Environmental Degradation and its Protection -- A Legal Perspectives

Avijit Roy, Sr. Associate, Corporate Law Group

“O Zone” -- A sound, first time heard by the homo-sapiens of this earth in the early Eighties. Some were confused and some were inquisitive. What is it? “O Zone layer” discovered by the scientists and sent an alarm signal all over the world about the impending danger and environmental disaster of our dear earth. “O Zone Layer” created by the emission of poisonous gases from the industrial hubs in the upper sphere of the atmosphere and through the said zones , the deadly Ultra Violet Ray find its easy access to the bed of the earth. As a result it creates deadly health hazards to all the living beings of this earth. This has awakened the mind of the people to do something to minimize and eradicate environmental disaster from this earth.

Thereafter “Kyoto Protocol” was signed by all the countries sans United States of America which ranked first as the industrial polluting country in the world and the said protocol has become effective with effect from 16th February’2005 and all signatory country agreed to abide by the norms to minimize and eradicate industrial pollution. “Environment” and its degradation and preservation have been a burning topic at present all over the world. In the last two decades, an increased concern for the purity of environment has been by many countries and witnessed a rapid and extensive legislative activity to check whatever that polluted the environment. In today’s scenario international community is very concerned and vigilant on its preservation all over the world.

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 the duty of every citizen to maintain hygienic environment. Many are the noteworthy judicial decisions that touched upon the various aspects environmental pollution and degradation and all these development have found an echo in India too. Article 21 of the Constitution of India envisages right to life as a fundamental right and therefore enjoyment of life and its attainment including the right to life with human dignity encompasses within its ambits. The protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life can not be enjoyed. Pollution of environment, ecological, air, water regarded as violation of Article 21. Therefore hygienic environment is an integral facets of right to healthy life. Recently, Supreme Court had made many land mark judgments for the preservation of environment, ecology, wildlife, forests ,etc.

Some of these are Taj Mahal case checkmating the pollution, forest of North-East case relating to ban on felling of trees, Church Gate case restricting noise pollution created by religious prayer through audio amplifier system, etc. Therefore enforcement of Article 21 of the Constitution of India has become an effective tool for the preservation of environment and ecology. For the preservation of environment, the Central Government and State Governments had enacted many statutes like, The Environment Protection Act’1986, Wildlife Protection Act’1972, Madras Town Nuisance Act’1889, etc. As a part to educate the people, the Central Government had launched National Environment Awareness Campaign through the Ministry of Environment and Forest every year since 1986 with the objective of creating environmental awareness at the national level.

Through the evolution of earth, nature was endowed with an environment which was conductive to the production of life and ultimately evolution of human life. Since that time environment consists of two components –

i) Physical environment – includes chemical and geographical, etc.
ii) Biological environment – consisting of plants and animals which are known as biosphere.

Broadly, environment may be divided into four major elements --- a) Land, b) Water, c) Air and d) Living organism.

Environmental Pollution occurs in various ways and pollution of air, water , land is alarmingly moving northwards. Pollution is categorized into the following division -
A. Pollution
Radiation Pollution --- For whatever purposes nuclear energy is used – be it for peaceful purpose or nuclear warfare – the physical and bio environment cannot get way with its hazards. These are the delayed effect of fall out and increasingly important hazards of peacetime user of radiation.

Air Pollution --- All most all chemicals released into air eventually find their way to atmosphere. Chemicals such as pesticides are often sprayed as mists which may drift for several kilometers from their point of application. Pollutants like asbestos fibres, which can cause virulent lung cancer which can occur many years after the actual exposure. Similarly, nitrogen oxides exhausted from the car are component of automobile smog and nickel and chromium containing dusts which can initiate lung cancer.

Water Pollution --- Pollution of fresh water is one of the most serious environmental problems for the world as a whole. Industrial process requires huge quantity of water but at the same time dilute waste products to the river. Serious sources of water pollution is the leaching of sulphide from mine working and dump and became toxic which flows down to river causing serious contamination of water and health hazards.

Soil Pollution --- Soil in a forest is liable to get eroded quickly through the rain or wind unless it is adequately covered by the vegetation. Researchers initially blamed the climatic condition, today suspicion focused on environmental pollution, particularly the acid rain caused auto and industrial emissions. Acid rain prevents micro organism in soil from converting organic debris into fertilizer.

Noise Pollution --- Noise usually defined as unwanted sound or sound without value. Noise as an environmental pollutant becomes an object of serious social concern. Yet noise is a persistent pollutant in many practical situations where noise sources cannot be suppressed and degrades the quality of life.

