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“THE RIGHT TO A CLEAN, HEALTHY, AND SUSTAINABLE ENVIRONMENT” IS A FUNDAMENTAL AND BASIC HUMAN RIGHT
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“THE RIGHT TO A CLEAN, HEALTHY, AND SUSTAINABLE ENVIRONMENT” IS A
FUNDAMENTAL AND BASIC HUMAN RIGHT
AUTHORED BY -
DR. KONERU ANURADHA*
“A Clean environment is a human right like any other. It is
therefore part of our responsibility toward others to ensure that the world we
pass on is as healthy, if not healthier, than we found it.”
- Dalai Lama
………………………………………………………………..
Introduction
In today’s world there
has been a growing consciousness about a safe, clean, green and healthy
environment on one side of the coin, and the protection and promotion of human
rights on the other side. In fact, these two issues occupy the topmost priority
on the agenda of every nation at both the domestic and international levels.
Human rights,
being the birth rights, are therefore, inherent in nature in all the
individuals irrespective of their race, caste, creed, religion, sex and
nationality. These rights are essential for all the individuals and without
which we cannot live as human beings. These rights allow us to fully develop
and use our human qualities, our intelligence, our talents and our conscience
and to satisfy our spiritual and all other needs. The idea and practice of
human rights existed from the ancient times and became the hallmark of any
modern society in the world. Since time immemorial, the story of human rights
jurisprudence has been the story of human revolutions. The struggle to
recognize, protect and promote human rights has been changing and holds
continuity in every generation in our society. The history of human rights can
be classified into three generations. They are:
·
The
Civil and Political rights which are considered to be the ‘first-generation
rights’,
·
The Social, Economic and Cultural rights which are considered to
be the ‘second-generation rights’ and
·
The
rights of minorities, the rights of nations, the right to development, the
right to peace, the right to a favourable environment and the reproductive
rights etc., which are considered to be the ‘third-generation rights’.
The abovementioned list
of new rights keeps on extending under the influence of globalization,
scientific and technological progress etc.
Human
Environmental Rights Jurisprudence
The Trail Smelter case
between USA and Canada, of the late 1950s, presumes to be the first international
environmental dispute, and, it is the starting point for environmental
jurisprudence. Later, by the modern
environmental movement in the late 1960s, it was understood that environmental
degradation is a fact and it affects human way of living and also it has been
clear that a healthy environment is necessary for the full enjoyment of a basic human right, the right to life and
health. The roots of this new right, the right to healthy and wholesome
environment gained wider currency in the first International Environmental
Conference, the United Nations Conference on the Human Environment, 1972. Even
though this Stockholm Declaration is considered to be the ‘Magna Carta’ of
human environmental rights, its origin can be traced back to the ancient customs
and religious faith as human and environment are inseparable.
Undoubtedly, a healthy
environment allows a person, wholesome development to grow physically, mentally
and intellectually healthy. In fact, it is the dream of every person to have a
healthy environment because environment is the most important factor to support
not only human life but also life of many species.
But, nowadays
in the name of technological and economic development, urbanization,
modernization etc. man himself has been creating polluted and harmful
environment around him. Even though we are witnessing earthquakes, cyclones,
floods, tsunamis, radiation problems, global warming, ecological imbalance and
pollution in atmosphere in case of air, water, land and space etc., men with greedy
nature towards quick development causing for environmental pollution without
having consciousness about environmental safety and ignoring the fact that
healthy environment is quite essential for their very existence. For this, no
nation in the world can claim an exception whether it is a developed country or
a developing country. Unfortunately, India is also one among these countries.
In India, the concept of
environmental protection has been prevalent from time immemorial in the name of
morals, ethics, customs and religious rites etc. In fact, the ancient Indian
mythology preaches to live in harmony with nature. But, during medieval and
modern periods, the advancement in science and technology have given place for
too many environmental problems. In the name of development, not only the
people and organizations but also the respective governments are playing a
vital role in violation of a basic human right, the right to life, by creating
unhealthy environment.
