TOPIC – Environmental law in india

RESEARCH PROPOSAL SUBMITTED BY:-

NAME : Bhargavi mishra

ROLL NO : 1524

BATCH : BA LLB (2016-2021)

SEMESTER : 1st

SUBMITTED TO : Mr. Vijyant sinha

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR , PATNA

1
INTRODUCTION

In the contemporary scenario when the havoc of environmental degradation is at new heights
, the need of effective environmental laws is even more stringent. In our country also we have
enacted set of rules and regulations that are needed in order to ensure healthy and dignified
environment ensured by Article 21 of the constitution. Legislature along with judiciary works
for the environmental development of the country along with maintaining the necessary
measures for the sustainable development. Here in this project we shall deal with
environmental law as a concept, it’s evolution in India while also stating existing important
legislations and case laws. In the end their will be critical analysis of effectiveness and
adequacy of these existing measures and elaboration of what are some immediate steps and

reforms needs to be implemented.

2
AIMS AND OBJECTIVES

 To know about environmental law , its origin in India and it’s evolution
 To find about enacted legislation pertaining to environmental laws in India
 To study the effectiveness of the existing measures.
 To find out and suggest some necessary steps that needs to be undertaken

HYPOTHESIS

Are the available laws in India for safeguarding the environment and it’s people adequate or
not ?

RESEARCH METHODOLOGY

Doctrinal research i.e studies are library based and web-info based.

3
 CHAPTERISATION

1. Introduction : What is environmental law? Pg no

2. Environmental law : Evolution in India .
3. Constitutional provisions for environmental protection in the
constitution of India.
4. Legislation for Environmental protection in India.
5. NGT: National Green Tribunal.
6. Important case laws.
7. Effectiveness of the existing laws: A critical analysis
8. Steps and measures to be undertaken.
9. Conclusion.

4
 Introduction : What is environmental law?

1Environmental protection is important for several reasons, such as ensuring a lasting

supply of resources, as well as providing access to clean food and water. Adequate
environmental protection helps to reduce the risk of related health problems, such as asthma,
and promotes a healthier environment in places where humans live, work and learn. The
environment plays an important role in a person's health, both short- and long-term.
Examples include quality of the outdoor air along with water quality in the surface and
ground as well as any toxic substances or hazardous wastes. Having a clean environment
assists with prevention or control of disease, injury, and any disabilities that may arise from a
poor environment. Approximately 25 percent of deaths and total number of diseases in the
world are linked to environmental factors thus need of stricter environmental law is more
real than any other time in the past even in the Constitution of India it is clearly stated that it
is the duty of the state to ‘protect and improve the environment and to safeguard the forests
and wildlife of the country’. It imposes a duty on every citizen ‘to protect and improve the
natural environment including forests, lakes, rivers, and wildlife’. Reference to the
environment has also been made in the Directive Principles of State Policy as well as the
Fundamental Rights. All the world wide concerns for environment degradation has lead to
emergence of branch of law called environmental law.

Environmental law are basically rules and regulation necessary for safeguarding our
biodiversity they serve as a window to the varying nature and increasingly intense demands
on india’s natural resources and the government’s policy response. Other definations says
that it is 2Environmental law is a collective term describing the network of treaties, statutes,
regulations, and common and customary laws addressing the effects of human activity on the
3
natural environmental Environmental law looks at all the factors that pertain to an
economy and its production and industry to assess its impact on the environment and to
propose regulations that will reduce environmental harm. It is mostly considered with
regulations and treaty agreements between countries, corporations and public interest
initiatives that work to promote the conservation of natural resources and to enhance energy
efficiency. “Environmental law – or “environmental and natural resources law” – is a

1
http://envfor.nic.in/division/environment-protection
2
Environmental law definition Wikipedia.com
3
http://www.conserve-energy-future.com/environmental-law-and-its-components.php

5
collective term describing the network of treaties, statutes, regulations, and common and
customary laws addressing the effects of human activity on the natural environment.”

Environmental law is necessary to combat issues related to the environment and conservation
of natural resources. For instance – environmental laws pertains to issues like global
warming, climate change, greenhouse gas emissions, acid rain, hunting of endangered
species, deforestation, depletion of natural resources, pollution of water, air and soil.

In the United States, the chief government agency for administering environmental
regulations is the Environmental Protection Agency. In most countries, states have their own
environmental protection agencies that administer laws pertaining to issues of concern to the
natural environment and to protect human health.

When researchers and monitors are assessing the environmental law of a person or
community they are looking at how external elements are impacting the mental, emotional
and physical health of the individual, and at large. They can come in to do assessments that
are focused on decreasing epidemics or childhood morbidity, as well as to improve the
overall preventative healthcare measures in the area. Environmental law regulations can
extend to cover housing, transportation, food and water management as well. There is not one
aspect of life that is not covered by environmental law as it recognizes the interrelation of all
areas of economy and community on a person’s health state. Since its inception little more
than 20 years ago, environmental law has become part of our popular culture. Its high-profile
cases, together with its impact on day-to-day business and governmental decision making,
have given it a unique place in the public's awareness. environmental law has become more
pervasive in our society, it also has grown more complex. Statutes this growth, opportunities
for lawyers to help interpret the law and negotiate or litigate conflicts also have grown. From
a time when environmental law was the province of a few plaintiffs' lawyers willing to argue
common-law causes of action on behalf of citizen activists, we have arrived at a point where
environmental advocacy groups, private law firms, corporations and governments employ
cadres of lawyers expert in the intricacies of a labyrinthine regulatory edifice. Many
conferences like Stockholm conference 1972 , earth summit 1992 , Kyoto protocol 1997, cop
summits took place with newfound deadlines , aims and objectives. All of which is to say that
environmental law is hot. Numbers are hard to come by, but the anecdotal evidence is there:

