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PETITIONER:

A.P. POLLUTION CONTROL BOARD

Vs.

RESPONDENT:

PROF.M.V.NAYUDU (RETD.) & OTHERS

DATE OF JUDGMENT: 27/01/1999

BENCH:

S.B. Majmudar. & M. Jagannadha.,

JUDGMENT:

M.JAGANNADHA RAO,J.

Leave granted in all the special leave petitions.

It is said:

"The basic insight of ecology is that all living

things exist in interrelated systems; nothing

exists in isolation. The world system is weblike;

to pluck one strand is to cause all to vibrate;

whatever happens to one part has ramifications for

all the rest. Our actions are not individual but

social; they reverberate throughout the whole

ecosystem". [Science Action Coalition by

A.Fritsch, Environmental Ethics: Choices for

Concerned Citizens 3-4 (1980)]. (1988) Vol.12

Harv.Env.L.Rev. at 313)."

Four of these appeals which arise out of SLP(C)

No.10317-10320 of 1998 were filed against the

judgment of the Andhra Pradesh High Court dated

1.5.1998 in four writ petitions, namely, W.P. No.

17832 of 1997 and three other connected writ

petitions. All the appeals were filed by the A.P.

Pollution Control Board. Three of the above writ

petitions were filed as public interest cases by

certain persons and the fourth writ petition was

filed by the Gram Panchayat, Peddaspur.

The fifth Civil Appeal which arises out of SLP(C)

No.13380 of 1998 was filed against the judgment in

W.P. No.16969 of 1997 by the Society for

Preservation of Environment & Quality of Life,

(for short `SPEQL') represented by Sri P.Janardan

Reddi, the petitioner in the said writ petition.

The High Court dismissed all these writ petitions.

The sixth Civil appeal which arises out of SLP(C)

No.10330 of 1998 was filed by A.P.Pollution

Control Board against the order dated 1.5.1998 in

Writ Petition No.11803 of 1998. The said writ

petition was filed by M/s Surana Oils and

Derivatives (India) Ltd. (hereinafter called the

`respondent company', for implementation of the

directions given by the appellate authority under

the Water (Prevention of Pollution) Act, 1974

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(hereinafter called the `Water Act, 1974') in

favour of the company.

In other words, the A.P. Pollution Board is the

appellant in five appeals and the SPEQL is

appellant in one of the appeals.

According to the Pollution Control Board, under

the notification No. J.20011/15/88-iA, Ministry

of Environment & Forests, Government of India

dated 27.9.1988, `vegetable oils including solved

extracted oils' (Item No.37) was listed in the

`RED' hazardous category. The Pollution Board

contends that Notification No. J.120012/38/86 1A,

Ministry of Environment & Forests of Government of

India dated 1.2.1989, prohibits the location of

the industry of the type proposed to be

established by the respondent company, which will

fall under categorisation at No.11 same category

of industry in Doon Valley.

On 31.3.1994, based on an Interim Report of the

Expert Committee constituted by the Hyderabad

Metropolitan Water Supply and Sewerage Board, the

Municipal Administration and Urban Development,

Government of Andhra Pradesh issued GOMs 192 dated

31.3.1994 prohibited various types of development

within 10 k.m. radius of the two lakes, Himayat

Sagar & Osman Sagar, in order to monitor the

quality of water in these reservoirs which supply

water to the twin cities of Hyderabad and

Secunderabad.

In January 1995, the respondent company was

incorporated as a public limited company with the

object of setting up an industry for production of

B.S.S. Castor oil derivatives such as

Hydrogenated Castor Oil, 12-Hydroxy Stearic Acid,

Dehydrated Castor Oil, Methylated 12-HSA, D.Co.,

Fatty Acids with by products - like Glycerine,

Spent Bleaching Earth and Carbon and Spent Nickel

Catalyst. Thereafter the industry applied to the

Ministry of Industries, Government of India for

letter of intent under the Industries (Development

Regulation) Act, 1951.

The respondent Company purchased 12 acres of land

on 26.9.1995 in Peddashpur village, Shamshabad

Mandal. The Company also applied for consent for

establishment of the industry through the single

window clearance committee of the Commissionerate

of Industries, Government of Andhra Pradesh, in

November, 1995. On 28.11.1995, the Government of

Andhra Pradesh, wrote to the Ministry of Industry,

Government of India as follows:

"The State Government recommends the aplication of

the unit for grant of letter of intent for the

manufacture of B.S.S. Grade Castor Oil in

relaxation of locational restriction subject to

NOC from A.P.Pollution Control Board, prior to

taking implementation steps."

On 9.1.1996, the Government of India issued letter

of intent for manufacture of B.S.S. grade Castor

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Oil (15,000 tons per annum) and Glycerine (600

tons per annum). The issuance of licence was

subject to various conditions, inter-alia, as

follows:

"(a) you shall obtain a confirmation from the

State Director of Industries that the site of the

project has been approved from the environmental

angle by the competent State authority.

(b) you shall obtain a certificate from the

concerned State Pollution Control Board to the

effect that the measures envisaged for pollution

control and the equipment proposed to be installed

meet their requirements."

Therefore, the respondent company had to obtain

NOC from the A.P. Pollution Control Board.

According to the A.P. Pollution Control Board

(the appellant), the respondent company could not

have commenced civil works and construction of its

factory, without obtaining the clearance of the

A.P.Pollution Control Board - as the relaxation by

government from location restriction as stated in

their letter dated 28.11.1995, was subject to such

clearance. On 8.3.1996, on receipt of the 2nd

Interim Report of the Expert Committee of the

Hyderabad Metropolitan Water Supply and Sewerage

Board, the Municipal Administration and Urban

Development Department issued GO No.111 on

8.3.1996 reiterating the 10 k.m. prohibition as

contained in the GO 192 dated 31.3.1994 but making

some concessions in favour of residential

development.

