India is one of the biggest democracies of the world and also the first country to make provisions relating to inclusion of laws relating to environmental protection under the Indian constitution. The Indian Constitution had provisions relating to protection of the environment when it came into force in 1950 under articles 39,42,47,48,49. Later on the 42 constitutional amendment came into force in 1976 by which article 48 A and 51 A(g) were added which explicitly talked about environmental protection.
The inclusion of article 48 A and 51A(g) was a prograssive step which originated after the stockholm conference 1972. Environment Programme (UNEP) in December 1972 to coordinate global efforts to promote sustainability and safeguard the natural environment.
The roots of the Stockholm Conference lie in a 1968 proposal from Sweden that the UN hold an international conference to examine environmental problems and identify those that required international cooperation to solve.
The right to live in a pollution free environment is also included under amdid of article 21 of the Indian constitution due to which a lot of legislations came into force with an objective of providing a Clean and Healthy Environment to everyone.
Legislations Relating to Pollution Control in India
The development of any country depends upon sustainable use of resources by that country. The need to control pollution was very early understood and therefore several legislations were enacted for pollution control. The most prominent among them were:
1. The Factories act 1948
Chapter 3, section 13,14 and 15 of the factories put emphasis on health of labour, ventilation, dust and fumes. The act mainely sets the limit of exposure of humans to pollution.
2. The Mines act 1952
The act related to limiting air pollution in various mines. The scope of this act was limited to protection of peoples who work in the mines against polluted environment.
3. The air (Prevention and Control of Pollution)Act 1981
In 1981 an act was passed with the intention to protect the environment and control abatement of air pollution. By this act the objective of protecting the environment was fulfilled by setting up a board and assigning such powers and functions to the board which are necessary for protection of the environment.
4. The environment (Protection) act 1986
The sole objective of this act was implementation of various rules for protection of the environment, including air pollution. The notification regarding introduction of BS-6 vehicles in India came under this act.
Constitutional Right of Clean and Healthy Environment
Part 3 of the Indian Constitution in corporates fundamental right to clean and healthy environment under article 21 of the Indian Constitution. This right is protected by Article 32 and Article 226 of the Indian constitution. Under article 32 and 226 of the Indian constitution a person can move to supreme court and high court respectively for infringement of his fundamental rights. Right to Clean and healthy environment is also a Fundamental rights which has been incorporated under article 21 through various judicial pronouncements.
If a person infringes any other person’s right to live in a clean and healthy environment he shall be liable to be punished.
Environmental Issues and Public Interest Litigation
PILs have played a major role in the evolution of environmental rights. Few landmark PILs on this issue are:
1. Taj Trapezium Case, Agra: M.C.Mehta v. UOI and Ors. W.P.(C) No.13381/1984
A writ petition was filed by M.C mehta, relating to the effect of pollution on Taj Mahal, Agra. The sources of pollution were industrial and chemical wastes.
It was held by the Hon’ble apex court that the main contributors to pollution were industries in the Taj Trapezium zone.
It was directed by the Hon’ble supreme court that green belt should be formed near Taj Mahal and Mahajan committee was formed to look into the progress of this work.
2. Delhi air pollution case: M.C.Mehta v. Union Of India and Ors, Writ Petition (civil) no.13029/1985.
In 1985 a writ petition was filed relating to air pollution in delhi. The inaction of the union of india and authorities under the government of delhi was challenged that highly toxic gases and smoke was allowed to pass in the air of delhi due to which the life of people was at high risk. The honourable high court directed the government to take urgent steps to minimise the pollution.
ROLE OF JUDICIARY IN ENVIRONMENTAL POLICIES
Judiciary has played a major role in formation and protection of various environmental policies. The question of whether the right to a clean and healthy environment is part of article 21 or not was examined in case of subhas kumar v. state of bihar in which it was held that this right is part of article 21.
