these were -The Stockholm Conference, 1972; The Water (Prevention and Control of Pollution) Act, 1974; The Forest (Conservation) Act,

1980; The Air (Prevention and Control of Pollution) Act, 1981; Establishment of Ministry of Environment & Forests; The Environment

(Protection) Act, 1986; The Rio Conference, 1992; Convention on Biodiversity (CBD); Basal Convention on the Transboundary Movement

of Hazardous Wastes; Ramsar Convention on Wetlands of International importance; National Environment Policy 2006; Environmental Impact

Assessment Notification 2006.

Hierarchy of Environmental Jurisprudence in india

In India, there are several structures right from the Constitution that help in

protecting the environment. These hierarchical levels are explained in the

pyramid.

The legislative framework is provided by the following acts and laws

1. Constitutional provisions 2. General laws – IPC, CrPC

3. Special acts – more than 300 acts such as IFA, WPA, EPA, Air Act, Water Act, FCA, the Public Liability Insurance Act, the National Environmental Tribunal

Act, the National Environmental Appellate Authority Act, National Green Tribunal 2009

4. Policies – National Environment Policy 2006, National Forest Policy, National

Agriculture Policy

Administrative framework consists of the various enforcement agencies such as

1. MoEF- nodal ministry for environment which sets environmental standards 2. Several enforcement agencies – Central Pollution Control Board, National

River Conservation Authority, National Afforestation & Eco Development

Board, Department of Wasteland Development

The Constitution is full of various provisions that serve as a bedrock for framing the environmental laws and policies for India. The 42nd amendment in

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particular was the first instance which highlighted the importance of environment. The provisions are in the form of;

Fundamental Rights (Arts. 21, 32 & 226)

Article 21- ‘’ No person shall be deprived of his life or personal liberty except according to procedure established by law.’’ As already discussed, it also includes the right to environment, most of the PIL’s are due to this interpretation of Article 21.

Article 32 & 226- Right to Constitutional remedies.

Directive Principles of the State Policy (Arts. 47, 48A & 49)

Article 47: The State shall endeavour to raise the level of nutrition and standard of living and to improve public health.

Article 48A: To protect and improve the natural environment and to

safeguards forests and wildlife.

Article 49- To protect and maintain places of artistic and historic interest.

Fundamental Duties (Art. 51A(g))

To protect and improve the natural environment including forests, lakes,

rivers and wild life, and to have compassion for living creatures

Judicial Activism and Environmental

Jurisprudence in India : PIL And The

Expansion Of Locus Standi

Prior to 1980s, only the aggrieved party could personally knock the doors of

justice and seek remedy for his grievance and any other person who was not

personally affected could not do so as a proxy for the victim or the aggrieved

party. But around 1980, the Indian legal system, particularly the field of

environmental law, underwent a sea change in terms of discarding its

moribund approach and instead, charting out new horizons of social justice.

This period was characterized by not only administrative and legislative

activism but also judicial activism.

Public Interest Litigation (PIL) has come to stay in India. "Public Interest

Litigation means a legal action initiated in a court of law for the enforcement of

public interest or general interest in which the public or class of the community

have pecuniary interest or some interest by which their legal rights or liabilities

are affected." Contrary to the past practices, today a person acting bona fide

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and having sufficient interest can move the courts for redressing public

enquiry, enforcing public duty, protecting social and collective rights and

interests and vindicating public interest. In course of time there has been a

wave of environmental litigation.

At present most environmental actions in India are brought under Articles 32 and 226 of

the Constitution. The writ procedure is preferred over the conventional suit

because it is speedy, relatively inexpensive and offers direct access to the

highest courts of the land. Nevertheless, class action suits also have their own

advantages. The powers of the Supreme Court to issue directions under Article

32 and that of the high courts under Article 226 have attained greater

significance in environmental litigation. Courts have made use of these powers

to remedy past mala-fides and to check immediate and future assaults on the

environment.

The judicial activism demonstrated by the courts can be classified into two

distinct spheres i.e. procedural and substantive. However the categorization of

judicial innovations into procedural and substantive are neither water-tight nor

mutually exclusive. .There nis almost unanimous consensus regarding the fact

that PIL in India ensured that higher Courts in India get actively drawn into

environmental issues by expanding the rule of locus standi.

