CHANAKYA NATIONAL CHANAKYA NATIONAL LAW UNIVERSITY
PROJECT ON FUNDAMENTAL PRINCIPLES OF E NVIRONMENTAL NVIRONMENTAL LAW NVIRONMENTAL LAW E NVIRONMENTAL
SUBMITTED TO: HRISHIKESH MANU (FACULTY, E NVIRONMENTAL LAW )
SUBMITTED BY: PARTH OLL NO.770 R OLL
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TH
7
SEMESTER
ACKNOWLEDGEMENT The present project on to FUNDAMENTAL PRINCIPLES OF ENVIRONMENTAL LAW has been able to get its final shape with the support and help of people from various quarters. My sincere thanks go to all the members without whom the study could not have come to its present state. I am proud to acknowledge gratitude to the individuals during my study and without whom the study may not be completed. I have taken this opportunity to thank those who genuinely helped me. With immense pleasure, I express my deepest sense of gratitude to Mr. Hrishikesh Manu, faculty for Environmental law, Chanakya National Law University for helping me in my project. I am also thankful to the whole Chanakya National Law University family that provided me all the material I required for the project. I have made every effort to acknowledge credits, but I apologies in advance for any omission that may have inadvertently taken place. I would like to thank my parents and especially my elder sister without the blessing and and co-operation co-operation of which which the completion completion of the project project would not have been been possible. possible. Last but not least I would like to thank Almighty whose blessing helped me to complete the project
PARTH ROLLNO.770
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Table of Contents
INTRODUCTION .......................................................................................................................... 4 LEGAL SCENARIO RELATED TO ENVIRONMENT IN INDIA ............................................. 5 SUSTAINABLE DEVELOPMENT ............................................................................................... 7 PRINCIPLES RELATED TO ENVIRONMENT LAW- ............................................... ................ 9 1.Precautionary Principle ............................................................................................................ 9 2. Polluter Pays Principle .......................................................................................................... 12 3. Public Trust Doctrine- ................................................ ........................................................... 16 4 Public Liability Insurance- ................................................... ................................................. 18 5. Absolute Liability Principle- ................................................ ................................................. 20 CONCLUSION ................................................. ............................................................................ 21 BIBLIOGRAPHY………………………………………………………………………………..21
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INTRODUCTION A legal definition of the environment helps delineate the scope of the subject, determine the application of legal rules, and establish the extent of liability when harm occurs. The word environment is derived from an ancient French word environmrnt, meaning to encircle. By broadly applying to surroundings, environment can include the aggregate of natural, social and cultural conditions that influence the life of an individual or community. Thus, environmental problems can be deemed to include such problems as traffic congestion, crime, and noise. Geographically, environment can refer to a limited area or encompass the entire planet, including the atmosphere and stratosphere. Over the past several decades, growing public awareness of threats to the environment, informed by warnings of scientists, has led to demands that law protect the natural surroundings on which human well-being depends. Under growing pressure from national and international public opinion, governments began to demonstrate concern over the general state of the environment during the 1960s and introduced legislation to combat pollution of inland waters, ocean, and air, and to safeguard certain cities or areas. Simultaneously, they established special administrative organs, ministries or environmental agencies, to preserve more effectively the quality of life of their citizens. The Supreme Court in its decisions has relied on the directive principles to enlarge the scope and content of the fundamental rights, thereby bringing them within the ambit of 1
justiciable rights. Developments in environmental law paralleled this evolution within states, reflecting a growing consensus to accord priority to resolving environmental problems. Today, national and international environmental law is complex and vast, comprising thousands of rules that aim to protect the earth‟s living and non-living elements and its ecological processes. Environmental problems stem from two main categories of human a ctivities: 1) Use of resources at unsustainable levels, and 2) Contamination of the environment through pollution and waste at levels beyond the capacity of the environment to absorb them or render them harmless. The development of Indian environmental law has happened, for the most part, over the last three decades, with a significant level of polarization around the latter half of this period. Therefore, a paper detailing “recent developments in India” would necessarily involve a 1
http://www.conservationindia.org/ready-reckoner/the-constitutional-imperatives-in-protection-of-wildlife
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thorough discussion of most relevant environmental issues and their consequences. The development of the law in this area has seen a considerable share of initiative by the Indian judiciary, particularly the higher judiciary, consisting of the Supreme Court of India, and the High Courts of the States.
