INTRODUCTION
The judiciary has viewed the human rights on one hand and the environmental
protection on the other hand as the two faces of the same coin. The judiciary
as a guardian of fundamental right has protected the right of each individual
in relation to environment under Art. 21 of the constitution.
Majority of the cases covered in the case book are public interest litigations
relating to air pollution, water pollution, cess, hazardous waste, mining,
sound pollution and so on.
Though the Water (prevention and control of pollution)Act, 1974 was passed
for the prevention and control of water pollution and the maintaining
or restoring of wholesomeness of water, and the Air (prevention and control
of pollution) Act, 1981 was passed for the prevention, control and abatement
of air pollution, the judiciary has given a very important and valuable
directions to the appropriate authorities for the purpose of preservation
and protection of environment.
An attempt has been made in this section to analyse how some of the judgement
have contributed to the enrichment of environmental jurisprudence. This
section analyses the contribution of Judges to the jurisprudence of Environmental
Law and to the development of international environmental law. The analysis
seeks not only to deal with the specific content of each judgement but
also to draw a broader picture of views of the Judges towards protection
and development of environment and related laws.
Municipal
Council Ratlam v Vardhichand and ors. AIR 1980 SC 1622
LK
Koolwal v State of Rajasthan and ors AIR 1988 Raj.2
Tehri
Bandh Virodhi Sangharsh Samiti and State of UP and ors. 1990 (2) SCALE
1003
The
residents of a locality within the limits of Ratlam Municipality, tormented
by stench and stink by open drains and public excretions by nearby slum
dwellers moved the Sub-Divisional Magistrate under Sec. 133 CrPC to require
the Municipality to construct drain pipes with the flow of water to wash
the filth and stop the stench towards the members of the Public. The Municipality
pleaded paucity of funds as the chief cause of disability to carry out
its duties.
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
issue was whether a Court can compel a statutory body to carry out its
duties to the community by constructing sanitation facilities?
The
Supreme Court through J. Krishna Iyer, upheld the order of the High Court
and directed the Municipality to take immediate action within its statutory
powers to construct sufficient number of public latrines, provide water
supply and scavenging services, to construct drains, cesspools and to
provide basic amenities to he public.
The
Court also accepted the use of sec. 133 CrPC 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.
A
writ petition was filed by the petitioner asking the court to issue directions
to the state to perform its obligatory duties. The petitioner invoked
Fundamental Rights and the Directives Principles of State Policy and brought
to the fore the acute sanitation problem in Jaipur which, it claimed as
hazardous to the life of the citizens of Jaipur.
The
Court observed that maintenance of health, preservation of sanitation
and environment falls within the purview of Art. 21 of the Constitution
as it adversely affect the life of the citizen and it amounts to slow
poisoning and reducing the life of the citizen because o the hazards created
of not checked.
The
Court held that the Municipality had a statutory duty to remove the dirt,
filth etc from the city within a period of six months and clear the city
of Jaipur from the date of this judgment. A committee was constituted
to inspect the implementation of the judgment.
The
writ petition was filed praying directions restraining the Union of India,
State of UP and the Tehri Hydro Development Corporation from constructing
and implementing the Tehri Hydro Power project. The main contention against
the construction of the dam was on the basis that the plan for the Tehri
project had not considered the safety aspect of the dam and serious threat
existed due to this construction, as north India is prone to earthquakes.
The design of the dam, was on a site which was prone to seismic activity
hence posing grave danger to the people residing in that area..
Base
on the fact and circumstances of the case, the Court came to the conclusion
that the Union of India had considered the question of safety of the project
in various details more than once and that it had taken into account the
reports of experts on various aspects. In the circumstances, the court
held that it was not possible to hold that the Union of India had not
applied its mind or had not considered the relevant aspects of safety
of the dam. The Court lacked expertise in deciding such technical and
scientific details, but would always judge to the fact whether or not
the Government had taken all relevant consideration, while clearing the
project or not.
