SYNOPSIS. (ii) What is sustainable development?

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1 SYNOPSIS I. What is environment? II. What is sustainable development? III. Objectives of environment protection. IV. What are the components of environment? V. Meaning of environmental pollution. VI. Kinds of environmental pollution. VII. Factors responsible for environmental pollution. VIII. Classification of environmental pollution. IX. Remedies against environmental pollution. X. Environmental protection and public trust doctrine. (I) What Is Environment? The word environment means surroundings. The environment contains air, water, food and sunlight etc. Notably environment affects all the living creatures including the vegetables, plants and trees. A number of necessities of life are fulfilled rather derived from the environment. Thus, it can be said that the environment is the life support system. According to the Encyclopedia Britannica the expression Environment connotes the entire range of external influence acting on an organism, both the physical and biological and other organisms, i.e., forces of nature surrounding an individual. In terms of Section 2(a) of the Indian Environment (Protection) Act, 1986 the expression Environment includes water, air and land and human beings, other living creatures, plants, microorganisms and property. (ii) What is sustainable development?

2 An empowerment in human well being that allows us to meet the needs of the present without compromising the ability of future generation to meet their own needs, is called sustainable development in the context of environmental matter. (iii) Objectives of environment protection The chief objectives of the environment protection are as under: 1. Maintenance and protection of environmental quality; 2. Controlled, restricted and mindful use and exploitation of natural resources; 3. Protecting and balancing of the eco-system; 4. Achievement of substantial development; 5. Environment awareness among the people; 6. Working out the environmental pollution problems; 7. Environmental education and training; and 8. Punishment and penalty to the polluter. (iv) What are the components of environment? Environment consists of three kinds of components, namely:- 1. Non-living components or biotic components. 2. Living components or biotic components; 3. Energy components. 1. Non-living components or abiotic components;- Under this category nonliving things like soil, air and water fall though in different forms. However, non-living components in turn are divided in three categories, namely:- (a) Lithosphere (rocks, soil, solid and air); (b) Hydrosphere (water component);

3 (c) Atmosphere (gaseous envelope) which in turn in divided into four zones, namely: i) Troposphere; ii) Stratosphere; iii) Ionoshere; and iv) Exosphere. 2. Living components or biotic components.-this component is, consisting of flora and fauna including man. 3. Energy components.-this component includes solar energy, geo-chemical energy, thermo-electrical energy, hydro-electrical energy, nuclear atomic energy, energy due to radiation, etc. that helps maintaining the real life of organisms. (v) Meaning of environmental pollution Before defining meaning of environmental pollution it is desirable to know the meaning of expression pollution. According to the report of the National Forest Commission the term pollution means "Any introduction by man, directly or indirectly of substance or energy into environment resulting in deleterious effects of such a nature as to endanger human health, harm to living resources, eco-systems and material property and impair amenities or interfere with other legitimate uses of environment. The Royal Commission on Environmental Pollution in U.K. in its third report defines pollution to mean the introduction by man into the environment of substances or energy liable to cause hazards to human health, harm to living resources and ecological systems; damage to structure or amenity or interfere with legitimate uses of the environment.

4 American jurisprudence says that pollution is the wrongful contamination of the atmosphere or of water, or of soil to the material injury of the right of an individual. According to Mchaughtin- The introduction by man into any part of the environment, of wastes, water energy or energy or surplus energy when so changes the environment directly or indirectly adversely to affect the opportunity of men to use or enjoy it. The Indian Law defines environmental pollution as the presence in the environment of any environmental pollutant (The Environmental (Protection) Act, 1986, Section 2(c) and according to the provisions of the said Act- Environmental pollutant means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment. [Environment (Protection) Act, 1986, Section 2(b)]. It is submitted that environmental pollution means introduction of anything which deteriorates the healthy standard of environment, can be termed as environmental pollution. (vi) Kinds of environmental pollution There are different kinds of environmental pollution. These are as under: A. Air Pollution. B. Water Pollution. C. Land Pollution. D. Radio Active Pollution. E. Noise Pollution. A. Air pollution.-air pollutants cause imbalance in the quality of air and ultimately to cause ill effects. Air pollutions are the materials that exist in such