It appears jus and properly twisted that although India was one of the first nations to implement law relating to environmental protection, the lack of awareness and insensitivity of peoples towards the environment contributed to ineffectiveness of the rules. Following suggestions can be used for proper implementation of environment protection laws in india:
1. Creating awareness among people about the effects of Polluted environment.
Awareness among people can create a huge effect on improper implementation of environment protection laws. Awareness can be created by educating people through films,documentaries,etc,.
2. Appointment of Environment protection officers.
Special officers can be appointed to look after environment protection. They will have power to arrest for violating laws relating to environment protection and shall be governed by a board of environmental control.
3. Giving fundamental rights to natural creatures like mountains, lakes, trees etc.
Natural creatures can be protected by giving them basic natural rights, countries like New Zealand have already done this by giving rights like “right to be clean to rivers” to natural creatures in the country.
To conclude it can be stated that a clean and healthy environment is one of the most important human rights available to everyone but the insensitivity of people towards nature has led to degradation of the environment and consequently degradation of health.
In countries like India, issues like Air pollution have been included under the ambit of serious problems like hunger and poverty.
A positive step should be taken like countries like New Zealand for implementation of Natural rights of Nature. And those infringing it should be punished by law.
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POSSESSION/OWNERSHIP OF PROPERTY RELEVANT CONSIDERATION FOR PROCEEDINGS AGAINST ELECTRICITY THEFT, OBSERVES GUJARAT HIGH COURT
The Gujarat High Court in its recent order in the case State of Gujarat Versus Balvantsinh Amarsinh Raj observed while upholding the acquittal of a man under Section 135 of the Electricity Act for alleged unlicensed connection has made it clear that possession/ownership of the property in question has to be factored into consideration.
The bench comprising of Justice Ashokkumar Joshi observed and rejected the State’s appeal on several grounds, which includes the fact that the Police did not call for any certificate or documents to show the ownership or possession of accused for the so-called place of occurrence.
The Court held that the order of the trial court has meticulously considered all the depositions of the witnesses and the state has failed to prove the case against the Accused-Respondent and the trial court’s order did not warrant any interference.
It was observed that while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at by any reasonable person would not be arrived at.
The Deputy Engineer of the South Gujarat Vij Company Ltd lodged a complaint accusing the Respondent of theft of electricity. Alleging, the Applicant did not have a regular connection and he had obtained illegal direct connection from low transmission line. The allegations were made that an average bill of Rs. 2 lacs were prepared and issued to the Accused which was not paid by him and thus an instant complaint was filed.
The Trial’s court order is opposed by the APP by relying on the deposition of several witnesses who were said to be ‘reliable and trustworthy’ and other documentary evidence.
It was argued by the respondent that it was not proved by the Prosecution that the ownership of the premises belonged to the Accused. However, there was no need to interfere with the judgement order.
It was noticed by the bench of Justice Joshi that the lineman at the respective time was cross-examined and had admitted that he had no knowledge of the number of persons who were residing at the place. In the market, the captioned wire which was confiscated was easily available and did not contain any piece of marking paper. Further there was no PVC/Wire wiring at the residential place of the Accused person. It was also admitted by the Panch Witness that theft was not possible through the captioned wires. Another Panch Witness had turned hostile.
It was also admitted by the In-Charge PSO at the Police Station that he merely registered the offence and had done ‘nothing’ except for this. Consequently, there was also no evidence for the possession or ownership of the place of occurrence by the Accused.
Accordingly, the bench dismissed the State’s appeal.
Verbal cruelty in marriage
Marriage is a union of two people. It is oft repeated and probably one of the most recognized advice about marriage that we receive. It is probably only topped by the statement ‘Marriage is a compromise’. Its strange to me, that what is considered a divine union of two people is also considered a compromise, but facts rarely lie. It is true that I have seen maybe a little bit more than my fair share of divorces and pushed some along the way, and maybe that is why probably I can say that I might be in a slightly better position to extrapolate on marriage and its various facets.
