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Evolution of Environmental Policy and Law in India

Saumya Umashankar

Abstract The paper examines the evolution of environmental


policy and law in India and the dominant influences that defined the
course of policy. It identifies four distinct phases the colonial and
immediate post-colonial phase, the second phase commencing from
the UN Conference on Human Environment in 1972, the Bhopal Gas
leak disaster marking the milestone for the third phase and judicial
activism extending over two decades as the fourth phase. In the
initial colonial and post-colonial phase, environment policy was
centered around State rights over forests and usage of forest produce.
The dominant themes were revenue accretion and usage of forest
products to fulfil development needs specifically in the spread of the
railways and communication network. The post-colonial phase
immediately after Independence in 1947 did not see a significant
shift from the colonial period. The UN Conference on Human
Environment in 1972 marked a significant milestone that changed the
course of environment policy forever. The presence and participation
of the Prime Minister of India in the Conference deliberations
brought an immediate response in Governments focus towards
conservation actions. The period from 1972 to 1980 saw a large
number of legislations being enacted. The Bhopal Gas Leak Disaster
was a defining movement in Indias environmental history. The
inadequacy of the governance structure in prevention of the disaster,
the inability of legal and administrative processes to deliver adequate
compensation to the affected people and stirring of public
consciousness about the threats posed by environmental negligence
came together to reshape environmental policy. A chemical leak
incident in the national capital shortly after the Bhopal disaster and
the death of a practising advocate in the incident became the trigger
for judicial involvement in environmental matters. The source of
policy developments in environment decisively shifted from an
elected political executive to an unelected judiciary. International
debates on climate change in recent years and commitments to
abatement measures appeared only at the fringes of policy
discussions. The paper narrates the progression of environment
policy and law in India in each of these phases.

Keywords Environmental Policy and Law, Forestry policy,


Bhopal Gas Leak tragedy, Judicial Activism in environmental
matters, Supreme Court of India.

I.

INTRODUCTION

India is a large country with a high population density. It is


a developing country, with comparatively low per capita
incomes and a recent legacy of colonial rule. It is a strong,
vibrant, multi-party democracy with an independent judiciary
and open media. The conflict between conservation of the
environment and socio-economic growth has been much
debated and discussed.

It is generally postulated that a thrust for preservation of


the environment imposes costs that a developing country is
unwilling to bear. The Environmental Kuznets Curve (EKC)
framework postulates an inverted U-shaped relationship
between environmental pollution and per capita income [1]. It
argues that the inverted U-relationship is a combination of
three factors the scale effect which suggests an increase in
pollution when an economy grows, the composition effect
referring to structural changes in the economy consequent to
growth over years and its long-term environmental effects and
the technology effect which posits a reduction in emission due
to technological advances from long-term growth. The EKC
frameworks assumption is that poorer nations are less willing
to channel resources to promote a cleaner environment. Public
discourse in a developing country would value economic
growth and employment over the environment. Democratic
institutions reflecting the public discourse would, therefore,
subordinate environmental conservation at the altar of
economic progress.
Environmental policy of a country is also determined by
international actors either through trade conditions pushed
by public pressure of the trading partner or through
international covenants. Though the international community
has not arrived at a consensus on binding instrument setting
out rights and duties on environmental matters as in the case
of human rights and trade, moral obligations of nations arrived
at in international summits have been an influence in
determining the course of domestic environmental policy.
The UN Conference on Human Environment in 1972, the
Montreal Protocol on Substances that Deplete the Ozone layer
in 1987, the Rio Earth Summit in 1992, the Kyoto Protocol on
Climate Change in 1997 and the Bali Roadmap to the UN
Framework on Climate Change in 2007 have been important
milestones in the evolution of international environmental
policy. Their stimulus in defining national policy trends needs
to be evaluated
Environmental disasters have had a role to play in
awakening the national consciousness on the need for a green
policy. The Bhopal Gas Leak tragedy in 1984, the Chernobyl
nuclear accident in 1986, the Exxon Valdez oil spill in 1989
and the Deepwater Horizon oil spill in 2010 are prominent
instances than come to mind.
The paper attempts to study the evolution of environmental
policy and law and understand the dominant influences that
have defined the course of policy-making. It identifies four
distinct phases along the path the colonial and immediate
post-colonial phase, the second phase commencing from the
UN Conference on Human Environment in 1972, the Bhopal

Electronic copy available at: http://ssrn.com/abstract=2508852

Gas Leak disaster marking the milestone for the third phase
and judicial activism extending over two decades marking the
fourth phase. The paper narrates the progression of
environment policy and law in India in each of these phases
and the dominant influences in each phase peoples
movements, environmental disasters, international covenants
and judicial interventions.
II.

FOREST POLICY IN COLONIAL INDIA

In early colonial times, forests where viewed as assets


under State ownership. The commercial potential of timber
and other forest produce drew the interest of the colonial
administrators. Forest policies were driven by wood
requirements to meet the expansion needs of the railways and
telegraph [2]. The arrival of Dietrich Brandis represents a
landmark in Indian forest and environment policy. Mr.
Brandis was appointed as Superintendent of Pegu Forests in
1856. At that time, Burma was the focal point supply of teak
and timber. Mr. Brandis work in reducing resistance to State
ownership of forest areas in Pegu (Burma) and establishing
conservancies for managed teak farm areas, earned him an
appointment as the first Inspector General of Forests in British
India in 1864. He pioneered the first environment-related
legislation in India, the Forest Act of 1865. The Forest Act
consolidated the power of the State to acquire exclusive
control over designated forest areas. Any land covered by
trees could be notified as a Government forest establishing
the property right of the State and granting it power to control
ingress and egress. However, the State was required to pay
heed to customary usage rights of local people prior to
notification. The forest administration obtained legal sanction
to manage forest areas. The lack of capacity of local people in
articulation of their customary rights ensured that the
provision remained on paper. The Forest Act of 1878 rewrote
the provisions of the earlier legislation by consolidating the
power of the State over forest land. The Act classified forests
into reserved forests and protected forests. Protected
forests were left to the absolute control of the forest
administration whereas in reserved forests, local communities
were granted limited usufruct access as concessions by the
State. The State could commercially exploit resources in
reserved forests. The opposition from private owners of
timber plantations, principally in Madras Presidency, led to a
re-writing of the law and the passage of the Madras Forest Act
of 1882 which recognised private forests and vested property
rights over the forests with owners of forest plantations.
The Forest Policy of 1894, the first policy initiative, drew
its inspiration from a monogram of Dr Voelcker on the
Improvement of Indian Agriculture which had a special
chapter on forestry [2]. The objective of the policy
emphasised maximisation of revenue from commercial forests
and laid the framework for administration of forests for
States benefit. The Policy categorized forests as preservation
forests, commercial forests, minor forests and pasturelands
[3]. Preservation forests included those forests which were
essential for environmental purposes; commercial forests were

