Partnership firms

Section 4 of the Indian Partnership Act, 1932, provides that "Partnership" is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Persons who have entered into partnership with one another are called individually “partners" and collectively “a firm”, and the name under which their business is carried on is called the “firm name"

The essentials of a partnership are that there should be an agreement between individuals to carry on a business and share profits arising from it. The business might be carried on by all or any of them acting for all. According to Section 2, business means and includes every trade, occupation and profession. There should be some activity with an intention of making profit. Any association not having a profit motive like a charitable or religious society is not a partnership. An agreement to carry on business in future is not a partnership at present.

Mutual agency means ‘one for all, all for one’. Partnership is based on mutual agency. In a partnership, all or any of the partners can act for all of them and carry on the business of the firm.

A partnership is different from a company as it is not a legal person but an aggregate of partners. Further, the liability of partners is unlimited and any partner cannot sell its share without the consent of other partners.

Creation of a firm

A firm is created by an agreement between individuals desiring to carry on a business with an aim to earn profits and share the same. A person may become a partner with another for a single adventure or undertaking (section 8). If the duration of a partnership is not fixed at the time of creation, it becomes partnership at will and its duration depends upon the willingness of the partners (section 7).

Registration of a partnership firm

Registration of a firm is not compulsory. Section 58(1) lays down the procedure of registration. It provides that: The registration of a firm may be effected at any time by sending by post or delivering to the registrar of the area in which any place of business of the firm is situated or proposed to be situated, a statement in the prescribed form and accompanied by the prescribed fee stating -

a) The firm name,

b) The place or principal place of business of the firm.

c) The names of any other places where the firm carries on business

d) The date when each partner joined the firm

e) The names in full and permanent addresses of the partners and

f) The duration of the firm

The statement shall be signed by all the partners, or by their agents specially authorised in his behalf.

Section 59 further lays down that when the Registrar is satisfied that the provision of section 58 have been duly complied with he shall record an entry of the statement in a register called the Register of firms, and shall file the statement.

Rights and duties of partner

The partners of a firm share mutual rights and liabilities. They also have certain liabilities towards third parties as well.

(a)    Rights of partners

(1)    Right to take part in business (section 12(a)) – every partner has a right to take part in the business of the firm.

(2)    Majority rights (section 13(c)) – differences arising in the ordinary matters connected by the business are to be decided by majority of the partners, however, the nature of the business cannot be changed without the consent of all the partners. All the partners have got a right to express their opinions.

(3)    Access to books (section 12(d)) – every partner has got a right to access and inspect any book of the firm.

(4)    Right to indemnify (section 13(e)) – the firm shall indemnify any partner all payments and liabilities in respect of anything done by him in the ordinary and proper course of business.

(5)    Right to profits (section 13(b)) – the partners have a right to share the profits equally.

(6)    Right to interest on capital (section 13(c) & (d)) – a partner making any payment or advance beyond the amount of capital subscribed by him is entitled to interest thereon at the rate of six percent per annum.

(7)    Right to remuneration (section 13(a)) – a partnership agreement may provide for remuneration of the partners. However, in case there is no agreement, the partners are not entitled to receive remuneration for taking part in the business of the firm.

(b)   Liabilities of partners to each other

(1)    Duty of absolute good faith (section 9) – all the endeavors of the partners should be for securing maximum profit for the firm and not for individual profit.

(2)    Duty not to compete (section 16(b)) – a partner is not permitted to carry on any business of the same nature as the firm so as to compete with it.

(3)    Duty of due diligence (sections 12(b) & 13(f)) – a partner shall indemnify for any loss to the firm caused by his negligence.

(4)    Duty to indemnify for fraud (section 10) – a partner has to indemnify the firm for any loss caused by his fraud.

(5)    Duty to render true accounts (section 9) – partners are bound to render true accounts and full information to other partners and their legal representatives.

(6)    Proper use of property (sections 15 & 16(a)) – the property of a firm is held by the partners and is to be used exclusively for the business of the firm.

(7)    Duty to account for personal profits (section 16) – if a partner gets personal profit from any transaction of the firm or from any competing business, he is liable to account for it and pay it to the firm.

(c)    Liabilities of partners to third parties

(1)    Liability for tort

Section 26 of the act provides that: Where by the wrongful act or omission of a partner acting in the ordinary course of the business of a firm, or with the authority, of his partners, loss or injury is caused to any third party, or any penalty is incurred, the firm is liable therefor to the same extent as the partner.

