Environmental Jurisprudence in India

Environmental Jurisprudence in India

Subject: Polity

Section: Constitution

Polluter Pays Principle

• The Polluter Pays Principle was first adopted at international level in the 1972 OECD Council Recommendation on Guiding Principles concerning the International Aspects of Environmental Policies. The 1974 principle experienced revival by OECD Council in 1989 in its Recommendation on the Application of the Polluter Pays Principle to Accidental Pollution, and the principle was not to be restricted to chronic polluter. In 1991, the OECD Council reiterated the Principle in its Recommendations on the Uses of Economic Instruments in Environmental Policy. This principle was first stated in the Brundtland Report in 1987. This principle was also adverted to in Indian Council for Enviro-legal Action vs. Union of India. In this case this was held that once any activity is inherently dangerous or hazardous dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity.
• In the Oleum Gas Leak case (M.C. Mehta v. Union of India) the Supreme Court laid down that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of persons working in the factory and to those residing in the surrounding areas, owes an absolute and non delegable duty to the community to ensure that no harm results to any one on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without negligence on its part.

Precautionary Principle and Principle of New Burden of Proof

• The precautionary principle had its origin in the mid-1980s from the German Vorsorgeprinzip. The Supreme Court of India, in the case of Vellore Citizens’ Welfare Forum v. Union of India22 referred to the precautionary principle and declared it to be part of the customary law in our country. In the Vellore Case23, Kuldip Singh J observed as follows: “The ‘onus of proof’ is on the actor or the developer/industrialist to show that his action is environmentally benign”

Sustainable Development

• In the international arena ‘Sustainable Development’ came to be known as a concept for the first time in the Stockholm Declaration of 1972. Justice P.N. Bhagawati once made a insightful observation: ‘We need judges who are alive to the socio-economic realities of Indian life’ This statement explains the gradual shift in the judicial approach while dealing with the issues of sustainable development

Public Trust Doctrine

• The ‘public trust’ doctrine was referred to by the Supreme Court in M.C. Mehta v. Kamal Nath27. The doctrine extends to natural resources such as rivers, forests, sea shores, air etc., for the purpose of protecting the eco-system. The State is holding the natural resources as a trustee and cannot commit breach of trust.

Inter-Generational Equity

Principles 1 and 2 of the 1972 Stockholm Declaration refer to this concept. Principle 1 states that Man bears solemn responsibility to protect and improve the environment for the present and future generations. Principle 2 states that the national resources of the Earth must be safeguarded for the ‘benefit of the present and future generations through careful planning or management, as appropriate’. Principle 3 of the Rio Declaration, 1992 also states that the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.