Principles of Environmental Jurisprudence and Indian Experience

Indrajit Dube*
Dipa Dube**
June, 1972, at Stockholm, in The United Nations Conference on Human
Environment1 was realized that pure clean environment is not possible in the
industrialized civil societies; perhaps, the attainment of sustainable development2 is the
answer. As a step towards the achievement of sustainable development, different
principles have evolved in national and international environmental jurisprudence. Some
of the principles are self-explanatory and applied as a preventive mechanism, while
others are evolved as a compensatory one. It is to be noted that none of these principles
are comprehensive enough to account for every sort of environmental pollution and
degradation. Nevertheless, it is worth to set off these principles to achieve the ends of
environmental jurisprudence. India as a party to the mission has started applying the
principles of environmental jurisprudence through judicial and legislative process.

The Preventive Principle:

The title itself signifies the objective of this principle. It rests on the basic
understanding of the well-known maxim prevention is better than cure.' Complete
prevention of environmental pollution is not possible; if any industry pollutes a river by
waste or emission in air, possibility to restore the previous condition is impossible.
Pollution should, therefore, be controlled at the primary level.3 Before establishment of
any industry, if it can be possible to assess the harm that it may inflict on the
environment, in that case, restriction should be imposed upon the operation of that
industry or insistence should be upon the use of more sophisticated and eco-friendly
technology.

*Faculty of Law, National Law University, Jodhpur.

** Faculty of Law, National Law University, Jodhpur.
Published in March 2005 Volume 2, Journal of Human Right Focus.
1

The United Nations Conference on the Human Environment was held at Stockholm from 5 to 16 June
1972. It laid down twenty six principles which should be guide line for all the Nation in implementation of
Environmental law.
2
Sustainable Development means development keeping in pace with environmental protection, put forward
by Our Common Future 1981
3
Rosalind Malcolm , A Guidebook to Environmental Law, (1994, Sweet & Maxwell London).

The concept of Environmental Impact Assessment4 is a part of the above

principle. It involves the assessment of the adverse effects, upon environment, of an
industry, which is a hazardous one. Herein, it is also necessary to test the impact of
industrial chemicals (waste) on the health of the surrounding inhabitants. The other
dimension of this principle is to keep the pollution under limit.5 It has been stated that a
complete pollution free environment is not possible; so, it is essential to fix the level of
pollution that would be sustainable to environment.

The Precautionary Principle:

This principle rests upon the preventive aspect of environmental law. Apparently,
it seems similar to the preventive principle, but the basic difference lies in its scientific
basis.

The precautionary principle implies that, even where there is no scientific

evidence available to support a particular theory, precaution should be taken.6 In other

words, discharge of pollutants, which are potentially harmful, must be controlled, even in
the absence of specific data concerning it.7
In India, the concept signifies the following:
(1)Environmental measures - by the State Government and the statutory authority - must
anticipate, prevent and attack the causes of environmental degradation.
4

"Environmental Impact Assessment is an exercise of evaluating and predicting future changes caused by
proposed project, plans or polices to the quality of environment. Guiding to make informed trade offs
among conflicting aspects of environmental quality and between environmental quality and between
environmental quality and other social objective, EIA helps administrative agencies to choose correctly
form among the various option for making environmentally sound decision". See P. Leelakkrisnan,
Environmental impact assessment : Legal Dimension, 34 JILI (1992) 541. See also, Principle 17.
5
Air (Prevention and Control of Pollution) Act 1981 provide the provision to that effect. Viz. Section 16
(1)(h) lay down standards for the quality of air; Section 22, No person operating any industrial plant in
any pollution control area shall discharge as course as permit to be discharged the commission of any air
pollution control area shall discharge as course as permit to be discharged the commission of any pollutant
in excess of the standards laid down by the State Board under clause (g) of sub-section (1) of Section 17.
Section 17 of The Environment (Protection) Act 1986, is more comprehensive in comparison with the Air
Act; No person carrying on any industry operation or process shall discharge as emit or permit to be
discharged or emit or permit to be discharged or emitted any environmental pollutant in excess of such
standards as may be prescribed.
6
See, Principle 17, Rio Declaration, 1992.
7
recent White Paper, This Common Inheritance : Britains Environmental Strategy, adopts a
qualified version of this principle when it states that : when there are significant risk of damage to the
environment, the Government will be prepared to take precautionary action to limit the use of potentially
dangerous pollutants, even where scientific knowledge is not conclusive, if the balance of likely costs and
benefits justified it. Michael Purdue, Integrated pollution control in th Environmental Protection Act 1990
: A Coming Age of Environmental Law ?, (1991) MLR 54, p.534 at p. 535; See also, Principle 6,
Stockholm Conference, 1972.

