IV MAHAMANA MALVIYA NATIONAL MOOT COURT COMPETITION -- 2016

Q-D
BEFORE THE HONBLE
SUPREME COURT OF RHODO

In the matter of

Union of Rhodo..Appellant
v.
Dashanan Motors Ltd............................................................................................Respondent
SLP 8015/2015

And

Ms. Maya Mehta.......Appellant

v.
Dashanan Motors Ltd........Respondent
SLP 031/2016

MEMORANDUM ON THE BEHALF OF THE RESPONDENT

TABLE OF CONTENTS

IV MAHAMANA MALVIYA NATIONAL MOOT COURT COMPETITION -- 2016

1. Index of Authorities..3-5
2. Statement of Jurisdiction6
3. Statement of Facts7-8
4. Issues Involved9
5. Summary of Arguments10-11
6. Argument Advanced.12-22
I.

WHETHER THE SPECIAL LEAVE PETITION FILED BY UNION OF RHODO

AND MS. MAYA MEHTA ISMAINTAINABLE OR NOT.
[I.A] WHETHER THE HIGH COURT WAS JUSTIFIED IN GRANTING
DAMAGE AND NOT CLOSING DOWN THE PLANTS.

II.

WHETHER DML COULD AVAIL RIGHT TO TRADE OR BUSINESS TO

PROTECT ITS INDUSTRY FROM BEING CLOSING DOWN.

III.

WHETHER THERE IS AN INTERNATIONAL OBLIGATION ON STATE TO

FOLLOW THE PRINCIPLE OF SUSTAINABLE DEVELOPMENT.

[III.A] WHETHER POLLUTER PAYS PRINCIPLE AND PRECAUTIONARY

PRINCIPLE COME UNDER THE PURVIEW OF SUSTAINABLE DEVELOPMENT.

7. Prayer23

Index of Authorities

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STATUTES:
1.

The Constitution of India, 1950

2.

Environment Protection Act, 1986S

3.

Air (Prevention and Control of Pollution) Act, 1981

4.

The Water (Prevention and Control of Pollution) Act, 1978

5.

The Hazardous Wastage (Management and Handling) Rules, 1989

Cases:

1. Western India Plywood Limited v. P.Ashokan(1997) 7 SCC 63812

2. General Secy. v. R.M.S (1991) 2 UJSC 400...12
3. Abhilash Textile v. Rajkot Municipal Corporation,AIR 1988 Guj 5712
4. Maneka Gandhi v. Union of India AIR 1978 SC 59714
5. State of Orissa v. Dr. (Miss) Binapani Dei and Ors.(1967) IILLJ 266 SC .14
6. M.C.Mehta v. Union of India.......14
7. State of Maharashtra v. HimmatbhaiNarbheramRao : AIR 1970 SC 1157..15
8. Vellore Citizen Welfare Forum v. Union of India AIR 1996 SC 2715 15
9. Narmada BachaoAndolanv. Union of India AIR 2000 SC 375116
10. Indian Council for Enviro-Legal Action v. Union of India [(1996) 3 SCC 212] 18
11.Enviro - Legal Action v. Union of India.19
CONVENTIONS:
1.

The Principles of Stockholm Conference, 1972

2.

The Principles of Kyoto Protocol, 1992

3.

The Principles of Rio Summit, 1992

BOOKS REFERRED:
1. BASU D.D., COMMENTARY ON CONSTITUTION OF INDIA (8th
ed.,WADHWA AND COMPANY, NAGPUR, 2010)
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2. JUSTICE BHAGABATI PRASAD BANERJEE, WRIT REMEDIES (WITH A
SPECIAL CHAPTER ON PUBLIC INTEREST LITIGATION), (3rd ed. WADHWA
AND COMPANY, NAGPUR, 2004)
3. BASU D.D., CONSTITUTION

OF

INDIA

(14th

ed.,

LEXISNEXIS

BUTTERWORTHS WADHWA, NAGPUR, 2009)

