Environmental Protection and Regulations in India
Milind Jain and Tanya Janghel
India has a very old and traditional approach which has consistently paid attention towards the protection of environment. There are some writings by Galore, which shows that in ancient India every Individual had and used to practise the Dharmato protect and worship nature. Since, independence Indian policymakers have tried and attempted to address the environmental problems by passing many acts, laws and rules and regulations as per the vision of the constitution. On the other hand the problems we were facing at that time was poverty and the developmental compulsions of the nation, so the protection of environment was not a priority of the Government till the end of 1960s. But as we know that change is necessary for any nation. In 1972 Stockholm Conference on Human Environment brought a change in India’s policy for environmental issues. This conference was a major thing which brought India’s perception on environment, due to this India made a committee for environmental issues which is known as National Committee on Environmental Planning and Co-ordination (NCEPC) in 1972. This committee formed by The Government made a rise in Environmental legislation, starting with the Water (Prevention and Control of Pollution) Act of 1974. Through this there was the creation of Pollution Control Boards for controlling the water pollution at National level as well as at State Levels and empowered them to enforce the law. This board later was empowered to deal with Air pollution also by Air (Prevention and Control of Pollution) Act of 1981, which acted as the regulatory mechanisms for environmental protection.
This paper deals with Environmental Laws and Constitutional Provisions, History of the laws, policy in Ancient India and in British India and in post - independence of India. In brief I will also be discussing the Stockholm Conference of 1972 , and various other environmental laws in India. I will also be dealing with Environment and the Constitution of India in which we will be seeing some of the case laws and the Judgement by Courts. Role of Panchayat and Municipalities, Judicial Approach Towards protection of environment and at last what are the new developments in environmental laws.
“SAVING OUR PLANET, LIFITNG PEOPLE OUT OF POVERTY, ADVANCING ECONOMIC GROWTH..THESE ARE ONE AND THE SAME FIGHT. WE MUST CONNECT THE DOTS BETWEEN CLIMATE CHANGE, WATER SCARCITY, ENERGY STORAGES, GLOBAL HEALTH, FOOD SECURITY AND WOMEN EMPOWERNMENT. SOLUTIONS TO ONE PROBLEM MUST BE SOLUTIONS FOR ALL” - BAN KI MOON
We know that Environmentalism is not any fixed concept, it always keeps on evolving as changes take place in any nation. On the other hand we have seen so many changes in Environmentalism, which has been developed and changed throughout the years. There was rapid change and evolution in Indian Legislations after the Independence because the need and concern regarding protection of environment was arose. Environment has been defined as - outer physical and biological system in which man and other organisms live as a whole. As we know Human environment consists of both physical and biological environment, in which physical environment includes land, water, air and biological environment includes plants, animals and other organisms. The definition under Section 2(a) of the Environmental Protection Act 1986 is - “environment” includes, water, air and land and the inter - relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property;.
On the other hand the definition given under Section 2(d) of the National Environment Tribunal Act, 1955 is also same as given under Section 2(a) of the Environment Protection Act, 1986.
Therefore we can say the Environment includes physical, chemical, biological factors which surrounds an organism or an ecological community. These factors acts and interacts with other species and organisms to affect their form, growth and survival. Anything which is unfavourable with the conditions of environment is called environmental pollution such as Air, Water, land, radiation, and thermal are some of the common types of pollution.
As we have seen already that environment is combination of all entities, living and non-living, natural or man-made, and their interrelationships, therefore it provides value, now or in the future to Humankind. Environmental concerns relate to their degradation are normally through Human actions.
It’s an interesting point that should be noted that all the natural resources on earth have been stored virtually untouched for millions of years by Human Beings. But at the start of Industrial Revolution vast amount of these natural resources had been exploited within the years by the Human for their personal benefits. All the waste because of exploitation is going straight in environment which is damaging its natural process.
Environmental degradation in India has been caused by many factors and not by one such as social, economic, institutional and technological factors. On the other hand the population in India is also growing rapidly, urbanization and all the other industrial activities have resulted in degradation of environment and in its quality and sustainability.
