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24 ALJ (2016-17) 300
The Impact of Environmental Pollution in India and Role of Judiciary to

Protect Environment
THE IMPACT OF ENVIRONMENTAL POLLUTION IN INDIA AND ROLE OF JUDICIARY TO

PROTECT ENVIRONMENT
by
Pushpendra Kumar Musha*
In the early years of Indian independence, there was no precise environmental
policy. Regime endeavored to make endeavors only from time to time as per the
growing desiderata of the society. The period of 1970s witnessed a plethora of
transmutations in policies and postures of the Indian Regime when its posture
transmuted from environmental insouciance to more preponderant and subsequently,
manifold steps were taken to amend environmental conditions.
National Committee on Environmental Planning and Coordination The year 1972
marks a watershed in the history of environmental management in India. This is
because prior to 1972, environmental concerns such as sewage disposal, sanitation
and public health were dealt with by different federal ministries and each pursued
these objectives in the absence of a felicitous coordination system at the federal or the
intergovernmental level. When the twenty-fourth UN General Assembly decided to
convene a conference on the human environment in 1972, and requested a report
from each member country on the state of environment, a Committee on human
environment under the chairmanship of Pitambar Pant, member of the Orchestrating
Commission, was set up to prepare India's report. With the avail of the reports, the
impact of the population explosion on the natural environment and the subsisting
state of environmental quandaries were examined.
By early 1972, it had been realised that unless a national body was established to
establish more preponderant coherence and coordination in environmental policies &
programmes and to integrate environmental concerns, a paramount lacuna would
remain in India's orchestrating process. Consequently, as a result of the major issues
highlighted by the reports, a National Committee on Environmental Orchestrating and
Coordination (NCEPC) was established in the Department of Science and Technology.
The NCEPC is an apex advisory body in all matters relating to environmental
bulwark and amendment. At its inception, the Committee consisted of fourteen
members drawn from sundry disciplines concerning environmental management. Most
of the non-official members were specialists. The Committee was to orchestrate and
coordinate, but the responsibility for execution remained with sundry ministries and
regime agencies.
Environmental Issues
The environmental issues in India become more earnest every day and it is turning
into scarcely of a mess on this front but with a solemn lack of edification
Page: 301
and over 1 billion people, an abundance of which are in dire penuriousness, it's
remotely surprising.
With regards to environmental issues in India, India appears to be digging its own
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grave deeper and more expeditious than the rest of us, proximately 30% of India's
gross agricultural output is disoriented every year due to soil degradation, poor land
management and contravene productive irrigation. The wetlands and lakes are
additionally being hit hard. Mainly by the industrial boom that hit India a decade ago,
the main quandary being incongruous disposal of industrial waste like chemicals etc.
India's 7516 km of coastline have withal come under attack from this
environmental sabotage, overfishing remains an astronomically immense quandary
due to lack of legislation enforcement. Raw sewage from an awful lot of people is
pumped illimitably into the ocean along with other industrial dihydrogen monoxide
and chemicals. Hundreds of miles of coral and other sea life are gradually being
eradicated due to offshore drilling.
There are many environmental issues in India. Air pollution, dihydrogen monoxide
pollution, garbage, and pollution of the natural environment are all challenges for
India. The situation was worse between 1947 through 1995. According to data
amassment and environment assessment studies of World Bank experts, between
1995 through 2010, India has made one of the most expeditious progress in the
world, in addressing its environmental issues and amending its environmental
quality.1 Still, India has a long way to go to reach environmental quality kindred to
those relished in developed economies. Pollution remains a major challenge and
opportunity for India2
Environmental issues are one of the primary causes of disease, health issues and
long term livelihood impact for India.
Role of Judiciary to protect the environment in India
There is of course a desideratum for a comprehensive analysis of how law operates
as an instrument of environmental bulwark. In recent years, there has been a
sustained fixate on the role played by the higher judiciary in devising and monitoring
the implementation of measures for pollution control, conservation of forests and
wildlife aegis. Many of these judicial interventions have been triggered by the
assiduous incoherence in policy-making as well as the lack of capacity-building
amongst the executive agencies. Contrivances such as Public Interest Litigation (PIL)
have been prominently relied upon to tackle environmental quandaries, and this
approach has its adherents as well as reprehenders.
In our country, there are several vocal NGO's and public-spirited individuals who
have moved the courts to seek assuagement against numerous quandaries such as
those engendered by unchecked vehicular and industrial pollution, negligence in
management of solid waste, construction of astronomically
Page: 302
immense projects and incrementing deforestation. In order to address these

