EMERGING CONCEPT OF

STATE AND ENVIRONMENTAL

LIABILTY IN INDIA

HALA ZAFAR
SECTION A
FACULTY OF LAW
 ACKNOWLEDGEMENT
First of all, I would like to thank god! I would like to sincerely thank
OUR Professor Mr. Faizanur Rehman sir for the opportunity he gave
me research on the topic, Emerging concept of state and
environmental liability in India. He has consistently update me about
the relevant cases and material of importance regarding my topic. I
would like to thank the faculty and the librarians who let me easily
access all the matters pertaining to my topic available in the library.
Lastly I would like to thank my family and friends who constantly
extended their unwavering support throughout the project.
 SYNOPSIS:
1. Introduction.01
2. Environmental governance03
2.1Statutory framework. 04
3. Environmental governance & functional aspect of state.05
5. Principle of environmental Law..10
Sustainable development 11
Precautionary principle ...12
Polluters pay principle .13
Public trust doctrine ......14
Principle trust doctrine.15
Principle of absolute liability ..16

6. Conclusion..17
7. References..18
 INTRODUCTION
The environment and the economy are really both two sides of the same coin. If
me cannot sustain the environment we cannot sustain ourselves- WANGARI MAATHAI.

Today, the conservation, protection, and improvement of human

environment are major issues all the world. Human environment consists of
both physical environment and biological environment. Physical environment
covers land, water, and air. Biological environment includes plants, animals
and other organism. Both physical and biological environment are inter-
dependent. Industrialization, urbanization, explosion of population of
resources, disruption of natural ecological balances, destruction of multitude
of animals and plants species for economic reasons are the factors which
have contributed to environmental deteriorationi.
One countrys degradation of environment degrades the global
environment for all the countries. The problem of environmental pollution
has acquired international dimension & India has no exception to it
The task of the protection of the environment has taken its position
before all the nation across the world as a dire necessity to take adequate
steps to preserve the ecology and thereby survive all the living being on the
earth. As a part of it , various international efforts have been undertaken
starting with the convening of Stockholm conference in 1972 and later Rio &
Johannesburg conference in 1992 & 2002, respectively and holding of
Copenhagen climate change conference in 2009 and many more conventions
and plans. These international community, bring into existence and enforce a
plethora of international environmental laws imposing, binding into
existence and enforce a international obligations on the member countries of
the international community to take effective, preventive, curative and
promotive steps for the protection of global environment.1

1
.Aruna venkat, Environmental law & policy (DHI learning Pvt.ltd . 3 rd edition ,2011)
 ENVIRONMENTAL GOVERNACE
Environmental governance is a concept in political ecology and environmental
policy that advocates sustainability as the supreme consideration for
managing all activities political, social & economic. Governance includes
government, business, and civil society and emphasizes whole system
management. To capture this diverse range of elements environmental
governance often employs alternative system of governance, for example
watershed based management.
It view natural resources and the environment as global public goods,
belonging to the category of goods that are not diminished where they are
shared. The means that everyone benefits for example a breathable
atmosphere stable climate and stable biodiversity.
Governance is broadly the process of decision making and their
implementation and large connotations to the interaction between
government \(or , state), markets or (private sector & civil society). It is
defined here as the dynamic interaction between people structure, processes
and traditions that support the exercise of legitimate authority in provision
of sound leadership, direction, oversight, and control of an entity in order to
ensure that its purpose is achieved and that there is proper accounting for
the conduct of its affairs, the use of its resources, and the result of its
activities. Governance also refers to government structure, functioning
institutions and power relations that leads to decisions and good governance
should ideally lead to sustainable improvement in quality of life of all
citizens.2
Indias environmental resources are limited. Further these resources
being exploited by unprecedented growth of population and unplanned
economic development .The environmental resources are the foremost and

2
Review of Environmental Gov. in India ;- cataloging of environmental of the current
mandatory requirement for sustainable development. These resources are
depleted by environmental pollution and deterioration India has population
of over 1.2 billion which is 16% of the world population living just 2.4% of
total land of world that causes serious concern about the penalty of
resources that is required for the economic growth in the longer seen. Urban
areas in India are at the stage of vital collapse as they have turned into slums
and sequestered camps due to large scale of population shifts from the rural
areas seeking employment and livelihood.