(2)    Liability for misappropriation

Section 27 provides that:  Where -

a) a partner acting within his apparent authority receives money or property from a third party and misapplies it or,

b) a firm in the course of its business receives money or property from a thirty party, and the money or property is misapplied by any of the partners while it is in the custody of the firm.

The firm is liable to make good the loss.

(3)    Liability for holding out

Section 28 provides that: (1) Any one who by words spoken or written or by conduct represents himself, or knowingly permits himself to be represented, to be a partner in a firm, is liable as a partner in the firm to any one who has on the faith of any such representation given credit to the firm, whether the person representing himself or represented to be a partner does or does not know that the representation has reached the person so giving credit.

(2) Where after a partner's death the business continued in the old firm name, the continued use of that name or of the deceased partner's name as a part thereof shall not of itself make his legal representative or his estate liable for any act of the firm done after his death.

Strict and Absolute Liability

The US court let off Union Carbide Corporation of its liability in the Bhopal gas tragedy case, citing that its sister concern was responsible and not the parent body. Under the principle of Strict Liability or no fault liability, laid down in the case of Ryland v Fletcher, any person who brings any dangerous object into his land shall be responsible if that thing somehow escapes and causes damage to any other party. However, under this principle, liability can be successfully avoided in cases of exceptions such as, Act of God (vis major), plaintiff’s own fault, act of stranger, when the plaintiff has given his authority and in cases of statutory authority.

However, in the principle  of Absolute Liability laid down by the Supreme Court in the case of MC Mehta v Union of India (Sriram fertilizers industries case), the various exceptions of the principle of strict liability were discarded. The court formulated the principle so as to make responsible any person who is responsible for bringing any hazardous substance into such premises from where it escapes and causes damage. This principle has found wide application in the cases of environmental pollution.

In the case of Union Carbide India Ltd v Union of India (Bhopal gas tragedy case), leakage of methyl isocyanide gas killed thousands of people. According to the Indian government, the corporation is subject to the principle of absolute liability and bound to pay compensation to the victims of the incident.

Husband’s right to maintenance under Hindu law

Under the Hindu Marriage Act, 1955, the right to maintenance can be claimed by both the husband as well as the wife. The provisions of Section 24 of the Act deal with maintenance pendente lite and Section 25 deals with permanent maintenance and alimony. Maintenance pendente lite is the maintenance passed for the duration of matrimonial proceedings while permanent maintenance is granted on the passing of the final decree in the proceeding.

While passing an order for maintenance pendente lite, the claimant has to establish only that he or she is unable to earn personal income sufficient to bear his or her personal expenses and the expenses of the proceedings. However, while passing an order for permanent maintenance and alimony, the income and properties of both the parties are to be taken into consideration. The claim to permanent maintenance is relinquished if the claimant indulges in illicit relationship outside the wedlock.

Section 24: Maintenance Pendente lite and expenses proceedings. Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable.

Under Section 24, claim for maintenance can be made by either party for the personal maintenance of the claimant and the expenses of the proceedings. The claimant has to establish that he or she does not have an independent income that would be sufficient for personal maintenance and for meeting the expenses of the proceedings.

Section 25: Permanent alimony and maintenance. (1)Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.

An order for permanent maintenance can be passed at the time of passing of decree in the matrimonial proceedings or after it. However, where the matrimonial cause has failed, no order for maintenance can be passed. In fixing the amount of permanent maintenance, the court is required to take into consideration the following:

(i)                  Income and other property of the claimant;

(ii)                Income and other property of non claimant;

(iii)               Conduct of parties towards marriage as well as towards the court; and

(iv)              Any particular circumstances or special features.

Thus, a husband can claim maintenance from his wife if he does not have any personal income sufficient for maintaining himself while his wife has got an income. Further, an order for permanent maintenance can be passed in his favor only as long as he does not enter into any illicit relationship out of wedlock.

