TABLE OF CONTENTS

WHY ENVIRONMENTAL LAW?.....................................................................................................................4

WHAT IS ENVIRONMENT?............................................................................................................................4
RELEVANT POLICIES BEFORE THE 1986 ACT.............................................................................................5
HOW WAS ENVIRONMENTAL LAW PREVALENT DURING THE ANCIENT TIMES?........................................5
EFFORTS MADE TOWARDS ENVIRONMENTAL PROTECTION.......................................................................5
WHAT MAKES LIFE POSSIBLE ON EARTH?..................................................................................................6
INTERNATIONAL INSTRUMENTS ON AIR POLLUTION.................................................................................6
INTERNATIONAL DISASTERS DUE TO AIR POLLUTION...............................................................................6
SOURCES OF ENVIRONMENT LAW................................................................................................................6
CAN ENVIRONMENTAL VIOLATIONS BE BROUGHT UNDER PUBLIC NUISANCE?.........................................6
POINTS PERTAINING TO ENVIRONMENTAL LITIGATION.............................................................................7
CONSTITUTIONAL PROVISIONS DEALING WITH ENVIRONMENT................................................................7
DIVISION OF LEGISLATIVE AUTHORITY.......................................................................................................7
HOW TO ASSOCIATE FUNDAMENTAL RIGHTS AND ENVIRONMENT PROTECTION?..................................8
INTERNATIONAL EFFORTS TO CURB ISSUES................................................................................................9
TERMINOLOGY..............................................................................................................................................9
TYPES OF ARBITRATION (MISSING NOTES)...............................................................................................10
STOCKHOLM CONFERENCE [1972]............................................................................................................10
BASEL CONVENTION, 1989.........................................................................................................................10
EARTH SUMMIT, 1992.................................................................................................................................11
MONTREAL PROTOCOL, 1987....................................................................................................................12
WORLD CHARTER, 1982.............................................................................................................................12
WORLD SUMMIT ON SUSTAINABLE DEVELOPMENT, 2002.......................................................................13
MILLENNIUM DEVELOPMENT GOALS [“MDGS”]....................................................................................14
RIO DECLARATION, 2012...........................................................................................................................14
SUSTAINABLE DEVELOPMENT GOALS [“SDGS”].....................................................................................15
DIFFERENCES BETWEEN MDGS AND SDGS..............................................................................................15
THE UNITED NATIONS CLIMATE CHANGE CONFERENCE [UNCCC], 2004...........................................15
THE PARIS AGREEMENT.............................................................................................................................15
DIFFERENCE BETWEEN PARIS AGREEMENT AND KYOTO PROTOCOL....................................................16
WHAT IS SOCIAL RESPONSIBILITY?...........................................................................................................16

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HUMAN AT THE CENTRE FOR ENVIRONMENT PROTECTION...................................................................17
ENVIRONMENTAL ETHICS..........................................................................................................................19
ANTHROPOCENTRIC APPROACH................................................................................................................19
STAGES OF DEVELOPMENT OF ENVIRONMENTAL LAW FROM ANTHROPOCENTRIC TO ECO-CENTRIC
APPROACH...................................................................................................................................................19

DOCTRINES OF INTERNATIONAL LAW RELATED TO NATURAL RESOURCES: (OUT OF COURSE)............20

VARIOUS INTERNATIONAL LAW PRINCIPLES.............................................................................................20
THREE PILLARS OF SUSTAINABLE DEVELOPMENT..................................................................................21
WHAT IS PRECAUTIONARY PRINCIPLE?....................................................................................................21
WHAT IS PREVENTIVE PRINCIPLE?...........................................................................................................24
FIVE KEY ELEMENTS FOR PRECAUTIONARY PRINCIPLE [DO NOT KNOW WHAT HAPPENED TO
THIS]...........................................................................................................................................................25
DIFFERENCE BETWEEN PREVENTIVE AND PRECAUTIONARY PRINCIPLE................................................25
POLLUTER PAYS’ PRINCIPLE.....................................................................................................................25
PRINCIPLE OF EQUITY AND EQUALITY.....................................................................................................26
PUBLIC TRUST DOCTRINE..........................................................................................................................27
INTER-GENERATIONAL EQUITY.................................................................................................................28
ABSOLUTE LIABILITY V STRICT LIABILITY..............................................................................................28
DEEP POCKETS THEORY............................................................................................................................29
MEANING OF COMMON BUT DIFFERENTIATED RESPONSIBILITY............................................................31
INTER-GENERATIONAL AND INTRA-GENERATIONAL EQUITY..................................................................31
MOVING TOWARDS THE PROACTIVE APPROACH.....................................................................................32
MODULE III: CONSTITUTIONAL LAW AND ENVIRONMENTAL LAW.......................................................32
DEFINITION OF ENVIRONMENT LAW.........................................................................................................35
POLLUTION..................................................................................................................................................36
THREE BODIES FUNCTIONAL IN THE FIELD OF ENVIRONMENT...............................................................40
5 BROAD OBJECTIVES:................................................................................................................................40
POWERS OF THE CENTRAL POLLUTION CONTROL BOARD.....................................................................40
FUNCTIONS AND POWERS OF THE CENTRAL POLLUTION CONTROL BOARD.........................................41
FUNCTIONS OF SPCB (UNDER S. 17).........................................................................................................41
POWERS OF SPCB.......................................................................................................................................41
WATER (PREVENTION AND CONTROL OF POLLUTION) ACT................................................42
DIFFERENT CLASSES OF WATER...............................................................................................................43
RESPONSIBILITIES THAT INDUSTRIES HAVE W.R.T. WATER ACT:............................................................43

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CONTRAVENTION PROVISIONS...................................................................................................................46
AIR ACT.......................................................................................................................................................47
NOISE POLLUTION......................................................................................................................................54
NOISE POLLUTION RULES, 2000................................................................................................................58
ENVIRONMENT PROTECTION, 1986...........................................................................................................58
ENVIRONMENTAL IMPACT ASSESSMENT [EIA]........................................................................................63
COASTAL ZONE MANAGEMENT.................................................................................................................65
HOW IMPORTANT IS COASTAL ZONE MANAGEMENT?............................................................................65
SOLID WASTE MANAGEMENT RULES........................................................................................................68
HAZARDOUS WASTE MANAGEMENT AND TRANSBOUNDARY RULES, 2016.............................................70
BIO-MEDICAL WASTE RULES....................................................................................................................72
SOLID WASTE MANAGEMENT RULES........................................................................................................72
E-WASTE MANAGEMENT RULES...............................................................................................................72
RADIOACTIVE WASTE................................................................................................................................73
SUGGESTIONS BY THE EXPERTS FOR WASTE MANAGEMENT..................................................................74
NATIONAL GREEN TRIBUNAL [NGT]........................................................................................................74
STRUCTURE OF NGT ACT..........................................................................................................................75
IMPORTANT SECTIONS OF THE ACT..........................................................................................................76
STRENGTHS OF NGT..................................................................................................................................77
CHALLENGES FACED BY NGT....................................................................................................................84
NOTABLE DECISIONS OF NGT...................................................................................................................84
FORESTS ACT..............................................................................................................................................84
PENALTIES UNDER THE FORESTS ACT......................................................................................................89
CHALLENGES TO THE FORESTS ACT, 1927...............................................................................................90
FURTHER LEGISLATIONS............................................................................................................................90
OBJECTIVE OF THE FORESTS CONSERVATION ACT, 1980.......................................................................91
STRUCTURE OF THE ACT............................................................................................................................93
FORESTS RIGHTS ACT................................................................................................................................93
IMPORTANCE OF THE ACT.........................................................................................................................95
WILDLIFE PROTECTION ACT.....................................................................................................................95
IMPORTANCE OF WILDLIFE.......................................................................................................................95
DEVELOPMENT OF WILDLIFE PROTECTION IN INDIA..............................................................................95

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ENVIRONMENTAL LAW

Human beings are made up of 5 elements – Sky, Earth, Air, Water and Fire. If any of these elements are
disturbed, then the entire thing is disturbed.

WHY ENVIRONMENTAL LAW?

MC Mehta is the reason Environmental Law is in existence. He is referred to as the Green Lawyer. He
associated right to life to right to healthy environment.

In the case of MC Mehta v. Union of India (1991), he filed a writ petition under Article 51A(g)
[fundamental duty]. He said that everyone should know the importance of the environment because they
have a fundamental duty towards the same, because not everyone is educated. He raised 3 contentions:
- all cinema halls must exhibit at least 2-3 messages on environment free of cost (everyone goes for
entertainment even if not school)
- life has become more competitive so norms for good living conditions were now old so people
must know about them, as the population increases, citizens must be informed.

After petition was filed, the court gave direction to impose as a condition of license at least 2 slides on the
environment to State and UT governments. Even AIR and radio channels were asked to make interesting
broadcasting messages on the environment. Every State & UT to take concrete steps to introduce
environmental studies by the next academic year – 1992. The basic element was to inform
people.However, until 2003 no one did it until the SC directed it again as they wanted all school
curriculums to go green. 10 states were imposed heavy penalty for not starting the green course (Justice
Santosh Hegde & BP Singh).

WHAT IS ENVIRONMENT?
Ministry of Environment, Forest & Climate Change & the Ministry of Human Resource Development are
responsible for the environmental law education, policy, programmes and policies. Section 2(a) of The
Environment (Protection) Act, 1986 says – 

"environment" includes water, air and land and the inter – relationship which exists among
and between water, air and land, and human beings, other living creatures, plants, micro-organism
and property”

Environment comes from the word "environa" which means the surroundings. Everything which is
around us that affects the people is the environment. It includes the complex, physical, chemical &
biological factors surrounding an organism of an ecological community. Such factors act and interact with
various species and organisms to affect their form, growth and survival. For example, after the Atomic
Bombings & Bhopal Gas Tragedy, the people born there are born with deformities and diseases.

Environmental Pollution
Any unfavourable altercation of this environment is termed an environmental pollution.
5 common types - air, water, land, thermal & radiation.

RELEVANT POLICIES BEFORE THE 1986 ACT

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In the British era, we had specific acts, such as:
- Shore Nuisance Act, 1853 & Merchant Shipping Act, 1858 - dealt with pollution of water;
- Fisheries Act, 1897
- Bengal Smoke Nuisance Act, 1905
- Bombay Smoke Nuisance Act, 1912
- Wild Birds & Animal Protection Act, 1912
After independence, the Government did not care much about resource conservation & environment
because they cared more about economic stability and reducing poverty.

HOW WAS ENVIRONMENTAL LAW PREVALENT DURING THE ANCIENT TIMES?

Rigveda says that cleaning and planting of trees would promote happiness and a safe life. Similarly, even
in the Muslim and in the Christian holy books, there are certain mentions made in, promoting protection
of environment for a safe and a happy living. It was understood as the ‘dharma’ (duty) of each and every
person to ensure protection of the environment. There is a correlation between the five elements of life
and the sensory organs of human beings. Kautilya’s Arthashastra also points at making environmental
protection an extremely important duty. Rig Veda also mentions five elements that provides the basis for
life {Fire, water and all of that} These Vedas also point at maintaining an ecological balance in the
society. Yajur Veda on the other hand upholds the importance of conducting yajnas, as the gases that
come out of these yajnas were believed to purify the air. Sama veda focuses on maintaining the season
cycle, and therefore the human activity should also remain in correspondence of preserving this season
cycle. Atharva Veda says that it is the duty of the mankind to give back what they took from the nature, in
whatever form they can.

While during the Mughal rule, the rulers focused only on hunting instead of environmental protection,
this marked the beginning of the environmental deterioration. The environmental measures were also
introduced post-Independence only via the Stockholm conference and not via the Constitution of India as
the policy – makers focused on economic development and poverty alleviation.

EFFORTS MADE TOWARDS ENVIRONMENTAL PROTECTION

As a part of the Stockholm Declaration of 1972, the Indian government took steps for the protection and
preservation of environment. The Environment Protection Act, 1986 was introduced along with setting up
of NCEPC [National Committee of Environment Planning and Co-ordination] in the year 1972. This
NCEPC was converted into a permanent ministry which aimed at protecting and preserving environment
– called Ministry of Environment and Forest. Further, there was an introduction of Water (Prevention and
Control of Pollution) Act, 1974 which establishes a Pollution control board at both the centre and the state
level.

Article 51A(g) of the Indian Constitution mentions the fundamental duty of the citizens to protect and
improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for
living creatures. While, 48A of the Indian Constitution [introduced after the 42 nd amendment] imposes a
duty on the state to take efforts to protect the environment. Some of the other legal measures introduced
by the Indian government are as follows:

- The 4th five-year plan focused on introducing environment as one of the important fields for focus
so as to put in efforts towards its conservation.

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- The Pitamber Pant Committee also was set up to keep a check on environmental protection and
ensure environment development.
- The Forest Conservation Act, 1980 was also introduced.
- The Air [Prevention and Control of Pollution] Act, 1974.
- The Public Liability Insurance Act, 1991.
- The Biological Diversity Act, 2002.

Important environment conservationists:

- Jadhav Molai Payeng – Forest man of India
- Kollakkayil Devaki Amma – She grew a Forest
- Jannat – Cleaned Dal Lake
WHAT MAKES LIFE POSSIBLE ON EARTH?
- Location in the solar system, the gravitational tugs, the gamma rays’ and supernova effects are
lesser;
- Atmosphere around the Earth;
- Earth has moon as its own star – which is a stabilizer causing tides – earth and moon have
gravitational pull between them;
- Ozone layer – protects earth from harmful UV rays.

INTERNATIONAL INSTRUMENTS ON AIR POLLUTION

- Air pollution Act, (US)
- Clean Air Act, 1956 (UK)
- Water Quality Conservation Act, 1958
- Federal Air Pollution Legislation – Clean Air Act, 1963

INTERNATIONAL DISASTERS DUE TO AIR POLLUTION

- The Meuse Valley Belgium Fog, 1930
- The London Smog, 1952
- Minamata Disease, 1958
- Yokkuichi Asthma where due to air pollution in 1958, there was widespread asthma in the
population in Japan.

SOURCES OF ENVIRONMENT LAW

Environment law is related to several disciplines. It is derived from various sources:
- Common Law, developed by courts through judicial precedents;
- Statutory Law with respect to regulations and principles.

CAN ENVIRONMENTAL VIOLATIONS BE BROUGHT UNDER PUBLIC NUISANCE?

Attorney General v. PYA Quarries:
Lord Denning defined Public Nuisance as a nuisance so widespread in range or so indiscriminate in
effect, that it would not be reasonable to expect one to take proceeding on his responsibility to put a stop
to it. But that should be taken as the responsibility of the community at large. It amounts to an
interference upon the common rights of the general public.Section 268 of IPC deals with public nuisance.

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POINTS PERTAINING TO ENVIRONMENTAL LITIGATION
- Locus Standi: What is your locus to claim environmental violation? (In PIL, one needs to show
that the public at large is affected.)
- Burden of Proof: Whoever comes to the court has to prove the right exists. In environmental law,
there is no burden of proof, no need to substantially prove a harm to yourself, i.e., depicting that
facts exist. Till the time the entire thing is proved, the burden is in the hands of the person who
approaches the court. Prima facie, one needs to make a case that there is some harm to the
environment.
CONSTITUTIONAL PROVISIONS DEALING WITH ENVIRONMENT
- India is among the few constitutions which have specific provisions for environment protection.
- Tarun Bharat Sangh Alwar v. Union of India (1991) (Sariska case):
It gives the guidelines with respect to environmental conservation. In this case,  SC adopted a range of
principles for environmental law. This placed government above with business, individual liberty above
government & environment above all. It talks about the fundamental standards laid down by the SC for
the duty of the states for environmental protection.

 Enforcement agencies are under strict instructions and obligations to strictly enforce
environmental protection laws. [NRV Case]
 Government agencies may not plead non-availability of funds, unavailability of staff to justify
their non-efficiency under environmental protection laws & norms.
 Polluter pays principle is the basic law of the environmental protections laws.
 Precautionary principle requires the industrialists or economic developers to be under the
obligation to show that their actions are environmentally friendly. Treatment must be there before
releasing substances into the environment.
 Government development agencies must give due respect to the ecological factors. They must be
active towards the sustainable development. Government obligation for sustainable development.
 Stringent action ought to be taken against defaulters who carry on profit making industrial
activities against the environmental protection laws.
 The powers conferred under the environmental laws must only be used to advance the protection
of the environment, and not to defeat the object of law.
 The state is the trustee of all natural resources which are by nature are meant for public use and
enjoyment. Public at large is the beneficiary of these natural resources. You cannot have a private
ownership.

DIVISION OF LEGISLATIVE AUTHORITY

Which list contains environment? It is not explicitly mentioned.
 Concurrent List 17(a) – Forest; Concurrent 17(b) – wildlife; 20(a) – pollution control;
 State list water entry 17; Public health, agriculture, etc. State list entry number 6, 14, 18, 21;
 Atomic energy, oil resources, inter-state rivers, etc. – 6, 54,55,56,57.
 Constitutional Articles – 246, 248 and 249 and Addition of Art. 51(g) as the 42 nd amendment.
It has been divided in such a way that sanitation, disposal, etc. are tackled at the local level. Uniform
standard law/nationalised acts for water, air pollution, wildlife conservation, etc. The distribution
pertaining to the environment protection in the 3 Lists is influenced by the Government of India Act,
1935 and the main role was played by the Drafting Committee. Entry 56 widened the scope of the Union

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List says that development of interstate rivers is for the purpose of irrigation, hydraulic power is for the
public interest.

Sachidanand Pandey v. State of West Bengal: DPSP and Environmental Law: 

Whenever a problem of ecology is brought before the court, the court is bound to bear in mind Art. 48 A
and 51A(g) of the Constitution. When the court is called upon to give effect to DPSP and fundamental
duties, the court is not to shrug its shoulders and say priorities are a matter of policy and upto the
government. The least that the Court can do is examine if relevant conditions are kept in mind.
 Article 253 plus Entry 13 of the Union List gave birth to the Air Pollution Act, 1981 and the
Environmental Protection Act to give effect to the Stockholm Declaration. 

HOW TO ASSOCIATE FUNDAMENTAL RIGHTS AND ENVIRONMENT PROTECTION?

In Maneka Gandhi, Art. 21 expanded to – Personal liberty, and recognised the unarticulated liberties
implied by Art.21. After this, right to wholesome environment, and many other rights were encompassed
using the latter part of this reasoning. 

- Right to Wholesome Environment 

Dehradun Quarrying Case, 1988 (Rural Litigation & Entitlement Kendra v. State of UP):
Illegal mining in Mussoorie and Dehradun due to which the ecosystem was adversely affected. Rural
Litigation and Entitlement Kendra v. State of UP (Citation for the Dehradun case). They wrote a letter to
the Supreme Court. The Court treated this as a petition under Art. 32. In August 1988, the final judgment
came, after setting up of several expert committees and several interim orders being passed that right to
life includes right to enjoy unpolluted air and water. If anything endangers or impairs the quality of life in
derogation of law a citizen has the right to move the Court 

Subhash Kumar v State of Bihar, 1991– Town Planning case: 

Every person has the right to a wholesome environment under Art. 21.The Court held that R2L includes
the Right to enjoy Unpolluted Air & Water. If any derogates life, a citizen can move Court under Art. 32.

Virendra Gaur v State of Haryana, 1995: 

- Court observed that Art. 21 protects the right to life as a fundamental right and includes the right
to human dignity which encompasses within its ambit the preservation, protection, of
environment; ecological balance; free from pollution of air and water, sanitation, without which
life cannot be enjoyed.
- Air and water pollution should be regarded as a violation of art. 21, therefore a hygienic
environment is an integral facet of right to life and it would be impossible to live with dignity
without a human healthy environment. 
- Further, there is a constitutional imperative on the State Government and the municipalities to
promote, protect and improve both the manmade and the natural environment. 

- Right to livelihood
Olga Tellis v Bombay Municipal Corporation:
The right to livelihood is an equally important aspect of this right because no one can live without means
of subsistence.However, the Court added, such deprivation should not necessarily be in accordance with
the procedure established by law if the right to livelihood is not considered to be part of the right to life.

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Deprive a person of his right to a means of subsistence and you will have deprived him of his life. In light
of Article 39(a) and 41, it would be pedantry to exclude the right to livelihood from the content of the
right to life.

Banwasi Seva Ashram v State of UP, 1993:

Rights of forest dwellers who were thrown out by NTPC for their project were in question. NTPC can
acquire only if NTPC provides certain facilities for these forest dwellers.

- Right to equality
State of HP v Ganesh Wood Products, 1996:
- A decision making authority must give due weight and regard to ecological factors, which are
environmental uses of sustainable and governmental use.
- A government decision that fails to take into account relevant consideration affecting the
environment is invalid.
CRZ Notification case/Indian council for Enviro legal action v UOI, 1996
- Environmental statutes were enacted to ensure a good quality of life for unborn generations as it
is they who must bear the brunt of ecological issues.

- Freedom of trade
Environmental regulation becomes more stringent when industrial challenge to agency action is likely to
increase.19(1)(g) of the Constitution of India mentions the same.

Abilash Textile v Rajkot Municipal Corporation:

Some people were conducting the business of dying and printing. They were issued with a notice saying
that since the factory was discharging dirty water on public drainage without treatment of the water, there
was a challenge on basis of public health, they were told that if they don't fix it, they will have to close the
factory to ensure there is no illegal discharge. The Defendants said that they have been doing this for a
number of years and if they are shut, a number of families will be affected due to the economic effects.
The Court said that no, there is no freedom of trade at the stake of public health.

INTERNATIONAL EFFORTS TO CURB ISSUES

Sustainable Development: Usage of the resources in such a way that people are able to preserve them for
the future generations. It is an economic development that is conducted without depletion of natural
resources. Nature is a common heritage for mankind. This means no person can have an individual right
over it. They all have a duty to preserve it.

General Principles of State Responsibility & International Treaties (control the liberties & duties of
states)

Sic Utero Twou Ut Alienum Non Laedas – one must use his own rights so as not to injure others. Article
21 & 22 of the Stockholm Conference. Stockholm Conference is considered the Magna Carter of
environmental laws/rights. (Magna Carter – first declaration of human rights.)

Trail Smelter Case:

Transboundary pollution case, involving Canada & USA. It was emitting Sulphur dioxide which caused
harm to Washington States' greenery. Hence, US filed charge against Canada for injuring them. Case was

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referred to an international forum. Eventually contributed to establishing the harm principle in the
environmental law of transboundary pollution.

TERMINOLOGY
 International Treaties –Continuation and ratification of the agreement which the parties have
entered into at the time of convention. It's a more finalised version of a convention.
 International Conventions – A formal meeting between the delegates/members of the organisation
that result in a general agreement. They later on take shape of a treaty.
 International Protocols – It is an agreement that stands on its own but is linked to a convention or
a treaty. It is used as an addition.
 Conference – It is a meeting which usually take place between large group of parties that are
interested
 Summit – It is a meeting between the heads of state

TYPES OF ARBITRATION (MISSING NOTES)

Lac Lenox arbitration agreement between France & Spain - Procedure of prior notification, consultant
and negotiation whenever changes are being made.

Corfu Channel Case (UK & Albania 1949) – OCJ declared every state has a duty not to knowingly allow
its territory to be used for acts contrary to the rights of other states.

STOCKHOLM CONFERENCE [1972]

Principles (out of 26):

 Man has the fundamental right to freedom, equality and adequate condition of life in an
environment of a quality that permits a life of dignity and wellbeing. 
 Man bears the sole responsibility to protect and improve the environment for the present and the
future generations.

BasicDecisions (out of 109):

 Declaration done on the human environment.

 Action plan for the human environment which is essential for sustenance of humankind.
 Resolution on institutional and financial agreements.
 Resolution condemning nuclear weapons test especially those carried out in the atmosphere.
 Decision to refer to government recommendation for action at national level.
 Recommended at international & national level the appraisal of environmental damages. [Water
Prevention, 1974; Air Prevention, 1981; Environmental Protection, 1986; Factories Amendment,
1987]
 109 recommendations were made during the SC. SC was not the only one conference, it also had
sub-conferences.

The five focus areas:

- Problems and Management of Human settlement;

- Natural resource management;

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- Pollution control measures;
- Social and cultural aspects;
- Development and the Environment;
- Right to protect the environment;
- Population and policy;
- Ban on Nuclear Weapons.

BASEL CONVENTION, 1989

It was adopted to check the dumping of hazardous and toxic waste, and the consequential damage to the
environment. The UNGA requested all members to take legal actions to prevent such kind of dumping.
Expert group was set up as the problem was increasing under the UNEP (UNEP came into existence with
this).

It has been divided into 29 articles with 6 annexures to it. Although it includes hazardous & toxic waste, it
does not include radioactive waste and the waste derived from the normal operation of the ship.
International rules & standards.Transboundary movement of such waste is to be borne by insurance and
other guarantee.

Before export of hazardous waste, it must have the written consent of the importing country. There must
be a clear cut agreement regarding the same.There needs to be primary information exchange and
consultation regarding hazardous waste. There is a clause of transparency.It has no central enforcing
agency but it basically worked from the member countries itself.

The important enactments that were enforced were:

- Hazardous Waste Management Rules, 1989

- Biomedical Waste Rules, 1998

EARTH SUMMIT, 1992

It is nothing but the UNCED [United Nations Conference on Environment and Development], which is
often called the Earth Summit. It focused on environment protection, preservation and sustainable
development. This directed the world to the need of sustainable development. The main aim of
Sustainable Development is not just to cater to the needs of the present generation but also extend the
benefits to the future generations. This summit resulted in the following documents:

- The Rio Declaration on Environment and Development, which is made up of 27 constitutional

provisions also contains an important Preamble. Some of the noteworthy principles of this
declaration are:
1. Principle 1, which says that “Human beings are at the centre of concerns for sustainable
development. They are entitled to a healthy and productive life in harmony with nature.”
2. Principle 13, which says that “States shall develop national law regarding liability and
compensation for the victims of pollution and other environmental damage. States shall also
cooperate in an expeditious and more determined manner to develop further international
law regarding liability and compensation for adverse effects of environmental damage
caused by activities within their jurisdiction or control to areas beyond their jurisdiction.”

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3. Principle 15, says that “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.”:The countries
are expected to take a precautionary measure wherein an irreparable damage or a serious
harm could be avoided, to the best of their capabilities. Further, the states are also not
permitted to take the defense of lack of scientific know-how and tools, for not being able to
avoid serious harm.

Important Cases:
1. Madison v Duck Town SulphurCompanies:
The plaintiff and other residents filed a suit against the defendant companies claiming that the two
companies’ copper mining operations were causing nuisance to the plaintiffs’ enjoyment of the land. The
court agreed with the reasoning of the plaintiffs and ordered for the payment of monetary damages as the
proper remedy for each of the plaintiffs. If there is no way an alternative approach could be adopted for
mining without causing nuisance, hefty penalties shall be imposed.

2. Georgia v Tennessee Copper Company:

The State of Georgia (State) filed a bill alleging that in consequence of a discharge of noxious gases by
Tennessee Copper Company (Copper) a wholesale destruction of forests, orchards, and crops was going
on, and other injuries were done and threatened in five of its counties. The State filed a motion for a
preliminary injunction, which was denied. Without objection, the case was tried on affidavits. The Court
found that, although the State actually owned very little of the land affected, the State's case was brought
in its capacity as a quasi-sovereign. The State had an interest behind the titles of its citizens and had the
last word as to whether its lands would be damaged in such a manner. The Court found that when the
states by their union made the forcible abatement of outside nuisances impossible to each, they did not
thereby agree to submit to whatever might be done and they were still able to file suit in the Court. The
evidence as to the pollution of the air and the magnitude of that pollution caused by the companies was
not open to dispute and the State had the right to prevent the pollution. The Court rejected the argument
that the State was guilty of laches because diligence was shown.

- Agenda 21

It also further led to opening of certain conventions for signatures:

- Convention on Biological Diversity: This focuses on tackling of eradication of Diverse species

- Convention on Climate Change: This aims at preventing global climate change

Landmark cases relating to EIA [We will discuss this in greater detail, later]

1. Indian Council for Enviro-Legal v Union of India and Ors [1996, SC]
2. Vellore Citizens Welfare Forum v Union of India and Ors [1996, SC]
 
KYOTO PROTOCOL, 1997
- This focuses on reducing greenhouse gases concentrations in the atmosphere and carbon
emissions. This protocol was adopted at a conference which was conducted in Kyoto, Japan. It is

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based on the principle of ‘Common but differentiated responsibilities and respective capabilities’.
It is legally binding although India did not make it legally binding upon itself.

MONTREAL PROTOCOL, 1987

- This focuses on the protection of the depleting ozone layer of the Earth. It aims at stopping the
production of substances that release gases which cause the ozone layer to deplete.

For the next class: What is the difference between MDGs and SDGs?

WORLD CHARTER FOR NATURE, 1982

- UN tried to develop a code of conduct for the protection, preservation of global natural habitat.
The human conduct would be judged and assessed on the basis of these principles. It said that
social and economic development cannot be done until the natural system is taken into
consideration. These five principles are:
1. Nature shall be respected and its essential processes shall not be impaired.
2. The genetic viability on the earth shall not be compromised; the population levels of all life
forms, wild and domesticated, must be at least sufficient for their survival, and to this end
necessary habitats shall be safeguarded.
3. All areas of the earth, both land and sea, shall be subject to these principles of conservation;
special protection shall be given to unique areas, to representative samples of all the different
types of ecosystems and to the habitats of rare or endangered species.
4. Ecosystems and organisms, as well as the land, marine and atmospheric resources that are utilized
by man, shall be managed to achieve and maintain optimum sustainable productivity, but not in
such a way as to endanger the integrity of those other ecosystems or species with which they
coexist.
5. Nature shall be secured against degradation caused by warfare or other hostile activities

“Mankind is a part of nature and life depends on the uninterrupted functioning of natural systems which
ensure the supply of energy and nutrients”
BRUNDTLAND REPORT, 1987
This is based on the theme of ‘Our common future’. The major concern was regarding global warming
and ozone depletion. These two problems were addressed by the UN General Assembly’s Environmental
expert group. This committee was called World Commission on Environment and Development
(WCED). The two topics that were concentrated upon were:
- The role of international economy, population and human resources;
- Food Security;
- Species and Ecosystem – it also concerns topic in relation to energy.
- Sustainable development.
It also led to the establishment of the UN Programme of Action on Sustainable Development and the Rio
Conference, 1992. This conference created the UN Commission on Sustainable Development.
Why is it considered to be very important?It defined sustainable development for the first time. It said that
there is a need to attain this quality of sustainable developed life by 2030.

WORLD SUMMIT ON SUSTAINABLE DEVELOPMENT, 2002

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This was organized in the year 2002 which was based on Principle I of the Rio Declaration. Principle I
says that, “Human beings are at the centre of concerns for sustainable development. They are entitled to
a healthy and productive life in harmony with nature.”. It was conducted to strengthen the role of
sustainable development. The basic objective of the World Summit was to examine the implementation of
resolutions that was made at the Rio Conference. Additionally, another objective was to hold a 10-year
review after the resolutions were made. The main focus area was Agenda 21. The Summit had certain
focus areas:
- Poverty
- Health
- Energy
- Technology
- Water Quality and Availability
- Oceans
- Fisheries

There were various measures that were introduced:

- With respect to water and sanitation, it was decided that the number of people who do not have
access to potable water be reduced to half by 2015.
- There was a further agreement between the various countries that the poor shall have access to
energy.
- With respect to global warming, the agreement referred that there is a pressing need to ratify the
Kyoto Protocol.
- With respect to Biodiversity and natural resources, there was an agreement that by 2010, the rate
at which extinction of species is occurring must be cut down.
- Further, another focus area was to restore fisheries to their maximum abilities by 2015 and to
establish a marine protected area by 2012.
- Also, to improve the accessibility of environmentally sound ozone depleting chemicals by 2010.
- With respect to Health, the agreement was entered that recognized that access to healthcare will
be consistent with human rights, cultural and religious values. The countries also agreed to phase
out by 2020, the use and production of chemicals that harm human health and environment.

MILLENNIUM DEVELOPMENT GOALS [“MDGS”]

Rio Declaration of 2021 is based on these MDGs. In September 2000, the leaders of 189 countries signed
the Millennium Declaration at UN, where they committed towards the achievement of eight measurable
goals, within 15 years. These goals were:

1. to eradicate extreme poverty and hunger;

2. to achieve universal primary education;
3. to promote gender equality and empower women;
4. to reduce child mortality;
5. to improve maternal health;
6. to combat HIV/AIDS, malaria, and other diseases;
7. to ensure environmental sustainability; and
8. to develop a global partnership for development.

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RIO DECLARATION, 2012
The motto of this conference was the ‘future we want’. It resulted in a document that contained the
measures for the implementation of sustainable development. In this declaration, the members decided to
add a set of Sustainable Development Goals [SDG]. There were certain policies that were brought in,
which were:

- Adoption of ground breaking guidelines on green economy policy;

- Intergovernmental process under the General Assembly to prepare options on a strategy for
sustainable development financing;
- To strengthen the UN Environment Programme;
- Establishment of a High Level Political Forum for Sustainable Development;
- The governments also requested the UN Statistical commission in consultation with the UN
System Entities and other relevant organisations to launch a programme of work in the area of
measures of progress to complement GDP;
- Governments also adopted the 10-year framework of programmes on sustainable consumption
and production patterns;
- The Conference also took forward-looking decisions on a number of thematic areas, including
energy, food security, oceans, cities, and decided to convene a Third International Conference on
SIDS in 2014;
- The Rio Conference also galvanized the attention of thousands of representatives of the UN
system and major groups. It resulted in over 700 voluntary commitments and witnessed the
formation of new partnerships to advance sustainable development.

SUSTAINABLE DEVELOPMENT GOALS [“SDGS”]

This is a result of the Rio Conference, 2012. There are 17 SDGs. They are as follows:
1. No Poverty, therefore completely eradicate poverty in all forms everywhere.
2. Zero Hunger: End hunger, achieve food security and improved nutrition and promote
sustainable agriculture;
3. Good Health and Well-being: Ensure healthy lives and promote well-being for all at
all ages;
4. Quality Education: Ensure inclusive and equitable quality education and promote
lifelong learning opportunities for all;
5. Gender Equality: Achieve gender equality and empower all women and girls;
6. Clean Water and Sanitation: Ensure availability and sustainable management of
water and sanitation as well;
7. Affordable and Clean Energy: Ensure access to affordable, reliable, sustainable and
modern energy for all;
8. Decent Work and Economic Growth: Promote sustained, inclusive and sustainable
economic growth, full and productive employment and decent work for all;
9. Industry, Innovation, and Infrastructure: Build resilient infrastructure, promote
inclusive and sustainable industrialization and foster innovation;
10. Reducing Inequality: Reduce inequality within and among countries;
11. Sustainable Cities and Communities: Make cities and human settlements inclusive,
safe, resilient and sustainable;

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12. Responsible Consumption and Production: Ensure sustainable consumption and
production patterns;
13. Climate Action: Take urgent action to combat climate change and its impacts;
14. Life Below Water: Conserve and sustainably use the oceans, seas and marine
resources for sustainable development;
15. Life On Land: Protect, restore and promote sustainable use of terrestrial ecosystems,
sustainably manage forests, combat desertification and halt and reverse land degradation and halt
biodiversity loss;
16. Peace, Justice, and Strong Institutions: Promote peaceful and inclusive societies for
sustainable development, provide access to justice for all and build effective, accountable and
inclusive institutions at all levels;
17. Partnerships for the Goals: Strengthen the means of implementation and revitalize the
Global Partnership for Sustainable Development.
These goals are to be fulfilled by 2030.

DIFFERENCES BETWEEN MDGS AND SDGS

MDGs were created by a group of experts while SDGs were created by non-governmental organisations
and other stakeholders. MDGs have only 8 goals while SDGs have 17 goals.