earmarked for exploitation for timber and other forest


products. Pasture lands satisfied the needs of local people for
fuel wood, small timber and fodder, essential to keep local
communities from foraying into commercial forests. The
privileges of local communities living in the proximity of
forests were restricted on grounds of ostensible public benefit.
The Indian Forest Act of 1927 replaced the earlier 1878
Act. By that time, Indianisation of forest administration had
gathered strength. The implementation of the MontagueChelmsford reforms by the British Government in 1921
placed the subject of forests under the nominal control of
elected legislatures in provinces. The Act of 1927 continued
with all the major provisions, extending it to levies on timber
[3]. The preamble of the Act stated that it sought to
consolidate the law relating to the transit of forest produce and
the duty leviable on timber and other forest produce. There
was a clear and continued emphasis on the revenue-yielding
aspect of forests

III.

FOREST POLICY IN POST-COLONIAL INDIA


(1947-1972)

The environmental agenda in the immediate post-colonial


phase continued to centre on forestry. The National Forest
Policy of 1952 continued with the framework of the 1894
Policy but recalibrated the use of commercial forests for
meeting paramount national developmental needs defence,
communications and industry [4]. Revenue maximisation
became subordinate to development requirements. The Policy
classified forests into protected forests where no activity was
permitted, national forests for meeting development needs,
village forests and tree lands. Independent India laid great
emphasis on plantation of trees by citizens. The Vana
Mahotsava (Tree Festival) programme, started in 1948, was
built into the Policy of 1952. Tree lands were specified areas
where fast-growing tree plantations were encouraged to meet
local fuel needs, making available to cultivators a suitable
fuel in place of cow-dung now burnt for fuel and thus help
release the latter for its utilisation as manure for increasing
agricultural production [2]. These tree lands were outside the
scope of forest management. The Policy sanctified land
designated as forests. According to the policy, the rights and
interests of future generations should not be subordinated to
the imprudence of the present generation. Indiscriminate
extension of agriculture and consequent destruction of forests
has not only deprived the local population of fuel and timber
but has also stripped the land of its natural defences against
erosion. Therefore, the Policy of 1952 advocated
complementary land use under which each type of land was
set aside for use in which it would produce the most and
deteriorate the least. Although the Policy emphasised the
checking of river erosion and denudation of mountains
amongst its objectives, these were not acted upon in any
significant measure. Nation building through investment in
industrialisation, agriculture and infrastructure occupied

Electronic copy available at: http://ssrn.com/abstract=2508852

centre-stage and environment conservation through forest


preservation were at the fringes of attention.
III.

ENVIRONMENTAL POLICY: STOCKHOLM AND


THE FLURRY OF LAWS (1972-1980s)

The United Nations Conference on Human Environment


marked a milestone in the evolution of environmental policymaking in India. The Indian Prime Minister, Mrs. Indira
Gandhi, was the only head of Government to address the
Conference in Stockholm other than the Swedish Prime
Minister1. The Conference proclaimed that underdevelopment in developing countries was the source of
environmental problems and laid out 26 principles calling
upon Governments and peoples to exert common efforts for
the preservation and improvement of the human environment,
for the benefit of all the people and for their posterity [5].
The Government of India embraced the declaratory principles
of the UN Conference whole-heartedly and refashioned
environmental policy through a flurry of legislative and
administrative activity. The Wildlife (Protection) Act passed
by Parliament in September, 19722, was the first in a series of
such legislations. The Act was notable in that Parliament
exercised its over-riding powers under the Constitution to
legislate on a subject assigned to the States. The Act continues
to form the cornerstone for wildlife conservation efforts.
Hunting or destruction of species described in the Schedule to
the Act was outlawed. A licensing procedure for game hunting
of permitted species was set out. Mechanism for declaration of
sanctuaries and National Parks for protection of wildlife living
in the designated areas was specified with elaborate
machinery for enforcement [8].
The first census of the tiger population was conducted in
1972. The tiger population was estimated at an alarmingly low
number of 18273. The Wildlife (Protection) Act notified in
1972 had defined the tiger as a protected wildlife species. The
data on tiger population estimates raised alarm bells and a
tiger task force was constituted. Project Tiger was born out of
the recommendations of the Task Force [9]. Nine tiger
reserves were established to protect the natural habitat of the
tiger. Thus the age of species conservation struck root in
India.
The next in the succession of legislative action was the
enactment of the Water (Prevention and Control of Pollution)
Act in 19744. This legislation too was enacted by the
1

United Nations Conference on the Human Environment retrieved from


http://en.wikipedia.org/wiki/United_Nations_Conference_on_the_Human_En
vironment on April 19, 2014.
2

The Wildlife Protection Act, 1972, retrieved from


http://indiacode.nic.in/fullact1.asp?tfnm=197253 on April 20, 2014.
3

The Tiger in India, National Tiger Conservation Authority, retrieved from


http://envfor.nic.in/downloads/public-information/NTCA-booklet.pdf on June
14, 2014.

