Public Interest Environmental Litigation in India, Pakistan, and Bangladesh

by Razzaque, Jona

• ISBN13: 9789041122148
• ISBN10: 9041122141
• Format: Hardcover
• Copyright: 2004-01-01
• Publisher: Kluwer Law Intl

Summary

This research examines the growth and expansion of public interest environmental litigation (PIEL) in India and analyses the changes that are influencing the development of PIEL in Bangladesh and Pakistan. The necessity for this research lies in the rapid degradation of environment And The need of efficient environmental management in the three countries of the South Asian region. Here, we compare the legal systems of the three countries from the environmental point of view, discuss new ideas and directions and critically analyse the legal provisions that would help to apply environmental norms. These offer the legislators a chance to find out what can be applied in their own region, thus developing their existing legal mechanisms. About the author Jona Razzaque is barrister and holds a PhD in law from the University of London. She works in the field of access to environmental justice and has published numerous articles on this issue. She taught law in Queen Mary College and School of Oriental and African Studies under the University of London. She is currently working as a lawyer in the Foundation for International Environmental Law and Development (FIELD) on cross-themed projects related to bio-diversity, trade and climate change.

Author Biography

Jona Razzaque is a barrister and holds a PhD in law from the University of London. She works in the field of access to environmental justice and has published numerous articles on this issue. She is currently working as a lawyer in the Foundation for International Environmental Law and Development (FIELD) on cross-themed projects related to bio-diversity, trade and climate change

