INTERNATIONAL ENVIRONMENTAL LAW AND INDIA

International environmental treaties:

 The problems and dangers of environment is a serious international concern- atmospheric

pollution, marine pollution, global warming, ozone depletion etc.
 Such problems have an international dimension in two aspects:
 Pollution generated from within a particular state often has serious impact upon other
countries- such as acid rain/Trail smelter arbitration
 Environmental problems cannot be resolved by states acting individually- requirement
of co-operation between states and international response.
 Due to such issues, the international community has taken an approach to formulate
environmental regimes based on international co-operation.
 The United Nations Conference on the Human Environment, 1972. (Stockholm declaration)
 First world conference to make the environment a major issue.
 For the first time, states came together to identify and address environmental
problems.
 Demonstrated that the world has just one environment.
 Adopted a series of principles- Stockholm Declaration and Action plan for Human
environment.
 Declaration contained 26 principles.
 Action plan contained 109 recommendations.
 Principle 21: “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”- accorded with the
status of jus cogens.
 India has played an active role in international forums in the development of international
environmental law.

Evolution of environmental law in India:

 Prior to independence, there are some legislations which embody environmental concerns as
well as remedial and penalty measures.
 For instance, IPC prescribes punishment to people responsible for causing contaminating of
water at a public spring or reservoir with imprisonment or fines and also penalized negligent
acts with poisonous substances that endangered life or caused injury.
 The Indian Easements Act, 1882 protected riparian owners against unreasonable pollution by
upstream users.
 The Indian Fisheries Act, 1897 penalized the killing of fish by poisoning water and by using
explosives.
 The Indian Forest Act, 1927 granted the government uncontested rights over natural resources,
with state governments authorized to oversee protection of the forests and grant licenses to
lumber contractors.
 A major breakthrough in international environmental law regime started evolving significantly
from 1972 with the United Nations Conference on the Human Environment, otherwise known as
the Stockholm Conference
 This conference also marked a beginning of an important monitoring mechanism in the realm of
international environmental law by calling upon all states to provide country reports.
 The constitution of India, as originally enacted, did not contain any provision for the protection
and preservation of environment.
 After the Stockholm conference, Indira Gandhi government incorporated Article 48-A dealing
with Protection and improvement of environment and safeguarding of forests and wild life and
Artickle 51A(g) dealing with the duty to protect and improve the natural environment including
forests, lakes, rivers and wild life, and to have compassion for living creatures in 1976 through
42nd Amendment Act.
 Furthermore, various entries included in the state list were transferred to the concurrent list,
empowering the Union parliament to legislate on environmental issues such as forests, wildlife,
population control etc
 Through this constitutional sanction, environmental protection became a national concern.
 With this Indian environmental law also evolved- numerous legislations dealing with the
protection of environment was passed which makes direct reference to the 1972 conference-
Such as Water Act, 1974, Air Act 1981, Environment Protection Act 1986 etc.
 The Water Prevention and Control of Pollution Act, 1974 (The Water Act) has been considered as
“India’s pioneer legislation to deal with industrial pollution”.
 There existed some very important provisions in India’s Criminal Procedure Code and the Indian
Penal Code.
 The most widely used provision was the Section 133 of the Criminal Procedure Code.
 This section empowers a District Magistrate or a Sub-divisional Magistrate to stop the
nuisance on receiving the information. There have been instances of many judgments
where these provisions have been used.
 The Ratlam Municipality Case (SC 1980) holds great significance, where the
Court used the provisions of the Criminal Procedure Code due to the fact that
the Water Act do not provide the affected person a right to prosecute violators
of the provisions.
 Another significant factor is that corporate bodies like companies and
corporations can also be held responsible for pollution nuisance under these
provisions
 Since 1972, India is seen to have played a major role in the contribution to international
environmental law debates and enactment and implementation of measures at domestic level.
 The most important development was perhaps the introduction of public interest litigation and
changes in the environmental justice system- considered as the most important contributions
which India has made to international environmental law and jurisprudence.
 It allowed courts to, in addition to interpretation, clarification and adjudication of environmental
law related issues, lay down norms, principles and practices to protect the environment-
leading to names such as “Lords of Green Bench” or “Garbage supervisor”.
 Through PIL several land landmark cases were decided- as Dehradun Lime Stone Quarrying case,
Ganga Water Pollution Case, Delhi Vehicular Pollution Case, Oleum Gas Leak Case, Tehri Dam
Case, Narmada Dam Case, etc.
 International legal experts have been unequivocal in terming the Indian Courts of law as
pioneer, both in terms of laying down new principles of law and also in the application of
innovative methods in the environmental justice delivery system
  Over time, the Indian judiciary has interpreted the Right to Environment as a part of the
fundamental Right to Life. Furthermore, it has read into that the Right to Life includes Right to
live in healthy environment with minimum disturbance of ecological balance.
 It has also suggested that the Right to Life includes the right to defend the human environment
for the present and future generations.
 Unlike other areas of international law, in this field, the Indian judiciary has played all-in-one
role of a legislative, executive and judiciary.