6
4
More and more law schools are offering concentrations in environmental law, including
those at University of California at Berkeley, Tulane, Lewis and Clark, IIT Chicago-Kent,
Pace University and Vermont Law School. George Washington University, Pace, Tulane and
Vermont also offer master's programs in environmental law. At Vermont, applications for the
master's program rose from 22 in 1987 to 110 this year, while applications for the school's
summer program in environmental law have increased from 93 to 217 over the same period.
Recently, the University of Richmond's law school became the first to make environmental
law a required first-year course. The American Bar Association's Natural Resources, Energy
and Environmental Law Section is among the fastest growing sections in the association,
showing a recent annual growth rate of over 15 percent. The ABA's annual conference on
environmental law in Keystone, Colo., now attracts between 500 and 600 attorneys from
government, academia, public interest work and private practice, up from 29 when it started
in 1971. According to legal recruiters, environmental lawyers are among those most in
demand by law firms and corporations nationwide. At a time when talk of dissatisfaction
among lawyers has become increasingly common, environmental practice appears to offer
many of the qualities that people tradition ally seek when choosing a career in law.
Environmental law is at the forefront of a great many legal issues, offering real intellectual
challenge, but it does not operate in an intellectual vacuum; environmental disputes and their
resolutions touch the everyday lives of all Americans. In addition, environmental lawyers
report a level of collegiality within the practice that? were it better publicized? would
probably be the envy of lawyers in many other practice.

4
Environmental law takes roots BY STEVEN KEEVA

7
CHAPTER 2 -EVOLUTION OF ENVIRONMENTAL LAW IN INDIA
5
Environment plays a pivotal role in human life as well as in the development of society.
With growing technological advancement and industrialization, the purity of the environment
has been threatened to an appalling extent. The need to protect and improve the environment
is so compelling for the peaceful survival of mankind and other life forms on planet Earth
that right to environment has emerged as a human right.

India is a large country with a high population density. It is a developing country, with
comparatively low per capita incomes and a recent legacy of colonial rule. It is a strong,
vibrant, multi-party democracy with an independent judiciary and open media. The conflict
between conservation of the environment and socio-economic growth has been much debated
and discussed. It is generally postulated that a thrust for preservation of the environment
imposes costs that a developing country is unwilling to bear

Here we commences with the diverse ingredients of Indian environmental jurisprudence. A

highlight of international efforts in combating environment related problems is also made.
Ultimately, the author throws light on the Indian experience of environmental law and its
resultant tool of the human right to live in a clean and healthy environment.

Over the last two decades, the Indian judiciary has fostered an extensive and innovative
approach to environmental rights in the country. Complex matters of environmental
management have been resolved and consequently a series of innovative procedural remedies
have evolved to accompany this new substantive right. The new environmental right is
therefore championed as a legal gateway to speedy and inexpensive legal remedy.

The notional expansion of right to life was recognized even in the absence of a specific
reference to direct violations of the fundamental right. Placed in a nutshell, the human right
culture has percolated down to Indian human right regime within a short period of time. An
interdisciplinary approach to environmental protection may be another reason for the
operation of the right to healthy environment. This has been undertaken through international
environmental treaties & conventions, national legislative measures and in judicial responses.
5
http://www.legalserviceindia.com/articles/evn.htm

8
On undertaking a comprehensive study of environmental law, it can be found that the Indian
scenario is replete with examples of preserving the environment from degradation.

History of Environmental Protection in Ancient India

An appraisal of the historical background to environmental protection in India would indicate

that forests & wildlife were considered as vital ingredients of the global system. Here, the
entire scheme of environmental preservation was essentially duty-based. In this sense, the
ancient Indian society accepted the protection of the environment as its duty to do so.

Hindu Era

Opening up the Hindu mythology, the Vedas, Puranas, Upanishads and other ancient
scriptures of the Hindu religion have given a detailed description of trees, plants, wildlife and
their importance to people. Yajnavalkya Smriti prohibited the cutting of trees by prescribing
punishment for such acts. Kautalya's Arthashastra, written in the Mauryan period, realised the
necessity of forest administration and Ashoka's 5th Pillar Edict expressed his view about the
welfare of creatures in the State. Evidence from civilizations of Mohenjadaro and Harappa
has further proved that the small population lived in consonance with the ecosystem and their
needs maintained harmony with the environment. Thus, the Hindu society was conscious of
the adverse environmental effects caused by deforestation and extinction of animal species.

Mughal Era

In Islam, there is close harmony between man and nature. However, during the Medieval
period, the only contribution of Mughal emperors has been the establishment of magnificent
gardens, fruit orchards and green parks, which were used as holiday resorts, palaces of retreat
or temporary headquarters during the summer season. The common opinion of
environmentalists has been that the Mughal emperors, though were great lovers of nature and
took delight in spending their spare time in the lap of natural environment, made no attempts
on forest conservation.

9
British Era

The British conquest in India brought about a plunder of natural resources coupled with a
complete indifference towards environmental protection. A general survey of early
environmental legislation reveals that apart from the forest laws, nineteenth century
legislation also partially regulated two other aspects of Indian environment, water pollution
and wildlife. These laws, however, had a narrow purpose and limited territorial reach.

Some of the early efforts include the enactment of the Shore Nuisance (Bombay and Kolaba)
Act of 1853 and the Oriental Gas Company Act of 1857. The Indian Penal Code, enacted in
1860, imposed a fine on a person who voluntarily fouls the water of any public spring or
reservoir. In addition, the Code penalised negligent acts with poisonous substances that
endangered life or caused injury and proscribed public nuisances. Laws aimed at controlling
air pollution were the Bengal Smoke Nuisance Act of 1905 and the Bombay Smoke Nuisance
Act of 1912. In the field of wildlife protection, early legislation was limited to specific areas
and particular species, thereby aiming at the conservation of biodiversity.

