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Published : July 21, 2011 | Author : laksheyender@gmail.com
Category : Environmental Law | Total Views : 21437 | Rating :

Laksheyender Kumar. I am pursuing B.A.,LL.B.(H) 5th year from Jamia Millia Islamia. I want to share some my research work with intrested peoples.

Fundamental Principles of Environmental Protection

Sustainable Development
The concept of sustainable use of earth’s resource is an ancient one. Without the principles of sustainability as a way of life, humans would not have survived in the 20th century. The principle of sustainable development received impetus with the adoption of Stockholm Declaration in 1972, World Conservation Strategy prepared in 1980 by the World Conservation Union (IUCN) with the advice and assistance of the United Nations Environment Programme (UNEP), World Charter for Nature of 1982, Report of the World Commission on Environment and Development under the chairmanship of Geo Harlem Brundtland (Brundtland Report), Our Common Future of 1987, the document Caring for the Earth; A Strategy for the Sustainable Living developed by the second world conservation project comprised of the representatives of the IUCN, UNEP and the Worldwide Fund for the Nature. The concept of sustainable development is the foundation stone of the Montreal Protocol for the Protection of Ozone Layer of 1987 and the instruments adopted at the UN Conference on Environment and Development (World Summit) held at Rio in 1992.

Meaning and Definition
The Brundtland Report defines, ‘sustainable development’ as ‘development that meets the needs of the present generation without compromising on the ability of the future generations to meet their own needs.’ The report emphasizes that sustainable development means an integration of economics and ecology in decision making at all levels.

The Caring for the Earth document defines ‘sustainability’ as ‘a characteristic or state that can be maintained indefinitely’ whereas ‘development’ is defined as ‘the increasing capacity to meet human needs and to improve the quality of human life.’ This means that sustainable development would imply improving the quality of human life within the carrying capacity of the supporting ecosystems.

The concept of sustainable development rejects the old notion that development and environment are antithesis of each other. On the contrary, it emphasizes that development and environment are synthesis of each other. Both are complimentary and mutually supportive.

Sustainable Development is a process in which development can be sustained for generations. It means improving the quality of human life while at the same time living in harmony with nature and maintaining the carrying capacity of the life supporting ecosystem. Development means increasing the society’s ability to meet human needs. Economic growth is an important component but cannot be a goal in itself. The real aim must be to improve the quality of human existence to ensure people to enjoy long, healthy and fulfilling lives.

Sustainable development focuses at integration of development and environmental imperatives. It modifies the previously unqualified development concept. To be sustainable, development must possess both economic and ecological sustainability. The concept of sustainable development indicates the way in which development planning should be approached.

For being sustainable development must be both economic and environmentally viable. The necessary condition for achieving sustainable development is ecological security, economic efficiency and social equity. Sustainable development is, in fact, a multi-dimensional concept involving three interacting aspects–ecology, economy and ethics. Ecological restoration, economic betterment and social justice mutually reinforce one another. In practice environment protection is the development because environment degradation leads to poverty and distorted development. Sustainable development is the only path for conserving and promoting the socio-economic well-being of people.

How Judiciary Interpreted Sustainable Development?
Indian judiciary has demonstrated exemplary activism to implement the mandate of sustainable development. In the past, Indian courts did not refer expressly to sustainable development but implicitly gave effect to it. The Supreme Court has recognized the principle of sustainable development as a basis for balancing ecological imperatives with developmental goals. In Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P., the Supreme Court was faced with the problem of the mining activities in the limestone quarries in Dehradun-Mussoorie area. This was the first case of its kind in the country involving issues relating to environment and ecological balance and brought into sharp focus the conflict between development and conservation. In this case, the Supreme Court emphasized the need for reconciling development and conservation in the larger interest of the country.

In Kinkri Devi v. State of Himachal Pradesh, the Himachal Pradesh High Court observed that if industrial growth sought to be achieved by reckless mining resulting in loss of life, loss of property, loss of amenities like water supply and creating of ecological imbalance then there may ultimately be no real economic growth and no real development.

