30 Ban.L.J.(2002) 131-153
WATER POLLUTION AND THE SUPREME COURT :
RAW MATERIALS FOR DECISION MAKING
V.S. Mishra*
One of the ill effects of the industrialization and urbanization is
the pollution of water having far reaching consequences on the multifacet uses of water. The issues relating to water pollution have been
brought to the notice of the Apex Court in many cases and the Court has
been providing much needed relief through judicial decisions. Coming to
raw materials used for administration of environmental justice in water
pollution cases, generally judicial decisions were based on the affidavits
and counter affidavits filed1 by the petitioners and respondents. It may be
relevant to note that some of the affidavits were detailed and exhaustive
and included all the available materials so as to convince the courts. The
public interest litigation filed by the public minded individual/voluntary
organization, illustrated this fact2. However in case of truncated, vague
and confusing affidavits, the Court devised means to gather facts. The
appointment of Committee3(s)/ Commission4(s)/Commissioner5/amicuscurial6 were such means invented by the court to bring all the available
material pertaining to the case before the court.
It may not be out of place to say that some of the counter
affidavits were also detailed and exhaustive and helped the court to
arrive at rational conclusion.7 Further, polluting industries used counter
affidavits to assure the court that they were fully conscious of the need to
conserve and protect the environment and were prepared to fully
cooperate in that behalf. Besides this, the Court also took note of
*.
1.
2.
3.
4.
5.
6.
7.
Senior Lecturer, Law School, Banaras Hindu University, Varanasi
See, for example, the counter affidavit filed by the Polluting Industries, Ministry of
Environment and Forest, Govt. of India, State Government and Rajasthan Pollution
Control Board in Indian Council for Enviro Legal Action v. Union of India, AIR
1996 SC 1446; Sec also for affidavit, Vineet Kumar Mathur v. Union of India (1996)
7 SCC 715.
See, for example, the public interest petition filed by Sri M.C. Mehta, the green
lawyer; M.C. Mehta v. Union of India AIR 1988 SC 1037; AIR 1988 SC 1115;
(1997) 2 SCC 411; Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC
2715.
Sector 14 Resident Welfare Association and other v. State of Delhi (1999) 1 SCC
702.
Indian Council for Enviro-legal Action v. Union of India (1996) 3 SCC 212.
Dr. Ajay Singh Rawat v. Union of India (1995) 3 SCC 266.
Re-Bhavani river-Sugar Shakti Ltd. (1998) 6 SCC 335.
Supra note 1.
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complain made by the polluting industries about inconsistency in counter
affidavit filed by regulatory authorities like pollution control board. 8
Since affidavit and counter affidavit consist of a lot of raw
materials, the Court only relies on those materials which are relevant
and indispensable to decide a case and reject or discard the rest of the
raw materials which form part of affidavit and counter affidavit.
Hereinafter, an attempt is made to analyse the raw materials which have
been used for 'making' a judicial decision. The term 'making' conveys
bringing something fresh into being.
For the sake of convenience, the raw materials have been
classified further, as under :
1. PRECEDENT : INDIAN AND FOREIGN
Coming to the use of precedent as a raw material, it has been
said that in the life of mind as in life elsewhere, there is a tendency
toward the reproduction of kind. Every judgment has a generative power.
It begets its own image.9 The above statement vividly tells the
importance of precedent as a raw material for judicial decision.
In Ganga Pollution case (Municipalities) case10, justice
Venkatramiah while referring to his own order in the tanneries case11,
used foreign precedent to accord standing to Mr. Mehta who filed this
case before the apex court. The court took support from common law and
emphasized the duty of municipal corporation to remove nuisance. The
court substantiated its arguments by citing an English case which was
decided way back in 1953.12
In Calcutta Tanneries case13, again apex court used Indian
precedents, specially cases related to water Pollution 14 and shifting of
industries15 decided by it. In brief, it may be said that the apex court relied
heavily on the cases decided by it while deciding the cases pertaining to
pollution of river Ganga.
8.
9.
10.
11.
12.
13.
14.
15.
In Indian Council for Enviro-Legal v. Union of India AIR 1996 SC 1446; The apex
court found some justification in the contention of the polluting industry that various
counter affidavit filed by Rajasthan Pollution Control Board were self contradictory,
hence directed the Board to adopt constructive attitude in the matter
Benjamin N. Cardozo, "The Nature of Judicial Process", Second Indian reprint, 21
(1997).
AIR 1988 SC 1115
See, order dated September 22, 1987 AIR 1988 SC 1037
AIR 1988 SC 1115, 1126. The said English case was Pride of Derby and Derbyshire
Angling Association v. British Celanise Ltd. (1953) Ch. 149.
(1997) 2 SCC 411.
Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715.
M.C. Mehta v. Union of India (1996) 4 SCC 351.
2002]
WATER POLLUTION AND SUPREME COURT : RAW MATERIALS….
133
In Bichhri Village case16, Sri M.C. Mehta, learned counsel of the
petitioner invited the attention of the apex court towards the
Constitutional Bench decision in Oleum Gas Leak case17 and other
decision of the apex court to determine the liability of polluting industries.
Mr. Mehta also drew the attention of the Court to 'quite a few foreign
decisions' as well.18
Sri K.N. Bhat, counsel of polluting industries argued that rule of
absolute liability as evolved in Mehta case19 was not accepted in England
or other commonwealth countries and the rule evolved by the House of
Lords in Rylands v. Fletcher20, was the correct rule to be applied in the
matter.
The apex court rejected the contentions of the respondent and
pointed out that in view of decision in the Oleum Gas Leak case, this
contention was untendable, for the said decision expressly referred to the
rule in Rylands but refused to apply it by saying that it was not suited to
the conditions in India. The court also cited the majority judgment
delivered by Venkatachaliah, in Union Carbide case21 to reject the
concurring opinion of justice Rangnath Mishra in Carbide case22, cited
by the Mr. Bhat, counsel of the respondent. The court emphasized the
fact that three judge Bench had not expressed any opinion on the
principle of absolute liability.
Apart from the aforesaid Indian precedents the court also cited
foreign precedents. On one hand, it quoted the decision of House of
Lord23 which supported the traditional rule in Rylands and on the other
hand it cited the decision of Australian High Court 24 where majority held
that the rule in Rylands having attracted many difficulties, uncertainties
and exceptions, should now be seen for the purpose of Australian
Common law, as absorbed by the principles of ordinary negligence.
On a consideration of the two lines of thought (one adopted by
the English Courts and the other by the Australian High Court), the
Supreme Court clearly stated that any principle evolved in this behalf
should be simple, practical and suited to the conditions obtaining in this
country. Further, the court was convinced that the law stated by this court
in Oleum Gas Leak case was for the more appropriate one apart from the
fact that it was binding on the court. It may be noted that the court
16.
17.
18.
19.
20.
21.
22.
23.
Supra note 8.
AIR 1987 SC 1086
The Supreme Court has not explained or identified those few foreign decisions.