5 concentrations so as to cause unwanted effects. However, such pollutants may be gaseous or particulate pollutants. In today's scenario a large amount of gaseous wastes and fire particles are emitted into the atmosphere. Notably, the natural air has got its self purification process and through this process it could be able to remove the different types of pollutants which are continuously introduced into the atmosphere. But it is not always possible. When the rate of pollution is high or the self purifying capacity of the air comes down, accumulation of pollutants take place as a serious threat to human health. B. Water pollution.-like air pollution water pollution can also be described to mean such adverse change in composition or condition of the water that as it becomes less suitable. Water can be said to be polluted whether by contamination or alteration of its physical, chemical and biological properties or by discharge into it of any sewage or trade effluent or of any other liquid, gaseous or solid substance, whether directly or indirectly which has created or is likely to create a nuisance or has rendered or is likely to render such water harmful or injurious to public health or safety, or to domestic, commercial or industrial, agricultural or other legitimate uses or to the life and health of animals or plants or of aquatic organisms. Thus, it is clear that pollution of water may change the physical, chemical and biological characteristics of water. The underground water is also said to be not free from pollution. Substances which are leached from refuse and special heaps, from fertilizers spread over the land and also the disposal of industrial waters mainly contribute to the contamination of ground water. Contamination of ground water is also due to geogenic causes, such as leaching of arsenic and fluoride from natural deposits. Since ground water is frequently a source of drinking water its pollution and contamination leads to serious heath impacts.

6 C. Land pollution.-it is to be noted that land and the soil pollution takes place mainly due to the disposal of solid and semi-solid wastes from agricultural practices and from poor sanitation. Urbanisation coupled with the desire of men to live comfortably has further aggravated the problem. Urban wastes if not utilised properly may cause either water pollution or pollution of the air. Disposal of solid wastes into water courses increase the pollution hazards of water and improper incineration causes severe air pollution. Dumping of industrial and municipal wastes as well as wastes of agricultural uses leach and seep into the soil and cause contamination of ground water. Industrial solid wastes contain toxic chemicals and when they are tipped on the land result in increasing the solid pollution and when these hazardous chemicals enter into the surface or ground water they poison the soil and also the crops. The contaminated soil affects the human health to a great extent and the man is exposed to a number of diseases. D. Radioactive pollution.-the advent of nuclear weapons and also the desire to have more and more such destructive weapons has raised the exposure level to radiations caused by such tests. Radioactive pollution of the environment has been defined- As the increase in natural background radiation, emerging from the activities of man involving the use of naturally occurring of artificially produced radioactive materials. (H.P. Jamnet, Chief of Atomic Hygiene and Radio Pathology, French Atomic Energy Commission, Paris, France). The persons who are engaged in the radiation work are not the only victims of hazards of such radiation but the general public are also affected. There are two kinds of environmental radiation (i) Naturally occurring radiation; and (ii) man made radiation. (i) Naturally occurring radiations are :

7 (ii) Cosmic radiation from outer space reaching the earth's surface; and Terrestrial radiation from natural radio-isotopes present in the earth's crust. Man made radiations originate from the activities of man involving the use of radioactive materials. The primary source of natural radiations are the ores of uranium and thorium generally used in nuclear processes. Radioactive pollution immediately affects the man and it is his life which is at stake. The exposure to radioactive pollution may also cause genetic damages which may affect the future generations. E. Noise pollution.-the expression noise means unwanted sound or ordinarily by noise. A sound which is not pleasant and that exerts pressure on our mind can be regarded as a noise The sources of noise are numerous. With the progress of the society and rapid changing life style of the people, now in the urban areas the noise pollution is an imminent threat to the public health. However, noise pollution can be categorised into-(i) Industrial; and (ii) Non-industrial. Industrial sources include noise generated by various industries operating in and outside the cities. Non industrial sources are transport, use of loudspeakers, street noise, construction work, aircraft, railway and automobiles etc. (vii) Factors responsible for causing environmental pollution There are some important factors responsible for causing environmental pollution. These are: (a) Population growth; (b) Indiscriminate use of technology; (c) Uncontrolled use of pollutants;

8 (d) Unmindful exploitation of natural sources; (e) Industrial development; (f) Discharge of pollutants into air and water; (g) Improper disposal of excreted and waste matter; (h) Inadequate management of solid waste; (i) Failure to control noise pollution; (j) Failure in food protection; (k) Failure to check emission of ionizing radiation; (l) Inadequate management of electromagnetic

9 CHAPTER 5 ENVIRONMENT UNDER THE CONSTITUTION OF INDIA, 1950 Synopsis (i) Protection of environment as a fundamental duty. (ii) Environment Protection and Directive Principles of State Policy. (iii) PIL and environment protection. (iv) Abuse of PIL. (v) Judicial activism in context of environmental protection. (vi) Article 27 of the Constitution and Environment. (vii) Concept that polluter must pay. (viii) Environment pollution is a tort against community. (ix) Passive smokers and Article 27 of the Constitution. (i) Protection of environment as a fundamental duty Part IV of the Constitution of India, 1950 containing the fundamental duties of the citizens of India which has been incorporated in the Constitution of India, 1950 by the Constitution (42nd Amendment) Act, It is to be noted that these duties are the duties of the individual citizens. These fundamental duties are not enforceable by means of writ of mandamus. However, Article 51-A (g) provides that:- to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. In the words of D.D. Basu (Shorter Constitution of India, 10th Edn., p. 279)- of course, the duty as such is not legally enforceable in the courts, but if the State makes a law to prohibit any act or conduct in isolation of any of the duties, the Court would uphold that as a reasonable restriction on the relevant fundamental

