Development of Environmental Governance in India

Environmental Law emerged as an indispensable branch of law in terms of its impact on other
fields as well besides environment such as trade, manufacture and all other aspects concerning
human life. Environmental law emerged as a core law subject with increasing scope as we
advance. The subject deals with conservation, pollution, energy and land use issues as part of it
surpassing itself from being a mere natural resource law though natural resource issues remain to
be the crux of the subject. The major question as to the purpose of environmental law and the
interest it ought to protect has been subject to controversy leading to divergent views. Should
environment be protected to ensure pristine state of nature or should the development and
environment protection be allowed to happen simultaneously have been answered in practical
terms more loudly than anything else. Hence the different schools hold no better today and it can
be conveniently put forth that the goal and process of environmental law has been directed
towards sustainable development.
The United Nations Conference on Human Environment held in 1972 at Stockholm had been
crucial in terms of creating consciousness among nation states to evolve environmental
governance strategies for environmental protection. The preparatory process for the conference
involved inviting nation states to prepare status of environment report. Indian government
constituted a committee headed by Pitambar pant to prepare report on the state of environment.
The committee submitted three reports in the year 1971, they are Some aspects of environment
degradation and its control in India, Some aspects of problems of human settlement in India
and Some aspects of rational management of natural resources. These reports highlighted the
frightening state of environment which necessitated an imminent action for environment
protection. As a result of the above reports and heeding to the need in 1972 Government of India
constituted National Committee on Environment Planning and Coordination (NCEPC) in the
Department of Science and Technology. This committee was to work as an advisory committee
and consisted of non official members as well. Due to the enormous work that this committee has
to undertake and following the recommendations of N.D. Tiwari committee this committee was
replaced by National Committee on Environment and Planning (NCEP). This committee was
assigned specific tasks besides asked to prepare annual state of environment report. There were

lot of factors which influenced the establishment and functioning of this committees and
subsequently Department of Environment, they are the Silent valley movement, acid rain near
Tajmahal etc. Finally the government of India created a state rank Ministry of Environment and
Forests in 1985 which was soon upgraded to the cabinet rank.
Initially in Stockholm conference the Indian Government took the stand that India cannot afford
to give priority to environment when there are burning issues such as poverty, hunger and
illiteracy plaguing the country, but later it changed the stand and realized that poor are not the
perpetrators of environment degradation rather they are victims of environment degradation.
Besides the creation of departments and finally Ministry the Government of India has enacted
various legislations to protect and preserve the environment after the United Nations Conference
on Human Environment held at Stockholm in 1972. It is not true to say that environment
legislations started being enacted after the Stockholm conference there were many enactments
which touched upon environment issues even prior to 1972. However the marked difference is
that the earlier legislations were enacted for some purpose which also dealt with environment
issues however after 1972 legislations were enacted with specific purpose of protecting and
preserving the environment. Hence these legislations are referred as environment legislations.
Besides this as a part of commitment to Stockholm declaration and to ensure better protection of
environment Government of India amended the Indian Constitution and certain provisions were
inserted to take ahead the spirit. The Supreme Court of India rightly took the mandate further
ahead.
The Indian Supreme Courts vision to mitigate the environmental damage and set the path for
restoration and development of eco friendly way of life has been the most notable contribution of
the court particularly in the last decade of the 20 th century. The court evolved principles drawing
from common law to international conventions and soft law instruments such as Rio and
Stockholm declaration where ever necessary. The law declared by the Supreme Court has guided
the lower courts and driven the executive towards enforcement in an unprecedented way. The
role of certain socially conscious Judges especially Justice Kuldip Singh is such that the nation is
indebted to their vision and concern.

The Supreme Court asserted that right to environment is part of fundamental right to life this
could be done in view of the Constitutional provisions existing in fundamental duties and
directive principles in the following Articles. While Article 47 is an existing one 48A and 51A (g)
are inserted by the 42nd Constitutional Amendment in the year1976 after the Stockholm
conference (United Nations Conference on Human Environment). The Provisions of the Indian
Constitution dealing with environment are as follows:
Article 47: Duty of the State to raise the level of nutrition and the standard of living and to improve public healththe State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement
of public health as among its primary duties and in particular, the State shall endeavor to bring about prohibition of
the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
Article 48A: Protection and improvement of environment and safeguarding of forests and wild life- the State shall
endeavor to protect and improve the environment and to safeguard the forests and wild life of the country.
Article 51A (g): To protect and improve the natural environment including forests, lakes rivers and wild life, and to
have compassion for living creatures.