appropriation of States law-making powers on the subject of


water by Parliament. Pollution of water bodies and discharge
of untreated industrial effluent was sought to be prevented
through the law. The Act was comprehensive in its coverage
of water bodies to include rivers, streams, sea, tidal water,
wells and inland water bodies whether natural or artificial.
The Central Pollution Control Board was created along with
State Boards for granting permissions and enforcement. No
industry, operation or process and no treatment and disposal
of effluent or sewage could be established without obtaining a
consent order from the concerned Board. The Board was
empowered to set standards for desirable levels of discharge
and specify conditions for release of effluents. The Board
could take recourse to emergency powers where, due to an
accident or unforeseen act or for any other reason, noxious
substances were found to have been released into water
bodies. Preventive powers were also available in case of
apprehension of pollution [7].
The flurry of action did not leave the Constitution
untouched. The Constitution was amended through the 42 nd
Amendment in 19765 introducing Article 48A in the Directive
Principles of State Policy, stating that the protection and
improvement of the environment and safeguarding forests and
wildlife would be a guiding principle fundamental in the
governance of the country. Although the Constitution
specifically forbade the enforceability of the Directive
Principles by any court, Article 48A was read into the right to
life guaranteed under Article 21 as a fundamental right of
every citizen by the Courts, laying the ground for judicial
activism in environment matters in later years. The
Amendment transferred the subject of forests and the
protection of wild animals and birds from the legislative
jurisdiction of State Legislatures to the Concurrent List,
granting Parliament concurrent powers to enact laws on these
subjects. The 42nd Amendment also incorporated Article 51A
in the chapter on Fundamental Duties, requiring every citizen
to protect and improve the natural environment. The 42nd
Amendment effectively shifted the locus of administrative
action towards the Union, making the States subordinate to the
Union in the field of environment conservation.
The first truly people-led environmental conservation
movement, Chipko (literally hugging in Hindi), came to
attention in 1973 when a group of women in Mandal village,
in the hilly tracts of Northern India, embraced trees to prevent
loggers from cutting them. In 1974, an especially notable
confrontation occurred in Reni, where a womens group
placed themselves between the trees and an army of
lumberjacks, singing ballads of tree protection and
environmental conservation [10]. The non-violent method
adopted by village women caught the imagination of people
across the country and outside. Over the decade, several such
confrontations received attention, spurring peoples
involvement in preservation of the environment.

The Water (Prevention and Control of Pollution) Act, 1974, retrieved from
http://indiacode.nic.in/fullact1.asp?tfnm=197406 on April 20, 2014.

http://indiacode.nic.in/coiweb/amend/amend42.htm

The return of the government led by Mrs Indira Gandhi in


the general elections of 1979 brought the environment back
into focus [11]. Inspired by the Chipko movement, Mrs
Gandhi constituted a committee in January 1980, headed by
Narayan Dutt Tiwari, who came from the same hilly tracts and
who had served as the Chief Minister of Uttar Pradesh, to
review existing environmental laws and recommend suitable
administrative machinery for environmental protection. The
Tiwari Committee recommended the creation of a Department
of Environment in the Union Government and a relook at
some of the existing laws. Later that year, Parliament passed
the Forest (Conservation) Act6 tightening the control of the
Central Government over reserved forests by expressly
prohibiting the States from de-reservation of notified reserved
forests without the prior approval of the Central Government.
The Act passed after the constitutional amendment in 1976,
transferring the subject of forests from the State List in the 7 th
Schedule to the Concurrent List, effectively limited the power
of the States over reserved forests [6]. (The Supreme Court
later in the late 1990s, was to capture this power through
judicial pronouncements denuding the Central Government of
these powers).
The Air (Prevention and Control of Pollution) Act, 1981,
was the next piece of legislation to emerge. The Air Act
referred to the agenda of the UN Conference in Stockholm in
its preamble and expressed the necessity to implement the
decisions taken at the Conference in so far as they relate to
the preservation of the quality of air and control of air
pollution [11]. The Act defined air pollutant to mean any
solid, liquid or gaseous substance, including noise present in
concentrations sufficient to be injurious to human health as
wide a definition as could be required to deal with any
eventuality7. The Pollution Control Boards were vested with
the same powers under the Air Act for prevention, control and
enforcement of mitigation measures for air pollution as was
rendered to them under the Water Act in relation to water
pollution.
The phase of legislative hyperactivity but administrative
incapacity was woefully exposed by the greatest industrial
disaster to confront the world in recent times - the Bhopal Gas
tragedy.
IV.

THE BHOPAL GAS LEAK TRAGEDY AND


POLICY RESPONSES (1983-1991)

In the early hours of December 3, 1984, poisonous methyl


isocyanate gas from the Bhopal plant of Union Carbide India
Limited (UCIL) was released into the atmosphere. Thousands
of people residing in the vicinity of the plant were caught
unawares. No alarm was sounded and by the time morning
arose, the effects of the gas release became visible. Over the

next few days, the death count arose sharply reaching 4000. It
was estimated that over 500,000 people had been exposed to
the gas with the health of over 35,000 people being affected in
the medium and long-term [12]. The incident completely
changed the course of public response to environmental
issues.
The public clamour from the Bhopal Gas tragedy forced
policy action from Government. The Environment
(Protection) Act, 19868, was passed by Parliament with
extraordinary rapidity with the time duration between the
introduction of the Bill in Parliament to its passage by both
Houses of Parliament and its assent by the President spanning
just 16 days9. This Act invoked the provisions of the
Constitution, enabling Parliament to legislate for
implementing a decision taken at an international conference
with reference to the deliberations at the UN Conference in
Stockholm, thereby resolving the intricate issue of legislative
jurisdiction. The statement of objects and reasons of the Act
expressed concern about decline in environmental quality,
increasing pollution, loss of vegetative cover and biological
diversity, excessive concentration of harmful chemicals in
ambient atmosphere, growing risks of environmental
accidents and threats of life systems [8]. The Act defined
environment comprehensively to include water, air and land
and the inter-relationship which exists along and between
water, air, land and human beings, other living creatures,
plants, micro-organisms and property. The Environment
(Protection) Act gave extensive powers to the Central
Government, arrogating to it the power to set environmental
standards, granting environmental clearances for all kinds of
industries and activities, laying down safeguards for
prevention of accidents and notifying enforcement authorities.
The States role in environment policy was greatly
diminished, though the State Pollution Control Boards
continued to remain the notified enforcement authorities by
virtue of subordinate legislation under the Act. The
Environment (Protection) Act, along with the Water Act and
the Air Act, constituted the triad of laws that regulated
environmental pollution and abatement measures.
Two other legislations emerged from the ashes of the
Bhopal Gas tragedy the Bhopal Gas Leak Disaster
(Processing of Claims) Act, 198510, and the Public Liability
Insurance Act, 199111. The first legislation empowered the
Central Government as the sole representative of all victims in
all legal matters with the Union Carbide on compensation to
victims [8]. The compensation claims were first filed in the
8

The Environment (Protection) Act, 1986, retrieved from


http://envfor.nic.in/legis/env/env1.html on July 5, 2014.
9

From the website of the Lok Sabha


http://164.100.47.4/newlsbios_search/NewAdvsearch.aspx seen on July 5,
2014.
10

The Forest (Conservation) Act, 1980, retrieved from


http://indiacode.nic.in/fullact1.asp?tfnm=198069 on April 20, 2014.