2.1 STATURTORY FRAMEWORK

India has enacted more than 200 laws for the protecting the
environment with significant provisions in the constitution.
The important laws are :-
1) The wildlife (protection) Act of 1972.
2) Water (prevention and control of pollution) act, 1974
3) Forest (conservation) act, 1980
4) Air (prevention and control of pollution) act, 1981
5) Environment protection act , 1986
6) Public liability insurance act (PLIA) 1991
7) The national environmental tribunal act 1995
8) The biomedical waste (management and handling) rules 1998.
9) The national environmental appellate authority act ,1997
10) The environment (sitting &industrial projects) rules 1999
11) The ozone depleting substance (regulation and control)rules, 2000
12) The batteries (management & handling) rules, 2001
13) The biological diversity act 2000 & biological diversity rules.
14) National environmental policy of 2006
15) NAPCC National action plan on climate change.
 16) National green tribunal act 2010
17) The noise pollution (regulation & control) amendment rules,
2010.
18) Plastic waste (management & handling) amendment rules.2010.

a) The wildlife (protection) act 1972:

The act has provisions regarding the
a) Protection of specified pants
b) Prohibition of hunting of animals
c) Declaration of sanctuaries, national parks, and closed areas
d) Management of sanctuaries, national parks, and closed areas
e) Constitution of central zoo authority
f) Granting license for the purpose of education, scientific research, and scientific
management.
g) Granting of license (permits) for picking uprooting etc. Of specified plants for the
purpose of education and scientific research
h) Penalties for violation of various provisions of the act

Any violation of the provision of the act are subject to penalties which
can vary according to degree and gravity of violations.

b) WATER (PREVENTION & CONTROL OF POLLUTION) ACT 1974

The act tries to make judicious use of water and to check pollution of
water through different provisions and measures. Central government
drawn power from this act to establish central water pollution control
based.
 c) FOREST (CONSERVATION) ACT, 1981

The Act is framed for the prevention, control and abatement of air
pollution. The act has similar type of framework as of water act for
providing authority of central and state pollution control board for
providing consent to industries for operating within designated air
pollution standards.

d) FOREST (CONSERVATION) ACT, 1980

Under section 2 of this act, it is mandatory for the government to obtain
permission for the dereservation of forest and using forest land for non-
purposes.

e) ENVIRONMENT PROTECTION ACT, 1986

Protection and improvement of environment is the main objective of
this act. The act was framed after Bhopal gas tragedy in1984. The
government enacted this act under article 253 of the Indian constitution. The
act provides a framework for air, water, land pollution and empowers the
government for setting national ambient and emission standards,
establishing procedure and regulations for inspection and checking pollution
sources. The act also concerned with the safety measures.

f) PUBLC LIABILTY INSURANCE ACT (PLIA), 1991

The act makes it mandatory for the business owners who operate in
hazardous substances to take out insurance policies for covering potential
liabilities from an accident and establishing environmental relief funds fo
dealing with accidents arising from the mishandling of hazardous substances.
 g) THE NATIOANAL ENVIRONMENTAL TRIBUNAL ACT.1995
This act was framed on the recommendations of United Nations second
Earth summit at Rio-de Janerio. The main objectives of this act to provide
effective and speedy relief as well as compensation for the damage made to
human health, property and the environment due to accident and disasters
caused by the industries. According to this act, the person is liable to claim
the damage in case of death; permanent, temporary, total/partial disability,
medical expenses injured; damage of property, flora, ecosystem, etc.