10 right, just as they did uphold any law implementing a Directive Principle under the Constitution of India, i.e., before the insertion and expansion of Article 31-C. It is true that for the effective enforcement of the fundamental duties, namely to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures has been envisaged in Article 51-A(g) of the Constitution. It is necessary that all the citizens should have knowledge of the duties mentioned in the Constitution. There should be wide and deep publicity so that this duty towards protection of environment may be brought to the knowledge of every responsible citizen. It is now needed that compulsory teaching of these duties should be introduced at school and college levels. It would be highly desirable if the environment is made a compulsory part of the school/college syllabus. On this point the Apex Court in M.C. Mehta (2) v. Union of India, has held that compulsory teaching of lessons on protection and improvement of environment should be introduced in educational institutions throughout the country. As regards the duty contained in Article 51-A(g) of the Constitution, the Apex Court in Abhilash Textiles v. Rajkot Municipal Corporation, has held that notices asking the petitioners to stop discharging the effluents from the factory on public road or drainage having natural environment on the point of closing the factory will be valid. In the view of the Apex Court in M.C. Mehta (2) v. Union of India, under Article 51- A(g) of the Constitution, it is the duty of the Central Government to introduce compulsory teaching of lesson from primary school level to college/universities level, in order to bring awareness among the people regarding the environment protection. The Central Government should come forward and get the text books written on that subject and ensure free distributions of these relevant books to the educational institutions. The local bodies to organise the city clean

11 week to keep the town clean and keep the village clean week with the sponsorship of the respective government. (ii) Environment protection and Directive Principles of State Policy Though, the provision for protection of ecology and environment pollution is contained in Article 48-A (as added by 42nd Amendment, 1976) of the Constitution, which is one of the Directive Principles of State Policies, but it differs from the fundamental rights as contained in Part III of the Constitution. It is almost settled position that the Directive Principles of State Policy is not enforceable like the fundamental rights as the idea of welfare State can only be achieved if States endeavour to implement them with a high sense of moral duty. In the words of Mr. G. N. Joshi:...they constitute a very comprehensive political, social and economic programme for a modern democratic state. The underlying objectives of the Directive Principles can better be understood from the speech of Dr. Ambedkar in the Constituent Assembly. He said:...our Constitution lays down what is called Parliamentary democracy. By Parliamentary democracy we mean one man, one vote. We also mean that every Government shall be on the anvil, both in its daily affairs and also at the end of a certain period when the voters and electorate will be given an opportunity to assess the work done by the Government. The reason why we have established in the Constitution apolitical democracy is because we do not want to install by any means whatsoever a perpetual dictatorship of any particular body of people while we have established political democracy. We do not want merely to lay down a mechanism to enable people to come and capture power. The Constitution

12 also wishes to lay down an ideal before those who would be forming the Government. That ideal is economic democracy, whereby, so far as I am concerned, I understand to mean one man, one vote, the question is, have we got any fixed idea as to how we should bring about economic democracy? There are various ways in which people believe that economic democracy can be brought about, there are those' who believe in individualism as the best form of economic democracy, there are those who believe in having a socialistic state as the best form of economic democracy, there are those who believe in the Communistic idea as the most perfect form of economic democracy. It is clear that the object beyond enacting the directive principles appear to have been to provide standards of achievements before the State and its local bodies, by which their performance can be assessed. Article 48-A of the Constitution deals with the protection and improvement of forests and wild life. However, it reads as under: 48-A. Protection and Improvement of environment and Safeguarding of Forests and Wild Life.-The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Thus, it requires the State to take measures to protect and improve the environment and to safeguard the wild life and forests of the country. The Apex Court in M.C. Mehta v. Union of India, while relying on Article 48-A of the Constitution directed to the Central Government and the State Governments and various local bodies and Boards under various statutes to take appropriate measures for the prevention and control of pollution of water. (iii) Public interest litigation and environmental protection