As for the available evidences for the first time, the
right to a healthy environment was explicitly recognized in an International
environmental law document by Stockholm Declaration. Principle 1 of this
declaration says 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 well-being, and he
bears a solemn responsibility to protect and improve the environment for
present and future generations”. After this
declaration, human rights jurisprudence has been growing at the global as well
as national level till today.
By taking
inspiration from the Stockholm Declaration, 1972 and several other
international conferences to prevent environmental pollution and to protect and
promote clean, green and healthy environment, the Indian Government passed
several specific legislations and constitutional amendments to provide teeth to
the existing general laws in IPC, CrPC, Factories Act etc. Moreover, the strong
constitutional framework available in the Indian Jurisdiction allows the apex
court to creatively develop jurisprudence on a healthy environment as part of
basic human right as well as constitutional right. The responsibility regarding prevention of
environmental pollution and promotion of healthy environment has taken by the
Indian judiciary through ‘Judicial Activism’. The Indian higher judiciary such
as the respective High Courts and the Apex Court of India, by means of various
‘Public Interest Litigations’ and even by suo moto action has been setting so many
guidelines, in accordance with the growing national needs and with the global
scenario like right to healthy environment, sustainable development etc. But,
due to many reasons, the legal provisions and court guidelines become dead
letters in our country and State failed to explicitly recognize right to
healthy and wholesome environment as a ‘protected
constitutional and human right’. In fact, it is an issue not only in our
country but also in many countries, where one can witness the same.
By taking into consideration of the above issues, recently
on 8th
October, 2021, the United Nations Human Rights Council adopted a resolution
recognizing the human right to a clean, healthy and sustainable environment as
an important human right. This
decision is a major step forward. Although not legally binding, its
near-unanimous adoption shows consensus on the formulation, content, and
importance of this human right. This international recognition to right to healthy environment
paves the way for its effective integration in international law and stronger
implementation domestically. Therefore, it is essential for a State to
adopt an active and dynamic jurisprudence and constitutional framework into its
legal system.
Clean, healthy and sustainable environment
Although there were prior attempts to develop
international environmental law, it did not come to reality until the U. N. Conference on Human
Environment and Development took place at Stockholm in 1972. Indian nation is
one of the signatory countries to this conference. Prior to this conference,
even in Indian legal system, the provisions relating to environment were
scattered here and there. Like, provisions relating to environmental pollution
under the Indian Penal Code, the Factories Act, the Mines Act, the Criminal
Procedure Code and also the Directive Principles of State Policy in the
Constitution. After Stockholm conference, Indian Government passed several
specific and special enactments on environment and also provided constitutional
safeguards by 42nd amendment. By this amendment, the Indian
Constitution indirectly
through judicial pronouncements recognized pollution-free, clean and green
environment as a protected right under Articles 14 and 21, positive right under
Article 48A and basic duty under Article 51A(g). Moreover, if one tries to analyze several
judgments of the Supreme Court from MC
Mehta v. Union of India (1987), it is clear that it had and has been trying
at its best to prevent pollution and to protect air, water, land, coastal
areas, towns and cities, forest and wildlife etc. It is found that the judiciary, in its proactive attitude,
has started translating the directive principles of state policy into
fundamental rights, and recognized pollution-free, clean and green environment
as implied fundamental right under Articles 14 and 21 of the Indian
Constitution and as a primary human right under the UDHR, 1948. At the same
time by introducing numerous legal doctrines and by the interpretation of
constitution, it also recognized that, it is the fundamental duty of the State
as well as the individual to protect environment. There are so many
verdicts delivered by the apex court, through which Indian judiciary evolved
numerous legal principles and doctrines for protection of environment, and
prevention and control of environmental pollution. Some of them are
—
Absolute
Liability Principle
—
The
‘Polluter Pays’ Principle (PPP)
—
Precautionary
Principle (PP)
—
Public
Trust Doctrine
—
Intergenerational
Equity Principle
—
Doctrine
of Sustainable Development etc.
Absolute liability principle:
In India, the principle of absolute liability is not a part of
traditional environmental jurisprudence. Absolute liability principle is a
principle in its basic sense refers to ‘no fault liability’, in which the wrong
doer is not provided with exceptions which are provided in rule of strict
liability[1].