In other words the expansion of the concept of locus standi led to some

important consequences which were particularly pertinent especially in

environmental matters. Firstly PIL ensures that there could be several

petitioners for the same set of facts dealing with an environmental hazard or

disaster, the court was able to look at the matter from the point of view of an

environmental problem to be solved, rather than a dispute between two

parties. Secondly, as PIL is concerned with the rights of the community rather

than the individual it is characterized by a non-adversarial approach, the

participation of amicus curiae, the appointment of expert and monitoring

committees by the court, and the issue of detailed interim orders in the form of

continuous mandamus under Articles 32 and 226 by the Supreme Court of

India and the High Courts of the States respectively. Thus the India judiciary has

used PIL as a tool for developing environmental jurisprudence as PIL is

essentially geared towards addressing public environmental interests which

has made environmental law in India more effective.

The expansion of locus standi enabled the Courts in India to entertain a

number of actions related to the environment and the Courts propounded a

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number of significant principles in these cases. These substantive principles

propounded by the Courts will be discussed in the subsequent sections.

The Role of Indian Judiciary in Protection of Environment in India

The legislative and executive efforts have been notable over the past two decades towards including the principles of Environmental Protection in the

Legal Jurisprudence in India – most notably the 46th Amendment to the constitution of India in 1976 which explicitly laid down Environmental

Protection as a part of the Constitutional mandate and the enactment of the Environment Protection Act of 1986. Though there have been initiatives taken by the legislature and the executive , the judiciary has taken a lead in this race

through careful judicial thinking of the Supreme court .which has been providing more tools both qualitative and quantitative to deal with the issues

related to Environment protection . Due to the non- compliance of its own laws by the State machinery ,the judiciary invented a new method of judiciary –

driven implementation of the regulations in India. The courts have also done their share by liberally interpreting the various provisions of the Constitution

and other statutes towards ensuring social justice . the “Green Bench” of the supreme court developed the Principles of Absolute Liability and sustainable development under the broad ambit of environmental considerations as a well

as innovative techniques like Spot Visits and expert committees.

Materials and Methods adopted by

Supreme Court

The Supreme Court has contributed to the environmental jurisprudence in India through a two pronged approach of interpreting the Constitution and

laying down dicta to protect the environment and also through innovating in the processes of enforcing these protections such that they do not remain

empty promises .In the first part of the discussion we shall look at the dicta of the Supreme Court. One of the first steps taken by the Supreme Court of India

was the incorporation of the right to a pollution free environment—to water and air— for full enjoyment of ‘life’ in the list of rights guaranteed to an Indian

citizen under the expandable vision of Article 21 of the Constitution. This was done by taking the balancing interest approach to the interpretation of the

Constitution in the Subhash Kumar v. State of Bihar . Another innovation has

been the development of the “Absolute Liability” Principle in the case of M. C.

Mehta v. Union of India where Justice Bhagwati laid down a stricter principle of

law than the principle of strict liability in the sense that all the exceptions to the

Rylands v. Fletcher rule were not held applicable in this particular principle

applicable to enterprises engaged in hazardous activities and the size of the industry determined the amount of compensation payable by it. The transition

has been said to be constitutionalism of the tort law.

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The concept of sustainable development has been introduced in the Indian judicial scenario by the judges of the Supreme Court including such

international principles in the context of the development that was necessary in the view of the developing economy that India was and to a certain extent

still is. In M. C. Mehta v. Union of India , the Supreme Court even went so far as to

say that life, public health and ecology is entitled to a priority over

unemployment and rural poverty.

One of the earliest cases where the Supreme Court dealt with the concept of

inter-generational equity was in the case of Rural Litigation and Entitlement

Kendra, Dehradun v. State of Uttar Pradesh , where the question that arose was

regarding illegal and unauthorized mining damaging and destroying the

local environmental system and causing ecological imbalance. The Apex court held that some assets are permanent and should not be exhausted in one

generation and also opined that environmental protection and maintaining ecological balance should be placed on the same standing as economical development of the econ

omy. The Court after much deliberation ordered the mining work to stop and held that although this would cause economical loss to the laborers but this

was a price that had to be paid for protecting and safeguarding the rights of the people to live in a healthy environment with minimal disturbance of the

ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affection of air, water and

environment.

