“Natural resources are the assets of the entire nation. It is the obligation of all concerned, including the Union Government and State Governments to conserve and not waste these resources. Article 48-A of the Constitution requires that the State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. Under Article 51-A, it is the duty...
“Natural resources are the assets of the entire nation. It is the obligation of all concerned, including the Union Government and State Governments to conserve and not waste these resources. Article 48-A of the Constitution requires that the State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. Under Article 51-A, it is the duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.” - T.N. Godavarman Thirumulpad v. Union of India, (2006) 1 SCC 1.
The Supreme Court and High Courts of the country have pronounced numerous judgments on environmental protection. Therefore, on the occasion of World Environment Day, it would be apposite to briefly discuss the important pronouncements.
The Legislature, the Executive, and the Policymakers Must Take Note of the Damage to the Environment on Account of Haphazard Developments
The Supreme Court observed that it is high time that the Legislature, the Executive and the Policy Makers at the Centre as well as at the State levels take note of the damage to the environment on account of haphazard developments and take a call to take necessary measures to ensure that the development does not damage the environment. It is necessary that a proper balance is struck between sustainable development and environmental protection. The Court appealed to the Legislature, the Executive and the Policy Makers at the Centre as well as at the State levels to make necessary provisions for carrying out Environmental Impact Assessment (EIA) studies before permitting urban development. The warning flagged by the city of Bengaluru needs to be given due attention by the legislature, executive and the policy makers and before permitting urban development, EIA of such development needs to be done. The Court prohibited the conversion of independent residential units as apartments in Chandigarh - Phase 1 to preserve the heritage status of Corbusier Chandigarh and directed that the copy of this judgment be forwarded to the Cabinet Secretary to the Union of India and the Chief Secretaries to all the States to take note of the observations in the judgment.
The Material Resources of the Community: Nature's Bounty Maintaining a Delicate Ecological Balance - Forests, Tanks, Ponds, Hillocks, Mountains, etc
The Supreme Court held that it is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain a delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life, which is the essence of the guaranteed right under Article 21 of the Constitution. The Court held that in the case at hand, the Government, including the Revenue Authorities, having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites.
The Right to Life: Article 21 of the Constitution of India and the Imperative of a Quality Environment.
The High Court of Karnataka held that the right to life inherent in Article 21 of the Constitution of India does not fall short of the requirements of qualitative life which is possible only in an environment of quality. Where, on account of human agencies, the quality of air and the quality of environment are threatened or affected, the Court would not hesitate to use its innovative power within its epistolary jurisdiction to enforce and safeguard the right to life to promote public interest. Specific guarantees in Article 21 of the Constitution unfold penumbras shaped by emanations from those Constitutional assurances which help give them life and substance.
The State as Trustee of Natural Resources: Ensuring Public Use, Enjoyment, and Legal Duty of Protection.
The Supreme Court 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 seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect natural resources. These resources meant for public use cannot be converted into private ownership. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The Court held that the doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax, the Public Trust Doctrine imposes the following restrictions on governmental authority: three types of restrictions on governmental authority are often thought to be imposed by the 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 be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses.
The Precautionary Principle and Polluter Pays Principle: Acknowledged as Law of the Land
The Supreme Court held that some of the salient principles of Sustainable Development, as culled out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and Financial Assistance to the developing countries. The Precautionary Principle and The Polluter Pays Principle are essential features of Sustainable Development. The Precautionary Principle, in the context of the municipal law, means: environmental measures — by the State Government and the statutory authorities — must anticipate, prevent and attack the causes of environmental degradation; 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; the onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign. The Polluter Pays Principle has been held to be a sound principle by the Supreme Court and once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried out. Consequently, the polluting industries are absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas. The Polluter Pays Principle as means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of Sustainable Development and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology. The Precautionary Principle and the Polluter Pays Principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty.