4. JAIN M.P, INDIAN CONSTITUTIONAL LAW, (6 th ed., LEXISNEXIS
BUTTERWORTH WADHWA, NAGPUR, 2011)
5. B.K.DUBEY, MANUAL OF ENVIRONMENTAL AND POLLUTION LAWS
(WADHWA AND COMPANY, INDORE, 2010)
6. R.S.BEDI, ENCYCLOPEDIA OF ENVIRONMENTAL AND POLLUTION
LAWS (2nd ed. NOIDA MANUPATRA, 2006)
7.
S.C.SHASTRI, ENVIRONMENTAL LAW (3rd ed., EASTERN BOOK
COMPANY 2008)
8. R.B. SINGH AND SURESH MISRA, ENVIRONMENTAL LAW IN INDIA:
ISSUES AND RESPONSES (CONCEPT PUBLISHING COMPANY, 1996)
9. A.K.TIWARI, ENVIRONMENTAL LAWS AND MANAGEMENT IN INDIA,
(DEEP& DEEP PUBLICATIONS (P) LTD, 2006)
10. N V PARANJAPE, ENVIRONMENTAL LAWS AND MANAGEMENT IN
INDIA, (1st ed. THOMSON REUTERS, 2015)
11. JUSTICE T.S.DOABIA, WITH A FOREWORD BY DR. M.VEERAPPA MOILY,
ENVIRONMENTAL & POLLUTION LAWS IN INDIA (2nd ed., LEXISNEXIS
BUTTERWORTHS WADHWA, NAGPUR, 2010)
12. SHYAM DIVAN & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND
POLICY IN INDIA - CASES, MATERIALS AND STATUTES, (2 nd ed., OXFORD
UNIVERSITY PRESS, 2002)
13. P.LEELAKRISHNAN, ENVIRONMENTAL

LAW

IN

INDIA,(3rd

ed.

LEXISNEXIS, 2010)
14. H.D.PITHAWALLA, ENVIRONMENTAL LAW (C JAMNADAS & CO, 2013)
15. NOMITA AGGARWAL, SOCIAL AUDITING OF ENVIRONMENTAL LAWS
IN INDIA (NEW CENTURY PUBLICATIONS, 2003)

LEGAL DATABASES:
1. Manupatra
2. SCC Online
3. Westlaw
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4. Hein Online

LEXICONS:
1. Aiyar P Ramanathan, Law Lexicon, 2005
2. Garner Bryana, Blacks Law Dictionary, 7th Edition, 1999
3. Whartons Law Lexicon, 15th Edn. (New Delhi: Universal Law Publishing Co. Pvt.Ltd.,
2009).

STATEMENT OF JURISDICTION
The Honorable Supreme Court of Rhodo has the jurisdiction in this matter under
Article 136 of the Constitution of Rhodo which reads as follows:
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(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgement, decree, determination, sentence, or order in any
cause or matter passed or made by any court or tribunal in the territory of Rhodo.

STATEMENT OF FACTS
1. Dashanan Motors Ltd. (DML) situated in the country of Rhodo, produced a car namely
Pushpak. It also manufactured buses which were marketed under the name Garuda. Due to
the widespread popularity, affordability and reliability of DML vehicles they soon emerged as
the preferred means of mass transit in both rural and urban areas across the country.
2. The sole and principal manufacturing unit of DML is situated in the suburbs of the capital
city of Northern Province, Shivpuri on the banks of the River Asli, due to the easy availability
of resources and raw materials in the hinterland.

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3. In the meantime, there was a growing concern in the international community regarding

the degradation of environment, which led to various international treaties and conferences
with the aim of creating a consensus among nations to make their environmental safety norms
more stringent. The Republic of Rhodo was an active participant and signatory in many of
these significant conventions like the Stockholm Conference, 1972, Kyoto Protocol, 1992,
Rio Summit, 1992, etc. and subsequently it passed various legislations to that effect including
an amendment to its Constitution. It also beefed up its vehicle emission standards and issued
a directive to the Pollution Control Boards (PCBs) of all its provinces to ensure strict
compliance to the afore-mentioned norms.
4. Due to economic crisis during 1990s, during the period of liberalization there was private
acquisition of DML after which it started gaining profit.
5. The factory discharged all its trade effluents in the river Asli. Fifty miles down the river
from where the factory was situated, the river Asli has its confluence with the Khari Sea.
There it has created the largest riverine delta network on the planet, the Mohana which
incidentally has been recognised as an extremely important biosphere reserve by several
international organisations. It has a vast spectrum of flora and fauna species and is inhabited
by a number of endangered species, and has extensive foliage of mangroves.
6. It was in the year 2015 that certain drastic changes were observed in the flora and fauna,
and the health of the natives of this region. The natives of the region started complaining of
having developed black sores on various parts of the body and shortness of breath. About the
same time period, bloated bodies of dead riverine dolphins unique to the Mohana delta
floated up on the shores. These riverine dolphins happened to be of special varieties which
were considered to be endangered. Deleterious changes became evident on the health of the
natives of the region; they started complaining of having developed black sores on various
parts of the body and shortness of breath.
7. This raised an alarm amongst the observing scientists and activists of the Mohana
Biodiversity Conservation Forum (hereinafter referred to as MBCF). The MBCF conducted
an exhaustive research to elicit the reason as to why such detrimental changes had occurred.
Their study revealed that the water of the river Asli was heavily polluted. It contained various
chemicals which are hazardous to flora and fauna of the region.
8. The MBCF also averred it was due to the emission of trade effluents from the plant of
DML. And therefore it opined that the DML was responsible for such environmental
deterioration.
9. Government of Republic of Rhodo led by the Jan RhodoParty (JRP) after proper
consideration and deliberation, working for environmental conservation opted to switch from
Euro IV emission norms to those of Euro VI from 1 January 2016, and issued a directive to
this effect in October 2015 in which it was strictly ordered to all automobile manufacturing
companies to desist the manufacturing and selling all vehicles which do not comply with the
new norms.

