Editor's Column

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This Blog is written by Prakriti Dadsena | Column Editor

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PREAMBLE

Until recently, people concentrated on the pretense of high-level judicial institutions in the implementation of counterfeit and pollution management measures, as well as the protection of forests, wildlife, and nature. Numerous legal mediations are the result of unwavering efforts in the market entry decision-making process. Furthermore, cooperation between official organizations is unrestricted. Public interest litigation (PIL) has always relied heavily on dealing with environmental issues, and both advocates and detractors share this viewpoint.

The right to life and liberty provided for by Article 21 of our Indian Constitution states: “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” Here, putting accentuation on “Life” some portion of the Article will see that how it has expansive forms to substantiate this right. Life isn’t translated in Article 21 of the Constitution simply the physical demonstration of breathing. It doesn’t hint a minor creature presence. It has substantially more extensive importance which incorporates appropriate to live with human poise, ideal to vocation, ideal to wellbeing, ideal to pollution-free air, and so forth. Right to life is central to our presence without which we can’t live as individuals and incorporates each one of those parts of life, which go to make a man’s life important, finish, and worth living. It is the main article in the Constitution that has gotten the greatest conceivable translation. Subsequently, our life maintains itself through the outside elements additionally alongside natural elements.

Furthermore, the state is required to protect the environment as outlined in Articles 48-A, 39(e), and 47[1] of the Indian Constitution. As a result, in order to address these issues of regular development, the parliament has authorized numerous demonstrations, but the courts are dependable to guard against the proper implementation of these institutions, and the judiciary has undertaken the urgent task of deciphering the law to protect the planet. According to Article 21 of the Convention, this is considered an indistinguishable part of the right to life, and it profoundly seizes our opportunity to consider some different constitutional arrangements. The “right to live in a healthy environment” was significantly improved in the early 20th century when the world began to experience the evil effects of industrialization.

JUDICIAL REMEDIES FOR ENVIRONMENT POLLUTION

The judiciary offers our country two remedies to protect the environment:

1. Tortious Liability

2. Damage

3. Injunction

4. Nuisance

5. Trespass

6. Statutory Liability

7. Section 19 of the Environmental (Protection) Act, 1986[2]

8. Section 133 of Criminal Procedure Code, 1973[3]

9. Section 268 for open irritation, under Indian Penal Code, 1860[4]

TORTIOUS LIABILITY

DAMAGE:

In a recent known case, Shri Ram Gas leaked, unfortunately, Oleum gas leaked, causing significant environmental damage. Delhi residents have also been impacted. The Supreme Court held-

“The quantum of damages awarded must be proportionate to the capacity and magnitude of the polluter to pay.”

However, in the “Bopal Gas Tragedy,” the Supreme Court deviated from this standard. [5]

INJUNCTION:

It is intended primarily to avoid acts that are illegal under the law by the parties and to prevent the offender from making errors in the future in suitable circumstances. Articles 37 to 42 of the Specific Relief Act of 1963 govern this permanent injunction.

NUISANCE:

Nuisance refers to acts that impede or oppose a person’s enjoyment of his land, such as noise, pungent odour, air, and so on.

Private nuisance – land use is an important and unreasonable obstacle.

The general rights of the public are unreasonably interfered with by public annoyance.

This is one of the main liabilities for damages caused by the above-mentioned 3 types of irritation.

TRESPASS:

It refers to items that intentionally or unintentionally interfere with individuals and/or ownership for no legal reason.

The main points can be summarised as deliberate or negligent interference and direct, unnecessary interference.

NEGLIGENCE:

This means that there is no caring behavior normally present by a reasonable and prudent person. For example, if, by the dumping, excess untreated wastewater, the neglective behavior of industry can be held responsible for river pollution.

STRICT LIABILITY:

Judge Blackburn’s rule in the renowned Rylands V Fletcher case is to hold the owner liable for losses caused by his escape if his own cause and target person is to bring and retain anything that can cause or become a brick, and/or escape from the house. He or she shall be held responsible even if they do not carry out the action.

In cases where hazardous material leakage causes environmental damage, the strict liability principle is frequently applied.