THE UNITED NATIONS CLIMATE CHANGE CONFERENCE [UNCCC], 2004

The climate change conference held in 2004 had one specific agenda wherein there is a need to adapt to
the inevitable climate change. The developed and developing countries need to control their temperature
rise upto 5%.

THE PARIS AGREEMENT, 2016

This Paris Agreement was adopted by all the nations in the year 2016. It addresses two things:

- How does the climate change happen?

- What are the negative impacts of the climate change on mankind?

They aim to substantially reduce global greenhouse gases emissions in an effort to limit the global
temperature increase in this century to 2 degree Celsius above pre-industrial levels and to pursue efforts
to limit the temperature increase even further to 1.5 degrees Celsius. 

There are three aims:

- To limit global temperature rise by reducing greenhouse gas emissions;
- To provide a framework for transparency, accountability and achievement of more ambitious
targets;
- To mobilize support for climate change mitigation and adaptation in developing nations.

DIFFERENCE BETWEEN PARIS AGREEMENT AND KYOTO PROTOCOL

- In case of the Kyoto Protocol, it establishes the legally binding emission reduction targets which
includes the penalties for non-compliance for developed nations only. The Paris Agreement
requires all the countries to take efforts for the reduction of greenhouse gas emissions. Under
Paris Agreement, the countries can voluntarily set their reduction targets. No penalties shall be

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imposed for non-compliance. Main aim of Paris Agreement is therefore monitoring, reporting and
reassessing either the individual target of the country or the collective target of the countries.
Further, the Agreement also set forth a requirement of announcing their next target which is to be
achieved in 5 years.

WHAT IS SOCIAL RESPONSIBILITY?

The responsibility of an organization for the impacts of its decisions and activities on society and
the environment, through transparent and ethical behavior that: Contributes to sustainable development,
including health and the welfare of society. The office of UN High Commissioner for Human Rights in
the year 2011 had set up three pillars to ensure the corporate responsibility is being fulfilled towards
promotion of human rights:

- Protect: State duty to protect against human rights abuses by third parties, including business,
through appropriate steps to prevent, investigate, punish and redress such abuse through effective
policies, legislation, regulations and adjudication;
- Respect: Corporate entities have a responsibility to respect human rights of others including
acting with due diligence to avoid violation of others’ rights as well as to address the adverse
impact with which they are involved;
- Remedy: There is a need for greater access to remedy for victims of business or corporate related
abuse, both, judicial and non-judicial remedies must be there.

G Sundarrajan v Union of India:

The court observed that there is a close relationship between CSR and sustainable development. “CSR
and sustainable development are inseparable twins integrated into the principle of intergenerational
equity not merely human centric but eco-centric.CSR is envisaged as a commitment to meet its social
obligations by playing an active role to improve the quality of life to the communities and stake-holders
on a sustainable basis, preferably, in the project area where it is operating.”

Banwasi Seva Ashram v State of UP:

The Court said the concept of sustainable development demanded that the oustees be rehabilitated after
examining their rights. Directions regarding demarcation, expeditious settlement of rights, granting of
appropriate title deed to the claimants were also given.

HUMAN AT THE CENTRE FOR ENVIRONMENT PROTECTION

Environment was considered to be holy and they connected flora and fauna to God. As per
anthropocentric approach, human beings are kept at centre and all the other things revolve around the
human beings. If the Stockholm declaration or Rio declaration are considered, it could be observed that
people are at the centre of sustainable development. (Principle 6 of the Rio Declaration, 2012). This
collates with the anthropocentric approach.

Anthropocentric Approach
After Stockholm 1992, there were a lot of concerns with respect to the environment. When these
principles under the various conferences and conventions are read, it could be observed that the main aim
of the conferences has been sustainable development – preserving resources for the future generations
thus, human beings were at the centre of everything (Anthropocentric approach). This approach considers

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the maintenance preservation and protection of the other components and natural things of the
environment as something essential for the existence of human beings.

- Principle 1 of Stockholm of Conference

- Principle 6 of Rio Declaration 2012

“We recognize that people are at the centre of sustainable development and in this regard we strive for a
world that is just, equitable and inclusive, and we commit to work together to promote sustained and
inclusive economic growth, social development and environmental protection and thereby to benefit all.”

Important cases:

All these cases were decided on the basis of anthropocentric approach.

- MC Mehta v Kamal Nath [1997 SC]: First case where public trust doctrine was adopted;
- MC Mehta v Union of India [Taj Trapezium Case]:
- Oleum Gas leakage case
SC also observed in the case of TN Godavarman v Union of India (SC, 2012) case, wherein anthropo-
centric approach was defined:
“Anthropocentrism considers humans to be the most important factor and value in the universe and
states that humans have greater intrinsic value than other species. Resultantly, any species that are of
potential use to humans can be a reserve to be exploited which leads to the point of extinction of
biological reserves. Further, that principle highlights human obligations towards environment arising
out of instrumental, educational, scientific, cultural, recreational and aesthetic values that forests have to
offer to humans. Under this approach, environment is only protected as a consequence of and to the
extent needed to protect human well-being. On the other hand, ecocentric approach to environment stress
the moral imperatives to respect intrinsic value, inter dependence and integrity of all forms of life.
Ecocentrism supports the protection of all life forms, not just those which are of value to humans or their
needs and underlines the fact that humans are just one among the various life forms on earth.”

MC Mehta v Kamal Nath:

- Facts of the case:
One company, Span Motels Private Limited, wanted to get an approval for the construction of a motel, for
which the state government leased out 27.12 bighas of land. The company ended up selling trees, used
bulldozers and earthmovers that interfered with the natural course of the Beas river which was not ideally
permitted to them.This was done so as to avoid potential floods in the river Beas which could harm the
motel. They had also taken control of the pieces of land that wasn’t ideally granted to them and had
started illegal construction on them.The construction was apparently legal because they were trying to
save the green vegetation in the area from potential floods. They never received permissions to do the
same but they received the same when Mr. Kamal Nath took control of his office. This permission
granted retrospective permission to all the illegal activities that had been done earlier. This encroachment
had a huge impact on the River Beas which led to the river changing its course the second time. This
caused floods and 105 cr worth property was destroyed.

Issues that were considered:

• Whether the court has wrongly inducted Mr. Kamal Nath as a Respondent in the present petition?
• Whether the construction activity carried out by the Motel Company justified?

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Why was Kamal Nath brought in as a party? Because the shares in the company was wholly owned by his
family and he had a personal interest in this ‘dream project’.

Why personal liability? He utilized his public position for private gains, that is why personal liability shall
be accrued.

Arguments of the Respondents:

The respondent never disputed the fact that Mr. Kamal Nath’s family holds almost all the shares of the
Motel Company.With respect to the second issue, the respondents contended that the construction activity
was carried out by the Motel Company on a land under its possession with a view to protect the lease-
hold property.Further, the Divisional Forest Officer had also permitted the motel to carry out such
construction activitiessubject to the condition that the department would not be liable to pay any amount
incurred by the Motel Company for the said construction.

Judgment:
A suo motu action was taken and the public trust doctrine was applied. The Public trust doctrine is
essentially that the natural resources are ‘public goods’ and the government is just the trustee. Nobody
can have an exclusive entitlement to these resources as these resources are for all or for none. The Court
took action against the company and deemed the public as beneficiaries to the natural resources and
imposed a legal duty upon them to protect the resources.

“This theory relies on the principle that naturally occurring resources such as the air, water, forests, and
seas carry immense importance for all humans, and thus it is inexcusable to allow private ownership over
them. It further opined that the doctrine vested with the government, the duty to safeguard these
resources for the benefit of people as a whole and to prevent their use for commercial or private
purposes.”

The Apex Court also noted that the solution of this conflict is for the legislature to look for but in absence
of a legislation for the same, the administrative authorities according to the doctrine are, henceforth,
compelled to be the trustees of natural resources and ensure that their erosion is not permitted for
commercial, private or any other use unless the courts deem it necessary, in good faith, for the good of
and in the interest of the public to intrude upon such resources. In light of the above, the court held that
the Himachal Pradesh government committed a ‘patent breach of public trust’ by leasing out the
ecologically fragile land to the Motel Company Management and quashed the approval granted vide letter
dated November 24, 1993, and the lease deed dated April 11, 1994, in favor of the Company.

The court also further reiterated the principle of polluter pays, and had therefore instructed the Motel
company to make payment for the restoration of the ecology of the region. The National Environmental
Engineering Research Institute [NEERI] was instructed to scrutinize the area and, if required, provide a
report of the approximate cost of reversing the environmental degradation caused.

ENVIRONMENTAL ETHICS
Environmental ethics play an extremely important role in visualizing and studying environmental law.
Two basic questions:

- What is important in environment?

- How and why is it important to study environmental law?

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Role of Environment in one’s life: Life and sustainability is in place only because of environment. Human
existence is possible only because of environment. Human beings’ lives are in danger now which is why
sustainable development was addressed in the Stockholm conference.

ANTHROPOCENTRIC APPROACH
- Anthropocentrists’ see hierarchy in natural order, wherein they find the place of humans above all
of the species.
- Humans are the only beings seen as intrinsically valuable; other beings and environment can have
only instrumental value.
- An ontological divide between humans and other nature.
- Therefore, the basis of this environmental ethics is the human needs and protection for the
exploitation of the natural resources.
- It allows to some extent the exploitation of natural resources and pollution as the activity in
question does not causes irreversible harm or amount to hazardous activity

STAGES OF DEVELOPMENT OF ENVIRONMENTAL LAW FROM ANTHROPOCENTRIC TO ECO-CENTRIC

APPROACH
Stage I: Human self-interest is the main reason for environmental protection as the existence of human
beings without environment is impossible.

Stage II: Treaties for future generations. Treaties were entered by different nations for the protection and
preservation of the environment for future generations and not just for present generation. It was not
looked at from the perspective that environment protection was upheld because there is a need, but rather
was looked at from a selfish perspective favouring the human beings.

Stage III: Recognition of Nature’s rights

- In 2017, the Uttarakhand High Court ruled that the Indian rivers Ganga and Yamuna, the
Gangotri and Yamunotri glaciers, as well as other related natural elements are “legal persons”
with all corresponding rights, duties and liabilities of a living person. Subsequently, in 2018, the
same High Court ruled that the entire animal kingdom has rights equivalent to that of a living
person.
- As recently as March 2020, the Punjab and Haryana High Court passed an order declaring the
Sukhna Lake in Chandigarh city as a living entity, also with rights equivalent to that of a person.
– This is the eco-centric approach, where the general masses have started recognising the living
existence of natural resources.

Why were these rights extended to these natural resources? OR Why has there been a change from the
anthropocentric approach to ecocentric approach?

1. It is prudent to protect and preserve the vegetation species and species of fauna, which will
ultimately lead to the protection and preservation of human beings;
2. It has been realised that much has been done in the form of legislative and administrative actions,
in a generalised way, to guard the natural resources. But this was not found sufficient to
safeguard various species of flora and fauna which are on the verge of extinction or are
vulnerable for extinction.

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Therefore, the approach has shifted from human beings being considered superior to environment to one
where they are a part of the environment and therefore need an equal level of protection.

DOCTRINES OF INTERNATIONAL LAW RELATED TO NATURAL RESOURCES: (OUT OF COURSE)

All humans or mankind have a right over nature. Nature is considered as a natural gift to the mankind.
Besides taking food and shelter from resources, we also started taking minerals etc. from nature post
industrialization. The harmony between people and nature got disturbed.

 Doctrine of conquest: Whoever used to conquer a land (or other natural resource) was considered
as the owner of that particular land;
 Doctrine of discovery;
 Doctrine of occupation – whoever occupies. Island of Palmers - a case supported by discovery is
incomplete until it is supported by occupation – terra nullis;
 Doctrine of adverse possession;
 Treaty of bilateral contracts;
 Doctrine of sovereignty;
 Doctrine of distributive justice with respect to utilization of natural resources;
 Principle of compensation and rehabilitation to the victim of environmental activity.
Compensation that is to be paid is the fair market value.

VARIOUS INTERNATIONAL LAW PRINCIPLES

 Principle of sustainable development
 Principle of co-operation
 Precautionary principle
 Polluters Pays Principle
 Principle of preventive action
 Principle of common but differentiated responsibility
 Doctrine of public trust – Government is the trustee and public are beneficiaries of a public
property.

There was a drawing competition - 2 sets of people were participating (kids and adults) – first adults were
allowed to paint and draw nature on canvas – after that, kids were asked to draw and paint using the same
set of colors. At the end of the day, when pictures of these were compared, kids only had a black and gray
because all the beautiful colors were used by the parents – leaving nothing for children. Kids' lives can't
be beautiful if adults don’t use their resources wisely.

31/08/2020

Human Development and growth is based on environment and environmental interaction. New human
activities gave rise to situations where resources were being used at a faster rate than their rate of
replenishment. This resulted in an exhaustion and an imbalance in the cycle of nature.

THREE PILLARS OF SUSTAINABLE DEVELOPMENT

- Environmental protection and preservation
- Economic growth
- Social equality

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Section 20 of the NGT Act, 2012 says that, “The Tribunal shall, while passing any order or decision or
award, apply the principles of sustainable development, the precautionary principle and the polluter pays
principle.”

WHAT IS PRECAUTIONARY PRINCIPLE?

Principle 15 of the Rio Declaration says that a lack of scientific know how is not a ground for the states to
degrade the environment. “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.” The idea herein is to be better safe than sorry. The
Biological Diversity Convention, 1992 and the Cartagena Protocol on Bio-Safety, 2000 were few
multinational agreements on precautionary principle.

1. Vellore Citizen Welfare Forum v Union of India:

There was a petition filed by the Forum under Article 32, considering the large pollution that the
discharge from the tanneries were causing to the rivers. The tanneries justified that it boosted economy
and gives employment.

- Vellore citizens: Huge pollution caused where untreated effluents were released in the river
which was used for drinking and bathing by the people.
- TN Agri Research Institute: Lots of land got infertile because of the discharge. 35,000 hectares of
land became unfit for cultivation.

The SC analyzed the relationship between economic development and environment and addressed if the
tannery could operate at the cost of life. SC came up with harmony that tanneries are important for
foreign exchange and employment but they have caused a hazardous situation for the people and therefore
ruled in the favour of the petitioners.

It emphasized on the ‘green branches’ in India which would concern the speedy disposal of
environmental law cases. The court also held that both pollution and protection are a part of law. All three
principles are exceptions here. These principles are derived from different Acts like Water Pollution Act
and are a part of International Law. The Constitutional and statutory provision protect a person’s right to
fresh air, clean water and pollution free environment, but the source of the right is the inalienable
common law right of clean environment.

2. MC Mehta v Union of India (Taj Trapezium case):

A WP was filed in the year 1984 against the adverse effect of industry and vehicle on the area
surrounding Taj Mahal. The Vardharajan Committee report was referred to which discussed the impact of
Mathura refinery in 1978. The Committee report said that the pollution from the power plant is causing
damage to monument and the environment.

The Court said that since Taj Mahal is of international importance and brings in revenue to the economy,
the beauty of the same must not be compromised. In this case, the court interpreted the principle of
polluter pays’ and the precautionary principle. It said that the municipal law means that environmental
measures by the government and the state authorities must anticipate, prevent and attack causes of
environmental degradation. In a situation where an irreversible damage has been made, the onus is on the
industrialist or the actor to show that the action was environment friendly.

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1. Calcutta Tanneries case, 1997:
Facts:
This was perhaps one of the earliest cases where the activities of tanneries were brought to the attention
of the Supreme Court. This case was a public interest litigation presented before a Division Bench of
the Hon’ble Supreme Court comprising of E.S. Venkataramiah and K.N. Singh, JJ. The petitioner M.C.
Mehta, who was an active social worker had filed this petition inter alia for the issue of a
writ/order/direction in the nature of mandamus to the respondents restraining them from letting out the
trade effluents into River Ganga until the time they put up necessary treatment plants for treating the
trade effluents in order to arrest the pollution of water on the said river. Respondent 1 was the Union of
India, Respondent 7 — the Chairman of the Central Board for Prevention and Control of Pollution,
Respondent 8 — the Chairman, Uttar Pradesh Pollution Control Board and Respondent 9 — the Indian
Standards Institute. Respondents 14 to 87 and 89 were the tanneries near Kanpur.It was the complaint
of the petitioner that neither the Government nor the people were giving adequate attention to stop the
pollution of River Ganga. It was therefore sought that steps should be taken for the purpose of
protecting the cleanliness of the stream in River Ganga. It was contended that the trade
effluentdischarged from tanneries was ten times noxious when compared with the domestic sewage
water which flows into the river from any urban area on its banks and was thus a major source of
pollution of River Ganga.There was not much dispute on the question that the discharge of the trade
effluents from these tanneries into River Ganga had been causing considerable damage to the life of the
people who used the water of River Ganga and also to the aquatic life in the river. However, the
tanneries of Kanpur had presented that due to lack of physical facilities, technical knowhow and funds,
it had not been possible for most of them to install adequate treatment facilities. It was pleaded on
behalf of a few tanneries that if some time was given to them to establish the pre-treatment plants they
would install them. It was, however, submitted by all of them that it would not be possible for them to
have the secondary system for treating waste water as that would involve enormous expenditure which
the tanneries themselves would not be able to meet.In his judgment Venkataramiah, J., held that the
State was under a constitutional duty to protect and improve the environment and to safeguard the
forests and wildlife of the country. In the opinion of the Court, it was a fundamental duty of every
citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife, and
have compassion for all living creatures.As a result, there was a statutory prohibition against the use of
any stream or well for the disposal of polluting matter. This meant that no person could knowingly
cause or permit any poisonous, noxious or polluting matter to enter, directly or indirectly, into any
stream; or, knowingly cause or permit to enter into any stream any other matter which may tend, either
directly or in combination with similar matters to impose an obstruction on the proper flow of the water
of the stream.The Court further held that it was the duty of the State Government, through the State
Boards, and the Central Government to use the powers conferred upon them by statute to take all such
measures as it deemed necessary or expedient for the purpose of protecting and improving the quality
of the environment and preventing, controlling and abating environmental pollution. In cases of this
nature, the Court could issue appropriate directions if it found that public nuisance or other wrongful
acts affecting or likely to affect the public are being committed and the statutory authorities, who are
charged with the duty to prevent such activities, are not taking adequate steps to rectify the
grievance. Finally, it was said that just like an industry which cannot pay minimum wages to its
workers, cannot be allowed to exist, a tannery which cannot set up a primary treatment plant couldn’t
be permitted to continue to be in existence. This is because the adverse effects on the public at large

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which are likely to ensue by the pollution of the Ganga would be immense and would outweigh any
inconvenience that may be caused to the management and the labour employed by it on account of
closure of the tanneries. Thus, the financial capacity of the tanneries was to be considered as irrelevant
while requiring them to establish primary treatment plants. It was, therefore, directed that those
tanneries, which had failed to take the minimum steps required for the primary treatment of industrial
effluent were to be closed down, and though such closure of tanneries could bring unemployment, loss
of revenue, etc. life, health and ecology were held to have greater importance to the people. What we
see in this decision is a pro-active and bold stance taken by the Hon’ble Supreme Court towards the
protection of the fragile environment in which we exist. There is a realisation of the great role played
by our rivers, especially the Ganga in the lives of millions of Indians and the dire need to protect it. The
noteworthy aspect of this decision is the high standards of accountability that it creates for the
concerned statutory bodies, with respect to the protection of the environment. Another aspect, which is
worth noting, is the great emphasis it lays on the protection of environment over the economic interests
and feasibility arguments advanced by the polluting tanneries.
Summary:
I n MC Mehta v Union of India, which is known as Calcutta tanneries case, the
SupremeCourt was called upon to issue directions to the polluting industries in
Calcutta to stopdischarging untreated effluents into the river Ganga. Justice Kuldip Singh, who
delivered thejudgment of the Court, relying on the ratio laid down in Vellore Citizens’ Welfare
Forum andIndian Council for Enviro-Legal Action cases, declared that “one who pollutes have to
pay toreverse the damage caused by his acts.

2. Kanpur Tanneries case, 1988:

Facts:
Due to discharge of untreated effluents in the Ganga river, the water of the river was rendered unsafe
for drinking, fishing and bathing purposes, essentially creating a public nuisance. In M.C. Mehta v.
Union of India & ors., ((1987) 4 S.C.C. 463), the Court had held the city municipality, Kanpur Nagar
Mahapalika (Mahapalika), responsible for water pollution. The Mahapalika had a statutory duty to
protect the environment and maintain public cleanliness. The duties and powers of the Mahapalika and
its authorities were set out in Chapter V of the Uttar Pradesh Nagar Mahapalika Adhiniyam (the Act),
Chapter 114, Clauses (iii), (vii) and (viii), which also Moreover, Central and State Boards appointed
under the Water (Prevention and Control of Pollution) Act, 1974 (Water Act) were responsible for the
prevention and control of water pollution. The Central Board supervised the State boards and advised
the Central Government. The State Boards were responsible for the actual water pollution management
and control programs, and it had the power to take emergency measures, including applying to a
Magistrate to restrain an entity who is causing pollution. Additionally, The Environment (Protection)
Act, 1986 (EPA) provided that when pollution was caused by a government department the head of that
government department would be guilty of an offence and liable for punishment. The issue before the
Court was whether the Petitioner, Mr. M.C. Mehta could file this petition in the Court and who should
be held responsible for the pollution.

Decision and Reasoning:

As to whether the Petitioner could file the petition, the Court held that since the pollution was a public
nuisance and indiscriminate in its effect, it was to be treated as a public interest litigation. Holding that
Mr. Mehta was a person interested in protecting people who used the water, the Court held that he

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could file a petition to enforce the statutory provisions against the Mahapalika and against other
statutory bodies involved. On the effects of water pollution, the Court made particular mention of the
increased incidence of water-borne disease that resulted from poor water management and the
consequent risks such diseases posed to the communities which shared the water source. Regarding the
benefits of preventing pollution, the Court stressed that prevention of water pollution will result in a
general improvement in the standard of health of the population. It further noted that the process of
prevention could potentially be used as manure and thus help the agriculture industry. The Court also
held that measures of prevention not being unduly costly were within the reach of, both, developing and
developed nations. On the issue of responsibility for the pollution, the Court held that it was the
responsibility of industries to ensure that their industrial waste was treated before being discharged. It
held that industrial licences should be issued only when the industry can demonstrate that it has
adequate provision for the treatment of trade effluents. It further held that action should be taken
against existing industries if they were found responsible for water pollution. The Court also held the
Mahapalika responsible for not taking steps to check pollution and for not abiding by its statutory
duties. It directed the Mahapalika to take immediate steps to put schemes and policies in place to check
pollution and to submit proposals concerning sewage treatment works of the Boards sewage treatment
facility in the area within six months of the order. The Court further held that under Article 51A of the
Constitution, the Central Government had a duty to prevent pollution and improve the environment. It
was, therefore, the Central Governments duty to increase awareness in the nation by providing for
compulsory study of the natural environment. The Court directed the Central Government to publish
and distribute books, free of cost, for this purpose. The Court further directed the High Court to refrain
from ordering a stay of criminal proceedings when the State Board has instituted criminal prosecution
against industrialists for pollution. The Court held that the judgment was to apply to all Mahapalikas
which have jurisdiction over the areas through which the river Ganga flows.
WHAT IS PREVENTIVE PRINCIPLE?
The main aim of this principle is to prevent environmental damage which might hinder the efforts that
have been taken to reduce/limit/control action. The aim here is to prevent damage and to limit, reduce or
control the same. The state is responsible to ensure that harm has been prevented. This was drafted in
response to prevent environmental harm. The Basel Convention is based on this principle. The preventive
principle is the fundamental notion behind laws regulating generational storage, transport treatment of
hazardous waste and regulated use of pesticides.

1. Gabcikovo-Nagyamaros case:
An agreement existed between Hungary and Slovakia for the creation of locks on some river. Hungary
said that there is a serious risk to their environment and therefore abandoned the project, because the
project would have also led to a hindrance to the water supply in Budapest. The court opined that it is
essential to protect environment when there is an irreversible harm. But also opined that there is no
trouble as far as Hungary’s concern is there. Both parties need to look at this from an environmental
aspect and find a satisfactory outcome.

2. Ajeet Mehta v State of Rajasthan, 1989:

A petition was filed by a person with respect to pollution caused in the locality by stocking/loading of
fodders. The particles of the same caused air pollution as the smoke of the same would cause dangerous
implications to the health of the people. This business caused health threats (physical discomfort and lung

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diseases) and must be closed. On a revision petition, the court ordered the removal of stock within 6
months.

The court clarified in the case of MC Mehta v Union of India that mining in scientific development comes
with the concept of balanced mining. Balancing of mining with environment protection and banning it are
two different sides of the same principle of precautionary principle.

FIVE KEY ELEMENTS FOR PRECAUTIONARY PRINCIPLE [DO NOT KNOW WHAT HAPPENED
TO THIS]
- Alternative assessment: To see whether option chosen is the best suitable one and if not choose
the option which shall have less impact. This alternative essentially points at doing absolutely
nothing.
- Right to Know: If the plan has started, the community has the right to know how it affects them
and the environment. For example, mobile tower in residential areas. It must be ensured that the
tower radiation rules have been adhered to. Burden is on the project holder to assess what are the
risks that are involved.
1. Govind Singh v Shanti Swaroop:
There was a bakery, the chimney smoke of which caused pollution and hence the bakery was shut down,
considering the prevention principle. Under prevention principle, the harm must be prevented before it
takes place. When there is a suspicion about environmental harm in future, this principle is applied.

“If strong suspicion that some environmental harm is caused, then it is better to control it rather than
causing the harm.”

DIFFERENCE BETWEEN PREVENTIVE AND PRECAUTIONARY PRINCIPLE

Preventive Principle Precautionary Principle
State authority must prevent. If notion about threat to the environment, then precautions
must be taken beforehand.
Post activity, if the harm is done, more EIA must be done.
harm must be prevented.
POLLUTER PAYS’ PRINCIPLE
It is also known as the Extended Producer Responsibility Principle. Since there are revolutions taking
place, this poses more burden on the environment.  Under this principle, the people responsible for
causing pollution will have to pay damages to restore the environmental condition. This was initially
applied and recognized by the OECD nations in 1970. The person causing the environment owes the
liability to compensate. Later, this principle was recognized under Principle 16 of Rio Declaration as –
“national authorities should endeavour to promote the internalization of environmental cost and use of
economic instrument.”

“Internalization of environmental cost”- charging a polluter of all the cost that his activity created for
other persons. The principle includes 2 things: -

- the polluter should pay for the administration of the pollution control system; and
- polluter should pay for the consequences of the pollution. The polluter will pay for injuries
caused to the victims.

If NOC, EIA protocols or any other precautionary measures are not followed, the polluter will have to pay
for any violation of such protocols or harm caused to the environment. The government will not bear any

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damages. From preventing the damages till the remedial recourse, the polluter will pay for everything.
This creates responsible behavior.

1.   Indian Council for Enviro Legal Action v. Union of India (2011):

In this case, the polluter pays principle was applied for the first time.  The court said that the polluter pays
principle demands that the financial cost of preventing or remedying the damage caused by pollution
should lie with the undertakings which caused the pollution or produced the goods which caused the
pollution. Under the principle, it is not the role of the government to meet the costs involved in either
prevention of such damage or carrying out remedial action.It was also stated that govt. will not bear the
cost because the effect of this would be to shift the financial burden of the pollution incident to the tax
payer. The principle was first promoted by the OECD countries during 1970s. When there was great
public interest in environmental issues, there were demands on governments and other institutions to
introduce policies and mechanism to protect people from threats of industrialization. They introduced
polluter pays principle during that time. Stockholm Conference took place in 1972, although it does not
mention anything about polluter pays principle. It took 20 years to recognize this principle, which was
done in the Rio Declaration, 1992.Sections 3 and 5 of the Environment Protection Act mentions the
mechanism of how the Central Govt. has the power to give directions.Bhopal gas tragedy also involved
the principle but they did not completely recognize this principle.

2.   S. Jagannath v. Union of India [Shrimp Farming Case]:

This case brought into force for the first time the non-implementation of the CRZ notification. Though the
notification was enacted, it was never brought into force and the petitioner filed this writ for stoppage of
intensive and semi-intensive type of prawn farming in the ecologically fragile coastal areas and for
prohibiting use of wastelands and wetlands for prawn farming. The petitioner also sought for the
constitution of a National Coastal Zone Management Authority to safeguard the marine and coastal areas.
The allegation of the petitioner was that the coastal states were allowing big business houses to develop
prawn farms on a large scale in the coastal States in violation of the EPA, 1986 and various other
provisions of law.  The Court ordered NEERI to visit the coastal states of Andhra and Tamil Nadu and
give its report on the status of farms set up in the said areas. The report submitted indicated that due to the
impact of aquaculture, the environment was adversely degraded. The impact was on surface water,
contamination of soil and ground water and destruction of mangrove vegetation.

PRINCIPLE OF EQUITY AND EQUALITY

Sustainability with respect to the environment can be attained only though this principle. In the case of
M.C. Mehta v. Kamal Nath, it was held that no one has absolute ownership over natural resources. As per
this principle, common ownership of resources and their equitable distribution is the fundamental tenet
behind the welfare of a society. No one can have absolute ownership over any resource. Equity - There
should be a minimum standard below which the quality should not fall.
Objectives:
 To meet the needs of present without compromising the ability of the future generations to meet
their own needs;
 To provide fair treatment: This refers to respecting the rights of non-human living organisms -
those who are sentient but do not have a voice (shift from anthropocentric to eco-centric
approach);
 To persuade individual not to negatively affect the health and rights of another person.

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 To guarantee equitable access to natural resources and the equitable dist of socio eco benefits
from the use of natural resources depending upon the availability of the right to use resources;
  To safeguard the vulnerable sections during development. There are certain communities that
directly depend on natural resources, for e.g. dependence on forest wood, pasture lands for
grazing, water, etc. if there is environmental degradation, it will negatively impact the right to life
of these vulnerable sections;
 To guarantee a fair allocation of resource rights so that it would result in individuals and
communities cooperating in the collective management of the resources.
Article 39 of the Indian Constitution provides for adoption of a policy by the State for sustainable
development. State is considered to be the legal owner and trustee of its people and basically, because of
this particular obligation, the state must ensure that the process of distribution is guided by the doctrine of
equality and equity. Article 39(b) directly talks about resources. Article 39(c) is also relevant in this
context.
1. Hinchlal Tiwari v. Kamla Devi (2001, SC):
It is important to notice that the material resources of the community like forest, tanks, ponds, mountain,
hillocks etc. are nature’s bounty. They maintain a delicate ecological balance. They need to be protected
for a proper and healthy environment which enables people to enjoy a quality life which is the essence of
the guaranteed right under Article 21 of the Indian Constitution.

2. Centre for Public Interest Litigation (CPIL) and Ors. v. Union of India (2012) :
Definition of natural resources (para no. 63)–“At the outset, we consider it proper to observe that even
though there is no universally accepted definition of natural resources, they are generally understood as
elements having intrinsic utility to mankind. They may be renewable or non-renewable. They are thought
of as the individual elements of the natural environment that provide economic and social services to
human society and are considered valuable in their relatively unmodified, natural, form. A natural
resource's value rests in the amount of the material available and the demand for it. The latter is
determined by its usefulness to production. Natural resources belong to the people but the State legally
owns them on behalf of its people and from that point of view natural resources are considered as
national assets, more so because the State benefits immensely from their value. The State is empowered to
distribute natural resources. However, as they constitute public property/national asset, while
distributing natural resources, the State is bound to act in consonance with the principles of equality and
public trust and ensure that no action is taken which may be detrimental to public interest. Like any other
State action, constitutionalism must be reflected at every stage of the distribution of natural resources.
In Article 39(b) of the Constitution it has been provided that the ownership and control of the material
resources of the community should be so distributed so as to best sub-serve the common good, but no
comprehensive legislation has been enacted to generally define natural resources and a framework for
their protection. Of course, environment laws enacted by Parliament and State legislatures deal with
specific natural resources, i.e., Forest, Air, Water, Costal Zones, etc.”

3. Nagesh v. Union of India (1993):

In its initial stage, the Directive principles were approached, considered and treated in a pure legalistic
approach but there have been cases pointing to bold steps towards a social welfare concept of the state in
an era of judicial activism giving new dimension to the directive principles. Article 39(b)- the word
“distribution” must be liberally construed to ensure equitable distribution.

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The principle of equity emphasizes the importance of good governance, redistribution of income and
wealth, empowerment, participation, transparency and accountability.

PUBLIC TRUST DOCTRINE

 M.C. Mehta v. Kamal Nath
 Madison v. Duck Town Sulphur Companies
 Georgia v. Tennessee Copper Company
 M.I. Builders v. Radhe Shyam Sahu (1999): The court covered Public trust doctrine under the
right to life and stopped the construction of the shopping complex in the place of a public garden
stating the garden as a public resource. The court observed that the park is a public place with
historical importance. The court cited Public trust doctrine and M.C. Mehta case as a precedent.
The court stated that allowing the construction will deprive the public of the quality of life as
stated under Article 21 of the constitution. The court put the government under the obligation to
maintain the public park for the citizen’s as the government has obligatory duties under Public
trust doctrine which is applicable in India.The court stated that public trust doctrine is derived and
evolved under Article 21 of the Indian constitution and it is evoked in India to protect the
fundamental right of the people.
 Jamshed Wadia v. Board of Trustee, Port of Mumbai (2002): State’s action and the action of its
instrumentalities or agencies, must be for the public good achieving the objectives for which they
exist and should not be arbitrary. In the context of designing contracts, they should design their
activities in a manner which would ensure competition and non-discrimination and they can
augment their resources but the object should be to serve the public cause and to do public good
by resorting to fair and reasonable methods.

INTER-GENERATIONAL EQUITY
It refers to the equity between the generations which includes the need of the future generations in the
designing and implementation of current policies. It emphasizes the duties of present generation towards
the future generations.  It is derived from the idea of Immanuel Kant – posterity benefits from the works
of the ancestors. Coming generation must get benefits from the work done by the ancestors.
1. State of H.P. v. Ganesh Wood Productsrecognized the principle of sustainable development and
inter-generational equity.
2. Rural Litigation and Entitlement Kendra v. State of U.P. (1987) held that environmental assets
are permanent assets of mankind.

ABSOLUTE LIABILITY V STRICT LIABILITY

The Law decides the rights and liabilities of the parties, through a set of rules. Through the case of
Rylands v Fletcher, the rule of strict liability was carved out. There is no requirement of escape of
dangerous thing under absolute liability. Absolute liability rule shall be applicable also to those who are
injured within the premise and person outside the premise. The area that a gas leak can cover will be
larger than in the case of a reservoir.

As per this rule, if a party is in possession and is responsible for the upkeep of a hazardous substance,
then they have a strict liability if any hazardous activity is carried out. There are certain exceptions under

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strict liability, while there are no exceptions under absolute liability. In the case of Union of India v
Prabhakaran Vijay Kumar, absolute liability is not subjected to any exceptions.

The case of MC Mehta v Union of India laid down the foundation for absolute liability in India.

1. MC Mehta v Union of India (Oleum Gas Leak):

One unit of Shriram Manufacturing malfunctioned and caused a Gas Leak. This caused the death of an
advocate. The court shifted its approach from strict liability to absolute liability, the reasons for the same
are:

- Most of the land in India are agricultural land and therefore the case of Ryland v Fletcher shall
not be relied on, as it dealt with the construction of reservoirs;
- As the industrial growth is at a higher pace, this remedy will not serve the purpose of industrial
development.
- It is a very old law, when the pace of industrial development/economic condition of the country is
taken into consideration along with the development of the law.

Difference:
- No exceptions for absolute liability, while there will be exceptions for strict liability.

If the enterprise is permitted to carry on a hazardous or inherently dangerous activity for its profit, the law
must presume that such permission is conditional on the enterprise absorbing the cost of any accident
arising on account of such hazardous or inherently dangerous activity as an appropriate item of its
overheads.