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10. The DML manufactured only three vehicles namely Pushpak Hatchback and Pushpak
Sedan among cars and Garuda Premium bus which were non-compliant with the new norms.
And thus the board of directors were of the view that the directive of the government was
inconsiderate and violated their fundamental rights.
11. The Board of Directors of the company moved to the Honble High Court of Judicature of
Shivpuri seeking issuance of a writ in nature of mandamus so as to get the impugned
directive annulled. The petitioner in this case alleged that the directive of the central
government was unconstitutional as it violated their fundamental right to freedom of trade
and profession, and also the right to livelihood of their employees. The Honble High Court
took the arguments of the DML into proper consideration and ordered in favor of the
Petitioners.
12. Central Government feeling aggrieved by decision of the High Court approached the
Supreme Court of Rhodo under its appellate jurisdiction. It filed an SLP under article 136 of
the Constitution.
13. Ms. Maya Mehta, an environmental activist turned to the third pillar of democracy and
filed a Public Interest Litigation (PIL) in the High Court of Judicature of Northern Province
at Shivpuri on 16 November 2015 regarding the same matter.
14. The High Court in its final judgment held that the report of the Pollution Control Board
revealed that the plant discharged such effluents in the river Asli which contained many
chemicals which were way beyond the prescribed limits. The court further held that it was
necessary to grant damages to the natives of the region and that it was also compelled to issue
a directive to close the plant. But after having paid heed to the arguments of the respondent
company it was of the opinion that if the plant was closed then it would render about 45000
employees of the enterprise unemployed, and that it would it would also leave around 2 lac
family members of these employees in misery, hunger and squalor. Hence it decided not to
issue any directive to shut the plant but it did order the company to pay damages worth Rs.10
crores to the aggrieved natives.
15. Aggrieved by the decision that it was not as per to secure end of justice she filed a Special
Leave Petition before the Supreme Court of Republic of Rhodo seeking enhancement of the
awarded damages and closure of the plants.

ISSUES INVOLVED
1. WHETHER THE SPECIAL LEAVE PETITION FILED BY UNION OF RHODO
AND MS. MAYA MEHTA ISMAINTAINABLE OR NOT.
1.A WHETHER THE HIGH COURT WAS JUSTIFIED IN GRANTING DAMAGE
AND NOT CLOSING DOWN THE PLANTS OR NOT.
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2. WHETHER DML COULD AVAIL RIGHT TO TRADE OR BUSINESS TO

PROTECT ITS INDUSTRY FROM BEING CLOSING DOWN OR NOT.
3. WHETHER THERE IS AN INTERNATIONAL OBLIGATION ON STATE TO
FOLLOW THE PRINCIPLE OF SUSTAINABLE DEVELOPMENT OR NOT.
3.A WHETHER POLLUTER PAYS PRINCIPLE AND PRECAUTIONARY
PRINCIPLE COME UNDER THE PURVIEW OF SUSTAINABLE DEVELOPMENT OR
NOT.

SUMMARY OF ARGUMENTS
1.

WHETHER THE SPECIAL LEAVE PETITION FILED BY UNION OF

RHODO AND MS. MAYA MEHTA ISMAINTAINABLE OR NOT.

The special leave petition is not maintainable. There is no specific ground on which the
judgment of High Court of Shivpuri would be considered as erroneous. The judgment given
by the respective High Court is justified in true spirits in the eyes of law. Here considering the
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verdict of the Court, there seems to be no error of law being committed while hearing the
matter and deciding the same. The action taken by the company is in furtherance of the
principle of economic and social justice and thus cannot be termed as arbitrary or as one
which was without the application of the mind. Yes, the concerned High Court was justified
in granting the damage and not closing down the plant.
2.

