The Sky is like Father
The Earth is like Mother and
The Space as Their Son
The Universe consisting the Three
is like a Family and
Any kind of damage done to any one of the Three
Throws the Universe out of Balance
Rigveda, 160.2; 6.51.5 Backdrop

Traditionally, in India environmental problems used to be addressed through private law doctrines such as trespass, nuisance, strict liability or negligence in India or remedies available under Indian Penal Code, 1860 or Criminal Procedure Code, 1973. Early statues many of which continue in force, dealt with problems on a sectoral or typological basis.

For example, offences written in the Indian Penal Code penalizes certain kinds of air pollution, water pollution etc. Sanitary codes dealt with the quality of water and specific regulations were sometimes drawn up to regulate certain types of industrial establishments. Some of the statutes dealing with specific types of problems were important characteristic of period before 1980s. A new trend has been seen in Indian legal system after the Stockholm conference in 1972.

The old laws were interpreted with new zeal for environment protection. Both these codes contain provisions for public nuisance. The right of a person to pollution free environment is a part of basic jurisprudence of the land. Article 21 of the Constitution of India guarantees a fundamental right to life and personal liberty. The Supreme Court has interpreted the right to life and personal liberty to include the right to wholesome environment. Stockholm Declaration of 1972 was perhaps the first major attempt to conserve and protect the human environment at the international level. As a consequence of this Declaration, the States were required to adopt legislative measures to protect and improve the environment.

Accordingly, Indian Parliament inserted two Articles, i.e., 48A and 51A in the Constitution of India in 1976, Article 48A of the Constitution rightly directs that the State shall endeavour to protect and improve.

This initiation of Public Interest Litigation, the timely demise of the law of standing, and the expansive interpretation of Article 21 of the Constitution of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] paved the way for the development of a body of environmental law.

The Supreme Court of India started showing concern about environmental problems much before the Rio Treaty and long before it started reaching out to International Treaties to provide a jurisprudential basis for its decisions. One such innovative interpretation of the Apex Court is extending criminal sanctions to the environmental problems e.g. the Ratlam Municipal Council case. [Municipal Council, Ratlam v. Vardichan, (1980) 4 SCC 162].

The problem that presented itself before the Court was in one sense no different from a daily spectacle in the over populated townships of India: the absence of proper drainage systems creating nuisance of garbage accumulation on the streets.

The response of the Court was, however, fascinatingly different: it reached out to Section 133 of the Criminal Procedure Code, 1973 that confers upon the Magistracy summary power to give directions for abatement of a public nuisance and elected the Judicial Magistrate to frame a Scheme to provide a working drainage system of sufficient capacity to meet the needs of the people.

Section 133 Cr. P. C provides a speedy and summary remedy in case of urgency where damages to public interest or public health etc. is concerned.
It runs as under:

133. Conditional order for removal of nuisance:

(1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information on taking such evidence (if any) as he thinks fit, considers:

1. that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or
    
2. that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or
    
3. that the construction of any building, or, the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or
    
4. that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such tree, is necessary; or
    
5. that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or
    
6. that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order:
   (i) to remove such obstruction or nuisance; or
   (ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or
   (iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or
   (iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or
   (v) to fence such tank, well or excavation; or
   (vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;
   or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.

(2) No order duly made by a Magistrate under this section shall be called in question in any civil court.

Although every person is bound to so use his property that it may not work legal damage or harm to his neighbour, yet on the other hand, no one has a right to interfere with the free and full enjoyment by such person of his property, except on clear and absolute proof that such use of it by him is producing such legal damage or harm. Therefore, a lawful and necessary trade ought not to be interfered with unless it is proved to be injurious to the health or physical comfort of the community.

Proceedings under Section 133 Cr. P. C are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. [Kachru Lal Bhagirath Agarwal Vs State of Maharastra, 2004 Crimes 99; 2005 SCC (Cri.) 1191-1196B(Para 10)].

Objects and Reasons Behind Enacting Section 133 Cr. P. C

The object and purpose behind Section 133 of the Code of Criminal Procedure, 1973 is essentially to prevent nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable danger would be done to the public. From a bare reading of the provisions in Section 133 of the Code of Criminal Procedure, 1973, it is crystal clear that the said provision is intended to protect the public as a whole against inconvenience and the Magistrate, therefore, should bear in mind while exercising his power under that section that he is supposed to be acting purely in the interests of the public.