Supra note 17
1866 (3) H.L. 330.
Union Carbide Corporation v. Union of India AIR 1999 SC 1248, 309
Union Carbide Corporation v. Union of India AIR 199 2 SC 248, 261.
Cambridge Water Company v. Eastern Counties Leather, PLC (1994) (2) W.C.R.
53.
24. Brunic Port Authority v. General Jones Pvt Ltd (1994) 68 Aus Law Journal 331.
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[Vol.31
disagreed with the view that the law stated in the said decision was
obiter.
It may be mentioned that the absolute liability principle was
evolved and deliberated by the four Constitution Bench of the Supreme
Court, it would have been better, had the issue could have been settled
by a Constitution Bench consisting of seven judges. It may be mentioned
that Bichhri Village's case which made this principle as binding law was
decided by two Judges Bench.
It is interesting to note that justice B.P. Jeevan Reddy quoted the
judgment delivered25 by B.N. Kripal, C.J. of the Gujarat High Court, as he
then was, to illustrate the devastating impact of chemical industries. It
may be pointed out that B.N. Kripal, J was one of the judge of the apex
court constituting the Bench which heard the aforesaid case at the apex
court.
It is submitted that this approach raises a fundamental question;
will it not reflect that on a particular issue, the judges have 'pre-conceived
notion about the subject matter?
It is further submitted that the Supreme Court strongly relied on
the submission of the learned counsel of the petitioner pertaining to
Indian and foreign precedents. Moreover, it appeared that counsel of
respondent failed to impress the court while contradicting the submission
of the petitioner, by citing specific foreign precedents.
In Vellore Citizens Welfare Forum case26, the Supreme Court
conceded the fact that constitutional and statutory provisions protected a
person's right to fresh air, clean water and pollution free environment but
the source of the right was the inalienable common law right of clean
environment. In the instant case, the court had not cited any specific
case law in support of its argument but categorically declared its
preference for British common law in following words :
Our legal system having been founded on the British Common
Law, the right of a person to pollution free environment is a part of the
basic jurisprudence of the land.27
In M.V. Nayudu case28, I, the apex court through Jagannadha
Rao, J took cognizance of Indian and foreign precedents. The Court
recognized the fact that in the environment field, the uncertainty of
scientific opinion has created serious problems for the courts. In regard to
different goals of science and law in the ascertainment of truth, the
Supreme Court cited the decision of the U.S. Supreme Court in following
words :
25.
26.
27.
28.
Parvin Jash Bhai Patel v. State of Gujarat (1995) 2 Guj LR 1210.
AIR 1996 SC 2715
AIR 1996 SC 2715, 2722.
(1997) 2 SCC 718
2002]
WATER POLLUTION AND SUPREME COURT : RAW MATERIALS….
135
There is important difference between the quest for truth in the
court room and the quest of truth in the laboratory. Scientific conclusions
are subject to perpetual revision. Law, on the other hand, must resolve
disputes finally and quickly.29
It also cited the precedent of New Zealand30 to emphasize that
the risk of harm to the environment or to human health was to be decided
in public interest, according to a 'reasonable persons' test.
Apart from foreign precedents, the apex court used Indian
precedents31 which strongly recommended for the Constitution of a
specialized body having a judge of the rank of a High Court judge or a
Supreme Court judge, sitting or retired and a scientist or group of
scientists of high ranking and experience so as to help a proper and fair
adjudication of disputes relating to the environment and pollution.
In M.V. Nayudu case32 II, Jagannadha Rao, J, quoted the
decision of the European Court at Starsbourg 33, decision of the Philippine
Supreme Court34, decision of the Constitutional Court of Columbia 35,
decision of the Supreme Court of South Africa36 to illustrate the right to
healthy environment as a fundamental human right. So far the Indian
precedent was concerned, the apex court recalled its earlier judgment
and orders in M.V. Nayudu I case.37 Thus, Jagannadha Rao, J, enriched
the quality of the judgment by using precedents from various countries as
raw materials for producing judgment in the instant case.
It may be noted that a particular trend was also visible at the
apex court. Some judges solely relied on Indian precedents in general
and decisions of apex court in particular as a raw material for decision
making. In S. Jagannath case38, Kuldip Singh J, relied on Indian
precedents and used the decisions of the apex court as raw materials for
decision making. It is interesting to note that Justice Kuldip Singh used
his own judgment of an earlier case as a raw material to produce
judgment in the instant case. Does it not create a doubt or suspicion in
the mind of litigant that the concerned judge has foreclosed its mind? Will
it not reflect that the justice delivered has not been on merit but on preconceived notion of a particular judge?
29. Daubert v. Merrel Dow Pharmaceuticals Inc. (1993) 113 Sct 2786.
30. Ashburton Acclimatisation Society v. Federated Farmers of New Zealand. (1988) 1
NZLR 78.
31. Oleum Gas Leak case AIR 1987 SC 1086, Vellore case AIR 1996 SC 2715.
32. A.P. Pollution Control Board v. Prof. M.V. Nayudu (2001) 6 SCC 62.
33. Lopez Ostra v. Spain 303-CEur Ct HR (Ser A, P.S.) 1990.
34. Minors Opasa v. Deptt. of Environment and Natural Resources, 33 ILM, 173 (1994).
35. Fundepublico v. Mayor of Bugala Grande (1992) as cited in Supra note 29 at 72.
36. Wildlife Society of Southern Africa Minister of Environmental Affairs and Tourisn
of Republic of South Africa (1996) 9 BCCR 1221 (JK).
37. Supra note 28
38. S. Jagannath v. Union of India (1997) 2 SCC 87.
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[Vol.31
It may be noted that some judges like Kuldip Singh of the
Supreme Court relied more on Indian precedents 39 than foreign
precedents. This inclination towards Indian precedents was also visible
in Bittu Sehgal case40 and Calcutta Tanneries case.41
It may not be out of place to say that similar judicial trend was
maintained in Gopi Aqua Farms case42, even after the composition of the
Bench had been changed. The apex court clarified its earlier judgment by
saying that it was a judgment in rem, and binding on all irrespective of the
fact that the affected person or group was a party or not to the
proceedings.
In Delhi Water Supply and Sewage Disposal Undertaking case43,
Sri K.K. Venugopal appeared before the court as the counsel of the
petitioner at the instance of the apex court as the intricate questions of
the law were found to be involved.
The learned counsel took pains to bring to court's notice some
decisions of the American Courts, that drinking was the most beneficial
use of the water and this need was so paramount that it could not be
made subservient to any other use of water, like irrigation. So the right to
use for domestic purpose would prevail over other needs.44 In the
instance case, apex court relied on the submission of the counsel of the
petitioner and opined that it found plausibility in the contentions and was
inclined to unfold new jurisprudential arena.
It may be noted that aforesaid observation of the apex court
revealed the fact that the court wanted to give due weightage to foreign
precedents where Indian law was ambiguous.
