NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALORE

I YEAR MBL ENVIRONMENTAL LAW - Model Answers

NOTE: The following model answers are only a suggestive and should neither be treated as
complete nor exhaustive answer to any question. The below is only a model answer and not
a perfect one. The objective of the model answer is to assist DED scholars to comprehend
the possible contents in an answer that may be considered relevant by an examiner, given
the length of the paper, marks allotted for each question, time allotted to answer, speed of
writing etc.

NLSIU does not hold itself liable for any undue reliance that a scholar may place on the
model answer. Students are expected to prepare their own answers in the preparation to
the examinations.
Part A

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12 Marks Answer:

Discuss a) Public Trust Doctrine and b) Polluter Pays Principle

The development of environmental law jurisprudence in India over the years has received
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immense contribution from the Indian judiciary. This is because the domain of environmental
law is not restricted merely to statutes and executive orders but also involves several rules and
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principles which are endorsed and incorporated into Indian law through judicial pronouncements.
This process has resulted in the progressive integration of our environmental law with the
international standards. Though these principles are not found to be expressly mentioned in any
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of the legislations, they are seen reflected in the constitutional principles as enshrined in the
fundamental rights (Article 21.), directive principles of state policy (Article 48A) and
fundamental duties (Article 51A (g)). Art. 39 of the Constitution also mandates the state that
ownership and control of the material resources are distributed to sub-serve the common good.

State has a proprietary interest in natural resources and acts as a guardian and trustee. Most
Constitutions address ‘the people’ as the owner of the natural resource. The Indian Constitution,
as detailed earlier too attaches such a relation. Two of such principles, which detail as to how the
resources are to be managed are the Public Trust Doctrine and the Polluter Pays Principle.
 a) Public Trust Doctrine

This Common law doctrine means that certain natural resources owing to their unique
characteristics are to be held in trust by the sovereign on behalf of the citizens such that they
cannot be subjected to ownership either by the state or by private actors. Such resources are to be
protected for the enjoyment of the general public and they shall not be permitted for private
ownership or commercial purpose. This casts a fiduciary duty on the state as a trustee not to
arbitrarily alienate the trust property.

The rudiments of this can be seen in the works of the Roman Emperor, Justinian, who held that
the sea, the shores of the sea, the air and running water was common to everyone. His codified
work, Corpus Juris Civilis gives an indepth analysis of this concept.

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The Magna Carta too had references and strengthened public rights. It also had references which
made it mandatory to remove obstacles to free navigation in rivers. It is also to be noted that
following this principle, King John abolished exclusive fishing and hunting rights.

In USA, way back in 1821, in Arnold v. Mundy it was held that the govt. cannot grant water
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rights divesting citizens of their common right. The same was later reiterated in Illinois Central
Railroad Co. v. People of the State of Illinois. In this case, the Illinois Legislature had granted an
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enormous portion of the Chicago harbor to the Illinois Central Railroad. A subsequent legislature
sought to revoke the grant, claiming that original grant should not have been permitted in the
first place. The court held that the public trust doctrine prevented the government from alienating
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the public right to the lands under navigable waters.

Even in the Mono Lake Case, in USA, the court held that the State is the trustee of all natural
resources which are by nature meant for public use and enjoyment. The State as a trustee is under
a legal duty to protect the natural resources. These resources meant for public use cannot be
converted into private ownership.

It is to be understood that the Stockholm Declaration, 1972, was one of the first international
consensus arrived at to take steps to protect the environment. Delving into the principles, it can
be seen that Principle 1 proclaims that “man has the fundamental right to freedom, equality and
adequate conditions of life, in an environment of a quality that permits a life of dignity and
wellbeing, and he bears a solemn responsibility to protect and improve the environment for
present and future generations.” This was one of the many steps which were taken to bring about
this concept.

Indian Experience:

As far as India is concerned in Rural Litigation & Entitlement Kendra v. State of Uttar Pradesh,
stopped unauthorized mining causing environmental damage, holding that this “is a price that has
to be paid for protecting and safeguarding the right of the people to live in a healthy environment
with minimal disturbance of ecological balance. Reading such rights under the broad ambit of
Art.21, the Right to Life, the Courts were able to project the same.

This concept was cemented into our legal system by the Supreme Court of India in the case of M

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C. Mehta v. Kamal Nath, popularly known as the Span Motel Case.

