PROJECT

ENVIRONMENTAL LAW

Classical and common law

Remedies

For Environmental protection

Submitted To: Submitted By

Dr. Ghulam Yazdani Kamlesh Rai

BA L.L.B

Self finance

6 th semester

2017 - 2022

JAMIA MILLIA ISLAMIA

CENTRAL UNIVERSITY

NEW DELHI
Table of content

 Introduction
 Law and Policy Relating to Environmental Protection in Ancient India
 Vedic Approach to Environment
 Buddhism and Environmental Protection
 Jainism and Love for nature
 Resource conservation and Mauryan Administration
 Evolution of Environmental Law and Policies during British rule
 Common Law Environmental Remedies
 Penal Provision vis-à-vis Environmental Protection in India
 Conclusion
 Bibliography
Introduction

The realization of the close relation human beings share with the environment
could be one reason for the sudden development of this phenomenon. Without a
second thought one can say that the survival of mankind on this earth becomes
doubtful in the absence of the environment and the natural resources. While
such discussions and realizations are the intellectual by-products developed
in the current century, the history of bonding between human beings and
environment begins right from the origin of human species. We know that the
Earth and life on Earth developed together. While the geological processes
moulded. Earth, its changing geology complemented the evolving life forms. It
was not an easy process, the different geological breaks and rifts suggest
that many species could not sustain the climatic changes. Studies have
proved that various species evolved by genetic replacement and the surviving
members of a species adapted to the new environmental conditions caused
by geological disruptions and predation. Ever since the life originated in
the earth, they had to depended on nature and the natural resources that exist
freely in nature for their survival. These include water (seas and fresh water),
land, soils, rocks, forests (vegetation), animals (including fish), fossil fuels
and minerals. These “Natural Resources” form the basis of life on earth. In
the early stages of human emergence, man also adapted himself to natural
environment like other living organisms which was quite challenging. In
course of time, the population explosion demanded more of resources resulting
in the imbalance of the nature and along with it emerged new threats in our
environment. Today, evidences can be drawn from many parts of the earth
about being; major and undesirable disturbances to the ecological balance of
the biosphere, destruction and depletion of irreplaceable resources; and gross
deficiencies harmful to the. However, man should have followed three major
steps to understand the nature and its importance leading ourselves to not to
avoid nature. First, a comprehensive perspective on the human past with an
understanding of the natural forces working over centuries. Second, a
magnified investigation of the brief timeframe scale-say for as long as
three to four centuries-which has seen both the global recovery from the
Little Ice Age and the beginning of quick human-induced atmosphere
changes. Third, a comprehension of the revolution occurred in the climate
science, driven since the 1960s by a developing comprehension of the job of
non-renewable energy source innovation in changing worldwide atmosphere.1

Law and Policy Relating to Environmental Protection in Ancient India

Environmental awareness can be said to have existed even in the pre-vedic

Indian valley Civilization which flourished in northern India about 5,000 years
ago. This is evident from the archaeological evidence gathered from Harappa
and Mohenjo-Daro which were the prominent cities of the civilization. Their
awareness about hygiene and sanitation as evident from their constructions of
ventilated houses, orderly streets, numerous wells, bath rooms, public baths and
covered underground drains.2

1
John L Brooke, “ Climate change and the course of global history: A rough journey “

2
Jonathan Mark Kenoyer, "The Indus Valley tradition of Pakistan and Western India". Journal of World
Prehistory, (1991),p.42
Vedic Approach to Environment

