Enviromental Jurisprudence Research Paper.docx

Project on MC Mehta and development of environmental jurisprudence in India

Submitted to: Prof.

Samraggi Chakraborty

Submitted by: Sharanya Nair URN No. 2016-B-01061998 BA.L.L.B (SEM VI)

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Table of contents

SR No.

Topic

Page No.

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Abstact

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Objective

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Methodology

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Introduction to environmental jurisprudence

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Concept of environment and pollution

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Environment protection from Indian Constitution perspective

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MC Mehta and his contributions

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Conclusion

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References

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Abstract The paper deals with the study of the development of environmental jurisprudence in India. Also deals with the legislations which direct the State to take necessary steps to ensure ecological balance. The major emphasis is laid on the contribution of Mr. MC Mehta towards the development of the environmental jurisprudence in India. Mahesh Chandra Mehta is a public interest attorney from India. He is famous for his continuous fights in Courts for the protection of the environment.

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Objective To study the development of environmental jurisprudence in India and to study the contribution of MC Mehta towards the development of the environmental jurisprudence in the country.

Methodology The present study has adopted the doctrinal method of study. The study has been divided into three parts based on the objectives sought to be achieved by the present study. The study has firstly tried to present the background of the subject matter in brief and then the main part of the study has been dealt with. The study concludes with the analysis of developments in brief.

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INTRODUCTION TO ENVIROMENTAL JURISPRUDENCE “...Nature provides a free lunch, but only if we control our appetites...”

The preceding century has witnessed an unmanageable boost in population, placing a tremendous burden on the available natural resources. Mother Nature has offered all she had, the earth itself is dog-eared due to disproportionate excessive cultivation, use of harsh chemicals and pesticides and excessive use of ground water. The growing population has placed a burden on the availability of natural resources that are scarce. Rapid industrialization and wide spread growth of consumers has led to the creation of a larger economy which has encountered with the problems such as indisposed garbage and uncontrolled sewage. Usage of fossil fuels, plastics and other non-biodegradable materials have caused immense damage to the environment and the level at which destruction has been caused is alarming. These are all mere indications and signs to take correct steps and actions in order to prevent further damage. For every individual it is their basic human rights to live in a pollution free environment with full human dignity. There are various laws relating to environment protection in the constitutional provisional and the other statutory provision. Amongst the few in the world the Indian Constitution contains specific provision on environment protection. In India protection of environment is not a new concept but has been prevalence from times immemorial. During ancient times man and environment were said to be inseparable. Tremendous use of science and technologies have given birth too many problems of the environmental protections. Healthy environment is need of everyone. Today we witness ecological imbalance, degrading environment, depredated earth, traumatic subversion of the eco-system, poisoning of air, water and food and technological plunder of resources of nature. The global community including India facing problems like global warming, cyclones, earthquake, tsunami, flood, draught, and what not. Due to the population pressure, India pushes ahead with aggressive industrial development. Consequently, thousands of industrial clusters nationwide produce enormous amounts of untreated toxic waste that often end up in rivers, lakes, forests, and landfills. Even though India has sufficient environmental laws, weak enforcement and the lack of funds and manpower are most often the stumbling blocks for the pollution control boards. The issues of environment are the effect from the human’s activities that have no civic conscious and only think the profit without concern about the impact towards

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the environment and their future of life. The long term effect from the environmental pollution can be seen when the ecosystem is not able to endure the pollution. According to the relevant literature, the major cause of this ecological crisis is regarding the value and belief in shaping human’s relation with the surrounding and the lifestyle itself. Present India is facing many important environmental challenges which currently threaten both the development of India and the outlook for its future1. The state of India's environment is in upset at the hands of uncontrolled human activities, and these ecological ailments are affecting social growth potential. The Government of India has established an environmental legal and institutional system to meet these challenges within the overall framework of India’s development agenda and international principles and norms. In the Constitution of India it is clearly stated that it is the duty of the state to ‘protect and improve the environment and to safeguard the forests and wildlife of the country’2. It imposes a duty on every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife . Reference to the environment has also been made in the Directive Principles of State Policy as well as the Fundamental Rights. The development of the environmental jurisprudence in India through the innovative judicial decisions of the Supreme Court and High Courts is probably great inspiration to protection of environment. Judiciary played significant role it has opened new aspirations in the arena of environmental protection.