LEGAL SCENARIO RELATED TO ENVIRONMENT IN INDIA The beginnings of Indian environmental law were sown at the United Nations Conference on the Human Environment held at Stockholm in 1972, where India was a participant, leading to some sort of realization that a framework of laws was necessary to deal with environmental hazards that would result from the stage of development that India was entering in the 1970s. Prior to this phase, Indian environmental law mainly consisted of claims made against tortious actions such as nuisance or negligence. The Water (Prevention and Control of Pollution) Act of 1974 gave the statute book its first real foundation for environmental protection. Other major enactments followed in 1980 (The Forest (Conservation) Act), 1981 (The Air (Prevention and Control of Pollution) Act), and 1986 (The Environment (Protection) Act). The Forty-Second Amendment to the Indian Constitution in 1976 introduced principles of environmental protection in an explicit manner into the Constitution through Articles 48A and 51A(g). Article 48A, part of the Directive Principles of State Policy, obligated the State to protect and improve the environment. On the other hand, Article 51A(g) obligated citizens to undertake the same responsibilities. As far as legislative power was concerned, the Amendment also moved the subjects of “forests” and “protection of wild animals and birds” from the State List to the Concurrent List. The Stockholm conference is honored by references in the Air Act and the Environment Act – a result of effective applications of Article 253 of the Constitution, which gives the Parliament (India‟s central legislature) the power to make laws implementing India‟s international obligations, as well as any decision made at an international conference, association or other body. The National Environment Appellate Authority Act (1997) was enacted to enable the Union Government to establish the National Environment Appellate Authority. The Authority is empowered to hear appeals against orders granting environmental clearance in designated areas where industrial activity is restricted under the Environment Act. The National Environment 5|Page
Tribunal Act (1995) extends the principle of no-fault liability beyond the compensation limits prescribed under the Public Liability Insurance Act (1991). The Act deals with, inter alia, compensation related to accidents concerning toxic substances. The Tribunal set up under the Act has exclusive jurisdiction over claims of compensation in these circumstances. The relaxation from the rule of locus standii and emergence of PIL‟s can also be seen as an effective way of controlling environment problems at a higher level. The relaxation of the rule led to some important consequences, which were particularly pertinent to environmental matters. First, since it was possible that there could be several petitioners for the same set of facts dealing with an environmental hazard or disaster, the court was able to look at the matter from the point of view of an environmental problem to be solved, rather than a dispute between two parties. Second, the rule took care of the many interests that went unrepresented – for example, that of the common people who normally had no access to the higher judiciary. Also, the process brought into sharp focus the conflict of interest between the environment and development, and set the stage for a number of decisions that would deal with issues relating to this area in a more specific manner.