At the base of it, marriage is two individuals and very often their families trying to create a cohesive unit. The problem comes, as it does in almost all other human interactions, when people are not compatible. We bring two individuals, sometimes from various different backgrounds and a different value system into a bond where they are expected to not just like each other, but societally expected to love each other till death do them part. Very often it works, marriages are without doubt the foundation of our society, the basic unit on which our cultures function and they are essentially the same in all cultures, mostly monogamous and come with societal expectation of a family.
But what about when it does not work. It is almost impossible for every couple to get along with each other, especially when very often the couple themselves seem to have little to no say in whom they marry. The individual expectations give way to what your family thinks is the best match, or even if you choose your partners yourself, young couples are sometimes woefully ill informed of what a marriage actually is beyond the honeymoon phase.
Today marriage is under a scanner, much deeper than it has probably ever been. In my humble opinion we are now at a stage where we are trying to box conversations and categorise them into ‘cruelty’ or ‘not cruelty’. The latest judgment isolated reporting of the Kerala High Court stating that ‘comparing wife to other women is mental cruelty’ gives credence to my statement. A bare reading of the judgment will ensure that the reader knows that the question before the court was not simply the fact that the husband was comparing his wife to other women.
WHAT IS MATRIMONIAL CRUELTY?
Cruelty is an extremely subjective term, which on one hand is clear as day, specially when there is incidence of physical abuse, or mental cruelty in the form of abusive language or coercive control of women, on the other end it is hazy. Cruelty can be anything perceived as being cruel. Essentially it would depend on the dynamics of the couple themselves, over what they are willing to adjust to, or compromise with. I have seen women, who although do not like that their husbands compare them with other woman, do not really consider this as a dealbreaker. It is probably for this reason itself that the legislature in its wisdom has refused to quantify and define what cruelty is. It has left it to the wisdom of the courts to decide on a case to case basis of what might constitute mental cruelty. As has been done by the Kerala High Court, where the lady in question had been married for 13 long years but had stayed in the matrimonial relationship only for 1 month. When we read this judgment we realise that rather than just interpret this one statement of the husband, the Court was looking into an entire relationship that started in 2009, it looked at various allegations including non consumation of the marriage.
The first interpretation for cruelty and what might constitute cruelty was given by the Supreme Court in Sobha Rani vs Madhukar Reddi (1998) 1 SCC 105 where the Supreme Court while dealing with cruelty under Section 13(1)(i-a) of the Hindu Marriage Act opined that although the provision does not define cruelty, cruelty may mean physical or mental cruelty. In Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC 511 it was further extrapolated that cruelty cannot contain within its ambit differences between the couple because those arise in day to day matrimonial life.
As society and its dynamics have changed, so have the Courts’interpretation of cruelty. What initially was considered to only be physical cruelty has now morphed into an interpretation where divorce on the grounds of cruelty may be given on the basis of mental cruelty. In these cases, the Courts will consider the entire background of the marriage and its various facets and try to understand how the action alleged to be cruel has affected one of the spouses. Instances which have been identified as cruelty range from adultery to calling the spouse fat, asking the spouse to live separate from his old aged parents, public embarrassment and humiliation amongst others.
The need for the Courts to enter such private conversations comes from the fact that India believes in the ‘fault’ theory for divorces, which essentially means that to get a divorce one party has to be at fault in the marriage. It is only under these specific ‘faults’ as enumerated under the Acts that divorces can be granted except when petitioning for divorce by mutual consent. The problem with fault theory is that it takes away from the fact that the breakdown of a marriage is not necessarily due to a fault. It refuses to recognize the idea of ‘irretrievable breakdown’. What happens in these matters is that very often the Courts in their equity and justice try to grant the parties divorce, couching specific acts as ‘cruelty’, and while appropriate for those specific and particular cases, they are not suitable as precedent. Since the High Courts and the Supreme Court judgments become binding on lower courts, this creates a difficulty in interpreting the law or an action as ‘cruelty’ when sometimes it is just a disagreement between couples. This is further exacerbated by the media reporting only the ‘juicy’ bits of the judgment as has been done in the case of the Kerala High Court judgment.
