Environmental Jurisprudence in India-An Overview

-Dr. Naresh Mahipal*

“The earth, the air, the land and the water are not am inheritance from our fore fathers but
on loan from our children. So we have to handover to them at least as it was handed over to
us.”

-Mahatma Gandhi

Prologue

Environmental Jurisprudence has gone a long way in acquiring a very seminal importance in
modern India leaving behind the engraved British Juristic notions as out dated and
insufficient. The damage caused to environment by poisonous gases and emissions, industrial
effluents, urban sewage, garbage, plastic waste, chemicals, exploitation of natural resources
like soil, forests, water supplemented by other equally important factors like poverty, growing
population, health hazards, degeneration in quality of life have acquired alarming proportions
which cry for a new environmental ethic, order and justice in Indian society. Regrettably in
India, the initial phase of countrymen response to the problems of environment has been of
insensitivity and apathy towards environmental issues and problems. Our ancestors were
nature worshippers because worship is a form of the greatest admiration for them in nature.
The famous hymn in the world’s oldest scripture, Rig Veda, portrays the beauty of the
morning (Ushas) and worshipping its glory. This healthy approach of man to nature later
suffered an eclipse with the growth of population, increasing pressure on natural resources.
The exploitation of nature resources created deserts, droughts and now the experiments with
the atom and the entry of nuclear weapons in the space threaten even the existence of ozone
and the very atmosphere without with man cannot live at all.1

The holy rivers, Ganga and Yamuna, the most precious and indispensable source of life have
now become unholy. The greenery and public parks are converted into the commercial
establishments and residential abodes. History is witness to the fact that humanity has been
cruel to nature and centuries of exploitation of natural resources have left us with
irremediable losses. There is finally a realization but the execution of a constructive effort
seems to be minuscule. The Alkali Act, 1863 was the first display of condolence towards
nature which merely was a step towards a seemingly endless journey. The smog in London
*
Assistant Professor in Law, C.R. Law College at Hisar (Hry.)
1
http://www.nlsenlaw.org/environmental-protection/articles/emerging-trends-in-environmental-jurisprudence-
in-india/ last visited on 07.01.2011
1
which engulfed 4000 lives caused the genesis of the Clean Air Act, 1956, succeeded by
various other statutes in the global village. It is we, who took first step in the world to protect
the environment and passed some substantive legislative steps. Within four years of U.N.
Conference on Human Environment in Stockholm, our country passed Wildlife (Protection)
Act in 1972, Water (Prevention and Control of Pollution) Act in 1974, The Forest
(Conservation) Act in 1980, Air (Prevention and Control of Pollution) Act in 1981 and
subsequently the Environment (Protection) Act, 1986.The development of environmental law
in the 1990s is largely the story of India’s judiciary responding to the complaints of its
citizens against environmental degradation and administrative sloth. Indian environmental
statutes chiefly employ a system of licensing and criminal sanctions to preserve natural
resources and regulate their use. The Indian Constitution in its fundamental norms is amongst
the few in the world that contains specific provisions on environmental protection. The
Judiciary has also played a myriad role in the implementation and evolvement of the new
doctrines and various other procedures.

Social Issues & Problems in relation to Environment

Whatever may be our age and whatever our profession is, we all are responsible for
degrading our environment, infact harming ourselves. We are a part of global network which
is weaved in such a manner that every component is linked with each other in one or another
way. It is we, who affects the environment by our own acts. It is a deep matter of concern for
all nations because atmosphere understands no boundaries and environmental pollution
produced at one place travel to another. A great damage has been already done and still
continuing to human and aquatic life by the polluted water and air. Harm caused to clean
water, fresh air, forests and other natural resources will have far reaching effect not only the
hilly regions but also on plain areas. There might be some environmental problems that can
be faced at local level such as mining and hydro-electric projects, solid waste management
etc. but there are some major environmental problems affecting mankind at large such as
global warming, depletion of ozone layer, dwindling forests and energy resources, an
undesirable change in physical, chemical or biological character of air, water, soil which can
cause dangerous effects on various forms of life and property throughout the world.

