Statutory Provisions of Law and The Contribution of Judiciary in The Protection of Water Pollution

Statutory Provisions of Law and the Contribution of Judiciary in the Protection of Water Pollution
CHAPTER-3
STATUTORY PROVISIONS OF LAW AND THE

CONTRIBUTION OF JUDICIARY IN THE PROTECTION
OF WATER POLLUTION
The continuous destruction of natural resources and impending environmental crisis has
led the legislature to pass numerous legislations to safeguard the environment. In the
present chapter, an effort has been made to look into various legal provisions
safeguarding water, be it in the Constitution of India or any other law. Contribution of
judiciary in preventing and controlling water pollution has also been looked into.
Indian Constitution is perhaps the first Constitution in the world, which contains specific
provisions for the protection of environment.1 Most importantly, Indian judiciary is
playing very important role in the implementation of these provisions2. In other words,
constitutional protection against environmental pollution is well guarded by the Indian
courts.3
3.1 PREAMBLE
The Preamble of the Constitution of India, at the very outset, provides that our country is
based on “socialistic” pattern of society where the state pays more attention to the social
problems than on any individual problems. The basic aim of socialism is to provide
“decent standard of life to all “, which can be possible only in pollution free
environment.4
1
Harmeet Singh Sandhu, Environment Protection-Constitutional Framework, Law Journal, Guru
Nanak Dev University,Amritsar,Vol.XII,2003, p.81.
2
Benimadhab Chatterjee, Environmental Laws, Deep And Deep Publications, New Delhi,2007,
p.124.
3
Satish Shastri, Pollution And The Environmental Law, Printwell Publisher, Jaipur, 1990, p.43.
4
P.S.Jaswal, Environmental Law, Pioneer Publications, Delhi ,Second Edition,2003, p.37.
74
3.2 OBLIGATION TO IMPLEMENT INTERNATIONAL AGREEMENTS
India is under obligation of numerous International treaties and agreements that relate to
environmental issues. As a contracting party, India must have ratified a treaty, that is, by
adopting it as a national Law before its coming into force, or by acceding to it after it has
come into force.5
Indian parliament has enacted the Water (Prevention and Control of Pollution) Act, 1974,
the Environment Act, 1986 And the Green Tribunal Act, 2010 under Article 253 of the
Indian Constitution. The Preambles of these laws state that these Acts were enacted to
implement the decisions reached at Stockholm Conference in 1972 and Rio Conference
specifically in case of the Green Tribunal Act, 2010.
The Preamble of Environment (Protection) Act of 1986 provides:
Whereas decisions were taken at the United Nations Conference on the

Human Environment held at Stockholm in June, 1972 in which India
participated to take appropriate steps for the protection and improvement
of human environment; And whereas it is considered necessary further to
implement the decisions aforesaid in so far as they relate to the
protection and improvement of environment and prevention of hazards
to human beings, other living creatures, plants and property.
The Preamble of the Green Tribunal Act, 2010 provides:
Whereas India is a party to the decisions taken at the United

Nations Conference on the Human Environment held at Stockholm in
June, 1972, in which India participated, calling upon the States to take
appropriate steps for the protection and improvement of the human
5
Shyam Divan and Armin Rosencranz, Environmental Law And Policy In India, Oxford University
Press, New Delhi, Second Edition,2001,p.581.
75
environment; And whereas decisions were taken at the United

