August 2020 - Page 13 of 18

This Article is Written by Akanksha Chowdhury from Amity University, Kolkata. This Article talks about Polluter Pays Principle along with some landmark cases which were decided and also led to the formation of this important doctrine which is a need of an hour.

INTRODUCTION

The Polluter Pay principle was first introduced in 1972 by the Organization for Economic Cooperation and Development. This principle says that if any person is responsible for polluting the environment then that person has to pay for the damage that he has caused. Honestly the industrial revolution has a lot of pros and cons while on one hand it has helped to improve the lives of many people however it has also caused lots of pollution. Thus, there was a need for certain principles which could help to reduce or curb the pollution therefore the principles such as Polluter Pay Principle and Precautionary Principle. So basically, in this principle the polluter not only has to provide compensation to the but also provide compensation for restoring the environment. Most of the businessmen do not care about the wellbeing of the environment and are mostly concerned with profits, therefore there was a need to introduce different acts and principles that would help them to remember their social obligations. The Polluter Pay Principle is said to be an extension of the Absolute Liability Principle, this principle of absolute liability is applied whether or not the person takes reasonable care. However the problem with the Polluter Pay Principle is that when it was first introduced it did not gain much recognition , it got finally recognized in the case of Indian Council of Enviro Legal Action vs Union of India. In this case it was said that one of the main part of industrial process is that it should reverse any damage that it has caused to the environment , which means that the industries cannot shift the burden to the government they have to pay all the compensation on their own , further in this case multiple writ petitions were filed however the judge had said it was very easy for people with authority to disobey with the judicial pronouncements .

Disadvantages of Polluter Pay Principle

> There are still a lot of problems in understanding who the polluter is, as the definition is very broad and therefore becomes unsupportive.

>Large poor households do not possess enough money to bear the costs for any kind of energy for waste disposal.

>Many environmental problems in the developing countries take place because of overexploitation of common pool resources and access to these common pools of resources could be limited in some cases.

Cases

Vellore Citizens Welfare Forum v. Union of India and Ors

The Citizens complained that a lot of untreated waste from the tanneries and other industries of Tamil Nadu are discharged into the rivers. In tanneries around 200 tons of leather were produced every day and also 1 kilo utilizes 40 liters of water and every liter of water contained 176 different types of toxic acids.

Such acids resulted in the contamination of potable water, because of incandescent in nearby towns the river water flowed into the adjacent land, those lands were used for cultivation and farming practices, as a result the agriculture land was contaminated due to the toxic water from the rivers.

Therefore, in this case the industrialists sought to take necessary action so as to protect our environment.

MC Mehta vs Union of India

This case is also known as the Taj Trapezium Case, in this case the supreme court had reiterated Polluter Pays Principle and had focused on the application of the principle. The yellowing and decaying of the famous Taj Mahal were the main issue in the entire case.

According to the reports given by the national environment engineering institute and Vardharajan Committee in the year 1990 and 1995 respectively they had claimed that the main cause of this decaying was some chemical industries and also Mathura Oil Refinery , the court held that these industries should change from fuel to natural gas or else their licenses would be cancelled instantly.

Oleum Gas Leak Case –

In this particular case, a petition was filed by MC Mehta, who seeks closure of Shree Ram Industry because it was engaged in manufacturing of hazardous chemicals and it was also located in a densely populated area. One day Oleum Gas had leaked from one of its units and caused the death of a lawyer and injured several others

Just after 1 year of the Bhopal Gas Tragedy this incident had occurred, MC Mehta had filed a PIL under article 21 and 32 of the constitution and demanded that the Shriram Plant in Delhi must be closed.

As a result, the factories were closed however it was later decided by the court that the entire shutdown of the industry will result in the employment of almost 4000 workers and thus cause poverty, therefore it was said that the factory could be opened provided the 11 conditions are followed.

Further the court was asked to deposit Rs 20 Lakhs for payment of compensation to the victims.

MC Mehta vs Kamal Nath

This is also known as the Span Motels Case. The defendant had a direct connection with the company known as Span Infrastructure Limited who wanted to open a club known as Span Club just near the River Beas. The plaintiff had filed a case in the court because the club was made just near to the river Beas and it was therefore blocking the flow of the river. The court therefore issued public trust doctrine and ordered the club to be removed as soon as possible. The court in its judgement had stated that:

“Liability to pay damages on the principle of ‘polluter pays’ in addition to damages, exemplary damages for having committed the acts set out and detailed in the leading judgment. Considering the object underlying the award of exemplary damages to be to serve a deterrent for others not to cause pollution in any manner. So, the quantum at Rs. 10 lakhs are fixed for the span motels. “

S Jagannathan v. Union of India (1997) 2 SCC 87

This case is known as Shrimp Farming Case. The court had issued the doctrine of polluter pays principle because of the fact that the shrimp farming industry was found guilty of polluting the coastal areas nearby. The court had held that the affected people had to be paid compensation by the Shrimp Industry on the basis of polluter pays principle. The Central Government had issued Section 3 (3) of the Environment Protection Act, 1986 and held that the affected families had to be paid compensation because they suffered huge loss.

M.C. Mehta v. Union of India

This case is known as the Calcutta Tanneries Case. In this case, the court had applied the Polluter pays Principle because of the fact that an industry was storing around 550 tanneries which was at some adjoining areas at the city of Kolkata. Those 550 tanneries caused widespread pollution in the city of Kolkata and the other areas. The Central Government had issued a search operation regarding the strict checking regarding the loss of environment and thus made the industry pay for such a big loss for the citizens and the natural environment as a whole.

How can India Apply Polluter Pays Principle Rigorously?

Talking about India, we can see that our country is not at all employing this principle seriously. Although, there are laws but still the government fails to apply these aspects and contribute in making our environment quite better. We the humans should also understand that we have a Fundamental Right to Live in an unpolluted Environment guaranteed under Article 21 of the Constitution of India. If we only do not take certain steps, then how are we going to achieve positive results. The main thing which needs to come over here is unity and thus take strict action against the democratic government and pressurize them to apply these laws really fast otherwise we all will have a really bad and polluted future full of diseases and especially cancer.