Understanding the dilemma faced by environmental litigants, the
Supreme Court in Kamal Nath case45 ruled that the common law doctrine
of 'public trust' was a part of the Indian legal system.46
It also held that this doctrine imposed a definite obligation upon
the government to preserve the existing natural resources as they were.
The court also referred to its earlier decisions of Vellore Citizens Welfare
39. Kanpur Tanneries case AIR 1988 SC 1037; Vellore case AIR 1996 SC 2715; Rural
Litigation Entitlement Kendra (1986) Supp. SCC 517.
40. Bitu Sehgal v. Union of India and others (2001) 9 SCC 181, (Kuldip Singh and Sagir
Ahmad decided the case on 31.10.1996); see also, Indian Council for Envio Legal
Action v. Union of India (1996) 5 SCC 281 (Kuldip Singh, S. Sagir Ahmad, B.N.
Kripal, JJ decided the case).
41. M.C. Mehta v. Union of India (1997) 2 SCC 411 (Kuldip Singh and Sagir Ahmad
decided the case).
42. Gopi Aqua Forms and others v. Union of India, (1997) 6 SCC 577. (S.C. Sen and
S.P. Kurdukar, JJ decided this case)
43. (1996) 2 SCC 572
44. Id. at 574
45. (1997) 1 SCC 388.
46. Ibid.
2002]
WATER POLLUTION AND SUPREME COURT : RAW MATERIALS….
137
Forum47 and Indian Council for Enviro Legal Action 48 to fix the liability of
polluters for the harm caused to the neighbouring villagers as a result of
its activities around the river and for the restitution of the ecology of the
area. In the instant case, the apex court reviewed a number of decision of
U.S.A. courts, particularly the judgements of the Supreme Court of
California in Monolake case.49 It also cited the most celebrated case in
American public trust law which was called as loadstar.50 The decision in
the instant case signified that in case of resources held by the
Government for public use such as parks, water fronts etc the courts
would lookupon any Government conduct that converted those resources
to public use.
It may be pointed out that the Supreme Court of India made this
doctrine a part of our legal system by referring to common law. It also
took help of decisions of U.S. federal Supreme Court and State Supreme
Court of California, U.S.A.
It is submitted that the apex court should not blindly follow the
decisions of U.S. courts but nevertheless, it must be conversant with the
techniques used/evolved by the courts in U.S.A. Further, it should mould
these techniques to suit the Indian condition and needs.
In Kanoria Industries Ltd case51, the issue before the court was
related to claim for refund of money by the which respondents had paid
under protest as water cess under the provisions of the Water
(Prevention and Control of Pollution) Cess Act, 1977. The petitioners
contested the claim before the High court. The High court directed the
petitioners to refund the sums realised from the respondents as water
cess. Hence, petitioner filed special leave petition before the Supreme
Court. The learned counsel for the petitioner strongly relied on a
constitution Bench judgment of the apex court in Mafat Lal Industries v.
Union of India52 where it was held that petition under Article 226 could not
be entertained having regard to legislative intention evidenced by the
provisions of the Act. Another decision of the apex court was also cited
in support of the submission that a writ petition seeking mandamus for
mere refund of money was not maintainable.
Rejecting the claim of petitioner, apex court pointed out that it
was one thing to say that the High Court had no power under Article 226
of the Constitution to issue a writ of mandamus for making refund of the
money illegally collected. It was yet another thing to say that such power
47.
48.
49.
50.
51.
52.
(1996) 5 SCC 647
(1996) 3 SCC 212
National Audubon Society v. Superior Court of Alpine Country 33 Cal 3d 419.
Illinois Central Rail Road Company v. Illionois 146 U.S. 387 (1892).
U.P. Pollution Control Board v. Kanoria Industries Ltd. (2001) 2 SCC 549.
(1997) 5 SCC 536.
138
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could be exercised sparingly
circumstances of each case.53
depending
[Vol.31
upon
the
facts
and
It is interesting to note that petitioner relied on another judgment
of apex court which was delivered by S. Rajendra Babu, J. who as
member of the Bench, also heard the Kanoria Industries Ltd case. In the
instant case, the apex court speaking through Shivraj Patil, J made a
distinction between aforesaid cases and pointed out that it could not be
said that there were laches on the part of respondents or that they had
abandoned their claim for refund.54
The apex court rejected the claim of petitioner that the relief
should be denied to the respondents on the basis of delay and laches in
approaching the High Court for claiming the refund of water cess paid
under protest. The court again took help of one of its judgment delivered
in Saraswati Sugar Mill case55, and pointed out that the claims for refund
were made by the respondents within a reasonable time after the
judgment was rendered by this court in Saraswati Sugar Mill case.56
It may be noted that apex court relied strongly on the submission
made by the respondents. The court also accepted the proposition laid
down in Saraswati Sugar Mill case that the collection of cess was not
authorized by law as entry 15 of the Schedule I of the Act did not cover
sugar industry and distillery prior to the amendment of the Schedule. The
court refused to interfere with the judgment and order of Allahabad High
Court. And dismissed the application of U.P.P.C.B. One can say that the
apex court solely used its decisions and decisions of the High Court as
raw materials for producing judgment in the instant case.
In Goa Foundation, Goa case57, Goa Foundation filed an appeal
against the judgment of Bombay High Court which dismissed the writ
petition filed by the appellant regarding construction of hotel on the
disputed plot of land situated in coastal regulation zone; an
environmentally sensitive area. The apex court used Indian precedents
which included the decision of the apex court and Calcutta High Court to
decide the case. G.B. Pattanaik, J, speaking for the court, cited a case 58
from Calcutta High Court to emphasize the necessity of harmonising two
competing interest i.e. Environment and Development. It may be noted
that U.C. Banerjee J, decided this case alongwith Pattanaik, J at the apex
court. Incidentally U.C. Banerjee J as a single Judge, as he then, was
decided the People's Union case at Calcutta High Court. Further,
Pattanaik, J quoted the observation of the learned single judge (U.C.
Banerjee, J as he then was) to emphasize that :
53.
54.
55.
56.
57.
58.
Id. at 558.
Id. at 559.
(1992) 1 SCC 418
Ibid.
(2001) 2 SCC 97.
People United for Better Living in Calcutta v. State of W.B. AIR 1993 Cal 215.
2002]
WATER POLLUTION AND SUPREME COURT : RAW MATERIALS….
139
'There shall have to be both development and proper
environment and as such a balance has to be found out and
administrative actions ought to proceed in accordance there with and not
dehors the sance.59
The apex court also used its decision in Indian Council for enviroLegal Action case to substantiate the aforesaid proposition and observed
that the 'Courts must scrupulously try to protect the ecology and
environment and should shoulder greater responsibility of which the court
can have closer awareness and easy monitoring. 60 Banerjee, J,
Supplementing and concurring with the judgement of Pattanaik J, again
quoted his own judgment delivered at Calcutta High Court. It may be
noted that Banerjee, J recorded his concurrence with Pattanaik, J and
emphasized that harmonisation of the two namely, the issue of ecology
and development project.
