Marine Environment: An unchartered territory

Anshu Bansal, Research Associate

“Whatever we do, the ocean will survive in one way or another. What is more problematic is whether we shall preserve it in a state that ensures humanity’s survival and wellbeing”

Federico Mayor, Director General, UNESCO

The marine environment includes the waters of seas and estuaries, the seabed and its subsoils, and all marine wildlife and its sea and coastal habitats. It constitutes a fund of resources which can be used to achieve greater economic potential, so its protection in seeking to revitalise its economy ((Protecting and conserving the Marine environment, European Commission (2006).)). The marine environment is a vital resource for life on Earth. Marine ecosystems  perform  a  number  of  key  environmental  functions  —  they  regulate the climate, prevent erosion, accumulate and distribute solar energy, absorb carbon dioxide, and maintain biological control ((Ibid.)).

The world’s oceans are not only the domain of food for human being but also the legitimate concern of marine transport, offshore extraction of oil, gas and other minerals, climate control and recreation. Marine fisheries account for 85% of the global fish catch. Maritime shipping is involved in the transport of over 80% of the world’s merchandise trade ((A. N. Subramanian, Introduction: Marine Environment.)).

Though the seas cover the majority of our planet’s surface, far less is known about the biodiversity of marine environments then that of terrestrial systems ((Ormond (1997).)). The marine environment is also a great contributor to economic prosperity, social well-being and quality of life. Irish and Norse examined all 742 papers published in the journal Conservation Biology and found that only 5% focused on marine ecosystems and species, compared with 67% on terrestrial and 6% on freshwater ((Murphy and Duffus (1996).)). As a result of this disparity, marine conservation biology severely lags behind the terrestrial counterpart, and this gap of knowledge poses major problems for conservation of marine biodiversity and must be addressed ((Ibid)).

International Perspective to Marine Environment

Being a common heritage of mankind, marine resources are also subjected to international Conventions. For instance, many of Europe’s regional seas are the subject of international conventions. Some of the Conventions are: The 1992 OSPAR Convention which regulate and control marine pollution in the North Sea and North Atlantic, the Helsinki Commission on the protection of the Baltic Sea (Helcom) and the Barcelona Convention on the protection of the Mediterranean Sea. A number of these have made excellent contributions to marine protection, but they have few enforcement powers ((Ibid.)). The main reason for the failure of some of these conventions rests in the fact that they did not had effective enforcement mechanism. The most important legislation addressing the increasing problem of marine pollution is probably the 1978 Protocol to the International Convention for the Prevention of Pollution from Ships (MARPOL), which recognised that vessels present a significant and controllable source of pollution into the marine environment [Lentz, 1987] ((Josee G.B. Derraik, The pollution of the marine environment by plastic debris: a review, Marine Pollution Bulletin 44 (2002) 842–852)).

International Management Regimes for Marine Environment

To address the complexity of management regimes, it is essential to develop a methodology and collect the information required for the systematic valuation of ocean assets and services.  At  the  2002  World  Summit  on  Sustainable  Development  (WSSD)  the international  community  agreed  to  “establish  by  2004  a  regular  process under  the  United  Nations  for  global  reporting  and  assessment  of  the  state of the marine environment, including socio-economic aspects building on existing regional assessments ((Symphony of the seas , The Marine Environment, The magazine of the UNEP (December,2007).)).” The 2004 target proved unrealistic, but in 2005 the  General  Assembly  launched  an “assessment  of  assessments”  (AoA)  as  a  preparatory stage for the ‘regular process’, as it is called ((Ibid)).

In February 2004, IMO adopted the Ballast Water Management Convention, addressing the immense damage that can be caused by microscopic aquatic life  transported  around  the  world  in  this  way  and  deposited  in  alien  local ecosystems, threatening to disrupt their delicate balance ((Conrad, Flexible Instrument.)). Most countries recognize the value of their coastal and marine biodiversity and have gazetted marine and wetland protected areas to ensure their sustainability ((UNEP- WCMC (2000).)).

At the global level, the Law of the Sea Convention, the central regime for ocean governance, has established a new treaty system of ocean institutions. Under the umbrella of the convention, a number of ‘sub‐regimes’ can be identified, each of which deals with specialized matters. The most important of these sub‐regimes cover ((A. N. Subramanian, Introduction: Marine Environment)):

  • The sustainable management of marine living resources, the focus for which is Food and agricultural Organization of the United  Nations  (FAO),  including  its  network  of  regional fisheries commissions and conventions;
  • Shipping  and  marine  pollution  control,  centered  on International Maritime Organization (IMO) and several related convention‐based institutions;
  • The marine environment, the main responsibility for which has been assigned to United  Nations  Environment  Programme (UNEP), including its network of regional seas agreements and action plans;
  • Marine scientific research and associated ocean services and management, centered on Intergovernmental Oceanographic Commission of UNESCO (IOC);
  • Deep seabed mineral development, through the International Sea Bed Authority (ISBA).

Major Threat To Marine Biodiversity

There are several causes of marine pollution, such as:

(a)  Dumping of wastes at sea ((Art 1(1)(5)(a) 1982 Law of the Sea Convention.)).

(b) From land-based sources e.g. untreated sewage and the dumping of wastes which reach the sea and oceans through rivers and streams, fumes from power plants and factories, etc.;

(c)  Pollution from ships during their voyages;

(d) Pollution from seabed activities i.e. exploration of mineral resources in the seabed ((Art  43  1982  Law  of  the  Sea  Convention,  “User  States  and  States  bordering  a  strait  should  by agreement co-operate)).

It has also been established that one of the major contributor in pollution concerning marine biodiversity relates to disposing waste in marine environment. One among them is the threat posed by Plastic debris. There are overwhelming evidence that plastic pollution is a threat to marine biodiversity, already at risk from overfishing, climate change and other forms of anthropogenic disturbance. Due to the long life of plastics on marine ecosystems, it is imperative that severe measures are taken to address the problem at both international and national levels, since even if the production and disposal of plastics suddenly stopped, the existing debris would continue to harm marine life for many decades ((Josee G.B. Derraik, The Pollution Of The Marine Environment By Plastic Debris: A Review, Marine Pollution Bulletin 44 (2002) 842–852.  )).

There have been nevertheless some attempts to promote the conservation of the world’s oceans through international legislation, such as the establishment of the 1972 Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matter [the London dumping Convention or LDC] ((Ibid.)).

In addition to plastic debris, activities such as fishing and extracting aggregates, oil and gas all affect our marine environment. We have damaged many habitats, for example by some fishing methods and by boat anchor chains dragging through seagrass beds ((Ibid.)). Pressures from commercial activities have caused a decline in a number of species, including spiny dogfish and porbeagle and even extinctions, for example of the angel shark in parts of UK waters.

An estimated 70% of the world’s fish stocks are already being exploited at or beyond sustainable limits, but fishing generally continues unabated despite extensive regulatory arrangements for their management ((Supra note 3.)). Also, Oil spill is one of the major threat. The oil spill from the  Erikaalong the French coast in December 1999, which was followed by two other cases of sinking ships and the release of hazardous substances, namely the Kristal and the Baku ((The Times Editorial, Rough Seas for Maltese Flag, 10th March 2001.)).

Conclusion and Recommendation

The  marine  environment  is  faced  with  a  number  of  increasingly  severe threats.  These include loss or degradation of biodiversity and changes in its structures, loss of habitats, contamination from dangerous substances, and the impacts of climate change ((Supra note 4)). Coastal and marine resources are being vanished and damaged by increase in marine human activities. This leads to deteriorating biodiversity in such a way that livelihood opportunities are decreasing.

In order to deal with the problem, UK Marine Bill can be referred. In UK, Marine Bill was drafted which provided a number of tools to improve our marine environment. For instance, Marine Conservation Zones will provide a mechanism to protect nationally important species and habitats. Marine planning will help us to find space for the competing range of activities in our seas, for example fishing, wind farms and gravel extraction and manage them in a holistic way. The Marine Management Organisation will regulate marine activities and help enforce laws to protect the marine environment ((Jonathan Shaw, Protecting Our Marine Environment Through The Marine Bill, Department of Environment, Food and Rural Affairs.)).

International Seabed Authority under the UN Convention on the Law of the Sea

Nivedita Saxena, Research Associate

The oceans had long been subject to the freedom of the seas doctrine – a principle put forth in the seventeenth century essentially limiting national rights and jurisdiction over the oceans to a narrow belt of sea surrounding a nation’s coastline. The remainder of the seas was proclaimed to be free to all and belonging to none. While this situation prevailed into the twentieth century, by mid-century there was an impetus to extend national claims over offshore resources ((According to The United Nations Convention on the Law of the Sea: A Historical Perspective, prepared for the International Year of the Ocean, 1998, Available at http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm#Historical Perspective, Last visited on 14th November 2013)). Consequently the oceans have been exploited for various resources through activities like fishing & mining.  The potential impacts of such activities on the marine environment are removal of organisms and their habitats and may result in harm to adjacent communities. The need was felt for the beneficial utilisation of the ocean resources for the humankind in general.

International Seabed Authority

The International Seabed Authority is an autonomous international organization established by article 156 ((Article 156 of the Convention.))of the 1982 United Nations Convention on the Law of the Sea ((Available online at http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf, last visited on 14th November 2013.))[hereafter ‘the convention’] and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea [hereafter ‘the agreement’] ((Available online at http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindxAgree.htm, last visited on 14th November 2013.)). In accordance with article 157 ((Article 157 of the Convention. 1. The Authority is the organization through which States Parties shall, in accordance with this Part, organize and control activities in the Area, particularly with a view to administering the resources of the Area.))of the Convention and section 1, paragraph 1 ((“1. The International Seabed Authority (hereinafter referred to as “the Authority”) is the organization through which States Parties to the Convention shall, in accordance with the regime for the Area established in Part XI and this Agreement, organize and control activities in the Area, particularly with a view to administering the resources of the Area. The powers and functions of the Authority shall be those expressly conferred upon it by the Convention. The Authority shall have such incidental powers, consistent with the Convention, as are implicit in, and necessary for, the exercise of those powers and functions with respect to activities in the Area.”)), of the annex to the agreement, the Authority is the organisation through which states parties to the convention shall, in accordance with the regime for the International Seabed Area established in Part XI of the convention and the agreement, organise and control activities in the area, particularly with a view to administering the resources of the area ((International Seabed Authority: Handbook 2013, published by The International Seabed Authority, Available online at http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindxAgree.htm, Last visited on 14th November 2013)). The Authority which has its headquarters in Kingston, Jamaica, came into existence on 16 November 1994, upon the entry into force of the 1982 Convention ((In accordance with the information available at http://www.isa.org.jm/en/about, Last visited on 14th November 2013)).

As at 13th August 2013, there are one hundred and sixty six (166) members of the Authority, including India ((In accordance with the information available at http://www.isa.org.jm/en/about/members/states, Last visited on 14th November 2013. See also, For a detailed analysis of the membership of the Authority, Assembly and Council along with statistics on regional representation refer to International Seabed Authority: Handbook 2013, published by The International Seabed Authority, Available online at http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindxAgree.htm, Last visited on 14th November 2013)). Pursuant to article 156, paragraph 2 ((Ibid n.1)), all states parties to the Convention are ipso facto members of the Authority.

The ‘Area’

The international seabed area, the part under ISA jurisdiction, is defined as “the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction ((Article 1(1) (1) of the Convention.)).” The United Convention of the Law of the Sea outlines the areas of national jurisdiction as a twelve-nautical-mile territorial sea ((Article 3 of the Convention)); an exclusive economic zone of up to 200 nautical miles ((Article 57 of the Convention))and a continental shelf. The international seabed area beyond national jurisdiction has been declared the Common Heritage of Mankind ((Article 136 of the Convention, As also declared  by the General Assembly of the United Nations in resolution 2749 (XXV) of 17th December 1970, Available at http://www.un.org/documents/ga/res/25/ares25.htm, Last visited on 14th November 2013)). The mineral resources of the Common Heritage are administered by the International Seabed Authority.

Organs of the Authority

Its organs include the Assembly, the Council and the Secretariat. In addition, the authority has two subsidiary organs, the Legal and Technical Commission and the Finance Commission.

The Assembly sets policies and reviews the work of the Authority and is made up of all the members of the Authority. Each member has one representative in the Assembly, who may be accompanied by alternated and advisers ((Article 159 of the Convention.)). It is to be considered as the supreme organ of the Authority to which other principal organs shall be accountable ((Article 160 of the Convention)). The President of the Assembly is elected at the commencement of each regular session and shall hold office until a new President is elected at the next regular session. The assembly also elects four Vice-Presidents.