It is clear that legislative measures were taken by the British Government for prevention of
pollution and for conservation of natural resources. Although critics point out that the British
enacted these legislations, not with the object of protecting the environment but with the aim
of earning revenue for themselves, it should be regarded as the first step towards the scientific
conservation of natural resources. Despite the fact that these measures were made with
ulterior motives, British-enacted legislations have contributed significantly to the growth of
environmental jurisprudence in India.

Impact in India
In the early years of Indian independence, there was no precise environmental policy. Government
tried to make attempts only from time to time as per the growing needs of the society. The period of
1970s witnessed a lot of changes in policies and attitudes of the Indian Government when its attitude
changed from environmental indifference to greater and subsequently, manifold steps were taken to
improve environmental conditions this was largely attributed to dynamics emerging in international
community Environmental policy of a country is also determined by international actors – either
through trade conditions pushed by public pressure of the trading partner or through international
covenants. Though the international community has not arrived at a consensus on binding instrument
setting out rights and duties on environmental matters as in the case of human rights and trade, moral

10
obligations of nations arrived at in international summits have been an influence in determining the
course of domestic environmental policy. The UN Conference on Human Environment in 1972, the
Montreal Protocol on Substances that Deplete the Ozone layer in 1987, the Rio Earth Summit in 1992,
the Kyoto Protocol on Climate Change in 1997 and the Bali Roadmap to the UN Framework on
Climate Change in 2007 have been important milestones in the evolution of international
environmental policy .Environmental disasters have had a role to play in awakening the national
consciousness on the need for a green policy. The Bhopal Gas Leak tragedy in 1984 woke Indian
government for good many legislation for environment protection were followed after this incident.

11
CHAPTER 3: Constitutional provisions for environmental protection in
the constitution of India.

Our constitution mandates on the state and citizen to protect and improve the
environment and the emphasis on the concept of sustainable development. for this there
are many provisions in the constitution for example article 246 , article 253 , article 14 ,
article 21 etc.

The Constitution of India originally adopted, did not contain any direct and specific provision
regarding the protection of natural environment. Perhaps, the framers of the Indian
Constitution, at that time, considered it as a negligible problem. That is probably why it did
not even contain the expression environment. However, in fact it contained only a few
Directives to the State on some aspects relating to public health, agriculture and animal
husbandry. These Directives were and are still not judicially enforceable.

Nevertheless, on a careful analysis of various provisions prior to the 42nd Constitutional

Amendment, reveals that some of the Directive Principles of State Policy showed a slight
inclination towards environmental protection. It can be inferred from Art 39(b), Art 47, Art
48 and Art 49 . These directive principles individually and collectively impose a duty on the
State to create conditions to improve the general health level in the country and to protect and
improve the natural environment.

Regarding the expression material resources of the community present in Art 39(b) it was
held in Assam Sillimanite Ltd. v. Union of India that material resources embraces all things,
which are capable of producing wealth for the community. It has been held to include such
resources in the hands of the private persons and not only those, which have already vested in
the State.

The Supreme Court in Municipal Council, Ratlam v. Vardhichand observed that the State
will realise that Art 47 makes it a paramount principle of governance that are steps taken for
the improvement of public health as amongst its primary duties

From these Articles, one can understand that the Constitution of India was not as
environmentally blind as suggested by some eminent jurists. Though the word environment

12
was not expressly used in the Constitution, the object of the above Articles was to conserve
the natural resources, thereby protecting the environment. However, it must be accepted that
only with the strengthening of public interest litigations and an enhanced commitment from
the Central Government during the late 1970s, did an expansion of constitutional provisions
to include aspects relating to the environment take place.

Taking note of the Stockholm Conference and the growing awareness of the environmental
crises, the Indian Constitution was amended in the year 1976 Forty-Second Constitutional
Amendment. This gave it an environmental dimension and added to it direct provisions for
the preservation of ecological and biological diversity.

Art 48A, a directive principle, was inserted into Part IV of the Constitution, reading as
follows:

The State shall endeavour to protect and improve the environment and to safeguard the
forests and wildlife of the country. Correspondingly, an obligation was imposed on the
State through Art 51 A(g) in Part IVA, casts a duty on every citizen of India stating:
It shall be the duty of every citizen of India to protect and improve the natural
environment including forests, lakes, rivers and wildlife and to have compassion for
living creatures.
In M.K. Janardhanam v. District Collector, Tiruvallur, the Madras High Court has
observed that the phrase used (in Art 48A and Art 51A) is protect and improve which
implies that the phrase appears to contemplate affirmative governmental action to
improve the quality of the environment and not just to preserve the environment in its
degraded form. Therefore, the constitution makes two fold provisions - On one hand, it
gives directive to the State for the protection and improvement of environment and on
the other, it casts a duty on every citizen to help in the preservation of natural
environment.

Role of Judiciary
The judiciary, to fulfill its constitutional obligations was and is always prepared to issue
appropriate orders, directions and writs against those persons who cause environmental
pollution and ecological imbalance. This is evident from a plethora of cases decided by
starting from the Ratlam Municipality Case. This case provoked the consciousness of
the judiciary to a problem which had not attracted much attention earlier. The Supreme

13
 Court responded with equal anxiety and raised the issue to come within the mandate of
the Constitution.

The Supreme Court, in Rural Litigation and Entitlement Kendra v. State of U.P.
ordered the closure of certain limestone quarries causing large scale pollution and
adversely affecting the safety and health of the people living in the area. Likewise, in
M.C. Mehta v. Union of India , the court directed an industry manufacturing hazardous
and lethal chemicals and gases posing danger to health and life of workmen and people
living in its neighbourhood, to take all necessary safety measures before reopening the
plant. In an attempt to maintain the purity and holiness of the River Ganga, tanneries
polluting the sacred river were ordered to be closed down.