The aforesaid
judicial approach raises certain doubts or
misgivings. Is it proper for a Supreme Court judge to quote his own
judgment of High Court where he has served as a judge to substantiate
his views?
It is interesting to note that in few cases, counsel, for the
petitioner like M.C. Mehta, had done their home work seriously and
quoted the foreign precedents to substantiate their arguments. In such
cases, the apex court had shown its inclination to follow or adopt those
foreign precedents as raw materials for delivering judgment/orders.
However, it appeared that counsel of respondents had not done their
home work seriously in the area of comparative environmental
precedents and even in isolated cases where they referred to foreign
precedents, failed to impress the apex court.
(ii) LITERATURE : INDIAN AND FOREIGN :
The Supreme Court, in the water pollution cases, also took
cognizance of the literature on environment in general and water pollution
in particular. For the sake of convenience, it can be categorized under
the following subheads :
(a) Books and Articles :
The Supreme Court used Indian and foreign books and articles
to rationalise its decision. In Ratlam Municipality case61, Krishna Iyer, J
for himself and Chinnappa Reddy handed down a master piece opinion
depending mostly on the foreign literature which included book and
writing of leading foreign authorities. 62
59.
60.
61.
62.
(2001) 2 SCC 97,102.
Indian Council for Enviro Legal Action v. Union of India (1996) 5 SCC 281, 298.
AIR 1980 SC 1622
Id. at 1628-1629.
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In Ganga Pollution case63, Venkatramiah and K.N. Singh, JJ,
extensively used Indian literature including book and the passages from
the Will or the 'Testament' of Pt Jawahar Lal Nehru 64 K.N. Singh, J gave
Indianized flavour to environmental/water justice by paying a long tribute
to the "mother Ganga' supported from India's mythology, geography,
history culture and civilization. 65 It may be pointed out that in most of the
Water Pollution cases66, this fragrance of Indian Culture, tradition and
heritage was missing. It may be mentioned that Orissa High Court took
note of ancient Indian culture while deciding a case related to Water
Pollution. In view of these omissions, Prof. Jariwala gave a call to Indian
Judiciary not to dissociate with ancient Indian roots, a treasure house of
important actions and lessons in the name of modernity. 67
In the instant case E.S. Venkatramiah devoted two and half
pages of two books written by two Indian authors. The first book
explained the effect of water pollution and the other book dealt with
nature of problem, benefits of control, urgency of problem pertaining to
water pollution. It is interesting to note that in view of aforesaid books and
writings brought to the Court's notice, the judges simply assumed that
such injuries had occured or were likely to occur. Thus, the apex court
dispensed with the need for hard scientific proof on the health effects of
the pollution, the damage it caused to riparian property and the manner in
which it harmed the livelihood of those living downstreams. One can say
that apex court took judicial notice of 'facts' and eased the petitioner's
burden.68
It is submitted that this kind of 'judicial notice' of 'facts' may lead
to denial of justice to other party or absurd result. For example, the apex
court in a case69, decided by Madhy Pradesh High Court reprimanded the
High Court that it should have been careful in selecting the materials on
which it sought to rely on and that every article published or a book
written could not ipso facto be regarded as conclusive or worthy of
acceptance.70
63.
64.
65.
66.
67.
68.
69.
70.
AIR 1988 SC 1037
Id at 1047
Ibid.
Talcher Swasthya Surakshya Parishad v. Chairman-cum-M.D., M.C.L. AIR 1996
Orr. 195, 197, where justice Pasayat cited an article written by a 'learned author,
C.M. Jariwala, to emphasize the traditions in ancient India.
C.M. Jariwala, "Environmental Justice : A Journey from Ratlam Municipality to
M.C. Mehta", in Nagbooshnam (ed) Environmental Law, Policy and Perspective,
32,37 (1995).
Shyam Divan and Roscucranz, "Environmental Law and Policy in India : Cases
Materials and Statutes (2001).
Hasmattullah v. State of M.P. AIR 1996 SC 2076
Id at 2081. In the instant case, the High Court referred to and relied on number of
articles and books written by different persons in coming to the conclusion that bulls
and bullocks were useful animals even if they become old, and slaughter should be
banned.
2002]
WATER POLLUTION AND SUPREME COURT : RAW MATERIALS….
141
In Dr. Ajay Singh Rawat Case71, the apex court relied on the
booklet written by the petitioner pertaining to pollution of lakes in the city
of Nanital72. In the instant case, the court not only took judicial notice of
the booklet but also constituted a committee to verify the facts mentioned
therein. One can say that apex court adopted a balance approach in
deciding the aforesaid case. However, in Bichhri Villlage case73, the apex
court took note of foreign books and writings on the environmental law
which was placed before the court by the counsel of the petitioner. 74
In Vellore Citizens Welfare Forum case75, the apex court quoted
the book written by Blackstone entitled as commentaries on the law of
England to substantiate its decision76 but it is unfortunate that the court
ignored the Indian treatise on common law in India. 77
It is submitted that the present case law reveals that apex court
was using foreign literature which was more than hundred years old.
Does it reflect the strong influence and craze for foreign literature which
has made the Indian judges, as a matter of habit to quote foreign
literature to rationalize their decisions? Does it not reflect that the Indian
judges were not upto date with the literature which are pouring every day
in the market? In the present information age, one can get instant
information on latest development pertaining to any subject or literature
from any part of the world. It is desirable that Indian judiciary must use
modern means of communication to assimilate latest information and
developments in the concerned field to decide a case so the judiciary
administer upto date environmental justice and also stand tall with its
counter part in other parts of the globe.
In M.V. Nayudu case78, the Supreme Court through justice
Jagannadha Rao profusely quoted articles from journals of U.K. 79 and
U.S.A.80 to highlight the difficulties faced by the environmental courts in
dealing with highly technological or scientific data and characterized it as
a global phenomenon.
This judicial trend continued in M.V. Nayudu case II, the apex
court recalled its observation in Nayudu case I with regard to the need
for constituting environment court and referred to a published report
71.
72.
73.
74.
75.
76.
77.
Dr. Ajay Singh Rawat v. Union of India (1995) 3 SCC 266.
Id at 267
AIR 1996 SC 1446
Id at 1458
AIR 1996 SC 2715
Id at 2722;
M.C. Setalvad, "Common Law in India", (1960) See also Joseph Minattur, "The
Indian Legal System", (1978)
78. A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718-742.
79. See for example, Lord Woolf, "Are the judiciary environmentally Hyopict", the
Journal of Environmental Law, 798-896 (1992)
80. See for example Wyne, "Uncertainity and Environmental learning", 2 Global
Environmental Change, 111 (1992)
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entitled environment court project published by a research team at the
Department of Land and Economy, University of Cambridge, U.K,
headed by Prof. Malcoum Grant.81 The said research report was quoted
to elaborate the concept of the environment court and the need for
Constituting Environment court in the light of experience of other
countries. Thus it is evident that the Supreme Court used Indian and
foreign books and articles for producing judgments/orders.