The idea of environmental protection and conservation of natural resources can

be traced to vedic civilization where worship of nature appears to have
originated and the vedic views revolve around the concept of nature and life.
The ancient vedic literature encompasses a holistic attitude of the cosmic vision
in a poetic way. Veda appears to impose obligations on the society and
individuals to worship nature through worshipping trees. The worshipping of
Vanaspathi, tree having thousand branches is aking to worshipping the entire
creation.3 Atharva Veda examines the importance of forest conservation and
preservation and protecting of three particular trees namely, “Parijath, banyan
and pepal”.4 Ancient Indian seers and scholars advocated wise use of water even
though India is blessed with perennial rivers and heavy rainfall. It was found in
western part of Rajasthan during ancient period houses were constructed in such
a way that each had a roof top rainwater harvesting system. Several Vedic
hymns are prayers maintaining balance in the functioning of all aspects of
nature and it is argued that some of those ideas expressed in them resemble
modern principles relating to conservation of resources. For instance the
twenty-fifth Rio principle talks about how “peace, development and
environmental protection are interdependent and indivisible.”5 Ancient Indians
believed that ecological balance is dependent on actions, good or bad, of
individuals and society. Accordingly Rigveda says: “Environment provides
bliss to people loading their life perfectly. River bliss us with the sacred water,
and medicines provides us health, might, morning, vegetation, sun bliss us with
peaceful life. The vedic culture emphasized conservation of five species of
trees, namely, banyan, puople, ashok, lela and havada. The banyan is a self
generating plant associated with fertility and longevity. It is the abode of Lord
3
Available at: www.sanskrit. nic.in /svimarsha/v2/c17
4
Ibid.,
Shiva and it is shady, healthful and medicinal. The peepal is perhaps the most
sacred of all trees in India even today. It was also insisted that every village
must have a small jungle where in apart from the above five trees others are
grown and protected, and this obligation can be compare to modern concept of
social forestry.

Buddhism and Environmental Protection

It has been argued that while many human centric western religions, Buddhism
is eco-centric. Gautam Buddha admired trees stating that trees provide shade
and shelter to the person who is planning to destroy trees. He preached in
Vanaropa Sutra in Sanyukta Nikaya that gardening and aforestation are acts
which increase doers’ merit every day. Environment and natural resources are
considered as things not inherited from the past generation but things borrowed
from the future generations. If we destroy natural resources base or pollute
environment, future generation will find it difficult to survive. Environmental
pollution has reached such an alarming rate that world is increasingly becoming
unsuitable for human habitation. Buddhism is the only religion which has taught
its followers to think of future generations. In Kariya metts Sutra, Budha while
insisting on compassionate to all living beings said “whatever breathing
creatures here may be no matter whether they are frail or firm, or middle sized
or be they short or small or whether they are dwelling far or near existing or yet
seeking to exist may beings all be of a blissful heart”. 5 Buddhism while
specifying certain virtues of rulers insists that an ideal king is expected to
protect not only the people but also forests, animals and birds. Buddhist king
Asoka’s 5th Pillar Edict prohibits killing of certain species of animals and birds.
Firstly, birds and animals such as Cakravaka-geese, swans, nandi mukhas,
pigeons, bats, ants shall not be killed. Secondly, fishing was prohibited on
5
http://www.buddhanet.net/pdf_file/deep_ecology.pdf
certain days in a month. Thirdly, on certain days cattle and horses are not to be
branded. Buddhism further taught the need for environmental education and
therefore it is asserted that foundations for modern environmental protection
were firmly laid in Buddhism.

Jainism and Love for nature

Reverence for all forms of life is deeply ingrained in the Jain Ethos. It is
strongly asserted that every living being wants to live. Sorrow and killing are
not liked by any living being. All beings have the right to live. Non-violence is
for the welfare of all beings. Lord Mahavira has said “To kill or to hurt any
living being amounts to killing or hurting oneself. Compassion of others is
compassion to one’s own self.”9 Man should live in harmony with all beings
and nature. Hence, the relevance of Jain concept of nonviolence which can
bring in adaptability in modern life style and may help us change the attitude of
people in today’s world of consumerism and terrorism.