The rule in Rylands v. Fletcher laid down a principle of liability that if a person who brings on to his land
and collects and keeps there anything likely to do harm and such thing escapes and does damage to
another, he is liable to compensate for the damage caused. This rule applies only to non-natural user of
the land and it does not apply to things naturally on the land or where the escape is due to an act of God
and an act of a stranger or the default of the person injured or where the thing which escapes is present by
the consent of the person injured or in certain cases where there is statutory authority. This rule evolved in
the 19th century at a time when all these developments of science and technology had not taken place
cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms
and the needs of the present day economy and social structure. In a modern industrial society with highly
developed scientific knowledge and technology where hazardous or inherently dangerous industries are
necessary to carry on as part of developmental programme, the Court need not feel inhibited by this rule
merely because the new law does not recognise the rule of strict and absolute liability in case of an
enterprise engaged in hazardous and dangerous activity. Under strict liability, even potentially or per se
hazardous institutions were not involved. Absolute liability will fall only on those enterprises which are
involved in activities associated with hazardous substances or inherently dangerous activity.

An enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential
threat to the health and safety of the persons working in the factory and residing in the surrounding areas
owes an absolute non-delegable duty to the community to ensure that if any harm results to anyone, the
enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous
activity must be conducted with the highest standards of safety and if any harm results on account of such
activity the enterprise must be absolutely liable to compensate for such harm irrespective of the fact that

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the enterprise had taken all reasonable care and that the harm occurred without any negligence on its part.
If the enterprise is permitted to carry on a hazardous or inherently dangerous activity for its profit, the law
must presume that such permission is conditional on the enterprise absorbing the cost of any accident
arising on account of such activity as an appropriate item of its overheads. The enterprise alone has the
resource to discover and guard against hazards or dangers and to provide warning against potential
hazards.

DEEP POCKETS THEORY

The measure of compensation in such kind of cases must be co-related to the magnitude and capacity
of the enterprise because such compensation must have a deterrent effect. The larger and more
prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm
caused on account of an accident in carrying on of the hazardous or inherently dangerous activity by
the enterprise.

1. Charanlal Sahu v. Union of India (1990, SC): 

The above rule was reapproved. The rule of absolute liability is absolute and non-delegable and the
enterprise cannot escape liability by showing that it has taken reasonable care and that there was no
negligence on its part. The basis of this rule is that if an enterprise is permitted to carry on a hazardous or
inherently dangerous activity for its profit, the law must presume that such permission is conditional on
the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently
dangerous activity as an appropriate item of its overhead and the enterprise alone has the resource to
discover and guard against the danger and to provide a warning against potential hazards. Indemnification
of all the persons who suffered the harm is also involved.

2. Bhopal Gas Tragedy- Union Carbide Corporation v. Union of India (1991)

Facts: The Union Carbide (India) Ltd. (UCIL), a sister concern of Union Carbide Corporation (UCC),
owned and operated in Bhopal, was a plant manufacturing pesticides. One of the ingredients used in the
composition of pesticides was Methyl Isocyanate (MIC) which is considered to be the most toxic
chemical in industrial use. On the night of 2nd December, 1984, there was escape of MIC from the tanks
in which it was stored. The fumes blew into the hutments surrounding the plant premises affecting the
residents and also the flora and fauna. About 4000 people lost their lives and the health of tens of
thousands of people was affected in various degrees of seriousness. This catastrophe not only left the live
human beings, flora and fauna victimized it also injured the babies in the womb. The residents of Bhopal
are suffering even today due to this ghastly catastrophe that happened due to the negligence of a
multinational company.
To provide speedy justice to the victims, the Union of India immediately enacted the Bhopal Gas Leak
Disaster (Processing of Claims) Act, 1985 making the Union of India representative of the victims by the
virtue of Doctrine of Parens patriae. However, the validity of this act was challenged in Supreme Court on
the ground that since the Union of India was also owner of minority shareholders, they are also
responsible for the disaster. However, the court by applying CharanlalSahu v. Union of India, ruled in
favor of the Union of India and held that the state is obligated to protect the interests of its citizens across
the globe. The court further held that our Constitution makes it imperative for the state to secure to all its
citizens the rights guaranteed by the Constitution and where the citizens are not in a position to assert and
secure their rights, the state must come into picture and protect and fight for the rights of the citizens.

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The Union of India decided to litigate in an American court, however, the court at once dismissed the
case on the grounds of forum non conviniens.Therefore, in September 1986, Union of India initiated
proceedings against Union Carbide in Bhopal District Court. The District court asked Union Carbide to
deposit as sum of 350 Million as interim compensations. Union Carbide went into appeal in High Court &
the court reduced the sum to 250 Million. Finally, Union Carbide reached Supreme Court. The Supreme
Court ordered Union Carbide to pay US $470 million. This settlement was way less than the promised
amount by the government and also various jurists considered it to be an inappropriate compensation.
Therefore, the legal validity of this settlement was challenged in Union Carbide Corporation v. Union of
India. The petitioners in this case argued that the drop of criminal proceeding against Union Carbide was
illegal and the amount of compensation was inappropriate to the injury that the disaster had caused. In
this case the majority opinion was given by Justice Venkatchaliah. The majority opinion directed that the
quashing of criminal proceedings against Union Carbide was not justified and held that the criminal
proceedings must be initiated. On the point that whether such compensation is adequate or not the
majority bench held that the said compensation is adequate, reasonable and fair and in case any deficiency
arises in money for rehabilitation, such money shall be tendered by the Union & State government. On
this point Ahmadi J. dissented with the majority that when Union of India is not even remotely connected
to the MIC leak in UCIL then how it could be made liable to pay the damages. In his opinion any
deficiency that may arise in rehabilitation of victims must be tendered by Union Carbide as applying the
formula of Rylands v. Fletcher.
MEANING OF COMMON BUT DIFFERENTIATED RESPONSIBILITY
This was in relation to climate change. When the entire world was dealing with the problem of climate
change, this word emerged for the time in UNFCC where it was said that the development requires a
notable increase of energy access and usage all across the world but the issue is that due to this particular
requirement this comes at a great cost to the environment and the climate. Even though development is
one need, another urgent need is that how these developmental changes are hampering the environmental
conditions.

Principle 7 of Rio Declaration - States shall cooperate in a spirit of global partnership to conserve,
protect and restore the health and integrity of the Earth's ecosystem. In view of the different contributions
to global environmental degradation, States have common but differentiated responsibilities. The
developed countries acknowledge the responsibility that they bear in the international pursuit of
sustainable development in view of the pressures their societies place on the global environment and of
the technologies and financial resources they command.

Because of the pace of economic development which is different in different countries, the common
problem is faced by the entire world but the degree of responsibility shared would be different. CBDR
states that the global nature of climate change calls for widest possible cooperation by all countries and
their participation in an effective and appropriate international response in accordance with their common
but differentiated responsibilities and respective capabilities and their social and economic condition.
Climate change is a common problem but it gives different responsibilities to different stakeholders. The
countries were divided into developed, developing and least developed countries wherein the developed
countries had a greater mitigation role to play.
 
INTER-GENERATIONAL AND INTRA-GENERATIONAL EQUITY

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Inter-generational equity is related to sustainable development. It refers to the equity between generations
which includes the need of the future generation. Policies must be such that resources are utilized in a
wise manner in such a way that resources are preserved for the future generation. It is kind of a trust.
Present generation is considered as a trustee for the future generations. Thus it is related to sustainability
of the resources and the needs and requirements of the future generations. There are two components to
this:

 Fair utilization of resources - fair use between past, present and future. There must be a balance
between consumptive demands of the existing society and ensuring availability of adequate
resources for the future generations to meet their needs
 Intra generational equity - the utilization of the resources must be done fairly by the members of
the present generation both at the domestic and global level.
There are three principles forming basis of Inter-generational obligations and rights, Planetary rights and
obligations and rights and responsibilities derived from each generation (principles of inter-generational
equity). They are:
 Principle of conservation of options- each generation is required to preserve the diversity of the
natural and cultural resources so that it does not restrict the options available to future generations
in solving their problems and satisfying their values and should also be allowed to diversity
comparable to that enjoyed by previous generations.
 Principle of conservation of quality- it means each generation should be required to maintain
the quality of the planet so that it is passed on in no worse condition than in which it was received
and each generation should also be entitled to planetary quality enjoyed by previous generations.
 Principle of conservation of access- each generation should provide its members with equitable
rights of access to the legacy of past generations and should conserve this access for future
generations.
Lacuna: It does not explain how many future generations are to be included. It does not place a bar.
Some of the flora and fauna became extinct due to natural changes in the environment and not due to the
activities of mankind. It does not provide clarity on how to preserve those species or resources. Therefore,
they do not talk about how long they must be extended.
 State of H.P. v. Ganesh Wood Productsrecognized the principle of sustainable development and
inter-generational equity.
 Rural Litigation and Entitlement Kendra v. State of U.P. (1987):
It is always to be remembered that environmental assets are permanent assets of mankind and are not
intended to be exhausted in one generation.Assimilative Capacity Approach- Prior to the Stockholm
Conference, the perspective was that Earth or Mother Nature had the “assimilative capacity” to resolve
environmental issues on its own. Nature can absolve the ill effects causes to the environment.

MOVING TOWARDS THE PROACTIVE APPROACH

“Reactive approach” (something between the assimilative capacity approach and the proactive approach)
- When the impact of a particular activity such as emission of hazardous substances is not completely
clear, then the general presumption is that the activity can be allowed to continue until the uncertainty is
absolved completely.

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Precautionary principle counters this general presumption. It gives its counter argument. It says that when
there is uncertainty regarding the impacts of an activity, the precautionary principle advocates action to
anticipate and avert environmental harm. The precautionary principle is inclined towards monitoring,
preventing and/or mitigating uncertain potential threats. We don’t wait for the threat to happen and we
apply the precautionary principle by being more aware. It focuses on careful planning so that risks could
be avoided. EIA is also based upon precautionary principle.
A.P. Pollution Control Board v. Prof M.V. Naidu (1999 SC 812):
This case traces the evolution of the precautionary principle. The court observed that the earlier approach
concentrated on the assimilative capacity approach as reflected in Principle 6 of Stockholm Declaration,
1972.  The said principle assumed that science could provide policy makers with the information and
means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it
presumed that relevant technical expertise would be available when environmental harm was predicted
and there would be sufficient time to act in order to avoid such harm.But in the 11 th principle of World
Charter for Nature, 1982 and Principle 15 of Rio Conference 1992, the emphasis shifted on the
precautionary principle. It had turned the burden of proof. Initially, the person claiming that harm was
being caused or the one who asserted had the burden to prove. Later, the burden of proof shifted to a
Reverse Burden.

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MODULE III: CONSTITUTIONAL LAW AND ENVIRONMENTAL LAW
This will be divided into two parts:

- Preamble and the Centre State relations: This deals with what does the Preamble talk about.
- Fundamental Duties

Constitution of India is considered as a living document. It did not really have provisions dealing with
environment protection. Due to economic progress, there were challenges that came up in India with
respect to the environment, thereby leading to inclusion of environmental protection in the Constitution.

1. Preamble and the Centre State Relations:

-------Incomplete Notes-----------------

Union and State Relations: Power has been divided between the Union and the State government. The
Parliament has the power to make laws for the whole country while the State Legislature has the power to
make laws specific to the States. There are number of areas in which India could be divided into where
some people have access to and some don’t. There are different rules and laws that are applicable to these
different areas. There are certain matters which are of national interest but are mentioned as a part of the
State List. The Water Prevention and Control of Pollution Act, 1974 was enacted by the Central
Legislature after taking the consent of the States. International Conventions are also the reason why such
Acts are enacted in our country.

2. Fundamental Duties: As per the 42nd Amendment, certain Fundamental duties and
fundamental rights were introduced that focused towards environment protection and
preservation. Article 51A(g) of the Indian Constitution mentions the fundamental duty of the
citizens to protect and improve the natural environment including forests, lakes, rivers and
wild life, and to have compassion for living creatures.

LK Koolwal v State of Rajasthan (1988):

There was a problem of sanitation in the city of Jaipur, which was hazardous towards Rajasthan. The
Court said that the Municipality failed to discharge its duty towards environment protection. “We can
call Article 51A ordinarily as the duty of the citizens, but in fact it is the right of the citizens as it creates
the right in favour of the citizen to move to the Court to see that the State performs its duties faithfully
and the obligatory and primary duties are performed in accordance with the law of land.Omissions or
commissions are brought to the notice of the Court by the citizen and thus, Article 51A gives a right to
the citizen to move the Court for the enforcement of the duty cast on State, instrumentalities, agencies,
departments, local bodies and statutory authorities created under the particular law of the State.”

Kinkri Devi v State:

In this case, it was held that it is both constitutional pointer to the state and the constitutional duty of the
citizens not only protect the environment but also improve it and to preserve and safeguard the forests, the
flora and the fauna, the rivers and the lakes and all other water resources of the country. The neglect or
failure to abide by the pointer or to perform the duty is nothing short of a betrayal of the fundamental law
which the State and, indeed, every Indian, high or low, is bound to uphold and maintain.

MC Mehta v State of Orissa:

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In this case, it was held that right and duty co-exists. There cannot be any right without any duty and there
cannot be any duty without any right.

Sitaram Chhaparia v State of Bihar (2002):

In this case, public interest litigation was filed by residents of a locality against a tyre retreading plant
emitting carbon dioxide gas and other obnoxious gases from its furnaces causing harm to the environment
of the locality. The Court held that protecting the environment is a fundamental duty now under Art. 51A
of the Constitution and accordingly the respondents were directed to wind up their industry.

Abhilash Textiles (Already Discussed):

The Court held that notices asking the petitioners to stop discharging the effluents from the factory on a
public road or drainage having the natural environment on pain of closing the factory are valid.

Ratlam Municipality v Wardhichand:

The residents of a locality within limits of Ratlam Municipality tormented by stench and stink caused by
open drains and public excretion by nearby slum-dwellers moved the Magistrate under S.133 of the CrPC
to require the Municipality to do its duty to towards the members of the public. The Court directed the
Municipality to remove dirt, filth, etc., from the city within the period of six months. The Court made it
clear that it is not the duty of the court to see whether the funds are available or not. It is the duty of the
administration and municipal council to see that primary duties are fulfilled.

Detailed Facts of the Case:

Both the prosperous and poor people of New Road, Ratlam were victims of extremely inadequate basic
public sanitation facilities, fluid discharge of a local alcohol plant and overflow of storm water to the
street. This resulted in various types of septic fluids flowing openly and constantly in the street, and
consequently the street’s sanitation was extremely poor to the point where the conditions were unlivable.

Under § 123 of the Madhya Pradesh Municipalities Act 1961 (M.P.M.A.), the Municipal Council was
required to “undertake and make reasonable and adequate provision” for services, including keeping
public places clean, removing rubbish and abating nuisances.

Furthermore, the Magistrate’s Court, under § 133 of the Criminal Procedure Code (Cr.P.C.) had the
authority to direct the removal of public nuisances. Additionally, under § 188 of the Indian Penal Code
(I.P.C.) the Magistrate’s Court may order imprisonment for any breach of a court order which causes
danger to human life health or safety. After the people of Ratlam’s complaints to the Municipal Council
went unheeded, the Respondents sought, and were awarded, an order from the Sub Divisional Magistrate.

The order compelled the Municipal Council to construct an adequate drainage system to reduce and
manage septic and other liquid waste whilst also ordering DDT spraying to control the threat of Malaria,
all to be completed within specified time limits. In the Sessions Court, the Municipal Council claimed its
financial resources were inadequate to comply with the order; on this basis the Magistrate’s order was set
aside.

The High Court upheld the Magistrates Order. On appeal, the Court upheld the High Court’s decision and
further ordered the alcohol plant outflows stop, and that public latrines be installed with adequate ongoing
maintenance.

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Judgment Analysis:
The Court held that the Respondents had standing in the matter. At the heart of the matter was a public
health issue and the legal responsibility for it. Standing was thus based on the interests of social justice in
Indian society referenced from the Constitution, particularly the Preamble and Article 38.

The Court held that the Municipal Council was obliged to take responsibility for the conditions of New
Road, which were found to be a public nuisance. This was the result of a combination of two laws:

 The Municipal Council’s duty as stipulated in § 123 M.P.M.A.

 The authority of the Magistrate’s court to make orders concerning public nuisances as detailed in
§ 133 Cr.P.C. (with the threat of punitive enforcement in § 188 I.P.C.).

The Municipal Council’s legal obligations included providing adequate public latrines, filling in the
cesspools, stopping the flow of effluent, and spraying potential malaria infestation.

The Court rejected the Municipal Council’s argument that financial constraints prohibited it from obeying
the Magistrate’s order. The Court held that the Municipal Council could not “run away from its principal
duty by pleading financial inability” and that “decency and dignity” were “non-negotiable facets of
human rights” which constituted a “first charge on local self-governing bodies.” The Court held that
sanitised public places should not be at the risk of a “self-created bankruptcy” or a “perverted expenditure
budget.”

The Court held that it had the authority to require the Municipal Council to adopt a specific scheme
toward meeting its obligations under the order. Justification for “affirmative action on a time-bound
basis” was on the basis of the severe circumstances, such as the significant lack of managing malaria
concerns. Therefore, the Court was obliged to behave as more than a mere “umpire” or ‘“adjudicator.”

The Court selected one of the three schemes presented by expert engineers from both the Applicants and
Respondents, which presented a balance between realizing the Municipal Council’s statutory duties, and
acknowledging it’s financial and time constraints.

To further manage the financial demands of the orders, and in accordance with the directive principal of
improving public health enshrined in Article 47 of the Constitution, the Court directed the State
Government of Madhya Pradesh to lend the necessary funds to the Municipal Council.

DEFINITION OF ENVIRONMENT LAW

Everything except me is environment. Environmental Law is a collection of laws, regulation, agreements
and common law that governs how humans interact with their environment. The purpose of
environmental law is to protect the environment and create rules for how people can use natural
resources.Environmental laws not only aim to protect the environment from harm, but they also
determine who can use natural resources and on what terms. Laws may regulate pollution, the use of
natural resources, forest protection, mineral harvesting and animal and fish populations.

Rodgers defines environmental law as the law of planetary housekeeping protecting the planet and its
people from activities that upsets the earth and its life sustaining capacities. Environmental law includes
the management of environment and strategies for tackling problems affecting the environment.

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What are the crises happening in the Environment, leading to the Environmental Law?

1. Greenhouse Gases
2. Ozone Layer Depletion – CLC gases cause this
3. Degradation in the Air Quality
4. Degradation in the Water Quality
5. Land Contamination: This includes chemical contamination, plastic that cannot be untreated.
Dumping of radioactive substances also.
6. Soil Degradation

Reasons for the Crises:

1. Urbanisation: Can lead to shortage of water to drink, inadequate sanitisation, gives rise to
poverty, inadequacy of resources.  For instance, the first Millenium Development Goal was
poverty eradication. Also, leads to food insecurity. Malnutrition, lack of balanced diets 
2. Oil and Energy Security is a big challenge 
3. Displacement - people forced to leave their own original habitat to other places due to
environmental effects- people fleeing from environmental crises. 
4. Natural Disasters- happening due to excess pressure on the environment.

Laws that have a scope for Environmental Protection:

- General Laws – Environment Protection Act and the Rules
- Specific Laws – Laws relating to Forests, Wildlife, Hazardous Substances, Water, Air.

Cases dealing with Public Nuisance:

- Ramraj Singh v Babulal: In this case, the defendant had created a stone crushingmachine,
adjoining the plaintiff’s house. The plaintiff was a medical practitioner, and therefore the dust
which the machine generates harms the environment. Moreover, the dust so generated enters the
consulting chambers which are being inhaled by the plaintiff itself and also patients. It was held
that the plaintiff was able to prove that such activity causes a problem at large and therefore it
was a public nuisance. And also, injunction order was being issued to the defendant and also
special damages were a given to the plaintiff.
- Krishna Panicker v Appukuttan Nair: The Division Bench of Kerala High Court, overruled the
Single Bench decision in Tata Tea. In this case the Court held that the special law, the Water Act,
did not repeal the law of public nuisance under the Cr. P.C., since repeal is a legislative exercise,
Tata Tea case’s assumption of implied repeal cannot be agreed upon. It is wrong to have
presumed that the Water Act and s.133 of the Code operate on the same field. Special law
overrides general law, only if, both operate on the same field. One relates to pollution control; the
other refers to maintenance of public order and tranquility. Pushing the aggrieved citizens to the
board does not bring effective results, as the board has to put itself in the position of a
complainant and seek remedies before a judicial magistrate. The Code provides a mechanism for
quick remedy against nuisance. Remedy under the law of public nuisance has now become
feasible, functional and reachable to the common man.

POLLUTION
- Unfavourable change in the physical, biological or chemical component of the environment.

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- When short term economic gains are prioritized at the cost of long term ecological loss,
environmental pollution occurs.

Two types of Pollution:

- Primary: They have an immediate effect. For example – smoke, poisonous gases, etc.
- Secondary: They have a very slow effect and acts as a ‘slow killer’. For example – Noise
Pollution.

Spread of Pollution:
- Local Pollution
- Regional Pollution
- Transboundary Pollution
- Global Pollution

Agents causing pollution are referred to as ‘pollutants’. They can be divided into three types:
- Degradable Pollutants: Discarded Vegetables, etc.
- Slowly Degradable or Persistent Pollutants: They remain in the environment for many years in an
unchanged condition.
- Non – Degradable Pollutants: Nuclear Waste.

Different kinds of Pollution:

- Air Pollution
- Water Pollution
- Thermal Pollution

Efforts done to overcome Pollution related issues:

- Attempts done by Tiwari Committee (1980), basically set up to suggest legislative and
administrative measures that ought to be taken for the protection of the environment. There were
five major areas which required immediate attention for preservation and not just limited to
protection:
1. Land and Water management
2. Natural Living resources
3. Human Settlement
4. Environmental pollution and Environment impact assessment
5. Environmental Law Education

Outcomes of the Tiwari Committee:

Provided recommendations with respect to existing laws. It reviewed them. The committee said that the
existing laws have shortcomings. Some of them were at the time of British era.

1. They were outdated

2. The law did not carve out policy objective
3. The law did not have explicit provisions for adequate and effective implementation of the laws
4. There was no express provision or procedure to review the efficiency and effectiveness of the
laws.

After the above report, the Environment Department was set up at both the Central and the State level.
There was an independent ministry (Ministry for Forest and Environment) and department which came

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into existence in 1991. There were more than 100 laws prevailing. There was huge difference between
laws and their implementation. Some areas weren’t covered.

The importance and recognition of Environmental Law was brought in post the Stockholm Conference.
This also includes the national laws that were enforced.

VARIOUS LAWS DEALING WITH ENVIRONMENTAL POLLUTION

Law of Torts
In the case of Kamal Nath, Syed Ahmed said “Pollution is a civil wrong. By its very nature, it is a Tort
committed against the community as a whole. A person, therefore, who is guilty of causing pollution has
to pay damages (compensation) for restoration of the environment and ecology. He has also to pay
damages to those who have suffered loss on account of the act of the offender. In addition to damages
aforesaid, the person guilty of causing pollution can also be held liable to pay exemplary damages so that
it may act as a deterrent for others not to cause pollution in any manner.”

Nuisance is essentially unlawful interference causing harm to the person. In the case of Dhanna Lal and
Anr. V Thakur Chittrasingh Mehtapsingh, it was held that, Constant noise, if abnormal or unusual, can
be an actionable nuisance, if it interferes with one's physical comforts.
1. Degree of Intensity
2. Duration
3. Mode of using the Property
4. Locality

Ram Ratan v Munna Lal (1959):

Four Types of Torts involved:

1. Nuisance: Three remedies – Abatement, Damages and injunction [under SRA and CPC]
2. Negligence: Failure to exercise due care and diligence.
3. Trespass
4. Strict Liability

Indian Penal Code, 1860

Chapter XIV- Of Offences Affecting The Public Health, Safety, Convenience, Decency And Morals

1. Section 188
2. Section 268- Public Nuisance
3. Section 290
4. Section 269Negligent act likely to spread infection of disease dangerous to life
5. Section 270- Malignant act likely to spread infection of disease dangerous to life
6. Section 277- Fouling water of public spring or reservoir
7. Section 278- Making atmosphere noxious to health
8. Section 284- Negligent conduct with respect to poisonous substance
9. Section 285- Negligent conduct with respect to fire or combustible matter
10. Section 286- Negligent conduct with respect to explosive substance
11. Section 425 to 440- maximum punishment 3 months imprisons or fine or both.
- Bhopal gas tragedy
- The remedy is ineffective because monetary fines are very low.

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Criminal Procedure Code, 1973
Section 133 provides the Magistrate with the power to take action against any unlawful obstruction or
nuisance occurring in any public place. As per the case of Ratlam Municipality, a citizen can always rely
upon section 133 of the Criminal Procedure Code for the removal of the nuisance of pollution. Two other
principles were laid down:
1. It is of greater significance in view of the fact that the Water Act and the Air Act do not
provide for the affected parties a right to prosecute violators of the provisions.
2. The corporate bodies like companies, corporations can be held responsible for the
nuisance of pollution caused.

Important Sections: 133, 142 and 144

Desi Sugar Mills v Tupsi Kehar:

Orders under S.133 cannot be made on the basis that the complaint has not been filed by more than 2
people. The only important need is that definite, convincing and scientific evidence must be present.

Krishna Gopal v State of MP:

In this case, a complaint was registered against a glucose factory which was causing air pollution due to
the discharge of steam in the air resulting in fly ash and noise pollution. Only one woman came forward
and filed a complaint on the grounds that her husband was a heart patient and this is harmful to his health.
The main issue was whether the alleged nuisance could be a public nuisance or is it a private issue? The
Court held that it is not the intent of law that the community as a whole or a large number of
complainants come forward to lodge their complaint or protest against the nuisance; that does not
require any particular number of complainants. A mere reading of Section 133 (1) would go to show that
the jurisdiction of the Sub-Divisional Magistrate can be invoked on receiving a report of Police Officer
or other information, and on taking such evidence if any, as he thinks fit. These words are important,
even on information received the Sub-Divisional Magistrate is empowered to take action in this behalf for
either removal or regularising a public nuisance.

PC Cherian v State of Kerala:

Here, two rubber industries were situated in an industrial area who were using carbon black for carbon
mixing process. This excess carbon black disseminated into the atmosphere. There was no necessary
equipment to prevent such dissemination of carbon black which caused discomfort, injury and nuisance to
the people of the nearby area and even prevented them from attending to their avocation as there were
600 Christian families in the area. When they used to come to attend the church prayers, their clothes
soiled as a result of atmospheric pollution. Under these circustances, the sub Divisional Magistrate of
Kottayam under S.133 directed the stoppage of mixing of carbon in both the factories. The petitioner
claimed that there was no ground to invoke S.133 by the Magistrate as the license was issued under the
Panchayat Act and the Factories Act, 1948 on satisfying the conditions which included absence of hazard
to health.

The HC concluded that dissemination of carbon black in the atmosphere was a public nuisance and a
health hazard since it affects the respiratory organs of the people. It also caused discomfort to the
community of the area. It also considered the question that the stoppage of working of the factory under
S.133 would affect the right of livelihood of the employees. The Court replied to the same saying that the
danger that general public has faced by service mixing of carbon without adequate equipment to prevent

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dissemination of carbon, outweighs the advantage in the form of jobs for a few persons and that too under
threat of hazard to their own health.The Court held that it is not necessary to establish
toxicity on scientific basis before issuing orders to restrain the public nuisance. Referring to Ratlam
Municipality Case, the Court held that public nuisance because of pollutants being discharged by big
factories to the detriment of the poorer section, is a challenge to the social justice component of the rule
of law.

State of MP v Kedia Leather and Liquor Limited:

The Court held in this case that the area of S. 133 of the Code and Pollution laws like the Water Pollution
Act and the Air Pollution Act are different and not identical in nature. While S. 133 is in the nature of
preventive measure, the provision in the abovementioned two Acts are not just curative but also
preventive and penal. It is implied that Section 133 shall not apply, if there is an application of the two
abovementioned Acts, since the applicability is different. The provisions appear to be mutually exclusive
and different in their respective fields and there was no impediment for their existence side by side.
Moreover, passing of new pollution control laws, does not repeal Section 133 of the Code.

“When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the
presumption against implied repeal of other laws is further strengthened on the principle expressio unius
(persone vel rei) est exclusio alterius. (The express intention of one person or thing is the exclusion of
another), as illuminatingly stated in Garnett v. Bradley (1878) 3 AC 944 (HL). The continuance of
existing legislation, in the absence of an express provision of repeal by implication lies on the party
asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary
implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of
the earlier Act and that the two cannot stand together. But, if the two can be read together and some
application can be made of the words in the earlier Act, a repeal will not be inferred.”

“The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and
involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately
irreparable damage would be done to the public.”

Suhel Khan v State of Maharashtra:

What is a condition precedent for the application of S.133? The condition precedent for the application of
S.133 is that the conduct of the trade must be injurious in presenti to the health or physical comfort of the
community. There must, at any rate, be an imminent danger to the health or  the physical comfort of the
community in the locality in which the trade or occupation is conducted.

FACTORIES ACT, 1948

It was after there was huge increase in industrial development and pollution. Section 12 says that the
occupier is duty bound to follow effective arrangement in factory for treatment of affluent. State can
frame rules. Chapter 4 A - inserted in 1987. 8 section were there. It deals with hazardous processes.
Section 14 covers fumes and dust particles. Section 87 & 87A and 96A are important.
15(1) - ventilation
37 - safety against explosive and inflammable dust
92 – punishment - 2 years’ imprisonment or fine

INSECTICIDES ACT

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It empowers the central and state government to prohibit sale, distribute and use of dangerous
insecticides. The manufacture and distribution of insecticides are now regulated through licensing. In case
of violation – prosecution and penalties shall be imposed. The Central Insecticide Board – committee
constituted under the board which advises with respect to registration insecticides after examining their
formula and testing their efficacy and safety standards.

PUBLIC LIABILITY INSURANCE ACT, 1991

It was enacted after Bhopal Gas tragedy. Section 3 - no fault liability - imposed on owner. Claimant need
not prove default. (linked to absolute liability) Section 14- when an offence is committed, the person in
charge is deemed responsible (Vicarious liability principle). Environment Relief Fund was set up with a
motive to rehabilitate the sufferers of disasters.

ENVIRONMENT POLLUTION AND DISASTER MANAGEMENT ACT

After Bhopal gas tragedy, they came up with Disaster Management Act. Nuclear as well as natural
disasters victims get relief under DMA. The SC said that disaster management is part of right to
sustainable development in the Tehri Bandh Sangharsh Samiti case. There is an imposition of Absolute
liability when person deals with hazardous substance- non delegable duty.

THREE BODIES FUNCTIONAL IN THE FIELD OF ENVIRONMENT

- Ministry of Forest and Environment
Primarily concerned with implementation of policies and programmes for conservation of country’s
natural- lakes, rivers, biodiversity and wildlife. resources.

5 BROAD OBJECTIVES:
1. Conservation and survey of flora, fauna and wildlife
2. Prevention and control of pollution
3. Protection of environment
4. Ensuring the welfare of animals
5. Afforestation and regeneration of degraded areas

- Central Pollution Control Board

POWERS OF THE CENTRAL POLLUTION CONTROL BOARD

1. Section 18 empowers the CPCB to perform functions of the SPCB. It says that “Every State
Board shall be bound by such directions in writing as the Central Board or the State Govt.
may give to it. Provided where a direction given by the State Govt. is inconsistent with the
direction by the Central Board the matter shall be referred to the Central Govt. for its
decision.”
2. Section 33(A): The Board can issue directions for closure of industry & disconnection of
electricity in case of persistent defiance by any polluting industry.
3. Section 4: The State Govt. shall constitute a State Pollution control Board, to exercise the
powers conferred and perform the function assigned under this Act.

FUNCTIONS AND POWERS OF THE CENTRAL POLLUTION CONTROL BOARD

https://thefactfactor.com/facts/law/civil_law/environmental_laws/central-pollution-control-board/1308/

[Can’t CCP]

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- State Pollution Control Board
Section 4 of the Water Act empowers the state govt. to appoint and constitute SPCB in the rep state to
perform functions assigned under the Act.

FUNCTIONS OF SPCB (UNDER S. 17)

- Planning a comprehensive program for the prevention, control or abatement of pollution of
streams and wells in a state.
- Advisory – SPCB can advise the state government on any matter concerning the prevention,
control or abatement of water pollution.
- The SPCB has the responsibility to collect and disseminate information related to water pollution.
- Investigation and research – The functions of SPCB to encourage, conduct and participate in
investigation and research related to problems of water pollution and prevention, control or
abatement of water pollution.
- The SPCB in collaboration with the CPCB organizes training of persons engaged in programs
relating to prevention, control or abatement of water pollution and organize mass education
programs relating to it.
- Inspection – The SPCB inspects sewage or trade effluents, works and plants for the treatment of
sewage and trade effluents and to review plans and other data related to plant set up for the
treatment of water, work for the purification thereof and the system of disposal of sewage or trade
effluents or in connection with the grant of any consent as required by the Water Act of 1974.
- The SPCB lays down, modify, or annul effluent standards for the sewage and trade effluents and
for the quality of receiving water resulting from the discharge of effluents and to classify water of
the state.
- To evolve economical and reliable methods of treatment of trade effluents and sewage having
regard to the peculiar condition of soil, climate, and water resources in different regions.
- To evolve methods of utilisation of sewage and trade effluents in agriculture.
- The SPCB is liable to evolve efficient methods of disposal of trade effluents and sewage on land
as are necessary on account of the pre-dominant conditions of scant stream flows that are not
available for major part of the year.
- Laying down the standards of treatment of sewage and trade effluents to be discharged in any
particular stream taking into account the minimum fair weather dilution available in that stream
and the tolerance limits of pollution permissible in the water of the stream after the discharge of
effluents.
- It advises the state government about the location of any industry which is likely to pollute a
stream or well.
- CPCB and state government. may entrust SPCB with any other function not mentioned in the
Act.

POWERS OF SPCB
- Under Sections 20, the SPCB has the power to conduct surveys of any area for better
performance. It also provides with the power to obtain information regarding anything that
hinders or can be obstruction for water.
- Section 21 – SPCB or any officer authorised shall have power to take samples of water, or
sewage or trade effluents for the purpose of analysing it.

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- Section 23 – They have the power to enter and inspect any time and any place for performing its
functions.
- Section 25 – Permission of SPCB.
- Section 27 – Power of withdrawal of consent or refuse the establishment of any industry.
- Section 30 –To carry out certain functions that are required to be fulfilled
- Section 32 –Emergency operation
- Section 33 – Application to court for restraining the apprehended pollution of water
- Section 33A – Closure of industries or power to give directions for stopping any essential
services to an industry that is causing pollution

Section 4(4) of the Water Act – Union Territories – No State Board shall be constituted for a Union
territory and in relation to a Union Territory; the CentralBoard shall exercise the powers and perform the
functions of a State Board for that Union Territory: Provided that in relation to a Union Territory the
Central Board may delegate all or any of its powers and functions under this sub-section to such person or
body of persons as the Central Government may specify. The pollution control boards are actively
working to prevent all kinds of pollution.

WATER (PREVENTION AND CONTROL OF POLLUTION) ACT

- Preamble – Maintenance of wholesomeness of water
- To set parameters or standards of different water resources
- Key features:
1. Polluter pays principle – There are provisions for penalties as well
2. Water act commands and controls different projects and controls how they will work. In case they
adversely affect the environment, they can control.
3. End of the pipe treatment – Before the affluents are discharged in the environment, they must be
treated.
- Objective is three-fold:
1. Prevention and control of water pollution;
2. Maintaining the wholesomeness of water;
3. Establishment of board for the prevention and control of water.
- It is applicable to the entire country.
- Definitions have been provided under Section 2 - pollution, sewage effluent, trade effluent, occupier,
outlet, and stream;
- (e) "pollution" means such contamination of water or such alteration of the physical, chemical or
biological properties of water or such discharge of any sewage or trade effluent or of any other liquid,
gaseous or solid substance into water (whether directly or indirectly) as may, or is likely to, create a
nuisance or render such water harmful or injurious to public health or safety, or to domestic,
commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or
plants or of aquatic organisms
- (g) "sewage effluent" means affluent from any sewerage system or sewage disposal works and
includes sullage from open drains;
- (k) "trade effluent" includes any liquid, gaseous or solid substance which is discharged from any
premises used for carrying on any 3 [Industry, operation or process, or treatment and disposal
system], other than domestic sewage.

