Environmental

Law
MBL-PACE-NLSIU
 Environment
• https://www.menti.com/algupf4i2pxo

2 9/30/2023 MBL - PACE - NLSIU

Environmental Law
• Recognised as a "transcendental" field of law - overarches and impacts
every other field
Approaches to Environnemental Law
• Contrast between Eco-centric & Anthropocentric
• Eco-centric – Values that are centered on ecology – includes abiotic
• Anthropocentric – Human beings are central and superior
• Bio-centric – focuses on biotic
• Theocentric approach - a higher authority than people or the ecosystem—
God—is in charge and that He created people in part as stewards of His
creation
 T.N Godavarman Thirumulpad v. Union of India (2012)
4 SCC 36

• The Hon’ble Supreme Court of India in T.N Godavarman Thirumulpad v. Union of India (2012) 4 SCC 36 made the
following observations:

• “Environmental justice could be achieved only if we drift away from the principle of anthropocentric to
ecocentric. Many of our principles like sustainable development, polluter-pays principle, inter-generational
equity have their roots in anthropocentric principles. Anthropocentrism is always human interest focussed and
non-human has only instrumental value to humans. In other words, humans take precedence and human
responsibilities to non- human based benefits to humans. Ecocentrism is nature centred where humans are part
of nature and non-human has intrinsic value. In other words, human interest do not take automatic precedence
and humans have obligations to non-humans independently of human interest. Ecocentrism is therefore life-
centred, nature-centred where nature include both human and non- humans.”
Environmental Rule of Law according to the UNEP (2019).
Environmental Rule of Law: First Global Report
• "The United Nations defines rule of law as having three related components, …: law should be consistent with
fundamental rights; law should be inclusively developed and fairly effectuated; and law should bring forth
accountability not just on paper, but in practice—such that the law becomes operative through observance of, or
compliance with, the law. These three components are interdependent: when law is consistent with fundamental
rights, inclusively promulgated, and even-handedly and effectively implemented, then the law will be respected and
observed by the affected community.

• Environmental rule of law incorporates these components and applies them in the environmental context. As such,
environmental rule of law holds all entities equally accountable to publicly promulgated, independently adjudicated
laws that are consistent with international norms and standards for sustaining the planet. Environmental rule of law
integrates critical environmental needs with the elements of rule of law, thus creating a foundation for environmental
governance that protects rights and enforces fundamental obligations."
• 1.1.2 Environmental Rule of Law Defined, UNEP (2019). Environmental Rule of Law: First Global Report, Pg 8
EROL and EG
• The Environmental rule of law focuses on ensuring compliance with and enforcement of
environmental laws.

• Environmental governance comprises a broader set of objectives and approaches related to

making and implementing decisions related to the environment and environmental rule of law
speaking particularly to the implementation
Quote

“This is violence. We should pluck the required number of leaves after offering
an apology to the tree for doing so. But you broke off the whole twig, which is
wasteful and wrong”
Mahatma Gandhi: An environmentalist by nature by
Vinay Lal

• The environmental crises and “extreme weather events” that are

upon us have been precipitated by the gross and appalling
instrumentalisation of nature. The earth is not merely there to be
mined, logged and hollowed out. However, we have to first
preserve the ecological equanimity of the body. Nature’s creatures
mind their own business; if humans were to do the same, we
would not be required to legislate the health of all species.
Gandhiji did not prevent others from killing snakes but a cobra
entering his room was left alone. “I do not want to live at the cost
of the life even of a snake,” he said.

• Source: https://www.thehindu.com/news/national/mahatma-gandhi-an-
environmentalist-by-nature/article29566196.ece - 1.10.2019- The Hindu
Deep Ecology

Basic Principles of Deep Ecology

1972
Norwegian philosopher Arne Naess
American environmentalist George Sessions
Developed a platform of eight organizing principles for the deep ecology social
movement.

Arne Naess makes Gandhi central to his “deep ecology.”

“Gandhi made manifest the internal relation between self-realization, non-
violence, and what has sometimes been called biospherical egalitarianism”
 Deep Ecology
Basic Principles of Deep Ecology
1. Inherent value
The well-being and flourishing of human and nonhuman Life on Earth have value in themselves (synonyms:
intrinsic value, inherent value). These values are independent of the usefulness of the nonhuman world for
human purposes.
2. Diversity
Richness and diversity of life forms contribute to the realization of these values and are also values in
themselves.
3. Vital Needs
Humans have no right to reduce this richness and diversity except to satisfy vital needs.
4. Population
The flourishing of human life and cultures is compatible with a substantial decrease of the human
population. The flourishing of nonhuman life requires such a decrease.
Deep Ecology
5. Human Interference
The present human interference with the nonhuman world is excessive, and the
situation is rapidly worsening.
6. Policy Change
Policies must therefore be changed. These policies affect basic economic, technological,
and ideological structures. The resulting state of affairs will be deeply different from the
present.
7. Quality of Life
The ideological change is mainly that of appreciating life quality (dwelling in situations
of inherent value) rather than adhering to an increasingly higher standard of living.
There will be a profound awareness of the difference between big and great.
8. Obligation of Action
Those who subscribe to the foregoing points have an obligation directly or indirectly to
try to implement the necessary changes.
Principles and Doctrines – Environmental Law
Sustainable Development
Development that meets the needs of present without compromising the ability of the
future generations to meet their own needs

Brundtland Commission – “Our Common Future”, United Nations General Assembly,

1987

Maintaining a balance between development and the environment – Needs and Limits

Fur Seals Arbitration – 1893 US and US

Bering Sea – British fisherman – Arbitral Tribunal – US cannot regulate fishing outside its
territorial waters – promoted the conclusion of a fishing agreement preventing
excessive fishing of fur seals
Principles and Doctrines – Environmental Law
Sustainable Development
Rural Litigation and Entitlement Kendra vs State of UP , AIR 1985 SC 652
Doon Valley Project – lime stone
First PIL – Environment and Ecological Balance
Lime Stone mining – landslide- felling of trees – water shortage
Tapping of resources has to be with care
Principles and Doctrines – Environmental Law
• Doctrine of Inter-generational equity
It is an argument in favor of sustainable economic development and natural
resource.

Do not cut down trees faster than they grow back

Do not farm land at levels, or in a manner, that reduce the land’s regenerative
capacity
Do not pollute water at levels that exceed its natural purification capacity
Principles and Doctrines – Environmental Law
• Doctrine of Inter-generational equity and Intra-generational equity
• State of Himachal Pradesh vs Ganesh Wood Products AIR 1996 SC 149
SC: Government department’s approval to establish forest-based industry to be
invalid because it is contrary to public interest involved in preserving the forest
wealth, maintenance of environment and ecology and considerations of
sustainable growth and inter-generational equity.
 Principles and Doctrines – Environmental Law
Public Trust Doctrine
Developed in Roman Empire
Certain common properties such as rivers, seashores, forests and the air were held by Government in
trusteeship for free and unimpeded use of the general public.
1st – Mandates affirmative action for effective management
2nd – Empowers citizens to question ineffective management of natural resources

M C Mehta vs Kamal Nath, (1997) 1 SCC 388

Indian Express article – Span Motels Pvt Ltd – family of Kamal Nath (former minister for Environment and
Forests)- club bank of River Beas – encroaching land including forest land – later regularised and leased out
to the company –
Justice Kuldip Singh – PTD – English Jurisprudence – Limitations on the Crown – no private ownership to be
granted
Principles and Doctrines – Environmental Law
Precautionary Principle
Anticipation of environmental harm and taking measures to avoid it or chose
the least environmentally harmful activity.
Principle 15 of the Rio Declaration “ In order to protect the environment, the
precautionary approach shall be widely applied by states according to their
capabilities. Where there are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as a reason for postponing cost
effective measures to prevent environmental degradation.
Vellore Citizen’s Welfare Forum vs Union of India, 1996 5 SCC 647
Tanneries
M C Mehta vs Union of India
Taj Trapezium Case – TTZ – Taj Mahal
Principles and Doctrines – Environmental Law
Principle of Strict Liability
Rylands vs Fletcher, 1868
Diluted the strict liability by carving out exceptions – act of god, default of
plaintiff, consent of plaintiff, independent act of third party and statutory
authority

Rylands employed contractors to build a reservoir, playing no active role in its

construction. When the contractors discovered a series of old coal shafts
improperly filled with debris, they chose to continue work rather than properly
blocking them up. The result was that on 11 December 1860, shortly after being
filled for the first time, Rylands' reservoir burst and flooded a neighbouring
mine, run by Fletcher, causing damage
Principles and Doctrines – Environmental Law
Principle of Absolute Liability
Liability without any exceptions
M.C. Mehta vs Union of India, AIR 1987 SC 965
Oleum Gas Leak Case – Compensation - Shriram foods and fertilizers
Principles and Doctrines – Environmental Law
Polluter Pays Principle
Extension of Absolute liability principle – invoked regardless of whether the
person took reasonable care or not
M.C. Mehta vs Union of India, AIR 1987 SC 965
Oleum Gas Leak Case – Compensation - Shriram foods and fertilizers – Implied
polluters pay
Principles and Doctrines – Environmental Law
Polluter Pays Principle

Indian Council for Enviro Legal Action vs Union of India, (1996) 3 SCC 212
Polluting industries are absolutely labile to compensate for the harm caused by
them

Vellore Citizen’s Welfare Forum vs Union of India, 1996 5 SCC 647

Tanneries
SC declared polluters pay as an essential feature of sustainable development
History of Environmental Law & Policy in India
Shyam Divan and Armin Rosencranz, Environemental Law and Policy
in India, 2nd Ed, 30
History of Environmental Law & Policy in India

• Charak Samhita – Instructions on using and maintaining purity of water

• Yajnavalkya Smriti – Cutting of trees and forests as a punishable offence and
has also prescribed a penalty
• Kautalya’s Arthashastra 321-300 BC – protecting the forest
• Mughal – Muhtasib – Duty of preventing pollution
History of Environmental Law & Policy in India
• British Government:
• First Forest Policy 19.10.1884-
Objectives:
1. Promoting the general well being of the people in the country;
2. Preserving climatic and physical conditions in the country; and
3. Fulfilling the need of the people

Four Categories of forest

1. Forests – Preservation of which was essential on climatic or physical grounds;
2. Forests – Which offered a supply of valuable timber for commercial purposes;
3. Minor Forests – Which produced only the inferior sorts of timber; and
4. Pastures which were forests only in name
Constitutional Law
• Right to life vs Right to trade
• Obligation of State?
• Duty of Citizens?
• Common Law
• Body of customary law which is based upon judicial decisions
• Article 372 – Constitution of India – Common law continues to be in force – not
altered, modified or repealed by statutory law
• Common law remedies against pollution – under Law of Torts
• Tort – Civil wrong – Damages
Environmental
Law
MBL-PACE-NLSIU
Principles and Doctrines – Environmental Law
Sustainable Development
Development that meets the needs of present without compromising the ability of the
future generations to meet their own needs

Brundtland Commission – “Our Common Future”, United Nations General Assembly,

1987

Maintaining a balance between development and the environment – Needs and Limits

Fur Seals Arbitration – 1893 US and US

Bering Sea – British fisherman – Arbitral Tribunal – US cannot regulate fishing outside its
territorial waters – promoted the conclusion of a fishing agreement preventing
excessive fishing of fur seals
Principles and Doctrines – Environmental Law
Sustainable Development
Rural Litigation and Entitlement Kendra vs State of UP , AIR 1985 SC 652
Doon Valley Project – lime stone
First PIL – Environment and Ecological Balance
Lime Stone mining – landslide- felling of trees – water shortage
Tapping of resources has to be with care
Principles and Doctrines – Environmental Law
• Doctrine of Inter-generational equity
It is an argument in favor of sustainable economic development and natural
resource.

Do not cut down trees faster than they grow back

Do not farm land at levels, or in a manner, that reduce the land’s regenerative
capacity
Do not pollute water at levels that exceed its natural purification capacity
Principles and Doctrines – Environmental Law
• Doctrine of Inter-generational equity and Intra-generational equity
• State of Himachal Pradesh vs Ganesh Wood Products AIR 1996 SC 149
SC: Government department’s approval to establish forest-based industry to be
invalid because it is contrary to public interest involved in preserving the forest
wealth, maintenance of environment and ecology and considerations of
sustainable growth and inter-generational equity.
 Principles and Doctrines – Environmental Law
Public Trust Doctrine
Developed in Roman Empire
Certain common properties such as rivers, seashores, forests and the air were held by Government in
trusteeship for free and unimpeded use of the general public.
1st – Mandates affirmative action for effective management
2nd – Empowers citizens to question ineffective management of natural resources

M C Mehta vs Kamal Nath, (1997) 1 SCC 388

Indian Express article – Span Motels Pvt Ltd – family of Kamal Nath (former minister for Environment and
Forests)- club bank of River Beas – encroaching land including forest land – later regularised and leased out
to the company –
Justice Kuldip Singh – PTD – English Jurisprudence – Limitations on the Crown – no private ownership to be
granted
Principles and Doctrines – Environmental Law
Precautionary Principle
Anticipation of environmental harm and taking measures to avoid it or chose
the least environmentally harmful activity.
Principle 15 of the Rio Declaration “ In order to protect the environment, the
precautionary approach shall be widely applied by states according to their
capabilities. Where there are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as a reason for postponing cost
effective measures to prevent environmental degradation.
Vellore Citizen’s Welfare Forum vs Union of India, 1996 5 SCC 647
Tanneries
M C Mehta vs Union of India
Taj Trapezium Case – TTZ – Taj Mahal
Principles and Doctrines – Environmental Law
Principle of Strict Liability
Rylands vs Fletcher, 1868
Diluted the strict liability by carving out exceptions – act of god, default of
plaintiff, consent of plaintiff, independent act of third party and statutory
authority

Rylands employed contractors to build a reservoir, playing no active role in its

construction. When the contractors discovered a series of old coal shafts
improperly filled with debris, they chose to continue work rather than properly
blocking them up. The result was that on 11 December 1860, shortly after being
filled for the first time, Rylands' reservoir burst and flooded a neighbouring
mine, run by Fletcher, causing damage
Principles and Doctrines – Environmental Law
Principle of Absolute Liability
Liability without any exceptions
M.C. Mehta vs Union of India, AIR 1987 SC 965
Oleum Gas Leak Case – Compensation - Shriram foods and fertilizers
Principles and Doctrines – Environmental Law
Polluter Pays Principle
Extension of Absolute liability principle – invoked regardless of whether the
person took reasonable care or not
M.C. Mehta vs Union of India, AIR 1987 SC 965
Oleum Gas Leak Case – Compensation - Shriram foods and fertilizers – Implied
polluters pay
Principles and Doctrines – Environmental Law
Polluter Pays Principle

Indian Council for Enviro Legal Action vs Union of India, (1996) 3 SCC 212
Polluting industries are absolutely labile to compensate for the harm caused by
them

Vellore Citizen’s Welfare Forum vs Union of India, 1996 5 SCC 647

Tanneries
SC declared polluters pay as an essential feature of sustainable development
History of Environmental Law & Policy in India
Shyam Divan and Armin Rosencranz, Environemental Law and Policy
in India, 2nd Ed, 30
History of Environmental Law & Policy in India

• Charak Samhita – Instructions on using and maintaining purity of water

• Yajnavalkya Smriti – Cutting of trees and forests as a punishable offence and
has also prescribed a penalty
• Kautalya’s Arthashastra 321-300 BC – protecting the forest
• Mughal – Muhtasib – Duty of preventing pollution
History of Environmental Law & Policy in India
• British Government:
• First Forest Policy 19.10.1884-
Objectives:
1. Promoting the general well being of the people in the country;
2. Preserving climatic and physical conditions in the country; and
3. Fulfilling the need of the people

Four Categories of forest

1. Forests – Preservation of which was essential on climatic or physical grounds;
2. Forests – Which offered a supply of valuable timber for commercial purposes;
3. Minor Forests – Which produced only the inferior sorts of timber; and
4. Pastures which were forests only in name
Constitutional Law
• Right to life vs Right to trade
• Obligation of State?
• Duty of Citizens?
• Common Law
• Body of customary law which is based upon judicial decisions
• Article 372 – Constitution of India – Common law continues to be in force – not
altered, modified or repealed by statutory law
• Common law remedies against pollution – under Law of Torts
• Tort – Civil wrong – Damages
 Environment Protection

• Obligation of State?

• Duty of Citizens?

16 9/30/2023
 Environment – Law
• Common Law

• Body of customary law which is based upon judicial decisions

• Article 372 – Constitution of India – Common law continues to be in force – not

altered, modified or repealed by statutory law

• Common law remedies against pollution – under Law of Torts

• Tort – Civil wrong – Damages

17 9/30/2023
 Environment – Law

M.C. Metha vs Kamal Nath, 2000 6 SCC 213:

“Environmental pollution amounts to civil wrong and by its nature it is a tort

committed against the whole community”

18 9/30/2023
 Environment – Law

• Nuisance – Tort Law

• Unreasonable interference
• Interference is with the use of enjoyment of land
• Damage

Reasonableness – Ordinary comfort prevailing in the neighborhood

Minor discomforts will not be viewed as a nuisance

19 9/30/2023
 Environment – Law

• Public Nuisance

• injures, annoys or interferes with the quality of life of a class of persons who come
within its neighborhood

• Malton Board of Health vs Malton Manure Co, 1879, 4 Ex, 302 – offensive smell

Private nuisance

• Unreasonable and unnecessary inconvenience caused by the use of the defendants

land

20 9/30/2023
 Environment – Law

• Sec 133 to 144 of Code of Criminal Procedure

• Section 268, Indian Penal Code, 1860 – 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.

21 9/30/2023
 Environment – Law

• Religious rights -
• Church of God (Full Gospel) in India V.K.K.R. Majestic Colony Welfare
Association and Others SC, 30.08.2000
- No religion prescribes that prayers should be performed by disturbing the
peace of other nor does it preach that there should be voice amplifiers or
beating of drums

22 9/30/2023
 Environment – Law

Dr Ram Raj Singh vs Babulal, AIR 1982 All 285

Brick Grinding Machine adjoining the premises of petitioner (Medical Practitioner)

Generated dust – polluted atmosphere – dust entered the Doctors chamber and caused
inconvenience to Doctor and patients – Injunction against the defendant

23 9/30/2023
 Environment – Law

Trespass

Intentional invasion on the interest of the plaintiff, over the property in his exclusive
possession.

Deliberate placement of waste in such circumstances as it might carry it to the land of the
plaintiff by natural forces like, emission of gases, or invisible fumes

24 9/30/2023
 Environment – Law

Trespass vs Nuisance

Trespass – Actionable per se

Nuisance – on proof of damage

Trespass – Injury is direct

Nuisance – Injury is consequential

25 9/30/2023
 Environment – Law

Strict liability

When a person brings on his premise something that is likely to cause harm if it escapes. He
will be liable for the damage caused as a result of escape.

Absolute liability

There are no exceptions to the rule of strict liability.

26 9/30/2023
 Environment – Law

Remedies –

Damages

Compensate for the loss suffered, injury sustained or inconvenience borne

Injunction

Negative (discontinue the act) or positive (to do it a specific form)

27 9/30/2023
 Constitution & Environment

First thought?

28 9/30/2023
 Constitution – Environment
Right to Environment

1976 – Portugal – Art 66- “Everyone has the right to

healthy and ecologically balanced environment and
the duty to defend it”

1978 – Spain – “All have the right to an

environment not detrimental to health”

1980 – Chile – “Guarantee of the right to live in a

pollution free environment”

29 9/30/2023
 “Article 32 is designed for the enforcement of Fundamental Rights of a citizen by the Apex Court. It provides for an
extraordinary procedure to safeguard the Fundamental Rights of a citizen. Right to live is a fundamental right under Art 21
of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If
anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art, 32 of the
Constitution for removing the pollution of water or air which may be detrimental to the quality of life.

A petition under Art. 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a
group of social workers or journalists. But recourse to proceeding under Art. 32 of the Constitution should be taken by a
person genuinely interested in the protection of society on behalf of the community. Public interest litigation cannot be
invoked by a person or body or person to satisfy his or its personal grudge and enmity. if such petitions under Article 32,
are entertained it would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioner
from this Court. Personal interest cannot be enforced through the process of this Court under Art. 32 of the Constitution in
the garb of a public interest litigation.”

30 9/30/2023
 Constitution – Environment
Subhash Kumar vs State Of Bihar And Ors, AIR 1991 SC 420

Writ petition - PIL - West Bokaro Collieries and Tata Iron and Steel Company (TISCO) - polluting
river Bokaro by discharging surplus waste in the form of sludge/slurry as effluent from their
washeries - river water unfit for drinking and irrigation purposes - causing risk to the health of the
people
State of Bihar and the State Pollution Control Board - failed to take appropriate steps for
prevention of the pollution - instead the State of Bihar has granted leases on payment of royalty to
various persons for collection of slurry.
Prayed for directions to the respondents - steps prohibiting the pollution of the river - legal action
against TISCO - Water (Prevention and Control of Pollution) Act, 1974
Petitioner - claimed interim relief that he should be permitted to collect sludge/slurry flowing out
of washeries of the respondents

31 9/30/2023
 Constitution – Environment
Article 39 (b) - The State shall, in particular, direct its policy towards securing - that the
ownership and control of the material resources of the community are so distributed as best
to subserve the common good

32 9/30/2023
 Constitution – Environment

Assam Sillimanite Ltd vs Union of India, AIR 1992 SC 938

“Therefore, all things which are capable of producing wealth for the community would
be material resources. The conservation of the essential ingredients necessary for the
crucial iron and steel industry by nationalisation is only in implementation of the policy
declared in Clause (b) of Article 39.”

33 9/30/2023
 Constitution – Environment

Facts:

A coffee estate spread over 2500 acres is owned by a Pvt Ltd Company. There is also a resort
which is run by the Pvt Ltd Company on this estate and the guests to the resort frequent a
water fall within the estate.

Security of the estate restrict the movement of others and prevent them accessing the
waterfall.

State wants to allow the tourists in the area to access the waterfall and ensure that it is not
limited to the guests of the resort.

Issue: ?

34 9/30/2023
 Constitution – Environment

Sanjeev Coke Mfg. Co. vs Bharat , AIR 1983 SC 239

Constitutional validity of Coking Coals Mines (Nationalisation) Act, 1972 and the Coal Mines
(Taking Over of Management) Act, 1973 was under challenge.

Court: Article 39(b) refers to material resources of the community, it does not refer only to
resources owned by the community as a whole but it refers also to resources owned by
individual members of the community.

The Court also held that the expression 'material resources of the community' is not confined
to natural resources;
it is not confined to resources owned by the public;
it means and includes all resources, natural and man-made, public and private-owned.

35 9/30/2023
 Constitution – Environment
Article 19 - Protection of certain rights regarding freedom of speech, etc.—(1) (g) All
citizens shall have the right to practise any profession, or to carry on any occupation, trade
or business.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, in the interests of
the general public, reasonable restrictions on the exercise of the right conferred by the said
sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any
existing law in so far as it relates to, or prevent the State from making any law relating to,—
(i) the professional or technical qualifications necessary for practising any profession or
carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any
trade, business, industry or service, whether to the exclusion, complete or partial, of citizens
or otherwise
Article 21 - Protection of life and personal liberty.—No person shall be deprived of his life
or personal liberty except according to procedure established by law.