h) THE BIOMEDICAL WASTE (MANAEGMENT AND HANDLING) RUES,

1998
According to these rules, there is legal binding on the health care
institution for streamlining the process of proper handling of hospitals waste
such as segregation, packing, transportation, collection, and treatment. It is
the duty of institution generating waste to handle it properly without making
any adverse effect to human health and environment.

i) THE ENVIRONMENT (SITTING FOR INDUSTRIAL PROJECTS) RULES, 1999

The rules provides detailed provisions relating to area where siting of

industries is prohibited or for siting industries precautionary measures has to
be taken regarding environment protection.
 j) THE OZONE DEPLETING SUBSTANCE (REGULATION AND
CONTROL)RULES 2000
These rules have been made for regulating the production and consumption
of ozone depleting substance (ODS). The rules says that no person shall
produce any ozone depleting substance. The rules also prohibits the export
and import of ODSs to or from any country. Its prohibits person or
enterprise to sell, stock or exhibits for sale or distributes ODS to any persons
or enterprises. The rule prohibits new investment of ODS.

k) THE BATTARIES (MANAGEMENT & HANDLING) RULES, 2001

The rules are applicable to every type of manufacturer, importer, re-
conditioner, assembler, cleaner, auctioneer, consumer and bulk consumers
that are involved in the manufacture, processing , sale , purchase, and use of
batteries or components so as to regulates and ensure the environmentally
safe disposal of used batteries.
l) THE BIOLOGICAL DIVERSITY ACT 2002 AND BIOLOGIAL DIVERSITY
RULES
The act provide rules for the conservation of biological diversity
,sustainable use of its components ,and fair and equitable sharing of benefits
that arise out of the use of biological resources and knowledge associated
with it. It provides provisions for sharing of benefits arising from the use of
biodiversity.

m)NAPCC: NATIONAL ACTION PLAN ON CLIMATE CHANGE.

For achieving sustainable development, the prime ministers council
launched NAPCC in 30 June 2008. It comprises of eight National Missions
namely:
 1. National solar mission (NSM)
2. National mission for Enhanced Energy (NMFEEE)
3. National Mission on Sustainable habitat (NMSH)
4. National Water Mission (NWM)
5. National Mission for sustaining the Himalayan Ecosystem(NMSHE)
6. National Mission for Green India(NMGI)
7. National Mission For sustainable Agriculture(NMSA)
8. National Mission for Strategic Knowledge for climate change
(NMSKCC)

n) THE NOISE POLLUTION (REGULATION AND CONTROL) AMENDMENT

RULES, 2010
The rules provides terms and condition for reducing noise pollution, for
permitting use of loud speakers or public address system from 10 to 12
midnight during any cultural or religious festive occasion. The rules also
restrict the use of horn and sound emitting construction equipment in silence
zone or residential areas at night.

o) PLASTIC WASTE (MANAGEMENT AND HANDLING) AMENDMENT

RULES, 2011
MOFF has notified the rules in 2011. Its replace the recycled plastic
manufacture and usage rules of 1999 (amended in 2003).The minister
of environment and Forest, Mr. Jai Ram Ramesh released the rules. He
was of the opinion that there is need to improve solid waste
management system. The feature include ban on use of plastic
materials in sachets for storing, packing, or selling gutka, tobacco and
pan masala. It also include ban on use of recycled plastic or
compostable plastics for packing food stuffs.
 PRINCLPLE OF ENVIRONMENTAL LAW

The design and application of environmental law has been shaped

by a set of principle and concept outlined and published by the
World Commission on Environmental and Development, and the
Earth Summits Rio Declaration (1992).
These sets of principle are:
Sustainable development
Precautionary principle
Polluters pay principle
Public trust doctrine
Principle trust doctrine
Principle of absolute liability
Public interest litigation.
 A) SUSTAINABLE DEVELOPMENT