The Council is the executive organ ((Article 162 (1) of the Convention.))which establishes policies and approves applications for exploration/exploitation rights. 36 members ((Article 161 of the Convention.))are elected to the Council by the Assembly for rotating four-year term, according to a formula intended to ensure the representation of all geographical blocs as well as groups with special economic interests affected by seabed mining. The President and the four Vice- President of the council are elected in a manner likewise to those of the Assembly.

The Legal and Technical Commission (LTC) consists of 25 members elected by the ISA Council for a period of 5 years on the basis of personal qualifications relevant to the exploration, exploitation and processing of mineral resources, oceanography, economic and/or legal matters relating to ocean mining and related fields. Its main functions include reviewing applications for plans of work, supervising exploration or mining activities, assessing the environmental impact of such activities and providing advice to the International Seabed Authority’s Assembly and Council. At its 17th Session in 2011, the Council elected new members for a 5 year term beginning 1 January 2012 – 31 December 2016 including Maruthadu Sudhakar from India ((In accordance with the information available on http://www.isa.org.jm/en/about/members/legal, last visited on 14th November 2013.)).

The Finance Committee oversees the financing and financial management of the Authority. The Committee consists of 15 members elected by the Assembly for a period of 5 years taking into account equitable geographical distribution among regional groups and representation of special interests and has a central role in the administration of the Authority’s financial and budgetary arrangements. These experts are to serve in their individual capacity. The Finance Committee meets during the annual session of the Authority and tables its report on the budget of the Authority to the Assembly. At its 17th Session, new members were elected for a five year term of office from 1st January 2012 to 31st December 2016, including Vishnu Datt Sharma from India ((In accordance with information available on http://www.isa.org.jm/en/about/members/finance, last visited on 14th November 2013.)).

The Secretariat of the Authority comprises of a Secretary- General, who is the Chief administrative officer of the Authority, and the staff required by the Authority. The Secretary- General is elected for four years by the Assembly from among the candidates proposed by the Council and may be re-elected ((Article 166 of the Convention.)). The Secretariat is organised into four functional units:

  1. Office of the Secretary General
  2. Office of Resources and Environmental Monitoring
  3. Office of Legal Affairs
  4. Office of Administration and Management

Additional functions of the Authority

The powers and functions of the Assembly have been broadly defined in the convention. In addition to its core responsibilities, the Authority has a general responsibility to promote and encourage the conduct of marine scientific research in the Area, and to coordinate and disseminate the results of such research and analysis, when available, with particular emphasis on research related to the environmental impact of activities in the Area. The Authority may carry out marine scientific research relating to the Area and its mineral resources and enter into contracts for that purpose ((Article 143, paragraph 2, of the Convention; Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, annex, section 1(5) (h). Under article 256 of the Convention, all States, irrespective of geographical location, and competent international organizations, are entitled to carry out marine scientific research in the Area.)). Furthermore, States parties to the Convention are required to promote ((Article 143 paragraph 3, of the Convention))international cooperation in marine scientific research by, inter alia, participating in international research programmes and ensuring that programmes are developed through the Authority for the benefit of developing States and technologically less developed States, with a view to strengthening their research capabilities, training their personnel and fostering the employment of their qualified personnel ((Report of the Secretary- General of the International Seabed Authority under Article 166, paragraph 4, of the United Nations Convention on the Law of the Sea, submitted to the Assembly at the Nineteenth session held at Kingston, Jamaica during 15th – 26th July 2013, Available at http://www.isa.org.jm/files/documents/EN/19Sess/Assembly/ISBA-19A-2.pdf, Last visited on 14th November 2013)).

Endowment fund for Marine Scientific Research in the Area

The assembly established the Endowment Fund for Marine Scientific Research in the Area in 2006.The ISA Endowment Fund promotes collaborative marine scientific research in the international seabed area for the benefit of humankind as a whole, by supporting the qualified scientists and technical personnel from developing countries in marine scientific research programmes and by providing opportunities for these scientists to participate in relevant initiatives. The fund is administered by the secretariat. Members of the Authority, other states, relevant international organisations, academic, scientific and technical institutions, philanthropic organisations and private persons may make contributions to the Fund. Applications for assistance from the Fund may be made by any developing country or by any other country, if the purpose of the grant is to benefit scientists from developing countries. An advisory panel appointed by the Secretary-General evaluates applications for assistance from the Fund and makes recommendations to the Secretary-General. The panel is composed of permanent representatives to the Authority, representatives of educational institutions or international organizations and individuals closely associated with the work of the Authority, and members are appointed with due regard to equitable geographic representation. To date, a total of $398,879 has been disbursed from the interest accrued on the capital in the form of awards for projects (( In accordance with the data provided in Report of the Secretary- General of the International Seabed Authority under Article 166, paragraph 4, of the United Nations Convention on the Law of the Sea, submitted to the Assembly at the Nineteenth session held at Kingston, Jamaica during 15th – 26th July 2013, Available at http://www.isa.org.jm/files/documents/EN/19Sess/Assembly/ISBA-19A-2.pdf, Last visited on 14th November 2013))(( As at the end of April 2013, the capital of the Fund stood at $3,387,038.)).

Accomplishments

Among the main accomplishments of the authority is the adoption of a “Mining Code”, a comprehensive set of rules, regulations and procedures issued to regulate prospecting and exploration of marine minerals in the Area. It includes the regulation on Prospecting and Exploration for Polymetallic Nodules in the Area, adopted in 2000; the Regulation on Prospecting and Exploration for Polymetallic Sulphides in the Area, adopted in 2010; and the Regulations on Prospecting and Exploration for Cobalt-Rich Crusts, adopted in 2012. These regulations enable the Authority to sign contracts for exploration with investors ((Pamphlet issued at the 30th anniversary of The United Nations Convention on the La of the Sea: UNCLOS at 30, Available at http://www.un.org/Depts/los/convention_agreements/pamphlet_unclos_at_30.pdf, last visited on 14th November 2013.)).

Prevalence of Tort law in pursuance to the Environmental Problems and its Remedies

Shashank Sahay, Research Associate

Damages and Injunction

A plaintiff in a tort action may sue for damages or an injunction, or both.

Damages

Damages are the pecuniary compensation payable for the commission of a tort. Damages may be either ‘substantial’ or ‘exemplary’. Substantial damages are awarded to compensate the plaintiff for the wrong suffered. The purpose for such damage is restitution, i.e. to restore the plaintiff to the position he or she would have been in if the tort had not been committed. Such damages, therefore, correspond to fair and reasonable compensation for the injury.

Exemplary damages are intended to punish the defendant for the outrageous nature of his or her conduct, as for instance, when he or she persists in causing a nuisance after being convicted and being fined for it ((J.C Galstaun v Dunia Lal Seal (1905) 9 CWN 612, 617)). The object of court in such cases is to deter the wrongdoer. The deterrence objective has recently prompted the Supreme Court to add a fresh category to the type of cases where exemplary damages may be awarded, viz., when harm results from an enterprise hazardous or inherently dangerous activity. In the Shri Ram Gas Leake case ((AIR 1987 SC 1086)), oleum gas escaped from a unit of the Shriram Foods and Fertilizers Industries and injured a few Delhi citizens. The court observed that in such cases, compensation ‘must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, the greater must be the amount compensation payable by it ((Id)).

Damages awarded in tort action in India are notoriously low, and pose no deterrent to the polluter. Lengthy delays in the adjudication of cases combined with chronic inflation dilute the value of any damages that a successful plaintiff may receive. Consequently, although in theory damages are the principal relief in a tort action, in practice injunctive reliefs is more effective in abating pollution. Accordingly, litigation strategies must shift away from conventional common law emphasis on damages. Lawyers in India intent on abating pollution may seek a temporary injunction against the polluter followed by a perpetual injunction on decree. Damages should be viewed as bonus ((Shyam Divan & Armin Rosencranz, Environmental law and Policy of India, 2nd edition, Oxford Press. p.89)).

Injunction

An injunction is a judicial process where a person who has infringed, or is about to infringe the rights of another, is restrained from pursuing such acts. An injunction may take either a negative or a positive form. It may require a party to refrain from doing a particular thing or to do a particular thing. Injunction is granted at the discretion of court ((Id)).

Injunctions are of two kinds, temporary and perpetual. The purpose of a temporary injunction is to maintain the state of things at a given date until trial on the merits. It is regulated by sections 94 and 95 as well as Order 39 of the Code of Civil Procedure of 1908. It may granted on an interlocutory application ((An application made between the commencement and end of a suit))at any stage of a suit. It remains in force until the disposal of the suit or until further orders of court.

Rule 1 of Order 39 provides the temporary injunctions may be granted where it is provided:

a)      “That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any part of the suit, or wrongfully sold in execution, of a decree, or

b)      That the defendant threatens, or intends , to remove or dispose of his property with a view of defrauding his creditors, or

c)      That the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit”.

The Supreme Court has held that courts also have an inherent power to issue temporary injunction in circumstances that are not covered by the provisions of Order 39 when the court is satisfied that the interests of justice so required ((Manohar Lal Chopra v Raj Baja Seth Hiralal AIR 1962 SC 527,532)).

The grant or refusal of a temporary injunction is governed by three well established principles : (1) the existence of a prima facie case ( a showing on the facts that the plaintiff is very likely to succeed in the suit); (2) the likelihood of irreparable injury (an injury that cannot be adequately compensated for damages) if the injunction is refused; and (3) that the balance of convenience requires the issue of the injunction (a showing that the inconvenience to the plaintiff if the temporary injunction is withheld exceeds the inconvenience to the defendant if he or she is restrained).

Perpetual injunctions are regulated by sections 37 to 42 of the Specific Relief Act of 1963. A perpetual injunction permanently restraints the defendant from doing the act complained of. It is granted at a court’s discretion after judging the merits of the suit. A perpetual injunction is intended to protect the plaintiff indefinitely (so that he or she need not resort to successive actions in respect of every infringement), assuming the circumstances of the cse essentially remains unchanged.

A court may permanently restrain the defendant where damages do not provide adequate relief or where the injunction would prevent a multiplicity of proceedings. Thus, where hazardous dust from a brick grinding machine polluted the air of neighboring medical practitioner’s consulting room, the polluter was permanently restrained from operating the machine ((Ram Baj Singh v Babulal AIR 1982 ALL 285)). A court may grant an injunction even though the anticipated damage may not be very serious, as long the damage is continuous or frequent. The ‘balance of convenience’ test also applies to the award of permanent injunction: The court must be satisfied that the damage that the defendant would suffer by the grant of the injunction is outweighed by the damage the plaintiff would suffer if the injunction was refused. Finally, the court will consider the injunction’s impact on third parties, for example, when granting of an injunction would throw a large number of people out of work.

Nuisance

Modern environmental law has its roots in the common law relating to nuisance. A nuisance is an unlawful interference with the plaintiff’s use or enjoyment of land. A plaintiff must, therefore, prove some injury to his enjoyment of property and his own interest in that property. An occupier of the property can sue for nuisance. Ordinarily, a nuisance means anything that annoys hurts or offends; but for an interference to be an ‘actionable nuisance’, the conduct of the defendant must be unreasonable. Further, a nuisance must not be momentary, but must continue for some time: A single, short inconvenience is not actionable. A nuisance would include offensive smells, noise, air pollution and water pollution ((Shyam Divan & Armin Rosencranz, Environmental law and Policy of India, 2nd edition, Oxford Press. p.91)).             The remedies of a public nuisance are:-

  1. A criminal prosecution for the offence of causing public nuisance ((Section 268 of the Indian Penal Code of 1860));
  2. A criminal proceeding before a magistrate for removing public nuisance ((Section 133-144 of Code of Criminal Procedure of 1973));
  3. A civil action by the Advocate General or by two or more members of the public with permission of the court, for a declaration, an injunction or both ((Section 91 of the Code of Civil Procedure of 1908.)).

A private nuisance is a substantial and unreasonable interference with the use and enjoyment of land. Reasonableness of the defendant’s conduct is the central question in nuisance cases. To determine ‘reasonability’ the courts are guided by the ordinary standard of comfort prevailing in the neighborhood. Minor discomforts that are common in crowded cities will not be viewed as nuisance by the courts.

An action for private nuisance may seek injunctive relief as well as damages. In cases of a continuing cause of action, such as pollution of a stream by factory wastes or smoke emissions from a chimney, the proper course is to sue for an injunction. Repeated actions for damages may be brought to recover the loss sustained up to the date of the court’s decree; but future losses, which are contingent on the continuance of the wrong, are not usually awarded. Damages offer poor relief since courts grant the plaintiff an injunction where a nuisance exists or is threatened, unless he or she is guilty of improper conduct or delay.

