FAQ's

Environmental Law

Q.1. Article 14 of Constitution of India is considered as striking at root of arbitrariness, isn't developmental activities without proper attention to environment also arbitrary?

Ans. Administrative authorities are required to maintain a balance between the developmental activities and protection of the environment, and they are required to balance between the two through a reasoned decision. Absence of the same would be arbitrary and therefore liable for interference under Art.14 from the judiciary.

Few examples where Hon'ble Supreme Court has interfered:

• Allotment of land for construction activities which result in total annihilation of open space in cities quashed;


• In Bangalore Medical Trust (1991) case, it was held that there is a requirement to maintain a balance between the construction activity and public parks (lungs of the city), and therefore before sanctioning the construction one needs to provide for protection of public parks.


• In DD Vyas (1993) Allahadbad High Court directed the Ghaziabad Developmental Authority to develop a public park.


• In S Jagannath observed that the sea coast and sea-beaches are gift of nature and adequate measures ought to be taken protecting the same and accordingly prohibited shrimp prawn farming and other polluting activities which were causing damage to the mangrove system;


• In Sushila Saw Mills (1995) held that closure of saw mills within prohibited area of reserve forest or protected forest was not considered as violative of Art.14 & 19(1)(g) or 301, and such closure validated because of the public interest involved;


• In Indian Handicrafts Emporium (2003) held that for protection of wild life, upheld the decision of the government to impose complete ban on trade of ivory.


• In Narbada Bachao Andolan (2000) it has been held that when certain land is acquired for developmental purposes, then such adversely affected people are entitled for alternate land. Further reiterated that expansion of cities, requirements of products, generation of electricity all require space and resources; however each of the said activities are required to be balanced with ecological balance.

Q.2. Article 19 of Constitution is the basis of right to information, how can it be used for addressing environmental concerns?

Ans. It is settled law through the decisions of Hon'ble Supreme Court in Raj Narain (1975), SP Gupta (1981) and finally in Onkar Lal Bajaj (2003) that right to information flows from freedom of speech and expression - democracy - informed electorate - continued participation of people.

Environmental law - information about government's development plans - dams, hazardous industries, nuclear power stations - etc that directly affect the lives of those living in the surrounding areas must be widely publicised. Concept of Jan Sunwai has also evolved from this.

Q.3. How has the Supreme Court expanded Art.21 to address environmental concerns?

Ans. Following are few of the examples of interference by Hon'ble Supreme Court in matters concerning environment:

• In MC Mehta (1987) it has been enunciated that the State has right to recover damages from the person who causes harm to the environment to cover the costs necessary corrective measures;


• Industries have no right to throw affluent in the river streams without cleansing them through pollution control system: MC Mehta (1992). Further held, that though environmental changes are inevitable consequence of developmental activities, however environmental cannot be allowed to be damaged by polluting air, water & land to such an extent that it becomes a hazard for residents of said locality;


• In Kamal Nath's (2000) case it was held that the causing ecological imbalance would be hazardous to health; also propounded the Polluter Pays Principle in Indian environmental jurisprudence.


• In MC Mehta (2003) developmental of public parks was considered from another point of view, and it was held that the right to recreational places like public parks is essential ingredient of this provision, i.e., right to live in dignified manner.


• In re Noise Pollution (2005) held that no person has any right to create noise pollution beyond the permissible limits through the usage of loudspeakers, car horns, etc.


• In number of judgements it has been held by Hon'ble Supreme Court that no person or citizen or State has any absolute right to trade in injurious or hazardous substances. Further held, that the administrative authorities shall ensure that no such trade activity takes place in close vicinity of the habitation.

Problem areas:

• State of Madhya Pradesh prohibited collection of tendu patta from outskirts of reserve forest as it entails dangers to the forest. However, such an action also adversely affected livelihood of thousands of persons. Court directed the executive to frame the policy to balance between the competing interests (Pradeep Kishan, 1996);


• In TN Godavarman Thirumulpad (2006) held that there is a requirement of inter-generational equity in the exploitation of forests and their resources.