Conclusion

There is no doubt that the decisions of the Supreme Court have a long way to go to reaffirm the commitment of the judiciary to environmental protection and eliminate the adverse effects of pollution. However, the Court is wrong in accepting the P.P.P. as one of the international principles. The disadvantages of the P.P.P. identified by the Supreme Court are not necessary for the P.P.P. to dissuade industry. The violation of environmental regulations mustn’t be affordable. In addition to assessing the cost of repairing the damage, the size of the industry must also be considered. Only in this way can it be ensured that the P.P.P. acts as a deterrent in large industries, as environmental damage is often irreparable.

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This article has been written by Tanya Gupta, a student pursuing BA LLB from Ideal Institute of Management and Technology and School of Law, affiliated to Guru Gobind Singh Indraprastha University, Delhi. This article focuses on the brief explanation of the case N. Nagendra Rao v. State of Andhra Pradesh, AIR 1994 SC 2663.

INTRODUCTION

This case is related to the concept of negligence and the principle of sovereign immunity.

Equivalent Citation

1994 SCC (6) 205

Bench

Sahai R.M. (J)

Hansaria B.L. (J)

Decided On

6 September, 1994

Court

Supreme Court, India

Relevant Law

Essential Commodities Act, 1955 (“hereinafter as an Act”)

Concept

Negligence

Facts

The appellant, N. Nagendra Rao carried on a business and deals in fertilizers and food grains under a license issued by the appropriate authorities. On 11 August, 1975 the Police Officer, Vigilance Cell visited its premises and seized a huge stock of fertilizers, food grains and non- essential goods. On 31 August, 1975 the report submitted by the Inspector, the District Revenue Officer(hereinafter as DRO), in the exercise of powers under Section 6 -A of the Act, directed the fertilizers to be placed in the custody of the Assistant Agricultural Officer(hereinafter as AAO) for distribution to needy persons and the food grains and non- essential goods in the custody of the Tehsildar. The role of Tehsildar was to dispose of the food grains and non-essential goods immediately and deposit the sale proceeds in the Treasury. But, the AAO did not take any steps to dispose of the fertilizers. Therefore, the appellant made applications on 17 September, 1975 before the DRO and on 11 February, 1976 before AAO, no steps were being taken the fertilizers shall deteriorate and shall be rendered useless causing a huge loss to the appellant. The request was made by the appellant for diverting the fertilizers either to the place mentioned by the appellant as the demand was more there or to release it in its favour for disposal and deposit of the sale price. But neither any order was passed by the DRO nor any action was taken by AAO. On, 29 June, 1976 the proceedings under section 6- A of the Act were decided and the stock of food grain was confiscated as the appellant’s license had been cancelled. After repeated requests, the collector ordered that the goods be returned to the appellant. However, the AAO did not comply with the orders. After repeated consultations with various ministers, when the appellant finally obtained the stock back but it was spoiled both in quantity as well as in quality.

Issue Before the Court

The issue raised before the Apex Court were:

Whether the seizure of the goods in exercise of statutory powers under the Act immunizes the state, completely, from any loss or damage suffered by the owner.
Whether confiscation of part of the goods absolves the state from any claim for the loss or damage suffered by the owner for the food grains which are directed to be released or returned to it.

Ratio of the Case

This case of N. Nagendra must be read in the light of Vidhyawati Case. In this case, the liability was imposed on the state and the concept of sovereign immunity was not adopted. In N. Nagendra Rao’s case as well when the state seized certain goods under Essential Commodities Act for public welfare, the onus fell on the state to ensure that the said goods are carefully preserved as is necessary. Thus, the state was held liable to pay the compensation for the loss incurred.

The Apex Court in Kasturilal Case, held that that state cannot be held liable to compensate the appellant as the act of the state falls under the sovereign function of the state. This view can nevertheless be accepted. Sovereign immunity as a defense can never be available where the state was involved in commercial or public activity and it interferes with the life and liberty of a citizen. The state must be legally and morally bound to compensate the victims for the wrongs committed. No doubt the state must have protection so as to conduct its activities for the public interest without being sued every now and then by the people. However, this cannot be applied to every case where the state fails to take necessary care to protect the interests of the public. The state cannot have the absolute power to act according to its whims and fancies.

With respect to the principle of vicarious liability, it was held that if the officers can be sued personally for the negligence in discharge of public property, there is no rationale for the proposition that even if the officer is liable the state cannot be sued. Now, since the doctrine has become outdated and sovereignty rests with the people, the state cannot claim any immunity. Thus, the state of Andhra Pradesh was directed to pay the appellant the amount as directed by the trial Court.

Decision of the Court

The trial court held that the state while performing its duty under a statute has been negligent and issued a decree for the payment of Rs. 1,06,125 towards the damaged stock along with the interest at the rate of 6%.

The HC of A.P. struck down the order of the trial court and decided the case on the basis of the ratio of Kasturilal case.

The appellant appealed in the SC against the judgment passed by the HC of A.P. The Apex Court held that if the officers can be sued personally for negligence in discharge of public property, there is no rationale for the proposition that even if the officer is liable the state cannot be sued. The Apex Court dealt with the concept of sovereign immunity, meaning sovereignty rests with the people, the state cannot claim any immunity. Thus, the State of A.P was directed to pay the appellant the amount of Rs. 1,06,125 as decided by the trial Court along with the interest at the rate of 6%.

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This article is written by Siddhi P. Nagwekar, a student of Karnataka State Law University’s Law School. This article deliberates upon the constitutional provisions on environmental human rights and its applicability in the cases that have come before the Courts in the recent past.

INTRODUCTION

Environment is defined under Section 2(a) of The Environment (Protection) Act, 1986. It states: “environment” includes water, air and land and the inter- relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property”.

