The Conventional Idea of Environment
Chapter Five
Syllabus topic 1, "The Idea of Environment"
Pages 17 to 21 of 595
In one line
Conventionally, the environment was a person's immediate surroundings, and the law protected it only where one person's use of land interfered with another person's use of land.
In the wording a student can write in an exam: the conventional concept of environment treated the environment as local, physical and human-centred. It was protected indirectly, through the law of nuisance, the law of easements, public health regulation and a handful of criminal provisions, and it was protected only for the benefit of identifiable persons who could show an interference with their own enjoyment.
Why the conventional idea has to be understood first
Because the modern idea is defined against it. Every characteristic of modern environmental law, its concern with risk rather than damage, its reversal of the burden of proof, its willingness to hear a stranger, its interest in future generations, exists because the conventional law could not do one of those things.
A student who describes only the modern concept is describing an answer to a question they have not stated. The examiner's phrasing, "from conventional to modern", is asking for a development, and a development needs a starting point.
The four features of the conventional idea
It was local. The unit was the neighbourhood. A factory harmed the people next to it; a drain harmed the street it ran down. Nothing in the framework could deal with a harm that arrived from three hundred kilometres away or from a hundred sources at once, because there was no way to connect a defendant to a plaintiff.
It was anthropocentric. Damage counted when it hurt a human being or human property. A river was of legal interest because people drank from it, washed in it and fished in it. The fish themselves were of no interest at all except as somebody's catch, and a species that nobody used had no standing of any kind.
It was reactive. The law moved after harm had occurred. A nuisance action needs damage; a prosecution needs an offence committed. There was no machinery for asking, before a factory was built, what it would do to the air.
It was proprietary. Access to the courts followed ownership. In private nuisance the plaintiff had to have an interest in the land affected. A person who merely walked past every day, or who cared about the river without living on it, had no standing.
What the conventional law actually consisted of
It is worth being specific, because a vague answer here reads as though the student has never met the material.
Private nuisance. An unlawful interference with a person's use or enjoyment of land, or of some right over it. Smoke, smell, noise, vibration and the escape of substances were all actionable if they were substantial and unreasonable. The remedy was damages or an injunction.
The Conventional Idea of Environment
Public nuisance. An act or omission causing common injury, danger or annoyance to the public or to people in general who dwell or occupy property in the vicinity. It was defined in section 268 of the Indian Penal Code 1860, and sections 277 and 278 created specific offences of fouling the water of a public spring or reservoir and of making the atmosphere noxious to health.
Those provisions are no longer the law. The Penal Code was repealed and replaced by the Bharatiya Nyaya Sanhita 2023 with effect from 1 July 2024, and the three provisions now read as follows. Section 270 carries the definition of public nuisance in the same words. Section 279 punishes voluntarily corrupting or fouling the water of any public spring or reservoir so as to render it less fit for the purpose for which it is ordinarily used, with imprisonment up to six months or a fine up to five thousand rupees or both. Section 280 punishes voluntarily vitiating the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way, with a fine which may extend to one thousand rupees. Section 292 is the residuary punishment for a public nuisance not otherwise punishable, again a fine up to one thousand rupees.
A private person could sue on a public nuisance only if they had suffered special damage over and above that suffered by the public. Note the scale of the penalties: a thousand rupees for making the air of a neighbourhood noxious is what the conventional law thought the wrong was worth, and it is the single most eloquent fact about why a different regime had to be built.
The magistrate's power to order removal of a nuisance. A summary power, exercised on a conditional order, to require a public nuisance to be removed or a trade injurious to the health or physical comfort of the community to be prohibited or regulated. This was section 133 of the Code of Criminal Procedure 1973, which is the provision the Ratlam case turns on. The Code was repealed and replaced by the Bharatiya Nagarik Suraksha Sanhita 2023 with effect from 1 July 2024, and the power is now section 152 of that Sanhita in substantially the same terms. The subject is treated separately in module IV.
Negligence, and the rule about escaping things. The nineteenth century English rule on escaping things, that a person who brings on to their land something likely to do mischief if it escapes keeps it at their peril, subject to a set of exceptions. The rule, and the case that laid it down, are the ancestor of absolute liability and are worked in full in the chapter on that subject.
The Conventional Idea of Environment
Public health and municipal law. The Bombay Shops and Establishments legislation, municipal Acts, the Factories Act 1948 and the older sanitation statutes. This is where most of the practical regulation actually sat.
Worked example
Sitabai's house in a small town backs on to a flour mill that runs a diesel engine from five in the morning. Soot settles on her washing, the noise wakes her family, and the vibration has cracked a wall.
Under the conventional law she has a case, and it is a good one. She has an interest in the land affected, the interference is substantial and continuous, and each of the three heads of damage is the kind a nuisance action was built for. She can sue for damages and for an injunction, and she can complain to the magistrate under section 133 if the nuisance is public.