Various environmental laws enacted for environmental protection and management found
themselves helpless due to loopholes in them. Any law at its own level cannot achieve the
goals until the public has a participatory role in it. Public need to be educated that sometimes

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we are unable to adjudicate the gravity of offence until a threshold is crossed. It is all
important for us to use, protect and conserve our natural resources in a judicious manner so
that we don’t exhaust them. It is our duty to save them enough for our future generations. The
trees produce oxygen by photosynthesis which is so vital for life on this earth. They are
rightly called as earth’s lungs. There are major causes of deforestation such as fuel
requirements, cultivation shifting, exploitation of wood for industrial use, development
projects, to meet the demand of growing food needs, overgrazing by the cattle which removes
the vegetal cover over the soil, so the roots cannot go much deep into the soil and adequate
soil moisture is not available etc. Water is considered as the most precious natural resource.
Although it is very abundant on the planet earth, yet very precious. About ninety seven
percent is salty and only three percent is fresh water out of the total water reserves of the
world. Even such small fraction is not available to the world as most of it is locked up polar
ice caps and just 0.003 percent is readily available to consume. The extraction and processing
of minerals during mining and smelting are the major source for causing severe problems by
exposing localities to radioactive hazards, forced displacement, causing river pollution and
posing serious health hazards by seeping of chemicals into it, land encroachment and
contamination of groundwater by mixing very high sulphur quantity.

Different natural resources like forests, water, soil, food, mineral and energy resources play a
vital role in the development of a nation. However, overuse of these resources in our modern
society is resulting in fast depletion of these resources and several related problems. If we
want our mankind to flourish there is a strong need to conserve these natural resources. While
conservation efforts are underway at National as well as International level, the individual
efforts for conservation of natural resources can go a long way. Environment belongs to each
one of us and all of us have a responsibility to contribute towards it conservation and
protection. “Small droplets of water together form a big ocean.” Similarly, with our small
individual efforts we can together help in conserving our natural resources at a large extent.
Let us see how individuals can help in conservation of different resources.2

International Law and Doctrines

To deal with the problems of industrialization and over exploitation of natural resources,
nations all over the world came together at the United Nation’s Conference on Human
Environment held at Stockholm in the year 1972 on 5th June to deal with problems of
2
Kaushik Anubha & C.P, Perspectives in Environmental Studies, 1st ed. 2004, New Age International (P) Ltd,
New Delhi at 59
3
environmental protection where the concept of Sustainable Development was evolved. 5 th
June is celebrated all over the world as World Environment Day. Sustainable development, as
defined in the Brundtland Report also known as Our Common Future of 1987 means
development and meeting the needs of the present without compromising the ability of the
future generation to meet their own needs. The sustainable development, therefore, includes
reviving growth, changing quality of growth, meeting essential needs for job, food, energy,
water and sanitation, ensuring sustainable level of population, conserving and enhancing the
resource base, reorienting technology and managing risk, and merging environment and
economics in decision making. The concept of intergenerational equity and obligation was
incorporated in principle I & II of the U.N. Conference on Human Environment in 1972
which reads as under:

Principle No. 1:- “Man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits a life of dignity and well-being,
and he bears a solemn responsibility to protect and improve the environment for present and
future generations. In this respect, policies promoting or perpetuating apartheid, racial
segregation, discrimination, colonial and other forms of oppression and foreign domination
stand condemned and must be eliminated.”

Principle No. 2:- “The natural resources of the earth, including the air, water, land, flora and
fauna and especially representative samples of natural ecosystems, must be safeguarded for
the benefit of present and future generations through careful planning or management, as
appropriate.”

The precautionary principle is one of the most important Environmental Principle for
avoiding environment harm and achieving sustainable development. It involves the
anticipation of environmental harm and taking measures to avoid it or to choose the least
environmentally harmful activity. It is based on scientific certainty.

Environmental Legislation in India

Constitutional Provisions

The backdrop of the environmental philosophy which the Indian environmental jurisprudence
has nurtured is the Stock Home Conference on Human Environment, 1972. Since then, within
four years, India has witnessed a series of legislative measures, administrative policy

4
decisions, amendments of the constitution and also a new interpretation of Article 21 to
protect environment. Articles 48-A and 51A (g) was introduced in Constitution of India
through the 42nd amendment which reads as follows:

Article 48-A provides that “The State shall endeavor to protect and improve the environment
and to safeguard forests and wildlife of the country.”