Of the judges who constitxuted the so-called ‘Green Bench’ in the Supreme Court at

that period of time, a noteworthy mention might be made of Justice Kuldip Sin

gh who delivered the judgement in the Vellore Citizens Forum v. Union of India

case whereby the concept of sustainable development was applied for the first time in an Indian case. J. Singh had observed in his judgement that

ecological protection and economical development should not necessarily be seen as radically opposite to each other, rather the answer to the balance should lie in sustainable development. With this judgement this principle

was adopted to incorporate a customary international law in the India in environmental jurisprudence.

This shows that the Indian Judges not only interpret law but also make laws by continually drawing on the wealth of laws developing on the international

scenario and incorporating such fresh and important principles in the Indian jurisprudence to gradually expand the plethora of laws available in India to cover any given environmental issue. An important off-shoot of the concept of

sustainable development has been that of the ‘Polluter Pays’ Principle. It started as a principle in International Environmental Law where the polluting party

pays for the damage done to the natural environment.

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This principle favors a curative approach which is concerned with repairing ecologicaldamage, and is not as bothered with the idea of fault. Once a person is

seen to be guilty, such person is liable to compensate for such acts irrespective of the fact as to whether he was involved in the development process or not.

Remedying the damaged environment is part of the process of "Sustainable Development" and as such polluter is liable to pay the cost to the individual

sufferers as well as the cost of reversing the damaged ecology.

The judiciary in India recognized the Principle in the judgment delivered by the

Supreme Court of India in Indian Council for Enviro-Legal Actionv.UOI & Ors

The Court held that "The Polluter Pays Principle means that absolute liability of harm to the environment extends not only to compensate the victims of

pollution, but also to the cost of restoring environmental degradation. Remediation of damaged environment is part of the process of sustainable

development.” In this case a number of private companies operating as chemical companies were creating hazardous wastes in the soil and polluting the village area situated nearby without the required licenses. The Court ruled

on the PIL that" Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss

caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon

the very nature of the activity carried on".

Consequently,the polluting industries were held to be absolutely liable for the harm caused by them tovillagers in the affected area, etc and they were

ordered to take all necessary measures to remove sludge and other pollutants lying in the affected areas.

The"PolluterPays" principle as interpreted by the Court means that the absolute liability for harm to theenvironment extends not only to compensate the

victims of pollution but also the cost of restoring the environmental degradation.

The polluter pays principle means two things:

1. The polluter should pay for the administration of the pollution control

system;

2. The polluter should pay for the consequences of the pollution

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Judicial remedies for environment

pollution

The remedies available in India for environmental protection comprise of tortuous as well as statutory law remedies. The tortuous remedies available are

trespass, nuisance, strict liability and negligence. The statutory remedies

incorporates: Citizen’s suit, e.g.,

an activity brought under Section 19 of the Environmental (Protection)

Act, 1986, an activity under area 133, Criminal Procedure Code, 1973.and and activity brought under the Section 268 for open irritation, under

Indian Penal Code,1860

Apart from this, a writ petition can be filed under Article 32 in the Supreme

Court of India or under Article 226 in the High Court.

Tortious liability

The Indian judiciary has developed the following tortuous remedies:

Damage

In the recent case of Shriram Gas Leak, involving a leakage of Oleum gas which resulted in substantial environmental harm to the citizens of Delhi, the Apex court held that the quantum of damages awarded must be proportionate to

the capacity and magnitude of the polluter to pay. However, the Apex Court

has deviated from this test in the Bhopal Gas Tragedy.

Injunction

The purpose of injunction is to prevent continuous wrong. The grant of perpetual injunction is governed by Sec.37 to 42 of the Specific Relief Act,

1963.

Nuisance

Nuisance means the act which creates hindrance to the enjoyment of the

person in form of smell, air, noise, etc.

According to Stephen, nuisance is anything done to hurt or annoyance of

lands, tenements of another and not amounting to trespass.

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Nuisance can be divided into two categories:

Private Nuisance – It is a substantial and unreasonable interference with the

use and enjoyment of one’s land.

Public Nuisance – It is an unreasonable interference with a general right of the

public.

Trespass

It means intentional or negligent direct interference with personal or

proprietary rights without lawful excuses.

The two important requirements for trespass are:

1) There must be an intentional or negligent interference with personal or

proprietary rights.

2) The interference with the personal or proprietary rights must be direct rather

than consequential.