13 In view of Article 32 of the Constitution whenever there is a violation of a fundamental right, any person can approach the Court for an appropriate remedy. It is settled rule that the right to move to the Supreme Court is only available to those whose fundamental rights are infringed. This power can only be exercised by the Supreme Court for the enforcement of the fundamental rights contained in Part III of the Constitution. However, the Supreme Court in its judgments shows broader approach and now relaxed the traditional rule of locus-standi -that a petition under Article 32 of the Constitution can only be filed by a person whose fundamental right is violated. The Supreme Court now permits the public interest litigations or social interest litigation at the instance of public spirited citizens for the enforcement of constitutional and other legal rights of any person or group of persons who, because of their poverty or socially or economically disadvantaged position, are unable to approach the Court for relief. According to Krishna Iyer J.: Public Interest Litigation" and representative proceedings is the present constitutional jurisprudence as he observed in A.B.8.K. Sangh (Rly.) v. Union of India. Thus, the public interest litigation is exception to the general rule that only the person whose fundamental right is violated or infringed or threatened can file petition under Article 32 of the Constitution. The Supreme Court permits public interest litigation at the instance of public spirited citizens acting bona fide for the enforcement of fundamental right of a person in custody or of a class or group of persons who by reason of disability or poverty or socially or economically disadvantaged position find it difficult to approach the Court for redress. The Apex Court in S.P. Gupta s case, made it clear that where legal wrong or legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in

14 contravention of any Constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of helpless or in socially being or economically disadvantaged position are unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 of the Constitution and in the case of breach of any fundamental right of such person or determinate class of persons in the Supreme Court under Article 32 of the Constitution seeking judicial redress for the legal wrong or legal injury caused to such person or determinate class of persons. Now, it can be said that public interest litigation would be maintainable before the High Court under Article 226 of the Constitution and before the Supreme Court under Article 32 of the Constitution, pertaining to the matter of environment protection. In the area of water or air pollution or conservation of forests or cruelty to animal, public interest litigation is entertain able as judicial approach in India has shown the way for this purpose. (iv) Abuse of P.I.L. The scope of relaxation in traditional rule of locus-standi is likely to be abused by unscrupulous litigants. On this point a note of caution was expressed by justice P.N. Bhagwati in the following words:- But we must be careful to see that the member of the public, who approaches the Court in case of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The Court must not allow its process to be abused by politicians and others.

15 This observation of the lordship shows that it was aware of the after effect of the liberal rule of locus-standi. The remedy through the public interest litigation is having the room for possible abuse. Thus, there is danger of its abuse. The mechanism of public interest can be misused for private motive or political gain. For example-janata Dal v. A.S. Chaudhary, where the petitioner unsuccessfully tried to abuse the public interest litigation for merely political purpose. It is true that the mechanism of public interest litigation is not meant to be a weapon to challenge the economic policy of the Government and permitting such petition would amount to abuse of process of Court. The Supreme Court in Baleo Employees Union v. Union of India, has made it clear that the public interest litigation is not meant to challenge the economic policy/decision of the Government. Under the administrative powers the Government is empowered to frame economic policy and thereby to take economic decisions. No doubt a person personally aggrieved by any such decision, which he regards as illegal, can challenge the same before the court of law. However, a public interest litigation at the request of stranger ought not to be entertained. Such a litigation cannot 'per se' be on behalf of the poor and the down-trodden, unless the Court of law is of the view that there has been infringement of Article 21 of the Constitution and the persons adversely affected are not in a position to approach the Court of law rather they have the disability as recognised by law. (v) Judicial activism in context of environmental protection The judiciary has been assigned the role as a guardian of the Constitution. They are not expected to sit as a mute spectator and close their eyes and be uncaring for the problems, faced by the society. The powers of the Supreme Court for the protection of the Constitutional right, human rights and environmental

16 rights of the people/citizens are of the widest amplitude and there is no reason why the Court should not adopt activist approach, like in America and issue direction to State to implement environmental measures against the pollution and check the activities.causing ecological disturbances. It is to be noted that the judicial activism relating to protection of environment is laudable. Several pronouncements have been made by the Supreme Court for this purpose. In view of several judicial decisions of the Supreme Court, now the right to get free air, water, etc., have been included in the guarantee ensured in Article 21 of the Constitution. The Apex Court in Bhavani River v. Sakthi Sugars Ltd., took the serious view in respect of the discharge of objectionable effluents from distillery in river adjoining areas. The Apex Court has held that the High Court erred in disposing of the writ petition merely on the consent of the Pollution Control Board. The Apex Court remanded the writ petition to the High Court for disposal afresh in accordance with law. It is to be noted that way back in 1980 the Apex Court in Municipal Council, Ratlam v. Vardhichand, has held that the human rights calling for unpolluted environment must be followed and implemented irrespective of financial constraints. The public nuisance: must be checked at war footing as the public nuisance because of pollutants is a discharge to the social justice component of the rule of law. The field of environmental litigation 'in India shows the concern of the Courts in finding out effective and proper remedies for environmental pollution. The Superior Courts in our country showed considerable anxiety on the environmental matters whenever public spirited citizens draw their attention on