Holding that the Government has 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
Virender Gaur v. State of Haryana, the Court explicitly held that:
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
duty of every citizen to maintain hygienic environment. The State, in particular has duty
in that behalf and to shed its extravagant unbridled sovereign power and to forge in its
policy to maintain ecological balance and hygienic environment

Moreover in S. Jagannath v. Union of India, the Supreme Court has held that setting
up of shrimp culture farms within the prohibited areas and in ecologically fragile coastal
areas has an adverse effect on the environment, coastal ecology and economics and
hence, they cannot be permitted to operate. In Vijay Singh Puniya v. State of
Rajasthan, the High Court of Rajasthan it was observed that any person who disturbs
the ecological balance or degrades, pollutes and tinkers with the gifts of nature such as
air, water, river, sea and other elements of the nature, he not only violates the
fundamental right guaranteed under Art 21 of the Constitution, but also breaches the
fundamental duty to protect the environment under Art 51A (g).

Judicial activism in India provides an impetus to the campaign against pollution. The
path for people's involvement in the judicial process has been shown. If this had not

14
 been done so, the system would have collapsed and crumbled under the burden of its
insensitivity.

Fundamental Right to Live in a Healthy Environment

Man's paradise is on earth; This living world is the beloved place of all; It has the
blessings of Nature's bounties: Live in a lovely spirit. - Atharva Veda (5.30.6)

The right to live in a clean and healthy environment is not a recent invention of the
higher judiciary in India. The right has been recognised by the legal system and the
judiciary in particular for over a century or so. The only difference in the enjoyment of
the right to live in a clean and healthy environment today is that it has attained the status
of a fundamental right the violation of which, the Constitution of India will not permit.

It was only from the late eighties and thereafter, various High Courts and the Supreme
Court of India have designated this right as a fundamental right. Prior to this period, as
pointed out earlier, people had enjoyed this right not as a constitutionally guaranteed
fundamental right but as a right recognised and enforced by the courts under different
laws like Law of Torts, Indian Penal Code, Civil Procedure Code, Criminal Procedure
Code etc. In today's emerging jurisprudence, environmental rights which encompass a
group of collective rights are described as third generation rights.

Right to Environment - C Derived from the Right to LifeRight to life, implies the right
to live without the deleterious invasion of pollution, environmental pollution,
environmental degradation and ecological imbalances. Everyone has the right to life and
a right standard of living adequate for health and well being of himself and of his
family. States should recognise everybody's right to an adequate standard and to
continuous improvement of living conditions. Thus, inherent right to life shall be
protected by law.

Principle 1 of the declaration of UN Conference on Human Environment, 1972

proclaimed that man has the fundamental right to freedom, equality and adequate
conditions of life in an environment of a quality that permits a life of dignity and well
being. After this Stockholm Declaration, references to a right to decent, healthy and

15
 viable environment was incorporated in several Global and Regional Human Rights
Treaties and in resolutions of International Organisations.

6
Right to Environment - C As a Fundamental Right guaranteed in Indian Constitution

Environmental values or rights may be constitutionalised either explicitly by amending

the constitution or implicitly by interpreting the existing constitutional language to
include environmental protection. Immediately after the Stockholm Declaration, there
was a growing trend in national legal systems to give constitutional status to
environmental protection. India followed in the pursuit by amending the Constitution to
include environment specific provisions in 1976. The birth of right to environment was
the direct result of an inclusion these additional provisions.

The Indian Supreme Court, being one of the most active judiciaries in the world, also
created a landmark in the quest of international judicial activism by developing the
concept of right to healthy environment as a part of right to life under Art 21 of our
Constitution. Art 21 reads as follows:
No person can be deprived of his life and personal liberty except according to the
procedure established by law

6
http://www.legalserviceindia.com/articles/evn.htm

16
CHAPTER 4: Legislation for Environmental protection in India.

ENVIRONMENT(PROTECTION) ACT OF 1986

7
Environment Protection Act, 1986 is an Act of the Parliament of India. In the wake of the
Bhopal Tragedy, the Government of India enacted the Environment Protection Act of 1986
under Article 253 of the Constitution. Passed in March 1986, it came into force on 19
November 1986. The purpose of the Act is to implement the decisions of the United Nations
Conference on the Human Environments they relate to the protection and improvement of the
human environment and the prevention of hazards to human beings, other living creatures,
plants and property. The Act is an “umbrella” legislation designed to provide a framework for
central government coordination of the activities of various central and state authorities
established under previous laws, such as the Water Act and the Air Act.

8general powers of the Central Government under E.P.A. for the protection and
improvement of environment?

Section 3. Power of Central Government to take measure to protect and improve the
environment

1. Subject to the provisions of this Act, the Central Government shall have the power to take
all such measures as it deems necessary or expedient for the purpose of protecting and
improving the quality of the environment pollution.

2. In particular, and without prejudice to the generality of the provisions of sub-section (1),
such measures may include measures with respect to all or any of the following matters,
namely.

i) Co-ordination of actions by the State Governments, officers and other authorities.

a. Under this Act, or the rules made there under

or
b. Under any other law for the time being in force which is relatable to the objects of this Act.