A two decade journey through four tiers of the court culminated in the dismissal of an action to restrain a baking oven from being operated in a residential locality in Kuldip Singh v Subhash Chandra Jain ((2000(2) SCALE 582)). The plaintiff, Subhash Chandra Jain, feared that the baking oven and 12 foot chimney built by his neighbor would cause a nuisance when the bakery commenced. The trial court restrained the defendant since operating of the oven ‘would result in emitting smell and generating heat and smoke which taken together would amount to nuisance’. The Supreme Court drew a distinction between an existing nuisance and a future nuisance: ‘ In case of a future nuisance, a mere possibility of injury will not provide the plaintiff with a cause of action unless the threat be so certain or imminent that an injury actionable in law will arise unless prevented by an injunction. The court may not require proof of absolute certainty or a proof beyond reasonable doubt before it may interfere; but a strong case of probability that the apprehended mischief will in fact arise must be shown by the plaintiff.’ In a remarkable conclusion, the apex court found that the plaintiff’s apprehension about a smoking oven next door causing a nuisance was not justified by the pleadings or the evidence and dismissed the suit.

In B. Venkatappa v B. Lovis ((AIR 1986 AP 239)), the Andhra Pradesh High Court upheld the lower court’s mandatory injunction directing the defendant to close the holes in a chimney facing the plaintiff’s property. The court ensured enforcement of its order by authorizing the plaintiff to seal the holes at defendant’s cost, if the defendant failed to do so. The High Court stated that the smoke and fumes that materially interfered with ordinary comfort were enough to constitute an actionable nuisance and that actual injury to health need not be proved. The Court also observed that the existence of other sources of discomfort in the neighborhood were no defence, provided that the source complained of materially added to the discomfort. The court rejected the defence that the plaintiff ‘came to a nuisance’ : ‘the fact that the nuisance existed long before the complainant occupied his premise, does not relieve the offender unless he can show that as against the complainant he has acquired a right to commit nuisance complained of ((The ‘right to commit nuisance complained of’ , refers to a prescriptive right to emit smoke acquired under section 15 of the Indian Easements Act of 1882, or a right acquired by the authority of a statute. A right to cause public nuisance, however, cannot be obtained by prescription.)). The 1905 Judgment of Calcutta High Court in J, C. Galstaun v Dunia Lal Seal (([1905] 9 CWN 612))is considered to be the earliest reported pollution control cases in India, as apart from its historical significance, the case is important because it shows how the common law regulatory system can check polluters in a pre-industrialized society.

Negligence      

A common law action for negligence may be brought to prevent environmental pollution. In an action for negligence, the plaintiff must show that

  1. The defendant was under a duty to take reasonable care to avoid the damage complained of ;
  2. There was a breach of this duty; and
  3. The breach of duty caused the damages.

The degree of care required in a particular case depends on the surrounding circumstances and varies according to the risk involved and the magnitude of the prospective injury.

An act of negligence may also constitute a nuisance if it unlawfully interferes with the enjoyment of another’s right in land. Similarly, it may also amount to a breach of rule of strict liability in Rylands v Fletcher (([1868]LR 3 HL 330)), if the negligent act allows the escape of anything dangerous which the defendant has brought on land. The casual connection between the negligent act and the plaintiff’s injury is often the most problematic link in pollution cases. Where the pollutant is highly toxic and its effect is immediate, as with the methyl isocyanate that leaked from the Union Carbide plant in Bhopal, the connection is relatively straightforward. The casual link is more tenuous when the effect of the injury remains latent over long periods of time and can eventually be attributed to the factors other than the pollutant, or to polluters other than the defendant ((In numerous American suits brought against asbestos manufactured by asbestos workers suffering from lung cancer, several courts reduced the damage award on the theory that a plaintiff habit of smoking cigaretteas had contributed, or could have contributed, to his condition. Some courts dismissed the suit entirely when the plaintiff had been a cigarette smoker.)). The Mukesh Textile Mills Case ((AIR 1987 KANT 87)), is one of the few reported pollution cases in which a judgment was rendered for damages.

Strict Liability        

The rule in Ryland v Fletcher ((For a discussion on ‘strict liability’ and the Rylands’ rule see Jay Laxmi Salts Works (P) Ltd. v State of gujurat 1994 (4) SCC 1))holds a person strictly liable when he brings or accumulates on his land something likely to cause harm if it escapes, and damage arises as natural consequence of its escape. But ‘strict’ liability is subject to a number of exceptions that considerably reduce the scope of its operation. Exceptions that have been recognized are:

  1. An act of God ( natural disaster such as earthquake or flood);
  2. The act of third party (e.g., sabotage);
  3. The plaintiff’s on fault
  4. The plaintiff’s consent
  5. The natural use of the land by the defendant (i.e., strict liability applies to a non – natural user of land); and
  6. Statutory authority.

Absolute liability

With the expansion of chemical-based industries in India, increasing number of enterprises store and use hazardous substances. These activities are not banned because they have a great social utility (e.g., the manufacture of fertilizers and pesticides). Traditionally, the doctrine of strict liability was considered adequate to regulate such hazardous enterprises. This doctrine allows for the growth of hazardous industries, while ensuring that such enterprises will bear the burden of the damage they cause when a hazardous substance escape. Shortly after the Bhopal gas leak tragedy of 1984, the traditional doctrine was replaced by the rule of ‘absolute’ liability, a standard stricter than strict liability. Absolute liability was first articulated by the Supreme Court and has since been adopted by Parliament.

The genesis of absolute liability was the Shriram Gas Leak Case ((M.C Mehta v Union of India AIR 1987 SC 1086))which was decided by the Supreme Court in December 1986. The case originated in a writ petition filed in the Supreme Court by the environmentalist and lawyer, M.C. Mehta as a public interest litigation. The petition sought to close and relocate Shriram’s caustic chlorine and sulphuric acid plants which were located in a thickly populated part of Delhi. Shortly after Mehta filed this petition, on 4th December 1985 oleum leaked from Sriram‘s sulphuric acid plant causing widespread panic in the surrounding community ((Shyam Divan & Armin Rosencranz, Environmental law and Policy of India, 2nd edition, Oxford Press. p.106)).

Chief Justice Bhagwati, who presided over the Supreme Court Bench, was concerned for the safety of Delhi’s citizens. Moreover, the Chief Justice saw in the oleum leak a way of influencing the pending and far more important Bhopal Gas Leak Case. In the first reported order in Shriram, the Chief Justice observed that the principles and norms for determining the liability of  large enterprise engaged in the manufacture and sale of hazardous products were ‘ questions of the greatest importance particularly since, following upon the leakage of  MIC gas from the Union Carbide Plant in Bhopal, lawyers, judges and jurists are considerably exercised as to what controls, whether by way of relocation or by way of installation of adequate safety devices, need to be imposed upon [hazardous industries], what is the extent of liability of such corporations and what remedies can be devised for enforcing such liability with a view to securing payments of damages to the person affected by such leakage of liquid or gas ((MC Mehta v Union of India AIR 1987 SC 965)).

Union Carbide hinted at a sabotage theory’ to shield itself from claims of the Bhopal victims. It was suggested that a disgruntled employee working in the pesticide factory owned by the Carbide’s Indian subsidiary may have triggered the escape of the gas. Such a theory afforded a defense under the rule of strict liability as laid down in Rylands v Fletcher ((Supra note 27)). But any faith Union Carbide may have reposed in the sabotage theory was soon shaken by Chief Justice Bhagwati’s rejection of the Ryland’s rule in situations involving hazardous industries.

The absolute liability theory laid down by the Supreme Court in Shriram was first applied by the Madhya Pradesh High Court to support its award of interim compensation to the Bhopal victims ((Union Carbide of India v Union of India Civil Revision No. 26 of 1988, 4th April 1988. This judgment was never implemented in view of the final settlement between parties.)). In light of Shriram, Justice Seth of the High Court described the liability of the enterprise to be ‘unquestionable’. However, soon thereafter the wisdom of the teory was questioned by Chief Justice Ranganath Misra who presided over the proceedings before the Supreme Courtfor a review of the Bhopal Case settlement ((Union Carbide of India v Union of India (Bhopal Review) AIR 1992 SC 248)). Chief Justice Misra in his concurring judgment observed that the issue before the Shriram court was whether the delinquent company came within the ambit of ‘state’ under Article 12 of the Constitution so as to subject to the discipline of Article 21 and proceedings under Article 32 of the Constitution. Thus, according to the Chief Justice, what was said about the departure from the Rylands v Fletcher’s rule was essentially obiter ((Id. at 261. Obiter dictum are words of a judgment unnecessary for the decision of the case.)).

Public Nuisance

A public nuisance may be broadly defined as an unreasonable interference with a general right of the public. Because a public nuisance interferes with a public right, it is not tied to interference with the enjoyment and use of property; and remedies against a public nuisance are, therefore available to every citizen. Section 268 of the Indian Penal Code of 1860 defines the offence of public nuisance. This section also provides that ‘a common nuisance is not excused on the ground that it causes some convenience or advantages’.

Persons who conduct ‘offensive’ trades and thereby pollute the air, or cause loud and continuous noise that affect the health and comfort of those dwelling in the neighborhood are liable to prosecution for causing public nuisance. The penalty for this offence is merely Rs 200, which make it pointless for a citizen to initiate a prosecution under section 268 by complaint to a magistrate ((A complaint may be made under section 190 of the Code of Criminal Procedure of 1973)). A much better course would be to utilize the remedies provided in sections 133 to 144 of the Code of Criminal Procedure of 1973. Section 133 provides an independent, speedy and summary remedy against public nuisance. The section empowers a magistrate to pass a ‘conditional order’ for the removal of a public nuisance within a fixed period of time. The magistrate may act on information received from a police report or any other source including a complaint made by a citizen. Although the magistrate’s power to issue a conditional order under section 133 appears discretionary, the Supreme Court has interpreted the language to be mandatory ((Municipal Council , Ratlam v Vardhichand AIR 1980 SC 1622)). Once a magistrate has before him evidence of a public nuisance, he must order removal of the nuisance, within a fixed time ((In urgent cases, a magistrate may direct the immediate removal of nuisance. Supra note 42 at 295. Also see section 145 of the Code of Criminal Procedure of 1973)).

The person directed to remove the nuisance (the opposite party) must either comply with the order or show cause against it. Where he or she opposes the order, the court must initiate an inquiry and call on the parties to adduce evidence. Moreover, to assist the inquiry, the magistrate may direct a local investigation to ascertain facts or summon expert witness. If measures are necessary to prevent imminent danger or serious injury to the public, the court may issue an injunction pending an inquiry. When a person fails to appear and show cause, or when the court is satisfied on the evidence adduced that the initial order was proper, the order is made final. Otherwise it is vacated. Failure to comply with a final order within the specified time attracts the penalty provided by section 188 of the Indian Penal Code for disobedience of an order of a public servant. Further, the court may carry out the order and recover costs from the defaulter. A magistrate is also empowered to prohibit repetition or continuance of a public nuisance ((Shyam Divan & Armin Rosencranz, Environmental law and Policy of India, 2nd edition, Oxford Press. p.113)).

A magistrate, however, may not pass a final order that exceeds the conditional order in scope. For instance, in Gobind Singh v Shanti Sarup ((AIR 1979 SC 143))the conditional order required a baker to demolish within 10 days an oven and chimney that emitted smoke ‘injurious to the health and physical comfort of the people living or working in the proximity.’ In the final order the magistrate went beyond the conditional order and completely prohibited the baker from carrying out his trade. The Supreme Court found the final order far too broad and narrowed its scope to require the baker to demolish the offending oven and chimney within a month. The baker, however, was allowed to practice his trade.

In Municipal council, Ratlam v Vardichand, the Supreme Court for the first time treated an environmental problem differently from an ordinary tort or public nuisance. Environmental pollution in Ratlam affected a large community of poor people and arose from a combination of diffuse causes: private polluter, slack and under- financed enforcement agencies, and haphazard town planning. In view of these peculiarities, the court tailored the existing public nuisance remedy to provide relief.

The Judgment explicitly recognizes the impact of a deteriorating urban environment on the poor, and links the provisions of basic public health facilities to both human rights ad directive principles in the Constitution. The court commends an activist judiciary to compel municipalities to provide proper sanitation and drainage, thereby enabling the poor to live with dignity.