The case involved the leasing out of an ecologically fragile land to a private entity by the
government for the construction of a resort. The Respondent who had interest in the venture
subsequently authorized the encroachment made by them while he was holding the position as a
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central minister. The resort owners sought to divert the course of river Beas which had the
potential of causing landslides and floods. Justice Kuldip Singh who delivered the judgment
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traced the development of the principle from the Roman law concepts of res nullius (resources
owned by no one) and res communis (resource held by everyone in common). The court directed
the motel to pay compensation by way of cost for the restitution of the environment.
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The three kinds of restrictions imposed on the governmental authority by the doctrine are:

a) The property subject to the trust must not only be used for a public purpose, but must be
made available for use by the general public
b) The property must not be sold even for a fair cash equivalent
c) The property must be maintained for particular types of uses

The principle was later used by the courts in several other judgments and has been used to
guarantee access to water bodies, recreational natural spaces, beaches, wildlife preserves etc.
Government should seek to prevent both the abuse of public resources by private entities as well
as the ‘tragedy of commons.’
In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu the question was to decide between
constructing a Public park or shopping complex. The Court opined that “To allow the
construction would mean that citizens “would be deprived of the quality of life to which they are
entitled under the law.”

In Reliance Natural Resources Ltd. v. Reliance Industries Ltd. The court held that the
constitutional mandate is that natural resources belong to the people in this country. The nature
of the word ‘vest’ must be seen in the context of the PTD. Even though this doctrine has been
applied in cases dealing with environmental jurisprudence, it has a broader application.

The 2G Spectrum case laid down that natural resources are public goods. Hence doctrine of
equality which arises from justice and fairness, should guide the state. The paramount

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consideration to be taken into account was public interest.

The Public Trust Doctrine stands for the proposition that some of nature’s gifts inherently belong
to all people. The government must steward these to prevent both private use of public resources
and the “tragedy of the commons” from unfettered public access to these shared resources.
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Invoking environmental rights as human rights amplifies the public’s right, now and in the
future, to share in ecological gifts fundamental to human health and wellbeing.
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b) Polluter Pays Principle

The principle mandates the polluter to pay for the damage caused by him on the environment.
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This is a principle in international environmental law which holds the polluter responsible for the
environmental damage caused and to bear the expenses of carrying out pollution prevention
measures. It was in the case of M.C. Mehta v. UOI that the Supreme Court formulated this
principle as an absolute liability on the industries who are engaged in hazardous and inherently
dangerous activity. In this case, a petition was filed seeking the closure of a factory involved in
manufacturing of hazardous products and during the pendency of the case Oleum gas leaked out
of the factory causing the death and injury to several persons.

The rule of ‘strict liability’ as evolved in the English case of Rylands v. Flecther, provides that a
person who for his own purpose brings on to his land and keeps their anything that is likely to do
mischief should be done at his own peril; if he fails to do so and if it escapes and causes damage
which is the natural consequence of it he shall be prima facie liable to compensate for the
damage caused. This strict liability is however subject to certain exceptions which waive off the
responsibility in certain cases. The application of ‘absolute liability’ makes the polluter
accountable for the damage irrespective of the existence of the exceptional circumstances.

Supreme Court accepted and applied this principle for the first time in Indian council for Enviro-
legal Action v. UOI,. The case involved the discharge of toxic effluents from the chemical
factories in Bichhri, which had polluted the water in the wells and streams making it unfit for
human consumption. Court reiterated the principle and stated that absolute liability would
require not only compensating the victims of pollution but also bearing the cost of restoring
environmental degradation. In Deepak Nitrate v. State of Gujarat, it was further stated that the
compensation awarded must have correlation not only to the capacity of the enterprise but also

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the magnitude of harm caused.

It is to be noted that both these principles have played a great role in shaping the way and
manner in which courts have looked into the matter. The ways in which both these principles
have been put to ample use by the court do clearly give an idea about their importance.
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Part B
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Write Explanatory Notes – 10 Marks

Forest Rights Act, 2006

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The forests in India, since time immemorial, have been the source of food and shelter for a large
section of the tribal population in India who in turn has ensured the conservation of forests
through customary and religious practices. However they have always been secluded from
deriving the benefits under different legislations and have remained marginalized. Moreover with
the advent of privatisation many of these lands came to be acquired by the government for
developmental purposes. In that process many of the forest dwellers were evicted/displaced from
their lands or their rights were infringed.