Negligence

It connotes failure to exercise the care that a reasonably prudent person would

exercise in like circumstances.

Strict Liability

The rule enunciated in Rylands v. Fletcher by Blackburn J. is that the person who for his own purpose brings on his land and collects and keeps there anything likely to be a mischief, if it escapes, must keep it as its peril, and if he

does not do so is prima facie even though, he will be answerable for all the damage which is the natural consequence of its escape. The doctrine of strict

liability has considerable utility in environmental pollution cases especially

cases dealing with the harm caused by the leakage of hazardous substances.

Some remarkable principles and doctrines

propounded by the Indian judiciary:-

1. Doctrine of Absolute Liability

THE BHOPAL CASE: Union Carbide Corporation v. Union Of India

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In this case, the court held that, where an enterprise is occupied with an inherently dangerous or a hazardous activity and harm results to anybody by

virtue of a mishap in the operation of such dangerous or naturally unsafe movement coming about, for instance, in getaway of poisonous gas, the

enterprise is strictly and completely obligated to repay every one of the individuals who are influenced by the accident and such risk is not subject to

any exemptions. Accordingly, Supreme Court created another trend of

Absolute Liability without any exemption.

2. Polluter Pays Principles

“If anyone intentionally spoils the water of another … let him not only pay damages, but purify the stream or cistern which contains the water…” – Plato

Polluter Pays Principle has become a very popular concept lately. ‘If you make a

mess, it’s your duty to clean it up ‘- this is the fundamental basis of this slogan. It should be mentioned that in environment law, the ‘polluter pays principle’ does

not allude to “fault.” Instead, it supports a remedial methodology which is concerned with repairing natural harm. It’s a rule in international

environmental law where the polluting party pays for the harm or damage

done to the natural environment.

Vellore Citizen’s Welfare Forum v. Union of India The Supreme Court has declared that the polluter pays principle is an essential

feature of the sustainable development.

3. Precautionary Principle

The Supreme Court of India, in Vellore Citizens Forum Case, developed the

following three concepts for the precautionary principle:

Environmental measures must anticipate, prevent and attack the causes of

environmental degradation

Lack of scientific certainty should not be used as a reason for postponing

measures

Onus of proof is on the actor to show that his action is benign

4. Public Trust Doctrine

The Public Trust Doctrine primarily rests on the principle that certain resources like air, water, sea and the forests have such a great importance to people as a whole that it would be wholly unjustified to make them a subject of private

ownership.

M.C.Mehta v. Kamal Nath and Others

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The public trust doctrine, as discussed by court in this judgment is a part of the

law of the land.

5. Doctrine of Sustainable Development

The World commission on Environment and Development (WCED) in its report prominently known as the ‘Brundtland Report’ named after the Chairman of

the Commission Ms. GH Brundtland highlights the concept of sustainable development. As per Brundtland Report, Sustainable development signifies ”

development that meets the needs of the present without compromising the ability of the future generations to meet their own needs”.There is a need for

the courts to strike a balance between development and environment.

Rural Litigation and Entitlement Kendra v. State of UP

The court for the first time dealt with the issue relating to the environment and

development; and held that, it is always to be remembered that these are the permanent assets of mankind and or not intended to be exhausted in one

generation.

Vellore Citizen’s Welfare Forum

In this case, the Supreme Court observed that sustainable development has

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.

Environmental protection: the judicial approach

There are number of the following judgments which clearly highlight the active

role of judiciary in environmental protection these are follows:

(a) The right to a wholesome environment

Charan Lal Sahu Case

The Supreme Court in this case said, the right to life guaranteed by Article 21 of

the Constitution includes the right to a wholesome environment.

Damodhar Rao v. S. 0. Municipal Corporation Hyderabad

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The Court resorted to the Constitutional mandates under Articles 48A and 51A(g) to support this reasoning and went to the extent of stating that

environmental pollution would be a violation of the fundamental right to life

and personal liberty as enshrined in Article 21 of the Constitution.

(b) Public nuisance: the judicial response

Ratlam Municipal Council v. Vardhichand

The judgment of the Supreme Court in instant case is a land mark in the history of judicial activism in upholding the social justice component of the rule of law

by fixing liability on statutory authorities to discharge their legal obligation to the people in abating public nuisance and making the environmental pollution

free even if there is a budgetary constraints., J. Krishna Iyer observed that,” social justice is due to and therefore the people must be able to trigger off the

jurisdiction vested for their benefit to any public functioning.”Thus he

recognized PIL as a Constitutional obligation of the courts.