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- (d) "occupier", in relation to any factory or premises, means the person who has control over the
affairs of the factory or the premises, and includes, in relation to any substance, the person in
possession of the substance;
- (dd) "outlet" includes any conduit pipe or channel, open or closed carrying sewage or trade effluent or
any other holding arrangement which causes or is likely to cause, pollution
- (j)"stream" includes- (i) river; (ii) water course (whether flowing or for the time being dry); (iii)
inland water (whether natural or artificial); (iv) sub-terranean waters; (v) sea or tidal waters to such
extent or, as the case may be, to such point as the State Government may, by notification in the
Official Gazette, specify in this behalf;
CPCB has developed a classification chart of water with respect to the use of water and quality to be
maintained. The quality can be controlled by setting standard of quality.Standard is set on the basis of use
of water.
There is a “designated best use” of water test on the basis of which there are 5 classes-
1. Class A – drinking water
2. Class B – outdoor bathing
3. Class C – drinking water but after conventional treatment and disinfection
4. Class D – propagation of wildlife and fisheries
5. Class E –Irrigation, industrial cooling, controlled waste disposal
The main functioning of the boards is to maintain these classifications. Anything outside this cannot be
used for any purpose.
DIFFERENT CLASSES OF WATER
Drinking water at source found without conventional treatment but after disinfection is designated as
Class A while water designated for outdoor bathing comes under Class B. Any drinking water source
which has been conventionally treated comes under Class C while water used for propagation of wildlife
and fisheries is demarked as Class D. Water under Class E is used for irrigation and industrial cooling
along with waste disposal.

RESPONSIBILITIES THAT INDUSTRIES HAVE W.R.T. WATER ACT:

A. First things that a person has to do is obtain consent after satisfying that the project will not be
harmful to the environment. How effluent will not be harmful.
Consent is 2 fold:
1. Consent required to establish
2. Consent required for the operation
- Section 25 –Restrictions on new outlets and new discharges
B. NOC by the factory for establishment. This consent is granted on a 3 fold basis – 3 things have
to be demonstrated:
1. The technology used in their factory is a clean technology.
2. The waste which is thrown out or the effluent is properly treated.
3. There won’t be any adverse impact on water bodies receiving those effluents.
- Consent for continuation of operation is also needed
- The SPCB is duty bound to do inspection. If any irregularities are found, they either ask the occupier
to remove that irregularity and if the irregularity persists, the occupier may be asked to close the
facility.
- They have to check the effluents that are thrown out- what is the quality of the effluent
- Consent is also renewed- all the formalities are to be undergone again.

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- Sometimes NOC is not sufficient, EIA may be needed- a higher degree of consent requirement
- With respect to punitive measures- SPCB have the power of closure in case of non-compliance

Read Ss. 25(1)(c) and 25(5).

25(1)(c) – Begin to make any new discharge of sewage: Provided that a person in the process of taking
any steps to establish any industry, operation or process immediately before the commencement of the
Water (Prevention and Control of Pollution) Amendment Act, 1988, for which no consent was necessary
prior to such commencement, may continue to do so for a period of three months from such
commencement or, if he has made an application for such consent, within the said period of three months,
till the disposal of such application.

Section 25(5) – Where, without the consent of the State Board, any industry, operation or process, or any
treatment and disposal system or any extension or addition thereto, is established, or any steps for such
establishment have been taken or a new or altered outlet is brought into use for the discharge of sewage or
a new discharge of sewage is made, the State Board may serve on the person who has established or taken
steps to establish any industry, operation or process, or any treatment and disposal system or any
extension or addition thereto, or using the outlet, or making the discharge, as the case may be, notice
imposing any such conditions as it might have imposed on an application for its consent in respect of such
establishment, such other or discharge.

(6) Every State Board shall maintain a register containing particulars of the conditions imposed under this
section and so much of the register as relates to any outlet, or to any effluent, from any land or premises
shall be open to inspection at all reasonable hours by any person interested in, or affected by such outlet,
land or premises, as the case may be, or by any person authorised by him in this behalf and the conditions
so contained in such register shall be conclusive proof that the consent was granted subject to such
conditions.

What are the conditions for a deemed consent to be met?

Vijaynagar Eductaion Trust v Karnataka State Control Board:

The educational trust wanted set up a medical college. In lieu of the same, they applied for the consent to
the board. Their application was rejected. HC said that the application was filed on 27 Nov 1999. On 9
Feb, 2000, a site inspection was ordered. On May, 2000, the board refused to grant consent. The
scheduled period of 4 months had been passed after which the refusal came. Since refusal came late, it
will be considered as deemed consent.

Industries have a right to file objection

A.P. Pollution Control Board v. M.V. Nayudu:

As stated earlier, the Government of India should, in our opinion, bring about appropriate amendments in
the environmental statutes, Rules and notification to ensure that in all environmental Courts, Tribunals
and appellate authorities there is always a Judge of the rank of a High Court Judge or a Supreme Court
Judge, - sitting or retired - and Scientist or group of Scientists of high ranking and experience so as to
help a proper and fair adjudication of disputes relating to environment and pollution.

S. 29 – Revisionary power of the Board – will revise the orders already passed by the Board u/s 25, 26
and 27 to determine legality of those orders.

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Gujarat Pollution Control Board v Parmar Devusinh Shersinh:
Any person aggrieved by an order made by the Board under Section 25, Section 26 or Section 27, has a
right of appeal’.Revision is not a right guaranteed to a party but only a power conferred to the state
government.

Delhi Bottling Co Pvt Ltd vs Central Water Board of Control and Prevention, 1896:
If the treatment plant is not erected as per the consent orders, restraint order may be passed against them.
Further, samples must be collected in accordance with Section 21.

Re Bhawani River Shakti Sugar Ltd case, 1998:

Directions were issued by the Pollution Control Board. The directions were reserved for the industry for
ensuring proper storage of effluents in lagoons It also directs for proper treatment effluent. Some of the
said directions were not complied with and as a result of this some effluent reached the river Bhavani and
polluted its water. Despite enough time given, no remedial steps were taken by the industry. Thus, the
Court directed the industry to be closed. The above judgment of the Court envisages that the closure of
the industry is essential since in spite of time given, the industry has not complied with the directives.

Section 41 (1)(2)(3)

Section 33A – Power to give directions: If the directions under this or similar sections are not complied
with, penalties shall be invoked.

Stella Silk Ltd. v State of Karnataka:

Closure and order given under 33A. The High Court did not issue a writ of certiorari. Where there were
violations of various provisions of Act and conditions imposed there under by industry for its benefit. It
also flouted orders of the Court and violated its own undertakings given before the Court. Industry being
run without enabling power or order in its favour polluting the environment by discharging contaminated
water, the order for closure of industry was not liable to be interfered with.

Tiruppur Dyeing Factory Owners Association v Noyyal River Protection Association:

These appeals have been filed against the Judgment and Order dated 22.12.2006 of the Madras High
Court. A Public Interest Litigation was filed by the Noyyal River Ayacutdars Protection Association, a
registered Association (Respondent No. 1), for seeking directions for preservation of ecology and for
keeping the Noyyal river in Tamil Nadu free from pollution. According to the said Association, a large
number of industries, some of them respondents before the writ court and appellants herein had indulged
in dyeing and bleaching works at Tirupur area and discharging the industrial effluents into the Noyyal
river which created water pollution to the extent, that the water of the river was neither fit for irrigation
nor potable. The pollution also adversely affected the Orthapalayam reservoir and other tanks and
channels of the said river. Respondent-Association stated that earlier a writ petition was filed raising
similar issues, which was disposed of by High Court on the basis of Memo of Understanding on the terms
that pollution control measures would be implemented and damages shall be paid. The industries were
directed to contribute an amount to meet the expenses of cleaning of the dam within a particular period.
The industrial unit sought for time for compliance of the directions, which was denied by High Court. In
SLP against the said order, Supreme Court issued certain directions to some of the units. On compliance
of the directions, the petitions were dismissed. State Government directed study on the restoration of the
ecology of river dam etc. As per the study report, there had been no improvement in the quality of water.
Hence the writ petition was filed before the High Court. High Court as an interim measure directed

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payment of fine on pro-rata basis at six paise, eight paise, and ten paise per litre. Hence the present
appeal. Appellant contended that the liability of fine was fastened on the unit owners without any basis.
This Court vide order dated 12.5.09, directed the Board to inspect the Noyyal River and find out whether
any pollution is caused by the factories owned by the members of the appellant Association. In view of
inspection report, The Supreme Court held that the members of the appellant Association should ensure
the compliance of all the directions including the payment of dues etc. issued by the Court within a period
of three months. They shall ensure that no pollution is caused to the river or dam and if cleaning operation
has not yet been completed, it shall be completed within the said stipulated period. Undoubtedly, there
has been unabated pollution by Association members and they cannot escape the responsibility to meet
out the expenses of reversing the ecology. They are bound to meet the expenses of removing the sludge of
the river and also for cleaning the Orthapalayam dam. The polluting industries are absolutely liable to
compensate for the harm caused by it to villagers or other affected persons of the area, to the soil and to
the underground water and hence, the industry is bound to take all necessary measures to prevent
degradation of environment and also to remove sludge and other pollutants lying in the affected area The
"precautionary principle" and principle of "polluter pays" are the integral "part and parcel of national
environmental law", the Supreme Court held. Thus, the Association is bound to compensate the persons
who have suffered the loss because of the activity of its members, as water of the river is neither worth for
irrigation purpose nor potable. The total liability for environment cleaning being Rs38crore, of which the
Association had paid Rs25crore, it must pay the remaining Rs13crore within three months.

In case in spite of stringent conditions, degradation of environment continues and reaches a stage of no
return, the court may consider the closure of industrial activities in areas where there is such a risk.
Undoubtedly, there has been unabated pollution by the members of the appellant Association. They
cannot escape the responsibility to meet out the expenses of reversing the ecology. They are bound to
meet the expenses of removing the sludge of the river and also for cleaning the dam. The principles of
"polluters-pay" and "precautionary principle" have to be read with the doctrine of "sustainable
development". It becomes the responsibility of the members of the appellant Association that they have to
carry out their industrial activities without polluting the water.

Section 53 – Read

Four Aspects of the Act:

- Powers of the State Board

- Appeal Provisions
- Review of the Order
- Penalties

Two Important bodies:

- SPCB
- CPCB

If the samples are not taken in accordance with the provisions, they are not admissible as an evidence in a
court of law. (Delhi Bottling Co. v CPCB)

Abdul Hameed v Gwalior Rayon Co.: The Board has the power of entry and inspection under Article 23.

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CONTRAVENTION PROVISIONS
Penalty corresponding S. 32 and 33: S. 41 and 42. 33A provides for the directions as to closure,
prohibition, etc. Section 45 and Section 45A also talk about penalties for contravention of certain
provisions of the Act.

Section 46 provides for the publication of the names of the offenders.

Section 47 provides for the offences committed by the companies.

Section 48 provides for offences by government departments and Section 49 provides for the cognizance
of the same. Section 50 provides the definition for a public servant under the meaning of S. 21 of IPC.

Public Trust Doctrine: It is difficult to go against the public servants unless a strong prima facie case
exists. In the year 1975, Water Rules came into picture which included 35 rules. Water Cess Act was also
enacted which imposed tax on the consumption of water.

WETLANDS MANAGEMENT – READ PPT

AIR ACT
AIR POLLUTION- Air (Prevention and Control of Pollution) Act, 1981
- Framed under Article 253 (Legislation for giving effect to international agreements)
- Central and state pollution control boards- state boards within their territory have more powers which
ranges from inspection, survey, collection of samples, power to stop essential services- wide powers
to state boards. – On the same lines as the Water Act
- 54 sections- divided into 7 chapters
- Powers conferred upon the boards- To prevent control or abate air pollution
- Sections 16 and 17- powers of CPCB and SPCB
- State board is under the direction of CPCB and State Government. CPCB is bound by directions
given by the Central Government.
FUNCTIONS AND POWERS OF CPCB
1. Advisory power- advise the central government and provide training
2. Coordinate between SPCBs
3. Prescribe standard of air quality
4. Collect and publish statistical data
5. To organize Mass media programs
6. Establish labs under the Act- Section 16
FUNCTIONS AND POWERS OF SPCB
1. Plan comprehensive program
2. Advise state govt.
3. Prescribe standards for emission of air pollutants in consultation with CPCB
4. Collaborate with CPCB to provide training
5. Collect and disseminate information regarding air pollution
6. Power to inspect air pollution areas, industrial areas, or manufacturing process and give orders
7. Establish and recognize labs – Section 17
8. To give direction in writing for stoppage of electricity or any other service or for closure of any
industry or process.
- Constitution of Board

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- POWERS OF SPCB IN DETAIL- 19 to 31A
- 17(g)
- Region is divided into different areas and standards are prescribed for different types of regions.
- Eg. BS 6 engines
IMPORTANT DEFINITIONS
 Section 2(a)- “air pollutant” means any solid, liquid or gaseous substance including noise
present in the atmosphere in such concentration as may be or tend to be injurious to human
beings or other living creatures or plants or property or environment. E.g. Smoke, soot, fly
ash, radioactive substances, etc.
 Section 2(b)- “air pollution” means the presence in the atmosphere of any air pollutant
 Section 2(h)- “chimney” includes any structure with an opening or outlet from or through
which any air pollutant may be emitted
 Section 2(i)- “control equipment” means any apparatus, device, equipment, or system to
control the quality and manner of emission of any air pollutant and includes any device used
for securing the efficient operation of any industrial plant
 Section 2(m)- “occupier”, in relation to any factory or premises, means the person who has
control over the affairs of the factory or the premises, and includes, in relation to any
substance, the person in possession of the substance
- Prevention and Abatement (Chapter IV- Section 19 to 31A)
 Section 19- unique power given to State Government
(1) The State Government may, after consultation with the State Board, by notification in the
Official Gazette declare in such manner as may be prescribed, any area or areas within
the State as air pollution control area or areas for the purposes of this Act.
(2) The State Government may, after consultation with the State Board, by notification in the
Official Gazette,—
(a) alter any air pollution control area whether by way of extension or reduction;
(b) declare a new air pollution control area in which may be merged one or more existing
air pollution control areas or any part or parts thereof.
(3) If the State Government, after consultation with the State Board, is of opinion that the use
of any fuel, other than an approved fuel, in any air pollution control area or part thereof,
may cause or is likely to cause air pollution, it may, by notification in the Official
Gazette, prohibit the use of such fuel in such area or part thereof with effect from such
date (being not less than three months from the date of publication of the notification) as
may be specified in the notification.
(4) The State Government may, after consultation with the State Board, by notification in the
Official Gazette, direct that with effect from such date as may be specified therein, no
appliance, other than an approved appliance, shall be used in the premises situated in an
air pollution control area:
Provided that different dates may be specified for different parts of an air pollution
control area or for the use of different appliances.
(5) If the State Government, after consultation with the State Board, is of opinion that the
burning of any material (not being fuel) in any air pollution control area or part thereof
may cause or is likely to cause air pollution, it may, by notification in the Official
Gazette, prohibit the burning of such material in such area or part thereof.

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 Section 17 and 31A
 Section 20
 Section 110 of MVA, 1988- clause (1)- The Central Government may make rules regulating
the construction, equipment and maintenance of motor vehicles and trailers with respect to
standards for emission of air pollutants
 Section 28- State Air Laboratory
 Section 21- consent,
 Apply for Consent- for operation of plant or unit in an air pollution control area.
Application to State Board- the State Board will either grant consent or refuse. If
refused, then it must be refused in writing and shall be made within 4 months of
receipt of application. If no consent or refusal in 4 months- deemed consent. Once
consent is given, it can also be revoked within the period of 4 months. Before
cancelling consent, reasonable opportunity must be given to the party concerned to be
heard.
 Sub-section (5)- those who have been granted consent under sub-section (4) must
comply with the following conditions:
(i) the control equipment of such specifications as the State Board may approve
in this behalf shall be installed and operated in the premises where the
industry is carried on or proposed to be carried on;
(ii) the existing control equipment, if any, shall be altered or replaced in
accordance with the directions of the State Board;
(iii) the control equipment referred to in clause (i) or clause (ii) shall be kept at
all times in good running condition;
(iv) chimney, wherever necessary, of such specifications as the State Board may
approve in this behalf shall be erected or re-erected in such premises; and
(v) such other conditions as the State Board, may specify in this behalf; and
(vi) the conditions referred to in clauses (i), (ii) and (iv) shall be complied with
within such period as the State Board may specify in this behalf
Provided that in the case of a person operating any industrial plant in an air pollution
control area immediately before the date of declaration of such area as an air
pollution control area, the period so specified shall not be less than six months:
Provided further that—
(a) after the installation of any control equipment in accordance with the
specifications under clause (i), or
(b) after the alteration or replacement of any control equipment in accordance with
the directions of the State Board under clause (ii), or
(c) after the erection or re-erection of any chimney under clause (iv),
no control equipment or chimney shall be altered or replaced or, as the case may be,
erected or re-erected except with the previous approval of the State Board.
 Sub-section (6)- If due to any technological improvement or otherwise the State
Board is of opinion that all or any of the conditions referred to in sub-section (5)
require or requires variation (including the change of any control equipment, either

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in whole or in part), the State Board shall, after giving the person to whom consent
has been granted an opportunity of being heard, vary all or any
 Section 22-Persons carrying on industry, etc., not to allow emission of air pollutants
in excess of the standard laid down by State Board.—No person 1**** operating any
industrial plant, in any air pollution control area shall discharge or cause or permit to be
discharged the emission of any air pollutant in excess of the standards laid down by the
State Board under clause (g) of sub-section (1) of section 17.
 Section 22A. Power of Board to make application to court for restraining person
from causing air pollution.— (1) Where it is apprehended by a Board that emission of
any air pollutant, in excess of the standards laid down by the State Board under clause (g)
of sub-section (1) of section 17, is likely to occur by reason of any person operating an
industrial plant or otherwise in any air pollution control area, the Board may make an
application to a court, not inferior to that of a Metropolitan Magistrate or a Judicial
Magistrate of the first class for restraining such person from emitting such air pollutant.
(2) On receipt of the application under sub-section (1), the court may make such order as
it deems fit.
(3) Where under sub-section (2), the court makes an order restraining any person from
discharging or causing or permitting to be discharged the emission of any air pollutant, it
may, in that order,—
(a) direct such person to desist from taking such action as is likely to cause emission;
(b) authorise the Board, if the direction under clause (a) is not complied with by the
person to whom such direction is issued, to implement the direction in such manner as
may be specified by the court.
(4) All expenses incurred by the Board in implementing the directions of the court under
clause (b) of sub-section (3) shall be recoverable from the person concerned as arrears of
land revenue or of public demand.]
 Section 24.Power of entry and inspection.—(1) Subject to the provisions of this
section, any person empowered by a State Board in this behalf shall have a right to enter,
at all reasonable times with such assistance as he considers necessary, any place—
(a) for the purpose of performing any of the functions of the State Board entrusted to
him;
(b) for the purpose of determining whether and if so in what manner, any such functions
are to be performed or whether any provisions of this Act or the rules made thereunder or
any notice, order, direction or authorisation served, made, given or granted under this Act
is being or has been complied with;
(c) for the purpose of examining and testing any control equipment, industrial plant,
record, register, document or any other material object or for conducting a search of any
place in which he has reason to believe that an offence under this Act or the rules made
thereunder has been or is being or is about to be committed and for seizing any such
control equipment, industrial plant, record, register, document or other material object if
he has reasons to believe that it may furnish evidence of the commission of an offence
punishable under this Act or the rules made thereunder.
(2) Every person 1*** operating any control equipment or any industrial plant, in an air
pollution control area shall be bound to render all assistance to the person empowered by

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the State Board under sub-section (1) for carrying out the functions under that sub-section
and if he fails to do so without any reasonable cause or excuse, he shall be guilty of an
offence under this Act.
(3) If any person willfully delays or obstructs any person empowered by the State Board
under sub-section (1) in the discharge of his duties, he shall be guilty of an offence under
this Act.
(4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), or, in relation to
the State of Jammu and Kashmir, or any area, in which that Code is not in force, the
provisions of any corresponding law in force in that State or area, shall, so far as may be,
apply to any search or seizure under this section as they apply to any search or seizure
made under the authority of a warrant issued under section 94 of the said Code or, as the
case may be, under the corresponding provisions of the said law.
 Section 25. Power to obtain information.—For the purposes of carrying out the
functions entrusted to it, the State Board or any officer empowered by it in that behalf
may call for any information (including information regarding the types of air pollutants
emitted into the atmosphere and the level of the emission of such air pollutants) from the
occupier or any other person carrying on any industry or operating any control equipment
or industrial plant and for the purpose of verifying the correctness of such information,
the State Board or such officer shall have the right to inspect the premises where such
industry, control equipment or industrial plant is being carried on or operated.
 Section 26.Power to take samples of air or emission and procedure to be followed in
connection therewith.—(1) A State Board or any officer empowered by it in this behalf
shall have power to take, for the purpose of analysis, samples of air or emission from any
chimney, flue or duct or any other outlet in such manner as may be prescribed.
(3) Subject to the provisions of sub-section (4), when a sample of emission is taken for
analysis under sub-section (1), the person taking the sample shall—
(a) serve on the occupier or his agent, a notice, then and there, in such form as may be
prescribed, of his intention to have it so analysed;
(b) in the presence of the occupier or his agent, collect a sample of emission for analysis;
(c) cause the sample to be placed in a container or containers which shall be marked and
sealed and shall also be signed both by the person taking the sample and the occupier or
his agent;
(d) send, without delay, the container or containers to the laboratory established or
recognised by the State Board under section 17 or, if a request in that behalf is made by
the occupier or his agent when the notice is served on him under clause (a), to the
laboratory established or specified under sub-section (1) of section 28.
 31A. Power to give directions.—Notwithstanding anything contained in any other law,
but subject to the provisions of this Act, and to any directions that the Central
Government may give in this behalf, a Board may, in the exercise of its powers and
performance of its functions under this Act, issue any directions in writing to any person,
officer or authority, and such person, officer or authority shall be bound to comply with
such directions.
Explanation.—For the avoidance of doubts, it is hereby declared that the power to issue
directions under this section includes the power to direct—

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(a) the closure, prohibition or regulation of any industry, operation, or process; or
(b) the stoppage or regulation of supply of electricity, water, or any other service.
Animal Feeds Dairies and Chemicals Ltd. v. Orissa State Prevention and Control of
Pollution Board- Only the Board or authorised officers can issue directions.
 Section 31. Appeals.—(1) Any person aggrieved by an order made by the State Board
under this Act may, within thirty day from the date on which the order is communicated
to him, prefer an appeal to such authority (hereinafter referred to as the Appellate
Authority) as the State Government may think fit to constitute:
Provided that the Appellate Authority may entertain the appeal after the expiry of the said
period of thirty days if such authority is satisfied that the appellant was prevented by
sufficient cause from filing the appeal in time.
(2) The Appellate Authority shall consist of a single person or three persons as the State
Government may think fit to be appointed by the State Government.
(3) The form and the manner in which an appeal may be preferred under sub-section (1),
the fees payable for such appeal and the procedure to be followed by the Appellate
Authority shall be such as may be prescribed.
(4) On receipt of an appeal preferred under sub-section (1), the Appellate Authority shall,
after giving the appellant and the State Board an opportunity of being heard, dispose of
the appeal as expeditiously as possible.

OFFENCES AND PENALTIES

 Sections 37 to 46- Penalties
1. Sections 37, 38, 39
2. Offences - 2 categories: Central Government and Corporation: 40 and 41
3. Other Provisions- 42 to 46
 Section 37: Failure to comply with the provisions of section 21 or section 22 or with
the directions issued under section 31A.—(1) whoever fails to comply with the
provisions of section 21 or section 22 or directions issued under section 31A, shall, in
respect of each such failure, be punishable with imprisonment for a term which shall not
be less than one year and six months but which may extend to six years and with fine,
and in case the failure continues, with an additional fine which may extend to five
thousand rupees for every day during which such failure continues after the conviction
for the first such failure.
(2) If the failure referred to in sub-section (1) continues beyond a period of one year after
the date of conviction, the offender shall be punishable with imprisonment for a term
which shall not be less than two years but which may extend to seven years and with
fine.]
 Section 38: Penalties for certain acts. Whoever—
(a) destroys, pulls down, removes, injures or defaces any pillar, post or stake fixed in the
ground or any notice or other matter put up, inscribed or placed, by or under the authority
of the Board, or
(b) obstructs any person acting under the orders or directions of the Board from
exercising his powers and performing his functions under this Act, or
(c) damages any works or property belonging to the Board, or

55 | P a g e
(d) fails to furnish to the Board or any officer or other employee of the Board any
information required by the Board or such officer or other employee for the purpose of
this Act, or
(e) fails to intimate the occurrence of the emission of air pollutants into the atmosphere in
excess of the standards laid down by the State Board or the apprehension of such
occurrence, to the State Board and other prescribed authorities or agencies as required
under sub-section (1) of section 23, or
(f) in giving any information which he is required to give under this Act, makes a
statement which is false in any material particular, or
(g) for the purpose of obtaining any consent under section 21, makes a statement which is
false in any material particular,
shall be punishable with imprisonment for a term which may extend to three months or
with fine which may extend to ten thousand rupees or with both.
 Section 39. Penalty for contravention of certain provisions of the Act.—Whoever
contravenes any of the provisions of this Act or any order or direction issued thereunder,
for which no penalty has been elsewhere provided in this Act, shall be punishable with
imprisonment for a term which may extend to three months or with fine which may
extend to ten thousand rupees or with both, and in the case of continuing contravention,
with an additional fine which may extend to five thousand rupees for every day during
which such contravention continues after conviction for the first such contravention.
 Section 40. Offences by companies.—(1) Where an offence under this Act has been
committed by a company, every person who, at the time the offence was committed, was
directly in charge of, and was responsible to the company for the conduct of the business
of the company, as well as the company, shall be deemed to be guilty of the offence and
shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to
any punishment provided in this Act, if he proves that the offence was committed without
his knowledge or that he exercised all due diligence to prevent the commission of such
offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this
Act has been committed by a company and it is proved that the offence has been
committed with the consent or connivance of, or is attributable to any neglect on the part
of, any director, manager, secretary or other officer of the company, such director,
manager, secretary or other officer shall also be deemed to be guilty of that offence and
shall be liable to be proceeded against and punished accordingly.
Explanation.—For the purpose of this section,—
(a) “company” means any body corporate, and includes a firm or other association of
individuals; and
(b) “director”, in relation to a firm, means a partner in the firm.
 Section 41. Offences by Government Departments: (1) Where an offence under this
Act has been committed by any Department of Government, the Head of the Department
shall be deemed to be guilty of the offence and shall be liable to be proceeded against and
punished accordingly:

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Provided that nothing contained in this section shall render such Head of the Department
liable to any punishment if he proves that the offence was committed without his
knowledge or that he exercised all due diligence to prevent the commission of such
offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this
Act has been committed by a Department of Government and it is proved that the offence
has been committed with the consent or connivance of, or is attributable to any neglect on
the part of, any officer, other than the Head of the Department, such officer shall also be
deemed to be guilty of that offence and shall be liable to be proceeded against and
punished accordingly.
 Section 42. Protection of action taken in good faith: No suit, prosecution or other legal
proceeding shall lie against the Government or any officer of the Government or any
member or any officer or other employee of the Board in respect of anything which is
done or intended to be done in good faith in pursuance of this Act or the rules made
thereunder.
 Section 46. Bar of jurisdiction: No civil court shall have jurisdiction to entertain any
suit or proceeding in respect of any matter which an Appellate Authority constituted
under this Act is empowered by or under this Act to determine, and no injunction shall be
granted by any court or other authority in respect of any action taken or to be taken in
pursuance of any power conferred by or under this Act.

- Ved Kaur Chandel v. State of H.P. (AIR 1999 HP 59)- related to consent. The Court here accepting
the PIL for threatened pollution of air, water and noise from the establishment of the tyre retreading
unit observed that Pollution Control Board has a heavy responsibility to ensure that before starting the
industry. It takes necessary precaution not to cause air, water and noise pollution.
- M.C. Mehta v. Union of India (1999)- related to hotmix plant in the vicinity of international airport in
Delhi.
- K. Munniswamy Gowda v. State of Karnataka
- Murli S. Deora v. Union of India: Whether smoking in public places deprives the right to life of a
non-smoker under Article 21 of the Constitution of India? And Whether smoking has to be banned in
public places?
 Judgment: Realising the gravity of the situation and considering the adverse effect of smoking on
smokers and passive smokers, Hon’ble Court direct and prohibit smoking in public places and
issue directions to the Union of India, State Government as well as the Union Territories to take
effective steps to ensure prohibiting smoking in public places, namely:
(1) Auditoriums
(2) Hospital Buildings
(3) Health Institutions
(4) Educational Institutions
(5) Libraries
(6) Court Buildings
(7) Public Offices
(8) Public Conveyances, including Railways.
- Noise Pollution v. Union of India 2005 8 SCC 796

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NOISE POLLUTION
Major sources:
- Train Horn/People who live near the railways;
- Aircraft
- Festival crackers
- Marriage Processions
- Traffic Horns

Noise Pollution is not a very new pollution with a specific Act that pertains to the same. One of the most
important case laws have been Keeble v Hickeringil (1706). It was stated that no proprietor has an
absolute right to create noise upon his land because any right which the law gives him is qualified by the
condition that it must not be exercised to the nuisance of his neighbor or of the public. If he violates that
condition, he commits a legal wrong and if he does so intentionally, he could be said to have committed a
malicious legal wrong.

Vijay Anand Patra v District Magistrate, Cuttack:

Noise Pollution is basically an unwanted sound in the atmosphere. It is unwanted as it lacks the agreeable
amicable quality or if the noise is undesirable in nature. Ultrasound has frequency above 200 KHz,
Infrasound has frequency below 20 Hz. If the sound is more than 155 Decibel, it can burn the skin and if
it is more than 198 Decibel, it may also kill.

Legal Framework:
It has been defined in the Air Pollution Act. There are two mechanisms, Non-Legislative Measures and
Legislative Measures.

Non-Legislative Measures:

- Soundproof Rooms/Materials
- Planting of Trees
- Oiling machines that are making sounds

Burra bazaar firework Dealers Association v Commissioner of Police (1998):

There must be public awareness campaigns undertaken by the government to spread information about
the side effects of noise pollution. A writ application was filed by Burrabazar Fire Works Dealers'
Association against the imposition of ban on certain items of noisy fire works on the ground that the same
violates the fundamental rights of the fire works Dealers to carry on trade and business guaranteed under
Article 19(1)(g) of the Constitution of India. The Court, after assessing that the Central Pollution Control
Board had not laid down any decibel limit and that the applicants have not violated the directions and
orders issued by the Pollution Control Board and/or the Police but faithfully carried out the above
restrictions and/or impositions of ban, still considered that it must be held that Article 19(1)(g) of the
Constitution of India does not guarantee the fundamental right to carry on trade or business which creates
pollution or which takes away that communities' safety, health and peace. The order passed by the
Commissioner of Police, pursuant to the purported directions previously issued by the Court and the
Pollution Control Board of West Bengal have not banned the manufacturing, selling or dealing or using
all types of fire work, but only few fire works have been picked up and prohibited which creates noise
beyond permissible limit. In India, no effective and elaborate law has been made for controlling the noise
creator and all the authorities including International Authorities and/or the Central Pollution Control

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Board had approached it only on the question of pollution vis-a-vis the deafness and the loss of hearing
but not on Article 19(1)(a). But Article 51A of the Constitution has to be kept in mind. A citizen of this
country cannot be made a captive listener or captive audience to hear the tremendous sounds which had
admittedly other health hazards apart from mere deafness and/or hearing loss. Under Article 19(1)(a),
read with Article 21 of the Constitution of India, the citizens have a right of a decent environment and
they have a right to live peacefully, right to sleep at night and to have a right to leisure which are all
necessary ingredients of the right to life guaranteed under Article 21 of the Constitution. Accordingly, the
Court directed the West Bengal Pollution Control Board with the expert committee already appointed, to
take a decision on this question after considering all the aspects of the matter including the suggestions
and recommendations made by National Committee on Noise Level Control and after giving hearing to
the applicants, and shall pass an order fixing the sound level of the fire works in the State of West Bengal
and in view of territorial jurisdiction of this Court neither this Court can direct the order effective to the
outside West Bengal and accordingly, the Pollution Control Board's decision shall only confine to the
State of West Bengal.

Legislative Measures:

US and UK were the first countries to bring out a specific Act that deals with Noise Pollution. In India,
under Tort Law, it was mentioned that no person has the right to cause harm to others.

Dhanna Lal v Thakur (1959):

It laid down seven important points dealing with Noise Pollution.
1. Constant noise, if abnormal or unusual, can be an actionable nuisance, if it interferes with one's
physical comforts;
2. The test of a nuisance causing personal, discomfort is the actual local standard of comfort, and
not an ideal or absolute standard;
3. Generally, unusual or abnormal noise on defendant's premises which disturbs sleep of the
occupants of the plaintiff's house during night, or which is so loud during day time that due to it
one cannot hear ordinary conversation in the plaintiff's house, or which cannot allow the
occupants of the plaintiff's house to carry on their ordinary work is deemed to be a noise which
interferes with one's physical comforts;
4. Even in a noisy locality, if there is substantial addition to the noise by introduction of some
machine, instrument, or performances at defendant's premises, which materially affects the
physical comforts of the occupants of the plaintiff's house, then also the noise will amount to
actionable nuisance;
5. If the noise amounts to an actionable nuisance, the defence that the defendant is making a
reasonable use of his own property will, be ineffectual. No use of one's property is reasonable if it
causes substantial discomfort to other persons.
6. If the defendant is found to be carrying on his business so as to cause a nuisance to his
neighbours, he is not acting reasonably as regards thorn, and may be restrained by injunction,
although he may be conducting his business in a proper manner and according to rules framed in
this behalf either by the Municipality or by the Government. The latter defence can be effective in
a case of public nuisance, but not in that of a private nuisance.
7. If an operation on the defendant's premises cannot by any care and skill be prevented from
causing a private nuisance to the neighbours, it cannot be undertaken at all, except with the
consent of those injured by it.

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This was followed by the Karnataka and Allahabad High Courts also.
RadheyShyam v Gurprasad Sharma:
Noise coming out of flour mill amounted to nuisance and therefore, noise pollution.
S. 268 of IPC – Public Nuisance, Punishment is under S. 290.
Kirori Mal Bishamber Dayal v State:
A flour mill was established in the year 1928. After 20 years, the flour mill was converted into a metal
factory. The sound produced by the metal factory caused nuisance to the people living in the
neighborhood. The defendant claimed that they have been continuing their industry for 20 years and
therefore there is permission to continue the same.