36 9/30/2023
 Constitution – Environment

Venkatagiriyappa v. Karnataka Electricity Board, 1999 (4) KarLJ 482

Does a citizen have any fundamental or other right to draw subsoil water for irrigation, business
or drinking purpose and in particular is any such right a part of the right to life or livelihood
guaranteed under Article 21 & Article 19 of the Constitution?

Petitioners - Agriculturists have dug borewells in their lands for drawing subsoil water for
irrigation purposes. Applied for electricity service for the borewell to the respondent-Board.

The Board vide endorsements issued to the petitioners intimated that service cannot be given to
the borewells of the petitioners as the same were situated within 185 Mts. from the public hand-
pump borewell.

37 9/30/2023
 Constitution – Environment

Venkatagiriyappa v. Karnataka Electricity Board, 1999 (4) KarLJ 482

Court indicated that the right to water does not cover water for irrigation and business purposes.

Whether irrigation water for subsistence crops and for livelihood should be treated in the same
way? – Not considered by Court

38 9/30/2023
 Constitution – Environment

Article 21- SC:

Right to life includes enjoyment of life with dignity and protection and preservation of
environment.

Right to wholesome environment – RLEK vs St of UP, AIR 1988 SC 2187

39 9/30/2023
FUNDAMENTAL DUTIES
• Art51A(g) to protect and improve the natural environment including forests,
lakes, rivers and wild life, and to have compassion for living creatures;
The National Environment Policy, 2006
i. Conservation of Critical Environmental Resources: To protect and
conserve critical ecological systems and resources, and invaluable natural
and man-made heritage, which are essential for life support, livelihoods,
economic growth, and a broad conception of human well-being.

ii. Intra-generational Equity: Livelihood Security for the Poor: To ensure

equitable access to environmental resources and quality for all sections of
society, and in particular, to ensure that poor communities, which are most
dependent on environmental resources for their livelihoods, are assured
secure access to these resources.
The National Environment Policy, 2006
iii. Inter-generational Equity: To ensure judicious use of environmental
resources to meet the needs and aspirations of the present and future
generations.

iv. Integration of Environmental Concerns in Economic and Social

Development: To integrate environmental concerns into policies, plans,
programmes, and projects for economic and social development.
The National Environment Policy, 2006
v. Efficiency in Environmental Resource Use: To ensure efficient use of
environmental resources in the sense of reduction in their use per unit of
economic output, to minimize adverse environmental impacts.

vi. Environmental Governance: To apply the principles of good governance

(transparency, rationality, accountability, reduction in time and costs,
participation, and regulatory independence) to the management and regulation
of use of environmental resources.
The National Environment Policy, 2006
vii. Enhancement of Resources for Environmental Conservation: To ensure
higher resource flows, comprising finance, technology, management skills,
traditional knowledge, and social capital, for environmental conservation
through mutually beneficial multistakeholder partnerships between local
communities, public agencies, the academic and research community,
investors, and multilateral and bilateral development partners.
Environmental
Law
MBL-PACE-NLSIU
 Browner Aspects
Pollution Control Laws:
• Water Act
• Air Act
• EPA

2 10/28/2023 MBL-PACE-Environment lAW

 Water

Industrial Effluents

Agricultural Run off

Municipal or Domestic Waste

3 10/28/2023 MBL-PACE-Environment lAW

 Water
Public Trust Doctrine

Government is not the owner but a trustee of natural resources(such as water).

Rights in water – 1st - navigation rights, fishing rights etc., & 2nd – Whether the public have an
enforceable right against the state?
US -
Three restrictions on Govt. –
1. Property subject to trust must not only be used for public purpose but be available for use by
the general public
2. Property may not be sold even for fair cash equivalent
3. Property must be maintained for particular types of uses

India – Public use and enjoyment; protect natural resources, and cannot be converted into
private ownership

Right to water
Subhash Kumar vs State of Bihar, (1991) 1 SCC 598

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6 10/28/2023 Add a footer
Clauses/principles that you would include for
protection of water
 Water (Protection and Control of Pollution) Act,
1974
Object:

To provide for the prevention and control of water pollution;

To the maintaining or restoring of wholesomeness of water ;
To establish pollution control boards; and
To confer on pollution control boards powers and functions relating to prevention
and control of water pollution.

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 Water (Protection and Control of Pollution) Act,
1974
WHEREAS it is expedient to provide for the prevention and control of water pollution and the
maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the
purposes aforesaid, of Boards for the prevention and control of water pollution and for conferring on and
assigning to such Boards powers and functions relating thereto;

AND WHEREAS Parliament has no power to make laws for the States with respect to any of the matters
aforesaid except as provided in articles 249 and 250 of the Constitution;

AND WHEREAS in pursuance of clause (1) of article 252 of the Constitution resolutions have been
passed by all the Houses of the Legislatures of the States of Assam, Bihar, Gujarat, Haryana, Himachal
Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal
to the effect that the matters aforesaid should be regulated in those States by Parliament by law.

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 Water (Protection and Control of Pollution) Act,
1974
Sec 2 (d) “occupier”, in relation to any factory or premises, means the person who has control over the affairs
of the factory or the premises, and includes, in relation to any substance, the person in possession of the
substance;

(dd) “outlet” includes any conduit pipe or channel, open or closed, carrying sewage or trade effluent or any
other holding arrangement which causes, or is likely to cause, pollution;

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 Water (Protection and Control of Pollution) Act,
1974
(e) “pollution” means such
• contamination of water
• alteration of the physical, chemical or biological properties of water
• discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water
(whether directly or indirectly) as may, or is likely to, create a nuisance
• render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial,
agricultural or other legitimate uses, or to the life and health of animals or plants or of acquatic organisms;

(g) “sewage effluent” means effluent from any sewerage system or sewage disposal works and includes
sullage from open drains;

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 Water (Protection and Control of Pollution) Act,
1974
(gg) “sewer” means any conduit pipe or channel, open or closed, carrying sewage or trade effluent;

(j) “stream” includes—

(i) river;
(ii) water course (whether flowing or for the time being dry);
(iii) inland water (whether natural or artificial);
(iv) sub-terranean waters;
(v) sea or tidal waters to such extent or, as the case may be, to such point as the State Government
may, by notification in the Official Gazette, specify in this behalf;

(k) “trade effluent” includes any liquid, gaseous or solid substance which is discharged from any premises
used for carrying on any industry, operation or process, or treatment and disposal system, other than
domestic sewage;

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 Water (Protection and Control of Pollution) Act,
1974

Narula Dyeing & Printing Works vs Union of India, AIR 1995 Guj 185

Obtaining a consent order does not entitle the industry to discharge effluents.

Failure to comply with the conditions in the consent order will result in lapse of the consent order.

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 Water (Protection and Control of Pollution) Act,
1974

Mahabir Soap and Gudakhu Factory vs Union of India, AIR 1995 Ori 218

The SPCB refused to consent to the continuation of industry on the ground that the factory is
located in the populated area and there was a public compliant. It was held that the refusal is in
the discretion of the SPCB and it is not for the Court to go into the reasons and substitute its own
opinion in place of the decision of the SPCB.

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 Water (Protection and Control of Pollution) Act,
1974

CG
CPCB
SG JB
SPCB

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 Water (Protection and Control of Pollution) Act,
1974
16. Functions of Central Board.—

(1) Subject to the provisions of this Act, the main function of the Central Board shall be to
promote cleanliness of streams and wells in different areas of the States.
(2) In particular and without prejudice to the generality of the foregoing function, the Central
Board may perform all or any of the following functions, namely:—
(a) advise the Central Government on any matter concerning the prevention and control of water
pollution;
(b) co-ordinate the activities of the State Boards and resolve disputes among them;
(c) provide technical assistance and guidance to the State Boards, carry out and sponsor
investigations and research relating to problems of water pollution and prevention, control or
abatement of water pollution;
(d) plan and organise the training of persons engaged or to be engaged in programmes for the
prevention, control or abatement of water pollution on such terms and conditions as the
Central Board may specify;

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 (e) organise through mass media a comprehensive programme regarding the prevention and control
of water pollution;
(ee) perform such of the functions of any State Board as may be specified in an order made under sub-
section (2) of section 18
(f) collect, compile and publish technical and statistical data relating to water pollution and the
measures devised for its effective prevention and control and prepare manuals, codes or guides
relating to treatment and disposal of sewage and trade effluents and disseminate information
connected therewith;
(g) lay down, modify or annul, in consultation with the State Government concerned, the standards for
a stream or well: Provided that different standards may be laid down for the same stream or well or for
different streams or wells, having regard to the quality of water, flow characteristics of the stream or
well and the nature of the use of the water in such stream or well or streams or wells; (h) plan and
cause to be executed a nation-wide programme for the prevention, control or abatement of water
pollution;
(i) perform such other functions as may be prescribed.

(3) The Board may establish or recognise a laboratory or laboratories to enable the Board to perform
its functions under this section efficiently including the analysis of samples of water from any stream
or well or of samples of any sewage or trade effluents

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 Water (Protection and Control of Pollution) Act,
1974
17. Functions of State Board.—
(1) Subject to the provisions of this Act, the functions of a State Board shall be—

(a) to plan a comprehensive programme for the prevention, control or abatement of pollution of
streams and wells in the State and to secure the execution thereof;
(b) to advise the State Government on any matter concerning the prevention, control or
abatement of water pollution;

(c) to collect and disseminate information relating to water pollution and the prevention, control or
abatement thereof;

(d) to encourage, conduct and participate investigations and research relating to problems of
water pollution and prevention, control or abatement of water pollution;

(e) to collaborate with the Central Board in organising the training of persons engaged or to be
engaged in programmes relating, to prevention, control or abatement of water pollution and to
organise mass education programmes relating thereto;

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 Water (Protection and Control of Pollution) Act,
1974
(f) to inspect sewage or trade effluents, works and plants for the treatment of sewage and trade
effluents and to review plans, specifications or other data relating to plants set up for the
treatment of water, works for the purification thereof and the system for the disposal of sewage or
trade effluents or in connection with the grant of any consent as required by this Act;

(g) to lay down, modify or annul effluent standards for the sewage and trade effluents and for the
quality of receiving waters (not being water in an inter-State stream) resulting from the discharge
of effluents and to classify waters of the State;

(h) to evolve economical and reliable methods of treatment of sewage and trade effluents,
having regard to the peculiar conditions of soils, climate and water resources of different regions
and more especially the prevailing flow characteristics of water in streams and wells which render
it impossible to attain even the minimum degree of dilution;

(i) to evolve methods of utilisation of sewage and suitable trade effluents in agriculture;

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 Water (Protection and Control of Pollution) Act,
1974
(j) to evolve efficient methods of disposal of sewage and trade effluents on land, as are necessary
on account of the predominant conditions of scant stream flows that do not provide for major part
of the year the minimum degree of dilution;

(k) to lay down standards of treatment of sewage and trade effluents to be discharged into any
particular stream taking into account the minimum fair weather dilution available in that stream
and the tolerance limits of pollution permissible in the water of the stream, after the discharge of
such effluents;

(l) to make, vary or revoke any order—

(i) for the prevention, control or abatement of discharges of waste into streams or wells;
(ii) requiring any person concerned to construct new systems for the disposal of sewage and trade
effluents or to modify, alter or extend any such existing system or to adopt such remedial
measures as are necessary to prevent, control or abate water pollution;

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 Water (Protection and Control of Pollution) Act,
1974
(m) to lay down effluent standards to be complied with by persons while causing discharge of
sewage or sullage or both and to lay down, modify or annul effluent standards for the sewage and
trade effluents;
(n) to advise the State Government with respect to the location of any industry the carrying on of
which is likely to pollute a stream or well;
(o) to perform such other functions as may be prescribed or as may, from time to time, be
entrusted to it by the Central Board or the State Government.

(2) The Board may establish or recognise a laboratory or laboratories to enable the Board to
perform its functions under this section efficiently, including the analysis of samples of water from
any stream or well or of samples of any sewage or trade effluents

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 Water (Protection and Control of Pollution) Act,
1974

18. Powers to give directions —

CB is bound by CG
SCB is bound by CG and SG
If SG direction is inconsistent with the directions of CB then the matter shall be referred
to CG

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 Case Scenario

An individual is at the front office of a building that is carrying on certain commercial operations.
He claims that he has been authorized on to inspect on behalf of SPCB.
He seeks records pertaining to the design of the building and records of purchase of chemicals used in the
building.

Can the person enter the building?

Can the person seek the records?
Is the occupier obligated to provide copy of the records.

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 Case Scenario

An individual is at the front office of an residential complex at 23:00 hrs.

He claims that he has been authorized on to inspect on behalf of SPCB and
wants to inspect the well.

He seeks records pertaining to the design of the building.

Can the person enter the building?

Can the person seek the records?

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 Water (Protection and Control of Pollution) Act,
1974
23. Power of entry and inspection.—
Any person empowered by a State Board - shall have a right at any time to enter, with such assistance as he
considers necessary, any place for the purpose of
(a) performing any of the functions of the Board entrusted to him;

(b) determining whether and if so in what manner, any such functions are to be performed or whether any
provisions of this Act or the rules made thereunder of any notice, order, direction or authorisation served,
made, given, or granted under this Act is being or has been complied with;

(c) for the purpose of examining any plant, record, register, document or any other material object or for
conducting a search of any place in which he has reason to believe that an offence under this Act or the rules
made thereunder has been or is being or is about to be committed and for seizing any such plant, record,
register, document or other material object, if he has reason to believe that it may furnish evidence of the
commission of an offence punishable under this Act or the rules made thereunder:

Provided that the right to enter under this sub-section for the inspection of a well shall be exercised only at
reasonable hours in a case where such well is situated in any premises used for residential purposes and the
water thereof is used exclusively for domestic purposes.

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 Water (Protection and Control of Pollution) Act,
1974

55. Local authorities to assist.—

All local authorities shall render such help and assistance and furnish such information to the
Board as it may require for the discharge of its functions, and shall make available to the Board for
inspection and examination such records, maps, plans and other documents as may be necessary
for the discharge of its functions.

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 Water (Protection and Control of Pollution) Act,
1974

58. Bar of jurisdiction.—No civil court shall have jurisdiction to entertain any suit or
proceeding in respect of any matter which an appellate authority constituted under this Act
is empowered by or under this Act to determine, and no injunction shall be granted by any
court or other authority in respect of any action taken or to be taken in pursuance of any
power conferred by or under this Act.

60. Overriding effect.—The provisions of this Act shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than this Act.

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 Water (Protection and Control of Pollution) Act,
1974
State of MP vs Kedia Leather & Liquor Ltd,- 19.08.2003 SC Appeal (crl.) 151-158 of 1996

The Sub-Divisional Magistrate of the area concerned served orders in terms of Section 133 of the
Code directing the respondents who owned industrial units to close their industries on the
allegation that serious pollution was created by discharge of effluent from their respective
factories and thereby a public nuisance was caused.

Section 133 of the Code appears in Chapter X of the Code which deals with maintenance of public
order and tranquility. It is a part of the heading 'public nuisance’.

Introduction of Water (Prevention and Control of Pollution) Act, 1974

Was there was implied repeal of Section 133 of the Code of Criminal Procedure, 1973 is questioned

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 Water (Protection and Control of Pollution) Act,
1974

State of MP vs Kedia Leather & Liquor Ltd,- 19.08.2003 SC Appeal (crl.) 151-158 of 1996

(1) Whether there is direct conflict between the two provisions.

(2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-
matter replacing the earlier law;
(3) Whether the two laws occupy the same field.

“While as noted above the provisions of Section 133 of the Code are in the nature of preventive
measures, the provisions contained in the two Acts are not only curative but also preventive and
penal. The provisions appear to be mutually exclusive and the question of one replacing the other
does not arise. Above being the position, the High Court was not justified in holding that there
was any implied repeal of Section 133 of the Code.”

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 Water (Protection and Control of Pollution) Act,
1974

Sreenivasa Distilleries vs Thyagarajan, AIR 1986 AP 328

Suit was filed praying for permanent injunction restraining defendant from letting out noxious
effluents into the river.

Defendant raised objection that there is a bar under Sec 58

1st – not to entertain suit or proceedings

2nd – no injunction

Action is to prevent the defendant from polluting the water.

NB

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 Water (Protection and Control of Pollution) Act,
1974
33A. Power to give directions.—

….Board may, in the exercise of its powers and performance of its functions under this Act, issue any
directions in writing to any person, officer or authority, and such person, officer or authority shall be
bound to comply with such directions.

Explanation.—For the avoidance of doubts, it is hereby declared that the power to issue directions
under this section includes the power to direct—
(a) the closure, prohibition or regulation of any industry, operation or process; or

(b) the stoppage or regulation of supply of electricity, water or any other service.

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 Water (Protection and Control of Pollution) Act,
1974

Ambuja Petro Chemicals vs A P Pollution Control Board, AIR 1997 AP 41

Inspection by SPCB officers on 11.12.1995 and 3.1.1996

Company issues notice that: effluent sample discloses the values are in excess of the standards
prescribed by the Board. Also that the company is not lifting the effluents for final treatment and
disposal.

SPCB after proceedings issued order for closure of the unit by order dated 4.4.1996

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 Water (Protection and Control of Pollution) Act,
1974
Ambuja Petro Chemicals vs A P Pollution Control Board, AIR 1997 AP 41

“It is true that in every case, it is not as if the Board can issue direction ordering closure of the
industry. It depends upon the gravity of irregularities and the seriousness of Contravention and
other allied matters.

The directions that may be issued by the Board depends upon the facts and circumstances of
each case and it would not be possible for this Court to lay down any guidelines as such, but in
appropriate cases, the Court can certainly intervene, if the order passed by the Board is totally
disproportionate to the irregularity and the contraventions complained of. It is true that this Court
would intervene in case if it is satisfied that the directions were wholly unreasonable or violative
of any provisions of the Act. At the same time the Court does not sit in appeal over the orders
passed by the Board. In a judicial review proceedings it may not be appropriate for this Court to
determine the matter on merits, in view of the magnitude, complexity and technical nature of the
enquiry involved. The Court does not possess the required expertise and therefore, cannot pass
judgment on the appropriateness or the adequacy of a particular direction.”

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 Water (Protection and Control of Pollution) Act,
1974

Ambuja Petro Chemicals vs A P Pollution Control Board, AIR 1997 AP 41

“In the instant case, it is not possible to hold that the order passed by the respondent-Board
directing the closure of industry is shockingly disproportionate and excessively Severe.
However, it is always open to the petitioner-industry to comply with the directions issued by the
respondent-Board and fulfil the requirements of standards and approach the respondent-Board
for restarting its industrial activities and the same shall have to be considered' by the Board on its
own merits.”

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 • Stella Silks Limited vs State of Karnataka AIR 2001 Kant

Company having not complied with various conditions that had been imposed on it by the Board in the
matter of discharging pollutants from its factory premises, particularly, discharge of contaminated
water, had been put on notice by the Pollution Control Board to take remedial steps immediately and in
the alternative, the Board will be constrained to pass appropriate orders in this regard.

Discharge in violation of consent order

The question that falls for consideration is as to whether this Court should in any way intervene with the
order passed by the Board under Section 33-A directing the closure of the petitioner-industry. The order
of closure itself has come to be passed in the wake of various violations committed by the petitioner-
industry both with the provisions of the Act and the rules and regulations thereunder and also the
conditions imposed by the Board for grant of consent under the provisions of the Water (Prevention and
Control of Pollution) Act, 1974.

Court held that the company was liable for punishment under Water Act

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 Water (Protection and Control of Pollution) Act,
1974
47. Offences by companies.—

(1) Offence under this Act has been committed by a company - every person who at the time the
offence was committed was in charge of, and was responsible to the company for the conduct of,
the business of the company, as well as the company, shall be deemed to be guilty of the offence
and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any
punishment provided in this Act if he proves that the offence was committed without his knowledge or
that he exercised all due diligence to prevent the commission of such offence.

(2) …it is proved that the offence has been committed with the consent or connivance of, or is
attributable to any neglect on the part of, any director, manager, secretary or other officer of the
company, such director, manager, secretary or other officer shall also be deemed to be guilty of that
offence and shall be liable to be proceeded against and punished accordingly.
Explanation.—For the purposes of this section,—
(a) ”company” means any body corporate, and includes a firm or other association of individuals; and
(b) “director” in relation to a firm means a partner in the firm.
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 The Water (Protection and Control of Pollution) Act,
1974

21. Power to take samples of effluents and procedure to be followed in connection therewith

22. Reports of the result of analysis on samples taken under section 21.

24. Prohibition on use of stream or well for disposal of polluting matter, etc.

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 The Water (Protection and Control of Pollution) Act,
1974

Delhi Bottling Co. Pvt. Ltd. vs Central Board For The Prevention
AIR 1986 Delhi 152

Effluents discharged into Yamuna

Sample collection – One should have been given to the representative of the company

Sec 21 - Procedure of collecting samples

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 The Water (Protection and Control of Pollution) Act,
1974
“Further in view of the said pleadings of the parties it has to be taken
that a demand was also made by the said representative to the officials
of the board to divide the sample into two parts and to get the same
analysed in accordance with Section 21(5) of the Act, but that request
was not acceded to. I accordingly hold that the officials of the Board
were not justified in getting the sample analysed from a laboratory only
recognised by the Board instead of getting the same analysed from the
laboratory of the Delhi Administration and without complying with
requirements of Sub-section (5) of Section 21 of the Act.”

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 The Water (Protection and Control of Pollution) Act,
1974

49. Cognizance of offences.—

1) No court shall take cognizance of any offence under this Act except on a complaint made
by—
(a) a Board or any officer authorised in this behalf by it; or
(b) any person who has given notice of not less than sixty days, in the manner prescribed,
of the alleged offence and of his intention to make a complaint, to the Board or officer
authorised as aforesaid, and no court inferior to that of a Metropolitan Magistrate or a
Judicial Magistrate of the first class shall try any offence punishable under this Act.

“2) Where a complaint has been made under clause (b) of sub-section (1), the Board shall, on
demand by such person, make available the relevant reports in its possession to that person:
Provided that the Board may refuse to make any such report available to such person if the
same is, in its opinion, against the public interest.” – 1998 Amendment

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 NATIONAL WATER POLICY (2012)
Ministry of Water Resources

A scarce natural resource, water is fundamental to life, livelihood, food security

and sustainable development. India has more than 18 % of the world’s population,
but has only 4% of world’s renewable water resources and 2.4% of world’s land
area. There are further limits on utilizable quantities of water owing to uneven
distribution over time and space. In addition, there are challenges of frequent floods
and droughts in one or the other part of the country.