(c) Judicial relief encompasses compensation to victims

Delhi gas leak case: M.C. Mehta v. Union of India,

In instant case, the Supreme Court laid down two important principles of law:

1) The power of the Supreme Court to grant remedial relief for a proved

infringement of a fundamental right (in case if Article21) includes the power to

award compensation.

2) The judgment opened a new frontier in the Indian jurisprudence by introducing a new “no fault” liability standard (absolute liability) for industries

engaged in hazardous activities which has brought about radical changes in the liability and compensation laws in India. The new standard makes

hazardous industries absolutely liable from the harm resulting from its

activities.

(d) Fundamental right to water

The fundamental right to water has evolved in India, not through legislative action but through judicial interpretation. In Narmada Bachao Andolan v. Union of India and Ors., the Supreme Court of India upheld that “Water is the basic need for the survival of human beings and is part of the right to life and

human rights as enshrined in Article 21 of the Constitution of India … and the right to healthy environment and to sustainable development are fundamental

human rights implicit in the right to life

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Contribution of mc Mehta in environmental

jurisprudence in india

M.C. Mehta’s public interest environmental litigation cases have formed the foundation for the development of environmental jurisprudence in India, and

indeed, South Asia today.

M.C. Mehta’s cases have established the following seminal principles in Indian

environmental jurisprudence:

The constitutional right to life extends to the right to a clean and healthy environment.

Courts are empowered to grant financial compensation as a remedy for the infringement of the right to life.

Polluters should be held absolutely liable to compensate for harm caused by their hazardous activities.

Public resources that are sensitive, fragile or of high ecological value should be maintained and preserved for the public.

Similarly, the government has a responsibility to prevent environmental

degradation. Even if scientific uncertainty exists, the implementation of preventative measures should not be delayed wherever there is the

possibility of serious or irreversible damage. Green benches should be established in Indian High Courts dealing

specifically with environmental cases.

About MC Mehta

A lawyer by profession and a committed environmentalist by choice, he has made the fight to protect India’s environment his unending mission. He has

pioneered legal activism for environmental protection and is proof that one man can make a difference.

Born on October 12, 1946 M C Mehta (Mahesh Chander Mehta) belongs to a small village in district Rajouri in the State of Jammu & Kashmir (India). It was

here that his love for nature, instilled in him a sense of commitment towards protecting the environment. He got his education up to primary level in his

village Dhangri. Later, to get higher education he had to join School at Rajouri. For few years he travelled from his village to School and back by crossing two

rivers and about 15 km. of distance everyday. After his schooling at Rajouri he moved to Jammu and completed his Post Graduation in Political Science and

Law degree from Jammu University and started his practice in Jammu & Kashmir High Court. During his stay in Jammu he took active part in social and political issues. He raised his voice against corruption and motivated students

and youth to fight against discrimination taking place with the Jammu region. He remained President of The Youth Action Committee and pioneered the

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Social and Political causes. His career as a Supreme Court lawyer began in 1983, when he migrated to Delhi. In 1984, he began focusing on environmental

litigation.

In the words of Ms Smita Gate “Often described as the One Man Enviro-legal Brigade, Mr Mehta is probably the only Supreme Court lawyer to have taken up

legal cudgels with the polluting Indian Industries and come out victorious. A dedicated, fearless and extremely honest man, he pursues his goals with single-

minded devotion. He has been conferred with several prestigious awards. Some of these are the Governor’s Gold Medal, the Goldman Environmental Prize,

considered on alternative Noble Prize in USA and Europe, the UN’s Global 500 Award for 1993 and above all the Magsaysay Award for 1997.”

Role of mc Mehta in environmental

jurisprudence in india

The right to humane and healthy environment is seen indirectly approved in

the MC Mehta group of cases, decided subsequently by the Supreme Court.