Supreme Court of India and Environmental Jurisprudence

Right to Environment as part of Right to life:
The first case where the Supreme Court explicitly held that Right to Environment is part of Right
to life under Article 21 of the constitution of India is Subhash Kumar V State of Bihar and others
(AIR 1991 SC 420). The petitioner contended that Tata Iron and Steel Company Limited are
discharging slurry/sludge from its washeries into Bokaro river there by polluting the river. The
coal is put to process to reduce ash content in the coal for industrial purpose after this the water
is made to settle in ponds to collect remaining coal (slurry/sludge) which is also in high demand
in view of its high quality. The management of washeries has constructed four ponds for the
purpose of collecting slurry and this process is under the scrutiny of pollution control board. The
contention that the water is polluting Bokaro river is base less in view of the fact the company
obtained permission from the board and has been following the directions given by the board and
in fact it was the petitioner who was collecting slurry all these days when water was flowing
throw his fields. He was also requesting company to supply additional slurry which the company
rejected. There is a criminal prosecution pending against the petitioner for trying to remove
slurry from the companys premises besides that petitioner also filed a civil case regarding this.
This clearly shows that he has self interest in this matter. The Supreme Court held that Public

interest litigation cannot be invoked by the person or body of persons to satisfy his or its personal
grudge and enmity. If such petitions under Article 32 are entertained it would amount to abuse of
process of the court. Article 32 is designed for enforcement of Fundamental Rights of a citizen
by the Apex court. It provides for an extraordinary procedure to safe guard the Fundamental
Rights of a Citizen. Right to life 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. A
petition under Article 32 for the prevention of pollution is maintainable at the instance of affected
persons or even by a group of social workers or journalists. But it must be in public interest.
Though Subhash Kumar case is the first case where the Supreme Court explicitly held that Right
to Environment is part of Right to life under Article 21 of the constitution of India the first case
where ecological balance and environmental issues are considered is the Rural Litigation and
Entitlement Kendra, Dehradun V State of Uttar Pradesh (AIR 1985 SC 6562). In this case the
voluntary organization i.e. Rural Litigation and Entitlement Kendra alleged that the disturbance
of ecology and pollution of air, water and environment in Deharadun region is due to the
quarrying activity, stone crushers and lime stone kilns operating in the region. The Supreme
Court constituted an expert committee to study the impact and submit a report earlier
Government of India also constituted an expert committee to study the impact. Based on the
committees recommendations the Court ordered certain quarries to be closed down while certain
of them were permitted to operate and certain of them would be permitted provided they rectify
the defects. The Court came to this conclusion based on scientific reasoning, permissions and
establishment of necessary pollution control equipment. This case is the first case in the country
where industrial units were asked to be closed for the impact on health and environment. The
Court also asked the government to provide employment to the people who lost employment due
to the closing of these units.
Doctrine of Public Trust
The introduction of Doctrine of Public trust into Indian legal domain is one amongst the major
developments in environmental jurisprudence. In the case of M.C.Mehta V Kamalnath ((1997) 1
SCC 388) the court declared that Public Trust Doctrine is part of law of the land. Kamalnath is

the former union minister of environment and forests. His family members are the owners of
Span Motels Private Limited. A news item appeared in the Indian Express stating that
Kamalnaths family own span motels and they have built substantially in forest land and also
encroached forest land which was later regularized. The court took serious note of this report.
The court after considering all the material and correspondence between the span motels and
administration came to the conclusion that span motels besides taking forest land on lease also
encroached the adjoining land and offered to surrender land in other place in lieu of the
encroached land. Government refused to this proposal and the correspondence continued until
kamalnath became the minister at which point of time the government agreed. Though it was
done in his office still malafide intention is obvious. Though the span motels contended that they
encroached the land to save the protect the land from future inundation and restoration of the lost
land due to frequent floods in the river beas. These motels are built on the banks of river beas at
kullumanali which is a famous tourist place. The span motels also used heavy earth movers and
bull dozers to change the course of the river and spill channel and also dredged the river to allow
the river to take more water during flow and also to protect the land. The court appointed an
expert committee to look into if this action was safe. The committee held that the construction
activity protected their lands and also villagers land from flooding but a future land slide cannot
be ruled out. The court held that public has a right to expect that running waters, air, forests etc.
belong to public at large and state is only a trustee of these and converting them to private
ownership would be breach of that trust.
Public trust doctrine is an old legal theory developed by Roman Empire. This doctrine found its
way into English common law but was applied to traditional rights such as fishing, navigation,
riparian forests etc. the protection of ecological values is among the purposes of public trust.
Hence environment protection is relevant factor and this doctrine must be used to protect
ecologically fragile water, air and land etc. The courts in US started adopting this reason and
expanded the doctrine to include all ecosystems. The Indian supreme court considered the
judgments of US courts discussed few of them in the judgment especially Gould V Grey lock
reservation commission, Illinois central rail road co. V People of the state of Illinois, National
Audubon Society V Superior Court of Alpine County besides others in which the US courts have
applied this doctrine. The US courts expanded this doctrine on the lines of interpretation of