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42 10/28/2023 MBL-PACE-Environment lAW
 NATIONAL WATER POLICY (2012)
Water Allocation Priorities
Drinking water, irrigation, hydro-power, ecology, Agro-insutries and non-agricultural industries,
Navigation and other uses

Project Planning
Water resource development project

Ground Water Development

Periodical reassessment and regulation of use of ground water

Drinking Water
Safe drinking water – Urban and Rural areas

Irrigation
Appropriate irrigation techniques – optimization – optimal productivity – equity and social
justice in allocating water resources

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 NATIONAL WATER POLICY (2012)
Participatory approach of water Resource Management
Governmental agencies, users, other stake-holders, municipality and panchayat

Water Quality
Monitoring of ground water and surface water ; Effluent to be treated; polluter pays principles

Conservation of Water
Consciousness though education, regulation, incentives and disincentives

Flood Control and Management

Master Plan – flood prone basin

Land Erosion by sea and river

Drought-Prone area
Water sharing and distribution among the States
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 Ground Water
M P Rambabu vs Divisional Forest Officer, AIR 2002 AP 256

Aquaculture – rendering the land surrounding unfit for cultivation

Deep sub soil is the property of the State and it has the right to regulate the use of land

Under no circumstance, he should be permitted to restrict the flow of water to neighboring

land or discharging effluents.

Development of Ground Water (Regulation and Control) Bill, 1992 – prepared for guidance to
States

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 Ground Water
Central Ground Water Authority

Under the EPA, 1986 – The Ground water (Development and Protection) Rules, 1998

Tamil Nadu Groundwater (Development and Management) Act, 2003

Karnataka Ground Water (Regulation for protection of sources of Drinking Water) Act, 1999

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Environmental
Law
MBL-PACE-NLSIU
 The Air (Pollution Prevention and Control of
Pollution) Act, 1981

An Act to provide for the prevention, control and abatement of air pollution, for the
establishment, with a view to carrying out the aforesaid purposes, of Boards, for conferring on
and assigning to such Boards powers and functions relating thereto and for matters connected
therewith.

WHEREAS decisions were taken at the United Nations Conference on the Human Environment
held in Stockholm in June, 1972, in which India participated, to take appropriate steps for the
preservation of the natural resources of the earth which, among other things, include the
preservation of the quality of air and control of air pollution;

AND WHEREAS it is considered necessary to implement the decisions aforesaid in so far as

they relate to the preservation of the quality of air and control of air pollution;

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 The Air (Pollution Prevention and Control of
Pollution) Act, 1981

(a) “air pollutant” means any

solid
liquid
gaseous substance
noise
present in the atmosphere in such concentration as may be or tend to be injurious
to human beings or other living creatures or plants or property or environment;

(b) “air pollution” means the presence in the atmosphere of any air pollutant

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 The Air (Pollution Prevention and Control of
Pollution) Act, 1981

(i) “control equipment” means any

apparatus,
device,
equipment or system
to control the quality and manner of emission of any air pollutant and includes any device used
for securing the efficient operation of any industrial plant

(j) “emission” means any solid or liquid or gaseous substance coming out of any chimney, duct
or flue or any other outlet;

(k) “industrial plant” means any plant used for any industrial or trade purposes and emitting any
air pollutant into the atmosphere;

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 The Air (Pollution Prevention and Control of
Pollution) Act, 1981
19 – Pollution Control Areas

20. Power to give instructions for ensuring standards for emission from automobiles.

21. Restrictions on use of certain industrial plants.

22. Persons carrying on industry, etc., not to allow emission of air pollutants in excess of the standard
laid down by State Board.

24. Power of entry and inspection.

25. Power to obtain information.

26. Power to take samples of air or emission and procedure to be followed in connection therewith.

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 The Air (Pollution Prevention and Control of
Pollution) Act, 1981

M C Metha vs Union of India, AIR 1997 Sc 734

Taj Trapezium Case – Sulphur dioxide – Refineries

Murli S Deora vs Union of India, AIR 2002 SC 40

Smoking in public places

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 Air Pollution Control Area

State Government can declare a air pollution control area

In a APCA SG or SPCB cannot exempt a polluter

IN APCA every industry must obtain consent order

Polluters outside of APCA cannot be prosecuted

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 Standards Prescribed

Jackson&Company vs Union of India, 2005 (82) DRJ 298

Diesel generator manufacturer challenging new noise limits.

Art 19 vs technology-forcing standards

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 Standards Prescribed

Source Standard – Restrict the source of pollution

Product standard – manufacture of products based on the standard

Ambient standard – Maximum limit on pollutants in the air

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 Noise Pollution
Moulana Mufti Syed Barkati vs State of West Bengal, AIR 1999 Cal 15

Challenged the restriction imposed on use of loudspeakers between 9.00 pm to 7.00 am.
“Azan” integral to Islam was required to be called 5 times a day.

Dismissed the petition, holding that the use of loudspeakers was a technological development and was
not a part of Islam.

Shobana Ramasubramanyam vs Chennai Metropolitan Development Authority, AIR 2000 Mad 125

Sound pollution and vibration – operation of heavy machinery – restrained use of pile driven system
instead to use bore driven technique or any other method.

10 11/6/2023 Add a footer

 Noise Pollution
Rabin Mukherjee vs State of West Bengal, AIR 1985 Cal 222 - Nuisance created by noisy eclectic and air
horns - buses and trucks – direction to transport authorities to enforce Motor Vehicles Act ,1939 and
Rule 114 Bengal Motor Vehicle Rules,1940 – restricting use of loud and shrill horns

Dr. Yashwant Trimbak Oke vs State of Maharashtra, WP No. 1732 of 1995, Bombay High Court –

Public Interest Litigation the State Government has taken out this Notice of Motion for permitting it to
grant permission to various applicants for holding Navratri festival with the use of loudspeakers in
Greater Mumbai from 13th to 21st October 1996 upto 1.00 a.m. It is pointed out that the authorities of
State Government under the Rules called "the Rules for Licensing, Controlling and Prohibiting the use
of Loudspeaker in or near all public entertainment place in Greater Bombay Rule, 1994" empowers
them to grant exemption in certain cases.

Court held nobody can object to any festival and the festivals can be enjoyed even without using
loudspeakers. Directed the State to protect silent sufferers like students, old, inform and others who
are not interested.
11 11/6/2023 Add a footer
 Noise Pollution
P A Jacob vs State of Kerala, AIR 1993 Ker 1 –

Petitioner belongs to a denomination of Christianity, known as 'Knanaya' Christians. Thomas of Cana

came to India from Mesopottomia in 344 A.D. and organised the south eastern church of Syrian
Christians, as St. Thomas organised the north eastern church in A.D. 52. The followers of Thomas of
Cana, came to be known as 'Knanaya' Christians. Some of the Knanaya Christians follow the rites of the
Catholic Church, while others follow the Marthomite rites. Members of 'Knanaya' denomination do not
marry outside that denomination, it is said -- with a view to preserve the purity of stock.

This practice is denounced by petitioner. In his view, a Knanaya Christian should be free to marry
anyone, professing the faith of Christianity. To propagate his views in this regard, petitioner sought
permission to hold meetings using sound amplifiers. Second respondent-- Sub-Inspector of Police,
granted permission , but withdrew the permission later, apprehending that views of petitioner may
incite to violence the conservatives in the Church.

12 11/6/2023 Add a footer

 Noise Pollution
Right to be let alone, -- freedom from aural aggression -- Article 21 guarantees freedom from
tormenting sounds. What is negatively the right to be let alone, is positively the right to be free from
noise. Exposure to high noise, is a known risk and it is proved to cause bio-chemical changes in man,
elevating levels of blood catecholamine, cholesterol, white cell counts and lymphocytes. Laboratory
studies made by monitoring electroencephalographic (EEG) responses and changes in neurovegetative
reactions during sleep, show that disturbance of sleep becomes increasingly apparent as ambient noise
levels exceed about 35 db (A) Leq.

Noise produces different reactions along the hypothalamohypophyseal-adrenal axis, including an

increase in adenocorti-cotropic hormone (ACTH), affecting sympathetic division of the autonomic
nervous system. Eye dilation, bradycardia, and increased skin conductance are proportional to the
intensity of noise above 70 dB…

13 11/6/2023 Add a footer

 Noise Pollution
Absence of any valid ground, cancellation of the permission granted is arbitrary. While petitioner has no
fundamental right to use a loud speaker, he will be free to avail of the amenity of using a loud speaker
in a reasonable manner. Second respondent Sub-Inspector of Police, will permit petitioner to hold
meetings with the use of loud speakers of a box type, for purposes of holding meetings as indicated in
the writ petition. But, the output from the loud speaker, shall not exceed the range, necessary to reach
a willing audience, confined in a reasonable area. If it exceeds such limits, Police will be free to stop the
use of loud speakers.

14 11/6/2023 Add a footer

 Noise Pollution
The Noise Pollution (Regulation and Control) Rules, 2000

Ambient Air Quality Standard

Categories dB
Day time Night Time
Industrial 75 70
Commercial 65 55
Residential 55 45
Silence 50 40

15 11/6/2023 Add a footer

 Solution by Commentators
• Employ a regional approach rather than a city-based approach

• Eliminate dirty fuels – Coal and Diesel

• Employ abetment technologies to reduce construction dust

16 11/6/2023 NLSIU-PACE-MBL
 Can air pollution be a political issue?

Can it be a part of the Election manifesto mandate?

17 11/6/2023 NLSIU-PACE-MBL
Is this sufficient?
Do we have laws covering all kinds of pollution?
 The Environment (Protection) Act, 1986

• 5 years after the AA

• An Act to provide for the protection and improvement of environment and for matters
connected therewith.

• WHEREAS decisions were taken at the United Nations Conference on the Human
Environment held at Stockholm in June, 1972, in which India participated, to take
appropriate steps for the protection and improvement of human environment; AND

• WHEREAS it is considered necessary further to implement the decisions aforesaid in so far

as they relate to the protection and improvement of environment and the prevention of
hazards to human beings, other living creatures, plants and property;

19 11/6/2023 Add a footer

 The Environment (Protection) Act, 1986

• Bhopal Gas Tragedy – 2 & 3 Dec 1984

• Enacted the Bhopal Gas Leak Disaster Act, 1985 - March 1985

• Sec 2(a)“Environment” includes water, air and land and the inter-relationship which exists
among and between water, air and land, and human beings, other living creatures, plants,
micro-organisms and property;

• Sec 2(b) “environmental pollutant” means any solid, liquid or gaseous substance present in
such concentration as may be, or tend to be, injurious to environment; (in any form – if
added so that it can cover biotechnology/radiation pollution – ILI expert commtitee)

• Sec 2(c) “environmental pollution” means the presence in the environment of any
environmental pollutant;

20 11/6/2023 Add a footer

 The Environment (Protection) Act, 1986

• Umbrella law vs General Law – Definition of environment – There by the missing links were
covered – paradigm shift from narrow concept of pollution to wider aspects of environment

• Framework law – Frame is provided (scope, extent and focus) – it has to provide the
opportunity for the casting of the entire structure

• Enabling law – Like a power generator – lines can be drawn to supply the power to various
places – but it allowed to enable and empower various aspects related to environmental
protection

Pollution Control - Product Standards; Motor Vehicle and Noise

Hazardous Substance Regulation -
EIA
Waste Regulation
Coast and other Ecologically Fragile Areas
Residuary Category
21 11/6/2023 Add a footer
Environmental
Law
MBL-PACE-NLSIU
 The Air (Pollution Prevention and Control of
Pollution) Act, 1981

An Act to provide for the prevention, control and abatement of air pollution, for the
establishment, with a view to carrying out the aforesaid purposes, of Boards, for conferring on
and assigning to such Boards powers and functions relating thereto and for matters connected
therewith.

WHEREAS decisions were taken at the United Nations Conference on the Human Environment
held in Stockholm in June, 1972, in which India participated, to take appropriate steps for the
preservation of the natural resources of the earth which, among other things, include the
preservation of the quality of air and control of air pollution;

AND WHEREAS it is considered necessary to implement the decisions aforesaid in so far as

they relate to the preservation of the quality of air and control of air pollution;

2 11/6/2023 Add a footer

 The Air (Pollution Prevention and Control of
Pollution) Act, 1981

(a) “air pollutant” means any

solid
liquid
gaseous substance
noise
present in the atmosphere in such concentration as may be or tend to be injurious
to human beings or other living creatures or plants or property or environment;

(b) “air pollution” means the presence in the atmosphere of any air pollutant

3 11/6/2023 Add a footer

 The Air (Pollution Prevention and Control of
Pollution) Act, 1981

(i) “control equipment” means any

apparatus,
device,
equipment or system
to control the quality and manner of emission of any air pollutant and includes any device used
for securing the efficient operation of any industrial plant

(j) “emission” means any solid or liquid or gaseous substance coming out of any chimney, duct
or flue or any other outlet;

(k) “industrial plant” means any plant used for any industrial or trade purposes and emitting any
air pollutant into the atmosphere;

4 11/6/2023 Add a footer

 The Air (Pollution Prevention and Control of
Pollution) Act, 1981
19 – Pollution Control Areas

20. Power to give instructions for ensuring standards for emission from automobiles.

21. Restrictions on use of certain industrial plants.

22. Persons carrying on industry, etc., not to allow emission of air pollutants in excess of the standard
laid down by State Board.

24. Power of entry and inspection.

25. Power to obtain information.

26. Power to take samples of air or emission and procedure to be followed in connection therewith.

5 11/6/2023 Add a footer

 The Air (Pollution Prevention and Control of
Pollution) Act, 1981

M C Metha vs Union of India, AIR 1997 Sc 734

Taj Trapezium Case – Sulphur dioxide – Refineries

Murli S Deora vs Union of India, AIR 2002 SC 40

Smoking in public places

6 11/6/2023 Add a footer

 Air Pollution Control Area

State Government can declare a air pollution control area

In a APCA SG or SPCB cannot exempt a polluter

IN APCA every industry must obtain consent order

Polluters outside of APCA cannot be prosecuted

7 11/6/2023 NLSIU-PACE-MBL
 Standards Prescribed

Jackson&Company vs Union of India, 2005 (82) DRJ 298

Diesel generator manufacturer challenging new noise limits.

Art 19 vs technology-forcing standards

8 11/6/2023 NLSIU-PACE-MBL
 Standards Prescribed

Source Standard – Restrict the source of pollution

Product standard – manufacture of products based on the standard

Ambient standard – Maximum limit on pollutants in the air

9 11/6/2023 NLSIU-PACE-MBL
 Noise Pollution
Moulana Mufti Syed Barkati vs State of West Bengal, AIR 1999 Cal 15

Challenged the restriction imposed on use of loudspeakers between 9.00 pm to 7.00 am.
“Azan” integral to Islam was required to be called 5 times a day.

Dismissed the petition, holding that the use of loudspeakers was a technological development and was
not a part of Islam.

Shobana Ramasubramanyam vs Chennai Metropolitan Development Authority, AIR 2000 Mad 125

Sound pollution and vibration – operation of heavy machinery – restrained use of pile driven system
instead to use bore driven technique or any other method.

10 11/6/2023 Add a footer

 Noise Pollution
Rabin Mukherjee vs State of West Bengal, AIR 1985 Cal 222 - Nuisance created by noisy eclectic and air
horns - buses and trucks – direction to transport authorities to enforce Motor Vehicles Act ,1939 and
Rule 114 Bengal Motor Vehicle Rules,1940 – restricting use of loud and shrill horns

Dr. Yashwant Trimbak Oke vs State of Maharashtra, WP No. 1732 of 1995, Bombay High Court –

Public Interest Litigation the State Government has taken out this Notice of Motion for permitting it to
grant permission to various applicants for holding Navratri festival with the use of loudspeakers in
Greater Mumbai from 13th to 21st October 1996 upto 1.00 a.m. It is pointed out that the authorities of
State Government under the Rules called "the Rules for Licensing, Controlling and Prohibiting the use
of Loudspeaker in or near all public entertainment place in Greater Bombay Rule, 1994" empowers
them to grant exemption in certain cases.

Court held nobody can object to any festival and the festivals can be enjoyed even without using
loudspeakers. Directed the State to protect silent sufferers like students, old, inform and others who
are not interested.
11 11/6/2023 Add a footer
 Noise Pollution
P A Jacob vs State of Kerala, AIR 1993 Ker 1 –

Petitioner belongs to a denomination of Christianity, known as 'Knanaya' Christians. Thomas of Cana

came to India from Mesopottomia in 344 A.D. and organised the south eastern church of Syrian
Christians, as St. Thomas organised the north eastern church in A.D. 52. The followers of Thomas of
Cana, came to be known as 'Knanaya' Christians. Some of the Knanaya Christians follow the rites of the
Catholic Church, while others follow the Marthomite rites. Members of 'Knanaya' denomination do not
marry outside that denomination, it is said -- with a view to preserve the purity of stock.

This practice is denounced by petitioner. In his view, a Knanaya Christian should be free to marry
anyone, professing the faith of Christianity. To propagate his views in this regard, petitioner sought
permission to hold meetings using sound amplifiers. Second respondent-- Sub-Inspector of Police,
granted permission , but withdrew the permission later, apprehending that views of petitioner may
incite to violence the conservatives in the Church.

12 11/6/2023 Add a footer

 Noise Pollution
Right to be let alone, -- freedom from aural aggression -- Article 21 guarantees freedom from
tormenting sounds. What is negatively the right to be let alone, is positively the right to be free from
noise. Exposure to high noise, is a known risk and it is proved to cause bio-chemical changes in man,
elevating levels of blood catecholamine, cholesterol, white cell counts and lymphocytes. Laboratory
studies made by monitoring electroencephalographic (EEG) responses and changes in neurovegetative
reactions during sleep, show that disturbance of sleep becomes increasingly apparent as ambient noise
levels exceed about 35 db (A) Leq.

Noise produces different reactions along the hypothalamohypophyseal-adrenal axis, including an

increase in adenocorti-cotropic hormone (ACTH), affecting sympathetic division of the autonomic
nervous system. Eye dilation, bradycardia, and increased skin conductance are proportional to the
intensity of noise above 70 dB…

13 11/6/2023 Add a footer

 Noise Pollution
Absence of any valid ground, cancellation of the permission granted is arbitrary. While petitioner has no
fundamental right to use a loud speaker, he will be free to avail of the amenity of using a loud speaker
in a reasonable manner. Second respondent Sub-Inspector of Police, will permit petitioner to hold
meetings with the use of loud speakers of a box type, for purposes of holding meetings as indicated in
the writ petition. But, the output from the loud speaker, shall not exceed the range, necessary to reach
a willing audience, confined in a reasonable area. If it exceeds such limits, Police will be free to stop the
use of loud speakers.

14 11/6/2023 Add a footer

 Noise Pollution
The Noise Pollution (Regulation and Control) Rules, 2000

Ambient Air Quality Standard

Categories dB
Day time Night Time
Industrial 75 70
Commercial 65 55
Residential 55 45
Silence 50 40

15 11/6/2023 Add a footer

 Solution by Commentators
• Employ a regional approach rather than a city-based approach

• Eliminate dirty fuels – Coal and Diesel

• Employ abetment technologies to reduce construction dust

16 11/6/2023 NLSIU-PACE-MBL
 Can air pollution be a political issue?

Can it be a part of the Election manifesto mandate?

17 11/6/2023 NLSIU-PACE-MBL
Is this sufficient?
Do we have laws covering all kinds of pollution?
 The Environment (Protection) Act, 1986

• 5 years after the AA

• An Act to provide for the protection and improvement of environment and for matters
connected therewith.

• WHEREAS decisions were taken at the United Nations Conference on the Human
Environment held at Stockholm in June, 1972, in which India participated, to take
appropriate steps for the protection and improvement of human environment; AND

• WHEREAS it is considered necessary further to implement the decisions aforesaid in so far

as they relate to the protection and improvement of environment and the prevention of
hazards to human beings, other living creatures, plants and property;

19 11/6/2023 Add a footer

 The Environment (Protection) Act, 1986

• Bhopal Gas Tragedy – 2 & 3 Dec 1984

• Enacted the Bhopal Gas Leak Disaster Act, 1985 - March 1985

• Sec 2(a)“Environment” includes water, air and land and the inter-relationship which exists
among and between water, air and land, and human beings, other living creatures, plants,
micro-organisms and property;

• Sec 2(b) “environmental pollutant” means any solid, liquid or gaseous substance present in
such concentration as may be, or tend to be, injurious to environment; (in any form – if
added so that it can cover biotechnology/radiation pollution – ILI expert commtitee)

• Sec 2(c) “environmental pollution” means the presence in the environment of any
environmental pollutant;

20 11/6/2023 Add a footer

 The Environment (Protection) Act, 1986

• Umbrella law vs General Law – Definition of environment – There by the missing links were
covered – paradigm shift from narrow concept of pollution to wider aspects of environment

• Framework law – Frame is provided (scope, extent and focus) – it has to provide the
opportunity for the casting of the entire structure

• Enabling law – Like a power generator – lines can be drawn to supply the power to various
places – but it allowed to enable and empower various aspects related to environmental
protection

Pollution Control - Product Standards; Motor Vehicle and Noise

Hazardous Substance Regulation -
EIA
Waste Regulation
Coast and other Ecologically Fragile Areas
Residuary Category
21 11/6/2023 Add a footer
Environmental Law
MBL-PACE-NLSIU
The Environment (Protection) Act, 1986
• 5 years after the AA

• An Act to provide for the protection and improvement of environment and for matters
connected therewith.

• WHEREAS decisions were taken at the United Nations Conference on the Human
Environment held at Stockholm in June, 1972, in which India participated, to take
appropriate steps for the protection and improvement of human environment; AND

• WHEREAS it is considered necessary further to implement the decisions aforesaid in so far

as they relate to the protection and improvement of environment and the prevention of
hazards to human beings, other living creatures, plants and property;

ADD A FOOTER 12/19/2023 2

The Environment (Protection) Act, 1986

• Bhopal Gas Tragedy – 2 & 3 Dec 1984

• Enacted the Bhopal Gas Leak Disaster Act, 1985 - March 1985

• Sec 2(a)“Environment” includes water, air and land and the inter-relationship which exists
among and between water, air and land, and human beings, other living creatures, plants,
micro-organisms and property;

• Sec 2(b) “environmental pollutant” means any solid, liquid or gaseous substance present in
such concentration as may be, or tend to be, injurious to environment; (in any form – if
added so that it can cover biotechnology/radiation pollution – ILI expert commtitee)

• Sec 2(c) “environmental pollution” means the presence in the environment of any
environmental pollutant;

ADD A FOOTER 12/19/2023 3

The Environment (Protection) Act, 1986
• Umbrella law vs General Law – Definition of environment – There by the missing links were
covered – paradigm shift from narrow concept of pollution to wider aspects of environment

• Framework law – Frame is provided (scope, extent and focus) – it has to provide the
opportunity for the casting of the entire structure

• Enabling law – Like a power generator – lines can be drawn to supply the power to various
places – but it allowed to enable and empower various aspects related to environmental
protection

ADD A FOOTER 12/19/2023 4

The Environment (Protection) Act, 1986
(d) “handling”, in relation to any substance, means the manufacture, processing, treatment,
package, storage, transportation, use, collection, destruction, conversion, offering for sale, transfer or
the like of such substance;

(e) “hazardous substance” means any substance or preparation which, by reason of its chemical or
physico-chemical properties or handling, is liable to cause harm to human beings, other living
creatures, plants, micro-organism, property or the environment;

(f) “occupier”, in relation to any factory or premises, means a person who has control over the
affairs of the factory or the premises and includes, in relation to any substance, the person in
possession of the substance;

ADD A FOOTER 12/19/2023 5

The Environment (Protection) Act, 1986
24. Effect of other laws.—

(1) Subject to the provisions of sub-section (2), the provisions of this Act and the rules or
orders made therein shall have effect notwithstanding anything inconsistent therewith
contained in any enactment other than this Act.