WHETHER DML COULD AVAIL RIGHT TO TRADE OR BUSINESS TO

PROTECT ITS INDUSTRY FROM BEING CLOSING DOWN OR NOT.

The DML enjoys the right to trade or business guaranteed under fundamental rights provided
by part III of the Constitution to protect its industry from being closed down. The judgment
of High Court Shivpuri stands good in the light of the fact that in todays progressive world a
balance between ecology and the development must be made otherwise there would be a
great loss to the development of our nation. If there would be shutting of the industries or
closing of the industries it would result in a sharp increase in unemployment. Thus it becomes
need of the hour to derive a national policy creating an equilibrium for industries and
environmental aspects. Also in various pronouncements, judiciary has tried to attempt
towards a balance between running of the industry and environmental aspect as closing down
is not a reasonable option.
In this case too there are 45000 employers and it is not a small number. It would create a
heavy chaos in the contemporary society.when science and technology are increasingly
employed in producing goods and services calculated to improve the quality of life, there is a
certain element of hazard or risk inherent in the very use of science and technology and it is
not possible to totally eliminate such hazard or risk altogether. We cannot possibly adopt a
policy of not having any chemical or other hazardous industries merely because they pose
hazard or risk to the community. If such a policy were adopted, it would mean the end of all
progress and development. Such industries, even if hazardous, have to be set up since they
are essential for economic development and advancement of well-being of the people.

3.

WHETHER THERE IS AN INTERNATIONAL OBLIGATION ON STATE

TO FOLLOW THE PRINCIPLE OF SUSTAINABLE DEVELOPMENT OR
NOT.
Yes, there in an international obligation for sustainable development but as per Principle 11of
Stockholm Declaration which says that the environmental policies of all States should
enhance and not adversely affect the present or future development potential of developing
countries, nor should they hamper the attainment of better living conditions for all, and
appropriate steps should be taken by States and international organizations with a view to
reaching agreement on meeting the possible national and international economic
consequences resulting from the application of environmental measures. And it is well known
to all of us that Rhodo is a developing country any law relating to the environment should not
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be of such a nature that it affects the development of the country.Also, Sustainable
development is an integral part of fundamental rights conferred on citizens by the
Constitution and cannot be allowed to be hampered by environmental degradation, the
Supreme Court has said in various judgements. Inter-generational equity and sustainable
development have come to be firmly embedded in our constitutional jurisprudence as an
integral part of the fundamental rights conferred by Article 21(Right to Life) of the
Constitution. In enforcing such rights of a large number of citizens who are bound to be
adversely affected by environmental degradation.
The Supreme Court through its multiple judgments has laid down that the "Precautionary
principle" and the "Polluter Pays Principle" are essential features of "sustainable
development". These concepts are part of Environment Law of the country. The
"Precautionary Principle" establishes that a lack of information does not justify the absence
of management measures. On the contrary, management measures should be established in
order to maintain the conservation of the resources. The assumptions and methods used for
the determination of the scientific basis of the management should be presented.
The precautionary principle and the polluter pays principle have been accepted as part of the
law of the land which can be analyzed after considering these Articles of the Constitution.
Article 21 of the Constitution of India guarantees protection of life and personal liberty.
Article 47, 48A and 51A (g) of the Constitutional are as under:
Article 47. Duty of the State to raise the level of nutrition and the standard of living and to
improve public health. - The State shall regard the raising of the level of nutrition and the
standard of living of its people and the improvement of public health as among its primary
duties and in particular, the State shall endeavor to bring about prohibition of the
consumption except from medicinal purposes of intoxicating drinks and of drugs which are
injurious to health.
Article 48A. Protection and improvement of environment and safeguarding of forests and
wild life. - The State shall endeavor to protect and improve the environment and to safeguard
the forests and wild life of the country.
Article 51A (g). To protect and improve the natural environment including forests, lakes,
rivers and wild life, and to have compassion for living creatures.
ARGUMENT ADVANCED
1. WHETHER THE SPECIAL LEAVE PETITION FILED BY UNION OF
RHODO AND MS. MAYA MEHTA IS MAINTAINABLE OR NOT?
The Supreme Court can interfere under a special leave petition with an order of the High
Court under Article 226 where the High Court is incorrect in point of law. It was decided in