Professor Joseph. L. Sax of Michigan University. The US courts did not allow a park to be
acquired for road expansion, it did not allow pond to be covered for road expansion and also
upheld the decision the Illinois legislature to take back a grant to rail Road Company allotted
along the stretch of a bank. The court went to the extent of ordering restoration of feeding
channels to mono lake in California as the lake has been the nesting place and breeding place for
migratory birds and offers scenic beauty to the viewers. Indian law is based on English common
law and hence is part of our jurisprudence. According to Professor Sax the doctrine imposes the
following restrictions on governmental authority: three types of restrictions on governmental
authority are often thought to be imposed by public trust: first, the property subject to the trust
must not only be used for a public purpose, but it must be held available for use by the general
public; second, the property may not sold, even for a fair cash equivalent; and third the property
must be maintained for particular types of uses. The California Supreme court explained the
concept of public trust doctrine in the following words: by the law of nature these things are
common to mankind the air, running water, the sea and consequently the shores of the sea.
From this origin in Roman law, the English common law evolved the concept of public trust,
under which the sovereign owns all of its navigable water ways and the lands lying beneath
them as trustee of a public trust for the benefit of the people. The California Supreme Court
summed up the powers of the state as trustee in the following words: Thus, the public trust is
more than affirmation of state power to use public property for public purposes. It is an
affirmation of the duty of the state to protect the peoples common heritage of streams, lakes,
marshlands and tide lands, surrendering that right of protection only in rare cases when the
abandonment of that right is consistent with the purposes of the trust
The Supreme Court of India held that our legal system based on English common law
includes the public trust doctrine as part of its jurisprudence. The state is the trustee of all natural
resources which are by nature meant for public use and enjoyment. Public at large is the
beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The state
as a trustee is under a legal duty to protect the natural resources. These resources meant for
public use cannot be converted into private ownership.
The court drew the fine distinction between public use and public purpose. If the natural
resource meant for public use is to be converted to public purpose especially into private

ownership government must be cautious and see to it that it does not commit breach of that trust.
Court held that public trust doctrine as discussed in this judgment is part of the law of the land.
The court quashed the regularization of encroached land which was leased out to them and
ordered to construct boundary wall close to the motels and with in their own land and asked the
motel management to show cause as to why pollution fine in addition to damages be not imposed
on them. The motels were ordered not to discharge untreated effluents into river beas and ordered
pollution control board to monitor this and also to prohibit untreated effluents to join the river
beas from other hotels and restaurants.
In the next orders (MANU/SC/0146/2000) (MANU/SC/0189/2002) where the court gave a
hearing on the specific issues of pollution fine and damages the petitioners raised the objection
that fine cannot be imposed unless a trial is conducted in accordance with the statutes and they
are found guilty. The petitioner contended that the court acting under writ jurisdiction is not
competent to impose fine. The Supreme Court observed that though it cannot impose fine it can
award exemplary damages. The court imposed special damages of rupees ten lakhs and ordered
to remit the amount to the State Government in the department of irrigation and public health and
stated that the amount be used for flood protection works in the area of beas river. The petitioner
however also agreed to share quantum of amount for the restoration of damage done to the
environment.
The Supreme Court had an occasion to consider the application of the doctrine of Public Trust in
Mrs. Sushetha V State of Tamil Nadu and ors. (AIR 2006 SC 2893). In this case a temple tank
in a village is located road side in such a way that on both sides of the road a main road is there
connecting Chennai city with Mahabalipuram, on the old mahabalipuram road. The tank
admittedly was lying in disuse. The Panchayat took decision of constructing a shopping complex
in the tank land for the purpose of user thereof for resettlement of those persons who were
displaced due to expansion of a highway project. The State of Tamil nadu also issued a
government order permitting constructions of a shopping complex therein. The decision of the
government and panchayat was challenged before the madras High Court. The High Court
obtained a report by appointing a commissioner to inspect the tank land and submit the report.
The Director, Centre for Water resources was appointed as commissioner by the court in this
case. On the basis of the report the High Court dismissed the petition hence the appellant

approached the Supreme Court. The contention of the government is that the tank is an artificial
tank and not a natural water resource, the tank is dry for most of the year except during rainy
season. The state also contends that the land is required for rehabilitation and settlement purpose
of the people affected by acquisition proceedings due to highway expansion. The appellant
contends that resurrection of the tank should be undertaken as it does not remain dry during rainy
season. Maintenance of wetlands was highlighted by Calcutta High Court in People United for
better living in Calcutta public and Another V

