8.fundamental Principles of Environmental Law
8.fundamental Principles of Environmental Law
8.fundamental Principles of Environmental Law
1
Union of India Vs. Union Carbide Corporation, ( 1986) 2 Comp LJ 169
2
AIR 1987 SC 1086
3
(1868) L.R. 3 H.L. 330
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o Eg. Green Vs.Chelsea Water works Co. Ltd. Being Water
supply authority under law. Escape of water-no
liability.
▪ Vis Major-Act of God
o Natural disasters, beyond the control of the plaintiff
▪ Volenti non fit injuria
o Sports injury- Adventurous ventures.
▪ Plaintiff’s fault
o Plaintiff’s horse trespass into the property of
defendant and ate some poisonous leaves- no liability.
▪ Act of third party
o Reservoir overflowing due to the emptying of drain by
third person through it. Not liable.
➢ Absolute liability is the strict liability itself, without any of the given
exceptions.
➢ Evolved in Oleum gas leak case4 by Supreme Court of India and held: “The
enterprises is strictly and absolutely liable to compensate all those
who are affected by the accident and such liability is not subject to
any of the exemptions which operate vs-a-vis the tortuous principle
of strict liability in Reylands Vs. Fletcher.”
➢ Union Carbide Corporation Vs.Union of India5.-Bhopal Gas Tragedy-1984- A
pesticide manufacturing company- Methyl Iso Cynade(MIC) 3000
persons dead- 5-6 lakh people injured and permanently disabled.
World’s worst industrial disaster. Held to hold Absolute Liability.
➢ Indian Council for Enviro Legal Action Vs. Union of India6(Sludges Case)- Sludge
out of manufacture of Hydrochloric Acid[HCl].
o Held: “According to this rule, 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.”
o The industries are absolutely liable not only for the remedial action
of safely disposing of the sludge, but also for the loss and suffering
sustained by the villages, although the quantum of damages could
be determined by a competent civil court.
➢ This doctrine has almost attained statutory liability status.
➢ Public Liabilities Insurance Act, 1991 (6/1991) has given statutory recognition
to this doctrine.
4
M.C.Mehta Vs. Union of India(AIR 1987 SC 1086)
5
(1991) 4 SCC 584
6
AIR 1996 SC 1466
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o U.P.State Electricity Board Vs.District Magistrate, Dehradun7,
Allahabad High Court held that high tension wire hanging at
low height causing death holds absolute liability and ordered
for compensation. Electricity was held to be a hazardous
substance.
➢ The National Environment Tribunal Act 1995 is another instance of
statutory recognition of Absolute Liability. For damages arising out
of accidents that occur while handling hazardous substances.
POLLUTER PAYS PRINCIPLE
➢ Originally considered as an economic and administrative tool to restrain
and control the pollution problem.
➢ Recently have been recognised as a powerful legal tool to combat
environmental pollution and associated problems.
➢ Applied in the Oleum gal leak case8 against the Shriram Food and Fertilizer
Corporation.
➢ Rio Declaration –in Earth Summit- 1992- Principle 16; “National authorities
should endeavour to promote the internalization of environmental
costs and the use of economic instruments, taking into account the
approach that the polluter should in principle bear the cost of
pollution with due regard to the public interest and without
distorting international trade and investment.”
➢ Vellore Citizen Welfare Forum Vs. UOI9: Polluter pays principle is essential
feature of Sustainable Development.
o Means that the absolute liability for harm to the
environment extents not only to compensate the victims of
pollution, but also the cost of restoring the environmental
degradation.(How much to pay???)
➢ Accepted as part of the law of the land- as has been accepted as
customary international law.
➢ Against the tanneries- formed Loss of ecology authority- directed to
determine and recover from the polluters, cost of reversing the
damaged environment- apart from the compensation to the
individuals.
➢ M.C.Mehta Vs. Union of India10 Applied this principle for saving yellowing
and decaying Taj Mahal.
7
AIR 1998 All 1
8
Ibid
9
(1996) 5 SCC 647
10
(AIR 1997 SC 734)
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➢ S.Jagannath Vs. UOI11.- applied this principle in Shrimp Culture industry.
Ordered for compensation to the individuals and also to contribute
for reversing the damage caused to ecology by contributing to the
“Environment Relief Fund.”
PRECAUTIONARY PRINCIPLE
➢ Assimilative Capacity – concept- prior to 1972
o Environment having assimilative process, absorbs itself the shock of
pollution, but beyond certain limit the pollution may cause damage
to the environment. It require efforts to repair at that point of time.
o The role of law begins only when that limit/point is crossed, not
prior.
➢ But action against pollution cannot wait for investigation of it's quality,
quantity, concentration and boundaries.
➢ Hence there was a shift from Assimilative capacity theory to
Precautionary Principle.
➢ The development in the scientific advancement in ecology and
environmental studies has helped to anticipate and mitigate the
environmental impacts, resulting in implementing precautionary
principle.
➢ Rio Declaration –in Earth Summit- 1992- Principle 16; “In order to protect
the environment, the precautionary approach shall be widely applied
by states according to their capabilities. Where there are threats of
serious or irreversible damage, 12lack of full scientific certainty shall
not be used as a reason for postponing cost-effective measures to
prevent environmental degradation”.