Concept of Environment and Pollution In India protection of environment is not a modern concept but has been prevalence from times immemorial. During ancient times man and environment were said to be inseparable. Environment includes everything on the earth in natural state. It majorly includes soil, stone, water, air, living creatures also. The concept of environment cannot be defined precisely. Environment means sum total of all conditions and influences that affects the development of life of all organisms [1]. Environmental pollution means the presence in the environment of any environmental pollutants [2]. As per section 2 (b) of Environment (Protection) Act, 1986,

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http://www.isca.in/IJENS/Archive/v1/i3/8.ISCA-IRJEvsS-2012-043. Milind K. and Gurumurthy R., The Causes and Consequences of Particulate Air Pollution in Urban India: A Synthesis of the Science, Annual Review of Energy and the Environment, 25, 629–684 (2000) 2

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environment pollution means any solid, liquid or gaseous substance present in such concentration as may be or tend to be injurious to environment. In other words it can be also stated as the unfavorable alteration of our surroundings. Environmental pollution is categorized as air pollution, water pollution, soil pollution etc. The environmental pollution caused due to industrialization, urbanization and due to natural calamities also. It is very derogatory for human life and all living beings.

Environment Protection-From Indian Constitution Perspective: The 42nd amendment to the constitution was brought about in the year 1974 makes it the responsibility of the state government to protect and improve the environment and to safeguard the forests and wildlife of the country. The latter, under fundamental duties, makes it the fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures The State's responsibility with regard to environmental protection has been laid down under Article 48-A of our constitution, which reads as follows: "The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country". Environmental protection is a fundamental duty of every citizen of this country under Article 51A (g) of our constitution which reads 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 creatures3." The forty-second amendment to the Indian constitution in 1976 introduced principles of environmental protection in an explicit manner into the constitution through Articles 48A and 51A (g). Article 48A, part of the directive principles of state policy, obligated the state to protect and improve the environment. On the other hand, Article 51A (g) obligated citizens to undertake the same responsibilities. In addition to the constitutional mandate, India has a number of national policies governing environmental management, including the National Policy on Pollution Abatement (NPPA, 1992) and the National Conservation Strategy and Policy Statement on Environment and Development (NCS/PSED, 1992)4.

3http://www.isca.in/IJENS/Archive/v1/i3/8.ISCA-IRJEvsS-2012-043.pdf 4 http://www.ijser.in/archives/v6i5/IJSER172515.pdf

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Legal Framework: Environmental Protection: India has an elaborate legal framework with over two hundred laws relating to environmental protection5. Key national laws for the prevention and control of industrial and urban pollution include the following: Water (Prevention and Control of Pollution) Act, 1974: Prohibits the discharge of pollutants into water bodies beyond a given standard, and lays down penalties for non-compliance. . The act was amended in 1988 to conform closely to the provisions of the EPA, 1986. It set up the CPCB (Central Pollution Control Board) which lays down standards for the prevention and control of water pollution. At the state level, the SPCBs (State Pollution Control Board) function under the direction of the CPCB and the state government.

Water (Prevention and Control of Pollution) Cess Act, 1977: Provides for a levy and collection of a Cess on water consumed by industries and local authorities. It aims at augmenting the resources of the central and state boards for prevention and control of water pollution. the water (prevention and control of pollution) cess rules were formulated in 1978 for defining standards and indications for the kind of and location of meters that every consumer of water is required to install.

Air (Prevention and Control of Pollution) Act, 1981: Ambient air quality standards, means for the control and abatement of air pollution, prohibits the use of polluting fuels and substances and regulates appliances that give rise to air pollution. To empower the central and state pollution boards to meet grave emergencies, the air (prevention and control of pollution) amendment act, 1987, was enacted. The boards were authorized to take immediate measures to tackle such emergencies and recover the expenses incurred from the offenders. The power to cancel consent for non-fulfillment of the conditions prescribed has also been emphasized in the air act amendment.