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Western India Plywood Limited v. P.Ashokan 1,whereas basic error of law is committed by the
High Court, Supreme Court can also interfere. It was decided in General Secy.v. R.M.S 2.The
judgement given by High Court is justified and is in true spirits in the eyes of law. Here
considering the verdict of the Court, there seems to be no error of law being committed while
hearing the matter and deciding the same.
The action taken by the company is in furtherance of the principle of economic and social
justice and thus cannot be termed as arbitrary or as one which was without the application of
the mind. When science and technology are increasingly employed in producing goods and
services calculated to improve the quality of life, there is a certain element of hazard or risk
inherent in the very use of science and technology and it is not possible to totally eliminate
such hazard or risk altogether. We cannot possibly adopt a policy of not having any chemical
or other hazardous industries merely because they pose hazard or risk to the community. If
such a policy were adopted, it would mean the end of all progress and development. Such
industries, even if hazardous, have to be set up since they are essential for economic
development and advancement of well-being of the people. We can only hope to reduce the
element of hazard or risk to the community by taking all necessary steps for locating such
industries in a manner which would pose least risk of danger to the community and
maximizing safety requirements in such industries. The High Court has taken the proper
consideration of the conditions and it has seen the situation of upcoming unemployment.
Because of the fact that the company is employing currently 45000 man power including
skilled and unskilled both.

1.A WHETHER THE HIGH COURT WAS JUSTIFIED IN GRANTING DAMAGE

AND NOT CLOSING DOWN THE PLANTS.
Yes, the High Court of Shivpuri was justified in granting the damage and not closing down
the plant. Supreme Court in Narmada Bachao Andolan v. Union of India 3, wherein it was
observed that Sustainable development means what type or extent of development can take
1(1997) 7 SCC 638 (para 14)
2(1991) 2 UJSC 400
3AIR 2000 SC 3751(para 150)
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place, which can be sustained by nature/ecology with or without mitigation. In this context,
development primarily meant material or economic progress. Being a developing country,
economic progress is essential; at the same time, care has to be taken of the environment.
In the early days of development of jurisprudence on the subject, in February 1986, the
Supreme Court in MC Mehtas case struck the realistic note by opinion to the effect that there
was a need to strike a balance between progress & development and hazard or risk to the
community. It said that: ..when science and technology are increasingly employed in producing goods and
services calculated to improve the quality of life, there is a certain element of hazard or risk
inherent in the very use of science and technology and it is not possible to totally eliminate
such hazard or risk altogether. We cannot possibly adopt a policy of not having any chemical
or other hazardous industries merely because they pose hazard or risk to the community. If
such a policy were adopted, it would mean the end of all progress and development. Such
industries, even if hazardous, have to be set up since they are essential for economic
development and advancement of well-being of the people. We can only hope to reduce the
element of hazard or risk to the community by taking all necessary steps for locating such
industries in a manner which would pose least risk of danger to the community and
maximizing safety requirements in such industries. We would therefore like to impress upon
the Government of India to evolve a national policy for location of chemical and other
hazardous industries in areas where population is scarce and there is little hazard or risk to the
community, and when hazardous industries are located in such areas, every care must be
taken to see that large human habitation does not grow around them. There should preferably
be a green belt of 1 to 5 km width around such hazardous industries.

2. WHETHER DML COULD AVAIL RIGHT TO TRADE OR BUSINESS TO

PROTECT ITS INDUSTRY FROM BEING CLOSING DOWN?
The fundamental rights of the DASHANAN MOTORS LIMITED have been violated since
the Constitution of Rhodo provides right to freedom and trade under Article 19 (1) (g) of
fundamental rights. Article 19(1) (g) provides to practice any trade any profession, or to carry
any occupation or business. It is quite obvious that a conflict will arise between a right to
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carry on trade and economic development on one hand and prevention as well as protection
on the other hand. The answer of this question is not a simple one. An attempt has been made
by the High Court of Gujarat in Abhilash Textile v. Rajkot Municipal Corporation 4,to answer
it.
The contention of the petitioner was that they were carrying on the business by which they
were providing employment to 30 thousand families and hence the proposed action to close
down their industry will have severe effect on them. They pleaded that before taking the
drastic step the opportunity to being heard must be provided to them. They took shelter under
the observation of the supreme court in Maneka Gandhi v. Union of India 5to protect the trade
in which it was observed:
it is well established that even where there is no specific provision in a statute or rules
made there under for showing cause against action proposed to be taken against an
individual, which affects the rights of the individual the duty to give reasonable opportunity
to be heard will be implied from the nature of the function to be performed by the authority
which has the power to take punitive or damaging actions. This principle was laid down by
this Court in the State of Orissa v. Dr. (Miss) Binapani Dei and Ors.6In the following words:
The rule that a party to whose prejudice and order is intended to be passed is entitled to a
hearing applies alike to judicial tribunals and bodies of persons invested with authority to
adjudicate upon matters involving civil consequences. It is one of the fundamental rules of
our constitutional set-up that every citizen is protected against exercise of arbitrary authority
by the State or its officers. Duty to act judicially would therefore arise from the very nature of
the function intended to be performed; it need not be shown to be super-added. If there is
power to decide and determine to the prejudice of a person, duty to act judicially is implicit in
the exercise of such power. If the essentials of justice be ignored and an order to the prejudice
of a person is made, the order is a nullity. That is a basic concept of the rule of law and
importance thereof transcends the significance of a decision in any particular case.