➢ Vellore Citizen Welfare Forum Vs. UOI13: Declared that precautionary
principle is an essential feature of sustainable development.
o Defined the precautionary principle in the following terms:
▪ Environment 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.
11
(AIR 1997 SC 811)
12
Endosulfan case
13
(1996) 5 SCC 647
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▪ The ‘onus of proof’/ the ‘burden of proof’ is on the actor or the
developer/industrialist to show that his action is
environmentally benign14.
14
=gentle, caring, benevolent.
15
AIR 1980 SC 470
16
(AIR 1997 SC 734)
17
AIR 1999 SC 912
18
S.O.85(E) dated 29/01/1992. ( Amended from time to time)
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➢ Roman Jurisprudence- evolved the doctrine of public trust – Certain
common properties such as rivers, seashores, forets and the air were
held by Government in Trusteeship for the free use of the public.
o Res nullious- owned by none
o Res communious- owned by everyone.
➢ Under English(Kingdom)law, the sovereign(Crown/King) owned these
resources. There was no resource or property without ownership. In
case of no personal ownership, the property vests with the
sovereign.
o So there were only two types of ownership, either private
owned or Government (State) owned.
o Deemed to be held in trust by the Crown for the benefit of
the public.
o “Riparum usus publicus est jure gentium sucut ipsuis fluminis”= the
use of river banks, by the law of nations is public, like that of
the stream itself.
➢ M.C.Mehta Vs.Kamalnath19 ...
o Facts of the case- River Beas (HP-Punjab)– The present MP Chief
Minister and the then Minister of Environment and Forest
through his family company- Span Motels Pvt.Ltd. – built a
club on the river bank- Huge forest lands were encroached
upon-later regularised and leased to the company, when he
was the minister for environment and forest.
o The course of the river was diverted for constructing this
club.
➢ The Supreme Court of India applied Public Trust Doctrine and adopted this
as part of our legal system.
➢ Applied this doctrine in K.M. Chinnappa Vs. UOI20 petition in case of
renewal of mining leases granted to Kundrekukh iron ore company
in Kundremukh National Park.
➢ Prof Sax21- imposes following three restrictions upon the state authority:
o 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;
o The property may not be sold even for a fair price;
o The property must be maintained for particular types of uses.
19
(1997) 1 SCC 388
20
AIR 2003 SC 724
21
Joseph L.Sax- in “ public Trust Doctrine in natural resource law: effective judicial entervention” Michigan law
Review, Vol-68, Part-I.
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➢ M.I.Builders Ltd Vs.Radhey Shyam Sahu22. SCI held that this doctrine will be
applicable, even in the absence of any statute to nullify the acts of
the state.
➢ Now being used as a legal and planning tool for fulfilment of sovereign’s
role as trustee of environment.
DOCTRINE OF SUSTAINABLE DEVELOPMENT
➢ “Development that meets the needs of the present without
compromising the ability of the future generations to meet their
own needs.”
➢ Brundtland report-
o Prime Minster of Norway – Ms. G.H.Brundtland- Chairman of –
World Commission of Environment and Development (WCED) –
➢ Salient features
o Intergenerational equity (Pass on what we received- only improving, no degradation)
o Conservation of natural resources.
o Environmental protection.
o Obligation to assist and co-operate
o Eradication of poverty
o Financial assistance to developing countries.
23
Rural Litigation and Entitlement Kendra Vs. State of UP ( AIR 1985 SC 652)
24
( AIR 1987 SC 965)
25
Indian Council for Enviro-Legal Action Vs. Union of India( 1996) 5 SCC 281
26
(1996) 5 SCC 647
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➢ Applied this doctrine in K.M. Chinnappa Vs. UOI27 petition in case of
renewal of mining leases granted to Kundermukh iron ore company
in Kundremukh National Park.
o ‘The balance has to be stuck between the two interests.’
o ‘The convenience and benefit to a larger section of the
people has to get primacy over comparatively lesser people’s
hardship.’
o ‘The development that meets the immediate needs, without
considering the needs of the future, is creating legacy of
environmental debt, which cannot be written off.’
➢ Johannesburg Declaration on Sustainable Development(2002):
o We the representatives of the peoples of the world,
assembled at the world summit on sustainable development
in Johannesburg, South Africa from 2-4 September 2002,
reaffirm our commitment to sustainable development
28
AIR 1981 SC 711
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responsibility to one another, to the greater community of
life and to our children.
➢ Applied this principle in Consumer Education and Research Society Vs.UOI29
➢ Applied this doctrine in K.M. Chinnappa Vs. UOI30 petition in case of
renewal of mining leases granted to Kundermukh iron ore company
in Kundermukh National Park.
o “While thinking of the present, the future should not be
forgotten, We owe a duty to future generations and for a
bright today, bleak tomorrow cannot be countenanced.
...................while today is yesterday’s tomorrow, it is
tomorrow’s yesterday as well.”
➢ Doon Valley case31:
o “It is always remembered that these are permanent assets of
mankind and are not intended to be exhausted in one
generation.”
29
(2002) 2 SC 599
30
AIR 2003 SC 724
31
Ibid
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