An introduction to Environmental law

Environment: Definition
Environment includes
water, air and land
and
the inter-relationship which exists
among and between water, air, land
and
human beings, other living creatures, plants, microorganisms and property

S.2(a) EPA
Anthropogenic approach

Public trust doctrine

precautionary principles

sustainable development

polluter-pays principle

Inter-generational equity

HR approach to environment protection in human-wildlife conflict

Doctrines evolved: no role protecting an endangered species

Eco-centrism
Customs and law in India

Dharma to worship nature river, tree, sacred groves

Sun, air, fire, water and earth - yagnas

The universe along with its creatures belongs to the Lord. No creature
is superior to any other. Human beings should not be above nature. Let
no species encroach over the rights and privileges of other speciesIsha Upanishad

Mauryas and Mughals: Advent of the British and the forest laws

Article 51-A (g) of the Constitution

Conventions

EPA and BDA, CITES and CBD : shift from environmental rights to
ecological rights .

Convention for Conservation of Antarctic Marine Living Resources, 1980;

the Protocol on Environmental Protection to the Antarctic Treaty, 1998;
the Bern Convention on the Conservation of European Wildlife and
Natural Habitat, 1982; CITES and CBD

Man-animal conflict: when?

Not only natural causes but human failures

Human population growth

Land use transformation

Too much access to reserves

Species loss of habitat

Eco-tourism

Increase in livestock population bordering the forest

Wild animals

a) damaging crops and property

b) Killing livestock and human beings

Depletion of natural prey base

Can environmental justice be achieved if we drift away from eco-centric

to the anthropocentric approach?

Relation with other disciplines

a) Anthropology
b) Political science
c) Economics
d) Biology
e) Ecology
f) Forestry,

Relation with other laws

a) Constitutional law,
b) administrative law,
c) social welfare law,
d) law of torts,
e) International law,
f) criminal law,
g) tax law

Sources
(i)

common law

(ii)

statute law

(iii) customs and practices

(iv) international Conventions
DECISIONS OF COURTS

Nuisance action
Judicial Review

Judicial Review: Locus standi

Juristic personality

Inanimate objects are sometimes parties in litigation. A ship has a legal

personality, a fiction found useful for maritime purposes so it should as
respects valleys, alpine meadows, rivers, lakes, estuaries, ridges, grooves of
trees, swamp land or even air
- Douglas in Sierra Club v Morton, 405 US 727, 31 L Ed 2d 636

If a person can be an idol, a corporation or a ship or an institution,

the expression can include living creatures other than human beings as
well as inanimate things - Christopher Stone

plants do have a soul JC. Bose - Why cant lion tailed monkey, a tiger
an elephant , a fish, or a tree, a mountain or a steam has the right?

Lawyers representing others and Amicus curie.

PIL breaks traditional barriers.

Statutes

Wild Life (Protection) Act 1972- WLPA

Water(Prevention and Control of Pollution) Act 1974

Forest (Conservation) Act 1980 FCA

Air (Prevention and Control of Pollution) Act 1981

Environment (Protection) Act 1986 - EPA

Public Liabilities Insurance Act 1991 - PLIA

Bio-diversity Act 2002 - BDA

Scheduled Tribes And Other Forest Dwellers Act 2006

Green Tribunal Act 2011 - GTA

Benefits of Statutes

Deterrent sanctions and effective remedies

An administrative agency

Better public participation

Avoiding costly and retracted litigation

Class action and citizen suits

EPA - air and water laws

No specific statutes for civil action

International Conventions

Stockholm 1972

Rio 1992

Johannesburg 2002

Convention on International Trade in Endangered Species of Wild Fauna

and Flora 1973 (CITES)

Convention on Bio-Diversity 1992(CBD)

Law of Public Nuisance

Public and private nuisance

contamination of water treated as a nuisance the Water Act:

Private nuisance: interference with the use of ones land

Public nuisance

a) an interference with a right common to the general public

b) the extent of harm affecting a lot of people
c) not to be ascertained, quantification of damages difficult

Public nuisance - close connection with environment law

Suits under CPC

Easement: beneficial enjoyment of ones land free from air, water or

noise pollution

Civil remedies

Damages

Injunction

interim orders

declaration or decree

Standing a hurdle

s 91,CPC - technique to overcome the hurdles

Class action

Against environmental violations s.91

Order 1 Rule 8, CPC - amplification of class action with the

permission of the court

notice by personal service or by advertisement

The decree binding on all parties on whose behalf or for whose

benefit the suit is instituted

enough that the persons who sue, have the same interest in the suit.