Sustainable development is an approach to economic planning that

attempts to foster economic growth while preserving the quality of
the environment for future generations. The concept of sustainable
development proved difficult to apply in many cases, primarily
because the results of long-term sustainability analyses depend on
the particular resources focused upon. For example, a forest that
will provide a sustained yield of timber in perpetuity may not
support native bird populations, and a mineral deposit that will
eventually be exhausted may nevertheless support more or less
sustainable communities. Sustainability was the focus of the 1992
Earth Summit and later was central to a multitude of environmental
studies.
One of the most important areas of the law of sustainable
development is ecotourism. Although tourism poses the threat of
environmental harm from pollution and the overuse of natural
resources, it also can create economic incentives for the
preservation of the environment in developing countries and
increase awareness of unique and fragile ecosystems throughout the
world. In 1995 the World Conference on Sustainable Tourism, held
on the island of Lanzarote in the Canary Islands, adopted a charter
that encouraged the development of laws that would promote the
dual goals of economic development through tourism and
protection of the environment. Two years later, in the Male
Declaration on Sustainable Tourism, 27 Asian-Pacific countries
pledged themselves to a set of principles that included fostering
awareness of environmental ethics in tourism, reducing waste,
promoting natural and cultural diversity, and supporting local
economies and local community involvement. Highlighting the
growing importance of sustainable tourism, the World Tourism
Organization declared 2002 the International Year of Ecotourism.
Vellore Citizens Welfare Forum
In this case, the Supreme Court observed that sustainable
development has come to be accepted as a viable concept to
eradicate poverty and improve the quality of human life while living
within the carrying capacity of the supporting eco- system.3

B) PRECAUTIONARY PRINCIPLE

Environment management rule that if a threat of serious or

irreversible damage to the environment or human health
exists, a lack of full scientific knowledge about the situation
should not be allowed to delay containment or remedial
steps if the balance of potential costs and benefits justifies
enacting them. In other words, "prevention is better than
cure." Also called preventative principle.

Article 3 of the UN Framework Convention on Climate

Change was just one in a long list of international
agreements that contained the precautionary principle,
3
AIR 1996 5SCC 647.
 making it one of the most popular legal concepts in
international environmental law today. Whereas traditional
regulatory practices are reactive, precautionary measures
are preventive and pre-emptive. In its simplest form, the
precautionary principle (also known as PP) provides that if
there is a risk of severe damage to humans and/or the
environment, absence of incontrovertible, conclusive, or
definite scientific proof is not a reason for inaction. It is a
better-safe-than-sorry approach, in contrast with the
traditional reactive wait-and-see approach to environmental
protection.

C) POLLUTTERS PAY PRINCIPLE

Since the early 1970s the polluter pays principle has been a
dominant concept in environmental law. Many economists
claim that much environmental harm is caused by producers
who externalize the costs of their activities. For example,
factories that emit unfiltered exhaust into the atmosphere or
discharge untreated chemicals into a river pay little to
dispose of their waste. Instead, the cost of waste disposal in
the form of pollution is borne by the entire community.
Similarly, the driver of an automobile bears the costs of fuel
and maintenance but externalizes the costs associated with
the gases emitted from the tailpipe. Accordingly, the purpose
of many environmental regulations is to force polluters to
bear the real costs of their pollution, though such costs often
 are difficult to calculate precisely. In theory, such measures
encourage producers of pollution to make cleaner products
or to use cleaner technologies. The polluter pays principle
underlies U.S. laws requiring the cleanup of releases of
hazardous substances, including oil. One such law, the Oil
Pollution Act (1990), was passed in reaction to the spillage of
some 11 million gallons (41 million liters) of oil into Prince
William Sound in Alaska in 1989. The polluter pays
principle also guides the policies of the EU and other
governments throughout the world. A 1991 ordinance in
Germany, for example, held businesses responsible for the
costs of recycling or disposing of their products packaging,
up to the end of the products life cycle; however, the
German Federal Constitutional Court struck down the
regulation as unconstitutional. Such policies also have been
adopted at the regional or state level; in 1996 the U.S. state
of Florida, in order to protect its environmentally sensitive
Everglades region, incorporated a limited polluter pays
provision into its constitution.