Crimes against women

Crimes against women can be defined as the acts aimed at a woman by virtue of her sex. These include harassment at workplace, harassment for dowry, sexual exploitation, kidnapping, murder, etc. Incidents of exploitation of women both at home or at the workplace are on a rise. In Vishakha v State of Rajasthan[1], the Supreme Court, while stating that harassment at workplace is violation of the right to work under Article 16 of the Constitution, laid out various guidelines to curtail harassment of women at workplace. Crimes against women can be classified as:-

(1)    Crimes under the Indian Penal Code

(2)    Crimes under special and local laws

(1)    Crimes under the IPC

(i)                  Rape (Sections 375, 376, 376 A-D) – rape is sexual intercourse against the will and consent of the woman. It includes consent obtained by coercion, misconception of fact, unsoundness of mind and minority. The Code further provides for marital rape (in case the wife is under the age of 16 years), custodial rape.

(ii)                Kidnapping (Sections 363-369) – kidnapping is the act of taking away a person by a person who is not the legal guardian. The offence under the Code includes kidnapping for the purpose of subjecting the person to slavery, grievous hurt, gratification of unnatural lust or compelling her to marry any person against her will.

(iii)               Murder, dowry death, abetment of suicide, etc (Sections 302, 304 B, 306) – section 304 B provides that if a married woman dies under suspicious circumstances within seven years of her marriage and there has been harassment for dowry before her death, it would amount to dowry death. Under Section 306, abetment of sati as well as suicide following cruelty by husband or his relatives are punishable.

(iv)              Cruelty by husband or relatives of husband (Section 498 A) – cruelty in relation to dowry demand is an offence under the provisions of Section 498 A.

(v)                Outraging the modesty of a woman (Section 354) – a woman is assaulted or criminal force is used against her to outrage her modesty. To comprise the offence, intention is the key ingredient.

(vi)              Insult to the modesty of a woman (Section 509) – intentionally causing insult by means of words, sounds, gestures or intruding upon a woman’s privacy amounts to insulting her modesty.

(vii)             Importation of girls (Section 366 B) – when a girl below the age of 21 years is imported with the intent of forcing or seducing her to illicit intercourse with another person, it is punishable with imprisonment which may extend up to 10 years and with fine.

(2)    Crimes under the special and local laws

(i)                  The Commission of Sati (Prevention) Act, 1987 – under the Act, punishments are stipulated not only for the practice of sati but also for its glorification. Sati or the burning or burying alive of widows or women is revolting to the feelings of human nature and nowhere enjoined by any of the religions of India as an imperative duty and it is necessary to take more effective measure to prevent the commission of sati and its glorification.

(ii)                The Dowry (Prohibition) Act, 1961 – under the Act, both the offering as well as taking of dowry is an offence. It penalizes not only those who demand dowry but also those who offer it.

(iii)               The Immoral Traffic (Prevention) Act, 1956 – the Act aims at preventing prostitution and makes it punishable to traffic as well as harboring women for prostitution.

(iv)              The Indecent Representation of Women (Prohibition) Act, 1986 – the Act aims to prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner and for matters connected therewith or incidental thereto. The salient features of the Bill are;(a) Indecent representation of women has been defined to mean the depiction in any manner of the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent or derogatory to or denigrating, women or is likely to deprave, corrupt or injure the public morality or morals.

(b) It is proposed to prohibit all advertisements, publications, etc. which contain indecent representation of women in any form.

(c) It has also been proposed to prohibit selling, distribution, circulation of any books, pamphlets, etc. containing indecent representation of women.

(d) Offences under the Act are made punishable with imprisonment of wither description for a term extending to two years and fine extending to two thousand rupees on first conviction. Second and subsequent convictions will attract a higher punishment.

(v)                The Child Marriage Restraint (Amendment) Act, 1979 – the Act prohibits the marriage of underage children.

(vi)              The Protection of Women from Domestic Violence Act, 2005 – the Act aims to protect not just the wives but also any woman living as a wife from domestic violence. It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.

 It defines the expression "domestic violence" to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition. It provides for the rights of women to secure housing.

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[1] AIR 1997 SC

Development of the concept of Sustainable Development with respect to International Conventions

The problems regarding environment are not localised – they have a global implication. All the nations combined are responsible for the environment. Keeping this thing in mind, a number of international conventions were held where problems relating to the environment were discussed and their solutions were sought for.

