Sustainable Development: (SOCIO Economic Dimensions of Environment and Polluter Pays Principle)
NOTE: The Questions May be as
· Explain the principle of absolute liability as propounded by Indian Judiciary.
· Discuss the role of Judiciary in protection of environment with the help of decided cases.
· Define sustainable development. Discuss the contribution of judiciary for the protection of environment
· Mehta Case in the protection of environment Bench
· Principles and Doctrine (By Supreme Court)
Answer:
· Introduction
· Definition
· Inter generation equity
· Indian Judiciary ( Polluter Pays Principle) and sustainable development
Introduction
Any development, whether economic, social or political must not harm or affect the environmental interests.
While development is necessary, it should not be at the cost of environmental pollution. One generation should not totally exploit the natural resources, which must be continuously kept for the benefit of future generations.
In Other words, development must possess both economical sustainability and ecological sustainability
Definition
Sustainable development is development that meets the needs of the present without compromising the ability of the future generations to meet their own needs
Sustainable development is new concept of economic growth. It involves progressive transformation of economy and society. All factors responsible for preventing sustainable development like poverty etc. must be eradicated.
The minerals, oil ores etc. if used abundantly, will reduce the stock available for future generations. So minimum use of such non-renewable sources must be made and alternative technologies to reduce the use of such resources must be found out.
Inter generation equity
Inter generation equity means the right of each generation to the benefits of the cultural and natural inheritances of the past generations. It also includes the duty of the present generation to preserve the cultural and natural heritage and pass it on to the future generations.
According to Brundland Report, the inter generation equity requires sustainable development i.e. development of the economic and social needs without affecting the environment so that the future generation continue to enjoy an environment free from pollution.
The non-renewable resource like fuels and minerals must not be fully depleted and sparingly used by the present generation so that it must be kept available for future generations also.
Indian Judiciary (Polluter Pays Principle) and sustainable development
NOTE: This below answer can be asked as separate question.
1. Introduction
2. Judiciary and Forests
3. Judiciary and Industrial Development
4. Judiciary and Urbanization
5. Judiciary and Vehicular Pollution
6. Judiciary and Stone crushing, quarrying etc.
7. Air Pollution
8. Water Pollution
9. Environmental Pollution
10.Public parks and Open space
11.Principles and Doctrines (by Supreme Court)
12.Public Interest Litigations (M.C. Mehta Vs Union of India)
13.Citizen’s suit under Environment Protection Act
Introduction
India has played and is playing a major role in Sustainable development and Environmental Protection. There is regular development of Law relating to the protection of environment.
The judgements have created a new field of study called “Environmental Jurisprudence”
The following rules have been laid through various judgement of judiciary in India
Judiciary and Forests
1. Supreme Court has issued directions to stop illegal cutting of trees for environmental protection.
Case : T.N. Godavarman Thirumulkpad Vs. Union of India (Godavarman Case)
In the likeness of removing infected trees, trees without diseases were also cut from the forest. In the process, dense forest of over 17000 sq. kms were removed.
The Supreme Court made a thorough study and laid down the following rules for delivering the judgement.
a. Running of saw mills or plywood mills within the forest must be stopped.
b. A comprehensive statement from all state Governments must be obtained regarding the fast forest activities and future programme to tackle the deforestation.
c. New licenses must not be issued for next 5 years
d. The forest department must prepare an active plan for forest protection
e. Illegal felling of trees must be punished.
f. Budget allocation for protection of wild life and for scientific management of forests must be made by the governments
2. Mining Operations in Reserve Forests must not be permitted.
Case: MC Mehta Vs Union of India, T. Bharat Sangh Vs Union India
In the above cases, The Supreme Court has held that no mining operation must be carried on within the reserved forest or protected areas.
3. The Tribals Called Adivasis is a prevailing community in the mostly the legal forest and forest areas. They enjoy traditional rights of forest and earn their livelihood from them. They are totally dependent on the forest.
The National Forest Policy 1980 emphasized the need to involve tribals in the forest development. They should be employed for development and growth of forest.
CASE: Pradeep Krishen Vs Union of India
Public Interest was filed to quash the notification of M.P. Government that tribals and villages as it affect the wild life in the area. But Supreme Court quash the notification as it protected the traditional rights of the tribals
Judiciary and Industrial Development
Industrial growth is essential for better living standards of human being. The industrialists extract materials from natural resources and convert them as products for human beings and as a by-product polluting the human environment.
The negative environmental factors of industrial activity are air, water, and land pollution. No Industrial development at the cost of affecting sustainable development is permitted.
Case: Union Carbide Vs. Union of India,(1998)
On 3 December 1984, the plant released toxic gas, exposing more than 500,000 people to toxic gases by a Union Carbides Chemical Plant. Between 3,500 and 25,000 people died as a result of contact with the cloud of toxic gas.
In 1998, the Supreme Court of India reached a settlement with Union Carbide: They had to pay 470 million US dollars to the Indian state.