The Act came in the background of a Supreme Court judgment in T.N. Godavarman
Thirumulpad v Union of India (2001) which extinguished the rights of the traditional dwellers on
the forest land thereby supporting the concerns of non-forest dwellers.
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act or in
short the Forest Rights Act, 2006 was thus enacted to deal with the rights of the forest-dwellers
to the land and other forest resources, which were denied to them due to the continuance of
colonial forest laws in India. The principal objectives of the Act are to redress the historical
injustice done to the traditional forest dwelling Scheduled Tribes, to address their long standing
insecurity of tenurial and access rights, to insulate them from forced displacement resulting from
developmental interventions of the State and to vest them with forest rights.

The law necessitated that such Traditional forest dwellers should be living in such forests for 3
generations, to ensure that there is a substantial claim. It aimed to provide a framework for
recording forest rights and also to recognize them as integral to the very survival and
sustainability of forest eco-system. It tried to ensure that the Act was able to encapsulate the

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rights and duties that were inherent in the forest dwellers and also as said earlier, to reduce the
historical injustice that was meted to them.

Apart from giving a clear idea as to who all would come under the scope of the Act, the said
legislation tries to imbibe the very spirit that forms the basis of Art. 14 of the Constitution and
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tries to better and widen the horizon for such marginalized communities.

Chapter II of the Act provides for a number of rights which includes:

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a) Right to residence including community tenures of habitat and habitation of primitive

tribal groups and pre-agricultural communities.
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b) Right to hold forest land and involve in individual and community cultivation for
livelihood
c) Right of ownership and access to collect, use and dispose of ‘minor forest produce’
which has been traditionally collected within and outside the village boundaries
d) Right of uses or entitlements such as fish and other product of water bodies, grazing and
access to traditional seasonal resources
e) Right for conversation of pattas or leases issued by any local authority/state government
f) Right of settlement and conversation of forest villages into revenue villages
g) Right to in-situ rehabilitation or alternative land in cases where the dwellers have been
evicted/displaced illegally
 h) Right to enjoy the statutorily recognized customary or traditional rights (access to
biodiversity and community right to IP and traditional knowledge)

It is also laudable that the said Act provides for a right to basic civic amenities. It also provides
for limited diversion of forest land (upon recommendation of grama sabha) and also makes
provision for schools, hospitals, roads, tanks etc.

One of the most notable features of the Act is that it also provides a framework for recording the
forest rights and recognizes them as integral to the very survival and sustainability of the forest
eco-system. In this regard, the Act designates the Gram Sabhas as the competent authority to
determine the nature and extent of individual and community rights that may be accorded to the
forest dwellers. The rights thus conferred by the Act are only inheritable and not transferable or

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alienable and should be registered in the name of both the spouses, or in other cases in the name
of the head of a household.

The dweller cannot be evicted from the forest land under his occupation during the pendency of
the verification process. A ceiling limit of 4 hectares is prescribed under the Act regarding the
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occupation of forest land for the recognition of forest rights.

It is also to be noted that displacement can be done only after ensuring total rehabilitation. This
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by far provides a solution for one of the most common problems that are faced as far as the forest
dwellers are concerned.
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The Act also casts duties on the holders of the forest rights to protect wildlife, forest,
biodiversity, ecological sensitive areas and water sources and also to ensure that the habitat is
preserved from destructive practices. It is important to note that section 3(2) of Act on the other
hand empowers the central government to exercise limited forest diversion to make provision for
schools, hospitals, roads, tanks etc. upon the recommendation of the Gram Sabhas.

The addition of Community reserves, Critical wildlife habitats and minor forest produce also
provides for an insight into this Act. These ideas try to convey the idea that there may be certain
things that need be protected and giving rights to forest dwellers should not in any way be a
detriment.
Despite the noble intentions reflected in the legislation, it has constantly been subjected to
scathing criticism. One of the major concerns has been the dilution of the implementation of the
law in order to facilitate industrial projects of Posco, Vendata etc. The National Forest Rights
Act Committee, the N C Saxena Committee and the National Advisory Council had pointed out
several flaws in the functioning of the Act including the lack of adequate tribal representation in
the Gram Sabha resulting in the banishment of communal rights.

That apart, it is also alleged that there is an incompatibility among different laws which lead to a
lack of harmony. The multiplicity of authorities also does precious little to solve the problem and
create conflicting opinions. There is also a problem of characterization of rights and problem of
inclusion & exclusion. It is also seen that the Grama sabha has a marginalised role, which need
be done away with as there is a need to ensure that grassroot level governance is present and able

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to tackle the many problems that forest dwellers face.