Right to healthy environment:

 The right to healthy environment as a fundamental Right to Life may at one instance, appear to
be impossible in a developing country like India.
 However, the Indian judiciary has read into this and reviewed the fundamental Right to Life to
include different strands of environmental rights.
 Through environmental jurisprudence, India has made an important contribution to
international laws on human rights.
 It should be noted, however, that the expansion of the fundamental right by the Court,
recognizing the Right to Environment as a part of the Right to Life has neither been statutorily
established nor has it been recognized in national environmental policy programmes.
 During the 1980s, India adopted far-reaching legislations and undertook stringent measures for
environmental protection, especially in the aftermath of the Bhopal Gas Tragedy.
 The Government of India established the Ministry of Environment and Forests (MoEF).
 MoEF was more comprehensive and institutionalized, and had a Union Minister and Minister of
State, two political positions answering directly to the Prime Minister.
 Environment Protection Act, 1986, was an umbrella legislation designed to provide a
framework for the Union Government to coordinate the activities of various central and state
authorities established under previous laws, such as the Water Act and Air Act.
 It was also an enabling law, which articulated the essential legislative policy to frame necessary
rules and regulations.
 The Act served to back a vast body of subordinate environmental legislation in India- the
Atomic Energy Act, the Wild Life Protection Act.
 The Indian judiciary has also been proactive and quick enough to underline the importance of the
emerging environmental principles, namely, the Polluter Pays and Precautionary Principle which
have assumed a great significance as part of sustainable development in the recent times with a
growing awareness amongst the common masses for the preservation of environment and
biological diversities.
 Beginning from the State of Himachal Pradesh V. Ganesh Wood Products case in 1995, the
Supreme Court, in a number of cases, has included within the purview of sustainable
development the Polluter Pays Principle and Precautionary Principle.

Incorporation of principles of international law into domestic law by the Supreme court:

 Right to life under Article 21 include right to a decent wholesome environment- Subhash Kumar
v. State of Bihar (1991)
 Polluters pay principle and precautionary principle- Indian council for enviro-legal action v. UoI
(1996), Vellore citizens welfare forum.
 AP pollution control board v. Prof M.V Nayudu (1999)- traced the development of the
precautionary principle which is another new norm of international environmental law.
India’s Contribution to the Important International Environmental Law Principles: Absolute Liability