The Universal Declaration of Human Rights which adopted on 10^th December, 1948, defines human rights as “rights derived from the inherent dignity of human person”.

The framers of the Indian Constitution were greatly inspired by the concept of human rights contained in the Universal Declaration of Human Rights and guaranteed many of those rights in our constitution part III and part IV, though separate, carry the common theme of human rights. When Human rights are warranted by a written constitution, they are called as fundamental rights. Fundamental rights are the contemporary term for what has been traditionally known as natural rights. Fundamental rights are dealt in Part III of the Constitution.

At the time of Constituent Assembly debates, there was no specific provision relating to environment protection. At that time, environmental issues were left out. But on the other side, judiciary was active. Judicial consciousness in the sphere of environment protection and balanced progress makes government and people more conscious about the concept of sustainable development

Environment and Fundamental Rights in India

Principle 1 of the Stockholm Declaration states:

“Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that allows a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generation .”

Above given principle finds reflection in series of fundamental rights, which are explained as below:

Article 14: Right to Equality

To protect persons against arbitrary and unfair State actions is one of the agenda of equality clause. This Article being a general Article under Part III plays a very important role because it prohibits arbitrariness. It will not be wrong to say that coexistence of equality and arbitrariness is impossible. The new dimension of the right to equality which excludes arbitrariness is often used by judiciary for quashing the permission of construction granted arbitrarily by State without giving due importance to environmental concern.

Arbitrary Sanction of Authorities in Environmental Matters

The judiciary has on several occasions declared that the arbitrary sanction of the authorities in environmental matters as unconstitutional. Article 14 has often been invoked by Indian judiciary for environment protection. Its contents contain witnessed effectuation especially in cases involving mining and stone crushing activities. Arbitrary grant of lease and unwarranted operation of mines may lead to destruction of wild life and nature. When the mining activities resulted in pollution of Mussoorie Hill range forming part of Himalayas, then the issue of development and environment was brought into sharp focus for the first time. In 2010, the Communist Party of India (CPI) encouraged to the then Prime Minister Dr. Manmohan Singh to review the mega steel project awarded to South Korean Steel Giant Posco in Orissa and urged him to immediately withdraw the arbitrary environmental clearance accorded to the project in light (Article 14) continued violence and atrocities against the local population. CPI has stated that the project did not provide any kind of direct benefit to the people of the locality or the economy of the country or the state and was rather aimed at stripping the area of its rich mineral resources.

Article 19(1) (a)

Article 19(1) (a) assures to people of India “the freedom of speech and expression subject to reasonable restrictions.” Due to societies progress, new means for communication have been developed, which can be used for the purpose of speech and expression. Law prohibits us, to use these means violently because public health demands control of the use of such appliance as produces loud noise by day or by night. Kerala High Court in P.A. Jacob v. Superintendent of Police, Kottayam, (AIR 1993 Ker 1), has also recognized the above view and held that: the freedom of speech does not include freedom to use loudspeakers or sound amplifiers triggering noise pollution and risk to human health. The Court has also made it very clear that operation of mechanical sound-amplifying devices conflict with quiet enjoyment of men in park and freedom of speech does not involve freedom to use sound amplifiers to the drawn-out natural speech of others.

Freedom to Know Unsustainable Projects

The freedom to know which can be seen as a part of dignified life; has a close link by Article 19 (1) (a). Right to know has proved very effective in environmental matters, where plans of the government may create danger for the health and life of people. In light of this right every government plan regarding the construction of any dam, nuclear plant, hazardous industrial units and thermal plants, which is unsustainable and have the capability to distress the lives and well-being of masses, must be given wide publication. The instance of the Narmada Valley Project in Madhya Pradesh, Maharashtra and Gujarat, and the National Missile Testing Range at Baliapal in Orissa are pertinent here. All these projects have resulted in popular agitations against the government, which if sustained, may ultimately change the very approach of economic development that India has followed so far.

In this background, Brundtland Report, 1987 has noted that:

“Some inquiries and hearings on the development and environment impacts can aid significantly in drawing attention to diverse point of views. Free access to information and the availability of alternative sources of technical expertise can provide an informal basis for public discussion when the environmental impact of a proposed project is particularly high, public scrutiny of the case should be subject to prior public approval, perhaps by referendum?”

Above discussion very much clears that Article 19(1) (a) and right to know both are inter-related to each other and backed by the environment protection laws and Sustainable Development principles.

Article 19(1) (g)

Satish Bhatia correctly implies that trade isn’t an end in itself but a means to an end – the aim of sustainable development. Sustainable development aims at maximizing net welfare of economic activities, along with maintaining or increasing the stock of economic, ecological and socio-cultural assets overtime. It implies the role of many non-economic and non-material environmental factors and equity aspects also” .

Article 19(I) (g) provides the right to the citizens:

“to practice any profession or to carry any occupation, trade or business and this particular right carries certain reasonable limitations as given under Article 19(6), which may be compulsory for the welfare of common masses”.

By virtue of a range of judgments of Supreme Court as well as the High Courts, now it is well settled that the right to freedom of profession, occupation, trade or business is subject to the condition that it should not be a cause for environmental pollution. In Abhilash Textile v. Rajkot Municipal Corporation, AIR 1988 Gujarat 57, Court held that:

“Though a person has a right to carry on any business of his choice, but there is no right to carry on any business inherently dangerous to society, because the interests of society are to be balanced with the interests of citizens to carry on business.”

It is of common knowledge that now a day’s tanneries, dye factories, acid factories and hotels are source of environmental pollution. Several times, the Indian judiciary directed that closure of certain industries which were not showing any progress towards setting up of air pollution control system in compliance with its earlier order. But it does not mean that State is against the concept of industrialization. It is true industrial development is essential for handling the problems like unemployment, poverty etc. but the preservation of ecological balance has a paramount place, because it is concerned with the life and health of the masses. Hence, any industry that pollutes, can’t be allowed to run under the garb of development if it results in public nuisance and imbalance of the ecosystem.