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SUSTAINABLE DEVELOPMENT Sustainable development has emerged as an important concern for mankind, following intensified damage to environment and socio-cultural integrity that has accompanied accelerated economic development in many regions of the world in post-World War II years. Mining in this scenario has attracted special attention as more than any other industrial activity, it tends to leave a strong negative impact on environment and society. However, a complete ban on mineral extraction is not a feasible option as modern society and civilization are heavily dependent on minerals and mineral production. The efforts instead should be to limit the negative consequences of mining through the application of the concept and principles of sustainable development to mining operations. The principle of sustainable development received impetus with the adoption of StockholmDeclaration in 1972, World Conservation Strategy prepared in 1980 by the World ConservationUnion (IUCN) with the advice and assistance of the United 2
Nations Environment Programme(UNEP), World Charter for Nature of 1982, Report of the World Commission on Environmentand Development under the chairmanship of Geo Harlem Brundtland (Brundtland Report), Our Common Future of 1987, the document Caring for the Earth; A Strategy for the SustainableLiving developed by the second world conservation project comprised of the representatives of the IUCN, UNEP and the Worldwide Fund for the Nature. According to The Brundtland Commission‟s definition, “sustainable development” is that pattern of development which “meets the needs of the present without compromising the ability of the future generations to meet their own needs.” In addition to emphasizing the intergenerational (and intragenerational) equity, this broad definition also covered two other key concepts. The first is the concept of “needs”, especially the needs of the world‟s poor which are seen to have overriding priority. The second concept is the idea of “limits” on the ability of the environment to meet the present and future needs. The Brundtland Commission also saw sustainable development as a process of change rather than a fixed state of harmony. “Sustainable Development”, however, is a concept that calls for changes in the attitudes and values that are responsible for making the current trends unsustainable. In that sense it represents an ethical position designed for political or public action. In spite of the term‟s somewhat oxymoron character there is a consensus or near-universal agreement that sustainability is a worthwhile 2
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goal to be pursued in this diverse and conflict-ridden social context. And it is also generally agreed that in broad terms, sustainable development means economic and social development that endures over the long run. Increasingly, there is a focus on the multi-dimensional nature of the concept comprising the three pillars: economic, environmental and social. Striving for sustainable development will inevitably involve conflict among economic, environmental and social goals which have to be managed and balanced.
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PRINCIPLES RELATED TO ENVIRONMENT LAW1. Precautionary Principle 3
The Supreme Court in Vellore Citizens’ Welfare Forum v. Union of India has explicitly recognized the precautionary principle as a principle of Indian environmental law. More recently, 4
in A.P. Pollution Control Board v. M.V. Nayudu , the Court discussed the development of the precautionary principle. Furthermore, in the Narmada case, the Court explained that “When there is a state of uncertainty due to the lack of data or material about the extent of damage or pollution likely to be caused, then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution.” „Precautionary principle‟ plays a significant role in determining whether developmental process is sustainable or not. „Precautionary principle‟ underlies sustainable development which requires that the developmental activity must be stopped and prevented if it causes serious and irreversible environmental damage. The emergence of precautionary principle marks a shift in the international environmental jurisprudence- a shift from assimilative capacity principle to precautionary principle. Precaution has variously been associated with the ideas that: 1) Scientific uncertainty should not be used as a reason not to take action with respect to a particular environmental concern; 2) Action should affirmatively be taken with respect to a particular environmental concern; 3) Those engaging in a potentially damaging activity should have the burden of establishing the absence of environmental harm; and 4) A State may restrict imports based on a standard involving less than full scientific certainty of environmental harm. The 1992 Rio Declaration, Principle 15, formulates “Precautionary Approach” as: 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, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation.
3
AIR1996SC2715. [1999] 2 SCC 718.
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Precautionary principle is a principle which ensures that a substance or activity posing a threat to the environment is prevented from adversely affecting it, even if there is no conclusive scientific proof lining that particular substance or activity to the environmental damage. The words „substance‟ and „activity‟ imply substance or activity introduced as a result of human 5
intervention. In Vellore Citizens Welfare Forum v. Union of India (Tamil Nadu Tanneries Case), about 900 tanneries in five districts of the State of Tamil Nadu were discharging enormous amount of untreated effluent consisting of about 170 different types of chemicals into agricultural fields, roadside, waterways and open land. About 35,000 hectares of land became partially or totally unfit for cultivation. The water in the area became unfit for consumption and irrigation purposes. In his judgment, Justice Kuldip Singh (known to be a Green Judge) observed that, “even otherwise once these principles are accepted as part of the Customary International Law, there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of municipal law, that the rule of customary international law, which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall also be followed by the Courts of laws of the country.” One of the significant directions given by the Supreme Court in this litigation was contained in an order passed in 1995 whereby some of the industries were required to set up effluent treatment plants. In another order passed in 1996, the Supreme Court issued notices to some of the tanneries to show cause why they should not be asked to pay pollution fine. The Supreme Court also recognized the Precautionary Principle, which is one of the principles of sustainable development. It was said that in the context of municipal law, the Precautionary Principle means:1. Environmental measures – To anticipate, prevent and attack the causes of environmental degradation. 2. Lack of scientific enquiry should not be used to postpone measures for prevention of environmental degradation. 3. The onus of proof is on the actor, developer or industrialist to show that his action is environmentally benign.