The strict liability principle was a decision by
the House
of Lords which established a new
area of English tort law in the case Rylands v. Fletcher[2].
Absolute liability is more stringent from of strict liability, and was
recognized by Supreme Court of India in M. C. Mehta v. Union of India (Oleum
gas leak case)[3].
This case originated in the aftermath of oleum gas leak from Shriram Food and
Fertilisers Ltd. complex at Delhi[4].
This gas leak occurred soon after the Bhopal gas leak in Madhya Pradesh and
created a lot of panic in Delhi[5].
Bhagwati CJ. was a pioneer in this important development, and he didn’t follow
the rule laid in Rylands v. Fletcher, on an important ground that the
principles established in the said case are not in keeping with the present day
jurisprudential thinking. Justice Bhagwati also stated that the rule of strict
liability was evolved in 19th century, the time when industrial developments
was at primary stage, in today’s modern industrial society where industries
dealing with hazardous or inherently dangerous substances, though they are
necessary to carry out development programme, this rule cannot be held relevant
in present day context.
So, the Supreme Court laid the rule of absolute liability in
preference to the strict liability. The rule clearly held that where an
enterprise is engaged in a hazardous or inherently dangerous activity and it
harm results to anyone on account of an accident in the operation of such
hazardous or inherently dangerous activity resulting, the enterprise is
strictly and absolutely liable to compensate to all those who are affected by
the accident and such liability is not subject to any of the exceptions which
operate vis-à-vis the tortious principle of strict liability under the rule in
Rylands v Fletcher. Court felt that through this principle there will be no
burden of proof on the petitioners how it happened or it happened because of
negligence of employer or employee of the particular industry which is a barrier
to people to approach court and people will get relief immediately. Later, to
strengthen this principle Indian government passed a statute known as “The
Public Liability Insurance Act, 1991”, where this principle was recognized[6]
even in legislation.
In Indian Council for Environmental Legal Action v. Union of India
(‘H’ acid case) [7][8]
the Supreme court of India strictly held that absolute liability principle
which laid in olieum gas case is not mere an obiter dicta, it should be
followed strictly. In recognition of the principle of absolute liability SC had
given its dynamic precedents in Narmada Bacho Andolan v. Union of India and
Others[9]
and in M.C. Metha v. Kamal Nath and Others[10]
etc cases.
Polluter Pays Principle (PPP):
The polluter pays principle is an extension and broadens the ambit
of the principle of absolute liability. The importance of this principle is
that the damage to the environment may be remedied and this is extremely
essential to sustainable development. "The polluter is liable to pay the
cost to the individual sufferers as well as the cost of reversing the damaged
ecology”[11].
This principle was probably first described by Thomas Lindhvist who belong to
Swedish government. He was the first person to describe the true meaning of
this principle[12].
Sometimes this principle is also known as extended producer responsibility[13].
The principle was originally only applied to those cases where one is actually
involved in polluting the environment with emissions, etc., in the strict sense
of the word. Subsequently it extended to apply to any activity which
contributes to deterioration of the environment.
The Stockholm declaration 1972, Brundtland report 1987, Rio
declaration 1992 etc clearly mentioned regarding this principle. After 1972
Stockholm declaration, India in its numerous legislations and rules clearly
incorporated the polluter pays principle. The control and regulation of
Hazardous and solid wastes under the environment protect act, 1986 specifically
provided for the liability of the occupier, transporter, and operator of a
facility handling hazardous waste and enforced the principle[14].
Non-compliance of this was made as civil as well as criminal liability[15].
The Public insurance liability act clearly specified how much compensation was
to be paid for every degree of injury or death of civilians and/or workmen[16]
and more importantly Section 20 of the National Green Tribunal Act, 2010
clearly lays down the principle upon which this Tribunal should function.