17 this problem. In T. Damodar Rao and others v. The Special Officer, Municipal Corporation, Hyderabad, the Andhra Pradesh High Court observed that: Protection of environment is not only the duty of the citizens but is also the obligation of the State and all other State organs including the Courts. In that extent environmental law has succeeded in unshackling man, right to life and personal liberty from the clutches of common law theory of individual ownership. Undoubtedly, it is a result of judicial activism that now the right to pollution free environment has been included under Article 21 of the Constitution, i.e., right to personal liberty and life, and this right to environment has been given that status of fundamental right by the Supreme Court of India which is binding under Article 141 of the Constitution. However at grass root level the power of the Magistrate under the provisions of the Code of Criminal Procedure, 1973 to move against the public nuisance has been developed by the judiciary as significant instrument to environmental protection. The Apex Court in Municipal Council, Ratlam v. Vardhichand, while rejecting the plea of local council as to financial inability for providing basic amenities to the people, the Court has held that the law of public nuisance is a social justice component of the rule of law and considers it as viable mechanism of environmental protection in the third world countries. In this case, the Apex Court observed that the law operates against statutory bodies and others regardless of their financial ability as the human rights are to be guarded by the State irrespective of budgetary provisions. Thus, the financial crisis of State or local bodies cannot be permitted to come in the way of environmental protection because the human life is much more precious and it involves the constitutional obligation/duty on the part of States and their agencies. (vi) Article 21 of the Constitution and Environment

18 The link between the human life and environment is inherently unbreakable and if the attempt is made to delink directly or indirectly it would be dangerous not only to human beings but also to all creatures. This phenomenon rather perception has been recognised at global level. The modem life is fun of complexities and it is difficult to maintain balance between the life and environment. As the country is heading for enormous industrialization era its impact can be seen on ecological disturbances all over the country. The Constitutional duty of State and its agencies are not to be discharged merely by incorporating/enacting statutes. They are bound to bring environmental awareness among citizens. Originally, environmental protection and its related measures contained in Articles 40-A and 51-A(g) are one of the Constitutional provisions in the Directive Principles of State Policy and fundamental duties respectively. Thus, these Constitutional provisions are not contained in Part III, i.e., Fundamental Rights (Articles 14 to 35). It is clear that Article 21 of the Constitution, which deals with the protection of life and personal liberty, is one of the fundamental rights. However, Article 21 reads as under: No person shall be deprived of his life or personal liberty except according to procedure established by law. The Supreme Court repeatedly made it clear that right to life under Article 21 of the Constitution includes right to pollution free air and water. The Supreme Court has held that right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full and complete enjoyment of life. Thus, right to pollution free enjoyment is justiciable and enforceable. The Supreme Court observed that where anything endangers or impairs the quality of life in violation of law, a citizen has the right to have recourse to Article 32 of the Constitution i.e., constitutional remedy before the Supreme Court for removing the pollution of air or water which may be detrimental to the quality of life. Therefore, under Article 226 of the Constitution a

19 writ would be maintainable if there is violation of the environmental right in respect of pollution free air or water. The material resources of community like forests, tanks, ponds, hillocks, mountains, etc, are nature s bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables the people to enjoy the quality of life which is the essence of the guaranteed right under Article 21 of the Constitution. (vii) Concept that- Polluter Must Pay Notably, the Courts in India have involved the principle that polluter must pay while keeping in view rapid deteriorating environmental standard. However, as a precautionary principle the Supreme Court in Vellore Citizens Welfare Forum v. Union of India, propounded the principles, the precautionary principle that is polluter pays and this principle has become the law of land as by virtue of Article 141 of the Constitution, law declared by the Supreme Court is binding on Courts/agencies, including the State. The Supreme Court has explained the meaning of these principles:- 1. Environmental measures-by the State Government and the statutory authorities 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 the 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. In the above cited case the Supreme Court further laid down: The polluter pays-principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to

20 compensate the victims of pollution but also the cost of restoring the commercial degradation. However, in another case the Supreme Court had occasion to further explain the precautionary principle as laid down in Vellore Citizens Welfare Forum Case. For Illustration-In AP. Pollution Control Board v. M.V. Nayadu, the Supreme Court observed that precautionary principle is founded on the formula that it is better to err on the side of caution and prevent environmental harm and taking measures to avoid it or to chose the least environmentally harmful activity, however the precautionary principle has given the way to the special principle of burden of proof' in environmental cases where burden as to the absence of injuries affecting the activity proposed is placed on those who want to change the "status quo. The precautionary principles recommend that in case there is identifiable risk of serious or irreversible damage like extinction of species, indiscriminate/widespread toxic pollution which is/are major danger to essential ecological processes, it may be appropriate to place burden of proof on the person or entity proposing the activity that is potentially harmful to the environment. (viii) Environment pollution is a tort against community It is well settled that the law of torts signifies violation of great variety of rights and duties and so it is very difficult to give a concise and complete definition of it. Another difficulty is that the Law of Torts is not a codified law. It is based on common law of England which is unwritten and uncodified. According to Salmond-A tort is a civil wrong for which the remedy in common law is action for unliquidated damage and which is not exclusively the breach of a contract or the trust or breach of the other merely equitable obligation. Thus, tort consists of the following essentials:- 1. Tort is a civil wrong.