Resource conservation and Mauryan Administration

The regulation of human activities in the interest of protecting environment and

conserving natural resources were developed during Mauryan period. Several
offices were created for enforcement of norms relating to environmental
protection. Firstly, Suvarnadhyaksha was responsible for exploring minerals,
mining, processing, producing trading and conserving resources. He was
primarily required to set up factories for processing gold and not to allow
unauthorized persons to produce gold and other metals. Secondly,
Kuppyadhyaksha was required to procure forest product and convert them into
useful products. Seetadhyksha was involved in collecting seeds of all kinds,
flowers, fruits, vegetable, roots and other products. He was in charge of
regulating agriculture. For Mauryas most important forest product was
elephants and Kautilya unambiguously specifies the responsibilities of officials
in respect of protecting and preserving Elephant forests. 6 Kautilya in
Arthashatra laid down certain norms relating to conservation of forests. Firstly,
state to maintain forests and said “Rulers shall not only protect forest produce,
elephant forest but also set up new ones. Forests shall be grown, one for each
forest produce and factories for goods made from forest produce shall be
erected, and foresters working in the produce forests shall be settled there”.
Secondly, selling, certain trees and plants without approval of authorities was
made punishable and penalties were levied for cutting branches, destroying
trunks and uprooting trees. Thirdly, the Superintendent of forests shall fix
adequate fines and compensations to be levied on those who cause any damage
to productive forests except in calamities. Fourthly, for the purpose of
protection of wild life the Superintendent of slaughter house was empowered to
punish those persons killing certain types of wild animals, deer, lions, birds, or
fish which are declared to be under state protection. It can be said that seeds of
certain modern wild life conservation originated during Mauryans
administration. Lastly, the Superintendent of slaughter house was empowered to
levy fee for hunting those wild animals not prohibited from hunting.7

Evolution of Environmental Law and Policies during British rule

The overexploitation of natural resources and plundering of nature started in

India during early British rule. The abundant natural resources such as forest
6
The Indian Economic Social History Review
7
P.K. Gupta, Kautilyan Jurisprudence, (New Delhi: Oxford University Press, 1987), p.155
products and minerals became a chief source of raw material for industries.
During the days of East India Company rule ruthless exploitation of timber from
Indian forests and trade in natural resources transferred natural wealth to Britain
and Indians were pushed to misery and poverty. For the purpose of legitimizing
ruthless exploitation of timber forests and natural wealth Britisher’s introduced
forest policy to prohibit private exploitation of forest resources and public
regulations authorizing the government to exploit forest resources. Thus forest
department was setup during British rule in provinces and in some princely
states. The first show of interest towards the conservation of forest resource
found the reservation of teak forests in Malabar in 1806, and it was dicted by
strategic imperial needs. This was the result of depletion of the Oak Forest in
England and other western countries and the increasing demand for timber for
ship building industry and increasing demand from railways. Devoid of good
forests in Britain, Britishers realized the commercial value of Indian forests and
tried to establish a rigid system of control over them. One can trace the
beginning of the systematic forest policy to 1855, where the Governor General,
Lord Dalhousie, issued a memorandum on forest conservation called the
‘Charter of Indian Forests’. He suggested that teak timber should be retained as
state property and its trade strictly regulated. The first step towards the
organized forest management was taken in 1864 with the appointment of First
Inspector General of Forests. The Forest Policy statement of 1894 classified
forests into four categories. They are (i) forests, preservation of which was
essential on climate and physical grounds, (ii) Forests, which supplied valuable
timber for commercial purposes, (iii) minor forest which produced only inferior
sorts of timber and (iv) pastures which were forest only for namesake. The
policy was opposed by many on the ground of lack of recognition of rights of
forest dwellers; it allowed unchecked exploitation by the Government and
diversion of forest land to agriculture and plantation and no provision for wild
life protection and private forests.8

Common Law Environmental Remedies

The common law actions are civil suits in which the plaintiff (the party bringing
the lawsuit) seeks to remedy a violation of a right. Civil actions are
distinguished from criminal proceedings. Criminal actions are those in which
the state seeks to redress a breach of public or collective rights that are
established in codified penal law.

The three types of common law actions most commonly encountered in the
environmental field are:

