HISTORICAL

PERSPECTIVES OF
ENVIRONMENTAL
LAW
 Today, most discussions on environmentalism in our
country begin with the Stockholm Conference (1972).
 But, some ancient texts tell us that our society paid
more attention to protecting the environment than we
can imagine.
 These texts tell us that it was the dharma of each
individual in society to protect Nature, so much so
that people worshipped the objects of Nature. Trees,
water, land and animals had considerable importance
in our ancient texts; and the Manusmriti prescribed
different punishments for causing injury to plants.
 Kautilya is said to have gone a step further and
determined punishments on the basis of the importance
of a particular part of a tree. Some important trees
were even elevated to a divine position
 The dharma of protecting the
environment was to sustain and
ensure progress and welfare of all. The
effort was not just to punish the culprit,
but to balance the eco-system as well.
In this attempt, the ancient texts acted
as cementing factors between the right
to exploit the environment and a duty to
conserve it - which is now
internationally recognized as the
concept of ‘sustainable development’.
 BRITISH ERA

 The British conquest in India brought

about a plunder of natural resources
coupled with a complete indifference
towards environmental protection. A
general survey of early environmental
legislation reveals that apart from the
forest laws, nineteenth century legislation
also partially regulated two other aspects
of Indian environment water pollution and
wildlife. These laws, however, had a narrow
purpose and limited territorial reach. Some
of the early efforts include the enactment
of the Shore Nuisance (Bombay and
Kolaba) Act of 1853 and the Oriental Gas
 The Indian Penal Code, enacted in 1860,
imposed a fine on a person who voluntarily fouls
the water of any public spring or reservoir. In
addition, the Code penalized negligent acts with
poisonous substances that endangered life or
caused injury and proscribed public nuisances.
Laws aimed at controlling air pollution were the
Bengal Smoke Nuisance Act of 1905 and the
Bombay Smoke Nuisance Act of 1912. In the
field of wildlife protection, early legislation was
limited to specific areas and particular species,
thereby aiming at the conservation of
biodiversity.
 It is clear that legislative measures were taken
by the British Government for prevention of
pollution and for conservation of natural
resources. Although critics point out that the
British enacted these legislations, not with the
object of protecting the environment but with
the aim of earning revenue for themselves, it
should be regarded as the first step towards
the scientific conservation of natural resources.
Despite the fact that these measures were
made with ulterior motives, British-enacted
legislations have contributed significantly to
the growth of environmental jurisprudence in
India.
 A MODEST BEGINNING
 Environmental jurisprudence in India made a beginning
in the mid-seventies when Parliament enacted the Water
(Prevention and Control of Pollution) Act, 1974.
 But soon, there was a quantum leap with the amendment
of our Constitution in 1976 and incorporation of Article
48-A in the Directive Principles of State Policy and Article
51-A(g) in the Fundamental Duties of every citizen of
India. Both these Articles unequivocally provide for
protection and improvement of the environment.
 Inevitably, Parliament enacted the Air (Prevention and
Control of Pollution) Act, 1981 and the Environment
(Protection) Act, 1986. With this core group of three
enactments, a modest beginning was made by Parliament.
 Unfortunately, soft laws were enacted (and they continue
to remain so) at a time when strong legislation was
critical for environmental conservation.
INTRODUCTION TO INDIAN
ENVIRONMENTAL LAW
 Development has been gradual
 International law and developments at
the international level have influenced
Indian law
 Legislation
 Judicialdecisions
 Executive decisions
INDIAN ENVIRONMENTAL LAW
 Trigger Events
 Stockholm Conference, 1972
 “Are not poverty and need the greatest polluters?...How can
we speak to those who live in villages and slums about
keeping the oceans, the rivers and the air clean when their
own lives are contaminated at the source?”
 Smt. Indira Gandhi
 Trigger events
 Bhopal gas tragedy
 “Social transformation occurs only when thinking
humanity remains capable of suffering and the
suffering humanity begins to think.”
 Trigger events
 Rio Conference, 1992