Generally environmental and trade issues can broadly be classified into two categories i.e.

Local or National pollution problems including problems like pollution of national soil, water and air resources. Mostly, the business activities are responsible for environmental degradation of such nature, which endanger the quality of life of its citizens.
Transboundary Pollution Problems have a global impact. This would include pollution of transnational water resources, air pollution, ozone layer depletion etc.

No doubt industrial pollution contaminates environment. Trade or industrialization affects transnational water resources. When the harmful chemicals are released from the factories and mixed with the stream, rivers or ocean waters, there definitely affect the ground water. Moreover, today’s world is suffering from trans frontier air pollution. Trail Smelter Arbitration is one of the best instances of transboundary air pollution. Ozone layer depletion is one more effect of transboundary pollution. Therefore, it is quite evident that any trade or business which is dangerous to natural vegetation and wildlife can’t be carried on in the guise of fundamental right.

Article 21

From the constitutional provisions concerning environment, Article 21 is notable which involves all the finer graces of human civilization and thus embraces environment. Hence, the credit goes to Indian judiciary to incorporate the internationally recognized ‘right to environment’ under domestic domain by its various pronouncements. Article 21 emphasizes that every citizen can claim dignified life. Even so it doesn’t expressly mention the word environment but courts have given a wider interpretation to the term life by including in it the right to congenial environment for human existence. This Article creates a new way for all the persons to approach the courts for appropriate relief when they are deprived of hygienic environment. In this context Gurdip Singh rightly explained that:

“The right to clean environment is a fundamental right as well as a human right simply because it is the basic need for the survival of the human race. The contaminated environment will kill human beings. Thus, right to pure and decent environment lies central to the right to life supporting ecosystem which sustains life”.

In various countries the rights to healthy environment and to sustainable development are fundamental human rights implicit in the right to life. Indian judiciary also recognized the idea of balanced progress as a part and parcel of Indian law in a series of cases and also elevated it to the status of a fundamental right implicit in Article 21 of the Indian Constitution. Moreover, numerous judgments have significantly broadened the compass of Article 21 . In Madhu Kishore v. State of Bihar court stated that:

“There are two conflicting, yet complementary, aspects involved. These are the right to development and the right to clean and healthy environment. Both had been declared an integral part of the right to life under Article 21 .”

Clean wind is an Essential Part of Right to Life

The term ‘life’ has broad meaning. To breathe in clean air is the primary need of a dignified life. Following the above view, the Supreme Court, ordered for the closure of a factory which was producing air pollution. Allahabad High Court held that right to life as a fundamental right under Article 21, which includes the right of enjoyment of pollution free water and air”.

Again, Apex Court found that the discharges resulted in infringement of the right of life of the people living in the Taz Trapezium (TTZ) and it has also affected the esteemed monument like the Taj”.

Further, the Karnataka High Court observed that water and air pollution caused by stone crushing had adverse effects on human health, animals and vegetation, therefore, it violates the dignified life. The court also ordered crusher units to pay compensation to the victims of pollution. Additionally, in CNG case the Supreme Court treated air pollution in Delhi caused by vehicular emissions as violation of Article 21 and thus, by considering the idea of sustainable development ordered all commercial vehicles operating in national capital to replace to CNG gas type for conserving the healthiness of the masses Thus, from the above discussion, it is very much obvious that Article 21 does not mean mere animal existence, it includes pollution free environment also.

Article 26: Freedom to Manage Religious Affairs

India is a secular country. All religions have equal protection. Everyone is free to manage its religious matters. But no religion allows us to spoil the decent environment on the name of God. Judiciary interpreted the above Article in its own way by keeping in view the sustainable development concept. With the development, the mode of prayer to God has been changed and it has become very problematic for the environment. According to Supreme Court of India, “no religion stipulates that the prayers are required to be performed through amplifiers or beating of drums”. Freedoms to administer religious affairs are subject to public order, goodness and wellbeing of masses. Where level of is beyond permissible limit then it would not be just and proper to permit the religious institutions to propagate through amplifiers. This view was expressed in Haddon v. Lynch Court held that “the ringing of a church bell in the early morning hours of Sundays and public holidays was held to be a legal nuisance if it disturbs persons residing in the neighbourhood”. In a different case, court held that “during the religious ceremonies regular sound may not be nuisance but if an effort is made to play a band either with or without applaud of singing it may cause nuisance”.

Article 32:- Writs as remedies for Environment Protection and Sustainable Development

The importance of Article 32 can’t be underestimated. Therefore, Dr. B. R. Ambedkar stated that:

“If I was asked to name certain article in this constitution as the most important an article without which this constitution would be a nullity, I would not refer to any other article except this one. It is the very soul of the constitution and the very heart of it”.

The scope of these rights has been enlarged through judicial interpretations from time to time. Through various judicial announcements, it has been cleared that the right to life does not simply means an animal existence. The offended person alleging complaints relating to environment pollution can move a petition for redressal of his grievances in the higher court of the land through Art. 32. In this framework, the High Courts entertains much wider power for protection & improvement of environment under Art. 226.

For elimination of water and atmospheric pollution, the Supreme Court has directed the erring parties not to discharge effluents into river water without adequate treatment. In the Taj Trapezium case to protect and preserve the beauty of the Taj Mahal, certain industries affecting the nearby environment, were ordered to be closed down. In another writ petition, directions were sought to prevent the pollutions released by industries in Tamil Nadu. The Apex Court held that “though such industries are of essential importance in the development process of our country, they could not be allowed to continue their operations unless they set up pollution control devices”. The Court further held that “such industries could not be allowed to destroy environment, degrade the ecology and pose health hazards”. In this case, ‘sustainable development principles’ were evolved. Justice Kuldip Singh (popularly known as Green Judge) maintained that “Precautionary principle and the polluter pays principle are essential features of ‘sustainable development’.”

