The prominent scholar Thomas Berry coined the term Earth Jurisprudence. The theory focuses on the determination of the legal rights of Nature and mother Earth. The concept of giving humanistic or personhood titles to nature is derived from this theory. It connotes that each and every component of the universe has its own rights. Human beings are not supreme to nature but both are inseparable entities. This theory tried to evolve the fiduciary relationship between nature and humans. Inspired by the idea of earth jurisprudence Bolivia is the first country to confer legal rights to Nature by passing the Law of Rights of mother Earth in 2010. Similarly, Ecuador and Mexico are the countries that followed the similar example of giving legal rights to nature. Thus, we can say that the radical shift from anthropocentrism to ecocentrism which is regarded as the central theme of the theory of Earth Jurisprudence is seen to be reflected in the legal system of some countries.
Theory of Earth Jurisprudence in Indian Context
It is the High court Verdict of Uttarakhand in the case of Salim vs State of Uttarakhand, Lalit Miglani vs state of Uttarakhand and Ors, and recently in the Madurai bench of Madras High Court, the rights of nature were recognized. The principles like Sustainable Development, the Polluter Pays Principle, and the Precautionary principle shall not be allowed anymore. In the said judgement it was also held that all the components of the environment like rivers, streams, lakes, air, forests, springs, and waterfalls, are entitled as a legal entity or juristic person in the eyes of law. It means as the citizens of India we have fundamental rights in order to protect our individual interests similarly, nature also has legal rights in order to protect preserve and conserve them.
Thus, we can say that the Indian legal field is slowly progressing towards the recognition of natural rights through a theory of earth jurisprudence. This can be considered as one of the steps in the right direction toward the effective conservation and preservation of mother earth.
It was the Stockholm conference which caused awareness regarding environmental protection in India which in turn urged the Indian government to enact the 42nd amendment in 1976. Through this amendment Article 48A and 51-A (g) were added.
The article states that
“The State shall endeavour to protect and improve the environment and to safeguard the forests, land wildlife of the country”.
This article is one kind of responsibility imposed upon the state in order to protect and conserve the environment.
Article 51-A (g)
“It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife to have compassion for living creatures.”
Thus, this article is one of the responsibilities of citizens to protect and improve the natural environment.
Article 253 of the Indian Constitution deals with the power of parliament to make any law for the whole or any part of the country in order to implement any treaty, agreement or convention with any other country. It denotes that parliament has the power to make laws in respect of environmental protection. The use of this article in order to enact the Air Act and Environment Act confirmed the validity of Article 253. In response to the Stockholm conference, these acts were enacted in order to be in conformity with regard to international treaties and conventions.
Role of Legislature in Environment Protection
As mentioned above, Article 253 confers power on parliament to make any law for the enforcement of any treaty, agreement, or convention, parliament passed various acts to enlarge the scope of environmental protection. The most important legislations in this category are –
Environment (Protection) Act 1986
In order to implement the decision of the united nations conference on human environment in 1972 the Environment Protection Act was enacted. The act mandates the state and central government to work in coordination for effective implementation. The core emphasis of this act is on the word Environment which includes water, air, land, and its inter-relationship. Environment pollution is defined as any solid, liquid or gaseous substance which may be injurious to the environment. The term hazardous substance is also defined in the act which is in the form of a harmful substance which tends to be injurious to the environment.
Due to the enactment of this Act central government became more responsible towards its duties and obligations regarding environmental protection. Laying down environmental policies and quality standards had taken place due to the effective implementation of this act.
Wildlife (Protection) Act of 1972 and Amendment, 1982
There are five schedules in the act which provides special protection to various species. The act provides for wildlife advisory boards, regulations for hunting wild animals and birds, the establishment of sanctuaries and national parks, regulations for trade in wild animals, etc. An amendment to the Act in 1982 came up with permission to capture and transportation of wild animals for scientific purposes.
Forest (Conservation) Act 1980
It was in 1927 that the first forest Act was enacted. Due to rapid deforestation and urbanization government came up with forest law. The state may declare forestland or wasteland as reserved forest and the provision of village forest is also included in the act.
Biodiversity Act 2000
In order to protect the rich biological heritage of the country and its indigenous knowledge biodiversity act came into force. It aims at the equitable sharing of biological resources and needs to conserve and protect them. An act provides the setting up of the National Biodiversity Authority, State Biodiversity Boards etc. Any foreign or national organizations need prior permission from NBA in order to obtain biological resources and associated knowledge regarding it. In order to incidences like biopiracy, protect biological diversity act came into force.
Environmental Protection and Remedies of Tort – A Judicial Approach
The Law of torts is a civil wrong which concerns the responsibility of people for acts in the form of violations of their obligations against others. In short, the tort is a breach of some duty in absence of any contract leading to damage to the plaintiff. The Law of torts and the environment are closely interrelated to each other. The major environmental legislation is of recent origin but the law of torts already came up with remedies which can be applied to changing dynamics of society.
Here are some of the case studies where the Indian judiciary applied remedies of the law of tort for the protection of the environment.