(1) Nuisance,

(2) Trespass

(3) Negligence

Nuisance

Nuisance is the most frequently pled common law action in environmental

litigation. Nuisance law traditionally protected the right of a landowner to use
and enjoy property. Nuisance is defined as “that activity which arises from the
unreasonable, unwarrantable or unlawful use by a person of his own property,
working an obstruction or injury to the right of another or to the public, and
producing such material annoyance, inconvenience, and discomfort that the law
will presume resulting damage.” The general rule is that a person may use his
land or personal property in any manner he sees fit. However, this rule is subject
8
Tilak, Amod S, “Environmental Law” (New Delhi: Snow White Publications, 2009), p.152.
to limitation. The owner must use his property in a reasonable manner. A
nuisance arises whenever a person uses his property to cause material injury or
annoyance to a reasonable neighbour. Odors, dust, smoke, other airborne
pollutants, water pollutants and hazardous substances have all been held to be
nuisances. Nuisance actions come in two forms: public and private. Under both
private and public nuisance law, the plaintiff must prove that the defendant’s
activity unreasonably interfered with the use or enjoyment of a protected
interest and caused the plaintiff substantial harm. The tier of fact determines
whether an activity is unreasonable by balancing the social utility of the
activities against the harm they create. Plaintiffs have used private nuisance
actions to gain compensation and force polluters to discontinue interference
with their physical private property as well as with their comfort and enjoyment
of their property. In Boomer et al. v. Atlantic Cement Company, 257 N.E.2d
870 (N.Y. 1970), the plaintiffs claimed that the dirt, smoke, and vibrations
coming from the defendant's cement plant caused injury to their property. The
property owners sought damages and an injunction to close the plant. The plant
already employed the best pollution control technology. The Boomer court
addressed the economic consequence of the injunction and the effect of the
nuisance. The court weighed the economic effect of closing the plant against the
harm to the individual plaintiff's land, and concluded that the cement company
could pay permanent damages in lieu of an injunction or closing. This case
illustrates the limitations of private nuisance law to remedy pollution. Courts
typically balance the equities and hardships. Private nuisances do not always
outweigh the economic contribution of the polluting entity. Public nuisance law
protects from interference a "right common to the general public." Plaintiffs
may bring a public nuisance action if there are damages, interference, or
inconvenience to the public. A state may assert a public nuisance action as an
exercise of its police powers--the typical situation. A private citizen may bring a
public nuisance action only if he or she can show that he or she has suffered
from a harm that can be distinguished from that suffered by the members of the
general public. Village of Wilsonville v. SCA Services, Inc., 426 N.E.2d 824
(Ill. 1981), is a case in which the plaintiffs, a village and other governmental
bodies, alleged that the defendant's hazardous chemical landfill was a public
nuisance. The plaintiffs sought to enjoin the operations of the landfill and
require removal of toxic waste and contaminated soil. The court found that there
was a substantial danger of groundwater contamination and explosions from
chemical reactions. Although the damages were prospective, the nuisance
already was present. Therefore, the court granted an injunction and ordered a
site clean-up. “Coming to a nuisance” is the phrase used to describe a defense
that the complainant or plaintiff affected by the nuisance moved into the area
where the complained about activity” had already been in existence. An
example of “coming to a nuisance” occurs when someone moves onto property
near an airport or industrial complex and then complains of the nuisance that
existed prior to his moving there. Generally, the fact that an individual
purchases property with the knowledge of the existence of a nuisance or that he
came to the nuisance will not defeat his right to the abatement of the nuisance or
recovery of damages. Nuisance is related to unlawful interference with one's
enjoyment of land or any right arising from it, thereto. It may be categorized
into Public Nuisance or Private Nuisance. As the name suggests, public
nuisance deals with interference with a right pertaining to public. Whereas,
private nuisance is interference with right which is exercised exclusively by a
private entity or an individual. There are a few remedies available vis-à-vis
public nuisance in Criminal Procedure Code, 1973. Section 91 of the Criminal
Procedure Code, 1973 prescribes that a suit may be filed to obtain a suitable
relief or injunction for any cause of action affecting or likely to affect public
nuisance. Also, in Criminal Procedure Code, a magistrate is empowered to
restrain any person from carrying out an act that may give effect to public
nuisance.9 In Ramlal v. Mustafabad Oil and Oil Ginning Factory10, the Punjab
and Haryana Court observed that once a noise is found to be above the
necessary threshold to attract the liability of public nuisance, it is no valid
defence to contend that such noise arose out of any legal activity. Apart from
this, public nuisance has been made punishable under the Indian Penal Code,
1860.