Apart from above cases, series of public interest litigations have drawn the attention of Supreme Court in the direction of environmental pollution and Apex Court has issued necessary directions in such public interest litigations so that the people living in the area can lead the pollution free life.

Conclusion

The above discussed constitutional provisions very much clear that the concept of environmental protection and sustainable development is a hidden aspect of our Constitution and connected with our religious and social beliefs. Under these, a good number of legislations have been enacted and they are capable of producing good results but the most important thing is the strong will power of government and community participation to produce the desired results.

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Report by- Riddhima Bhadauria

The Kerala High Court recently on 5th of August extended the operation of interim orders passed by the Court in view of the continuing COVID-19 pandemic (Court on its own motion: Suo Motu Proceedings – COVID-19 Pandemic v. State of Kerala). A three-Judge Bench of Chief Justice S Manikumar and Justices Shaji P Chaly and CT Ravikumar issued the order.

Issue

What are the measures taken up by the high court during the national lockdown of 21 days to control the spread of covid-19??

Facts of the Case

The suo motu writ petition was registered by the Court after it was brought to the Court’s notice that litigants were put to difficulty in approaching the Court amid the COVID-19 pandemic. The Court, noting that the situation in Kerala had not changed after its last Order, extended the life of its interim orders March 25 and May 18, which pertained to recoveries as well. The total lockdown imposed in the country resulted in immobilization of public at large and total stoppage of public transport, litigation found it difficult to vindicate their matters. So, the court deems it proper to provide directions in the instant suo motu writ petition.

State Bank of India had sought to be impleaded as an additional respondent in the Court’s suo motu writ kept pending to monitor issues arising out of the pandemic. The Bank group has sought to continue with recovery proceedings under the SARFAESI Act, 2002 initiated “much before” the outbreak of the pandemic. They were already initiated with respect to loan accounts which were classified as non- averments. Reserve bank of India has issued circular declaring the COVID 19 regulatory package by rescheduling the payments of all existing credit/loans.

The two annexures were issued by the reserve bank of India as ANNEXURE 1 and ANNEXURE 2. These two mentioned circulars reflect the policy not to stop the recovery proceedings. Section 35 A of banking regulation act,1949 covers the above-mentioned circulars under subordinate legislations.

The Canara bank filed a petition seeking to implement them as an additional respondent in the writ petition. Pertinently, Additional Advocate General Ranjith Thampan submitted that if the banks were permitted to proceed with recoveries, other lending institutions would follow suit, approaching the Court seeking to initiate recovery. The order followed a Special Leave Petition to the Supreme Court in respect of the Kerala High Court’s order concerning Public Sector Undertakings.

Judgement

The high court, as well as district courts in the district judiciary and tribunals, have granted an interim order for limited period and litigants, their respective counsels will not be in a position to approach the courts/tribunals for filing an application for extension during lockdown of 21 days.
Necessary orders have to be issued to enable litigants not to suffer from their inability to approach the court. therefore, on the exercise of article 226 and article 227, all interim orders passed by courts and tribunals are extended by the court for one month.
The state government, LSG institutions, the government of India and public sector undertaking owned and controlled by state/central government shall not take any coercive action as there is no opportunity for the person to approach the court.
Recovery proceedings by the government of India and public sector undertakings owned or controlled by the government of India, which was taken an appeal by the union of India in special leave petition, where the supreme court also granted the permission to file special leave petitions.
There should be a total shutdown of courts during the lockdown period.
In all recovery matters such as electricity, water, Akhbar and other matters the payment will be deferred and thereafter no recovery proceeding already initiated would not proceed till 30-04-2020 as counsel of ministers, the government of Kerala have decided.
Any order filed for extending /vacating an interim order and pending for orders in the court will be extended for one month.

Case law referred

ICICI Bank limited vs. Official Liquidator of APS star industries limited and others(2010)- held that the circulars issued by the reserve bank of India would fall within the ambit of subordinate legislation by virtue of section 35 A of the Banking Regulation Act, 1949 and that the government of India have not issued any other orders or institutions in this regard to the banks.

To download the Judgment click here Download

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Report by- Eshna Thakur

The Supreme court, On 30^th July 2020 passed this judgment. A bench comprising the Honourable Justice N.V Ramana, Justice Surya Kant and Justice Krishna Murari. The criminal case appeal number is 492 – DBA of 1996. Previously the High court of Punjab and Haryana passed a judgement convicting the appellant under Section 2(1a) (f) and Section 16 (1) (a) (ii) of Prevention of Food Adulteration Act, 1954 setting aside the judgement of trial court acquitting the appellant.

Appellant’s Contention

The appellant firstly argues that the report of the Public analyst does not mention if the sample was “insect infected” or “unfit for human consumption”. The appellant remained unpresented as the advocate did not appear in the court.

KEY HIGHLIGHTS

The trial court acquitted the appellant.
High Court of Punjab and Haryana at Chandigarh in Criminal Appeal no.492DBA of 1996, set aside the judgment of the trial court acquitting the. Appellant and convicted him for the offences under Section 2 (1a) (f) of the Prevention of Food Adulteration Act, 1954 punishable under Section 16(1A) and Section 16(1)(a)(ii).
The pension of the appellant cannot be forfeited as that in the absence of an order passed under section 71(h).
The Supreme court gave appellant benefit of doubt due to failure of establishing Section 2(1a) (f) of Prevention of Food Adulteration Act, 1954.
The Supreme court on 30-07-2020 allowed the appeal to stand.

Respondent’s Contentions

On 18^th August 1982, the Food Inspector along with a medical officer went to inspect the shop of appellant and found 10 kgs of haldi powder in his shop. He bought 600 grams. And then the sample was sent for testing. The sample was found to have full living mealworms and two living weevils. The Public counsel also submitted that since the sample was taken from the shop itself which meant it was for the public sale.

