DR.

RAM MAHOHAR LOHIYA NATIONAL LAW

UNIVERSITY

(PROJECT)
ENVIRONMENT LAW

ENFORCMENT OF ENVIRONMENTAL LEGISLATION AND JUDICIAL

ACTIVISM

SUBMITTED TO: SUBMITTED BY:

Mr. Bhanu Pratap Singh Sankalp Patel

Asst. Prof. (Law) Roll no. 131

RMLNLU, Section: B

Lucknow VIthSemester

B.A. LL.B. (Hons.)

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 ACKNOWLEDGMENT

Firstly, I would like to thank my Environmental Law Teacher Mr. Bhanu Pratap Singh for giving
me such a golden opportunity to show my skills through this project. The project is a result of an
extensive research study, hard work and labour, that is put into to make it worth reading.

I wish to acknowledge that in completing this project I had full support of my friends as well as
my teacher. This project would not have been completed without the help of my university’s
library Dr.Madhu Limaye library and through the university’s internet.

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 Contents

1. INTRODUCTION………………………………………………………………………………………..2

2. KYOTO PROTOCOL…………………………………………………………………………………….4

3. DEVELOPMENT IN INDIA…………………………………………………………………………..5

a. Protection during British Rule in India…………………………………………………5

4. SCENARIO AFTER INDEPENDENCE: A CONSTITTUTIONAL PERSPECTIVE..6

a. Obligation on Part of State………………………………………………………………….6

b. Obligation on Part of Citizens………………………………………………………………7

c. Right to Life and Environment…………………………………………………………….8

5. PUBLIC INTEREST LITIGATION……………………………………………………………….10

a. The Polluter Pay Principle………………………………………………………………….11

b. The Precautionary Principle……………………………………………………………….11

c. The Principle of Sustainable Development……………………………………………11

6. CONCLUSION…………………………..……………………………………………………………….13

7. REFRENCES………………………………………………………………………………………………14

INTRODUCTION

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 "The world today is economically richer and environmentally poorer than ever,”1
Due to increased exploitation, pollution and population growth, it is estimated that in less than
200 years, 128 species of birds and 95 species of mammals have disappeared from the globe. For
example elephants, it is estimated, would be extinct from Indian subcontinent in the very near
future same as lions who would have same fate. Currently, India is ranked as one of the top five
emitters of greenhouse gas emissions.2 though as a developing country whose industrial process
began in the latter half of the 20th century it does not bear historical responsibility for carbon
dioxide reduction targets.3 According to a recent Climate Change Performance Index, India's
energy-related emissions are much lower than that of China or United States, which contributed
18.80% and 21.44%, respectively in 2007.4 Thus the situation is worse in case of India.
It is only through the rule of law that society can protect our environment and preserve our
natural resources. Law and lawyers are essential for effective protection of the environment. The
lawyers around the globe recognize the key role that environmental concerns will play, in
industrial, social, political and financial decision making. Law has been protecting environment
since ages all over the world but international collective efforts by countries began only in mid
and late nineties and in 1974 international environmental law was a fledgling field with less than
three dozen multilateral agreements. 5

Today international environmental law is arguably setting the pace for cooperation in the
international community in the development of international law. There are nearly nine hundred
international legal instruments that are either primarily directed to international environmental
1
Lester R. Brown, president of Washington-based World Watch Institute.
2
http://siteresources.worldbank.org/INTDATASTA/64199955-1178226923002/21322619/LGDB2007.pdf
3
Under Article 2(a)-(b) of the UNFCCC, only developed countries and other Annex I countries are required to
stabilize emissions by adopting appropriate national policies and regularly submit progress reports. See UNFCCC,
supra note 20, art. II. Further, under Article 3 of the Kyoto Protocol, Annex I countries are required to reduce their
GHG emissions to at least 5% below 1990 levels between 2008-2012, and have been assigned specific emission
quotas under Annexes A and B, see Kyoto Protocol, supra note 21 at art. III.
4
between 1990 and 2004, China's CO2 emissions in metric tons increased from 2,398.9 to 5,007.1, the
United States from 4818.3 to 6045.8, and India from 681.7 to 1342.1. Statistics of the Human Development Report,
2007/2008 Human Development Index Rankings (UNDP HDI), available at http://hdr.undp.org/en/statistics.
5
Edith Brown Weiss, International Environmental Law: Contemporary Issues and the Emergence of a New
World Order, 81 GEO. L. J. 675-84, 702-10 (1993). Copyright 199. Reprinted by permission.