But to control such effects India has a highly developed Judicial System in which the Supreme Court which is Apex Court in India is having all the powers to make any order for doing complete justice in any cause or matter related to environmental degradation and other. On the other hand we also have provision of Writs under Article 32 and 226 of the Constitution of India and the scope of writ jurisdiction of the High Courts are much more better and wiser than traditionally understanding and one of the best feature of Indian Judiciary is that it is separate and independent from all the organs of Parliament which ensures impartiality in administration of Justice.
Therefore we can say that the role of judiciary in protection of environment or in environmental governance, we need to consider the two important issues -
1. First the Judiciary needs to make new laws and after enactment of new laws they need to interpret them.
2. Secondly, all the Judges should interpret the laws effectively.
So, we can say that Indian Judiciary and Government can together tackle the problem of environmental pollution by enacting any new law, acts and by educating public for the same.
Now we will be seeing the Laws made in Ancient India, British India and Laws made after the Independence with the principles of environment.
LAWS IN ANCIENT INDIA
If we see the History of India, the protection and cleaning of environment was the essence of the Vedic culture and this has been written down in Commentaries by Historians. The protection of environment at that time was considered as an article of faith, which was seen in the daily lives of the people and this is also written in myth folklore, art, culture and religion.
LAWS IN BRITISH INDIA
If we check the year 1860 we will find that Britain was one of the world’s leader in deforestation. Britain destroyed its own woods and the forest of Ireland. On the other hand the Imperial Forest Department was formed with the help of Germany in 1864. And some of the other Laws that were made in British India were -
l Shore Nuisance ( Bombay and Kolaba) Act, 1853
l Merchant Shipping Act of 1858
l The Fisheries Act, 1897
l The Bengal Smoke Nuisance Act, 1905
l Bombay Smoke Nuisance Act, 1912
l Wild Birds and Animals Protection Act, 1912
LAWS AFTER INDEPENDENCE
We all know that The Constitution of India was adopted in 1950, and at that time Constitution did not with the subject of environment or prevention and control of pollution, but in the year 1976 an Amendment was made in the Constitution of India. By the virtue of the Amendment, Article 48A and Article 51a (g) were inserted. Article 48A, provides that the state shall do anything to protect and improve the environment.
STOCKHOLM CONFERENCE OF 1972
If we check the history the year 1972 has been considered as the landmark in the field of environment. In the year 1972 a conference was held in United Nations on Human Environment and it was held at Stockholm in Sweden from 5thJune to 16th June. In this conference Declaration on Human Environment was adopted. This can be considered as the first step towards environmental protection in the world.
Therefore we can say that the conference held in Sweden regarding Protection of Environment was the first major attempt to conserve and protect the human environment at International Level. For any law or Act the first thing the lawmakers do is to create the Preamble of that Law. Preamble talks about the Objective of that law or an Act created for the protection of citizens. Therefore the Preamble of the UN Conference of Human Environment states that - “the need for a common outlook and for common principles to inspire and guide the peoples of the world in the preservation of the human environment”.
As this declaration was an international declaration, so to fulfil the requirements for the protection of environment all the states were required to adopt legislative measures for the protection of environment and for the improvement of the environment. Therefore Indian Parliament inserted two new Articles in the Constitution of India those are Article 48A and Article 51A in 1976.
In India a separate ministry was also made for the protection of Environment that is “The Department of Environment” in 1980. The main aim or object of this department was to ensure a healthy and safe environment for the country.
So, we can say that the conference held in Sweden was of great success at that time. Above we have discussed the laws that were in Ancient Indian, British India, and laws after independence. Now we will be discussing the laws that were enacted by the Indian Parliament for the protection of Environment.