7
EP act www.wikipedia.com
8
http://appcb.ap.nic.in/environment-acts-rules-environment-act/

17
ii) Planning and execution of a nation-wide programme for the prevention, control and
abatement of environmental pollution.

iii) Laying down standards for the quantity of environment in its various aspects.

iv) Laying down standards for emission or discharge of environmental pollutants from
various sources whatsoever. Provided that different standards for emission or discharge may
be laid down under this clause from different sources having regard to the quality or
composition of the emission lr discharge of environmental pollutants from such sources.

v) Restriction of areas in which any industries, operations or processes or class of industries,

operations or processes shall not be carried out or shall be carried out subject to certain
safeguards.

vi) Laying down procedures and safeguards for the prevention of accidents which may cause
environmental pollution and remedial measures for such accidents.

vii) Laying down procedures and safeguards for the handling of hazardous substances.

viii) Examination of such manufacturing processes, materials and substances as are likely to
cause environmental pollution.

ix) Carrying out and sponsoring investigations and research relating to problems of
environmental pollution.

x) Inspection of any premises, plant, equipment, machinery, manufacturing or other

processes, materials or substances and giving, by order, of such directions to such authorities,
officers or persons as it may consider necessary to take steps for the prevention, control and
abatement of environmental pollution.

xi) Establishment or recognition of environmental laboratories and institutes to carry out the
functions entrusted to such environmental laboratories and institutes under this Act.

xii) Collection and dissemination of information in respect of matters relating to

environmental pollution.

18
xiii) Preparation of manuals, codes or guides relating to the prevention, control and
abatement of environmental pollution.

xiv) Such other matters as the Central Government deems necessary or expedient for the
purpose of securing the effective implementation of the provisions of this Act.

3.) The Central Government may, if it consider it necessary or expedient so to do for the
purposes of this Act, by order published in the Official Gazettee, constitute an authority or
authorities by such name or names as may be specified in the order for the purpose of
exercising and performing such of the powers and functions (including the power to issue
directions under Section 5) of the Central Government under this Act and for taking measures
with respect to such of the matters referred to in sub-section(2) as may be mentioned in the
order and subject to the supervision and control of the Central Government and the provisions
of such order, such authority or authorities may exercise the powers or perform the functions
or take the measures so mentioned in the order as if such authority had been empowered by
this Act to exercise those powers or perform those functions or take such measures.

Section 4. Appointment of Officers and their powers and functions :

1. Without prejudice to the provisions of sub-section(3) of Section 3, the Central Government

may appoint officers with such designations as it thinks fit for the purpose of this Act and
may entrust to them such of the powers and functions under the Act as it may deem fit.

2. The officers appointed under sub-section(1) shall be subject to the general control and
direction of the Central Government or , if so directed by that Government, also of the
authority or authorities, if any, constituted under sub-section(3) of Section 3 or of any other
authority or officer.

Section 5. Power to give directions :

Notwithstanding anything contained in any other law but subject to the provisions of this Act,
the Central Government may, in the exercise of its powers and performance of its functions
under this Act, issue directions in writing to any person, officer or any authority and such
person, officer or authority shall be bound to comply with such directions.

19
Explanation – For the avoidance of doubts, it is hereby declared that the power to issue
directions under this section includes the power to direct

a) The closure, prohibition or regulation or any industry, operation or process.

or,
b) Stoppage or regulation of the supply of electricity or water or any other service.

Section 6. Rules to regulate environmental pollution :

1. The Central Government may, by notification in the Official Gazette, make rules in respect
of all or any of the matters referred to in Section 3.

2. In particular, and without prejudice to the generality of the foregoing power, such rules
may provide for all or any of the following matters, namely:

a.The standards of quality of air, water or soil for various areas and purposes.

b.The maximum allowable limits of concentration of various environmental pollutants

(including noise) for different areas.

c.The procedures and safeguards for the handling of hazardous substances.

d. The prohibition and restrictions on the handling of hazardous substances in different areas.

e. The prohibition and restrictions on the location of industries and the carrying on of
processes and operations in different areas.

f. The procedures and safeguards for the prevention of accidents which may cause
environmental pollution and for providing for remedial measures for such accidents

other notable act include wildlife protection act 1972 , the air(prevention and control of
pollution) act of 1981 , the water(prevention and control of pollution) act of 1974 , the atomic
energy act of 1962.

20
CHAPTER 5: NGT: National Green Tribunal.

9
The NGT was established on October 18, 2010 under the National Green Tribunal Act 2010,
passed by the Central Government. The stated objective of the Central Government was to
provide a specialized forum for effective and speedy disposal of cases pertaining to
environment protection, conservation of forests and for seeking compensation for damages
caused to people or property due to violation of environmental laws or conditions specified
while granting permissions.

Structure

Following the enactment of the said law, the Principal Bench of the NGT has been
established in the National Capital – New Delhi, with regional benches in Pune (Western
Zone Bench), Bhopal (Central Zone Bench), Chennai (Southern Bench) and Kolkata (Eastern
Bench). Each Bench has a specified geographical jurisdiction covering several States in a
region. There is also a mechanism for circuit benches. For example, the Southern Zone
bench, which is based in Chennai, can decide to have sittings in other places like Bangalore
or Hyderabad.

10
The Chairperson of the NGT is a retired Judge of the Supreme Court, Head Quartered in
Delhi. Other Judicial members are retired Judges of High Courts. Each bench of the NGT
will comprise of at least one Judicial Member and one Expert Member. Expert members
should have a professional qualification and a minimum of 15 years experience in the field of
environment/forest conservation and related subjects.

Powers

The NGT has the power to hear all civil cases relating to environmental issues and questions
that are linked to the implementation of laws listed in Schedule I of the NGT Act. These
include the following:

1. The Water (Prevention and Control of Pollution) Act, 1974;

2. The Water (Prevention and Control of Pollution) Cess Act, 1977;
3. The Forest (Conservation) Act, 1980;

9
NGT www.Wikipedia.com
10
http://www.conservationindia.org/resources/ngt

21
 4. The Air (Prevention and Control of Pollution) Act, 1981;
5. The Environment (Protection) Act, 1986;
6. The Public Liability Insurance Act, 1991;
7. The Biological Diversity Act, 2002.