SC allows the Appeal to Stand

Supreme Court held that the sample was received in the office of public analyst on 20^th August 1982 and reports were finalized on 7^th September 1982. Causing a delay of 18 days. And there is no evidence that the sample could not be tampered. Hence, giving appellant the benefit of doubt, and as the appellant and argued about the sample not being mentioned as insect infector or unfit for human consumption, the prosecution has failed to establish Section 2(1a) (f) of Prevention of Food Adulteration Act, 1954. Hence, discarding the impugned order of conviction passed by the High Court of Punjab and Haryana. The Appeal stands allowed.

What are the key provisions of Prevention of Adulteration of Foods Act, 1954?

Section 2 (1a) – It deals with the definition of Adulteration and the article of food that can be treated as adulterated.
Section 2(f) – ) if, when sold in packages which have been sealed or prepared by or at the instance of the manufacturer or producer and which bear his name and address, the contents of each package are not conspicuously and correctly stated on the outside thereof within the limits of variability prescribed under this Act.
Section 16 1(a) (ii) – It deals with the penalty. Any adulterant which is injurious to health, he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than one year but which may extend to six years and with fine which shall not be less than two thousand.

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This article has been written by Niti Shah studying BLS/LLB from Pravin Gandhi College of Law, University of Mumbai. Lok Sabha has passed the Citizenship (Amendment) Bill in the year 2019.

What is Meant by Citizenship?

Citizenship is a lawful right to be a part of a particular country. citizenship grants upon individual membership in a national political community. Once a person is a Citizen enjoy civil and political rights in a sovereign state.

Citizenship as given in the Indian Constitution

The Constitution of India provides for Citizenship to Indians under Article between 5 to 11

Article 5: This article provides citizenship by the way of domicile.

Article 6: This article grants citizenship to persons who have migrated from Pakistan to India before the constitution of India commenced

Article 7: This article bestow citizenship on those people who have migrated to Pakistan after the announcement of Independence but later returned to India

Article 8: This article provides for citizenship to people whose parents or grandparents were born in India, but are resident of abroad.

Article 9:This article provides that any person who has the citizenship of any other country will not be entitled to the citizenship of India.

Article 10: This article states that all citizens shall continue to be citizens of India.

Article 11:Gives power to the parliament to make rules regarding citizenship.

Under Article 11 of the Constitution, the Parliament enacted the Citizenship Act, 1955. The Act has provided for acquisition and loss of citizenship after the commencement of the constitution.

The Act mentions various ways in which a person can be Indian citizen –

Citizenship by Birth

A person who is born in India after or on 3rd December 2004 is considered as a citizen of India by birth. Only if the parents are citizens of India or even if one of the parents is a citizen of India and the other is not an illegal migrant at the time of his birth.

Citizenship by Descent

Until 1992, if a person is born outside India and has an Indian father then is eligible for citizenship by descent. However, from December 2004 onwards, a person is considered an Indian citizen only if his/her birth is registered within one year

Citizenship by Registration

Subject to certain conditions and restrictions, the person of Indian origin or a woman married to an Indian citizen can be registered as an Indian citizen

Citizenship by Naturalization

Citizenship of India by naturalization can be acquired by a foreigner who has resided in India during the last 12 months, and for 11 of the previous 14 years and satisfies other qualifications as specified in the Third Schedule of the Act.

Citizenship by Acquiring Territory

In case a new territory becomes a part of India, the government of India specifies all the people of that territory who can be citizens of India

Key highlights of the similar are:

The citizenship amendment act tends to amend the Act to make the Hindus, Sikhs, Buddhists, Jains, Parsis, Christians migrants who have migrated to India from Afghanistan, Bangladesh, and Pakistan after facing mistreatment on the ground of religious persecution eligible for citizenship.

Note: The Citizenship Act, 1955 not only prohibits but also doesn’t encourage illegal migrants from acquiring Indian citizenship

The act seeks to discount the minimum years of residency in India to apply for citizenship to be lessened from 12 years to 7 years for such migrants which are mentioned above.
Any law violated by the overseas citizens of india cardholders(OCI) Then their citizenship might be canceled.

Note: Overseas citizens of India are the people who are given a lifetime visa status. The Bill will apply only to all States and Union Territories of the country as given in the amendment act.

Applicability of the Citizenship Amended Act

The provisions on citizenship will not apply to the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, which are included in the Sixth Schedule to the Constitution. These tribal areas include Karbi Anglong (in Assam), Garo Hills (in Meghalaya), Chakma District (in Mizoram), and Tripura Tribal Areas District.
It will also not apply to the “Inner Line” areas notified under the Bengal Eastern Frontier Regulation, 1873. In these areas, visits by Indians are regulated only through the Inner Line Permit.

Cancellation of Registration of OCIs:

These are the grounds on which the central government may cancel the registration of the OCIs

If the citizen has registered itself by the way of fraud.
After the registration within a time of five years, the citizen has been sentenced to imprisonment for two years or more.
if in case it is a necessity for the sovereignty and security of India.

Note: The orders for cancellation of OCI will only pass if it is heard from the OCIs cardholder

This permit system applies to Arunachal Pradesh, Mizoram, and Nagaland.

Concerns Against the Amendment Act

Issues present in the North-Eastern part of India

According to the Assam Accord of 1985, which states that illegal migrants, irrespective of religion, heading in from Bangladesh after March 25, 1971, would be deported. The act contradicts the same.
It is further argued by the critics because of events in which there has been an extensive exercise of updating the National Register of Citizens (NRC) all of that will become void due to this Amendment act.
There are an estimated 20 million illegal Bangladeshi migrants in Assam and they have altered the demography of the state also put a severe strain on the state’s resources and economy.
Article 14 of the Constitution and the principle of secularism enshrined in the preamble of the constitution it is voilative of them
It will be difficult for the government to differentiate between illegal migrants and those prosecuted.