In People united for Better Living in Calcutta v. State of West Bengal, the Calcutta High Court observed that it is true that in a developing country there shall have to be developments, but that developments must be in harmony with the environment. There has to be a proper balance between the economic growth and environment. So that both can exist without affecting each other.

The Supreme Court in Indian Council for Enviro-legal Actions v. Union of India, recognized polluter pays principle as an integral feature of sustainable development and observed that the remedy and betterment of damaged society is part of the process of sustainable development.

In Vellore Citizens Welfare Forum v. Union of India, the Supreme Court of India recognized the Principle of sustainable development as a basis for balancing ecological imperatives with developmental goods. Rejecting the old notion that development and environment cannot go together, the Supreme Court gave a landmark judgment and held that sustainable development is a viable concept to eradicate poverty. It will improve the quality of human life if human beings live within the carrying capacity of the life supporting ecosystem.

The Supreme Court in A.P. Pollution Control Board v. M.V. Nayudu, observed that in order to ensure that there is neither damage to the environment nor to the ecology and, at the same time ensuring sustainable development it can refer scientific and technical aspects for investigation and opinions to statutory expert bodies having combination of both judicial and technical expertise in such matter.

The Supreme Court in M.C. Mehta v. Union of India, observed that “the development and the protection of environments are not enemies. If without degrading the environment or minimizing adverse effects thereupon by applying stringent safeguards, it is possible to carry on development activity applying the principles of sustainable development, in that eventuality, the development has to go on because one cannot lose sight of the need for development of industries, projects, etc. including the need to improve employment opportunities and the generation of revenue. A balance has to be struck.

In N.D. Jayal v. Union of India, Court held that the right to clean environment and right to development are integral parts of human right covered by Article 21 of Constitution. The Court laid down that the principle of sustainable development is a means to achieve the object and purpose of Environment Protection Act, 1986 as well as protection of life envisaged under Article 21 of Constitution. The Court found that the conditional clearance that the Ministry of Environment and Forests had granted for the construction of Tehri Dam was not properly implemented. The conditional clearance granted by the ministry related to catchment area treatment, command area development, rehabilitation, disaster management, flora fauna, water equality maintenance, Bhagirathi Besan management authority. Supreme Court laid down that disaster management must be integrated with development activities. Court said that people who are displaced from the area on account of the construction of the Dam have a right under Article 21 to lead a decent life and earn livelihood in rehabilitated located. Court observed that rehabilitation must take place 6 months before the sub emergence of area.

In Fertilizers and Chemicals Praveucore limited. employees association v. Law society of India, the court held that where public sector undertakings manufacture chemicals and fertilizers for the larger benefit of the community asking them to relocate as they cause a threat to the life of the people in neighbourhood areas, would not be a practical solution. Therefore court recommended that such industries should continue their production subject to taking effective measures to protect and prevent the risk of environmental accident.

Precautionary Principle
‘Precautionary principle’ plays a significant role in determining whether developmental process is sustainable or not. ‘Precautionary principle’ underlies sustainable development which requires that the developmental activity must be stopped and prevented if it causes serious and irreversible environmental damage. The emergence of precautionary principle marks a shift in the international environmental jurisprudence- a shift from assimilative capacity principle to precautionary principle.

1. Assimilative Capacity Principle: Assimilative capacity principle underlies earlier legal measures to protect the environment. In 1972, the UN conference on Human Environment was held at Stockholm which resulted in the adoption of Stockholm Declaration containing 26 principles. Principles 6 of the Stockholm Declaration contains assimilative capacity principle which assumes that science could provide the policy makers with the necessary information and means to avoid encroaching upon the capacity of the environment to assimilate impacts and it presumes that relevant technical expertise would be available when environmental harm is predicted and there would be sufficient time to act in order to avoid such harm. The assimilative capacity is based on the belief that scientific theories are certain and adequate to provide the remedies for ecological restoration whenever pollution occurs. The principle is built on the foundation of scientific certainties and adequacies. Assimilative capacity principle suffers setback due to inadequacies and uncertainties of science visible in environment context.