It may be pointed that apex court has not mentioned/referred a
book82 written by prof. Upendra Baxi while discussing the principle of
absolute liability. The said book provide a solid framework on any
discussion on principle of absolute liability. Apart from the aforesaid book,
one article entitled as Remedies and Remediation : Foundational issues
in environmental liability written by Jenny Steel reference could have
enriched the discussion on principle of absolute liability.83
(iii) REPORTS :
The Court’s ability to handle complex science rich cases has
been called into question, with the allegation that judicial system is
increasingly unable to manage scientific and technological issues. The
difficulty of interpreting the complex techno-science environmental cases
is not a unique phenomenon confined to India alone. This difficulty is also
felt in the scientifically advanced countries. Even in the U.S.A., the
position is not different. The concern over the problem led the Carnegic
Commission of Science and Technology (1993) and the U.S.A.
Government to undertake a study of the problem of Science and
Technology in Judicial decision making. The position in India is not
different from U.S.A. The most complicated problem is of the mass data,
complexity of law fact issue, absence of formal legal research to analyse
those data and absence of any statistics on similar points relating to
environmental pollution.
The Supreme Court frequently relied on the National
Environment Engineering Research Institute, Nagpur (NEERI) to visit the
affected site, inspect and submit its report to the Court. Apart from the
NEERI, the Apex court had also sought expert opinion of leading.
Scientific Institutions laboratories, academic institutions including
Universities, Central Pollution Control Board and State Pollution Control
Board, individual experts, advocate and bureaucrats to decide the issues
pertaining to science and technology. Recognizing the role of ‘experts’
and expert bodies or Institutions having specialized knowledge for
environment justice delivery system, often, the apex court appointed its
own committees/commissions or relied on commission/committees
81. Malcoum Grant, "The use for Environment Court", The Journal of Planning and
Environment 453 (2000).
82. See Introduction to Valiant Victims : Lethal Litigation', P. xxii (1990).
83. Jenny Steele, 'Remedies and Remediation : Foundational Issues in Environmental
Liability, 58 Mordern Law Review (Sep) 615-636 (1995).
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appointed by the Government or allowed the parties to place on record
before the court, the report of expert bodies/commission/committees. In
most of the cases, the committees had not only assessed the degree o
environmental damage involved, but also made recommendation as to
appropriate remedial measure. The Judges have normally refrained from
considering the technical evidence in court preferring on the whole to
validate committees findings with constitutional order. The analysis of
environmental cases reveal the fact that the Apex court simply converted
the recommendations of the National Environment Engineering Research
Institute, Nagpur into a court order. 84 In view of the above problems, the
Supreme Court in the Oleum Gas Leak85 case advocated for a neutral
scientific expert as ‘an essential input to inform judicial decision making”.
The Supreme Court deliberately used the word neutral to emphasize the
impartiality of such expert so that vested interest don’t prevail on the
balancing scales and simply to protect their self-interest. In this
connection, it may be relevant to note that in 1986, Dr. Upendra Baxi,
suggested to the Chief Justice of India to establish a special cell on
Science and Technology in the Supreme Court itself, where scientists
would interpret scientific evidence for the judges to enable resolution
disputes. He had also suggested a refresher course for atleast appellate
judges on problems of science and technology which appear frequently.
Unfortunately, these two suggestions have still to receive attention of the
Supreme court of India.
(iv) RESOLUTION :
In the National Hydroelectric Power Corporation Limited case86,
the Supreme Court found an opportunity to use resolution of Parliament
as raw material to produce an order.
In the instant case, issue was related to imposition of cess under
the provisions of the water (Prevention and Control of Pollution) Cess
Act, 1977 (hereinafter referred as the said Act) on the hydropower
generating industry. The bone of contention was the Section 16(2) of the
'said Act'. It required that the notification adding any industry to the
Schedule 1 to the Act must fulfill two conditions : one, the notification
shall be laid before each House of Parliament; and two, the Central
Government shall seek approval of Parliament to the issuance of such
notification. In the instant case, the Additional Solicitor General misled
the court by saying that the notification was referred to a Parliamentary
Committee and as such provisions of Section 16 were complied with. But
84. S. Jagannath v. Union of India (1997) 2 SCC 87, 126; M.C. Mehta v. Union
of India (1997) 2 SCC 411, 426; Vellore Citizens Welfare Forum v. Union
of India AIR 1996 SC 2715, 2720; M.C. Mehta v. Union of India (1997) 3
SCC 715, 718; Goa Foundation, Goa v. Diksha Holdings Pvt. and others
(2001) 2 SCC 97, 106.
85. M.C. Mehta v. Union of India AIR 1987 SC 965
86. Union of India v. National Hydroelectric Corporation Ltd. (2001) 6 SCC 307.
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he was exposed by the Additional Director in the Ministry of Environment
and Forests who categorically stated in his affidavit that from the record
of Parliament, there was nothing to support that a notification as
contemplated under section '16(2) had been moved'. 87 Moreover,
pleadings clearly disclosed that 'no such approval was in fact sought
for'.88 The court further pointed out that :
Mere perusal of sub-section (2) shows that there has to be a
positive act of approval by Parliament to the issuance of the notification
before it can be held that Schedule I has been amended. Merely laying
the notification before each House of Parliament is not sufficient
compliance within the provisions of Section 16(2). 89
Using 'resolution' as raw material, the court concluded that no
resolution relating to the notification had been moved in Parliament. If no
resolution had been moved, the question of Parliament giving approval
did not arise. Though the first step of placing the notification in each
House of parliament had been taken, subsequent steps leading to
passing of the resolution were not even commenced with the moving of
the resolution.90 The court reached to the conclusion that ' realisation of
the cess was not in accordance with law.
(v) Debates :
Deliberations in Parliament has also been used as raw material
for decision making. In Bichhri Village case91, the apex court took notice
of debates in Parliament woes of people living in the vicinity of chemical
industrial plant in Udaipur district of Rajasthan. Since toxic untreated
waste waters were allowed to flow out freely and because the untreated
toxic sludge was thrown in the open and around the complex, the toxic
substance had percolated deep into the bowels of the earth polluting the
acquifers and the subterranean supply of water. The water in the wells
and stream had turned dark and dirty rendering it unfit for human
consumption.
It had become unfit for cattle to drink and for irrigating the land.
The soil had become polluted rendering it unfit for cultivation, the main
stay of villagers. It spreaded disease, death and disaster in village and
the surrounding areas. While explaining the impact of pollution caused by
chemical industry, the apex court referred to deliberations in parliament.
The court emphasized the fact that this sudden degradation of earth and
water had an echo in parliament too. It went on to quote an Honb'e
87.
88.
89.
90.
Id. at 310
Ibid.
Ibid.
See also, Ramjee Patel with Manohar S. Marwah v. Nagrik Upbhokta Marg Darshak
Manch and others (2000) 3 SCC 29..