Trespass

Trespass is distinguished from nuisance in that trespass is interference with the

possession of property whereas nuisance is interference with the use and
enjoyment of property. Trespass to land is an unlawful, forcible entry on
another’s realty. An injury to the realty of another or an interference with
possession, above or below ground, is a trespass, regardless of the condition of
the land and regardless of negligence. Trespass to land is the type of trespass
action that is generally used in pollution control cases. In an action for trespass
to land, entry upon another’s land need not be in person. It may be made by
causing or permitting a thing to cross the boundary of the premises. The trespass
may be committed by casting material upon another’s land, by discharging
water, soot or carbon, by allowing gas or oil to flow underground into someone
else’s land, but not by mere vibrations or light which are generally classed as
nuisances. In the case of Martin v. Reynolds Metal Co the deposit on Martin’s
property of microscopic fluoride compounds, which were emitted in vapor form
from the Reynolds’ plant, was held to be an invasion of this property—and so a
trespass. The line between trespass and nuisance is sometimes difficult to
determine. The distinction which is now accepted is that trespass is an invasion
of the plaintiff’s interest in the exclusive possession of his land, while nuisance
is an interference with his use and enjoyment of it.

9
Section 133 of Criminal Procedure Code, 1973
10
AIR 1968 P&H. 399
Negligence

“Negligence” is “the omission to do something which a reasonable man, guided

by those ordinary considerations which ordinarily regulate human affairs, would
do, or the doing of something which a reasonable and prudent man would not
do. Negligence is that part of the law of torts which deals with acts not intended
to inflict injury. The standard of care required by law is that degree which
would be exercised by a person of ordinary prudence under the same
circumstances. This is often defined as the “reasonable man” 4 rule, what a
reasonable person would do under all the circumstances. In order to render the
defendant liable, his act must be the proximate cause of injury. Proximate cause
is that which in the natural and continuous sequence, if unbroken by an efficient
intervening act, produces injury and without which the result would not have
happened. Nissan Motor Corp. v. Maryland Shipbuilding and Drydock
Company exemplifies a negligence action in an environmental case. The
shipbuilding company’s employees failed to follow company regulations when
painting ships, allowing spray paint to be carried by the wind onto Nissan’s
cars. The shipbuilders had knowledge of the likely danger of spray painting, yet
failed to exercise due care in conducting the painting operations in question.
This failure to exercise due care amounted to negligence. Persons harmed as a
result of careless and improper disposal or handling of hazardous waste can
recover for their losses under a negligence cause of action. Indeed, state and
federal courts have long recognized this common law theory of recovery against
defendants who engage in the negligent disposal of pollutants such as hazardous
waste. Where negligence can be established, it is no defense that the negligent
action was in full compliance with all government regulations and permit
conditions. On the other hand, noncompliance with regulations or a permit may
be prima facie evidence (proof without any more evidence) of liability in some
states. It is a point to note that in order to bring a successful action vis-à-vis
negligence, it is necessary to establish a direct nexus between negligence and
the damage caused. The other ingredient that constitutes negligence is that the
respondent did not take sufficient care to avoid public nuisance that the person
was required to take such care under the law. In Naresh Dutt Tyagi v. State of
Uttar Pradesh11, fumes released from the pesticides leaked to a nearby property
through ventilators that resulted in the death of three children and foetus in a
pregnant woman. It was held by the court that it was a clear-cut case of
negligence.

Strict Liability

The concept of strict liability started from the case of Rylands v. Fletcher12, "the
person who, for his own purposes, brings on his land and collects and keeps
there anything likely to do mischief, if it escapes, must keep it in at his own
peril and if he does not do so, is prima facie answerable for all the damage
which is the natural consequence of its escape" 13. The exceptions to the rule of
strict liability are as follows:

i.) Act of God

ii.) Act committed by a third party

iii.) Any fault committed by plaintiff himself

11
1995 Supp (3) SCC 144
12
1868 LR 3 HL 330
13
 Ibid.
iv.) An act committed after obtaining expressed or implied consent of the
plaintiff

v.) Natural use of land by the defendant

The locus classicus vis-à-vis strict liability in Indian setting is M C Mehta v.
Union of India14, popularly known as Oleum Gas Leak Case. In this case, the
Hon'ble Supreme Court observed that if a hazardous or inherently dangerous
activity is being carried out in any premises and in case of a release of such
toxic substance any damage is caused, such enterprise is strictly and absolutely
liable for all the damages arising thereto, and any of the exceptions listed out
above are not applicable as a defense in a case of strict liability. In addition to
this, the court also held in the Union Carbide Corporation v. Union of
India15 that the compensation has to be directly proportional to magnitude and
capacity of the enterprise because such compensation needs to have a deterrent
effect.