Sustainable Development Means to Maintain Delicate Balance between Industrialization and Ecology
The Supreme Court held that sustainable development means “a development which can be sustained by nature with or without mitigation. In other words, it is to maintain delicate balance between industrialisation and ecology. While development of industry is essential for the growth of economy, at the same time, the environment and the ecosystem are required to be protected. The pollution created as a consequence of development must not exceed the carrying capacity of the ecosystem. In order to protect sustainable development, it is necessary to implement and enforce some of its main components and ingredients such as precautionary principle, polluter-pays and public trust doctrine. The Court directed that, in future, before acquisition of lands for development, the consequence and adverse impact of development on environment must be properly comprehended and the lands be acquired for development that they do not gravely impair the ecology and environment and directed the appellant in this case to incorporate the condition of allotment to obtain clearance from the Karnataka State Pollution Control Board before the land is allotted for development. The Court observed that sustainable use of natural resources should essentially be based on maintaining a balance between development and the ecosystem. Coordinated efforts of all concerned would be required to solve the problem of ecological crisis and pollution. Unless we adopt an approach of sustainable use, the problem of environmental degradation cannot be solved. The concept of sustainable development was propounded by the “World Commission on Environment and Development”, which very aptly and comprehensively defined it as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. The survival of mankind depends on following the said definition in letter and spirit.
Environmental Justice Could Be Achieved Only If We Drift Away from the Principle of Anthropocentric to Ecocentric
The Supreme Court held that environmental justice could be achieved only if we drift away from the principle of anthropocentric to ecocentric. Many of our principles like sustainable development, polluter-pays principle, intergenerational equity have their roots in anthropocentric principles. Anthropocentrism is always human interest focussed and that non-human has only instrumental value to humans. In other words, humans take precedence and human responsibilities to non-human based benefits to humans. Ecocentrism is nature-centred where humans are part of nature and non-humans have intrinsic value. In other words, human interest does not take automatic precedence and humans have obligations to non-humans independently of human interest. Ecocentrism is therefore life-centred, nature-centred where nature includes both humans and non-humans.
The Development of Industry is Essential for the Economy of the Country, but at the Same Time the Environment and the Ecosystems Have to be Protected
The Supreme Court held that the Taj Mahal apart from being a 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 held that the Supreme Court has monitored this petition for over three years with the sole object of preserving and protecting the Taj from deterioration and damage due to atmospheric and environmental pollution. It cannot be disputed that the use of coke/coal by the industries emits pollution in the ambient air. The objective behind this litigation is to stop the pollution while encouraging development of industry. The old concept that development and ecology cannot go together is no longer acceptable. Sustainable development is the answer. The development of industry is essential for the economy of the country, but at the same time the environment and the ecosystems have to be protected. The pollution created as a consequence of development must be commensurate with the carrying capacity of our ecosystems. The emissions generated by the coke/coal consuming industries are air pollutants and have damaging effect on the Taj and the people living in the Taj Trapezium Zone (TTZ). The atmospheric pollution in TTZ has to be eliminated at any cost. Not even one per cent chance can be taken when — human life apart — the preservation of a prestigious monument like the Taj is involved. In any case, in view of the precautionary principle as defined by the Supreme Court, the environmental measures must anticipate, prevent and attack the causes of environmental degradation. The onus of proof is on an industry to show that its operation with the aid of coke/coal is environmentally benign. It is, rather, proved beyond doubt that the emissions generated by the use of coke/coal by the industries in Taj Trapezium Zone are the main polluters of the ambient air.