Conclusion

Although the language of Justice Krishna Iyer is flowery in parts, the judgment is notable for the principles it enunciates. Notice the court’s interpretation of the nature of the magistrate’s power under section 133; the court’s response to the municipality’s plea of budgetary constraints’ and the relief granted by the court. To conclude, Common law based tort rules continued continue to operate under Article 372 of the Indian Constitution which ensured the continuance of existing laws ((Shyam Divan & Armin Rosencranz, Environmental law and Policy of India, 2nd edition, Oxford Press. p.88)), as in case of  Vellore Citizen’s Welfare Forum v Union of India ((AIR 1996 SC 2715)), the Supreme Court traced the source of the constitutional and statutory provisions that protect the environment to the ‘inalienable common law right’ of every person to a clean environment. Quoting from Blackstone’s Commentaries on the English law of nuisance published in 1876, the court held that since the Indian legal system was founded on English common law, the right to pollution free environment was a part of the basic jurisprudence of land ((Id. at 2722. For a great review of tort law principles see  Jay Laxmi Salt Works (P). Ltd v State of Gujarat 1994 (4) SCC 1)).

Operation of Coastal Zone Regulations: Its Legal Implications – An Insight

Anshu Bansal, Research Associate

Mrs. Gandhi’s concerns about protecting the environment and ecology of India’s coasts which held sway for almost 20 years, now go for a toss under a regime supervised by her daughter-in-law and grandson ((REPORT OF THE EXPERT COMMITTEE ON COASTAL REGULATION ZONE NOTIFICTION, 1991)).

Indira Gandhi during her tenure restricted any kind of activities within 500 meters of the high tide line. In 1991, notification relating to the coastal regulation zone was issued under the Environment Protection Act. Since the issuance of the notification, it always remained a highly debatable topic and various committees were also being set up in order to suggest changes. These committees include B.B. Vohra committee, Prof. N. Balakrishnan Nair Committee on issues relating to Kerala on Coastal Regulation Zone. The most important committee constituted by the Ministry to carry out comprehensive review of the CRZ Notification, 1991 was Prof. M. S. Swaminathan Committee.

It is sad but true that in less than 20 years the 1991 notification has amended more than 25 times and finally in 2011 all the amendments along with recommendations of various committees including the recommendations made in the “Final Frontier” Report by the Committee chaired by Dr. M.S. Swaminathan has been incorporated in a single document. The Swaminathan report castigated the Environment Ministry for the 25 amendments and said they were all in the nature of unwarranted dilutions. Nevertheless, rather mysteriously, it recommended scrapping the notification altogether and substituting it with a fresh notification called the Coastal Zone Management (CZM) notification ((Id.)).

Internationally, there exist documents such as the Protocol on Integrated Coastal Zone Management in the Mediterranean ((Protocol on Integrated Coastal Zone Management in the Mediterranean, adopted at Barcelona 16 February 1976, and amended on 10 June 1995 available at http://195.97.36.231/dbases/webdocs/BCP/ProtocolICZM08_eng.pdf.))and a Proposal for a Model Law on Sustainable Management of Coastal Zones together with a draft European Code of Conduct for Coastal Zones ((Available at http://www.unesco.org/csi/act/russia/legalpro5.htm#model.)). The purpose of model laws is to provide a standard text that states can use as a basis for national legislation. The Model Law and the Code of Conduct do not have the status of international conventions, since there is no obligation on any state to apply them, and they can be modified to suit national circumstances ((Id.)).

Environment law Perspective of the Coastal regulation zone

To put it simple, Coastal regulation zone is the boundary from the high tide line up to 500m in the land -ward side ((Available at http://gisserver.nic.in/czm/coastal%20regulation%20zone.htm.)). Broadly, coastal regulation zone can be divided into 4 categories. They are CRZ-I (sensitive and inter tidal), CRZ- II (urban or developed), CRZ-III (rural or undeveloped), CRZ-IV (Andaman & Nicobar and Lakshadweep Islands).

Coastal pollution is a change in the physical, chemical and biological characteristics of water & sediments. It causes degradation of the natural quality of the coastal environments. It affects the health and survival of all forms of life ((Coastal Zone Management in India: An Environmental Law Perspective available at http://ssrn.com/abstract=1692296)). The National Environmental Policy, 2006 also mentions that “Development activities in the coastal areas are regulated by means of the Coastal Regulation Zone notifications and Integrated Coastal Zone Management (ICZM) plans made under them. However, there is need to ensure that the regulations are firmly founded on scientific principles, including the physical, natural, and social sciences. This is necessary to ensure effective protection to valuable coastal environmental resources, without unnecessarily impeding livelihoods, or legitimate coastal economic activity, or settlements, or infrastructure development. Islands offer unique ecosystems and coastal planning and regulation in their case needs to take into account features such as their geological nature, settlement patterns, volcanic or coral nature of the island, size of the habitations, unique cultures, livelihood patterns, etc ((Available at  http://www.envfor.nic.in/nep/nep2006e.pdf.)).

Journey from 1991 notification to 2011 notification

The notification has undergone a huge change in 2 decades. In order to understand the present relations it is pertinent to first analyze the 1991 notification. Flaws of notification issued by the Ministry of Environment and Forests regarding Coastal Regulation Zone (CRZ) on 19.2.1991 under the Environment (Protection) Act, 1986 ((Frequently Asked Questions on the Coastal Regulation Zone Notification, 2011 and Island Protection Zone Notification, 2011.)):

  • It stipulated uniform regulations for the entire Indian coastline ((It includes 5500 Km coastline of the mainland and 2000 Km of coastline of the islands of Andaman & Nicobar and Lakshadweep)). It therefore, failed to take into account that the Indian coastline is highly diverse in terms of biodiversity, hydrodynamic conditions, and demographic patterns, and natural resources, geomorphologic and geological features.
  • In the 1991 Notification, no clear procedure for obtaining CRZ clearance was laid down and no time lines stipulated. Furthermore, there was no format given for the submission of clearance applications.
  • It also did not provide a post clearance monitoring mechanism or a clear cut enforcement mechanism to check violations.
  • It sought to regulate all developmental activities in the inter-tidal area and within 500 metres on the landward side. No concrete steps were indicated in the 1991 Notification with regard to the pollution emanating from land based activities.

In order to correct the above flaws 2011 notification was issued. The main objective of 2011 notification is to ensure livelihood security to the fisher communities and other local communities, living in the coastal areas, to conserve and protect coastal stretches, its unique environment and its marine area and to promote development through sustainable manner based on scientific principles ((S.O.19(E).- whereas a draft notification under sub-section (1) of section and clause (V) of subsection (2) of section 3 of the Environment (Protection) Act, 1986 was issued inviting objections and suggestions for the declaration of coastal stretches as Coastal Regulation Zone and imposing restrictions on industries, operations and processes in the CRZ was published vide S.O.No.2291 (E),dated 15th September, 2010.)).

Changes made in 1991 notification

  • The CRZ Notification, 2011 lays out the method and the time frame in which actions shall be taken against any violations of the Notification. The CZMAs at the State level and the NCZMA, at the Central level shall be strengthened in a time bound manner and their capacities enhanced by MoEF for effectively enforcing the Notification ((Supra note 9)).
  • To ensure transparency in the working of the CZMAs, the Coastal Zone Management Authority has to create a website and post on such website the agendas, minutes, decision taken, clearance letters, violations, action taken, court cases etc. including the CZMPs. Such provisions were not provided for in the CRZ Notification, 1991 ((Id.)).
  • No more SEZ projects in Coastal Regulation Zone area will be allowed.
  • The provisions pertaining to the regulation of Andaman & Nicobar and Lakshadweep have been dropped and in view of the specific geographical issues, environmental sensitivity and to meet the needs of the islanders, a separate Notification has been issued called IPZ Notification ((Id.)).

It is also to be noted that no restrictions are being imposed on any fishing activities and allied activities of the traditional fishing communities in this area. Special provisions have also been incorporated for the fishermen communities living in sensitive areas.

Recently, in the Himmatbhai case, it was said that Corporation assuming for a moment that the land falls within the Coastal Regulation Zone, then in such circumstances, the regulations restrict certain type of usage, but does not restrict the disposal of the land by its owner by way of sale, gift or lease ((Himmatbhai  Bhimjibhai  Menia v. By on 30 July, 2013 the High Court of Gujarat at Ahmedabad writ petition (PIL) no. 130 of 2011.)). In other cases also importance is being given to coastal regulation zone and it is vehemently contended that judiciary tend to protect these zone from unnecessary interruptions. Some of the cases are The Goa Foundation and Others v. The North Goa Planning ((The Goa Foundation and Others v. The North Goa Planning, AIR 1995 Bom 342)), Susetha v. The Union of India ((Susetha v. The Union of India, Writ Petition No.30725 of 2008.)).

Conclusion and recommendations

The major shortcoming of costal regulation zone notification is that instead of restricting and limiting the activities in the CRZ, in a way it is legitimizing the activities. Now even atomic reactors and stilt bridges are operated in these areas. It has also been stated that India’s beaches are now facing an imminent danger of disappearing as result of many factors ((Available at http://www.ndtv.com/convergence/ndtv/new/NDTV-Show-Special.aspx?ID=169.)).

The best way to tackle the situation is to first create public awareness and then set standards. Strict implementation of Laws related to prevention of coastal zones should be done. In order to conserve & guard the coastal environment Judiciously, scientific knowledge on all aspects of pollution is essential. Addressing all the concern of people depending on coastal zones for their livelihood is of prime importance.

 Harekrishna Debnath, chairperson, the National Fish- workers’ Forum rightly pointed out “The CRZ should not just be a matter of notification, it should be a matter for discussion, and full public debate in the coastal state assemblies and the Parliament should be done, before a comprehensive legislation is enacted ((Sebastian Mathew, Coastal Management Zone: Implications for Fishing Communities, Economic and Political Weekly, Vol. 43, No. 25 (Jun. 21 – 27, 2008) available at http://www.jstor.org/stable/40277582.)).”

A Greener Assessment for a Sustainable Future: Introduction to Environment Impact Assessment

Akshay Shandilya, Research Associate

With the onset of First World War, rapid industrialization and urbanization in western countries was causing rapid loss of natural resource, which stretched to the period after the Second World War giving rise to concerns for pollution, quality of life and environmental stress. In early 1960s, investors and people realized that the projects they were undertaking were affecting the environment, resources, raw materials and people. As a result, pressure groups formed with the objective of achieving a tool that can be used to safeguard the environment in any development process. Countries in order to respond to this issue started enacting legislations on environment protection. Furthermore, countries devised a method known as Environmental Impact Assessment (EIA) which became an official tool to protect the environment ((Pacifica F. Achieng Ogola Environmental Impact Assessment General Procedures, Presented at Short Course II on Surface Exploration for Geothermal Resources, November 2007, http://www.os.is/gogn/unu-gtp-sc/UNU-GTP-SC-05-28.pdf.)). EIA is a statutory procedure in which the environmental impacts of a project are determined. The assessment is the responsibility of the party implementing the project ((What is EIA, Posiva, http://www.posiva.fi/en/nuclear_waste_management/required_permissions_and_procedures/environmental_impact_assessment_procedure/what_is_eia.)). The basic objectives on which the EIA focuses are-

  1. Human health, living conditions and comfort.
  2. Soil, water, air, climate, vegetation, organisms, their mutual interaction, and biodiversity.
  3. Community structure, buildings, landscape, townscape and cultural heritage utilization of natural resources ((Id.)).

The Early Origins

The phrase ‘Environmental Impact Assessment’ comes from Section 102(2) of the National Environmental Policy Act (NEPA), 1969, of the United States of America. Some rudiments of EIA are implicit even in early examples of environmental legislation. The concept of EIA which came of lately was not readily understood and accepted as a tool in developing countries. In a nutshell, EIA was considered just another bureaucratic stumbling block in the path of development. Earlier with the introduction of new projects the primary focus was based only on one criterion i.e. economic viability. But due to increase in environmental and social impact, they have become an important yardstick.