• While directing the polluting/hazardous industries to be shifted outside the city limits, Supreme Court has time & again issued directions for rehabilitation of the workers who were working in the said industries;

Q.4. Are there any specific statutes addressing the concerns of environmental pollution? What are the important provisions of each of them?

Ans. ENVIRONMENT (PROTECTION) ACT, 1986

Object: Prevention, control and abatement of environmental pollution, laying down standards for quality of environment, laying down standards for emission of affluent/pollutants, restrictions of areas of location of industry, laying down procedures & safeguards for prevention of accidents, inspection of plants & industries, establishment of environmental laboratories, preparations of manuals, guides and codes for prevention of environmental pollution.

Prohibitions: All factories shall abide by the aforesaid restrictions and directions, furnish information to the concerned authorities, permit entry & inspection by the officials.

Authorities: Central and State Pollution Control Boards;

Jabalpur has office of State Pollution Control Board at Vijay Nagar.

Rules:

• Chemical Accidents (Emergency Planning, Preparedness and Response) Rules, 1996


• Crisis alert system


• Central/State/Local Crisis Group


• Hazardous Wastes (Management and Handling) Rules, 1989


• Permission & authorising handling of hazardous wastes;


• Packaging, labelling & transport of hazardous wastes;


• Categories of hazardous wastes.

Deepak Nitrite Limited (2004) was a PIL filed before HC of Gujarat alleging that the industries located in the Gujarat Industrial Development Corporation Estate are discharging effluents in water, which exceeds the standards laid down by the Gujarat PCB. Held, HC is empowered to impose damages proportionate to the damage caused and irrespective of the size of the industry.

In MC Mehta (2004) held that though it was not permissible to impose a complete ban on mining in the forest land due to requirement of sustainable development, however it was not permissible to have such mining activity on land which has been afforested with great efforts & foreign funds u/s.3 of Environment Act.

Q.5. There are specific statutes dealing with air, water & forests protection. Please tell the important provisions of each of them.

Ans. WATER (PREVENTION & CONTROL OF POLLUTION) ACT, 1974

Object: For prevention & control of water pollution and maintaining or restoring of wholesomeness of water.

Prohibitions: Every individual shall abide by the aforesaid restrictions and directions, furnish information to the concerned authorities, permit entry & inspection by the officials. Further, water streams cannot be used for discharge of industrial waste/affluent.

Authorities: Central/State Board, or Joint Boards (for two or more states). Primarily deal with affluent being discharged in water bodies, and advice the government with expertise information for prevention of water pollution. Appeals against the decisions of the Board are referred to the governments concerned.

Punishments: One year RI and/or fine may be imposed by the JMFC/Magistrate after prosecution is launched by the Pollution Control Board/officials. In case of offences by companies/government departments, person at the helm of affairs is responsible.

Ans. AIR (PREVENTION & CONTROL OF POLLUTION) ACT, 1981

Object: For prevention, control & abatement of air pollution and providing for establishment of Boards.

Prohibitions: Every individual shall abide by the aforesaid restrictions and directions, furnish information to the concerned authorities, permit entry & inspection by the officials. Further, prohibitions may be issued as regards burning of fuels/others which cause such pollution. Further, sanction is required before one could start operation of industrial plants in the air pollution control areas. Prior to such initiation, such units may be directed to install appropriate equipments to reduce discharge of pollutants in air.

Authorities:Central/State Board, or Joint Boards (for two or more states). Primarily deal with affluent being discharged in air thereby reducing its quality, and advice the government with expertise information for prevention of water pollution. Appeals against the decisions of the Board are referred to the governments concerned.

Punishments: Three months RI and/or fine may be imposed by the JMFC/Magistrate after prosecution is launched by the Pollution Control Board/officials. In case of offences by companies/government departments, person at the helm of affairs is responsible.