21 2. This wrong is different from breach of contract or breach of trust and other equitable obligation. 3. Tort is redressible by an action for unliquidated damages. However, in the words of Fraser:- A tort is an infringement of right of private individual giving a right of compensation at the suit of the injured party. But, in reference to the environmental pollution the tort though a civil wrong, may also be a criminal wrong against the public at large. The Supreme Court in M.C. Mehta v. Kamal Nath, has held that the environment pollution is tort against the community and therefore a change in environment does not per se violates any right under Article 21 of the Constitution especially when effective and suitable measures are undertaken not only to preserve but to improve ecology and environment. In another case Narmada Bachao Andolan v. Union of India, the Supreme Court has made it clear that in the case of displacement of the community prior relief and rehabilitation steps take place pari passu with the construction of the dam though for public purpose and ensure better prospects for farmers, it cannot be said 'that such construction is against the spirit of Article 21 of the Constitution or a tort against the community. As mentioned above the Supreme Court in M.C. Mehta v. Kamal Nath, has held that environment pollution is a tort against the community and therefore a person who is guilty of causing pollution has to pay compensation for restoration of the environment and ecology. He has also to pay damages to those who have suffered loss on account of the act of the offender. The Court made it clear that in addition to damages, the person guilty of causing pollution can also be held liable to pay exemplary damages. But, in proceedings under Articles 32 and 226 of the Constitution the Court cannot levy fine on the polluter. For fine the prosecutor should be prosecuted under the water (Prevention and Control of Pollution) Act,

22 1974, Air (Prevention and Control of Pollution) Act, 1981 and Environment (Protection) Act, A person thus, guilty of contravention of provisions of any of the three Acts as cited above which constitutes an offence and in case the offence is found proved, he can be punished with imprisonment and fine or both. The Supreme Court was of the view that fine cannot be imposed even under Article 142 of the Constitution because the Supreme Court cannot ignore the substantive provisions of a statute and pass orders concerning an issue which can be settled only through a mechanism prescribed in another statute. (ix) Passive Smokers and Article 21 of the Constitution Recently, the Government of India issued notification banning smoking in public places such as Air Ports, Railway Stations, Schools, Colleges, etc. But, unfortunately said promulgation is yet to be implemented in its true spirit in our so called civilised society. It has been witnessed that the public interest litigation especially concerning the environmental pollution widened the scope and innovated new dimension in respect of Article 21 of the Constitution. The right to life and personal liberty and also health of people are streamlined by the judicial wisdom. The Supreme Court in Murali S. Deora v. Union of India, has held that fundamental rights guaranteed under Article 21 of the Constitution, inter alia, provides that none shall be deprived of his life without due process of law. The Supreme Court clarified that a non-smoker is afflicted by various diseases including lung cancer or of heart ailments only because he is required to go to public places. It is indirectly depriving of his life without any process of law. Smoking is injurious to health and may affect the health of smokers but there is no reason that health of passive smokers should be injuriously affected. The Court opined that in any case there is

23 no reason to compel passive smokers/non-smokers to be helpless victims of air pollution. In the instant case the Supreme Court while, considering the adverse effect of smoking in public places, passed the order banning the smoking in public places till statutory provision is made and implemented by legislative enactment. The Supreme Court has prohibited the smoking in public places and issued 'directions to the Central Government, State Governments including the Union Territories to take appropriate measure to ensure that prohibition of smoking in public places is implemented, namely;- 1. Public offices. 2. Court buildings. 3. Auditorium. 4. Health Institutions. 5. Hospitals. 6. Educational Institutions. 7. Libraries. 8. Public conveyance including Railway/Buses/Public Transport. Questions Q.1. Whether protection of environment is a fundamental duty of citizen? Discuss. Q.2. Discuss the environment protection under the Directive Principle of State Policy? Q.3. Explain the scope of Public Interest Litigation under Environment Protection. Q.4. Discuss the circumstances when PIL used for abuse of process of Court of Law? Q.5. Describe the judicial activism in context of environmental protection? Q.6. Discuss the concept of environment under Article 21 of the Constitution?

24 Q.7. Explain the principle Polluter Must Pay. Q.8. Environment Pollution is a tort against community/society. Discuss. Q.9. Explain the right of passive smokers under Article 21 of the Constitution?