The Indian Chapter

In India, the environmental revolution formally started with the participation of late Smt. India Gandhi in the UN Conference on Human Environment in Stockholm in 1972. A National Committee on Environmental Planning & Coordination (NCEPC) was established to be the apex body in the Department of Science and Technology. The term ‘Environment’ figured for the first time in the Fourth Five Year Plan (1969-74) which recorded that ‘harmonious development is possible only on the basis of a comprehensive appraisal of environmental issues ((Manu and Anshu Environmental Impact Assessment,  UEMRI-India, http://www.gdrc.org/uem/eia.html.)).’ By means of this notable cognizance India became one of the few countries which took environment protection seriously at a time when industries were expanding exponentially. It started in 1976-77 when the Planning Commission asked the Department of Science and Technology to examine the river-valley projects from an environmental angle. On January 27, 1994, the Union Ministry of Environment and Forests (MoEF) under the Environmental (Protection) Act 1986 promulgated an EIA notification making Environmental Clearance (EC) mandatory for expansion or modernization of any activity or for setting up new projects listed in Schedule 1 of the notification. Since then there have been 12 amendments made in the EIA notification of 1994 ((Understanding EIA, Centre for Science and Development, http://www.cseindia.org/node/383.)). EIA notifications 2006 states-

Construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the schedule to the notification entailing capacity addition with change in the process or technology shall be undertaken in any part of India only after the prior environmental clearance from the Central Government or by State Level Environment Impact Assessment Authority ((Environment Impact Notification 2006, Gazette of India, September 14, 2006, envfor.nic.in/legis/eia/so1533.pdf.)).

Objective and Applicability of EIA

The familiar objective of EIA notifications, 2006 is the control of development of industrial activities following the principles of sustainable development.

Its applicability can be seen in various areas such as-

  1. Mining extraction of natural resources and power generation.
  2. Primary Processing.
  3. Materials production. (Cement plant).
  4. Materials processing (Petroleum refinery industry).
  5. Manufacturing/Fabrication (Comical fertilizers).
  6. Services Sector (Oil and gas transportation pipeline).
  7. Building/Construction Projects/Area development Projects and Townships ((Aagati Consulting Environment Impact Assesment in India, Aagati Consulting, April 10, 2012, http://www.AagatiConsulting/environmental-impact-assessment-in-india-aagati-consulting-12334280.)).

The EIA Process in India

The most important step in the process of obtaining environmental clearance under the EIA notification is for the project proponent to conduct an environmental impact assessment of the project. The steps of EIA process are-

  1. Screening– The screening is the first and simplest tier in project evaluation. Screening helps to clear those types of projects, which from past experience are not likely to cause significant environmental problems.
  2. Scoping– The first task of the EIA study team is scoping the EIA. The aim of scoping is to ensure that the study address all the issues of importance to the decision makers. Then the study team elects primary impacts for the EIA to focus upon expanding on the basis of magnitude, geographical extent, significance to decision makers or because the realist special locally (e.g. soil erosion on, the presence of an endangered spices, or a nearby historical sites) or is an eco-sensitive area ((Aruna Murthy & Himansu Sekhar Patra, Environment Impact Assessment Process in India and the Drawbacks,  September 2005, http://www.freewebs.com/epgorissa/ENVIRONMENT%20IMPACT%20ASSESSMENT%20PROCESS%20IN%20INDIA%20AND%20THE%20DRAWBACKS-1.pdf.)).
  3. Impact analysis– This stage of EIA identifies and predicts the likely environmental and social impact of the proposed project and evaluates the significance.
  4. Mitigation– In this phase the study team formally analyses mitigation. A wide range of measures re proposed to prevent, reduce, remedy or compensate for each of the adverse impacts evaluated as significant ((Id.)).
  5. Accountability– The decision makers are responsible to all parties for their action and decisions under the assessment process.
  6. Cost Effectiveness– The assessment process and its outcomes will ensure environmental protection at the least cost to the society ((Environmental Impact Assessment Principles and Process, Economic and Social Commission for Asia and the Pacific, October 30, 2003, http://www.unescap.org/drpad/vc/orientation/m8_1.htm.)).
  7. Evaluation– It is so called because it evaluates the predicated adverse impacts to determine whether they are significant enough to warrant mitigation.
  8. Documentation– In this last step of EIA processes the key decision makers will provide straight forward answers for easy interpretation in relation to their decision making. Successful EIA documentation is more readily produced if the audience and their needs are established at the start of EIA and then made to affect how the research is focused and reported.

Limitations in India

EIA generates huge benefits in selection of project location, process, design, development actions, and decision-making; however, in the current practice of EIA there are a number of flaws, shortcomings and deficiencies. There are many reasons behind the poor quality of EIA reports, but one major cause stems from the simple fact that too many EIA reports are prepared with limited environmental information and data. As noted by the World Bank (2012), “the need for vast numbers of EIAs coupled with an absence of baseline environmental data resulted in mass production of EIAs of poor quality and little value ((John Kakonge Improving Environmental Impact Assessment (EIA) Effectiveness: Some Reflections, Global Policy, (March 5, 2013), http://www.globalpolicyjournal.com/blog/05/03/2013/improving-environmental-impact-assessment-eia-effectiveness-some-reflections.)). The Limitations to EIA in India re enumerated below:

  1. The EIA taken should be at policy and planning level rather than the project level.
  2. Possible alternatives are often small.
  3. There are no criteria to decide what types of projects undergo EIA, because many projects do not require in depth EIA.
  4. Lack of comprehensive environmental information, base limitations of time, manpower, financial resources.
  5. More research and development of improved methodologies required to overcome limitations relating in data.
  6. EIA report too academic, bureaucratic and lengthy therefore difficult to understand for common people.
  7. In actuality, EIA immediately ends after project clearance, no follow up taken ((Bibhabasu Mohanty, Environment Impact Assessment, SlideShare, (October 21, 2012), http://www.slideshare.net/bibhabasumohanty/environmental-impact-assessment-m5)).

Reassessing the Assessment

Environmental Impact Assessment is a tool used to identify the economic, social and environmental impacts of project prior to decision making in India context. Even after through deliberation the big picture about the water, forest, agriculture sectors and their sustainability challenges in the Indian Himalayan states still remains a problem ((Indian Himalayan Youth Summit Concludes, Nagaland Post, (September 25, 2013), http://www.nagalandpost.com/ChannelNews/State/StateNews.aspx?news=TkVXUzEwMDA0NjE0NQ%3D%3D-fyOC9YgOaP0%3D.)). This is due to faulty Indian practice of project level Environmental Impact Assessment for extensive hydropower development. Site inspection says the state government should carry out basin wide EIAs for all river basins and until those are finalized no more hydel projects should be allotted in those places. Construction of operation of small hydropower projects can lead to other significant impacts such as deforestation, soil erosion, biodiversity loss and disturbances of groundwater regimes.

Strategic Environmental Assessment has the potential to address the urgent problem of cumulative impacts and would allow for examination of strategic alternatives. In India, even the limited and flawed safeguards offered by the environmental clearance procedure have now been diluted through recent changes. The EIA Notification of September 2006 puts enormous discretion in the hands of authorities; they can now do away with a public hearing that was earlier mandatory. The right of participation in the hearing has also been restricted to “local people ((Shripad Dharmadhikary, Mountains of Concrete: Dam Building in the Himalayas, International Rivers, 4 (2008), http://www.internationalrivers.org/files/attached-files/ir_himalayas.pdf.)).” India has only limited experience in it and in case of hydropower planning its almost missing. This is happening due to inadequacy of EIA regulation in addressing significant environmental aspects on the other hand SEA could play a major role in closing knowledge gaps regarding cumulative and basin effects and making the due consideration of environmental aspects an integral part of decision making ((Ravinder Makhaik Himachal’s vanishing rivers, damaging original habitats – German study, (October 9, 2013) http://hillpost.in/2013/10/himachals-vanishing-rivers-damaging-original-habitats-german-study/96458.)).

Nonetheless EIA is playing a crucial role in all future decisions upon the development of areas between flow principle, that is based on an equilibrium of material and energy and financial input output for improving the quality of life including ecological, cultural, political, institutional, social and economic components without leaving a burden on the future generations.

Noise Pollution: Newest form of Environmental Contamination

Akshay Shandilya, Research Associate

“A day will come man will have to fight merciless noise as the worst enemy of health” – Robert Koch ((Nobel Prize Winner, German Bacteriologist)).

Ever felt like murdering your neighbour for blasting music too loud? That is exactly what 78-year-old Lykouresis did in Greece on 31st may 1996. He claimed he had complained to his neighbour for months and only wanted to listen to evening news in peace. He is now locked up in high security prison. This is an extreme example of the lengths to which some people will go for a little peace and quiet. It is a sad testimony to the devastating effects of one of the world’s most pervasive yet least publicized environmental problem “Noise Pollution”, the presence of intrusive and unwanted sounds. Noise is an important environmental pollutant like noxious gases that befoul our air, water and soil. In India, the problem of noise pollution is wide spread. Several studies report that noise level in metropolitan cities exceeds specified standard limits. It is responsible for rising incidence of deafness among the inhabitants. The noise pollution is not a unique problem for developing countries like India only. The worrisome effects of noise are dangerous enough that noise problem is considered next to crime by certain countries. Several initiatives have been taken by various countries to check the noise level.

Noise Pollution: Meaning and Concept

The word noise is derived from the Latin word “nausea” which means “sound which is undesirable by recipient ((Report of the committee on the problem of noise, Wilson Committee, U.K. 1963)).” It is defined as “unwanted sound, a potential hazard to health and communication dumped into the environment without regard to the adverse effect it may have on unwilling ears ((B.R. Jindal, K.L. Toky and P.S. Jaswal, Environmeental Studies, 160 (1998); In Re Noise Pollution, (2005) 5 SCC 733)).” Noise has also been defined by various encyclopedias as a mixture of many tones combined to a non musical manner ((Encyclopedia Brittanica, Vol. 16 at 556 (1968).))and also as unwanted sound or a sound which is by circumstances, disturbing ((Encyclopedia Americana, 400 (1969).)). But it is difficult to categorise “noise” in any of such categories as defined by EPA, 1986 ((Environment Protection Act, 1986, § 2(b)-(c).)). It appears as a separate category in the series of the pollution causing agents owing its origin as a byproduct of industrialization, urbanization and modern civilization.

The World Health Organization has fixed 45dB as the safe noise level for a city ((See, What is Noise Pollution, http://www.papatoto.com/article/197678576813/What_is_Noise_Pollution, accessed on October 12, 2013.)), though for four metropolitan cities of Bombay, New Delhi, Calcutta and Madras have usually registered more than 90 dB and Bombay has been rated as the third noisiest city in the world closely followed by New Delhi. By the international standards, a noise level up to 65 dB is considered tolerable ((See, Bijayanand Patra v. District Magistrate, Cuttack; AIR 2000 Ori 70 at 75.)).

Causes of Noise Pollution

In India, the problem caused by noise pollution is more aggravated in view of the fact that there is hardly any celebration, festival, marriage or religious function, where there is no use of loud speakers at a very high pitch continuously for a long time ((See Vijayalakshmi, Dr. (Miss) K.S. “Noise Pollution” in Martin J. Bunch, V. Madha Suresh and T. Vasantha Kumaran, eds., Proceedings of the Third International Conference on Environment and Health, Chennai, India, 15-17 December, 2003. Chennai: Department of Geography, University of Madras and Faculty of Environmental Studies, York University pp. 597 – 603.)). These sources of noise pollution can be categorized basically into two categories, i.e. industrial and non- industrial. The industrial source includes the noise from various industries and big machines working at very high noise intensity. Non industrial source of noise includes the noise created by transport/ vehicular traffic for example screeching tyres, squealing brakes, screaming sirens, and blasting horns and neighbourhood noise generated by various household electric, electronics and other gazettes like blaring televisions and radios. The cause of noise pollution can also be divided into categories, namely, natural and manmade ((This has been quoted with approval by the Supreme Court in the case of Noise Pollution (V), In Re, (2005) 5 SCC 733 at 751.)).

Control of Noise Pollution: The Legal Measures Available

It is well settled by repeated pronouncements of the Supreme Court that right to life enshrined in Article 21 is not of mere survival or existence. It guarantees a right of persons to life with human dignity. Anyone who wishes to live in peace, comfort and quiet within his house has a right to prevent the noise as pollutant reaching him.

In State of Rajasthan v. G. Chawla ((AIR 1959 SC 544))Supreme Court held that the States have right to control loud noises when the rights of such user, in disregard to the comfort and obligations to others, emerges as manifest nuisance to them. The Court further made it clear that persons are free to make noise but not to transgress the rights of others to live peacefully. In PA Jacob v. Supdt. of Police, Kottayam ((AIR 1993 Ker 1)), the Kerala HC declared “Article 21 guarantees freedom from tormenting sounds, which is negatively the right to be let alone, is positively the right to be free from noise. Thus, ‘compulsory exposure of unwilling persons to dangerous and disastrous levels of noise, would amount to a clear infringement of their constitutional guarantee of right to life under Article 21.”

  1. 1.      Under Law of Torts

Under the law of Torts if noise affects the person’s comforts then it would amount to nuisance, which is actionable. It is not necessary that there has been any injury to health. The law relating to nuisance caused by noise has been beautifully summarized in Dhannna Lal v. Chittar Singh ((AIR 1959 MP 240.))as constant noise, if abnormal or unusual, can be actionable nuisance if it interferes with one’s physical comforts.