The first MC Mehta case enlarged the scope of the right to live and said that the

state had power to restrict hazardous industrial activities for the purpose of

protecting the right of the people to live in a healthy environment. Although

the second MC Mehta case modified some of the conditions, the third MC

Mehta case posed an important question concerning the amount of

compensation payable to the victims affected by the leakage of oleum gas from

the factory. The Court held that it could entertain a petition under Article 32 of

the Constitution and lay down the principles on which the quantum of

compensation could be computed and paid. This case is significant as it evolved

a new jurisprudence of liability to the victims of pollution caused by an industry

engaged in hazardous and inherently dangerous activities. The fourth MC

Mehta case was regarding the tanning industries located on the banks of

Ganga was alleged to be polluting the river. The Court issued directions to

them to set up effluent plants within six months from the date of the order. It

was specified that failure to do so would entail closure of business.

The four MC Mehta cases came before the Supreme Court under Article 32 of

the constitution on the initiative of the public-spirited lawyer. He filed the

petitions on the behalf of the people who were affected or likely to be affected

by some action or inaction. The petitioner had no direct interest in the subject

[19]

and had suffered no personal injury. Still standing to sue was not raised at the

threshold question to be decided by the Court

Some of the landmark cases fought by mc

Mehta:-

MC MEHTA ( Taj Trapezium Matter) V. UNION OF INDIA , 1986

FACTS:-

In this case a petition was filed to the threat of the deteriorating beauty of Taj

Mahal to invoke the Air (prevention and control of pollution) Act 1981 and

Water (prevention and control of pollution) Act 1974 and Environment

Protection Act 1986 for the purpose of relocation of the 292 industries to

prevent emissions generated by coke or coal consuming industries having a

damaging effect on Taj and people living in the Taj Trapezium Zone, and

further to direct them to change over to natural gas as industrial fuel.

According to the petitioner, the foundries, chemical/hazardous industries and

the refinery at Mathura were the major sources of damage to the Taj. The

sulphur dioxide emitted by the Mathura Refinery and the industries when

combined with Oxygen-with the aid of moisture in the atmosphere formed

sulphuric acid called “Acid rain” which had a corroding effect on the gleaming

white marble. Industrial/Refinery emissions, brick-kilns, vehicular traffic and

generator-sets were primarily responsible for polluting the ambient air around

Taj Trapezium (TTZ).

Judgement:-

Applying the above mentioned principles and the Articles, the Supreme

Court ordered the 292 industries which were the causing pollution in

TTZ, to switch over to natural gas for natural fuel.

The industries which are not in a position to obtain gas connection for

any reason, were required to stop functioning with the aid coke and coal

in TTZ. .

Also the workmen employed in the 292 industries were given certain

rights and benefits:

[20]

(a) The workmen shall have continuity of employment at the new town

and place where the industry is shifted. The terms and conditions of their

employment shall not be altered to their detriment.

(b) The period between the closure of the industry in Agra and its restart

at the place of relocation shall be treated as active employment and the

workmen shall be paid their full wages with continuity of service.

(c) All those workmen who agree to shift with the industry shall be given

one year's wages as "shifting bonus" to help them settle at the new location.

The said bonus shall be paid before 31.1.1998.

(d) The workmen employed in the industries who do not intend to

relocate/obtain Natural Gas and opt for closure they have been in continuous

service (as defined in Section 25-B of the Industrial Disputes Act, 1947) for not

less than one year in the industries concerned before the said date. They shall

be paid compensation in terms of Section 25-F(b) of the Industrial Disputes Act.

These workmen shall also be paid, in addition, six years' wages as additional

compensation.

(e) The compensation-payable to the workmen in terms of this judgment

shall be paid by the Management within two months of the retrenchment.

(f) The gratuity amount payable to any workman shall be paid in

addition."

M.C MEHTA V. UNION OF INDIA , 1987 (Shriram food fertilizer case)

Facts:-

M.C Mehta, the petitioner in this case was an advocate and leading

consumer activist. He filed a public interest litigation requesting the

courts to lay down the norms for determining the liability of enterprises

engaged in the manufacture and sale of hazardous products and the

closure of ‘Shriram’ on the ground that it was hazardous to the

community. The enterprise in question is Shriram food & fertilizers

industries (referred to as Shriram) which is a caustic chlorine plant run by

the Delhi Cloth Mills Ltd commissioned in 1949. During the pendency of

the petition filed by M.C Mehta, the Delhi administration pursuant to a

question raised in the parliament about the hazardous nature of the

these enterprises appointed an expert committee. This committee

headed by Mr. Manmohan Singh made an extensive inquiry and

[21]

submitted a detailed report to the government outlining various

recommendations to minimize the hazards that complied with pollution

control and safety measures.