In the pre-scrutiny stage on 24.5.1996 by the

Single Window Clearance Committee, which the

company's representative attended, the application

of the industry was rejected by the A.P.

Pollution Control Board since the proposed site

fell within 10 k.m. and such a location was not

permissible as per GOMs 111 dated 8.3.96. On

31.5.1994, the Gram Panchayat approved plans for

establishing factory.

On 31.3.1996, the Commissionerate of Industries,

rejected the location and directed alternative

site to be selected. On 7.9.1996, the

Dt.Collector granted permission for conversion of

the site (i.e. within 10 k.m.) to be used for

non- agricultural purposes.

On 7.4.1997, the company applied to the A.P.

Pollution Control Board, seeking clearance to set-

up the unit under section 25 of the Water Act. It

may be noted that in the said application, the

Company listed the following as by-products of its

processes:

"Glycerine, spent bleaching earth and carbon and

spent nickel catalysts."

According to the AP Pollution Board the products

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manufactured by this industry would lead to the

following sources of pollution:

"(a) Nickel (solid waste) which is heavy- metal

and also a hazardous waste under Hazardous Waste

(Management and Handling) Rules, 1989.

(b) There is a potention of discharge or run off

from the factory combined joining oil and other

waste products.

(c) Emission of Sulpher Dioxide and oxide of

nitrogen.

It was at that juncture that the company secured

from the Government of A.P. by GOMs 153 dated

3.7.1997 exemption from the operation of GOMs 111

of 8.3.1996 which prescribed the 10 k.m. rule

from the Osman Sagar and Himayat Sagar Lakes.

In regard to grant of NOC by the A.P. Pollution

Board, the said Board by letter dated 30.7.1997

rejected the application dated 7.4.1997 for

consent, stating

"(1) The unit is a polluting industry and

falls under the red category of polluting

industry under section S.No.11 of the

classification of industries adopted by

MOEF, GOI and opined that it would not be

desirable to locate such industry in the

catchment area of Himayatsagar in view of

the GOMs No.111 dated 8.3.1996.

(2) The proposal to set up this unit was

rejected at the pre-scrutiny level during

the meeting of CDCC/DIPC held on

24.5.1996 in view of the State Government

Order No.111 dated 8.3.1996."

Aggrieved by the above letter of rejection, the

respondent company appealed under section 28 of

the Water Act. Before the appellate authority,

the industry, filed an affidavit of Prof.

M.Santappa Scientific Officer to the Tamil Nadu

Pollution Control Board in support of its

contentions. The appellate authority under

section 28 of the Water Act, 1974 (Justice M.Ranga

Reddy, (retd.)) by order dated 5.1.1998 allowed

the appeal of the Company. Before the appellate

authority, as already stated, an affidavit was

filed by Prof. M.Shantappa, a retired scientist

and technologist (at that time, Scientific Advisor

for T.N. Pollution Control Board) stating that

the respondent had adopted the latest eco-friendly

technology using all the safeguards regarding

pollution. The appellate authority stated that

Dr.Siddhu, formerly Scientific to the Government

of India and who acted as Director General,

Council of Scientific and Industrial Research

(CSIR) and who was the Chairman of the Board of

Directors of this Company also filed an affidavit.

The Managing Director of the respondent company

filed an affidavit explaining the details of the

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technology employed in the erection of the plant.

Prof. M.Shantappa in his report stated that the

company has used the technology obtained from the

Indian Institute of Chemical Technology of (IICT),

Hyderabad which is a premier institute and that he

would not think of a better institute in the

country for transfer of technology. The said

Institute has issued a certificate that this

industry will not discharge any acidic effluents

and the solid wastes which are the by -products

are saleable and they will be collected in M.S.

drums by mechanical process and sold. The report

of Dr. Shantappa also showed that none of the

by-products would fall on the ground of the

factory premises. He also stated that all the

conditions which were proposed to be imposed by

the Technical Committee on the company at its

meeting held on 16.7.97 have been complied with.

On the basis of these reports, the appellate

authority stated that this industry "is not a

polluting industry". It further held that the

notification dated 1.2.1989 of the Ministry of

Environment & Forests, Government of India,

whereby industries manufacturing Hydrogenated

Vegetable oils were categorised as "red category"

industries, did not apply to the catchment areas

of Himayat Sagar and Osman Sagar lakes and that

notification was applicable only to the Doon

Valley of UP and Dahanu in Maharashtra. The

appellate authority accordingly directed the AP

Pollution control Board to give its consent for

establishment of the factory on such conditions

the Board may deem fit as per GOMs 153 dated

3.7.1997 (as amended by GO 181 dated 7.8.1997).

Before the above order dated 5.1.98 was passed by

the appellate authority, some of these public

interest cases had already been filed. After the

5.1.98 order of the appellate authority, a

direction was sought in the public interest case

W.P.No.2215 of 1996 that the order dated 5.1.1998

passed by the appellate authority was arbitrary

and contrary to interim orders passed by the High

Court in W.P. 17832, 16969 and 16881 of 1997.

The respondent company, in its turn filed WP

No.11803 of 1998 for directing the A.P. Pollution

Control Board to give its consent, as a

consequence to the order of the appellate

authority dated 5.1.1998. As stated earlier, the

A.P. Pollution Control Board contends that the

categorisation of industries into red, green and

orange had already been made prior to the

notification of 1.2.1989 by Office Memorandum of

the Ministry of Environment & Forests, Government

of India dated 27.9.1988 and that in that

notification also "Vegetable oils including

solvent extracted oils" (Item No.7) and `Vanaspati

Hydrogenated Vegetable oils for industrial

purposes (Item 37)" were also included in the red

category. It also contends that the company could

not have started civil works unless NOC was given

by the Board. The Division Bench of the High

Court in its judgment dated 1.5.1998, held that

the writ petitioners who filed the public interest

cases could not be said to be having no locus

standi to file the writ petitions. The High Court

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observed that while the Technical Committee of the