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http://www.isca.in

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The Air (Prevention and Control of Pollution) Rules, 1982: Defines the procedures for conducting meetings of the boards, the powers of the presiding officers, decision-making, the quorum; manner in which the records of the meeting were to be set etc.

The Wildlife (Protection) Act, 1972: The WPA (Wildlife Protection Act), 1972: provides for protection to listed species of flora and fauna and establishes a network of ecologically important protected areas. The WPA empowers the central and state governments to declare any area a wildlife sanctuary, national park or closed area.

The Forest (Conservation) Act, 1980: Restricts the powers of the state in respect of dereservation of forests and use of forestland for non-forest purposes.

Environment (Protection) Act, 1986 (EPA): An Act to provide for the protection and improvement of environment and for matters connected therewith. It provide a framework for the co-ordination of central and state authorities established under the water (prevention and control) act, 1974 and air (prevention and control) act, 1981 and the central government is empowered to take measures necessary to protect and improve the quality of the environment by setting standards for emissions and discharges; regulating the location of industries; management of hazardous wastes, and protection of public health and welfare.

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MC Mehta and his contribution to the development of Environmental Jurisprudence The basic function of judiciary is to interpret the law and redress grievance within the limitation of law enacted by the legislature. Where issues remain unresolved, the common man is forced to take protection of courts. At times, the courts are compelled to take up the issues, which they have usually not resolved. Judiciary being a safeguard of constitutional and statutory rights of citizen has a distinctive role to play in the constitutional system. The power vested in the Supreme Court and High Court exercised under article 32 and 226 of the Constitution for the enforcement of fundamental rights and it is the last resort of a citizen to whom no other remedy to get his grievance redressed is available under any other law of the land.

Mahesh Chandra Mehta: The crusader Mahesh Chandra Mehta is a public interest attorney from India. The contribution of M. C Mehta towards the protection of the environment is truly outstanding. He is a lawyer by profession and by choice he is an environmentalist. He is famous for his continuous fights in Courts for the protection of the environment. Mahesh Chandra Mehta was born in a small village in Rajouri district of Jammu and Kashmir. He was inspired from nature in his childhood days, which lead him to felt in love with nature and had a strong commitment towards protecting it. After the completion of his higher education in Rajouri, he moved Jammu University for the purpose of obtaining degree in Political Science and Law. After getting Law degree, he started to practice in Jammu and Kashmir High Court. He had involved actively in social and political issue during his days in Jammu and used to raise his voice against corruption and motivated students and youths to stand against the discrimination that taking place in Jammu. In 1983, he migrated Delhi and from then his career as an advocate of Supreme Court began, from the next year he started to focus environmental litigations6. He single-handedly won numerous landmark judgments from India’s Supreme Court since 1984, including introducing lead-free gasoline to India and reducing the industrial pollution fouling the Ganges and eroding the Taj Mahal. He was awarded

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https://lawcorner.in/m-c-mehta-and-his-attempt-towards-environmental-protection/

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the Goldman Environmental Prize in 1996 for his continuous fights in Indian courts against pollution-causing industries. He received the Ramon Magsaysay Award for Asia for Public Service in 1997. The Government of India awarded him the civilian honour of the Padma Shri in 2016. He is a trustee of People for Animals. Mehta rose to prominence for work resulting in 40 landmark Supreme Court decisions that shut down or relocated polluting factories in India's cities, forced polluters to pay, and compelled India's media to carry daily environmental messages. In the most famous case, Mehta campaigned for 10 years to persuade the Supreme Court to ban coal-based industries emitting effluents that damage the soft marble of the Taj Mahal, India's architectural masterpiece. The court also shut down 230 factories and required more than 300 others near the building to install pollution-control devices. He also won a Supreme Court decision that forced a fertilizer factory to compensate thousands of people sickened by a 1985 gas leak. At Mehta's urging, 30 polluting industries in West Bengal, including giants like Hindustan Lever, were indicted. The Supreme Court has also ordered environmental education mandatory in schools. The 50-year-old Mehta is the 34th Indian to win the Magsaysay award since it was launched in 1958. Last year, he won the Goldman Award, worth US $75,000, the world's largest grassroots environmental prize7.