As our society advances, and our laws are interpreted dynamically, I believe we as individuals and as a society should admit that sometimes marriage do not work, not due to faults, but simply because the individuals needs and choices are different from their spouses. It is time for us to understand and recognize that marriages are not made in heaven, they are made on earth amongst humans and sometimes they break down.
The author has served as the Additional Solicitor General of India.
‘FAILURE TO PROVIDE EVIDENCE OF DECEASED’S INCOME DOES NOT JUSTIFY ADOPTION OF LOWEST TIER OF MINIMUM WAGE IN MOTOR ACCIDENT’
The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs 15,85,000 compensation to the bereaved mother by the Claims Tribunal.
The Himachal Pradesh High Court in the case United India Insurance Company Ltd v. Smt. Sumna Devi recently observed that merely because the claimants were unable to produce documentary evidence to show the monthly income of the deceased and the same should not justify for adoption of lowest tier of minimum wage while computing the income.
The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs. 15,85,000/- compensation to the bereaved mother by the Claims Tribunal.
It was observed that the Tribunal had assessed deceased’s monthly income as 10,000/- whereas the Appellant argued that in absence of any documentary evidence to show the deceased’s income and as per the minimum wage rate, i.e., Rs. 7,000- per month, the award must be calculated.
Further, the deceased’s mother informed the Court that her son was earning Rs. 10,000/- per month only from agricultural pursuits. It was submitted by her that he had completed two-year NCVT course in Mechanic (Motor Vehicle) Trade and would have definitely earned much more than Rs. 10,000/- per month, had he lived.
It was noted by the court that where the deceased had an NCVT CTS course diploma in Mechanic (Motor Vehicle) Trade from a Government Industrial Training Institute and was also carrying out agricultural works, Rs. 10,000/- per month has been correctly assessed as his income which he would have earned on attaining the age of 25 years.
The court placed reliance on Chandra alias Chanda alias Chandra Ram & Anr. vs. Mukesh Kumar Yadav & Ors., wherein it was held that in absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one for fixing the income of the deceased. Thus, in absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the deceased income should not be totally detached from reality.
Accordingly, the court dismissed the petition.
VIOLATION OF RETRENCHMENT PROCEDURE U/S 25F & 25G OF INDUSTRIAL DISPUTES ACT WARRANTS REINSTATEMENT, NOT MERE COMPENSATION: GUJARAT HIGH COURT
The Gujarat High Court in the case Rameshbhai Bhathibhai Pagi v/s Deputy Executive Engineer observed and has reiterated that once a Labour Court comes to the conclusion that Sections 25F, G and H of the Industrial Disputes Act have been violated and reinstatement of workman ought to follow.
The bench comprising of Justice Biren Vaishnav observed while hearing several petitions challenging the Labour Court’s order wherein compensation of Rs. 72,000 was awarded to each of the workmen-Petitioner rather than reinstatement with back wages.
It was submitted by the petitioner that their services were put to an end in August 2010 without following the procedure and without awarding compensation. It was pleaded by them that there was a clear violation of Sections 25(G) and (H).
However, the court stated that the Labour Courts had found the termination bad for each of the petitioners. While drawing an adverse inference against the Respondents, it has been awarded by the Labour Court the compensation which was meagre in the eyes of the petitioner, even as work was available. The Court observed that the Reliance was placed on Kalamuddin M. Ansari vs. Government of India, wherein similar facts and circumstances, the High Court ordered reinstatement of employees with continuity of service and had set aside the order of compensation.
The decision of the Labour Court was supported by the AGPs on the ground that there was a delay in raising the dispute. Further, the work had been outsourced at the canal. Therefore, the reinstatement was not possible.
The bench of Justice Vaishnav noted that the Labour Court had clearly concluded that there was a violation of sections 25(F), (G) and (H) of the ID Act. The only question raised was weather the Labour Court should have fallen short of awarding reinstatement with or without backwages.