In Indian Council for Enviro Legal Action v. Union of India[17],
SC allowed compensation and remedial action for loss suffered by citizenry due
to pollution. In Research Foundation for Science v. Union of India[18],
court granted compensation under polluter pays principle. In Vellore Citizens
Welfare Forums case[19]
and in M.C. Metha v. Kamal Nath and Others[20]
Polluter Pays Principles interpreted by the Supreme Court means that the
absolute liability to harm to the environment extends not only to compensate to
the victims of pollution, but also the cost of restoring the environmental
degradation. Remediation of the damage and environment is part of the process
of Sustainable Development and therefore polluter is liable not only to pay the
cost to the individual users but also to the cost of reversing the damaged
ecology[21].
Precautionary principle (PP):
The precautionary principle states that if
there is risk of severe damage to humans and/or the environment, absence of
incontrovertible, conclusive, or definite scientific proof is not a reason for
inaction. It is a better-safe-than-sorry approach, in contrast with the
traditional reactive wait-and-see approach to environmental protection. When
there is uncertainty regarding the impacts of an activity, the precautionary
principle advocates action to anticipate and avert environmental harm. It is in
fact based on “Precaution is better than cure”. The term ‘precautionary
principle’ had its origin in the German word Vorsorgeprinzip[22].
Though the principle had its roots in the German environmental policy, it has
entered the centre-stage of the global environmental policy in the past
two-and-half decades with several global environmental treaties invoking the PP
for decision making. In simple terms, the PP conveys the common-sense based
advice – to err on the side of caution. The principle intends to
prevent harm to humans, environment, and eco-system at large.
The Precautionary Principle suggests that
where there is an identifiable risk of serious or irreversible harm, including,
for example, extinction of species, widespread toxic pollution in major threats
to essential ecological processes, it may be appropriate to place the burden of
proof on the person or entity proposing the activity that is potentially
harmful to the environment.”
The honourable Supreme Court, from the year 1996 continuously
applied the precautionary principle for protection and preservation of
environment. In A. P. Pollution Control Case[23],
In Narmada Bacho Andolans’ case[24],
In Vellore Citizens Welfare Forum v. Union of India[25],
in Godavarman Thirumal Pad v. Union of India[26],
in K. M. Chinnappa v. Union of India[27],
in Noyyal River Ayacutdars Association’s case[28]
apex court applied this principle. In the Research Foundation[29]
case, SC stated that ship breaking cannot be allowed unless the company adheres
to the precautionary principle. In the Court on It’s Own Motion[30]
case, the apex court clearly stated that precautionary principle belongs to the
core value of article 21 of Indian Constitution. In Orissa Mining case[31],
it was stated by the forest advisory committee before the apex court that
precautionary principle is the only principle available to check the
irreversible damage to the environment. In G. Sundarrajan case[32],
the Supreme Court stated that this principle is applicable to prevent the
future environmental degradation. The precautionary principle along with other
international environmental principles can be of very much help for
implementation of national policy to develop, control and use of atomic energy
for the mankind and for financial development of the country. In State of Tamil
Nadu case[33],
it was stated by the apex court that the application of precautionary principle
means there must be scientific uncertainty regarding irreversible damage to the
environment, therefore, competent public authority must anticipate and prevent
such damage by attacking the cause for such environmental damage. Therefore, in
most of the cases the honourable Supreme Court has further analysed the concept
of precautionary principle and applied in different circumstances for
preventing the environmental harm. The rule of
EIA (Principle of Environmental Impact Assessment) based on
these PP and PPP principles.
Public Trust Doctrine:
Basically, the
ancient Roman Empire developed this legal theory i.e. Doctrine of the Public
Trust. This doctrine primarily rests on the principle that certain resources
like air, sea, waters and the forests have such a great importance to the
people as a whole that it would be wholly unjustified to make them a subject of
private ownership. The said resources being a gift of nature, they should be
made freely available to everyone irrespective of the status in life. The
doctrine enjoins upon the government to protect the resources for the enjoyment
of the general public rather than to permit their use for private ownership or
commercial purposes.