Nations Conference on Environment and Development held at Rio de
Janeiro in June, 1992, in which India participated, calling upon the
States to provide effective access to judicial and administrative
proceedings, including redress and remedy and to develop national laws
regarding liability and compensation for the victims of pollution and
other environmental damage.
The Constitution of India has specifically incorporated Articles 51(c) and 253 for
fulfilling its international obligation
Article 51(c) provides that “the state shall endeavour to foster respect for international
law and treaty obligations in the dealings of organised people with one another”.
Article 253 of the Constitution specifically empowers the parliament “to make any law
for the whole or any part of the territory of India for implementing any treaty, agreement
or convention with any other country or countries or any decision made at any
international conference, association or other body.” Entries no.13 and 14 of the Union
List (list I) which includes the subject matters over which the Parliament can make laws,
provides “participation in international conferences, associations and other bodies and
implementing of decisions made thereat”: and “entering into treaties and agreement with
foreign countries and implementing of treaties, agreements and conventions with foreign
countries”.6
In the case of Vellore Citizens’ Welfare Forum v. Union of India7, the Supreme Court
held that the rules of Customary International Law, which are not contrary to the
municipal law, shall be deemed to have been incorporated in the domestic law and shall
be followed by the Courts of law as an accepted proposition of law.
6
P.S.Jaswal and Nishtha Jaswal, Environmental Law, Allahabad Law Agency, Delhi, Third Edition
2009, p.43.
7
(1996) 5 SCC 647.
76
The Supreme Court once again reiterated in Peoples’ Union for Civil Liberties v. Union
of India8, that Indian Constitution has put the Parliament under an obligation by the
Indian Constitution to implement the decisions of any International treaty, agreement or
convention where India is a party to it.
3.3 DIRECTIVE PRINCIPLES OF STATE POLICY
Part IV of the Indian Constitution deals with directive principles of State policy. These
directive principles represent the socio-economic goals which the nation is expected to
achieve. The directive principles form the fundamental feature and the social conscience
of the constitution and the constitution enjoins upon the state to implement these directive
principles.9 Articles 37 to 51 of the Constitution as detailed in Part IV of the Constitution
form the directive principles of State policy. These articles are merely the directives
issued to the State, though fundamental in the governance of the country. They are not
enforceable in any Court of law. As Article 37 aptly says : “the provisions contained in
this part (Part IV) shall not be enforceable by any court, but the principles therein laid
down are nevertheless fundamental in the governance of the country and be duty of the
State to apply these principles in making laws”.10 The first three articles of Part IV,
namely, Articles 36, 37 and 38 contain the general principles which the state seeks to
implement for attaining a socialistic pattern of society. The socio-economic rights which
the State shall strive to secure to its people are enumerated under six sub-clauses of
Article 39. The next eleven Articles i.e., Articles 40 to 50 embody the principles of
administrative policy which the union as well as the state governments are expected to
follow, while Article 51 outlines the international policy to be followed by the nation.11
Article 39(b) of the Constitution of India provides that the State shall direct its policy to
see “that the ownership and control of the material resources of the community are so
distributed as best to sub serve the common good.” The term „material sources of the
8
(1997) 3 SCC 433.
9
Supra 4, p.44.
10
Sukanta K.Nanda, Environmental Law, Central Law Publications, Allahabad, Third Edition, 2013,
p.91.
11
Vinay N. Paranjape, Environmental Law, Central Law Agency, Allahabad, First
Edition,2013,p.100.
77
community‟ embraces all things, which are capable of producing wealth for the
community. The expressions „material resources of the community‟ has been held to
include such resources in the hands of private persons and not only those, which have
already vested in the state.12
Article 42 directs the State to endeavour to secure just and human conditions of work.
Article 47 imposes a duty upon the State to raise the level of nutrition and the standard of
living of its people and improve public health.
13
The Supreme Court in Municipal Council, Ratlam v. Vardhichand observed, “The
state will realize that Article 47 makes it a paramount principle of governance that steps
are taken for the improvement of public health as amongst its primary duties.”14
In the case of Hamid Khan v. State,15 the State of Madhya Pradesh provided tube-wells
for the supply of drinking water to certain villages. No test was being conducted for
checking fluoride content . Due to the high fluoride content of the water, a number of
people had contracted skeletal and dental fluorosis. Public interest litigation was filed in
the court for redressal of the same.
The Court recognised that the State had failed in its duty under Article 47 of the
Constitution and under Article 21, to improve the health of public providing safe drinking
water. The Court held that, under Article 47 of the Constitution of India, it is the
responsibility of the State to raise the level of nutrition and the standard of living of its
people and the improvement of public health. The Court also held that under Article 21
of the Constitution of India it is the right of citizens to have pure water.
12
S. Shanthakumar, Introduction To Environmental Law, Wadhwa And Company, Nagpur, Second
Edition, 2005, p.85.
13
AIR 1980 SC 1622.
14
Supra 12.
15
AIR 1997 MP 191.
78
Article 48 directs the State to organize agriculture and animal husbandry on modern and
scientific lines. In particular it is directed to take steps for preserving and improving the
breeds and prohibiting the slaughter of cows, calves and other milch and draught cattle.16
Article 48-A states, “The State shall endeavour to protect and improve the environment
and to safeguard the forests and wildlife of the country”.17 Thus Article 48-A of the
Indian Constitution imposes an obligation on the State to improve the environment and to
safeguard the forest and wild-life of the country18
19
In M.C.Mehta v. Union of India, the Supreme Court held that Articles 39(e), 47 and
48-A by themselves and collectively cast a duty on the State to improve public health and
secure the health of the people along with protecting and improving the environment.
The State can be prevented by the Court from committing a breach of its duty by acting
contrary to these articles of Indian Constitution.
In the case of M. C. Mehta (Badkhal and Surajkund Lakes Matter) vs. Union of
India,20 a writ petition was filed for seeking a direction to be issued to the Haryana
Pollution Control Board, to control the pollution caused by the mine operators in the
Faridabad-Balabgargh area. Haryana Pollution Control Board submitted the report and
stated that the mining operations were carried out without any environmental planning
and were causing much ecological degradation. The State passed an order to stop all such
minings. The owners of mines approached the Court and challenged the order. The Court
requested National Environmental Engineering Research Institute (NEERI) to submit its
report regarding mining activities and its effects. NEERI submitted its report with
recommendations as to mining activities.
16
Supra 12, p.86.
17
Article 48A-“The State shall endeavour to protect and improve the environment and to safeguard
the forests and wildlife of the country”.
18
Vinod Shankar Mishra, Environment Disasters And The Law, Ashish Publishing House, New
Delhi,1994,p.35.
19
(2002) 4 SCC 356.
20
AIR 2004 SC 4016.
79
The Court concluded that the mining activities were harming the environment and must
be stopped. The Court ordered to stop mining activities in a two km radius around the
tourist spots of Badkal lake and Surajkund and banned the construction work in a five km
radius.
3.4 FUNDAMENTAL DUTIES
Prevention of the environment and keeping the ecological balances unaffected is a task
which not only the government but also every citizen must undertake. It is a social
obligation which has found expression in Article 51-A(g) of the Constitution.21
The Constitution (Forty-Second Amendment) Act, 1976, added a new part IV-A dealing
with “fundamental duties” in the Constitution of India. Article 51-A of this part enlists
ten fundamental duties which was added on the recommendations of the Swarn Singh
Committee bringing the Constitution of India in line with Article 29(1) of Universal
Declaration of Human Rights which provides : “everyone has duties to the community in
which alone the free and full development of his personality is possible”. Article 51 A (g)
specifically deals with the fundamental duty with respect to environment. It states. “ 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”.
Article 51 A (j) further provides, “ it shall be the duty of every citizen of India to strive
towards excellence in all spheres of individual and collective activity, so that the nation
constantly rises to higher levels of endeavour and achievements”.22
It may be noted that a citizen is not only under a duty to „protect‟ the environment but
also to “improve” its quality. The word „citizen‟ used in article should not mislead one to
believe that the framers of the 42nd Constitution (Amendment) Act, 1976 wanted to give a
narrow interpretation and confine his duty (of protection of environment), instead it is
21
Gurdip Singh, Environmental Law-International And National Perspectives, Lawman, New Delhi,
1995, p.50.
22
Supra 6, p.45.
80
deliberately used to create a feeling among persons living in India that they are now the
citizens of free India and not merely the subjects thereof. Referring to the duty of
protection and improvement of environment as enjoined on citizens under article
51(1)(g), the Rajasthan High Court in L.K.Koolwal V. State Of Rajasthan, observed, “we
as real citizens of the country should strive towards excellence in all spheres of undivided
and collective activity including protection of environment”.23
In the case of Goa Foundation v. State of Goa,24the question before the Bombay High
Court was whether a society registered under the registration of societies act, has locus
standi to move to the Court to prevent ecological degradation under Article 51(1)(g).
Answering this question in the affirmative, the Court held that a registered society has the
locus standi to file a PIL petition for performing duty envisaged by article 51(1)(g) to a
citizen and has a similar duty of protection and improvement of environment.
In Rural Litigation and Entitlement Kendra v. State25 , the question before the Court
was whether extension should be granted to continue mining operations. The Court took
the stand that mining activities caused ecological disturbance and violated the rights of
people to live and mining operations should not be continued.
In Sitaram Chhaparia v. State of Bihar26 again a PIL was filed ,where five residents of
a locality sought directions from the Court for closure of tyre retreading plant set up in a
residential area which was causing environmental pollution by emitting carbon dioxide
and other obnoxious gases from its furnaces. The High Court held that protecting the
environment is now a fundamental duty under Article 51-A of the Constitution of India
and accordingly, the respondents were ordered to close down their industry and the state
was also directed by the court to ensure the same.
23
Supra 11, p.99.
24
AIR 2001 Bom 318.
25
AIR 1985 SC 652.
26
AIR 2002 Pat. 134.
81
In Vijay Singh Puniya v. State of Rajasthan,27 dyeing and printing units were
discharging effluents and polluting the water sources used for agriculture and drinking
purposes, the Rajasthan High Court held that “any person who disturbs the ecological
balance or degrades, pollutes and tinkers with the gifts of the nature such as air, water,
river, sea, and other elements of the nature, he not only violates the fundamental right
guaranteed under Article 21 of the Constitution but also breaches the fundamental duty to
protect the environment under Article 51-A (g).
In the case of State Of Gujarat V. Mirzapur Moti Kureshi Kassab Jamat28,The Supreme
Court explained the inter-relationship between Articles 48, 48-A and 51(1)(g) and
observed that while Article 48-a deals with environment, Article 51(1)(g) speaks of
„natural environment‟ which includes therein forests, lakes rivers and wildlife. Article 48
speaks of cows, calves and other milk and draught cattle. Article 51(1)(g) casts a duty
upon every citizen to have compassion for living creature, which also include cattle
mentioned in Article 48.
3.5 FUNDAMENTAL RIGHTS
Principle 1 of Stockholm Declaration provided 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. Principle 1 of the
Stockholm declaration finds reflections in Articles 14, 19 and 21 of the Constitution of
India dealing with the right to equality, freedom of expression and right to life and
personal liberty respectively.29
The Andhra Pradesh High Court in the case of Damodar Rao v. S. O. Municipal
27
AIR 2004 Raj. 1.
28
(2005) 8 SCC 534.
29
Supra 6, p.51.
82
Corporation, Hyderabad,30 had the delve on whether part or area earmarked under a
development plan for recreational purposes could be acquired and used by two state
agencies for construction of residential houses. The Court held that building houses in an
open space meant for recreational park was contrary to the law. The High Court observed
that the Supreme Court of India and the various High Courts have interpreted the right to
wholesome environment as part of the „Right to life‟ guaranteed in Article 21. Further the
Court observed that “It therefore, becomes the legitimate duty of Courts as the enforcing
organ of Constitutional objectives to forbid all action of the State and citizens from
upsetting the environmental balances.”31
In Kinkri Devi v. State,32 it was alleged that the government arbitrarily granted the
permission for mining activities without adequate consideration of environmental impact
which amounted to the violation of Article 14. The Court observed that if indiscriminate
mining poses danger to the ecology and environment, flora and fauna of the area, the
Court will be left with no other alternative but to intervene effectively by issuing
appropriate writs, orders and directions including the direction as to the closure mines.
In M.C.Mehta v. Kamal Nath,33 the Supreme Court made it abundantly clear that if a
hotel is discharging untreated effluent into the river Beas, thereby disturbing the aquatic
life and causing water pollution, it cannot be permitted to work and any disturbance of
the basic environment elements, viz. air, water and soil, which are necessary for life,
would be hazardous and it will be a clear violation of Article 21 of the Constitution.
In M.C.Mehta v. Union of India,34 popularly known as Ganga Water Pollution Case,

