PRECAUTIONARY

PRINCIPLE AND PUBLIC

TRUST DOCTRINE
PRECAUTIONARY PRINCIPLE

- An attempt to give the notion of precaution—understood as a form of addressing

risk—legal status. Its core elements are the need for environmental protection; the
presence of threat or risk of serious damage; and the fact that a lack of scientific
certainty should not be used to avoid taking action to prevent that damage.
- https://www.iisd.org/articles/deep-dive/precautionary-principle
VELLORE CITIZEN WELFARE FORUM V. UNION OF
INDIA AIR 1996 SC 2715

• This case was lately decided by the Apex Court in the year 2016 and entrenched the principle
of preventive methodology in environmental protection. The petitioner- Vellore Citizens
Welfare Forum, filed a Public Interest Litigation under Article 32 of the Constitution of India.
The petition was filed against the excessive pollution caused to River Palar due to the release
of pollutants by the tanneries and other industries in the State of Tamil Nadu. Palar River is
the main source of drinking and bathing water for the surrounding people. Later, the Tamil
Nadu Agricultural University Research Centre, Vellore discovered that approximately 35,000
hectares of agricultural land have turned either entirely or partially unsuitable for cultivation.
This is one of the landmark cases whereby the Supreme Court critically analyzed the
relationship between environment and industrial development.
ISSUE

• The question which emerged for thought in front of the Supreme Court was whether the
tanneries ought to be permitted to keep on working at the expense of lives of lakhs of
individuals.
ARGUMENT (PETITIONER)

• It was presented by the petitioner that the whole surface and sub-soil water of river
Palar has been intoxicated and has resulted in the non-accessibility of consumable water
to the inhabitants of the region. It is expressed that the tanneries in the State of Tamil
Nadu have caused environmental damage in the zone. An autonomous study directed by
Peace Members, a non-administrative association, covering 13 towns of Dindigal and
Peddiar Chatram Anchayat Unions, uncovers that 350 well out of an aggregate of 467
utilized for drinking and water system purposes have been contaminated.
ARGUMENT (RESPONDENT)

• Learned counsel for the respondents brought up a the argument that the standard with respect to Total
Dissolved Solids (TDS) fixed by the Board was not legitimized. This Court by the request dated April 9,
1996, coordinated the (National Environmental Engineering Research Institute) NEERI to inspect this
angle and offer its input. In its report dated June 11, 1996, NEERI has legitimized the models stipulated by
the Board. The Ministry of Environment and Forests (MEF) has not completely set down models for
inland surface water release for Total Dissolved Solids (TDS), sulfates, and chlorides. The choice on these
guidelines rests with the individual State Pollution Control Boards according to the prerequisites based
on nearby site conditions. The guidelines stipulated by TNPCB are advocated on afore alluded
contemplations. The endorsed principles of the TNPCB for inland surface water release can be met for
tannery squander waters cost-viably through appropriate embed control gauges in tanning activity, and
normally structured and viably worked wastewater treatment plants (ETPs and CETPs).
JUDGEMENT