 Prior to the Bhopal Gas Tragedy, the judiciary used to rely on Section 133 of the Code of
Criminal Procedure and Section 188 of the Indian Penal Code to impugn the liability.
 However, the Bhopal gas leak disaster in 1984 brought to forefront the inadequacy of the
existing legal framework for imparting responsibility especially with regard to the computation
of compensation and criminal liability
 In addition to huge loss of life, the absence of a clear legal framework to bring relief to the
victims was an important wake up-call to India.
 Bhopal Gas Disaster and Its Importance on the International Environmental Law and
Jurisprudence:
 The Union of India enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act of
1985 and took upon itself the right to sue for compensation on behalf of the affected
parties and filed a suit for realization of compensation
 Following the Bhopal Gas Tragedy, India suffered yet another chemical disaster, leakage
of lethal gas from a fertilizer company in New Delhi in 1985 (Oleum gas leak)
 These major accidents led the judiciary to impose stringent liability with regard to any
industry carryings that were hazardous and inherently dangerous
 In view of the importance of clarification of this principle, it is useful to note the opinion
of the former Chief Justice of India P.N. Bhagwati, who while deciding the liability in
Oleum Gas Leak case held that:
 We are of the view that 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 and non-delegable duty to the community to ensure
that no harm results to anyone on account of hazardous or inherently
dangerous nature of the activity which it has undertaken. The enterprise must
be held to be under an obligation to provide that the hazardous or inherently
dangerous activity in which it is engaged 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 and it should
be no answer to the enterprise to say that it had taken all reasonable care and
that the harm occurred without any negligence on its part. Since the persons
harmed on account of the hazardous or inherently dangerous activity carried on
by the enterprise would not be in a position to isolate the process of operation
from the hazardous preparation of substance or any other related element that
caused the harm, the enterprise must be held strictly liable for causing such
harm as a part of the social cost for carrying on the hazardous or inherently
dangerous activity. If the enterprise is permitted to carry on a hazardous or
inherently dangerous activity for its profits, 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. Such hazardous or inherently dangerous
activity for private profit can be tolerated only on condition that the enterprise
engaged in such hazardous or inherently dangerous activity indemnifies all
those who suffer on account of the carrying on of such hazardous or
 inherently dangerous activity regardless of whether it is carried on carefully or
not…. We would therefore hold that where an enterprise is engaged in a
hazardous or inherently dangerous activity and harm results to anyone on
account of an accident in the operation of such hazardous or inherently
dangerous activity resulting for example, in escape of toxic gas, the enterprise is
strictly and absolutely liable to compensate all those who are affected by the
accident and such liability is not subject to any of the exceptions which
operate vis-à-vis the tortious principle of strict liability under the rule in Ryland
v. Fletcher
 Further the Court held that the measure of compensation in the preceding paragraph
must be correlated to the magnitude and capacity of the enterprise so that such
compensation must have a deterrent effect. The larger and more prosperous the
enterprise, greater must be the amount of compensation payable by it for the harm
caused due to an accident in the conduct of the hazardous or inherently dangerous
activity by the enterprise. Summarizing the judgment of Oleum Gas Leak case the
Supreme Court, in its final hearing, held that: (1) any company carrying on hazardous or
inherently dangerous activity for private profit would have to indemnify all who suffer
on account of such activity, (2) such liability would be absolute and no defence of force
majeure or due care etc. would be available to the company and (3) while computing
compensation, prosperity of the company would be taken into account. So, a company
who earns more by creating risk for others would have to bear equally high level of
compensation.

Sustainable development:

 Due to the attention to the unsustainable economic growth, UN established the “Brundtland
Commission” in 1983.
 “Our Common Future” the report of this commission, published in 1987, defined the
term “Sustainable development” as “It is a development that meets the needs of the current
generation without compromising the ability of future generations to meet their own needs”
 In 1992, the concept of Sustainable Development was adopted as a shared global concept
during the United Nations Conference on Environment and Development “Rio Earth Summit”.
 In 2012, when the world came together for the 20th anniversary of the earth Summit at the
United Nations Conference on Sustainable Development or Rio+20 it realised that the concept
of sustainable development has not been taken hold nor implemented.
 Had to choose the idea of goal-based development to help orient the behaviour of
governments, businesses, and civil society in a shared direction- having three pillars, economic
development, social development and environmental protection
 At conference, Member States adopted the document "The Future We Want" in which they
decided, inter alia, to launch a process to develop a set of SDGs.
 In 2015, at the Sustainable Development summit, UNGA adopted 2030 Agenda for Sustainable
Development with 17 SDGs at its core.