Table of Contents

Outline of the Book	v
Contents	vii
Acknowledgements	xv
Abbreviations	xvi
List of Cases	xx
List of Tables	xli
List of Charts	xlii
List of Statutes	xliii
Table of Treaties and Other Instruments	xlvii
Public Interest Environmental Litigation in India, Pakistan and Bangladesh	1	(62)
Part A: Introduction	1	(1)
General Introduction	1	(2)
Reasons behind choosing India, Pakistan and Bangladesh	3	(9)
Geographical extent and legal system of India, Pakistan and Bangladesh	3	(2)
Common Environmental Concerns of India, Pakistan and Bangladesh	5	(1)
Water pollution	5	(2)
Degradation of Marine and Coastal Resources	7	(1)
Increased use of agro chemicals	7	(1)
Loss of coastal habitats and deforestation	8	(1)
Land Based Pollution	9	(1)
Waterlogging and salinity	9	(1)
Air Pollution	9	(1)
Biodiversity	10	(1)
The Need for PIEL in the context of India, Pakistan and Bangladesh	11	(1)
A Note on Methodology	12	(3)
Scope and Structure of the Book	15	(20)
Part B: Public Interest Environmental Litigation	34	(1)
Historical Development of Public Interest Litigation	35	(12)
Development of Public Interest Environmental Litigation	47	(16)
Environmental Protection and the Constitution	63	(60)
General Introduction	64	(4)
The Constitution of India and Environmental Protection	68	(7)
Introduction	68	(1)
The Directive Principles of State Policy	69	(6)
The Constitution of Bangladesh and Environmental Protection	75	(3)
Introduction	75	(1)
Fundamental Principles of State Policy	76	(2)
The Constitution of Pakistan and Environmental Protection	78	(6)
Introduction	78	(3)
The Principles of Policy	81	(2)
Objectives Resolution	83	(1)
Fundamental Rights and the Protection of Environment	84	(39)
Introduction	84	(3)
Fundamental Right to Life	87	(7)
Right to Clean Environment in India	94	(14)
Right to Healthy Environment in Bangladesh	108	(2)
Right to Clean Environment in Pakistan	110	(5)
The Right to Equality in India, Pakistan and Bangladesh	115	(4)
Right to Property in India, Pakistan and Bangladesh	119	(4)
Environmental Regulation and Regulatory Mechanisms in Environmental Management in India, Pakistan and Bangladesh	123	(58)
General Introduction	123	(3)
Conceptual Framework of Environmental Regulation	126	(36)
Introduction	126	(1)
Outline of Approaches	127	(2)
Framework Law	129	(8)
Institutional Structure of Environmental Management	137	(5)
Enforcement and Control	142	(14)
Incentive Mechanisms	156	(4)
Conclusion	160	(2)
Regulatory Mechanisms of Environmental Management	162	(19)
Introduction	162	(3)
Development of EIA Regulation and Procedures in India, Pakistan and Bangladesh	165	(1)
Introduction	165	(1)
Environmental Impact Assessment (EIA) in India	165	(5)
Environmental Impact Assessment (EIA) in Bangladesh	170	(6)
Environmental Impact Assessment (EIA) in Pakistan	176	(3)
Conclusion	179	(2)
Application of Judicial Procedures and Remedies in PIEL in India, Pakistan and Bangladesh	181	(48)
General Introduction	181	(2)
Available Procedural Rights under the Constitution and its Use in Environmental Cases	183	(16)
Introduction	183	(1)
Evolution of Writ Jurisdiction	184	(2)
Procedural Rights under the Constitution in India	186	(5)
Procedural Rights under the Constitution in Bangladesh	191	(3)
Procedural Rights under the Constitution in Pakistan	194	(4)
Conclusion	198	(1)
Use of Common Law and Criminal Law in Environmental Litigation in India, Pakistan and Bangladesh	199	(15)
Introduction	199	(1)
Public Nuisance in Criminal Cases in India, Pakistan and Bangladesh	200	(9)
Negligence and Strict Liability	209	(4)
Conclusion	213	(1)
Use of Civil Procedural Rights in India, Pakistan and Bangladesh	214	(15)
Introduction	214	(1)
Class Actions in India, Pakistan and Bangladesh	215	(2)
Representative Suits in India, Pakistan and Bangladesh	217	(7)
Public Nuisance in Civil Cases	224	(2)
Conclusion	226	(3)
Civil and Criminal Remedies, Cost and Funding in PIEL	229	(38)
General Introduction	229	(1)
Available Civil and Criminal Remedies used in Environmental Litigation in India, Pakistan and Bangladesh	230	(14)
Introduction	230	(1)
Injunction (Civil/Criminal)	231	(3)
Damages (Civil/Criminal)	234	(3)
Directions (Civil)	237	(4)
Fine and Imprisonment (Criminal)	241	(3)
Conclusion	244	(1)
Expenses in Environmental Litigation	244	(23)
Introduction	244	(2)
Cost Order and Advocate's Fees	246	(8)
Legal Aid in India, Pakistan and Bangladesh	254	(8)
Environmental Insurance	262	(2)
Conclusion	264	(3)
Interest, Representation and Standing in Public Interest Environmental Litigation	267	(50)
Part A: General	268	(1)
General Introduction	268	(4)
Standing Rules in Environmental Cases: Application in the UK and in the USA	272	(12)
Introduction	272	(2)
Development of Standing in the UK	274	(5)
Development of Standing Rule in the USA	279	(3)
Conclusion	282	(2)
Part B: Issue of Standing in India, Bangladesh and Pakistan	284	(1)
Development of the Issue of Standing in India, Pakistan and Bangladesh	284	(11)
Introduction	284	(2)
Development of the Issue of Standing in India	286	(3)
Development of the Issue of Standing in Bangladesh	289	(3)
Development of the Issue of Standing in Pakistan	292	(2)
Conclusion	294	(1)
Factors Taken into Account by the Court	295	(4)
Introduction	295	(2)
Factors Taken into Account in India	297	(1)
Factors Taken into Account in Bangladesh	298	(1)
Factors Taken into Account in Pakistan	298	(1)
Conclusion	299	(1)
Question of Standing in Environmental Cases	299	(10)
Introduction	299	(1)
Standing in Environmental Cases in India	300	(3)
Standing in the Environmental Cases in Bangladesh	303	(3)
Standing in Environmental Cases in Pakistan	306	(2)
Conclusion	308	(1)
Refusal of Standing in India, Pakistan and Bangladesh	309	(8)
Introduction	309	(1)
Refusal of Standing in India	309	(4)
Refusal of Standing in Bangladesh	313	(1)
Refusal of Standing in Pakistan	313	(1)
Conclusion	314	(3)
Application of IEL in the National Legal Systems of India, Pakistan and Bangladesh	317	(54)
General Introduction	317	(2)
Sustainable Development and its Application in the National Court	319	(14)
Introduction	319	(1)
International Application of the Concept	320	(4)
National Application of the Concept in India, Pakistan and Bangladesh	324	(9)
Conclusion	333	(1)
Intergenerational Equity and its Application in the National Court	333	(10)
Introduction	333	(1)
International Application of the principle	334	(7)
National Application of the Principle in the Courts of India, Pakistan and Bangladesh	341	(2)
Conclusion	343	(1)
The Precautionary Principle and its Application in the National Court	343	(18)
Introduction	343	(1)
International Application of the Principle	344	(7)
National Application of the Principle in India, Pakistan and Bangladesh	351	(9)
Conclusion	360	(1)
Polluter Pays Principle and its Application in National Court	361	(10)
Introduction	361	(1)
International Application of the Principle	361	(4)
National Application of the Principle	365	(4)
Conclusion	369	(2)
Alternative Environmental Forum, Access to Environmental Information and Public Participation in Environmental Decision Making in India, Pakistan and Bangladesh	371	(50)
General Introduction	371	(2)
Part A	373	(1)
Separate Forum of Environmental Dispute Settlement	373	(29)
Introduction	373	(6)
Alternative Forums in India	379	(13)
Separate Forums in Pakistan	392	(3)
Separate Forums in Bangladesh	395	(5)
Conclusion	400	(2)
Part B	402	(1)
Introduction	402	(4)
Access to Environmental Information in India, Pakistan and Bangladesh	406	(3)
Public participation in the environmental decision making in India, Pakistan and Bangladesh	409	(12)
Public Participation in the Decision Making in India	410	(2)
Public Participation in the Decision Making in Bangladesh	412	(4)
Public Participation in the Decision Making in Pakistan	416	(3)
Conclusion	419	(2)
Concluding Observations	421	(28)
General Introduction	421	(1)
Findings from Chapters 2, 3 and 4	422	(8)
Findings from Chapter 5, 6 and 7	430	(13)
Findings from Chapter 8	443	(4)
Concluding Thoughts	447	(2)
Bibliography	449	(32)
Index	481