The Supreme Court in deciding the case laid the principles of environmental jurisprudence
i) The Union Carbide Company was allowed to continue to function as the court was satisfied that all the safety and control measures had been fully complied with by the company.
ii) The Supreme Court held that such private companies will be impliedly treated as Sate within the meaning of article 12 of the constitution and For public interest litigation is allowed under article 32 or 226 of the constitution against these companies.
iii) Industries should also maintain highest standard of safety and absolute liability to compensate for any harm or injury to them.
The Rule in CASE: Rylands Vs Fletcher, it is wrong to perceive that an industry ca do anything as it likes so long as it compensates the people for their losses.
iv) The principles to take precautionary measures, “polluter pays”, are applicable as regards the environment and victims of environmental pollution are concerned.
Case: V. Lakshmipathy Vs State of Karnataka
The Karnataka High Court directed the municipal corporation stop the industries being set up in residential areas. Any tannery industry without “primary treatment plant” is not permitted to work and ordered to be closed by the Supreme Court.
Judiciary and Urbanization
Because of accelerated growth of cities, clean water, air, sanitation, transportation etc. become in adequate. More diseases are due to overcrowding, air pollution, street filth, lack of sewage systems, and increase in slum dwelling, cutting of trees, conversion of paddy fields into residential areas has caused industrial pollution.
Case: People United for better living in Calcutta Vs State of West Bengal, AIR 1993
The court held that that it is duty of the Court to balance between development programme and environment. Wet lands are important in maintenance of environmental equilibrium and necessary to preserve the environment.
Case: Ahmedabad Municipal Corporation vs Nawab Khan Gulab Khan (1997)
It was held that unauthorized encroachment of pavements affects pedestrian’s right to free passage, and the Municipal Corporation could remove such encroachments.
The Vacant places left for Open spaces and public parks are meant for recreation of people. The Court termed them as “LUNG Spaces” and meant to create ecological balance.
Judiciary and Vehicular Pollution
The Vehicular Traffic is increasing day by day especially in towns and cities and it is the major source of air pollution. It is estimated that 50% of air pollution is due to automobile traffic.
The Supreme Court in Case: Santosh Kumar Gupta Vs Secretary, Ministry of environment, New Delhi AIR 1998 has issued various directions to concerned State authorities to strictly enforce the provisions of Air Pollution Act, Motor Vehicles Act etc. and also directed to regulate the vehicular movement to prevent entry in certain restricted areas.
Judiciary and Stone crushing, quarrying etc.
High wastes due to indiscriminate quarrying, stone crushing and mining. It causes environmental degradation.
The Supreme Court in various judgements directed to stop mining operation in certain areas to protect environment and as safeguard of anti-pollution measure. It has even ignored the foreign exchange earnings due to the mining activity, if it affects “Sustainable Development”.
Air Pollution
Case: B.Venkatappa Vs B.Louis, AIR 1986
The Smoke and fumes were emanating from the chimney and it was causing health hazards to the occupier of the neighboring property.
The Andhra Pradesh High Court held that even in the absence of proof of injury or discomfort to the plaintiff, the smoke might be injurious to the health of all neighbours. Hence issued mandatory injunction that the release of smoke must forth with be stopped or direction changed upwards at high altitude.
Water Pollution
Case: Mukesh Textiles Mills (p) Ltd Vs H.R. Subramanya Sastry 1987
In the defendant’s Sugar factory, molasses were stored in tanks, Due to the burrowing (hole made by digging) activity of rodents, the molasses leaked to water channel and damaged the plaintiff’s paddy.
The High Court held that the defendant was liable to pay compensation on the principle of absolute liability i.e. even if there was no proof of negligence on the part of the defendant.
Environmental Pollution
Case: The Goa Foundation Vs Konkan Railway Corporation AIR 1992
The Konkan Railway laid railway line in the State of Goa. While laying the railway line, for a length of 105 kilometers.
So in 1991, the local people organized themselves as a committee and protested against Konkan Railway Corporation for the proposed alignment of the railway line. The main points raised by the petitioners were that existing alignment would cause flooding in coastal regions, destroy the fertile lands, harm the monuments of Old Goa, cause irreparable damage to the marshes through which the railway line passed.
High Court as well as Supreme Court dismissed the appeal filed by the Goa Foundation and held that the Konkan Railway Corporation can continue its railway line laying operation without hindrance from local people of Goa.
Public parks and Open space
Case: Bangalore Medical Trust Vs B.S. Muddappa AIR 1991
Certain areas were earmarked for public parks in the Bangalore City extension scheme by the City improvement Board of Bangalore.
However, as per the directions of the Chief Minister of the State, a park area was allotted to the appellant for hospital construction. The residents of the area filed a case before the high Court of the Karnataka and it allowed the petition as sustainable.
The Appellant preferred an appeal to the Supreme Court, however Supreme Court dismissed the appeal with costs and held that the public parks and open space in urban development were very important. Hence ultra vires and violate of article 14 of the Constitution.
Principles and Doctrines (by Supreme Court)
1. Public Trust Doctrine:
The doctrine is otherwise known as “Rule in M.C. Mehta Vs. Kamal Nath 1997”.
The Common natural resources like air, sea, water and the forest as a whole and individually have importance and benefits to the common man. Therefore these resources must be kept under the government ownership and they should not they subject of private ownership. This is called Public trust doctrine.