Now change one fact. The mill closes and a chemical unit opens fifteen kilometres upstream on the river from which the town draws its water. Nobody can taste anything. Ten years later the incidence of a particular illness in the town is measurably higher than in the district around it, and the epidemiologists say the cause is probably, though not certainly, a compound the unit discharges.
Under the conventional law Sitabai has nothing. She cannot show interference with her enjoyment of her own land. She cannot prove that this defendant caused her illness rather than any other cause. She cannot sue before the harm occurs, and by the time it has occurred the proof is beyond her. She is not a riparian owner. And the loss to the river itself, as a river, is not a loss the law can see at all.
That second paragraph is the whole case for modern environmental law, and it is the best way to answer the University's question.
Where the conventional idea broke
Four failures, and each produced a modern doctrine as its answer.
- It could not deal with diffuse harm. Many sources, one victim, or one source and a million victims. The answer was regulation by standard, administered by a Board, which is what the Water Act 1974 and the Air Act 1981 introduced.
- It could not deal with uncertain harm. Proof of causation in an environmental case is often impossible, and by the time it is available the damage is irreversible. The answer was the precautionary principle, which reverses the burden.
- It could not deal with the person who was not a neighbour. The answer was the relaxation of standing and public interest litigation.
- It could not deal with the resource itself. Nobody owned the river, so nobody could sue for it. The answer was the public trust doctrine, which makes the State a trustee, and the extension of Article 21.
The Conventional Idea of Environment
What the conventional idea does NOT mean
It does not mean there was no environmental law before 1972. There was a great deal of it, and it worked reasonably well for the problems it was built for. The Indian Forest Act 1927 is older than most modern environmental statutes anywhere, and the nuisance provisions of the Penal Code are from 1860.
It does not mean the conventional law is dead. A nuisance action still lies, section 133 is still used, and the Ratlam order was made under it in 1980. The modern law was built on top of the old, not in place of it.
Distinctions that carry marks
| Conventional idea | Modern idea | |
|---|---|---|
| Scale | Local, neighbourhood | Local, national and global at once |
| Whose interest | An identified human being, usually a landowner | Human beings generally, other species, and future generations |
| When the law acts | After damage | Before damage, on a risk |
| Who may complain | A person with an interest in the affected land | Any member of the public, and the court on its own motion |
| Burden of proof | On the complainant | On the developer, under the precautionary principle |
| Remedy | Damages and injunction | Damages, injunction, closure, restoration, and continuing supervision |
| Source of law | Common law, penal code, municipal statutes | Constitution, dedicated statutes, international instruments, judicial doctrine |
Quick revision
- The conventional idea was local, anthropocentric, reactive and proprietary.
- It was carried by private and public nuisance, the nuisance offences of the Penal Code, the magistrate's power to order removal of a nuisance, negligence, the rule about escaping things, and municipal and public health law. The Penal Code and the Code of Criminal Procedure were repealed on 1 July 2024: the offences are now sections 270, 279, 280 and 292 of the Bharatiya Nyaya Sanhita 2023 and the magistrate's power is section 152 of the Bharatiya Nagarik Suraksha Sanhita 2023.
- It failed in four ways: diffuse harm, uncertain harm, the stranger who cares, and the resource nobody owns.
- Each failure produced a modern answer: regulation by standard, the precautionary principle, public interest litigation, and the public trust doctrine.
- It is not dead. Ratlam was decided under the magistrate's nuisance power in 1980, and a nuisance action still lies.
Test yourself
1. Name the four features of the conventional idea of environment.
Local in scale, anthropocentric in the interest it protected, reactive in that it moved only after damage, and proprietary in that access to the court followed an interest in the affected land.
The Conventional Idea of Environment
2. Why could the conventional law not deal with a chemical unit fifteen kilometres upstream?
Because the plaintiff cannot show an interference with the enjoyment of her own land, cannot prove that this defendant caused her particular harm rather than some other cause, has no standing as a stranger to the land affected, and cannot sue before the harm has happened, which is the only time the evidence would have been available.
3. Which conventional provision was used to decide an Indian environmental case as late as 1980, and what does that show?
Section 133 of the Code of Criminal Procedure 1973, in the Ratlam case. It shows that the modern law was built on top of the conventional law rather than in place of it, and that a well-chosen old provision can still be the most effective remedy.
4. Give the modern answer to each of the four failures of the conventional idea.
Diffuse harm produced regulation by standard through statutory Boards. Uncertain harm produced the precautionary principle and its reversal of the burden of proof. The problem of the stranger produced relaxed standing and public interest litigation. The problem of the unowned resource produced the public trust doctrine and the extension of Article 21.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.