Here are some of the famous cases, where M.C Mehta fought for the protection of environment and helped in the development of the environmental jurisprudence of India.

1. M.C Mehta Vs Union of India (Taj Mahal Case)8: Taj Mahal which is one of the finest examples of Mughal architecture and one of the seven wonders in the world was facing a serious threat from pollution caused by nearby industries. The Taj Mahal and other historical monuments were facing a serious danger because of acid rain resulted from high toxic emission from these industries. M.C Mehta had filed a petition in Supreme Court in 1984, and in 1996 the Apex Court gave a historical verdict in which the Court banned the use of Cole and cake, and also directed these industries to use Compressed Natural Gas.

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https://www.rediff.com/news/jul/15magsay.htm (1997)2SCC 353

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2. M.C Mehta Vs Union of India (Ganga Pollution Case)9: River Ganga is a very sacred one among the Hindu people; it flows through India and Bangladesh. But the holy river was getting polluted due to tanneries and shop factories in the banks of the river in Kanpur. The river Ganga became so polluted that it could no longer for either drinking of bathing.

M.C Mehta filed a writ petition in Supreme Court for the prevention of nuisance, which resulting the pollution in the river. The Court, in this case, had issued several directions to Kanpur Municipal Corporation; Court also pronounced that all these directions are also applicable for all other Municipalities which have jurisdiction over areas in which River Ganga flows.

After this case, the Supreme Court ordered the Central Government to direct all the educational institutions to teach at least one hour in a week for the protection and improvement of our environment in the first ten classes.

3. M.C Mehta Vs Union of India (Oleum Gas Leak Case)10: Oleum Gas Leak case is also known as Shiriram Gas Leak case. It was a very significant one in the environmental field. Shriram Food and Fertilizers was a subsidiary of a privately owned company Delhi Cloth Mill Limited. They have a single complex for all of their units, which situated near a thickly populated area of Delhi. Within few days, it created a nuisance for the surroundings of local people. M.C Mehta filed a Public Interest Litigation for the immediate closure and relocation of the complex. On 4th December 1985 after one month of filing the petition, the Oleum had leaked from the complex. As a result, several people suffered severe medical conditions. In this case, the Supreme Court gave a landmark verdict and the rule of Absolute Liability lay down. The Court also inserted a new chapter to the Factories Act and made several changes in environmental laws.

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1988 AIR 1115, 1988 SCR (2) 530 1987 SCR (1) 819

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4. M.C Mehta Vs Union of India (Vehicular Pollution Case)11: Against vehicular pollution, the Supreme Court had delivered a landmark judgment in 1992. As per that judgment, retired Judge of the Supreme Court was appointed along with three other members to suggest measures for the nationwide management of transport pollution. Orders for providing Lead-free fuel within the country, and for the use of gas and alternative mode of fuels to be used within the vehicles are passed and carried out. Lead-free fuel had been introduced within the four metropolitan cities from April 1995; all new cars registered from April 1995 forwards are fitted with chemical action convertors.

5. M.C Mehta Vs Union of India (Ground Water Pollution case)12 Five small chemical industries were operating at Rajasthan’s Bichhri without the proper flowing plant. Toxic effluents from these industries were entering the ground water and walls, which affected 14 nearby villages.

M.C Mehta filed a petition on Supreme Court, and after a fight of five years in Court, the Supreme Court delivered its judgment in March 1996. By that Judgment, these factories were closed.