91. AIR 1996 SC 1446
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Minister who assured the House that 'action was being taken' and
lamented the fact that nothing meaningful had been done on the spot.
(vi) DICTIONARIES AND ENCYCLOPAEDIA :
Foreign dictionaries and encyclopaedia have been used by the
Supreme Court to ascertain the meaning of a word or expression.
In S. Jagannath case92, Mr. Kapil Sibal, counsel of respondents
(farmers), relied upon 'Oxford English Dictionary. Mr. Sibal contended
that 'water front' means land abetting on the sea, that part of a town
which fronts on a body of water. According to him 'foreshore' in terms of
the said dictionary means the part of the shore that lies between the high
tide and the low tide.
After taking note of the aforesaid definition from Oxford English
dictionary, the apex court took help from and Webster's Comprehensive
Dictionary, International Edn. in defining the expression, foreshore' which
according to court means that part of a shore uncovered at low tide.
In Goa Foundation, Goa case93, U.C. Banerjee, J in his
supplementing and concurring judgement took help of foreign dictionaries
and Encyclopaedia to define 'Sand' and 'Sand dunes'. He defined, Sand
with the help of concise Oxford Dictionary, McGraw-Hill Encyclopaedia of
Science and Technology (6th ed), and 'Sand dunes' with the help of the
New Encyclopaedia Britanica (Vol. 10). 94
Similarly the word 'vegetable' had been defined with the help of
Concise Oxford Dictionary, Webster International Dictionary and
Encyclopaedia Britannica (Vol. 23) in Saraswati Sugar Mills case.95
If one looks to the judgments of High Court on environmental
matters, he will find that a large number of High Courts used Indian
literature96 only. However, few High Courts used foreign law dictionaries
and encyclopaedia to ascertain the meaning of a word or expression. 97
It may be emphasized that the apex court made liberal use of
foreign dictionaries and encyclopedia, whereas large number of High
Courts relied on Indian literature exclusive of foreign dictionaries and
encyclopaedia.
92.
93.
94.
95.
96.
(1997) 2 SCC 87.
Goa Foundation, Goa v. Diksha Holding Pvt. Ltd. (2001) 2 SCC 97
Id. at 110-111.
M/S Saraswati Sugar Mills v. Haryana State Board.
See for example, Centre for Env. Law W.W.F. for Nature v. State of Orissa AIR
1999 Ori 15.
97. See for example, M.P. Rambabu v. District Forest Officer, AIR 2002 A.P. 256,
Bijajanand Patra v. D.M. Cuttack AIR 2000 Ori. 70.
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(III) LAW : NATIONAL AND INTERNATIONAL
The Supreme Court used national law and International law to
produce a judgment/order. These materials can be further classified as
under :
(A) NATIONAL LAW :
The materials included under this head are the Constitution of
India, environmental legislations, rules and notifications.
(I) THE CONSTITUTION OF INDIA :
The Constitution of India had the largest references wherein the
various Articles dealing with Directive Principles of State Policy,
Fundamental Duties, Fundamental Rights were used by the apex court in
large number of cases.
It may be noted that Articles 21 and 19(1)(g) were cited
frequently, followed by Articles 14, 48A and 51A(g) and other provisions
of the Constitution of India.
In Ganga Pollution case98, the apex court recognized the
importance of protecting and preserving the 'Wholesomeness' of water
and admitted the writ petition under Article 32 without expressly referring
to Article 21 of the Constitution. Though in the present case, the apex
court had not referred to Article 21 but a microfine reading of the
judgment of justice K.N. Singh would show that in the heart of the heart,
judges wanted to bring 'right to live in clean environmental within arena
of Article 21.
This is supported from observation made by justice K.N. Singh
when he said that the 'closure of tanneries may bring unemployment, loss
of revenue but life, health and ecology have greater importance to the
people'.99 However, in Subhas Kr. case100, justice K.N. Singh expressly
referred to Article 21 by saying that 'right to live....includes the right to
enjoyment of pollution free water and air for full enjoyment of life.101 This
judicial trend continues in most of the water pollution cases decided by
the apex court.102
It has been pointed out that liberal interpretation of Article 21 is
bound to be the approach of any court interpreting fundamental rights. If
a constitution contains fundamental right, any court is found to interpret
98.
99.
100.
101.
102.
M.C. Mehta v. Union of India AIR 1988 SC 1037
Id at 1048.
AIR 1991 SC 420
Id at 424.
See for example, Indian Council for Enviro-Legal Action v. Union of India AIR
1996 SC 1446; Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC
2715, 2721, A.P. Pollution Control Board v. Prof. M.V. Nayudu (2001) 2 SCC 62,
69-70.
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it liberally.103 However, H.M. Seervai was critical of the above approach
and on the necessity of 'extending the rich and ambit of fundamental
right.104
It may be noted that another scholar supported the liberal
interpretation of Article 21 and observed :
The liberal interpretation of Maneka and other cases may be
flawed by a literal and disjunctive interpretation of the articles of
the Part III, but is justified under this higher logic which confers
on the rights a depth and penumbral ambit giving a noble
'natural law' content to these rights.105
In view of the aforesaid observation, liberal interpretation of
Article 21 and its use as raw material in water pollution cases is justified
to provide justice t o victims of water pollution.
The scope of Article 142 of the Constitution was also considered
in Kamal Nath case106 by the apex court. It was held that the
Plenary powers of this court under Article 142 of the
Constitution are inherent in the court and are
'COMPLEMENTARY" to those powers which are specifically
conferred on the Court by various statutes. This power exists
as a separate and independent basis of jurisdiction apart from
the Statutes.
The court further observed that though 'the powers conferred on
the court by Article 142, are curative in nature, they can not be construed
as powers which authorise the court to ignore the substantive rights of a
litigant. The court went on to observe that this power can not be used to
supplant substantive law applicable to the case of cause under the
consideration of the court. Article 142, even with the width of its
amplitude cannot be used to build a new edifice. Where none existed
earlier, by ignoring express statutory provisions dealing with a subject
and thereby achieve something indirectly which can not be achieved
directly.107
In view of the above proposition, the court held that pollution fine
could not be imposed upon M/S Span Motel without therebeing any trial
and without therebeing any finding that M/S Span Motel was guilty under
the Act.
103.
104.
105.
106.
107.
T.S. Rama Rao, "Supreme Court and the 'Higher' logic of Fundamental rights" 25
JILI, 193 (1983).
H.M. Seervai, "Constitutional Law of India", Vol. 3 at 1935-1936 (2nd ed, 1979),
For Contra Opinion, See also, C.M. Abraham, "Environmental Jurisprudence", 1336 (1999).
Supra note 102 at 194.
M.C. Mehta v. Union of India (2000) 6 SCC 213, 223.
Ibid.
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It may be recalled that apex court issued a show cause notice to
the Span Motel company for imposition of pollution fine in its previous
judgment108 pertaining to the aforesaid case.