Perumal Naicker v Rathina Naicker, AIR 2004 Mad 492

(constructing a building, defendant encroaching on the common pathway)

the nuisance also affects the public from freely making use of the
path for reaching important places such as school, river and
graveyard

s 91, CPC not preventing an individual, personally affected, to file

suit

mandatory injunction to the defendant to remove obstruction of

pathway

Charan Lal Sahu v Union of India,

AIR 1990 SC 1480
The Bhopal Gas Leak Disaster (Processing of Claims) Act 1985

Central Govt having the exclusive right to represent the claims of the
victims in parens patriae suits

to deal with speedily, effectively, equitably and to the best

advantage of the claimants

As a criminal offense
The Indian Penal Code s 268.

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.

Nuisance in Cr P.C

Under s 133 of the Cr PC

an executive magistrate removing public nuisance

first with a conditional order, and then with a permanent one - can
be utilized in the case of nuisance of an environmental nature

s 142: immediate measures to prevent danger or injury of a serious

kind to the public

s 144: for prevention of danger to human life, health or safety, the

magistrate can direct a person to abstain from certain acts

Courts and public nuisance

Deshi Sugar Mill v Tupsi Kahar. AIR 1926 Pat 506
About a hundred people approaching, magistrate ordered to
discontinue two sugar mills draining dirty, toxic water into the river)

Court recognized the magistrates power to apply law of nuisance in

s 133 to pollution

did not interfere - no sufficient evidence to pinpoint which of the two

contaminated the river.

no complaint against the one on the upstream till the one in the
downstream came into being.

A civil surgeon and a chemist saying pollution of the river due to

vegetable growth.

Ram Baj Singh (Dr) v Babulal, AIR 1982 All 285

brick-powdering mill
generating dust entering doctors chamber,
causing physical inconvenience to him and his patients
the machine installed without valid permission
after the doctor had started his consulting chamber
Philosophy of Nuisance

public nuisance - consequence of ones acts no longer remains

confined to his own property, but spills over in a substantial manner
to the property belonging to another

reasonable persons do not consider trivial consequences as nuisance

something done by the owner of a neighboring land upon his own

land which is not comfortable or is wholly uncomfortable with
physical comfort and human existence

person aggrieved gets a right to sue - act of the neighbor an

actionable nuisance.

A note of caution
a) to judge whether the air has been polluted to an extent that it has
ceased to be comfortable with human comfort and existence
b) standard to be employed again is that of a sober and reasonable mind
c) Concepts of elegant and dainty living wholly out of place - the
location of a property a relevant circumstance
d) person living in an industrial locality cannot claim to have as much
fresh air as a person living in a non-industrial area

Special damage

special damage indicates damage caused to a party contrary to damage

caused to the public at large

When an act amounts to public nuisance, an individual can sue in his

own right.

This can be done if he is able to prove special damage to himself, i.e,

damage personal to him as opposed to damage or inconvenience caused
to the public at large or to a section of the public.