(2)Where there are threats of serious and irreversible damage, lack of scientific
knowledge should not be a cause for postponing measures for prevention of
environmental degradation.8 The apex court furthermore describes this principle as an
approach to the protection of the environment or human health based on precaution,
where there is no clear evidence of harm or risk of harm from an activity or substance.
This principle is a part of sustainable development and it provides for taking protection
against specific environmental hazards by avoiding or reducing environmental risks
before specific harms are experienced9.
Precisely, precautionary principle involves the apprehension of environmental harm and
the taking up of effective measures to avoid it or choose the less environmentally harmful
activity.10 Recently, Justice Arijit Pasayat has opined that it is a duty of the government
under Article 21 of the Constitution of India to enforce the principle as a part of
environmental law.11 The basic idea is not only to protect health, property and economic
interests of the society, but also to protect the environment for its own sake.12 This was
reaffirmed in the Rio Conference of 1992 in its principle 15.13

The Proximity Principle:

This principle has originated in the recent years, within the four walls of municipal
law. It advocates that pollution should be curbed in its source itself.14 The industrial
wastes, these days, are used for filling the low lands, where proposed houses would be
built. During transportation and at the time of it's use, it causes pollution. So, restrictions
should be imposed upon the use of this type of polluting substance.

Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715 at p.2721 (per Kuldip Singh
J.)
9
Research Foundation for Science Technology and Natural Resources Policy v. Union of India and Anr.
MANU/SC/0013/2005
10
A.P. Pollution Control Board v. M.V. Nayudu, AIR 1999 SC 812 at p. 820 (per M. Jagannadha Rao J.).
11
T.N. Godavarman Thirumalpad v. Union of India and Ors. (2002) 10 SCC 606, MANU/SC/1317/2002
12
id.
13
Principle 15 : In order to protect the environment, the precautionary approach shall be widely
applied by states according to this capabilities. Where there are threats of serious or irreversible damage,
lack of full scientific certainty shall be used as a reason for post poning cost effective measure to prevent
environmental degradation.
14
See, Principle 19, Rio Declaration 1992.

The Subsidiary Principle:

The concept of subsidiary, found in Commercial law, is also applied in
Environmental law, with a view to control pollution. It asserts that, [T]he primary
responsibility and decision-making competence should rest with the lowest possible level
of authority of the political hierarchy.15
The ecology of a continent comprises of the environmental conditions of all the
countries within it. Infact, a strong relationship exists between the two, the former
entirely depends upon the latter. If any part of a country's environment is polluted or
degraded, it affects the continent's ecology. This concept of trans boundary pollution is
an integral part of the subsidiary principle.

The Polluter Pays Principle:

This principle has well acceptance in international conventions and in municipal legal
system.

Two aspects are highlighted in this principle - on one side, it is used as

compensatory mechanism; on the other, it is used as a preventive mechanism.