5
AIR1996SC2715.
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6
In Narmada Bachao Andolan v. Union of India , precautionary principle came to be considered by the majority of judges. The Court also took the view that the doctrine is to be employed only in
cases
of
pollution
when
its
impact
is
uncertain
and
non-negligible.
7
In M.C. Mehta v. Union of India , the Supreme Court once again followed the path of sustainable development and directed that the industries operating in Taj Trapezium Zone using a coke/coal as industrial fuel must stop functioning and they could relocate to the alternate site provided under the Agra Master Plan. It further stated that not even 1% chance could be taken when human life a part, the preservation of a prestigious monument like the Taj was involved. In Shobha Rama Subramanayyam v. The Member Secretary, Chennai Metropolitan Authority, The Court stated that the construction builders have a duty to use modes for digging foundation for multistory buildings, so that it does not cause noise pollution in the neighboring areas. The Precautionary Principle led to the evolution of the special principle of burden of proof mentioned in Vellore Citizens Welfare Forum. As per this special principle, the burden is on the person wanting to change the status quo to show that the actions proposed will not have an injurious effect, the presumption operating in favor of environmental protection. This concept of „reverse onus‟ requires that the burden of proof for safety rests on the proponent of a technology and not on the general public – a new technology should be considered dangerous unless proved otherwise. The Precautionary Principle is relatable to risk assessment and environmental impact assessment. Broadly, it postulates that decisions that may have an impact on the environment need to allow for and recognize conditions of uncertainty, particularly with respect to the possible environmental consequences of those decisions. Under the circumstances, it is essential to take preventive action or avoid effects, which may be damaging even if this cannot be proven.
6
(2000)10 SCC 664. (1996) 8 SCC 462.
7
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2. Polluter Pays Principle Polluter Pays Principle has become a popular catchphrase in recent times. 'If you make a mess, it's your duty to clean it up'- this is the main basis of this slogan. It should be mentioned that in environmental law, the 'polluter pays principle' does not refer to "fault." Instead, it favors a curative approach which is concerned with repairing ecological damage. It's a principle in international environmental law where the polluting party pays for the damage done to the natural environment. It is regarded as a regional custom because of the strong support it has received in most Organization for Economic Co-operation and Development (OECD) and European Community (EC) countries. International environmental law itself mentions little about the principle. In recent days, the polluter pays principle is seen as a way of internalizing pollution-related costs within the context of the economic rationality of the enterprise. There is a close relationship between a country's environmental policy and its overall socioeconomic policy. Furthermore, under this principle it is not the responsibility of government to meet the costs involved in either prevention of environmental damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. But State practice does not support the view that all de-pollution costs should be borne by the polluter, particularly where transnational dispute is involved. The first major reference to the Polluter Pays Principle (PPP) appeared 1972 in the OECD Guiding Principles Concerning International Economic Aspects of Environmental Policies (henceforth called OECD Guiding Principles). The PPP as a guiding principle across countries became necessary because some countries faced complaints by national firms about rising costs and a loss of international competitiveness following a national implementation of the PPP within their borders. The OECD Guiding Principles defines the PPP as an instrument for "allocating
costs
of
pollution
prevention
and
control
measures".
