Sunday, December 10, 2006

TOWARDS A GREENER TOMORROW

(Paper presented by Justice Yatindra Singh, Judge Allahabad High Court, Allahabad at the Workshop on ‘Judicial Enforcement of Environmental Law’ Organised by Centre for Environment Education-North (Lucknow) and Environmental Law Institute (Washington DC, USA), in collaboration with Judicial Training and Research Institutes, UP (Lucknow) on 19th October 2003. This paper has been updated since then.)

The last century was the century of physicists but this is no longer true. This century is the century of biologist, a century of environmentalists. Environmental problems and issues will play crucial role in this century. We cannot march towards a brighter tomorrow unless we understand and solve them.


THE CASES AND THE PRINCIPLES
The environment jurisprudence has moved forward with Public Interest Litigation (PIL). Let’s briefly consider the cases and the principles established therin.

The Vellore Case
Vellore Citizen Welfare Forum Vs. Union of India AIR 1996 SC 2715. This case was filed against the pollution caused by discharge of untreated effluents by the tanneries and other industries in Tamil Nadu. The court explained that sustainable development as a concept came to be known in the Stockholm Declaration of 1972. It was given definite shape in 1987 by the World Commission on Environment and Development in its report, 'Our Common Future'. (see End note-1). Sustainable Development means that the development should meet the needs of the present without compromising the ability of the future to meet their own needs. Its salient features are,
  • Inter Generational Equity,
  • Use and Conservation of Natural Resources,
  • Environmental Protection,
  • The Precautionary Principle,
  • Polluter Pays principle,
  • Obligation to assist and cooperate,
  • Eradication of Poverty and,
  • Financial Assistance to the developing countries.

The Court accepted the precautionary principle and elaborated it as:
  1. Environmental measures must anticipate, prevent, and attack the cause of environmental degradation.
  2. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
  3. The onus of proof is on the actor or the developer/ industrialist to show that his action is environmentally benign.

The Enviro Legal Action Case
Indian Council for Enviro-Legal Action Vs. Union of India AIR 1996 SC 1447. Chemical industries in village Bicheri district Udaipur, Rajasthan were releasing toxic effluents damaging the earth and water. They were closed but no action was taken to undo the damage done by them. This case was filed for remedial action. The Supreme Court accepted the principle of polluter pays which means that the financial cost of preventing or remedying damage lies with the undertaking causing the pollution. It cannot be saddled with the government, as it would shift to the taxpayers.

The Kamalnath case
M/s MC Mehta Vs. Kamalnath 1997 (1) SCC 388. M/s Span motels was given lease on 29.9.1972 of about 40 bigha 3 biswa of land for a period of 99 years from 1.10.1972 to 1.10.2071. By 1981, almost all shares of this motel were taken over by the family of Kamalnath and on 29.11.1981 a fresh lease for the same period was executed. By the time, the Motel also illegally occupied forest land. Subsequently, when Kamal Nath was Minister in charge of Ministry of Environment and Forest, the Central Government of India, Ministry of Environment and Forests granted approval on 24.11.1993 for grant of further lease of 27 bighas and 12 biswa of land: the same land which was illegally occupied by the motel. The lease of this area was executed by the Himanchal Pradesh Government on 11.4.1994. A news item was published in the Indian Express on 25.2.1996 in which it was pointed out that the motel has made constructions over forest land after encroaching it and it is being regularised. It was further reported that course of river Beas is being changed. The Supreme Court took suo motu action and held the leases were illegal; it cancelled the lease granted on 11.4.1994. The Court applied the public trust doctrine which means that the State is a trustee of all natural resources for the benefit of the public and is under legal duty to protect it.

The Godavarman Case
TN Godavarman Thirumulkad Vs. Union of India 1997(2) SCC 267. The Supreme Court held that Forest Conservation Act 1980 was enacted to check deforestation. It applies to all forests irrespective of nature of their ownership or classification. It includes forests designated as reserved, private or otherwise and prior approval of the central Government is required for any non-forest activity within the area of any forest. Deforestation causes ecological imbalance: forests, trees and bio-diversity are to be protected.