The judge held that whether a particular business is nuisance or not can only be decided on the facts and
circumstances of the case. The question whether a particular trade or business is or is not a nuisance can
be determined only after taking into consideration a number of circumstances such as the place where it is
located or carried on, the number of people whose rights are prejudicially affected thereby and the extent
of the injury, discomfort and annoyance caused to normal human beings. The mere fact that the factory
was allowed to operate for several years without any objection having been raised by the neighbours
would not render the petitioner immune from punishment if it is found, as has been found in the present
case, that its existence constitutes a nuisance to the people of the neighbourhood. It has been held
repeatedly that no prescriptive right can be acquired to maintain, and no length of time can legalise, a
public nuisance.
Emperor v Ram Charan Ahir:
In this case, the chaukidaar making noise was alleged as noise pollution, but the Court held that since the
Chaukidaar was discharging his duties, this shall not be noise pollution.
Rabin Mukherjee v State of West Bengal:
This is a very monumental case in the direction of minimizing noise pollution. This writ application was
moved by the petitioners for protection of their own rights and also in public interest being aggrieved by
the nuisance and noise pollution which are being created in the impunity by the transport operators by
indiscriminate installation and use of electric and artificially generated air horns which cause unduly rash,
shrill, loud and alarming noise. The petitioners prayed for a writ in the nature of Mandamus commanding
the Respondents to enforce the provisions of Rule 114 of the Bengal Motor Vehicles Rules, 1940 and to
enforce the restrictions against the use of such electric and other loud and shrill horns including air horns
by operators of the transport vehicles. 

Rule 114: Every motor vehicle shall be fitted with a horn or other approved device available for
immediate use by the driver of the vehicle and capable of giving audible and sufficient warning of the
approach or position of the vehicle.No motor vehicle shall be fitted with any multitoned horn giving a
succession of different notes or with any other sound producing device giving any unduly harsh, shrill,
loud or alarming noise.
India does not have a specific Act for Noise Pollution, it has Noise Pollution Rules 2000.

Church of Gods v KKR Majestic Colony:

All religious organisations use loudspeakers for their religious processions, for example, temples playing
music and masjids and churches playing their prayers. In the present case, the church was playing their
prayers using loudspeakers and drums. The HC passed an order demanding a simple control on the

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loudness of the same, since it caused nuisance in the neighbourhood. This was challenged in the Supreme
Court.

The appellant, a minority institution was in the practice of using musical instruments such as drum set,
triple ganga, guitar etc. The respondent welfare Association filed a Criminal O.P before the High Court of
Madras for a direction to the authorities [Superintendent of Police] to take action on the basis of the letter
issued by the Joint Chief Environment Engineer of the TMPCB. In High Court it was contended by the
Church that the petition was filed with an oblique motive in order to prevent a religious minority
institution from pursuing its religious activities and the Court cannot issue any directions to prevent the
church from practicing its religious beliefs. The High Court balanced the act by giving directions to the
religious minority institution to bring down the noise level by keeping the speakers at a lower level.
Aggrieved by the said order the respondents appealed to the Supreme Court. The Supreme Court held that
India is a country with many religious beliefs and faith, numerous communities or sects of people reside
in the same area and locality. Each reside in a sense of harmony an d peace. The Constitution has given
religious institutions fundamental right to practice, profess and propagate. But does right include the right
to add noise pollution on the ground of religion? Whether beating of drums or reciting of prayers by use
of microphones and loudspeakers so as to disturb the peace or tranquility of neighborhood should be
permitted? The Court held that ‘undisputedly no religion prescribed that prayers should be performed by
disturbing the peace of other nor does it preach that they should be through voice-amplifiers or beating of
drums. In our view, in a civilized society in the name of religion, activities which disturb old, infirm
persons, students or children having their sleep in the early hours or during day time or other persons
carrying on other activities cannot be permitted.’ The Court while adjudicating the appeal observed that in
the present case, the contention with regard to the right under Art. 25 or Art. 26 of the Constitution which
are subject to ‘public order, morality and health’ are not required to be dealt with in detail mainly
because, no religion prescribes or preaches that prayers are required to be performed through voice
amplifiers or by beating of drums. In any case, if there is such practice, it should not adversely affect the
rights of others including that of being not disturbed in their activities.

Guruvayur Devaswom Managing Committee v Superintendent of Police:

The police ordered to remove the loudspeakers that were set up during their festival. The Managing
Committee alleged that their right of religion was being violated. The respondents claimed that no
permission or sanctions were obtained before installing these loudspeakers and they stand to cause
irreparable harm to the ears of the devotees. The expert opinion held that: The Devaswom is using the PA
system for broadcasting devotional song and announcements. The devotional song (Narayaneeyam) is
broadcast, every day from 2.30 hrs. to 4.30 hrs. The audibility of the devotional song is limited within the
temple area and it is serving the purpose of a wake-up call for devotees who have to attend morning
pooja.
Since the report was in favour of the temple, the Court granted permission for the successful installation
of the same and the Police authorities were directed to grant permission for the same.

NOISE POLLUTION RULES, 2000

- Rule 5 is extremely important since it specifies the limits for the usage of loudspeakers.
- Day time shall mean from 6.00 a.m. to 10.00 p.m. Night time shall mean from 10.00 p.m. to 6.00 a.m.
Silence zone is an area comprising not less than 100 metres around hospitals, educational institutions,
courts, religious places or any other area which is declared as such by the competent authority. –
Schedule.

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- Read all Rules.

ENVIRONMENT PROTECTION, 1986

What was the need of enacting the Environment Protection Act, 1986?
- The occurrence of Bhopal Gas Tragedy (1984) and Oleum Gas Leak (1985).

This was the first Act that provided a definition for Environment.

Features of the Act:

- Introduced in 1986 and is inclusive to the whole of India.
- The jurisdiction of civil courts is barred under the Act.
- The Act is divided into 26 sections, running into 4 chapters and 7 schedules. These schedules deal
with emission standards, noise and air affluents, etc.
- There are other rules that have been enacted by the Parliament
1. Environment Protection (Rules), 1986
2. Hazardous Microorganism Rules, 1993
3. Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016
4. Manufacture, Storage and Import of Hazardous Chemical (Amendment) Rules, 1989
5. Chemical Accident (Emergency PlanningPreparedness and Response) Rules, 1996
6. Bio-medical Waste Management Rules, 2016
7. Solid Waste Management Rules, 2016
8. Noise Pollution Rules, 2000
9. Ozone Depleting Substances (Regulation and Control) Rules, 2000
10. Batteries (Management and Handling) Rules,2001
11. Wetlands(Conservation and Management) Rules, 2017
12. E-Waste (Management) Rules, 2016
13. Plastic Waste Management Rules, 2016

DEFINITIONS UNDER THE ACT

- S. 2(a) defines environment as one that includes water, air and land and the inter- relationship which
exists among and between water, air and land, and human beings, other living creatures, plants,
micro-organism and property. The Supreme Court also in the case of Virender Gaur v State of
Haryana held that the word environment is a broad spectrum which brings in its ambit hygienic
environment and ecological balance.
- Environmental pollutant means any solid, liquid or gaseous substance present in such concentration
as may be, or tend to be, injurious to environment. There are permissible limits for air pollutants,
even in the context of noise pollution there are permissible limits. [S.2(b)]
- Environmental pollution means the presence in the environment of any environmental pollutant. This
presence will be more than the permissible amount. If a person wants to prevent any activity, the
pollution must exceed the permissible limit. [S.2(c)]

Schedules 1 to 7 provide the different parameters with respect to air, noise, etc.
Halsbury’s Law of England defines pollution as one which relates to direct or indirect discharge by man
of substances or energy into aquatic environment resulting in hazard to human health, harm to living
resources and aquatic ecosystem, damage to amenities or interference with other legitimate uses of water.

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- Handling, in relation to any substance, means the manufacture, processing, treatment, package,
storage, transportation, use, collection, destruction, conversion, offering for sale, transfer or the like
of such substance. [S.2(d)] This is an inclusive definition. Depending upon advancement of
technology, new items can be included.
- Hazardous substance refers to any substance or preparation which, by reason of its chemical or
physio-chemical properties or handling, is liable to cause harm to human beings, other living
creatures, plant, micro-organism, property, or the environment. [S.2(e)].

M.P. State Electricity Board v. The Collector and Anr. (2003):

Electricity can be regarded as "hazardous substance" under Section 2(e) of the Environment (Protection)
Act, 1986.

- An occupier in relation to any factory or premises, means a person who has, control over the affairs of
the factory or the premises and includes in relation to any substance, the person in possession of the
substance. [S.2(f)]
POWERS OF THE CENTRAL GOVERNMENT
Section 3 deals with the Power of Central Government to take measures to protect and improve
environment.
(1) Subject to the provisions of this Act, the Central Government, shall have the power to take all such
measures as it deems necessary or expedient for the purpose of protecting and improving the quality of
the environment and preventing controlling and abating environmental pollution.
[ambit of the power is very wide]
(2) In particular, and without prejudice to the generality of the provisions of sub-section (1), such
measures may include measures with respect to all or any of the following matters, namely:-- [the list
may change depending upon the changing circumstances]
(i) co-ordination of actions by the State Governments, officers and other authorities—
(a) under this Act, or the rules made thereunder, or
(b) under any other law for the time being in force which is relatable to the objects of this Act;
[this is why we call this an umbrella Act as it involves Air Act, Water Act, etc.]
(ii) planning and execution of a nation-wide programme for the prevention, control and abatement of
environmental pollution;
(iii) laying down standards for the quality of environment in its various aspects;
(iv) laying down standards for emission or discharge of environmental pollutants from various sources
whatsoever:
Provided that different standards for emission or discharge may be laid down under this clause from
different sources having regard to the quality or composition of the emission or discharge of
environmental pollutants from such sources;
(v) restriction of areas in which any industries, operations or processes or class of industries, operations
or processes shall not be carried out or shall be carried out subject to certain safeguards;
(vi) laying down procedures and safeguards for the prevention of accidents which may cause
environmental pollution and remedial measures for such accidents;
(vii) laying down procedures and safeguards for the handling of hazardous substances;
(viii) examination of such manufacturing processes, materials and substances as are likely to cause
environmental pollution;

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(ix) carrying out and sponsoring investigations and research relating to problems of environmental
pollution;
(x) inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials
or substances and giving, by order, of such directions to such authorities, officers or persons as it may
consider necessary to take steps for the prevention, control and abatement of environmental pollution;
(xi) establishment or recognition of environmental laboratories and institutes to carry out the functions
entrusted to such environmental laboratories and institutes under this Act;
(xii) collection and dissemination of information in respect of matters relating to environmental
pollution;
(xiii) preparation of manuals, codes or guides relating to the prevention, control and abatement of
environmental pollution;
(xiv) such other matters as the Central Government deems necessary or expedient for the purpose of
securing the effective implementation of the provisions of this Act.
(3) The Central Government may, if it considers it necessary or expedient so to do for the purpose of this
Act, by order, published in the Official Gazette, constitute an authority or authorities by such name or
names as may be specified in the order for the purpose of exercising and performing such of the powers
and functions (including the power to issue directions under section 5) of the Central Government under
this Act and for taking measures with respect to such of the matters referred to in sub-section (2) as may
be mentioned in the order and subject to the supervision and control of the Central Government and the
provisions of such order, such authority or authorities may exercise the powers or perform the functions
or take the measures so mentioned in the order as if such authority or authorities had been empowered by
this Act to exercise those powers or perform those functions or take such measures.

Lafarge Umiam Mining Private Limited, T.N. Godavarman Thirumulpad v. Union of India (2011):  
Section 3 of the Environment (Protection) Act, 1986 confers a power coupled with duty and, thus, it is
incumbent on the Central Government, as hereinafter indicated, to appoint an Appropriate Authority,
preferably in the form of Regulator, at the State and at the Centre level for ensuring implementation of the
National Forest Policy, 1988.
 
Sneha Mandal Housing Society Ltd. v Union of India:
Bestow upon central government plenary powers as it deems necessary or expedient. Further it also
contemplates appointment of several authorities for protection envisaged by the Act
 
Suo Moto v. Vatwa Industries Association:
Power of pollution control board - Board and officers are free and competent to take actions against those
violating environment norms and they should not wait for the directions. Delay may cause dereliction of
duty. Power is so wide that they can take immediate action
 
NCR has created an authority for traffic safety laws. MC Mehta 1998 case. (vehicular pollution)
- Planning and execution of nation-wide programme for prevention control and abatement: M.C.
Mehta v. Union of India (1991): The Supreme Court directed the Central government to make
people aware – keeping the citizen informed. It is an obligation of the government to keep
citizens informed. To fulfil this obligation, the Court ordered that:
1.     Cinema halls to exhibit slides

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2.     Short films
3.     Relative information through radio tv
4.     Making it compulsory subject in schools and colleges
- Laying down standard for quality of environment: V Lakshmipathy v. State of Karnataka: A
person who was resident of a particular colony where a factory was operated. He along with other
people filed a writ petition under 226. He also stated that they are imposing serious threat to
public health- air, noise and land pollution. Court issued writ of mandamus – stop working and
asked Bangalore Development Authority to construct roads. The Court emphasized on quality of
environment. Right to life under 21 does not fall short of qualitative life which is possible only in
an environment of quality. Where quality is threatened, court can use its innovative power.
- Laying down standards for emissions of various pollutants: MC Mehta v Union of India (1996):
This was based on the report of NEERI that the mining operations are violating air quality
standards. Therefore, the Court came out with measures to keep a check on these activities, which
impacts the air quality. The people conducting such activities will be liable for environmental
pollution. Rule 3 also needs to be considered. Case of Ganga Pollution is also applicable here.
Deepak Kumar v State of Haryana: This was a specific case of illegal mining, which was taking
place in Haryana and UP. The Court stated that without conducting any study on the possible
environmental impact on/in the river beds and else-where the auction notices have been issued.
We are of the considered view that when we are faced with a situation where extraction of
alluvial material within or near a river bed has an impact on the rivers physical habitat
characteristics, like river stability, flood risk, environmental degradation, loss of habitat, decline
in biodiversity, it is not an answer to say that the extraction is in blocks of less than 5 hectares,
separated by 1 kilometre, because their collective impact may be significant, hence the necessity
of a proper environmental assessment plan.
EIA is an extension of the Precautionary principle.
- FB Taraporewala v Bayer India Ltd.:
There were a number of factories who were asked to relocate so that they do not cause harm to the
neighbourhood or the environment. The Court directed the Central government to review the authority.
- Laying down the procedure for the prevention of accidents: If there is an apprehension or
anticipation of an accident, the government is authorised to provide preventive measures and
safeguards. Hazardous Chemical Rules, 1989 provides for the laying down of an on and off site
emergency plan
Research Foundation of Science v Union of India:
The issue here pertains to the breaking of a ship at a shipyard which was loaded with asbestos. The Court
ordered for the constitution of an expert Committee for recommending certain code for the Shipbreaking
industry.
MC Mehta v Union of India (1992):
The government must take all powers to disseminate the information that they can.

ONE DAY NOTES MISSING – Ask Sahil [Will update it]

Section 9: Furnishing of information to authorities and agencies in certain cases.

(1) Where the discharge of any environmental pollutant in excess of the prescribed standards occurs or is
apprehended to occur due to any accident or other unforeseen act or event, the person responsible for

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such discharge and the person in charge of the place at which such discharge occurs or is apprehended
to occur shall be bound to prevent or mitigate the environmental pollution caused as a result of such
discharge and shall also forthwith

(a) intimate the fact of such occurrence or apprehension of such occurrence; and

(b) be bound, if called upon, to render all assistance,

to such authorities or agencies as may be prescribed.– No denial can be made by the person responsible
in terms of rendering any assistance.

(2) On receipt of information with respect to the fact or apprehension of any occurrence of the nature
referred to in sub-section (1), whether through intimation under that sub-section or otherwise, the
authorities or agencies referred to in sub-section (1) shall, as early as practicable, cause such remedial
measures to be taken as are necessary to prevent or mitigate the environmental pollution.

(3) The expenses, if any, incurred by any authority or agency with respect to the remedial measures
referred to in sub-section (2), together with interest (at such reasonable rate as the Government may, by
order, fix) from the date when a demand for the expenses is made until it is paid, may be recovered by
such authority or agency from the person concerned as arrears of land revenue or of public demand.

In one case, the Court had ordered payment of 4 crores by the person who is responsible for the
environmental harm and thereby attempted to reverse the harm that was caused.

Section 10 says thatPowers of entry and inspection provides that any person empowered by the Central
Government in this behalf shall have a right to enter, at all reasonable timeswith such assistance as he
considers necessary, any place:

(a) for the purpose of performing any of the functions of the Central Government entrusted to him;

(b) for the purpose of determining whether and if so in what manner, any such functions are to be
performed or whether any provisions of this Act or the rules made thereunder or any notice, order,
direction or authorisation served, made, given or granted under this Act is being or has been complied
with;

(c) for the purpose of examining and testing any equipment, industrial plant, record, register, document
or any other material object or for conducting a search of any building in which he has reason to believe
that an offence under this Act or the rules made thereunder has been or is being or is about to be
committed and for seizing any such equipment, industrial plant, record, register, document or other
material object if he has reasons to believe that it may furnish evidence of the commission of an offence
punishable under this Act or the rules made thereunder or that such seizure is necessary to prevent or
mitigate environmental pollution.

(2) Every person carrying on any industry, operation or process of handling any hazardous substance
shall be bound to render all assistance to the person empowered by the Central Government under sub-
section (1) for carrying out the functions under that sub-section and if he fails to do so without any
reasonable cause or excuse, he shall be guilty of an offence under this Act. – This is a mandatory duty of
the person carrying out any environmental operations.

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(3) If any person willfully delays or obstructs any persons empowered by the Central Government under
sub-section (1) in the performance of his functions, he shall be guilty of an offence under this Act.

(4) The provisions of the Code of Criminal Procedure, 1973, or, in relation to the State of Jammu and
Kashmir, or an area in which that Code is not in force, the provisions of any corresponding law in force
in that State or area shall, so far as may be, apply to any search or seizures under this section as they
apply to any search or seizure made under the authority of a warrant issued under section 94 of the said
Code or as the case may be, under the corresponding provision of the said law.

Section 11 provides for the power to take sample and procedure to be followed therein.

Section 14 provides for the requirement of the report of a government analysis.

Section 15 provides for the penalty for contravention of the provisions of the Act and the Rules, Orders
and Directions. This is the only section that provides for the penalty of any contravention under the
Environmental Protection Act.

(1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or
orders or directions issued thereunder, shall, in respect of each such failure or contravention, be
punishable with imprisonment for a term which may extend to five years with fine which may extend to
one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine
which may extend to five thousand rupees for every day during which such failure or contravention
continues after the conviction for the first such failure or contravention.

S. 16 and 17 talks about the vicarious liability of company and government departments, respectively.

ENVIRONMENTAL IMPACT ASSESSMENT [EIA]

The concept of EIA was formalized since it was triggered on the basis of the occurrence of two events –
Bhopal Gas Tragedy and Oleum Gas Leak. It is basically a process of evaluating the likely environmental
impact of a proposed project or development, taking into account inter-related socio-economic, cultural
and human-health impacts, both beneficial and adverse. It is also a decision making process whether a
project or a proposal must be commenced or not.

The International Association for Impact Assessment defines an environmental impact assessment as “…
the process of identifying, predicting, evaluating and mitigating the biophysical, social, and other
relevant effects of development proposals prior to major decisions being taken and commitments
made.”EIA is a tool that seeks to ensure sustainable development through the evaluation of those impacts
arising from a major activity (policy, plan, program, or project) that are likely to have significant
environmental effects. Such impacts include both beneficial and adverse effects on the natural
environment. It is anticipatory, participatory, systematic in nature and relies on multidisciplinary effects.
It is the overall study of any development program which has to be undertaken before the actual
commitment is undertaken.

UNEP defines Environmental Impact Assessment (EIA) as a tool used to identify the environmental,
social and economic impacts of a project prior to decision-making. It aims to predict environmental
impacts at an early stage in project planning and design, find ways and means to reduce adverse impacts,
shape projects to suit the local environment and present the predictions and options to decision-makers.
By using EIA both environmental and economic benefits can be achieved, such as reduced cost and time

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of project implementation and design, avoided treatment/clean-up costs and impacts of laws and
regulations.

In India, EIA was introduced in the year 1977-78, but it did not have any legislative support and was
rather just a step or a suggestion undertaken by the Planning Commission. Post 1994, the Union Ministry
of Environment and Forest, brought out the notification under the Environment Protection Act, 1986
making the environment clearance measure a mandatory one for expansion or for setting up new projects.
This was amended in the year 2006 as well along with the ‘anti-environment’ amendment coming up in
2020.

There is a need for obtaining an NOC/Clearance certificate to commence any process that would impact
environment adversely. This is an eight-step process:

a. Screening to determine which projects or developments require a full or partial impact

assessment study;
b. Scoping to identify which potential impacts are relevant to assess (based on legislative
requirements, international conventions, expert knowledge and public involvement), to identify
alternative solutions that avoid, mitigate or compensate adverse impacts on biodiversity
(including the option of not proceeding with the development, finding alternative designs or sites
which avoid the impacts, incorporating safeguards in the design of the project, or providing
compensation for adverse impacts), and finally to derive terms of reference for the impact
assessment;
c. Assessment and evaluation of impacts and development of alternatives, to predict and
identify the likely environmental impacts of a proposed project or development, including the
detailed elaboration of alternatives – How does it socially impact? Whether the impact will be
positive or negative in nature? Whether the impact would be of a reversible or an irreversible
nature? This impact analysis is done by the people who are closely related or the interested
parties and by experts.
d. Mitigation Measures: There is a scope to mitigate or reduce the adverse effects of the proposed
project.
e. Reporting the Environmental Impact Statement (EIS) or EIA report, including an
environmental management plan (EMP) which is given to the required authorities or the
interested parties, and a non-technical summary for the general audience.
f. Review of the Environmental Impact Statement (EIS), based on the terms of reference
(scoping) and public (including authority) participation. There is a public hearing, as well
wherein the public/environmental groups are also consulted regarding the various proposals.
g. Decision-making on whether to approve the project or not, and under what conditions – The
authorities and the consultants make the final decision keeping in mind the various environmental
impacts.
- Approved: No further issues in terms of the environmental process.
- Rejected:No scope of re-applying at all.
- Approval depending on certain changes: These changes are mandatory to be followed. Then
the whole process of the EIA shall be undertaken again.
h. Monitoring, compliance, enforcement and environmental auditing. Monitor whether the
predicted impacts and proposed mitigation measures occur as defined in the EMP. Verify the

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compliance of proponent with the EMP, to ensure that unpredicted impacts or failed mitigation
measures are identified and addressed in a timely fashion.
i. Assessment of the alternative or mitigation measures:Sometimes since the enforcement of the
project is extremely essential, despite having negative implications, the project or the proposal
may be authorized to proceed with. Therefore, in such situations, the alternative or mitigation
measures must be formulated.
j. Risk Assessment/Analysis: There is a risk analysis that is undertaken on the basis of which
certain changes are suggested, that need to be incorporated for the furthering of the project.
Amendments brought in 2020:
- Post facto Approval: The clearance could be given even after the project has been commenced.
This focuses on the necessity of development thereby giving voice to the anthropocentric
approach.
- Public consultation process: The public consultation was open for 30 days initially, which was
further reduced to 20 days.
- Relaxation of monitoring requirement: Projects had to submit a compliance report every six
months, but now they are required to submit only once a year.
- Strategic Projects: Strategic projects are ones where EIA is not mandatory, while the non-
strategic projects have the process of EIA mandatory.

Activities mentioned in Schedule I of the Environment Protection Rules are compulsory. The notification
that was released in 1994, provides for the various requirements that need to be undertaken. As per the
notification released in 2006, again, the requirement or the procedure for EIA has not been properly
mentioned. There were some more changes that were introduced as per the 2006 notification:
- EIA is mandatory
- Environment Clearance became really important and provided that the category of industries
requiring EC was expanded

Who gives Environment Clearance? For Category A, it is the Ministry of Environment and Forest and for
Category B, it is the State Impact Environment Assessment Authority, since the projects were smaller in
size. Category B was further divided as B1 and B2. B1 includes the projects that require EIA/EC, and B2
includes the very small projects that do not require these ECs.

- Distributed the stipulated time for various steps for EIA – The first four five steps including
public hearing and public consultation needs to be completed in 45 days.

COASTAL ZONE MANAGEMENT

Coastal zone is essentially the zone or dry land near the ocean which includes water and submerged land.
Why is Coastal Management required? Since the coast is considered as dynamic in nature and they
influence the mankind in different ways as various ecosystems prevail near the coastal area. India is a
peninsular country and that is why it is even more important for India to have a coastal management
system.

It is a process of governance that consists of legal and institutional framework necessary to ensure the
development and management plans for coastal zones are integrated with environmental and social goals
and are developed with the participation of those affected. Further, the purpose of coastal zone
management is to preserve, protect, develop, enhance and restore these coastal resources.

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- To maximize benefits accruing from the coastal zone
- To minimize conflicts and harmful activities upon each other
- To promote linkages between sectoral activities
- To guide coastal area development in an ecologically sustainable fashion.

The coastal zone management is necessary to maintain a balance between the development needs and
protection of natural resources, because it assists in sustainability. The Coastal Zone Management in India
is very poor.

Random News:A day before the scheduled demolition of four waterfront high-rise apartment complexes
near Kochi, Kerala, the Supreme Court has come down heavily on a seven-star resort on the backwaters
and ordered its demolition.

A Supreme Court bench consisting of Justices V Subramanian and Rohinton Fali Nariman issued the
order for demolition rejecting the counter-petition of the resort owners against the Kerala High Court
order. The High Court had ordered the demolition of Kapico resorts on grounds that these had violated
the Coastal Regulation Zones, the reason that the Maradu highrises were also ordered to be flattened. The
four apartments complexes are going to be demolished over two days on Saturday and Sunday.

The High Court had ordered in July 2013 to demolish the resort built on a private island. The order was
upheld by the Supreme Court in October the same year. The 72 villas in the resort have been lying unused
for the last six years and owners have even failed to pay taxes.

HOW IMPORTANT IS COASTAL ZONE MANAGEMENT?

Coastal Zone consists of coastal land upto 500 metres from the High Tide Line [could be recognized as
per the ‘mark’ that exists], a stage of 100 metres along the banks of creeks, estuaries, backwater and
rivers where tidal fluctuations occur.

Coastal area is the transition area between marine and territorial zone. It includes shore ecosystem,
wetland ecosystem, mangrove ecosystem, mudflat ecosystem, salt marsh ecosystem and seaweed
ecosystem.

Threats to coastal zones:

- Onslaught of the eco coastal areas – Mangroves, Fish breeding, coral reefs are diminishing.
- Domestic or Industrial Waste Disposal – Dumping of Waste is increasing day by day, thereby
polluting these coastal zones.
- Construction of Resorts on these areas has also led to displacement of people whose livelihood is
dependent on these areas and the activities carried out in the area.

No specific Act in India deals with Coastal Management, but there are just notifications that are released
timely thereby providing a legal guideline for the management of the same. Coastal Regulation Zone
Notification – I was released in the year 1991 under the Environmental Protection Act, 1986 by the
Ministry of Environment and Forest to regulate the activities being conducted in the coastal areas of
India. This governs the human and industrial activities performed close to the coastline. The notification
has been amended 25 times and a new notification was brought in the year 2011, with major changes
[thereby scrapping all the other notifications prior to 2011], which was further followed by a notification
released in the year 2018. These notifications aim at protecting the fragile ecosystem near the coastline.
They restrict certain activities:

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- Large scale construction;
- Setting up of new industries – specifically storage and disposal;
- Mining.

The 2011 notification was brought on the basis of the recommendations by MS Swaminathan Committee.
A new Committee was formed in the year 2018 under the chairmanship of Sailesh Nayak, which also
changed huge number of changes after consulting the state government. It also considered the inputs of
other stakeholders and finally the rules were formulated in the year 2018.

The objectives of the MS Swaminathan Committee were as follows:

- To ensure livelihood security to the fisher communities and other local communities living in the
coastal areas;
- To conserve and protect the coastal structure: its unique environment and its marine area;
- To promote development through sustainable manner based on scientific principles taking into
account the dangers of natural hazards in the coastal areas – sea level rise due to global warming;
- To restrict the setting up and expansion of any industry, operation or processes, manufacture,
handling or storage or disposal of hazardous elements.

The Committee also said that a distance not less than 100 metre or the width of the creek river backward,
whichever is lesser, is considered as the no development zone. The Committee provided five different
categories of coastal areas:

- CRZ – I: Ecologically sensitive and geomorphological feature which play an important role in
preserving the integrity of coastal areas. The area between the Low Tide Line and High Tide
Line. No construction is permitted in this area. Example – Mangrove, Salt Marshes, Coral Reefs,
Sand Dunes, etc.
- CRZ – II: Area developed upto or close to shoreline. Area within the municipal limit and in other
existing legally designated urban areas which are substantially built up and has been provided
with drainage and approach roads and other infrastructure facility. This area is a bit away from
the ocean and therefore some constructions are permitted.
- CRZ – III: Areas that are relatively undisturbed and do not belong to the first two categories.
These will include coastal zones in rural areas (developed and undeveloped), areas within
municipal limits, or in legally designated urban areas that are not substantially built up. It is an
area between 0 to 200 metres from High Tide Line. It is considered as an NDZ i.e., No
Development Zone. Here, no construction shall be permitted. Only activities related to
agriculture, forestry, atomic energy projects, mining of rare minerals, salt manufacture,
reclassification of petroleum products, rearing non-conventional energy resources and certain
public service activities may be permitted.The permission for these activities shall be granted on
a discretionary basis.
- CRZ – IV: Water areas upto the territorial water and the tidal influence water bodies. Water area
from the Low Tide Line upto 12 nautical miles of the seaward side and the water area of the tidal
influenced body from the mouth of the water body at the sea upto the influence of tide which is
measured as 5 parts per thousand during the driest season of the year. There is no restriction on
traditional fishing, but no untreated sewage or solid waste shall be left off or dumped in these
areas.

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- CRZ – V: Area requiring special consideration for the purpose of protecting the critical coastal
environment like Sunderbans of West Bengal, CRZ area of Goa or Kerala. These areas are
referred to as ‘critically vulnerable coastal areas’, which are given special protection. These areas
require protection to their coast environment as well as protection of the local communities.

CRZ Notifications form a part of the Environment Protection Act and there are three extremely important
CRZs – 1991, 2011 and 2018.

Post 2018, Changes introduced:

- The 2018 notification permits temporary tourism facilities such as shacks, toilet blocks, changing
rooms, drinking water facilities etc. on beaches within 10 metres of the waterline, making the
state and even the town planning authorities empowered to grant permission.Temporary tourism
facilities are now permitted in NDZ of the CRZ-III areas.
- Such densely populated CRZ-III areas, where the population density is more than 2161/sq km
base, shall be designated as CRZ–III A and in CRZ-III A, area up to 50
meters from the HTL on the landward side shall be earmarked as the ‘No Development Zon
e (NDZ)’, provided the CZMP as per this notification, framed with due consultative process, have
been approved, failing which, a NDZ of 200 meters shall continue to apply.CRZ-III B: All other
CRZ-III areas with population density of less than 2161/sq km, shall be designated as CRZ-III B
and in CRZ-III B, the area up to 200 meters from the HTL on the landward side shall be
earmarked as the ‘No Development Zone (NDZ)’.
- The notification also has streamlined the process of CRZ clearances and only projects located in
the CRZ-I (Ecologically Sensitive Areas) and CRZ IV (area covered between Low Tide Line and
12 nautical miles seaward) will now be dealt by the Union Environment Ministry for clearance.
- The powers for clearances with respect to CRZ-II (areas that have been developed up to or close
to the shoreline) and CRZ-III (areas that are relatively undisturbed) have been delegated to the
state governments.
- The 20m area is recognized as a uniform non development zone in all the islands. In 2018, all
ecologically sensitive areas are accorded special importance. Special importance refers to specific
guidelines relating to the conservation and management and there is a special focus on the
pollution abatement.
- Further, in order to address pollution in the coastal areas, treatment facilities have been permitted
to be set up in CRZ – I subject to necessary safeguards.

Indian Council for Enviro Legal Action v Union of India:

The Court in this case, examined the validity of the amendments done in 1994 for CRZs. The Court held
that it would be the duty and responsibility of the coastal states and Union Territories in which the
stretches exist, to see that the notifications issued under the provisions of Environment(Protection) Rules
as well as the notifications issued, declaring the coastal stretches should be properly and duly
implemented and the various restrictions on the setting up and expansion of industries, operation or
process etc. in the Regulation Zone should be strictly enforced. The Court further held that the reduction
of no development zones from 100 metres to 50 metres was contrary to the object of the Environment Act
as it was not made of valid reasoning. Therefore, the Court disallowed the fencing which hindered the
public access to the beach as it negates the right to way of general public which they are entitled to enjoy.

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Goa Foundation v Diksha Holdings Pvt. Ltd.:
The main issue was Whether construction can be done in CRZ – III? The Court held that Hotels and other
constructions can be done in CRZ – III, but as per the notification of 1991 and with the approval of the
Central Government. “It is now a well-settled principle of law that while dealing with the matter, the
social problems shall have to be dealt with in the way and in the manner it calls for, since benefit to the
society ought to be the prime consideration of the Law Courts and ecological imbalance being a social
problem ought to be decided by a court of law so that the society may thrive and prosper without any
affection.The society shall have to prosper, but not at the cost of the environment and in the similar vein,
the environment shall have to be protected but not at the cost of the development of the society there shall
have to be both development and proper environment and as such, a balance has to be found out and
administrative actions ought to proceed in accordance therewith and not dhors the same.”

The Court has allowed the permission which was given to the project or the undertaking and thereby
legally approving the same. Environment Protection and Development of Society both go hand in hand,
neither can be given more importance or priority to.

Goa Foundation v Konkan Railway Corporation:

The Central Government decided to lay broad gauge between Bombay to Mangalore. The Goa
Foundation alleged that such activities would adversely affect the ecology of the coastal areas and
required prior approval of the Central Government. The Court held that CRZ Notification of 1991
subscribed that there would be restrictions on the setting up and expansion of industrial operations or
processes in the said areas but land reclamation, laying down railway lines could not be considered as
industry, therefore the Court decided to not intervene in this decision taken by the Central Government.
The Court also observed that no development is possible without some adverse effect on ecology or
environment but public utility project cannot be abandoned when it is necessary to adjust the interest of
the people as well as the necessity to maintain the environment of the area.

S Jagannath v Union of India [Shrimp Farming case also called Chilka Lake Case]: already discussed.

SOLID WASTE MANAGEMENT RULES

- This rule replaced the Municipal Solid Waste Management and Handling Rules in the year 2016,
introduced by the Ministry.
- The Rules include E-Waste, Biomedical, Hazardous, Construction and Demolition.
- The ambit of the act is wider in comparison to the other Acts

How is it different from the older Rules?

- Segregation at source: The new rules have mandated the source segregation of waste in order to
channelise the waste to wealth by recovery, reuse and recycle. Waste generators would now have
to now segregate waste into three streams- Biodegradables, Dry (Plastic, Paper, metal, Wood,
etc.) and Domestic Hazardous waste (diapers, napkins, mosquito repellants, cleaning agents etc.)
before handing it over to the collector. Institutional generators, market associations, event
organisers and hotels and restaurants have been directly made responsible for segregation and
sorting the waste and manage in partnership with local bodies. In case of an event, or gathering of
more than 100 persons at any licensed/ unlicensed place, the organiser will have to ensure
segregation of waste at source and handing over of segregated waste to waste collector or agency,
as specified by the local authority. All hotels and restaurants will also be required to segregate

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biodegradable waste and set up a system of collection to ensure that such food waste is utilised
for composting / biomethanation. The rules mandate that all resident welfare and market
associations and gated communities with an area of above 5,000 sq m will have to segregate
waste at source into material like plastic, tin, glass, paper and others and hand over recyclable
material either to authorised waste-pickers and recyclers or to the urban local body.

Three categories were introduced:

- Biodegradable Waste
- Domestic Hazardous Waste Non-Biodegradable: Cleaning agents like napkins, mosquito
repellents, etc.
- Dry Waste: Plastic, Paper, etc.

The responsibility is imposed on the households to segregate the waste, although in public areas it is the
owner of the place who is responsible. Brand owners have the responsibility as to making consumers
aware of the hazards of their non-biodegradable packaging material.