4AIR1988Guj57 (para 13)

5AIR1978SC597(para 32)
6(1967)IILLJ266SC(para 10)
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Regarding the contentions of the petitioners that business is being carried on for a long period
of time, the court observed:
If the petitioners wish to carry on business then they may have to incur expenditure and they
must provide for purification plant before discharging the effluents toxins in the rivers. And
the petitioner cannot be allowed to reap profit at the cost of public health. This is the mandate
of the law.
Hazardous and heavy industries are sine qua non of economic development. These industries
leave behind their impact in the form of pollution and threat to ecology. In order to strike a
balance between the two conflict activities in M.C. Mehta v. Union of India 7the supreme
court directed the government of India to evolve a national policy for location of hazardous
industries in areas where pollution is scarce and there is little hazard to the community, and
when hazardous industries are located in such areas, every care must be taken to see the large
human habitation does not grow around them. This is a question which will require serious
consideration and a National Policy will have to be evolved by the Government for location
of toxic or hazardous industries and a decision will have to be taken in regard to relocation of
such industries with a view to eliminating risk to the community likely to arise from the
operation of such industries. There should preferably be a green belt of 1 to 5 km width
around such hazardous industries.
In the case of State of Maharashtra v. Himmatbhai Narbheram Rao 8the question with regard
to right to ' business in carcass arose, came up for consideration. It is inter alia observed
"under the Constitution a proper balance is intended to be maintained between the exercise of
the right conferred by Article 19(1)(f) and (g) and the interests of a citizen in the exercise of
his right to acquire, hold or dispose of his property or to carry on occupation, trade or
business. In striking that balance the danger which may be inherent in permitting unfettered
exercise of right in a commodity must of necessity influence the determination of the
restrictions which may be placed upon the right of the citizen "to the commodity". It is
further observed that the law which compels removal to the appointed place and disposal of
the, carcass under the supervision of the Corporation to which is entrusted the power and duty

7AIR1987SC965 (para 11),

8AIR 1970 SC 1157 (para 12)
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to take steps to maintain the public health cannot also be regarded as arbitrary or excessive
merely because the enforcement of the law involves some pecuniary loss to the citizen."