On the 4th of December, 1985, a major leakage of Oleum gas took place

from one of the units within the plant, affecting not only its employees

but also those who resided around the plant. This occurred during the

pendency of the first petition requesting the closure of the caustic

chlorine plant on account of its hazardous nature.Two days later, on the

6th of December 1985, another leakage took place although a minor

one when Oleum gas leaked out again from the joints of a pipe in the

plant.

The Delhi administration had immediately responded to the crisis by

issuing an order dated 6th dec 1985 passed by the district magistrate,

Delhi directing Shriram to stop the manufacture and processing of

hazardous and lethal chemical and gases.

A second set of writ petitions were filed by the Petitioner under Article

32 of the Constitution, which provides for a writ against the State in case

of breach of fundamental rights and to entertain appropriate

compensation claims. The court directed two teams of experts, namely

the Nilay Singh Choudhary committee appointed by the court and the

Agarwal committee appointed by the petitioner to ascertain whether

the recommendations of the Manmohan Singh committee (set up during

the pendency of the first petition that requested the closure of the

shriram units) has been implemented in accordance with the pollution

control and safety measures.

A third committee, the Seturam committee was also appointed by the

Lt.Governor of Delhi to carry out an on-the-spot inspection and make its

recommendations. Persons affected by the gas leak (which in this case

were nearly 2 lakh people within a three kilometer radius) were also

allowed to file compensation claims within a given period of time with

the Chief metropolitan magistrate.

Judgement

The Court held that the government exercised control on all those activities of Shriram which jeopardized public interest and that not only did the government exercise “extensive functional control” over Shriram but also

assisted it financially in terms of loans and overdrafts. The Court also held that Shriram was engaged in an activity “which has the potential to invade the right to life of large sections of people.” The Court, however, declined to rule

whether Shriram was “State” for the purposes of Article 21, preferring to leave

the questions open for a later date.

[22]

Regarding the liability of a corporation due to injurious consequences of hazardous activities conducted by it, the Court held that a corporation “owes

an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of the hazardous or inherently dangerous nature

of the activity which it has undertaken.” Extending the principle of strict liability in Rylands v. Fletcher, the Court, for the first time, enunciated the

principle of absolute liability of corporations when they undertake hazardous and dangerous activity. Such activity, according to the Court, should be

allowed only on the condition that the enterprise “indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous

activity regardless of whether it is carried on carefully or not.”

M.C. Mehta v. Union of India (Kanpur Tanneries),1988

Facts

In the original petition of 1985, Mehta requested the court to order the leather

tanneries of the Jajmau district of Kanpur to stop discharging their untreated effluent into the river. He also claimed that the Municipal Corporation of Kanpur was not undertaking treatment of domestic sewage. The petition

named eighty-nine respondents; among them were seventy-five tanneries of the Jajmau district of the city, the Union of India, the Chair of the Central

Pollution Control Board, the Chair of the Uttar Pradesh Pollution Control Board,

and the Indian Standards Institute

Judgement

On the effects of water pollution, the Court made particular mention of the increased incidence of water-borne disease that resulted from poor water

management and the consequent risks such diseases posed to the communities which shared the water source. Regarding the benefits of preventing pollution,

the Court stressed that prevention of water pollution will result in a “general improvement in the standard of health of the population.” It further noted that

the process of prevention could potentially be used as manure and thus help the agriculture industry. The Court also held that measures of prevention not

being unduly costly were within the reach of, both, developing and developed

nations.

On the issue of responsibility for the pollution, the Court held that it was the responsibility of industries to ensure that their industrial waste was treated

before being discharged. It held that industrial licences should be issued only when the industry can demonstrate that it has adequate provision for the

treatment of trade effluents. It further held that action should be taken against

existing industries if they were found responsible for water pollution.

[23]

The Court also held the Mahapalika responsible for not taking steps to check pollution and for not abiding by its statutory duties. It directed the Mahapalika

to take immediate steps to put schemes and policies in place to check pollution and to submit proposals concerning sewage treatment works of the Board’s

sewage treatment facility in the area within six months of the order.

The Court further held that under Article 51A of the Constitution, the Central Government had a duty to prevent pollution and improve the environment. It was, therefore, the Central Government’s duty to increase awareness in the

nation by providing for compulsory study of the natural environment. The Court directed the Central Government to publish and distribute books, free of

cost, for this purpose..