State of west Bengal and others

(MANU/WB/0025/1993) and the Supreme Court in T.N.Godavarman Thirumalpad (99) V Union

of India and Others ((2006) 5 SCC 47) considering the fact that wetland acts as a benefactor to
the society.
The Supreme Court considered the matter and held that as discussed by the Court earlier in
dealing with natural resources in Intellectuals forum, Tirupathi V State of A.P. and ors.
(MANU/SC/8047/2006) and opined:
This is an articulation of the doctrine from the angle of public trust. Formulated from a nugatory angle, the doctrine
does not exactly prohibit the alienation of the property held as public trust. However, when the state holds a resource
that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the
government, no matter how inconsistent with the existing legislations, that attempts to restrict such free use. To
properly scrutinize such actions of the government, the courts must make a distinction between the governments
general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a
trustee of certain public resources

The Court concluded that in the above decisions they have not laid down a law that alienation of
the property held as public trust is necessarily prohibited.
The court also held that principle of sustainable development is a fundamental concept of Indian
law. The court opined that while emphasizing the need of maintaining a delicate balance between
ecological impact and development it is not possible to ignore the dire need which society
requires. Considering all these court held that in view of the fact that the tank is not a natural
tank and it has been a dumping ground for a long time and it has fallen in disuse for a long time
it is not a case where we should direct its resurrection. The court held that the same opinion is
expressed by the court in Bombay Dyeing & Mfg. Co. Ltd. (3) V Bombay Environmental Action
Group and Ors. (MANU/SC/1197/2006).

Precautionary Principle and Polluter Pays Principle

Precautionary Principle
Precautionary principle means anticipating the possible harm to the environment and taking
measures to avoid such harm. It is preventive rather than curative in nature. Where the
environment harm threatened to occur is serious and the likely damage is irreversible then there
is no excuse and the precautionary principle has to be applied. If the irreversible damage is
anticipated due to scientific uncertainty then also the principle has to applied. This principle is
evolved in its present form in the United Nations Conference on Environment and Development
held at Rio de Janeiro in 1992 however the principle was part of International customary law and
was also discussed and applied in rudimentary form earlier. The United Nations Conference on
Human Environment held at Stockholm in 1972 assumed that science and technology shall be
able to handle the adverse impact on environment, however it was realized later that there may
be serious threats to environment which may not be handled by the existing science and
technology. This led to the evolution of the Precautionary Principle at the United Nations
Conference on Environment and Development held at Rio de Janeiro in 1992. Principle 6, 18 and
20 of Stockholm declaration which assumed scientific capability reads as follows:
Principle 6
The discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations
as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious
or irreversible damage is not inflicted upon ecosystems. The just struggle of the peoples of ill countries against
pollution should be supported.
Principle 18
Science and technology, as part of their contribution to economic and social development, must be applied to the
identification, avoidance and control of environmental risks and the solution of environmental problems and for the
common good of mankind.
Principle 20
Scientific research and development in the context of environmental problems, both national and multinational, must
be promoted in all countries, especially the developing countries. In this connection, the free flow of up-to-date
scientific information and transfer of experience must be supported and assisted, to facilitate the solution of
environmental problems; environmental technologies should be made available to developing countries on terms
which would encourage their wide dissemination without constituting an economic burden on the developing
countries.

Principle 15 of the Rio declaration adopted by the parties at the United Nations Conference on
Environment and Development is as follows:
In order to protect the environment, the precautionary approach shall be widely applied by States according to their
capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be
used as a reason for postponing cost-effective measures to prevent environmental degradation.

The conference negotiations discussed at length whether it is precautionary principle or

precautionary approach. If it is principle it has binding nature if it is an approach then it is like
due diligence or code of conduct etc. the use of approach in the principle makes it softer. The
strategies for adopting precautionary approach varied among nations and there are divergent
views regarding this. It could mean application of best available technology, shifting burden of
proof, margin of safety, informed consent etc. Besides the fact that there are various strategies for
application of this principle, careful reading of it shows that the principle is also contradicting
itself. While lack of scientific certainty envisages the application of the principle there is a need
for scientific knowledge which establishes lack of it. Cartegena Protocol on Bio Safety requires
establishment of irreversible damage to environment to stop import of products from States. So
the precautionary principle requires scientific certainty to establish possible harm.
The Supreme Court of India has declared that Precautionary Principle and Polluter Pays
Principle are part of the law of the land in the following cases:
Vellore Citizens Welfare forum V Union of India (AIR 1996 SC 2715)
The petitioner, a voluntary organization, filed in public interest under Article 32 of the
Constitution of India complaining that the tanneries and other industries in the state of Tamil
Nadu are discharging untreated effluents into agriculture fields, road sides, water-ways and open
lands. Untreated effluents are discharged into river Palar, which is the main source of drinking
water supply in the region. According to the petitioner, based on an independent survey by a nongovernmental organization, 350 out of 467 wells in 13 villages have been polluted. As per
contention of the petitioner based on a technical report 176 chemicals are found in tannery
effluents. According to the affidavit filed by the deputy secretary to government, environment
and forests department of Tamil Nadu, 59 villages are affected. Government is supplying water
for drinking in these villages. Out of the 443 tanneries which are causing the pollution 33

tanneries have put up effluent treatment plants. The Central Government is giving substantial
subsidy for setting up the common effluent treatment plant besides this State of Tamilnadu and
the Tamilnadu Pollution Control Board are pursuing the industries to set up treatment plant. The
tanneries have not taken up any step to control the pollution discharged by them. The Supreme
Court ordered the tanneries either to set up treatments plants or close down their units. The Court
held that The Precautionary Principle and The Polluter Pays are essential features of
Sustainable Development. The Court interpreted Precautionary Principle by stating that
Precautionary Principle in the context of municipal law means:
(i)