The Oleum Gas Leakage case
MC Mehta Vs. Union of India: AIR 1987 SC 1086. Oleum gas leaked from Sri Ram food and fertilizers factory in December 1985 and a case was filed for determining,
  • The liability of the enterprises engaged in sale and manufacture of hazardous products; and
  • The conditions in which they should be permitted to operate.

The Supreme Court while deciding this case referred to the leading case of Ryland Vs Fletcher 1861-1973 All ELR (Reprint 1) (The Ryland case) (see End note-2) but did not accept the principle laid down therein. The Supreme Court established the rule of absolute liability and held that if any damage is caused due to hazardous or dangerous activity then the sufferer is liable to be compensated irrespective of the fact that reasonable care was taken in carrying out the activity. The liability is absolute; there are no exceptions as held in the Ryland case. This principle has been enacted as part of two Acts namely the Public Liability Insurance Act, 1991 and the National Environment Tribunal Act, 1995.

Thus the Supreme Court has established the following principles in the aforesaid cases:
  1. There should be Sustainable Development.
  2. Precautionary Principles should be adopted.
  3. Polluter Pays.
  4. Public Trust Doctrine.
  5. Save Forests, trees, biodiversity.
  6. The Rule of Absolute Liability.

LEGISLATIVE RESPONSE
The legislature has also enacted many Acts. Apart from the Acts dealing with protection of trees, forests, wildlife, biodiversity, the following Acts have been enacted to preserve the environment and check pollution.
  1. The Water (Prevention and Control of Pollution) Act, 1974 (the 1974 Act).
  2. The Air (Prevention and Control of Pollution) Act, 1981 (the 1981 Act)
  3. The Water (Prevention and Control of Pollution) Cess Act, 1977 (the 1977 Act).
  4. The Environment (Protection) Act, 1986 (the 1986 Act)
  5. The National Environment Appellate Authority Act, 1997 (the 1997 Act)
  6. The Public Liability Insurance Rules, 1991 (the 1991 Act)
  7. The National Environment Tribunal Act, 1995 (the 1995 Act)

The aforesaid Acts are separate but in a way are connected with each other. They alongwith the rules framed under them form the statutory environment jurisprudence in our country.

The 1974, 1981 and 1997 Act
The 1974 and 1981 Act, as their name indicates, have been enacted to prevent and control water and air Pollution. The 1974 Act provides for establishment of Central and State Pollution Boards. In other Acts, there is reference to the Boards. They are the ones that are established under the 1974 Act.

The 1974 and 1981 Acts also provide laying down of permissible water and air pollutants. They provide punishment (section 41-48 of chapter VII of the 1974 Act and Sections 37-47 of chapter VI of the 1981 Act) for violation of the provisions of the Acts and permit the Boards (section 33 of the 1974 Act and Sec. 22-A of the 1981 Act) to obtain restraining order from the Magistrate in case the water and air is being polluted.

The 1977 Act merely provides cess for generating funds for the functioning of the Boards under the 1974 Act.

The 1986 Act
The 1986 Act is more comprehensive and provide for protection and improvement of Environment. Section 3 of 1986 Act empowers the Central Government to take such measures as are necessary for protecting and improving the environment as well as preventing, controlling and abating environment pollution. This includes power to restrict areas in which industries, or operations, or process can not be carried out or to lay down the conditions under which they can be carried out.