This means that any violations pertaining only to these laws, or any order / decision taken by
the Government under these laws can be challenged before the NGT. Importantly, the NGT
has not been vested with powers to hear any matter relating to the Wildlife (Protection) Act,
1972, the Indian Forest Act, 1927 and various laws enacted by States relating to forests, tree
preservation etc. Therefore, specific and substantial issues related to these laws cannot be
raised before the NGT. You will have to approach the State High Court or the Supreme Court
through a Writ Petition (PIL) or file an Original Suit before an appropriate Civil Judge of the
taluk where the project that you intend to challenge is located.

CHAPTER 5: Important case laws.

M.C. MEHTA vs. UNION OF INDIA

11
M.C. Mehta case is the famous tort law case which brought in the principle of absolute
liability.
Shriram Food and Fertilizers Industry a subsidiary of Delhi Cloth Mills Limited was
producing caustic and chlorine. On December 4th and 6th 1985, a major leakage of
petroleum gas took place from one of the units of Shriram Food and Fertilizers Limited in
the heart of the capital city of Delhi which resulted in the death of several persons that one
advocate practicing in the Tis Hazari Courts died.

The leakage was caused by a series of mechanical and human errors. This leakage resulted
from the bursting of the tank containing oleum gas as a result of the collapse of the structure
on which it was mounted and it created a scare amongst the people residing in that area.
Hardly had the people got out of the shock of this disaster when, within two days, another
leakage, though this time a minor one took place as a result of escape of oleum gas from the
joints of a pipe.

11
https://www.scribd.com/doc/44276462/Case-Brief-Mc-Mehta

22
12
Shriram Foods and Fertilizer Industries had several units engaged in the manufacture of
caustic soda, chlorine, hydrochloric acid, stable bleaching powder, super phosphate,
vanaspati, soap, sulphuric acid, alum anhydrous sodium sulphate, high test hypochlorite and
active earth. All units were set up in a single complex situated in approximately 76 acres and
they are surrounded by thickly populated colonies such as Punjabi Bagh, West Patel Nagar,
Karampura, Ashok Vihar, Tri Nagar and Shastri Nagar and within a radius of 3 kilometres
from this complex there is population of approximately 2, 00,000.

On 6th December, 1985 by the District Magistrate, Delhi under Section 133(1) of Cr.P.C,
directed Shriram that within two days Shriram should cease carrying on the occupation of
manufacturing and processing hazardous and lethal chemicals and gases including chlorine,
oleum, super-chlorine, phosphate, etc at their establishment in Delhi and within 7 days to
remove such chemicals and gases from Delhi. At this juncture M.C.Mehta moved to the
Supreme Court to claim compensation by filing a PIL for the losses caused and pleaded that
the closed establishment should not be allowed to restart.
How Did The Case Come Up Before This Hon’ble Bench
This writ petition under Article 32 of the Constitution had come before the court on a
reference made by a Bench of three Judges. The reference was made because certain
questions of seminal importance and high constitutional significance were raised in the
course of arguments when the writ petition was originally heard. The facts giving rise to the
writ petition and the subsequent events have been set out in some detail in the Judgment
given by the Bench of three Judges P. N. BHAGWATI, C.J.I., D. P. MADON AND G. L.
OZA, JJ. on 17th February 1986 (reported in AIR 1987 SC 965). The Bench of three Judges
permitted Shriram Foods and Fertilizer Industries to restart its power plant as also plants for
manufacture of caustic soda and chlorine including its by-products and recovery plants like
soap, glycerin and technical hard oil, subject to the conditions set out in the Judgment.

While the writ petition was pending another applications were filed by the Delhi Legal Aid
and Advice Board and the Delhi Bar Association for award of compensation to the persons
who had suffered harm on account of escape of oleum gas. These applications for
compensation raised a number of issues of great constitutional importance and the Bench of

12
http://www.legalserviceindia.com/article/l265-M.C.-Mehta-v.-Union-of-India.html

23
three Judges therefore formulated these issues and asked the petitioner and those supporting
him as also Shriram to file their respective written submissions so that the Court could take
up the hearing of these applications for compensation. When these applications for
compensation came up for hearing it was felt that since the issues raised involved substantial
questions of law relating to the interpretation of Arts. 21 and 32 of the Constitution, the case
should be referred to a larger Bench of five Judges and thus the case stood in the Coram of
the Hon’ble bench consisting of P. N. BHAGWATI, C.J.I., RANGANATH MISRA, G. L.
OZA, M. M. DUTT AND K. N. SINGH, JJ.

Judgment

The first question which requires to be considered is as to what is the scope and ambit of the
jurisdiction of this Court under Article 32.

The Court wholly endorsed what had been stated by Bhagwati, J. in Bandhua Mukti Morcha
v. Union of India and Ors. as regards the true scope and ambit of Article 32. It may now be
taken as well settled that Article 32 does not merely confer power on this Court to issue a
direction, order or writ for enforcement of the fundamental rights but it also lays a
constitutional obligation on this Court to protect the fundamental rights of the people and for
that purpose this Court has all incidental and ancillary powers including the power to forge
new remedies and fashion new strategies designed to enforce the fundamental rights.

The next question which arises for consideration on these applications for compensation is
whether Article 21 is available against Shriram which is owned by Delhi Cloth Mills Limited,
a public company limited by shares and which is engaged in an industry vital to public
interest and with potential to affect the life and health of the people. The issue of availability
of Article 21 against a private corporation engaged in an activity which has potential to affect
the life and health of the people was vehemently argued by counsel for the applicants and
Shriram.