Environment measures by the State Government and the statutory authorities must anticipate, prevent
and attack the causes of environmental degradation.

(ii)

Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used
as a reason for postponing measures to prevent environmental degradation.

(iii)

The Onus of proof is on the actor or developer/industrialist to show that his action is environmentally
benign.

The precautionary principle in the Indian context is interpreted by the Court as above has
served practical utility and direction. This interpretation places the responsibility of the
application of this principle on the Government and the statutory authorities, and the burden of
proof on the actor.

The Court also declared that Polluter Pays Principle and Precautionary

Principle have been accepted as part of the law of the land. They are part of environmental law
of the country.
Polluter Pays Principle
Polluter Pays Principle means internalizing the environment costs into the other financial costs.
The principle contemplates that the polluter must bear the cost of pollution. It could include
asking an industrial establishment to set up treatment plants, asking the polluter to pay
compensation to the victims of pollution, asking a unit to close down due to pollution. This
principle also can be interpreted to justify imposition of tax/ Cess to the units or activity
consuming extraneous unaccounted environmental resources etc. This Principle gained wide
international recognition with the decision in trail smelter case where in Canada was made to pay

to United States for the damage done to the agriculture in United States by the smelting
operations carried on in Canada. Later it found its way into International Environmental law and
the States have agreed in principle to take responsibility for environmental damage caused
beyond their boundaries in the Stockholm declaration adopted in the United Nations Conference
on Human Environment held at Stockholm in 1972.
Principle 21 of the Stockholm declaration:
States have, in accordance with the Charter of the United Nations and the principles of international law, the
sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to
ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction.
Principle 22 of the Stockholm declaration:
States shall cooperate to develop further the international law regarding liability and compensation for the victims of
pollution and other environmental damage caused by activities within the jurisdiction or control of such States to
areas beyond their jurisdiction.

The principle is first raised by the States in the Organization for Economic Cooperation and
Development (OECD) negotiations. The OECD guiding principles on environmental policies and
measures initially restricted the application of the principle in such a way that economic activity
shall not be hampered, however the stand was altered due to high level of polluting activity and
the demand for action on polluters started growing exponentially. Originally polluter pay was
intended not to cover accidental and progressive damages by the OECD after the altered state of
affairs it covered such damages as well. The question then arises would be whether fault need to
be established. If it were based on no fault liability then the question of Polluter would not
arise. If it is based on fault then issues pertaining to strict and absolute liability would arise.
Strict and absolute liability principles do not require actual negligence or violating a standard of
care but it requires non natural use of land/property and possessing or handling hazardous
substances. If hazardous substance is responsible for the resulting damage irrespective of the
standard of care the person responsible for non natural use shall be liable as per polluter pay
principle. If strict liability is applied then there are certain excuses like act of god etc. which are
not available in case of absolute liability as is followed in India.

The principle is accepted in more clear terms in the United Nations Conference on Environment
and Development. Principle 16 of the Rio declaration adopted by the parties at the United
Nations Conference on Environment and Development is as follows:
National authorities should endeavor to promote the internalization of environment costs and the use of economic
instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with
due regard to the public interest and without distorting international trade and investment.

In Indian Council for Enviro Legal Action V Union of India and others (AIR 1996 SC 1446)
petitioner is an environmentalist organization brought to light the woes of the people in Udaipur
district of Rajasthan due to pollution caused by chemical industrial plants. The Supreme Court
felt stated that the facts of this case instilled the feeling that poor people will believe that law
does not touch the rich people if law remains helpless. The facts of this case are Bichhri is a
small village in Udaipur district of Rajasthan state. There is a major industrial establishment in
this village the Hindustan Zinc limited, a public sector concern. In 1987 Hindustan Agro
Chemicals Limited started producing certain chemicals like oleum and single super phosphate. A
sister concern of this industry, Silver chemicals commenced production of H acid in a plant
located in same complex. H acid manufacture gives rise to enormous quantity of highly toxic
effluents. Jyothi chemical is another unit established in the same village to produce H acid.
Some other establishments are also set up here which manufacture fertilizers and other products.
H acid manufacture is banned in developed countries but the demand for it lies in those
countries. These toxic effluents and wastes polluted the soil, surface water and by percolation
underground water. The untreated toxic sludge is discharged indiscriminately into open lands
which led to percolation affecting the subterranean supply of water. The issue was raised in
parliament and there was also revolt by villagers which led to imposing section 144 Cr.P.C. by
the District Magistrate and the closure of silver chemicals. The court considered technical data
and other evidence and also requested (NEERI) National Environmental Engineering Research
Institute to study the situation in and around Bichhri village. Pollution Control Board also
constituted an expert committee and submitted its report to the court. Based on the reports of
NEERI and others and after considering other evidence court came to the conclusion that silver
chemicals and jyothi chemicals have manufactured 375 MT of H acids gave rise to 8250 m 3 of
waste water and 2440 tones of sludge. To conceal it from the vision of inspection teams they
have spread it all over the area. The units functioned in spite of Rajasthan PCB order to close