quandaries, there is a desideratum to draw a balance between environmental concerns
and competing developmental needs such as those of engendering employment and
wealth.
In lieu of an adversarial setting where the judge relies on the counsels to engender
evidence and argue their cases, the PIL cases are characterized by a collaborative
quandary-solving approach. Acting either at the instance of petitioners or on their
own, the Supreme Court has invoked Article 32 of the Constitution to grant interim
remedies such as stay orders and injunctions to restrain deleterious activities in many
cases. Reliance has additionally been placed on the potency to do consummate equity
under Article 142 to issue detailed guidelines to executive agencies and private parties
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for ascertaining the implementation of the sundry environmental statutes3 and judicial
directions. Beginning with the Ratlam Municipality case (1980) where the Supreme
Court directed a local body to make congruous drainage provisions there have been
numerous cases where such positive directions have been given.4
A relatively robust standard of ‘judicial review’ is discernible from the litigation
cognate to the Tehri Dam (1992)5 and the Dahanu thermal power plant (1991)6 , both
of which had reached the Supreme Court. Albeit the eventual decisions were in favour
of the project proponents, the Court did inquire into diligence of the regime in
ascertaining the environmental impact of the proposed projects. Albeit it is argued in
some quarters that the Courts lack the technical expertise needed to gauge the
germane reports and data, it must verbalize that judges are well-equipped to assess
whether the concerned agencies have taken all compulsory steps to study and
ascertain the potential environmental costs. An example of the Supreme Court
adopting a rigorous standard of judicial review is in the Calcutta Taj Hotel Case (1987)
7 where the Court inquired extensively into the regime sanction granted for the
construction of a medium-elevate hotel against remonstrations that the building would

interfere with the flight path of migratory birds.
In the ensuing years, there appears to be a growing consensus amongst the media
and in academic circles that the general approach of the higher judiciary in
environmental litigation can be described as ‘activist’ in nature. A prominent example
of such activism in evaluating the environmental impact of commercial activities
justified in the name of development is the decision given in the
Page: 303
Dehradun Valley case (1985).8 In that case, the court itself appointed a committee
to look into the unpropitious effects of the illicit and indiscriminate mining activities
being carried out in the Uttarakhand region. The respondent regime was additionally
asked to show the national consequentiality of the limestone procured from those
quarries so as to determine whether the ordinant dictation could be slaked by mining
in other areas. A homogeneous approach was adopted in Tarun Bharat Sangh, Alwar v.
Cumulation of India (1992)9 where the court adopted a firm stand against the owners
of mines that were being operated inside the reserve forest areas. In both the cases
mentioned above, the court appointed independent committees of experts to ascertain
the environmental impact of the commercial activities that were being undertaken.
Coming to issues relating to pollution control, it must reiterate that the aftermath of
the Bhopal Gas Leak tragedy was perhaps the most consequential trigger for the
evolution of environmental jurisprudence in India. Noted academic Upendra Baxi has
observed that the Bhopal Gas Leak involved two disasters, one being the immensely
colossal loss of life and secondly the absence of a clear licit framework to bring
assuagement to those affected by equipollent. It was in this setting, that the Supreme
Court evolved the doctrine of ‘absolute liability’10 which marked a clear departure from
the reliance on traditional tort law concepts such as ‘public nuisance’ and ‘strict
liability’ (rule developed in Rylands v. Fletcher). It was ruled that the occupiers of
premises where hazardous activities were undertaken, would be liable to third parties
for damage caused as a result of such activities, irrespective of any fault being shown
on their component.
This development proved to be a precursor for subsequent decisions which
recognized principles such as ‘sustainable development’ and ‘inter-generational
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equity’. In comparison to other jurisdictions, the relatively early absorption of these