The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, from
http://indiacode.nic.in/fullact1.asp?tfnm=198521 on July 5, 2014.
11

The Air (Prevention and Control of Pollution) Act, 1981 retrieved from
http://envfor.nic.in/legis/air/air1.html on April 20, 2014.

The Public Liability Insurance Act, 1991, retrieved from


http://indiacode.nic.in/fullact1.asp?tfnm=199106 on July 5, 2014.

U.S Federal Court which ruled that India and not U.S was the
appropriate forum for pursuit of compensation litigation. In
May 1986, Judge Keenan directed Union Carbide to offer an
interim relief of $5-10 million as a matter of fundamental
human decency [13]. The Bhopal District Court on
December 17, 1987 awarded an interim compensation of Rs
3.5 billion. On appeal, the Madhya Pradesh High Court
reduced the interim compensation to Rs 2.5 billion. The
Supreme Court gave a full and final compensation of U.S
$470 million (Rs 705 million at the prevailing exchange rates)
of all claims, rights and liabilities as just, equitable and
reasonable settlement[13]. The judgment drew adverse
comparison with the Exxon Valdez oil spill where Exxon
offered a voluntary settlement of $300 million and spent over
$2 billion in clean-up efforts in removing the oil from the
water and adjacent shores12. Learning from the experience of
continuously stalling release of immediate compensatory
relief to victims of a disaster through litigation, the Public
Liability Insurance Act, enacted in 1991, aimed to provide
for mandatory public liability insurance for installations
handling hazardous substances to provide minimum relief to
victims [8]. The liability was no fault, not requiring
negligence or wrongful action to be proved and did not
indemnify the installation from punitive claims for damages.
The National Forest Policy of 1988 stressed environmental
stability and maintenance of ecological balance. It differed
from the earlier policies by placing economic benefits of
forests and subordinate to its environmental value [4]. The
customary rights of local populace to minor forest produce
were recognised. The policy protected the first claim of local
communities to fuel wood, fodder and other produce of
forests. It promoted the organisation of local inhabitants of
forests for protection, development and management of
forests. The Policy of 1988 brought in a community approach
to forestry rights.

IV.

THE ERA OF
ENVIRONMENT.

JUDICIAL

A. Public Interest Litigation:


Environmental Policy

ACTIVISM

Tool

for

IN

defining

During the Emergency years (1975-77), civil liberties


guaranteed by the Constitution were suspended. The
acquiescence of the Supreme Court of India to suspension of
civil liberties including the right to life (ADM Jabalpur v/s
Shiv Kant Shukla -AIR 1976 SC 120713) led to a Newtonian

reaction once the Emergency was lifted. Post-Emergency, the


Supreme Court entered a new phase of assertion as the
protector of civil liberties and defender of fundamental rights
enshrined in the Constitution.
Justice P.N Bhagwati, a leading judge of the Supreme
Court and one of the earliest proponents of public interest
litigation defined it in Peoples Union of Democratic Rights
v/s Union of India (AIR 1982 SC 1473)14:
We wish to point out with all the emphasis at our
command that public interest litigation which is a
strategic arm of the legal aid movement and which is
intended to bring justice within the reach of the poor
masses, who constitute the low visibility area of
humanity is a totally different kind of litigation from
the ordinary traditional litigation which is essentially
of an adversarial character where there is a dispute
between two litigating parties, one making claim or
seeking relief against the other and that other
opposing such claim or resisting such relief. Public
interest litigation is brought before the Court not for
the purpose of enforcing the rights of one individual
against another as happens in the case of ordinary
litigation, but is intended to promote and vindicate
public interest which demands that violations of
constitutional or legal rights of large number of
people who are poor, ignorant or in a socially or
economically disadvantaged position should not go
unnoticed and unredressed.
The instrument of PIL became the tool for judicial
activism in the environmental field. The Bhopal Gas tragedy
had shocked the nation bringing alive the potential threat to
life due to unsafe manufacturing practices. Soon after, there
was an incident of oleum gas leakage from an industry in the
national capital, Delhi, in which amongst others, a practising
advocate died. This was brought to the Supreme Court in a
PIL by M.C. Mehta, an advocate and a public-spirited citizen.
In M.C.Mehta v/s Union of India (AIR 1987 SC 1086), the
Supreme Court considered the damage being done to the
environment and the threat to life and the health of the people.
The Court directed 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 area 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. 15 The Court directed that the highest standards
of safety must be adopted and the enterprise must be
absolutely liable to compensate for any harm. The Court
brought forth the doctrine of strict and absolute liability and

12

Judgement of the United States Court of Appeals for the Ninth Circuit in re:
Exxon Valdez, Grant Baker et al v. Joseph Hazelwood and Exxon
Corporation, Exxon Shipping Company (2001) retrieved from
http://www.admiraltylawguide.com/circt/9thvaldez.pdf on July 5, 2014.
13

ADM Jabalpur v/s Shiv Kant Shukla (AIR 1976 SC 1207) retrieved from
http://indiankanoon.org/doc/1735815/ on July 16, 2014