The Court traced the evolution of the Doctrine of State Action to ascertain whether the
defendants in this case fall under the definition of the term state, as provided under Article
12, or not. The Court also looked into the Industrial Policy of the Government. Under the
Industrial Policy Resolution 1956 industries were classified into three categories having

24
regard to the part which the State would play in each of them. The first category was to be the
exclusive responsibility of the State. The second category comprised those industries which
would be progressively State owned and in which the State would therefore generally take the
initiative in establishing new undertakings but in which private enterprise would also be
expected to supplement the effort of the State by promoting and development undertakings
either on its own or with State participation. The third category would include all the
remaining industries and their future development would generally be left to the initiative and
enterprise of the private sector.[3]

If an analysis of the declarations in the Policy Resolutions and the Act is undertaken, we find
that the activity of producing chemicals and fertilisers is deemed by the State to be an
industry of vital public interest, whose public import necessitates that the activity should be
ultimately carried out by the State itself, in the interim period with State support and under
State control, private corporations may also be permitted to supplement the State effort. The
argument of the applicants on the basis of this premise was that in view of this declared
industrial policy of the State, even private corporations manufacturing chemicals and
fertilisers can be said to be engaged in activities which are so fundamental to the Society as to
be necessarily considered government functions.

Bhopal gas tragedy

13
The Bhopal gas tragedy is, till date, the world’s worst industrial disaster. It occurred in
December of 1984 at Bhopal in Madhya Pradesh. The tragedy was a result of the leak of the
methyl isocyanate (MIC) gas from the Union Carbide India Ltd (UCIL) plant which
manufactured pesticides. On the night of December 2-3, 1984, there was a leak of the MIC
gas which is considered to be the most toxic chemical in industrial use. All around the city of
Bhopal, people were exposed to this gas and the immediate effects of inhaling the gas were
coughing, vomiting, severe eye irritation and a feeling of suffocation. Thousands of people
died immediately and lakhs of people sustained permanent injuries.

Background And Effects Of The Leakage: - The MIC in the Union Carbide Plant was
primarily used for the production of carbaryl, which is a pesticide. It is alleged that most of
the safety systems were not functioning and that most of the safety valves were in poor
condition around the time the incident took place. During the night of December 2-3, 1984,
13
http://www.bmhrc.org/Bhopal%20Gas%20Tragedy.htm

25
large amounts of water entered into the tank numbered 610 which contained about 42 tonnes
of methyl isocyanate. At the time, workers were cleaning out pipes with water, and some
claim that owing to bad maintenance and leaking valves, it was possible for the water to leak
into tank 610. This resulted in an exothermic reaction which caused the temperature and the
pressure inside the tank to increase. Due to this urgent venting of pressure, large volumes of
MIC gas were released into the atmosphere. The gases flooded the city of Bhopal, causing
great panic as people woke up with a burning sensation in their lungs. Thousands died
immediately from the effects of the gas and many were trampled in the panic. The long term
health effects of the gas include visual impairment, blindness, respiratory difficulties,
immune and neurological disorders, lung injury, female reproductive difficulties and birth
defects among children born to affected women.

The Legal Battle: - In the February of 1985, the Indian Government filed a case in the U.S
Court for a claim of $3.3 billons against the Union Carbide Corporation. But by 1986 all of
these litigations in the U.S District were transferred to India on the grounds of forum non
conveniens. It means that the case should be transferred to a more convenient forum so that
the trial proceeds smoothly. Meanwhile in March 1985, the Bhopal Gas Leak Disaster
(Processing of Claims) Act was passed which empowered the Central Government to become
the sole representative of all the victims in all kinds of litigations so that interests of the
victims of the disaster are fully protected and the claims for compensation are pursued
speedily. In the year 1987, cases were filed in the Bhopal District Court which ordered the
Union Carbide Corporation to pay 350 crores as interim compensation. But the interim order
could not be decreed and therefore the UCC refused to pay the amount. Later on, at the High
Court, this interim compensation amount was reduced to 250 crores. Both the Union of India
and the UCC preferred appeals by special leave against this High Court's order and apart
from that a criminal proccedings was also intiated against the union carbide.

The Settlement Order: - But a major twist to these legal proceedings came through the
settlement order which was stroked out between the Indian Government and the Union
Carbide in an out of Court settlement in February 1989. Through this deal the liability of the
Union Carbide was fixed at $470 millions in full and final settlement of all claims, rights, and
liabilities arising out of the disaster. The terms of the settlement were such that it limited

26
liability under all future claims as well, whether they were civil or criminal. This would mean
that henceforth, all kinds of liability arising out of the disaster could be fixed only upon the
Government of India and the Union Carbide would be held liable only to the extent of $470
millions.

The Judgment: - But all of these contentions were rejected and all the accused were found
guilty and were subjected to imprisonment and were also liable to fine. But these orders could
not be enforced as some of the accused did not appear in the Court. Mr. Warren Anderson,
who was the chairman of the UCC at the time the disaster took place, is still absconding and
all requests for his extradition still remain unsuccessful as the U.S Government rejected it

Conclusion: - 14
The tragedy is still considered to be the world’s worst industrial disaster. To
prevent such events from occurring in the future, the government should thoroughly check
and regulate such industries. They should be placed under constant surveillance and the
activities of such industries should be monitored at least once in every six months. Any kind
of repair in any of the machines or equipments should be immediately attended to. The
government should take it upon itself to make sure that everything is functioning properly.

Apart from this, the government should also make sure that there is a proper mechanism for
compensation to the victims. It should ensure speedy justice and should make sure that proper
relief is given to the victims.

In the event of such a large scale disaster as Bhopal, the questions like who is right and who
is wrong and who was negligent and who was not become totally irrelevant in the plight of
thousands of people who get affected in one single night.

It is totally unjustifiable to leave even a single victim without providing relief. Hopefully,
such incidents should never occur again, and even if they do, we should not forget the lessons
from Bhopal and we should make sure that any law capping the limit on the liability of such
large magnitude disasters should be declared as unconstitutional.