A.P. Pollution Control Board had, some time

before its refusal, suggested certain safeguards

to be followed by the company, the Board could not

have suddenly refused the consent and that this

showed double standards. The High Court referred

to the order of the Appellate authority under

Section 28 of the Water Act dated 5.1.98 and the

report of Dr.Sidhu, to the effect that even if

hazardous waste was a by-product, the same could

be controlled if the safeguards mentioned in the

Hazardous Wastes (Management and Handling) Rules,

1989 were followed and in particular those in

Rules 5,6 and 11, were taken. The Rules made

under Manufacture, Storage and Import of Hazardous

Chemical (MSIHC) Rules 1989 also permit industrial

actively provided the safeguards mentioned therein

are taken. The Chemical Accidents (Emergency

Planning, Preparedness and Response) Rules 1991

supplement the MSIHC Rules, 1989 on accident

preparedness and envisage a 4-tier crisis

management system in the country. Therefore,

merely because an industry produced hazardous

substances, the consent could not be refused. It

was stated that as the matter was highly

technical, interference was not called for, as

"rightly" contended by the learned counsel for the

respondent company. The High Court could not sit

in appeal over the order of the appellate

authority. For the above reasons, the High Court

dismissed the three public interest cases, and the

writ petitions filed by the Gram Panchayat. The

High Court allowed the writ petition filed by the

respondent industry and directed grant of consent

by the A.P. Pollution Control Board subject to

such conditions as might be imposed by the Board.

It is against the said judgment that the A.P.

Pollution Control Board has filed the five

appeals. One appeal is filed by SPEQL. In these

appeals, we have heard the preliminary submission

of Shri R.N.Trivedi, learned Additional Solicitor

General for the A.P. Pollution Control Board,

Shri M.N.Rao, learned senior counsel for the

respondent company, and Sri P.S.Narasimha for the

appellant in the appeal arising out of SLP (C)

No.13380 of 1998 and others. It will be noticed

that various issues arise in these appeals

concerning the validity of the orders passed by

the A.P. Pollution Control Board dated 30.7.97,

the correctness of the order dated 5.1.98 of the

Appellate Authority under Section 28 of the Water

Act, the validity of GOMs No.153 dated 3.7.97 by

which Government of A.P. granted exemption for

the operation of the 10 k.m. rule in GOMs 111

dated 8.3.1996. Questions also arise regarding

the alleged breach of the provisions of the Act,

Rules or notification issued by the Central

Government and the standards prescribed under the

Water Act or rules or notifications. Question

also arises whether the "appellate" authority

could have said that as it was a highly technical

matter, no interference was called for. We are

just now not going into all these aspects but are

confining ourselves to the issues on the

technological side. In matters regarding

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industrial pollution and in particular, in

relation to the alleged breach of the provisions

of the Water (Prevention and Control of Pollution)

Act, 1974, its rules or notifications issued

thereunder, serious issues involving pollution and

related technology have been arising in appeals

under Article 136 and in writ petitions under

Article 32 of the Constitution of India filed in

this Court and also in writ petitions before High

Courts under Article 226. The cases involve the

correctness of opinions on technological aspects

expressed by the Pollution Control Boards or other

bodies whose opinions are placed before the

Courts. In such a situation, considerable

difficulty is experienced by this Court or the

High Courts in adjudicating upon the correctness

of the technological and scientific opinions

presented to the Courts or in regard to the

efficacy of the technology proposed to be adopted

by the industry or in regard to the need for

alternative technology or modifications as

suggested by the Pollution Control Board or other

bodies. The present case illustrates such

problems. It has become, therefore, necessary to

refer to certain aspects of environmental law

already decided by this Court and also to go into

the above scientific problems, at some length and

find solutions for the same. Environment

Courts/Tribunals - problems of complex technology:

The difficulty faced by environmental courts in

dealing with highly technological or scientific

data appears to be a global phenomenon.

Lord Woolf, in his Garner lecture to UKELA, on the

theme "Are the Judiciary Environmentally Myopic?"

(See 1992 J.Envtl. Law Vol.4, No.1, P1) commented

upon the problem of increasing specialisation in

environmental law and on the difficulty of the

Courts, in their present form, moving beyond their

traditional role of detached "Wednesbury" review.

He pointed out the need for a Court or Tribunal

"having a general responsibility for overseeing

and enforcing the safeguards provided for the

protection of the environment ....... The

Tribunal could be granted a wider discretion to

determine its procedure so that it was able to

bring to bear its specialist experience of

environmental issues in the most effective way"

Lord Woolf pointed out the need for

"a multi- faceted, multi-skilled body which would

combine the services provided by existing Courts,

Tribunals and Inspectors in the environmental

field. It would be a `one stop shop', which

should lead to faster, cheaper and the more

effective resolution of disputes in the

environmental area. It would avoid increasing the

load on already over burdened lay institutions by

trying to compel them to resolve issues with which

they are not designed to deal. It could be a

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forum in which the Judges could play a different

role. A role which enabled them not to examine

environmental problems with limited vision. It

could however be based on our existing experience,

combining the skills of the existing inspectorate,

the Land Tribunal and other administrative bodies.

It could be an exciting project"

According to Lord Woolf, "while environmental law

is now clearly a permanent feature of the legal

scene, it still lacks clear boundaries." It might

be `preferable that the boundaries are left to be

established by Judicial decision as the law

developed. After all, the great strength of the

English Law has been its pragmatic approach".

Further, where urgent decisions are required,

there are often no easy options for preserving the

status quo pending the resolution of the dispute.