(2) Where any act or omission constitutes an offence punishable under this Act and also under
any other Act then the offender found guilty of such offence shall be liable to be punished
under the other Act and not under this Act.

24(2) – 1987 amendment to AA and WA

Section 24 EPA takes precedence over Air Act – Standards

Punishment under the other Act

ADD A FOOTER 12/19/2023 6
The Environment (Protection) Act, 1986
6. Rules to regulate environmental pollution.—
6(2)
(a) the standards of quality of air, water or soil for various areas and purposes;
(b) the maximum allowable limits of concentration of various environmental
pollutants (including noise) for different areas;
(c) the procedures and safeguards for the handling of hazardous substances;
(d) the prohibition and restrictions on the handling of hazardous substances in
different areas;
(e) the prohibition and restrictions on the location of industries and the carrying on
of processes and operations in different areas;
(f) the procedures and safeguards for the prevention of accidents which may cause
environmental pollution and for providing for remedial measures for such
accidents

ADD A FOOTER 12/19/2023 7

The Environment (Protection) Act, 1986
7. Persons carrying on industry, operation, etc., not to allow emission or discharge of
environmental pollutants in excess of the standards.—

No person carrying on any industry, operation or process shall discharge or emit or permit to be
discharged or emitted any environmental pollutant in excess or such standards as may be prescribed.

8. Persons handling hazardous substances to comply with procedural safeguards.—

No person shall handle or cause to be handled any hazardous substance except in accordance with
such procedure and after complying with such safeguards as may be prescribed.

ADD A FOOTER 12/19/2023 8

The Environment (Protection) Act, 1986
15. Penalty for contravention of the provisions of the Act and the rules, orders and directions.—

(1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or
orders or directions issued thereunder, shall, in respect of each such failure or contravention, be
punishable with imprisonment for a term which may extend to five years or with fine which may
extend to one lakh rupees, or with both, and in case the failure or contravention continues, with
additional fine which may extend to five thousand rupees for every day during which such failure
or contravention continues after the conviction for the first such failure or contravention.

(2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year
after the date of conviction, the offender shall be punishable with imprisonment for a term which
may extend to seven years.

ADD A FOOTER 12/19/2023 9

The Environment (Protection) Act, 1986
Section 17(g) SPCB – will notify emission standards under Air Act

EPA – CG can lay down the emission standards – EPRules , 1986

Section 24 EPA takes precedence over Air Act

ADD A FOOTER 12/19/2023 10

The Environment (Protection) Act, 1986
Criticism –

1. Traffic, overburdened mass transportation systems, slums and congestion

2. Plasma (Physics)

3. Section 24

ADD A FOOTER 12/19/2023 11

NLSIU-PACE-MBL 12/19/2023 12
 Blue Lady
In 2003, a boiler explosion on the SS Norway (former name of the Blue Lady) killed seven of its
crew and injured seventeen in the port of Miami. The ship was towed to Germany, left German
waters in May 2005, and docked in Malaysia to become a floating hotel. It then went to Dubai
and then towards Bangladesh where it was refused entry by the Bangladeshi Government
(because of the hazardous waste it contained).

It then moved towards the ship dismantling site of Alang in May 2006, but an application in the
Supreme Court of India prevented it from entering Indian waters. Because of the monsoon, the
owner of the ship at that time, pleaded humanitarian grounds and the Court permitted
anchorage at Pipavav port near Alang. 25 days after being anchored, it was beached at Alang
breaching the order of the Supreme Court that only permitted its anchorage.

Throughout this itinerary, the Norwegian Cruise Line sold the ship to Bridgend Shipping of
Monrovia for scrapping. It was then sold to Haryana Ship Demolition Pvt. Ltd, which finally sold it
to its current owner Priya Blue Industries Pvt. Ltd, a ship dismantling company in Alang. Such a
practice is commonly used by European shipowners in order to avoid their obligation to
decontaminate ships before they send it for scrapping.
NLSIU-PACE-MBL 12/19/2023 13
Research Foundation for Science Technology and Natural
Resources Policy, New Delhi vs Union of India, (2005) 13
SCC 186
Considering the alarming situation created by dumping of hazardous waste, its generation and
serious and irreversible damage as a result thereof to the environment, flora and fauna, and also
having regard to the magnitude of the problem as a result of failure of the authorities to
appreciate the gravity of situation and the need for prompt measures being taken to prevent
serious and adverse consequences, a High Powered Committee (HPC) was constituted by this
Court with Prof.M.G.K. Menon as its Chairman, in terms of order dated 30th October, 1997. The
Committee comprised of experts from different disciplines and fields and was required to
examine all matters in depth relating to hazardous waste

NLSIU-PACE-MBL 12/19/2023 14
Research Foundation for Science Technology
and Natural Resources Policy, New Delhi vs
Union of India, Writ Petition (civil) 657 of 1995,
11.09.2007

Florent Pelsy, ‘The Blue Lady Case and the

International Issue of Ship Dismantling’,
4/2 Law, Environment and Development
Journal (2008), p. 135,
available at http://www.lead-
journal.org/content/08135.pdf

NLSIU-PACE-MBL 12/19/2023 15
Waste Management Laws
• Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016
• Solid Waste Management Rules, 2016
• Bio-medical Waste (Management and Handling) Rules, 2011
• Recycled Plastics Manufacture and Usage Rules, 1999
• Chemical Accidents (Emergency Planning, Preparedness, and Response) Rules, 1996
• Batteries (Management and Handling) Rules, 2001

• Types of waste –
Industries - Industrial Hazardous Waste
Agriculture waste
Household – Municipal waste
Hospital waste – Biomedical waste

NLSIU-PACE-MBL 12/19/2023 16
 Hazardous
• Acute effects – Short-term & high-concentration exposure

• Chronic effects – Long-term & low-concentration exposure

• Flammable or Ignitable - Easily catches on fire. Examples include: petroleum

products, pescides, solvents, etc.

• Corrosive -Causes deterioraon, etching, or eang away of body ssue and other surfaces
that it touches. Examples include: acids & alkalis

• Reactive- Wastes are unstable under normal condions. They can cause explosions or
release toxic fumes, gases, or vapors when heated, compressed, or mixed with water.
Examples include: phosphorous, sodium metal

• Toxic- Poisonous and may cause injury or death if swallowed, inhaled, or absorbed
through the skin. Examples include: inseccides, paints, heavy metals.

NLSIU-PACE-MBL 12/19/2023 17
 Hazardous and Other Wastes (Management
and Transboundary Movement) Rules, 2016
Hazardous waste – 3 (17) “hazardous waste” means any waste which by reason of characteristics such as
physical, chemical, biological, reactive, toxic, flammable, explosive or corrosive, causes danger or is
likely to cause danger to health or environment, whether alone or in contact with other wastes or
substances, and shall include –
(i) waste specified under column (3) of Schedule I;
(ii) waste having equal to or more than the concentration limits specified for the constituents in class A
and class B of Schedule II or any of the characteristics as specified in class C of Schedule II; and
(iii) wastes specified in Part A of Schedule III in respect of import or export of such wastes or the wastes
not specified in Part A but exhibit hazardous characteristics specified in Part C of Schedule III;

EPA – 2 (e) “hazardous substance” means any substance or preparation which, by reason of its chemical
or physico-chemical properties or handling, is liable to cause harm to human beings, other living
creatures, plants, micro-organism, property or the environment;

Research Foundation for Science Technology and Natural Resources Policy, New Delhi vs Union of India
- High Powered Committee
NLSIU-PACE-MBL 12/19/2023 18
 Hazardous and Other Wastes (Management and
Transboundary Movement) Rules, 2016
Under sections 6, 8 and 25 of the Environment (Protection) Act, 1986
In supersession of the Hazardous Wastes (Management, Handling and Transboundary Movement)
Rules, 2008

Responsibilities of the occupier for management of hazardous and other wastes - Rule 4
(1) For the management of hazardous and other wastes, an occupier shall follow the following
steps, namely:-
(a) prevention;
(b) minimization;
(c) reuse,
(d) recycling;
(e) recovery, utilisation including co-processing;
(f) safe disposal.

NLSIU-PACE-MBL 12/19/2023 19
Hazardous Wastes
SCHEDULE VII - Rules 13 (6) and 21

List of authorities and corresponding duties

CPCB , SG, SPCB,
Directorate General of Foreign Trade – Foreign Trade (Development and Regulation) Act, 1992 –
Refusal of hazardous waste and other waste prohibited

Port authority under Indian Ports Act, 1908 (15 of 1908) Customs Authority under the Customs
Act, 1962 (52 of 1962) –
(i) Verify the documents
(ii) Inform the Ministry of Environment, Forests and Climate Change of any illegal traffic
(iii) Analyse wastes permitted for imports and exports, wherever required.
(iv) Train officials on the provisions of these rules and in the analysis of hazardous and other
wastes
(v) Take action against exporter or importer for violations under the Indian Ports Act, 1908 or
Customs Act, 1962
NLSIU-PACE-MBL 12/19/2023 20
Hazardous Wastes
SPCB –
No objection Certificate – Transportation – Rule 18

Packaging, labelling and transport of HW – Rule 17 – Guidelines issued by CPCB to be followed

Appeal – Rule 24 – Order of SPCB can be appealed Environment Secretary of the State

NLSIU-PACE-MBL 12/19/2023 21
Hazardous Wastes
Duties –

i. Governmental authorities – like SPCBs – enforce the governmental directives/District

Authorities to prepare off-site emergency plans

ii. Occupier – onsite emergency plans; inform and train workers; prevent and limit
consequences of an accident

NLSIU-PACE-MBL 12/19/2023 22
Environmental Law
MBL-PACE-NLSIU
Bio-medical Waste (Management and Handling)
Rules, 2016
NGT – Delhi - Original Application No. 72/2020 - In Re: Scientific Disposal of Bio-Medical Waste
arising out of COVID-19 treatment- Compliance of BMW Rules, 2016

Suo moto cognizance of the lack of bio-medical waste

Rule 3 (f) "bio-medical waste" means any waste, which is generated during the diagnosis,
treatment or immunisation of human beings or animals or research activities pertaining thereto
or in the production or testing of biological or in health camps, including the categories
mentioned in Schedule I appended to these rules

NLSIU-PACE-MBL 5/17/2024 2
Bio-medical Waste (Management and Handling)
Rules, 2016
4. Duties of the Occupier
Handled without any adverse effect to human health and the environment

Rule 8 –
Segregation, packaging, transportation and storage

Rule 10 – Authorisation – SPCB

Rule 18 –

Healthcare facilities to make available annual report on its website

NLSIU-PACE-MBL 5/17/2024 3
 RIGHT TO HYGIENE

NLSIU-PACE-MBL 5/17/2024 4
Right to hygiene
Ratlam Muncipal Corporation vs Shri Vardhichand & Ors, 1980 AIR 1622
Vardhichand Porwal – Advocate – 1963 initiated proceedings

Section 123 of the MP Municipalities Act, 1961 – Obligation of the municipality

SC: Upheld the right to hygiene

 Who is affected by waste?

▪ largely society’s most vulnerable

▪ losing their lives and homes from landslides of waste dumps
▪ working in unsafe waste-picking conditions
▪ suffering profound health repercussions
Gender and SWM
▪ Women highest employed

▪ Sanitary Disposal in Rural Areas

Solid Waste Management Rules, 2016
2. Application.- These rules shall apply to every urban local body, outgrowths in urban
agglomerations, census towns as declared by the Registrar General and Census
Commissioner of India, notified areas, notified industrial townships, areas under the
control of Indian Railways, airports, airbases, Ports and harbours, defence
establishments, special economic zones, State and Central government
organisations, places of pilgrims, religious and historical importance as may be
notified by respective State government from time to time and to every domestic,
institutional, commercial and any other non residential solid waste generator situated
in the areas except industrial waste, hazardous waste, hazardous chemicals, bio
medical wastes, e-waste, lead acid batteries and radio-active waste, that are covered
under separate rules framed under the Environment (Protection) Act, 1986

NLSIU-PACE-MBL 5/17/2024 8
Solid Waste Management Rules, 2016
Categorization of Solid Waste –

NLSIU-PACE-MBL 5/17/2024 9
Solid Waste Management Rules, 2016 -
Rule 3

4. “biodegradable waste " means any organic material that can be degraded by micro-
organisms into simpler stable compounds;

8. “bulk waste generator” means and includes buildings occupied by the Central
government departments or undertakings, State government departments or
undertakings, local bodies, public sector undertakings or private companies,
hospitals, nursing homes, schools, colleges, universities, other educational
institutions, hostels, hotels, commercial establishments, markets, places of worship,
stadia and sports complexes having an average waste generation rate exceeding
100kg per day;

11. “combustible waste” means non-biodegradable, non-recyclable, non-reusable,

non hazardous solid waste having minimum calorific value exceeding 1500 kcal/kg and
excluding chlorinated materials like plastic, wood pulp, etc;
NLSIU-PACE-MBL 5/17/2024 10
Solid Waste Management Rules, 2016 -
Rule 3
17. “domestic hazardous waste” means discarded paint drums, pesticide cans, CFL
bulbs, tube lights, expired medicines, broken mercury thermometers, used batteries,
used needles and syringes and contaminated gauge, etc., generated at the household
level;

18. "door to door collection" means collection of solid waste from the door step of
households, shops, commercial establishments , offices , institutional or any other
non residential premises and includes collection of such waste from entry gate or a
designated location on the ground floor in a housing society , multi storied building or
apartments , large residential, commercial or institutional complex or premises;

19. “dry waste” means waste other than bio-degradable waste and inert street
sweepings and includes recyclable and non recyclable waste, combustible waste and
sanitary napkin and diapers, etc;

NLSIU-PACE-MBL 5/17/2024 11
Solid Waste Management Rules, 2016 -
Rule 3
21. “extended producer responsibility” (EPR) means responsibility of any producer
of packaging products such as plastic, tin, glass and corrugated boxes, etc., for
environmentally sound management, till end-of-life of the packaging products;

28. “informal waste collector” includes individuals, associations or waste traders who
are involved in sorting, sale and purchase of recyclable materials;

32. “non-biodegradable waste” means any waste that cannot be degraded by micro
organisms into simpler stable compounds;

39. “residual solid waste” means and includes the waste and rejects from the solid
waste processing facilities which are not suitable for recycling or further processing;

41. “sanitary waste” means wastes comprising of used diapers, sanitary towels or
napkins, tampons, condoms, incontinence sheets and any other similar waste;
NLSIU-PACE-MBL 5/17/2024 12
Solid Waste Management Rules, 2016 -
Rule 3
46. "solid waste" means and includes solid or semi-solid domestic waste, sanitary
waste, commercial waste, institutional waste, catering and market waste and other
non residential wastes, street sweepings, silt removed or collected from the surface
drains, horticulture waste, agriculture and dairy waste, treated bio-medical waste
excluding industrial waste, bio-medical waste and e-waste, battery waste, radio-
active waste generated in the area under the local authorities and other entities
mentioned in rule 2;

NLSIU-PACE-MBL 5/17/2024 13
Solid Waste Management Rules, 2016
4 Duties of waste generators

7. Duties of Department of Fertilisers, Ministry of Chemicals and Fertilisers

8. Duties of Ministry of Agriculture, Government of India

9. Duties of the Ministry of Power

NLSIU-PACE-MBL 5/17/2024 14
 Solid Waste Management
Almitra H Patel vs UOI, 1997 SC – Improper management of municipal solid wastes – adoption of
MSW Rules 2000

B L Wadhera vs UOI, 1996 SCC 2969

NLSIU-PACE-MBL 5/17/2024 15
 E-Waste (Management and Handling) Rules, 2016
(r) 'e-waste' means electrical and electronic equipment, whole or in part discarded as waste by the
consumer or bulk consumer as well as rejects from manufacturing, refurbishment and repair
processes;

(j) 'dealer' means any individual or firm that buys or receives electrical and electronic equipment as
listed in Schedule I of these rules and their components or consumables or parts or spares from
producers for sale;

(z) ‘manufacturer’ means a person or an entity or a company as defined in the Companies Act, 2013
(18 of 2013) or a factory as defined in the Factories Act, 1948 (63 of 1948) or Small and Medium
Enterprises as defined in Micro, Small and Medium Enterprises Development Act, 2006 (27 of
2006), which has facilities for manufacture of electrical and electronic equipment

NLSIU-PACE-MBL 5/17/2024 16
 E-Waste (Management and Handling) Rules, 2016
(cc) ‘producer’ means any person who, irrespective of the selling technique used such as dealer,
retailer, e-retailer, etc.;
(i) manufactures and offers to sell electrical and electronic equipment and their components or
consumables or parts or spares under its own brand; or
(ii) offers to sell under its own brand, assembled electrical and electronic equipment and their
components or consumables or parts or spares produced by other manufacturers or
suppliers; or
(iii) offers to sell imported electrical and electronic equipment and their components or
consumables or parts or spares;

(ee) ‘recycler’ - means any person who is engaged in recycling and reprocessing of waste electrical
and electronic equipment or assemblies or their components and having facilities as elaborated in
the guidelines of Central Pollution Control Board;

NLSIU-PACE-MBL 5/17/2024 17
 E-Waste (Management and Handling) Rules, 2016
(t) ‘Extended Producer Responsibility’ means responsibility of any producer of electrical or electronic
equipment, for channelisation of e-waste to ensure environmentally sound management of such
waste. Extended Producer Responsibility may comprise of implementing take back system or setting
up of collection centres or both and having agreed arrangements with authorised dismantler or
recycler either individually or collectively through a Producer Responsibility Organisation recognised
by producer or producers in their Extended Producer Responsibility - Authorisation;

(u) ‘Extended Producer Responsibility - Authorisation’ means a permission given by Central Pollution
Control Board to a producer, for managing Extended Producer Responsibility with implementation
plans and targets outlined in such authorisation including detail of Producer Responsibility
Organisation and e-waste exchange, if applicable;

(v) ‘Extended Producer Responsibility Plan’ means a plan submitted by a producer to Central Pollution
Control Board, at the time of applying for Extended Producer Responsibility - Authorisation in which a
producer shall provide details of e-waste channelisation system for targeted collection including detail
of Producer Responsibility Organisation and e-waste exchange, if applicable;
NLSIU-PACE-MBL 5/17/2024 18
 E-Waste (Management and Handling) Rules, 2016
4. Responsibilities of the manufacturer. –

5. Responsibilities of the producer. –

6. Responsibilities of collection centres.

7. Responsibilities of dealers. –

NLSIU-PACE-MBL 5/17/2024 19
 BIOLOGICAL DIVERSITY

5/17/2024 NLSIU-PACE-MBL-ENVIRONMENTAL LAW 20

2022 E-waste rules

Refurbishing certificate
Extended life
Bulk consumers
Solar panels

NLSIU-PACE-MBL 5/17/2024 21
 Biodiversity
• Section2 (b), The Biological Diversity Act, 2002- “biological diversity” means
the variability among living organisms from all sources and the ecological
complexes of which they are part and includes diversity within species or
between species and of eco-systems
• Genetic diversity
• Species diversity
• Eco system diversity
• Biological resources

• Importance – Dependency
• Threats to BD

5/17/2024 NLSIU-PACE-MBL-ENVIRONMENTAL LAW 22

 Biodiversity

• Shared Commons – Challenge to the idea of Commons

• Common Heritage of Mankind vs Common concern

5/17/2024 NLSIU-PACE-MBL-ENVIRONMENTAL LAW 23

NLSIU-PACE-MBL 5/17/2024 24
NLSIU-PACE-MBL 5/17/2024 25
NLSIU-PACE-MBL 5/17/2024 26
“What makes a concern ‘common’ to the entire global community, Dinah Sheldon, a
scholar of international environmental law has suggested that an issue becomes a
common concern when it transcends national boundaries and requires co-operation
and collective action of nation states; when no single nation can resolve the problems
they pose or receive the benefits they provide (Sheldon 2009).”

Source: Alphonsa Jojan, Research Affiliate, Dakshin Foundation, Linking biodiversity

to concept of commons, https://www.dakshin.org/wp-
content/uploads/2020/08/Linking-biodiversity-to-concept-of-commons.pdf

NLSIU-PACE-MBL 5/17/2024 27
“The terminology that links the concept of the ‘commons’ to biodiversity are common
areas, common good, common goods, common interest, common concern, common
future, common heritage, community of interest and common responsibility. One of
the earliest narratives that recommended for a common global concern for
biodiversity conservation can be traced to the Brundtland Commission Report of 1987.
The report titled as ‘Our Common Future’ highlights the fact that many environmental
problems have global impact as ecological interactions do not respect boundaries of
individual ownership and political jurisdiction (Brundtland Commission 1987). The
report regarded ecosystems and species as essential resources for development. It
noted the fact that many species are vital for the present-day uses as food, medicine,
and for industry, and also have potential future uses. The report discussed the huge
benefits to industrial nations with their efficient technologies and methods in utilising
the wild resources of developing countries. It also highlighted emerging evidence of
extinction of species, degradation and destruction of ecosystems, and argued that the
global community had a responsibility towards stopping this.”
Source: Alphonsa Jojan, Research Affiliate, Dakshin Foundation, Linking biodiversity
to concept of commons, https://www.dakshin.org/wp-
content/uploads/2020/08/Linking-biodiversity-to-concept-of-commons.pdf
NLSIU-PACE-MBL 5/17/2024 28
UNCLOS
SECTION 2. PRINCIPLES GOVERNING THE AREA

Article136
Common heritage of mankind
The Area and its resources are the common heritage of mankind.

Article137

Legal status of the Area and its resources

1. No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or
juridical person appropriate any part thereof. No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be
recognized.

2. All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act. These resources are not
subject to alienation. The minerals recovered from the Area, however, may only be alienated in accordance with this Part and the rules,
regulations and procedures of the Authority.

3. No State or natural or juridical person shall claim, acquire or exercise rights with respect to the minerals recovered from the Area except
in accordance with this Part. Otherwise, no such claim, acquisition or exercise of such rights shall be recognized.