A
writ petition was filed in the Bombay High Court by a Society asking the
Court to compel the Railway Corporation to procure environmental clearance
from the Ministry of Environment and Forest under the EPA, 1986 for the
part of alignment passing through Goa. The petitioner claimed that the
proposed alignment is wholly destructive of the environment and the ecosystem
and violates Art. 21 of the Constitution amongst other things. The grievance
of the petitioners was that the proposed alignment was planned and undertaken
without an adequate Environment Impact Assessment and Environment Management
Plan. The petitioner also claimed that the Corporation had violated the
CRZ notification.
The
Court after review the argument and the facts presented before it, refused
to exercise its writ jurisdiction over a matter of national importance
and significance. The extent of damage is negligible and public project
of this kind will fulfill the long standing aspirations of the people
on the west coast. The project is an important development for the economic
and social structure of the western people.
A
writ petition was filed to protect the health of thousands of innocent
people living in Cuttack and adjacent areas who were suffering from pollution
from sewage being caused by the Municipal Committee Cuttack and the SCB
Medical College Hospital, Cuttack.
The
main contention of the petitioner was that the dumping of untreated waste
water of the hospital and some other parts of the city in the Taladanda
canal was creating health problems in the city. The State, on the other
hand contended that a central sewerage system had been installed in the
hospital and that there is no sewage flow into the taladanda canal as
alleged. Further, it was asserted that the State had not received any
information relating to either pollution or of epidemic of water borne
diseases caused by contamination of the canal. Also, the health department
shrugged off the responsibility for supply of drinking water and passed
the buck to the Municipality which refuted the contentions of carelessness
and callousness.
The
Court reprimanded the authorities and directed the government to immediately
act on the matter. Also, the court recommended setting up of a committee
to take steps to prevent and control water pollution and to maintain wholesomeness
of water meant for human consumption amongst other things. A responsible
Municipal Council is constituted for the precise purpose of preserving
public health. Provision of proper drainage system in working conditions
cannot be avoided by pleading financial inability.
Society
for Protection of Silent Valley v Union of India [unreported [UP Nos 2949
and 3025 of 1979 of Kerala High Court]
In
the late 1970s, the silent valley project stirred up a hornet's nest in
India's first major 'environment versus development' controversy. The
proposed project, now abandoned, was to dam the Kuntipuzha river in Kerala's
Palghat district. As it flows through the valley, the Kuntipuzha drops
857 meters, making the valley an attractive site for generation of electricity.
Environmentalists, on the other hand, asserted that as home to one of
the few remaining rain forest in the Western Ghats, the valley ought to
remain pristine. They further contended that with over 900 species of
flowering plants and ferns and several endangered species of animals and
birds, Silent Valley was on of the world's richest biological and genetic
heritages. He project was abandoned due to pressure exerted on Prime Minister
Indira Gandhi, within the government and from international groups and
governments.
A
writ petition was filed before the Kerala High Court seeking to prevent
the state government from constructing a hydroelectric project in Silent
valley. The petition stated that the necessary deforestation would affect
climatic condition in the state and would interfere with the balance of
nature. Dismissing the petition, the court held that consideration of
the scientific, technical and ecological concerns was the job of the government
and that it was not for the courts to evaluate these considerations again
as the evaluation had already been done by the government.
A
writ petition was filed under Art. 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 order,
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 themselves of their duties on the pretext of
financial and other limitations like inefficiency of staff etc.
A
land designated under the Urban planning scheme, for a public park was
leased by the state government for a nursing home. The Government justifying
its act, by stating that the locality did not have a nursing home and
it was in public interest that the said lease was given. The same lease
was challenged in this petition.
The
Court observed that Public park as a place reserved for beauty and recreation
was developed in 19th and 20th century and is associated
with growth of the concept of equality and recognition of importance of
common man. Earlier it was a prerogative of the aristocracy and the affluent
either as a result of royal grant or as a place reserved for private pleasure.