• Compliant with this current Court’s Order dated April 9, 1996, we have heard educated advice showing up for the tanneries
which have been shut as far as the above request. It has been brought to our notification that there are a few tanneries that had
set up singular contamination control devices, in any case, regardless of that they were shut. It has additionally been brought to
our notification that a portion of the tanneries are associated with Common effluent treatment plants’ (CETP) and have
additionally set up their individual contamination control devices. Different abnormalities have been brought to our notification.
In any case, we have presented to embrace a uniform strategy to welcome these tanneries on rails. We clarify that no tannery
will be allowed to re-open except if this Court fulfills that the important contamination control devices either independently or
in total have been set up by these tanneries and for that reason, we need to rely upon the exhortation offered by Technical
Specialists like the Pollution Control Boards or NEERI. The Court coordinated the Central Contamination Control Board and
the Tamil Nadu Pollution Control Board to mutually review the territory. The tanneries either straightforwardly or through
educated insight may approach the Pollution Control Boards or show that their individual units have set-up/built the important
contamination Control devices. We direct the Pollution Control Boards concerned to quickly review the Units and document a
report in this regard before May 6, 1996.
• The Court additionally coordinated that each one of those Units which are not in a situation
to develop the emanating treatment devices within this period may move to the Board when
they complete the devices. The North Arcot District and Chennai MGR District Association and
different Associations of the Tanners will bear the costs of the review groups sorted out by
the Boards.
• The Supreme Court analyzing the report conveyed its judgment putting forth all attempts to
keep up a concordance among condition and improvement.
• The Court conceded that these Tanneries in India are the major foreign exchange earner and
furthermore gives work to a large number of individuals. In any case, at the equivalent time, it
wrecks nature and represents a wellbeing danger to everybody.
• The court conveying its judgment in favour of the petitioner guided all the Tanneries to
submit a whole of Rs. 10,000 as fine in the Collector’s office.
• The Court right now underscored on the constitution of Green Benches in India
managing matters identifying with environment protection and furthermore for quick
and speedy removal of environmental cases.
• The Court opined that sustainable development t is the need of the
hour. The court emphasized on the fact that there should be a balance
between economic growth and protection of the environment. The
Court rejected the traditional concept that ecology and development
are opposed to each other. The Court also reviewed the development of
the concept of sustainable development in the international sphere.
The Court referred to the Stockholm Declaration of 1972, Caring for
Earth, 1991, the Earth Summit, and the Rio Declaration of 1992 and
opined that the Precautionary Principle and the Polluter Pays Principle
are indispensable features of Sustainable Development.
• http://www.commonlii.org/in/journals/NALSARLawRw/2004/11.pdf
• https://blog.ipleaders.in/analysis-precautionary-principle-environmental-law-instrument/
• PRECAUTIONARY PRINCIPLE AS AN EFFECTIVE JUDICIAL TOOL IN THE
PREVENTION AND CONTROL OF WATER POLLUTION IN INDIA
• Prof. Aruna B Venkat

• http://www.commonlii.org/in/journals/NALSARLawRw/2004/11.pdf
• The problem of pollution of rivers and streams has assumed considerable importance and
urgency in recent years as a result of the growth of industries and the increasing tendency
to urbanization. It is, therefore, essential to ensure that the domestic and industrial
effluents are not allowed to be discharged into the watercourses without adequate
treatment as such discharges would render the water unsuitable as source of drinking
water as well as for supporting fish life and for use in irrigation. Pollution of rivers and
streams also causes increasing damage to the country's economy.
• In order to achieve the above stated objects, the Water Act, 1974 and the Water Cess Act, 1977, have been
enacted. These laws, which have been intended to combat the menace of water pollution and to restore the
wholesomeness of water, have been in operation for almost three decades. Despite this fact, the problem of
water pollution has not been mitigated, on the contrary the problem has aggravated mainly due to the lack luster
implementation of the legislative mandates by the concerned administrative agencies constituted thereunder.
Expressing serious concern at the general executive apathy in the implementation of environmental legislation,
the Supreme Court, in Indian Council for Enviro-Legal Action v. Union of India, observed:
• There are stated to be over 200 Central and State Statutes, which have at least some concern with environment
protection, either directly or indirectly. The plethora of such enactments have, unfortunately, not resulted in
preventing environmental degradation, which on the contrary, has increased over the years .... Violation of anti-
pollution laws not only adversely affects the existing quality of life but the non-enforcement of the legal
provisions often results in ecological imbalance and degradation of the environment, the adverse affect of which
will have to be born by the future generations.
• The Water Act requires every person seeking to establish or take any steps to establish any
industry, operation or process or any treatment and disposal system or an extension or
addition thereto, which is likely to discharge sewerage or trade effluents into a stream or
well or sewer or on land to obtain the previous consent of the State Pollution Control
Board which is dependent upon the fulfillment of the conditions specified by the Boards.
Failure on the part of the person concerned to obtain the consent will entitle the State
Pollution Control Board to serve notice on the person imposing conditions on
establishment, outlet or discharge of effluents.
• Other Acts have other such provisions.
DEVELOPMENT OF 'PRECAUTIONARY PRINCIPLE'