  1. 2.      Under Indian Penal Code

Noise is considered as public nuisance under Sec 268 of the Indian Penal Code, 1860 ((Sec 268 of the IPC provides: “A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to the persons who may have the occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage.”))and thus there is a criminal liability of a person relating to his illegal omission resulting in common injury, danger or annoyance to the people in general. In Kirori Mal Bishambhar Dayal v. State ((AIR 1958 P&H 11)), Bhandari C.J. held “Even a lawful trade would become a nuisance if it interferes with the comfort and enjoyment of the neighbour.” For example the playing of radio at reasonably moderate velocity is tolerable but not at a high velocity which is certainly objected to by man of ordinary prudence ((Ivour Hyden v. State of A.P. 1984 Cri LJ 16 (NOC).)). Also in common law countries, noise which causes annoyance to public at large may be designated as nuisance ((Corpus Juris Scundum, Vol. 66 (1950), p.578)).

  1. 3.      Under the Code of Criminal Procedure, 1973

The provisions of the Criminal Procedure Code of 1973 can also be invoked to prevent the pollution of almost all the kinds including noise pollution. Under Sec 133 of the Cr.PC, the District Magistrates or the Sub Divisional Magistrates have been empowered to make conditional orders requiring the person causing nuisance to remove such nuisance ((George (Dr) v. State of Kerala, AIR 1985 Ker 24)). In Phiraya Mal v. Emperor (((1904) 1 Cri LJ 513 (Lah).)), a factory was working day and night, thereby causing sufficient noise to annoy the inhabitants of the locality, was ordered to be closed by the court immediately under Sec133 of the Cr.PC.

Statutory Measures to Control Noise Pollution

The Central Gov. has enacted the Environment (Protection) Rules, 1986, which provide for the maximum allowable limits of various environmental pollutants including noise. Entry 89 of Schedule- I of the Environment (Protection) Rules provides the noise standards for fire crackers which is nowadays a very serious cause of noise pollution.

The Central Gov. in exercise of its powers under clause(ii) of sub section (2) of sec 3, sub section (1) and clause (b) of Sub section (2) of sec 6 and section 25 of the Environment (Protection) Act, 1986 read with Pollution (Regulation and Control) Rules, 1986, enacted the Noise Pollution (Regulation and Control) Rules, 2000. The said Rules came into force on July 14, 2000. These Rules were amended by the Noise Pollution (Regulation and Control) (Amendment) Rules, 2000.

Section 30(4) of the Police Act, 1861 covers the problems of noise arising from music, which is one of the aspects of noise pollution. Under this provision, the Superintendents of Police are authorized to regulate the extent to which music may be used in streets on occasions of festivals and ceremonies.

By the 1987 Amendment of the Air (Prevention and Control of Pollution) Act, 1981, the definition of “air pollutant” was expanded to include noise. Noise pollution can be controlled by various provisions of the Act. Under sec 16(2) (b) of the Act, it is the function of the Central Pollution Control Board to plan and cause to be executed a nationwide program for the prevention, control or abatement of air pollution. Under Sec 16 (2) (h), the CPCB can lay down standards for the quality of air and thus, it can lay down noise standards as well.

Third Schedule of the Factories Act, 1948 contains a list of noticeable diseases including those of hearing loss caused by noise. Entry 22 of the Schedule deals with ‘noise induced hearing loss.’ Under Sec 89 of the Act, it is the duty of the manager and medical practitioner of the factory to report the matter to the authorities in case of any person working in the factory contacts any disease specified in the Third Schedule. Further, the provisions of Chapter-IV of the factories Act, 1948, which relate to health hazards and problem of environmental pollution in industries can also be used for controlling the industrial noise.

Shortcomings

The issue of noise pollution in India has not been taken so far with that seriousness as it ought to have been. There are several shortcomings even after enactment of so many laws and provisions which need to be discussed and resolved in due course of time. The first and foremost among them is the inefficiency of the Statutes and the Rules framed. They are not comprehensive enough so as to deal with all problems of the noise pollution. Additional to it is the implementation of noise control laws because of lack of will on the part of the Executives. Also there is a lack of infrastructure essential for attaining the enforcement of these laws. The authorities responsible for implementing the laws are not yet identified. Those which have been designated do not seem to be specialized in the task of regulating noise pollution. There is lack of proper gadgets and equipments and other infrastructure such as labs for measuring the noise level ((See, Noise Pollution (V), In Re, (2005) 5 SCC 733; See also, Farhd K. Wadia v. Union of India, (2009) 2 SCC 442)). Contributory to it, there is lack of requisite awareness on the part of the citizens. They are not fully aware about the deleterious effects of noise pollution and accept it as a part of their lives.

Public Hearing: A Potent Tool in The Process of Environmental Protection

Anshu Bansal, Research Associate

Public Hearing provides wherever necessary, social acceptability to a project and also gives an opportunity to the EAC to get information about a project that may not be disclosed to it or may be concealed by the project proponent ((Samarth Trust v. Union of India & Ors., Writ Petition (Civil) No. 9317 of 2009.)).

A public hearing is a form of participatory justice giving a voice to the voiceless (particularly to those who have no immediate access to courts) and a place and occasion to them to express their views with regard to a project. Participatory justice is in the nature of a Jan Sunwai where the community is the jury ((Id.)). In the Environmental Impact Assessment Notification 2006 which is issued under the provisions of the Environment (Protection) Act, 1986, public hearing was mandatorily required.

Public hearings remain the most common form of face-to-face public involvement in spite of nearly universal criticism of their ability to provide meaningful participation. EPA convenes hundreds of hearings per year ((Fiorino, 1990, p. 230))this system of public hearing was introduced from 1994 based on the broad principle that bodies, like the Pollution Control Boards, entrusted with the power of enforcement of pollution control laws should not arbitrarily exercise such power without first hearing the persons who are likely to be affected by the proposed project ((AR. Lakshrnanan, THOUGHTS ON ENVIRONMENTAL PUBLIC HEARINGS,17 Student B. Rev 1 2005)).

The conduct of public hearings ensures that the public, particularly those likely to be affected by the industrial activity, get a chance to obtain the right information about the project ((Id.)). A proper hearing, according to Lord Denning, must always include a “fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view ((Kanda v. Government of the Federation of Malaya, [1962] AtG 322 (per Denning, LJ. citing approvingly from R v. Hendon Rural District Council ex parte Chorley, [1922] 2 K.B. 696).)).” The authority responsible for conducting the public hearing will have to consider all the objections raised by the public.  Fairness demands that the public authority consider only the relevant factors and ignore the irrelevant ones ((Associated Provincial Corporation Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223, for a discussion of the rights and powers of administrative bodies.)).

Environmental Impact Assessment cannot be carried out properly without proper public consultation. Local person who are going to get affected and interested parties are needed to be consulted.  Public consultation process comprises of two parts. The first part being Public Hearing and the second part is submission of written representations. The main purpose behind such public hearing is to have necessary implication of carrying out the project.

According to the EIA Notification 2006-

“Public Consultation” refers to the process by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity are ascertained with a view to taking into account all the material concerns in the project or activity design as appropriate.

Several international instruments recognize environmental human rights including the right to public participation in environmental matters. Ukraine has made significant efforts to implement and enforce these rights. Current practice however, reveals certain weaknesses and obstacles in respect to the right to participate in environmental decision-making ((Andriy Andrusevych, The Right To Public Participation In Environmental  decision-Making In Ukraine: Challenges Of Compliance,2 Hum. Rts. & Int’l Legal Discourse 211 2008.)).

How the public hearing is carried out

It provides platform for voicing concern of the public on the environment and other implications of the proposed project. Also, detailed scrutiny of the minutes of the public hearing is also done. During the process, the Expert Appraisal Committee has to give categorical reasons as to how the objections raised by the public have been taken care of by the Project Proponent ((As per the order of the High Court of Delhi in Utkarsh Mandal v. Union of India & Ors. W.P. (C) No.  9340/2009 dated 26.11.2009 available on the website of the High Court of Delhi at http://lobis.nic.in/dhc/SMD/judgement/30-11-2009/SMD26112009CW93402009.pdf.)). The committee hears the objections/suggestions from the public and concerns expressed shall be recorded by the representative of the PCB, the minutes of hearing shall be signed by the district magistrate or his or her representative on the same day and forwarded to the PCB concerned ((Available at http://www.gpcb.gov.in/public-hearing-2011.htm)).

Steps involved in public hearing ((Available at http://www.ercindia.org/files/PH-Book-NEW.pdf.)):

  • Attendance of persons attending the Hearing has to be marked.
  • Presentation on the proposed project by the Proponent.
  • Reading out of the Summary EIA Report by the Project proponent.
  • Expression of views and concerns by the Public.
  • Reading of the proceedings in Vernacular language to the public present.
  • Summary of proceedings recording accurately the views and concerns rose.
  • Clarification by project proponent to the queries raised by the public

Prior Environmental Clearance

For certain categories of project, prior environmental clearance is mandatory. Without the prior Environmental Clearance, a project proponent cannot undertake any activity related to the Project. As far as prior environment clearance is concerned, the project is divided into two categories: this categorisation is based on impact the activity is going to cause to the environment and also on people ((For further details on the categorisation of Projects under the EIA Notification, please refer to the Schedule to the EIA Notification available on the website of the Ministry of Environment and Forests at http://www.envfor.nic.in/legis/eia/so1533.pdf.)).

  • Category A: It  require a prior environmental clearance from the Ministry of Environment and Forests i.e. environmental clearance has to be obtained prior to any work commencing at the place.
  • Category B projects require a prior environmental clearance from the State Environment Impact Assessment Authority (SEIAA). Some of the Category B projects do not require an EIA report ((For further details on Projects for which Public Hearing need not be held, please refer to Para 7 (i), Stage III Public Consultation of the EIA Notification, 2006.)).

Is Public Hearing limited only to ‘environmental impacts’ on proposed project?

As the purpose is specified, it is only intended to look into pros and cons of the proposed project. But, the word ‘environment’ is to be interpreted broadly and issues concerning the social as well as economic (including livelihood) impacts are part of EIA studies ((Appendix III, S.No. 7 of the EIA Notification, 2006)).

Supreme Court of Judicature of Jamaica in The Northern Jamaica Conservation Association v. The Natural Resources Conservation Authority ((Claim No. Hcv 3022 Of 2005))argued that a public hearing was a must for grant of environmental clearance. In a case it was said that as there was no public hearing in this case and there was inadequate EIA before the grant of the environmental clearance for the plant of the appellants, the High Court has rightly directed closure of the plant of the appellants ((Sterlite Industries (I) Ltd. Etc. … Vs Union Of India And Ors. Etc. Etc. On 2 April, 2013)).

Conclusion and Recommendation

Citizens have a strong desire to enjoy clean air and water free from toxic chemicals. Now more than ever, people concerned with environmental quality are seeking to influence governmental decisions by participating in the permitting process ((Lvmar C_ Welch, New Approaches To Public Participation in environmental Decisions  22 Del. Law. 15 2004-2005)). Public workshops and hearings should be part of an overall process that gives the public more opportunities for becoming informed and involved ((Id.)).

It also allows people to articulate their views about the propose project. I addition to this, it also bring into light hidden issues. After giving every party an opportunity to express their respective concern, conflict are resolved. The problem generally faced during the public hearing process is an inability of the affected communities to easily understand the project. Hence, it is required that in the first place, the interested people especially those from the village community should be facilitated with the kitty- gritties of project so that later on no conflicts should arise with regard to project implementation, acceptability and sustainability.

The Indian Eco-labelling Scheme: Ecomark

Nivedita Saxena, Research Associate

‘Eco-labelling’ is a voluntary method of environmental performance certification and labelling that is practised around the world. The article describes the Indian ecolabelling scheme- ECOMARK. Ecomark is a voluntary non-binding eco-labelling scheme which was constituted by the Government of India in 1991 for easy identification of environment- friendly consumer products.  The ecomark scheme was introduced way ahead of its time and therefore did not yield the expected results. The article presents the working structure and evaluation criteria for products under the scheme, along with the reasons for its failure in Indian context. Also at the end, recommendations from various scholars are mentioned for the better furtherance of the scheme.

Concept of Ecolabelling

‘Ecolabelling’ is a voluntary method of environmental performance certification and labelling that is practised around the world. An ‘ecolabel’ is a label which identifies overall, proven environmental preference of a product or service within a specific product/ service category ((Definitions by Global Ecolabelling Network, Central Pollution control board is a member of  GEN, Available at http://www.globalecolabelling.net/what_is_ecolabelling/index.htm)). They are used to identify the overall environmental preference of a product or a service.