Free and healthy air in beautiful surroundings was privilege of few. But
now it is a 'gift from people to themselves'. Its importance has multiplied
with emphasis on environment and pollution. In modern planning and development
it occupies an important place in social ecology. A private nursing home
on the other hand is essentially a commercial venture, a profit oriented
industry. Service may be its motto, but earning is the objective. Its
utility may not be undermined but a park is a necessity not a mere amenity.
A private nursing home cannot be a substitute for a public park.
In
1984 the [Bangalore Development Authority Act of 1976] itself provided
for reservation of not less than 15 percent of the total area of the layout
in a development scheme for public park and playgrounds the sale and disposition
of which is prohibited under sec. 38-A of the said Act.
Further
the Court stated that absence of open space and public park, in present
day when urbanization is on increase, rural exodus is on large scale and
congested areas are coming up rapidly, may give rise to health hazard.
To say, therefore, that by conversion of a site reserved for low lying
park into a private nursing home social welfare was being promoted was
being oblivious of true character of the two and their utility.
This
illustrates the use of the writ process in securing government action
to improve the urban environment. It also shows the simplicity of the
writ procedure compared with the more cumbersome prosecution of a suit
to enforce common law rights.
The
petitioners in the present case, residents of Bhilwara District of Rajasthan,
complained of the lack of drainage facilities made available by the district
administration due to which drinking water, drain and storm water use
to mix and get collect in open chowks, leading to the growth of insect
and moss and possible threat of epidemics. The petitioner supported their
cause by submitting the letter of the district medical officer about his
view the said collection of water may lead to spreading of infectious
disease and is generating nuisance to he residents.
The
Rajasthan Municipalities Act, 1959 deal with the primary and secondary
functions of the Boards, and it shows that the primary duty of the Board
to keep the city clean, removing filth, rubbish or other noxious and offensive
matter and constructing drains, sewers, drainage works etc. As the Board
has not cared to take any action in the matter, the petitioners have a
filed a writ of Madamus praying for a direction to the Municipal Board
for removal and discharge of the filth and dirty water and the construction
of proper drainage or sewers for the discharge of such water.
The
Court allowed the writ petition by awarding suitable order and direction
to the Municipal Board to clean by the city and for maintain proper drainage
system.
Bichhri
is a small village in Udaipur District of Rajasthan. To its north is a
major industrial establishment, Hindustan Zinc ltd., a public sector concern
had established a chemical plant to produce Oleum. The real calamity occurred
when a sister concern, Silver chemicals commenced production of 'H' acid
in a plant located within the same complex. 'H' acid was meant for export
exclusively. Its manufacture gives rise to enormous quantities of highly
toxic effluents--in particular, iron based and gypsumbased sludge--which
if not properly treated, pose threat to Mother Earth. It poisons the earth,
the water and everything that comes in contact with it. The water in the
wells and streams has turned dark and dirty rendering it unfit for human
consumption. It has become unfit for cattle to drink and for irrigating
land/ the soil has become polluted rendering it unfit for cultivation,
the mainstay of the villagers. It spread disease, death and disaster in
the village.
The
villager rose in revolt leading to the imposition of sec. 144 CrPC by
the District Magistrate in the area and the closure of the Silver Chemicals
in Jan 1989. It is averred by the respondents that both the units, Sliver
Chemicals and Jyoti Chemicals have stopped manufacturing 'H' acid since
Jan. 1989 and are closed, yet the consequence of their action remain--the
sludge, the long-lasting damage to earth, to underground water, to human
being, to cattle and the village economy. It was with this contention
that this writ petition was addressed.
The
Court held that the Company was absolutely liable for the environmental
degradation caused by the production of 'H' acid. It was up to the company
to pay for the pollution and redo the environmental damage and wrong caused
by its industrial activity. Sec. 3 and 4 of the EPA, 1986 empowers the
government to recovery cost of the pollution and sue the same for redoing
the harm caused to the environment.