Indian judiciary:

 The Indian Judiciary has implied that it has no hesitation in holding that sustainable
development, as a balancing concept between ecology and development.
 The earliest public interest litigation in which the Supreme Court recognized the concept of
sustainable development was State of Himachal Pradesh and others etc. v. Ganesh Wood and
others in 1996.
 The Supreme Court, in this case, for the first time, acknowledged the existence of the concept of
sustainable development.
 It appreciated the report of the World Commission on Environment and Development
constituted by the United Nations publish in 1987 (AKA Brundtland commission Report)
 There has been a growing realization in national governments and multilateral
institutions that it is impossible to separate economic development issues from
environment issues; many forms of development erode the environmental resources
upon which they must be based, and environmental degradation can undermine
economic development. Poverty is a major cause and effect of global environmental
problems. It is therefore futile to attempt to deal with environmental problems without
a broader perspective that encompasses the factors underlying world poverty and
international inequality… Meanwhile, the industry’s most heavily reliant on and polluting
environmental resources are growing most rapidly in the developing world, where there
is both more urgency for growth and less capacity to minimize damaging side effects.
Ecology and economy are becoming ever more interwoven – locally, regionally,
nationally, and globally – into a seamless net of causes and effects… The other great
institutional flaw in coping with environment-development challenges is government’s
failure to make the bodies, whose policy actions degrade the environment, responsible
for ensuring that their policies prevent that degradation.
 The Court for the first time recognized the challenges faced by governments and their duty to
strike a delicate balance economic development with environment protection.
 The court in Vellore Citizens Welfare Forum v. Union of India and others (1996) discuss the
principle of sustainable development and noted that:
 The traditional concept, that development and ecology are opposed to each other, is
no longer acceptable. Sustainable Development is the answer.
 It also laid down the bare minimum parameters to ensure sustainable development
 In Narmada Bachao Andolan v. Union of India and Ors. case, the Court said that sustainable
development means the type or extent of development, which can be sustained by
nature/ecology with or without mitigation. It took an interesting approach towards applicability
of the principle, stating that:
 …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 imitative
steps can be taken to offset 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 imitative steps are and can be taken to preserve the ecological
balance
 In K.M. Chinnappa and T.N. Godavarman Thirumalpad v. Union of India and Ors, the Court
while making observations on the provisions of the 1992 Biological Diversity Convention, noted
that the fundamental requirement for the conservation of biological diversity is the
conservation of ecosystems and natural habitats and the maintenance and recovery of viable
population of species in their natural surroundings.
 In its view, sustainable development is essentially a policy and strategy for
continued economic and social development without any detriment to the
 environment and natural resources on which continued activity and further
development depend.
 The Court emphasized that current citizens owe a duty to future generations
and a bleak tomorrow cannot be countenanced for a bright today.
 Most importantly the Court noted that a duty has been cast upon the
Government to protect the environment under Article 21 of the Constitution
and it highlighted that India has acceded to the Convention on Biological
Diversity and therefore, it ought to implement the same. Substantiating this
position, it stated that:
ᴏ As was observed by this Court in Vishaka and Ors. vs. State of Rajasthan
and Ors., in the absence of any inconsistency between the domestic law
and the international conventions, the rule of judicial construction is
that regard must be had to international convention and norms even in
construing the domestic law. It is, therefore, necessary for the
Government to keep in view the international obligations while
exercising discretionary powers under the Conservation Act, unless
there are compelling reasons to depart from there.
 In Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group and Ors, the Court
discussed in detail the sustainable development and planned development vis-à-vis Article 21
of the Constitution of India. It opined that:
 It is often felt that in the process of encouraging development the environment gets
side-lined. However, with major threats to the environment, such as climate change,
depletion of natural resources, the eutrophication of water systems and biodiversity
and global warming, the need to protect the environment has become a priority. At
the same time it is also necessary to promote development. The harmonization of the
two needs has led to the concept of sustainable development, so much so that it has
become the most significant and focal point of environmental legislation and judicial
decisions relating to the same.
 In Research Foundation for Science Technology and Natural Resource Policy v. Union of India
(uoi) and Ors., the Court clarified the concept of balance under the principle of proportionality
and sustainable development. According the court stated:
 …while applying the concept of sustainable development one has to keep in mind the
principle of proportionality based on the concept of balance. It is an exercise in which
we have to balance the priorities of development on one hand and environmental
protection on the other hand.
 In Andhra Pradesh Pollution Control Board Case, while discussing the concept of sustainable
development, the Court, referring to the Principal 15 of Rio Conference of1992, observed that:
 … If an activity is allowed to go ahead, there may be irreparable damage to the
environment and if it is stopped, there may be irreparable damage to economic
interest. In case of doubt, however, protection of environment would have
precedence over the economic interest…
 The Court, in this case also held that Right to Life is a fundamental right, guaranteed
under Article 21, included within its purview the right to pollution free water and air for
full enjoyment of life. Since mining operations are hazardous in nature, as they impair
ecology and people’s right to natural resources, the Court declared that although
measures for protecting environment could be undertaken without stopping mining
 operations, considering enormous degradation of environment, safer and proper course
needed to be adopted.
 In sum, the Indian judiciary has accepted the concept of sustainable development and has made
it an essential part of Indian environmental jurisprudence; by adopting a balanced approach in
environmental pollution matters and taking into account both economic development and
environment protection concerns.