The polluter should bear these costs in order to achieve and maintain a "... acceptable state of environment" which is determined by the public authorities. The OECD Guiding Principles also state that the PPP should "... not be accompanied by subsidies that would create significant distortions in international trade and investment." This weak or standard definition of the PPP neither requires polluters to bear the costs of accidental damages, nor do they have to pay for residual pollution.
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The range of costs to be borne by the polluter has expanded over time. In 1989, the OECD suggested extending the PPP in order to cover the costs of accident prevention and to internalize the environmental costs caused by accidents. In 2001, the OECD Joint Working Party on Agriculture and Environment stated that according to the PPP "The polluter should be held responsible for environmental damage caused and bear the expenses of carrying out pollution prevention measures or paying for damaging the state of the environment where the consumptive or productive activities causing the environmental damage are not covered by property rights." This version of the PPP is referred to as the extended or strong PPP in the literature. Only one year later, the European Community followed the example of the OECD Principles from 1972 by adopting the first Environment Action Programme (EAP). Since 1987, the PPP has been part of European Law. It is included in Article 174 of the EU Treaty (1997). Since 1990, when the International Convention on Oil Pollution Preparedness, Response and Co-operation was agreed upon by the International Maritime Organization (IMO), the PPP has been acknowledged as a "general principle of international environmental law." In 1992, the Rio Declaration (UNCED) included the PPP in Principle 16: "National authorities should endeavor 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 public interest and without distorting international trade and investment."
In Indian Council for Enviro-Legal Action & Ors v. Union of India, (Bichhri Village case) the Supreme Court accepted the Polluter Pays principle. In this case, some chemical factories in Bichhri (Udaipur District) produced hazardous chemicals like oleum etc. These industries did not have the requisite clearances, licenses, etc. nor did they have necessary equipment for the treatment of discharged toxic effluents. Toxic sludge and untreated waste waters resulted in the percolation of toxic substances into the bowels of the Earth. Aquifers and subterranean supplies of water got polluted; wells and streams turned dark and dirty; water not only became unfit for human consumption but also unfit for cattle to drink and for irrigation of land. So much so, even the soil became unfit for cultivation. Death, disease and other disasters gradually resulted and the villagers in the area revolted as a result of this enormous environmental degradation. The District Magistrate of the area had to resort to Section 144 of the Criminal Procedure Code to avoid any 13 | P a g e
untoward incident. A writ petition under Article 32 of the Constitution was filed in the Supreme Court and the Court asked for a report to be prepared by the National Environmental Engineering Research Institute (NEERI) as to the choice and scale of available remedial alternatives. NEERI suggested the application of the Polluter Pays principle inasmuch as “the incident involved deliberate release of untreated acidic process waste water and negligent handling of waste sludge knowing full well the implication of such acts.” The cost of restoration was expected to be in the region of Rs. 40 crores. The Supreme Court examined all the available material and concluded that the industries alone were responsible for the damage to the soil, underground water and the village in general.
The Supreme Court endor sed the Polluter Pays principle. It was said, “The Polluter Pays Principle as interpreted by this Court 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 damaged environment is part of the process of sustainable development.” The Supreme Court held that as per the Polluter Pays principle “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 on the very nature of the activity carried on.” The Supreme Court cited with approval the following passage pertaining to the Polluter Pays principle: - “The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the po llution. Under the principle it is not the role of Government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer.” Adopting this principle, the Supreme Court directed that “The task of determining the amount required for carrying out the remedial measures, its recovery/realization and the task of undertaking the remedial measures is placed upon the Central Government.” It was directed that the
amount
so
determined
should
be
recovered
from
the
polluting
industries. 14 | P a g e
The villagers were permitted to file suits for recovery of damages, but more importantly, the Supreme Court accepted the principle of absolute liability laid down in the Oleum Gas Leak case and
also
approved
the
suggestion
for
setting
up
Environmental
Courts.