Many manufacturers and service providers themselves adopt different types of ‘green’ symbols that lack authenticity and credibility. In contrast, an ecolabel is awarded by an impartial third- party in relation to certain products or services that are independently determined to meet environmental criteria. Ecolabelling was first introduced in 1977 by Germany through the Blue Angel Scheme, followed by Canada’s Environmental Choice Programme in 1988.

EcoMark Scheme

Ecomark is a voluntary non-binding eco- labelling scheme which was constituted by the Government of India in 1991 for easy identification of environment- friendly consumer products, to provide an incentive for manufacturers and importers to reduce adverse environmental impact of products & to reward genuine initiatives by companies to reduce adverse environmental impact of their products. The scheme also has objectives of assisting consumers to become environmentally responsible in their daily lives by providing information to take account of environmental factors in their purchase decisions, encouraging them to purchase products which have less harmful environmental impacts and thus ultimately improving the quality of the environment and encouraging the sustainable management of resources.  This made India the first among the developing countries to make an ecolabelling scheme a part of its environmental policy ((According to information available on http://www.blauer-engel.de/en/blauer_engel/whats_behind_it/national_eco-labels_worldwide.php)). The activism of the Minister of Environment and Forests, Maneka Gandhi in 1990-91 was one of the major factors behind constitution of the Scheme.

The scheme operates on a national basis and provide accreditation and labelling for household and other consumer products which meet certain environmental criteria along with quality requirements of the Indian Standards for the Product [quality requirements of Bureau of Indian Standards] ((Ministry of Environment & Forest, Department of Environment, Forest & Wildlife, Resolution, 20th February, 1991. Available at http://envfor.nic.in/legis/others/ecomark.html)). The label is awarded for a minimum period of one year and can roll forward annually. An earthen pot has been chosen as the logo for the Ecomark scheme in India ((For the symbolism of the logo refer to the Central Pollution Control Board website http://www.cpcb.nic.in/ecomark_logo.php)).

Operational Structure

The Ecomark scheme operated through a three-tier system-

  1. A steering committee ((For detailed functions and composition refer to 3.1.1 of the Department of Environment, Forest & Wildlife, Resolution, 20th February, 1991. Available at http://envfor.nic.in/legis/others/ecomark.html)), to determine the product coverage under the scheme
  2. A technical committee ((For detailed functions and composition refer to 3.1.2 of the Department of Environment, Forest & Wildlife, Resolution, 20th February, 1991. Available at http://envfor.nic.in/legis/others/ecomark.html)), to identify the specific product to be selected and the individual criteria to be adopted.
  3. The Bureau of Indian Standards ((For detailed functions refer to 3.1.3 of the Department of Environment, Forest & Wildlife, Resolution, 20th February, 1991. Available at http://envfor.nic.in/legis/others/ecomark.html)), to assess and certify the products and draw up contract with the manufacturers, allowing the use of the label, on payment of a fee.

Evaluation criteria

The products are to be examined in terms of the following main environmental impacts:

(a) That they have substantially less potential for pollution than other comparable products in production, usage and disposal.

(b) That they are recycled, recyclable, made from recycled products or biodegradable, where comparable products are not.

(c) That they make significant contribution to saving non-renewable resources, including non-renewable energy sources and natural resources, compared with comparable products.

(d) That the product must contribute to a reduction of the adverse primary criteria which has the highest environmental impact associated with the use of the product, and which will be specifically set for each of the product categories.

Any product which is made, use or disposed of in a way that significantly reduces the harm it would otherwise cause the environment could be considered as an Environment- Friendly product.  Thus any product with the Ecomark will be the right environmental choice for the consumers.

Product categories and Procedure for Grant of an ECOMARK

There are 16 product categories currently under the scheme including the likes of soaps, paper, cosmetics, batteries, leather etc. ((For the list of all the products notified by the Government of India and the application procedure refer http://www.cpcb.nic.in/criteria_ecomark.php)).  India is one of the few countries where foods are also Eco-Labelled ((According to information available on

http://www.blauer-engel.de/en/blauer_engel/whats_behind_it/national_eco-labels_worldwide.php. Last visited on)). The ecomark Scheme conflicts with some areas under the ‘Agmark’ Scheme for agricultural and allied commodities. The first Ecomark was given to a Godrej product ‘Ezee’ detergent in 1994. However, the company was taken over by another company which decided to discontinue the label usage considering it to be against their corporate philosophy ((According to article titled ‘Ecomark scheme finds few takers in industry’ by Shruti Srivastava in Bussiness Standard on August 16, 2007, Available at http://www.business-standard.com/article/economy-policy/ecomark-scheme-finds-few-takers-in-industry-107081601086_1.html)).

 The procedure for grant of a license by BIS under the Ecomark scheme is the same as that of grant of license by BIS under its own product Certification Marks scheme. Along with the application form a copy of the consent or environmental clearance certificate from the concerned State Pollution Control Board is also to be submitted. The inspection of every applicant’s production site by the implementing authority .i.e. the BIS was a unique feature of the Indian Scheme.

Reasons of Failure

In spite of the wide range of product categories, there were very limited applications for the Ecomark label. Currently only 12 manufacturers of various products have applied and got ecomark license ((According to the report on ‘Why was India’s Ecomark Scheme Unsuccessful?’ submitted to the Ministry of Environment and Forest (MoEF) in 2006 by Mr.Pradeep S Mehta, For reference See Annex I of the Report available at http://www.cuts-citee.org/pdf/RREPORT07-01.pdf)). The various reasons given for its failure are ((According to the report on ‘Why was India’s Ecomark Scheme Unsuccessful?’ submitted to the Ministry of Environment and Forest (MoEF) in 2006 by Mr.Pradeep S Mehta,  the Report is available at http://www.cuts-citee.org/pdf/RREPORT07-01.pdf also see Kopekar, S.S. & Raman, N.S., “ Ecomark Scheme as a Pre-requisite for strategic Environmental Assessment in India” Publishen in International Journal Of Pure and Applied Bioscience ISSN: 2320-7051, Available at http://www.ijpab.com/form/2013%20Volume%201,%20issue%204/IJPAB-2013-1-4-51-62.pdf)):

  1. Too much time was spend on developing product criteria across product categories and notifying the specification along with the corresponding ISI standards.
  2. Indian consumers are not aware about the concept of an eco-label; the scheme was launched way ahead of its time.
  3. There is no consumer demand for the products with an applied Ecomark. i.e. the mark itself gives no competitive advantage to the products. Indian consumer’s attitude is to ‘buy cheap’ rather than ‘buy green’. Without thee incentive of greater demand for products, a manufacturer will not apply for an Ecomark license.
  4. The scheme is a self- financing program, requiring manufacturers to pay for the application, testing, licensing fee and renewal costs involved in certification.
  5. The scheme is still heavily reliant on government organisations, as the majority of members of the committees represent government organisations. The scheme would always be an additional responsibility of the officials and not the sole responsibility.
  6. Due to transferability of government offices, there has been a lack of continuity of specialised officials on ecolabelling, thus the momentum of the scheme was adversely affected.
  7. Participation of the members responsible for the making of the scheme has been on a voluntary basis, which limits their accountability for taking the scheme forward.
  8. Within the Existing organisational structure, fixing accountability is difficult.
  9. No Political party in contemporary times has an agenda of pushing the eco mark scheme forward ((According to the report on ‘Why was India’s Ecomark Scheme Unsuccessful?’ submitted to the Ministry of Environment and Forest (MoEF) in 2006 by Mr.Pradeep S Mehta, For reference See Annex I of the Report available at http://www.cuts-citee.org/pdf/RREPORT07-01.pdf)). Most of the political leaders are indifferent towards the scheme and its future possibilities.
  10. The dual set of criteria to be met (Environmental + BIS) increases its complexity.

Recommendations

Few recommendations for taking the scheme further, as put forward by various scholars are as under:

  1.  there is a need for a new, independent board with an advisory structure comprising of consumer, environmental and business groups. Instead of multiple agencies, the overall responsibility for the Ecomark scheme should be entrusted to a single organisation.
  2. there should be a reduction and prioritisation of the number of selected product categories to be included under the Scheme.
  3. the product categories to be chosen should be based on certain measurable parameters such as maximum adverse environmental impact and high national consumption.
  4. there should be a system that determines whether to include new product categories under the Scheme in view of the environmental dynamics.
  5. The scheme needs to be made more dynamic and forward looking by periodic revision of criteria through wide stakeholder consultation.
  6. Domestic as well as international requirements need to be balances while setting a feasible criterion as the ecolabel can be used as  non-tariff barriers
  7. Effective National Awareness Campaign should be carried out to raise both consumer and industrial awareness and demand for the Ecomark.
  8. Creating a market for products with Ecomark by the use of the government’s procurement policies giving preference to products with Ecomark

Effect of Kyoto Protocol in Sustainable development

Existence and Effect of International Conventions dealing with Sustainable development With special reference to Kyoto Protocol

Shashank Sahay, Research Associate

International Law is defined as the law governing sovereign countries. It has also been called the law for the world community, since world today comprises of the community of mankind living in interdependent world society. Enormous changes in global communication, travel, migration of people and interdependent and liberal economic system has given a new dimension to the world society ((Paper presented at workshop on “Emerging Role of International Law” 8-9 January 2005 at Army Institute of Law, Mohali Co sponsored by Indian Society of International Law.)). The UN Declaration of Human Environment 1972 and subsequent declarations like the World Charter for Nature 1982, Rio Declaration on Environment 1992 and the Johannesburg Declaration 2002 on Sustainable Development provide the idea and program for the world order for man’s attitude nature and economic development. Environment protection and sustainable development are goals of modern economic philosophy. India has incorporated most of international environment laws contained in the 1972 UN Declaration on Human Environment in Environment Protection Act 1986 and Environment Protection Rules, 1986. Thereby it seems economic growth with sustainable development seems the goal of modern environmental law ((Prof. S Bhatt, International Environmental Law, A.P.H. Publishing Corporation, p. 25-26)).

Agenda 21, U.N. Conference in Environment and Development

At Rio de Janeiro, Brazil, 3- 14 June 1992 Agenda 21 was adopted which addresses the burning problem of today’s world. The agenda 21 contains development and environmental objectives for purpose of substantial development. In order to cover incremental costs for the actions the developing countries have to undertake to deal with global environmental problems and to speed up works on sustainable development.

International Commitments under Agenda 21 of U.N. Conference on Environmental and Development held in June 1992

The Following subject concerns bilateral, multilateral and universal treaty :-

        i.            Further development of international law relating to sustainable development giving proper balance between environment and developmental;

      ii.            The need for framing international instruments by taking into consideration the special needs for developing countries;

    iii.            The international instrument to regulate and promote the global participation in the matter of environment and economic trade/ development;

    iv.            Technical assistance to the developing countries, with the view to entrance its legislative capabilities

      v.            Codification of international Law to accelerate sustainable development, and setting up of International Law Commission ((Available at http://sustainabledevelopment.un.org/content/documents/Agenda21.pdf)).

Special Objectives under Agenda 21

There are special objectives under Agenda 21 of U.N Conference on Environment and Development held at Rio de Janeiro, Brazil. These are as follows:-

        i.            Address and discuss the difficulties which prevent environmental and economic development.;

      ii.            The whole world is summoned to set priorities for future law making on sustainable development at global, regional and national levels;

    iii.            Effective participation of all countries in respect of international sustainable development programs;

    iv.            Gradual development of international law, instruments, negotiations and agreements to match the international standards;

      v.            Ensure transparency in the use of trade measures related to environment ;

    vi.            Ensure effective and prompt review system regarding international agreement, negotiations concerning the developing countries;

  vii.            Effective institution for implementation of unilateral, bilateral and multilateral agreements relating to trade and environment;

  1. Effective settlements of disputes

    ix.            Promote and encourage the General Agreement on Trade and Tariff (GATT) and United Nations Conference on Trade and Development (UNCAD).

It is submitted that the Agenda 21 of U.N. Conference on Environment and Development, 1992 insist upon a new global partnership, effective participation of the developing countries, codification of the International law, so that sustainable development can be achieved. Until, the International Cooperation and assistance rendered by the developed countries, the problems of downtrodden countries withhold the committed sustainable development ((Dr. S.C. Tripathi, Environmental Law, Central Law Publication, p. 464)).