Background
to the case:
Narmada
is the fifth largest river in India and largest west flowing river of
the Indian Peninsila. Originating from the Maikala ranges at Amarkantak
in Madhya Pradesh, it flows westward over a length of 1312 kms before
draining into the Gulf of Cambay. The first 1077 km stretch is in Madhya
Pradesh and the next 35 km stretch of the river forms the boundary between
the State of Madhya Pradesh and Maharashtra. The next 30 kms forms the
boundary between Maharashtra and Gujarat and the last stretch of 161 kms
lies in Gujarat.
Way
back in 1946, the then government of the Central Provinces and Berar and
the then government of Bombay requested the Central Waterways, Irrigation
and Navigation Commission to take up investigation on the Narmada river
system for basin wise development of the river with flood control, irrigation,
power and extension of Navigation as the objectives in view. The Project
was inaugurated by the then Prime Minister Shri. Jawaharlal Nehru on 5th
April 1961. Thereafter due to certain difference of opinion between the
riparian States, the matter was referred to a tribunal in 1968 constituted
under the Inter-State Water Disputes Act, 1956. Based on the agreement
between the Chief Ministers of 4 States [M.P, Maharashtra, Rajasthan and
Gujarat] the tribunal declared is award on 16th August 1978.
In order to meet the financial obligation, consultations started in 1978
with the World Bank for obtaining a loan. In May 1985 the loan was sanctioned,
and in 1987 the Ministry of Environment and Forest accorded Environmental
Clearance subject to certain conditions.
Taking
the cause of the oustees, those displaced by the acquisition of land and
submergence of land to the building of the many dams across the river,
in April 1994 the NBA filed a writ petition praying that the respondent
should be restrained from proceeding with the construction of the dam.
The
Supreme Court observed that the Sardar Sarovar Project would make a positive
impact on the preservation of environment. The project has been long awaited
by the people of Gujarat to whom water will be available to the drought
prone and arid parts, this would help in effectively arresting ecological
degradation which was returning the make 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 is under stress and transfer of Narmada water to these
areas will lead to sustainable agriculture and spread of green cover.
There will also be improvement of fodder availability, which will reduce
pressure on bio-diversity and vegetation. The SSP by generating clean
eco-friendly hydropower will save the air pollution which would otherwise
take place by thermal general power of similar capacity.
The
Court observed that poverty of the biggest threat to environment and unless
people are provided with water and other development amenities, the environment
will be exploited to a larger extent.
Following
the above analysis the Court thought it unfit to interfere with the construction
of the dam, as its advantages over took its disadvantages. The construction
of the dam was allowed subject to certain conditions.
The
appellant, a minority institution was in the practice of using musical
instruments such as drum set, triple ganga, guitar etc. The respondent
welfare Association filed a Criminal O.P before the High Court of Madras
for a direction to the authorities [Superintendent of Police] to take
action on the basis of the letter issued by the Joint Chief Environment
Engineer of the TMPCB. In High Court it was contended by the Church that
the petition was filed with an oblique motive in order to prevent a religious
minority institution from pursuing its religious activities and the Court
cannot issue any directions to prevent the church from practicing its
religious beliefs. The High Court balanced the act by giving directions
to the religious minority institution to bring down the noise level by
keeping the speakers at a lower level. Aggrieved by the said order the
respondents appealed to the Supreme Court.
The
Supreme Court held that India is a country with many religious beliefs
and faith, numerous communities or sects of people reside in the same
area and locality. Each reside in a sense of harmony an d peace. The Constitution
has given religious institutions fundamental right to practice, profess
and propagate. But does right include the right to add noise pollution
on the ground of religion? Whether beating of drums or reciting of prayers
by use of microphones and loudspeakers so as to disturb the peace or tranquility
of neighborhood should be permitted?
The
Court held that 'undisputedly no religion prescribed that prayers should
be performed by disturbing the peace of other nor does it preach that
they should be through voice-amplifiers or beating of drums. In our view,
in a civilized society in the name of religion, activities which disturb
old, infirm persons, students or children having their sleep in the early
hours or during day time or other persons carrying on other activities
cannot be permitted..'.