problem of pollution of Ganga water by the effluent discharge from the tanneries was
before the Supreme Court. The Supreme Court directed the owners of the tanneries to
establish the primary treatment plants so as to prevent the pollution of Ganga water which
30
AIR 1987 AP 171.
31
Ibid., p. 181.
32
AIR1987 HP4.
33
(2000) 6 SCC 213.
34
AIR 1988 SC 1037.
83
is being used by large number of people of the country as right to clean water was also a
part of Article 21 of the Constitution. The Court further observed that the financial
capacity of the tanneries is not relevant while requiring them to establish the treatment
plants. In another case of M.C.Mehta V. Union of india35, the Court held that:
"The financial capacity of the tanneries should be considered as irrelevant

while requiring them to establish primary treatment plants. Just like an
industry which cannot pay minimum wages to its workers cannot be
allowed to exist, the tannery which cannot set up a primary treatment plant
cannot be permitted to continue to be in existence for the adverse effects on
the public. Life, public health and ecology have priority over an
employment and loss of revenue problem".
In F.K.Hussain v. Union of India,36 according to petitioner,ground water resources in

these islands were limited and as potable water was in short supply, and large
scale withdrawals with electric or mechanical pumps could deplete the water sources,
causing intrusion or saline water from the surrounding Arabian Sea . The Kerala High
Court pointed out that the right to sweet water, and the right to free air are attributes of
the right to life for these are the basic elements which sustain life itself.37
3.5.1 Right to Equality
Article 14 of the Constitution provides:
The State shall not deny to any person equality before the law or equal protection of the
laws within the territory of India.
35
(1987) 4 SCC 463.
36
AIR 1990 Kerala 321.
37
Ibid.,p. 323.
84
The right to equality guaranteed in Article 14 of the Constitution may also be infringed
by government decisions that have an impact on the environment.38 In fact, the absence
of arbitrary power is the first essential of the rule of the law upon which our whole
constitutional system is based.39
In the case of General Public of Saproon Valley v. State of H.P. 40, mining of limestone
in the Saproon valley situated close to Solan town in Himachal Pradesh caused great
damage to the field, the environment and resulted in the pollution of water and soil
erosion of the surrounding land and ecological imbalance. The High Court directed the
State to strike a balance between the tapping of natural resources for the purposes of the
socio-economic development and the preservation and protection of the ecology by the
adoption of a long terms perspective planning. The Court also held that it would amount
to violation of the fundamental rights conferred by Articles 14 and 21 of the Constitution
on the part of the State in case of failure of administration in environmental duties.
3.5.2 Freedom to Trade vis-a-vis Environmental Protection
Article 19 (1) (g) guarantees to all citizens of India, the right to practice any profession or
to carry on any occupation or trade or business. We find that most of the pollution is
caused mainly by trade and business activities and different types of industries are
contributing to environmental pollution. Whenever confronted, these industries have
always contended that they are not committing any violation, but only exercising their
right to freedom of carrying out trade and business as enshrined in Article 19 (1) (g) of
the Constitution. Therefore, it has been made amply clear to them on numerous occasions
that their right to freedom of carrying any business and trade is not absolute, but subject
to certain reasonable restrictions. Accordingly, any act of theirs, which is offensive to
38
Supra 5, p.53.
39
Delhi transport corporation v. D.T.C. Mazdoor Congress, A.I.R 1991 S.C. 101.
40
AIR 1993 HP 52.
85
flora and fauna or human beings, would not be permitted to be carried on in the name of
fundamental rights.41
In the case of Abhilash Textiles v. Rajkot Municipal Corporation,42 the petitioner

challenged the notice issued by Municipal Commissioner, to stop discharge of dirty water
on the road and drainage within a certain time or foreclosure in case of non-compliance
with the notice. The petitioners put forward the defence of Article 19(1)(g) which gives
right to citizens to carry an occupation, trade or business anywhere in India. The Gujarat
High Court held that Article 19(1) (g) of the Constitution confers right upon every citizen
to practice any profession or to carry any occupation, trade or business. But this
fundamental right is subject to reasonable restrictions which may be placed in the interest
of general public as provided under Article 19(6) of the Constitution. The Court clarified
that no one has the right to carry the business so as to cause nuisance to the society.
The argument of financial inability of the polluter to install a plant for the treatment of
effluents is not sustainable in view of the fact that pollution violates the right to life
unregulated and unrestricted development cannot be permitted. Restrictions can be
imposed on the development activities in the interest of larger public.
In Rural Litigation and Entitlement Kendra, Dehradun v. Sate of U.P.43 , the Court
pointed out that the workmen employed in limestone quarries has fundamental right
enshrined in Article 19(1)(g) and with closure of these quarries , this right will get
violated because the workmen will lose their employment. The Supreme Court directed
the government to start the reclamation of areas forming part of limestone quarries and
soil conservation programs and to provide employment to such workmen who were
employed in limestone quarries for the implementation of Article 19(1)(g).
41
S.C. Shastri, Environmental Law, Eastern Book Company, Lucknow, 2002, p. 45.
42
AIR 1988 Gujarat 57.
43
AIR 1985 SC 652.
86
3.5.3 Right to Life
The term „life‟ as employed in article 21 of the constitution of India means living of life
with utmost nobleness and human dignity. The right to life, enshrined as a fundamental
right in article 21 has been one of the few Articles of the Constitution which has
undergone profound transformation over the past more than five decades through activist
judicial interpretations. Article 21 of the Constitution states, “No person shall be deprived
of his life or personal liberty except according to the procedure established by law.”44
The Supreme Court of India has come a long way since Gopalan‟s case (A.K.Gopolan V.
State Of Madras)45, where the majority view threw the most important fundamental right
to life and personal liberty at the mercy of legislative majorities.46
In the case of L.K.Koolwal v. State Of Rajasthan And Ors47, the Court observed that
maintenance of health, preservation of sanitation and environment falls within the
purview of Article 21 of the Constitution as it adversely affect the life of the citizens and
it amounts to slow poisoning and reducing the life of the citizen because of the hazards
created, if not checked.
In Chhetriya Mukti Sagharsh Samiti v. State of U.P.48, the Supreme Court held: “Every
citizen has a fundamental right to have the enjoyment of quality of life and living as
contemplated by Article 21 of the Constitution. Anything which endangers or impairs by
conduct of anybody either in violation or derogation of laws, the quality of life or living
by people is entitled to take recourse of Article 32 of the Constitution.”
44
J.N.Pandey, Constitutional Law Of India, Central Law Agency, Allahabad, Thirteenth
Edition,1996, p.181.
45
AIR 1950 SC 27.
46
Rakesh Kumar, Environmental Protection Vis-A-Vis Right To Health : Judicial Approach,
Chotanagpur Law Journal, Vol.1, No.1, 2008-09, p.127.
47
AIR 1988 Raj.2.
48
AIR 1990 SC 2060.
87
In the case of DD Vyas v. Ghaziabad Development Authority49, Allahabad High Court