- Collection and disposal of sanitary waste : The manufacturers or brand owners of sanitary
napkins are responsible for awareness for proper disposal of such waste by the generator and shall
provide a pouch or wrapper for disposal of each napkin or diapers along with the packet of their
sanitary products.
- Collect Back scheme for packaging waste: As per the rules, brand owners who sale or market
their products in packaging material which are non‐biodegradable, should put in place a system to
collect back the packaging waste generated due to their production.
- User Fees for Collection: The new rules have given power to the local bodies across India to
decide the user fees. Municipal authorities will levy user fees for collection, disposal and
processing from bulk generators. As per the rules, the generator will have to pay “User Fee” to
the waste collector and a “Spot Fine” for littering and non-segregation, the quantum of which will
be decided by the local bodies. Also, the new rules have mentioned about the integration of rag
pickers, waste pickers and kabadiwalas from the informal sector to the formal sector by the state
government.The rules also stipulate zero tolerance for throwing; burning, or burying the solid
waste generated on streets, open public spaces outside the generator’s premises, or in the drain, or
water bodies.
- Waste Processing and Dumping:As per the new rules, it has been advised that the bio-
degradable waste should be processed, treated and disposed of through composting or bio-
methanation within the premises as far as possible and the residual waste shall be given to the
waste collectors or agency as directed by the local authority. The developers of Special Economic
Zone, industrial estate, industrial park to earmark at least 5 per cent of the total area of the plot or
minimum 5 plots/ sheds for recovery and recycling facility.Waste processing facilities will have
to be set up by all local bodies having a population of 1 million or more within two years. For
census towns with a population below 1 million or for all local bodies having a population of 0.5
million or more, common, or stand-alone sanitary landfills will have to be set up in three years’
time.Also, common, or regional sanitary landfills to be set up by all local bodies and census
towns with a population under 0.5 million will have to be completed in three years.Also, the rules
have mandated bio‐remediation or capping of old and abandoned dump sites within five years.
- Constitution of a Central Monitoring Committee: The government has also constituted a
Central Monitoring Committee under the chairmanship of Secretary, MoEF&CC to monitor the

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overall implementation of the rules.   The Committee comprising of various stakeholders from the
Central and state governments will meet once a year to monitor the implementation of these rules.
- Promoting the use of Compost: As per the rules, the Department of Fertilisers, Ministry of
Chemicals and Fertilizers should provide market development assistance on city compost and
ensure promotion of co‐marketing of compost with chemical fertilisers in the ratio of 3-4 bags is
to 6-7 bags by the fertiliser companies to the extent compost is made available for marketing to
the companies. Also, the Ministry of Agriculture should provide flexibility in Fertiliser Control
Order for manufacturing and sale of compost, propagating use of compost on farm land, set up
laboratories to test quality of compost produced by local authorities or their authorised agencies.
Important rules:
- Applicability of Rules: Rule 2
- Rule 3(46) defines solid waste.
- Rule 4 talks about the duties of generators.
- Rule 15
- Rule 17
- Rule 22

HAZARDOUS WASTE MANAGEMENT AND TRANSBOUNDARY RULES, 2016

- S. 3(17) defines “hazardous waste” means any waste which by reason of characteristics such as
physical, chemical, biological, reactive, toxic, flammable, explosive or corrosive, causes danger
or is likely to cause danger to health or environment, whether alone or in contact with other
wastes or substances, and shall include - (i) waste specified under column (3) of Schedule I; (ii)
waste having equal to or more than the concentration limits specified for the constituents in class
A and class B of Schedule II or any of the characteristics as specified in class C of Schedule II;
and (iii) wastes specified in Part A of Schedule III in respect of import or export of such wastes or
the wastes not specified in Part A but exhibit hazardous characteristics specified in Part C of
Schedule III. Essentially, it is any waste that is characteristically dangerous or hazardous. This
waste needs to be handled in a very precautionary manner, thereby avoiding environmental
degradation.
- These Rules emphasize upon three Rs – Reduce, Recycle and Reuse.
- One of the essential conditions of granting a license: Having an upgraded or an adequate facility
for the treatment of waste.
- These Rules also mention the requirement of facilities to be set up for the treatment of waste and
regular monitoring must be carried out.
- Labelling of the Hazardous Waste Substance: In case of hazardous waste, chemicals are
considered hazardous waste. Therefore, labeling of the same is a must.
- They were earlier known as Hazardous Waste Management and Handling Rules, 1989. These
rules were not in accordance with the Basel Convention. These rules were therefore required to be
modified.
- The 2016 Rules have 24 rules and 6 schedules.

Types of Hazardous Waste:

- Industrial Waste
- Expired products

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- Pesticides
- Discarded Products
- E-Waste
- Used Oil or Lead Batteries
- Residue of Ship Break

The Hazardous Waste has been classified into 3 classes in Schedule II on the basis of the magnitude of
the harm that it will cause.

Rule 4 provides for the control procedure. It says as follows:

Responsibilities of the occupier for management of hazardous and other wastes.-

(1) For the management of hazardous and other wastes, an occupier shall follow the following steps,
namely:- (a) prevention; (b) minimization; (c) reuse, (d) recycling; (e) recovery, utilisation including co-
processing; (f) safe disposal.
(2) The occupier shall be responsible for safe and environmentally sound management of hazardous and
other wastes. (3) The hazardous and other wastes generated in the establishment of an occupier shall be
sent or sold to an authorised actual user or shall be disposed of in an authorised disposal facility.
(3) The hazardous and other wastes generated in the establishment of an occupier shall be sent or sold to
an authorised actual user or shall be disposed of in an authorised disposal facility.
(4) The hazardous and other wastes shall be transported from an occupier’s establishment to an
authorised actual user or to an authorised disposal facility in accordance with the provisions of these
rules.
(5) The occupier who intends to get its hazardous and other wastes treated and disposed of by the
operator of a treatment, storage and disposal facility shall give to the operator of that facility, such
specific information as may be needed for safe storage and disposal.
(6) The occupier shall take all the steps while managing hazardous and other wastes to:
(a) contain contaminants and prevent accidents and limit their consequences on human beings and the
environment; and
(b) provide persons working in the site with appropriate training, equipment and the information
necessary to ensure their safety

Rule 5 says Responsibilities of State Government for environmentally sound management of hazardous
and other wastes. – (1) Department of Industry in the State or any other government agency authorised in
this regard by the State Government, to ensure earmarking or allocation of industrial space or shed for
recycling, pre-processing and other utilisation of hazardous or other waste in the existing and upcoming
industrial park, estate and industrial clusters;
(2) Department of Labour in the State or any other government agency authorised in this regard by the
State Government shall,- (a) ensure recognition and registration of workers involved in recycling,
preprocessing and other utilisation activities; (b) assist formation of groups of such workers to facilitate
setting up such facilities; (c) undertake industrial skill development activities for the workers involved in
recycling, pre-processing and other utilisation; (d) undertake annual monitoring and to ensure safety and
health of workers involved in recycling, pre-processing and other utilisation.

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(3) Every State Government may prepare integrated plan for effective implementation of these provisions
and to submit annual report to the Ministry of Environment, Forest and Climate Change, in the Central
Government.

Research Foundation for Science v Union of India (2014):

The Court declared that hazardous waste oil has been imported under the garb of recycling. This deals
with the dumping of hazardous waste in the coastline of India. The Judiciary has been of the opinion that
Basel Convention must necessarily be strictly adhered to.

BIO-MEDICAL WASTE RULES, 2016

Rule 3(f): "bio-medical waste" means any waste, which is generated during the diagnosis, treatment or
immunisation of human beings or animals or research activities pertaining thereto or in the production or
testing of biological or in health camps, including the categories mentioned in Schedule I appended to
these rules.

Schedule I provides the various types of cleaning bio-medical waste:

- Incineration
- Deep Burial
- Local Auto-cleaning
- Microwaving
- Mutilation
- Disposal in Landfills
- Disinfection
- Chemical Treatment
- Hydro-cleaning
- Plasma pyrolysis

Rule 4 is also very important.

E-WASTE MANAGEMENT RULES, 2016

Section 3(r) 'e-waste' means electrical and electronic equipment, whole or in part discarded as waste by
the consumer or bulk consumer as well as rejects from manufacturing, refurbishment and repair
processes. Section 3(p) says that 'electrical and electronic equipment' means equipment which are
dependent on electric current or electro-magnetic field in order to become functional. India’s electronic
industry is considered as world’s fastest industry. These rules were introduced in the year 2016. Prior to
2016, there were two rules that minutely dealt with E-Waste:

- Hazardous Waste Management Rules

- E-Waste Management and Handling Rules, 2011

Application: These rules shall apply to every manufacturer, producer, consumer, bulk consumer,
collection centres, dealers, e-retailer, refurbisher, dismantler and recycler involved in manufacture, sale,
transfer, purchase, collection, storage and processing of e-waste or electrical and electronic equipment
listed in Schedule I. Not applicable to MSMEs.

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Section 2(t) refers to ‘Extended Producer Responsibility’ means responsibility of any producer of
electrical or electronic equipment, for channelisation of e-waste to ensure environmentally sound
management of such waste. Extended Producer Responsibility may comprise of implementing take back
system or setting up of collection centres or both and having agreed arrangements with authorised
dismantler or recycler either individually or collectively through a Producer Responsibility Organisation
recognised by producer or producers in their Extended Producer Responsibility – Authorisation.

NUCLEAR WASTE
Is Nuclear Waste pertinent in India?

- Atomic Energy Act, 1962 which was amended in the year 2015.
- Environment Protection Act, 1986.
- Civil Liability for Nuclear Damage Act, 2010.
- Atomic Energy Radiation Protection Rules, 2004.
- Atomic Energy Mines Minerals Prescribed Substance Rules, 1984
- Atomic Energy Safe Disposal of Radioactive Waste Rules, 1987
- Atomic Energy Factories Rules, 1996

S. 17 of Atomic Energy Act – Very important.

Graveyard of India – Jadugoda, Jharkhand.

RADIOACTIVE WASTE
Radioactive waste is generated during various operations of nuclear fuel cycle. Mining, nuclear power
generation, and various processes in industry, defence, medicine and scientific research produce
byproducts that include radioactive wastes.Radioactive waste can be in gas, liquid or solid form, and its
level of radioactivity can vary. The waste can remain radioactive for a few hours or several months or
even hundreds of thousands of years. Depending on the level and nature of radioactivity, radioactive
wastes can be classified as exempt waste, Low & Intermediate level waste and High Level Waste.

Low and Intermediate level waste constitute three types – Liquid, Solid and Gaseous Waste.

- Liquid wasteshave generally high volumes and low levels of radioactivity. They are further
classified as short lived and long lived wastes.Low level nuclear waste usually includes material
used to handle the highly radioactive parts of nuclear reactors (i.e. cooling water pipes and
radiation suits) and waste from medical procedures involving radioactive treatments or x-rays.
- Solid waste: Significant quantum of solid LIL wastes of diverse nature gets generated in different
nuclear installations. They are essentially of two types:
i. Primary wastes- comprising of radioactively contaminated equipment (metallic hardware) spent
radiation sources etc.
ii. Secondary wastes- resulting from different operational activities, protective rubber and plastic
wears, cellulosic and fibrous material, organic ion exchange resins filter cartridges and others.
- Gaseous waste: The air in the working area and the environment is free from radioactive
contamination. The off gas ventilation system in nuclear power plants play an important role in
ensuring clean air.

High level radioactive liquid waste (HLW) containing most (~99%) of the radioactivity in the entire fuel
cycle is produced during reprocessing of spent fuel. Issue of the long lived radioactive waste has been the

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focal point of debate for the success of nuclear power. Planning for management of HL waste thus takes
into account the need for their effective isolation from the biosphere and their continuous surveillance for
extended periods of time spanning several generations. To meet this objective in the long term, waste
isolation systems comprising multiple barriers are employed so as to prevent the movement of
radionuclides back to the human environment.
In consideration to the primary objective of protecting human health, environment and future generations,
the overall philosophy for safe management of radioactive wastes in India, is based on the concept
ofDelay and Delay, Dilute & Disperse, Concentrate and Contain.Effective management involves
segregation, characterization, handling, treatment, conditioning and monitoring prior to final
disposal.Proper disposalis essential to ensure protection of the health and safety of the public and quality
of the environment including air, soil, and water supplies.Lawyers, scientists and technocrats specialising
in this field should be the members of such a committee. The new code should emphasise resource
recovery systems and resource conservation aspects of the problem.

SUGGESTIONS BY THE EXPERTS FOR WASTE MANAGEMENT

Laws relating to hazardous waste and toxic substances must be consolidated and codified into a single
comprehensive code embracing all spectra. Piecemeal legislation always results in inefficiencies,
ineffectiveness of the law and multiplicity of authorities. To prepare a unified comprehensive code, a
national committee should be established to review the whole spectrum of hazardous waste and toxic
substances and to introduce newer technologies and approaches to the problem. The definition of the term
hazardous waste provided by Hazardous Wastes (Management and Handling) Rules, 1989 is superfluous.
It provides and means that the category of waste provided in the Schedule without having the term. The
Rules are provided in the Schedule which can be revised in due course of time. It shows the uncertainty in
the minds of the drafters of the Rules. Therefore, an appropriate definition is required. Domestic Sewage
and Garbage have not been dealt with anywhere. New unified law must be introduced that deals with the
collection and disposal of such waste. A proper notice should be given to the areas where industries are
intended to be installed. Such public notice should have the description of the industry. There must be
environmental Courts established at regional level.

NATIONAL GREEN TRIBUNAL [NGT]

In the cases of M.C. Mehta Vs. Union of India (AIR 1987 SC 965), Indian Council for Enviro-Legal
Action Vs. Union of India (1996 3 SCC 212) and A.P. Pollution Control Board Vs. Professor M.V.
Nayudu (1992 2 SCC 718), the Indian Supreme Court (orders of 1986, 1996, 2001) observed that as
environmental cases frequently involve assessment of scientific data, setting up environmental courts on a
regional basis with a legally qualified judge and two experts [helpful in dealing with the technical issues]
would help speed the judicial process. The Law Commission of India (186th Report  2003) recommended
the establishment of environmental courts in India. This recommendation was based on a review of the
technical and scientific problems that came before the courts and the inadequacy of judicial knowledge on
the scientific and technical aspects of environmental issues.

Before the National Green Tribunal Act, 2010 was passed, there were two Acts that were in existence.

- National Environment Tribunal Act, 1995

- National Environment Appellate Authority Act, 1997.

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These Acts were in existence but there were no hearings that were entertained under this Act. This could
not provide solutions to the environmental issues that the country was facing. The NGT Act was passed
on October 18, 2010. It was passed to deal with exclusively issues relating to the environment.

Aim of NGT:An Act to provide for the establishment of a National Green Tribunal for the effective and
expeditious disposal of cases relating to environmental protection and conservation of forests and other
natural resources including enforcement of any legal right relating to environment and giving relief and
compensation for damages to persons and property and for matters connected therewith or incidental
thereto.

The need for NGT was felt since India has been a part of various International conventions like the UN
Conference on Environment. India is a party to the decisions taken at the United Nations Conference on
the Human Environment held at Stockholm in June, 1972, in which India participated, calling upon the
States to take appropriate steps for the protection and improvement of the human environment;

AND WHEREAS decisions were taken at the United Nations Conference on Environment and
Development held at Rio de Janeiro in June, 1992, in which India participated, calling upon the States to
provide effective access to judicial and administrative proceedings, including redress and remedy and to
develop national laws regarding liability and compensation for the victims of pollution and other
environmental damage. It becomes necessary to provide relief to the people pertaining to environmental
issues.

The NGT was created with an objective and aim to check industrial pollution and also to allow every
person to approach the Tribunal to claim civil damages for non-implementation of environmental law. By
its establishment, the burden on the courts was also reduced, since environment related issues were dealt
solely by the NGT. After its enactment, India became the third country to have a special designated court
for environmental issues.

The Supreme Court in the Bhopal Gas Peedith Mahila Udyog v Union of India, had said: “Keeping in
view the provisions and scheme of the NGT Act, particularly Sections 14, 29, 30 and 38(5), it can safely
be concluded that the environmental issues and matters covered under Schedule I of the Act should be
instituted and litigated before the National Green Tribunal (for short NGT). Thus, in unambiguous terms,
we direct that all the matters instituted after coming into force of the NGT Act and which are covered
under the provisions of the NGT Act and/or in Schedule I to the NGT Act shall stand transferred and can
be instituted only before the NGT. This will help in rendering expeditious and specialized justice in the
field of environment to all concerned.”

STRUCTURE OF NGT ACT

- Comprises of 38 sections, divided into 5 chapters. It has three schedules. Schedule I consists of 7
Acts, thereby directing the applicability of NGT Act to these Acts. These are:
1. The Water (Prevention and Control of Pollution) Act, 1974;
2. The Water (Prevention and Control of Pollution) Cess Act, 1977;
3. The Forest (Conservation) Act, 1980;
4. The Air (Prevention and Control of Pollution) Act, 1981;
5. The Environment (Protection) Act, 1986;
6. The Public Liability Insurance Act, 1991;
7. The Biological Diversity Act, 2002

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New Delhi is the Principal Bench of NGT. It is present in Bhopal (Central Zone), Pune (Western Zone),
Kolkata (East Zone) and Chennai (South Zone). There is a judicial member and expert in the field of
environmental law, adjudicating these matters. There are Circuit Benches as well which are present at
Shimla, Shillong, Jodhpur and Kochi. This was done to reduce the constraints of accessibility.

IMPORTANT SECTIONS OF THE ACT

Constitution of the Tribunal and Qualifications of the Members:

Qualifications for appointment of Chairperson, Judicial Member and Expert Member – Section 5 of the
Act.

Aperson shall not be qualified for appointment as the Chairperson or Judicial Member of the Tribunal
unless he is, or has been, a Judge of the Supreme Court of India or Chief Justice of a High Court:
Provided that a person who is or has been a Judge of the High Court shall also be qualified to be
appointed as a Judicial Member.

2.      A person shall not be qualified for appointment as an Expert Member, unless he,-

a.      has a degree in Master of Science (in physical sciences or life sciences) with a Doctorate degree or
Master of Engineering or Master of Technology and has an experience of fifteen years in the relevant
field including five years practical experience in the field of environment and forests (including pollution
control, hazardous substance management, environment impact assessment, climate change
management, biological diversity management and forest conservation) in a reputed National level
institution; or

b.     has administrative experience of fifteen years including experience of five years in dealing with
environmental matters in the Central or a State Government or in a reputed National or State level
institution.

1.     -

2.     -

3.      The Chairperson, Judicial Member and Expert Member of the Tribunal shall not hold any other
office during their tenure as such.

4.      The Chairperson and other Judicial and Expert Members shall not, for a period of two years from
the date on which they cease to hold office, accept any employment in, or connected with the management
or administration of, any person who has been a party to a proceeding before the Tribunal under this
Act: Provided that nothing contained in this section shall apply to any employment under the Central
Government or a State Government or local authority or in any statutory authority or any corporation
established by or under any Central, State or Provincial Act or a Government company as defined in
section 617 of the Companies Act, 1956.

Section 6 says, “The Chairperson shall be appointed by the Central Government in consultation with the
Chief Justice of India. The Judicial Members and Expert Members of the Tribunal shall be appointed on
the recommendations of such Selection Committee and in such manner as may be prescribed.” Further
the number of such judicial expert members shall not be less than ten, which is extendable to a maximum
of 20 full time members as the Central Government may notify. The Chairperson may, if necessary, invite

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one or more person having specialized knowledge or expertise to a particular case before the Tribunal for
assistance.

5 years – Term of Office (Section 7): The Chairperson, Judicial Member and Expert Member of the
Tribunal shall hold office as such for a term of five years from the date on which they enter upon their
office, but shall not be eligible for re-appointment:

Provided that in case a person, who is or has been a Judge of the Supreme Court, has been appointed as
Chairperson or Judicial Member of the Tribunal, he shall not hold office after he has attained the age of
seventy years:

Provided further that in case a person, who is or has been the Chief Justice of a High Court, has been
appointed as Chairperson or Judicial Member of the Tribunal, he shall not hold office after he has
attained the age of sixty-seven years: Provided also that in case a person, who is or has been a Judge of a
High Court, has been appointed as Judicial Member of the Tribunal, he shall not hold office after he has
attained the age of sixty-seven years:

Provided also that no Expert Member shall hold office after he has attained the age of sixty-five years.

Jurisdiction of NGT:

Section 14 says that The National Green Tribunal has the power to hear all civil cases relating to
environmental issues and questions that are linked to the implementation of laws listed in Schedule I of
the National Green Tribunal Act. “The Tribunal shall have the jurisdiction over all civil cases where a
substantial question relating to environment (including enforcement of any legal right relating to
environment), is involved and such question arises out of the implementation of the enactments specified
in Schedule I.”

"substantial question relating to environment" shall include an instance where:

                      i.         there is a direct violation of a specific statutory environmental obligation by a
person by which,-
A.     the community at large other than an individual or group of individuals is affected or likely to be
affected by the environmental consequences; or
B.     the gravity of damage to the environment or property is substantial; or
C.     the damage to public health is broadly measurable.
                     ii.         the environmental consequences relate to a specific activity or a pointsource
of pollution;
Central India Ayush Drugs Manufacturers Association v State of Maharashtra:
The Court held that, ‘The definition is wide and inclusive. It stipulates that if there is direct violation of
specific statutory environmental obligation or then environmental consequences relating to a specific
activity or a point source of pollution, the same are covered in the sweep of this inclusive definition.’
Certain Acts dealing with the Environment have not been included under the NGT Act – Wildlife
Protection Act, 1972 and Indian Forests Act, 1997. Further, any of the laws that are enacted at the state
level dealing with forests and environment is not covered under the ambit of NGT. These issues are
addressed by the High Courts and the Supreme Court. This could be therefore looked and understood as a
lacunae of the NGT Act.

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STRENGTHS OF NGT
- Over the years NGT has emerged as a critical player in environmental regulation, passing strict
orders on issues ranging from pollution to deforestation to waste management.
- NGT offers a path for the evolution of environmental jurisprudence by setting up an alternative
dispute resolution mechanism.
- It helps reduce the burden of litigation in the higher courts on environmental matters.
- NGT is less formal, less expensive, and a faster way of resolving environment related disputes.
- It plays a crucial role in curbing environment-damaging activities.
- The Chairperson and members are not eligible for reappointment, hence they are likely to deliver
judgements independently, without succumbing to pressure from any quarter.
- The NGT has been instrumental in ensuring that the Environment Impact Assessment process is
strictly observed.

Compensation and Relief under the Act – Section 15 + Section 17 + Schedule I and II.

Relief and Compensation:

Section 15 of the Act says thatRelief, compensation and restitution. –

1.      The Tribunal may, by an order, provide,-

a.      relief and compensation to the victims of pollution and other environmental damage arising under
the enactments specified in the Schedule I (including accident occurring while handling any hazardous
substance);

b.     for restitution of property damaged;

c.      for restitution of the environment for such area or areas, as the Tribunal may think fit.

1.     

2.      The relief and compensation and restitution of property and environment referred to in clauses (a),
(b) and (c) of sub-section (1) shall be in addition to the relief paid or payable under the Public Liability
Insurance Act, 1991.

3.      No application for grant of any compensation or relief or restitution of property or environment
under this section shall be entertained by the Tribunal unless it is made within a period of five years from
the date on which the cause for such compensation or relief first arose:

Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from
filing the application within the said period, allow it to be filed within a further period not exceeding sixty
days.

1.     

2.     

3.     

4.      The Tribunal may, having regard to the damage to public health, property and environment, divide
the compensation or relief payable under separate heads specified in Schedule II so as to provide

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compensation or relief to the claimants and for restitution of the damaged property or environment, as it
may think fit.

5.      Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the
application filed to, or, as the case may be, compensation or relief received from, any other court or
authority.

Section 17 provides for the Liability to pay relief or compensation in certain cases. –

1.      Where death of, or injury to, any person (other than a workman) or damage to any property or
environment has resulted from an accident or the adverse impact of an activity or operation or process,
under any enactment specified in Schedule I, the person responsible shall be liable to pay such relief or
compensation for such death, injury or damage, under all or any of the heads specified in Schedule II, as
may be determined by the Tribunal.

2.      If the death, injury or damage caused by an accident or the adverse impact of an activity or
operation or process under any enactment specified in Schedule I cannot beat tribute to any single
activity or operation or process but is the combined or resultant effect of several such activities,
operations and processes, the Tribunal may, apportion the liability for relief or compensation amongst
those responsible for such activities, operations and processes on an equitable basis.

3.      The Tribunal shall, in case of an accident, apply the principle of no fault.

Schedule I provides for the Acts that the NGT has under its ambit. It provides that the Tribunal will
provide relief and compensation to the victims of pollution and from other environmental damages arising
under the enactments specified under Schedule I. It also provides for accidents that occur while handling
hazardous substances.

Schedule II [See Sections 15(4) and 17(1)] Heads under Which Compensation or Relief for Damage
May Be Claimed

a.      Death;

b.     Permanent, temporary, total or partial disability or other injury or sickness;

c.      Loss of wages due to total or partial disability or permanent or temporary disability;

d.     Medical expenses incurred for treatment of injuries or sickness;

e.      Damages to private property;

f.      Expenses incurred by the Government or any local authority in providing relief, aid and
rehabilitation to the affected persons;

g.     Expenses incurred by the Government for any administrative or legal action or to cope with any
harm or damage, including compensation for environmental degradation and restoration of the quality of
environment;

h.      Loss to the Government or local authority arising out of, or connected with, the activity causing any
damage;

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i.       Claims on account of any harm, damage or destruction to the fauna including milch and draught
animals and aquatic fauna;

j.       Claims on account of any harm, damage or destruction to flora including aquatic flora, crops,
vegetables, trees and orchards;

k.      Claims including cost of restoration on account of any harm or damage to environment including
pollution of soil, air, water, land and eco-systems;

l.       Loss and destruction of any property other than private property;

m.    Loss of business or employment or both;

n.      Any other claim arising out of, or connected with, any activity of handling of hazardous substance.

Appeals to the Tribunal:

Section 18 is also important. It talks about the application or appeal to the Tribunal:
Each application under sections 14 and 15 or an appeal under section 16 shall, be made to the Tribunal
in such form, contain such particulars, and, be accompanied by such documents and such fees as may be
prescribed.
2.      Without prejudice to the provisions contained in section 16, an application for grant of relief or
compensation or settlement of dispute may be made to the Tribunal by-
a.      the person, who has sustained the injury; or
b.     the owner of the property to which the damage has been caused; or
c.      where death has resulted from the environmental damage, by all or any of the legal representatives
of the deceased; or
d.     any agent duly authorised by such person or owner of such property or all or any of the legal
representatives of the deceased, as the case may be; or
e.      any person aggrieved, including any representative body or organisation; or
f.      the Central Government or a State Government or a Union territory Administration or the Central
Pollution Control Board or a State Pollution Control Board or a Pollution Control Committee or a local
authority, or any environmental authority constituted or established under the Environment (Protection)
Act, 1986 or any other law for the time being in force:
Provided that where all the legal representatives of the deceased have not joined in any such application
for compensation or relief or settlement of dispute, the application shall be made on behalf of, or, for the
benefit of all the legal representatives of the deceased and the legal representatives who have not so
joined shall be impleaded as respondents to the application:
Provided further that the person, the owner, the legal representative, agent, representative body or
organisation shall not be entitled to make an application for grant of relief or compensation or settlement
of dispute if such person, the owner, the legal representative, agent, representative body or organisation
have preferred an appeal under section 16.
1.     
2.     
3.      The application, or as the case may be, the appeal filed before the Tribunal under this Act shall be
dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the

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application, or, as the case may be, the appeal, finally within six months from the date of filing of the
application, or as the case may be, the appeal, after providing the parties concerned an opportunity to be
heard.
Furthermore, Section 19 also needs to be looked into, in terms of the functioning of the NGT.
1. The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908
but shall be guided by the principles of natural justice.
2.         Subject to the provisions of this Act, the Tribunal shall have power to regulate its own
procedure.
3.         The Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence
Act, 1872.
4.      The Tribunal shall have, for the purposes of discharging its functions under this Act, the same
powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in
respect of the following matters, namely:-
a.      summoning and enforcing the attendance of any person and examining him on oath;
b.     requiring the discovery and production of documents;
c.      receiving evidence on affidavits;
d.     subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning
any public record or document or copy of such record or document from any office;
e.      issuing commissions for the examination of witnesses or documents;
f.      reviewing its decision;
g.     dismissing an application for default or deciding it ex parte;
h.      setting aside any order of dismissal of any application for default or any order passed by it ex
parte;
i.       pass an interim order (including granting an injunction or stay) after providing the parties
concerned an opportunity to be heard, on any application made or appeal filed under this Act;
j.       pass an order requiring any person to cease and desist from committing or causing any violation
of any enactment specified in Schedule I;
k.      any other matter which may be prescribed.
1.     
2.     
3.     
4.     
5.      All proceedings before the Tribunal shall be deemed to be the judicial proceedings within the
meaning of sections 193, 219 and 228 for the purposes of section 196 of the Indian Penal Code and the
Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the
Code of Criminal Procedure, 1973.
Section 20 provides for the necessary principles that any NGT must follow. It says that:
The Tribunal shall, while passing any order or decision or award, apply the principles of sustainable
development, the precautionary principle and the polluter pays principle.
Please note: Under precautionary principle, the exception of lack of technical know-how cannot be taken
into consideration.

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Section 22provides for the Appeal to be made at the Supreme Court. It says that:
Any person aggrieved by any award, decision or order of the Tribunal, may, file an appeal to the
Supreme Court, within ninety days from the date of communication of the award, decision or order of the
Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil
Procedure, 1908. Provided that the Supreme Court may entertain any appeal after the expiry of ninety
days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal.

Section 26provides for the penalty to be imposed on the wrongdoers. It says that:
1. Whoever, fails to comply with any order or award or decision of the Tribunal under this Act, he shall
be punishable with imprisonment for a term which may extend to three years, or with fine which may
extend to ten crore rupees, or with both and in case the failure or contravention continues, with
additional fine which may extend to twenty-five thousand rupees for every day during which such failure
or contravention continues after conviction for the first such failure or contravention:

Provided that in case a company fails to comply with any order or award or a decision of the Tribunal
under this Act, such company shall be punishable with fine which may extend to twenty-five crore rupees,
and in case the failure or contravention continues, with additional fine which may extend to one lakh
rupees for every day during which such failure or contravention continues after conviction for the first
such failure or contravention.

2.      Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence under
this Act shall be deemed to be non-cognizable within the meaning of the said Code.

Section 29 provides for the Bar of jurisdiction. –

1.      With effect from the date of establishment of the Tribunal under this Act, no civil court shall have
jurisdiction to entertain any appeal in respect of any matter, which the Tribunal is empowered to
determine under its appellate jurisdiction.

2.      No civil court shall have jurisdiction to settle dispute or entertain any question relating to any
claim for granting any relief or compensation or restitution of property damaged or environment
damaged which may be adjudicated upon by the Tribunal, and no injunction in respect of any action
taken or to be taken by or before the Tribunal in respect of the settlement of such dispute or any such
claim for granting any relief or compensation or restitution of property damaged or environment
damaged shall be granted by the civil court.

There is original jurisdiction and appellate jurisdiction that the NGT has. Section 16 provides for the
appellate jurisdiction of the NGT.

Any person aggrieved by,-

a.      an order or decision, made, on or after the commencement of the National Green Tribunal Act,
2010, by the appellate authority under section 28 of the Water (Prevention and Control of Pollution) Act,
1974;

b.     an order passed, on or after the commencement of the National Green Tribunal Act, 2010, by the
State Government under section 29 of the Water (Prevention and Control of Pollution) Act, 1974;

c.      directions issued, on or after the commencement of the National Green Tribunal Act, 2010, by a
Board, under section 33A of the Water (Prevention and Control of Pollution) Act, 1974;

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d.     an order or decision made, on or after the commencement of the National Green Tribunal Act,
2010, by the appellate authority under section 13 of the Water (Prevention and Control of Pollution)
Cess Act, 1977;

e.      an order or decision made, on or after the commencement of the National Green Tribunal Act,
2010, by the State Government or other authority under section 2 of the Forest (Conservation) Act, 1980;

f.      an order or decision, made, on or after the commencement of the National Green Tribunal Act,
2010, by the Appellate Authority under section 31 of the Air (Prevention and Control of Pollution) Act,
1981;

g.     any direction issued, on or after the commencement of the National Green Tribunal Act, 2010,
under section 5 of the Environment (Protection) Act, 1986;

h.      an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting
environmental clearance in the area in which any industries, operations or processes or class of
industries, operations and processes shall not be carried out or shall be carried out subject to certain
safeguards under the Environment (Protection) Act, 1986;

i.       an order made, on or after the commencement of the National Green Tribunal Act, 2010, refusing
to grant environmental clearance for carrying out any activity or operation or process under the
Environment (Protection) Act, 1986;

j.       any determination of benefit sharing or order made, on or after the commencement of the National
Green Tribunal Act, 2010, by the National Biodiversity Authority or a State Biodiversity Board under the
provisions of the Biological Diversity Act, 2002, may, within a period of thirty days from the date on
which the order or decision or direction or determination is communicated to him, prefer an appeal to
the Tribunal:

Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from
filing the appeal within the said period, allow it to be filed under this section within a further period not
exceeding sixty days.

There is a mention of the Forest Act under sub-clause (e).

Limitation period under the NGT:

Section 14 says that, “The Tribunal shall have the jurisdiction over all civil cases where a substantial
question relating to environment (including enforcement of any legal right relating to environment), is
involved and such question arises out of the implementation of the enactments specified in Schedule I.

2.      The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and
settle such disputes and pass order thereon.

3.      No application for adjudication of dispute under this section shall be entertained by the Tribunal
unless it is made within a period of six months from the date on which the cause of action for such dispute
first arose:

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Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from
filing the application within the said period, allow it to be filed within a further period not exceeding sixty
days.”

Further, Section 15(3) says that, “No application for grant of any compensation or relief or restitution of
property or environment under this section shall be entertained by the Tribunal unless it is made within a
period of five years from the date on which the cause for such compensation or relief first arose:”

Schedule II must also be considered.

Section 31 deems The Chairperson, the Judicial and Expert Members, officers and other employees of the
Tribunal as ‘public servants’ within S. 21 of IPC.

Section 34 provides the Central Government with the power to amend Schedule I. It says that:
1.      The Central Government may, by notification, amend the Schedule I by including therein any other
Act, enacted by Parliament having regard to the objective of environmental protection and conservation
of natural resources, or omitting there from any Act already specified therein and on the date of
publication of such notification, such Act shall be deemed to be included in or, as the case may be,
omitted from the Schedule I.

2.      A copy of every notification proposed to be issued under sub-section (1), shall be laid in draft
before each House of Parliament, while it is in session, for a total period of thirty days which may be
comprised in one session or in two or more successive sessions, and if, before the expiry of the session
immediately following the session or the successive sessions aforesaid, both Houses agree in
disapproving the issue of the notification or both Houses agree in making any modification in the
notification, the notification shall not be issued or, as the case may be, shall be issued only in such
modified form as may be agreed upon by both the Houses.

Section 35 provides the Central Government with the power to make Rules. Section 38 provides for the
repeal provisions.

CHALLENGES FACED BY NGT

- Two important acts - Wildlife (Protection) Act, 1972 and Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act, 2006 have been kept out of NGT’s
jurisdiction. This restricts the jurisdiction area of NGT and at times hampers its functioning as
crucial forest rights issue is linked directly to environment.
- The NGT decisions are being challenged in various High Courts under Article 226 (power of
High Courts to issue certain writs) with many asserting the superiority of a High Court over the
NGT, claiming ‘High Court is a constitutional body while NGT is a statutory body’.” This is one
of the weaknesses of the Act as there is lack of clarity about what kind of decisions can be
challenged; even though according to the NGT Act, its decision can be challenged before the
Supreme Court.
- Decisions of NGT have also been criticised and challenged due to their repercussions on
economic growth and development.
- The absence of a formula based mechanism in determining the compensation has also brought
criticism to the tribunal.
- The decisions given by NGT are not fully complied by the stakeholders or the government.
Sometimes its decisions are pointed out not to be feasible to implement within a given timeframe.