The
Court while adjudicating the appeal observed that in the present case,
the contention with regard to the right under Art. 25 or Art. 26 of the
Constitution which are subject to 'public order, morality and health'
are not required to be dealt with in detail mainly because.. no religion
prescribes or preaches that prayers are required to be performed through
voice amplifiers or by beating of drums. In any case, if there is such
practice, it should not adversely affect the rights of others including
that of being not disturbed in their activities.
Beginning
December, 1996 the Supreme Court went one step ahead of the Maneka judgment
[as to the Environment law], by issuing sweeping directions to oversee
the enforcement of forest laws across the nation. Assisted by amicus curiae
the court froze all wood based industrial activity, reinforced the scope
of the embargo on forest exploitation, issued detailed directions for
the sustainable use of forests and created its own monitoring and implementation
machinery through regional and state level communities. The case has no
parallel, even by the expansive standards of India's pro-active judiciary.
As the court assumes the role of a super-administrator, regulating the
felling, use and movement of timber across the country in the hope of
preserving the nation's forest. The analysis is specially important in
its impact in the North east region, where the wood based industries contribute
substantially to the region's economy.
The
Court examined in detail all the aspect of the National Forest Policy,
the Forest Conservation Act, 1980, which was enacted with a view to check
further deforestation. The word 'forest' must be understood according
to its dictionary meaning. This covers all statutorily recognized forest,
whether designated as reserved protected or otherwise for the purpose
of sec. 2(i) of the Forest Conservation Act. The term 'forest land' occurring
in sec. 2, will not only include 'forest' as understood in the dictionary
sense, but also any area recorded as forest in the Government record irrespective
of the ownership. Directions were issued, among them the following are
the some of the important ones.
1.
All forest activities throughout the country, without the specific approval
of the Central Government must cease forthwith. Therefore running of saw
mills, plywood mills and mining are all non forest purposes and they cannot
carry on with the Central approval.
2.
The felling of all trees in all forest is to remain suspended except in
accordance with the working plan approved by the Central Government.
3.
Complete ban on the movement of cut trees and timber from any seven north
eastern states of the country either by rail, road or water ways. The
Indian railways and state governments were directed to take all measures
necessary to ensure strict compliance of this directions. Railways were
asked to shift immediate to concert tracks than to using wooden sleepers.
Defense establishments were also asked to find alternatives to consumption
of wood based products.
4.
A High power Committee was to be constituted to oversee the implementation
of the judgment and to guide the Court in making further orders, especially
in the North East. The Committee was directed to prepare an inventory
of timber and timber products lying in the forest, transport depots and
mills in the region. The HPC was empowered to permit the use or sale of
timber products if it considered appropriate through the State Forest
Corporation.
5.
Licenses given to all wood based industries shall stand suspended.
6.
An action plan shall be prepared by the Principal Chief Conservator of
Forest for intensive patrolling and other necessary protective measures
to be undertaken in identified vulnerable areas an d quarterly report
shall be submitted to the Central Government for approval.
On
the eve of his retirement, J. Kuldip Singh delivered the judgment in the
Taj Trapesium case, culminating a long and arduous battle fought by M.
C Mehta for over a decade. The case was first placed in 1984, wherein
the petitioner warned of damage to the Taj Mahal from air pollutants from
the Mathura refinery.
It
was alleged by the petitioner that the suplphur dioxide emitted by the
Mathura refinery and the industries when combined with Oxygen-with the
aid of moisture-in the atmosphere forms suplphuric acid which has a corroding
effect on the gleaming white marble of the Taj. Industrial/Refinery emissions,
brick-kilns, vehicular traffic and generator sets are primarily responsible
for polluting the ambient air around Taj Trapezium. The petition states
that the white marble has yellowed and blackened in places. It is inside
the Taj that the decay is more apparent. Yellow pallor pervades the entire
monument. In places the yellow hue is magnified by ugly brown and black
spots. Fungal deterioration is worst n the inner chamber where the original
graves of Shah-Jahan and Mumtaz mahal lie.