Conclusion

the Supreme Court, being the Guardian of the Constitution has to interpret the provisions of the Act and test that whether the “classification” done in the Act is “reasonable” or not if tested against Article 14.

India has a civilization duty to protect those who are prosecuted in its neighbourhood. But, the methods must be following the spirit of the Constitution.
the people of the North-East should be engaged more constructively to convince them that the linguistic, cultural, and social identity of the people of the region would be preserved.

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This article is written by Shambhavi Shree, a student of KIIT School of Law, Bhubaneswar (4th year).

INTRODUCTION

Market-based instruments are used by many countries worldwide. The first MBIs were introduced by David Llyod in the United Kingdom (UK) when fuel tax was levied in 1909 during his tenure in the ministry. The main objective of MBIs is to reduce negative outside factors or influences that impact the operation of a business. So that people will adopt new production at a low cost. It reduces the activities which are harmful to society such as environment-related taxes, air pollution, water pollution, motor vehicle fuels, greenhouse gas emissions, carbon leakage, etc. The Organization for Economic Cooperation and Development (OECD) suggests that there are 250 environment based fees charges and 375 different environmental taxes. Market-based Instruments are also known as economic instruments, price-based instruments, new environmental policy instruments, or new instruments of environmental policy.

Advantages of MBIs

Market-based Instruments are highly flexible.
It motivates the firms to change their practices and improve their functioning.
It reduces toxic emissions from vehicles and engines.
It is cost-effective.
It promotes Competition which drives innovation.

Types of MBIs

Pollution tax: It talks about the charges imposed on the products that are harmful to the environment.
Subsidies: Any state or a public body grants money to reduce the number of industry discharges and for investing in pollution control measures.
Marketable permits: An authority sets maximum limits on the total allowance emissions of a pollutant. Traders can be both external as well as internal. The criteria are set for the total demand for the amount of the pollutant over a specified period.
Liabilities
Refundable deposits: It consists of the product returned after use till a specified time and which needs recycling or proper disposals like batteries, textiles, pesticides, containers, metal, paper, plastic, glass, tires, and electronics.

Various Categories of MBIs

Price-based Instruments: Price-based Instruments was first put forward by Pigou in 1920. It establishes the resources which have some positive externalities and deny the resources which have negative externalities. Example: Ozone depletion fee, greenhouse challenge subsidy, the license fee for use of marine water, aircraft noise levy, etc.
Quantity-based Instruments: quantity-based Instruments imposes restrictions on the resources which are harmful to the environment. It also establishes limits on the quantity and quality of goods and services. Examples: Release of air pollution that is detrimental to human health like carbon dioxide, methane, smoke, nitrogen oxides, sulfur oxides, etc.

Laws Dealing with MBIs

The Forest (Conservation) Act, 1980
Motor Vehicle Act, 1938
Wildlife Protection Act, 1972
Water (Prevention and Control of Pollution) Act, 1974
Water (Prevention and Control of Pollution) Cess Act, 1977
The Public Liability Insurance Act, 1991
The Environment (Protection) Act, 1986
The Air (Prevention and Control of Pollution) Act, 1981
Clean Air Act, 1990
Federal Water Pollution Control Act, 1948

Penalty/Punishment

Any person found liable shall be punishable with an imprisonment of three months or with fine or both.
In the case of the Wildlife Protection Act, 1972 the punishment is ranging from ₹500 to ₹25,000 for violation of the law.
In case of violation of the Environment Act, the person shall be liable with the maximum imprisonment of five years or with a fine up to ₹1,00,000 or with both. If any person continues the act then he shall be liable with a fine of ₹5,000 on a daily basis.
Under the Motor Vehicles Act, 1938 states that any person who violates “pollution under check” (PUC) for the first time shall be liable for a penalty of ₹1,000 and ₹2,000 if found liable again.

Delhi Air Pollution

In the 1990s there were forty-one names of the polluted cities in which Delhi was in the fourth position. The Central Pollution Control Board further analyzed that two-thirds of air pollution was caused by motor vehicles. The term “vehicles” refers to “automobiles, motorcycles, trolleybuses, trailers and agricultural vehicles.” In 1996 around 2000 metric tonnes of air pollutants were emitted daily by motor vehicles which resulted in 67 percent of total air pollution. Therefore the citizens filed Public Interest Litigation (PIL) in the Supreme Court. The court instructed the government to take some important rules and regulations to reduce pollution. To reduce the pollution all petrol and diesel were converted into Compressed Natural Gas (CNG). So basically till 2002, all the buses were converted to CNG.

The main advantages of CNG consist of:

It is cheaper than petrol and diesel.
CNG burns most efficiently.
Adulteration.
CNG gas has rarely been robbed.

The challenges faced by CNG from the 1990s to 2002 was because of the pipeline. There were a lot of restrictions by the government namely unleaded petrol, removal of sulfur and diesel, disposal of the vehicles which produce pollution. Air pollution can lead to heart disease, lung cancer, asthma, skin infection, and respiratory diseases.

CONCLUSION

Our environment is preserved and used as an instrument for human satisfaction but the biggest drawback of our society is that no one wants to pay the tax. Federal and State governments stated that MBIs will play an important role in the future. The government has undertaken a scheme known as Common Effluent Treatment Plans (CETP) which has 65 member industries. It is a concept of treating effluents through a collective effort. It is generally practiced using tankers, underground piping systems, and open channels. There was the introduction of the United Nations Framework Convention on Climate Change (UNFCCC), 1992 to stabilize greenhouse gas emissions that are affecting our climate.