2. Assimilative Capacity to Precautionary Principle – A Shift – The uncertainty of scientific proof and its changing frontiers from time to time have led to great changes in the environmental concepts during the period between the Stockholm Conference of 1972 and the Rio Conference of 1992. A basic shift to the approach to environmental protection occurred initially between 1972 and 1982. Earlier the concept was based on the assimilative capacity rule as revealed from principle 6 of the Stockholm Declaration. The emphasis shifted to ‘precautionary principle’ in the principle 11 of the World Charter for Nature adopted on 28 October 1982 by the UN General Assembly by a majority of 111 votes with 18 abstentions and one negative vote casted by the United States. The developing countries overwhelmingly endorsed the Charter. The former pre-1989 Soviet Block found the Charter, an inexpensive and convenient way to demonstrate the fraternity with the isolation of United States in the Green Assembly. The World Charter for Nature proclaims that activities which are likely to cause irreversible damage to the nature shall be avoided.

So, precautionary principle is a principle which ensures that a substance or activity posing a threat to the environment is prevented from adversely affecting it, even if there is no conclusive scientific proof lining that particular substance or activity to the environmental damage. The words ‘substance’ and ‘activity’ imply substance or activity introduced as a result of human intervention.

In Vellore Citizens Welfare Forum v. Union of India (Tamil Nadu Tanneries Case), about 900 tanneries in five districts of the State of Tamil Nadu were discharging enormous amount of untreated effluent consisting of about 170 different types of chemicals into agricultural fields, roadside, waterways and open land. About 35,000 hectares of land became partially or totally unfit for cultivation. The water in the area became unfit for consumption and irrigation purposes. In his judgment, Justice Kuldip Singh (known to be a Green Judge) observed that, “even otherwise once these principles are accepted as part of the Customary International Law, there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of municipal law, that the rule of customary international law, which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall also be followed by the Courts of laws of the country.” One of the significant directions given by the Supreme Court in this litigation was contained in an order passed in 1995 whereby some of the industries were required to set up effluent treatment plants. In another order passed in 1996, the Supreme Court issued notices to some of the tanneries to show cause why they should not be asked to pay pollution fine. The Supreme Court also recognized the Precautionary Principle, which is one of the principles of sustainable development. It was said that in the context of municipal law, the Precautionary Principle means : -

(1) Environmental measures – To anticipate, prevent and attack the causes of environmental degradation.
(2) Lack of scientific enquiry should not be used to postpone measures for prevention of environmental degradation.
(3) The onus of proof is on the actor, developer or industrialist to show that his action is environmentally benign.

The introduction of the ‘onus of proof’ as a factor relevant for environmental protection was developed for the first time in this case. Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (justified) concern or risk potential.

In A.P. Pollution Control Board v. M.V. Nayudu, the Supreme Court made a reference to the Stockholm Declaration and the U.N. General Assembly Resolution on World Charter for Nature, 1982. The principle has recently been extended and quite significantly so, in a case pertaining to the import of hazardous waste, to include the cost not only of avoiding pollution, but also remedying the damage. Reference was made to Principles 15 and 16 of the Rio Declaration and it was said, “The nature and extent of cost and the circumstances in which the principle will apply may differ from case to case.”

The Stockholm Declaration accepted the “assimilative capacity” rule which assumed that the environment could assimilate impacts and science could provide the necessary information and technology to deal with environmental degradation. The World Charter for Nature shifted the emphasis, which came to be known and accepted in the Rio Declaration on Environment and Development, 1992 as the Precautionary Principle. This principle is based on the ‘lack of full scientific certainty’. The basic idea behind this principle is that it is better “to err on the side of caution and prevent activities that may cause serious or irreversible harm. An informed decision can be made at a later stage when additional data is available or resources permit further research.”Significantly, the Supreme Court recognized that environmental concerns are as important as human rights concerns. It was said, “In fact, both are to be traced to Article 21 which deals with the fundamental right to life and liberty. While environmental aspects concern “life”, human rights aspects concern “liberty”. In our view, in the context of emerging jurisprudence relating to environmental matters, - as is the case in matters relating to human rights, - it is the duty of this Court to render justice by taking all aspects into consideration.” In view of certain technical matters involved in this case, the Supreme Court resorted to the provisions of the National Environmental Appellate Authority Act, 1997 and referred two questions for its opinion. After obtaining the report of the Appellate Authority and considering it along with two other reports, the Supreme Court applied the Precautionary Principle and passed appropriate orders.