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3. WHETHER THERE IS AN INTERNATIONAL OBLIGATION ON STATE TO
FOLLOW THE PRINCIPLE OF SUSTAINABLE DEVELOPMENT?
Sustainable development finds its roots in Stockholm Conference, 1972.Stockholm
Declaration affirms that "Man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of quality that permits a life of dignity and well-being,
and he bears a solemn responsibility to protect and improve the environment for present and
future generations..." This shows that it has been internationally recognized that man's
fundamental rights embraces the need to live in an uncontaminated environment but it also
puts forth man's obligation to protect the environment for posterity.
The first case on which the apex court had applied the doctrine of ' Sustainable Development'
was Vellore Citizen Welfare Forum v. Union of India 9. In the instant case, dispute arose over
some tanneries in the state of Tamil Nadu. These tanneries were discharging effluents in the
river Palar, which was the main source of drinking water in the state. The Honourable
Supreme Court held that:
In the International sphere "Sustainable Development" as a concept came to be known for the
first time in the Stockholm Declaration of 1972. Thereafter, in 1987 the concept was given a
definite shape by the World Commission on Environment and Development in its report
called "Our Common Future". The Commission was chaired by the then Prime Minister of
Norway Ms. G.N. Brundtland and as such the report is popularly known as "Brundtland
Report". In 1991 the World Conservation Union, United Nations Environment Programme
and World Wide Fund for Nature, jointly came out with a document called "Caring for the
Earth" which is a strategy for sustainable living. Finally, came the Earth Summit held in June,
1992 at Rio which saw the largest gathering of world leaders ever in the history - deliberating
and chalking out a blue print for the survival of the planet. Among the tangible achievements
of the Rio Conference was the signing of two conventions, one on biological diversity and
another on climate change. These conventions were signed by 153 nations. The delegates also
approved by consensus three non-binding documents namely, a Statement on Forestry
Principles, a declaration of principles on environmental policy and development initiatives
and Agenda 21, a programme of action into the next century in areas like poverty, population
and pollution. During the two decades from Stockholm to Rio "Sustainable Development"
has come to be accepted as a viable concept to eradicate poverty and improve the quality of
9AIR1996SC2715 (para 10)
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human life while living within the carrying capacity of the supporting eco-systems.
"Sustainable Development" as defined by the Brundtland Report means "development that
meets the needs of the present without compromising the ability of the future generations to
meet their own needs". We have no hesitation in holding that "Sustainable Development' as a
balancing concept between ecology and development has been accepted as a part of the
Customary International Law though its salient features have yet to be finalised by the
International Law jurists.
The court also held that: Remediation of 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.
Sustainable development is an integral part of fundamental rights conferred on citizens by the
Constitution and cannot be allowed to be hampered by environmental degradation, the
Supreme Court has said. Inter-generational equity and sustainable development have come
to be firmly embedded in our constitutional jurisprudence as an integral part of the
fundamental rights conferred by Article 21(Right to Life) of the Constitution. In enforcing
such rights of a large number of citizens who are bound to be adversely affected by
environmental degradation, this Court cannot be constrained by the restraints of procedure,
the apex court has said. A bench headed by Justice Aftab Alam said damage caused to
environment due to illegal mining in Karnataka has shocked judicial conscience and long
arm of the law is to be demonstrated in such cases. The satellite imageries placed before the
court with regard to environmental damage and destruction has shocked judicial conscience,
the bench said while referring to illegal mining in the state. Illegal mining apart from
playing havoc on the national economy had, in fact, cast an ominous cloud on the credibility
of the system of governance by laws in force. It has had a chilling and crippling effect on
ecology and environment, it said. (Source: The Hindu 19 April 2013)
There in an international obligation for sustainable development but as per Principle 11of
Stockholm Declaration which declares that the environmental policies of all States should
enhance and not adversely affect the present or future development potential of developing
countries, nor should they hamper the attainment of better living conditions for all, and
appropriate steps should be taken by States and international organizations with a view to
reaching agreement on meeting the possible national and international economic
consequences resulting from the application of environmental measures. And it is well known
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to all of us that Rhodo is a developing country any law relating to the environment should not
be of such a nature that it affects the development of the country.
And there is further option before the court that it must not order to close the company
instead order for shifting of the manufacturing unit of the company. As per principle 12 of
Stockholm declaration resources should be made available to preserve and improve the
environment, taking into account the circumstances and particular requirements of
developing countries and any costs which may emanate- from their incorporating
environmental safeguards into their development planning and the need for making available
to them, upon their request, additional international technical and financial assistance for this
purpose. So its the responsibility of the state to provide resource. Principle 13 also talks
regarding it.
As per Principle 13 of the Stockholm declaration In order to achieve a more rational
management of resources and thus to improve the environment, States should adopt an
integrated and coordinated approach to their development planning so as to ensure that
development is compatible with the need to protect and improve environment for the benefit
of their population. And the term rational planning is defined in the Principle 14 of
Stockholm declaration. Rational planning constitutes an essential tool for reconciling any
conflict between the needs of development and the need to protect and improve the
environment. So it is humbly put before the honourable court to order for the shifting of the
company rather closing it down.
3.A

WHETHER POLLUTER PAYS PRINCIPLE AND PRECAUTIONARY

PRINCIPLE COME UNDER THE PURVIEW OF SUSTAINABLE DEVELOPMENT?

In Indian Council for Enviro-Legal Action v. Union of India 10, Supreme Court found
Polluter Pays Principle to be a sound rule, since it was simple, practical and suited to the
conditions obtaining in this country. It was held 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.

10[(1996) 3 SCC 212] (para 65)

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The Supreme Court has laid down that the "Precautionary principle" and the "Polluter Pays
Principle" are essential features of "sustainable development". These concepts are part of
Environment Law of the country. The "Precautionary Principle" establishes that a lack of
information does not justify the absence of management measures. On the contrary,
management measures should be established in order to maintain the conservation of the
resources. The assumptions and methods used for the determination of the scientific basis of
the
The

management
essential

should

ingredients

of

be

the

precautionary

presented.
principle

are:

(i) Environmental measures- by the state government and the statutory authorities- must
anticipate,

prevent

and

attack

the

causes

of

environment

degradation.