DOCTRINES PROPOUNDED BY THE JUDICIARY

DOCTRINE OF SUSTAINABLE DEVELOPMENT:

The World Commission on Environment and Development (W.C.E.D.) first proposed this doctrine in the Brundtland report emphasizes the concept of sustainable development theory, which shows-

 “Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs”[6]

There is therefore a requirement that the courts have to meet when they decide an environmental and industrial case. They have to strive to balance both of them because industries depend on the resources to produce the end products, but the environment cannot be neglected as it is the source of their raw material and other important factors.

Therefore, when determining cases related to the environment and industry, it is necessary for the court to perform it. The balance between the two must be sought since the industry relies on resources to produce the final product, but it cannot ignore the environment, as it is the source of the raw materials and other important factors.

In the case of, Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh–

The Court stressed that these resources are limited and should be conserved and used from one generation to the next. It is necessary to preserve the concept of finite resources, such as fossil fuels and others, and not endless.

In the case of, Vellore Citizen’s Welfare Forum V. Union of India–

Sustainable development is believed by the Supreme Court as a powerful mechanism and measures to remove poverty and pollution if selected while allowing industry and the environment to live together.

Sulfur dioxide was formed in the famous Taj Trapezium case, when it came into contact with water. As a result of the pollutants emitted by industry, the marble of the Taj Mahal turns yellow at an unfavorable rate, deteriorating the marble.

As an ultimatum, the court ordered the refinery to shut down or use natural gas. As a result, follow the principle of sustainable development.

The court found that the textile firm is in charge of the discharge of waste into wastewater bodies and cause diseases in Abhilasha Textiles V. Rajkot Municipal Corporation, which allows the sector to close or set up waste treatment facilities.

PUBLIC TRUST DOCTRINE

The theory simply states that many people’s resources are of great interest and importance to them. These resources or land, for example, cannot be held as private property.

In the case of, M.C. Mehta v. Kamal Nath and Others–

The court’s discussion of the principle of public trust in this judgment is part of the country’s laws.

The doctrine of public trust was upheld in the Bangalore Medical Trust V. B.S Mudappa case because the Bangalore Development Authority allocated state-approved open space. Bangalore obtained permission from the local medical trust to open a hospital. The court ruled that the public property had been transferred to a private trust.

THE PRECAUTIONARY PRINCIPLE

The Supreme Court proposed the concept of this principle because-

1. The environmental measures formulated must be foreseen to prevent the termination of the causes of environmental degradation and imbalance.

2. The party who filed the lawsuit bears the burden of proof.

3. The implementation of the measurement framework cannot be deferred or delayed by the lack of scientific certainty.

POLLUTER PAYS PRINCIPLE

“If anyone intentionally spoils the water of another … let him not only pay damages, but purify the stream or cistern which contains the water…” – Plato

This principle is one of the main elements polluters have to pay for environmental protection. This money is used to repair the damage caused by the parties and the environment. It concerns a redress method that aims to compensate for damage to the environment. It is based on environmental international law.

In the case of, Vellore Citizen’s Welfare Forum v. Union of India[7]–

The polluter pays principle, as stated by the court, is an important feature of the theory of sustainable development.

DOCTRINE OF ABSOLUTE LIABILITY

Union Carbide Corporation v. Union of India–

In this case, the court ruled that if the effort included a typical hazard or dangerous behavior, and caused damage to anyone as a result of the disaster of such dangerous or normal dangerous development activities (for example, the escape of harmful gases), The joint venture will be fully and fully committed to compensating everyone who has been affected by the disaster, and will not assume any e The Supreme Court, without exception, proposed another model of absolute liability in response to a need.

CONSTITUTIONAL PROVISIONS FOR PROTECTION OF ENVIRONMENT

Not all constitutions worldwide contain explicit provisions on environmental protection necessity and obligation. National policies’ guiding principles and basic responsibilities obligate the country to protect and improve the entire environment. It also takes into account the environment.

For the first time, India was hopeful for its flora and fauna thanks to the 42nd amendment to the Constitution, because India’s vast population trampled on the flora and fauna, and the responsibility for environmental protection was imposed on the states

A three-day national seminar on “Environmental Protection Law” was held at the Faculty of Law at the University of Punjab and Chandigarh.

It claimed:

(i) A person has a fundamental right to reside in an environment that is pollution-free

(ii) Fundamental duty of every individual and citizen to maintain and keep the environment clean and hygienic.