• It may be appreciated that the "Precautionary Principle" has now not only become part of
the rules of customary international law but also become part of the Indian environmental
jurisprudence.
• The "Precautionary Principle", is embodied in Principle 15 of the Rio Declaration, is
based on the premise "that it is better to err on the side of caution and prevent
environmental harm than to run the risk of irreversible harm".
• Since Vellore Citizens Welfare Forum v. Union of India, is the first case in which the Supreme Court not only explained the
linkage between development and environment by infusing into the Indian environmental jurisprudence the concept of
sustainable development but also enunciated the "Precautionary Principle" as its essential feature, it will be appropriate to begin
with this case. Explaining the import of "precautionary principle", the learned judge observed:
• The "Precautionary Principle" in the context of municipal law means:
• (i) Environmental measures- by the State Government and the statutory authorities - must anticipate, prevent and attack the
causes of environmental degradation.
• (ii) Where there are threats of serious irreversible damage, lack of scientific certainty should not be used as a reason for
postponing measures to prevent environmental degradation.
• (iii) The "Onus of Proof' is on the actor or the developer / industrialist to show that his action is environmentally benign.
• Dealing with the import of "the Polluter Pays" principle, his Lordship referred with
approval, to the view taken in Indian Council for Enviro-Legal Action v Union of India,
and declared that the Principle meant that "absolute liability for harm to the environment
extends not only to compensate the victims of pollution but also the cost of restoring the
environmental degradation. Remediation of the damaged environment is part of the
process of 'Sustainable Development' and as such polluter is liable to pay the cost of the
individual sufferers as well as the cost of reversing the damaged ecology".
• According to Justice Kuldip Singh, these two principles had become part of Indian
municipal law by virtue of their being part of the customary international law. After
examining the scope of Arts 21, 47,48A and 51A (g) of the Constitution and the Water and
Air Acts, he expressed the view that "[i]n view of the above constitutional and statutory
provisions we have no hesitation in holding that the precautionary principle and polluter
pays principle are part of the environmental law of the country".
• Several other cases used to show the development:
• MC Mehta v. Union of India, (1997) 3 SCC 715.
• S Jagannath v. Union of India, (1997) 2 SCC 87.
• AP Pollution Control Board v. MV Nayudu, AIR 1999 SC 812
• In AP Pollution Control Board v. MV Nayudu, which is one of the landmark decisions of
the Supreme Court in the area of environmental jurisprudence in the country, the Supreme
Court had the opportunity to futher clarify the import of the "Precautionary Principle"
beyond what was expounded in Vellore Citizens Welfare Forum's case. This is evident
from the following observation:
• The Vellore Judgment has referred to these principles briefly but, in our view, it is
necessary to explain their meaning in more details, so that Courts and tribunals or
environmental authorities can properly apply the said principles in matters which came
before them.
• In this case, the Surana Oils and Derivatives (India) Ltd (SODL), which sought to establish a
factory to manufacture castor oil derivatives sought consent of the Andhra Pradesh Pollution
Control Board by an application to that effect. Unfortunely for the respondent company, the
consent was refused by the Board on the ground that the factory was located at a place which
was very close to Himayat sagar lake which supplied water to Hyderabad. The refusal was
questioned before the Appellate Authority established under s 28 of the Water Act, 1974.
• The Appellate Authority, reviewing the decision of the Board, directed the latter to grant
consent. This direction was challenged in a PIL before the AP High Court, which declined to
interfere with the decision of the Appellate Authority. Against the decision of the High Court a
Special leave appeal was preferred to the Supreme Court under Art 136 of the Constitution.
• Justice Jagannatha Rao, who spoke for the Court, infused new insights into the import, significance and
role of the concept of "Precautionary Principle” in the context of the issue of assessment of the adverse
impact of new industrial or other projects on environment. Being conscious of the fact that the Courts
and other environmental authorities have been facing considerable difficulty in adjudicating upon
correctness of the technological and scientific opinions presented to the courts as evidence in favour of
or against the new developmental projects in the context of the issue of their adverse environmental
effects, his Lordship projected the importance of the "Precautionary Principle" as a viable judicial tool for