INDIAN ENVIRONMENTAL LAW
 Article 253 has been used to enact most of
the legislations in the field of environment
 Air (Prevention and Control of Pollution) Act,
1981
 Environment (Protection) Act, 1986
 Biological Diversity Act, 2002
 National Green Tribunal Act, 2010
PRE STOCKHOLM CONFERENCE SCENARIO

 Protection of environment in early 20th Century

was primarily achieved through litigations filed
under nuisance, negligence and trespass not
only this, Section 133 of Code of Criminal
Procedure and Chapter XIV of Indian Penal
Code is also used in litigations for protecting
environment.
 In Municipal Commissioner of Suburbs of
Calcutta v. Mohammed Ali , In Re Sheikh
Mohidin, In Re Balaji Narayan Chitale ,
Rajkumar v. State Court held that no one is
having a right to corrupt the air. In Pakkle v. P.
Aiyasanis Ganapathi , plaintiff was penalized for
polluting tank water and
 also in Behari Lal v. James MacLean Court in
its landmark judgment first time held that
even a private nuisance from the flour mill
which is run by oil engine could be treated as
a pollution affecting the neighbors.
 Keeping nuisance as a source of remedy,
Courts were certainly protecting
environment, but this protection unlike
today's protection scheme were not under
any environment legislations, it was through
other legislations having clauses pertaining
to the environment.
  