Para 1 of the judgment in Peoples Union of Democratic Rights v/s Union of


India (AIR 1982 SC 1473) retrieved from
http://www.indiankanoon.org/doc/496663/ retrieved on July 16, 2014.
15
Para 7(i) of judgement in M.C.Mehta v/s Union of India (AIR 1987 SC
1086) retrieved from http://www.indiankanoon.org/doc/1486949/ on July 9,
2014.
14

refused the claims by the petitioner of no fault and


reasonable care to escape compensatory liability.
In Rural Litigation and Entitlement Kendra, Dehradun
v/s State of U.P. (AIR 1985 SC 652), the Supreme Court
directed the closure of all lime-stone quarries in the Doon
Valley. The Court observed that lime-stone quarries and
excavation in the area had adversely affected water springs
and the ecology of the region. The Court placed the right of
the people to live in healthy environment with minimal
disturbance of ecological balance as superior to the right to
trade and occupation of individuals and businesses under
Article 19 of the Constitution16. The judgment implied that the
right to wholesome environment was an implicit construct
built into the right to life a principle that the Court came to
elaborate in detail in subsequent orders.
In another PIL, M.C Mehta v/s Union of India (1988 1
SCC 471)17, the issue before the Supreme Court was Ganga
water pollution caused by trade effluents discharged by
tanneries into the river in Kanpur. The Court relaxed the rule
of locus standi, stating that the petitioner was entitled to move
the court for the enforcement of statutory provisions, as an
interested citizen, in protecting the lives of people who make
use of the river water. The Court placed an equal
responsibility upon the Kanpur Municipal Corporation for
discharge of insufficiently treated sewage into the river. The
result of the judgement was constitution of the Ganga River
Basin Authority by the Central Government for abatement of
pollution of the Ganga. The Authority became the medium for
channelling funds to Urban Local Bodies for abatement of
pollution caused by release of municipal sewage into the
Ganga. While continuing to hear the matter, the Supreme
Court in 1988 (AIR 1988 SC 1037)18 observed that the
effluent discharged from a tannery was ten times more
noxious in comparison to municipal sewage. The Court
reiterated the superior right to a clean environment and
negated the argument that the financial capacity of the
tanneries was limited, while directing them to establish
primary treatment plants. The Court compared an industry
which cannot pay minimum wages to its workers and
therefore cannot exist, to a tannery which cannot set up a
primary effluent treatment plant due to financial incapacity
and therefore should not be permitted to operate.
The Supreme Court in Chhetriya Pardushan Mukti
Sangharsh Samiti v/s State of U.P (AIR 1990 SC 2060)19

stated that every citizen has a fundamental right to enjoy a


healthy quality of life. In Subhash Kumar v/s State of Bihar
(AIR 1991 SC 420)20, the Court observed that under Article
21 of the Constitution, people have the right to clean water
and pure air for full enjoyment of life. If anything endangers
or impairs that quality of life in violation or derogation of
laws, a citizen has the right to take recourse to Article 32 of
the Constitution for removing the pollution of water or air
which may be detrimental to the quality of life. Hereafter,
environmental matters of concern to citizens could be agitated
directly before the superior courts under Article 32 and Article
226 of the Constitution that gave a right to any citizen to
approach the judiciary for enforcement of fundamental rights.
Matters concerning environment could be raised as violation
of fundamental rights rather than claims under law of torts.
In M.C Mehta v/s Union of India (22.11.1991)21, the
Supreme Court stated that an informed citizenry is essential
for the environment to be protected and laws to be enforced.
Keeping every citizen informed and aware of the ills of
pollution was the obligation of the Government. The Court,
therefore, directed the introduction of compulsory education
on the environment at all levels of formal education in a
graded way.
In Vellore Citizens Welfare Forum v/s Union of India
(AIR 1996 SC 2715)22, the Supreme Court built the
precautionary principle and polluter pays principle into
environmental law. Articles 48A and 51A(g) introduced by
the 42nd Amendment were read as part of the constitutional
mandate imposed upon the State to protect and improve the
environment. This was further articulated in the case of M.C.
Mehta v/s Kamal Nath (1997 (1) SCC 388) where the Court
was of the opinion that Articles 48A and 51A(g) have to be
considered in the light of Article 21 of the Constitution on the
right to life. The Court pronounced that any disturbance of
the basic environment elements, namely air, water and soil
necessary for life, that could be hazardous to life, would result
in abridgement of the right to life and a Court could award
damages not only for the restoration of the ecological balance,
but also for the victims who have suffered due to that
disturbance.23 This was a landmark judgment in the course of
evolution of environmental policy and law.
In M.C. Mehta v/s Union of India (AIR 1997 SC 734), the
petitioner alleged that the Taj Mahal had developed a
20

16

Pg. 10 of judgment in Rural Litigation and Entitlement Kendra, Dehradun


v/s State of U.P. (AIR 1985 SC 652) retrieved from
http://indiankanoon.org/doc/1949293/ on June 21, 2014.
17

Judgment in M.C Mehta v/s Union of India (AIR 1988 1 SCC 471) retrieved
from http://www.indiankanoon.org/doc/1208005/ on June 21, 2014.
18

Judgment in M.C Mehta v/s Union of India (AIR 1988 SC 1037) retrieved
from http://indiankanoon.org/doc/59060/ on June 21, 2014.
19

Pg. 4 of judgment in Chhetriya Pardushan Mukti Sangharsh Samiti v/s


State of U.P (AIR 1990 SC 2060) retrieved from
http://indiankanoon.org/doc/45508/ on June 22, 2014.

Pg. 8 of judgment in Subhash Kumar v/s State of Bihar (AIR 1991 SC 420)
retrieved from http://indiankanoon.org/doc/1646284/ on June 22, 2014.
21
Judgment of Supreme Court in M.C. Mehta v/s Union of India, November
22, 1991, Centre for Environment Education, retrieved from
http://www.greenteacher.org/images/File/Supreme%20Court%20EE/22_11_1
991.pdf on June 28, 2014.
22

Pg. 10 of judgment in Vellore Citizens Welfare Forum v/s Union of India


(AIR 1996 SC 2715) retrieved from http://indiankanoon.org/doc/1934103/ on
June 28, 2014.
23

Para 24 and para 35 of judgment in M.C. Mehta v/s Kamal Nath (1997 1
SCC 388) retrieved from website of International Environmental Law
Research Centre (IELRC) http://www.ielrc.org/content/e9615.pdf on June 29,
2014.