these units. They did not even obey the orders of the court such as entombing the wastes or
removal of sludge which is blatant disregard for law. Even after closure of the unit they did not
take measures to dispose toxic sludge and waste water in safe manner. As per the reports the
manufacture of H acid and the resultant discharges led to serious contamination of ground water
as per NEERI report. Environment protection gives wide power to the central government to take
measures for environment protection. The Court held that Polluter Pays is widely accepted
principle and gained universal recognition apart from it being stated in absolute terms in oleum
gas leak case. The questions that arose for consideration was can the Supreme court entertain
writ to direct private entities as they do not fall under the definition of state as per article 12 if the
constitution, does polluter pay mean remedy to the damage done to the victim or to the
environment, is the liability absolute or on proof of negligence. These were the important
questions that arose from the contentions of the respondents. The court held that the writ is not
against private entities but it is directed Union Government and pollution control board and
Rajasthan government to implement the law. As far as the polluter pay is concerned the court
held polluter pay includes not only remedying the damage to victims but also damage done to the
environment in this case NEERI quantified the damages as damage to villagers at Rs.342. 8
lakhs and remediation of impacted waters and soil at Rs. 3738.5 lakhs. As far as the liability is
concerned court held that it is decided in oleum gas leak case (AIR 1987 SC 1086) that where
hazardous and inherently hazardous activity is carried on the liability is absolute hence the
polluter in this case is absolutely liable to pay and there is need to prove negligence of the
industries. The Court ordered central government to determine the amount of damages for
remedial measures and collect them from the polluters. The amount so recovered shall be utilized
by environment ministry for restoration of soil, water sources and environment in general. These
units are ordered to be closed down, some of them were already closed, and their reopening
should be considered after their compliance with this direction and all other requisite permissions
and consents are obtained from relevant authorities. Villagers are entitled to file suit in forma
pauperis for damages. Central government shall consider scrutinizing establishment and running
of chemical industries more stringently and after careful impact study. The Court suggested the
need for establishment of Environment Courts to deal with all matters civil and criminal relating
to environment. The court ordered Rajasthan PCB to submit compliance report periodically and

directed the central government to strengthen the environment protection machinery.

Respondents were asked to pay Rs. 50,000 as costs to petitioner organization.
Fifteen years later the Supreme Court of India had to deliver another judgment in Indian Council
for Enviro Legal Action V Union of India and others (MANU/SC/2011---) where in the
implementation of this judgment was considered. The HACL argued that there is a need to
review the need for remediation efforts in the region as the nature has observed on its own the
adverse affects. The Supreme Court turned down the argument and asserted that it was an well
considered decision and that HACL should pay the cost of remediation with a compoundable
interest of 12% on the sum required for payment for restoration of it, which was calculated
around 38 crore rupees in 1996.
Environment Education as part of compulsory education:
The Supreme Court has to consider the pollution of rivers in the case concerning pollution of
river Ganga initiated by the petitioner M.C.Mehta. The petitioner filed the petition in Public
interest for issue of directions to the authorities and others for restraining them from discharging
trade and other effluents into river Ganga. It is popularly believed by Hindus in India that river
ganga is the purifier of all sins. There are many cities and towns on the banks of river ganga.
There are also large industries on its banks. Sewage of towns, cities and the trade effluents of the
factories and other industries are continuously discharged into the river. During the preliminary
hearing the court issued notices through news papers in circulation in Northern India calling
upon all industrialists, municipal corporations, town municipal councils having jurisdiction over
the areas through which river ganga flows to appear before the court and to show cause why
restraint order as asked by the petitioner be not issued. Pursuant to this large number of industries
and local bodies appeared before the Court. Court divided the case one of them was the case
against tanneries near Kanpur, M.C.Mehta V Union of India and others (AIR 1998 SC 1037).
Certain tanneries occupiers did not respond to the notice and the respondents who represented
did not dispute the contention that the discharge of the trade effluents from these tanneries into
the river ganga has been causing considerable damage to the life of people who use the water of
ganga and also to the aquatic life in the river. The tanneries at Kanpur formed an association with