POST STOCKHOLM CONFERENCE SCENARIO

 After Stockholm Conference in 1972

there were significant changes in the
concept of environmental protection in
India. Much important legislation was
enacted to explicitly equip judiciary
with modern tools for dealing with the
serious problem. The Constitution of
India was also amended for the 42nd
time in 1976 to accommodate
provisions pertaining to the
environment. Article 48-A and 51-A
(g) , were added to the Constitution.
 After this conference, for the first time judiciary in its
landmark judgment in Ratlam Municipality v. Vardhichand ,
the Court enforced the duty against the defaulting
authorities for improvement of public health which is the
duty of state. The consciousness of the judiciary was
provoked which was not attracted that much of an attention.
The Supreme Court to this responded with much of anxiety
and raised a certain issue which came in the mandate of the
Constitution. It was observed in this case that:
 ...why drive common people to public interest action? Where
Directive Principles have found statutory expression in Do's
and Don'ts the Court will not sit idly by and allow municipal
government to become a statutory mockery... The dynamics
of the judicial process has a new enforcement dimension not
merely through some of the provisions of the Criminal
Procedure Code but also through tort consciousness...
 ROLE OF JUDICIARY
 Judiciary is playing a major role in the
development of Indian Environmental law.
 Judicial activism
 Indian Council for Enviro-Legal Action v. Union of
India (1996) 5 SCC 281
 “If the mere enactment of the laws relating to
protection of environment was to ensure a clean and
pollution free environment, then India would, perhaps,
be the least polluted country in the world. But this is
not so. 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 has, unfortunately,
not resulted in preventing environmental degradation
which on the contrary, has increased over the years.
 The courts are ill – equipped and it is Not
their function to see day to day
enforcement of law. This is an executive
function which it is bound to discharge ….
The effort of this court while dealing with
PILs relating to environmental issues, is to
see that the executive authorities take
steps for implementation and enforcement
of law.”
GENERAL PRINCIPLES AND
RULES
 Permanent Sovereignty over Natural
Resources
 Precautionary Principle
 Sustainable Development
SOVEREIGNTY OVER NATURAL
RESOURCES
 States’ sovereign right to exploit
natural resources and the duty not to
cause trans boundary environmental
damage
 Principle 21 Stockholm Declaration
 States have, in accordance with the
Charter of the United Nations and the
principles of international law, the
sovereign right to exploit their own
resources pursuant to their own
environmental policies, and the
responsibility to ensure that activities
within their jurisdiction or control do
not cause damage to the environment
of other States or of areas beyond the
limits of national jurisdiction.
 Principle 2 Rio Declaration
 States have, in accordance with the
Charter of the United Nations and the
principles of international law, the
sovereign right to exploit their own
resources pursuant to their own
environmental and developmental
policies, and the responsibility to ensure
that activities within their jurisdiction or
control do not cause damage to the
environment of other States or of areas
beyond the limits of national jurisdiction.
 Centre for PIL v. Union of India (2012)
 At the outset, we consider it proper to observe that
even though there is no universally accepted definition
of natural resources, the same can be understood as
naturally occurring elements which have an intrinsic
utility. 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. As the
State in which a natural resource is located benefits
immensely from this value, natural resources are
considered national assets.
 The ownership regime relating to natural
resources can be ascertained from
international conventions and customary
law, common law and national
constitutions. In international law it
rests upon the concept of sovereignty
and seeks to respect the principle of
permanent sovereignty (of peoples and
nations) over (their) natural resources
as asserted in the 17th Session of the
United Nations General Assembly and then
affirmed as a customary international norm
by the International Court of Justice in the
case opposing the Democratic Republic of
 PRECAUTIONARY PRINCIPLE
 Principle 15 of Rio
 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.
 Vellore Citizen’s Welfare Forum v. Union of
India (1996)
 Environmental measures by the State
Government and the statutory Authorities
must anticipate, prevent and attack the
causes of environmental degradation.
 Where there are threats of serious and
irreversible damage lack of scientific
certainty should not be used as a reason for
postponing, measures to prevent
environmental degradation.
 The “onus of proof" is on the actor or the
developer/industrialist to show that his
action is environmentally benign.
 Narmada Bachao Andolan v. Union of India,
AIR 1999 SC 3345
 It appears to us that the precautionary principle
and the corresponding burden of proof on the
person who wants to change the status quo will
ordinarily apply in a case of polluting or other
project or industry where the extent of damage
likely to be inflicted is not known.
 When there is a state of uncertainty due to lack
of data or material about the extent of damage
or pollution likely to be caused then, in order to
maintain the ecology balance, the burden of
proof that the said balance will be maintained
must necessarily be on the industry or the unit
which is likely to cause pollution
 On the other hand where the effect on ecology
or environment of setting up of an industry is
known, what has to be seen is that if the
environment is likely to suffer, then what
mitigative steps can be taken to off set the same
 Merely because there will be a change is no
reason to presume that there will be ecological
disaster. It is when the effect of the project is
known then the principle of sustainable
development would come into play which will
ensure that mitigative steps are and can be
taken to preserve the ecological balance
 Sustainable development means what type or
extent of development can take place which can
be sustained by nature/ecology with or without
mitigation.
 “In the present case we are not concerned with the polluting
industry which is being established. What is being constructed is
a large dam. The dam is neither a nuclear establishment nor a
polluting industry. The construction of a dam undoubtedly
would result in the change of environment but it will not be
correct to presume that the construction of a large dam like the
Sardar Sarovar will result in ecological disaster. India has an
experience of over 40 years in the construction of dams. The
experience does not show that construction of a large dam is not
cost effective or leads to ecological or environmental
degradation. On the contrary there has been ecological
upgradation with the construction of large dams. What is the
impact on environment with the construction of a dam is well-
known in India and, therefore, the decision in A.P. Pollution
Control Boards case will have no application in the present
case.”
PRECAUTIONARY PRINCIPLE EXECUTIVE
DECISION: BT BRINJAL
 On 10 February 2010, then Environment
Minister Jairam Ramesh imposed an
indefinite moratorium on the commercial
release of brinjal that is genetically-
engineered for resistance to the fruit and
shoot borer, a pest that obliges farmers to
use about 60 sprays during the six-month
life of the crop.
 Jayram Ramesh says his decision was limited
to Bt Brinjal and should not discourage R&D
in modern biotechnology for crop
improvement and enhancement of India’s
food and nutrition security.
 BT BRINJAL
 The Bt brinjal is a suite of transgenic brinjals (also
known as an eggplant or aubergine) created by
inserting a crystal protein gene (Cry1Ac) from the
soil bacterium Bacillus thuringiensis into the
genome of various brinjal cultivars. The insertion of
the gene, along with other genetic elements such as
promoters, terminators and an
antibiotic resistance marker gene into the brinjal
plant is accomplished using Agrobacterium-
mediated genetic transformation. The Bt brinjal has
been developed to give resistance against
lepidopteron insects, in particular the Brinjal Fruit
and Shoot Borer (Leucinodes orbonalis)(FSB).
Mahyco, an Indian seed company based in Jalna,
Maharashtra, has developed the Bt brinjal.
 BT BRINJAL
 The genetically modified brinjal event is termed Event
EE 1 and Mahyco have also applied for approval of two
brinjal hybrids. The Event EE 1 was introgressed by
plant breeding into various local varieties by
University of Agricultural Sciences, Dharwad and
Tamil Nadu Agricultural University, Coimbatore. Some of
the cultivars of brinjal include: Malpur local, Manjari
gota, Kudachi local, Udupi local, 112 GO, and Pabkavi
local.[1] It was approved for commercialization in India in
2009, but - after an apparent public outcry and rounds of
debates in which representatives from Mahyco, the
scientific community, and NGO's spoke on the topic - the
then Indian Environment Minister, Jairam Ramesh,
facilitated a moratorium on its release until further,
unspecified, tests were conducted. Bt brinjal was
approved for commercial release in Bangladesh in 2013.
POLLUTER PAYS PRINCIPLE
 Polluter pays principle
 Cost of pollution should be born by the
person causing pollution
 Doubtful as to whether reached the status
of a customary principle of international
law
 Principle 16 Rio
 Compromise language
 Rio Declaration
 Principle 16
 National authorities should endeavor