Single act amounting to pub.nuice

damage caused to public at large, on account of a nuisance, is referred

in law as public nuisance.

a single act may amount to a public nuisance providing cause of action

to an individual to sue - Example

a) heaps of night soil on the side of a public highway

b) nuisance to the general public as well as a private nuisance to a person
who lives in a adjoining house.
Test of the reasonable man

Dust emanated from the crushing of bricks - assessment of substantial

injury is to be made by the test of reasonable man and not by the
susceptibilities of hypersensitive persons. The court said, Causing of
actual damage by the act complained of as a nuisance is beside the
point. If actual damage or actual injury were to be the criterion a person
will have to wait before the injury becomes palpable or demonstrable

before instituting a suit or its abatement.

the high court issuing a permanent injunction against using the offending
brick grinding machine - nuisance created by the defendants brick
powdering machine caused common injury, danger or annoyance to the
patients visiting the consulting chamber

people were using road dividing the defendants place of business and
the plaintiffs chamber no debate whether such nuisance would come
within the ambit of public nuisance under s. 133 of Cr PC, although the
case was filed as a suit.

PATH OF ACTIVISM
Govid Singh v Shanti Swaroop
AIR 1979 SC 143
nuisance of smoke from a bakery - magistrate ordering demolition of the
oven and the chimney and winding up e business

approving magistrate use of the oven and chimney was virtually

playing with the health of the people

emission of smoke injurious to the health and physical comfort of

people in the proximity

Held, not merely the right of a private individual but the health,
safety and convenience of the public at large is involved

Govind Singh continues

the safer course to accept the view of the Magistrate, who saw for
himself in a local inspection the hazard

carry on the trade of a baker but should not use the oven and the
chimney.

How can a baker carry on his trade if the oven and the chimney for his
bakery were demolished ? Not examined in the case.

Supreme Court of India has captured the potentiality of the law of

nuisance in Cr PC as a remedy for environmental assaults - went into
wider parameters of public nuisance

Municipal Council, Ratlam v Vardhichand , AIR1987 SC 2734

Residents within Ratlam, suffering from pungent smell from open
drains and slums and the malodorous liquids flowing on to the street from
the distilleries
magistrate ordered time bound six-month program for constructing
drainage and public latrines
municipality opted to challenge this pleading financial constraints
and inability to carry out the scheme
Ratlam continues

municipal legislation casting a duty on the municipality to maintain

clean roads and clean drains and IPC punishment for contravening
magistrate s direction are imperative tones demanding a mandatory
duty under s 133 Cr PC

municipality cannot plead that notwithstanding the public nuisance, its

financial inability validly exonerated it from statutory liability

Cr PC operates against statutory bodies regardless of the cash in their

coffers because human rights have to be respected by the state
irrespective of budgetary provisions

statutory agencies should not defy their duties by urging in self-defense,

a self-created bankruptcy of perverted expenditure budget.

Ratlam generated innovative ideas

Decency and dignity are non-negotiable facets of human rights and

are a first charge on the local self-governing bodies. Similarly,
providing drainage systems not pompous and attractive, but in
working condition and sufficient to meet the needs of the people
cannot be evaded if the municipality is to justify its existence

The processes having a social justice component

The remedies and the powers under the are conducive to the demands
of the rule of law necessitated by the conditions of developing countries

municipality should prepare a scheme and abate the nuisance.

Ratlam : a landmark in path of environmental jurisprudence

The judicial activism of the eighties - an important role in reaching new

horizons of environmental jurisprudence in India - Ratlam a significant
milestone in the path - identified responsibilities of local bodies
towards the protection of environment - developed law of public
nuisance as a potent instrument for enforcement.

served to offset the insufficiency of the legal mechanism and

enforcement not only in the laws governing local bodies but also in other
environmental legislations such as Water Act, Air and EPA

Local self-governing institutions can hardly take up welfare and

development plans, unless they have sufficient funds - In certain
instances, directions of the court may prove to be unenforceable. Was
plea of financial inability rejected in a realistic manner?

73rd and 74th amendments to the Constitution - more powers,

responsibilities and financial strength - Ratlam period might have been
different with perpetual negligence in providing basic amenities and
performing clean-up duties - their zeal in spending money for litigation
instead of providing civic amenities - obvious factors that weighed with
the court in brushing aside the plea of financial inability

a trendsetter - widened the scope and amplitude of the jurisdiction of e

magistrate under s 133 of Cr PC - a useful antidote to the crisis of
sanitary environment management in the Indian scenario the case lays
down basic guidelines in determining the primary responsibilities of local
bodies and industries

Emphasis on accountability of both public and private agencies in a

welfare state - public bodies are accountable for callous negligence of
corporate bodies for their persistent violation of emission standards.