Article 51A (g) impose duty on us by providing that “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 21 of the Indian Constitution guarantees to all persons a fundamental right to life.
Right to water is a fundamental right under Article 21 of the constitution of India still
millions of people in India are clamoring for drinking water due to either acute shortage of
water or pollution of water or any other reason. Drinking water problem has become a
seasonal phenomenon in some areas of the country and in some areas it is a continuous one.
As Supreme Court observed that right to life is not confined to mere animal existence but
extend to the right to live with basic human dignity. In T.Damodar Rao v. The Special officer,
Municipal Corporation, Hyderabad3, A.P High Court observed that enjoyment of life and its
attainments and fulfillment guaranteed by Article 21 of the constitution embraces the
protection and reservation of the natures gifts, without which life can not be enjoyed. The
Apex Court further observed that, “protection of environment is not only the duty of the
citizens but is also the obligation of the state and all other state organs including the courts.”
In plethora of cases the judiciary held that entitlement to a clean environment is one of the
recognised basic human rights. Thus our constitution protects us against environmental
pollution by providing us some guarantees as well as imposes duty on us to protect and
conserve the environment.

The Wildlife (Protection) Act, 1972

In the year 1972, Government of India enacted a comprehensive legislation with the objective
of effectively controlling poaching and illegal trade in wildlife and its derivatives. This has
been amended recently (January, 2003) and punishment and penalty for offences under the
Act have been made more stringent. “Wildlife” has been transferred from State List to
Concurrent List in 1976 giving power to Government of India to enact the legislation. To
3
(1987) AIR, AP 171
5
protect endangered species such as lion, tiger, crocodile, several conservative projects were
launched under this Act.

For offences relating to wild animals (or their parts and products) included in schedule-I or
part II of Schedule- II and those relating to hunting or altering the boundaries of a sanctuary
or national park the punishment and penalty have been enhanced, the minimum imprisonment
prescribed is three years which may extend to seven years, with a minimum fine of Rs.
10,000/-. For a subsequent offence of this nature, the term of imprisonment shall not be less
than three years but may extend to seven years with a minimum fine of Rs. 25,000. Also a
new section (51 - A) has been inserted in the Act, making certain conditions applicable while
granting bail.

Some drawbacks which disappoint the wildlife lovers include fewer penalties to offenders,
illegal wild life trade, and personal ownership certificate for animal articles, no protection for
foreign endangered wildlife, pitiable condition of wildlife in mobile zoos and little protection
of plant genetic resources.

The Forest (Conservation) Act, 1980

This Act deals with the conservation of forests and related aspects. It extends to whole of
India except Jammu and Kashmir. The Act covers under it all types of forests including
reserved forests, protected forests or any forested land irrespective of its ownership. The
salient fetures of the Act are as follows:

(i) The State Government has been empowered under this Act to use the forests only
for forestry purposes. If at all it wants to use it in any other way, it has to take
prior approval of central government, after which it can pass orders for declaring
some part of reserve forest for non-forest purposes (e.g.) mining or for clearing
some naturally growing trees and replacing them by economically important trees
(reforestation).
(ii) It makes provision for conservation of all types of forests and for this purpose
there is an Advisory Committee which recommends funding for it to the Central
Government.
(iii) Any illegal non-forest activity within a forest area can be immediately stopped
under this Act.

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Non-forest activities include clearing of forest land for cultivation of any type of plants/crops
or any other purpose. However, some construction work in the forest for wildlife or forest
management is exempted from non-forest activities. Forest Amendment Act 1992 has made
some provisions in the Act for allowing some non-forest activities in forest, without cutting
trees or limited cutting with prior approval of Central Government. Wildlife sanctuaries,
National Parks etc. are totally prohibited for any exploration or survey under this Act without
prior approval of Central Government. Even cultivation of fruit-bearing trees, oil-yielding
plants or plants of medicinal value in forest area need to be first approved by the Central
Government. Mining is a non-forestry activity and prior approval of Central Government is
mandatory. The Supreme Court in T.N. Godavarman Thirumulkpad v.Union of India directed
all on-going mining activity to be ceased immediately in any forest area of India if it had not
got prior approval of Central Government. Any proposal sent to Central Government for non-
forestry activity must have a cost-benefit analysis and Environmental Impact Statement (EIS)
of the proposed activity with reference to its ecological and socio-economic impacts.4

The Act has failed to attract public support because it has infringed upon the human rights of
the poor native people. It is treating the poor people as marginal. The rich knowledge and
contribution of tribal communities in preserving ecology has neither been acknowledged nor
honoured. Also they have been completely kept out from the decision-making process
regarding the natural use of forest land.