25 CHAPTER 6 CRIMINAL PROCEDURE CODE, 1973 AND ENVIRONMENT PROTECTION Synopsis 1) Removal of public nuisance. 2) Scope of Section 133 of Cr. P. C. and its applicability. 3) Nuisance at a public place. 4) Determination of public place. 5) High Court's revisional jurisdiction. 6) Procedure where existence of public right is denied. (i) Removal of public nuisance The Code of Criminal Procedure, 1973 (Section 133 to Section 143) deals with the subject concerning environment protection. Since, the Code of Criminal Procedure is not a substantive law but it deals with the procedural aspect, thus, it does not provide definition and meaning of the term public nuisance or private nuisance. The Code of Criminal Procedure, 1973 does not deal with the cases of private nuisance. Such cases are to be referred to Civil Court for adjudication or order. However, Section 133 of the said Code deals with cases of public nuisance, wherein the Magistrate is empowered to pass conditional order for removal of public nuisance. By virtue of Section 133 of Cr. P.C. the Magistrate is empowered to exercise its powers on receipt of a police report or other report, if any, of the circumstances existing as cited below. There are certain categories of cases which can be redressed under Section 133 of the Code, these are the following:-

26 1. The unlawful nuisance or obstruction to' any waterway, river or channel, lawfully used by the public or to a public place. 2. The construction of any building or the disposal of any substance as is likely to occasion explosion or conflagration. 3. The conduct of any trade or occupation or the keeping of any goods or merchandise, injurious to health or physical comfort of the community. 4. An unfenced tank, well or excavation near a public way or place. 5. A building, tent and structure, or a tree as is likely to fall and cause injury to persons. 6. A dangerous animal requiring destruction, confinement or disposal. The Bombay High Court in Tejmal Puranchand Bured v. State of Maharashtra, has held that under Section 133 of the Code of Criminal Procedure, 1973 the Magistrate can act on information received from any source. Before passing a conditional order, a Magistrate is bound to take evidence, because the proceedings are entirely ex-parte. But, the Magistrate is bound to pass speaking order under this Section. It is to be noted that the proceedings under Section 133 of the Code are summary in nature and it can t be kept pending for a long time. The Kerala High Court in Muthuvdam v. KV. Narayan Nair, observed that Section 133 of Cr. P.C. empowers a Magistrate, who cannot proceed when existence of public right is denied. The right of riparian owners are the private personal rights such individual rights, are not the public rights. (ii) Scope of Section 133 of Cr.P.C. and its applicability It is clear that the proceedings under Section 133 of Cr.P.C. are not intended to enable a complainant to obtain relief when he should seek it in the Civil Court. It is well settled legal position that the proceedings under Section 133 of Cr.P.C. should be taken in case of emergency when public shall be put to great

27 inconvenience and shall suffer an irreparable injury if the encroachment or nuisance is not removed at once by adopting the summary procedure. Ordinarily, Section 133 of Cr.P.C. cannot be invoked where the obstruction or nuisance has been in existence for a long period but there is no legal bar to action being taken in such circumstances if there exists genuine emergency to get encroachment or nuisance removed under Section 133 of the Code. On this point the Allahabad High Court in Asharfi Lal v. State, expressed the view that if the obstruction has been in existence for a long period without any change in circumstances, the removal of such obstruction cannot be said to be urgent and the remedy must be sought in Civil Courts. The Kerala High Court in Muthuvalam v. K. V. Narayan Nair, observed that Section 133 of the Code of Criminal Procedure, 1973 empowers a Magistrate to take action when there has been invasion of public rights. However, he cannot proceed when existence of public right is denied. The right of riparian owners are the private personal rights, such individual rights are not the public rights. The Supreme Court in State of M.P. v. Kedia Leather and Liquor Ltd., explained the scope of Section 133 of Cr.P.C. According to the Court the provisions of Section 133 are in the nature of preventive measures, the provisions contained in the water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 are no: 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. Section 133 of Cr.P.C. provides immediate relief. - According to the Allahabad High Court if existing and urgent relief is required, Section 133 of Cr.P.C. has to come into play even if the civil suit has decided the right of parties. The Court made it clear that jurisdiction of the Magistrate is for its immediate effect.

28 Notably, Section 133 of Cr.P.C. would apply, when nuisance is in existence. (iii) Nuisance at a public place If the dispute affects one individual but not public at large, the jurisdiction under Section 133 of Cr.P.C. could not be invoked. The Gujarat High Court in Ram Chandra Malojirao Bhonsale v. Rasikbhai Govardhanbhai, observed that if the dispute affects one individual but not the public at large, the jurisdiction under Section 133 of the Code of Criminal Procedure, 1973 could not be exercised. It may also be mentioned that in the present case number of persons have occupied other s flats in the complex but they are not feeling convenience due to running of electric motor or the electric pump. Consequently, it cannot be said that it was a case where nuisance was created at a public place where public at large was affected or the residents of the complex at large were affected. It was held that the jurisdiction under Section 133 of the Code was wrongly exercised by the Executive Magistrate.