yellowish tinge with brown and black spots owing to the


increased levels of pollution. The main pollutant was
identified as sulphur dioxide released by the industries in the
Taj Trapezium a trapezoid area comprising five districts in
the Agra region - which later on reacted with rain water to
give acid rain. In order to preserve and protect the Taj Mahal,
the Supreme Court stepped into administrative domain,
directing the Government to make available natural gas to the
Mathura Petroleum Refinery, the glass factories of Ferozabad
and other industries in the Agra region. The Gas Authority of
India (GAIL) was asked by the Government to lay a natural
gas pipeline to provide feedstock to the industries. Those
industries that could not shift to natural gas were directed to
be relocated or closed. The Supreme Court reiterated the
polluter pays and precautionary principles stating that
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 24.
The Court elaborated that the onus of proof is on the alleged
polluter to show that his action is environmentally benign.
The Supreme Court went beyond national laws to rely
upon the principles of the Stockholm Conference in Essar Oil
Ltd. v/s Halar Utkarsh Samiti (AIR 2004 SC 1834) in
maintaining the balance between economic development and
environmental protection. The Court observed that the natural
resources of the earth must be safeguarded for the benefit of
present and future generations through careful planning and
management. Quoting the principles in the Stockholm
Declaration, the Court stated that man has a special
responsibility to safeguard and wisely manage the heritage of
wildlife and its habitat, which are now gravely imperilled by a
combination of adverse factors25. The Court directed that
nature conservation, including wildlife, must receive
importance in planning for economic development.
B. Delhi Vehicular Pollution Case: Judiciary cleans up
a city.
On January 7, 199826, in a matter being heard on
vehicular pollution in Delhi, the Supreme Court directed the
Government to establish an Authority to advise the Court on
pollution matters in the National Capital Region and to
monitor implementation of its orders. The draft of the
notification constituting the Environment Pollution
(Protection and Control) Authority (EPCA) was placed before
the Court and issued on January 29, 1998, after the Court had

ratified it27. The EPCA has since then played an important


role as an executive arm of the State in advising the Supreme
Court in environmental matters and acting as a watch-dog on
implementation of Courts directions. Drawing strength from
the Supreme Courts directions, the EPCA was influential in
taking several administrative steps for mitigation of vehicular
pollution in Delhi. It was on the advice of the EPCA, backed
by directions from the Supreme Court that all public buses
were asked to switch to compressed natural gas (CNG) as fuel
and those which could not were prevented from plying. The
directions were later extended to other forms of commercial
transport, such as auto-rickshaws, despite collective pressure
from their owners. The Court in a scathing order on April 5,
2002, stated that the auto policy should be such as to balance
the needs of transportation with the need to protect the
environment and reverse the large scale degradation that has
resulted over the years, priority must be given to the
environment over economic issues.28 The Court turned down
the objections of the Government on the adequate availability
of CNG to meet the needs of the transport sector and laid
down the priority for gas allocation, with preference being
given to the transport sector and the needs of other industries
to be met only after the CNG for public transportation in
Delhi was made available. With this judgment, the primacy of
the judiciary in prescribing environmental policy, laying down
principles of environmental law and administrative
implementation of decisions impinging on environment was
unequivocally established.
C. Judicial Activism and Forestry
Judicial overreach in forestry matters did not lag behind.
In T.N Godavarman Thirumulpad v/s Union of India, the
Supreme Court, in a series of orders pronounced over a
decade, completely took over administrative control of the
powers of the Central Government for diversion of forest land
for non-forest purposes. In an order on December 12, 199629,
the Supreme Court defined forest to mean not only any land
recorded as forest in land records but also all areas considered
as forests in the dictionary meaning of the term, irrespective
of ownership. The Court directed all States to forthwith cease
all tree-felling activity in forest land. The Court followed the
mechanism adopted by it in the Delhi Vehicular Pollution
case and directed the constitution of a Central Empowered
Committee (CEC) reporting directly to the Supreme Court to
monitor the implementation of its orders on environmental
matters including encroachment removals, implementation of
working plans, compensatory afforestation, plantations and
27

24

Pg. 45 of judgment in M.C. Mehta v/s Union of India (AIR 1997 SC 734)
retrieved from http://judis.nic.in/supremecourt/imgs1.aspx?filename=14555
on June 29, 2014.
25

Pg. 8 of judgment in Essar Oil Ltd. v/s Halar Utkarsh Samiti (AIR 2004 SC
1834) retrieved from http://indiankanoon.org/doc/1319748/ on June 28, 2014.
26

Pg. 2 of judgment dated January 7, 1998, in M.C Mehta v/s Union of India
(Delhi Vehicular Pollution case) retrieved from
http://judis.nic.in/supremecourt/imgs1.aspx?filename=13535 on June 21,
2014.

Order establishing EPCA dated January 29, 1998, retrieved from


http://hspcb.gov.in/Environment%20Protection%20Authority.pdf on June 21,
2014.
28

Pg. 3 of judgment dated April 5, 2002 in M.C Mehta v/s Union of India
(Delhi Vehicular Pollution case) retrieved from
http://judis.nic.in/supremecourt/imgs1.aspx?filename=20592 on June 21,
2014.
29

Pg 2 of Order dated December 12, 1996, in T.N Godavarman Thirumulpad


v/s Union of India retrieved from http://indiankanoon.org/doc/298957/ on
July 12, 2014.

other conservation issues.30 The order required that the


appointment of the Chairman and members of the CEC could
be made only after consultation with the amicus curiae of the
Court and once appointed, could not be removed without the
Courts approval. The CEC was made the nodal agency for
vetting all proposals for change in land use of forests received
from the States through the Central Government. On October
29, 2002, the Court directed that no State would grant
permission to any veneer, saw mill, or plywood industry
without the prior permission of the CEC 31. Thereby, the Court
arrogated the power of the executive under the Forest
(Conservation) Act to a body nominally appointed by the
executive but in reality under the complete oversight of the
Court.
On October 29, 200232, the Supreme Court specified the
methodology for calculation of amount to be paid for
compensatory afforestation on diversion of forest land and
laid down guidelines for utilisation of sums collected for
compensatory afforestation. On the recommendation of the
CEC, the Supreme Court directed the constitution of a body,
the Compensatory Afforestation Funds Management and
Planning Authority (CAMPA), for management of the funds
with the concurrence of the CEC. All funds previously
collected by the Governments and unutilised, were transferred
to the Compensatory Afforestation Fund created by the
Court. In an order on March 28, 200833, the Court fixed the
rates for compensatory afforestation varying from Rs 438,000
per hectare to Rs 1.043 million per hectare, depending on the
eco-class and density sub-class in which the land being
diverted fell. The Court further specified that in case of land
located in National Parks and Wildlife Sanctuaries, the rate
payable would be 10 times and 5 times of the normal rates
respectively. The Court, in an order on March 12, 201434,
gave a set of detailed directions for release of monies
collected under CAF to States for environmental regeneration
and afforestation. While doing so, the Court recorded that the
30