6. MC Mehta v. Kamalnath (Public Trust Doctrine Case)13 The Indian Express published an article reporting that a private company, Span Motels Private Ltd. (‘the Motel Company’), owner of Span Resorts, had floated an ambitious project called Span Club. Kamal Nath who was the Minister of Environment and Forests had direct links with this company. The company encroached upon 27.12 big has of land which also included forest land. The land was regularized and subsequently leased out to the company on 11th April 1994.

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1991 SCR (1) 866 (1997)11 SCC 312 13 (1997)1 SCC 388 12

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This encroachment had an impact on the course of river Beas. For more than 5 months the Span Resorts management moved bulldozers and earth movers to turn the course of the river for the second time. In September, 1993, these activities by the company caused floods in the river and a property worth Rs. 105 crores was destroyed.

The Indian Express published an article reporting that a private company, Span Motels Private Ltd. (‘the Motel Company’), owner of Span Resorts, had floated an ambitious project called Span Club. Kamal Nath who was the Minister of Environment and Forests had direct links with this company. The company encroached upon 27.12 big has of land which also included forest land. The land was regularized and subsequently leased out to the company on 11th April 1994.

This encroachment had an impact on the course of river Beas. For more than 5 months the Span Resorts management moved bulldozers and earth movers to turn the course of the river for the second time. In September, 1993, these activities by the company caused floods in the river and a property worth Rs. 105 Crores was destroyed.

Doctrine of Public Trust The Supreme Court applied the ‘Doctrine of Public Trust’ to the present case. Doctrine of Pubic trust is an ancient legal doctrine which states that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Under the Roman law these resources were either owned by no one (res Nullius) or by everyone in common (Res Communious). Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing.Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, water and the forests have such a great importance to the people as a whole that it would be unjustified to make them a subject of private ownership. The said resources being a gift of nature should be made freely available to everyone irrespective of the status in life. The Court held that issues in the present case point out towards a classic struggle between those members of the public who would preserve our ecological resources and those 14

charged with administrative responsibilities who, under the pressures of the changing needs of an increasing complex society, find it necessary to encroach to some extent open lands heretofore considered in-violate to change. However, no law made by any central of state legislature exists to resolve this conflict. In the absence of such a law the executive must not fail to protect the ecological resources and convert them into private ownership14. The contribution of Mr. MC Mehta towards the development of environmental jurisprudence is of great significance.

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https://lawtimesjournal.in/m-c-mehta-vs-kamal-nath-kamal-nath-case/

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CONCLUSION The active role of the judiciary during the last decade is demonstrated M.C. Mehta (Taj Trapezium Matter) vs. Union of India (UOI) and Ors, M.C. Mehta vs. Kamal Nath and Ors, Narmada Bachao Andolan v. Union of India and Ors are the examples where the court has evolved the concept of public interest litigation and has contributed to the development of environmental jurisprudence in India.. For the purpose of maintaining ecological balance the court has laid down that mining within the principle of sustainable development comes within the concept of “balancing” whereas mining beyond the principle of sustainable development comes within the concept of “banning”. Article 21 protects the right to life as fundamental right, and it encompasses within its ambit enjoyment of life and right to life with human dignity, protection and preservation of environment, ecological balance free from pollution of air and water, without which life cannot be enjoyed.

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REFERENCES Cases referred 1. M.C Mehta Vs Union of India (Taj Mahal Case) (1997)2SCC 353 2. M.C Mehta Vs Union of India (oleum gas tragedy) 1987 SCR (1) 819 3. M.C Mehta Vs Union of India (ganga pollution case) 1988 AIR 1115, 1988 SCR (2) 530

4. M.C Mehta Vs kamalnath (1997)1 SCC 388 5. M.C Mehta Vs Union of India (Vehicular pollution) 1991 SCR (1) 866 6. M.C Mehta Vs Union of India (Ground water pollution Case) (1997)11 SCC 312

ONLINE SOURCES

1. https://lawtimesjournal.in/m-c-mehta-vs-kamal-nath-kamal-nath-case/ 2. https://www.rediff.com/news/jul/15magsay.htm 3. https://lawcorner.in/m-c-mehta-and-his-attempt-towards-environmentalprotection/

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