In Narmada Bachao Andolan v. Union of India, precautionary principle came to be considered by the majority of judges. The Court also took the view that the doctrine is to be employed only in cases of pollution when its impact is uncertain and non-negligible.

In M.C. Mehta v. Union of India, the Supreme Court once again followed the path of sustainable development and directed that the industries operating in Taj Trapezium Zone using a coke/coal as industrial fuel must stop functioning and they could relocate to the alternate site provided under the Agra Master Plan. It further stated that not even 1% chance could be taken when human life a part, the preservation of a prestigious monument like the Taj was involved.

In Shobha Rama Subramanayyam v. The Member Secretary, Chennai Metropolitan Authority, The Court stated that the construction builders have a duty to use modes for digging foundation for multistory buildings, so that it does not cause noise pollution in the neighboring areas.

In S. Jagannath v. Union of India, the Supreme Court held that sea beaches and sea coasts are gifts of nature and any activity polluting the same cannot be permitted. The intensified shrimp (prawn) farming culture industry by modern method in coastal areas was causing degradation of mangrove ecosystem, depletion of plantation discharge of highly polluting effluents and pollution of potable as well as ground water.

The Precautionary Principle led to the evolution of the special principle of burden of proof mentioned inVellore Citizens Welfare Forum. As per this special principle, the burden is on the person wanting to change the status quo to show that the actions proposed will not have an injurious effect, the presumption operating in favor of environmental protection. This concept of ‘reverse onus’ requires that the burden of proof for safety rests on the proponent of a technology and not on the general public – a new technology should be considered dangerous unless proved otherwise.

The Precautionary Principle is relatable to risk assessment and environmental impact assessment. Broadly, it postulates that decisions that may have an impact on the environment need to allow for and recognize conditions of uncertainty, particularly with respect to the possible environmental consequences of those decisions. Under the circumstances, it is essential to take preventive action or avoid effects, which may be damaging even if this cannot be proven.

Polluter Pays Principle
Polluter Pays Principle has become a popular catchphrase in recent times. 'If you make a mess, it's your duty to clean it up'- this is the main basis of this slogan. It should be mentioned that in environmental law, the 'polluter pays principle' does not refer to "fault." Instead, it favors a curative approach which is concerned with repairing ecological damage. It's a principle in international environmental law where the polluting party pays for the damage done to the natural environment. It is regarded as a regional custom because of the strong support it has received in most Organization for Economic Co-operation and Development (OECD) and European Community (EC) countries. International environmental law itself mentions little about the principle.

In recent days, the polluter pays principle is seen as a way of internalizing pollution-related costs within the context of the economic rationality of the enterprise. There is a close relationship between a country's environmental policy and its overall socioeconomic policy. Furthermore, under this principle it is not the responsibility of government to meet the costs involved in either prevention of environmental damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. But State practice does not support the view that all de-pollution costs should be borne by the polluter, particularly where transnational dispute is involved.

The first major reference to the Polluter Pays Principle (PPP) appeared 1972 in the OECD Guiding Principles Concerning International Economic Aspects of Environmental Policies (henceforth called OECD Guiding Principles). The PPP as a guiding principle across countries became necessary because some countries faced complaints by national firms about rising costs and a loss of international competitiveness following a national implementation of the PPP within their borders. The OECD Guiding Principles defines the PPP as an instrument for "... allocating costs of pollution prevention and control measures".

The polluter should bear these costs in order to achieve and maintain a "... acceptable state of environment" which is determined by the public authorities. The OECD Guiding Principles also state that the PPP should "... not be accompanied by subsidies that would create significant distortions in international trade and investment." This weak or standard definition of the PPP neither requires polluters to bear the costs of accidental damages, nor do they have to pay for residual pollution.