Order dated May 9, 2002, in T.N Godavarman Thirumulpad v/s Union of


India retrieved from
http://cecindia.org/sc_documents/(56)I.A.no.295%20%20W.P.(c)no.202%201
995%20%20and%20%20W.P.(c)no.171%20%201996%20%20%2009.05.200
2.pdf on July 12, 2014.
31

Para 33 of Order dated October 29, 2002, in T.N Godavarman Thirumulpad


v/s Union of India retrieved from
http://cecindia.org/sc_documents/(33)I.A.no.566%20W.P.(c)no.202%201995
%20%2029.10.2002.pdf on July 12, 2014.
32

Order dated October 29, 2002, in T.N Godavarman Thirumulpad v/s Union
of India retrieved from
http://judis.nic.in/supremecourt/imgs1.aspx?filename=41309 on July 12,
2014.
33

Order dated March 28, 2008, in T.N Godavarman Thirumulpad v/s Union of
India retrieved from
http://cecindia.org/sc_documents/(15)I.A.nos.826,in,566,955,in566,958,985,1
001-1001A,1013-1014,1016018,1019,1046,1047%20etc.%20%20W.P.(c)no.202%201995%2028.03.2008
.pdf on July 12, 2014.
34

Para 25 of Order dated March 12, 2014, in T.N Godavarman Thirumulpad


v/s Union of India retrieved from
http://judis.nic.in/supremecourt/imgs1.aspx?filename=41309 on July 13,
2014.

funds at the disposal of CAMPA were around Rs 280 billion


in April 2013 with annual accruals, including interest, of Rs
60 billion.
D. Judiciary and the Narmada Movement
The Narmada Dam was conceptualised in 1949 on the
recommendations of the Khosla Committee in the immediate
aftermath of Independence. The foundation stone for Stage-I
of the project was laid by the Prime Minister of India on April
5, 1961. Due to disagreement between the riverine States the
project floundered. In 1968, the State of Gujarat, the principal
beneficiary State, made a reference to the Government of
India seeking the constitution of a Tribunal under the Inter
State Water Disputes Act, 1956, to resolve the disputes
between the States. After a decade of hearings, the Tribunal
announced its Award which was published on December 12,
1979 [14]. The World Bank sanctioned financial credit for the
project in May 1985 and environmental clearance was
accorded by the Central Government in June 1987, a year in
which India faced one of its worst droughts with the failure of
the monsoon rains. The construction of the dam commenced
immediately thereafter.
Civil society organisations started an agitation
championing the cause of those who were being ousted from
their land holdings due to the dam construction. The Award of
the Tribunal had broken from past tradition while laying down
a plan for rehabilitation and resettlement of the displaced
families. It stipulated land for land as compensation rather
than money. Each displaced family was to be allotted land of
its choice within the irrigated area of the dam equivalent in
area from which they were being displaced, or minimum 2
hectares [14]. The Narmada Bachao Andolan (Save the
Narmada Movement) was born in 1989 as a rainbow coalition
of these civil society organisations. As the movement gathered
strength through methods of civil disobedience besides openly
flouting the Governments directions to vacate the land and
embracing possible death on submergence rather than be
displaced. The NBAs efforts drew international attention
putting pressure on the World Bank to constitute a project
review on rehabilitation and environmental mitigation efforts.
The Independent Review Committee led by Bradford Morse
in a report submitted in 1993 to the World Bank severely
criticised rehabilitation efforts. The supporters of the NBA
world-wide brought immense pressure on developed nations
governments to cancel funding for the project. The World
Bank was split down the middle and as a compromise laid out
6 conditions for continued financial assistance. The
compromise was not acceptable to the Indian Government
vowing to continue with project implementation [15].
The NBA approached the Supreme Court in 1994
alleging that the rehabilitation and environmental mitigation
terms set out by the Tribunal and environmental clearance
were not being fulfilled. The Court, in an interim direction,
halted construction. As the years passed, the proponents of the
dam gathered strength and two continuous years of failed
monsoons brought the need for water management to the fore.

The Supreme Court in its judgment on October 18, 2000,


finally decided in favour of the project while setting up a
monitoring mechanism for rehabilitation and resettlement and
requiring prior environment clearance of mitigation efforts
and approval of the Narmada Control Authority at every stage
of increasing dam height. The Court observed35 that, it
should not be forgotten that poverty is regarded as one of the
causes of degradation of environment. With improved
irrigation system the people will prosper. The construction of
Bhakra Dam is a shining example for all to see how the
backward area of erstwhile undivided Punjab has now become
the granary of India with improved environment than what
was there before the completion of the Bhakra Nangal
project. The Court also went on to observe that global
warming had become a major cause of concern. It justified the
directions by mentioning that hydel power can be termed as
being ecologically friendly as its contribution to the
greenhouse effect was negligible.
E. The Later Phase of Judicial Activism: The National
Green Tribunal
The National Environment Appellate Authority (NEAA) 36
was constituted in 1997 as an independent body to hear
grievances against environment clearances granted in
restricted areas. The NEAA was assailed as ineffective,
lacking technical expertise and leaning towards the
Government in performing its judicial functions. Civil society
organisations clamoured for representation from outside
Government in the NEAA [16]. The failure of the NEAA led
to a new tribunal, the National Green Tribunal (NGT), being
constituted in 2010 after enactment of the National Green
Tribunal Act37. The Tribunal was endowed with extensive
powers to hear grievances and appeals under all the
environment related legislations. The NGT Act had a built in
criteria for representation of experts in environment matters,
answering the main criticism that had been levelled against
the NEAA. After teething troubles, the NGT assumed the role
of the judiciary in directing environmental law and
administrative action38. The Posco Case established the
credentials of the NGT as an independent body. Upholding
the principle of sustainable development in favour of local
communities who would have been displaced, the NGT
directed the suspension of the environmental clearance given
to the project for establishment of a 12 MTPA capacity steel
plants in Odisha. In another industry matter, in the Sterlite
35