If the project is allowed to go ahead, there may

be irreperable damage to the environment; if it

is stopped, there may be irreperable damage to an

important economic interest. (See Environment

Enforcement: The need for a specialised court -

by Robert Cranworth QC (Jour of Planning &

Environment, 1992 p.798 at 806). Robert Cranworth

advocates the constitution of a unified tribunal

with a simple procedure which looks to the need of

customers, which takes the form of a Court or an

expert panel, the allocation of a procedure

adopted to the needs of each case - which would

operate at two levels - first tier by a single

Judge or technical person and a review by a panel

of experts presided over by a High Court Judge -

and not limited to `Wednesbury' grounds. In the

USA the position is not different. It is accepted

that when the adversary process yields conflicting

testimony on complicated and unfamiliar issues and

the participants cannot fully understand the

nature of the dispute, Courts may not be competent

to make reasoned and principled decisions.

Concern over this problem led the Carnegie

Commission of Science & Technology (1993) and the

Government to undertake a study of the problems of

science and technology in Judicial decision

making. In the introduction to its final report,

the Commission concluded:

"The Courts' ability to handle complex

science-rich cases has recently been called into -

question, with widespread allegations that the

Judicial system is increasingly unable to manage

and adjudicate science and technology (S&T)

issues. Critics have objected that Judges cannot

make appropriate decisions because they lack

technical training, that the Jurors do not

comprehend the complexity of the evidence they are

supposed to analyze, and that the expert witnesses

on whom the system relies are merceneries whose

biased testimony frequently produces erroneous and

inconsistent determinations. If these claims go

unanswered, or are not dealt with, confidence in

the Judiciary will be undermined as the public

becomes convinced that the Courts as now

constituted are incapable of correctly resolving

some of the more pressing legal issues of our

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day."

The uncertain nature of scientific opinions:

In the environment field, the uncertainity of

scientific opinions has created serious problems

for the Courts. In regard to the different goals

of Science and the law in the ascertainment of

truth, the U.S. Supreme Court observed in Daubert

vs. Merrel Dow Pharmaceuticals Inc. (1993) 113

S.Ct 2786, as follows:

"......there are important differences between the

quest for truth in the Court- room and the quest

for truth in the laboratory. Scientific

conclusions are subject to perpetual revision.

Law, on the other hand, must resolve disputes

finally and quickly." It has also been stated by

Brian Wynne in `Uncertainity and Environmental

Learning, (2. Global Envtl.Change 111) (1992):

"Uncertainity, resulting from inadequate data,

ignorance and indeterminacy, is an inherent part

of science."

Uncertainity becomes a problem when scientific

knowledge is institutionalised in policy making or

used as a basis for decision-making by agencies

and courts. Scientists may refine, modify or

discard variables or models when more information

is available; however, agencies and Courts must

make choices based on existing scientific

knowledge. In addition, agency decision making

evidence is generally presented in a scientific

form that cannot be easily tested. Therefore,

inadequacies in the record due to uncertainity or

insufficient knowledge may not be properly

considered. (The Status of the Precautionary

Principle in Australia : by Charmian Barton

(Vol.22) (1998) (Harv. Envtt. Law Review p.509

at pp510-511).

The inadequacies of science result from

identification of adverse effects of a hazard and

then working backwards to find the causes.

Secondly, clinical tests are performed,

particularly where toxins are involved, on animals

and not on humans, that is to say, are based on

animals studies or short-term cell testing.

Thirdly conclusions based on epidemiological

studies are flawed by the scientist's inability to

control or even accurately assess past exposure of

the subjects. Moreover, these studies do not

permit the scientist to isolate the effects of the

substance of concern. The latency period of many

carcinogens and other toxins exacerbates problems

of later interpretation. The timing between

exposure and observable effect creates intolerable

delays before regulation occurs. (See Scientific

Uncertainity in Protective Environmental Decision

making - by Alyson C. Flournay (Vol.15) 1991

Harv. Envtt. Law Review p.327 at 333-335).

It is the above uncertainity of science in the

environmental context, that has led International

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Conferences to formulate new legal theories and

rules of evidence. We shall presently refer to

them.

The Precautionary Principle and the new Burden of

Proof - The Vellore Case:

The `uncertainity' of scientific proof and its

changing frontiers from time to time has led to

great changes in environmental concepts during the

period between the Stockholm Conference of 1972

and the Rio Conference of 1992. In Vellore

Citizens' Welfare Forum vs. Union of India and

Others [1996 (5) SCC 647], a three Judge Bench of

this Court referred to these changes, to the

`precautionary principle' and the new concept of

`burden of proof' in environmental matters.

Kuldip Singh, J. after referring to the

principles evolved in various international

Conferences and to the concept of `Sustainable

Development', stated that the Precautionary

Principle, the Polluter-Pays Principle and the

special concept of Onus of Proof have now emerged

and govern the law in our country too, as is clear

from Articles 47, 48-A and 51-A(g) of our

Constitution and that, in fact, in the various

environmental statutes, such as the Water Act,

1974 and other statutes, including the Environment

(Protection) Act, 1986, these concepts are already

implied. The learned Judge declared that these

principles have now become part of our law. The

relevant observations in the Vellore Case in this

behalf read as follows:

"In view of the above-mentioned constitutional and

statutory provisions we have no hesitation in

holding that the Precautionary Principle and the

Polluter Pays Principle are part of the

environmental law of the country."

The Court observed that even otherwise the above-

said principles are accepted as part of the

Customary International Law and hence there should

be no difficulty in accepting them as part of our

domestic law. In fact on the facts of the case

before this Court, it was directed that the

authority to be appointed under section 3(3) of

the Environment (Protection) Act, 1986

"shall implement the `Precautionary Principle' and

the `Polluter Pays Principle'."

The learned Judges also observed that the new

concept which places the Burden of Proof on the

Developer or Industralist who is proposing to

alter the status quo, has also become part of our

environmental law.

The Vellore judgment has referred to these

principles briefly but, in our view, it is

necessary to explain their meaning in more detail,

so that Courts and tribunals or environmental

authorioties can properly apply the said

principles in the matters which come before them.