B. Ecosystems:
Environmentalists are worried over the ill effects of increased burning of fossil fuels and of late fire woods without equivalent plantation. Such burning emits carbon dioxide and changes the temperature pattern of the atmosphere by diffusion of heat into space , a phenomenon known as “Green House effect”.

Realizing the potential threat, “ CHIPKO MOVEMENT” was launched in the year 1970 at Gopeswar (Garwal district of Uttaranhal). Scores of neighbourly villages were divested by a flash flood in Alakananda river. There was clear evidence that the flood had been caused by man made erosion due to large scale felling of trees in this Himalayan region. When strong shower falls on the slope of the hill , they wash away the loose soil cover and only trees can hold the soil cover. Sri C.P. Bhatt, the leader of the “Chipko Movement”, at that point of time said that “We will embrace (chipko) the trees. If they want to cut them, their axes will first have to fall on us”. This was told to the forest contractors in March’1973 who came to Reni village near Tibetan border to cut the trees. Thus these tree hugging (Chipko) programme spread spontaneously and several eco-development camps were organized.

C. Wildlife
A major factor responsible for the decline of wildlife all over the world is trade and commerce. This aroused such concern that an international treaty was drawn up in 1973 to protect wildlife against such over exploitation and prevent international trade from threatening endangered species from extinction. The aforesaid treaty known as CITES, The Convention on International Trade in Endangered Species of Wild Flora and Fauna, and the said treaty came into force from 1st July’1975 and ratified by 120 countries.

The notion that, the public has a right to expect certain lands and natural areas to retain their natural characteristics finding its way into the law of the land. Ancient Roman Empire developed a legal theory known as the “Doctrine of the Public Trust”. 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 and such resources being gift of nature should be made freely available to everyone irrespective of the status in life. The public trust doctrine under the English Common Law extended only to certain traditional uses like such as navigation, commerce and fishing. The American Court in recent cases expanded the concept of The public trust doctrine and the observation of Supreme Court of United States of America in Monolake case (National Audubon Society –Vs- Supreme Court of Alpine country–33CAL 3d 419) clearly show the judicial concern in protecting all categorically important land, fresh water, wet lands

The observation therein to the effect that the protection of ecological value is among the purpose of public trust and may give rise to an argument that the ecology and the environmental protection is a relevant factor and the court in United States of America finally began to adopt this reasoning and doctrine. English Common Law includes Public Trust Doctrine as part of its juris product. Environmental Law has now become a specialized field. In the decision which was taken on the United Nations Conference on Environment and Development held at Rio de Janeiro in June’1992 in which India also participated and the States were called upon to develop natural laws regarding liability and compensation for the victims of pollution and other environmental damages. With increasing threats to the environmental degradation taking place in different part of the country, it may not be possible for any single authority to effectively control the same.

“Sustainable development” has come to be accepted as viable concept to eradicate poverty and improve the quality of human life. Essential feature of “Sustainable development” are as fellows –
i) Precautionary principle -- This principle in the context of municipal law means environmental measures by the State Government and the statutory authorities must anticipate, prevent and attack the causes of environmental degradation. The onus of proof is on the actor or the developer/industrialists to show that his action is environmentally benign. Precautionary principle has been accepted as part of the law of the land and Article 21,47, 48-A and 51-A(g) of the Constitution of India gave clear mandate to the State to protect and improve the environment and to safeguard the forest and wildlife of the country.

ii) The polluter Pay Principle – This principle is a sound principle and interpreted by the Supreme Court that absolute liability to harm to the environment extends not only to compensate the victims but also cost of restoring the environmental degradation. As such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.

Various laws has been framed in India for the protection of environment and some of these are cited below-
i) Section 268 to 290 of Indian Penal Code deals with public nuisances. Public nuisance means pollution of air, water, blasting, excessive smoke, filth and other polluting activities.
ii) Section 133 and 143 of Code of Criminal Procedure Code and Section 91 of Code of Civil Procedure envisages that a person may approach a Magistrate and District Judge respectively by filing a complain or petition about the public nuisance.
iii) Under Law of Torts , special damage can be claimed from nuisance maker/violator of environment.
iv) The Water (Prevention and Control of Pollution) Act’1974,
v) The Environment Protection Act’1986,
vi) Wildlife (Protection) Act’1972,
vii) The Air (Prevention and Control of Pollution) Act’1981,
viii) The Prevention of Cruelty of Animals Act’1960,
ix) The National Environment Tribunal Act’1995.

