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Report No. 186

The Supreme Court observed:

Environmentalists' conception of the ecological balance in nature is based on the fundamental concept of nature as 'a series of complex biotic communities of which a man is an inter-dependent part' and that it should not be given to a part to trespass and diminish the whole. The largest single factor in the depletion of the wealth of animal life in nature has been the 'civilized man' operating directly through excessive commercial hunting or, more disastrously, indirectly through invading or destroying natural habitats."

In 1987, the Court laid down principles of strict liability in the matter of injury on account of use of hazardous substances. Under the rule in Rylands vs. Fletcher (1868) LR 3 HL 330, absolute liability for negligence could be imposed only for non-natural use of land and for 'foreseeable damage. However, such exceptions were held by the Court as no longer available in the case of injury on account of use of hazardous substances.

Hazardous industries which produced gases injuring the health of the community took a beating in M.C. Mehta vs. Union of India AIR 1987 SC 1086 (the Oleum gas leak case) where the rule in Rylands vs. Fletcher was modified, holding that the 'enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of persons working in the factory and residing in the surrounding areas, owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken the enterprise must be absolutely liable to compensate for such harm and it should be no 30answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.

The larger and more prosperous the enterprise, greater must be the amount of compensation payable for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise.

Ganga river pollution by tanneries was supposed to be stopped in M.C. Mehta vs. Union of India: AIR 1988 SC 1037. Adverting to Article 48A and 51A(g) the Supreme Court observed:

it is necessary to state a few words about the importance of and need for protecting our environment. Article 48-A of the Constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Article 51-A of the Constitution imposes as one of the fundamental duties on every citizen, the duty to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures."

The proclamation adopted by the United Nations Conference on the Human Environment which took place at Stockholm from 5th to 16th of June, 1972 was set out in the judgment. After summarizing the recommendations pertaining to the need for the State to stop exploitation of natural resources, the Supreme Court pointed out that Parliament had thereafter significantly passed the Water (Prevention and Control of Pollution) Act, 1974 and the Environment (Protection) Act, 1986 for preventing environmental pollution.

Declaring that the "right to life" referred to in Article 21 of the Constitution included the right to free water and air which is not polluted, the Supreme Court stated in Subhash Kumar vs. State of Bihar AIR 1991 SC 420 that applications in the nature of a public interest litigation under Article 32 would be maintainable by persons or groups genuinely interested. But if the applicant has a motive of personal gain or personal vendetta, such applications must be dismissed.

While restraining 400 licensees who had mining licences granted in Rajasthan to mine lime and dolmite stones in the 'Sariska Tiger Park', the Supreme Court, in Tarun Bharat Sangh, Alwar vs. Union of India AIR 1992 SC 514 , observed that this kind of litigation should not be treated as the usual adversarial litigation. Petitioners were acting in aid of a purpose, high on the national agenda. Petitioners' concern for the environment, ecology and the wild life should be shared by the Government.

Holding that the Government had no power to sanction lease of the land vested in the Municipality for being used as 'open space for public use', the Supreme Court in Virendra Gaur vs. State of Haryana 1995(2) SCC 577 observed, after referring to the Stockholm Declaration of 1972 and Principle 1 laid down in that Conference and after referring to Article 48-A, Article 47 and Article 51A(g), and Article 21, as follows:

The word 'environment' is of broad spectrum which brings within its ambit, "hygienic atmosphere and ecological balance". It is, therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. The State, in particular has 32duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right.

Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental, ecological, air, water, pollution etc. should be regarded as amounting to violation of Article 21. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment.

Environmental protection, therefore, has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment. Therefore, there is a constitutional imperative on the State Government and the municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment."

The case in Indian Council for Enviro-Legal Action vs. Union of India 1996(3) SCC 212 is again one of the landmark judgments of the Court. The case concerned serious damage to mother Earth by certain industries producing toxic chemicals. It was found that the water in wells and streams turned dark and dirty rendering it unfit for human consumption 33or even for cattle and also for irrigation. The Court gave several directions including the closure of industries. The decision in the M.C. Mehta vs. Union of India 1987(1) SCC 395 (Oleum Gas Case) as to absolute liability in the case of pollution or damage to life by hazardous industries, was reaffirmed.

The view of one of the Judges (Ranganatha Misra CJ) in Union Carbide Corpn. vs. Union of India 1991(4) SCC 584, that the principle of absolute liability laid down in Oleum Gas Case was obiter was held to be wrong. A Committee of experts appointed by the Supreme Court concluded that there was direct correlation between the sludge from the industries, contamination in the wells and streams. Objections to the expertise of the members of the Committee for arriving at the above conclusion, were rejected by the Court.

The Court referred to Article 48A and Article 51A(g) of the Constitution of India and to the Statement of Objects and Reasons appended to the Bill which later became the Water (Prevention and Control of Pollution) Act. 1974, to the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 and to its preamble and finally to the Hazardous Wastes (Management and Handling) Rules, 1989. The Court then referred to the 'Polluter Pays' principle.

It said that sections 3 and 5 of the Environment (Protection) Act, 1986 enabled the Central Government to provide remedial measures in this behalf. The Court gave a number of directives. Item 6 of the directions given by the Court (see p 252) refers to the need for establishment of environmental courts 'manned by legally trained persons/judicial officers'.

Foundation for applying the Precautionary Principle, the Polluter Pays Principle and the new Burden of Proof was laid down by the Supreme Court in Vellore Citizens' Welfare Forum vs. Union of India 1996(5) SCC 34647 which dealt with pollution from tanneries. The Court also referred to the concept of 'Sustainable Development' and to the Stockholm Declaration of 1972 and to the Rio Conference of 1992. After referring to Articles 47, 48A and 51A(g) and Article 21, and to the various statutes from 1974 to 1986, the Court observed:

The traditional concept that development and ecology are opposed to each other is no longer acceptable. 'Sustainable Development' is the answer. In the international sphere, 'Sustainable Development' as a concept came to be known for the first time in the Stockholm Declaration of 1972. Thereafter, in 1987 the concept was given a definite shape by the World Commission on Environment and Development in its report called 'Our Common Future'.

The Commission was chaired by the then Prime Minister of Norway, Ms. G.H. Brundtland and as such the report is popularly known as 'Brundtland Report'. In 1991, the World Conservation Union, United Nations Environment Programme and Worldwide Fund for Nature, jointly came out with a document called "Caring for the Earth" which is a strategy for sustainable living. Finally, came the Earth Summit held in June 1992 at Rio which saw the largest gathering of world leaders ever in the history- deliberating and chalking out a blueprint for the survival of the planet.

Among the tangible achievements of the Rio Conference was the signing of two Conventions, one on biological diversity and another on climate change. These Conventions were signed by 153 nations. The delegates also approved by consensus, three non-binding documents, namely, a Statement on Forestry Principles, a declaration of principles on 35environment policy and development initiatives and Agenda 21, a programme of action into the next century in areas like poverty, population and pollution."



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