While applying the principle of Polluter Pays, the Supreme Court later expressed the view that compensation to be awarded must have some correlation not only with the magnitude and capacity of the enterprise but also the harm caused by it. The applicability of the principle of Polluter Pays should be practical, simple and easy in application. 8
In the M.C. Mehta v. Union of India & Ors (Calcutta Tanneries Case), the Polluter Pays principle relating to relocation of industries was applied with a direction to those relocated industries to pay 25% of the cost of land. Those who did not pay for the cost of land were directed to be closed. The Supreme Court again resorted to directions earlier given in Vellore Citizens
Welfare
Forum
for
setting
up
effluent
treatment
plants.
It needs to be mentioned that a strict interpretation of the Polluter Pays principle requires that the polluter should pay for causing the pollution and consequential costs for any general deterioration of the environment while another view is that the polluter is only responsible for paying the costs of pollution control measures. 9
In Vellore Citizens Welfare Forum v. Union of India , Resultantly, the Supreme Court recognized Sustainable Development, the Precautionary Principle and the Polluter Pays principle as a part of our environmental jurisprudence.
In S. Jagannath v. Union of India, the Supreme Court held that sea beaches and sea coasts are gifts of nature and any activity polluting the same cannot be permitted. The intensified shrimp (prawn) farming culture industry by modern method in coastal areas was causing degradation of mangrove ecosystem, depletion of plantation discharge of highly polluting effluents and pollution of potable as well as ground water.
8
(1997)2SCC 411. Supra note 3.
9
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Once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of law that the rule of Customary International Law which is not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of Law.
3) Public Trust DoctrineAnother major principle accepted by the Supreme Court is the public trust doctrine for the protection of natural resource. This doctrine came up for consideration in the M.C. Mehta v. 10
Kamal Nath .
A rather unusual situation had arisen in this case. The flow of the river Beas was deliberately diverted because it used to flood Span Motels in the Kulu Manali valley in which a prominent politician's family had a direct interest. The motel was also allotted protected forestland by the State Government and had also encroached on protected forestland, which encroachment was subsequently regularized. The Supreme Court used the public trust doctrine in this case to restore the environment to its original condition. Briefly, this doctrine postulates that the public has a right to expect that certain lands and natural areas will retain their natural ch aracteristics.
Applying the public trust doctrine, the Supreme Court cancelled the lease of forestland granted in favour of Span Motels and the State Government was directed to take over the area and restore it to its original condition. The motel was directed to pay compensation (damages for restitution of the environment and ecology of the area). It was also asked to show cause why a pollution fine be not imposed.
While deciding the show cause notice regarding imposition of a pollution fine, the Supreme Court held that in law the fine could not be imposed without a trial and a finding that the motel is guilty of an offence under the Water (Prevention and Control of Pollution) Act, 1974. 10
[2000] 6 SCC 213.
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Accordingly, no pollution fine was imposed on Span Motels but it was asked to show cause why it should not pay exemplary damages. After considering the reply of Span Motels, exemplary damages of Rs.10 lakhs were imposed. Roman law recognized the public trust doctrine whereby common properties such as rivers, seashore, forests and the air were held by the Government in trust for free and unimpeded use of the public. These resources were either owned by no one (res nullious) or by everyone in common (res communious). In English law, the public trust doctrine is more or less the same but with an emphasis on certain interests such as navigation, commerce and fishing which are sought to be preserved for the public. There is, however, some lack of clarity in this regard on the question whether the public has an enforceable right to prevent the infringement of the interests in common properties like the seashore, highways and running water.
The public trust doctrine primarily rests on the principle that certain resources like air, sea waters and the 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 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.
Though the Supreme Court and the High Court of India did not specifically refer to the Doctrine of Public Trust directly, in many cases they have given effect to this doctrine implicitly. Though traditionally the Doctrine of Public Trust was applied only for protection of access to the common for public benefit, now the Doctrine is being applied even to prevent over exploitation of the environment. Now this doctrine is being used as a legal and planning tool for the fulfillment
of
sovereign‟s
role
as
trustee
o
environment
for
future
generations.