Problem of pollution is the outcome of urbanization, overpopulation and industrialization. In modern times, therefore, it needs more effective legal opinions to counter the above. Accordingly Indian parliament passed The Environment Protection Act’1986 to safeguard the environmental degradation. The Indian Penal Code has few provisions on the subject, but they are ineffective when faced with the problems of an industrialized society. The first problem to attract the attention of certain state legislation in India was water pollution. But it was only in 1974 that a Central Act was enacted on the subject to be followed by The Water (Prevention and Control of Pollution) Cess Act’1977 and thereafter most drastic law had been enacted as Environment (Protection) Act’1986. India first got the taste of environmental disaster by two catastrophes that befell India – the Bhopal disaster in 1984 and Sri Ram Fertilizer Plant leak in 1985.

The Bhopal Gas Leak Disaster (Processing of claims) Act’1985 gave the Central Government the sole authority to represent (in litigation) the victims of Bhopal for compensation claims against the Union Carbide Company. Sri Ram gas Leak did not generate legislative activity but prompted Mr. M.C.Mehta (On behalf of Hindustani Andolon) and certain other organizations to start to use the effective legal tool in the form of Public Interest Litigation (PIL). This gave the Supreme Court an opportunity to enunciate certain important doctrine on tort law, corporate law (particularly the civil liability of directors for wrongs committed by the corporate body).

Recently, Supreme Court has broadly and liberally interpreted the Article 21 and transgressed into the area of protection of environment and held that the protection of environment and citizen’s right to live in eco-friendly atmosphere interpreted as the basic right guaranteed under Article 21. Recently to mitigate the needs of environment related litigation, “Green Benches” had been constituted in many High Courts in the Country. Some of the following decisions of Supreme Court of India has a great ramification towards the protection and safeguarding the environment and maintain the ecological balance.

1. Vellore Citizen’s Welfare Forum –Vs- Union of India - (1996) 5 SCC 647
When the environmental pollution caused by tanneries in the State of Tamil Nadu, the Supreme Court held that it is not necessary for the Supreme Court to monitor these matters and the Madras High Court would be in a better position to monitor these matter and the Chief Justice of Madras High Court was directed to constitute special bench- “Green bench”, to deal with the cases related to environmental matter.

2. Indian Council for Enviro-Legal Action –Vs- Union of India – (1996) 3 SCC 212
This case relates to pollution created by private industrial houses and governments agencies and authorities had not taken any action to prevent the same. The Supreme Court intervened and found that the private industrial houses were flouting the provisions of law, viz, The Environment (Protection) Act’1986, The Water (Prevention and Control of Pollution) Act’1974, The Air (Prevention and Control of Pollution) Act’1981, The Hazardous wastes (Management and Handling) Rules’1989 and accordingly held that the right to life as guaranteed under Article 21 was invaded and seriously infringed by the private industrial houses.

3. B.L. Wadhera –Vs- Union of India – (1996) 2 SCC 594
This case relates to ecology non performance of mandatory duties of Municipal Corporation, like garbage clearance, scavenging and cleaning Delhi city. Supreme Court held that non availability of funds, machinery, etc. cannot be pleaded as non performance of statutory obligation. Direction issued to scavenged and clean Delhi city everyday and also appoint Municipal magistrates for trial of offence under Corporation Act.

4. Buffalo Graders Welfare Association –Vs- Maneka Gandhi – (1996) 11 SCC 35
In this case Idgah Slaughter House of Delhi was directed to stop functioning in the city w.e.f. 30.11.96 to stop unhygienic atmosphere in the residential locality.

5. M.C.Mehta –Vs- Union of India – (1996) 8 SCC 462
In this case Supreme Court held that mining activity in the vicinity of tourist resorts of Bad Kal Lake and Surajkund are bound to cause several impact on the ecology and directed that mining activity should be stopped within 3 km of the tourist resort.

6. Pradeep Kishen –Vs- Union of India – (1996) 8 SCC 599
In this case a PIL was filed against the order issued by the Govt. Madhya Pradesh permitting collection of tender leaves from the forest by the local villagers/tribals. However Supreme Court did not interfere with the said order but directed the authorities to look to the aspect that only bonafide villager can collect tender leaves and to take necessary steps to protect the shrinkage of forest.

7. Indian Council for Enviro-Legal Action –Vs- Union of–(1996) 5 SCC 281
In this case greater responsibility of High Court was emphasized for the easy monitoring such ecological matter of the respective states.