REFERENCE

http://moef.gov.in/wp-content/uploads/wssd/doc2/ch2.html
https://www.who.int/airpollution/data/cities/en/
https://www.greenfacts.org/glossary/mno/market-based-instruments.htm
https://www.mfe.govt.nz/publications/marine/market-based-approaches-marine-environmental-regulation-stage-2-instrument-3
https://www.ndtv.com/delhi-news/motor-vehicles-act-2019-vehicles-turning-up-for-pollution-checks-in-delhi-triples-after-fine-hike-2095816#:~:text=period%2C%20he%20said.-,Under%20the%20amended%20MV%20Act%2C%20the%20violation%20of%20PUC%20norm,Delhi%20after%20every%20three%20months.
https://www.cseindia.org/air-pollution-is-now-the-fifth-largest-killer-in-india-says-newly-released-findings-of-global-burden-of-disease-report–4831
https://en.wikipedia.org/wiki/Market-based_environmental_policy_instruments

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This article is written by Hemant Kumar, a student at Law Center 1, Delhi University.

Brief

By reading this article you will get familiar with the different “international conferences” about the environmental laws and agreements and what were the conclusions of those conferences, also the reader will get information about the current environmental condition of India.

INTRODUCTION

The defence of the earth has no other purpose than the defence of life. “Pope Francis”

Human Rights and environment protection both of them are important for the survival of human beings so we cannot think of one of the things in isolation

Laws framed by different states (nations) to govern themselves to protect the environment of the earth are basically international environmental laws.

Customary laws
International Conventions.

To protect the environment along with sustainable development is the main aim of international environmental laws. All nations want to show their presence in the world by the way of development and success they can achieve by development projects. These development projects cause major harms to the environment so laws have been made to protect the environment and if someone breaks the laws he will have to pay the compensation. These development projects destroy the land for farming, basic human rights, food health, the standard of living that are affected by them.

Human rights and environmental laws are closely related to each other as a good and healthy environment is for the benefit of all human beings.

Three benefits that the Human Rights perspective provides for environmental protection:

It shows how environment harm can and does interfere with the values that human rights are designed to protect.
Human rights law clarifies and guides governments in their obligations in respect of environmental protection and provides both procedural and substantive obligations the government should follow in pursuing environment policy.
Human Right law set out new forums through which claims can be brought for environmental harm.

Environmental violation is a “threat to the human right to life”, a good environment is proof of good health. The right to life would have no meaning without it all other rights would be devoid of meaning. Right to life affected by the environmental disaster which produces threatening diseases.

Environment Protection depends on these rights:

Right to Information
Right to Public Participation
Right to Access of Justice

Environmental Protection is not expressly mentioned in the UN Charter but comes under the social and economic provision.

Universal Declaration of Human Right (UDHR)

It proclaims fundamental Rights should equally apply to all humans. It also proclaims that Human Rights are dependent on a healthy environment.

Vienna Declaration, 1993

It states that the Right to development fulfilled so as to equitably meet the development of the environment is the need of the present and future.

Conference of Human Environment held Stockholm in 1972

Principal Declaration

Man has the fundamental right to freedom, equality, and adequate conditions of life in an environment of a quality that permits a life of dignity and well being and he bears a responsibility to protect and improve the environment for present and future generations.

Rio de Janerio, UN Conference, 1992 on Environment and Development

It declares procedural Human Rights which are the right to information, right to public participation, the right to access justice, access to the judicial and administrative proceeding, redress, and remedy.

World Summit on Sustainable Development, 2002

It stated the role of health in sustainable development. Health is both a resource for, as well as an outcome of, sustainable development. The goals of sustainable development cannot be achieved when there is a high prevalence of debilitating illness and poverty, and the health of a population cannot be maintained without a responsive health system and a healthy environment. Environmental degradation, mismanagement of natural resources, and unhealthy consumption patterns and lifestyles impact health. Ill-health, in turn, hampers poverty alleviation and economic development. Development policies and practices need to take into account current and future impacts on health and the environment.

Environmental Policies in India

India has a vast geographical land with almost every kind of climate and the environment is found in our country. Our government and people of India all want to protect this for the present and future generations. Ecology plays an important role in human life and an unhealthy environment cause’s harm to the human body and leads to many diseases.

India is a developing country and less than a 100-year-old democracy. So, India has some developed environmental laws and some are yet to come. Some of the cities in India have the worst atmosphere in the world as these cities are overcrowded and have a huge set up of Industries. During the winter season living in big metro cities feels like we are living in gas chambers.

Recently two incidents happened which questions environmental protection in India.

Visakhapatnam Gas Leak: Styrene gas was leaked from the LG polymers which led to the death of 12 people and sickened hundreds of them. It was operating for two decades without environmental clearance. The National Green Tribunal formed a committee that imposed a fine of 50 crore rupees on the company.
Assam Oil Well Fire: One of the oil wells of Oil India Ltd. where the gas was seeping out for many days caught fire and did heavy damage to the environment nearby. Locals were told to evacuate their own place of living.

While in Visakhapatnam no environmental clearance was taken by the company for the last two decades and was operating smoothly without any hurdles and in Assam there was no public hearing was conducted by the Oil India Ltd. to take the suggestions of the local people this shows how serious the government of our country is regarding the environment and to its law.

One of the policies of the environmental law is that; Polluter should pay- One who makes a mess should clean it. Many formulas have also been generated to measure the damages and fine the people like the deep pocket formula and sustainable development formula. People’s participation is a must to check environmental pollution. Some of the examples include the Chipko movement where people saved a lot of trees and at last the place of the project was changed. Swacch Bharat Abhiyan people supported and we see cleanliness in every district even competition started between different cities to secure the first rank in the cleanest city in India. Save the tiger is one of the successful missions which led to the increase in No. of tiger and most tigers in India in the world.

CONCLUSION

The environment is for the benefit of the people and we should maintain it as it is so that the next generations can enjoy it as well. Plantation drives should be initiated by the people and government for the joint efforts to make the earth green again. The new Environmental Impact Assessment (EIA) 2020 Draft is released which has a No. of flaws like the Post Facto environmental clearance, reduction in public hearing from 30 to 20 days, etc. One can give suggestions to the government regarding the EIA 2020 till the 11th of August on eia2020-moefcc@gov.in your valuable suggestion can save the environment.

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