It was noted that American Courts have also accepted the public trust doctrine and applied it in their case law and, the Supreme Court observed, it has now become a part of our environmental jurisprudence also. 17 | P a g e
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In M.I. Builders Pvt. Ltd. V. Radhey Shyam Sahu, Lucknow nagar Mahapalika permitted M.I. Builders Pvt. Ltd. to construct an underground shopping complex beneath the Jhandewala Park. The major part of the work was completed. The High Court quashed the relevant resolutions that permitted the construction. When it set aside the agreement, the High Court had noticed certain facts. The park was of historical importance, which the Mahapalika did not deny. Preservation or maintenance of the park was necessary from the environment angle. The only reason advanced by the Mahapalika for construction of the underground commercial complex was to ease the congestion in the area. The High Court said that construction of the underground shopping complex would only complicate the situation and the present scheme would further congest the area. The builders appealed. The Supreme Court went on to say that Mahapalika is the trustee for the proper management of the park. When true nature of the park, as it existed, is destroyed it would be violative of the doctrine of public trust as expounded by this court, the court quotes that the idea of public trusteeship rests upon three principles. Firstly, Certain interests like the air and the sea have such importance to the citizenry that it would be unwise to make them the subject of private ownership. Secondly, They should be made freely available to the entire citizenry without regard to economic status. Thirdly, It is principle purpose of government to promote the general public rather than to redistribute public goods from broad public use to restrict private benefit.
4) Public Liability InsuranceThe growth of the hazardous industries, processes and operations in India has been accompanied by the growing risks of accidents, not only to the workmen employed in such undertakings, but also to the innocent members of the public who may be in the vicinity. Such accidents lead to death and injury to human beings and other living beings and damage private and public properties. Very often, the majority of the people affected is from economically weaker sections and suffer great hardships because of delayed relief and compensation. While workers and employees of hazardous installations are protected under separate laws, members of the public are not assured of any relief except through long legal processes. Industrial units seldom have the willingness to readily compensate the victims of accidents. It is, therefore, essential to provide 11
1999 (6) SCC 464.
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for mandatory public liability for installations and handling of hazardous substances to provide minimum relief to the victims. Such insurance, apart from safeguarding the interests of the victims of accidents, would also provide cover and enable the industry to discharge its liability to settle large claims arising out of major accidents. If the objectives of providing minimum relief are to be achieved, the mandatory public liability insurance should be based on the principle of „no-fault‟ liability (absolute liability) as it is limited to grant of relief on a limited scale. However, the availability of immediate relief should not prevent the victims to go to courts for claiming larger compensation.
The Public Liability Insurance Act 1991, has been enacted with the object of providing immediate relief to the victims of accidents that might occur while handling of hazardous substances. The owner who has control over handling of hazardous substances is required under the Act to pay specified amounts to the victims as interim relief based on „no-fault‟ liability. The Act stipulates the maximum compensation for injury or death at Rs. 25,000 and limits compensation in respect of damage to private property to Rs. 6000. The right of a victim to claim additional relief under any other law is expressly reserved. The Act makes it mandatory for every owner handling hazardous substances to take out insurance policies covering potential liability from an accident. An „accident‟ is defined to cover a sudden unintended occurrence while „handling‟ any hazardous substance resulting in continuous, intermittent or repeated exposure leading to death or injury to any person, or damage to property or the environment. Accidents by reason of war or radio-activity are excluded from the scope of the Act.
