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Principles of Environmental Law

  1. Sustainable Development

Sustainable development simply means balanced development. When a country wants to develop itself, it must balance its right of development with its citizens’ right to environment. Sustainable development is the ability of the people to meet their requirements today without creating a situation where our descendants are unable to meet their own needs in future years. The current generation should not abuse and exploit the resources available to us in such a way that our future generations are unable to gain advantage from the same resources. The concept of sustainable development has become a well-established principle of environmental law and has been accepted as a valid action plan by an overwhelming majority of the World’s countries. The concept had been made part of Indian jurisprudence through the judgments made by the Supreme Court and since then has become a provision of the NGT Act under Section 20.

The concept of Sustainable development also includes within itself two other principles:

  1. The Precautionary Principle– the Precautionary Principle has been recognized as one of the most important principles of sustainable development has been mentioned under Principle 15 of the Rio Declaration of 1992 where it was stated that to protect the environment the States shall apply the precautionary approach and that the lack of full scientific certainty shall not be the only ground for not taking measures to prevent environmental degradation. The Precautionary Principle is therefore based on the idea that “it is better to be safe, than sorr”. The Convention on Biological Diversity, 1992 and the Cartagena Protocol on Bio-safety, 2000 are examples of multinational agreements where the precautionary principle has been used.

In Vellore Citizens Welfare Forum v. Union of India[1], the Supreme Court using the support of various articles of the Indian Constitution, the Brundtland Report, India’s obligations under Article 51[2], and legislative enactments such as The Water Act, 1974, The Air Act, 1981, and the Environment (Protection) Act, 1986 stated that Sustainable Development, of which the Precautionary Principle and Polluters Pay Principle are a part, is a customary international law and hence a part of domestic law. In M.C. Mehta v. Union of India[3] (the Taj Trapezium case), the Court was attempting to protect the Taj Mahal from being polluted from nearby industries. The Court observed that the burden of proof is on the industries that must prove that their emissions are of a benign nature and environmental measures should be of such character that they are able to anticipate, prevent and attack environmental degradation. The lack of concrete proof should not be the only ground for delaying action as there may be irreparable harm caused to the environment if such a delay occurs;

  1. The Polluters Pay Principle- The slogan “If you make a mess, it’s your duty to clean up” is extremely appropriate for the PPP.  In the earlier times pollution was not a concern. The release of gases or waste into the air and water was considered totally legal. Water and air were used as “sinks” and it was thought that neither air nor water was a limited resource and therefore, their use was free to all. However, when the side effects of pollution were felt the apprehension for injury to the environment, human health, and property began. Pollution became a widespread anxiety and scientists were in the vanguard of those who were looking for solutions. The first real allusion to PPP was in the OECD Guiding Principles Concerning International Economic Aspects of Environmental Policies recommendation of 26th May 1972.

The PPP was then recognized as the most important principle of sustainable development and has been mentioned under Principle 16 of the Rio Declaration of 1992. Principle 16 states that the polluter should bear the cost of pollution. An important point to be noted is that under the PPP no mention has been made of fault. If a person pollutes the environment they must pay compensation for the damage caused and must pay to return the environment to its original state irrespective of the fact that the damage was caused intentionally or not.

  • Public Trust Doctrine

The Public Trust Doctrine was made part of Indian environmental jurisprudence by the Court in the case of M.C. Mehta v. Kamal Nath and Ors. The Supreme Court observed that the Public Trust Doctrine chiefly rests on the belief that certain resources like air, sea, water and forests have such great significance to the people as a whole that it would be unfair to allow them to fall into private ownership. The State is the trustee of all natural resources and must look after as they are meant for public utilization and pleasure. The public at large can enjoy the seashore, rivers, air, forests, etc and they cannot be transferred into private ownership. The court observed that since the India’s legal system was based on British common law, it could incorporate the public trust doctrine as part of its own jurisprudence. The Court also directed the developer to pay compensation to restitute the environment and ecology of the area. It also had no difficulty in holding that the Himachal Pradesh government had committed an obvious contravention of public trust by leasing out the ecologically sensitive area.

  • Principle of Absolute Liability

The principle of Absolute Liability was developed by the by the Indian Supreme Court in the case of M.C. Mehta vs. Union of India. The Court observed the following:

where an industrial unit is engaged in a hazardous or naturally unsafe activity and harm results to anyone on account of an accident in the operation of such hazardous or naturally unsafe activity resulting, for example, in escape of toxic gas the industrial unit is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-├á-vis the tortious principle of strict liability that had been evolved in Rylands v Fletcher[4]“.

The rule is an absolute and non-delegable obligation towards the society to make sure that no injury results to anyone on account of hazardous or naturally unsafe activity which it has undertaken. The enterprise cannot defend itself by saying that it had taken all reasonable care and that the harm occurred without any negligence on its part. This principle is therefore also called no fault liability.

[1] Supra note 21

[2] India is obligated to comply with foreign instruments that they are a signatory of.

[3] AIR 2002 SC 3696

[4] (1868) L.R. 3 H.L. 330

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Environment laws in India

E-Waste Management in India

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