A-  Stockholm Conference
Expressing concern over the environmental degradation, in the year 1972, representatives of 113 countries participated in the United Nations Conference on Human Environment held at Stockholm in Sweden.
This was the first major step to serve the problems of human environment.
The declaration on Human Environment enunciated various principles regarding environment.
It was decided that the “States shall cooperate to develop further the International law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.”
Further, “Scientific research and development in the context of environmental problems, both national and multinational must be promoted in all countries, especially the developing countries². Emphasis was also made on pollution control and elimination of toxic wastes.
Also, “The capacity of the earth to provide vital renewable resources must be maintained and wherever practicable restored or improved.”³  
Article 1 of the declaration states that protection and improvement of human environment is a major issue which affects the  well-being of people and economic development.
Principle 3 states that the capacity of Earth to produce vital renewable resource must be maintained and wherever practicable restored. Principle 5 states that renewable resources must be employed so as to guard against the danger of future exhaustion of non-renewable resources. Principle 7 states that States shall take all possible steps to prevent pollution of the seas.
According to principle 11 the environmental policies should enhance and not adversely affect the present and future potentials of the developing countries. Principle 12 states that resource should be made available to preserve and improve the environment taking into account the circumstances and particular requirement of developing countries.
Principle 25 states that States shall ensure that international organizations play a coordinated efficient and dynamic role for the protection and improvement of the environment. 
The Stockholm conference was the first step towards the development of the concept of sustainable development.
B-Nairobi Declaration
To mark the 10^th anniversary of Stockholm declaration, representative of 105 nations participated at Nairobi between 10 th to 18 th May 1982. Here a decision for creating special commission on environment was taken. This commission had to propose long term environmental strategies for achieving sustainable development to the year 2000 and beyond.
C - Earth Summit
The Rio Declaration on Environment and Development, 1992 was a landmark step in the field of sustainable development. In this declaration a number of principles regarding sustainable means of agricultural and industrial developments were laid down. This summit was attended by 178 nations and 130 heads of State and Government attended the plenary session.
Sustainable development was one of the main issues discussed in this summit 27 principles on environment were laid down in the Rio declaration and some of them are :
The right to development must be fulfilled as to equitably meet development and environmental needs of present and future generations (principle 3).
Environmental protection should constitute the integral part of development process (Principle 4)and States should develop laws regarding liability and compensation to victims of pollution and environmental damages (Principle 13).
Human health and life was also given importance and human beings are at the centre of concerns for sustainable development. Therefore, all attempts for a healthy and productive human life that are in harmony with nature are to be made. (Principle 2)
Further, it is the duty of the governments of different countries to enact environmental legislation. (Principle 11)
Principle 8 states that to achieve sustainable development and a higher quality of life for their people States should reduce and eliminate   unsustainable patterns of production and consumption and promote demographic policies. According to Principle 15 Sates should widely apply the precautionary approach so as to protect the environment.
Principle 24 states that as warfare is inherently destructive of sustainable development States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in the further development of International law as necessary.
Principle 25 states that pace, development and environmental protection are interdependent and indivisible.
Thus, the Earth summit laid down great emphasis on the concept of sustainable development and made it a responsibility of the governments to take measures in that direction.
D – Kyoto Protocol to the UN framework convention on Climate Change, 1997.
Kyoto Protocol laid down various principles on sustainable development. It comprised of a total of 27 Articles. Article 2 enumerates various principles for the promotion of sustainable development.
It was agreed upon that the nations should encourage the research and development that is environmentally benign. Under Article 2(1)(iii) emphasis was also laid down on the development of sustainable methods of agriculture.
Clause (i) provides for the enhancement of energy efficiency in relevant sectors of the national economy. Further promotion of sustainable forest management practices,afforestation and reforestation was also provided under clause (ii). Clause (iv) laid down provisions for the promotion, research, development and increased use of renewable forms of energy.
Clause (vii)laid down measures for the limitation and reduction of emissions of green house gases. Annexure A of the Protocol lists the green house gases which are carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), chloro floro carbons, perfluorocarbons (PFC5) and SF6. A special provision was laid down for the development of laws which ensure sustainable methods of development.
According to the Kyoto Protocol, stress should be laid down on environmental legislation which favors environmentally benign technological development.

Doctors and strikes

The Supreme Court on Monday questioned the Indian Medical Association how ethical is their strike. Strike is a weapon of bargain for the workers to bring pressure upon the employer to concede to their demands. Strikes are a mode of collective bargaining.

Section 2(q) of the Industrial Disputes Act, 1947 defines ‘strike’ as:  "strike" means a cessation of work by a body of persons employed in any industry acting in combination or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment;

Further, Section 22 of the Act prohibits strikes in public utility services[1].