It may be pointed out that the apex court reiterated its proposition
regarding Article 142 in E.S.P. Raja Ram v. Union of India109 by a fivejudge Constitution Bench that the exercise of power under Article 142 of
the Constitution can not be pressed into aid in a situation under it would
amount to contravention of the specific provisions of a Statute. 110
It has been pointed out that complete justice provision can be
invoked for procedural purposes only. Article 142 does not confer
substantive power on the Supreme Court to do "complete justice".
It is submitted that the decision rendered in Kamal Nath111, and
E.S.P. Rajaram112 reflect the correct position in law and the contra view
taken in Delhi judicial113 Services Association, UCC114 and Re V.C.
Misra115 is not correct.
Dr. R. Prakash also supports the aforesaid contention by saying
that Article 142 is an Article which deals with procedural aspects and the
two words "complete justice' can not enlarge the scope of the Article. In
Construing the expression, Complete justice", the Scheme of the Article
should be looked into. It is not right to construe words in a vaccum and
then insert the meaning into an Article.116
(b) Environmental Legislations Rules and Notifications :
Apart from the Constitution of India, environmental legislations
got the attention of the court most. The environmental legislations which
had been cited frequently were the Water Act, 1974, Water Cess Act,
1977 and Environment (Protection) Act, 1986. It may not be out of place
to say that Air Act, 1981 was referred to indirectly in some water pollution
cases.117 The apex court also referred to the Water Rules, 1975, the
Water Cess Rules, 1978, the Environmental (Protection) Rules, 1986.
108.
109.
110.
111.
112.
113.
114.
115.
116.
117.
M.C. Mehta v. Kamal Nath (1997) 1 SCC 388; See also Subsequent judgment
pertaining the same issue, M.C. Mehta v. Kamal Nath AIR 2002 SC 1515, 1519.
(2001) 2 SCC 186
Id. at p. 195.
(2000) 6 SCC 213.
(2000) 2 SCC 186.
(1991) 4 SCC 406
Union Carbide Corporation v. Union of India (1991) 4 SCC 584, See also,
Maniyeri Madhavan v. Sub Inspector of Police (1994) 1 SCC 536
(1995) 2 SCC 584.
R. Prakash, "Complete Justice under Article 142", (2001) 7 SCC J, 14-20, See
also, Mora Simha Murthy, "Article 142, - A charter for judicial absolutism?", The
Lawyers Collective Vol. 10. No. 4, 21-22, (1995). For contra opinion, see, Indira
Jai Sing, "A profession on Trial", The Lawyers Collective Vol. 10, NO. 4, 23
(1995).
Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715, 2721.
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Further, the Hazardous Wastes (Management and Handling) Rules,
1989, the Manufacture, Storage and Import of Hazardous Chemical
Rules, 1989, the Chemical Accidents (Emergency Planning,
Preparedness and Response) Rules, 1996 and host of other Rules and
Notifications were cited in some water pollution cases. This trend was
visible in Kamal Nath case.118
In Ganga Pollution case119, the apex court began with the history
of the Water Act, 1974, definition of various terms under the Act,
authorities under the Act and their powers and functions. Thus the apex
court used primary sources as well as secondary sources for making a
decision.120
In Vellore case, the apex court devoted more than two and half
pages to explain the statement of objects and reasons to the
Environment Act, 1986, important provisions and Rules under the said
Act.121
In M.V. Nayudu case122, the apex court took notice of
notifications issued under the Environment (Protection) Act, 1986 123 and
other environmental legislations. In Bittu Sehgal case124, direction was
sought from the Court pertaining to Dahanu Taluka, State of
Maharashtra, which was declared by the Central Government as an
ecologically-fragile area by the notification dated 20.6.1991. In the instant
case, the apex court took cognizance of the notification issued by the
Government of India, dated 19.2.1991 in exercise of the powers under
Section 3(1) and sub-section 3(2)(v) of the Environment (Protection) Act,
1986, declaring coastal stretches as coastal Regulations Zone (CRZ).
The court conceded the fact that the notification was self contained and
cited its own decision in Indian Council for Enviro Legal Action125 to clarify
that the notification was made operative by this court in the aforesaid
case. One can say that use of notification as a raw material has helped
the court to arrive at rational conclusion.
118.
119.
120.
121.
122.
123.
124.
125.
See, for example, M.C. Mehta v. Kamal Nath 2000 (5) SCALE 69,73; S.
Jagannath v. Union of India (1997) 2 SCC 87.
Ibid.
See generally, M.C. Mehta v. Union of India (1997) 2 SCC 411, 428-429; Vellore
Citizens Welfare Forum v. Union of India AIR 1996 SC 2715, 2722.
Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715, 2722-2724.
A.P. Pollution Central Board v. M.V. Nayudu (1999) 2 SCC 718
The Ministry of Environment and Forests, Government of India, Vide its
notifications dated September 27, 1988 included "Vegetable oil including solved
extracted oil under the "RED" hazardous category. Further, the Ministry put such
category under "RED" for the Doon Valley Vide its notifications dated Feb 1,
1989.
Bittu Sehgal v. Union of India, (2001) 9 SCC 182, 183, See also, Union of India v.
National Hydro Electric Power Corporation Ltd. (2001) 6 SCC 307.
Indian Council for Enviro-Legal Action v. Union of India (1996) 5 SCC 281;
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C. Municipal Laws and Other Laws :
The apex court took cognizance of municipal laws and other
laws as 'raw materials' for 'decision making'. The other laws included
factory laws, industrial laws, procedural laws, Fisheries Act, 1897. The
Indian Forest Act, 1927, the Forest Act, 1980 the Wildlife (Protection),
1972.
In Ratlam Municipality case126, the apex court took help of
section 133 of the Criminal Procedure Code to activise the public duty of
the Municipality under Section 23 of M.P. Municipal Act, 1961. The court
also cited section 188 of Indian Penal Code to remind the municipal
authorities to perform their statutory duties.
In Ganga Pollution (Municipalities case) case127, the apex court
devoted more than two and half pages to describe in detail the provisions
of U.P. Nagar Mahapalika Adhiniyam, 1959 and the U.P. Water Supply
and Sewage Act, 1975.128
Similarly in the Vellore Citizens Welfare Forum case129, the apex
court quoted the provisions of Madras District Municipality Act, 1920 to
remind the Municipalities to perform their statutory duties. In the instant
case, there were large number of tanneries, exceeding more than 900,
emitting untreated trade effluent into agricultural fields, road sides, water
ways and open lands, thus polluting these objects badly. To all this, it
was stated that the Municipality remained a silent 'spectator' for more
than 10 years. This according to the court, was probably due to the fact
that 'it does not want to antagonize the highly influential and
stupendously rich tanners.
Thus we found that Municipal laws were used as raw materials
but the court ignored/these 'laws' while writing the operative part of the
judgment/order. Does it not show the non-concerned attitude of the court
towards the omission or commission of the local authorities?