29 (iv) Determination of public place There may be instances where nuisance is created at a public place but, members or persons belonging to the, public may not come forward to move an application under Section 133 of Cr.P.C. In such a situation, even one person who is aggrieved from such public nuisance at a public place may report the matter to the Executive Magistrate and upon such information the Executive Magistrate can proceed under Section 133(1) of the Code of Criminal Procedure, This Section provides that:- The Executive Magistrate can proceed under this Section on receiving the report of police officer or other information, the word other information includes information given by any person who is aggrieved from public nuisance. So what is provided under Section 133 of the Code is that the nuisance should be created at a public place. However, the expression public place is defined in Explanation to Section 133(2) of the Code. In Ram Chandra Malojirao Bhonsale v. Rasikbhai Govardhanbhai, the complex where the electric motor was installed is not a public place either within the definition of explanation of public place as contained in Section 133(2) of Cr.P.C. nor it can be said to be a public place which is as understood by an ordinary prudent man, only the occupants of the flat, their relatives, friends and companions are entitled t; enter the complex, consequently, the place where the electric motor is installed is not a public place. However, Explanation to Section 133(2) for the Code of Criminal Procedure, 1973 which reads as under: Explanation-A public place includes also property belonging to the State, com ping grounds and grounds left unoccupied for sanitary or recreative purposes. (v) High Court s revisional jurisdiction

30 The provisions contained under Section 133 of the Code of Criminal Procedure, 1973 do not take away the revisional jurisdiction of the High Court. The Allahabad High Court in Manohar Singh v. Emperor, has held that under Section 133 of Cr.P.C., the High Court has power not to confirm the order of the Magistrate but also to modify that order to such extent as it may deem fit. It is settled legal position that the High Court has revisional jurisdiction against an order of a Magistrate made under Section 133 of the Code. (vi) Procedure where existence of public right is denied Where the party against whom a provisional order is made shall appear before the Magistrate and adduce the evidence in support of his denial that there is no existence of public right. Section 137 of the Code deals with the procedure where existence of public right is denied. The evidence adduced under Section 137 of the Code should be a legally admissible evidence. If the conditions laid down in Section 137 of the Code have been complied with, the Magistrate.cannot proceed further and must stay the proceedings until the matter of existence of public right has been adjudicated by a Court having jurisdiction. It is clear that the provision contained in Section 137 of the code are mandatory in nature. For example.-the Patna High Court in Santosh Kumar Sharma v. Motilal Mahawar, has held that from a plain reading of provisions of Section 137(2) and Section 138 of the Code, it is absolutely clear that the Executive Magistrate, before taking recourse to the proceedings provided under Section 138 of the Code, must comply with the provisions contained in Section 137 of the said Code. The said provision is imperative in nature. The Magistrate cannot jump to the proceedings under Section 138 of the Code by passing the provisions of this section which are mandatory.

31 It is to be noted that while allowing evidence under Section 137 of the Code, the Magistrate need not take evidence. He has only to satisfy himself whether reliable evidence in support of the denial of public right exists or not. The Magistrate is not legally bound to allow cross-examination. The Magistrate has only to examine the evidence within the view to examine whether a prima facie case in favour of denial has been made out. However, the Magistrate need not at this stage allow the other party to adduce evidence. The Magistrate is also not bound to analyse the evidence threadbare, not to weigh it in a manner as to reach a definite finding in support of the fact of denial of existence as to public right. Questions Q.1. How a public nuisance removed? Discuss. - Q.2. Discuss the scope and applicability of Section 133 of Cr. P.C. Q.3. Examine the concept Nuisance at a public place? Q.4. How a public place can be determined? Under Explanation to Section 133(2) of the Code. Q.5. Discuss the revisional jurisdiction of High Court? Q.6. Describe the procedure where existence of public right is denied?

32 Synopsis 1) What is public nuisance? 2) What is private nuisance? 3) What is legalised nuisance? 4) Adulteration of drugs. CHAPTER 7 INDIAN PANEL CODE, 1860 AND ENVIRONMENT PROTECTION 5) Negligent conduct with respect to poisonous substance. 6) Negligence conduct with respect to fire or combustible matter. 7) Negligent conduct with respect to animal. (i) What is public nuisance'? It is an offence, however, according to Section 268 of the Indian Penal Code, 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 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. A common nuisance is not excused on the ground that it causes some convenience or advantage. The public nuisance is also called common nuisance. It is annoyance which affects the public and is an actual annoyance to all the subjects. In case of a public nuisance there must be an act or an illegal omission. It is not mandatory that the act should be illegal. However, as soon as an act becomes a nuisance, it becomes