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- The lack of human and financial resources has led to high pendency of cases - which undermines
NGT’s very objective of disposal of appeals within 6 months.
- The justice delivery mechanism is also hindered by limited number of regional benches.

NOTABLE DECISIONS OF NGT

- Almitra H Patel v Union of India(2012): The NGT imposed a complete prohibition on open
burning of wastes in public places and imposed a requisite fine for the same. This is considered to
be a landmark case dealing with the issue of solid waste management in India.
- POSCO, a Steel Company signed an MoU with the Odisha State government for the
establishment of a steel project. The NGT suspended the order and was considered as a radical
step in favour of the local communities and forests. (2012)
- In 2013 in Uttarakhand floods case, the Alaknanda Hydro Power Co. Ltd. was ordered to
compensate to the petitioner – here, the NGT directly relied on the principle of ‘polluter pays’.
- In 2015, the NGT ordered that all diesel vehicles over 10 years old will not be permitted to ply in
Delhi-NCR.
- In 2017, the Art of Living Festival on Yamuna Food Plain was declared violating the
environmental norms, the NGT panel imposed a penalty of Rs. 5 Crore.
- The NGT, in 2017, imposed an interim ban on plastic bags of less than 50-micron thickness in
Delhi because “they were causing animal deaths, clogging sewers and harming the
environment”.

FORESTS ACT
How would one define Forests? A forest is an area which has a collection of naturally occurring trees,
shrubs and herbs and has wildlife inhabiting in it. It is an area which is set aside for the production of
timber and other forest produce or maintained under woody vegetation for certain indirect benefits which
it provides, e.g., climatic or protective. Forests are considered as an ecological hotspot since various plant
communities predominantly of trees and other woody vegetation, usually with closed canopy, exist in
consonance. Forest in a legal sense is essentially an area of land proclaimed to be forest under forest law.

Laxman Iccaram v District Forest Officer defined Forest as, “An extensive tract of land covered with
trees and undergrowth, sometimes intermingled with pasture.” Forests are the natural lungs of the Earth,
since it purifies the air and let earth breathe peacefully. They also provide a number of things like timber,
wood, etc., which can be commercially used and has an industrial value. They are the richest resource of
our world.

Rural Litigation & Entitlement Kendra v. State of UP: Here, the Court stated that the trees in the forests
draw water from the bowls of the earth and release the same into the atmosphere by the process of
transpiration and the same is received back by way of rain as a result of condensation of clouds formed
out of the atmospheric moisture.  Forests thus help the cycle to be completed. Trees are responsible to
purify the air by releasing oxygen into the atmosphere through the process of photosynthesis. It has,
therefore, been rightly said that there is a balance on earth between air, water, soil and plant. Forests hold
up the mountains, cushion the rains and they discipline the rivers and control the floods. They sustain the
springs; they break the winds; they foster the bulks; they keep the air cool and clean. Forests also prevent
erosion by wind and water and preserve the carpet of the soil. 

To, serve the imperial cause, the forest act was enacted in 1865 and the forest department was established.
The main purpose of this act was to facilitate the acquisition of the Indian forest areas to supply timber for

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railways and to establish the claim of the state on the forest land. But, the Act did not have provisions to
protect the existing rights of the people living in the forests. Basically this Act was meant to regulate
forest exploitation, and the management and preservation of forest resources. Soon, it was found that the
provisions of the Act were not effective as it lacked deterrent punishment and gave only meager powers
to the forest officers. Therefore, after a great debate, a new forest act was passed in 1878 which claimed
absolute control and ownership rights of the state on forests. It also recognized the rights of the nomads of
the forests and of other nearby dwellers in various areas. Such rights included the rights of the villagers in
Himalayan region, tribals in Chhattisgarh, Santhals in Midnapore, Bhil in Rajasthan and other north-
eastern Areas.

Further, in the year 1927, Indian Forest Act was passed. It was passed to make forest laws more effective
and to improve the forest Act, 1875, a new comprehensive Forest Act was passed in 1927 which repealed
all previous laws. The Act consists of 86 sections divided into 13 chapters. The main objects of the Act
are:

1) – To consolidate the laws relating to forests.

2) – Regulation of and the transit of forest produce. And,

3) – To levy duty on timber and other forest produce.

The term “forest” has not been defined in the Act. But the Allahabad High Court in the case of Yashwant
Stone Works v State of Uttar Pradesh, while defining the term, adopted the definition provided by the
Food and Agriculture Organization(FAO) according to which forest means “all lands bearing vegetative
association demarcated by trees of any size, exploited or not, capable of producing wood or other food
productsof exerting an influence on the climate or on the water regime or providing shelter for livestock
and wildlife.”

Section 2 of the Forest Act, 1927 has defined certain terms like word “cattle” which include almost all
animals and the word like “forest produce” includes timber, charcoal, wood-oil etc., but the forest
produce does not include “ivory”, therefore, vehicle used in transporting ivory cannot be
confiscated. Forest produce is defined as:

“the following whether found in, or brought from, a forest or not, that is to say timber, charcoal,
caoutchouc, catechu, wood-oil, resin, natural varnish, bark, lac, mahua flowers, mahua seeds,4 [kuth]
and myrabolams, and (b) the following when found in, or brought from a forest, that is to say (i) trees
and leaves, flowers and fruits, and all other parts or produce not herein before mentioned, of trees, (ii)
plants not being trees (including grass, creepers, reeds and moss), and all parts or produce of such
plants, (iii) wild animals and skins, tusks, horns, bones, silk, cocoons, honey and wax, and all other parts
or produce of animals, and (iv) peat, surface soil, rock and minerals (including lime-stone, laterite,
mineral oils, and all products of mines or quaries);”

State of Kerala v PS Mathew: The Court stated that the forest produce does not include ivory.

Chapter II covers reserved forests. Sections 3 to 27 deal with the same. Chapter III, Section 28 concerns
village forests. Chapter IV, Sections 29-34 deal with protected forests, Sections 41-44 deal with timber
and other products in transit. Chapter IX deals with the levy of penalties for offensive activities under the

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Act (52-69). The Act empowers the state for requisition of any private forest for any purpose under the
Act which shall be deemed to be needed for public purpose under S. 4 of the Land Acquisition Act, 1984.

Reserved Forests:

Sections 3 to 27 deal with reserved forests. Section 3 says that:

“The State Government may constitute any forest-land or waste-land which is the property of
Government, or over which the Government has proprietary rights, or to the whole or any part of the
forest-produce of which the Government is entitled, a reserved forest in the manner hereinafter
provided.”

Section 4 provides for the notifications by the state government. It says that:
Notification by State Government.-(1) Whenever it has been decided to constitute any land a reserved
forest, the State Government shall issue a notification in the Official Gazette– (a) declaring that it has
been decided to constitute such land a reserved forest; (b) specifying, as nearly as possible, the situation
and limits of such land; and (c) appointing an officer (hereinafter called “the Forest Settlement-officer”)
to inquire into and determine the existence, nature and extent of any rights alleged to exist in favour of
any person in or over any land comprised within such limits or in or over any forest-produce, and to deal
with the same as provided in this Chapter. Explanation.–For the purpose of clause (b), it shall be
sufficient to describe the limits of the forest by roads, rivers, ridges or other well-known or readily
intelligible boundaries. (2) The officer appointed under clause (c) of sub-section (1) shall ordinarily be a
person not holding any forest-office except that of Forest Settlement-officer. (3) Nothing in this section
shall prevent the State Government from appointing any number of officers not exceeding three, not more
than one of whom shall be a person holding any forest-office except as aforesaid, to perform the duties of
a Forest Settlement-officer under this Act.

Any-land here refers to forest land or waste land. The notification mandatorily is to be published in the
Official Gazette. Once a forest has been declared as reserved forests, no person can claim rights over the
same.

Section 5 says that:

“Bar of accrual of forest-rights.–After the issue of a notification under section 4, no right shall be
acquired in or over the land comprised in such notification, except by succession or under a grant or
contract in writing made or entered into by or on behalf of the Government or some person in whom such
right was vested when the notification was issued; and no fresh clearings for cultivation or for any other
purpose shall be made in such land except in accordance with such rules as may be made by the State
Government in this behalf.”

Sections 6-8 talk about the powers and the obligations of the Forest Settlement Officer. Section 9 says
that:
“Extinction of rights.-Rights in respect of which no claim has been preferred under section 6, and of the
existence of which no knowledge has been acquired by inquiry under section 7, shall be extinguished,
unless before the notification under section 20 is published, the person claiming them satisfies the Forest
Settlement-officer that he had sufficient cause for not prefer-ring such claim within the period fixed under
section 6.”

Section 20 talks about the Notification declaring forest reserved. It says that:

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(1) When the following events have occurred, namely:– (a) the period fixed under section 6 for preferring
claims have elapsed and all claims (if any) made under that section or section 9 have been disposed of by
the Forest Settlement-officer; (b) if any such claims have been made, the period limited by section 17 for
appealing from the orders passed on such claims has elapsed, and all appeals (if any) presented within
such period have been disposed of by the appellate officer or Court; and (c) all lands (if any) to be
included in the proposed forest, which the Forest Settlement-officer has, under section 11, elected to
acquire under the Land Acquisition Act, 1894 (1 of 1894), have become vested in the Government under
section 16 of that Act, the State Government shall publish a notification in the Official Gazette, specifying
definitely, according to boundary-marks erected or otherwise, the limits of the forest which is to be
reserved, and declaring the same to be reserved from a date fixed by the notification. (2) From the date
so fixed such forest shall be deemed to be a reserved forest.

Section 11 talks about the power to acquire land over which right is claimed. It says that:
(1) In the case of a claim to a right in or over any land, other than a right of way or right of pasture, or a
right to forest produce or a water-course, the Forest Settlement-officer shall pass an order admitting or
rejecting the same in whole or in part. (2) If such claim is admitted in whole or in part, the Forest
Settlement-officer shall either (i) exclude such land- from the limits of the proposed forest; or (ii) come to
an agreement with the owner thereof for the surrender of his rights; or (iii) proceed to acquire such land
in the manner provided by the Land Acquisition Act, 1894 (1 of 1894). (3) For the purpose of so
acquiring such land (a) the Forest Settlement-officer shall be deemed to be a Collector proceeding under
the Land Acquisition Act, 1894 (1 of 1894); (b) the claimant shall be deemed to be a person interested
and appearing before him in pursuance of a notice given under section 9 of that Act; (c) the provisions of
the preceding sections of that Act shall be deemed to have been complied with; and (d) the Collector,
with the consent of the claimant, or the Court, with the consent of both parties, may award compensation
in land, or partly in land and partly in money.

These rights are applicable on all rights that an average person would have over a piece of land, excluding
easementary rights.

Section 12 talks about the Order on claims to rights of pasture or to forest-produce. It says that:
“In the case of a claim to rights of pasture or to forest-produce, the Forest Settlement-officer shall pass
an order admitting or rejecting the same in whole or in part.”

Section 28 defines a village forest. It says that:

“(1) The State Government may assign to any village-community the rights of Government to or over any
land which has been constituted a reserved forest, and may cancel such assignment. All forests so
assigned shall be called village-forests. (2) The State Government may make rules for regulating the
management of village forests, prescribing the conditions under which the community to which any such
assignment is made may be provided with timber or other forest-produce or pasture, and their duties for
the protection and improvement of such forest. (3) All the provisions of this Act relating to reserved
forests shall (so far as they are not inconsistent with the rules so made) apply to village-forests.”

Section 29defines a protected forest. It says that:

“(1) The State Government may, by notification in the Official Gazette, declare the provisions of this
Chapter applicable to any forest-land or waste-land which,, is not included in a reserved forest but which
is the property of Government, or over which the Government has proprietary rights, or to the whole or
any part of the forest produce of which the Government is entitled. (2) The forest-land and waste-lands

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comprised in any such notification shall be called a “protected forest”. (3) No such notification shall be
made unless the nature and extent of the rights of Government and of private persons in or over the
forest-land or waste-land comprised therein have been inquired into and recorded at a survey or
settlement, or in such other manner as the State Government thinks sufficient. Every such record shall be
presumed to be correct until the contrary is proved: Provided that, if, in the case of any forest-land or
waste land, the State Government thinks that such inquiry and record are necessary, but that they will
occupy such length of time as in the meantime to endanger the rights of Government, the State
Government may, pending such inquiry and record, declare such land to be a protected forest, but so as
not to abridge or affect any existing rights of individuals or communities.”

Section 30 provides for the power to issue notification reserving trees. It says that:
“The State Government may, by notification in the Official Gazette, (a) declare any trees or class of trees
in a protected forest to be reserved from a date fixed by, the notification; (b) declare that any portion of
such forest specified in the notification shall be closed for such term, rot exceeding thirty years, as the
State Government thinks fit, and that the rights of private persons, if any, over such portion shall be
suspended during such terms, provided that the remainder of such forest be sufficient, and in a locality
reasonably convenient, for the due exercise of the right suspended in the portion so closed; or (c)
prohibit, from a date fixed as aforesaid, the quarrying of stone, or the burning of lime or charcoal, or the
collection or subjection to any manufacturing process, or removal of, any forest-produce in any such
forest, and the breaking up or clearing for cultivation, for building, for herding cattle or for any other
purpose, of any land in any such forest.”

Section 32 provides for the power to make rules for protected forests. It says that:
“The State Government may make rules to regulate the following matters, namely: (a) the cutting,
sawing, conversion and removal of trees and timber, and the collection, manufacture and removal of
forest-produce, from protected forests; (b) the granting of licences to the inhabitants of towns and
villages in the vicinity of protected forests to take trees, timber or other forest-produce for their own use,
and the production and return of such licences by such persons; (c) the granting of licences to persons
felling or removing trees or timber or other forest-produce from such forests for the purposes of trade,
and the production d) the payments, if any, to be made by the persons mentioned in clauses (b) and (c) for
permission to cut such trees, or to collect and remove such timber or other forest-produce; (e) the other
payments, if any, to be made by them in respect of such trees, timber and produce, and the places where
such payment shall be made; (f) the examination of forest-produce passing out of such forests; (g) the
clearing and breaking up of land for cultivation or other purposes in such forests; (h) the protection from
fire of timber lying in such forests and of trees reserved under section 30; (i) the cutting of grass and
pasturing of cattle in such forests; (j) hunting, shooting, fishing, poisoning water and setting traps or
snares in such forests and the killing or catching of elephants in such forests in areas in which the
Elephants’ Preservation Act, 1879 (6 of 1879), is not in force; (k) the protection and management of any
portion of a forest closed under section 30; and (l) the exercise of rights referred to in section 29.”

Section 33 is also important. Section 41 provides for the power to make rules to regulate transit of forest
produce:
“(1) The control of all rivers and their banks as regards the floating of timber, as well as the control of
all timber and other forest-produce in transit by land or water, is vested in the State Government, and it
may make rules to regulate the transit of all timber and other forest-produce. (2) In particular and
without prejudice to the generality of the foregoing power such rules may (a) prescribe the routes by

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which alone timber or other forest-produce may be imported, exported or moved into, from or within
14[the State]; (b) prohibit the import or export or moving of such timber or other produce without a pass
from an officer duly authorised to issue the same, or otherwise than in accordance with the conditions of
such pass; (c) provide for the issue, production and return of such passes and for the payment of fees
therefor; (d) provide for the stoppage, reporting, examination and marking of timber or other forest-
produce in transit, in respect of which there is reason to believe that any money is payable to the
Government on account of the price thereof, or on account of any duty, fee, royalty or charge due
thereon, or, to which it is desirable for the purposes of this Act to affix a mark; (e) provide for the
establishment and regulation of depots to which such timber or other produce shall be taken by those in
charge of it for examination, or for the payment of such money, or in order that such marks may be
affixed to it, and the conditions under which such timber or other produce shall be brought to, stored at
and removed from such depots; (f) prohibit the closing up or obstructing of the channel or banks of any
river used for the transit of timber or other forest-produce, and the throwing of grass, brushwood,
branches or leaves into any such river or any act which may cause such river to be closed or obstructed;
(g) provide for the prevention or removal of any obstruction of the channel or banks of any such river,
and for recovering the cost of such prevention or removal from the person whose acts or negligence
necessitated the same; (h) prohibit absolutely or subject to conditions, within specified local limits, the
establishment of sawpits, the converting, cutting, burning, concealing or making of timber, the altering or
effacing of any marks on the same, or the possession or carrying of marking hammers or other
implements used for marking timber; (i) regulate the use of property marks for timber, and the
registration of such marks; prescribe the time for which such r6gistration’shall hold good; limit the
number of such marks that may be registered by any one person, and provide for the levy of fees for such
registration. (3) The State Government may direct that any rule made under this section 11 not apply to
any specified class of timber or other forest-produce or to any specified local area.”

Section 42 provides for the penalty for contravention of Section 41. It says that:
“(1) The State Government may by such rules prescribe as penalties for the contravention thereof
imprisonment for a term which may extend to six months, or fine which may extend to five hundred
rupees, or both. (2) Such rules may provide that penalties which are double of those mentioned in
subsection (1) may be inflicted in cases where the offence is committed after sunset and before sunrise, or
after preparation for resistance to lawful authority, or where the offender has been previously convicted
of a like offence.”

State of Tripura v Sudhir Ranjan Nath: Since S. 41 regulates the transportation of forest produce, it was
alleged that this was violative of Article 19 which provides for absolute freedom to trade. Now, the Court
held that the Forests Act has been primarily enacted to preserve, protect the forest wealth of the country
and collection of revenue is a regulatory measure to achieve this objective. Similarly, to regulate cutting,
removal, transport and possession of forest produce is in the interest of the state and its people. Therefore,
control of the movement of the forest produce is a right that is in consonance with the provisions of the
Constitution of India.

Sarup Singh and Company v State of Bihar: The Court held that there cannot be any movement or
transport of timber or other forest produce without the requisite transit permissions. Once timber is
brought from another State to the State of Blhar or it passes through a State, the Transit Rules would be
applicable. 

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Banwasi Sewa Ashram v State of UP: The state government declared an area as a reserved forest. The
plaintiffs in this case, wrote a letter about the rights of the tribal people which was getting harmed by such
a declaration of a forest being a reserved forest. This letter was treated as a writ petition by the Court.
These adivasis were using the forests and the forest produce for grazing and for the consumption of
fuelwood, for generations. This was a violation of their right to livelihood. The state had filed a case of
criminal trespass and encroachment against the tribal people. The state alleged that the forest land was
acquired to set up a thermal power station and provide cheaper electricity to the people. The Court held
that the land that has already been acquired will not be a part of a reserved forest. Certain guidelines were
issued for the protection of the rights and interests of the tribal people. The Court although decided in
favour of the state and was not able to get the land back and allocate it to the tribals.

Ishwar Chandra Gupta v State of UP:

PENALTIES UNDER THE FORESTS ACT

Sections 52 to 69 talk about the penalties and procedures. Section 52 says that:
“Seizure of property liable to confiscation: (1) When there is reason to believe that a forest-offence has
been committed in respect of any forest-produce, such produce together with all tools, boats, carts or
cattle used in committing any such offence, may be seized by any Forest-officer or Police-officer. (2)
Every officer seizing any property under this section shall place on such property a mark indicating that
the same has been so seized, and shall, as soon as may be, make a - report of such seizure to the
Magistrate having jurisdiction to try the offence on account which the seizure has been made: Provided
that, when the forest-produce with respect to which such offence is belie to have been committed is the
property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as
may be, a report of the circumstances to his official superior.”

Section 60 talks about the property when to vest in Government. It says that:
“When an order for the confiscation any property has been passed under section 55 or section 57, as the
case may be, and the period limited by section 59 for an appeal from such order has elapsed, and no such
an apppeal has been preferred, or when, on such an appeal being preferred, the Appellate C4 confirms
such order in respect of the whole or a portion of such property, such property or such portion thereof, as
the case may be, shall vest in the Government free from all encumbrances.”

Section 68 and 69 are also very important.

CHALLENGES TO THE FORESTS ACT, 1927

A deep investigation of the act reveals that the act never aimed to protect the vegetation cover of India but
was passed to-:

1)- Regulate the cutting of trees

2)- Earn revenue from the cutting of the trees and from the forest produce. Therefore, it was passed for
commercial purposes.

Moreover, it also deprived the nomads and the tribal people of their age old rights and privileges to use
the forests and forests produce. It mainly aimed at supplying raw material for forest based industries.
Forest was accepted as a significant factor in eco-balance and environmental preservation. It is necessary
to point out here that revenue oriented attitude towards the forest has continued even after independence.

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Therefore, this act of 1927 failed miserably to protect the forest from unscientific and unplanned
exploitation.

The Act of 1927 also denied common ownership or occupancy rights or property rights to the occupants
of land/tribal. These forest dwellers living there for generations were not given any right over the forest
land and forest produce. Rather Forests were declared to be the property of the government and in case of
disputes the Forest settlement officer has all the right to decide the claim.

FURTHER LEGISLATIONS
There are more acts that concern the protection of forests. They are:

- Forest Conservation Act, 1980;

- The Scheduled Tribe and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act,
2006

Now, before the Forest Conservation Act, 1980 was enacted, there were a few National Forest Policies
enacted by the Central Government. During the First Five Year Plan, the First Forest Policy of India was
declared. This was in 1952. With this policy, it was decided to raise steadily the area under forest to 100
million hectares. To increase or expand such area, the government had planned to promote plans and
strategies. These strategies were:
- To protect land from floods, soil erosion and unfavorable climatic conditions.
- To encourage the production of timber needed for industries.
- Use the timber for construction of railways and for defence purposes.
- To supply forest produce and products to consumers and to maximize revenue from the forests.

Another forest policy was introduced in the year 1988. This aimed at:
- maintaining environmental stability by preserving and restoring the ecological balance which was
disturbed by serious depletion of forest cover.
- Conserving the natural heritage of the country by preserving the remaining natural forests with
the vast variety of flora and fauna, which represents the remarkable biological diversity and
genetic resources of the country.
- Checking soil erosion and denudation in the catchment areas of rivers, lakes, reservoirs in the
interest of soil and water conservation, for mitigating floods and droughts and for the retardation
of siltation of reservoirs. Also checking the extension of sand dunes.
- Increasing substantially the forest/tree cover in the country through massive afforestation and
social forestry programmes, especially on all denuded, degraded and unproductive lands.
- Meeting the requirements of fuel wood, fodder, minor forest produce and small timber of the
rural and tribal population.
- Increasing the productivity of forests to meet essential national needs.
- Encouraging efficient utilization of forest produce and maximizing substitution of wood.
- Creating a massive people’s movement with the involvement of women, for achieving these
objectives and to minimize pressure on existing forests.

M/S Anupama Minerals v Union of India and Ors.:

The Court defined conservation of forests in this case and said that conservation means preservation and
protection of existing forests, and further re-afforestation.

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During the 42nd Amendment enacted in 1976, forests were transferred from state list to concurrent list,
which further led to the Central Government directly controlling the management of these forests. This
led to the enactment of the Forests Act, 1980 which promoted the protection and preservation of forests
due to widespread concern of large scale deforestation and the resulting ecological imbalance and
environmental degradation.
OBJECTIVE OF THE FORESTS CONSERVATION ACT, 1980
The objective of Forest (Conservation) Act, 1980, referred to as Act hereafter, is to regulate the
indiscriminate diversion of forest land for non-forest uses and to maintain a logical balance between the
developmental needs of the country and the conservation of natural heritage.Further, the guidelines have
been issued under the act from time to time to simplify the procedure, to cut down delays and to make the
act more user friendly. Prior to 1980, the rate of diversion of forest land for non-forestry purposes was
about 1.43 lakh hectare per annum. After the advent of the Forests Conservation Act, 1980, this rate was
controlled to a certain extent. The Act allows the diversion of forest land only for certain purposes such as
to meet the developmental needs for drinking water projects, irrigation projects, transmission lines,
railway lines, roads, power projects, defense related projects, mining etc. For such diversions of forest
lands for non-forestry purposes, compensatory afforestation is stipulated and catchment area treatment
plan, wildlife habitat improvement plan, rehabilitation plan etc. are implemented, to mitigate the ill
effects of diversion of such vast area of green forests.

To monitor the effective implementation of the compensatory afforestation in the country, an authority
named as “Compensatory Afforestation Management and Planning Authority (CAMPA)” is being
constituted at the national level. A monitoring cell is also being set up in the Ministry of Environment &
Forests to monitor the movement of proposals at various stages and the compliance of the conditions
stipulated in the forestry clearances by the user agencies. Clearance from Central Government for de-
reservation of Reserve Forests, for use of forestland for non-forest purpose and for assignment of leases
has been made mandatory under The Forest Conservation Act, 1980.

Under section 2 of the Act, prior approval of Central Government has to be obtained by the State
Government or other authority for undertaking any of the above mentioned activities. For this purpose,
the proposal has to be sent to the Central Government in the form specified in The Forest Conservation
Rules, 1982. In case the proposal for clearances are rejected, a person aggrieved by an order granting
environmental clearance can appeal to National Environmental Appellate Authority set up under National
Environmental Appellate Authority Act, 1997 within thirty days from the rejection of the proposal. It says
that:

“Notwithstanding anything contained in any other law for the time being in force in a State, no State
Government or other authority shall make, except with the prior approval of the Central Government,
any order directing— (i) that any reserved forest (within the meaning of the expression “reserved forest”
in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved; (ii)
that any forest land or any portion thereof may be used for any non-forest purpose. Explanation.—For
the purposes of this section “non-forest purpose” means the breaking up or clearing of any forest land or
portion thereof for any purpose other than reafforestation.”

Definition of Forest:

TN Goddavarman v Union of India:

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The Court held that what forest must be understood according to its dictionary meaning. This description
covers all statutorily recognized forests, whether designated as reserved, protected or otherwise for the
purpose of Section 2(i) of the Forest Conservation Act. The term “forest land” occurring in Section 2 will
not only include forest as understood in the dictionary sense, but also any area recorded as forests in the
Government record irrespective of the ownership. The Court also said that Section 2 is prospective in
nature and any order after 1980, no order can be passed without the prior approval of the Central
Government.

Also, the Court observed that construction of sawmills is a non-forest purpose and further clarified that
unlicensed saw mills prior to 1981, cannot be permitted to operate even if it is located 150 metres from
the forested area. All mining activities inside national parks are non-forest activity and cannot therefore
be permitted.

Definition of Non-Forest Purpose:

Rule 6(3) of the Forest Conservation Rules, 2003 also needs to be looked into. [COPY IT]

Essel Mining and Industries v State of Odisha:

Golden Granites v KV Shanmugam:

Om Prakash Choudhary v State of Rajasthan:

There was a proposal seeking for opening an interpretation centre in the forest area. The Court held that
construction of interpretation centre is not covered under the term non forest purpose. There is no
requirement of prior approval to begin with. As is apparent from the aforesaid explanation, work relating
or ancillary to conservation, development and management of forest and wildlife does not attract the
provisions of Section 2 of the Forest (Conservation) Act, 1980. The setting up of the interpretation center
is for educating the visitors and creating awareness in them about the importance of wildlife.
Conservation of wildlife and preservation of forest is possible only when the people are alive to the fact
that conservation, protection and development of wildlife and forests are essential for the sustenance of
human life and they are part of the nature's grand plan in which they have a role to play.

Vilas Shankar Donode v State of Maharashtra:

Whether construction of roads is a non-forest purpose? The Court held that construction of roads falls a
part of the non-forest produce and therefore this was not permitted. Further, all costs of deforestation
were ordered to be paid by the construction company.

Ishwar Chandra Gupta v State of UP:

The plaintiff was running a shop in the forest for 28 years. Here, the Court declared that it was a non-
forest activity and asked the plaintiff to shut the shop.

BV Sreekumar v Chief Conservator of Forests:

The Court clarified that Section 2(3) restricts the right of the State government to transfer or create any
right in or over a forest land or a portion thereof either by lease or otherwise. This is a prohibition on the
grant of any right under Sections 20, 35(3) of the Wildlife Protection Act, 1972. No one can have right
even to seek easementary rights in the forest land invoking the provisions of Section 13 of the Easements
Act, 1882.

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The Ministry of Forest, Environment and Climate Change released a notification on 24 June 2015,
permits the use of forest for non-forest purpose which includes the laying down of oil pipelines and other
mining lease, wherein the prior approval of the central government is not a sine qua non. It focuses on
ensuring that without compromising on environmental considerations and a balance has to be made
between the economic development and ecological considerations. It is imperative that most of the land
requirement would have to be met from the forest lands.

STRUCTURE OF THE ACT

- There are only 5 sections in the Act.
- This Act does not define forest.
- The Constitution of Advisory Committee is done to advise the government and has been provided
under Section 3.

FORESTS RIGHTS ACT

This was passed in the year 2006. This was passed to recognize and vest the the forest rights and
occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who
have been residing in such forests for generations but whose rights could not be recorded; to provide for a
framework for recording the forest rights so vested and the nature of evidence required for such
recognition and vesting in respect of forest land. This Act is a consequence of the UN Indigenous
People’s Rights that was to be followed by India.

- Banwasi Sewa Ashram v State of UP

- P Rama Reddy

It is also backed by the National Forest Policy, 1988 and the rehabilitation policies of 2005. These
recognised rights of the forest dwelling Scheduled Tribes and other traditional forest dwellers include the
responsibilities and authority for sustainable use, conservation of biodiversity and maintenance of
ecological balance and thereby strengthening the conservation regime of the forests while ensuring
livelihood and food security of the forest dwellings Scheduled Tribes and other traditional forest dwellers.
Section 2(c) and 2(o) define these terms: forest dwelling Scheduled Tribes and other traditional forest
dwellers, respectively. Section 3 defines the various forest rights. It is as follows:
(a) right to hold and live in the forest land under the individual or common occupation for habitation or
for self-cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other
traditional forest dwellers;
(b) community rights such as nistar, by whatever name called, including those used in erstwhile Princely
States, Zamindari or such intermediary regimes;
(c) right of ownership, access to collect, use, and dispose of minor forest produce which has been
traditionally collected within or outside village boundaries;
(d) other community rights of uses or entitlements such as fish and other products of water bodies,
grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or pastoralist
communities; (e) rights including community tenures of habitat and habitation for primitive tribal groups
and preagricultural communities;
(f) rights in or over disputes lands under any nomenclature in any State where claims are disputed;
(g) rights for conversion of Pattas or leases or grants issued by any local authority or any State
Government on forest lands to titles;

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(h) rights of settlement and conversion of all forest villages, old habitation,unsurveyed villages and other
villages in forests, whether recorded, notified or not into revenue villages;
(i) rights to protect, regenerate or conserve or manage any community forest resource which they have
been traditionally protecting and conserving for sustainable use;
(j) rights which are recognised under any State law or laws of any Autonomous District Council or
Autonomous Regional Council or which are accepted as rights of tribal under any traditional or
customary law of the concerned tribes of any State;
(k) right of access to biodiversity and community right to intellectual property and traditional knowledge
related to biodiversity and cultural diversity.

Section 4 says that:

“The forest rights recognised under this Act in critical wildlife habitats of National Parks and
Sanctuaries may subsequently be modified or resettled, provided that no forest rights holders shall be
resettled or have their rights in any manner affected for the purposes of creating inviolate areas for
wildlife conservation except resettlement or alternatives package has been prepared and communicated
that provides a secure livelihood for the affected individuals and communities and fulfils the requirements
of such affected individuals and communities given in the relevant laws and the policy of the Central
Government; (e) the free informed consent of the Gram Sabhas in the areas concerned to the proposed
resettlement and to the package has been obtained in writing; (f) no resettlement shall take place until
facilities and land allocation at the resettlement location are complete as per the promised package.”

Section 6 says that:

The Gram Sabha shall be the authority to initiate the process for determining the nature and extent of
individual or community forest rights or both that may be given to the forest dwelling Scheduled Tribes
and other traditional forest dwellers within the local limits of its jurisdiction under this Act by receiving
claims, consolidating and verifying them and preparing a map delineating the area of each recommended
claim in such manner as may be prescribed for exercise of such rights and the Gram Sabha shall, then,
pass a resolution to that effect and thereafter forward a copy of the same to the Sub-Divisional Level
Committee. (2) Any person aggrieved by the resolution of the Gram Sabha may prefer a petition to the
Sub-Divisional Level Committee constituted under sub-section (3) and the Sub-Divisional Level
Committee shall consider and dispose of such petition. Provided that every such petition shall be
preferred within sixty days from the date of passing of the resolution by the Gram Sabha: Provided
further that no such petition shall be disposed of against the aggrieved person, unless he has been given a
reasonable opportunity to present his case. Authorities to vest forest rights in forest dwelling Scheduled
Tribes and other traditional forest dwellers and procedure thereof. Duties of holders of forest rights. (3)
The State Government shall constitute a Sub-Divisional Level Committee to examine the resolution
passed by the Gram Sabha and prepare the record of forest rights and forward it through the Sub-
Divisional Officer to the District Level Committee for a final decision. (4) Any person aggrieved by the
decision of the Sub-Divisional Level Committee may prefer a petition to the District Level Committee
within sixty days from the date of decision of the Sub-Divisional Level Committee and the District Level
Committee shall consider and dispose of such petition: Provided that no petition shall be preferred
directly before the District Level Committee against the resolution of the Gram Sabha unless the same
has been preferred before and considered by the Sub-Divisional level Committee: Provided further that
no such petition shall be disposed of against the aggrieved person, unless he has been given a reasonable

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opportunity to present his case. (5) The State Government shall constitute a District Level Committee to
consider and finally approve the record of forest rights prepared by the Sub-Divisional Level Committee.
(6) The decision of the District Level Committee on the record of forest rights shall be final and binding.
(7) The State Government shall constitute a State Level Monitoring Committee to monitor the process of
recognition and vesting of forest rights and to submit to the nodal agency such returns and reports as
may be called for by that agency. (8) The Sub-Divisional Level Committee, the District Level Committee
and the State Level Monitoring Committee shall consist of officers of the department of Revenue, Forest
and Tribal Affairs of the State Government and three members of the Panchayati Raj Institutions at the
appropriate level, appointed by the respective Panchayati Raj Institutions, of whom two shall be the
Scheduled Tribe members and at least one shall be a women, as may be prescribed. (9) The composition
and functions of the Sub-Divisional Level Committee, the District Level Committee and the State Level
Monitoring Committee and the procedure to be followed by them in the discharge of their functions shall
be such as may be prescribed.

IMPORTANCE OF THE ACT

1. To empower and strengthen local self-governance
2. To address the livelihood security of the people
3. Leading to poverty alleviation and pro-poor growth
4. To address the issues of conservation and management of natural resources
5. To protect the indigenous knowledge and folk culture

Importance of Tribal People: Lafage Union Mining Private Limited v Union of India: The Supreme Court
explained the proactive and significant role of tribal and indigenous people.

WILDLIFE PROTECTION ACT

There are two ways the wild species are protected:

- Protecting animals, not concentrating on conservation of habitat.

- Preservation of the ecosystem or habitat, where species are protected automatically.

Endangered Species Act, 1973(US): The country was inclined towards protecting the species. The
Wildlife Protection Act (India) focuses on the preservation of habitat along with protecting the species.
National Parks focus on specific species.

IMPORTANCE OF WILDLIFE
- Plays a very important role in balancing the environment. It provides different processes in the
nature which is the reason of its stability.
- Ecological Importance: Wildlife helps in maintaining the ecological balance. It maintains the
number of herbivores and carnivores’ animals. Wildlife helps in maintaining the balance of
nature. Killing of carnivores leads to an increase in the number of herbivores which in turn affect
the forest vegetation, thus due to lack of food in the forest they come out from the forest to
agriculture land and destroy our crops. Therefore, once the equilibrium is disturbed it leads to
many problems.
- Economic Importance: One of the greatest factors in improving the income of the country and in
international trade. The wild life can be used to earn money. Wild plant products like food,

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medicine, timber, fibres, etc. are of economic value and the wild animal products such as meat,
medicines, hide, ivory, lac, silk, etc. are of tremendous economic value.
- Investigatory Importance: Wildlife becomes important for the conduct of a variety of scientific
experiments. Some wild organisms are used for scientific experiments such as to test effect of
medicine. Generally monkey, chimpanzee, etc. are used for scientific experiments.