has held Right to life as a Fundamental Right under Article 21 of the Constitution which
includes the right of enjoyment to pollution free water and air.
In Narmada Bachao Andolan v. Union of India50, it was argued that construction of a

large dam like Sardar Sarovar Dam would result in ecological disaster and violation of
Article 21. The Supreme Court balanced the environmental effects of the Sardar Sarovar
Project with national or public interest in view of the need of water and power for
increasing population. The Court held that mere change in environment does not per se
violate rights under Article 21 especially in the present case where steps were taken to
improve ecology, environment and rehabilitation in case of displacement. The Court
noticed that the project would make positive contribution for preservation of environment
in several ways. The project by taking water to drought prone and arid parts of Gujarat
and Rajasthan, would effectively arrest ecological degradation which was making these
areas inhabitable due to salinity ingress, advancement of desert, ground water depletion,
fluoride and nitrite affected water and vanishing green cover. The ecology of water
scarcity areas was under stress and transfer of Narmada water to these areas would lead
to sustainable agriculture and spread of green cover. There would also be improvement in
fodder availability which would reduce pressure on biodiversity and vegetation.
Article 21 of the Constitution of India guarantees all persons a fundamental right to “life
and personal liberty”. Article 21 is the heart of fundamental rights and received expanded
meaning from time to time. The talk of fundamental rights and, in particular, right to life
would become meaningless if there is no healthy environment.51 The boundaries of the
fundamental right to life and personal liberty guaranteed in Article 21 were expanded to
49
AIR 1993 Allahabad 57.
50
AIR 2000 SC 3751.
51
Supra, 6 p.52.
88
include environmental protection by the Supreme Court of India. The Supreme Court
strengthened Article 21 by including right to a wholesome environment in it.52
In Workers of C.E.S.C. Limited V. Subhash Chandra Bose,53 the Court held that the
term „health‟ implies more than absence of sickness. Medical care and health facilities
not only protect against sickness but also ensure stable manpower for economic
development. Health is, thus, a state of complete physical, mental and social well being
and not merely the absence of disease or infirmity. In the light of socio-economic justice
assured in our Constitution, right to health is fundamental human right. The maintenance
of health is most imperative constitutional goal whose realization requires interaction of
many social and economic factors.54
In F.K.Hussain v. Union of India55, the citizen‟s right to clean and potable water was
recognised by the Kerala High Court. The court held that right to sweet water is attribute
of the right to life itself.
The judicial grammar of interpretation has further broadened the scope and ambit of
article 21 and now “right to life” includes the “right to livelihood”.56
Another aspect of the right to life-the right to livelihood-can potentially check

government actions with an environmental impact that threaten to dislocate poor people
and disrupt their lifestyles.57
52
Supra 5, p.49.
53
1992 AIR 573.
54
Supra 46, p.128.
55
AIR 1990 KER 321.
56
Supra 6, p.61.
57
Supra 52, p.51.
89
The Supreme Court recognized the right to livelihood in the case of Olga Tellis v
Bombay Municipal Corporation, the Court held : deprive a person of his right to
livelihood and you shall have deprived him of his life.....the State may not, by affirmative
actions , be compellable to provide adequate means of livelihood or work to the citizens.
But, any person, who is deprived of his right to livelihood except according to just and
fair procedure established by law, can challenge the deprivation as offending the right to
life conferred by Article 21.58
3.6 REMEDIES FOR THE ENFORCEMENT AND WRIT JURISDICTION
Articles 32 and 226 of the Constitution of India empower the Supreme Court and the
High Courts, respectively, to issue directions or orders or writs, including writs of habeas
corpus, mandamus, prohibition, quo warranto and certiorari. Writs of mandamus,
certiorari and prohibition are generally resorted to in environmental matters. The relative
speed, simplicity and cheapness of the writ remedy have made it immensely popular with
litigants. The Supreme Court has interpreted Article 21 to include the right to a
wholesome environment. Accordingly, a litigant may assert his or her right to a healthful
environment against the state by a writ petition to either the Supreme Court or a High
Court.59
In V. Lakshmipathy v. State,60 the location and operation of industries and industrial

enterprises in a residential area was challenged as violative of Karnataka Town and
Country Planning Act as well as the right to life under Article 21 of the Constitution. The
Court pointed that Article 226 of the Constitution enables the citizens to move the High
Court to enforce the performance of statutory obligations of any authority coming within
the sweep of Article 21 of the Constitution in particular, or say under the anti-pollution
laws of the land like the pollution control Act, etc. It has, therefore, to be regarded as a
constitutional right of the petitioners responded by constitutional remedies of different
58
AIR 1986 SC 180.
59
Supra 52, pp.122-123.
60
AIR 1992 Kant. 57.
90
kinds under Article 226. Moreover, the Court stressed that environment protection is not
a preoccupation of the educated and the rich. It has socio-political dimensions. The
disposal and control of toxic waste and governmental regulation of polluting industries is
public interest oriented.
On the basis of these cases, it is amply clear that the right to life and its ambit has been
widened and the Supreme Court of India has declared right to life in healthy environment
as a “Fundamental Right”.
In M.C.Mehta v. Union of India,61 some questions concerning the true scope and ambit
of Article 21 and 32 of the Constitution of India before the Supreme Court. The Court
commented that under Article 32(1) of the Constitution ,the Supreme Court is free to
devise any procedure appropriate for the particular purpose of the proceeding and also
has the power to issue whatever directions, orders or writ as may be necessary in a given
case including all incidental and ancillary power necessary for the enforcement of
fundamental right, the power of Supreme Court is not only injunctive in ambit, that is
preventing the infringement of fundamental rights , but it is also remedial in scope and
provides relief against a breach of the fundamental right already committed. In these
circumstances, the Court has the power to grant compensation in appropriate cases.
In the case of B. L Wadhera v Union of India62, A writ petition was filed under Article
32 seeking directions to the Municipal Corporation of Delhi and the New Delhi
Municipal Corporation to perform their statutory duties, in the collection, removal and
disposal of garbage and other wastes from the city. The Court issued a couple of interim
orders, wherein directions were issued to the Delhi administration to perform their duties.
The Court held that the authorities entrusted with the work of pollution control have been
wholly remiss in discharge of their duties under the law and that they cannot absolve
61
AIR 1987 SC 965.
62
AIR 1996 SC 2969.
91
themselves of their duties on the pretext of financial and other limitations like
inefficiency of staff etc.
In the case of M.C. Mehta V. Kamal Nath63, the Court held that in exercising it
jurisdiction under Article 32, the Court could award damages as well as levy exemplary
damages on the erring industry/ hotel, which will prove to be a deterrent for others from
causing pollution.
In Subash Kumar v. State of Bihar and Others64, a writ petition was filed under Article
32 for issuance of directions to the Director Collieries, District Hazaribagh in the State of
Bihar and the Tata Iron & Steel Co., Ltd. to stop discharging sludge from its washeries at
Ghatoland in the District of Hazaribagh into Bokaro river so as to prevent it from being
polluted. The petitioner alleged that the surplus waste in the form of sludge was
discharged into the Bokaro river as an effluent from the washeries of the respondent
company. He further alleged that the sludge which got deposited on the agricultural land
adversely affected its fertility and the sludge which was flown into the Bokaro river was
carried by the river water to distant places polluting the river water as a result of which it
had become unfit for drinking or irrigation purposes and as a result, the problem of pure
drinking water had become acute.
The Court held that Article 32 was designed for enforcing the Fundamental Rights of a
citizen by the Apex Court. Right to Live is a fundamental right under Article 21 of the
Constitution and it included the right of enjoyment of pollution free water and air for full
enjoyment of life. A citizen has a right to have recourse to Article 32 if anything
endangered or impaired that quality of life in derogation of laws. A petition under Article
32 for the prevention of pollution was maintainable at the instance of affected persons or
even by a group of social workers or journalists provided they were genuinely interested
in the protection of society.
63
(2000) 6 SCC 213.
64
AIR 1991 SC 420.
92
In Re Bhavani River- Sakthi Sugars Ltd.65 an appeal had been filed under the provisions of
Articles 226 of the Constitution of India as a PIL, wherein attention had been drawn towards
water and environmental pollution as a result of discharge of objectionable effluents from
distillery of the Industry into the River Bhavani and adjoining areas.
The Court held that the Division Bench of the High Court seemed to have failed to
appreciate the true significance of the matter regarding controlling unabated pollution posing
as a health hazard and environmental enemy for discharging objectionable effluents from the
distillery into river Bhavani and adjoining areas. The High Court also erred in disposing of
the writ petition merely on the consent of the Tamil Nadu Pollution Control Board.
The Supreme Court once again made it clear that public interest would always be paramount
and nobody would be allowed to interfere with it. Moreover, it also reiterated the polluter
pays principle and held the polluters accountable for the damage caused by them, thereby
making them pay for the restitution of the environment so damaged.
In S.Jagannath v. Union of India and Others,66 a petition was filed in public interest under
Article 32 of the Constitution of India. It was contended by the petitioner that the shrimp
(prawn) farming culture industry in coastal areas was causing degradation of ecosystem by
releasing highly polluting effluents, causing pollution of potable water and ground water,
obstruction of natural drainage of flood water, reduction of fish catch and blockage of direct
approach to sea-shore.
Taking note of these circumstances, the Supreme Court held that commercial aquaculture
was causing considerable degradation of the ecosystems, depletion of casuarinas plantations,
and pollution of potable water, reduction of fish catch and blockage of direct approach to the
sea-shore. Agricultural land and salt farms were being converted into commercial
aquaculture farms. The ground water had got contaminated due to seepage of impounded
water from the aquaculture farms.
65
(1998) 6 SCC 335.
66
(1997) 2 SCC 87.
93
The Supreme Court held that the intensified shrimp farming culture by modern methods was
violative of Environment (Protection) Act, 1986. Therefore, it cannot be permitted.
In the case of M.C. Mehta v. Union of India 67 the Supreme Court, while entertaining the
public interest litigation under Article 32 pointed out that the writ petition was filed by a
person who was not a riparian owner but is interested in protecting lives of people using
water of river Ganga and hence the public interest litigation was maintainable.
3.7 LAW OF TORTS
The common law remedies against the environmental pollution are available under the
Law of Torts. Tort is a civil wrong other than breach of trust or contract. Any tortuous
action results in damage to property, person or reputation of another person and the
affected party can claim damages, compensation or injunction or both. The Supreme
Court in the case of M.C.Mehta v. Kamal Nath, rightly observed that “Pollution is a civil
wrong. By its very nature, it is a tort committed against the community as a whole. A
person, therefore, who is guilty of causing pollution, has to pay damages (compensation)
for restoration of the environment and ecology. He has also to pay damages to those who
have suffered loss on account of the act of the offender.68
Some of the important tortuous liabilities for environmental pollution are discussed here
under.
3.7.1. Nuisance
Nuisance means anything which annoys hurts or that which is offensive. It may be in the
form of water pollution due to the effluents discharge or it may be any kind of obstruction
which interferes with the right of the person to which he is otherwise entitled for
67
AIR 1988 SC 1115.
68
(2000) 6 SCC 213.
94
exclusive use.69Public nuisance is an act affecting the public at large or some