The
Court observed that the Taj, apart from being cultural heritage, is an
industry by itself, More than two million tourists visit the Taj every
year. It is a source of revenue for the country.
Various
orders were passed by the Court. The Court created a Taj Trapezium which
consisted of 10, 400 sq. Kms in the shape of a trapezium to regulates
activities in relation to air pollution.
Industries
were asked to shift to eco friendly fuel and use lessen the use of diesels
generators, and asked the State to improve power supply the city. Tanneries
operating from Agra were asked to shift from the Trapezium. The Pollution
Control Boards [State and Central] were asked to monitor any further deterioration
in the quality of air and report the same to the Court. Further the Court
asked he government to take steps to undo the wrong on the environment
and the white marbles at Taj and to take clean up operations.
This
case brought into force for the first time the non-implementation of the
CRZ notification. Though the notification was enacted, it was never brought
into force and the petitioner filed this writ for stoppage of intensive
and semi-intensive type of prawn farming in the ecologically fragile coastal
areas and for prohibiting use of wastelands and wetlands for prawn farming.
The petitioner also sought for the constitution of a National Coastal
Zone Management Authority to safeguard the marine and coastal areas. The
allegation of the petitioner was that the coastal states were allowing
big business houses to develop prawn farms on a large scale in the coastal
States in violation of the EPA, 1986 and various other provisions of law.
The
Court ordered NEERI to visit the coastal states of Andhra and Tamil Nadu
and give its report on the status of farms set up in the said areas. The
report submitted indicated that due to the impact of aquaculture, the
environment was adversely degraded. The impact was on surface water, contamination
of soil and ground water and destruction of mangrove vegetation.
The
Court order the following:
1.
no part of the agricultural land and salt farms could be converted into
aqua culture farms
2.
an authority shall be constituted by the Central Government under sec.
8 (3) of the EPA, 1986.
3.
the authority so constituted shall implement the precautionary principle
and polluter pays principle;
4.
no shrimp culture ponds should be constructed within the CRZ;
5.
all the infrastructure set up within the CRZ such as shrimp culture farms
should be demolished and removed;
6.
aquaculture industry functioning at present within one km of the Chilika
and Pulicat lakes must compensate the affected persons;
7.
all employees/workmen engaged in the shrimp culture industry for less
than one year should be retrenched and those employed for more than one
year paid compensation.
8.
aquaculture industry functioning outside the CRZ should obtain clearance
from the authority within a specified period failing which they must stop
their operations.
The
petitioner filed a public interest petition in terms of Art. 32 of the
Constitution, pleading infringement of the right to life guaranteed by
Art. 21 of the Constitution, arising from the pollution of the Bokaro
river by the sludge/slurry discharged from the washeries of the Tata Iron
and Steel Company Ltd. [TISCO]. It was alleged that as a result of the
release of effluent into the river, its water is not fit for drinking
purposes or for irrigation.
The
respondents on their part established that TISCO and the State Pollution
Control Board had complied with statutory requirement and that the petitioner
was motivated by self interest.
The
Court observed that Art. 32 is designed for the enforcement of fundamental
rights. The right to life enshrined in Art. 21 includes the right to enjoyment
of pollution free water and air for the full enjoyment of life. If anything
endangers or impairs the quality of life, an affected person or a person
genuinely interested in the protection of society would have recourse
to Art. 32. Public interest litigation envisages legal proceedings for
vindication or enforcement of fundamental rights of a group of persons
or community, which are not able to enforce their fundamental rights on
account of their capacity, poverty or ignorance of law. However public
interest litigation cannot be resorted to satisfy personal grudge or enmity.
Personal interest cannot be enforced through the process of court under
Art. 32 in the grab of public interest litigation. Since the instant case
was motivated by self-interest, it was accordingly dismissed with a warning
to all such people who would approach the court for fulfilling personal
goals.
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