the protection of environment. The principle as articulated is based on the premise that it "is better to
err on the side of caution and prevent environmental harm which may indeed become irreversible". After
tracing its development from Stockholm Conference in 1972 to Rio-Conference 1992, his Lordship
articulated its import thus:
• It is to be noticed that while the inadequacies of science have led to the 'precautionary principle', the said
'precautionary principle' in its tum, has led to the special principle of burden of proof in environmental
cases where burden as to the absence of injurious effect of the actions proposed is placed on those who
want to change the status quo.... This is often termed as a reversal of burden of proof, because otherwise
in environmental cases, those opposing the change would be compelled to shoulder the evidentiary
burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the
status quo by maintaining a less-polluted State should not carry the burden of proof and the party who
wants to alter it, must bear this burden.... The precautionary principle suggests that where there is an
identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread
toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden
of proof on the person or entity proposing the activity that is potentially harmful to the environment.
• More importantly, the "Precautionary Principle" as enunciated by the judicial innovation, has
been used as a judicial tool to reform the rules of evidence in order to expound the new
concept 'burden of proof’ in environmental matters. Articulating this new insight of the
"Precautionary Principle", the learned Judge observed:
• The principle of precaution involves the anticipation of environmental harm and taking
measures to avoid it or to choose the least environmentally harmful activity.. It is based on
scientific uncertainty. Environmental protection should not only aim at protecting health,
property and economic interest but also protect the environment for its own sake Precautionary
duties must not only be triggered by the suspicion of concrete danger but also by (justified)
concern or risk potential.
• M/s Vijay Nagar Educational Trust v. KSPC Board, Bangalore, AIR 2002 Kant 123.
• In spite of the fact that the Water Act, which is a law 'par excellence', has been in operation for almost three
decades, the condition of water pollution in the country has not improved. On the contrary, it has worsened. The
responsibility for this sorry state of affairs rests, primarily, with the administrative agencies responsible for the
Act's implementation, which have failed to discharge their responsibilities. The Supreme Court, while
expressing its anguish at this callous indifference on the part of the authorities, has observed that but for their
"remiss in the performance of their duties", the higher judiciary would not have taken up the mantle of playing
the over-reacting judicial role for the protection of environment. The Supreme Court has not only been aware of
the fact that the day-to-day enforcement of the environmental laws is not its function but is also conscious of the
fact that it is ill-equipped for that purpose. It may be appreciated that in spite of this awareness and
consciousness, the Supreme Court has undertaken day-to-day enforcement of environmental laws by issuing
various interim orders and directions of different kinds which in normal circumstances would not have been
given without being branded as usurper of the executive and legislative functions. These orders and directions
have been issued primarily to safeguard the fundamental rights of the people.
PUBLIC TRUST DOCTRINE
• Public trust Doctrine was propounded by the Roman Empire 1500 years ago. Roman King
Justinian stated a section that “the air, the water, and the sea are all common to the
public and is entitled to be used by anyone due to the law of nature”.
• After the fall of the Roman empire in 1215, the Magna Carta codified Justinian words.
Thus in England, the King had ownership of the land but he had to take care of the public
trust. In the United Kingdom, it included two rights 1. Just Privatum which means
ownership for private parties, 2. Just Publicum which means ownership held by the king
as a trustee for the public benefit.
• In 1821, the Modern revival of Public trust doctrine took place in the USA in the case of
Arnold vs Mundy and in the landmark case of Illinois Central Railroad v. Illinois where the
court came with a principle that the state cannot hand its trust of resources to private
ownership when the interest of the public is involved.
• Traditionally Public trust doctrine was only limited to protect the rights
like the right to fisheries, hunting, boating, navigation for anchoring or
standing. But in the present scenario, it checks the state action for
management of the resources and it also questions its action. It states
the state as a trustee and the state holds all the resources. It is the
duty of the state to preserve, prevent and protect the resources for the
public use. The state is expected to perform its positive duty.
PUBLIC TRUST DOCTRINE IN INDIA