considerable portion of them. Public nuisance has been considered as an interference with
the right of public general and thus punishable as an offence.70 On the other hand, a
private nuisance is an act affecting some particular individual or individuals as
distinguished from public at large. Thus a substantial and unreasonable interference
causing personal discomfort constitutes private nuisance.71
In the case of Municipal Council, Ratlam v Vardhichand72, the Supreme Court

identified the responsibilities of the local bodies toward the protection of environment
and developed the law of public nuisance in the Criminal Procedure Code, 1973 as a
potent instrument for enforcement of their duties.
In Deshi Sugar Mill V. Tupsi Kahar,73 the Patna High Court held that the law of
nuisance in Section 133 of Criminal Procedure Code would be applicable to a case of
water pollution.
3.7.2 Trespass
Trespass is in theory closely related to nuisance and is occasionally invoked in

environmental cases. Trespass, in its widest sense, signifies any transgression or offence
against the law of nature, of society or of the country, whether relating to a man‟s person
or to his property. Trespass requires an intentional invasion of the plaintiff‟s interest in
69
Supra 6, p.22.
70
Supra 10, p.55.
71
Ibid.p.56
72
AIR 1980 SC 1622.
73
AIR 1926 Pat 505.
95
the property, whereas substantial and unreasonable interference is enough in the case of
nuisance.74
3.7.3 Negligence
Negligence is another specific tort on which a common law action to prevent

environmental pollution can be instituted. Negligence as a tort is the breach of legal duty
to take care which results in damage, undesired by the defendant, to the plaintiff. It has
three important elements: (1) a legal duty to exercise due care on the part of the party
complained of towards the party complaining the former‟s conduct within the scope of
the duty; (2) breach of said duty, i.e. there is failure to act reasonably in a situation where
reasonableness is required. What is reasonable care in any given situation is dependent on
the surrounding circumstances, facts of the case and varies according to the magnitude or
risk involved, the utility of defendant‟s actions , the burden of taking adequate
precautions to eliminate the risk and magnitude of prospective injury, and (3)
consequential damage which must have been factually caused by breach of duty and
must be the reasonably foreseeable consequence of the breach.75
76
In the case of Scot-Whitehead v. National Coal Board , the defendants discharged a
chlorine solution into a river. As there was drought, there was insufficient water to dilute
the strength of the pollutant, causing damage to the crop of the plaintiff. The second
defendant, a water regulatory authority, was held liable for failing to warn the farmers of
the potential danger from the conditions of the water it knew was being abstracted.
In Mukesh Textiles Mills (P) Ltd. V. H.R. Subramania Shastry,77 the plaintiff suffered
damage to their standing paddy and sugarcane crop in their fields from inundation of
water from defendant‟s factory. Molasses was stored in earthen tank, the embankment
74
Mahesh Mathur, Legal Control Of Environmental Pollution, Deep And Deep Publications, New
Delhi, 1996, p.181.
75
Kailash Thakur, Environmental Protection Law And Policy In India, Deep And Deep Publications,
New Delhi,1997,p.191.
76
(1987) p & CR 263.
77
AIR 1987 Kart 87.
96
had collapsed and a large quantity of molasses overflowed into the water channel that
passed into the plaintiff‟s land. The High Court of Karnataka held the defendant liable on
the ground of foreseeability and as well as failure to discharge the duty.
3.7.4 Strict Liability and Absolute Liability
The common law doctrine of strict liability propounded by House of Lords in the historic
English case Rylands v. Fletcher78 is also known as “liability without fault”. As
explaining, Blackbern, J. stated:
“The person who for his own purpose brings on his land and collects
and keeps there anything likely to do a mischief if it escapes, must keep
it at his own peril, and if he does not do so , is prima facie answerable
for all the damage, which is the natural consequence of its escape.”
Thus, non-natural use, escape and resultant damage are the three essential requisites to be
proved by the plaintiff to show that his cause (case) is covered within the applicability of
the doctrine of strict liability, which absolves the plaintiff from necessity to prove the
negligence of the defendant.79
The supreme court of India in M.C.Mehta v. Union of India80 has laid down a more
stringent rule of strict liability than the rule laid down by English courts in Rylands V.
Fletcher. The case relates to the harm caused by the escape of oleum gas from one of the
units of Shriram Foods and Fertilizer Industries. The Supreme Court held that the rule
laid down in Rylands V. Fletcher was more than a century old and it could not address the
current problems fully. This is because, now the society has become a modern
industrialized society with highly developed scientific knowledge and technology where
hazardous or inherently dangerous activities are necessarily to be carried out as part of
the development activities. In this context the court held that it was necessary to lay down
78
(1868) LR 3 HL 330.
79
Supra 11, p.315.
80
AIR 1987 SC 965.
97
a new rule not yet recognized by English law to adequately deal with the problems
arising in a highly industrialized economy.
The Supreme Court laid down the rule of absolute liability in the following words:
“Where an enterprise is engaged in a hazardous or inherently dangerous