This doctrine
serves two purposes; it mandates affirmative state action for effective
management of resources and empowers citizens to question ineffective
management of natural resources. It is also a common law concept, defined and
addressed by academics in the US and the UK. It has been extended in recent
years, placing a duty on the state to hold environmental resources in trust for
the benefit of the public. At its widest, it could be used by the courts as a
tool to protect the environment form many kinds of degradation.
Accepting public
trust doctrine as a part of common law, the Indian courts have applied this
explicitly in numerous cases.
M. C. Mehta v.
Kamal Nath[34] was a landmark case in Indian environmental law. In this case the Supreme Court held that “…public trust
doctrine was founded to protect certain common properties such as rivers,
sea-shore, forests and air were held by the government in trusteeship for the
free and unimpeded use of general public.. These resources being a gift of
nature, have a great importance to the people as a whole should be made freely
available to everyone irrespective of the status on life. The state is a
trustee of all natural resources and also state has a legal duty to protect
them and that the resources were meant for public use and could not be
transferred to private ownership...”
In M. I. Builders v. Radhey Shyam Sahu[35],
in Rambabu v. Divisional Forest Officer[36],
and in Intellectual Forum v. State of A.P.[37]
in Andhra Pradesh State Fihserman’s case[38],
in Fomento Resorts and Hotels Ltd., v. Minguel Martins case[39]
and more importantly in a recent and popular spectrum allocation case[40]
the Supreme Court categorically reiterated this Public Trust Doctrine.
Intergenerational equity principle:
Inter generational Equity regarding environmental law can be best
understood for sustainable economic development and resource conservation.
Inter Generational Equity maintain that the present generation has a moral
obligation to manage the earth in a manner that will not jeopardize the
aesthetic and economic welfare of the forthcoming generation. Mainly this
principle says that between different generations of the human species all
generations are inherently linked to other generations, past, present and future,
in using the common patrimony of earth. The theory of intergenerational equity
stipulates that all generations have an equal place in relation to the natural
system. There is no basis for preferring the present generation over future
generations in their use of the planet.
In State of Himachal Pradesh
v. Ganesh Wood Products[41],
the court recognised the significance of Inter-Generational Equity and held
that a government’s approval is contrary to public interest involved in
preserving forest wealth, maintenance of environment and ecology and
considerations of sustainable growth and inter-Generational equity. In Dighi
Koli Samaj Mumbai (Regd) v. Union of India[42],
the court reiterated the successful environmental policies require many things,
the most vital being the support of the common masses and that happens only if
there is an ethical commitment to environmental values. Dr. Meenakshi Bharath
v. State of Karnataka[43]
After all, the present generation has no right to deplete all the existing
forests and leave nothing for the next generation.
The Doctrine of Sustainable
development:
To be sustainable, the development must
possess both economic and ecological sustainability. Sustainable development is
not a new concept to India[44]
as well as in other countries; many cultures over the human society realized
the need for the harmony between environment, society and economy. In this 21st
Century what is new is the articulation of this concept of global industrial
and information society. In this regard the environmental jurisprudence which
has evolved in India in the recent past is a result of judicial activism which
has given shape to the aspirations of the international community.
The history of
sustainable development in the international platform can be traced back to
Stockholm conference 1972. This conference declared that “to defend and improve
the human environment for present and future generations has become an
imperative goal for mankind”. by this principles were developed, which
incorporated the idea of sustainable development although the phrase itself was
not included.
Following on
from this conference, the UN General Assembly established the World Commission
on Environment and Development in 1983. This commission was chaired by the
former PM of Norway, Gro Harlum Brundtland, earning it the name “Brundtland
Commission”. This commission submitted their report in the year 1987 with title
“Our Common Future”. Because of this commission this concept was popularized.
In this report it was held that “Sustainable development is a development that
meets the needs of the present without compromising the ability of future
generations to meet their own needs”[45]
In India,
legal elements of the concept of Sustainable Development is widely applied by
the Constitutional Courts and reiterated that legal elements of the concept of
Sustainable Development is a fundamental governance of the state and held that
there is a direct link with Article 21 of the Constitution of India and the
concept of Sustainable Development. Court held that the right to have pollution
free environment, flowing from the rights under Article 21 of the Constitution
of India relating to the principle of customary international law concerning
Sustainable Development, which is now part of the municipal law. In Soman v.