Water (Prevention and Control of Pollution) Act, 1974

In this Act, the word “Pollution” has been defined thoroughly. It means that such
contamination of water or such alteration of the physical, chemical or biological properties of
water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or
solid substance into water (whether directly or indirectly) as may or is likely to, create a
nuisance or render such water harmful or injurious to public health or safety, or to domestic,
commercial, industrial, agricultural or other legitimate uses, or to the life and health of
animals or plants or of aquatic organisms. This Act 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 (at Central and
State level) 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.

4
Kaushik Anubha & C.P, Perspectives in Environmental Studies, 1st ed. 2004, New Age International (P) Ltd,
New Delhi at 196
7
Function of Central Pollution Control Board (CPCB)

In particular and without prejudice to the generality of the foregoing function, the Central
Board may perform all or any of the following functions, namely:

(a) advice the Central Government on any matter concerning the prevention and control of
water pollution;

(b) co-ordinate the activities of the State Boards and resolve dispute among them;

(c) provide technical assistance and guidance to the State Boards, carry out and sponsor
investigations and research relating to problems of water pollution and prevention, control or
abatement of water pollution;

(d) plan and organise the training of persons engaged or to be engaged in programmes for the
prevention, control or abatement of water pollution on such terms and conditions as the
Central Board may specify;

(e) organise through mass media a comprehensive programme regarding the prevention and
control of water pollution;

(ee) perform such of the functions of any State Boards as may be specified in an order made
under sub-section (2) of section 18;

(f) collect, compile and publish technical and statistical data relating to water pollution and
the measures devised for its effective prevention and control and prepare manuals, codes or
guides relating to treatment and disposal of sewage and trade effluents and disseminate
information connected therewith;

(g) lay down, modify or annual, in consultation with the State Government concerned, the
standards for a stream or well :

Provided that different standards may be laid down for the same stream or well or for
different streams or wells, having regard to the quality of water, flow characteristics of the
stream or well and the nature of the use of the water in such stream or well or streams or
wells;

8
(h) plan and cause to be executed a nation-wide programme for the prevention, control or
abatement of water pollution;

(i) perform such other functions as may be prescribed.

The State Pollution Control Board also works on the similar pattern and has same powers
and functions as that of CPCB. It advises the respective State Government for which it is
established. However, Act contains some weaknesses; it has detailed provisions and clear
guidelines for preventing and controlling the problem of water pollution in the country.

The Air (Prevention and Control of Pollution) Act 1981

This Act was enacted to provide for the prevention, control and abatement of air pollution, for
the establishment, with a view to carrying out the aforesaid purposes, of Boards, for
conferring on and assigning to such Boards powers and functions relating thereto and for
matters connected therewith. It was considered necessary to implement the decisions taken in
Stockholm Conference 1972 in so far as they relate to the preservation of the quality of air
and control of air pollution.

In the Act, “Air pollution” has been described as “the presence in the atmosphere of any air.”
Whereas “Air Pollutant” has been described as “any solid, liquid or gaseous substance 5
(including noise) present in the atmosphere in such concentration as may be or tend to be
injurious to human beings or other living creatures or plants or property or environment.”
Noise Pollution has been inserted as pollution in the Act in the year 1987.