the object amongst others to set up and maintain common effluent treatment plan for member
tanneries in and around Kanpur. As per the provisions of the Water (Prevention and Control of
Pollution) Act 1974 waste water from all industries has to be treated before they are discharged
into water bodies directly or indirectly. Tanneries are no exception to this provision and are
required to treat the effluents discharged from their units. As a solution to this problem Central
Leather Research Institute has brought out a Management investment Report in 1976 indicating
various types of leather processing techniques, quantity of effluents etc. including the cost of
treatment. Tanneries of Knapur have represented that due to lack of physical facilities, technical
know how and funds, it has not been possible to install adequate treatment facilities. Central
Leather Research Institute is looking into the possibilities of pretreatment including recovery of
materials. However setting up of the treatment facility in the respective units will be the
responsibility of the units. Ganga Action Plan project directorate will play a facilitative role to
demonstrate application of modern technologies for cost effective pretreatment which the small
tanneries can afford. The Court held that financial capacity of the tanneries should be considered
as irrelevant while requiring them to establish primary treatment plants. Just as an industry which
cannot pay minimum wages to its workers cannot be allowed to exist a tannery which cannot set
up a primary treatment plant cannot be permitted to continue. The adverse effect due to discharge
of effluents into river ganga will outweigh any inconvenience that might be caused to the
management and workmen employed in this tanneries. The court ordered the tanneries which did
not bother to appear before the court and have not set up treatment plant be closed forthwith. The
tanneries which appeared before the court and did not establish treatment plants were ordered to
stop discharging effluents into river ganga without subjecting the trade effluents to a
pretreatment process by setting up primary treatment plants as approved by the state pollution
control Board. The court actually considered the cost involved in setting up treatment plant and
is of the opinion that primary treatment plants are not very costly unlike secondary treatment
plants and ordering to set up primary treatment plant is like a minimum comparable to that of
minimum wages.
The case concerning pollution of river ganga by sewage released by municipalities is decided by
the court and passed far reaching orders in M.C.Mehta V Union of India and others (AIR 1988
SC 1115). Though the court ordered all municipalities having jurisdiction over the area where the

river ganges flows to appear as it was found that Kanpur was one of the biggest cities on the
banks of the river ganga the court took up the case in respect of Kanpur Nagar Mahapalika
(municipality). The facts put forth before the court show that in Kanpur town sewage is
discharged into river without treatment through 17 nalas. Though Section 24 Water Act prohibits
any polluting matter to be discharged into any stream or well and Section 25 requires the
occupier to obtain consent from State Pollution Control Board before they discharge sewage or
trade effluents into any stream or well no such application nor proposal to set up treatment works
has been made by Kanpur Nagar Mahapalika. Added to this dairies located in the city generate
dung, fodder and other refuse, and the night soil collected from unsewered areas also is thrown
into nalas. The Supreme Court observed that it is unfortunate that all these pollution laws remain
only on paper. The court held that in view of the failure of the municipality to obey its statutory
duties for several years the water in the river Ganga at kanpur has become so much polluted that
it can no longer be used either for drinking or bathing. The works undertaken under ganga Action
Plan also are going at snails pace. The Kanpur municipality is asked to take action under the law
to prevent pollution and also asked to either shift the dairies or shift the waste generated from the
dairies. The municipality is directed to construct public urinals and latrines and maintain cleanly
at the expense of municipality to encourage poor people to use them. The court ordered
municipality to ensure that half burnt bodies and dead bodies are not thrown in river Ganga. All
Industries existing and new to be set up must be made responsible for pollution of water in case
they are likely to discharge polluting matter into streams. The Court also expressed that in view
of the grave consequences of pollution of water and air, and the fundamental duty of the citizens
as per Article 51A(g) of Indian Constitution to protect and improve the natural environment it is
the duty of the Central Government to direct all educational institutions through out India to
teach at least for one hour in a week lessons relating to the protection and the improvement of the
natural environment including forests, lakes, rivers and wild life in the first ten classes. The
Central government shall get text books written for the said purpose and distribute them to
educational institutions free of cost. Children should be taught about the need for maintaining
cleanliness of the house both inside and outside, and of the streets in which they live. Clean
surroundings lead to healthy body and healthy mind. Training of teachers who teach this subject
shall also be considered. In order to rouse consciousness of cleanliness government may consider
organizing keep the city/ town clean week during which week all citizens executive, members