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issues or contain important provisions on them. This proliferation of legal instruments is likely to
continue. In the early 20th century, conventions to protect commercially valuable species were
reached, which included:

 Convention for the Protection of Birds Useful to Agriculture (1902)

 Convention for the Preservation and Protection of Fur Seals (1911)
 Convention for the Protection of Migratory Birds (1916)
 Convention Relative to the Preservation of Fauna and Flora in their Natural State,
acceded by India in 1939.

These were some of the initial agreements contracted by states for preservation of natural
resources. It was in 1960s that environmentalism became an important political and intellectual
movement in the West and countries passed a plethora of legislations for protection of
endangered species, natural resources, air and water pollution etc.

Finally on 5th June 1972 beginning of ‘modern’ international environment law is deemed with the
opening of the first United Nations Conference on the Human Environment held in Stockholm
which lead to the establishment of the United Nations Environment Programme (UNEP) as the
world’s principal international environmental organization and also celebrated as World
Environment Day. Establishment of UNEP with a decentralized action plan was a dawn of new
era which assigned responsibilities to wide spectrum of existing institutions with a plethora of
new legal instruments working within network of various international regimes.
Even the happening of disasters like Chernobyl lead to creation of new treaty agreements the
Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the
Case of Nuclear Accident or Radiological Emergency, both adopted in 1986—were rapidly
drafted to ensure notification and assistance in the event of a nuclear accident. In the following
decade a Convention on Nuclear Safety (1994) established incentives for countries to adopt basic
standards for the safe operation of land-based nuclear power plants.

Kyoto Protocol

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The Kyoto Protocol was adopted as the first addition to the United Nations Framework
Convention on Climate Change (UNFCCC), an international treaty that committed its signatories
to develop national programs to reduce their emissions of greenhouse gases. Such gases,
including carbon dioxide and methane, affect the energy balance of the global atmosphere in
ways expected to lead to an overall increase in global average temperature, known as global
warming. The Protocol also provided several economic based incentives for reducing emissions,
notably provisions for emissions trading, joint implementation, and clean development
mechanisms. Since its adoption, the protocol has encountered stiff opposition from some
countries, particularly the United States, which has failed to ratify it. Newly industrializing
nations such as Brazil, China, and India balked at the U.S. government's position that these
countries should also undertake mandatory obligations given their growing rate of emissions. As
a result of the controversy, the Protocol and its mechanisms did not come into effect until 2009,
nearly a decade after its being open for signature and three years before its expiration. A United
Nations Conference on Climate Change was held at Copenhagen in December 2009 in lieu of
expiry of Kyoto Protocol in 2012 which focused on world nations deciding upon a new
agreement which shall replace Kyoto Protocol and it was thought that it shall also form a
platform to discuss current emission rates by nations, but unfortunately no consensus was
reached at, the new global climate change agreement was to be aimed at prevention of massively
rising greenhouse gas emissions which should be ratified by all member nations but irrational
attitude of developed countries made matters worse by not recognizing status of developed
countries which emerged as prime opposers of the pact which inflicted a unnecessary cap on
carbon emissions by developing countries.