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The Precautionary Principle replaces the

Assimilative Capacity Principle:

A basic shift in the approach to environmental

protection occured initially between 1972 and

1982. Earlier the Concept was based on the

`assimilative capacity' rule as revealed from

Principle 6 of the Stockholm Declaration of the

U.N.Conference on Human Environment, 1972. The

said principle assumed that science could provide

policy-makers- with the information and means

necessary to avoid encroaching upon the capacity

of the environment to assimilate impacts and it

presumed that relevant technical expertise would

be available when environmental harm was predicted

and there would be sufficient time to act in order

to avoid such harm. But in the 11th Principle of

the U.N. General Assembly Resolution on World

Charter for Nature, 1982, the emphasis shifted to

the `Precautionary Principle', and this was

reiterated in the Rio Conference of 1992 in its

Principle 15 which reads as follows:

"Principle 15: In order to protect the

environment, the precautionary approach shall be

widely applied by States according to their

capabilities. Where there are threats of serious

or irreversible damage; lack of full scientific

certainity shall not be used as a reason for

proposing cost-effective measures to prevent

environmental degradation."

In regard to the cause for the emergence of this

principle, Charmian Barton, in the article earlier

referred to in Vol.22, Harv. Envtt. L.Rev.

(1998) p.509 at (p.547) says:

"There is nothing to prevent decision makers from

assessing the record and concluding there is

inadequate information on which to reach a

determination. If it is not possible to make a

decision with "some" confidence, then it makes

sense to err on the side of caution and prevent

activities that may cause serious or irreverable

harm. An informed decision can be made at a later

stage when additional data is available or

resources permit further research. To ensure that

greater caution is taken in environmental

management, implementation of the principle

through Judicial and legislative means is

necessary."

In other words, inadequacies of science is the

real basis that has led to the Precautionary

Principle of 1982. It is based on the theory that

it is better to err on the side of caution and

prevent environmental harm which may indeed become

irreversible. The principle of precaution

involves the anticipation of environmental harm

and taking measures to avoid it or to choose the

least environmentally harmful activity. It is

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based on Scientific uncertainity. Environmental

protection should not only aim at protecting

health, property and economic interest but also

protect the environment for its own sake.

Precautionary duties must not only be triggered by

the suspicion of concrete danger but also by

(justified) concern or risk potential. The

precautionary principle was recommended by the

UNEP Governing Council (1989). The Bomako

Convention also lowered the threshold at which

scientific evidence might require action by not

referring to "serious" or "irreversible" as

adjectives qualifying harm. However, summing up

the legal status of the precautionary principle,

one commentator characterised the principle as

still "evolving" for though it is accepted as part

of the international customary law, "the

consequences of its application in any potential

situation will be influenced by the circumstances

of each case". (See * First Report of

Dr.Sreenivasa Rao Pemmaraju, Special -Rapporteur,

International Law Commission dated 3.4.1998 paras

61 to 72). The Special Burden of Proof in

Environmental cases: We shall next elaborate the

new concept of burden of proof referred to in the

Vellore case at p.658 (1996 (5) SCC 647). In that

case, Kuldip Singh, J. stated as follows:

"The `onus of proof' is on the actor or the

developer/industralist to show that his action is

environmentally benign."

---------------------------------------------------

* Joint Secretary and Legal Adviser, Ministry of

External Affairs, New Delhi. It is to be noticed

that while the inadequacies of science have led to

the `precautionary principle', the said

`precautionary principle' in its turn, has led to

the special principle of burden of proof in

environmental cases where burden as to the absence

of injurious effect of the actions proposed, - is

placed on those who want to change the status quo

(Wynne, Uncertainity and Environmental Learning, 2

Global Envtl. Change 111 (1992) at p.123). This

is often termed as a reversal of the burden of

proof, because otherwise in environmental cases,

those opposing the change would be compelled to

shoulder the evidentiary burden, a procedure which

is not fair. Therefore, it is necessary that the

party attempting to preserve the status quo by

maintaining a less- polluted state should not

carry the burden of proof and the party who wants

to alter it, must bear this burden. (See James

M.Olson, Shifting the Burden of Proof, 20 Envtl.

Law p.891 at 898 (1990)). (Quoted in Vol.22

(1998) Harv. Env.Law Review p.509 at 519, 550).

The precautionary principle suggests that where

there is an identifiable risk of serious or

irreversible harm, including, for example,

extinction of species, widespread toxic pollution

in major threats to essential ecological

processes, it may be appropriate to place the

burden of proof on the person or entity proposing

the activity that is potentially harmful to the

environment. (See Report of Dr.Sreenivasa Rao

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Pemmaraju, Special Rapporteur, International Law

Commission, dated 3.4.1998, para 61). It is also

explained that if the environmental risks being

run by regulatory inaction are in some way

"uncertain but non- negligible", then regulatory

action is justified. This will lead to the

question as to what is the `non-negligible risk'.

In such a situation, the burden of proof is to be

placed on those attempting to alter the status

quo. They are to discharge this burden by

showiung the absence of a `reasonable ecological

or medical concern'. That is the required

standard of proof. The result would be that if

insufficient evidence is presented by them to

alleviate concern about the level of uncertainity,

then the presumption should operate in favour of

environmental protection. Such a presumption has

been applied in Ashburton Acclimatisation Society

vs. Federated Farmers of New Zealand [1988 (1)

NZLR 78]. The required standard now is that the

risk of harm to the environment or to human health

is to be decided in public interest, according to

a `reasonable persons' test. (See Precautionary

Principle in Australia by Charmian Barton)

(Vol.22) (1998) Harv. Env. L.Rev. 509 at 549).

Brief Survey of Judicial and technical inputs in

environmental appellate authorities/tribunals:

We propose to briefly examine the deficiencies in

the Judicial and technical inputs in the appellate

system under some of our existing environmental

laws. Different statutes in our country relating

to environment provide appeals to appellate

authorities. But most of them still fall short of

a combination of judicial and scientific needs.