The 1986 Act, in contradistinction to 1974 and 1981 Act, empowers the Central Government to issue directions including for closure or prohibition of any industry, or operations, or process. Under the 1974 or 1981 Act, the Board or the government has no power to issue restraint order but have to move to the Magistrate for the same. Sections 15 to 17 of the 1986 Act provide punishment for violating the provisions of the 1986 Act and Rules framed under it. The Central Government, in pursuance of the power conferred under the 1986 Act, has also framed the following rules for specific industries.
  1. The Manufacture, Use, Import, Export and Storage of Hazardous Micro-Organism Genetically Engineered Organism or Cells Rules, 1989.
  2. The Hazardous Waste (Management and Handling) Rules, 1989
  3. The Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989.
  4. The Chemical Accidents (Emergency Planning, Preparedness and Response) Rules, 1996.
  5. The Bio-Medical Waste (Management and Handling) Rules, 1998.
  6. The Recycled Plastics Manufacture and Usage Rules, 1999.
  7. The Municipal Solid Wastes (Management and Handling Rules), 2000.
  8. The Noise Pollution (Regulation and Control) Rules 2000 (kindly see In re Noise Pollution 2005(5) SCC 733).
  9. The Ozone Depleting Substances (Regulation and Control) Rules, 2000.
  10. The Batteries (Management and Handling) Rules, 2001.

The 1997 Act
The 1997 Act could have been merely an amendment to the 1986 Act. Clause (v) of sub-section (2) of section 3 of the 1986 Act empowers the Central Government to impose restrictions in the areas in which any industries, operations or class of industries, or operations or processes shall not be carried out or shall be carried out subject to certain safeguards. The 1997 Act establishes a National Environment Appellate Authority to deal with petitions, complaints, representations or appeals against the grant of environmental clearance to projects. This was also so recommended in the Oleum gas leakage case (paragraph 22).

The 1991 and 1995 Acts
The growth of hazardous industries, processes and operations is accompanied by the growing risks from accidents. These accidents not only involve the workmen employed in such undertakings, but also innocent members of the public. The 1991 Act was enacted to provide for mandatory public liability insurance to the victims (other than workers) for installations and handling of hazardous substances. The liability under this Act is limited and is to be decided by the collector on the principle of absolute liability. However, availability of immediate relief does not prevent the victims to go Courts for claiming larger compensations.

The 1995 Act is similar to the 1991 Act. Like the 1991 Act, it also provides the compensation to the person (other than the workman) or damages to any property from accident due to handling of any hazardous substance. But unlike the 1991 Act, the compensation is not limited as is in the 1991 Act and compensation can be claimed not only for damage to any property but to environment also. The 1995 Act also establishes Tribunal and its benches for adjudicating the compensation and appeal lies to the Supreme Court.

THE FORGOTTEN REMEDIES
There are many remedies that are available at the district level. They should be properly utilised: they ensure greater participation of local residents, who should in these matters be more concerned, and may be more effective. These have also been explained in a recent decision of the Supreme Court in Kachrulal Bhaigirath Agrawal Vs. State of Maharashtra (2005) 9 SCC 36 (paragraph 10).
  • Chapter X (B- Public Nuisance) Sections 133-143 (see End note-3) and (C- Urgent cases of nuisance or apprehended danger) section 144 of the Criminal Procedure Code (Cr PC). Kindly See Ratlam Municipality Vs. Vardhichand AIR 1980 SC 1622. In this case, there were slums in Ratlam. There were neither public lavatories nor drain etc. This was creating nuisance. The SDM, Ratlam, under section 133 CrPC, held that it was the duty of the Ratlam Municipality to remove the nuisance and issued necessary directions. This was upset by the District and Sessions Judge but was upheld by the High Court as well as by the Supreme Court.
  • Criminal Prosecution under chapter XIV (Of Offences affecting the Public Health, Safety, convenience, Decency, and Morals) Section 268-294-A of the Indian Penal Code (IPC).
  • Suits concerning Public nuisances and other wrongful acts affecting the public under section 91 of the Civil Procedure Code (CPC).
  • Representative suits under Order 1 Rule 8 of the CPC

TVA Vs. HILL
In other countries public interest litigation is filed in the district courts. In US it is often called class action. One of the most celebrated cases in the US in the field of environment was TVA Vs Hill 57 L.Ed 2nd 117 http://www.cortland.edu/polsci/tva.html .