Development in India
India has an ancient tradition of protecting the environment. There exist several writings which
prove that in ancient india every individual had to practice the Dharma to protect and worship

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nature.6in Vedic period, cutting of live trees was prohibited and punishment was awarded for the
same. Yajnavalkya Smriti has declared cutting of trees as punishable offence and during the
brahmacharya period observed by every man in his lifetime, was required to protect the
environment and students used to worship various forces of nature. Such was the importance of
environment in minds of ancient Indians.
The Mauryan period was the most glorious period with regard to protection of environment and
various rules have been found regarding the same in Kautliya’s Arthashashtra written during that
period.7 Under the Arthashashtra various punishments were prescribed for cutting trees, killing
animals, fish, etc.8 besides this a full proof system of forest administration was in function and
state assumed the function of maintenance of forests and enacting regulations for the same. Thus,
the Hindu society was conscious of the adverse environmental effects caused by deforestation
and extinction of animal species.

Protection during British rule in India.

The main aim of British coming to India was to exploit its natural resources draining away
wealth to Britian and accordingly the early days of British rule witnessed plunder of natural
resources and a “fierce onslaught” was committed on Indian forests for Teak and Sandalwood to
meet the demands of their nationals residing in India as well as Britain.
It was not until the late 19th century that steps ensuring protection of forests were taken. In 1865
Forest Act was enacted which was revised later in 1878 giving exclusive powers to British
government to regulate the forests and devise regulations for the same. The 1865 act was passed
to facilitate the acquisition of those forest areas that were earmarked for railway supplies. It
merely sought to establish the claims of the state to the forests in immediately required, subject
to the proviso that existing rights would not be abridged.
Legislative measures adopted by the British government for prevention of pollution and
conservation of natural resources were mainly aimed to earn revenue and other ulterior motives,
though the same have contributed a lot in development of environmental jurisprudence in India.

6
CM Jariwala, ‘Changing Dimensions of Indian Law’, in P Leelakrishnan, Law and Enviornment,1992, p 1, at p 2.
7
V.K. Gupta, Kautliyan Jurisprudence, (Delhi, 1987) pp. 155-156
8
Kailash Thakur, ‘Environmental Protection Law and Policy in India’, 1999, p 155

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Scenario after Independence: A Constitutional Perspective
The Constitution of India, which is the supreme law of land, has imposed an obligation to protect
the natural environment both on the state as well as the citizens of India. Part IV of the
constitution called the Directive Principles of State Policy has imposed certain fundamental
duties on the state to protect the environment. Part IV A of the constitution has imposed a
fundamental duty on every citizen of India “to protect and improve the natural environment
including forests, lakes, rivers and wildlife, and to have compassion for living creatures”.

Obligation on part of State

The State's responsibility with regard to environmental protection has been laid down under
Article 48-A inserted by the 42nd constitution amendment act 1976, which directs as follows:
"The State shall endeavour to protect and improve the environment and to safeguard the forests
and wildlife of the country". The Madras high court observed that “the phrase used (in articles
48A and 51A) is ‘protect and improve’ which implies that the phrase appears to contemplate
affirmative governmental action to improve the quality of the environment and not just to
preserve the action to improve the quality of the environment and not just to preserve the
environment in its degraded form”9
The State should strive to “foster respect for international law and treaty obligation” as enshrined
in art 51 of the constitution.Moreover art 37 makes it mandatory that principles contained in Part
IV of the constitution are “fundamental in the governance of the country and it shall be the duty
of the state to apply these principles in the making laws”. Thus State has to take into account
principles laid in articles 39(b), 47 and 48 A individually and collectively to improve the general
health level in the country and to protect and improve the natural environment.10

Supreme Court in A.P. Pollution Control Board II v M.V. Nayudu 11 referred to the resolution of
UNO passed during United Nations Washington Conference in 1977 and observed that “the right
to access to drinking water is fundamental to life and there is a duty on the State under Article 21
to provide clean drinking water to its citizens.”Environmental Pollution may damage the
monuments of national importance, the protection of which is a duty of the State under Article 49
9
M.K. Janardhanam v District Collector, Tiruvallur (2003-1-LW. 262)
10
M.C. Mehta v Union of India (2002) 4 SCC 356
11
2000 SOL Case No. 673.

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of the constitution which casts an obligation on the state to protect monuments, places and
objects of national importance. In the Taj case12 SC inspired by this article protected the Taj
Mahal, from harmful industrial emissions originating in and around Agra.