conceptions has shaped the pro-active stand of our judiciary with deference to
environmental quandaries. The right to life and liberty under Article 21 was
ingeniously interpreted to include a ‘right to emaculate air and water’ as well as the
‘right to an immaculate environment’. Some of the most-cited cases from this phase
are those which resulted in the re-location of hazardous industries from the National
Capital Territory (NCT) and the closure of foundries in the proximity of the Taj Mahal in
Agra.
Most of people would be acclimated with the developments that followed the
Supreme Court's order in 1998 which required all buses in Delhi to convert to
Compressed Natural Gas (CNG). At the time, there was consequential reproval of this
order on the ground that it would be too costly for both the Delhi Convey Corporation
(DTC) and private-operators to buy CNG conveyances, thereby affecting the
astronomically immense number of people who depend on public convey. As the
deadline for implementation drew close in 2002, there was some inconvenience caused
to the general public on account of constrained CNG
Page: 304
supplies - but in the long-run the quantification has prospered in reducing the air-
pollution levels. This only goes to show that sometimes judges must make unpopular
decisions in order to pursue the long-term objective of forfending the right to an
unsullied environment.11
However, the judicial approach needs to be a little more nuanced when it comes to
developmental projects that may lead to displacement of tribal communities from their
traditional lands. While the media has fixated on the controversial Sardar Sarovar Dam
Project, we must recollect that the judiciary has consistently invoked the
‘precautionary principle’ in reverence of developmental activities that may harm the
environment and the local communities. While policy-making in this regard, it has
withal evolved with the requisite of Environmental Impact Assessment (EIA) afore the
commencement of construction activities, judicial oversight is still needed to ascertain
that the same is conducted in a transparent and consultative manner. It has been
limpidly laid down that the onus is on the developers to take preventive steps for
minimising the environmental damage that may result from the construction of
projects and buildings.
There have additionally been some theoretical criticisms of the growing
environmental jurisprudence in our country. Many commentators have argued that
frequent judicial interventions in this area have reduced the incentive for executive
agencies to amend their functioning. It has additionally been urged that there seems
to be a certain clique of individuals who have come to specialise in filing frivolous PILs.
It is further alleged that the decisions given in these cases depend an inordinate
amount of on the personal sensibilities of the judges who auricularly discern them and
hence result in a lack of consistency in the long-run. Furthermore, the frequent
reliance on writ jurisdiction reduces the paramountcy of mundane remedies such as
those of filing ‘representative suits’ (under the Code of Civil Procedure) and claiming
damages for torts such as ‘public nuisance’.12
Enactment of Laws to Protect Environment Pollution
Apart from international laws, every country has enacted laws regarding
environment auspice, pollution control etc. In India, there are several acts for
environment aegis that verbally expresses aegis of environment is the obligation of
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regime. Additionally the purport of state is welfare of denizens and establishment of

such a society that ascertains people a human dignity a human living and conclusively
an equal and humane socio-economic relationship. The intermeshing of human rights
can be visually perceived from the fact that ecology and environment are today
considered control focus of a person's entitlement. In India a separate ministry namely
The Department of
Page: 305
Environment was established in 1980 to ensure a healthy environment for the