ACTS FOR ENVIRONMENT PROTECTION IN INDIA
1. The Biological Diversity Act, 2002.
2. The Prevention of Air and Water Pollution Act, 1974, 1981.
3. The Atomic Energy Act, 1982.
4. The Environment Protection Act, 1986.
5. The Environmental Conservation Act. 1989.
6. The National Environmental Tribunal Act, 1995.
7. National Environmental Appellate Authority Act, 1997.
8. National Environment Management Act, 1998.
9. Handling and management of Hazardous Waste Rule in 1989.
10. The Public Liability Insurance Act, 1992.
11. The Biomedical Waste Management and Handling Rules, 1998.
12. The Environment (Siting for Industrial Projects) Rules, 1999.
13. The Municipal Solid Waste (Management and Handling) Rules, 2000.
14. The Ozone Depleting Substance (Regulation and Control) Rules, 2000.
These were some of the Laws and Acts made, enacted and formulated by Indian Parliament and by Indian Judiciary for the protection of Environment.
ENVIRONMENT AND THE CONSTITUTION OF INDIA
Above we have seen many Laws and Acts for the protection of environment, on the other hand The Constitution of India also contains specific provisions for the protection of environment. All the laws made by Government at National Level or laws made by State government at the same time need to add the rights and responsibilities that are the parts of the Constitution and the common law. These laws are also known as Legislations.
If we talk about the provisions mentioned under Constitution of India we can see certain articles which provides for the environmental protection. Some of them are -
l Article 21 - Protection of Life and Personal Liberty - It states that - No person shall be deprived of his life and personal liberty except any other due procedure established by law.
l Article 14 - Equality before Law - It states that - The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Therefore we can say that any action of the state relating to the protection of environment must not infringe upon the right to equality as mentioned under Article 14 of the Constitution of India. On the other hand we have also read about the Stockholm Declaration, 1972. This was a universal declaration and according to this declaration we have seen that Stockholm have also recognized the principle of equality for the protection of environment and it has called up all the world nations to abide by this principle. If we see the Constitution of India we can see that it is clearly mentioned that it is the duty of the State Government’s to protect and improve the conditions of environment and to safeguard the forests and wildlife of the country. On the other it imposes the duty on all the citizens to protect and improve the environment including forests, lakes, rivers and wildlife.
Other constitutional provisions for environmental protection are - 42ndAmendment to the Constitution was brought in the year 1976. According to this amendment it makes a responsibility of the state government to protect and improve the environment and to safeguard the forests and wildlife of the country. On the other hand under the fundamental duties provided under the Constitution of India it clearly states that it is the fundamental duty of every citizen to protect and improve the environment and its natural resources like forests, lakes, rivers and wildlife.
Under Article 47 of the Constitution of India it is provided that it’s the responsibility and duty of the state to raise the level of nutrition and should increase the standard of living of the citizens which includes public health. The state shall also try to prohibit the taking of drugs except for medical purposes. Article 48A of the Constitution of India which was inserted after the conference held in Sweden states that state should protect and improve the environment.
Article 51A of the Constitution of India was also inserted after the conference held in Sweden. According to this Article it shall be the duty of every citizen of India to protect and improve the environment including forests, lakes, rivers and wildlife and they should develop a scientific temper and other spirit for the protection of environment.
In L.K KOOLWAL v. STATE OF RAJASTHAN, a writ petition was filled by the citizens of Jaipur which compelled the municipal authorities to provide adequate sanitation. In this case court observed that every citizen has a fundamental duty and constitutional duty to protect the environment as provided under Article 51, it is the duty of the court to provide with aid to the citizens in enforcing the duty against the State agencies. The court gave the administration six months to clean up the entire city.
In M.C MEHTA v KAMAL NATH, in this case the Doctrine of Public Trust was evolved. This doctrine states that some of the common properties such as rivers, forests and air were held by the Government in Trusteeship for free and unimpeded use of the general public. On the other hand the Government has granted lease for building up of motel which stopped the natural flow of the water from the bank of river Beas. There State Government had breached the Public Trust Doctrine.