Therefore it is observed that state is under a binding obligation by the provisions of constitution
and their wider interpretation by courts in India to preserve and protect the environment and
natural resources which is necessary to ensure safe, healthy and decent living to citizens of India.
The active role of judiciary should be contemplated as it has provided new spheres to the existing
law on the point while ensuring that constitutional provisions are honored and applied by the
state.

Obligation on Part of citizens

Paras Diwan, in his work “Environment Administration, Law and Judicial Attitude” has provided
a ironic description of typical Indian mindset, he points out that the people in India love
pollution to such an extent that they cannot live without it, because “traditionally we are
pollution loving nation. We pollute air by bursting crackers on Diwali. We pollute our rivers by
disposing of dead bodies and other human wastes. Any space is good enough for us to ease; we
are country which believes in open latrines. Municipalities are oblivious of their duties and all
city wastes, human and industrial effluents are allowed to flowing open drains and to flood the
streets. No one should be deprived from hearing God and Godmen’s voice-and Gds too are far
away beyond the hell and heaven. Our voice must reach them; otherwise our spiritual needs will
remain unministered.”13 The view hits the nail on head but can be counter argued in the form that
we traditionally are nature loving people and worship nature and its forces, but the same has less
force because reality can’t be overlooked. Moreover majority of population in India, mostly poor
and slum-dwellers are not aware of this problem and even if they were, their life begins and
ends with earning daily bread enough for subsistence and therefore can’t be expected to have
concern for protection of environment.

12
M.C. Mehta v Union of India AIR 1997 SC 734
13
Paras Diwan, ‘Environmental Protection: Issues and Problems’ in Environment Administration, Law and Judicial
Attitude’, 1997 p 5.

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Despite this Environmental protection is a fundamental duty of each and every citizen of this
country and under Article 51-A(g) enumerated in Part IV of our Constitution, inserted via.,
constitution (Forty-second amendment) Act, 1976 the same find a specific mention as follows:
"It shall be the duty of every citizen of India to protect and improve the natural environment
including forests, lakes, rivers and wildlife and to have compassion for living creatures."

The black letters have further been interpreted by courts in a positive sense creating a obligation
on citizens to protect and preserve the environment. In Rural Litigation and Entitlement Kendra
v State of U.P.14 Supreme Court through Ranganath Mishra J statd that “Preservation of
environment and keeping the ecological balance unaffected is atask which not only government
but also every citizen must undertake. It is a social obligation and let us remind every citizen that
it is his fundamental duty as enshrined in Article 51-A(g) of the constitution.”

Thus state has to adopt legislative and administrative measures and guidelines as issued by courts
to protect the environment and to ensure a better living so that citizens too realize their duty
towards the same. Judicial Activism in India provides impetus to the campaign against pollution
but people’s involvement in the justicing process is necessary, without which the system would
crumble under the burden of its insensitivity.

Right to life and environment15

Right to life, implies the right to live without the deleterious invasion of pollution, environmental
pollution, environmental degradation and ecological imbalances. Everyone has the right to life
and a right standard of living adequate for health & well being of himself and of his family.
inherent right to life shall be protected by law.
Principle 1 of the Declaration of UN Conference on Human Environment, 1972 proclaimed that
man has the fundamental right to freedom, equality and adequate conditions of life in an
environment of a quality that permits a life of dignity and well being.

14
AIR 1987 SC 359, p 364.
15
Michael R. Anderson & Anees Ahmed, Assessing Environmental Damage Under Indian Law, 4 RECIEL 335, 336
(1996)(explaining that Article 21 of the Indian Constitution recognizes the citizens' right to life, which the courts
have interpreted to include the right to a "healthy and pollution free environment")

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Right to free and healthy environment: As a Fundamental Right guaranteed in Indian
Constitution Environmental values or rights may be constitutionalised either explicitly by
amending the constitution or implicitly by interpreting the existing constitutional language to
include environmental protection. Immediately after the Stockholm Declaration, there was a
growing trend in national legal systems to give constitutional status to environmental protection.
India followed in the pursuit by amending the Constitution to include environment specific
provisions in 1976. The birth of right to environment was the direct result of an inclusion these
additional provisions.