Following the preceding meeting, the Stockholm meeting played a significant role in the 1972 Wildlife Act. The “Water Law” of 1974 and the “Aviation Law” of 1981 have both been codified and promulgated. The National Environmental Planning and Coordination Committee was also established by the government.

The cleaning of the Ganges and the Yamuna Rivers are also part of other government plans. Rajiv Gandhi then created the Ganges River Pollution Prevention and Control CGA. The Environmental Law was subsequently enacted.

ENVIRONMENTAL EDUCATION IN UNIVERSITIES

The Supreme Court[8] ordered the UGC to provide “people and the environment” legal courses. In accordance with this order, the UGC issued an announcement and opened an “environmental education” course.

Objectives of the step:

1) Make sanitation facilities available to young people.

2) Domestic garbage disposal procedures.

3) Basic knowledge of animals and plants, as well as how they affect humans and vice versa.

4) Reduce noise pollution—the use of speakers is prohibited and will not cause any inconvenience.

5) Reduce air pollution by using pollution and low carbon emissions—smokeless cooking.

6) Prevent deforestation-greening is done to prevent soil erosion caused by excessive tree felling and water pollution.

7) Use available resources and control the population in a reasonable manner.

8) Causes of rapid population growth.

ARTICLE 19(1) (G)

Khoday Distilleries Ltd v. State of Karnataka– Article 19(1) (g)

The court ruled that the rights granted to people under Article 19(1)(g) are unquestionably limited. The provisions of Article 304 impose such restrictions on the given rights in Article 19, paragraph 6, Article 47, Article 302, and Article 303. Until existing laws and laws governing national monopolies are protected, the provisions of Article 305 shall apply.

This means in essence that the rights conferred by the Constitution are not absolute and are subject to some restrictions.

ARTICLE 21

The pollution problem heard by the court in the case of Municipality v. Vardicharan was caused by private enterprises and poor town planning. The court ruled indefinitely that people under the age of 21 have a right to a pollution-free environment.

Subhash Kumar v. State of Bihar, in accordance with Article 21, maintains the right to an environment free of pollution, including water and air. This provided the basis for litigations and litigation in the environmental public interest in India as it helps under the heading of Article 21, an environment free of pollution is consolidated.

The pollution of quarries has seriously damaged the environment and harmed livelihood and, according to Kendra v. State of UP. It was decided by the Supreme Court that such pollution should be banned because it infringes Article 21 and the rights to life and a healthy environment for individuals. This is the root cause of the action by the Supreme Court because, as part of the right to life and to individual liberty enshrined in Article 21 of the Constitution, the Court has first acknowledged the right to healthy environments.

In the case of Consumer Education and Research Center v. Union of India, the distinguished Supreme Court cited the Kanpur Tanneries case, pointing out that the right to life provided for in Article 21 includes the right to a clean and healthy environment.

The distinguished Supreme Court ruled in Tirupur Dyeing Factory Owners Association v. Noyyal River Ayacutdars Protection Association case that it is the responsibility of the state government to ensure the cleanliness and sanitation of its river. As a result, Article 21 specifies the conditions for the Noyyal River to be pollution-free.

The Committee of Women committed suicide, shouting since she could not hear a loudspeaker in the vicinity. Under article 21, the right to a quiet environment without noise. The court prohibits the use of firecrackers by private speakers in weddings and other special occasions.

REFERENCES

[1] Duty of the State to raise the level of nutrition and the standard of living and to improve public health The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health

[2] Section 19- Cognizance of offenses. —No court shall take cognizance of any offense under this Act except on a complaint made by—

(a) the Central Government or any authority or officer authorized on this behalf by that Government; or

(b) Any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offense and of his intention to make a complaint, to the Central Government or the authority or officer authorized as aforesaid.

[3] Section 133- Conditional order for removal of the nuisance.

[4] Section 268- Public nuisance.—A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger, or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage.

[5] ROLE OF THE SUPREME COURT IN THE PROTECTION OF THE ENVIRONMENT, See, <urisonline.in/2010/…/role-of-supreme-court-in-environment-protection.>

[6] S .Shanthakumar, Environmental Law An Introduction, pp. 122, 123, Chennai: Surya Publication,

(2001).

[7] AIR 1996 SCC 212.

[8] (writ petition (Civil) No. 860 of 1991)