In S. Jagannath case130, the apex court referred to Fisheries Act,
1897, Wild Life (Protection) Act, 1972 and the Forest Conservation Act,
1980 and pointed out that they contained useful provisions for
environment protection and pollution control. The court lamented the fact
that authorities responsible for implementation of various statutory
provisions were wholly remiss in performance of their duties under the
said provisions.
It may be pointed that though the apex court had referred to the
aforesaid 'other laws' which included forest laws, Wild Life (Protection)
126.
127.
128.
129.
130.
Ratlam Municipality v. Vardichand AIR 1980 SC 1622.
M.C. Mehta v. Union of India AIR 1988 SC 1115.
Id at 1118-1119.
AIR 1996 SC 2715
S. Jagannath v. Union of India (1997) 2 SCC 87; See also M.C. Mehta v. Kamal
Nath 2000(5) SCALE, 69, 73.
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Act, 1972 but it ignored the provisions of the 'other laws' as raw materials
in writing the operative part of the judgment/order.
(B) INTERNATIONAL LAW :
Coming to International Law, the apex court focussed its
attention mostly on Stockholm and Rio Conferences, basic of
International Environmental Law in most of the water pollution cases. In
Ganga Pollution (Kanpur Tanneries) Case131, the apex court took notice
of development at International level. The court devoted almost two
pages for Stockholm Declaration on Human Environment and
Development.132 Besides this, it also used customary international law
principles, various reports of U.N.O and their allied organization, text of
the European Economic Community. Further, the court culled out the
passages from the document, like 'Caring for the Earth', prepared by the
World Conservation Union and United Nations Environment Programme
in Association with World Wide Fund for Nature 133 and from the report of
International Law Commission.134
In Bichhri Village Case135, the apex court used customary
international law principles and Fourth Action Programme of European
Economic Community and Article 130-R(2) of European Act of 1986 to
produce the judgment/orders.
In Vellore Citizens Welfare Forum case136, the apex court took
cognizance of developments at international level. While emphasizing the
concept of 'sustainable development', it quoted Stockholm Declaration
(1972), Brundtland report (1991) and documents entitled as 'caring for
the Earth', Rio Conference and Agenda 21 'of the Conference (1992).
The court adopted customary International Law principles like polluter
pays and precautionary principle as a part and parcel of Indian
Environmental Law.137
In Bittu Sehgal case138, M.C. Mehta, learned counsel for the
petitioner, invited the attention of the apex court to various paragraphs
relating to the protection of Oceans, all kinds of seas, from Agend 21
adopted by Rio Conference. He also referred to the report by the
Department of Ocean Development, Government of India, regarding the
status of marine pollution in coastal offshore water in India. It was further
pointed out that 'the guidelines given in Agenda 21 and the report of
Department of Ocean Development have to be considered by the State
131.
132.
133.
134.
135.
136.
137.
138.
M.C. Mehta v. Union of India, AIR 1988 SC 1037.
Id at 1038-40.
Supra note 1 at 2720
A.P. Pollution Control Board v. M.V. Nayudu (1999) 2 SCC 718, 736.
Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446.
Supra note 1
Id at 2721-22. See also M.C. Mehta v. Kamal Nath (2000) 6 SCC 213, 220.
Bittu Sehgal and another v. Union of India (2001) 9 SCC 181.
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Governments while protecting the area declared by the Government of
India as ecologically fragile areas.139
It one looks to the judgment in the instanct case he will find that
the apex court conceded the point raised by counsel of the petitioner, Mr.
M.C. Mehta.140
Conclusion
The Supreme Court extensively/widely used Indian case laws in
most of the water pollution cases. There were also cases where apex
court referred to its earlier judgment and orders. In some cases, the
Court looked to the English141 and American cases.142 However, only in
few cases, the judiciary looked beyond these countries and referred to
the cases of Australia143 and Newzealand.
It is submitted that apart from the lawyers of the Supreme Court
and High Courts, the judges of the Supreme Court must be exposed to
the comparative environmental precedents by organizing refresher
course/workshop.
The perusal of the aforesaid cases reveal the fact that in case of
comparative literature, the U.K. and U.S.A. materials were cited most. It
may be noted that in few cases, the Supreme Court took note of Indian
literature, however, the foreign books and articles dominated the field.
Jagannadha Rao, J cited maximum number of articles from the U.K. and
U.S.A. K.N. Singh and E.S. Venkatramiah JJ, relied on ancient Indian
literature and books written by Indian authors. One can find that even in
the case of comparative literature, the Supreme Court was using
materials which were 10-12 years old. It is imperative for the Indian
judiciary to keep track with the latest developments so as to keep pace
with fast developing world.
The court exposed the maneuvering of higher official of the
government by using 'resolution' as raw material and brought on record
the utter disregard of law by the Governmental official.
The Supreme Court relied more on foreign dictionaries and
encyclopaedia than Indian literature. It seems that by using foreign
dictionaries and encyclopaedia, the judges wanted to rationalize their
conclusions which has become a habit or a judicial fashion.
In this connection, it is relevant to note that Articles 47, 48-A,
51A(g) alongwith Article 21 were used by the Supreme Court in water
139.
140.
141.
142.
143.
Id at 183.
Supra note at 196
Surpa note 22.
Supra note 41
Supra note 28 Some high courts have referred foreign precedents on other
environmental matters which are not connected with water pollution.
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pollution cases144 what Abraham called as 'India's new public law
rationale as a basic legal ideology which was most relevant for the
current legal development for the protection of environment.145
It is submitted that the Supreme Court has used the Constitution
of India as a source of reservoir for imparting environmental justice in
India. It is evident from the fact that the apex court used extraordinary
remedial power under Article 32 of the Constitution which contributed
immensely in the evolution of the new Constitutional national.
The history of legislations was also used as raw materials for
decision making.146 It is submitted that the detailed discussion of
provisions and Rules of relevant Act makes the judgment unnecessary
long and monotonous. It may be pointed out that it has become judicial
habit or fashion to cite all environmental legislations and rules while
deciding a case pertaining to environmental/water pollution. However,
indoing so, the judiciary, unwittingly indulged in padding of unnecessary
materials in the judgment. It is desirable that judiciary should make use of
relevant materials while deciding a case relating to water/environmental
pollution.
It is submitted that use of International Conventions and
Customary Principles of International Law as raw materials helped the
court to rationalise its conclusion. It is further submitted that many of the
international conventions and principles which have been incorporated
into domestic law by the courts are extremely general in nature and
uncertain in the precise scope of the legal obligations involved. What
matters most is how the courts interpret these principles, and how they
are implemented in practice.

144.
145.
146.
Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715, 2721; M.C.
Mehta v. Union of India (1997) 3 SCC 715, 720; Bittu Sehgal and another v.
Union of India (2001) 9 SCC 181, 194, M.C. Mehta v. Union of India (2000) 6
SCC 213, 218-219.
C.M. Abraham, "Environmental Jurisprudence in India", 22, (1999)
M.C. Mehta v. Union of India AIR 1988 SC 1037; See also, Indian Council for
Enviro-Legal Action v. Union of India, AIR 1996 SC 1446