Geologist[46], in Thilakan v. Circle Inspector of Police and
Other[47]etc
Indian judiciary accepted this principle. In T.N. Godavarman Thirumulpad v.
Union of India and others[48],
the court held that the concept of Sustainable Development is permissible and
is universally accepted phenomenon. It held that “Biodiversity valuations has
important implications for decision making. Since all value does not get
reflected in markets, its valuation also raises methodological problems
regarding the kinds of value that are being captured by the particular
technique being used. This implies that biodiversity value for which a market
exists must be taken note of, while simultaneously making sure that the natural
capital inherent in biodiversity rich areas in preserved and values which are
crucial for some stakeholders but cannot be expressed in the market are
reflected in societal decision making”.
Hence, the concept of
Sustainable Development helps to maintain equilibrium between economic
development and conservation of resources. This can be achieved with the help
of effective usage of technology. The concept of Sustainable Development is
recognized as a wider concept for dignified life for all without further
destroying recklessly the word’s finite resources.
In addition to the
conservation of resources for achieving environmental sustainability, the apex
court has also given new directions to environmental justice in numerous cases
on environmental education, public awareness[49],
green court….etc. Since environmental litigation are technical in nature, the
apex court realized that it requires assistance of scientific experts that can
also provide speedy and effective remedy against environmental pollution Green
Benches were created with a specific objectives.[50]
The 186th Report of the law Commission recommends the setting up of Green
Courts in India with its composition, power and procedure of the court[51].
After long continuous demands from various sectors finally an Act came into
force with effect from 18.10.2010 in the name of “The national green tribunal
Act, 2010”. It is a quasi-judicial, specialized forum, which has
both long term and short term objectives. The long-term objective lies in the
protection of the environment, and the short-term objective involves resolution
of disputes relating to environmental issues in a speedy and effective manner.
Universal recognition to clean, healthy and sustainable
environment
Recently on 8th
October, 2021 the UNHRC, the high commissioner described the triple planetary
threats of climate change, pollution and nature loss as the single greatest
human rights challenge of our era. UNHRC also adopted a resolution on the right
to a clean, healthy, and sustainable environment, the first formal recognition
of this right at the global level. The HRC was meeting in Geneva, Switzerland,
as part of its 48th regular session. The resolution was proposed by
five HRC member states Costa Rica, the Maldives, Morocco, Slovenia and
Switzerland. Four governments abstained from voting – China, India, Japan, and
Russia and the resolution passed with 43 votes in favour and none opposed.
The UNGA
adopted the resolution on 28th July 2022 recognizing “the
right to a clean, healthy, and sustainable environment” as a human
right by a recorded vote of 161 in favour and zero against, with eight
abstentions. This resolution described by many as ‘a victory for people and
planet’ and said this was five decades in the making. From a ‘foothold’ in the
1972 Stockholm Declaration, where member States recognised the right to ‘an
environment of a quality that permits a life of dignity and well-being,’ even
though already many countries have integrated the right into constitutions,
national laws, and regional agreements by this resolution its status elevated
to that of “universal recognition’’.
“One of the First Conditions of Happiness is that the
link between Man and Nature shall not be Broken”.
-
Leo Tolstoy
[1] Strict liability had 5 important
exceptions like consent of the plaintiff, plaintiff’s own default, Act of
stranger, act of God or Vis major, where escape caused for common benefit of
plaintiff and defendant and statutory authority etc.
[2] (1868) LR 3 HL 330:LRI and
available at : https://en.wikipedia.org/wiki/Rylands_v_Fletcher
(visited on 24th August, 2022)
[3] AIR 1987 SC 965
[4] This is a case came before the
Supreme Court of India through a PIL petition under Article 32 of the Indian
constitution. In this case on the 4th and 5th December,
1985 there was a gas leakage from one of the units of Shriram Foods and
Fertilizers Industries, Delhi. Due to this leakage, one advocate and several
people were dead and many were injured. So, to provide proper remedy to victims
M.C Mehta, A lawyer by profession and a
committed environmentalist by choice approached the S.C.