The expression „handling‟ is defined widely to include manufacture, trade and transport of hazardous substances. However, the Act could not be implemented on account of the insurance companies not agreeing to give insurance policies for unlimited liability of the owners. It was, therefore, felt that the liability of the insurance companies should be limited to the amount of insurance policy though the owner‟s liability should continue to be unlimited under the Act. It was also considered appropriate to create an Environmental Relief Fund established by the Central Government with the additional money collected from the owners having control over handling of hazardous substances. This fund was also required to be used to meet the requirement of providing immediate relief to the victims. The principal administrative authority 19 | P a g e
under the Act is the collector, who is required to verify the occurrence of an industrial accident, give publicity to the event and invite applications for compensation and award relief. The minimum and maximum limits of the insurance amount in an insurance policy also needed to be specified for ensuring payment of adequate relief. Accordingly, the Public Liability Insurance (Amendment) Ordinance 1992, was promulgated by the President on 31 January 1992, as the owners handling hazardous substances had to take insurance policies by 1 March 1992. The Ordinance was replaced by the Public Insurance (Amendment) Bill 1992, which after being passed by both the Houses of Parliament received the assent of the President on 1 March 1992, and became the Public Liability Insurance (Amendment) Act 1992.
5. Absolute Liability Principle12
In the Oleum Leak case , the petitioner brought a suit in the Supreme Court of India as a writ petition where a fertilizer manufacturing plant, operating in a densely populated part of the city of New Delhi, had a case of leaked oleum gas. This incidence killed a person and severely injured others. The closure of the plant caused widespread angst because 4000 workers were rendered unemployed. The Supreme Court of India laid down in the case that any industry engaged in a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the immediate community to ensure no harm is done to them. This applies if the activity undertaken in the facility could create a health or safety hazard not only for the workers but also for those people who live in the adjacent areas. The enterprise will still be liable if it has taken every possible precaution and no negligence can be accounted to it. The Court also observed that the larger physical and economic structure of the enterprise, the heftier would be the compensation. The Court in its award modified the rule in Rylands v. Fletcher55 and the way it applied to the Indian cases. Enterprises could not get away with proving the fact that they could not foresee the injury.
12
AIR 1987 SC 965.
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CONCLUSION The Court has successfully isolated specific environmental law principles upon the interpretation of Indian statutes and the Constitution, combined with a liberal view towards ensuring social justice and the protection of human rights. The principles have often found reflection in the Constitution in some form, and are usually justified even when not explicitly mentioned in the concerned statute. There have also been occasions when the judiciary has prioritized the environment over development, when the situation demanded an immediate and specific policy structure. There are a number of principles that are at the core of most environmental protection systems, whether at the international or national level. Familiarity with these principles can offer insight into the purpose and thrust of the various legal mechanisms that have been built upon them. These decades of legal developments have led to the emergence of basic principles of environmental protection that are recognized in international and national law, which have in turn informed the development of environmental law by giving meaning to concepts not yet contained in formal legal instruments. Principles can be foundational. They have been reproduced in domestic laws and thus have provided a foundation for many environmental decisions. They are influential in most legal systems, although they sometimes may be applied differently. With our population, extreme climate, vulnerable ecology, compliance ratio of monitored industries being less than 50%, and the economy resting heavily on extinguishable natural resources, sustainability is the next big challenge for the country. The new tomorrow which India hopes to see with its economic flashlights requires an intense debate about environmental viability. In this scenario the environmental agenda is immense. In a country like India, pollution and environment hazards chiefly emanate from “poverty related risks” and “growth related risks”. Wide ranging changes from institutional reorganization to paradigm shift amongst the people and finally turning the lopsided industrial approach to the environment are required at this point of time. This change will require determination, consensus, commitment, planning, and effective execution of will and national programs. Consultation with the public, regulated community and the various wings of the government will become vital. Though consistent results are desirable, patience in this regard is vital. India has risen to such national challenges before and has tremendous potential to do so now. What is required is the faith of the people as there is a serious breakdown in trust on the government machinery and constructive dialogue. 21 | P a g e
Bibliography 1. http://www.moef.nic.in/divisions/ic/wssd/doc2/ch2.html 2. http://www.legalservicesindia.com/article/article/fundamental-principles-of environmental-protection-755-1.html 3. www.academia.edu/871096/Fundamental_Principles_of_Environmental_Protection
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