The range of costs to be borne by the polluter has expanded over time. In 1989, the OECD suggested extending the PPP in order to cover the costs of accident prevention and to internalize the environmental costs caused by accidents. In 2001, the OECD Joint Working Party on Agriculture and Environment stated that according to the PPP

"... the polluter should be held responsible for environmental damage caused and bear the expenses of carrying out pollution prevention measures or paying for damaging the state of the environment where the consumptive or productive activities causing the environmental damage are not covered by property rights." This version of the PPP is referred to as the extended or strong PPP in the literature.

Only one year later, the European Community followed the example of the OECD Principles from 1972 by adopting the first Environment Action Programme (EAP). Since 1987, the PPP has been part of European Law. It is included in Article 174 of the EU Treaty (1997). Since 1990, when the International Convention on Oil Pollution Preparedness, Response and Co-operation was agreed upon by the International Maritime Organization (IMO), the PPP has been acknowledged as a " ...general principle of international environmental law." In 1992, the Rio Declaration (UNCED) included the PPP in Principle 16: "National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution with due regard to public interest and without distorting international trade and investment."

In Indian Council for Enviro-Legal Action & Ors v. Union of India, (Bichhri Village case) the Supreme Court accepted the Polluter Pays principle. In this case, some chemical factories in Bichhri (Udaipur District) produced hazardous chemicals like oleum etc. These industries did not have the requisite clearances, licences, etc. nor did they have necessary equipment for the treatment of discharged toxic effluents. Toxic sludge and untreated waste waters resulted in the percolation of toxic substances into the bowels of the Earth. Aquifers and subterranean supplies of water got polluted; wells and streams turned dark and dirty; water not only became unfit for human consumption but also unfit for cattle to drink and for irrigation of land. So much so, even the soil became unfit for cultivation. Death, disease and other disasters gradually resulted and the villagers in the area revolted as a result of this enormous environmental degradation. The District Magistrate of the area had to resort to Section 144 of the Criminal Procedure Code to avoid any untoward incident.

A writ petition under Article 32 of the Constitution was filed in the Supreme Court and the Court asked for a report to be prepared by the National Environmental Engineering Research Institute (NEERI) as to the choice and scale of available remedial alternatives. NEERI suggested the application of the Polluter Pays principle inasmuch as “the incident involved deliberate release of untreated acidic process waste water and negligent handling of waste sludge knowing fully well the implication of such acts.” The cost of restoration was expected to be in the region of Rs. 40 crores. The Supreme Court examined all the available material and concluded that the industries alone were responsible for the damage to the soil, underground water and the village in general.

The Supreme Court endorsed the Polluter Pays principle. It was said, “The Polluter Pays Principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of damaged environment is part of the process of sustainable development.”

The Supreme Court held that as per the Polluter Pays principle “… once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised on the very nature of the activity carried on.”

The Supreme Court cited with approval the following passage pertaining to the Polluter Pays principle: - “The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of Government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer.”

Adopting this principle, the Supreme Court directed that “The task of determining the amount required for carrying out the remedial measures, its recovery/realization and the task of undertaking the remedial measures is placed upon the Central Government.” It was directed that the amount so determined should be recovered from the polluting industries.

The villagers were permitted to file suits for recovery of damages, but more importantly, the Supreme Court accepted the principle of absolute liability laid down in the Oleum Gas Leak case and also approved the suggestion for setting up Environmental Courts.

While applying the principle of Polluter Pays, the Supreme Court later expressed the view that compensation to be awarded must have some correlation not only with the magnitude and capacity of the enterprise but also the harm caused by it. The applicability of the principle of Polluter Pays should be practical, simple and easy in application.

In the M.C. Mehta v. Union of India & Ors (Calcutta Tanneries Case), the Polluter Pays principle relating to relocation of industries was applied with a direction to those relocated industries to pay 25% of the cost of land. Those who did not pay for the cost of land were directed to be closed. The Supreme Court again resorted to directions earlier given in Vellore Citizens Welfare Forum for setting up effluent treatment plants.

It needs to be mentioned that a strict interpretation of the Polluter Pays principle requires that the polluter should pay for causing the pollution and consequential costs for any general deterioration of the environment while another view is that the polluter is only responsible for paying the costs of pollution control measures. Generally speaking, the polluter must pay for

• The cost of pollution abatement.
• The cost of environment recovery.
• Compensation costs for victims of damages if any, due to pollution.