Kyoto Protocol

This English Conference of the Parties Third Session Kyoto was held from 1st to 10th December, 1997. The parties to this protocol were parties to the United Nations Framework convention on Climate Change. In pursuit of ultimate objective of the convention as stated in its article 2, recalling the provisions of the conventions, being guided by Article 3 of the Convention pursuant to Berlin mandate adopted various measures in dealing with the current environmental problems ranging from its provisions as stated in  Article 1 to Article 27 that includes Quantified Emission Limitation, Parties to control Emissions, Jointly fulfillment of commitments, Estimation of Emission System, Submission of Annual Information, Expert Body to consider implementation of measures, Developed Countries to Provide assistance, etc ((Ibid pg 469)).

Kyoto Protocol Effect

The Kyoto Protocol, the world’s most far reaching environmental treaty took effect on 16th February. 2005 with 34 industrial countries legally bound to slash pollution causing global warming.                    Notably, the treaty took effect at midnight at U.N headquarters in New York. The Treaty required industrial countries as a whole to cut carbon- di- oxide gas emissions by 5.2% before 2012 compared with their 1990 levels, with targets set individually for each nation. Australia is the only major industrial country which has rejected Kyoto. Australia and Unites States together amount for about 30% of global green house gas pollution. After U.S withdrawal, Kyoto could not come into effect until ratification in 2004 by Russia which ensured that an adequate percentage of industrialized nation’s pollution produce were on board.

Meanwhile, U.N Environment Program warned that the effects of climate change may lead to Earth spinning out of control and urged immediate steps to halt global warming ((Refer Hindustan Times, daily Newspaper dt. 17/2/2005)).

Kyoto Protocol Fact File

The salient features of Kyoto Protocol are as follows:-

        i.            It legally commits industrialized countries which have signed and ratified it to trim their output of six green house gases

      ii.            The green house gases are carbon dioxide, by product of burning oil, gas and coal, methane Nitrous Oxide, Hydrofluoro carbons, Perfluoro carbons and Sulphur Hexafluoride.

    iii.            The Protocol’s framework was adopted on 12th December, 1997 in Kyoto by 159 countries, members of the 1992 United Nations Framework Convention on Climate Change (UNFCCC).

    iv.            After Kyoto Protocol which would end in 2012, negotiations would begin under the UNFCCC on the post 2012 pact. Parties will be under pressure to make far deeper cuts, to include China and India in the targeted reductions, to carry coal the U.S back in the multilateral fold ((Dr. S.C. Tripathi, Environmental Law, Central Law Publication, p. 470)).

Sustainable Development from Stockholm to Rio de Janeiro to Johannesburg

In 1972 at Stockholm Conference the representatives of the citizens of the world agreed on the urgent need to respond to the problems of environmental deterioration. Then in 1992, at United Nations Conference on Environment and Development, held in Rio de Janeiro, the world community agreed that the protection of environment and social and economic are fundamental to sustainable development based on the Rio Principles. To achieve such development, the summit adopted the global program. Agenda 21 and the Rio Declaration, to which the world community reaffirms its commitment. The Rio Summit was regarded as a significant milestone that set a new agenda for sustainable development.

It is to be noted that between Rio de Janeiro and Johannesburg the world community witnessed a number of summits under the banner of the United Nations including Monterrey Conference on Finance for development as well as Doha Ministerial Conference.

At the Johannesburg meet the world achieved much in bringing together a rich tapestry of people and views in a constructive search for a common path towards a world that respects and implements the vision of sustainable development. At the Johannesburg Summit it was also affirmed that though we have achieved significant progress towards a global consensus and partnership amongst all the people of our planet, but the sustainable development in true sense is yet to be achieved ((Ibid)).

Conclusion

Climate Change – Rich Countries preach but don’t practice

According to the official reports rich countries continue to pollute more than ever, and this is evident from the greenhouse gas emissions (GHGe) figures released by the UN Framework on climate change. Developed Countries emitted 8-12% more GHGe in 2007 than in 1990, the base year for calculating emissions according to the Kyoto Protocol, despite many of them had agreed to cut back emissions under the Kyoto protocol’s mandate. The US’s CO2 emissions have increased by 20% in 17 years. Yet, India with its track record of comparatively less pollution is a target of rich countries. It is accused of aggravating climate change as an emerging economy ((Refer English Daily, “Times of India”, dt. 30/10/2009)).

Given this depressing atmosphere for multilateral negotiations on climate change, India and China have demonstrated their intention to take action on their own, by signing a memorandum of understanding for greater co operation and sharing of know-how to tackle global warming and related environmental issues. These columns have talked about the importance of opening many fronts, especially bilateral and regional – in order to deal with climate change issues in the best possible way. The U.N mooted multilateral talks among 192 countries that are signatories to the framework convention on climate change have their place in creating an opportunity for global leaders to meet and thrash out solutions and generate multinational debate and discussion among legislators, civil society groups and the media. However, despite creating worldwide awareness and vocal impact on the ground is almost zero, even negative as is seen from the record of developed countries.

In a short run, bilateral talks and agreements may have greater potential to achieve targets since attention is given to specifics and it is possible to institute mechanism for stock taking and monitoring with its dirty coal plants and increasing number of usage of vehicles leading to air pollution. China in the recent time has had to grapple with serious air pollution. One of the ways that it is trying to meet the challenge is through clean technology solution and it is a good platform to flag of India- China Cooperation on this front.

Both India and China have Research and Development (R & D) as well as manufacturing expertise, and if they cut back on emissions as well as other forms of pollution it would be a substantial contribution to the well being of their populations respectively. Plenty could be achieved by sharing tools and strategies and learning from each other’s experiences.

Environmental protection and role of judiciary in India

Anshu Bansal, Research Associate

Can Judiciary manage the Environment?

The role of the judiciary is really important as the role of mitochondria of a living human cell. Had the judiciary turned the deaf ear towards environmental problems it could not be in any way came to celluloid ((Mohindra Kothi, Environmental Protection vis-à-vis Judicial Activism, Waila and OIDA International Journal of Sustainable Development  (2010).)).

It is true that the major compelling force behind number of legislations can be attributed to the active role played by judiciary. Indian judiciary is the first in the row who developed the concept of right to healthy environment as a part of life under Article 21 of our constitution ((Bhandu Mukti Morcha v. Union of India, 1984 (3) SCC 161.)). One significant contribution of judiciary is to create a link between fundamental duty and fundamental right. In the case of Subhash Kumar vs. State of Bihar ((AIR 1991 SC 420.)), it was said that the environmental protection which previously was a fundamental duty under article 51(A) also came as a fundamental right under article 21 of the constitution of India. In this context, Public Interest litigation has emerged as one of the major tool for development of environmental jurisprudence.

In another case ((1995 AIHC 4168)), high court directed the defendants to control the noise pollution occurring from the loudspeaker drums in order to keep right to life which include right to noise free environment intact. In addition to this, Court has also held that in matters of environment, the burden of proof will lie on the party that wants to change the status quo ((S.P. Sathe , Judicial Activism in India  (2nd edition).)). In the Bhopal gas tragedy, the Supreme Court formulated the doctrine of absolute liability for harm caused by hazardous and inherently dangerous industries by interpreting the scope of the power under Article 32 to issue directions or orders, whichever may be appropriate in appropriate proceedings. According to the court of law the power could be utilized for going new remedies and fashioning new strategies ((Rohan Bagai , Judicial Activism and environmental jurisprudence in India)).

Further, in 1998, the Indian Supreme Court, embracing its activist role, issued a controversial order suo moto mandating the conversion of the entire Delhi fleet of diesel-powered buses to compressed natural gas (CNG) ((Rosencranz, Armin, Delhi Pollution Case: The Supreme Court of India and the Limits of Judicial Power, 28 Colum. J. Envtl. L. 223 (2003).)). Steadfast resistance from the agencies responsible for enforcing the court order has raised serious questions about the wisdom of this decision. Many opponents have disputed the reliability and practicality of CNG, arguing that the technology is still in development, making the conversion both risky and costly ((Id.)).

Legislations  supporting judiciary to take the matter seriously

M.C Mehta has pioneered legal activism for environmental protection and is proof that one man can make a difference ((M.C Mehta Environmental Foundation (MCMEF).)). With the Supreme Court of India taking the lead, the centre of gravity of justice has now shifted from traditional individual locus standi to the community orientation of public interest litigation ((S.K.Aggarwal, Public Interest litigation in India: A Critique, I.L.I., 1985)).

It is pertinent to point out here that the two provisions under Article 226 and 32 of constitution of India which provides gate for filing Public Interest Litigation or Writ petition in the High court and Supreme Court respectively are the two eyes of the judiciary. The increasing scope of these Articles is the immediate effect of various litigations filed in the respective court.  Under the banner of Public Interest Litigation (PIL) and the enforcement of fundamental rights under the Constitution, the higher courts have tried to rebalance the distribution of legal resources, increase access to justice for the disadvantaged, and imbue formal legal guarantees with substantive and positive content ((Chandra Pal, Environmental Protection And Emerging Trends In Judicial Responses, Central India Law Quarterly)).

However, constitution of India is not the only legislation which aids the activism of judiciary. There are other legislations which also provide for a platform for judicial intervention and aid judiciary to take the matter seriously. They are:

  • Civil procedure code which contains specific provisions which enabled two or more persons having a legitimate interest in the subject matter to seek remedy through court. The first one is under section 91 which provides for remedy for performing public wrong and another one is under section 92 which deals with remedying breaches of public trusts.
  • Under I.P.C ((Chapter XIV Sections 268 to 294A)), Chapter XIV (Sections 268 to 294A) provides provisions to punish the person who pollutes environment.
  • Chapter X, (Sections 133 to 146) and Chapter XI of Cr.P.C. also provides provisions for granting punishment to those who damage environment.

International conventions which support judiciary to take requisite actions

  • United Nations in its International Conference (1972) laid down its agenda as “to defend and improve the human environment for a present and future generation has become an imperative goal for mankind”. This Conference at Stockholm became the turning point for the development of environmental Jurisprudence.
  • Then there is the General Assembly Resolution in 1972 ((General Assembly’s Resolution of 5th December 1972, designating June 5th as World Environmental Day)), emphasizing the need for the active cooperation among the states in the field of human environment.
  • Earth Summit: The document produced at the Earth Summit has 40 chapters having 800 pages. Agenda 21 – a comprehensive programme of action for global action in all areas of sustainable development was also adopted.

Striking the balance between various rights of the citizen of India

It is the conflicting rights of the citizens which make it difficult for the state to strike a balance between various rights associated with different groups of people. For instance, under the right to life, drinking water is one of the fundamental requirements, but simultaneously the State is obliged to preserve the ground water or to restrict the use so that it can be prevented from being wasted. One the one hand, State has an obligation to protect the forest but at the same time it is also obliged to protect the tribal people whose livelihood is based on forest. State is bound to close down those industries, which are hazardous for the environment, but at the same time has to keep in mind the livelihood of the people who work there ((Supra note 1.)). In the Recent Lok Sabha Debate in Feb., 2013 it was discussed that development should not be at the cost of forests; development should not be at the cost of tribals.  Even the Tribal Affairs Minister has written to the Environment Minister saying that the Forests Rights Act is being violated in giving environmental clearance ((Discussion on the Motion of Thanks on the President’s Address to both Houses of Parliament assembled together on 21.02.2013, moved by Shri P.C. Chacko and seconded by Dr. Girija Vyas available at http://www.indiankanoon.org/doc/70144574/)).

Hence, it is indeed a difficult task to strike a balance between various rights related to different groups of people. It requires active participation of all the inhabitants. It is needed that people first make themselves acquainted with the prospective impact of the degradation of environment. Judicial activism can indeed play a pivotal role in curbing commercial problems. In addition to this inclusion of definition of pollution into international crime to ascertain individual criminal liability will lead to reduce in irresponsible and dangerous behaviour of the communities towards environment ((Id.)).

However, the judiciary sometimes is also criticized for acting beyond its limit which is termed as judicial over-activism. Justice Srikrishna is of the view that in the name of judicial activism, modern judges in India had abandoned the traditional role of a neutral referee and have increasingly resorted to tipping the scales of justice in the name of distributive justice ((Discussion regarding need for harmonious functioning of three organs of State – Legislature, Judiciary and Executive,( 3 December, 2007) available at http://www.indiankanoon.org/docfragment/854333/?formInput=Judicial%20activism%20)). But author beg to differ here because in the current scenario, it won’t be possible for judges to act as a neutral referee. In order to keep pace with the changing scenario, it is needed that judiciary should itself play an active role. Judicial legislation is a tool which had served is still serving and is expected to serve in the future as a major reason behind many environment friendly legislations.