A dam was being constructed over Little Tennessee River. Snail darter, a three-inch tannish coloured fish, was found only in this river. It was declared an endangered species under the US Endangered Species Act 1973. Due to the construction of the dam, it was in danger of extinction. A suit for injunction restraining the construction of the dam was filed. The District court denied the injunction. It was reversed by the Court of Appeals and an injunction was granted. The matter was taken to the US Supreme Court.

Traditionally Attorney General of the US appears in court only once in his term: the Solicitor General normally argues cases in the court. Griffin B Bell, the then Attorney General, chose to appear in this case. According to him the dam was almost complete and only for the three-inch fish, the construction of the dam should not be stopped. The US Supreme Court upheld the order of Court of Appeals. The Congress had to amend the law to get over the judgement. I will like to point out here that after the talk, Mr John Pendergrass, Director, Judicial Programs, Environmental Law Institute (Washington DC, USA) informed me that the snail darters were transplanted to Hiawassee river and are thriving there.

TO BE A GOOD ENVIRONMENTALIST
Generally the laws by themselves are neither good nor bad: it is the people executing them make it good or bad. The people executing them are equally, if not more, important of the two. One cannot be good executor unless one is a good environmentalist: one has to practise what one preaches. Here are some tips to be a good environmentalist.
  1. Buy products that come in reusable packaging - like resealable containers, bottles.
  2. Get into the habit of taking your own bag when you shop.
  3. Don't waste paper: use both sides of each sheet.
  4. Collect all discarded paper for recycling.
  5. Avoid plastic packaging. Fruits, vegetables & meat do not need plastic trays to protect them.
  6. Look for products that come in simple refillable containers and refill them each time.
  7. Store food in reusable airtight containers and not in cling wraps.
  8. Save petrol pollute less.
  9. Encourage car-pooling amongst offices colleges & neighbours.
  10. Switch off electricity when not in use.
  11. Lobby - protect trees and forests.
  12. Use recycled goods.
  13. Use energy efficient electrical appliances - fluorescent bulbs instead of ordinary bulbs. They cost more but last longer and use less power.
  14. Use environment friendly products.
ENVIRONMENT-FRIENDLY PRODUCTS: ECOLABELS
How does one find out energy efficient appliances or recycled goods? 'Ecolabelling' is the answer. It is a voluntary method of environmental performance certification and labelling of environment-friendly products. There are many different voluntary (and mandatory) environmental performance labels and declarations. The International Organization for Standardisation (ISO) has identified the common goal of these labels as,
'[T]hrough communication of verifiable and accurate information, that is not misleading, on environmental aspects of products and services, to encourage the demand for and supply of those products and services that cause less stress on the environment, thereby stimulating the potential for market-driven continuous environmental improvement.'

The aforesaid voluntary labels have been identified by the ISO in three broad categories.
Type I: A voluntary, multiple-criteria based, third party program that awards a license that authorises the use of environmental labels on products indicating overall environmental prefer-ability of a product within a particular product category based on life cycle considerations.
Type II: Informative environmental self-declaration claims.
Type III: Voluntary programs that provide quantified environmental data of a product, under pre-set categories of parameters set by a qualified third party and based on life cycle assessment, and verified by that or another qualified third party

The Ecomark Scheme - India
The first national ecolabelling program was Germany's Blue Angel Ecoseal, designed in 1978. Since then, approximately 28 national ecolabelling programs have been developed worldwide. The Government of India has also decided to institute a scheme of labelling of Environment Friendly Products 'Ecomark' in 1991 {Resolution No. GSR 85(E) dt. 20.2.1991 Ministry of Environment, Forest & wildlife} (the Ecomark scheme). Clause 3 of the Ecomark scheme contemplates three stages for award of ecomark.
  1. A steering committee (set up in Ministry of Environment and Forest): To determine the product categories; and to formulate strategies for promotion, implementation, future development and improvement of the Ecomark scheme.
  2. A technical committee {(set up in Central Pollution Board (established under the 1974 Act)} (see End note-4): To identify criteria, and interse priority between the criteria; and to identify specific product for the ecomark scheme.
  3. The Bureau of Indian standards: To assess, certify and draw up a contract with the product manufactures for use of ecomark label on payment of fee.
An earthen pot has been chosen as the logo for the Ecomark scheme for the reason that it
  • uses a renewable resource like earth,
  • does not produce hazardous waste, and
  • consumes little energy in making.