Section 22: Prohibition of strikes and lock-outs- (1) No person employed in a public utility service shall go on strike in breach of contract--

(a) without giving to the employer notice of strike, as herein-after provided, within six weeks before striking; or

(b) within fourteen days of giving such notice; or

(c) before the expiry of the date of strike specified in any such notice as aforesaid; or

(d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings.

Strikes are prohibited in public utilities in order to prevent the public from unwarranted harassment. The Government is authorized to issue declaration only in respect of the industries enumerated in the First Schedule and there must be proved necessity for doing so. The First schedule to the Act enumerates 23 industries including banking, fire brigade services, coal, cement, foodstuffs, service in hospitals and dispensaries and defence establishments among others. The Government is authorized to issue a declaration in respect of these services and t must be in the interest of public or there must be public emergency to do so.

Public utility services are those services which fulfill some of the basic requirements of the public. They provide for the infrastructure for the development of the country. These include services like gas, electricity, insurance, banking, hospitals and air services, etc.

In a country like India, where the ratio of doctors per 1000 persons is dismal, a strike by the doctors is bound to affect the public at large. While the strike may be legal in nature but the question remains whether it is ethical.

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[1] Section 2(n): "public utility service" means--

(i) any railway service or any transport service for the carriage of passengers or goods by air;

(ia) any service in, or in connection with the working of, any major port or dock;

(ii) any section of an industrial establishment, on the working of which the safety of the establishment or the workmen employed therein depends;

(iii) any postal, telegraph or telephone service;

(iv) any industry which supplies power, light or water to the public;

(v) any system of public conservancy or sanitation;

(vi) any industry specified in the First Schedule which the appropriate Government may, if satisfied that public emergency or public interest so requires, by notification in the Official Gazette, declare to be a public utility service for the purposes of this Act, for such period as may be specified in the notification:

Provided that the period so specified shall not, in the first instance, exceed six months but may, by a like notification, be extended from time to time, by any period not exceeding six months, at any one time if in the opinion of the appropriate Government public emergency or public interest requires such extension;

POLLUTER PAYS PRINCIPLE

The polluter pays principle lays down that the individuals or the industries causing pollution or carrying out activities which tend to pollute the environment are bound to make compensation to all the individual sufferers as well as the required to make compensation for the damage done to the environment.
It was held by the Supreme Court in the case of M. C. MEHTA v KAMAL NATH[1] that the polluter is under an obligation to make good the damage caused to the environment.
Any person, whose activities lead to environmental degradation shall be responsible to make good that loss or damage. Such as person shall have an absolute liability to make good that damage.
The term ‘absolute liability’ indicates that the polluter can in no way avoid his liability. Where his liability for remediation is concerned, he cannot take the aid of any exception, for the rule of absolute liability is not subject to any exception[2].
In Council for ENVIRO LEGAL ACTION v UNION OF INDIA[3], it was contended that the principle on which the liability of the respondents to defray the costs of remedial measures will be determined is, the “Polluter Pays”, that is, the responsibility for repairing the damage is that of the offending industry.
Thus, the “Polluter pays principle” clearly indicates that the absolute liability for the harm caused to the environment is on the polluter and it extends not only to compensate the victims of the pollution but also at the cost of restoring the environment its natural condition.
In the VELLORE CASE[4], it was held that the remediation of the damaged environment is a part of the process of sustainable development and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.
Thus, the cost of reversing the damaged ecology comes very much in the ambit of this principle and is included in the cost of the project.
BURDEN OF PROOF
According to the polluter pays principle, the onus is also on the individual or the industrialist to prove that his activities were environmentally benign. This principle was also laid down in the VELLORE CASE[5]
Thus, the burden of proof lies on the person carrying on development activities to show that his activities cannot and do not harm the environment in any manner.
Similarly, in the ENVIRO-LEGAL CASE[6], it was held that the remediation of the damaged environment was considered very much a part of the process of sustainable development and the onus of the same lay on the polluter.
The developed industrialist is required not only to make good any damage caused to the environment because of the pollution and other hazards caused by his activities and is also liable to make good any damage caused to the environment.
In the BHOPAL GAS TRAGEDY[7], the polluter company Union Carbide Ltd. was ordered to make good all the damage caused to the environment due to its negligence which led to the escape of the poisonous methyl isocyanide gas. In SHRIRAM FOODS AND FERTILIZERS INDUSTRIES v UNION OF INDIA[8], where the manufacturing process was closed down due to the leakage of oleum gas, the Supreme Court ordered that the chairman and the managing director shall be personally liable for payment of compensation for death or injury.