Under Section 3 of the Act, the Central Board for the Prevention and Control of Water
Pollution exercise the powers and perform the functions of the Central Board for the
Prevention and Control of Air Pollution. Under Section 4 of the Act, State Government has
constituted for that State a State Board for the Prevention and Control of Water Pollution who
exercise the powers and perform the functions of the State Board for the Prevention and
Control of Air Pollution. These boards advise the Central Government on any matter
concerning the improvement of the quality of air and the prevention, control or abatement of
air pollution and also plan and cause to be executed a nation-wide programme for the
prevention, control or abatement of air pollution. The State Government may, after
consultation with the State Board, by notification in the Official Gazette declare in such
manner as may be prescribed, any area or areas within the State as air pollution control area
5
Ins. by Act 47 of 1987, section 2 (w.e.f. 1-4-1988)
9
or areas for the purposes of this Act. With a view to ensuring that the standards for emission
of air pollutants from automobiles laid down by the State Board tinder clause (g) of sub-
section (1) of section 17 are complied with, the State Government shall, in consultation with
the State Board, give such instructions as may be deemed necessary to the concerned
authority in charge of registration of motor vehicles under the Motor Vehicles Act, 1939 (Act
4 of 1939). A State Board or any officer empowered by it in this behalf shall have power to
take, for the purpose of analysis, samples of air or emission from any chimney, flue or duct or
any other outlet in such manner as may be prescribed.

The Environment (Protection) Act 1986

This Act extends to the whole of India. It came into force on November 19, 1986. Under
Chapter-I, some definitions in relation to environment has been given such as:

“Environment” includes water, air and land and the inter-relationship which exists among and
between water, air and land, and human beings, other living creatures, plants, micro-organism
and property.

“Environmental Pollution” means the presence in the environment of any environmental

pollutant.

“Hazardous Substance” means any substance or preparation which, by reason of its chemical
or physico-chemical properties or handling, is liable to cause harm to human beings, other
living creatures, plants, micro-organism property or the environment.

Chapter-II describes the general powers of the Central Government to take all such measures
as it deems necessary or expedient for the purpose of protecting and improving the quality of
the environment and preventing, controlling and abating environmental pollution,
appointment of officers and their powers and functions, frame rules to regulate environmental
pollution.

Chapter-III deals with the preventive methods, Control and abetment of environmental
pollution such as person authorized by Government has power of entry and inspection, Power
to take sample and procedure to be followed in connection therewith, establishment of one or
more environmental laboratories, appoint Government analysts etc.

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It also provides provision in relation to penalizing the offenders (Section 15, 16, 17). Section
17 specifies that Head of the department/ in-charge of small unit may be liable for
punishment if the owner /occupier produce enough evidence of innocence. The CPCB or state
boards have power to close or cancel or deny the authorization to run the
factory/institution/hospital whichever is causing pollution.

The Environment (Protection) Act 1986 regarded as an Umbrella Act seems superfluous over
the Air Act and Water Act due to overlapping areas of jurisdiction. For instance, Section 24(2)
of the new Act has made a provision that if the offender is punishable under the other Acts
like Water Act or Air Act also, then he may be considered under their provisions.
Interestingly, the penalty under the older two Acts is much lesser than the new Act. So the
offender easily gets away with a lighter punishment. Also no suit, prosecution or other legal
proceedings shall lie against govt. officer who has exercise power in good faith in pursuance
of this Act (Sec 18). The Act has not included the “right to information” for the citizens
restricting the participation of general public. The power and authority has been given to
Central Government with little delegation of power to State Government. Under Section 19, a
person cannot directly file a petition in the court on a question of environment and has to give
a notice of minimum 60 days to the Central Government which certainly delays the remedial
action.

Other important laws concerning environment

(i) Section 268 to 290 of Indian Penal Code deals with public nuisances. Public
nuisance means pollution of air, water, blasting, excessive smoke, filth and other
polluting activities.
(ii) Section 133 and 143 of Code of Criminal Procedure Code and Section 91 of Code
of Civil Procedure envisages that a person may approach a Magistrate and District
Judge respectively by filing a complaint or petition about the public nuisance.
(iii) Under Law of Torts, special damage can be claimed from nuisance maker/violator
of environment.
(iv) Air (Prevention And Control Of Pollution) Rules, 1982
(v) The Bhopal Gas Leak Disaster (Processing Of Claims) Act, 1985
(vi) The National Environment Appellate Authority Act, 1997
(vii) The National Environment Tribunal Act 1995
(viii) The Water (Prevention And Control Of Pollution) Cess Act, 1977

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 (ix) The Wild Birds And Animals Protection Act, 1912
(x) The Wild Life (Protection) Amendment Act, 2002
(xi) The Wild Life (Protection) Amendment Act, 2006
(xii) Water (Prevention And Control Of Pollution) Rules, 1975
(xiii) Wild Life (Protection) Act

There are a number of important environmental laws in the form of Acts for safeguarding or
environment. It is, therefore, each one of us and all of us have a bounden duty to protect our
environment for the peaceful survival of the man kind as well as flora and fauna. Awareness
about environment needs to be created through formal and informal education such as
research as well as extension work among all sections of the society right from the childhood
stage. It is aptly said that, “If you want to act green, first think green.”