Krishna Gopal v State of (1986) Cr LJ 396

manufacturing of medicine in a residential locality with the aid of a

booming boiler resulting in emission of smoke noise

MP High Court held the community or large number of complainants

need not complain

s 133(1): jurisdiction of magistrate can be invoked on receiving a report

of a police officer or other information, and on taking such evidence if
any, as he thinks fit

rejected contention that the inconvenience to the inmates of the house

is not public nuisance, but only private nuisance - undoubtedly injurious
to health as well as the physical comfort of the community - dismissed
revision petition with costs.

Krishna Gopal applied both to air and noise pollution - found a wider
scope for the law of public nuisance for protecting the environment facts showing several public authorities colluding to grant license to the
company - a parallel civil suit decreed ex parte against one of the
authorizes

Ratlam gave substance to the provision in s 133, Krishna Gopal renders it

a new vigour.

Noise as public nuisance

Raghunandan v Emperor AIR 1931 All 433
magistrate forbidding operation of factory engines from 9 pm to 5 am
as it was injurious to the physical comfort of the community
Himmath Singh v Bhagwana 1988 CrLJ 614 (working of the fodder cutting
machines caused noise and offensive smell - sand-laden winds carrying

particles of fodder to the residential colony close by People could not

sleep, nor could wet clothes be sun dried)
Rajasthan High Court held that all these constituted public nuisance
justifying interference of the magistrate.
Madhavi v Thilakan (1989) Cr LJ 499 (nuisance by automobile workshop in
residential area)
We recognise every mans home to be his castle which cannot be
invaded by toxic fumes, or tormenting sounds. This principle expressed through
law and culture, consistent with natures ground rules for existence, has been
recognised in s 133(1)(b). The conduct of any trade or occupation, or keeping
of any goods or merchandise injurious to health or physical comfort of
community could be regulated or prohibited under the section.

Not only criminal jurisdiction but also preventive and remedial

jurisdiction a repository of regulatory powers of the state in the
interest of health and physical comfort of the community

Contours of public nuisance

Jayakrishna Panigrahi v Hrisikesh Panda (1992) Cr LJ 1054.

The chapter containing s. 133 is titled public nuisance while the

section only nuisance arguable that expression nuisance cannot
but be interpreted as public nuisance.

Rajasthan High Court held, despite heading public nuisance, literal and
unambiguous meaning given to nuisance applying to a case where the
interest of a single individual or of a few individuals are affected.

Pranab Kumar Chakraborty v Mhd Akram Hussain 1991 Cr LJ 3156

With the help of s 133 a landlord could not evict a tenant in an

unreasonable manner - owner complaining that the tenant had in a
room kept under lock and key some unhygienic articles producing bad
smell - orders from magistrate, the police broke the door open
without the knowledge of the tenant only to find no article causing
odour.

The Gauhati High Court interfered and quashed the orders of the
magistrate and restored the room to the tenant. discretion of the
magistrate under s 133 is not unbridled he has to apply his mind
whenever a complaint is brought before him.

Air pollution as public nuisance

Shoukat Hussain v Sheodayal, AIR 1958 MP 350
(particles of cotton blown from a cotton-carding machine causing
breathing difficulties to the non-applicant and his neighbors - residents not
complained

Magistrate on a report: harm might affect more people and amount to

public nuisance-court: nuisance of one person and his neighbors cannot
be public nuisance - facts show that the nuisance would have affected a
large number of people - S. 133, Cr PC not showing it apply only to
actual nuisance - when the construction of a building or the condition of
a tree is likely to be dangerous to the public, preventive action can be
taken - no reason why such preventive action is not allowed in all types
of public nuisance. In recent times, unpredictable and rapid
environmental catastrophe prevention is better than cure