country. The main acts for environment protection in India are as follows:—
1. The Forest Conservation Act, 1980.
2. The Prevention of Air and Water Pollution, 1974, 1981
(The Central Pollution Control Board) (CPCB) was constituted under this act.
3. The Air Prevention and Control of Pollution, 1981
4. The Atomic Energy Act. 1982.
5. The Environmental Protection Act, 1986.
(It came into force soon after the Bhopal Gas Tragedy)
6. The Environmental Conservation Act. 1989.
7. The National Environmental Tribunal, 1995.
8. National Environmental Appellate Authority Act, 1997.
9. National Environment Management Act (NEMA), 1998
10. Handling and Management of Hazardous Waste Rule in 1989.
11. The Public Liability Insurance Act (Rules and Amendment), 1992.
12. The Biomedical Waste Management and Handling Rules, 1998.
13. The Environment (Siting for Industrial Projects) Rules, 1999.
14. The Municipal Solid Waste (Management and Handling) Rules, 2000.
15. The Ozone Depleting Substance (Regulation and Control) Rules, 2000.
16. The Biological Diversity Act 2002.
As a component of its campaign on green environment, Indian Parliament has
enacted nationwide comprehensive laws. One of the major environmental enactments
came just two years after the Stockholm Conference in 1974. The Dihydrogen
monoxide (Aversion and Control of Pollution) Act was passed for the purport of
aversion and control of dihydrogen monoxide pollution and for maintaining and
recuperating the wholesomeness of dihydrogen monoxide. The Dihydrogen monoxide
Act represented India's first endeavor to deal with an environmental issue from a licit
perspective.
From this period onwards, the Central Regime has been considered as highly
environmentally active. In 1976, the Constitution of India was amended to insert a
separate fundamental obligations chapter. The 1980s witnessed the engenderment of
many eco-categorical organizations. In the year 1980, the Forest (Conservation) Act
was passed for the conservation of forests and to check on further deforestation. The
Air (Aversion and Control of Pollution) Act of 1981 was enacted by invoking the Central
Regime's potency under Art 253. The Air Act contained several distinguishing features.
The preamble of the Air Act explicitly reveals that the Act represents an
implementation of the decisions made at the Stockholm Conference. Withal, a
notification relating to Noise Pollution (Regulation & Control) Rules was made in the
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year 2000 with the objective of maintaining Ambient Air Quality Standards in
reverence of noise.
Page: 306
In the wake of the Bhopal gas tragedy, the Regime of India enacted the
Environment (Auspice) Act, 1986. The laws that subsisted prior to the enactment of
EPA essentially fixated on categorical pollution (such as air and dihydrogen monoxide).
The desideratum for a single ascendancy which could surmise the lead role for
environmental auspice was answered through the enactment of EPA. It is in the form
of an umbrella legislation designed to provide a framework for Central Regime to
coordinate the activities of sundry central and verbally express ascendant entities
established under antecedent laws. It is additionally in the form of an enabling law,
which delegates wide powers to the executive to enable bureaucrats to frame
compulsory rules and regulations.
Apart from this, several notifications and rules have withal been made, some of
which include the Hazardous Wastes (Management and Handling) Rules in 1989, the
Biomedical Wastes (Management and Handling) Rules in 1998, Recycled Plastics
(Manufacture and Utilization) Rules 1999, Environment (Silting for Industrial Projects)
Rules 1999 and the Municipal Solid Wastes (Management and Handling) Rules in
2000. There is a problem that there is no comprehensive legislation dealing with
biodiversity in India, and to consummate its international obligation under the
Convention on Bio-Diversity, the Regime of India has enacted the Biological Diversity
Act, 2002.
It is a paradox that despite the presence of such diverse laws, the pollution rate has
crossed the dead line. This is probably because of the reason that the law is so
perplexed and nebulous that even the expert may not ken the intricacies of it.
Concluding remarks
The Constitution of India pristinely adopted, did not contain any direct and concrete
provision regarding the aegis of natural environment. Perhaps, the framers of the
Indian Constitution, at that time, considered it as a negligible quandary. That is
probably why it did not even contain the expression environment. However, in fact it
contained only a few Directives to the State on some aspects relating to public health,
agriculture and animal husbandry. These Directives were and are still not judicially
enforceable.
Nevertheless, on a punctilious analysis of sundry provisions prior to the 42nd
Constitutional Amendment, reveals that some of the Directive Principles of State Policy