ADD A FOOTER 5/17/2024 29

 The Convention on International Trade in
Endangered Species (CITES), 1973
• Criminalization – engendered species of plant and animals
• Wildlife

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 30

Cultural (32)
Agra Fort (1983) Kakatiya Rudreshwara (Ramappa) Temple, Telangana
Ajanta Caves (1983) (2021)
Archaeological Site of Nalanda Mahavihara at Khajuraho Group of Monuments (1986)
Nalanda, Bihar (2016) Mahabodhi Temple Complex at Bodh Gaya (2002)
Buddhist Monuments at Sanchi (1989) Mountain Railways of India (1999,2005,2008)
Champaner-Pavagadh Archaeological Park (2004) Qutb Minar and its Monuments, Delhi (1993)
Chhatrapati Shivaji Terminus (formerly Victoria Rani-ki-Vav (the Queen’s Stepwell) at Patan, Gujarat
Terminus) (2004) (2014)
Churches and Convents of Goa (1986) Red Fort Complex (2007)
Dholavira: a Harappan City (2021) Rock Shelters of Bhimbetka (2003)
Elephanta Caves (1987) Sun Temple, Konârak (1984)
Ellora Caves (1983) Taj Mahal (1983)
Fatehpur Sikri (1986) The Architectural Work of Le Corbusier, an
Great Living Chola Temples (1987,2004) Outstanding Contribution to the Modern Movement
Group of Monuments at Hampi (1986) (2016)
Group of Monuments at Mahabalipuram (1984)
Group of Monuments at Pattadakal (1987)
Hill Forts of Rajasthan (2013)
Historic City of Ahmadabad (2017)
Humayun's Tomb, Delhi (1993)
Jaipur City, Rajasthan (2019)

ADD A FOOTER 5/17/2024 31

 The Jantar Mantar, Jaipur (2010)
Victorian Gothic and Art Deco Ensembles of Mumbai (2018)

Natural (7)
Great Himalayan National Park Conservation Area (2014)
Kaziranga National Park (1985)
Keoladeo National Park (1985)
Manas Wildlife Sanctuary (1985)
Nanda Devi and Valley of Flowers National Parks (1988,2005)
Sundarbans National Park (1987)
Western Ghats (2012)

Mixed (1)
Khangchendzonga National Park (2016)

ADD A FOOTER 5/17/2024 32

World Heritage Convention, 1972

The most significant feature of the 1972 World Heritage Convention is that it links together the
concepts of nature conservation and the preservation of cultural properties. The Convention is
based on the premise that certain places on earth are of ‘outstanding universal value’ and therefore
they should be identified and safeguarded by the international community as a whole.
Natural and cultural (manmade)

Cultural -

Natural -

ADD A FOOTER 5/17/2024 33

 The Convention on Wetlands, 1971 – Ramsar
Convention
• Wetlands – Natural and human
• Ramsar, Iran – 1971
• International cooperation for conservation and wise use of wetlands and their
resources
• Came into force in 1975 – 169 countries of United Nations

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 34

 Neem Patent Case
• W R Grace and Dept of Agriculture, USA – patent – process of controlling fungi on
plants with the aid of a foliar fungicide comprising solvent extracted neem oil
• EPO – 1991 patent granted neem oil
• Terumo Corporation – 1983 Neem bark in therapeutic preparation
• EPO revoked patent
• US also rejected Neem-based emulsions and solutions
• Research Foundation for Science, Technology and Ecology along with International
Federation of Organic Agriculture Movements and Magda Aelvoet (Member of
European Parliament)

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 35

 Turmeric Patent Case
• 1995 – Two expatriate Indians – University of Mississippi Medical Centre –
patent granted for use of turmeric in wound healing
• 1996 – CSIR (The Council of Scientific and Industrial Research) requested
USPTO to revoke the patent on the grounds of existing of prior art
• Could not prove – Knowledge of Indian household
• Indian Medical Association Journal – 1953 – ancient Sanskrit text

• Revoked the patent

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 36

 TKDL
• 2001, as a collaboration between the Council of Scientific and Industrial
Research (CSIR) and then-Ministry of Health and Family Welfare (India)

• Objective of the library is to protect the ancient and traditional knowledge of

the country from exploitation through biopiracy and unethical patents, by
documenting it electronically and classifying it as per international patent
classification systems.
• The non-patent database serves to foster modern research based on
traditional knowledge, as it simplifies access to this vast knowledge of
remedies or practices

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 37

An Act to provide for conservation of biological diversity, sustainable use of
its components and fair and equitable sharing of the benefits arising out of
the use of biological resources, knowledge and for matters connected
therewith or incidental thereto.

NLSIU-PACE-MBL 5/17/2024 38
 • Cotton
• Oats
• Sugarcane
• Cauliflower
• Onion
• Neem
• Bay leaf
• Nutmeg

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 39

 Normally traded as Commodities – U/S 40 BD Act
• Cotton
• Oats
• Sugarcane
• Cauliflower
• Onion
• Neem
• Bay leaf
• Nutmeg

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 40

 Guidelines on Access to Biological Resources and
Associated Knowledge and Benefits Sharing
Regulations, 2014

14. Determination of benefit sharing.—

(1) Benefit sharing may be done in monetary and/ or non-monetary modes, as
agreed upon by the applicant and the NBA/ SBB concerned in consultation with
the BMC/ Benefit claimer, etc. Options for such benefit sharing are provided in
Annexure–1.

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 41

 Sec - 7. Prior intimation to State Biodiversity Board for
obtaining biological resource for certain purposes.—
No person, who is a citizen of India or a body corporate, association or
organisation which is registered in India, shall obtain any biological resource for
commercial utilisation, or bio-survey and bio-utilisation for commercial
utilisation except after giving prior intimation to the State Biodiversity Board
concerned:
Provided that the provisions of this section shall not apply to the local people
and communities of the area, including growers and cultivators of biodiversity,
and vaids and hakims, who have been practicing indigenous medicine.

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 42

 Biodiversity
• Sec 2 (f) “commercial utilisation” means end uses of biological resources for commercial
utilisation such as drugs, industrial enzymes, food flavours, fragrance, cosmetics,
emulsifiers, oleoresins, colours, extracts and genes used for improving crops and
livestock through genetic intervention, but does not include conventional breeding or
traditional practices in use in any agriculture, horticulture, poultry, dairy farming,
animal husbandry or bee keeping;

• Conventional Breeding;
• Traditional practices in use in any agriculture;
• Traditional practices in use in any horticulture;
• Traditional practices in use in any poultry;
• Traditional practices in use in any dairy farming;
• Traditional practices in use in any animal husbandry; or
• Traditional practices in use in any bee keeping

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 43

 Kani – Jeevani -Case
The Kani tribals are a traditionally nomadic community, who now lead a primarily
settled life in the forests of the Agasthyamalai hills of the Western Ghats (a
mountain range along south-western India), in the Thiruvananthapuram district
of Kerala.

The Tropical Botanical Garden and Research Institute (TBGRI) is a centre for plant
research situated in the state of Kerala in southern India. It is an autonomous
institution for research and development set up by the Government of Kerala.
One of the major aims of the institute is to carry out botanical, chemical and
pharmacological research for the development of scientifically validated and
standardised herbal drugs

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 44

 Kani – Jeevani -Case
TBGRI developed a drug called Jeevani from the same. They then resolved to
share fifty percent of any commercial returns that they get from the drug with
the Kanis. In principle the idea of benefit sharing is a step forward in recognising
the contribution of the tribal community which is the custodian of the knowledge
regarding use of the plant. However, as the TBGRI-Kani arrangement reveals, the
dimensions to any practical implications of such principle are varied, each of
which will then need to be addressed for good ideas to result in good practise.

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 45

 Kani – Jeevani –Case – 1997
1- Benefit being very low – 1:1
2- Should have been given to PSU or Govt not a Pvt company
3- Unfair Deal – All were not covered

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 46

Environmental Law
MBL-PACE-NLSIU
 Neem Patent Case
• W R Grace and Dept of Agriculture, USA – patent – process of controlling fungi on
plants with the aid of a foliar fungicide comprising solvent extracted neem oil
• EPO – 1991 patent granted neem oil
• Terumo Corporation – 1983 Neem bark in therapeutic preparation
• EPO revoked patent
• US also rejected Neem-based emulsions and solutions
• Research Foundation for Science, Technology and Ecology along with International
Federation of Organic Agriculture Movements and Magda Aelvoet (Member of
European Parliament)

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 2

 Turmeric Patent Case
• 1995 – Two expatriate Indians – University of Mississippi Medical Centre –
patent granted for use of turmeric in wound healing
• 1996 – CSIR (The Council of Scientific and Industrial Research) requested
USPTO to revoke the patent on the grounds of existing of prior art
• Could not prove – Knowledge of Indian household
• Indian Medical Association Journal – 1953 – ancient Sanskrit text

• Revoked the patent

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 3

 TKDL
• 2001, as a collaboration between the Council of Scientific and Industrial
Research (CSIR) and then-Ministry of Health and Family Welfare (India)

• Objective of the library is to protect the ancient and traditional knowledge of

the country from exploitation through biopiracy and unethical patents, by
documenting it electronically and classifying it as per international patent
classification systems.
• The non-patent database serves to foster modern research based on
traditional knowledge, as it simplifies access to this vast knowledge of
remedies or practices

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 4

An Act to provide for conservation of biological diversity, sustainable use of
its components and fair and equitable sharing of the benefits arising out of
the use of biological resources, knowledge and for matters connected
therewith or incidental thereto.

NLSIU-PACE-MBL 5/17/2024 5
 • Cotton
• Oats
• Sugarcane
• Cauliflower
• Onion
• Neem
• Bay leaf
• Nutmeg

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 6

 Normally traded as Commodities – U/S 40 BD Act
• Cotton
• Oats
• Sugarcane
• Cauliflower
• Onion
• Neem
• Bay leaf
• Nutmeg

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 7

 Guidelines on Access to Biological Resources and
Associated Knowledge and Benefits Sharing
Regulations, 2014

14. Determination of benefit sharing.—

(1) Benefit sharing may be done in monetary and/ or non-monetary modes, as
agreed upon by the applicant and the NBA/ SBB concerned in consultation with
the BMC/ Benefit claimer, etc. Options for such benefit sharing are provided in
Annexure–1.

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 8

 Sec - 7. Prior intimation to State Biodiversity Board for
obtaining biological resource for certain purposes.—
No person, who is a citizen of India or a body corporate, association or
organisation which is registered in India, shall obtain any biological resource for
commercial utilisation, or bio-survey and bio-utilisation for commercial
utilisation except after giving prior intimation to the State Biodiversity Board
concerned:
Provided that the provisions of this section shall not apply to the local people
and communities of the area, including growers and cultivators of biodiversity,
and vaids and hakims, who have been practicing indigenous medicine.

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 9

 Biodiversity
• Sec 2 (f) “commercial utilisation” means end uses of biological resources for commercial
utilisation such as drugs, industrial enzymes, food flavours, fragrance, cosmetics,
emulsifiers, oleoresins, colours, extracts and genes used for improving crops and
livestock through genetic intervention, but does not include conventional breeding or
traditional practices in use in any agriculture, horticulture, poultry, dairy farming,
animal husbandry or bee keeping;

• Conventional Breeding;
• Traditional practices in use in any agriculture;
• Traditional practices in use in any horticulture;
• Traditional practices in use in any poultry;
• Traditional practices in use in any dairy farming;
• Traditional practices in use in any animal husbandry; or
• Traditional practices in use in any bee keeping

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 10

 Kani – Jeevani -Case
The Kani tribals are a traditionally nomadic community, who now lead a primarily
settled life in the forests of the Agasthyamalai hills of the Western Ghats (a
mountain range along south-western India), in the Thiruvananthapuram district
of Kerala.

The Tropical Botanical Garden and Research Institute (TBGRI) is a centre for plant
research situated in the state of Kerala in southern India. It is an autonomous
institution for research and development set up by the Government of Kerala.
One of the major aims of the institute is to carry out botanical, chemical and
pharmacological research for the development of scientifically validated and
standardised herbal drugs

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 11

 Kani – Jeevani -Case
TBGRI developed a drug called Jeevani from the same. They then resolved to
share fifty percent of any commercial returns that they get from the drug with
the Kanis. In principle the idea of benefit sharing is a step forward in recognising
the contribution of the tribal community which is the custodian of the knowledge
regarding use of the plant. However, as the TBGRI-Kani arrangement reveals, the
dimensions to any practical implications of such principle are varied, each of
which will then need to be addressed for good ideas to result in good practise.

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 12

 Kani – Jeevani –Case – 1997
1- Benefit being very low – 1:1
2- Should have been given to PSU or Govt not a Pvt company
3- Unfair Deal – All were not covered

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 13

 Neem Case, Turmeric, Basmati Case
• Neem case -

• Turmeric case

• Basmati case

• Traditional Knowledge – CBD and Nagoya Protocol – Accumulation of knowledge

which gets passed on from generation to generation

• Biopiracy – Misappropriation of traditional knowledge with an intention to get patent

protection over that knowledge

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 14

 TRIPS and CBD

• Conflict of rationale and origins

• National Sovereignty vs IPR holders
• Community Rights vs Private Rights
• Prior Informed Consent of States and Communities vs Unilateral Patent

• Life forms patents - The Patents Act, 1970 – Life forms – Section 3

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 15

 Divya Pharmacy vs Union Of India And Others - 21
December, 2018, Uttarakhand High Court

• Whether the State Biodiversity Board could impose 'Fair and

Equitable Benefit Sharing' as one of its regulatory functions on the
Indian entities using Biological Resources?

5/17/2024 NLSIU-DED-MBL-ENVIRONMENTAL LAW 16

 Divya Pharmacy vs Union Of India And Others - 21
December, 2018, Uttarakhand High Court
• High Court held that all Indian companies which are extracting biological
resources are liable to seek prior approval as well as share part of their
revenue with the local communities that are responsible for conserving and
protecting such resources. The final judgment was an outcome of a litigation
spanning multiple hearings over two years in which Divya Pharmacy
vehemently opposed either seeking prior approval from the State Biodiversity
Board or sharing a part of its revenue with the local communities as ‘fees’
under what is termed as ‘fair and equitable sharing of benefit’.

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 Biodiversity
• Distribution of BD vs Identification and maximization

• Biodiversity Act 2002

• Conservation of BD
• Sustainable use
• Equitable sharing of benefits

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 The Cartagena Protocol on Biosafety to the
Convention on Biological Diversity , 2000
Precautionary approach, contained in Principle 15 of the Rio Declaration on Environment and Development,

To contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of 'living
modified organisms resulting from modern biotechnology' that may have adverse effects on the conservation and
sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on
transboundary movements

Biosafety is the prevention of large-scale loss of biological integrity, focusing both on ecology and human health.
These prevention mechanisms include conduction of regular reviews of the biosafety in laboratory settings, as well as
strict guidelines to follow.
Biosafety is used to protect from harmful incidents.
Many laboratories handling biohazards employ an ongoing risk management assessment and enforcement process
for biosafety.

Biosafety vs Biosecurity

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 The Nagoya Protocol on Access to Genetic Resources
and the Fair and Equitable Sharing of Benefits Arising
from their Utilization to the Convention on Biological
Diversity, 2010

• Also known as the Nagoya Protocol on Access and Benefit Sharing

(ABS) is a 2010

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 Nagoya Protocol on Access and Benefit Sharing
Access obligations
Domestic-level access measures aim to:
Create legal certainty, clarity, and transparency
Provide fair and non-arbitrary rules and procedures
Establish clear rules and procedures for prior informed consent and mutually agreed terms
Provide for issuance of a permit or equivalent when access is granted
Create conditions to promote and encourage research contributing to biodiversity conservation and
sustainable use
Pay due regard to cases of present or imminent emergencies that threaten human, animal, or plant
health
Consider the importance of genetic resources for food and agriculture for food security

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 Nagoya Protocol on Access and Benefit Sharing
Benefit-sharing obligations
Domestic-level benefit-sharing measures aim to provide for the fair and equitable sharing of benefits
arising from the utilization of genetic resources with the contracting party providing genetic resources.
Utilization includes research and development on the genetic or biochemical composition of genetic
resources, as well as subsequent applications and commercialization. Sharing is subject to mutually
agreed terms. Benefits may be monetary or non-monetary such as royalties and the sharing of research
results.

Compliance obligations
Specific obligations to support compliance with the domestic legislation or regulatory requirements of
the contracting party providing genetic resources, and contractual obligations reflected in mutually
agreed terms, are a significant innovation of the Nagoya Protocol.

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 Nagoya Protocol on Access and Benefit Sharing

Contracting parties are to:

Take measures providing that genetic resources utilized within their jurisdiction have been accessed in
accordance with prior informed consent, and that mutually agreed terms have been established, as
required by another contracting party
Cooperate in cases of alleged violation of another contracting party's requirements
Encourage contractual provisions on dispute resolution in mutually agreed terms
Ensure an opportunity is available to seek recourse under their legal systems when disputes arise from
mutually agreed terms
Take measures regarding access to justice
Monitor the use of genetic resources after they leave a country by designating effective checkpoints at
every stage of the value-chain: research, development, innovation, pre-commercialization, or
commercialization

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T N Godavarman vs Union of India, Writ Petition
(Civil) No. 202 of 1995
T.N. Godavarman Thirumulpad, a member of the princely Nilambur Kovilakam family in the Malabar region
of Kerala

Landmark case – Over 2 decades – 110 sittings 40 orders passed

Meaning of forest

Freezing of wood based industries

Ban on timber felling

Directions for sustainable use of forest

Constitution of High Power Committee – For North East

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Orissa Mining Corporation v. Ministry of Environment
and Forest and Others (Vedanta mining) SC 2103 -

Dongria Kondh, a particularly vulnerable tribal group, Lakhapadar was one of 12

villages from the region that were in the news five years ago for unanimously voting
against a project by state government-owned Odisha Mining Corporation (OMC) and
Sterlite Industries for mining bauxite.

The Supreme Court of India decreed that the ‘Gram Sabha’2 has authority to
determine whether the proposed project would affect individual or community rights
including cultural and religious rights under the Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act, 2006 and that this is a precondition
before the mining process in ‘Niyamgiri’ hills can proceed.

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Pradeep Krishen vs Union of India, AIR 1996 SC 2040 – Tendu Patta
(Diospyros melanoxylon) – NP and Sanctuaries
Fatehsang Gimba vs State of Gujarat AIR 1987 Guj 9 – Access to Bamboo by
tribals – Reserve Forest Area
Animal and Environmental Legal Defence Fund vs UOI, AIR 1997 SC 1071 –
Fishing rights case – Pench National Park
Wildlife Protection Act, 1972 – National Parks and Sanctuaries
Cases leading to the need for enactment of the law to recognize the rights of
the forest dwellers

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The Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 / Forest Rights Act
Definition – Under section 2(b) – Critical Wildlife Habitat – National
Parks and Sanctuaries -
Section 4(2) – Forest rights in critical wildlife habitats of National
Parks and Sanctuaries – Displacement only after completion of
resettlement
Need to protect and conserve critical wildlife habitat vs need to
recognize and forest dwellers rights

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Environmentalism – Dominant theme of conversation

Indian environmentalism – Utilitarian conservationism – This philosophy indicates that

resources should be used for the greater good for the greatest number for the longest
time

Western environmentalism – Protectionist conservationism – This philosophy indicates

that the natural environment has to be maintained in the most pristine form to the
maximum extent possible

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An Act to consolidate the law relating to forests, the
transit of forest-produce and the duty leviable on timber
and other forest-produce.

WHEREAS it is expedient to consolidate the law relating

to forests, the transit of forest-produce and the duty
leviable on timber and other forest-produce

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Indian Forest Act, 1927

Reserve Forests – no access

Protected Forests – (other than reserve forest) - access

Village Forests – (created out of a reserve forest)Community rights – Duties and rights
of villagers

Private Forest Land

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Indian Forest Act, 1865
The imperial forest department was established in 1864

Forest under the control of the forest department

Law ignored the community rights of the forest dwellers and the customary
entitlements of the rural folk – for centuries – forest resources were the main source of
sustenance

MoEF – 1990 circulars – eviction of forest dwellers – DNT – October 2002 – all are not
encroachers

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 FRA -Scheduled Tribes And Other Traditional Forest
Dwellers (Recognition Of Forest Rights) Act, 2006
An Act to recognize and vest the forest rights and occupation in forest land in forest dwelling
Scheduled Tribes and other traditional forest dwellers who have been residing in such forests
for generations but whose rights could not be recorded; to provide for a framework for
recording the forest rights so vested and the nature of evidence required for such recognition
and vesting in respect of forest land.

Sec 3(1) – 13 rights

Sec 4 – vesting of rights

Sec 5- duties –empowers the forest right holders, village assemblies and village-level
institutions

Gram Sabha and District level committee – entitlement finality

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 FRA -Scheduled Tribes And Other Traditional Forest
Dwellers (Recognition Of Forest Rights) Act, 2006
Other traditional forest dwellers – Worthy of protection?

FRA – power to evict encroachers

FRA vs wildlife protection

FRA vs resettlement package

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Environmental Law
MBL-PACE-NLSIU
 FRA -Scheduled Tribes And Other Traditional Forest
Dwellers (Recognition Of Forest Rights) Act, 2006
An Act to recognize and vest the forest rights and occupation in forest land in forest dwelling
Scheduled Tribes and other traditional forest dwellers who have been residing in such forests
for generations but whose rights could not be recorded; to provide for a framework for
recording the forest rights so vested and the nature of evidence required for such recognition
and vesting in respect of forest land.

Sec 3(1) – 13 rights

Sec 4 – vesting of rights

Sec 5- duties –empowers the forest right holders, village assemblies and village-level
institutions

Gram Sabha and District level committee – entitlement finality

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 FRA -Scheduled Tribes And Other Traditional Forest
Dwellers (Recognition Of Forest Rights) Act, 2006
Other traditional forest dwellers – Worthy of protection?

FRA – power to evict encroachers

FRA vs wildlife protection

FRA vs resettlement package

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The Forest (Conservation) Act, 1980
The Van (Sanrakshan Evam Samvardhan)
Adhiniyam, 1980
The FCAA empowers State governments to clear forest diversions
previously deemed illegal under the FCA, potentially opening the door for
past transgressions and weakening legal safeguards.
The Act undermines key Supreme Court judgments on forest protection,
potentially creating a conflict between legislative intent and judicial
precedent.
The FCAA weakens protections for natural forests by potentially
facilitating commercial exploitation through exemptions for infrastructure
projects and relaxed environmental scrutiny

NLSIU-PACE-MBL 5/17/2024 4
 Land

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 Land
Land – Owner – Private property

Good Neighborhood Principle –

Art 74 UN CHARTER - “Members of the United Nations also agree that their
policy in respect of the territories to which this Chapter applies, no less
than in respect of their metropolitan areas, must be based on the general
principle of good-neighborliness, due account being taken of the interests
and well-being of the rest of the world, in social, economic, and
commercial matters”

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 Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013
• The Land Acquisition Act, 1894
• An Act to ensure, in consultation with institutions of local self-government
and Gram Sabhas established under the Constitution, a humane, participative,
informed and transparent process for land acquisition for industrialisation,
development of essential infrastructural facilities and urbanisation with the
least disturbance to the owners of the land and other affected families and
provide just and fair compensation to the affected families whose land has
been acquired or proposed to be acquired or are affected by such acquisition
and make adequate provisions for such affected persons for their
rehabilitation and resettlement and for ensuring that the cumulative outcome
of compulsory acquisition should be that affected persons become partners in
development leading to an improvement in their post acquisition social and
economic status and for matters connected therewith or incidental thereto

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 LARR Act, 2013
• Exemption of five categories of land use from certain provisions:
• Creates five special categories of land use: (i) defence, (ii) rural infrastructure,
(iii) affordable housing, (iv) industrial corridors, and (v) infrastructure projects
including Public Private Partnership (PPP) projects where the government owns
the land.
• Consent of 80% of land owners is obtained for private projects and that the
consent of 70% of land owners be obtained for PPP projects.