activity and harm results to any one on account of an accident in the
operation of such hazardous or inherently dangerous activity resulting,
for example, in escape of toxic gas, the enterprise is strictly and
absolutely liable to all those who are affected by the accident and such
liability is not subject to any of the exceptions which operate vis-a-vis the
tortuous principle of strict liability under the rule in Rylands v.
Fletcher”.81
3.8 INDIAN PENAL CODE, 1860
Criminal law proceedings may also be initiated against the polluter of environment for
the offence of nuisance under Section 268 of the Indian Penal Code. Chapter XIV of
Indian Penal Code, 1860 contains “offences affecting the public health, safety,
convenience”. Some specific kinds of pollution cases which constitute the offence of
public nuisance under Chapter XIV of Indian Penal Code , 1860 are as follows :
1. Negligent act likely to spread infectious diseases which are dangerous to human
life. [Sections 269-270];
2. Fouling water of public spring or reservoir.[Section 277];
3. Making atmosphere noxious to human health.[Section 278];
4. Negligent conduct with respect to poisonous substance.[Section 284];
81
Supra 12, p.315.
98
5. Various types of mischiefs, including mischief by killing or maiming animals,

cattle etc.[Section 425 to 440].82
In Municipal Council, Ratlam v. Vardhichand, in a far reaching judgement the Supreme

Court held that a Municipal Council through its officers was liable under Section 188 of
Indian Penal Code for disobeying and non-compliance with an order passed by a
magistrate to close certain pits and repair the drain so as to clear nuisance in the locality
due to the existence of open drain, pits and public excretion by humans for want of
lavatories, within six months.83
3.9 CRIMINAL PROCEDURE CODE, 1973
The criminal procedure code, 1973 has prescribed the procedure for the abatement of
public nuisance.84
The provisions contained in Chapter X PART B of the Code of Criminal Procedure, 1973
deal with public nuisance and relate to abatement of environmental pollution. Sections
133 to 143 of Code of Criminal Procedure, 1973 deal with the protection of
environment.85
In Municipal Council Ratlam v Vardhichand and ors,86 an application was made under
Section 133 of the Criminal Procedure Code seeking an order from the Magistrate's
Court, directing the Municipal Council of Ratlam to take necessary action to stop the
stench caused by open drains and public excretion by slum dwellers for want of public
lavatories. The Magistrate made order as prayed for, but it was reversed on appeal to the
82
Supra 11, p.317.
83
K.D.Gaur, Textbook on the Indian Penal Code,Fourth Edition, Universal Law Publishing
Co.Pvt.Ltd, Delhi, 2009, p.326.
84
Supra 74, pp.226-227.
85
Supra 11, p.318.
86
AIR 1980 SC 1622.
99
Court of Sessions. On further appeal, the High Court as well as the Supreme Court
upheld the order of the Magistrate. The defence of the Municipality was that
notwithstanding the public nuisance, it did not have the funds to carry out the necessary
activities and that this exonerates it from statutory liability.
The Magistrate gave directions to the Municipality to draft a plan within six months for
removing nuisance. The High Court approved the order of the Magistrate, to which the
Municipality further appealed to the Supreme Court.
The Supreme Court also accepted the use of Section 133 Code of Criminal Procedure for
removal of public nuisance. A responsible Municipal Council constituted for the precise
purpose of preserving public health and providing better finances cannot run away from
its principal duty by pleading financial inability.
In the case of M.C.Mehta V. Union of India87, the District Magistrate acting under
Section 133 of the Criminal Procedure Code, granted the management of the company 7
days to remove the dangerous substance from the company's premises.
3.10 CODE OF CIVIL PROCEDURE
Section 91 of Code of Civil Procedure lays down the procedure for claiming remedies for
public nuisances and other wrongful acts affecting the public. Section 91 provides that
“in the case of public nuisance or other wrongful act affecting, or likely to affect , the
public, a suit for a declaration and injunction or for such relief as may be appropriate in
the circumstances of the case, may be instituted , by the Advocate General or with the
leave of the Court , by two or more persons, even though no special damage has been
caused to such persons by reason of such public nuisance or other wrongful act”.88
3.11 LEGISLATIVE INITIATIVES FOR PREVENTION AND CONTROL OF

WATER POLLUTION
87
AIR 1987 SC 965.
88
Supra 12, p.319.
100
India has a wide array of environmental laws, and an extensive network of Central and
State Pollution Control Boards among other regulatory authorities, to govern them.89
Some of them are specifically concerned with the problem of water pollution. Acts
passed by the legislature for the prevention and control of water pollution are as below:
1. Water (Prevention and Control of Pollution) Act, 1974
2. Water (Prevention and Control of Pollution) Cess Rules, 1975

3. Water (Prevention and Control of Pollution) Cess Act, 1977
4. Environment (Protection) Act, 1986
5. Water (Prevention and Control of Pollution) Cess (Amendment) Act, 2003
6. National Green Tribunal Act, 2010
3.11.1. Water (Prevention and Control of Pollution) Act, 1974
The preamble of the Water (Prevention and Control of Pollution) Act, 1974, provides:
An Act to provide for the prevention and control of water pollution and the
maintaining or restoring of wholesomeness of water, for the establishment,
with a view to carrying out the purposes aforesaid, of Boards for the
prevention and control of water pollution, for conferring on and assigning
to such Boards powers and functions relating thereto and for matters
connected therewith.
In Indian Council for Enviro-Legal Action v. Union of India,90 private companies

manufacturing hazardous and inherently dangerous chemicals, have been allowing toxic,
untreated waste waters to flow out freely. As a result, water in the wells and streams
turned dark and dirty, rendering it unfit for human consumption. It became unfit for the
89
Richard Lord, Silke Goldberg, Lavanya Rajanoni And Jutta Brunne, Climate Change Liability :
Transnational Laws and Practice, Cambridge University Press, New York, First Published, 2012,
p.156.
90
AIR 1996 SC 446.
101
cattle to drink and for irrigation of the land. This resulted in disease, death and disaster in
the village and the surrounding areas.
The Supreme Court issued directions to the Central Government, State Government, and
Rajasthan Pollution Control Board to perform their statutory duties enjoined upon them
under the Water (Prevention and Control of Pollution) Act, 1974 and the Environment
(Protection) Act, 1986. The Supreme Court implemented right to wholesome
environment as a part of the right to life enshrined in Article 21 of the Constitution.
Further The Court held:
“If an industry is established without obtaining the requisite permission