[5] The Bhopal disaster, also referred to as the Bhopal gas tragedy, was a gas leak incident
in India, considered the world's worst industrial disaster. It occurred on
the night of 2–3 December 1984 at the Union Carbide India Limited (UCIL) pesticide plant
in Bhopal,
Madhya Pradesh. Over 500,000 people were exposed to methyl
iso cyanate (MIC) gas and other chemicals. The highly toxic substance
made its way into and around the shanty
towns located near the plant. (for more details visit : https://en.wikipedia.org/wiki/Bhopal_disaster)
(visited on 24th August, 2022)
[6] The public liability insurance Act, 1991,
section 3 (1) Where death
or injury to any person (other than a workman) or damage to any property has
resulted from an accident, the owner shall-be liable to give such relief as is
specified in Schedule for such death, injury or damage.
(2) In any claim for relief under
sub-section (I) (hereinafter referred to in this Act as claim for relief), the
claimant shall not be required to plead and establish that the death, injury or
damage in respect of which the claim has been made was due to any wrongful act,
neglect or default of any person.
[7] AIR 1996 SC 1446
[8] This is a case related to
hazardous chemical industries, releasing highly toxic sludge and toxic
untreated waste water which had percolated deep into the oil rendering the soil
unfit for cultivation and water unfit for irrigation, human or animal
consumption resulting in untold misery to the villagers in Bichhri village and its surrounding areas, Udaipur District,
Rajasthan. SC directed the government determine and recover the cost of
remedial measure from the private companies which polluted the environment by
attaching all their assets and further use to restore soil, forest etc. These
industries were characterized by the SC as ‘rouge industries’ and were ordered
to be closed down.
[9] AIR 2000 SC 3751; (2000) 10 SCC
664
[10] (2006) 6 SCC 213
[11] Indian Council for Enviro-Legal
Action v. Union of India (1996) 3 SCC 212 at 215.
[12] The International institute for
industrial Environmental economics at Lund University, Sweden(2000). Available
at : http://lex-warrier.in/2013/06/polluter-pays-principle/#identifier_1_3706
(Visited on 4th April, 2024)
[13] The organization for economic
co-operation and Development, environment Directorate, Paris, France (2006)
defines this extended producer responsibility as “producers accepting their
responsibility when designing their products to minimize life-cycle
environmental impacts and when accepting legal, physical or socio-economic
responsibility for environmental impacts that cannot be eliminated by design”.
[14] Rule 16, the Hazardous Wastes
Management and Handling Rules 1989.
[15] Section 15, the Environmental protection Act 1986.
[16] Section 3 read with the Schedule
of the Public liability insurance Act, 1991.
[17] (1996) 5 SCC 218
[18] (2005) 10 SCC 664.
[19] Vellore Citizens Welfare Forum v.
Union of India, AIR 1996 SC 2715; (1996) 5 SCC 647
[20] (2006) 6 SCC 213
[21] “...pollution is a civil wrong. By
its very nature, it is a tort committed against the community as a whole. A
person, therefore, who is guilty of causing pollution, has to pay damages
(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 powers of this court are not restricted and it can award damages
in Public Interest Litigation or a Writ Petition as has been held in a series
of decisions. In addition to damages aforesaid, the person guilty of causing
pollution can also be held liable to pay exemplary damages so that it may act
as a deterrent for others not to cause pollution in any manner…”
[22] An
alternative translation of this word would mean ‘foresight principle’ – which
could have given an active and positive impression, as against the reactive and
perhaps negative connotation attached with precaution.
[23] A. P. Pollution Control Board v.
M. V. Nayudu, (1999) 2 SCC 718; AIR 1999 SC 812.
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Article Information
“THE RIGHT TO A CLEAN, HEALTHY, AND SUSTAINABLE ENVIRONMENT” IS A FUNDAMENTAL AND BASIC HUMAN RIGHT
Authors: DR. KONERU ANURADHA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/15
- Issue 7
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International Journal for Legal Research and Analysis
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- ISSN 2582-6433
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