In Vellore Citizens Welfare Forum v. Union of India, Resultantly, the Supreme Court recognized Sustainable Development, the Precautionary Principle and the Polluter Pays principle as a part of our environmental jurisprudence.

In S. Jagannath v. Union of India, the Supreme Court held that sea beaches and sea coasts are gifts of nature and any activity polluting the same cannot be permitted. The intensified shrimp (prawn) farming culture industry by modern method in coastal areas was causing degradation of mangrove ecosystem, depletion of plantation discharge of highly polluting effluents and pollution of potable as well as ground water.

We have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country.

Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of law that the rule of Customary International Law which is not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of Law.

Public Trust Doctrine

Another major principle accepted by the Supreme Court is the public trust doctrine for the protection of natural resource. This doctrine came up for consideration in the M.C. Mehta v. Kamal Nath.

A rather unusual situation had arisen in this case. The flow of the river Beas was deliberately diverted because it used to flood Span Motels in the Kulu Manali valley in which a prominent politician's family had a direct interest. The motel was also allotted protected forestland by the State Government and had also encroached on protected forestland, which encroachment was subsequently regularized.

The Supreme Court used the public trust doctrine in this case to restore the environment to its original condition. Briefly, this doctrine postulates that the public has a right to expect that certain lands and natural areas will retain their natural characteristics.

Applying the public trust doctrine, the Supreme Court cancelled the lease of forestland granted in favour of Span Motels and the State Government was directed to take over the area and restore it to its original condition. The motel was directed to pay compensation (damages for restitution of the environment and ecology of the area). It was also asked to show cause why a pollution fine be not imposed.

While deciding the show cause notice regarding imposition of a pollution fine, the Supreme Court held that in law the fine could not be imposed without a trial and a finding that the motel is guilty of an offence under the Water (Prevention and Control of Pollution) Act, 1974. Accordingly, no pollution fine was imposed on Span Motels but it was asked to show cause why it should not pay exemplary damages. After considering the reply of Span Motels, exemplary damages of Rs.10 lakhs were imposed.

Roman law recognized the public trust doctrine whereby common properties such as rivers, seashore, forests and the air were held by the Government in trust for free and unimpeded use of the public. These resources were either owned by no one (res nullious) or by everyone in common (res communious).

In English law, the public trust doctrine is more or less the same but with an emphasis on certain interests such as navigation, commerce and fishing which are sought to be preserved for the public. There is, however, some lack of clarity in this regard on the question whether the public has an enforceable right to prevent the infringement of the interests in common properties like the seashore, highways and running water.

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.

Though the Supreme Court and the High Court of India did not specifically refer to the Doctrine of Public Trust directly, in many cases they have given effect to this doctrine implicitly. Though traditionally the Doctrine of Public Trust was applied only for protection of access to the common for public benefit, now the Doctrine is being applied even to prevent over exploitation of the environment. Now this doctrine is being used as a legal and planning tool for the fulfillment of sovereign’s role as trustee o environment for future generations.

Professor Joseph L. Sax, Professor of Law, University of Michigan, who is also a proponent of the modern public trust doctrine, imposes three restrictions on governmental authorities as noted by the Supreme Court. These are:

• The property subject to the trust must not only be used for a public purpose,

but it must be held available for use by the general public.

• The property may not be sold, even for a fair cash equivalent.

• The property must be maintained for particular types of uses.

It was noted that American Courts have also accepted the public trust doctrine and applied it in their case law and, the Supreme Court observed, it has now become a part of our environmental jurisprudence also.