In the present case, reference was made to Gauri Shanker vs. State of Rajasthan, wherein order of Labour Court had been modified by the Supreme Court of granting compensation in lieu of reinstatement. Further, Justice Vaishnav recalled the following observations of the Top Court:
The Division bench and the learned Single Judge under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down by this Court, in catena of cases.
Keeping in view the fact and the precedents that compensation would be detrimental to the Petitioners who had worked for more than 20 years. The order of the Labour Court was modified by the High Court of granting lump-sum compensation and ordered the employer to reinstate the workmen in service with continuity of service.
CENTRE NOTIFIES APPOINTMENT OF ELEVEN ADDITIONAL JUDGES IN PUNJAB & HARYANA HC
On Sunday, the Central Government notified the appointment of 11 advocates as Additional Judges of the Punjab and Haryana High Court.
The Advocates appointed as additional judge of Punjab and Haryana High Court are namely:
1. Nidhi Gupta,
2. Sanjay Vashisth,
3. Tribhuvan Dahiya,
4. Namit Kumar,
5. Harkesh Manuja,
6. Aman Chaudhary,
7. Naresh Singh,
8. Harsh Bunger,
9. Jagmohan Bansal,
10. Shri Deepak Manchanda,
11. Alok Jain
The present appointment will take the actual strength of the High Court to 57 judges against a sanctioned strength of 85.
The judges have been appointed for a period of two years with effect from the date they assume charge of their respective offices, an official notification read.
In its meeting held on July 25, 2022, the Supreme Court Collegium headed by Chief Justice of India NV Ramana had recommended the names of these 11 advocates for elevation as Additional Judges of the Punjab and Haryana High Court.
In 2021, the appointment tally in High Courts was 120 in addition to 9 appointments in the Supreme Court. However, the entire appointment process in higher judiciary has been put on a fast track.
KERALA HC: BAIL GRANTED TO A DOCTOR ACCUSED OF POSTING DEFAMATORY ARTICLES AGAINST LAKSHADWEEP ADMINISTRATIVE OFFICERS
The Kerala High Court in the case Dr K P Hamsakoya vs Union Territory of Lakshadweep observed and granted an anticipatory bail to a senior doctor who has been accused of posting on facebook defamatory articles against officers of the Administration of Lakshadweep.
The bench comprising of Justice Viju Abraham observed and was essentially dealing with the pre-arrest bail plea of Dr. K P Hamsakoya, who is one of the senior-most doctors serving the Lakshadweep Administration and that presently, he is under suspension.
The Court observed that Dr. Hamsakoya has been accused of posting defamatory articles on Facebook against officers of the Administration of Lakshadweep, thus causing a negative effect amongst the public against the Administration. He has been booked under Sections 505 (1) (b), 505 (2) and 500 of the IPC and Section 66 (A) (b) of the Information Technology Act.
Before the Court, the Counsels Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan, and Atul Mathews appearing argued that he has been falsely implicated in the case and has been booked under the offence punishable under Section 66 (A) (b) of the IT Act (a provision which has been struck down in its entirety by the Apex Court).
It was contended by the court that the offences under Section 500 IPC cannot be registered without a complaint being filed by a person who has been defamed.
The Court while considering the facts and circumstances of the case and the nature of the allegations, the pre-arrest bail was granted by the court to the petitioner and the court dismissed his plea with the following directions:
On August 29, 2022, the petitioner shall surrender before the investigating officer and shall co-operate with the investigation.
The court stated that in the event of the petitioner, he shall be produced before the jurisdictional Magistrate and shall be released on bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum as per the satisfaction of the jurisdictional Court.
It was stated by the court that if any of the aforesaid conditions are violated, the Investigating Officer of Minicoy Police Station, Union Territory of Lakshadweep has been given the liberty to file an application for cancellation of bail before the jurisdictional court.
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