The Act of 1986 in Court

In one line

The courts have read this Act generously in three directions, and a student should be able to name a decision for each.

In the wording a student can write in an examination: the courts have construed the Environment (Protection) Act 1986 so as to read into it the principles of sustainable development, precaution and polluter pays; to treat the powers conferred by sections 3 and 5 as powers coupled with a duty which the Government may be directed to exercise; to uphold the width of the notifications made under section 3 read with rule 5; and to enforce the Act through the writ jurisdiction and, since 2010, through the National Green Tribunal rather than through its own penal provisions.

Direction one, the principles

Facts. In Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715, tanneries in five districts of Tamil Nadu discharged untreated effluent onto agricultural land and into the Palar river.

Held. The precautionary principle and the polluter pays principle are part of the environmental law of the country; sustainable development is a balancing concept accepted as part of customary international law and hence part of the law of the land; the onus of proof is on the developer to show that his action is environmentally benign; and the polluter pays principle means that the absolute liability for harm extends not only to compensating the victims but also to the cost of restoring the environmental degradation.

Why it matters. None of the three principles is in the Act. All three are now applied under it, and Parliament ratified them in section 20 of the National Green Tribunal Act 2010.

Direction two, a discretion put to use

Facts. In S. Jagannath v. Union of India, AIR 1997 SC 811, shrimp farms in the coastal zone were destroying mangroves and salinising drinking water and agricultural soil, and no authority had been constituted to deal with them.

Held. Shrimp ponds fell within the prohibition in the coastal notification; those inside the zone were to be demolished; and the Central Government was directed to constitute an authority under section 3(3) before a fixed date, headed by a retired High Court judge, with the power to issue directions under section 5 and to take measures under named clauses of section 3(2), and to implement the precautionary and polluter pays principles. Parliament later reversed that holding with effect from 19 February 1991: section 27 of the Coastal Aquaculture Authority Act 2005 provides that the notification's prohibitions do not apply to coastal aquaculture.

Why it matters. The word in section 3(3) is may. The Court did not discuss the word; it directed the Government to exercise the power, and fixed the date.