It is a moral obligation rather than legal obligation.

DEVELOPMENT OF WILDLIFE PROTECTION IN INDIA

Around the third century BC, the founder of the Mauryan empire—Chandragupta Maurya, appointed a
Kupyadhyaksha or Forest Department Head. This officer was in charge of implementing the Game Laws
laid down in the manuscript known as the Arhtashastra written by Kautilya, the then Prime Minister of
the Mauryan Empire. This in effect became the first official administrative document to spell out wildlife
conservation measures. Chandragupta’s grandson Ashoka, besides implementing the written laws on
wildlife conservation in letter, went one step further and implemented it in spirit too. He is known to have
done much for the promulgation of Buddhism during his reign, ahimsa and the non-violence against all
beings, animals included, is well known. His penchant for wildlife also extended to art and aesthetics,
evident from examples such as the Lion Capital of Ashoka pillar in the present day Uttar Pradesh, where
four lions with their back to each other can be found atop the pillar. Unfortunately, the streak of good
fortune that wildlife had enjoyed until then did not persist through the centuries. Fast forward a couple of
centuries to the Mughal dynasty. When the founder of the Mughal empire, Babur, was at the helm,
records indicate that rhinoceros were found spread across the Gogra River and across Peshawar. Wild
elephants were found in abundance in the Karrah region, the present day Allahabad district. The number
of wildlife were not to grow exponentially. Emperor Akbar, his grandson, was an avid game hunter.

During the colonial time, the principle of finders’ keepers was imposed which meant that no fauna
belonged to anyone but if they arrived in your territory, you can claim ownership.

In 1873, the Madras Act was passed to prevent the indiscriminate discrimination of wild animals. Further,
in 1887, the Wild Bird Protection Act was passed. In 1912, the Wild Birds and Animals protection act
was passed. This was the first law prohibiting the killing and capturing of wild animals, which also
attracted penal provisions. Further, in 1935, the Wild Birds and Animal Protection Act was passed. In
1935, various areas were earmarked as sanctuaries for the protection of wild animals and birds. In this
year, the GoI Act was also passed, wherein the protection of wild birds and animals were entrusted to the
provincial legislature. In 1952, the first wildlife authority in the form of an advisory authority named as
Indian Board for Wildlife was set up. In 1972, the Wildlife Protection Act was passed. It was considered
as the first Act that incorporated all aspects of wildlife and required licenses to be obtained for the hunt of
these animals. Under this, trade of animals was also permitted, but only for certain trophy animals. In
1973, the Project Tiger was introduced. In 1976, the 42 nd Amendment was enacted, wherein two articles
were added specific to environment – Art. 48A and Art. 51(a)(g).

Here, India also ratified CITES. In 1976 and 1977, Separate Directorate was introduced. In 1980, the
Forest Act was passed. In 1982, amendment was passed to the Wildlife Act.

Society for Protection of Silent Valley v. Union of India (1980, Karnataka HC):
Silent Valley Case - Issues with respect to protection and conservation of rare and valuable flora and
fauna for the benefit of nation and posterity including lion tailed monkey.

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State of Bihar v. Murad Ali Khan:
SC cautioned to list conceptions of the ecological balance in nature is based on the fundamental concept
that nature is a series of complex biotic communities of which man is an inter-dependent part and that it
should not be given a part to trespass and diminish the whole. The largest single factor in the depletion of
the wealth of animal life in nature has been the civilised man polluting directly through excessive
commercial… indirectly through invading or destroying natural habitat.

Tarun Bharat Singh v. Union of India:

LEGISLATIONS PRIOR TO WILDLIFE PROTECTION ACT

- Wildlife Protection Act, 1960
- Biological Diversity Act, 2002
- IPC: as such there is no specific section that talks about wildlife protection. Section 47: animal
definition; mischief of killing animal, S. 429: mischief
- Cattle trespass Act 1971
- Animal Preservation Act 1879
- Forest Act 1927

WILDLIFE PROTECTION ACT, 1972

Act based on eco-system approach and regulation of regime of command and control. Main objectives:
- To have a uniform legislation of wildlife throughout the country- prior to this wildlife was under
state list- all states had different Acts. Later, it was shifted to concurrent list, hence there was a
need for a uniform central act. Therefore, the act of 1972 was passed;
- To establish a network of protected areas (national parks and sanctuaries);
- To regulate illicit trade in wildlife and its products

Denial on part of the Ministry: reports say that there is decrease in wildlife resources, while on the other
hand the government or Ministry is denying these reports and facts. Interpretation of different
terminologies has not been done properly.

Sansar Chand v. State of Rajasthan:

Katju stated how wildlife is important- preservation of wildlife is important for…sustaining the ecological
chain…interlinking in nature…food chain and food web.

The Act consists of 60 section divided into 8 chapters.

- Section 2(36) defines “wild animal” as any animal specified in Schedules I to IV and found wild
in nature.
- Section 2(37) defines “wild life” includes any animal, aquatic or land vegetation which forms part
of any habitat.
- Section 2(16) defines “hunting” as:
“hunting”, with its grammatical variations and cognate expressions, includes:
(a) killing or poisoning of any wild animal or captive animal and every attempt to do so;
(b) capturing, coursing, snaring, trapping, driving or baiting any wild or captive animal and every
attempt to do so;];
(c) injuring or destroying or taking any part of the body of any such animal or, in the case of wild birds
or reptiles, damaging the eggs of such birds or reptiles, or disturbing the eggs or nests of such birds or
reptiles.”

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- Section 9 prohibits hunting and says that No person shall hunt any wild animal specified in
Schedules I, II, III and IV except as provided under section 11 and section 12.
- Section 11 provides for hunting in certain specific areas and says that:
1) “Notwithstanding anything contained in any other law for the time being in force
and subject to the provisions of Chapter IV:
(a) the Chief Wild Life Warden may, if he is satisfied that any wild animal specified in
Schedule I has become dangerous to human life or is so disabled or diseased as to be
beyond recovery, by Order in writing and stating the reasons therefor, permit any person
to hunt such animal or cause such animal to be hunted; [Provided that no wild animal
shall be ordered to be killed unless the Chief Wild Life Warden is satisfied that such
animal cannot be captured, tranquilised or translocated: Provided further that no such
captured animal shall be kept in captivity unless the Chief Wild Life Warden is satisfied
that such animal cannot be rehabilitated in the wild and the reasons for the same are
recorded in writing. Explanation: For the purposes of clause (a), the process of capture
or translocation, as the case may be, of such animal shall be made in such manner as to
cause minimum trauma to the said animal]
(b) the Chief Wild Life Warden or the authorised officer may, if he is satisfied that any wild
animal specified in Schedule II, Schedule III, or Schedule IV, has become dangerous to
human life or to property (including standing crops on any land) or is so disabled or
diseased as to be beyond recovery, by order in writing and stating the reasons therefor,
permit any person to hunt 2 [such animal or group of animals in a specified area or
cause such animal or group of animals in that specified area to be hunted].
2) The killing or wounding in good faith of any wild animal in defence of oneself or of
any other person shall not be an offence: Provided that nothing in this sub-section
shall exonerate any person who, when such defence becomes necessary, was
committing any act in contravention of any provision of this Act or any rule or
order made thereunder.
3) Amy wild animal killed or wounded in defence of any person shall be Government
property.
- Section 12 provides for the permit of hunting for special purposes, it says that:
“Notwithstanding anything contained elsewhere in this Act, it shall be lawful for the Chief Wild
Life Warden, to grant a permit, by an order in writing stating the reasons therefor, to any person,
on payment of such fee as may be prescribed, which shall entitle the holder of such permit to hunt
subject to such conditions as may be specified therein, any wild animal specified in such permit,
for the purpose of:
a. education;
b. [(b) scientific research; (bb) scientific management. Explanation: For the
purposes of clause (bb), the expression, “scientific management” means— (i)
translocation of any wild animals to an alternative suitable habitat; or (ii)
population management of wildlife, without killing or poisoning or destroying any
wild animals;]
c. [(c) collection of specimens— (i) for recognised zoos subject to the permission
under section 38-I; or (ii) for museums and similar institutions;

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d. derivation, collection or preparation of snake-venom for the manufacture of life-
saving drugs:] [Provided that no such permit shall be granted— (a) in respect of
any wild animal specified in Schedule I, except with the previous permission of
the Central Government, and (b) in respect of any other wild animal, except with
the previous permission of the State Government;] (d) derivation, collection or
preparation of snake-venom for the manufacture of life-saving drugs.”

Difference between S. 11(a) and 11(b): It is to be noted that in the case of animals under Schedule I, the
permission can be given only by the Chief Wild Life Warden, while for other Schedules, the permission
can be given by either Chief Wild Life Warden or any authorized officers.

Scheduled Animals:
“Scheduled animal” means an animal specified for the time being in Schedule I or Part II of Schedule II.
Scheduled Animals have been accorded highest protection. Trade in these scheduled animals is banned as
mentioned under Chapter V(A).

Protected Areas:
Tarun Bharat Singh v. Union of India:
The protected area was intended to all the areas which have non forest activities that devastated the
environment including poaching, mining, felling of trees, etc. Protected areas include sanctuaries, national
parks and conservation reserves.

Section 2(26) defines a sanctuary, which means an area declared as a sanctuary by notification under the
provisions of Chapter IV of this Act and shall also include a deemed sanctuary under sub-section (4) of
section 66.

Section 36A- Declaration and management of a conservation reserve— (1) The State Government
may, after having consultations with the local communities, declare any area owned by the
Government, particularly the areas adjacent to National Parks and sanctuaries and those areas which link
one protected area with another, as a conservation reserve for protecting landscapes, seascapes, flora and
fauna and their habitat:

Provided that where the conservation reserve includes any land owned by the Central Government, its
prior concurrence shall be obtained before making such declaration.

(2) The provisions of sub-section (2) of section 18, sub-sections (2), (3) and (4) of section 27, sections 30,
32 and clauses (b) and (c) of section 33 shall, as far as may be, apply in relation to a conservation reserve
as they apply in relation to a sanctuary.

T.N. Godavaraman v Union of India: (protecting and preserving Asiatic buffalo) 

Human-wildlife conflict is fast becoming a critical threat to the survival of many endangered species, like
wild buffalo, elephants, tiger, lion etc. such conflicts affect not only its population but also has broadened
environmental impacts on ecosystem equilibrium and biodiversity conservation. Laws are man-made,
hence there is likelihood of anthropocentric bias towards man, and rights of wild animals often tend to be
of secondary importance but in the universe man and animal are equally placed, but human rights

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approach to environmental protection in case of conflict, is often based on anthropocentricity.Man-animal
conflict often results not because animals encroach human territories but vice-versa.

Centre for Environment Law World Wide Fund v. Union of India:

“While examining the necessity of a second home for the Asiatic lions, our approach should be eco-
centric and not anthropocentric and we must apply the “species best interest standard”, that is the best
interest of the Asiatic lions. We must focus our attention to safeguard the interest of species, as species
has equal rights to exist on this earth, like human beings. Asiatic Lion has become critically endangered
because of human intervention.”The Court also declared water buffalo as endangered species and
directed state govt. to initiate integrated development programs to save Asiatic wild buffalo from
extinction. There is a need for protecting and preserving these species.

Kamal Kant Pandey v. Prabhagya Van Adhikari:The Allahabad High Court upheld the cancellation of a
mining lease falling within Kaimur Wild Life Sanctuary.

Gujarat Navodaya Mandal v. State of Gujarat:This case is related to laying of pipeline inside a
Sanctuary. In this case the petitioner filed a writ petition challenging the permission given to Reliance
Petroleum Ltd. to lay a pipeline in the Marine National Park/Sanctuary. The respondents had undertaken
'Moti Khadi Refinery Project' for the production of petroleum products. Reliance Petroleum Limited had
taken clearance from the State Government and no objection certification from Gujarat Pollution Control
Board. The Environment Department of the Government of India gave clearance under Environment
Protection Act, 1986 on certain conditions. Further Reliance Petroleum Limited sought permission under
sec. 2 of the Wildlife Protection Act, 1972 and Sec. 2 (ii) of the Forest Conservation Act and the same
was granted by the Chief Wildlife Warden. The petitioner argued that the Chief Wildlife Warden had no
jurisdiction to pass the said order of clearance under sec. 29 of the Wildlife Protection Act, 1972. The
petitioner also contended that the said order would render damage to the forest as well as the marine life
and environment. The petitioner prayed for striking down the impugned order. Reliance Petroleum
Limited contended that the order would in no way cause damage to environment. Reliance Petroleum
Limited had engaged National Scientific and Industrial Research as well as National Institute of
Oceanography (NIO) to survey the implementation of the project. These organizations carried out the
survey project and cleared the project for Reliance Petroleum Limited. The respondent informed to the
court that it has adopted the spillage control system and would not cause any damage to marine life. The
court after hearing the arguments observed, "If section is considered as a whole, then it would be quite
clear that the destruction can be done only with the permission granted by Chief Wildlife Warden. Sec. 29
does not say that for granting such permission, Chief Wildlife Warden is required to obtain permission
from the State Government which is to be satisfied that the same is necessary for better management and
improvement of wildlife. The condition is applicable only in case if, there is destruction or exploitation or
removal of wildlife." The court also held that both the Central Government and the State Government
have been taking necessary precautions to ensure that neither the ecology nor the environment is damaged
while implementing the project in question. Hence petition was rejected

Essar Oil Ltd. v. Halar Utkarsh Samiti - scope and applicability of Section 29. This was a case dealing
with the grant of permit allowing activities relating to the destruction of habitat and permission for laying
of pipeline carrying crude oil through the Marine National Park and Sanctuary. The court was of the view
that, Sec. 29 provides for three prohibitions. Prohibition (a) is concerned with wildlife and its protection,

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(b) and (c) relate to the habitat of wild animals. The protection afforded to wildlife is more rigorous, but
in no case is the prohibition absolute in the sense that the prohibited activities may not be allowed under
any circumstances whatsoever. Thus wildlife may be destroyed, exploited or removed from a sanctuary
under and in accordance with a permit granted by the Chief Wildlife Warden. Similarly, the habitat of the
wild animals may also be destroyed, damaged and the wild animals may be deprived of its habitat within
such Sanctuary under and in accordance with a permit granted by the Chief Wildlife Warden. In this case
the pipelines were to be laid in the Sanctuary and it was held that there is no allegation in the present case
that the proposed activity of laying pipelines carrying oil through Sanctuary will remove or exploit
wildlife within the Sanctuary or National Park. The notifications issued under the Environment
(Protection) Act, 1991 and 2001 clearly allowed the buying of pipelines across ecologically sensitive
areas such as National Parks/Marine Parks and Sanctuaries. It can't therefore be said, that the invariable
consequences of laying pipeline through ecologically sensitive area has been the destruction or removal
of wildlife. There is no apriori presumption of destruction of wildlife in the laying of pipelines. Every
application must be dealt with on its own merits keeping in view the need to sustain the environment. If it
amounts to destruction of wildlife permits may not be granted unless there is proof that it is for the
betterment of wildlife. In the present case it was held that the legislative intent of Ss. 29 and 35 is that the
State Government itself should apply its mind and form the requisite satisfaction. Once the State
Government has exercised this power, it is not open to the Chief Wildlife Warden to decide to the
contrary.

Consumer Education and Research Society v. Union of India- Boundaries of wildlife sanctuaries- where
mining can be and cannot be allowed.

Animal and Environmental Legal Defence Fund v. Union of India:The petitioner filed a Public Interest
Petition challenging the order of the Chief Wild Life Warden, Forest Department Government of Madhya
Pradesh, granting 305 fishing permits to the tribals formerly residing within, the Pench National Park area
for fishing in the Tottadoh Reservoir situated in the heart of the Pench National Park Tiger Reserve.
Under Sec.26(l)(i) of the Indian Forest Act, 1927, any person who fishes in contravention of any rules
made in this behalf by the State Government, shall be punishable in the manner provided in that Section.
Therefore, the ancestors of the present tribals could not have acquired any fishing right in the Pench
River. Although the necessary proclamations were issued earlier nobody came forward to claim their
rights on account of illiteracy and unawareness. They have claimed that their traditional right of fishing
should be preserved as this is the only source of their livelihood. The reservoir is in the center of the
National Park area which partly falls in Maharashtra and partly in Madhya Pradesh. Fishing activity had
been started in this reservoir by the Fisheries Development Corporation of the State of Madhya Pradesh
despite protests. The petitioner as well as the State of Maharashtra has pointed out that if the 305 fishing
permits are issued, the bio-diversity and ecology of the area will be seriously affected. The National Park
is also a tiger reserve and all these other activities have a direct bearing on the protection of Wildlife in
the National Park area. The Court issued detailed directions for the proper implementation of the licence
conditions. The directions included the issue of photo identity cards for permit holders; restriction of the
route traveled while entering and leaving the Park; a prohibition on lighting fires for cooking or for any
other purpose; and strict monitoring by the State Government to ensure that, there was no poaching.

Pradip Krishnan v. Union of India:The petitioner, an environmentalist, challenged the order of the
Department of Forest, State of Madhya Pradesh. The order permitted collection of Tendu leaves from

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sanctuaries and National Parks by villagers living around the boundaries in order to maintain their
traditional rights.
Arguments:
The petitioner contended that the said order violates Wildlife (Protection) Act, 1972, Articles 14 and 21,
48-A 86 51-A (g) of the Constitution. He also argued that order is malafide and against the public interest.
He based his contention on the following points: (1) Whether an area declared as a sanctuary and National
Park under Sec. 18 can be exploited for collection of minor forest produce in violation of the restrictions
contained in the Act? (2) Whether State Government has the right to exploit minor forest produce from
the sanctuaries & National Parks? The respondent informed the Court that there is no real danger to flora,
fauna and Wildlife in the NationalParks and Sanctuaries. However, the petitioner clarified to the court
that he is challenging commercial exploitation of tendu leaves through the contractor, as it goes against
the scope and object of Wildlife Protection Act, not the right of tribals in relation to the collection of
tendu leaves in the National Parks and Sanctuaries. The tribals contended that tendu leaves are for their
livelihood and not for commercial purposes.
Observations by the Court:
The Court observed that the procedure with regard to acquisition of rights in and over the land to be
included in a Sanctuary or National Park has to be followed before a final notification under Sec. 26 or
Sec. 35(1) issued to State Government. There was no final notification, being issued under these
provisions. In the instant case, since no final notification was issued, the State government was not in a
position to bar the entry of the villagers living in and around the Sanctuaries and the National Park. So
long as their rights were not acquired and final notifications under the aforesaid provisions were issued.
So the State Government has not violated any law. The Court gave several directions which include: (1)
The State Government must complete the process of issuing final notifications. (2) Immediate action with
regard to institution of an inquiry. (3) Acquire the rights of those who claim any right in or over any land
proposed to be included in the Sanctuary/National Park.

Chapter VI which include Ss. 50 – 58 deal with the protection and detection of offences.
Section 58 says that: (1) Notwithstanding anything contained in any other law for the time being in force,
the Director or any other officer authorised by him in this behalf or the Chief Wild Life Warden or the
authorised officer or any forest officer or any police officer not below the rank of a sub- inspector, may, if
he has reasonable grounds for believing that any person has committed an offence against this Act,—
a. require any such person to produce for inspection any captive animal, wild animal,
animal article, meat, trophy or 3 [trophy, uncured trophy, specified plant or part or
derivative thereof] in his control, custody or possession, or any licence, permit or
other document granted to him or required to be kept by him under the provisions
of this Act;
b. stop any vehicle or vessel in order to conduct search or inquiry or enter upon and
search any premises, land, vehicle or vessel, in the occupation of such person, and
open and search any baggage or other things in his possession;
c. seize any captive animal, wild animal, animal article, meat, trophy or uncured
trophy, or any specified plant or part or derivative thereof, in respect of which an
offence against this Act appears to have been committed, in the possession of any
person together with any trap, tool, vehicle, vessel or weapon used for committing
any such offence and, unless he is satisfied that such person will appear and

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answer any charge which may be preferred against him, arrest him without
warrant, and detain him:
(3) It shall be lawful for any of the officers referred to in sub-section (1) to stop and detainany person,
whom he sees doing any act for which a licence or permit is required under the provisions of this Act, for
the purposes of requiring such person to produce the licence or permit and if such person fails to produce
the licence or permit, as the case may be, he may be arrested without warrant, unless he furnishes his
name and address, and otherwise satisfies the officer arresting him that he will duly answer any summons
or other proceedings which may be taken against him. 3 [(3A) Any officer of a rank not inferior to that of
an Assistant Director of Wild Life Preservation or 4 [an Assistant Conservator of Forests] who, or whose
subordinate, has seized any captive animal or wild animal under clause (c) of sub-section (1) may give the
same for custody on the execution by any person of a bond for the production of such animal if and when
so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure
has been made.]
(4) Any person detained, or things seized under the foregoing power, shall forthwith be taken before a
Magistrate to be dealt with according to law 5 [under intimation to the Chief Wild Life Warden or the
officer authorised by him in this regard].
(5) Any person who, without reasonable cause, fails to produce anything, which he is required to produce
under this section, shall be guilty of an offence against this Act.
[(6) Where any meat, uncured trophy, specified plant or part or derivative thereof is seized under the
provisions of this section, the Assistant Director of Wild Life Preservation or any other officer of a
gazetted rank authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer
may arrange for the disposal of the same in such manner as may be prescribed.]
(7) Whenever any person is approached by any of the officers referred to in sub-section (1) for assistance
in the prevention or detection of an offence against this Act, or in apprehending persons charged with the
violation of this Act, or for seizure in accordance with clause (c) of sub-section (1), it shall be the duty of
such person or persons to render such assistance.

These were amended by the Wildlife Act, 2002, which expanded the scope of investigation.
[(8) Notwithstanding anything contained in any other law for the time being in force, any officer not
below the rank of an Assistant Director of Wild Life Preservation or [an officer not below the rank of
Assistant Conservator of Forests authorised by the State Government in this behalf] shall have the
powers, for purposes of making investigation into any offence against any provision of this Act— (a) to
issue a search warrant; (b) to enforce the attendance of witnesses; (c) to compel the discovery and
production of documents and material objects; and (d) to receive and record evidence.
(9) Any evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial
before a Magistrate provided that it has been taken in the presence of the accused person.]

Penalties under the Act: Section 51 deals with it, it is given under a no-fault liability, there is no need for
mens rea.
(1) Any person who 1 [contravenes any provision of this Act 2 [(except
Chapter VA and section 38J)]] or any rule or order made thereunder or
who commits a breach of any of the conditions of any licence or permit
granted under this Act, shall be guilty of an offence against this Act, and
shall, on conviction, be punishable with imprisonment for a term which

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may extend to 3 [three years], or with fine which may extend to 4
[twenty-five thousand rupees], or with both: 5 [Provided that where the
offence committed is in relation to any animal specified in Schedule I or
Part II of Schedule II or meat of any such animal or animal article,
trophy or uncured trophy derived from such animal or where the offence
relates to hunting in a sanctuary or a National Park or altering the
boundaries of a sanctuary or a National Park, such offence shall be
punishable with imprisonment for a term which shall not be less than
three years but may extend to seven years and also with fine which shall
not be less than ten thousand rupees: Provided further that in the case of
a second or subsequent offence of the nature mentioned in this sub-
section, the term of the imprisonment shall not be less than three years
but may extend to seven years and also with fine which shall not be less
than twenty-five thousand rupees.] 6 [(1A) Any person who contravenes
any provisions of Chapter VA, shall be punishable with imprisonment
for a term which shall not be less than 7 [three years] but which may
extend to seven years and also with fine which shall not be less than 8
[ten thousand rupees].] 9 [(1B) Any person who contravenes the
provisions of section 38J, shall be punishable with imprisonment for a
term which may extend to six months, or with fine which may extend to
two thousand rupees, or with both: Provided that in the case of a second
or subsequent offence the term of imprisonment may extend to one year
or the fine may extend to five thousand rupees.]
(2) When any person is convicted of an offence against this Act, the Court
trying the offence may order that any captive animal, wild animal,
animal article, trophy, 10[uncured trophy, meat, ivory imported into
India or an article made from such ivory, any specified plant, or part or
derivative thereof] in respect of which the offence has been committed,
and any trap, tool, vehicle, vessel or weapon, used in the commission of
the said offence be forfeited to the State Government and that any licence
or permit, held by such person under the provisions of this Act, be
cancelled.
(3) Such cancellation of licence or permit or such forfeiture shall be in
addition to any other punishment that may be awarded for such offence.
(4) Where any person is convicted of an offence against this Act, the Court
may direct that the licence, if any, granted to such person under the Arms
Act, 1959 (54 of 1959), for possession of any arm with which an offence
against this Act has been committed, shall be cancelled and that such
person shall not be eligible for a licence under the Arms Act, 1959, for a
period of five years from the date of conviction.
ii. Section 360 of the Criminal Procedure is also important, since it is not applicable here under this
section: “[(5) Nothing contained in section 360 of the Code of Criminal Procedure, 1973 (2 of
1974), or in the Probation of Offenders Act, 1958 (20 of 1958), shall apply to a person convicted

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of an offence with respect to hunting in a sanctuary or a National Park or of an offence against
any provision of Chapter VA unless such person is under eighteen years of age.]”

Section 51A provides for Certain conditions to apply while granting bail.—When any person accused of,
the commission of any offence relating to Schedule I or Part II of Schedule II or offences relating to
hunting inside the boundaries of National Park or wild life sanctuary or altering the boundaries of such
parks and sanctuaries, is arrested under the provisions of the Act, then notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974) no such person who had been previously
convicted of an offence under this Act shall, be released on bail unless — (a) the Public Prosecutor has
been given an opportunity of opposing the release on bail; and (b) where the Public Prosecutor opposes
the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty
of such offence and that he is not likely to commit any offence while on bail.] Therefore, no bail can be
granted.

Sansar Chand v State of Rajasthan:

The Court held that once the involvement is proved, the accused can be convicted on the basis of oral
extra judicial confession although ordinarily an extra judicial confession should be corroborated by some
other material.

Section 57 provides that Presumption to be made in certain cases.—Where, in any prosecution for an
offence against this Act, it is established that a person is in possession, custody or control of any captive
animal, animal article, meat, 3 [trophy, uncured trophy, specified plant, or part or derivative thereof] it
shall be presumed, until the contrary is proved, the burden of proving which shall lie on the accused, that
such person is in unlawful possession, custody or control of such captive animal, animal article, meat, 3
[trophy, uncured trophy, specified plant, or part or derivative thereof.]

Section 56 says that Nothing in this Act shall be deemed to prevent any person from being prosecuted
under any other law for the time being in force, for any act or omission which constitutes an offence
against this Act or from being liable under such other law to any higher punishment or penalty than that
provided by this Act: Provided that no person shall be punished twice for the same offence.

Section 58O provides for Appeals: (1) Any person aggrieved by an order of the competent authority
made under section 58F, section 58-I, sub-section (1) of section 58K or section 58L may, within forty-
five days from the date on which the order is served on him prefer an appeal to the Appellate Tribunal:
Provided that the Appellate Tribunal may entertain an appeal after the said period of forty-five days, but
not after sixty days, from the date aforesaid if it is satisfied that the appellant was prevented by sufficient
cause from filing the appeal in time. (2) On receipt of an appeal under sub-section (1), the Appellate
Tribunal may, after giving an opportunity of being heard to the appellant, if he so desires, and after
making such further inquiry as it deems fit, confirm, modify or set aside the order appealed against. (3)
The Appellate Tribunal may regulate its own procedure. (4) On application to the Appellate Tribunal and
on payment of the prescribed fee, the Appellate Tribunal may allow a party to any appeal or any person
authorised in this behalf by such party to inspect at any time during office hours, any relevant records and
registers of the Appellate Tribunal and obtain a certified copy or any part thereof.

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Section 3 provides for the appointment of Director and other officers: (1) The Central Government may,
for the purposes of this Act, appoint,— (a) A Director of Wild Life Preservation; 3 * * * * * (c) such
other officers and employees as may be necessary. (2) In the performance of his duties and exercise of his
powers by or under this Act, the Director shall be subject to such general or special directions, as the
Central Government may, from time to time, give. 4 [(3) The officers and other employees appointed
under this section shall be required to assist the Director.]

Section 4 provides for the appointment of Life Warden and other officers: 1) The State Government May,
for the purpose of this Act, appoint, (a) a Chief Wild Life Warden; (b) Wild Life Wardens; 5 *** 6 [(bb)
Honorary Wild Life Wardens;] (c) such other officers and employees as may be necessary. (2) In the
performance of his duties and exercise of his powers by or under this Act, the Chief Wild Life Warden
shall be subject to such general or special directions, as the State Government may from time to time,
give. (3) 7 [The Wild Life Warden, the Honorary Wild Life Warden] and other officers and employees
appointed under this section shall be subordinate to the Chief Wild Life Warden.

Section 6 describes the Constitution of State Board for Wild Life.—(1) The State Government shall,
within a period of six months from the date of commencement of the Wild Life (Protection) Amendment
Act, 2002 (16 of 2003) constitute a State Board for Wild Life consisting of the following members,
namely:— (a) the Chief Minister of the State and in case of the Union territory, either Chief Minister or
Administrator, as the case may be - Chairperson; (b) the Minister in-charge of Forests and Wild Life -
Vice-Chairperson; (c) three members of the State Legislature or in the case of a Union territory with
Legislature, two members of the Legislative Assembly of that Union territory; (d) three persons to
represent non-governmental organizations dealing with wild life to be nominated by the State
Government; (e) ten persons to be nominated by the State Government from amongst eminent
conservationists, ecologists and environmentalists including at least two representatives of the Scheduled
Tribes; (f) the Secretary to the State Government or the Government of the Union territory, as the case
may be, in-charge of Forests and Wild Life; (g) the Officer in-charge of the State Forest Department; (h)
the Secretary to the State Government, Department of Tribal Welfare; (i) the Managing Director, State
Tourism Development Corporation; (j) an officer of the State Police Department not below the rank of
Inspector-General;

Section 7 provides for the Procedure to be followed by the Board. It says that (1) The Board shall meet at
least twice a year at such place as the State Government may direct. (2) The Board shall regulate its own
procedure (including the quorum) (3) No act or proceeding of the Board shall be invalid merely by reason
of the existence of any vacancy therein or any defect in the constitution thereof or any irregularity in the
procedure of the Board not affecting the merits of the case.

Section 8 provides for the Duties of the Board. It says that —It shall be the duty of 1 [State Board for
Wild Life] to advise the State Government,— 2 [(a) in the selection and management of areas to be
declared as protected areas;] 3 [(b) in formulation of the policy for protection and conservation of the wild
life and specified plants;] (c) in any matter relating to the amendment of any Schedule; 4 *** 5 [(cc) in
relation to the measures to be taken for harmonising the needs of the tribals and other dwellers of the
forest with the protection and conservation of wild life; and] (d) in any other matter connected with the
protection of wild life, which may be referred to it by the State Government.

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Section 18 provides for the declaration of a sanctuary. The State Government may, by notification,
declare its intention to constitute any area other than an area comprised within any reserve forest or the
territorial waters as a sanctuary if it considers that such area is of adequate ecological, faunal, floral,
geomorphological, natural or zoological significance, for the purpose of protecting, propagating or
developing wild life or its environment.] (2) The notification referred to in sub-section (1) shall specify,
as nearly as possible, the situation and limits of such area.

Section 26 provides for the Declaration of area as sanctuary. (1) When— (a) a notification has been
issued under section 18 and the period for preferring claims has elapsed, and all claims, if any, made in
relation to any land in an area intended to be declared as a sanctuary, have been disposed of by the State
Government; or (b) any area comprised within any reserve forest or any part of the territorial waters,
which is considered by the State Government to be of adequate ecological faunal floral
geomorphological, natural or zoological significance for the purpose of protecting, propagating or
developing wild life or its environment, is to be included in a sanctuary, the State Government shall issue
a notification specifying the limits of the area which shall be comprised within the sanctuary and declare
that the said area shall be sanctuary on and from such date as may be specified in the notification:
Provided that where any part of the territorial waters is to be so included, prior concurrence of the Central
Government shall be obtained by the State Government.

Section 28 provides for the grant of permission for residence. (1) The Chief Wild Life Warden may, on
application, grant to any person a permit to enter or reside in a sanctuary for all or any of the following
purposes, namely:— (a) investigation or study of wild life and purposes ancillary or incidental thereto; (b)
photography; (c) scientific research; (d) tourism; (e) transaction of lawful business with any person
residing in the sanctuary. (2) A permit to enter or reside in a sanctuary shall be issued subject to such
conditions and on payment of such fee as may be prescribed.

Section 27 provides for the Restriction on entry in sanctuary. (1) No person other than,— (a) a public
servant on duty, (b) a person who has been permitted by the Chief Wild Life Warden or the authorised
officer to reside within the limits of the sanctuary, (c) a person who has any right over immovable
property within the limits of the sanctuary, (d) a person passing through the sanctuary along a public
highway, and (e) the dependants of the person referred to in clause (a), clause (b) or clause (c), shall enter
or reside in the sanctuary, except under and in accordance with the conditions of a permit granted under
section 28.
(2) Every person shall, so long, as he resides in the sanctuary, be bound— (a) to prevent the commission,
in the sanctuary, of an offence against this Act; (b) where there is reason to believe that any such offence
against this Act has been committed in such sanctuary, to help in discovering and arresting the offender;
(c) to report the death of any wild animal and to safeguard its remains until the Chief Wild Life Warden
or the authorised officer takes charge thereof; (d) to extinguish any fire in such sanctuary of which he has
knowledge or information and to prevent from spreading, by any lawful means in his power, any fire
within the vicinity of such sanctuary of which he has knowledge or information; and (e) to assist any
forest officer, Chief Wild Life. Warden, Wild Life Warden or police officer demanding his aid for
preventing the commission of any offence against this Act or in the investigation of any such offence.

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Mahesh Kumar Trivedi v State of Gujarat:
This case pertains to the allotment of a land as per the rehabilitation scheme of 1980s. This land was
declared as a wildlife sanctuary, thereby eliminating the right of residence of the petitioner. The Court
pointed that nobody has the right to enter or possess a land of a sanctuary except under the permit granted
by the Chief Wild Life Warden as per Ss. 27 and 28 of the Wildlife Protection Act, 1972.

Kamal Kant Pandey v State of UP: Mining operations were being conducted in certain restricted areas.
The Court held that if these areas are declared as a sanctuary, the mining lease will be terminated.

Chapter IVA deals with protection and preservation of wildlife through Zoo authorities.
Section 38C provides for the Functions of the Authority.—The Authority shall perform the following
functions, namely:— (a) specify the minimum standards for housing, upkeep and veterinary care of the
animals kept in a zoo; (b) evaluate and assess the functioning of zoos with respect to the standards or the
norms as may be prescribed; (c) recognise or derecognise zoos; (d) identify endangered species of wild
animals for purposes of captive breeding and assigning responsibility in this regard to a zoo; (e) co-
ordinate the acquisition, exchange and loaning of animals for breeding purposes; (f) ensure maintenance
of stud-books of endangered species of wild animals bred in captivity; (g) identify priorities and themes
with regard to display of captive animals in a zoo; (h) co-ordinate training of zoo personnel in India and
outside India; (i) co-ordinate research in captive breeding and educational programmes for the purposes
of zoos; (j) provide technical and other assistance to zoos for their proper management and development
on scientific lines; (k) perform such other functions as may be necessary to carry out the purposes of this
Act with regard to zoos

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