and clearances and if the industry is continued to be run in blatant
disregard of law to the detriment of life and liberty of citizens living in
the vicinity, this court has the power to intervene and protect the
Fundamental Right to life and liberty of the citizens of the country.”
In M/s Lipton India Ltd. v. State of Uttar Pradesh,91 the petitioner Company had applied
for consent of the Pollution Control Board for discharging trade effluents till such time as
a proper plant for their treatment was made in order to satisfy the requirements of the
Water (Prevention and Control of Pollution) Act, 1974. The Board refused such consent.
A criminal case was also filed by the Pollution Control Board for non-compliance with
the provisions of the Water (Prevention and Control of Pollution) Act, 1974. This petition
was filed against this decision .
Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 mentions, no
person shall without the previous consent of the Board, bring into any new or altered
outlet for the discharge of sewage or trade effluent into a stream or well. The Court had
made notice of Section 26 of the Act which provides that where immediately before the
commencement of this Act any person was discharging any sewage or trade effluent into
a stream or well, the provisions of Section 25 shall apply in relations to such person as
91
AIR 1996 All 173.
102
they apply in relation to the person referred to in that section subject to the modification
that application for consent to be made under Sub. Section (2) of that section shall be
made within a period of 3 months of the constitution of the State Pollution Control Board.
In the case of Amar Singh v. Union Territory of Chandigarh,92 the petitioners,

landowners in Punjab had been irrigating their lands by lifting sullage water from the
sewers of the administration through pumpsets on the payment of certain charges. The
supply of sullage water was suddenly stopped and officials of the administration told
them not to use their pumpsets to lift water anymore, and if they did, criminal
proceedings would be initiated against them.
The respondents pleaded that this facility had then been stopped on the notice of the
Pollution Control Committee. Accordingly they filed a case in the court for grant of
permission to lift sullage water. They further pleaded that it will be a violation of the
Water (Prevention and Control of Pollution) Act, 1974 if the permission is granted for the
same. The Court held that the Administration has been supplying sullage water to the
petitioners and other farmers for irrigation purposes against charges as fixed by the
department from time to time. Thus it is only a contract between administration on one
hand and farmers including the petitioner on the other. The Court held that the act of the
respondents was completely justified.
In the case of Sri Durga Glass Works, Firozabad v.Union of India,93 the petitiones
filed a petition to cancel the orders for recovery of the amount of cess under the Water
(Prevention & Control of Pollution) Cess Act, 1977. The petitioners pleaded that since
the glass industry was not specified in the Schedule of the above Act, they were not liable
to pay the cess.
The Court held that the glass industry clearly falls under the 2nd entry in the Schedule to
the above Act. And no industry can function without consumption of water. The Court
92
AIR 1993 P&H 100.
93
AIR 1997 ALL 179.
103
also held that the principle of absolute liability in case of pollution extending not only to
compensate the victims of the pollution but also the cost of restoring the environmental
degradation (the "polluter pays" principle) is in consonance with the above Act. The
Court held that to protect the fundamental right to life envisaged under Article 21,
environmental laws need to be observed. The writ petition was consequently dismissed.
In the case of M.C.Mehta (Calcutta Tanneries Case) v. Union of India and Others94, a
Public interest litigation was filed for the protection of ecology as Calcutta tanneries were
discharging untreated noxious and poisonous effluents into Ganga river polluting land
and river. According to the examination report submitted by the National Environmental
Engineering Research Institute (NEERI), the present status of the Calcutta tanneries was
as under:
It was observed by the inspection team that no appropriate waste water

drainage and collection systems are available in any of the tannery
clusters. The untreated waste water flows through open drains causing
serious environmental, health and hygiene problems. Also, no waste
water treatment facilities exist in any of the four tannery clusters.
Tannery units are located in highly congested habitations, offering little
or no scope for future expansions, modernization or installations of
ETP(s).
The Supreme Court held that Calcutta tanneries were operating in violation of mandatory
provisions of Water (Prevention and Control of Pollution) Act, 1974 and Environment
(Protection) Act, 1986.
3.11.2 The Environment (Protection) Act, 1986
The preamble of the Environment (Protection) Act, 1986 provides:
94
(1997) 2 SCC 411.
104
An Act to provide for the protection and improvement of environment

for matters connected therewith.
The scope of the Environment (Protection) Act, 1986 is broad, as „environment‟ defined
to include water, air and land and the inter- relationships which exist among water, air and
land and human beings and other living creatures, plants, micro-organisms and property.95
In the case of Bombay Environmental Action Group v. State of Maharashtra96, two writ
petitions were filed challenging the permission granted by both the State and Central
Government to the Bombay Suburban Electric Supply Company Ltd. for establishing a
500 mega watt thermal power station in Thane District.
After perusing the facts and circumstances the Court held that the decision was not
arbitrary or capricious since the conditions imposed by the Government took care of all
the environmental safeguards. The Court held that it is necessary to balance
environmental requirements with the needs of the community at large and the needs of a
developing country. Since,in this case all the pros and cons of this project had been
weighed before taking the decision there was no requirement of judicial interference.
In Buffalo Traders Association v. Maneka Gandhi 97, Idgah Slaughter House had been
ordered to stop functioning as it was a "hazardous or noxious industry”. In Idgah
Slaughter house nearly 1200 to 1500 animals were slaughtered every day and it
discharged untreated blood to the amount of 13,000 litres into the municipal sewer. The
slaughter house was permitted to function provided it complied with certain conditions
laid down by the Court to prevent and control water pollution and to give wholesome
environment to the citizens of India.
95
Supra 5, p.66.
96
AIR 1981 Bom 301.
97
(1997) Delhi Law Times 439 (SC).
105
In M.C. Mehta v State of Orissa98, a petition was filed before the Court to protect the
health of thousands of innocent peoples living in Cuttack and adjacent areas, who were
suffering from the pollution because of the non performance of the Orissa Pollution
Control State Board and the state of Orissa. They were violating of Article 21 of
Constitution of India, the Environment (Protection) Act, 1986 and the Water (Prevention
and Control of Pollution) Act ,1974. Thousands of people were forced to drink the
polluted water because of the unsanitary condition of the drain due to the non-
performance of State Board, which created health problems in the city. The Court held
that provision of proper drainage system in working condition cannot be avoided by
pleading financial inability.
In the case of U.P. Pollution Control Board V. Mohan Meakins Ltd.,99 the Supreme
Court held that director and managers would be liable under Section 16 of Environment
(Protection) Act, 1986 for causing pollution. The Court further observed that it could not
afford to deal lightly with the cases related to the water pollution.
3.11.3 National Green Tribunal Act, 2010
National Green Tribunal Act, 2010 is the latest initiative taken by Indian legislature in
order to prevent and control of water pollution among other environmental issues.
The legislative Act of Parliament defines the National Green Tribunal Act, 2010 as
follows,
An Act to provide for the establishment of a National Green Tribunal