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[1]  MC Mehta v Kamal Nath (2000)6 SCC 213

[2] M C Mehta v UOI AIR1987 SC 1086

[3] Council for Enviro-legal action v UOI (1996) 5 SCC 281

[4]  Vellore citizen’s welfare forum v UOI AIR 1996 SC 2715

[5]  Vellore citizen’s welfare forum v UOI AIR 1996 SC 2715

[6]  Council for Enviro-legal action v UOI (1996) 5 SCC 281

[7]  Union Carbide Corporation v UOI (1986)2 Comp. LJ 169(US)

[8]  4 Shri Ram foods and fertilizers industries v UOI AIR 1987 SC965

PRECAUTIONARY PRINCIPLE

The precautionary principle lays down that before carrying out any development activity, the protagonist must try to analyze the damage which could be caused to the environment due to his activities and try to prevent the same.
Articles 48[1], 48-A[2] and 51 A clause (g)[3] of the Constitution of India make it mandatory to protect and improve the environment.
It has been held in NARMADA BACHAO AANDOLAN v UNION OF INDIA[4] that – the precautionary principle is applicable only where the effect of any industry upon the ecology or the environment is known and not otherwise.
The precautionary principle basically aims at avoiding any risk or damage to the environment which could be foreseen by the industrialist.
In A.P. POLLUTION CONTROL BOARD v PROF. M. V. NAYUDU[5], it has been held by the Supreme Court that – the principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity.
Similarly, in the case of S. JAGANNATH v UNION OF INDIA[6], where the question was whether modern techniques of shrimp farming are environment friendly it was contended by the court that the traditional type of shrimp farming are environmentally benign and pollution free. But the modern technological type of farming using chemicals to create more produce create pollution and has degrading effect on the environment and ecology and therefore, the same cannot be permitted.
Thus, here too, the principle of precaution was sought after so as to prevent any damage to the environment.
The basic principles are that
1-Environmental measures by the State government and the statute should attack the cause of environmental degradation.
2- Where there are threats of severe and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
3- The onus of proof is on the actor or the developed industrialists to show that his action does not affect the environment.
The precautionary principle clearly states that where it is easy to analyze and foresee what damage can be caused to the environment, every step should be taken to prevent that damage.
Under the precautionary principle, the industrialist is required to undertake those procedures which cause the least damage to the environment.
In the NARMADA CASE[7], Justice Barucha held that an adverse impact on the environment can have disastrous consequences for the present generation as well as for the generations to come, and thus, all precaution has to be taken.
Thus, it is required that precaution is taken while initializing large projects for any unplanned or unscientific project can have a long lasting adverse impact on the environment which will damage not just the present but the future as well.
Similarly, the Supreme Court in M.C. MEHTA v UNION OF INDIA[8], observed that for the protection of the lakes from degradation, it is necessary that the construction in their vicinity is limited.
Thus according to this principle a definite check is imposed upon all development activities.
Thus, the most important step to be taken is the prevention of pollution and damage to the environment.
The importance of this principle is manifesting from the point that the Supreme Court has from time and again considered it a part of the concept of sustainable development.
 In a recent case of M. C. MEHTA v UNION OF INDIA[9] which related to vehicular pollution in Delhi, the Supreme Court again pointed out that the precautionary principle is enshrined in the concept of sustainable development. The court further pointed out that it required that there is enough breathing space in the city and for the same it is necessary that vehicular pollution is curbed.

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[1] Article 48 Organisation of agriculture and animal husbandry The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle

[2]Article  48A Protection and improvement of environment and safeguarding of forests and wild life The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country

[3] Article 51 A(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

[4]  Narmada Bachao Andolan v UOI (2000)10 SCC 664

[5]  AP pollution control board v Prof  M V Nayudu(1999) 2SCC718

[6]   S Jagannath v UOI  AIR 1998 SC 811

[7]  Narmada Bachao Andolan v UOI (2000)10 SCC 664

[8]  M C Mehta v UOI AIR 1996 SC 1977

[9]  M C Mehta v UOI AIR 2002 SC 1696