Vellore Citizens Welfare Forum v. Union of India

The Supreme Court has declared that the polluter pays
principle is an essential feature of the sustainable
development.4

4
AIR 1996 SCC 212
D) PUBLIC TRUST DOCTRINE

The Public Trust Doctrine primarily rests on the principle that

certain resources like air, sea, waters and the forests have
such a great importance to the people as a whole that it
would be wholly unjustified to make them a subject of
private ownership. The said resources being a gift of nature,
they should be made freely available to everyone
irrespective of the status in life. The doctrine enjoins upon
the Government to protect the resources for the enjoyment
of the general public rather than to permit their use for
private ownership or commercial purposes.

Public trust doctrine serves two purposes:

a) it mandates affirmative state action for effective
management of resources and
b) Empowers citizens to question ineffective management of
natural resources.
The doctrine combines the guarantee of public access to
public trust resources with a requirement of public
accountability in respect of decision-making regarding
such resources.
 E) PRINCIPLE TRUST DOCTRINE

The Public Trust Doctrine primarily rests on the principle that

certain resources like air, water, sea and the forests have such a
great importance to people as a whole that it would be wholly
unjustified to make them a subject of private ownership.
M.C. Mehta v. Kamal Nath and Others[x]
The public trust doctrine, as discussed by court in this judgment
is a part of the law of the land.

F) PRINCIPLE OF ABSOULTE LIABILTY

THE BHOPAL CASE: Union Carbide Corporation v. Union Of

India5

In this case, the court held that, where an enterprise is

occupied with an inherently dangerous or a hazardous
activity and harm results to anybody by virtue of a mishap in
the operation of such dangerous or naturally unsafe
movement coming about, for instance, in getaway of
poisonous gas, the enterprise is strictly and completely
obligated to repay every one of the individuals who are

5
AIR 1990 SC 273.
influenced by the accident and such risk is not subject to any
exemptions. Accordingly, Supreme Court created another
trend of Absolute Liability without any exemption.
 CONCLUSION

From the above discussion it is apparent that efforts done by

India for the protection on environment are worth praising
and there is no shortage of rules, regulations and laws
reagarding the environment in the country. Over the years
India has framed the environmental laws in accordance with
International requirements for the protection of environment.
Keeping in the view the geographical and cultural diversity of
the country , the laws have been effectively framed and there
seems to be comprehensive coverage of all the aspects and
areas of environment. There is no back footing on the part of
India when the participation of India is needed at the
international arena for the protection of environment.
Whenever there was need of countrys participation for
framing laws or for making contribution at the international
level Indias stand has been always appreciable. But if we
analyze the present condition of environment it seems that
through the efforts have been there still the results are not so
encouraging. There seems to be some lack in the execution as
well as effective implementation of these laws. There is dire
need of bringing all these laws under one umbrella and under
one single for the implementation of these laws eliminating
the confusion in the minds of the polluters and regulators. It
is highly recommended that the proposed single institution
for regulations should be totally independent.
REFERENCES

Joshi,S. k., Effective Environmental Governance at Local level:

A concept paper.@
www.aponline.gov.in/../environmental_Governance
Pachauri, RK, Environment-The concerns and strategies
accessed at
planningcommission.nic.in/reports/sereport/ser/vision2025/en
viron.doc
Sanker, U. (1998), Laws and institution relating to
Environmental protection in India.

BOOKS :-

Kumar, Arvind (2004), Environmental management, APH

publishing Corporation, New delhi
Shastri, S.C.2005 Environmental law. Lucknow Eastern Books
Company.

LINKS:-
www.cleantechindia.com/environment.html
www.envfor.nic.in/report/0607/chap04.pdf
http://www.crrid.res.in/keyurban.pdf
http://envfor.nic.in/rules-regulations/national-environment-
appllate-authority

WEBSITES
www.wikipedia.org
www.cpcb.gov.in
 www.india.gov.in
www.ppcb.gov.in
www.jstor.org