• The Public trust doctrine in India evolved through landmark

judgements. The court stated that as we follow the Common law
system our constitution includes Public trust doctrine in its
jurisprudence. The court took procedural and substantive rights
seriously and applied this doctrine for the protection of Environment.
The court also referred to various articles of the Indian constitution
such as article 48A which made a way through Article 21 by including
the right to clean environment under the right to life and Article 39
which states proper distribution of the resources.
M C MEHTA V KAMAL NATH, (1997) 1 SCC 388

• The Court took notice of an article which appeared in the Indian Express stating that a private
company "Span Motels Pvt. Ltd.", to which the family of Kamal Nath, a former Minister of
Environment and Forests, had a direct link, had built a motel on the bank of the River Beas on land
leased by the Indian Government in 1981.
• Span Motels had also encroached upon an additional area of land adjoining this leasehold area, and
this area was later leased out to Span Motels when Kamal Nath was Minister in 1994. The motel
used earthmovers and bulldozers to turn the course of the River Beas, create a new channel and
divert the river’s flow. The course of the river was diverted to save the motel from future floods.
• The Supreme Court of India decided that prior approval for the additional leasehold land,
given in 1994, was quashed and the Government was ordered to take over the area and restore
it to its original condition.
• Span Motels was ordered to pay compensation to restore the environment, and the various
constructions on the bank of the River Beas were to be removed and reversed. Span Motels
was also required to show why a pollution fine in addition should not be imposed, pursuant to
the polluter pays principle.
• Regarding the land covered by the 1981 lease, Span Motels was required to construct a
boundary wall around the area covered by this lease, and Span Motels was ordered not to
encroach upon any part of the river basin. In addition, the motel was prohibited from
discharging untreated effluents into the river.
FACTS

• A renowned newspaper called the “Indian Express” had published an article reporting that a private
company called Span Motels Pvt. Ltd. (hereinafter referred to as “Span Motels''), which was also
the owner of Span Resorts, had floated an ambitious project called Span Club. The then Minister of
Environment and Forest, Kamal Nath, had a direct connection with Span Motels. Span Motels had
built a hotel on the bank of the River Beas. This was leased by the Government of India in 1981.
Apart from the main land that was being used for construction of the Motel, Span Motels had also
encroached upon an additional area of land adjoining the leasehold area which was also leased out
to them. The use of earthmovers and bulldozers had devastating effects on a nearby waterbody
called ‘River Beas’. The course of River Beas was disrupted and turned in order to divert its flow
and create a new channel. The course of the river was disrupted as a safeguard to help prevent the
Motel from any future water calamities like the floods.
ISSUES

● Whether it would be right to include Mr. Kamal as a respondent in the petition?