Compensatory, because the polluter should pay for the harm inflicted by him on the
environment and preventive, in the sense, that heavy penalty may be imposed upon the
polluters.
This principle entails four different perspectives;
First, criminal responsibility may be imposed upon the polluter;
Secondly, the polluter may be held responsible to make good the harm inflicted by
him;
Thirdly, eco-tax or carbon tax may be imposed upon him;
Finally, law of the land may compel the polluter to participate in preservation of
environment.
It may be mentioned herein, that United States adopted this principle through
Comprehensive Environmental Response Compensation And Liability Act, 1980. The
Council of European Communities adopted this principle as a potential instrument for
15

Philippe Sands, European Community Environmental law, the European Court Justice and
Common - Interest Groups 53 MLR (1990) 685; See also ,"The debate on the Maastricht Treaty brought
to the forefront the issue of subsidarity. Subsidiary is the principle which states that if something can be
carried out more effectively at a level in the hierarchy lower than community level, then that is where it
should be effected. It is the principle of the lowest common denominates",

preservation of Environment.16 The Rio Declaration also emphasized upon the

incorporation of this principle in municipal laws.17 The Supreme Court of India and other
High courts of this land have relied on this principle in different pronouncements.18 The
court has given the meaning of this principle as19 [T]he absolute liability for harm to
of the environment extends not only to compensate the victim of pollution but also the
cost of restoring the environmental degradation.

Conclusion:
The above discussion reveals the following propositions in the context of
preservation of environment:
It is a mere dream to set up a complete pollution free environment; but the pollution
should be at such a level that could easily be assimilated by the environment and the
laws must ensure to that effect.
Industrial advancement is inevitable for fulfilment of the basic needs of the society,
on other hand, it is a potential threat to environment; so the state has to strike a
balance between the two.

16

The Council stress that in the interest of more efficient environmental protection in the context of
effectively integrating environment and economic policy and meeting the fundamental objective of
sustainable development, in particular which comply with the polluter pays principle, it is necessary to
back up current, direct environmental regulations, based on command and control approach, with economic
and fiscal instruments aimed at influencing the reason and behavior of producers and consumers, to
discharge wasteful and polluting process and product and to promote technologies and productive
processes which are consistent with resource conservation.
17
Principle 13," State shall develop national law regarding liability and compensation for the victims of
pollution and other environmental damage. States shall also cooperate in an expeditions and more
determined manner to develop further international law regarding liability and compensation for adverse
effects of environmental damage caused by activities within this jurisdiction or control to area beyond their
jurisdiction."
Principle 16," National authorities should endeavor to promote the internalization of
environmental costs and the use of economic instruments, taking into account the approach
that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and
without disturbing international trade and investment."
18
See, Vellore Citizen Welfare Forum v. Union of India 1996 AIR SC 2715 (Per Kuldip Singh J.) See also,
Indian Council for Enviro- Legal Action v. Union of India 1996 AIR SCN 1069; M.C. Mehta v. Kamal
Nath (1997) SCC 388; M.C. Mehta v. Union of India and others (Taj Mahal Case) (1997) 2 SCC 353;
M.C. Mehta v. Union of India (1997)2 SCC 411, T.N. Godavarman Thirumalpad v. Union of India and
Ors. (2002) 10 SCC 606, MANU/SC/1317/2002, Research Foundation for Science Technology and
Natural Resources Policy v. Union of India and Anr. MANU/SC/0013/2005.
19

id

 The state should stop the spread of pollution from its source and restrictions should be
imposed upon transportation of hazardous substances.
Transboundary pollution has been a major threat to the neighboring countries.
Responsibility should be imposed on the political leaders to arrest these tendencies.
If any mischief is done by industrial corporations, civil, as well as criminal liability
should be imposed upon it by the laws of the land.
To formulate a comprehensive environmental regulation, the incorporation of these
principles is indispensable.
To conclude the authors are of the opinion that India has to go long way in development
of environmental jurisprudence. But at the same time it may be noted with appreciation
that judicial contribution is the development of environmental jurisprudence has got its
own prominence in the map of world environment.