Precautionary principle and polluter pays principle:

 The Precautionary Principle and polluter pays principle are the most important principles under
the concept of sustainable development.
 The Precautionary Principle was first of all used in the Second North Sea Ministerial Conference
in 1987 with respect to marine pollution but its scope was widened later in many international
documents, like the Vienna Convention for the Protection of Ozone Layer (1985), Montreal
Protocol on Substances That Deplete the Ozone Layer (1987), the Convention on Biological
Diversity (1992), the Framework Convention on Climate Change (1992) and Rio Declaration on
Environment and Development (1992).
 Principle 15 of the Rio Declaration, 1992 declares “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 environmental damage, lack of full scientific
certainty should not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.”
 Thus, the precautionary principle states that if there is a risk of severe damage to humans
and/or the environment, absence of conclusive or definite scientific proof is not a reason for
inaction.
 The precautionary principle concentrates on prevention rather than cure. The principle
embodies the idea of careful planning to avoid risks in the first place, rather than trying to
determine how much risk is acceptable.
 The ‘polluter pays’ principle is the commonly accepted practice that those who produce
pollution should be held responsible for the environment and social cost resulting from such
pollution. The idea is that those who cause pollution should bear the costs of cleaning up and
mitigating its impact rather than passing the burden onto society of future generations.
 This principle was first introduced in Organisation for Economic Co-operation and Development
(OECD) in 1972
 Principle 16 of Rio Declaration: “National authorities should endeavour 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”.

Indian judiciary:

 One can observe that the development of these concepts has been an outcome of judicial
development rather than legislative one.
 The Supreme Court, since the inception of its use in India, has given them a very frequent and
wide application.
 The Principles of Polluter Pays and Precautionary Principle have contributed a lot in
environment protection through judicial interpretations.
 The Polluter Pays Principle was brought out in M.C. Mehta v. Union of India [Oleum Gas Leak
case] for the first time.
  It was used for determining the amount of compensation and fixing the liability of the
polluter in absolute terms.
 The Supreme Court, “such an activity can be tolerated only on the condition that the
enterprise engaged in such hazardous or inherently dangerous activity indemnifies all
those who suffer on account of the carrying on of such hazardous or inherently
dangerous activity regardless of whether it is carried on carefully or not”.
 In Vellore Citizens Welfare Forum v. Union of India and others, (1996) the Court made it clear
that the Precautionary Principle and the Polluter Pays principle are essential features of
sustainable development.
 It accepted that the Precautionary Principle is part of the environmental law of the
country and shifted the burden of proof onto the developer or industrialist.
 It went on to define the Precautionary Principle in the context of the municipal law as:
(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 and irreversible damage, lack of scientific certainty
should not be used as a reason for postponing measures to prevent environmental
degradation, and (iii) the onus of proof is on the actor or the developer/industrialist to
show that his action is environmentally benign.”
 In M. C. Mehta v. Union of India, 1997 case, popularly known as the Taj Trapezium case
 In 1984, M.C. Mehta, a public interest lawyer, and environmentalist visited Taj
Mahal. He saw that the monument’s marble had turned yellow and was pitted as a
result of pollutants from nearby industries. This compelled Mehta to file the petition
before the Supreme Court.
 The Court applied the ‘Precautionary Principle’ as explained by it in Vellore Case and
opined that “The environmental measures must anticipate, prevent and attack the
causes of environmental degradation. The ‘onus of proof’ is on the industry to show
that its operation with the aid of coke/coal is environmentally benign. It is rather,
proved beyond doubt that the emissions generated by the use of coke/coal by the
industries in TTZ are the main polluters of the ambient air”.
 The Court ordered the industries to change-over to the natural gas as an industrial fuel
or stop functioning with the aid of coke/coal in the Taj trapezium and relocate
themselves as per the directions of the Court.
 In this case the Supreme Court has explained the ‘Precautionary Principle’ in the context
of the municipal law as:
 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/industrialization to show
that his action is environmentally benign”.
 The Polluter Pays principle was highlighted by the Court by referring to the matter of Indian
Council for Environ – Legal Action v. Union of India (1996).
 Polluter Pay Principle was first implemented and defined in this case.
 According to this principle, the polluter has to not only compensate the victims of
pollution caused by his activity but also has to pay for the restoration of
environmental degradation.
  The Court held that as the polluters are absolutely liable to compensate for the harm
caused by them to villagers, soil and the underground water in the affected area, they
are bound to take all necessary measures to remove sludge and other pollutants lying
there.
 The Polluter Pays’ principle as interpreted by Court meant that the absolute liability for
harm to the environment extends not only to compensate the victims of pollution but
also to restore 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 to the individual sufferers as well as the cost of reversing the
damaged ecology.
 The Court held that the Precautionary principle and the Polluter Pays principle are part
of the environmental law of the country. Even otherwise, the Court held that, once
these principles are accepted as part of the customary international law there would be
no difficulty in accepting them as part of the domestic law.
 Similar steps were also taken by the Apex Court in the next M.C. Mehta v. Union of India,
wherein the Court reiterated that the precautionary principle and the polluter pays principle
have been accepted as part of the law of the land. The Supreme Court has thus settled that one
who pollutes the environment must pay to reverse the damages caused by his acts. The
landmark decision with regard to these principles is A.P. Pollution Control Board v. Prof. M.V.
Nayadu (Retd.) & Others(1999)
 The Polluter Pays principle demands that the financial costs of preventing or remedying damage
caused by pollution should lie with the undertakings which cause the pollution, or produce the
polluting goods.
 As per this principle, it is not the role of Government to meet the costs involved in either
prevention of such damage, or in carrying out remedial action, because it would shift the
financial burden of the pollution incident to the taxpayer.
 The pollution created as a consequence of development must not exceed the carrying capacity of
ecosystem.
 The Courts in various judgments have developed the basic and essential features of sustainable
development. In order to protect sustainable development, it is necessary to implement and
enforce some of its main components and ingredients such as- Precautionary Principle and
Polluter Pays. One can trace foundation of these ingredients in number of judgments delivered
by the Supreme Court and the High Courts in India after the Rio Conference, 1992.