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 Sec 4 - DETERMINATION OF SOCIAL IMPACT AND
PUBLIC PURPOSE
• (a) assessment as to whether the proposed acquisition serves public purpose;
• (b) estimation of affected families and the number of families among them
likely to be displaced;
• (c) extent of lands, public and private, houses, settlements and other common
properties likely to be affected by the proposed acquisition;
• (d) whether the extent of land proposed for acquisition is the absolute bare-
minimum extent needed for the project;

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 SIA
• Amongst other things, take into consideration the impact that the project is likely to
have on various components such as
• livelihood of affected families,
• public and community properties,
• assets and infrastructure particularly roads,
• public transport,
• drainage, sanitation, sources of drinking water, sources of water for cattle,
community ponds, grazing land, plantations,
• public utilities such as post offices, fair price shops, food storage godowns, electricity
supply, health care facilities, schools and educational or training facilities,
anganwadis, children parks, places of worship, land for traditional tribal institutions
and burial and cremation grounds.

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 SIA – Public purpose
• A.—PRELIMINARY INVESTIGATION FOR DETERMINATION OF SOCIAL IMPACT AND PUBLIC PURPOSE
• 4. Preparation of Social Impact Assessment study.
• 5. Public hearing for Social Impact Assessment.
• 6. Publication of Social Impact Assessment study.
• B.—APPRAISAL OF SOCIAL IMPACT ASSESSMENT REPORT BY AN EXPERT GROUP
• 7. Appraisal of Social Impact Assessment report by an Expert Group.
• 8. Examination of proposals for land acquisition and Social Impact Assessment report by appropriate Government.
• 9. Exemption from Social Impact Assessment

• Exemption from Social Impact Assessment.–Where land is proposed to be acquired invoking the urgency
provisions under section 40, the appropriate Government may exempt undertaking of the Social Impact
Assessment study

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 Fourth Schedule
• 105. Provisions of this Act not to apply in certain cases or to apply with certain
modifications.–
• (1) Subject to sub-section (3), the provisions of this Act shall not apply to the
enactments relating to land acquisition specified in the Fourth Schedule

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Fourth Schedule

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 Determination of Compensation
• Section 28 take into consideration–
• the market value as determined under section 26 and the award amount in accordance with the First and
Second Schedules;
• the damage sustained by the person interested, by reason of the taking of any standing crops and trees
which may be on the land at the time of the Collector’s taking possession thereof;
• the damage sustained by the person interested, at the time of the Collector’s taking possession of the land,
by reason of severing such land from his other land;
• the damage sustained by the person interested, at the time of the Collector’s taking possession of the land,
by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other
manner, or his earnings;
• in consequence of the acquisition of the land by the Collector, the person interested is compelled to change
his residence or place of business, the reasonable expenses incidental to such change;
• the damage bona fide resulting from diminution of the profits of the land between the time of the
publication of the declaration under section 19 and the time of the Collector’s taking possession of the
land: and
• any other ground which may be in the interest of equity, justice and beneficial to the affected families.
• Award of Solatium

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 Calculation of minimum Benchmark
• 1000 acres of rural land is to be acquired for a project, with market price of
Rs.2,25,000 per acre, 100 families claim to be land owners, and 5 families per
acre claim their rights as livelihood losers under the new Act, the total cost to
acquire the 1000 acre would be
• Land compensation = Rs.90,00,00,000
• Land owner entitlements = Rs.6,30,00,000 + 100 replacement homes
• Livelihood loser entitlements = Rs.365,00,00,000 + 5000 replacement homes
• The average effective cost of land, in the above example will be at least
Rs.41,00,000 per acre plus replacement homes and additional services.
• State Governments , or private companies, may choose to set and implement a
policy that pays more than the minimum proposed.

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 Rehabilitation and Resettlement Award
• The Collector shall pass rehabilitation and resettlement Award for each
affected family in terms of the entitlement provided in the Second Schedule
to the Act.
• This Award shall include all of the following:
• a) Rehabilitation and resettlement amount payable to the family;
• b) Bank account number of the person to which the rehabilitation and
resettlement award is to be transferred;
• c) Particulars of house, site and house to be allotted in case of displaced
families;
• d) Particulars of land allotted to the displaced families;
• e) Particulars of one time subsistence allowance and transportation allowance
in case of displaced families;

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 Rehabilitation and Resettlement Award
• This Award shall include all of the following:

• f) Particulars of payment for cattle, shed and petty shops;

• g) Particulars of one time amount to artisans and small traders;
• h) Details of mandatory employment to be provided to the members of the
affected families;
• i) Particulars of any fishing rights that may be involved;
• j) Particulars of annuity and other entitlements to be provided;
• k) Particulars of special provisions for SC and ST

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 Return of Unused Land
• Return of unused land – 5 years

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Challenges -

Definition of public purpose? Who determines it? Sec 2

Court’s authority to decide the matter –

Should Court intervene ?

Specialisation - determining the value of the land

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Sooram Pratap Reddy & Ors v District Collector,
Ranga Reddy Dist & Ors, [2008] 12 SCALE 367

"public purpose" includes any purpose wherein even a fraction of the

community may be interested or by which it may be benefited.

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The Project Director National ... vs M. Hakeem on
20 July, 2021, SC

Reiterated the settled position when it comes to compensation,

which is that the court had no competence to enhance the
compensation and could only either set the award aside, or remit it
back to the arbitrator.

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Compensation

First, only the government decides on "use" (akin to zoning);

Second, all land vests in the government; and

Third, the state is explicitly empowered to use industrial policy to

encourage acquisitions at low prices and transfer acquired land to
industry.

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Compensation under various laws --

NHAI LA vs LARR

Compensation difference?

Possible?

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Property Rights – Right to enjoy vs right of eternity
Right to property - is a pre-condition for establishing a liberal and
progressive society - all human rights essentially boil down to property
rights.

‘What is the best use of this resource’ – only that person who owns it, or
who comes to own it through a system of voluntary exchange, should have
the right to make this decision. No one else, not even the State, should
make the decision for him.

The idea of constitutional protection of private property is based on the

notion that rights are not created by the constitution, but are only
protected by it. Such an understanding implies that the constitution and
the sovereign cannot take away property involuntarily.
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Eminent domain
Eminent domain - State’s power to acquire private property against the
consent of the owner for a ‘public purpose’.

Under a valid law.

Land owner must be paid just compensation.
The acquisition of the property should only be for public purposes.

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 WILDLIFE

NLSIU-PACE-MBL 5/17/2024 26
Conflicts
Rights and livelihood of forest dwellers and villagers who live in and around
protected areas – Eco-centrism vs anthropocentric

The conflict between mining operations and environmental protection

The conflict between wildlife safari and rights and livelihood of forest
dwellers and villagers who live in and around protected areas

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The Wild Life (Protection) Act, 1972
Specified endangered species are protected regardless of location

All species are protected in designated protected areas called national

parks, sanctuaries, conservation reserves or community reserves

National Wildlife Board – PM

State Wildlife Board - CM

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Elephant Corridor
Section 36A of the Wildlife Act empowers the State Government to declare
areas that link protected areas with each other as ‘conservation reserves’.

The corridors can also be declared as ‘community reserves’ under Section

36C of the Wildlife Act.

As per the Section 2(24A) of the Wildlife Act, conservation and community
reserves fall under the category of ‘protected areas’.

A. Rangarajan v. UOI (2018), the Court ordered the Tamil Nadu government
to close all the illegal resorts in the Nilgiri hills within 48 hours as around
that area, the main elephant corridor is there.

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Environmental Law
MBL-PACE-NLSIU
 WILDLIFE

NLSIU-PACE-MBL 5/17/2024 2
Conflicts
Rights and livelihood of forest dwellers and villagers who live in and around
protected areas – Eco-centrism vs anthropocentric

The conflict between mining operations and environmental protection

The conflict between wildlife safari and rights and livelihood of forest
dwellers and villagers who live in and around protected areas

NLSIU-PACE-MBL 5/17/2024 3
The Wild Life (Protection) Act, 1972
Specified endangered species are protected regardless of location

All species are protected in designated protected areas called national

parks, sanctuaries, conservation reserves or community reserves

National Wildlife Board – PM

State Wildlife Board - CM

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Elephant Corridor
Section 36A of the Wildlife Act empowers the State Government to declare
areas that link protected areas with each other as ‘conservation reserves’.

The corridors can also be declared as ‘community reserves’ under Section

36C of the Wildlife Act.

As per the Section 2(24A) of the Wildlife Act, conservation and community
reserves fall under the category of ‘protected areas’.

A. Rangarajan v. UOI (2018), the Court ordered the Tamil Nadu government
to close all the illegal resorts in the Nilgiri hills within 48 hours as around
that area, the main elephant corridor is there.

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Balram Kumawat v. Union of India, AIR 2003 SC 3268

The court re-emphasised that the act puts a complete ban on

the trade of African elephant ivory and there cannot be a
legitimate claim of violation of the right to freedom of trade
under Article 14 and Article 19(1)(g) since the ban is a
reasonable restriction under Article 19(2).

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 Mahaveer Nath Vs. Union of India and others
7.3.2019
WP. 5179.2016

Constitutional validity of Section 9 and 11 of the Wild Life

(Protection) Act 1972 is being questioned by the
petitioner who claims to be a member of Nath/Sapera
community which, as alleged, is deprived to carry out the
vocation of snake charming for their livelihood.

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Mahaveer Nath Vs. Union of India and others
7.3.2019
WP. 5179.2016
Prafulla Kumar Das and others Vs. State of Orissa and others
[(2003) 11 SCC 614]" that:

"A mere hardship cannot be a ground for striking down a valid

legislation unless it is held to be suffering from the vice of
discrimination or unreasonableness.

NLSIU-PACE-MBL 5/17/2024 8
 National Tiger Conservation Authority

Central Zoo Authority

Elephant Conservation Authority? Elephant Project

vs Authority?

Great Indian Bustard

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The Wild Life (Protection) Act, 1972
National Board for Wildlife adopted the Wildlife Conservation Strategy, as per which areas
within 10 kilometers of national parks’ and sanctuaries’ boundaries could be notified as
‘Eco-Fragile Zones

Hospitality Association of Mudumalai v. In Defence of Environment and Animals and Ors.

etc. [Civil Appeal Nos.3438-3439 of 2020 arising out of S.L.P. (C) Nos.17313-17314 of 2011]
October 14, 2020, a Single Judge Bench (S. Abdul Nazeer, J.) of the Supreme Court of India
Ordered removal of 39 illegal resorts from an elephant corridor in the Sigur plateu in
Nilgiris. Appellants had challenged the Madras High Court’s order which had upheld the
Tamil Nadu government’s decision to notify the aforesaid corridor and evict resort owners
and private landowners therefrom

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The Wild Life (Protection) Act, 1972
Suo Motu v. The State of Karnataka, W.P.No.14029/2008 , 8.10.2013 Karnataka HC

Court directed the State and Central government to, inter alia,

renotify the relevant elephant corridors;

review environmental clearances are given to various projects in the elephant corridors;
review non-forest activities in elephant corridors;
raise and maintain the height of power lines above the ground level to ensure safety of
elephants in corridors, etc

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Vermin
Rewilding
Corridor
Balance in access to forest resources – Protected and unprotected
2022- Wildlife Act –
Schedules and fine
Invasive alien species
Handover of wildlife – No Compensation
Ivory imported from outside of India
Wildlife includes plants
Scientific studies – Approval – Centre and State
Management plan must be prepared after due consultation with the
concerned Gram Sabha
Conservation Reserve
Transfer or transport of a captive elephant for a religious or any other purpose by
a person having a valid certificate of ownership
NLSIU-PACE-MBL 5/17/2024 12
2023 – BD Act

Divya Pharmacy overruled – Ayush Ministry

Indian Companies with foreign investment
Impact on wildlife and forest resources (Non-timber forest
produce)

Provided that the provisions of this section shall not apply to

the codified traditional knowledge, cultivated medicinal plants
and its products, local people and communities of the area,
including growers and cultivators of biodiversity and to vaids,
hakims and registered AYUSH practitioners only who have
been practicing indigenous medicines, including Indian
systems of medicine as profession for sustenance and
livelihood
NLSIU-PACE-MBL 5/17/2024 13
Preservation of Trees

NLSIU-PACE-MBL 5/17/2024 14
 Preservation of Trees Act, 1976
An Act to make better provision for preservation of trees in the State.

Whereas with the growing pace of urbanisation, industrialisation and increasing

population, there has been indiscriminate felling of a large number of trees in the
rural and urban areas of the State of Karnataka leading to erratic rainfalls, recurring
famines and floods, soil erosion and consequent ecological disturbances;

Whereas it is expedient to provide for the preservation of trees in the State by

regulating the felling of trees and for the planting of adequate number of trees to
restore ecological balance and for matters connected therewith

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Preservation of Trees Act, 1976
Tree officer

Tree authority – Mayor, Divisional forest officer and other personnel

Permission to fell shall not be refused if the tree:

1. Dead, diseased or wind fallen

2. Has silvicultural matured

3. Danger to life or property/ obstruction to traffic

4. Substantially damaged or destroyed by fire, lighting, rain or other

natural causes
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Karnataka Town and Country Planning Act, 1961
With the formation of the New state of Mysore it has become necessary to
have a uniform law for the regulation of planned growth of land use and
development and for the making and executing of town planning schemes
in the State. Physical Planning has to precede economic planning as
otherwise cities, towns and villages of our country will grow to
unmanageable sizes without proper planning resulting in unhealthy
surroundings. Physical planning with co-ordinated effort on a large scale is
necessary if the people are to live in a better, healthier and happier
environment. The proposed measure is expected to solve the Town
Planning problems.

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 Karnataka Town and Country Planning Act, 1961
While communicating the assent of the President to the Mysore Town and Country
Planning Bill, 1961, the Government of India have suggested certain amendments to
the Act. As regards compensation payable for land acquired for purposes of the Act,
the Government of India have stated that it is not correct to take the market value as
on first November, 1956, and have suggested that the value may be the market value
as on the date of publication of the Town Improvement Scheme, and where the date of
actual acquisition proceeding is after two years from such publication the value may
be as on the date two years before the date of issue of notification for acquisition of
the land, as also the grant of solatium of fifteen percent in view of the compulsory
nature of the acquisition

ADD A FOOTER 5/17/2024 19

Zoning and town planning
Zoning – Regulation of building development and uses of property by
division

Heterogenous uses of land

Why do we need it? - Public nuisance only concern?

ADD A FOOTER 5/17/2024 20

M C Metha vs UOI (Badkhal and Sujratkund Lakes
Matter), SC 1996
Mining to stop 5 km – Precautionary principle – Art 21, 47, 48A and 51A(g)

Precautionary principle – Anticipate , prevent and attack the causes of

environmental degradation

NEERI report and PCB report – Stopped mining 2 km radius of the tourist
spots and 5 km no construction activity

ADD A FOOTER 5/17/2024 21

Source: ://www.coastaltourism.in/blog/the-challenged-coast-of-india-7-of-coastline-eroded-in-last-decade/

ADD A FOOTER 5/17/2024 22

 CRZ
In Kochi’s Maradu municipality in the state of Kerala, four residential houses
were pulled down in August 2020 for gross violation of construction laws.

In a subsequent inspection, over 4,000 CRZ (Coastal Regulation Zone)

violations were identified in the district.

In December 2019, in Chennai in the state of Tamil Nadu, the Madras High
Court ordered that a sprawling bungalow on East Coast Road be pulled down
for violating CRZ norms and building regulations.

In Maharashtra’s Alibaug, in 2019, the Collector, on instructions of the Bombay

High Court, demolished 24 bungalows illegally built along the coast.

ADD A FOOTER 5/17/2024 23

CRZ
CRZ –

Now, therefore, in exercise of the powers conferred by Clause (d) of sub-

rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, and all
other powers vesting in its behalf, the Central Government hereby
declares the coastal stretches of seas, bays, estuaries, creeks, rivers and
backwaters which are influenced by tidal action (in the landward side)
upto 500 metres from the High Tide Line (HTL) and the land between
the Low Tide Line (LTL) and the HTL as Coastal Regulation Zone; and
imposes with effect from the date of this Notification, the following
restrictions on the setting up and expansion of industries, operations or
processes, etc. in the said Coastal Regulation Zone (CRZ).

ADD A FOOTER 5/17/2024 24

 CRZ
Under the section 3 of Environment Protection Act, 1986 of India, Coastal
Regulation Zone notification was issued in February 1991

As per the notification, the coastal land up to 500m from the High Tide Line
(HTL) and a stage of 100m along banks of creeks, lagoons, estuaries,
backwater and rivers subject to tidal fluctuations, is called the Coastal
Regulation Zone (CRZ).

CRZ along the country has been placed in four categories.

Notification includes only the inter-tidal zone and land part of the coastal area
and does not include the ocean part.
Imposed restriction on the setting up and expansion of industries or
processing plants etc. in the said CRZ.
ADD A FOOTER 5/17/2024 25
CRZ
CRZ-1: These are ecologically sensitive areas , these are essential in maintaining the
ecosystem of the coast. They lie between low and high tide lines. Exploration of natural
gas and extraction of salt are permitted
CRZ-2: These areas are urban areas located in the coastal areas. Under Coastal
Regulation Zone (CRZ) Notification 2018, the floor space index norms has been de-
freezed.
CRZ-3: Rural and urban localities which fall outside the 1 and 2. Only certain activities
related to agriculture and even some public facilities are allowed in this zone
CRZ-4: This lies in the aquatic area up to territorial limits. Fishing and allied activities are
permitted in this zone. No Solid waste should be let off in this zone. This zone has been
changed from 1991 notification, which covered coastal stretches in islands of Andaman &
Nicobar and Lakshadweep.

ADD A FOOTER 5/17/2024 26

CZMP
CZMP – SCZMA – MoEF approval

Goa Foundation (1992) & Kaloor Jospeh (1999) – CZMP to be made public

Dhanu Taluka Environment Protection Group (1991) & Bittu Seghal (2001)
– Allowed Thermal power plant – Energy requirements vs CZMP

ADD A FOOTER 5/17/2024 27

Environmental Law
MBL-PACE-NLSIU
Vertical Zoning

AAI HEIGHT RESTRICTIONS FOR SAFEGUARDING OF AIRCRAFT OPERATION) RULE,2015

CULTURAL HERITAGE SITE AND VERTICAL RESTRICTIONS

ADD A FOOTER 5/17/2024 2

The Insecticides Act, 1968.

An Act to regulate the import, manufacture, sale, transport, distribution and

use of insecticides with a view to prevent risk to human beings or animals,
and for matters connected therewith.

Definition of Animal – Approach?

ADD A FOOTER 5/17/2024 3

Compulsory registration of the product at the Central level and licenses for
manufacture, formulation and sale at state level.

Inter – departmental / ministerial / organizational co-ordination is

achieved by a high level advisory board “Central Insecticides Board” with
members drawn from various fields having expert knowledge of the
subject.

“Registration Committee” to look after the registration aspects of all

Insecticides.

Establishment of enforcement machinery like Insecticide Analysts and

Insecticide Inspectors by the Central or State Government. Establishment
of Central Laboratory Power to prohibit the import, manufacture, and sale
of pesticides and also confiscate the stocks.

The offences are punishable and size and other penalties are prescribed.
ADD A FOOTER 5/17/2024 4
Dr Ashok vs Union of India, AIR 1997 SC 2298
Sale and use of some listed chemicals which though banned in the
developed nations.

DDT - Dichloro diphenyl trichloroethaneand BHC - Benzene hexachloride

Directed Central Government – to prohibit use and distribution of BHC

ADD A FOOTER 5/17/2024 5

EIA

Informed decision making on environmental consequences

Integrate mattes of environment into other spheres of decision making
State’s obligation
Inform and guide the developer and the public about environmental
implications of developmental activities
Ensure that the developmental decision are not at the cost of
environmental conservation

Principles – Precaution and sustainable development

Participatory justice

ADD A FOOTER 5/17/2024 6

Rationale for EIA – Precaution and sustainable development
Evolution of EIA Law-
1994 – Administrative Guidelines
Rio- Summit – 1994 – Catalyst for notification on EIA – procedure laid down – Public Hearing
1997 – Dilution of law but reversed the same year – no detailed project report required
2002 – Exempted categories of industries - New industries if investment is less than Rs 100
crores
2003 – Location sensitivity to be considered for Environmental Clearance – 15 kms within
reserved forest, bio-reserve or ecologically sensitive area, no public hearing for off shore
projects
2004 construction and industrial estates EIA made mandatory
2005 No EC – modernisation of nuclear projects, river valley projects, harbours and
thermal power plants

ADD A FOOTER 5/17/2024 7

 2006 – EIA
Grouping of activities/projects – 2 levels of clearance – Category A (MoEF) and Category B
(SEIAA) – Decision to be based on expert appraisal committees
Category A projects require mandatory environmental clearance and thus they do not
undergo the screening process. Category B projects undergoes screening process and they are
classified into two types. Category B1 projects (Mandatorily requires EIA). Category B2 projects
(Do not require EIA)
Categorization based on spatial extent and potential impact
EAC and SEAC – Reconstitution every 3 years – Prescription for the qualifications of members
Stages:
Screening
Scoping
Public Consultation (Samarth case and Lafarge case)
Appraisal
Concerns:
Implementation problems, inadequate post decision oversights and inconsistency and delay
in decisive action
ADD A FOOTER 5/17/2024 8
Public hearing and public consultation

Public Consultation –

1. Public Hearing
2. Responses – Concerned people or authorities

ADD A FOOTER 5/17/2024 9

•Screening: First stage of EIA, which determines whether the proposed project, requires an EIA
and if it does, then the level of assessment required.

•Scoping: This stage identifies the key issues and impacts that should be further investigated.
This stage also defines the boundary and time limit of the study.

•Impact analysis: This stage of EIA identifies and predicts the likely environmental and social
impact of the proposed project and evaluates the significance.
•Mitigation: This step in EIA recommends the actions to reduce and avoid the potential adverse
environmental consequences of development activities.
•Reporting: This stage presents the result of EIA in a form of a report to the decision-making
body and other interested parties.
•Review of EIA: It examines the adequacy and effectiveness of the EIA report and provides the
information necessary for decision-making.

•Decision-making: It decides whether the project is rejected, approved or needs further change.

•Post monitoring: This stage comes into play once the project is commissioned. It checks to
ensure that the impacts of the project do not exceed the legal standards and implementation of
the mitigation measures are in the manner as described in the EIA report.
ADD A FOOTER 5/17/2024 10
In Centre for Social Justice v. Union of India,
AIR 2001 Guj 71 (Gujrat HC 2000)

Gujarat High Court laid down parameters for conducting an effective

public consultation. The court noted that the venue of the public hearing
should be as near as possible to the site of the proposed project or
affected village, and in any case, it should not be further away from the
headquarters of the taluka (an administrative district for taxation
purposes, often consisting of several villages) in which the proposed
project is planned. It further noted that the public hearing notice is to be
published in at least two newspapers widely circulated in the region
around the project, one of which shall be in the vernacular language of
the locality concerned.