14
Five past midnight by Dominique Lapierre and Javier Moro

27
Chapter 6: Effectiveness of the existing laws: A critical analysis and
Suggestions.

In India the increasing economic development and a rapidly growing population that has
taken the country from 300 million people in 1947 to more than one billion people today is
putting a strain on the environment, infrastructure, and the country’s natural resources.
Industrial pollution, soil erosion, deforestation, rapid industrialization, urbanization, and land
degradation are all worsening problems. Overexploitation of the country's resources be it land
or water and the industrialization process has resulted environmental degradation of

28
 15
resources. India's per capita carbon dioxide emissions were roughly 3,000 pounds (1,360
kilograms) in 2007, according to the study.

Here we need to work harder in implementing the laws and put sufficient force behind the
various issues we have while handling environmental population in our country

1: Review of standards for pollution and control.

The magnitudes of environmental damages resulting from overexploitation of natural

resources and pollution are depending on carrying capacities of the ecosystems, and the levels
of environmental standards chosen by different States and their enforcements. There is
therefore a need for information gathering and processing to manage the environment.

2: Handling E waste.

there is an unprecedented increase in the e-wastes generated across the country. No separate
guidelines have been developed for handling and disposal of these wastes .Safe handling and
disposal of these wastes are extremely important and critical.

3.Sewage pollution management.

Legislation for effective sewage management for creating sewage treatment plants are
required.

4. The existing legal provisions are inadequate to control the enormous problems of
environmental pollution of various types in the country. Therefore, the judiciary has to play a
more active and constructive role. This has become all the more essential in view of the lack
of awareness

in the masses of the pollution problems; lack of planning and the plenty of the industries and
the local bodies in this regard. New jurisprudential techniques have to be devised to deal
adequately with the problems of pollution control and protection of environment.

5. Environmental law should be implemented effectively by adopting new instruments,

mechanisms and procedures like environmental impact assessment and environmental audit
15
WHO economic survey

29
and incorporate environmental objectives in manufacturing processes, minimum usage of
hazardous materials and toxic chemicals, careful usage of toxic gases will reduce
environmental load.

6. Legal provisions granting a perspective right to pollute air and water should be construct
restrictively by the courts. Legal provisions intended to prevent or control pollution should be
interpreted in such a way that even the subtle invasions of the anti pollution laws are covered.

7. Government must initiate the programmes to create public awareness with regard to
relation between human rights and environmental protection and also related laws

CHAPTER 7: Conclusion

Environmental laws of our nation has very ancient origin there have been provisions for
environment protection in kautilya arathashastra , asoka 5th pillar edict and various old
legislation In the current times too our constitution mandates environmental protection.

30
 Our government has been successful in taking out many schemes and project for the
task without much hurdles and over the years for example odd and even scheme ,
national mission to save ganga. we have witness increased international participation of
india in various conferences and conventions for the purpose for example COP 21 ,
earth summit , Kyoto protocol etc and we have given our ratifications to the conditions
to most of them. There is a significant progress in providing legal protection to
environment but there are several loopholes. Though under Indian
legislative environmentalism there are many enactments such as Water
Act, Air Act, the Forest conservation and the recent comprehensive
Environment (Protection) Act, they are inadequate to deal with present
contingency. India is in need of a new effective legislation for this
21st century and venture to have the U.S model of legislative
planning and open public scrutiny. The principle of sustainable
development must be recognized and emphasis on Environmental Impact
Assessment is needed. India being developing country it concentrate on
the socio-economic development but it must be in co-ordination with
environmental upgradation. Though, the Environmental (Protection) Act is
very ambitious and maintained different ingredients of the environment in
India, environment protection has been dominated more by socio-economic
constraints and the priority of development. Therefore, sometimes with several
compromises, the objective lost which has resulted in the failure of legislative
mission.
The rapid growing population and economic development is leading to
a number of environmental issues in India because of the uncontrolled growth
of urbanization and industrialization, expansion and massive intensification of
agriculture, and the destruction of forests. India population is about 1.26 plus billion the
year 2017. The projected population indicates that India will be the first most populous
country in the world and China will be ranking second in the year 2050. India having
18% of the world's population on 2.4% of world's total area has greatly increased the
pressure on its natural resources but India is not the top three carbon emitter these places
are taken by china , USA and EU(including united kingdom) still being home to a
humongous population we have to tackle this issue for the health and safety of the
people It is high time that the general public, public entities, state and central
government realize the damage, which our developmental process has made to

31
 the living environment. The extent is such that it cannot be resorted. There a
396
necessity to think about the needs of present and future by compulsion and
also need to balance the public interest and environment protection. It is to be
noted that unless the humanity rises to the occasion for the prevention and
control of the pollution and protection of environment with necessary zeal and
speedy trial, the progressive and prosperous living and to procure welfare state
will become a nightmare.
There is still hope for us. We can, to a certain degree, reverse the
process of degradation of our surroundings, for Mother Earth is forgiving and
able to heal her wounds if we do not inflict more grievous ones on her. As
Paul Bigelow Sears said, “How far must suffering and misery go before we
see that even in the day of vast cities and powerful machines, the good earth
is our mother and that if we destroy her, we destroy ourselves.” So we should
act today for a better tomorrow for our childrenand observe proper obedience to already
present legislation while working towars better legislations.

BIBLIOGRAPHY

Books referred

1.The Bhopal Case and the Development of Environmental Law in India By C. M. Abraham and
Sushila Abraham.

32
2.Environmental Law and Policy in India: Cases, Materials and Armin Rosencranz, Shyam
Divan, Martha L. Noble .

3.Environmental law in India by P.Leelakrishnan.

4. analysis of existing law in india

5. Five past midnight by Dominique Lapierre and Javier Moro

6. ENVIRONMENTAL LAW: ITS DEVELOPMENT AND JURISPRUDENCE By Madan

B. Lokur Judge, Delhi High Court

Websites referred

1. http://envfor.nic.in/public-information/schemes-and-programmes
2. http://www.legalserviceindia.com/article/l159-Environmental-Degradation-and-its-
Protection.html
3. The wire -what lies behind environmental law making.?
4. www.quora.com

33