for the effective and expeditious disposal of cases relating to
environmental protection and conservation of forests and other natural
resources including enforcement of any legal right relating to
environment and giving relief and compensation for damages to persons
and property and for matters connected therewith or incidental thereto.
98
AIR 1992 Ori 225.
99
(2000) 3 SCC 745.
106
3.11.3.1 Object of The Act
The object of the Act is to give effect to international obligations arising out of various
decisions taken at international conferences in which India has been a party and also to
implement the Indian Apex Courts pronouncement that the right to healthy environment
is a part of right to life under Article 21 of the Indian Constitution.100
3.11.3.2 Salient Features of the Act
The Act seeks to establish specialised Green Tribunal with five benches located at
different regions in the country. Its jurisdiction to hear cases involving environmental
matters is wider than the one conferred on the National Environmental Appellate
Authority which now has been replaced by the new Act. The Act confers on the Green
Tribunal the power to hear initial complaints as well as appeals from decisions of
authorities under various environmental laws.101
In the case of Vajubhai Arsibhai Didiya Ors. v. Gujarat Pollution Control Board
Ors.102, the applicants have filed the application under Section 14 and 15 of the National
Green Tribunal Act, 2010 against the cement company. Due to improper facilities for
drainage disposal system, poisonous chemical along with other factory wastes spread the
pollution in the nearby areas of the cement factory. As a result crops, trees, wells and
agricultural land were badly affected.
The Tribunal after the submission of report of expert Committee directed the Collector
and District Magistrate to verify whether all agriculturists have been duly compensated or
not. In cases where some farmers had not been compensated, the Tribunal directed the
authorities once again to assure that compensation is paid to the said farmers.
100
Aruna Venkat, Environmental Law and Policy, PHI Learning Private Limited, New Delhi, 2011,
p.123.
101
Ibid., p.124.
102
Retrieved from http://www.indiaenvironmentportal.org.in/files /Gujarat%20Ambuja% 20NGT
%2031oct2013.pdf on 18th January 2014.
107
The Tribunal also imposed fine on respondents for non-filing of adequate response and
not assisting the Tribunal for proper and effective adjudication of the matter.
In the case of Andhra Pradesh Pollution Control Board v. Visakha Industries Ltd and
Another,103 an application was filed by Andhra Pradesh Pollution Control Board for
stopping all activities in the premises of Visakha Industries. The Tribunal held that even
though the industry was situated within the limits of 10 km radius of the lake, it was not a
polluting industry to which the directions of the Supreme Court could be applied for
relocation. Even the latest report stated that emission levels from the process of industry
were within the prescribed limit so there was no need to stop the industry activities and
shift to alternate place.
In the case of Madhya Pradesh Pollution Control Board v. Municipal Corporation,
Bhopal,104 a complaint under Section 44, 47 and 88 of the Water (Prevention And
Control Of Pollution),Act, 1974 and Sections 15 And 16 of Environment (Protection)
Act, 1986 was filed by the Madhya Pradesh Pollution Control Board against the
Authorities of Municipal Corporation of Bhopal for not following the rule of Central
Government which fix the responsibility of Municipal Corporation for collection,
segregation, storage, transportation, processing and disposal of municipal waste in any
form.
On the contrary the Corporation was disposing of municipal waste without any treatment
and in an unscientific manner, thereby causing pollution and health hazards to the
residents of the nearby areas.
Section 15 and 16 of the Environment (Protection) Act, 1986 provides for criminal
proceedings in case of violation of provisions of the Act. Section 14 of the National
Green Tribunal, 2010 states that the Tribunal shall have jurisdiction over all civil cases
where a substantial question relating to environment arises and such question arises out
of the implementation of the enactments specified in Schedule I.
103
Retrieved from http://www.greentribunal.gov.in/judgment/16_2012(THC)(App)(SZ) _26Nov2013
_ final_order.pdf on 18th January, 2014.
104
Retrieved from http://www.indiaenvironmentportal.org.in/files/Municipal%20Solid%20Waste-
NGT-8Aug2013.pdf on 18th January, 2014.
108
The Tribunal held that it has no jurisdiction to try, adjudicate and punish the accused
persons even if they are found guilty under Section 15 and 16 of Environment Protection
Act,1986, particularly in the light of Section 14 of the National Green Tribunal Act,
2010.
In the case of National Green Tribunal Bar Association V. Ministry of Environment &
Forests & Ors.,105 the National Green Tribunal (NGT) issued a restraint order against all
sand mining activity being carried out across the country without environmental
clearance. The order was passed in the light of the recent controversy surrounding the
suspension of IAS officer posted as sub divisional magistrate (SDM) in Greater Noida in
Gautam Buddh Nagar in Uttar Pradesh after she cracked down on the mining mafia. While
passing the order, NGT reaffirmed the Supreme Court‟s order last year which banned any
kind of mining of minor minerals, including sand, without environmental clearance from
the Union Ministry of Environment and Forests.106
The sincerity of the legislature in protecting the environment can be ganged from the very
fact that Constitution of India is one of the first Constitutions of the world which has
incorporated specific provisions for the protection of environment. India has always
fulfilled its international obligation and the same is once again reflected from Indian
Parliament passing specific laws for environment protection. Even the Indian judiciary has
been very active in interpreting the various provisions of the constitution and other laws in
their right perspective. Land mark judgements have been passed and safeguard of the
environment has always been given priority. Passing of the National Green Tribunal Act,
2010 has further attempted at effective and expeditious disposal of environmental cases.
105
Retrieved from http://www.downtoearth.org.in/dte/userfiles/images/01-Sand%20Mining_Bar.pdf
on 18thJanuary, 2010.
106
Retrieved from http://www.downtoearth.org.in/content/no-sand-mining-without-environment-
clearance-ngt on 18th January, 2014.
109
110

Statutory Provisions of Law and The Contribution of Judiciary in The Protection of Water Pollution

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Statutory Provisions of Law and The Contribution of Judiciary in The Protection of Water Pollution

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Statutory Provisions of Law and the Contribution of Judiciary in the Protection of Water Pollution

STATUTORY PROVISIONS OF LAW AND THE

3.2 OBLIGATION TO IMPLEMENT INTERNATIONAL AGREEMENTS

The Preamble of Environment (Protection) Act of 1986 provides:

Whereas decisions were taken at the United Nations Conference on the

The Preamble of the Green Tribunal Act, 2010 provides:

Whereas India is a party to the decisions taken at the United

environment; And whereas decisions were taken at the United

3.3 DIRECTIVE PRINCIPLES OF STATE POLICY

3.4 FUNDAMENTAL DUTIES

3.5 FUNDAMENTAL RIGHTS

In M.C.Mehta v. Union of India,34 popularly known as Ganga Water Pollution Case,

"The financial capacity of the tanneries should be considered as irrelevant

In F.K.Hussain v. Union of India,36 according to petitioner,ground water resources in

3.5.1 Right to Equality

Article 14 of the Constitution provides:

3.5.2 Freedom to Trade vis-a-vis Environmental Protection

In the case of Abhilash Textiles v. Rajkot Municipal Corporation,42 the petitioner

3.5.3 Right to Life

In the case of DD Vyas v. Ghaziabad Development Authority49, Allahabad High Court

In Narmada Bachao Andolan v. Union of India50, it was argued that construction of a

Another aspect of the right to life-the right to livelihood-can potentially check

3.6 REMEDIES FOR THE ENFORCEMENT AND WRIT JURISDICTION

In V. Lakshmipathy v. State,60 the location and operation of industries and industrial

3.7 LAW OF TORTS

exclusive use.69Public nuisance is an act affecting the public at large or some

In the case of Municipal Council, Ratlam v Vardhichand72, the Supreme Court

Trespass is in theory closely related to nuisance and is occasionally invoked in

Negligence is another specific tort on which a common law action to prevent

3.7.4 Strict Liability and Absolute Liability

“Where an enterprise is engaged in a hazardous or inherently dangerous

3.8 INDIAN PENAL CODE, 1860

5. Various types of mischiefs, including mischief by killing or maiming animals,

In Municipal Council, Ratlam v. Vardhichand, in a far reaching judgement the Supreme

3.9 CRIMINAL PROCEDURE CODE, 1973

3.10 CODE OF CIVIL PROCEDURE

3.11 LEGISLATIVE INITIATIVES FOR PREVENTION AND CONTROL OF

1. Water (Prevention and Control of Pollution) Act, 1974

2. Water (Prevention and Control of Pollution) Cess Rules, 1975

3.11.1. Water (Prevention and Control of Pollution) Act, 1974

In Indian Council for Enviro-Legal Action v. Union of India,90 private companies

“If an industry is established without obtaining the requisite permission

In the case of Amar Singh v. Union Territory of Chandigarh,92 the petitioners,

It was observed by the inspection team that no appropriate waste water

3.11.2 The Environment (Protection) Act, 1986

The preamble of the Environment (Protection) Act, 1986 provides:

An Act to provide for the protection and improvement of environment

3.11.3 National Green Tribunal Act, 2010

An Act to provide for the establishment of a National Green Tribunal

3.11.3.1 Object of The Act

3.11.3.2 Salient Features of the Act

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