For example, the qualifications of the persons to

be appointed as appellate authorities under

section 28 of the Water (Prevention and Control of

Polloution) Act, 1974, section 31 of the Air

(Prevention and Control of Pollution) Act, 1981,

under Rule 12 of the Hazardous Wastes (Management

and Handling) Rules, 1989 are not clearly spelled

out. While the appellate authority under section

28 in Andhra Pradesh as per the notification of

the Andhra Pradesh Government is a retired High

Court Judge and there is nobody on his panel to

help him in technical matters, the same authority

as per the notification in Delhi is the Financial

Commissioner (see notification dated 18.2.1992)

resulting in there being in NCT neither a regular

judicial member nor a technical one. Again, under

the National Environmental Tribunal Act, 1995,

which has power to award compensation for death or

injury to any person (other than workmen), the

said Tribunal under section 10 no doubt consists

of a Chairman who could be a Judge or retired

Judge of the Supreme or High Court and a Technical

Member. But section 10(1)(b) read with section

10(2)(b) or (c) permits a Secretary to Government

or Additional Secretary who has been a

Vice-Chairman for 2 years to be appointed as

Chairman. We are citing the above as instances of

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the grave inadequacies.

Principle of Good Governance : Need for

modification of our statutes, rules and

notifications by including adequate Judicial &

Scientific inputs:

Good Governance is an accepted principle of

international and domestic law. It comprises of

the rule of law, effective State institutions,

transparency and accountability in public affairs,

respect for human rights and the meaningful

participation of citizens - (including scientists)

- in the political processes of their countries

and in decisions affecting their lives. (Report

of the Secretary General on the work of the

Organization,Official records of the UN General

Assembly, 52 session, Suppl. I (A/52/1) (para

22)). It includes the need for the State to take

the necessary `legislative, administrative and

other actions' to implement the duty of prevention

of environmental harm, as noted in Article 7 of

the draft approved by the Working Group of the

International Law Commission in 1996. (See Report

of Dr.Sreenivasa Rao Pemmaraju, Special Rapporteur

of the International Law Commission dated 3.4.1998

on `Prevention of transboundary damage from

hazardous activities') (paras 103, 104). Of

paramount importance, in the establishment of

environmental Courts, Authorities and Tribunals is

the need for providing adequate Judicial and

scientific inputs rather than leave complicated

disputes regarding environmental pollution to

officers drawn only from the Executive.

It appears to us from what has been stated earlier

that things are not quite satisfactory and there

is an urgent need to make appropriate amendments

so as to ensure that at all times, the appellate

authorities or tribunals consist of Judicial and

also Technical personnel well versed in

environmental laws. Such defects in the

constitution of these bodies can certainly

undermine the very purpose of those legislations.

We have already referred to the extreme complexity

of the scientific or technology issues that arise

in environmental matters. Nor, as pointed out by

Lord Woolf and Robert Cranworth should the

appellate bodies be restricted to Wednesbury

limitations.

The Land and Environment Court of New South Wales

in Australia, established in 1980, could be the

ideal. It is a superior Court of record and is

composed of four Judges and nine technical and

conciliation assessors. Its jurisdiction combines

appeal, judicial review and enforcement functions.

Such a composition in our opinion is necessary and

ideal in environmental matters.

In fact, such an environmental Court was envisaged

by this Court atleast in two judgments. As long

back as 1986, Bhagwati,CJ in M.C.Mehta vs. Union

of India and Shriram Foods & Fertilizers Case [

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1986 (2) SCC 176 (at page 202)] observed:

"We would also suggest to the Government of India

that since cases involving issues of environmental

pollution, ecological destructions and conflicts

over national resources are increasingly coming up

for adjudication and these cases involve

assessment and evolution of scientific and

technical data, it might be desirable to set up

Environmental Courts on the regional basis with

one professional Judge and two experts drawn from

the Ecological Sciences Research Group keeping in

view the nature of the case and the expertise

required for its adjudication. There would of

course be a right of appeal to this Court from the

decision of the Environment Court."

In other words, this Court not only contemplated a

combination of a Judge and Technical Experts but

also an appeal to the Supreme Court from the

Environmental Court.

Similarly, in the Vellore Case [1996 (5) SCC 647],

while criticising the inaction on the part of

Government of India in the appointment of an

authority under section 3(3) of the

Environment(Protection) Act, 1996. Kuldip Singh,

J. observed that the Central Government should

constitute an authority under section 3(3):

"headed by a retired Judge of the High

court and it may have other members -

preferably with expertise in the field of

pollution control and environmental

protection - to be appointed by the

Central Government."

We have tried to find out the result of the said

directions. We have noticed that pursuant to the

observations of this Court in Vellore Case,

certain notifications have been issued by

including a High Court Judge in the said

authority. In the notification So.671(E) dated

30.9.1996 issued by the Government of India for

the State of Tamil Nadu under section 3(3) of the

1986 Act, appointing a `Loss of Ecology

(Prevention and Payment of Compensation)

authority, it is stated that it shall be manned by

a retired High Court Judge and other technical

members who would frame a scheme or schemes in

consultation with NEERI etc. It could deal with

all industries including tanning industries. A

similar notification So. 704 E dated 9.10.1996

was issued for the `Environmental Impact

Assessment Authority' for the NCT including a High

Court Judge. Notification dated 6.2.1997 (No.88E)

under section 3(3) of the 1986 Act dealing with

shrimp industry, of course, includes a retired

High Court Judge and technical persons. As stated

earlier, the Government of India should, in our

opinion, bring about appropriate amendments in the

environmental statutes, Rules and notification to

ensure that in all environmental Courts, Tribunals

and appellate authorities there is always a Judge

of the rank of a High Court Judge or a Supreme

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Court Judge, - sitting or retired - and Scientist

or group of Scientists of high ranking and

experience so as to help a proper and fair

adjudication of disputes relating to .pl68

environment and pollution. There is also an

immediate need that in all the States and Union

Territories, the appellate authorities under

section 28 of the Water (Prevention of Pollution)