The famous case on this point is M.C. Mehta Vs Kamal Nath. The State government leased a riparian forest land for commercial purpose to a private company which has a Motel Located at the bank of river Bias. The motel management’s activities affected the natural flow of the river Bias.
The Court held that the State is ”Public Trust” of certain resources like air, sea, water and the forests which are of public importance and so that should not be made as a subject of private ownership. Here a state had committed a beach of “Public Trust”.
Rules regarding public trust doctrine:
The doctrine of public trust has following rules:
a) The Property coming under the trust must be used for public purpose.
b) It must be used for the particular purpose.
c) The natural resources meant for public use should not be transferred to private ownership.
d) For all natural resources meant for public use and enjoyment, the state must be the trustee.
e) The Public is the beneficiary of the sea-shore, running waters, air, forests, etc.
f) It must be made available for use by the general public.
g) It must not be sold even if it fetches high price.
Since the State is the trustee, it has the legal duty to protect the natural resources.
2. Green Bench(Green Judge):
Case: Vellore Citizen Welfare Forum Vs Union of India AIR 1996
There was large-scale pollution caused due to the high volume of discharge of untreated effluent by the high volume of discharge of untreated effluent by the tanneries in Tamil Nadu. They affected agricultural lands, waterways, rivers and also the underground water sources.
Because of this, the availability of drinking water had become scarce and the agricultural lands became unfit for cultivation. The Tannery owners contended that there was big foreign exchange earnings due to the tannery business.
The Supreme Court wanted to harmonize the economic development of the nation and the welfare of the people. So it asked the High Court to constitute a Special Bench –‘Green Bench’ to monitor and deal with cases on environmental matters.
Environmental Protection Fund:
In Vellore Citizen’s welfare Forum Vs. Union of India , the Supreme Court directed the Central Government to Constitute an environment protection fund as per the Polluter Pays Principle.
3. Precautionary Principle:
Any activity of the substance which poses a threat to the environment must be prevented in advance.
In other words, the Government must anticipate and prevent the causes of environmental degradation in advance. This is called ‘Precautionary Principle’. Environmental problem is a global problem and hence international co-operation and assistance is necessary.
If there are threats of serious and irreversible damage, then such acts should be studied thoroughly and after taking all precautionary steps to avoid environmental pollution, such acts must be allowed.
M.C. Mehta Vs. Union of India (1997)
i). In this case, the Supreme Court applied precautionary principle. The environmental pollution affecting Taj Mahal was considered by Supreme Court and held that there should be restriction of movement of visitors and vehicles within 500 meter zone around the Taj Mahal.
ii) The Supreme Court prohibited the mining and construction activities near lakes to protect them from environmental degradation.
4. “Polluter Pays” Principle:
It is the absolute liability of persons harming the environment to pay adequate compensation to the victims of pollution and bear the expenses of restoring the environment to its original position. This is called ‘the Polluter pays’ principle.
i. Case Indian Council for Enviro Legal Action Vs. Union of India ( Coastal Protection Case)
ii. Case: Union Carbide Vs Union of India (Bhopal Gas Leakage Disaster)
The Supreme Court observed that since the activity carried on by the industry was hazardous and inherently dangerous, the persons carrying on such hazardous activities must compensate all the losses sustained by the other persons.
The Polluter pays principle thus 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.
Public Interest Litigations (M.C. Mehta Vs Union of India)
M.C. Mehta is a public interest institution interested in the environmental protection and also the welfare of the public. This Institution have filed number of public interest litigation in its own name.
1. The Supreme Court issued directions for stone crushing activities in and around Delhi to avoid environmental pollution and to keep up the Sustainable development.
2. The Supreme Court observed that Delhi is one of the most polluted cities in the world and hence directed the shifting/ relocation of 168 industries, identified as hazardous / noxious/ heavy and large industries operating in Delhi to other towns.
3. The Supreme Court also has protected interest of workmen in the above shifting of industries. It used directions to pay package of compensations/ benefits to the workmen.
4. The environmental pollution affecting Taj Mahal was considered by Supreme Court and held that there should be restriction of movement of visitors and vehicles within 500 metre zone around the Taj Mahal.
The following principles were laid down in this case:
1. The larger and more prosperous the enterprise is the greater must be the amount of compensation payable by it.
2. To minimize hazards, chemical industries must be located is such areas where population is scarce.
3. A green belt of 1 to 5 km widths around such industries must be provided.
4. To assess environmental pollution an Ecological Sciences Research Group (ESRG) be set up who would act as an information bank.
5. An environmental Court be set up.
Citizen’s suit under Environment Protection Act
Citizen suits are lawsuits brought by individuals or nonprofit groups/organizations for violation of environmental laws. Since the enforcement machinery for environment protection is in adequate and ineffective the citizen suits are extremely useful for implementation of environmental laws.
Citizen suits have improved the enforcement of environmental laws over the past quarter century. There are counter suits filed by the polluters against the persons filing citizen suits and it is in the form of defamation, discrimination, etc.
Despite the counter effective measures, the citizen suits continue to be a valuable tool in environmental enforcement.