Ecomark logo

Ecomark signifies that the product, which carries it, does the least damage to the environment. Unfortunately there is lack of consumer awareness and it is not popular. The government ought to take steps to popularise it. Perhaps one of the first step could be to make Ecomark or similar ecolabel mandatory for government, semi government, and government sponsored purchases. A list of products having ecomrk is appended as Appendix-1.


THE RECYCLING PROGRAMS IN INDIA
Due to our economic conditions, we already have a few recycling programs namely:
  • The pheriwalas, the Kabaries who purchase old newspapers, bottles, tin canisters, iron.
  • The women who come to collect old clothes in exchange of utensils.
  • The boys who pick up plastic bags from garbage place.

The pheriwalas, the Kabaries, and the women in fact pay in cash or kind for one's old and discarded stuff. The boys don't pay but earn something for themselves. These things are again used as it is or converted into a thing of some other use like: paper bags and dusters. In case this can not be done then they are recycled into other useful thing like glass, iron, tin, paper, or plastic. These programmes should be strengthened and given encouragement.

POPULATION CONTROL
We cannot solve our environmental problems unless we control and reduce our population. We have to adopt and encourage following policies if we wish to contain it.
  • Increase level of Education
  • Women Empowerment
  • Improve Basic Health and Medical Services
  • Provide Incentives for one child family and disincentives for more than one child family. Disincentives for more than two children have already been upheld by the Supreme Court in Javed & others Vs. State of Haryana JT 2003(6) SC 283=2003(8) SCC 369.
THE GOLDEN RULE
Is there a golden rule for interpreting environment laws? Is there a common thread that runs through the fabric of environment jurisprudence? Is there any central theme? Of course there is and it is,
‘We have not inherited this planet from our parents
But have merely borrowed it from our children’

Our children are our most important investments. They are our future. We have to protect their tomorrow. The responsibility lies with us. If we remember the golden rule, the common thread, and the central theme and are guided by it, then we will not only have a greener tomorrow but a brighter one too.

End Note-1: It is relevant to point out that it was this recommendation that led to the Earth Summit – the United Nations conference on Environment and Development (UNCED) in Rio de Janeiro in 1992. This commission was chaired by the then Prime Minister of Norway Ms. GH Brundtland and this report is known as 'Brundtland Report'. MS Brudtland is a medical doctor and was Prime Minister of Norway for 10 years. She stepped down as a Prime Minister to become Director General of World Health Organisation.

End Note-2: In the Ryland case, the defendant had made water reservoir. However, beneath the site of the reservoir were the old shafts of unused coal workings. They communicated with other coal workings including the plaintiff's colliery which was adjoining to it. There was no default on the part of the defendants in selecting the site or construction of the reservoir but reasonable care was not used by the persons employed with reference to the shafts, which failed to bear the water pressure. The reservoir burst downwards. Consequently, the water in the reservoir found its way into plaintiff’s colliery. The House of Lords upheld the decision of court below granting damages against the defendant. The law laid down in this case and its subsequent departure has been summarised in Halsbury laws of England (Volume 45 4th Ed paragraphs 1305) as follows.