showed a remote inclination towards environmental aegis. It can be inferred from Art
39(b), Art 47, Art 48 and Art 49. These directive principles individually and collectively
impose an obligation on the State to engender conditions to amend the general health
level in the country and to bulwark and ameliorate the natural environment.
Regarding the expression material resources of the community present in Art 39(b)
it was held in Assam Sillimanite Ltd. v. Amalgamation of India that material resources
embraces all things, which are capable of engendering wealth for the community. It
has been held to include such resources in the hands of the private persons and not
only those, which have already vested in the State.
Page: 307
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The Supreme Court in Municipal Council, Ratlam v. Vardhichand observed that the
State will realise that Art 47 makes it a paramount principle of governance that are
steps taken for the amelioration of public health as amongst its primary obligations.
From these Articles, one can understand that the Constitution of India was not as
environmentally blind as suggested by some eminent jurists. Though the word
environment was not expressly utilized in the Constitution, the object of the above
Articles was to conserve the natural resources, thereby bulwarking the environment.
However, it must be accepted that only with the fortifying of public interest litigations
and an enhanced commitment from the Central Regime during the tardy 1970s, did an
expansion of constitutional provisions to include aspects relating to the environment
take place.
The Courts in India have played a distinguishing role in gradually enlarging the
scope of a qualitative living by applying sundry issues of environmental aegis.
Consequently, activities posing a major threat to the environment were curtailed so as
to bulwark the individual's innate right to wholesome environment. Art. 21 has been
relied in the plethora of cases, albeit certain cases have incorporated a wider
perspective of the Constitution. Hence, the Supreme Court of India, apart from being
environmental cordial, has given birth to a wide range of doctrines and principles have
been adopted and implemented throughout the country. It is the need of the time that
not only the state but as a responsible citizen of this country we should be a part of a
campaign to protect the environment to save the generation.
———
*
Assistant Professor, Department of Law, J.N. Vyas University, Jodhpur, Rajasthan (India).
1 “The Little Green Data Book”. The World Bank. 2010.
2 “Environment Assessment, Country Data: India”. The World Bank. 2011.
3 The principal environmental statutes are: The Wildlife Protection Act, 1972; The Forest Conservation Act,
1980; The Environmental Protection Act, 1986; Water (Prevention and Control of Pollution) Act, 1974; Air
(Prevention and Control of Pollution) Act, 1981
4 See generally: Harish Salve, ‘Justice between generations: Environment and Social Justice’, Chapter 18 in B.N.
Kirpal et. al.(eds.), Supreme but not infallible-Essays in Honour of the Supreme Court of India (New Delhi: Oxford
University Press, 2002) at pp. 360-380
5 See: Tehri Bandh Virodhi Sangharsh Samiti v. State of Uttar Pradesh, 1992 Supp (1) SCR 44.
6Refer: Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity Supply Company, (1991) 2
SCC 539
7 (1987) 2 SCC 295 : AIR 1987 SC 1109; See Divan & Rosencranz (2001) at p. 430
8 Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, (1985) 2 SCC 431 : AIR 1985 SC 652.
9 1992 Supp (2) SCC 448 : AIR 1992 SC 514
10The concept of ‘Absolute liability’ was articulated in the Oleum Gas Leak Case, reported as M.C. Mehta v.
Union of India, (1987) 1 SCC 395
11See generally: Armin Rosencranz and Michael Jackson, ‘The Delhi Pollution case: The Supreme Court of India
and the limits of judicial power’, 28 Columbia Journal of Environmental Law (2003) at pp. 223-249
12 See: Lavanya Rajamani, ‘Public Interest Environmental Litigation in India: Exploring issues of access,
participation, equity, effectiveness and sustainability’, 19 Journal of Environmental Law (2007) at pp. 293-321
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SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.

Page 1 Tuesday, October 11, 2022

24 ALJ (2016-17) 300

The Impact of Environmental Pollution in India and Role of Judiciary to

THE IMPACT OF ENVIRONMENTAL POLLUTION IN INDIA AND ROLE OF JUDICIARY TO

immense projects and incrementing deforestation. In order to address these

construction of a medium-elevate hotel against remonstrations that the building would

equity’. In comparison to other jurisdictions, the relatively early absorption of these

regime. Additionally the purport of state is welfare of denizens and establishment of

Environment was established in 1980 to ensure a healthy environment for the

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