MC Mehta Vs Union of India: Oleum Gas Leak Case
After just one year of the Bhopal gas tragedy, a disaster in which a large number of people were affected is one of the learning lessons regarding how we should deal with companies responsible for environmental disasters.
It was an area of almost 2,00,000 people in the vicinity of Kirti Nagar, Shriram” food and Fertiliser factory, Delhi. Meanwhile M.C Mehta a social activist lawyer once filed a petition before the Supreme court in the form of a writ petition seeking an order for closure and relocation of the plant to another area where there will no danger or threat to people. It was on December 4th and 6th of 1985 leakage of oleum gas had taken place from a subsidiary of Delhi cloth mills. When the case was brought before the court another leakage happened within two days through the joints of the pipe.
The first rule of Ryland Vs Fletcher was referred to in this case but Indian courts were not keen to accept this principle as they believed that the use of hazardous and harmful materials in the industry has increased and it will pose a greater threat that industries can escape easily with the aid of exceptions given in strict liability principle. The rule of strict liability places a burden on the person by whom an act was committed intentionally or unintentionally. In short, it places an additional burden on the owner to be responsible for all the acts that may be occurred due to harmful substances which he or she possesses. The onus is on the owner to bear the responsibility for every damage which may be caused by hazardous substances. In order to fall under the rule of strict liability the substance must be first of all dangerous which can cause any harm or mischief like explosives, toxic gases etc. The material should escape from premises to a larger extent and at least there must be non-natural use of land which may increase to others due to such use.
Therefore, Indian courts did not rely upon any foreign principle and they came up with their own principle which is known as the principle of absolute liability. In short, the rule of absolute liability is strict liability minus exceptions given in strict liability itself. According to the principle of absolute liability a person engaged in any dangerous or harmful activity and if that activity causes harm to the community at large then that person who carried out those activities would be absolutely liable. Thus, the complete responsibility is of the owner itself irrespective of all measures taken. It’s the absolute right of the person harmed to Claim damages and held the owner guilty. In regards to the award of compensation, the court held that magnitude and capacity of companies will decide the amount and measure of compensation.
The judgement is a progressive one in the field of environmental jurisprudence which brings serious environmental issues to the forefront.
Environment And Nuisance
The term nuisance is defined as an act which cause an injury to a right of a person or creates unreasonable annoyance which may cause damage or harm to the property of a person and its enjoyment. MP Court in the case of Dhannalal v. Thakur Chittar Singh Mehtap Singh held that noise can cause a nuisance.
Environment And Trespass
It was the case of Arvidson v. Reynold Metals in which it was held that the activity of aluminum production causes air pollution in which negatively affects the livelihood of cattle.
Thus, we can say that the nature and features of environmental torts explain environmental wrongs which helps to serve justice to the affected ones.
Guiding Principles and Values Enriched by Indian Judiciary
In respect of environmental jurisprudence supreme court in a number of cases came up with a new set of principles which seeks to harmonize and protect the right to a healthy environment as a fundamental right.
In the precautionary principle burden of proof is on the person who is making the claim that the activity he or she is going to perform does not cause any harm to the community at large or to the environment. It’s like a precautionary approach toward performing a certain act which may affect the public at large. In short, it’s like a care and caution approach towards the environment and society.
In the present case, Prior responsibility lies on the state government also regarding anticipation and to prevent the cause of environmental degradation. Prior assessment of a particular act is expected to check whether the activity really damaging the environment or not. A lack of scientific knowledge is not proof of inaction.
Thus, in order to maintain ecological balance and a healthy environment this cautious approach of the judiciary in the form of the precautionary principle can be considered a step in the right direction.
Polluter Pay Principle
It was at the RIO Summit of 1992 the polluter pay principle was incorporated for the first time as principle 16 of the summit. Later, in the Indian context, this principle is recognised as a fundamental aspect of environmental policy. This idea emphasizes the fact that the one who produces the polluted effluents or produces pollution should bear the responsibility of managing and mitigating it. It may be cleaning up of area or covering the health cost of people affected. It puts the liability on the actor to pay for environmental damages.
Public Trust Doctrine
In a similar case, the doctrine of public trust was also applied for the first time as a solution to environmental problems. Its state is a guardian of natural resources and they are for the public to make their rightful and ethical use so they cannot fall into private ownership. Thus, this doctrine put emphasis on the fact that states have a legal duty to protect the natural resources of the country.
Thus, it can be said that principles played a major role in the protection and preservation of the environment. These are like constitutional obligations on the citizen in order to curb the degradation of the environment.
Indian environmental jurisprudence had come a long way due to the activism shown by the judiciary while dealing with environmental issues. Proper and timely disposal of cases is one of the core aspects regarding the speedy development of environmental policies in India. Not only the environmental issues but the Supreme Court has upheld the rights of citizens as provided in Article 21 of the Indian Constitution. This is the most enriching factor in which courts of the country tried to find a perfect balance between the right to life and personal liberty and to right to a healthy environment.
This Article has been written by Sumedha Mohan Singote, LL.M Student at the National Institute of Securities Market affiliated with MNLU, Mumbai
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