Such a provision which confers drastic powers on the Magistrate should be sparingly used and should be so worked as not to become themselves a nuisance to the community at large. [Narayan Sahu Vs SDM Jagpur, 1986 Cri L J 102 (Orissa)]. The object of Section 133 of the Code of Criminal Procedure, 1973 is to enable the Magistrate to pass quick order and deal speedily where public nuisance or obstruction is made.

Meaning of The Term Nuisance

Section 133 of the Code of Criminal Procedure, 1973 as noted above appears in Chapter X of the Code which deals with maintenance of public order and tranquillity. It is a part of the heading Public nuisance.

The term nuisance as used in law is not a term capable of exact definition and it has been pointed out in Halsburys Laws of England that even in the present day there is not entire agreement as to whether certain acts or commissions shall be classified as nuisances or whether they do not rather fall under other divisions of the law of tout.

In Vasant Manga Nikumba Vs Baburao Bhikanna Naidu, 1995 Supp. (4) SCC 54 it was observed that nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition.

According to Pollock:

Nuisance is the wrong done to a man by unlawfully disturbing him (a) in the enjoyment of his property, or, in some cases, (b) in the exercise of a common right.

Windfield and Jolowiez on Tort (12th Edition, 1984) define Public Nuisance (on Page 378 & 379) as follows;
A public or common nuisance is one which materially affects the reasonable comfort and convenience of life of a class of Her Majestys subjects who come within the sphere or neighbourhood of its operation. But this definition is vague and it has been rightly said that nuisance covers a multitude of sins, great and small.

Public nuisance of common law includes such diverse activities as carrying on an offensive trade, keeping a disorderly house, selling food unfit for human consumption, obstructing public highways, throwing fireworks about in the stress and holding an ill advised pop-festival.

Sir Arthur Underhill on his Law of Torts (Sixteenth Edition) Page 118, describes Public Nuisance as under:

A public nuisance is some unlawful act, or omission to discharge some legal duty, which at or omission endangers the lives, safety, health or comfort of the public or by which the public are obstructed in the exercise of some common right.

No action can be brought by a private person of public nuisance unless he has suffered substantial particular damage beyond that suffered by the public generally.

A Private Nuisance has been described on Page 12, Chapter V as under:

A private nuisance is some unauthorized use of a mans own property causing damage to the property of another or some unauthorized interference with anothers enjoyment of his property, causing damage.

Any private nuisance, whereby, sensible injury is caused to the property of another or whereby the ordinary physical comfort of human existence in such property is materially interfered with, is actionable.

Harry Street, in his Law of Tort (Seventh Edition) 1983 observes on Page 229 as follows:

The essence of the tort of nuisance is the interference with enjoyment of land. The generic conception of nuisance can readily be illustrated. It covers interference with use and enjoyment of land by water, fire smoke small, fumes gas, noise, heat, electricity, disease or any other like thing which may cause such an inconvenience. Nevertheless, the term nuisance is used in different senses by the Judges and this has caused confusion both in the development and in the exposition of this branch of the law of torts.

Apart from aforesaid definitions as given by eminent authors on the Law of Torts, it is also convenient to look into the definition of Public Nuisance as given under Section 268 of Indian Panel Code as follows:
A person guilty of public nuisance who does any act or guilty of an illegal omission, which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstructions, danger or annoyance to use persons who may have occasion to use any public right.

Chapter IV of Indian Penal Code, 1860 deals with offences relating to public health, safety, decency, convenience, morals under Sections 268, 269, 270, 279, 280, 287, 288, 290, 291, 294. The Public Nuisance covers all types of pollutions i.e. pollution of land, water, air, noise pollution etc.

Section 290 of the Indian Penal Code, 1860 provides punishment for Public Nuisance (which includes pollution cases also) in cases not otherwise provided for. These offences are punishable with fine which may extend to Rs. 200/-.

Judicial Review

Despite the numerous provisions criminalizing instances of pollution which would amount to Public Nuisance, the efficacy of recourse to them is very limited. This is because of two reasons:

1. Firstly, after a Complaint is made to a Magistrate under Section 190 of the Indian Panel Code, 1860, criminal proceeding will have to ensure an adequate evidence of the standard required to be produced in order to secure a sentence and this may take a long period of time.
    