(ii) When there are threats of serious and irreversible damage, lack of scientific certainty
should not be used as a reason for postponing measure to prevent environmental degradation.
(iii) The Onus of Proof is on the actor or the developer/industrialist to show that his action
is

environmentally

benign.

(iv) Precautionary duties must not only be triggered by the suspicion of concrete danger but
also

by

concern

or

risk

potential.

The polluter pays principle came about in the 1970's when the importance of the
environment and its protection was taken in world over. It was subsequently promoted by the
Organization for Economic Cooperation and development (OECD). The polluter pays'
principle as interpreted by the Court means that the absolute liability for harm to the
environment extends not only to compensate the victims of pollution but also the cost of
restoring the environmental degradation.
Some of the salient principles of "Sustainable Development", as culled-out from Brundtland
Report and other international documents, are Inter-Generational Equity, Use and
Conservation of Natural Resources, Environmental Protection, the Precautionary Principle,
Polluter Pays principle, Obligation to assist and cooperate, Eradication of Poverty and
Financial Assistance to the developing countries. We are, however, of the view that "The
Precautionary Principle" and "The Polluter Pays" principle are essential features of
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"Sustainable Development". The "Precautionary Principle" - in the context of the municipal
law - means:
(i) Environmental measures - by the State Government and the statutory authorities - must
anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty
should not be used as a reason for postponing measures to prevent environmental
degradation.
(iii) The "Onus of proof is on the actor or the developer/industrialist to show that his action
is environmentally benign.
"The Polluter Pays" principle has been held to be a sound principle by this Court in Indian
Council for Enviro - Legal Action v. Union of India, J.T.11. The Court observed, "We are of
the opinion that any principle evolved in this behalf should be simple, practical and suited
to the conditions obtaining in this country". The Court ruled 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 are
"absolutely liable to compensate for the harm caused by them to villagers in the affected
area, to the soil and to the underground water and hence, they are bound to take all
necessary measures to remove sludge and other pollutants lying in the affected areas". The
"Polluter Pays" principle as interpreted by this Court means that the absolute liability for
harm to the environment extends not only to compensate the victims of pollution but also
the cost of restoring the environmental degradation. Remediation of 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 precautionary principle and the polluter pays principle have been accepted as part of
the law of the land. Article 21 of the Constitution of India guarantees protection of life and
personal liberty. Article 47 48A and 51A (g) of the Constitutional are as under:
11(1996) 2 196
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Article 47. Duty of the State to raise the level of nutrition and the standard of living and to
improve public health. - The State shall regard the raising of the level of nutrition and the
standard of living of its people and the improvement of public health as among its primary
duties and in particular, the State shall endeavor to bring about prohibition of the
consumption except from medicinal purposes of intoxicating drinks and of drugs which are
injurious to health.
Article 48A. Protection and improvement of environment and safeguarding of forests and
wild life. - The State shall endeavor to protect and improve the environment and to
safeguard the forests and wild life of the country.
Article 51A (g). To protect and improve the natural environment including forests, lakes,
rivers and wild life, and to have compassion for living creatures.
Apart from the constitutional mandate to protect and improve the environment there are
plenty of post-independence legislations on the subject but more relevant enactments for
our purpose are: The Water (Prevention and Control of Pollution) Act, 1974 (the Water
Act), The Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the
Environment Protection Act 1986 (the Environment Act). The Water Act provides for the
Constitution of the Central Pollution Control Board by the Central Government and the
Constitution of the State Pollution Control Boards by various State Governments in the
country. The Boards function under the control of the Governments concerned. The Water
Act prohibits the use of streams and wells for disposal of polluting matters. Also provides
for restrictions on outlets and discharge of effluents without obtaining consent from the
Board. Prosecution and penalties have been provided which include sentence of
imprisonment. The Air Act provides that the Central Pollution Control Board and the State
Pollution Control Boards constituted under the Water Act shall also perform the powers
and functions under the Air Act. The main function of the Boards, under the Air Act, is to
improve the quality of the air and to prevent, control and abate air pollution in the country.
We shall deal with the Environment Act in the later part of this judgment.

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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Honble
Court be pleased to:
1. Dismiss the writ petition.
2.

In the alternative declare and adjudge:

a. That the appellant have violated the fundamental rights of DML.

b. That the Respondents must be given with the opportunity either to shift their
manufacturing unit or providing reasonable time to upgrade their technology to comply with
the new norms.
AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
And for this, the Respondents as in duty bound, shall humbly pray.

COUNSELS FOR THE RESPONDENTS

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