Ajeet Mehta v State of Rajasthan, 1990 Cr LJ 1596

business of loading, unloading and stocking of fodder near a

residential locality being a serious health hazard polluting atmosphere
with dust particles of fodder - order of the magistrate for removal of
the business was endorsed

Kachrulal Bhagirat Agrawal v Maharashtra, 2004 Cr LJ 4634

Storage, loading and unloading of red chillies in a godown situated in

a residential locality was alleged to have caused public nuisance residents suffering from sneezing, coughing, asthma, irritation of skin
and burning sensation - Supreme Court observed that there must at any

rate, be an imminent danger to health or the physical comfort of the

community in the locality in which the trade or occupation is conducted.

Imminent danger means a sense of urgency that failure to take recourse

would bring irreparable danger to the public.

CONFLICT OF JURISDICTION

Water and air Acts cover the area in relation to the control of water and
pollution of a special statute with machinery to redress grievances each law a code

do these special statutes aiming protection of the environment prevail

over, or repeal, s 133 - procedural formalities make the remedies under
those laws a complex time-consuming process sometimes court seizing
of the matter after happening of harm

Repeal being a legislative exercise, special laws do not repeal the law
of public nuisance - no implied repeal special law overrides general
law, only if, both operate on the same field - one relates to pollution
control, the other refers to maintenance of public order and tranquility

compelling the aggrieved citizens to approach the board brings no

effective results being more or less a complainant before a judicial
magistrate Cr PC provides a mechanism for quick remedy against
nuisance.

State of MP v Kedia Leather and Liquor Ltd (2003) 7 SCC 389

(Magistrate directed closure as the industries discharged effluents to the
stream resulting in public nuisance. The high court held subsequent
enactments impliedly s. 133)

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. While 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.

Perhaps one may not agree with these arguments when one notes that
the use of s.133 to combat pollution enters the domain of laws relating
to pollution of water and air. It removes the same evil although methods
differ. This difference makes the public nuisance remedy easier than
those available under the special laws. Despite possible criticism on a
highly legalistic plane, it cannot be denied that Kedia Leather has
strengthened the environmental content in the provision of law of
nuisance. The people in far-off villages and towns may find it extremely
difficult to approach the Supreme Court or the high courts with
complaints against ecological woes of their locality. Nor will succeed in
getting a quick and effective remedy by approaching the board executive magistrates empowered with jurisdiction to move the
machinery against public nuisance are available in every district with a
grass root remedy.

the executive magistrates subject to the dictates of the higher echelons

of government, necessary to free them from this official bias or undue
influence - mechanism to be evolved to make them act independently is judicial supervision and vigilance sufficient for tailoring standards of
their behavior - necessary to develop s 91 CPC remedy, a judicial remedy
not an administrative remedy, against public nuisance.

State of MP v Kedia Leather and Liquor Ltd (2003) 7 SCC 389

(Magistrate directed closure as the industries discharged effluents to the
stream resulting in public nuisance. The high court held subsequent
enactments impliedly s. 133)

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. While 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.

Perhaps one may not agree with these arguments when one notes that
the use of s.133 to combat pollution enters the domain of laws relating
to pollution of water and air. It removes the same evil although methods
differ. This difference makes the public nuisance remedy easier than
those available under the special laws. Despite possible criticism on a
highly legalistic plane, it cannot be denied that Kedia Leather has
strengthened the environmental content in the provision of law of
nuisance. The people in far-off villages and towns may find it extremely
difficult to approach the Supreme Court or the high courts with
complaints against ecological woes of their locality. Nor will succeed in
getting a quick and effective remedy by approaching the board executive magistrates empowered with jurisdiction to move the
machinery against public nuisance are available in every district with a
grass root remedy.

the executive magistrates subject to the dictates of the higher echelons

of government, necessary to free them from this official bias or undue
influence - mechanism to be evolved to make them act independently is judicial supervision and vigilance sufficient for tailoring standards of
their behavior - necessary to develop s 91 CPC remedy, a judicial remedy
not an administrative remedy, against public nuisance.