ADD A FOOTER 5/17/2024 11

EIA 2020
Post-facto approval - No precautionary principle and sustainable development
Post-decisional monitoring and action in case of non-compliance
Cumulative Environmental Impacts
Reduction in rigor and oversight
Public Consultation – 40 days to 20 days
Economically sensitive area – no EIA obligation
EC – now from 30 years to 50 years
Highway projects of strategic and defence – 100 km from LOC – no EC
Thermal power plant – up to 15MW on biomass or non-hazardous MSW
Ports dealing exclusively with fish
Toll plaza –width and airport – without an increase in airports land area
From public hearing to public consultation to now may be optional

ADD A FOOTER 5/17/2024 12

NEPA
National Environmental Policy Act, 1969

Fusion of policy and law

EIA

“significantly affecting the quality of the human environment". An EIS is

a tool for decision making. It describes the positive and negative
environmental effects of a proposed action, and it usually also lists one
or more alternative actions that may be chosen instead of the action
described in the EIS. Several U.S. state governments require that a
document similar to an EIS be submitted to the state for certain actions.

MBL- PACE – NLS 5/17/2024 13

Land use
KIADB vs Kenchappa & Ors 2006 – Land acquisition – Grazing land to Industrial purpose – KSPCB
clearance before land is allotted for development – conversion

M I Builders vs Radhey Shyam Sahu, AIR 1999 SC 2468 – Underground shopping complex below a
public park

Damodara Rao vs State of AP, AIR 1987 AP – No deviation of Master Plan

ADD A FOOTER 5/17/2024 14

Bangalore Medical Trust vs B S Muddappa, 1991
SCALE (2) 131
Open space allotted by BDA to the trust

Challenged

Amenity – Pvt nursing home is unlike govt nursing home cannot be fulfil
essential public characteristics

ADD A FOOTER 5/17/2024 15

Urban buildings

National Building Code of India

Urban and Regional Development Plans Formulation and Implementation (URDPFI) Guidelines

ADD A FOOTER 5/17/2024 16

SEZ
The Special Economic Zones Act, 2005

An Act to provide for the establishment, development and management of the Special
Economic Zones for the promotion of exports and for matters connected therewith or
incidental thereto.

ADD A FOOTER 5/17/2024 17

The Special Economic Zones Act, 2005
5. Guidelines for notifying Special Economic Zone.—The Central Government, while
notifying any area as a Special Economic Zone or an additional area to be included in the
Special Economic Zone and discharging its functions under this Act, shall be guided by
the following, namely:—

(a) generation of additional economic activity;

(b) promotion of exports of goods and services;
(c) promotion of investment from domestic and foreign sources;
(d) creation of employment opportunities;
(e) development of infrastructure facilities; and
(f) maintenance of sovereignty and integrity of India, the security of the State and
friendly relations with foreign States.

ADD A FOOTER 5/17/2024 18

The Special Economic Zones Act, 2005

6. Processing and non-processing areas.—The areas falling within the Special Economic
Zones may be demarcated by the Central Government or any authority specified by it
as—

(a) the processing area for setting up Units for activities, being the manufacture of
goods, or rendering services; or
(b) the area exclusively for trading or warehousing purposes; or
(c) the non-processing areas for activities other than those specified under clause (a) or
clause (b)

ADD A FOOTER 5/17/2024 19

Central Board of Indirect Taxes and Customs
Customs – Special measures during Covid

(gg) Based on email requisitions, computers and related accessories have been permitted by
Customs to be transferred from the bonded premises to residence of employees of Software
Technology Park of India to facilitate work from home during the lockdown period.

ADD A FOOTER 5/17/2024 20

Land use
KIADB vs Kenchappa & Ors 2006 – Land acquisition – Grazing land to Industrial purpose – KSPCB
clearance before land is allotted for development – conversion

M I Builders vs Radhey Shyam Sahu, AIR 1999 SC 2468 – Underground shopping complex below a
public park

Damodara Rao vs State of AP, AIR 1987 AP – No deviation of Master Plan

ADD A FOOTER 5/17/2024 21

The National Green Tribunal Act, 2010

An Act to provide for the establishment of a National Green Tribunal for the effective
and expeditious disposal of cases relating to environmental protection and
conservation of forests and other natural resources including enforcement of any
legal right relating to environment and giving relief and compensation for damages to
persons and property and for matters connected therewith or incidental thereto.

ADD A FOOTER 5/17/2024 22

PIL
Occupies an unrivalled space in constitutional law that bridges the citizen, the
court and the executive Shyam Divan, Public Interest Litigation in Oxford
Handbook of Indian Constitution 662 (2016)

PIL – Exercise of conditional writ jurisdiction by HC and SC

PIL vs Private dispute – PD is for rights affecting individual citizens and in the
case of PIL it is for public grievances over human rights violations by the state or
seeking to vindicate the public policies embodied in statue or constitutional
provisions

5/17/2024 23
PIL

Peoples’ Union for Democratic Rights vs Union of India, (1982) 3 SCC 235:

PIL, as we conceive it is essentially a co-operative or collaborative effort on the

part of the petitioner, the State or public authority and the court, to secure
observance of the constitutional or legal rights, benefits and privileges
conferred upon the vulnerable sections of the community and to reach social
justice to them

5/17/2024 24
PIL

3 Phases:

1. SC issued directions to protect the right to life or benefit or marginalised

groups and sections of society who could not access courts because of
poverty, illiteracy and ignorance
2. Protection of the environment, forests, natural resources, and cultural
heritage – Collective right or collective good
3. Efforts to maintain probity, transparency and integrity in governance

5/17/2024 25
PIL

The concept of a person aggrieved is done away with as a mandate –

Repercussions – Protecting the rights and perspective of the person affected?
Traditional rules of a person aggrieved – Show special circumstances – special
injury over and above what the members of the public had generally suffered –
Noise pollution – Ambient/ ordinarily prevailing comfort

Representative Standing – locus standi – volunteers

Citizen Standing – his or her own right as a member of the citizenry – as a check
on abuse of executive authority

5/17/2024 26
PIL
Litigation Competence
To act in utmost good faith
Verification of bona fides
Amicus curiae
Check for hidden agendas; surrogate phantom lobbies; seeking to pursue commercial gain; and
using the court as a medium for publicity

Procedural Innovations
Strict Rules of Pleading do not apply
Collaborative effort – court, public and official and citizen
Letters written to Court – Treated as Writ petition – Dehradun Quarrying Case (RLEK vs State of
UP, (1989)) Supp(1) SCC 504)
Pollution Cases – NEERI directed to study the situation
Justice Krishna Iyer visited Ratlam – Justice P N Bhagwati visited Doon Valley

5/17/2024 27
PIL

Justiciability
Expanded concept of the right to life
Declared policy based on technical and expert reports
Blurred boundaries of adjudication
Enunciated principles

PIL- Legislature is catching upto SC

Suo motu
Lower standards of evidence
Commission Bias

5/17/2024 28
NGT
The National Green Tribunal Act, 2010

An Act to provide for the establishment of a National Green Tribunal for

the effective and expeditious disposal of cases relating to environmental
protection and conservation of forests and other natural resources
including enforcement of any legal right relating to environment and
giving relief and compensation for damages to persons and property and
for matters connected therewith or incidental thereto

5/17/2024 29
JURISDICTION, POWERS AND PROCEEDINGS OF
THE TRIBUNAL
Sections 14 to 25

Original Jurisdiction – Section 14 and 15

Appellate Jurisdiction – Section 16

5/17/2024 30
JURISDICTION, POWERS AND PROCEEDINGS OF
THE TRIBUNAL

1.. The Water (Prevention and Control of Pollution) Act, 1974;

2. The Water (Prevention and Control of Pollution) Cess Act, 1977;
3. The Forest (Conservation) Act, 1980;
4. The Air (Prevention and Control of Pollution) Act, 1981;
5. The Environment (Protection) Act, 1986;
6. The Public Liability Insurance Act, 1991;
7. The Biological Diversity Act, 2002

5/17/2024 31
JURISDICTION, POWERS AND PROCEEDINGS OF
THE TRIBUNAL

14. Tribunal to settle disputes.—(1) The Tribunal shall have the

jurisdiction over all civil cases where a substantial question relating to
environment (including enforcement of any legal right relating to
environment), is involved and such question arises out of the
implementation of the enactments specified in Schedule I.

Settle disputes – 6 months – Cause of action – dispute arose

5/17/2024 32
JURISDICTION, POWERS AND PROCEEDINGS OF
THE TRIBUNAL

15. Relief, compensation and restitution.—(1) The Tribunal may, by an

order, provide,—

(a)relief and compensation to the victims of pollution and other

environmental damage arising under the enactments specified in
the Schedule I (including accident occurring while handling any
hazardous substance);
(b)for restitution of property damaged;
(c)for restitution of the environment for such area or areas

5/17/2024 33
JURISDICTION, POWERS AND PROCEEDINGS OF
THE TRIBUNAL
(a) an order or decision, made, on or after the commencement of the National Green Tribunal
Act, 2010, by the appellate authority under section 28 of the Water (Prevention and
Control of Pollution) Act, 1974 (6 of 1974);
(b) an order passed, on or after the commencement of the National Green Tribunal Act, 2010,
by the State Government under section 29 of the Water (Prevention and Control of
Pollution) Act, 1974 (6 of 1974);
(c) directions issued, on or after the commencement of the National Green Tribunal Act, 2010,
by a Board, under section 33A of the Water (Prevention and Control of Pollution) Act, 1974
(6 of 1974);
(d) an order or decision made, on or after the commencement of the National Green Tribunal
Act, 2010, by the appellate authority under section 13 of the Water (Prevention and
Control of Pollution) Cess Act, 1977 (36 of 1977);

5/17/2024 34
JURISDICTION, POWERS AND PROCEEDINGS OF
THE TRIBUNAL
(e) an order or decision made, on or after the commencement of the National Green Tribunal
Act, 2010, by the State Government or other authority under section 2 of the Forest
(Conservation) Act, 1980 (69 of 1980);
(f) an order or decision, made, on or after the commencement of the National Green Tribunal
Act, 2010, by the Appellate Authority under section 31 of the Air (Prevention and Control of
Pollution) Act, 1981 (14 of 1981);
(g) any direction issued, on or after the commencement of the National Green Tribunal Act,
2010, under section 5 of the Environment (Protection) Act, 1986 (29 of 1986);
(h) an order made, on or after the commencement of the National Green Tribunal Act, 2010,
granting environmental clearance in the area in which any industries, operations or processes
or class of industries, operations and processes shall not be carried out or shall be carried out
subject to certain safeguards under the Environment (Protection) Act, 1986 (29 of 1986);

5/17/2024 35
JURISDICTION, POWERS AND PROCEEDINGS OF
THE TRIBUNAL
(i) an order made, on or after the commencement of the National Green Tribunal Act, 2010,
refusing to grant environmental clearance for carrying out any activity or operation or
process under the Environment (Protection) Act, 1986 (29 of 1986);
(j) any determination of benefit sharing or order made, on or after the commencement of the
National Green Tribunal Act, 2010, by the National Biodiversity Authority or a State Biodiversity
Board under the provisions of the Biological Diversity Act, 2002 (18 of 2003),

5/17/2024 36
JURISDICTION, POWERS AND PROCEEDINGS OF
THE TRIBUNAL
Powers :
Not bound by CPC
Principles of natural justice - Three rules
Hear the parties
Ensure no bias
Reasoned decision
Own procedure
Rules of evidence not applicable
Same powers of the Civil Court
Call for records and evidence
Reviewing its decision
5/17/2024 37
Impact Assessment
Techi Tagi Tara vs Rajendra Singh Bhandari, (2018) 11 SCC 734

Persons appointed to PCB – Qualification – SC set aside the order of NGT

Tribunals as Regulators

State of Meghalaya vs All Dimasa Students Union (2019) 8 SCC 117 – SC – Unauthorized coal mining

Judicial Review

Suo motu

5/17/2024 38
Environmental Law
MBL-PACE-NLSIU
(Rio Declaration) UN Declaration on Environment and
Development 1992

Principle 13 - States shall develop national law regarding

liability and compensation for the victims of pollution and
other environmental damage.

Why State?

ADD A FOOTER 4/2/2024 2

The Civil Liability for Nuclear Damage Act, 2010

An Act to provide for civil liability for nuclear damage and prompt compensation to the
victims of a nuclear incident through a no-fault liability regime channeling liability to the
operator, appointment of Claims Commissioner, establishment of Nuclear Damage Claims
Commission and for matters connected therewith or incidental thereto.

Section 4(1) - Operator of the nuclear installation shall be liable for nuclear damage caused by
nuclear incident

Section 4(4) - Liability of the Operator of the nuclear installation shall be strict and shall be
based on the principle of no fault liability.

Section 8(1) - Operator shall before he begins operation of his nuclear installation, take out
insurance policy or such further financial security covering his liability.

ADD A FOOTER 4/2/2024 3

The Civil Liability for Nuclear Damage Act, 2010

5. Operator not liable in certain circumstances

ADD A FOOTER 4/2/2024 4

 The Manufacturing, Storage and Import of Hazardous
Chemicals Rules, 1989
U/Section 6, 8 and 25 of the Environment (Protection) Act, 1986 (29 of 1986)

SCHEDULE -5 (See Rules, 2(b) and 3)

ADD A FOOTER 4/2/2024 5

The Manufacturing, Storage and Import of Hazardous
Chemicals Rules, 1989

Rule 4(2) - An occupier who has control of an industrial activity in terms of subrule (1) shall provide
evidence to show that he has, -

(a) identified the major accident hazards; and

(b) taken adequate steps to –

(i) prevent such major accidents and to limit their consequences to persons and the environment;
(ii) provide to the persons working on the site with the information, training and equipment
including antidotes necessary to ensure their safety

NOTIFICATION OF MAJOR ACCIDENT – Rule 5

SCHEDULE -8 [See Rule 10(1)] INFORMATION TO BE FURNISHED IN A SAFETY REPORT

ADD A FOOTER 4/2/2024 6

 The Public Liability Insurance Act, 1991

1984 – Bhopal Gas

1986 – Shriram Chemicals Delhi

Insurance by industries

No fault basis – liability

Damages to victims of accidents – other than workmen

ADD A FOOTER 4/2/2024 7

Corporate liability and KMP
 ▪ U.P. Pollution Control Board vs M/S Mohan Meakins Ltd. And Others
▪ SC – 2000
▪ Trade effluents discharged by an industrial unit of a premier liquor processing company made
the water in Gomti more polluted to impermissible levels. SPCB initiated proceedings for
prosecuting company and its Directors in 1983.
▪ R - Ground of lapse of a long time now since the institution of the complaint. Lapse of
seventeen years is no doubt considerable, but the Board is not the least to be blamed for it.
▪ Directors cannot be absolved of liability because of dealy.

ADD A FOOTER 4/2/2024 9

BMRCL – Bangalore Metro Rail Corporation
Elephant corridor
The Bangalore Metro Rail Corporation Ltd (BMRCL) has decided to shift the proposed depot off Kanakapura road after
the Forest Department objected to its location saying it was part of the elephant corridor. - 2017

TATA Chemicals – Tanzania

Tata Chemicals’ plans to set up a soda ash plant, estimated to be in the region of $250 million, in joint venture with the
Tanzanian government, has created a flutter in the African country as environmentalist are raising concern over the impact
of the project.
Tata will set up a 0.5 MMTPA soda ash plant on Lake Natron which is a breeding site of Africa’s Lesser Flamingos. The
Lake Natron project will further Tata Chemicals position among the top soda ash companies of the world.
Lesser Flamingo is listed in the World Conservation Union’s red list of threatened species.
27th June 2012, Tata’s Managing Director Mr. R. Mukundan said Tata was no longer involved in any developments at
Lake Natron and had no intention of going back. “I would like to reiterate that as an outcome of a detailed business review
Tata chemicals formally exited the Lake Natron development project on 29th January 2009. Tata Chemicals has not been
involved with the Lake Natron project since that time and we are unaware of any current developments,”

ADD A FOOTER 4/2/2024 10

Chandler v Cape plc [2012] EWCA Civ 525 – Court of Appeals
David Chandler had been employed by a wholly owned subsidiary company of Cape plc for just over
18 months, between 1959 and 1962.
In 2007, Chandler discovered that as a result of exposure to asbestos during that period of
employment, he had developed asbestosis.
The subsidiary no longer existed and had no policy of insurance covering claims for damages for
asbestosis.
Chandler brought a claim against Cape plc, alleging it had owed (and breached) a duty of care to him.
Cape plc denied that it owed a duty of care to the employees of its subsidiary company.

“… (1) the businesses of the parent and subsidiary are in a relevant respect the same; (2) the parent
has, or ought to have, superior knowledge on some relevant aspect of health and safety in the
particular industry; (3) the subsidiary's system of work is unsafe as the parent company knew, or
ought to have known; and (4) the parent knew or ought to have foreseen that the subsidiary or its
employees would rely on its using that superior knowledge for the employees' protection.”

ADD A FOOTER 4/2/2024 11

 ▪ Lubbe v Cape Plc [2000] UKHL 41
Mrs Lubbe was exposed to asbestos while working for a South African subsidiary company of
the UK parent company, Cape plc.
The South African subsidiary had no money left and Cape Plc had no assets in South Africa.
Her case was one of 3000 claims.
The case was initiated in the High Court in London.
After her death, Mr Lubbe continued the court action as her personal representative and the
administrator of her estate.
He alleged that the parent, Cape Plc, owed a direct duty of care in tort to him as a worker in the
company group.

ADD A FOOTER 4/2/2024 12

 ▪ Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(CERCLA) – US
▪ An act to provide for liability, compensation, cleanup, and emergency response for
hazardous substances released into the environment and the cleanup of inactive
hazardous waste disposal sites

▪ Shareholders liability
▪ Violation of Limited liability
▪ Lenders liability
▪ Lenders agreement

ADD A FOOTER 4/2/2024 13

Environmental Law
MBL-PACE-NLSIU
 ▪ Shri Sachidananda Pandey Vs State of West Bengal, 1987 SC
▪ WB govt giving land close to zoological garden to Taj Group of Hotels
▪ Impact on migration of birds
▪ Keeping in view the ecological consideration, the building was to be a low-rise
structure with reasonable illumination so as to not hinder the trajectory of migratory
birds.
▪ Cabinet note pointed out the reason for the allotment of the land

ADD A FOOTER 4/6/2024 2

Design of environmental
compliance
 ▪ Business Responsibility Reports(BRR) under the National Voluntary Guidelines on Social,
Environmental and Economic Responsibilities of Business
▪ 500 companies - 2015
▪ 1000 companies -2019

▪ Business Responsibility and Sustainability Reporting(BRSR) by listed entities

▪ Environment, Social and Governance (ESG) indicators - SEBI (Listing Obligations and
Disclosure Requirements) Regulations, 2015
▪ Top 1000 listed entities (by market capitalization)Voluntary for FY 2020 – 21 & FY 2021 – 22
and mandatory from FY 2022 – 23

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 ▪ Environment disclosures
a. Resource usage: Energy consumption, water withdrawal and consumption
b. Air emissions: Scope 1, Scope 2 Green-house gases (GHG) and air pollutant emissions
c. Waste management: Quantum of hazardous and nonhazardous waste generated, re-used and
recycled along with waste management practices
d. d. Compliance with Extended Producer Responsibility (EPR) plan submitted to Pollution
Control Boards and Performance-Achieve-Trade (PAT) Scheme of the Bureau of Energy
Efficiency.
Leadership Indicators
a. Energy consumption mix through renewable & nonrenewable sources, water discharge,
b. Water consumption in areas of water stress,
c. Scope 3 GHG emissions
d. Reclaimed products (as % of products sold)
e. Impact on bio-diversity

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ADD A FOOTER 4/6/2024 6
 SCOPE 3 GHG
▪ Category 1 - Purchased goods and • Category 8 - Upstream leased assets
services
• Category 9 - Downstream
▪ Category 2 - Capital goods transportation and distribution

• Category 10 - Processing of sold

▪ Category 3 - Fuel- and energy-
products
related activities
• Category 11 - Use of sold products
▪ Category 4 - Upstream
transportation and distribution • Category 12 - End-of-life treatment
of sold products
▪ Category 5 - Waste generated in
operations • Category 13 - Downstream leased
assets
▪ Category 6 - Business travel
• Category 14 - Franchises
▪ Category 7 - Employee commuting • Category 15 - Investments

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 ▪ Perform Achieve and Trade (PAT) scheme is a flagship progarmme of Bureau of Energy Efficiency under the
National Mission for Enhanced Energy Efficiency (NMEEE).
▪ NMEEE is one of the eight national missions under the National Action Plan on Climate Change (NAPCC)
launched by the Government of India in the year 2008
▪ Perform Achieve and Trade (PAT) scheme is a market based compliance mechanism to accelerate
improvements in energy efficiency in energy intensive industries.
▪ The energy savings achieved by notified industries is converted into tradable instruments called Energy
Saving Certificates (ESCerts).
▪ The ESCerts after issuance by Bureau of Energy Efficiency are traded at Power Exchanges.

PAT cycle –VI (2020-21 to 2022-23)

▪ PAT Cycle-VI has commenced with effect from 1st April 2020. Under PAT Cycle-VI, 135 DCs from six
sectors, i.e. Cement, Commercial buildings (hotels), Iron and Steel, Petroleum Refinery, Pulp and Paper and
Textiles, have been notified. With implementation of PAT cycle –VI, it is expected to achieve a total energy
savings of 1.277 MTOE.
BEE has rolled out six PAT cycles till 31st March, 2020, with a total of 1073 DCs covering 13 sectors. It is
projected that total energy savings of about 26 MTOE translating into avoiding of about 70 million tonnes of
CO2 will be achieved by March 2023.

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 The Energy Conservation Act, 2001
▪ 2(c) “building” means any structure or erection or part of structure or erection after the rules
relating to energy conservation building codes have been notified under clause (p) of section 14
and clause (a) of section 15 and includes any existing structure or erection or part of structure or
erection, which is having a connected load of 100 Kilowatt (kW) or contract demand of 120 Kilo-
volt Ampere (kVA) and above and is used or intended to be used for commercial purposes
▪ 14A. Power of Central Government to issue energy savings certificate.—
(1) The Central Government may issue the energy savings certificate to the designated consumer
whose energy consumption is less than the prescribed norms and standards in accordance with the
procedure as may be prescribed.
(2) The designated consumer whose energy consumption is more than the prescribed norms and
standards shall be entitled to purchase the energy savings certificate to comply with the prescribed
norms and standards.
▪ 14B. Power of Central Government to specify value of energy.—
The Central Government may, in consultation with the Bureau, prescribe the value of per metric
ton of oil equivalent of energy consumed for the purposes of this Act.