8. M.C.Mehta –Vs- Union of India – (1997) 2 SCC 411
This case was based on Polluters Pay Principle. In this case Calcutta tanneries discharging untreated poisonous effluents into the river of Ganges. Accordingly Supreme Court issued directions for unconditional closure of tanneries, relocation, payment of compensation by them for reversing the damage. Green Bench of Calcutta shall also further monitor the case.

9. T.N. Goda Varman Thiru Mulkpad –Vs- Union of India - (1997) 7 SCC 440
This matter relates to usefulness of modern Shrimp(Prawn) farming and traditional shrimp farming. Commercial aquaculture farming in the coastal area caused depletion of mangrove eco system. Supreme Court held that modern shrimp farming is violative of Environment Protection Act and cannot be permitted. However traditional farming is pollution free and directed to constitute High Power Authority to scrutinize each and every case.

10. M.C.Mehta –Vs- Union of India – (1997) 2 SCC 353
This is very famous case relating to preservation of Tajmahal at Agra. Industries situated near the Tajmahal Trapizium Zone (TTZ) are directed to use natural gas instead of coak or coal as the use of the same causes serious impact on the Tajmahal and people living in the area. Otherwise industries were directed to stop functioning and relocate to other area.

11. T.N. Goda Varman Thiru Mulkpad –Vs- Union of India – (1998)9 SCC 632
PIL was filed for conservation of forests and disposal / utilization of illegally felled timber.

12. World Saviours –Vs- Union Of India – (1998) 9 SCC 247
In this case it was directed that state electricity connection shall not be given to any industry without No Objection Certificate from the State Pollution Control Board.

13. M.C.Mehta –Vs- Union of India – (1998) 9 SCC 93
This case relates to destruction to the green belt within 500 meters of Tajmahal caused by the musical concern by “Yanni” troupe. Supreme directed authorities to strictly adhere to the direction of the Supreme Court to protect the sound, air and environmental pollution of the Tajmahal.

14. T.N. Goda Varman Thiru Mulkpad –Vs- Union of India – (1999) 9 SCC 151
Writ petition was filed for relocation of wood industries and ban for timber trade in the North Eastern States was filed . Supreme Court held that complete ban on timber trade is not feasible or desirable and directed the State governments of North Eastern states to notify industrial area for location of wood based industrial units.

15. Church of God (Full Gospel) –Vs- state of Tamilnadu –(1999) 9 SCC 121
In this case Supreme came down heavily on the practice of beating drums and use of loud speaker in places of worship. It was held that no religion prescribed this practice and observed that “In our view in the civilized society in the name of religious activities which disturb old and infirm persons, students or children having their sleeps in the early hours or during day time or other perform carrying other activity cannot be permitted. It should not be forgotten that babies in the neighborhoods are also entitled to enjoy their natural right of sleeping in peaceful atmosphere. Aged, sick people afflicted by psychic disturbances as well as children upto the age of six years are considered to be sensitive to noise. Their rights are also required to be honoured”.

16. Goa Foundation –Vs- Union of India (Decided by Supreme Court on 22-02-05)
Recently Supreme Court comprising the bench of Mr. Y.K Shabbarwal and Mr. P.P. Naolekar passed an order on 22-02005 directing the Central Government to issue directives to close down 218 industrial units across the country to close down for flouting environmental norms.

17. A PIL filed by this Author before the Hon’ble Gauhati High Court. (CR-4500/96)
A PIL was filed by this Author before the Hon’ble Gauhati High Court in the year 1996, against the unchecked growth of deadly poisonous plant called “Parthenium Histerophorous Linn” in the city of Guwahati. The above named plant was a serious hazard for public health and ecology. The said plant causes itching, skin deseases and naso bronchial allergies to the affected persons and animals Parthenium also prevents other harbecacious plant species from growing. The Hon’ble Gauhati High Court by order dated 7-12-98 directed the Health Department to create public awareness and also directed the municipal department to uproot and check the growth of the said plant. It was also directed that the health department shall also study the matter and to implant another plant named “Cassia Sericcia” to check the growth of “Parthenium”.

Therefore it appears from the aforesaid plethora of judicial decisions that the authorities concerned ought to have laid more emphasize for the betterment of condition of life of the people and necessity for preservation of social and ecological balances, avoidance of deforestation , maintenance of purity of atmosphere and prevent water from pollution. Judicial activism in this sphere is need of the hour especially when legislatures lags behind in removing the lacunae in the present legal mechanism and administration is still ill-equipped to meet the challenges.