Penal Provision vis-à-vis Environmental Protection in India

There are specific penal provisions in various legislations for the protection of
environment. Chapter XIV of the Indian Penal Code (hereinafter referred as
IPC), containing section 268 to 294-A, deals with offences relating to public
health, safety etc. The main object of these provisions is to protect the public
health, safety and convenience by rendering those act\s punishable which make
the environment polluted and dangerous to the life of an individual.

14
A.I.R 1987 S.C. 1086.
15
1991 4 SCC 584
Section 268 of the Indian Penal Code, 1860, defines the term public nuisance
and section 290 of the IPC makes public nuisance punishable. Thus, under these
provisions if any act or omission causing injury to any person by polluting the
environment takes place, the same can be subjected to prosecution. Noise
pollution is also punishable under Section 268 of IPC. In K Ramkrishnan v.
State of Kerala.16, the court held that smoking in public place comes under the
category of public nuisance. It is punishable under section 290 of Indian Penal
Code. Also, in Murli S. Deora v. Union of India17, the Supreme Court held that
under Article 21, smoking in public place is a violation of fundamental right of
those who don't smoke.

Sections 269 to 271 deal with negligent acts which are likely to spread infection
of diseases dangerous to the life of people. These acts are punishable under
sections 269 to 271. The punishment provided u/s 269 and 271 is imprisonment
up to six months or fine or both. Section 277 can be used for preventing the
water pollution. Under section 277 punishment of imprisonment is up to three
months or a fine up to 500 Rupees or both. Apart from these, under section 426,
430, 431 and 432 of IPC, pollution caused by mischief is also punishable.

There are two primary legislations that enlist penal provisions for violation of
the law propounded in those legislations. They are The Water (Prevention and
Control of Pollution) Act, 1974, and Environment (Protection) Act, 1986.
According to Section 47 of The Water Pollution Act, a person is vicariously
liable for the offence committed by the company if such person is in charge of
the functions committed by the company or for conduct of business of the
company. This is indispensible ingredient to constitute a case under S. 47 of the
Act. However, the defense available under this section is that the offence in

16
A.I.R. 1999 Ker. 385
17
2001 8 SCC 765
question must have been committed without knowledge or consent of the
accused in question.

"It also needs to be noted that Section 16 of Environment Act and Section 47 of
The Water Act are parimateria to each other. Herein, it is paramount that the
complaint contains specific averments against the accused. It is not out of place
to mention that the provisions of Section 16 of the Environment (Protection)
Act 1986 are parimateria to the Section 141 of the Negotiable Instrument Act as
well as Section 25 of the Contract Labour (Regulation and Abolition) Act, 1970,
and Section 278 B of the Income Tax Act. The Hon'ble Supreme Court while
dealing with the cases under Negotiable Instruments Act in National Small
Industries Corporation Ltd. vs Harmeet Singh Pental and another reported in
2010 (3) S.C.C. 330 has held that it is mandatory for the complainant to make
averments in the complaint petition that the accused is directly in charge and
was responsible to the company for the conduct of the business of the company.
The Hon'ble Supreme Court said that if the said necessary ingredient is missing
in the complaint petition, then in that case, prosecution launched against the
accused cannot be sustained."
Conclusion

It has been observed that there are more than enough legislations that try to deal
with the menace of environment degradation. The massive amount of legislation
has led to a situation of confusion and difficulty in enforcement. To deal with
the same, there is a need for a strong integrated legislation that can provide a
much clearer and integrated approach which can provide the necessary
protection to environment. Also, the pollution boards have been given the
powers to launch prosecution before the court of law to bring the violators to
book as far as environmental degradation is concerned. The idea of giving
quasijudicial powers to these boards can be considered so they can impose
penalty upon those who violate the law and also reduce the burden on the
already overburdened courts.
Bibliography

 John L Brooke, “ Climate change and the course of global history: A

rough journey “
 Tilak, Amod S, “Environmental Law” (New Delhi: Snow White
Publications, 2009), p.152.
 The Indian Economic Social History Review
 P.K. Gupta, Kautilyan Jurisprudence, (New Delhi: Oxford University
Press, 1987), p.155
 Available at: www.sanskrit. nic.in /svimarsha/v2/c17
 http://www.buddhanet.net/pdf_file/deep_ecology.pdf
 Section 133 of Criminal Procedure Code, 1973