Act, 1974 and section 31 of the Air (Prevention of

Pollution) Act, 1981 or other rules there is

always a Judge of the High Court, sitting or

retired and a Scientist or group of Scientists of

high ranking and experience, to help in the

adjudication of disputes relating to environment

and pollution. An amendment to existing

notifications under these Acts can be made for the

present. There is also need for amending the

notifications issued under Rule 12 of the

Hazardous Wastes (Management & Handling) Rules,

1989. What we have said applies to all other such

Rules or notifications issued either by the

Central Government or the State Governments. We

request the Central and State Governments to take

notice of these recommendations and take

appropriate action urgently. We finally come to

the appellate authority under the National

Environment Appellate Authority Act, 1997. In our

view it comes very near to the ideals set by this

Court. Under that statute, the appellate

authority is to consist of a sitting or retired

Supreme Court Judge or a sitting or retired Chief

Justice of a High Court and a Vice-Chairman who

has been an administrator of high rank with

expertise in technical aspects of problems

relating to environment; and .pl65 Technical

Members, not exceeding three, who have

professional knowledge or practical experience in

the areas pertaining to conservation,

environmental management, land or planning and

development. Appeals to this appellate authority

are to be preferred by persons aggrieved by an

order granting environmental clearance in the

areas in which any industries, operations or

processes etc. are to be carried or carried

subject to safeguards. As stated above and we

reiterate that there is need to see that in the

appellate authority under the Water (Prevention of

Pollution) Act, 1974, the Air (Prevention of

Pollution) Act, and the appellate authority under

Rule 12 of the Hazardous Wastes (Management &

Handling) Rules, 1989, under the notification

issued under section 3(3) of the Environment

(Protection) Act, 1986 for National Capital

Territory and under section 10 of the National

Environment Tribunal Act, 1995 and other appellate

bodies, there are invariably Judicial and

Technical Members included. This Court has also

observed in M.C.Mehta vs. Union of India and

Shriram Foods & Fertilizers Case [ 1986 (2) SCC

176] (at 262) that there should be a right of

regular appeal to the Supreme Court, i.e. an

appeal incorporated in the relevent statutes.

This is a matter for the Governments concerned to

consider urgently, by appropriate legislation

whether plenary or subordinate or by amending the

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notifications.

The duty of the present generation towards

posterity : Principle of Inter-generational

Equity: Rights of the Future against the Present:

The principle of Inter-generational equity is of

recent origin. The 1972 Stockholm Declaration

refers to it in principles 1 and 2. In this

context, the environment is viewed more as a

resource basis for the survival of the present and

future generations. .lm10 .rm55

Principle 1 states:

"Man has the fundamental right to freedom,

equality and adequate conditions of life, in

an environment of quality that permits a life

of dignity and well-being, and he bears a

solemn responsibility to protect and improve

the environment for present and future

generations........"

Principle 2:

"The natural resources of the earth, including

the air, water, lands, flora and fauna and

especially representative samples of natural

ecosystems, must be safeguarded for the

benefit of present and future generations

through careful planning or management, as

appropriate."

Several international conventions and treaties

have recognised the above principles and in fact

several imaginative proposals have been submitted

including -the locus standi of individuals or

groups to take out actions as representatives of

future generations, or appointing Ombudsman to

take care of the rights of the future against the

present (proposals of Sands & Brown Weiss referred

to by Dr.Sreenivasa Rao Pemmaraju, Special

Rapporteur, paras 97, 98 of his report).

Whether the Supreme Court while dealing with

environmental matters under Article 32 or Article

136 or High Courts under Article 226 can make

reference to the National Environmental Appellate

Authority under the 1997 Act for investigation and

opinion:

In a large number of matters coming up before this

Court either under Article 32 or under Article 136

and also before the High Courts under Article 226,

complex issues relating to environment and

pollution, science and technology have been

arising and in some cases, this Court has been

finding sufficient difficulty in providing

adequate solutions to meet the requirements of

public interest, environmental protection,

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elimination of pollution and sustained

development. In some cases this Court has been

referring matters to professional or technical

bodies. The monitoring of a case as it progresses

before the professional body and the consideration

of objections raised by affected parties to the

opinion given by these professional technical

bodies have again been creating complex problems.

Further these matters sometime require day to day

hearing which, having regard to other workload of

this Court, (- a factor mentioned by Lord Woolf)

it is not always possible to give urgent

decisions. In such a situation, this Court has

been feeling the need for an alternative procedure

which can be expeditious and scientifically

adequate. Question is whether, in such a

situation, involving grave public interest, this

Court could seek the help of other statutory

bodies which have an adequate combination of both

Judicial and technical expertise in environmental

matters, like the Appellate Authority under the

National Environmental Appellate Authority Act,

1997? A similar question arose in Paramjit Kaur

vs. State of Punjab [1998 (5) SCALE 219 = 1998

(6) J.T.338], decided by this Court on 10.9.1998.

In that case, initially, W.Petitions (Crl.) No.447

and 497 of 1995 were filed under Article 32 of the

Constitution of India alleging flagrant violations

of human rights in the State of Punjab as

disclosed by a CBI report submitted to this Court.