2. Secondly, and perhaps more importantly, the maximum punishments (in terms of fine and imprisonment where it is provided for) provided for by the provisions are very low almost negligible making prosecution under these Sections almost pointless.

As opposed to the Indian Panel Code, 1860, the Criminal Procedure Code, 1973 provides a far better option in preventing environmental damage where it amounts to a Public Nuisance. Section 133 of the Code gives an Executive Magistrate vast powers to put up a stop to public nuisance.

From an environmental perspective the section empowers a Magistrate if he considers that) any unlawful obstruction or nuisance should be removed from any public place or any, way, river or channel which is used by the public or occupation or that) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, then he may make a conditional order requiring the person causing the nuisance, within a time to be fixed in the order to desist from continuing the nuisance or if he fails to do so, to appear before him on date to be fixed by him and to show cause why the order should not be made absolute. Although the Section uses the word may, it has been held to be mandatory where the circumstances for its use exist.

The remedy under Section 133 of Cr. P. C. has several advantages that should lead to its choice in seeking to prevent environmental damage. Any person can simply complain to an Executive Magistrate to set it in motion keeping in mind the mandatory nature that has been read into Section 133. It is also comparatively speedier and when evidence is taken under Section 138 it is to be taken as in summons case which provided for trial in a summary manner. In addition Section 144 of Cr. P. C provides for situations of emergency where orders can be passed ex-parte, without giving notice etc.

The Magistrate has wide powers under Section 133 to stop or remove the nuisance even he can pass orders requiring public bodies to perform their mandate. Actually, the true meaning, scope and usefulness of remedy under the Sections 133-144 have been articulated by the judicial interpretation of these provisions for the benefits of people and to avoid environmental damage.

To analyze the use of criminal sanctions for abatement of environmental nuisance it is essential to consider the various precedents in this regard. In Ajeet Mehta Vs. State of Rajasthan, 1990 Cri LJ 1956 it was held that stocking of fodder on a certain plot in a residential colony constitutes pollution of atmosphere and hence public nuisance. The order directing removal of this nuisance was held valid and the respondents were directed not to do any business of fodder on that plot.

In another case there were fodder tali in a residential colony to which fodder was brought daily during the night by trucks which were unloaded in the morning. This caused intolerable noise, emanating offensive smell and spreading dust-containing particles of fodder cut. It was held as public nuisance. [Himmat Singh Vs. Bhagwana Ram, 1988 Cri LJ 614 (Raj)].

In Nagarjuna Paper Mills Vs Sub-Divisional Magistrate & Ors., it was observed by the Andhra Pradesh High Court that the power relating to air and water pollution, the Water Act, 1974 has taken away the power of the Sub-Divisional Magistrate to pass an order to close a factory causing pollution.

The above said view was also confirmed by the Supreme Court in Ratlam case where Their Lordships held that:
when on disclosure of existence of a public nuisance from information and evidence, the Magistrate considers that such unlawful obstruction or nuisance should be removed from any public place which maybe lawfully used by the public, he is to order removal of such nuisance.

Conclusion
The meaning of life as incorporated in Right to Live under Article 21 of the Constitution of India has been expanded to include life and health of the people, which heavily depend on unpolluted environment. Further, the Court has imposed a constitutional mandate upon States by virtue of the Directive Principles of State Policy to improve public health. It is, thus, very clear that the Indian Judiciary has tried to interpret the provision of Section 133 of Code of Criminal Procedure, 1973 to provide speedy and simple remedy for the problems of environmental pollution.

From the above discussion, it is evident and clear that even prior to the development of the Environment Protection Act, 1986 and the Rio Declaration the Indian Judiciary has set up a new jurisprudence for the environment protection and also for the prevention of environmental pollution.

If this thought is interpreted further i.e. use of criminal machinery for the protection of the environment, it is sure that the environmental problems can be solved speedily and economically, and a revolutionary change can be brought not only to safeguard the environment but also safeguard the lives of the public at large. Because in the present context as said by Justice V.R. Krishna Iyer it is not how many laws we have, it is how effectively we implement.

Hence invoking Section 133 of Code of Criminal Procedure, 1973 and other relevant criminal provisions under different laws will pave a way for the better environmental governance and also for the abatement of environmental nuisance.

Written By: Dinesh Singh Chauhan, Advocate, B. Sc. LL.B D. Criminology & Police Sciences - J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]