Short Note: 8 marks

Corporate Environmental Liability

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In common parlance, Corporate Environmental Responsibility is understood as a part and parcel
of the broader concept of Corporate Social Responsibility. The concept of making the business
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entities utilize their resources not only for their profits but also for the community is known as
Corporate Social Responsibility (CSR). Environmental CSR also known as Corporate
Environmental Responsibility (CER) extends that responsibility to environmental concerns thus
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seeking the corporates to indulge in environmentally friendly actions, not required by law.

The European Council defines Corporate Social Responsibility as a concept whereby companies
integrate social and environmental concerns in their business operations and interactions with
their stakeholders on a voluntary basis. Thus, in short, Corporate Environmental Responsibility
can be defined as the duty of the corporation to mitigate its impacts on the environment.

These activities are meant to be voluntary and altruistic, beyond and above the mandates of law.
Accordingly, voluntary guidelines were issued by the government as Corporate Social
Responsibility Voluntary Guidelines 2009 and National Voluntary Guidelines on Social
Environmental and Economic Responsibilities of Business, 2011.
Respect for Environment entails companies should do the following: -take measures to check
and prevent pollution; recycle, manage and reduce waste; manage natural resources in a
sustainable manner; ensure optimal use of resources like land and water; proactively respond to
the challenges of climate change by adopting cleaner production methods, promoting efficient
use of energy and environment friendly technologies.

The National Voluntary Guidelines On Social, Environmental And Economical Responsibilities

Of Business, 2011, also played an great role in formulating the idea. Principle 6 lays down that
business should respect, protect, and make efforts to restore the environment. The Core Elements
of this Principle entails the businesses to do the following: Optimal and responsible utilization of

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natural and manmade resources

1. ensure the sustainability of resources

2. efficient and environment friendly technologies

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3. use of renewable energy

4. take measures to check and prevent pollution

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5. bear the cost of pollution abatement

6. adopt cleaner production methods

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7. develop Environment Management Systems (EMS)

8. report environmental performance

However, with the enactment of the new Companies Act, 2013 in India, CSR initiatives have
now been mandatorily prescribed for a certain class of companies. Section 135 (5) of the Act
requires every company of net worth of Rs. 500 crore or more or turnover of Rs.1000 crore or
more or a net profit of Rs.5 crore or more to constitute a CSR board which shall formulate
policies to ensure that at least 2 % of the average net profits of the company in three immediately
preceding financial year are spent on CSR activity, every financial year. Preference should be
given to the local area and surrounding areas where it operates, for spending the amount
earmarked for Corporate Social Responsibility activities. The list of activities that may be
incorporated by the companies in their CSR policies is provided in Schedule VII of the Act. It
provides for activities relating to ensuring environmental sustainability.

Apart from this the Charter on Corporate Responsibility for Environmental Protection, was
launched in 2013. The purpose is to go beyond the compliance of regulatory norms for control
and prevention of pollution with various measures like waste minimization and adoption of clean
technology. The Charter has set targets in respect of conservation of water and energy, reduction
in pollution, elimination of toxic pollutants in an environmentally sound manner. 8 task forces
comprising of experts and members from institutions and industry associations have been
constituted to monitor and to provide guidance to the industries for adopting necessary pollution
abatement measures.

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One of the acclaimed illustrations of CER initiatives in India is the rain water harvesting project
called ‘Boond’ developed by the Bharat Petroleum Corporation in association with the Oil
Industries Development Board wherein draught-stricken villages are identified to convert them
into water-sufficient areas. SAIL too has an exclusive Corporate Environmental Policy which is
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an integral part of its business philosophy and values. The commitment is directed towards
contributing to a clean and sustainable environment and striving to enhance its environmental
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performance.

There is no dearth of law to regulate corporates but their impact is limited. This is because the
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enforcement is marred with shortcomings. There is a lack or inadequacy of skill and less than
satisfactory infrastructural facilities which pose a huge problem. Apart from this there are
jurisdictional conflicts and also a lack of coordination among different agencies of
implementation. This coupled with inertia of action too leads to a situation where the same is not
followed. One of the things that need be curbed is that industries are often able to hide their
violations and non-compliance. This need be checked and stringent laws be enforced and
punishments and penalties need be provided for all the concerned. Apart from this one of the
main problem is that provisions directly relating to the corporate environmental and social
responsibilities in the form of guidelines are not at all binding in nature. This should change;
even if the new Companies Act has made it mandatory, there are ways out and action cannot be
taken.