The Concept of a Healthy Environment as a Part of the Fundamental Right to Life: Finding Acceptance alongside the Right to Development, Developed by the Supreme Court
The Supreme Court held that in today's emerging jurisprudence, environmental rights which encompass a group of collective rights are described as third-generation rights. The first-generation rights are generally political rights such as those found in the International Convention on Civil & Political Rights while second-generation rights are social and economic rights as found in the International Covenant on Economic, Social and Cultural Rights. The right to sustainable development has been declared by the United Nations General Assembly to be an inalienable human right. The 1992 Rio Conference declared that human beings are at the centre of concerns for sustainable development. Human beings are entitled to a healthy and productive life in harmony with nature. In order to achieve sustainable development, environmental protection shall constitute an integral part of development process and cannot be considered in isolation of it. The 1997 Earth Summit meeting of 100 nations in New York reflected these principles. The European Court of Justice, emphasised in Portugal v. F.C. Council the need to promote sustainable development while taking into account the environment. In Lopez Ostra v. Spain [303-c Eur Ct HR (Ser A) 1994] the European Court at Strasbourg has held that the result of environmental degradation might affect an individual's well-being so as to deprive him of enjoyment of private and family life. Under Article 8 of the European Convention, everyone is guaranteed the right to respect for his private and family life. The Inter-American Commission on Human Rights has found a similar linkage. The Commission found that Brazil had violated the Yanomani Indians' right to life by not taking measures to prevent the environmental damage. The Philippine Supreme Court dealt with the action against Government not to continue licensing agreements permitting deforestation so that the right to a balanced and healthful ecology in accordance with the rhythm and harmony of nature is not affected. The judgment was based on intergenerational responsibility. In Fundepublico v. Mayor of Bugalagrande, the Constitutional Court of Columbia held in favour of the right to healthy environment as a fundamental human right and treated the right as part of customary international law. The Court permitted popular-action mechanism. The Supreme Court of South Africa, in Wildlife Society of Southern Africa v. Minister of Environmental Affairs and Tourism of the Republic of South Africa dealt with the right to healthy environment. About 60 nations since 1990 have recognised in their Constitutions a right to a healthy environment as a corollary duty to defend the environment. Thus, the concept of a healthy environment as a part of the fundamental right to life, developed by the Supreme Court, is finding acceptance in various countries side by side with the right to development.
Preserving Vital Lands: Agricultural, Salt Pan, Mangroves, Wetlands, Forests, Village Common Purpose, and Public Purpose Lands Prohibited for Shrimp Culture Pond Construction
The Supreme Court issued a slew of directions to the Central Government for the protection of environment. It was directed to constitute an authority under Section 8(3) of the Environment (Protection) Act, 1986 which shall have all the powers necessary to protect the ecologically fragile coastal areas, seashore, waterfront and other coastal areas and specially to deal with the situation created by the shrimp culture industry in the coastal States/Union Territories. The authority so constituted by the Central Government shall implement the Precautionary Principle and the Polluter Pays Principle. The farmers who are operating traditional and improved traditional systems of aquaculture may adopt improved technology for increased production, productivity and return with prior approval of the authority constituted. The agricultural lands, salt pan lands, mangroves, wetlands, forest lands, land for village common purpose and the land meant for public purposes shall not be used/converted for construction of shrimp culture ponds. No aquaculture industry/shrimp culture industry/shrimp culture ponds shall be constructed/set up within 1000 mts of Chilka Lake and Pulicat Lake (including Bird Sanctuaries namely Yadurapattu and Nelapattu).
No Law or Authority Can Succeed in Removing the Pollution Unless the People Cooperate
The Supreme Court held that millions of our people bathe in the Ganga, drink its water under an abiding faith and belief to purify themselves and to achieve moksha, release from the cycle of birth and death. It is tragic that the Ganga, which has since time immemorial, purified the people is being polluted by man in numerous ways, by dumping of garbage, throwing carcass of dead animals and discharge of effluents. Scientific investigations and survey reports have shown that the Ganga which serves one-third of India's population is polluted by the discharge of municipal sewage and the industrial effluents in the river. The pollution of the river Ganga is affecting the life, health and ecology of the Indo-Gangetic Plain. The Government as well as Parliament both have taken a number of steps to control the water pollution, but nothing substantial has been achieved. No law or authority can succeed in removing the pollution unless the people cooperate. It is the sacred duty of all those who reside or carry on business around the river Ganga to ensure the purity of Ganga. Tanneries at Jajmau area near Kanpur have been polluting the Ganga in a big way. The Supreme Court has issued notices to them but in spite of notice many industrialists have not bothered either to respond to the notice or to take elementary steps for the treatment of industrial effluent before discharging the same into the river. Therefore, the Court issued directions for the closure of those tanneries which have failed to take minimum steps required for the primary treatment of industrial effluent and observed that the closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people.