Judicial Activism

The Indian judiciary in the recent period has been continuously found engaged in creating the
environmental jurisprudence full of values for the preservation and conservation of total
environment. Fortunately, in the last more than one decade, the trend has changed and the
judicial policing are matched by new activists’ stance and positive role specially after the
Bhopal Gas leak tragedy. This changed attitude and concern of the judiciary for protecting
environment has ensured a new kind of environmental justice and morality in the provisions
of the constitution and the declaration of the judiciary declaring the environment as a basic
fundamental right or human right.

The Supreme Court, in Indian council for Enviro-legal action v. Union of India 6 held that both
development and environment must go hand in hand. In other words, there should not be
development at the cost of environment and vice-versa but there should be development
while ensuring the protection of environment.

The Court in Goa Foundation v. Diksha Holding Pvt. Ltd 7 ruled that “No activity which
would ultimately lead to unscientific and unsustainable development and ecological
destruction should at all be allowed and the courts must scrupulously try to protect the
ecology and environment.”

6
(1996) 3 SCC 212
7
Decided by Supreme Court on 22-02-2005
12
The Vellore Citizen’s Welfare Forum case8 refers to the sustainable development as
“development, which meets the needs of the present without compromising the ability of the
future generation to meet their own needs.” In this case, the principle of intergenerational
equity principle was also referred. The doctrine of Precautionary Principle and Polluter Pays
Principle was also ruled out by the Apex court.

In Attakoya Thangal v. Union of India9 justice Sankaran Nair observed that the right to sweet
water and right to free air are attributes of the right to life for, these are the basic elements
which sustain life style.

In Subhash Kumar v. State of Bihar 10 the apex court held that “right to live is a fundamental
right under Article 21 of the constitution and it includes the right of enjoyment of pollution
free Water and air for full enjoyment of life. If anything endangers or impairs that quality of
life in derogation of laws, a citizen has a right to have recourse to Article 32 of the
constitution for removing the pollution of water or air which may be detrimental to the
Quality of life.”

In Narmada Bacho Andolan v. Union of India11 the Supreme Court held that right to water is
a fundamental right under Article 21 of the constitution. The court further observed that water
is the basic need for the survival of human beings and is part of the right to life and human
rights as ensured in Article 21 of the constitutions, and can be served only by providing
sources of water where there is none.

In P.R. Subhas Chandran v. Government of A.P. 12 the A.P. High court held that “under the
constitution, the role of the State to provide every citizen with adequate clean drinking water
and to protect water from getting polluted is not only a fundamental directive principle in the
governance of the state but is also a penumbral right under Article 21 of the constitution of
India.” In this case the High Court issued certain directions to the government of A.P for
solving the fluorosis Problems in several villages of Nalgonda district.

In M.C.Mehta v. Union of India13 Supreme Court issued directions for unconditional closure
of tanneries, relocation, and payment of compensation by them for reversing the damage.
This case was based on Polluters Pay Principle. In this case Calcutta tanneries discharging

8
(1996) 3 SCC 212
9
(1990) KLT 580
10
(1991) AIR SC 420
11
(2000) 9 SCC 571
12
(2001) (5) ALD 771 (DB)
13
(1997) 2 SCC 411
13
untreated poisonous effluents into the river of Ganges. Accordingly Green Bench of Calcutta
shall also further monitor the case.

In M.C.Mehta v. Union of India14 Industries situated near the Tajmahal Trapizium Zone
(TTZ) are directed to use natural gas instead of coak or coal as the use of the same causes
serious impact on the Tajmahal and people living in the area. Otherwise industries were
directed to stop functioning and relocate to other area. This is very famous case relating to
preservation of Tajmahal at Agra.

In M.C.Mehta v. Union of India15 Supreme Court held that mining activity in the vicinity of
tourist resorts of BadKal Lake and Surajkund (Haryana) are bound to cause several impacts
on the ecology and directed that mining activity should be stopped within 3 km of the tourist
resort.