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Section 14 (c) prohibit manufacture or sale or purchase or import of equipment or appliance specified under clause (b), unless such
equipment or appliance conforms to energy consumption standards:

Provided that no notification prohibiting manufacture or sale or purchase or import of equipment or appliance shall be issued within a
period of six months from the date of notification issued under clause (a) of this section: Provided further that the Central Government
may, having regard to the market share and the technological development having impact on equipment or appliance, and for reasons
to be recorded in writing, extend the said period of six months referred to in the first proviso by a further period not exceeding six
months;

(d) direct display of such particulars on label on equipment or on appliance specified under clause (b) and in such manner as may be
specified by regulations;

Section 26. Penalty

Section 48. Default by companies – Similar to Labour law provisions

LIST OF ENERGY INTENSIVE INDUSTRIES AND OTHER ESTABLISHMENTS

1. Aluminium; 2. Fertilizers; 3. Iron and Steel; 4. Cement; 5. Pulp and paper;

6. Chlor Alkali; 7. Sugar; 8. Textile; 9. Chemicals; 10. Railways;

11. Port Trust; 12. Transport Sector (industries and services); 13. Petrochemical, Gas Crackers, Naphtha Crackers and Petroleum
Refineries; 14. Thermal power stations, hydel power stations, electricity transmission companies and distribution companies; 15.
Commercial buildings or establishments

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 ▪ Using ISO 14001:2015 has many benefits for organizations with environmental management
systems.
Organizations and companies find that using the standard helps them:
• Improve resource efficiency
• Reduce waste
• Drive down costs
• Provide assurance that environmental impact is being measured
• Gain competitive advantage in supply chain design
• Increase new business opportunities
• Meet legal obligations
• Increase stakeholder and customer trust
• Improve overall environmental impact
• Manage environmental obligations with consistency

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ADD A FOOTER 4/6/2024 12
 4 Codes

Industrial Relations Code

Code on Wages
Occupational Safety, Health and Working Conditions
Code
Social Security Code

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Occupational Safety, Health and Working Conditions Code
2020
Duties of architect, project engineer and designer
9. (1) It shall be the duty of the architect, project engineer or designer responsible for any building or
other construction work or the design of any project or part thereof relating to such building or other
construction work to ensure that, at the planning stage, due consideration is given to the safety and
health aspects of the building workers and employees who are employed in the erection, operation and
execution of such projects and structures as the case may be.

(2) Adequate care shall be taken by the architect, project engineer and other professionals involved in the
project referred to in sub-section (1), not to include anything in the design which would involve the use of
dangerous structures or other processes or materials, hazardous to health or safety of building workers
and employees during the course of erection, operation and execution as the case may be.

(3) It shall also be the duty of the professionals, involved in designing the buildings structures or other
construction projects, to take into account the safety aspects associated with the maintenance and
upkeep of the structures and buildings where maintenance and upkeep may involve such hazards as may
be notified by the appropriate Government.

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Occupational Safety, Health and Working Conditions Code
2020
Notice of certain diseases.
12. (1) Where any worker in an establishment contracts any disease specified in the Third Schedule, the
employer of the establishment shall send notice thereof to such authorities, and in such form and within
such time, as may be prescribed by the appropriate Government.

(2) If any qualified medical practitioner attends on a person, who is or has been employed in an
establishment, and who is, or is believed by the qualified medical practitioner, to be suffering from any
disease specified in the Third Schedule, the medical practitioner shall without delay send a report in
writing to the office of the Chief Inspector-cum-Facilitator in such form and manner and within such time
as may be prescribed by the appropriate Government.

(3) If any qualified medical practitioner fails to comply with the provisions of sub-section (2), he shall be
punishable with penalty which may extend to ten thousand rupees

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Occupational Safety, Health and Working Conditions Code
2020
Duties of designers, manufacturers, importers or suppliers.

Responsibility of employer for maintaining health and working conditions

Permissible limits of exposure of chemicals and toxic substances.

Right of workers to warn about imminent danger

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 One must use his own right so as not to injure others

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Constitution
▪ Article 48A directs that the State shall endeavour to protect and improve the
environment and safeguard forests and wildlife of the country.

▪ Article 51A(g) imposes a duty on every citizen of India, to protect and improve the
natural environment including forests, lakes, river, and wildlife and to have
compassion for living creatures.

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 Compliance of Environmental Law
Three case scenarios:

1. Pollution Control Laws

2. Other Laws

3. Self regulation – Why is this a case scenario?

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Effectiveness or compliance of environmental
regulations -

Costs of mitigation

Punitive measures

Probability of detection of violation

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Financial Capacity as a criteria not to comply with
Environmental Laws

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M.C.Mehta v. Union of India, AIR 1988 SC 1037
Ganga Water Pollution Case - Owners of some tanneries near Kanpur
were discharging their effluents from their factories in Ganga without
setting up primary treatment plants

The Supreme Court held that the financial capacity of the tanneries
should be considered as irrelevant while requiring them to establish
primary treatment plants. The Court directed to stop the running of
these tanneries and also not to let out trade effluents from the
tanneries either directly or indirectly into the river Ganga without
subjecting the trade effluents to a permanent process by setting up
primary treatment plants as approved by the State Pollution Control
Board.
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M.C. Mehta v. Union of India, AIR 1998 SC 2963
In Delhi, the public transport system including buses and taxies are
operating on a single fuel CNG mode on the directions given by the
Supreme Court.

Initially, there was a lot of resistance from bus and taxi operators.

But now have they themselves realised that the use of CNG is not only
environment friendly but also economical? Was it because of a mandate?

BS IV issue
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Punitive measures & Probability of detection of
violation

Polluter pays principle and the challenges associated with it

Punitive measures – Something the industry weighs against

compliance cost or that which is overlooked

Punitive measures and the measure of it- Financial ??

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Punitive measures & Probability of detection of
violation
Gary Becker's 1968 “Crime and Punishment: An Economic Approach” is one of the
first papers using economics to address the questions of crime and law enforcement.

His economic analysis of crime found that firms greatly responded to the probability
of detection and the severity of punishment if detected and convicted. Fines are
treated as costs of doing business, and it is assumed that polluters minimize the sum
of expected compliance costs and expected penalties.

Environmental economists have suggested that effectiveness of environmental

regulations could be enhanced either by raising the penalty and increasing
monitoring activities to raise the probability of being caught or by changing legal
rules to increase the probability of conviction. This insight is no doubt true when
industries collectively can afford mitigation costs.

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Punitive measures & Probability of detection of
violation
Helland, E., (1997), “The Enforcement of Pollution Control Laws: Inspections,
Violations and Self-reporting,” The Review of Economics and Statistics, 141-154 &

Cohen, M., (1998), “Monitoring and Enforcement of Environmental Policy,” World

Bank Policy Research Working Paper.

Have documented evidences of high compliance despite very low penalties. This
could be because of economic incentives like cost subsidies in the form of tax breaks
and special financing given to firms. It could also be because the government chooses
to work via property rights. It could also be the case where the firms are risk averse
and choose to comply. According to Cohen, it may be possible that the expected
penalty for non-compliance may not be as low as it appears on the surface. Also,
informal community pressure and social norms might operate to yield significant
levels of compliance even without the threat of penalties.

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Industry – Definition – Challenges
Smoking in Public Places

In 2001, the Supreme Court of India imposed ban on smoking of tobacco in public places
all over the country. Smoking causes harm not only to the smokers but also to non-
smokers who are forced to inhale the second hand smoke. More than 3 million people die
every year in India as a result of smoking tobacco including bidis and cigarettes. One lakh
Indians get lung cancer every year because of smoking. Indeed, lung cancer kills 95% of
its victims.

That is why the Apex Court ruling has immense social value. But no one cares for the ban.
As you know the cigarettes and bidis are openly sold in tobacco-free railway stations, bus
stands, cinema houses, etc. The statutory warning 'smoking is injurious to health' is
printed in such small prints and colour that hardly it is readable. Even, if it is readable, it
has not served any purpose.

So it is the social awakening which can only help us to prevent smoking. – Punitive
measures and probability of detection
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Command and Control
Approach adopted by the pollution control bodies may be conveniently
called “Command and Control” (CAC) (Curmally, 2002) where laws exhibit
a preventive rather than a proactive role.

The “command” being the laying down of standards and pollution limits,
while the “control” being the power to withdraw water or power supply
of erring units, the imposition of penalties and fines, or even
imprisonment.

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Environmental Law
MBL-PACE-NLSIU
 International Environmental Law

NLSIU-PACE-MBL 4/13/2024 2
 International Law

NLSIU-PACE-MBL 4/13/2024 3
 International Law

International Law consists of the rules and principles of

general application dealing with the conduct of States
and of international organizations in their international
relations with one another and with private individuals,
minority groups and transnational companies.

4
 International Law

Art 38(1), Statute of the International Court of Justice

a) international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;

b) international custom, as evidence of a general practice accepted as law;

c) the general principles of law recognized by civilized nations;

d) subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law

5
 International Law
Treaties
International conventions
Written agreements between States governed by IL
Agreements, conventions, covenants, protocols and exchanges of notes.
Memorandum of Understanding – Not a treaty is mentioned so and that
would not bind the parties
Bilateral, multilateral, regional and global
Vienna Convention on the Law of Treaties, 1969

6
 International Law

Custom International custom / customary law

Evidence of a general practice accepted as law
Constant and virtually uniform usage among States over a
period of time
Bind all States
BOP on the State alleging the existence of a rule of
customary law

7
 International Law

General Principles of Law General

Recognized by civilized nations
General principles that apply in all major legal systems

Harm and compensation is an example

8
 International Law

Writings of the international law scholars

Judicial decisions of both international and national
tribunals if they are ruling on issues of international
law
Resolutions of the UN General Assembly or
resolutions adopted at major international
conferences – Not binding but recommendatory
9
 International Legal Personality – STATE

A State has the following characteristics:

(1) a permanent population;
(2) a defined territory;
(3) a government; and
(4) the capacity to enter into relations with other States
(5) Recognition by other State
10
 Extension of Jurisdiction

Flag Jurisdiction – Maritime Law and Aviation Law

11
 Hard Law or soft law

Hard law refers generally to legal obligations that are binding on the
parties involved and which can be legally enforceable by a national or
international body. WTO – Disputes
The term soft law is used to denote agreements, principles and
declarations that are not legally binding.
Soft law instruments are predominantly found in the international sphere.
UN General Assembly resolutions are an example of soft law.

12
International Environmental Law

Purpose –

Moral Statement – Aspirational?

Deterrent- Enforceability?

Socialising tool – Expectation of members to behave in a

certain way
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International Environmental Law

Purpose –

Deterrent – International Forums for Dispute Resolution?

In WTO regime – Even US accepts the Dispute Settlement

Understanding

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International Environmental Law

Whaling Case – Whaling in the Antarctic (Australia vs Japan), ICJ Judgment dated

31.03.2014 – Japan in violation of its obligations under the International Convention for

the Regulation of Whaling and other international agreements in the authorization and

implementation of whaling "special permits" in the Southern Ocean

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Nature and Degree of Compliance of Treaty
Obligations- Armin Rosencranz and Shyam Divan:

1. Capability and Staff of an international institution charged with coordinating

national compliance efforts

2. Willingness of other state parties to enforce or comply with the Treaty

3. Political agenda of the domestic government and popular support

4. Trade and diplomatic pressure

5. Judicial or NGO involvement

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Environmental Law
MBL-PACE-NLSIU
 International Environmental Law

NLSIU-PACE-MBL 4/30/2024 2
Traditional Principles of International Environmental
Law

Principles of good neighbourliness

Principles of state responsibility

Principles of state cooperation

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 Principles of good neighbourliness
International customary law

Every state can enjoy territorial supremacy, it has an obligation to use its territory in such a way
that its actions do not injure another state

Trail Smelter Arbitration (1941) – US against Canada– Between 1925 and 1935, the United States
complained to the Canadian government that the operation’s sulphur dioxide emissions were
causing harm to the Columbia River valley in a 30-mile area from the international border to
Kettle Falls, Washington

Rio Declaration, 1992 - Principle 2 - States have, in accordance with the Charter of the United
Nations and the principles of international law, the sovereign right to exploit their own
resources pursuant to their own environmental and developmental policies, and the
responsibility to ensure that activities within their jurisdiction or control do not cause damage to
the environment of other States or of areas beyond the limits of national jurisdiction.

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U.K. vs Albania (1949) ICJ Reports 4 – Corfu Channel
Case
Dispute between UK and Albania arose out of the explosions of mines by which some
British warships suffered damage while passing through the Corfu Channel in 1946, in a part
of the Albanian waters which had been previously swept. The ships were severely damaged
and members of the crew were killed. The United Kingdom seized the Court of the dispute
by an Application filed on 22 May 1947 and accused Albania of having laid or allowed a third
State to lay the mines after mine-clearing operations had been carried out by the Allied
naval authorities.

Principle of sovereignty embodies the obligation of every state not to allow its territory
to be used for acts contrary to the rights of other States

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Principles of state responsibility

Arises in a situation when a State commits a breach of

International obligation causing damage to another State.
Direct – State officials /agents
Indirect – Private individuals
Limits of pollution in the State

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Principles of state cooperation

Problems that need to be tackled on a global platform need

individual States to comply with State obligations in good
faith

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Principles of modern international environmental law

Principles of sustainable development

Polluter pays principle

Principle of common but differential responsibility

Equitable utilisation of natural resources

Right to development
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 1972 United Nations Conference on the Environment
in Stockholm
The 1972 United Nations Conference on the Environment in Stockholm was the first world
conference to make the environment a major issue. The participants adopted a series of principles
for sound management of the environment including the Stockholm Declaration and Action Plan
for the Human Environment and several resolutions.

The Stockholm Declaration, which contained 26 principles, placed environmental issues at the
forefront of international concerns and marked the start of a dialogue between industrialized and
developing countries on the link between economic growth, the pollution of the air, water, and
oceans and the well-being of people around the world.

The Action Plan contained three main categories:

a) Global Environmental Assessment Programme (watch plan);
b) Environmental management activities;
c) International measures to support assessment and management activities carried out at the
national and international levels. In addition, these categories were broken down into 109
recommendations.

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In December 1983, the Secretary-General of the United Nations, Javier
Pérez de Cuéllar, asked the former Prime Minister of Norway, Gro
Harlem Brundtland, to create an organization independent of the UN to
focus on environmental and developmental problems and solutions
after an affirmation by the General Assembly resolution in the fall of
1983.This new organization was the Brundtland Commission, formally
known as the World Commission on Environment and Development.

1987 – The report was submitted

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Our Common Future, Chairman's Foreword - Brundtland

"A global agenda for change" - this was what the World Commission on Environment
and Development was asked to formulate. It was an urgent call by the General
Assembly of the United Nations: to propose long-term environmental strategies for
achieving sustainable development by the year 2000 and beyond; to recommend
ways concern for the environment may be translated into greater co-operation
among developing countries and between countries at different stages of
economical and social development and lead to the achievement of common and
mutually supportive objectives that take account of the interrelationships between
people, resources, environment, and development; to consider ways and means by
which the international community can deal more effectively with environment
concerns; and to help define shared perceptions of long-term environmental issues
and the appropriate efforts needed to deal successfully with the problems of
protecting and enhancing the environment, a long term agenda for action during the
coming decades, and aspirational goals for the world community.
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This Commission believes that people can build a future that is more
prosperous, more just, and more secure. Our report, Our Common
Future, is not a prediction of ever increasing environmental decay,
poverty, and hardship in an ever more polluted world among ever
decreasing resources.

We see instead the possibility for a new era of economic growth, one
that must be based on policies that sustain and expand the
environmental resource base. And we believe such growth to be
absolutely essential to relieve the great poverty that is deepening in
much of the developing world.

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1992 Rio Declaration - United Nations Conference
on Environment and Development

The 'Earth Summit' had many great achievements: the Rio Declaration
and its 27 universal principles, the United Nations Framework Convention
on Climate Change (UNFCCC), the Convention on Biological Diversity;
and the Declaration on the principles of forest management .

The 'Earth Summit' also led to the creation of the Commission on

Sustainable Development, the holding of first world conference on the
sustainable development of small island developing States in 1994, and
negotiations for the establishment of the agreement on straddling stocks
and highly migratory fish stocks.

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 2012 Rio – The Future We Want
Renewing political commitment

A. Reaffirming the Rio Principles and past action plans

B. Advancing integration, implementation and coherence: assessing the
progress to date and the remaining gaps in the implementation of the
outcomes of the major summits on sustainable development and
addressing new and emerging challenges
C. Engaging major groups and other stakeholders

Green Economy in the context of sustainable development and poverty

eradication

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 2012 Rio – The Future We Want
Institutional framework for sustainable development
A. Strengthening the three dimensions of sustainable development
B. Strengthening intergovernmental arrangements for sustainable development
C. Environmental pillar in the context of sustainable development
D. International financial institutions and United Nations operational activities
E. Regional, national, subnational and local levels

Means of implementation
Finance
Technology
Capacity-building
Trade
Registry of commitments

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The Mandate – Stockholm+50 International Meeting

The United Nations General Assembly, through its resolution 75/2801 of 24 May 2021,
decided to convene an international meeting in Stockholm on 2 and 3 June 2022, to
commemorate 50 years since the United Nations Conference on the Human Environment.
The General Assembly agreed on the theme of the international meeting “Stockholm+50:
a healthy planet for the prosperity of all – our responsibility, our opportunity”, and decided
to organize collaborative and multi-stakeholder discussions around the following
leadership dialogues:

Leadership dialogue 1: Reflecting on the urgent need for actions to achieve a healthy
planet and prosperity of all.
Leadership dialogue 2: Achieving a sustainable and inclusive recovery from the
coronavirus pandemic (COVID-19).
Leadership dialogue 3: Accelerating the implementation of the environmental dimension
of sustainable development in the context of the decade of action and delivery for
sustainable development.
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Today, humankind has a choice: we can continue down the path of the last 50 years – characterized by
unbalanced growth, unequal wealth, and unsustainable consumption and production resulting in a
degrading planet and growing inequity, ill-health, mistrust, and hopelessness for the many and a good life
for the few – or we can collectively pause and move forward with empathy and solidarity, anticipation, and
foresight towards collective action for better futures. Building on the outcomes of all the major United
Nations conferences and summits in the economic, social and environmental fields – especially the Rio
Declaration on Environment and Development , Agenda 21 , the Johannesburg Declaration on Sustainable
Development and the Plan of Implementation of the World Summit on Sustainable Development
(Johannesburg Plan of Implementation), and the outcome document of the United Nations Conference on
Sustainable Development, entitled “The future we want”(2012),– Stockholm+50 provides us with an
opportunity for a collective pause. While it is a commemoration of the 1972 Conference, it is also a
reflection on the interconnectedness of the health of the planet, equity and collective wellbeing. It is an
opportunity to provoke a collective shift in our reflection by expanding the community of thinkers and
voices. It is a recommitment to the notion of responsibility embedded in the 1972 declaration and
documents. Most importantly, however, it is a call to accelerate the implementation of commitments in
the context of the Decade of Action and the delivery of sustainable development – including a sustainable,
equitable and resilient recovery from the COVID19 pandemic.

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Challenges that we face?

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Our generation has inherited an Earth that is rich with
possibilities. Never before has knowledge and technology
opened so many possibilities to so many – delivering
innovations and progress unimaginable to previous
generations. Yet, with these opportunities comes increased
responsibility – responsibility to care for the Earth that
sustains life and to ensure that prosperity reaches and is
shared by all. The next fifty years will be crucial for finding that
balance. Solidarity and collective actions are essential for
success, and the recommendations and messages that emerge
from Stockholm+50 have an opportunity to mark a historic
milestone on the journey.

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 Established Norms of International Environmental Law

1. Principle 21 - State Sovereign Right to exploit resources

2. Polluter Pays Principle
3. Precautionary Principle
4. Sustainable Development
5. International Equity
6. Common Heritage of Mankind
7. Common but Differentiated Responsibility
8. PTD
9. State Sovereignty
10. Right to A Decent or Healthful Environment
11. Notification and Consultation
12. Monitoring, Reporting and Disclosure
13. EIA
14. Civil Society and NGO Input
15. Environmental Rule of Law

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 Environment and Free Trade
World Trade Organisation established in 1995 and General Agreement on Tariffs and Trade (GATT)

Do not discriminate – between States / between domestic and foreign

Article 20 –

Shrimp Turtle Case –

India, Pakistan, Malaysia and Thailand
Discrimination
Western economies and Eastern economies
Transition time and financial support to

Dolphin Case – I and II

Product vs Process in both the cases

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Environmental Law
MBL-PACE-NLSIU
 International Environmental Law

NLSIU-PACE-MBL 5/11/2024 2
Climate Change

Meaning –

Climate is the pattern of variation in temperature, humidity, atmospheric

pressure, wind, precipitation, atmospheric particle count and other
meteorological variables in a given region over long periods.

Climate Change is normally known as the variation in global and regional

climates over time. It reflects changes in the variability or average state of the
atmosphere over time scales ranging from decades to millions of years.

Mandatory net zero planning: the next trend in global legislation?

Message in enacting a legislation

NLSIU-PACE-MBL 5/11/2024 3
 Paris Agreement on Climate Change - Article 12
Parties shall cooperate in taking measures, as appropriate, to
enhance climate change education, training, public awareness,
public participation, and public access to information,
recognising the importance of these steps with respect to
enhancing actions under this Agreement

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EQUATOR PRINCIPLES

Principle 1: Review and Categorisation

Principle 2: Environmental and Social Assessment

Principle 3: Applicable Environmental and Social Standards

Principle 4: Environmental and Social Management System and Equator Principles Action Plan

Principle 5: Stakeholder Engagement

Principle 6: Grievance Mechanism

Principle 7: Independent Review

Principle 8: Covenants

Principle 9: Independent Monitoring and Reporting

Principle 10: Reporting and Transparency

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 https://www.youtube.com/watch?v=xTmS0exb7r8

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Climate Change – Corporates

A clear signal of intent?

Mandatory disclosure requirements a way to regulate corporate

climate targets?

Directors’ duties and due diligence requirements?

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 2012
Higgins defined ecocide as

“the extensive damage to, destruction of or loss of

ecosystem(s) of a given territory, whether by human
agency or by other causes to such an extent that peaceful
enjoyment by the inhabitants of that territory has been
severely diminished”

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 2021

Independent Expert Panel for the Legal Definition of

Ecocide,
convened by the Stop Ecocide International Foundation,
developed a new definition of ecocide

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For the purpose of this Statute, “ecocide” means unlawful or wanton acts
committed with the knowledge that there is substantial likelihood of
severe and either widespread or long-term damage to the environment
being caused by those acts.

For the purpose of paragraph 1:

a. Wanton means with reckless disregard for damage which would be
clearly excessive in relation to the social and economic benefits
anticipated;
b. “Severe” means damage which involves very serious adverse changes,
disruption or harm to any element of the environment, including grave
impacts on human life or natural, cultural or economic resources;
c. “Widespread” means damage which extends beyond a limited
geographic area, crosses state boundaries, or is suffered by an entire
ecosystem or species or a large number of human beings;
d. “Long-term” means damage which is irreversible or which cannot be
redressed through natural recovery within a reasonable period of time;
e. “Environment” means the earth, its biosphere, cryosphere, lithosphere,
hydrosphere and atmosphere, as well as outer space.
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 Mark Patrick – Climate Change and National Security

Ranjithsinh and Ors vs Union of India and Ors, 2024

Livelaw (SC) 286 – Right against the adverse effects of
climate change

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