● Whether the Construction Activity carried out by the private company is justified?
CONTENTIONS

• Petitioner – The petitioner incessantly argued that disturbing the ecological balance and disrupting the
natural conditions of certain resources would be viewed as a direct contravention of the fundamental right
guaranteed under Article 21 of the Indian Constitution. This would further lead to the violation of Article
51 a (g) of the Constitution of India.
• Respondent – The Minister of Environment and Forests denied the allegations and contended that he had
wrongly been made a party to the petition. Furthermore, Mr. Kamal Nath also contended that the press
reports were mala fide and were published with an intention of maligning his reputation. One of the
Respondents contended that the course of the river was not changed with mala fide intention and that
measures had been taken to prevent erosion. It was argued that the Divisional Forest Officer gave
permission to Span Motels to conduct the necessary work subject to certain conditions. It was also argued
that the construction was carried out on the land under Span Motel’s possession and surrounding area for
the protection of the said land from floods in the future.
RULE OF LAW

• This ruling was based on the public trust doctrine, under which the Government is the trustee of all
natural resources which are by nature meant for public use and enjoyment. The Court reviewed
public trust cases from the United States and noted that under English common law this doctrine
extended only to traditional uses such as navigation, commerce and fishing, but that the doctrine is
now being extended to all ecologically important lands, including freshwater, wetlands and riparian
forests.
• The Court relied on these cases to rule that the Government committed patent breach of public trust
by leasing this ecologically fragile land to Span Motels when it was purely for commercial uses.
HELD

• The Hon’ble Court rightly quashed the deed of 27.2 bighas (2.22 ha) of forest land leased to Span
Motels by the State Forest Department. Furthermore, a boundary measuring four meters was to be
constructed as a boundary wall beyond which they could not use the property attached to the river
basin. The Hon’ble court gave directions to National Environment Engineering Research Institute
(hereinafter referred to as “NEERI”) to inspect the area to determine the cost that would incur to
reverse the damage caused by the project. Subsequently, by the application of the Polluter Pays
Principle, Span Motels had to pay an amount as compensation. The amount was to be utilised for
restitution of the environmentally deteriorated area. The Supreme Court even barred the Motel from
discharging untreated waste into River Beas.
REASONING

• While delivering the judgement, the court mindfully applied the Doctrine of Public Trust. While applying the Public
Trust Doctrine, the learned Judge of Supreme Court, elucidated upon this ancient Roman legal theory which mandated
for certain general properties or natural resources such as rivers, seashore, forests, and air were to be held by the
government in trusteeship for the free and unimpeded use of the general public.
• As per Roman law, these resources were either res nullis or held by everybody in common. The Hon’ble court did not
hesitate in recognizing that the Doctrine of Public trust, would indeed apply to this case. Elucidating upon the powers of
the court, it was rightly observed that in cases where a law has been made by the Parliament or the State legislature, the
courts could act as an effective instrument in determining the legislative intent. This is possible due to the power of
judicial review as provided under the Constitution of India. The Hon’ble Court observed that the Himachal Pradesh
Government was in breach of the Public Trust Doctrine as such ecologically sensitive land could not be leased to any
private company for encroaching upon and making profits off it. Therefore, the Supreme Court rightly took cognizance
of the fact that the Himachal Pradesh State Government was in breach of public trust by leasing an ecologically fragile
land to the Span Motels.
SUMMARY

• The supreme court held that “the public trust is more like an order for the state to
use the public property for public purposes”. It is the duty of the state to protect
the environment, lakes and public heritage and it can be only abdicated in a rare
case when it is inconsistent with the public trust. The court observed that earth’s
natural resources are the gift of nature; it should be protected and it also stated
that the values and law must adhere to the environment. The court observed that
the Public at large is beneficiary of the earth resources like water, air and wetlands
and as the state is the trustee it is the obligation of the state to protect these
resources and shall not give it to private ownership for the fulfilment of its own
goal.
• The court asked the company to pay compensation for the restoration of the
environment of that area under the polluter pay principle.
INTELLECTUALS FORUM, TIRUPATI V. STATE OF
A.P. AIR 2006 SC 1350
• https://prezi.com/kbqnzkwfvhgp/intellectuals-forum-tirupathi-v-state-of-ap/