to promote the internalization of

environmental costs and the use of
economic instruments, taking into
account the approach that the
polluter should, in principle, bear the
cost of pollution, with due regard to
the public interest and without
distorting international trade and
investment.
 PPP means that the absolute liability for
harm to the environment extends not only
to compensate the victims of pollution but
also the cost of restoring the
environmental degradation. Remediation of
damaged environment is part of the
process of sustainable development and as
such polluter is liable to pay the cost to the
individual sufferers as well as the cost of
reversing the damaged ecology
 Vellore Citizens Welfare Forum v. Union of India,
AIR 1996 SC 2715.
 Indian Council for Enviro – Legal Action v. Union
of India, AIR 1996 SC 1446.
SUSTAINABLE DEVELOPMENT
 Brundtland Report (1987)
 Four recurring themes (Philippe Sands)
 The need to preserve natural resources

for the benefit of future generations

(the principle of inter-generational
equity)
 the aim of exploiting natural resources

in a manner which is ‘sustainable’, or

‘prudent’, or ‘rational’, or ‘wise’, or
‘appropriate’ (the principle of
sustainable use);
SUSTAINABLE DEVELOPMENT
 the ‘equitable’ use of natural resources ,
which implies that use by one state
must take account of the needs of other
states (the principle of equitable use, or
intra-generational equity)
 the need to ensure that environmental

considerations are integrated into

economic and other development plans,
programmes and projects, and that
development needs are taken into
account in applying environmental
objectives (the principle of integration)
SUSTAINABLE DEVELOPMENT
 Gabčíkovo - Nagymaros Dams [Danube
Dam case (1997) Hungary/Slovakia]
 The Court is mindful that, in the field of
environmental protection, vigilance and
prevention are required on account of
the often irreversible character of
damage to the environment and of the
limitations inherent in the very
mechanism of reparation of this type of
damage. Throughout the ages, mankind
has, for economic and other reasons,
constantly interfered with nature. In
the past, this was often done without
consideration of the effects upon the
environment…..
SUSTAINABLE DEVELOPMENT
 Owing to new scientific insights and to a growing
awareness of the risks for mankind - for present
and future generations - of pursuit of such
interventions at an unconsidered and unabated
pace, new norms and standards have been
developed, set forth in a great number of
instruments during the last two decades. Such
new norms have to be taken into consideration,
and such new standards given proper weight, not
only when States contemplate new activities but
also when continuing with activities begun in the
past. This need to reconcile economic
development with protection of the
environment is aptly expressed in the concept
of sustainable development.