The Indian Supreme Court, being one of the most active judiciaries in the world, also created a
landmark in the quest of international judicial activism by developing the concept of right to
healthy environment as a part of right to life under Art 21 of our Constitution which reads as
follows:“No person can be deprived of his life and personal liberty except according to the
procedure established by law.” The seminal case that demonstrated the court's willingness to
expand the "right to life" to include environmental protection was Rural Litigation v. State
ofUttar Pradesh.16 The court in T. Ramakrishna Rao v. Hyderabad Urban Development took the
idea one step further.17 Here, the court explicitly stated that the right to a clean environment was
a fundamental right: "the slow poisoning of the atmosphere caused by the environmental
pollution and spoliation should be regarded as amounting to violation of Article 21 of the
Constitution ....”

Thus, in India, the higher judiciary has interpreted Art 21 to give it an expanded meaning of
including the right to a clean, safe and healthy environment.

Public Interest Litigation

In India, PIL is "purely a matter of constitutional law in which the writ jurisdiction of the
Supreme Court or any one of the provincial High Courts is invoked ... to enforce ... fundamental
rights." As a result of the activist approach taken by the judiciary, Article 21 of the Constitution
16
http://www.elaw.org/resources/text.asp?ID=1095
17
http://www.elaw.org/resources/text.asp?ID=1436

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has been expanded to include a fundamental right to a clean and hygienic environment 18 as
mentioned above. The expansion of PIL, not only the doctrinal expansion but also the expansion
from the human rights arena to the environmental arena, marked the beginning of an activist
Supreme Court.19The range of issues addressed by PIL has been very broad. It extends from
compassion to animals20, privileges of tribal people and fishermen 21, to the ecosystem of the
Himalayas and forests22, eco-tourism, land- use patterns and vindication of an eco-malady of a
village23. Courts have made use of powers conferred on them by constitution through Article 32
and 226, to remedy past maladies, and check immediate and future assaults on the environment.
Environmental Law has developed a set of principles which underpin its rules and are also
forwarded by judiciary in India. These principles are discussed below:

The Polluter Pay Principle

In M.C. Mehta v Union of India 24, the SC formulated the doctrine of absolute liability for harm
caused by hazardous and inherently dangerous industry by interpreting the scope of the power
under article 32, to issue directions or orders, ‘whichever ever may be appropriate’ in
‘appropriate proceedings’.
The polluter is responsible for compensating and repairing the damage caused by his omission.
Absolute liability of hazardous and inherently dangerous industry is the high water-mark of the
development of polluter pays principle. But despite its deterrent effect on potential polluters, the
doctrine has limited effect as it can only be applied at remedial stage i.e., after pollution has
taken place.

Precautionary Principle

18
Supra note 12
19
Bharat Desai, Enforcement of the Right to Environment Protection Through Public Interest Litigation in India, 33
Indian J. of Int'l L. 27, 28 (1993)
20
AIR 1993 AP 257
21
AIR 1996 SC 2041
22
AIR 1988 SC 2187
23
AIR 1986 SC 1446
24
AIR 1986 SC 1086

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This principle was emphasized by the UN Commission on Environment and Development
(UNCED), held in Rio De Janerio in the year 1992, signifies a preventive approach. It states:
“In order to protect the environment, the precautionary approach shall be widely applied by
states according to their capabilities. Where there are threats of serious or irreversible damage,
lack of full scientific certainty shall not be used as a reason for postponing cost effective
measures to prevent environmental degradation”25

Precautionary principle was directly applied by SC in M.C. Mehta v Union of India 26 for
protecting the Taj Mahal from air pollution. Court, while observing damaging effect of industries
located in Taj Trapezium to the monument directed for their immediate elimination to prevent
further degradation of ‘the wonder in marble’.