Pg. 74 of judgement in Narmada Bachao Andolan v/s Union of India


retrieved from http://judis.nic.in/supremecourt/imgs1.aspx?filename=17165
on July 24, 2014.
36

The National Environment Appellate Authority Act, 1997, retrieved from


http://envfor.nic.in/legis/others/envapp97.html on July 16, 2014.
37

National Green Tribunal Act, 2010, retrieved from


http://www.greentribunal.gov.in/acts.php on July 16, 2014.
38

National Green Tribunal: Three Years of Revolutionary Jurisprudence,


Article on National Green Tribunal retrieved from
http://www.wwfindia.org/about_wwf/enablers/cel/national_green_tribunal/art
icle_by_cel/ on July 16, 2014.

industries order, NGT passed an order in favour of the


industries and stated that environmental restrictions must
operate with all their rigour but no action should be suspicionbased which itself is not well-founded. In the Goa
Foundation case, the prayer of the petitioner was for directions
to be given for preservation and protection of the ecologically
sensitive Western Ghats. This case established NGTs
jurisdiction over civil matters involving a substantial question
of environment. The matter is still being heard by NGT. In the
sand mining order, the NGT put a ban on all forms of river
and ocean bed sand mining operating without environmental
clearances. The NGT has come to occupy the activist judicial
space in environmental matters in a short span of time.

V.

DISCUSSIONS AND CONCLUSIONS

Environment policy in India has evolved under the


dominant influence of specific actors and events over time. In
the initial colonial and post-colonial phase, environment
policy was centered around the rights over forests and usage
of forest produce. Forests were appropriated as property of the
State. The dominant themes were revenue accretion and usage
of forest products to fulfil development needs, specifically in
the spread of the railways and communication network across
the country. The post-colonial phase immediately after
Independence in 1947 did not see a significant shift from the
colonial period. However, the importance placed on income
generated from forest resources withered away. Forests were
seen
as
supporting
paramount
national
needs.
Industrialisation, agricultural and infrastructure development
were the primary goals in independent India and forests were
envisaged as a contributory element for serving these goals.
Afforestation programmes through tree plantation festivals
were pursued aggressively, built around religious symbolism
of the tree in traditional mythology and customs. Plantation of
fast growing species in public areas and common lands was
encouraged. During this period, forest and wildlife protection
were in the hands of States under the constitutional scheme.
The UN Conference on Human Environment in 1972
marked a significant milestone that changed the course of
environmental policy forever. The presence and participation
of the Prime Minister of India in the Conference deliberations
brought an immediate response by way of Governments
focus on conservation initiatives. The period from 1972 to
1980 saw a large number of legislations being enacted, aimed
at forest conservation, protection of wildlife and a framework
for abatement of water pollution. These legislations were
passed by Parliament exercising its powers under the
Constitution to legislate a common framework for two or
more States on subject matters assigned to States. New
organisations, the Pollution Control Boards and Wildlife
Wardens were established in the States and invested with legal
powers. The 42nd Amendment to the Constitution in 1976
permanently shifted the locus of environmental policy to the
Central Government. After 1976, the elected State
Governments were left with little say in policy formulation on

environmental matters. The Forest (Conservation) Act took


away whatever little power States had in diversion of forest
land for non-forest usages. Public opinion had little to do with
the shift in power from the States to the Central Government
and numerous legislations then emerged in this period. The
Chipko movement in this phase stood out by creating an
awakening, though it had a marginal impact on long-term
environmental policy.

Democratic involvement of people in environmental


policy through healthy discussion and debate, rather than
executive or judicial dictum, waits for the future.

The Bhopal Gas Leak Disaster was a defining moment in


Indias environmental history. The inadequacy of the
governance structure in prevention of the disaster, the inability
of legal and administrative processes to deliver adequate
compensation to the affected people and stirring of public
consciousness about the threats posed by environmental
negligence, came together to reshape environmental policy.
The Environment (Protection) Act, the most significant
environmental legislation in independent India, came into
force without substantive debate in Parliament or outside. It
armed the State with extensive powers to regulate any form of
economic activity from an environmental perspective. The
failure of the executive and judiciary in providing rightful
compensation due to the affected people in the Bhopal Gas
Leak Disaster, brought the Public Liability Insurance Act into
being, providing for the first time a no fault immediate
compensation mechanism to the affected persons.

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A chemical leak incident in the national capital shortly


after the Bhopal disaster and the death of a practising advocate
in the incident became the trigger for judicial involvement in
environmental matters. The instrument of the public interest
litigation had been discovered by the judiciary to deliver basic
civil rights emerging from constitutional provisions in the
post-Emergency era. PIL became an important tool for
evolution of environmental policy, prodding the Government
into action. Judicial dictum laid down the three guiding
principles for judging environmental issues polluter pays,
precautionary principle and sustainable development. New
organisations such as the Central Empowered Committee in
forestry matters, the Environment (Protection and Control)
Authority and the Compensatory Afforestation Funds
Management and Planning Authority came into being through
judicial interventions. The source of policy developments in
environment decisively shifted from an elected political
executive to an unelected judiciary. The establishment of a
specialised judicial body, the National Green Tribunal, has
brought the reach of judicial determination of environmental
policy closer. International debates on climate change in
recent years and commitments to abatement measures
appeared only at the fringes of policy discussions. Measures to
reduce greenhouse gas emissions, for example, did not find
space in common discourse, giving way to the needs of
economic development in a growing economy. Lately, the
environmental clearance process for industrial and business
activity has been projected as hindering economic
development rather than contributing to the cause of
sustainable development.

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11