In M.I. Builders Pvt. Ltd. V. Radhey Shyam Sahu, Lucknow nagar Mahapalika permitted M.I. Builders Pvt. Ltd. (the appellant herein) to construct an underground shopping complex beneath the Jhandewala Park. The major part of the work was completed. The High Court quashed the relevant resolutions that permitted the construction. When it set aside the agreement, the High Court had noticed certain facts. The park was of historical importance, which the Mahapalika did not deny. Preservation or maintenance of the park was necessary from the environment angle. The only reason advanced by the Mahapalika for construction of the underground commercial complex was to ease the congestion in the area. The High Court said that construction of the underground shopping complex would only complicate the situation and the present scheme would further congest the area. The builders appealed. The Supreme Court went on to say that Mahapalika is the trustee for the proper management of the park. When true nature of the park, as it existed, is destroyed it would be violative of the doctrine of public trust as expounded by this court, the court quotes that the idea of public trusteeship rests upon three principles. Firstly, Certain interests like the air and the sea have such importance to the citizenry that it would be unwise to make them the subject of private ownership. Secondly, They should be made freely available to the entire citizenry without regard to economic status. Thirdly, It is principle purpose of government to promote the general public rather than to redistribute public goods from broad public use to restrict private benefit.

Public Liability Insurance
The growth of the hazardous industries, processes and operations in India has been accompanied by the growing risks of accidents, not only to the workmen employed in such undertakings, but also to the innocent members of the public who may be in the vicinity. Such accidents lead to death and injury to human beings and other living beings and damage private and public properties. Very often, the majority of the people affected is from economically weaker sections and suffer great hardships because of delayed relief and compensation. While workers and employees of hazardous installations are protected under separate laws, members of the public are not assured of any relief except through long legal processes. Industrial units seldom have the willingness to readily compensate the victims of accidents. It is, therefore, essential to provide for mandatory public liability for installations and handling of hazardous substances to provide minimum relief to the victims. Such insurance, apart from safeguarding the interests of the victims of accidents, would also provide cover and enable the industry to discharge its liability to settle large claims arising out of major accidents. If the objectives of providing minimum relief are to be achieved, the mandatory public liability insurance should be based on the principle of ‘no-fault’ liability (absolute liability) as it is limited to grant of relief on a limited scale. However, the availability of immediate relief should not prevent the victims to go to courts for claiming larger compensation.

The Public Liability Insurance Act 1991, has been enacted with the object of providing immediate relief to the victims of accidents that might occur while handling of hazardous substances. The owner who has control over handling of hazardous substances is required under the Act to pay specified amounts to the victims as interim relief based on ‘no-fault’ liability. The Act stipulates the maximum compensation for injury or death at Rs. 25,000 and limits compensation in respect of damage to private property to Rs. 6000. The right of a victim to claim additional relief under any other law is expressly reserved. The Act makes it mandatory for every owner handling hazardous substances to take out insurance policies covering potential liability from an accident. An ‘accident’ is defined to cover a sudden unintended occurrence while ‘handling’ any hazardous substance resulting in continuous, intermittent or repeated exposure leading to death or injury to any person, or damage to property or the environment. Accidents by reason of war or radio-activity are excluded from the scope of the Act.

The expression ‘handling’ is defined widely to include manufacture, trade and transport of hazardous substances. However, the Act could not be implemented on account of the insurance companies not agreeing to give insurance policies for unlimited liability of the owners. It was, therefore, felt that the liability of the insurance companies should be limited to the amount of insurance policy though the owner’s liability should continue to be unlimited under the Act. It was also considered appropriate to create an Environmental Relief Fund established by the Central Government with the additional money collected from the owners having control over handling of hazardous substances. This fund was also required to be used to meet the requirement of providing immediate relief to the victims. The principal administrative authority under the Act is the collector, who is required to verify the occurrence of an industrial accident, give publicity to the event and invite applications for compensation and award relief. The minimum and maximum limits of the insurance amount in an insurance policy also needed to be specified for ensuring payment of adequate relief. Accordingly, the Public Liability Insurance (Amendment) Ordinance 1992, was promulgated by the President on 31 January 1992, as the owners handling hazardous substances had to take insurance policies by 1 March 1992. The Ordinance was replaced by the Public Insurance (Amendment) Bill 1992, which after being passed by both the Houses of Parliament received the assent of the President on 1 March 1992, and became the Public Liability Insurance (Amendment) Act 1992.

Authors contact info - articles The  author can be reached at: laksheyender@legalserviceindia.com

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