This Court felt the need to have these allegations

investigated by an independent body. This Court

then passed an order on 12.12.1996 requesting the

National Human Rights Commission to examine the

matter. The said Commission is headed by a

retired Chief Justice of India and other expert

Members. After the matter went before the said

Commission, various objections were raised as to

its jurisdiction. It was also contended that if

these issues were to be otherwise inquired into by

the Commission upon a complaint, they would have

stood time barred. These objections were rejected

by the Commission by an elaborate order on

4.8.1997 holding that once the Supreme Court

referred the matters to the Commission, it was

acting sui Juris, that its services could be

utilised by the Supreme Court treating the

Commission as an instrumentality or agency of the

Supreme Court, that the period of limitation under

the Protection of Human Rights Act, 1993 would not

apply, that in spite of the reference to the

Commission, the Supreme Court would continue to

have seisin of the case and any determination by

the Commission, wherever necessary or appropriate,

would be subject to the approval of the Supreme

Court. Not satisfied with the above order of the

Commission, the Union of India filed clarification

application Crl.M.P. No.6674 of 1997 etc. This

Court then passed the order aforementioned in

Paramjit Kaur vs. State of Punjab [1998 (5) SCALE

219 = 1998 (6) J.T. 332 (SC)] on 12.12.1998

accepting the reasons given by the Commission in

rejecting the objections. In that context, this

Court held that (i) the Commission was an expert

body consisting of experts in the field (ii) if

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this Court could exercise certain powers under

Article 32, it could also request the expert body

to investigate or look into the allegations,

unfettered by any limitations in the Protection of

Human Rights Act, 1993, (iii) that by so referring

the matters to the Commission, this Court was not

conferring any new jurisdiction on the Commission,

and (iv) that the Commission would be acting only

in aid of this Court. In our view, the above

procedure in Paramjit Kaur vs. State of Punjab is

equally applicable in the case before us for the

following reasons. Environmental concerns arising

in this Court under Article 32 or under Article

136 or under Article 226 in the High Courts are,

in our view, of equal importance as Human Rights

concerns. In fact both are to be traced to

Article 21 which deals with fundamental right to

life and liberty. While environmental aspects

concern `life', human rights aspects concern

`liberty'. In our view, in the context of

emerging jurisprudence relating to environmental

matters, - as it is the case in matters relating

to human rights, - it is the duty of this Court to

render Justice by taking all aspects into

consideration. With a view to ensure that there

is neither danger to environment nor to ecology

and at the same time ensuring sustainable

development, this Court in our view, can refer

scientific and technical aspects for investigation

and opinion to expert bodies such as the Appellate

Authority under the National Environmental

Appellate Authority Act, 1997. The said authority

comprises of a retired Judge of the Supreme Court

and Members having technical expertise in

environmental matters whose investigation,

analysis of facts and opinion on objections raised

by parties, could give adequate help to this Court

or the High Courts and also the needed

reassurance. Any opinions rendered by the said

authority would of course be subject to the

approval of this Court. On the analogy of

Paramjit Kaur's Case, such a procedure, in our

opinion, is perfectly within the bounds of the

law. Such a procedure, in our view, can be

adopted in matters arising in this Court under

Article 32 or under Article 136 or arising before

the High Courts under Article 226 of the

Constitution of India.

The order of reference:

After the above view was expressed to counsel on

both sides, certain draft issues were prepared for

reference. There was some argument that some of

the draft issues could not be referred to the

Commission while some others required

modification. After hearing arguments, parties on

both sides agreed for reference of the following

issues to the Appellate Authority under the

National Environmental Appellate Authority Act,

1997.

We shall now set out these issues. They are: (a)

Is the respondent industry a hazardous one and

what is its pollution potentiality, taking into

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account, the nature of the product, the effluents

and its location?

(b) Whether the operation of the industry is

likely to affect the sensitive catchment area

resulting in pollution of the Himayat Sagar and

Osman Sagar lakes supplying drinking water to the

twin cities of Hyderabad and Secunderabad?

We may add that it shall be open to the authority

to inspect the premises of the factory, call for

documents from the parties or any other body or

authority or from the Government of Andhra Pradesh

or Union Government and to examine witnesses, if

need be. The Authority shall also have all powers

for obtaining data or technical advice as it may

deem necessary from any source. It shall give an

opportunity to the parties or their counsel to

file objections and lead such oral evidence or

produce such documentary evidence as they may deem

fit and shall also give a hearing to the appellant

or its counsel to make submissions.

A question has been raised by the respondent

industry that it may be permitted to make trial

runs for atleast three months so that the results

of pollution, could be monitored and analysed.

This was opposed by the appellant and the private

respondent. We have not thought it fit to go into

this question and we have informed counsel that

this issue could also be left to the said

Authority to decide because we do not know whether

any such trial runs would affect the environment

or cause pollution. On this aspect also, it shall

be open to the authority to take a decision after

hearing the parties. Parties have requested that

the authority may be required to give its opinion

as early as possible. We are of the view that the

Authority could be requested to give its opinion

within a period of three months from the date of

receipt of this order. We, therefore, refer the

above issues to the above-said Appellate Authority

for its opinion and request the Authority to give

its opinion, as far as possible, within the period

above-mentioned. If the Authority feels any

further clarifications or directions are necessary

from this Court, it will be open to it to seek

such clarifications or directions from this Court.

The Company shall make available photo copies of

the paper books filed in this Court or other

papers filed in the High Court or before the

authority under section 28 of the Water Act, 1974,

for the use of the Appellate Authority. The

Registry shall communicate a copy of this order to

the Appellate Authority under the National

Environmental Appellate Authority Act, 1997.

Matter may be listed before us after three months,

as part-heard. Ordered accordingly. In the

context of recommendations made for amendment of

the environmental laws and rules by the Central

Government and notifications issued by the Central

and State Governments, we direct copies of this

judgment to be communicated to the Secretary,

Environment & Forests (Government of India), New

Delhi, to the Secretaries of Environment & Forests

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in all State Governments and Union Territories,

and to the Central Pollution Control Board, New

Delhi. We further direct the Central Pollution

Control Board to communicate a copy of this

judgment to all State Pollution Control Boards and

other authorities dealing with environment,

pollution, ecology and forest and wildlife. The

State Governments shall also take steps to

communicate this judgment to their respective

State Pollution Control Boards and other

authorities dealing with the above subjects - so

that appropriate action can be taken expeditiously

as indicated in this judgment.