'A person who for his own purposes brings onto his land and collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril and, if he fails to do so, is prima facie liable for the damage which is the natural consequence of its escape. Liability under the rule is strict, and it is no defence that the thing escaped without the defendant's wilful act, default or neglect, or even he had no knowledge of its existence. The rule applies only to non-natural user of the land. It does not apply
  • to things naturally on the land;
  • where the escape is due to an act of God, the act of a stranger or the default of the plaintiff;
  • where the thing which escapes is present by consent of the person injured;
  • in certain cases where there is statutory authority.’
End Note-3: The continuance of section 133 CrPC was challenged on the ground that it is impliedly repealed by the 1974 Act. It was accepted by the MP High Court but the Suprme Court reversed the decision and rejected the challenge in State of MP Vs. Kedia Leather & Liquor Ltd. 2003 (3) SCC 389. The Court observed :

‘The area of operation in the Code and the pollution laws in question are different with wholly different aims and objects, and though they alleviate nuisance, that is not of identical nature. They operate in their respective fields and there is no impediment for their existence side by side.’

End Note-4: Central Pollution Control Board is a member of the Global Ecolabelling Network (GEN): a non-profit association of third-party, environmental performance labelling organisations founded in 1994 to improve, promote, and develop the 'ecolabelling' of products and services.



Appendix-1
Position regarding grant of licences to use ECO Mark on different products


Sl.
No.
Manufacturers
IS No. and Title
CM/L No.
1.
Century Pulps & Paper, Nainital
1848:1991 – Writing and printing papers (third revision)
9297195
2.
-do-
14490:1997 – Plain copier papers
9292387
3
Madhya Bharat Papers Ltd., Champa, Chattisgarh
1848:1991 – Writing and printing papers (third revision)
8259081
4.
Ecoboard Industries Ltd, Jambhulwadi, Near Peth Naka, Via Islampur, Taluk Walva, Dist Sangli – 415407
3087:1985 – Wood particle board (medium density) for general purpose (first revision)
7128263
5
-do-
12823:1990 –Wood product –Prelaminated particle board
7154567
6
Ecoboard Industries Ltd, Velapur, Taluk Malshiras, Dist Solapur --413113
3087:1985 – Wood particle board (medium density) for general purpose (first revision)
7387994
7
-do-
12823:1990 –Wood product –Prelaminated particle board
7382075
8
Mangalam Timber Products Ltd, At – Kusumi, Nowrangapur, Dist Koraput –764059
12406:2003Medium density fibre board for general purpose
2400834
9.
Orient Paper Mills (Prop: Orient Paper & Industries Ltd) P.O. Amlai Paper Mills, Dist Shahdol
1848:1991 – Writing and printing papers (third revision)
8551986
10
Tamil Nadu Newsprints & Papers Ltd, Kagithapuram, Karur-639136o
14490:1997 – Plain copier papers

6467785
11
Satia Paper Mills Ltd., Vill- Rupana, Distt. Muktsar (Punjab)
1848:1991 – Writing and printing papers (third revision)
9432478
12
-do-
6956:2001- Cover Paper
9448695
13
Abhishek Inds. Ltd., (Paper & Chemical Division) Mansa Road, Vill-Dhala Barnala, Distt Sangrur (Punjab)
1848:1991 – Writing and printing papers (third revision)
9433177
14
Shreyans Inds Ltd., (Unit- Shreyans Papers) Vill. Malikpur, Ahmedgarh-148021 Distt. Sangrur (Punjab)
1848:1991 – Writing and printing papers (third revision)
9431375
15
Shreyans Inds Ltd., (Unit- Shree Rishabh Paper) Banah-144522, Distt. Nawanshahar (Punjab)
1848:1991 – Writing and printing papers (third revision)
9431476
16
-do-
6956:2001- Cover Paper
9444788
17.
Tata International Ltd.
Leather

(1) No. of Manufacturers – 12 (2) No. of Products – 07
(3) No. of Product Category – 03

No comments:

Post a Comment

Naked In The Khan Market

Judiciary must change its mindset. With lifting veil on collegium recommendation it has started but a lot is yet to be done. It should cont...