The Indian courts have
successfully adopted specific environmental law principles from international
environmental law jurisprudence and have combined a liberal view towards ensuring
social justice and the protection of human rights. These principles have been incorporated
in the Indian environmental jurisprudence and play a key role in decisions of
judges even when not explicitly mentioned in the concerned statute. The
principles of Indian environmental law are resident in the judicial
interpretation of laws and the Constitution, and encompass several internationally
recognized principles, thereby providing some semblance of consistency between
domestic and global environmental standards.
1. Precautionary
Principle:
A new principle for
guiding human activities, to prevent harm to the environment and to human
health, has been emerging during the past 10 years. It is called the
"principle of precautionary
action" or the "precautionary principle" in short. This
principle is controversial and its definition varies in terms of viewpoint.
Environmentalists and consumer advocacy organizations that demand bans and
restrictions on industrial practices or products would want policy-makers to
take no action unless they would do no harm. States and advocates of economic
development argue that the lack of full certainty is not a justification for
preventing an action that might be harmful.
In India, for the
first time in Vellore Citizens Welfare Forum v. Union of India , the
Supreme Court explicitly recognized the precautionary principle. as a principle
of Indian environmental law. In S. Jagannath v Union of India (Shrimp
Culture Case), the Supreme Court Bench headed by Justice Kuldip Singh
required the authority to deal with the situation created by the shrimp
industry and issued remedial directions consistent with the precautionary and
polluter pays principles. In A.P. Pollution Control Board v Prof M.V. Nayudu,
the Court drew out the development of the precautionary principle in clear terms.
In the Narmada
Bachao Andolan v Union of India, the Court explained that:
When there is a state
of uncertainty due to the lack of data or material about the extent of damage
or pollution likely to be caused, then, in order to maintain the ecology
balance, the burden of proof that the said balance will be maintained must necessarily
be on the industry or the unit which is likely to cause pollution.. Refusing to
apply the "precautionary principle" used in cases dealing with
inherently polluting activities such as heavy industries, the Court accepted
the contention of the respondents that the project would have a positive impact
by arresting the ecological degradation presently taking place in the
drought-prone areas of Gujarat and Rajasthan, leading to sustainable agriculture
and spread of green cover. The generation of hydropower would avoid the air pollution
that would otherwise take place by thermal generation.
The movement towards
adopting the precautionary principle has definitely widened the scope of corporate
accountability, but the interpretation taken by the court mitigates the relevance
and incorporation of this principle in Indian Jurisprudence.
2. The .Polluter Pays.
Principle:
The Supreme Court with
the introduction of the principle of absolute liability in M.C Mehta v Union
of India calculates environmental damages not on the basis of a claim
put forward by either party, but through an examination of the situation
by the Court, keeping in mind factors such as the deterrent nature of
the award. . This rule has been endorsed in Indian Council for Enviro-Legal
action v Union of India and Vellore Citizens welfare Forum v Union of
India. However, the Supreme Court held recently that the power under
Article 32 to award damages, or even exemplary damages to compensate
environmental harm, would not extend to the levy of a pollution fine.
3. Sustainable
Development and Inter-generational Equity:
In Narmada Bachao
Andolan v. Union of India43 it was observed that: Sustainable
development means what
type or extent of development can take place, which can be sustained by
nature/ecology with or without mitigation.. Earlier in the Vellore Citizens
Welfare forum v Union of India , the traditional concept that development
and ecology were opposed to each other was rejected and sustainable development
was adopted. In the Taj Trapezium case this principle was accepted and
again it was said that development of industry is essential for the economy of
the country but at the same time the environment and ecosystem has to be
protected.
In State of
Himachal Pradesh v. Ganesh Wood Products, the Supreme Court invalidated forest-based
industry, recognizing the principle of inter-generational equity as being central
to the conservation of forest resources and sustainable development. In the CRZ
Notification case 46 the courts carried forward the concern for
sustainable development by expressing its concern at the adverse ecological
effects, which will have to be borne by future generations.
4. Public Trust
Doctrine:
The Public
Trust Doctrine, evolved in M.C. Mehta v. Kamal Nath, states
that certain common properties
such as rivers,
forests, seashores and
the air were held by
Government in Trusteeship
for the free
and unimpeded use
of the general public. Granting lease to a motel
located at the bank of the River Beas would
interfere with the natural flow of the water and that the State Government
had breached the
public trust doctrine. The Supreme Court enunciated
Professor
Joseph Saxs doctrine
of public trust in this case to further justify and perhaps extract state
initiative to conserve natural resources, held that the state, as a trustee of
all natural resources, was under a legal duty to protect them; and that the
resources were meant for public use and could not be transferred to private
ownership. This doctrine was further reiterated in M.I Builders Pvt Ltd v
Radhey Shyam Sahu.