of legislature and judiciary may be requested to cooperate and take part in celebrations by
rendering free services. The Court finally held that what all is stated also applies mutatis and
mutandis to all other Mahapalikas and Municipalities which have areas through which river
ganga flows.
Taj Mahal case
The Supreme Court has to take a tough stand against erring industries to protect the Taj Mahal,
epitome of Mughal monumental domed tombs in M.C. Mehta V Union of India (AIR 1997 SC
734). The petitioner contends that the foundries, chemical/hazardous industries and the refinery
at Mathura are major sources of damage to the Taj. The sulphur dioxide emitted by the refinery
and the industries when combined with oxygen with the aid of moisture in the atmosphere forms
sulphuric acid called Acid rain which has a corroding effect on the gleaning white marble.
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 white
marble has yellowed and blackened in places. The Taj is a monument of international repute and
is on its way to degradation due to atmospheric pollution and it is imperative that preventive
steps have to be taken immediately. Petitioner annexed the 1978 published report of the expert
committee (Varadharajan Committee) constituted by the government of India to study the
environmental impact of mathura refinery. The Central Board for prevention and control of water
pollution, new Delhi also published a report under the title Inventory and assessment of
pollution emission in and around Agra-Mathura Region. The National Environment Engineering
Research Institute (NEERI) gave over view report regarding status of air pollution around Taj
Mahal. After considering all the reports court ordered U.P.Pollution Control Board to get a
survey done of the area and prepare a list of all the industries and foundries which are sources of
pollution in the area and issue notices to all foundries and industries to satisfy the board that
necessary anti pollution measures have been undertaken by the said industries/foundries. The
court asked the pollution control board to publish the notice within two weeks in two local news
papers also. The pollution control board shall submit a report regarding this to the court by 5 th
may 1993. The affidavit submitted by the pollution control board states that notices were issued
to 511 industries/foundries including Mathura refinery but the court decided to deal with refinery
separately. Amongst them there were foundries, rubber factories, glass industries, bangle

industries, chemical industries besides others. The affidavit stated that all the listed industries
were polluting and 507 out of them had not installed any pollution control device and 212 of
them did not respond to the notice and failed to take any action to set up pollution control device.
These 212 industries were asked to close down until they set up anti pollution device. Stringent
pollution control regulations have been stipulated by the government of India but the industries
within agra area are not meeting the prescribed emission standards. One of the reasons is that
industries use coal and coke for their fuel requirements. Amongst the options proposed for the
management of agra region by NEERI change over to cleaner fuel like CNG is a major one. The
court ordered NEERI to examine the possibility of using propane or any other safe fuel instead of
coal/coke by industries in TTZ. Regarding the plan to relocate the polluting industries outside the
Taj environment trapezium zone the court was informed by U.P.State Industrial Corporation
limited by stating in their affidavit that out of 220 acres of developed land in industrial area, kosi
151 plots are still available. It further stated that 330 acres is available in salimpur in aligarh
district about 60 kms away from agra, 85 acres of undeveloped land is available at Etah about 80
kms away and these places are outside Taj environment Trapezium.
Then the court ordered U.P. Pollution control Board to issue public notices in two English daily
news papers and also two vernacular news papers for three consecutive days indicating that
Supreme Court of India is processing the proposal for shifting of the air polluting industries from
Agra to outside taj trapezium at a suitable place to be selected after hearing the parties including
industry owners. The court also is of the opinion that relocation of industries from Taj Trapezium
Zone is to be resorted to only if the natural gas is not acceptable as a substitute for coke/coal. The
court initially proceeded against industries in Agra region alone leaving the industries which are
close to Agra and are within trapezium zone. They are 292 industries.
The court also considered that 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. The
court stated that precautionary principle and polluter pays principle are part of environmental law
of the country. The court directed the 292 industries to change to natural gas as industrial fuel or
stop functioning with aid of coal/coke and may relocate themselves. The court ordered the
industries to apply to Gas Authority of India Limited (GAIL) for changing over by 15 th
February 1997 or apply to industrial corporation for site to relocate by 28 th February 1997.
GAIL shall decide the applications by 31 st march 1997 and the industries are directed to stop

functioning with the aid of coal/coke from 30 th April 1997. Relocating industries shall not
function in trapezium zone beyond 31 st December 1997 irrespective of the fact whether the new
unit is set up or not. The Deputy Commissioner, Agra and the Superintendent (Police) shall affect
the closure of all industries on 31 st December 1997. The court ordered state government to
cooperate and required to provide single window clearance for the relocating industry. The
workmen employed in the 292 industries shall be deemed to be in active employment during the
period of relocation and terms and conditions of their employment should not be interpreted to
their detriment. Relocating workmen will be given one year wages as shifting bonus to help them
settle down. The workmen in the industries which are closed down due to non conversion or
shifting shall deemed to be retrenched as per industrial disputes Act and are entitled to the
benefits available in that Act besides they are also entitled to six years wages as additional
compensation. The payment to be made should be made to the workmen, within two months of
the retrenchment and they are entitled to gratuity in addition to this. The court dealt with issues
concerning other industries, diverting traffic and developing green belt around Taj Mahal
subsequently.