The Court held that the judgment was to apply to all Mahapalikas “which have

jurisdiction over the areas through which the river Ganga flows.”

MC Mehta vs Kamal Nath , 1997

Facts

In the State of Himachal Pradesh, Span motel, owned by the family members of

Shri Kamal Nath, Minister for Environment and Forests, Govt. of India diverted the Course of river Beas to beautify the motel and also encroached upon some

forest land. The apex court ordered the management of the Span motel to hand over forest land to the Govt. of Himachal Pradesh and remove all sorts of

encroachments.

Judgement

The Court delivered a land mark judgment and established principle of exemplary damages for the first time in India. The Court said that polluter must pay to reverse the damage caused by his act and imposed a fine of Rs Ten Lakhs

(Rs 10,00,000) on the Span motel as exemplary damages. The Supreme Court of India recognized Polluter Pays Principle and Public Trust Doctrine.

[24]

Role of national green tribunal in

protection of environment National Green Tribunal was set up under National Green Tribunal Act,2010 with an aim to provide protection to environment , conservation of forests and other natural resources along with enforcement of legal rights for environment

and giving relief and compensation for damages to persons and property.

National Green Tribunal (NGT) had been instrumental in dealing with the issues related to environment, ecology, biodiversity, pollution etc in the larger

interest of the public. NGT's judgement are based on the principle of natural justice.

After decades of unchecked exploitation and deterioration of natural resources

now it’s time for NGT’s role in addressing problem of environmental pollution and degradation. NGT since its inception has taken various steps in order to

reduce the menace of pollution and other activities adversely impacting the environment

Some of the main judgement of NGTs are:

-- Banning any diesel vehicle of more than 10 years old in Delhi and NCR

region.

-- Penalising the Construction companies in Bellandur wetland in Banglore.

-- Proposed plan for rejuvenating the Yamuna river for 52km stretch in Delhi

and UP region.

-- Cancelling clearance of CG coal mine, Vedanta and POSCO in Odisha.

--NGT cancelled clearance of a Mining project by Gogte Minerals in of Maharashtra

It not only deals with violation of environmental laws, but provide for

compensation, relief and restoration of ecology according to principle of

“polluter pays” and power to enforce “precautionary principle” and most

importantly sustainable development. NGT has lived upto its expectations.

Many judgment like Posco case judgment for sustainable development in

favour of local communities, Goa foundation case for implementation of

western ghat expert panel report, sand mining order put a ban on all forms of

Illegal River and Ocean bed sand mining which were rampant across the

country are very important in sustainable development and environmental

protection.

[25]

Conclusion India has a prominent environmental heritage which can be attributable to its

biodiversity. However industrial and economic development as well as indiscretions in the part of certain industries as well as the lax attitude of the

state in certain circumstances has had an adverse effect on the environment as well as a number of communities who are dependent on them. Hence there

was an imperative need for the judiciary to step onto the plate and take an activist stance to prevent further depletion of the valuable biodiversity of the

country. The Courts have been successful in achieving this goal. It has used principles of international environmental law and constitutional provisions as

tools for the furtherance of the cause of the environment. It is indeed not an overstatement to claim the environmental jurisprudence in this country can to a great extent be attributable to the acts of the judiciary in the last two

decades. It is interesting to note that the apex Court has also acknowledged the crucial link between the environment and the rights of communities as

well. The Supreme Court has recognized the nexus between environmental protection and human rights in Andhra Pradesh Pollution Control Board v MV

Naydu. [47] The Hon’ble court observed that environmental concerns under Article 32 and 226 are of equal significance to Human Rights concerns as both

can be traced back to the protection of right to life and liberty under Article 21 of the Constitution. Thus it would not be inaccurate to conclude that the Courts have been instrumental in establishing a holistic framework of environmental

law geared towards achieving the ends of justice.

Thus, after the analysis of above cases, we find that, the Supreme Court is, at

the present time, stretching the different legal provisions for environmental

protection. In this way, the judiciary tries to fill in the gaps where there is

laciness of the legislation. These new innovations and developments in India by

the judicial activism open the numerous approaches to help the country. In

India, the courts are extremely cognizant and cautious about the special nature

of environmental rights, considering that the loss of natural resources can’t be

renewed.