The principle of Sustainable Development

Sustainable development27 is the development, which meets the needs and aspirations of the
present without compromising the ability of the future generations to meet their needs. This is
the most accepted definition of the term which was first adopted in the Stockholm Declaration of
1972. Supreme court in Vellore Citizens Welfare Forum v Union of India 28 expounded
‘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
finalized by the International Law Jurists.
India employs a range of regulatory instruments backed by the principles of Sustainable
Development for the preservation and protection of its natural resources. Legislature has passed
number of laws for the protection of environment like, Environment Protection Act 1986, Water
(Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of
Pollution) Act 1981 etc. Apart from these; there are several other enactments, which complement
the provisions of basic enactments. The Environment Protection Act (EPA), 1986 came into force
soon after the Bhopal Gas Tragedy and is considered an Umbrella legislation as it fills many gaps
in the existing laws.
25
Principle 15.
26
AIR 1997 SC 734
27
Brundtland. G.H. (Chairman) 1987, “Our Common Future” Report of the proceeding of the
World Commission on Environment and Development (WCED)
28
AIR 1996 SC 2715

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Further in the case of Narmada Bachao Andolan vs. Union of India,29 the Supreme
Court expounded the theory of Sustainable Development by holding the view, ‘A balance is
required to be maintained in the development and protection of environment. Every aspect
of development should be based upon sustainability’. Though international and national laws and
policies have already provided various guidelines; legal or executive, the concept of sustainable
development still requires special attention and emphasis to bring awareness among industrialists
and others engaged in the exploitation of natural and manmade resources for in the name of
economic progress.

Conclusion

Since ages people of India have been conserving the natural heritage through various means and
in spite of being a developing country it has regulated its carbon emissions and has effectively
participated in International climate regime. The role played by the Supreme Court of India in
the projection and preservation of environment is outstanding. The concept of materialism and
paternalism being borne by the state but it is the judiciary. This organ of the state has proved
itself as the real custodian of the rights of people and understood properly that without proper
environment, rights cannot be enjoyed.

Currently, the prime concern of India is its growing population whose fundamental rights are to
be ensured by the constitutional government besides subsidiary concerns of preserving right to
emit carbon dioxide and also the judiciary, which has failed to address cost effectiveness and
speedy trial, it takes years to get final verdict. These challenges should be the priority and ideals
of ‘good governance’ should be followed by the governments, both central and state. As for the
judiciary it is required that separate ‘environment courts’ should be set up by respective state
governments for adequate cognizance of environment related issues. Individuals and companies
should also generate plans which are environmental friendly and only then can we protect
ourselves from wrath of environmental disasters.

29
AIR 2000 SC 3751

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References:

a. P. Leelakrishnan, Environmental Law in India, (Lexis Nexis Butterworths, 2000)

b. P. Leelakrishnan, Environmental Law Case Book, (Lexis Nexis Butterworths, 2004)
c. A.K. Tiwari, Environmental Laws in India
d. Philippe Sands, Principles of International Environmental Law, (Cambridge

University Press, 2003)

e. Roger W. Findley and Daniel A. Farber, Environmental Law in a Nutshell, (5th ed.

2000)
f. http://www.earthjustice.org/library/references/2007environmental-rights-report.pdf
g. UN Framework Convention on Climate Change (UNFCCC), 31 I.L.M. 849 (1992)

(entered into force May 21, 1994).

h. United Nations Climate Change Conference Dec 7- Dec18 2009: http://en.cop15.dk/.
i. Laws and Environmental Management: The Challenges before India:

http://www.cseindia.org/cseaboutus/pdf/jamia_hamdard.pdf.
j. "Kyoto Protocol." Encyclopedia Britannica. Encyclopedia Britannica 2009 Student

and Home Edition. Chicago: Encyclopedia Britannica, 2009.

k. "Environmental law." Encyclopedia Britannica. Encyclopedia Britannica 2009

Student and Home Edition. Chicago: Encyclopedia Britannica, 2009

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