This approach has led the Supreme Court to derive, adopt and apply a range of principles to
guide the development of environmental jurisprudence. The judiciary has played a
commendable role in ecology and environmental preservation and is also taking care of the
need to have development under Articles 21, 48-A and 51A (g) of the Constitution. The
Courts during these years have come across with very complex eco problems and have also
been confronted with the problem as to how to maintain non responsive and unaccountable
administration and management accountability to those affected by unchecked and unbridled
developmental mania. The basic idea of the protection of environment is to envisage a fine
balance of co-existence between man and nature and between living and non-living. The
initiative taken by the judiciary has introduced transparency on the issue of clearance of
projects and environmental impact assessment. It is in this context that the courts have very
rightly emphasized the principle of harmony and balance between the environment and its
development. The Supreme Court decisions in clear terms indicated that the Central
Governments and State Governments usually intend to violate the environmental standards
while granting clearance of power projects and Industries etc. The Courts admitting that there
can be no development without adverse effect of environment have also stated that a balance
has to be struck between two competing interests, proper utility projects could not be
abandoned nor the environment can be allowed to be destroyed. In nutshell, the judicial
policing in India in relation to pollution matters and unsustainable development has been of

14
(1997) 2 SCC 353
15
(1996) 8 SCC 462
14
much significant value as the principles initiated are a right step not only protecting the
environment of the people, but also from all the people.

Solution to the Problem

Effective legal control of Environment pollution can be meaningful only if common people
are educated about environment and the laws. Neither law nor judiciary can do anything
unless a well mobilized public opinion is created against environmental pollution. Steps must
be taken for strict observation of safety standards and procedures so that the risk is reduced to
a minimum level if not zero level. In the interest of speedy and effective remedial justice
separate Environmental Court or tribunal at National, State and district level may be
established. Towards that direction Central Government has already formulated a Bill. Every
State and district headquarter should have Environmental Awareness and Environmental
Education Centre. Wherever hazardous industries are situated, in such areas every care must
be taken to see that larger human habitation does not grow around them. Like Civil Procedure
Code and Criminal Procedure Code, an Environmental Procedure Code with simplified
procedures may be legislated immediately for the effective and smooth functioning of various
pollution Boards and the other machinery for implementing environmental law effectively.
Specially modulated seminar, workshops, orientation and conferences should be organised at
short interval in which the people should be made aware of harm to the society and mankind
through the pollution of environment. Environmental education must be introduced as a
compulsory subject to be taught in all educational institutions for all classes. Media can also
play an important role by creating awareness on environmental issues through broadcasting
and publishing news, views, stories and messages amongst the viewers, readers and audience
of all age groups. Non-Governmental organizations (NGOs) can also palay an active,
effective and viable link between the government and the citizens. It can raise some local
environmental issues and at the same time can help the government by advising it. They can
act both as ‘action group’ as well as ‘pressure group’.

Epilogue

Environment is deteriorating at a fast pace despite the best efforts and initiatives of
Government. The root cause of this problem is the slack performance of its enforcement
agencies. In our country the politicians and the bureaucracy are in consonance with each
other and acts for the interests of each other when it comes to development plans, schemes
and projects. The interests of the public are thrown to the winds. And why listen to the
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voiceless. Besides, it is widely perceived that the effectiveness of some agencies is curtailed
by institutional graft. The industry may sometimes threaten and operate indirect transfers
through political masters who have control over the Board authorities, through monetary
contribution to political campaigns and may get set the standards according to their
convenience. It may not influence the Judicial Officers directly but some unscrupulous parties
may buy the witnesses and submit them in courts to prove the wrong things to be the right
things in such a situation, Judicial Officer has no option but to deliver the order based upon
the wrong witness. Also litigation in India is slow, uncertain and costly. Even if the Board
prevails in court, it cannot be certain that the Court will provide an adequate remedy given
the considerations about the economic losses to the owners, workers, and business taxes paid
by the Industry.

In the end, I would like to suggest that if we want to save our beautiful planet earth, we have
to educate our people particularly in the field of Environmental Studies and aware them of
ecological and environmental issues. There is a famous Chinese proverb, “If you are
planning for a year, sow rice; if you are planning for a decade, plant trees; if you are
planning for a lifetime, educate people.”

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