One of the best part in the Constitution of India which is also considered as Heart and Soul of the Constitution and that is Writ jurisdiction .Under Article 32, the writ can be directly filed in Supreme Court and under Article 226, writ can be filled in High Courts. Under this provisions the courts have all the power to issue any direction, order or writs. There are five kinds of Writs provided by the Constitution of India. Those are -
l Writ of Habeas Corpus
l Writ of Mandamus
l Writ of Prohibition
l Writ of Quo-Warranto
l Writ of Certiorari
These are five types of Writs. It depends upon the Court while issuing any direction that whichever writ is appropriate he can give that. Through this provision one of the most important and effective mechanism for the protection of environment came out that is Public Interest Litigation.
In E.SAMPATH KUMAR v. GOVERNMENT OF TAMIL NADU, in this case an individual was having problem with excessive noise pollution which was caused by electrical motors and generators used by Hotel. The High Court in this matter held that a person or citizen who is been affected by this can maintain a writ petition while rejecting the hotel owner’s plea that a civil suit would be a proper remedy for him.
In Public Interest Litigation cases the subject matter regarding the litigations are mainly grievances against the violation of basic human rights of the poor and helpless or it can be about the conduct of Government policy. In these litigations Judges play an important role in organizing and shaping the litigation and to provide with some relief to the affected person or citizen.
In RAMDAS SHENOY v. THE CHIEF OFFICER, TOWN MUNICIPAL COUNCIL, in this case a residence of Udupi a rate tax payer’s right to challenge an illegal sanction to convert a building into a cinema hall was upheld by Supreme Court.
These were some of the Constitutional Provisions for the protection of Environment. In these provisions one of the main things we saw was Writ’s under Article 32 and Article 226 of the Constitution which is also considered as Heat and Soul of the Constitution. A writ can be filled by any individual if his or her legal right is violated provided under the Constitution of India.
ROLE OF PANCHAYAT AND MUNICIPALITIES
Under this topic we will see the roles of Panchayat and Municipalities for the protection of environment. There were many Amendments under the Constitution we have seen 42nd Amendment now we will be seeing 73rdAmendment Act of 1992 and 74th Amendment Act of 1992. Under these Amendments a Constitutional Status have been given to the Panchayats and Municipalities. Article 243-B of the Constitution of India, provides for the establishment of Panchayats in all District levels. And Article 243-G of the Constitution of India authorizes the state legislature to provide with any such powers and authority which may be necessary for the functioning of Panchayats in terms of Self-Government.
There are 12 schedules in the Constitution of India, under which 11thSchedule contains such matters which are directly or indirectly related for environmental protection such as Agriculture, including agricultural extension, Public Distribution System, Rural Housing, Drinking Water, Fuel and Fodder, Non- Conventional Energy Sources, Health and Sanitation, including, hospitals, primary health centres and dispensaries.
There are many more provisions related to protection of environment mentioned in 12thSchedule of the Constitution of India like Urban planning which includes town planning, Planning for economic and social development, Roads and Bridges, Fire services, Slum improvement and upgradation, Urban poverty alleviation, Regulation of slaughter houses and tanneries.
Now we will be seeing what has been done by the Indian Judiciary for the protection of Environment with the help of landmark Judgement and cases.
JUDICIAL APPROACH TOWARDS THE PROTECTION OF ENVIRONMENT
We have already seen and read that it’s a basic right of a person to live in a pollution free environment. Article 21 of the Constitution of India guarantees a fundamental right to life and personal liberty for every citizen in the country. In DEHRADUN v. STATE OF UTTAR PRADESH, in this case Supreme Court has interpreted Article 21 and held that the right to life and personal liberty also includes the right to environment. In SUBHASH KUMAR v. STATE OF BIHAR, in this case Supreme Court held that the right to life also includes right to clean environment, drinking-water and pollution-free environment.
The person who revived the concept of environmental jurisprudence in India through Public Interest Litigation was Mr. M.C. Mehta. There were many others who have played their role in this. Some of the landmark judgements which are having fair share in the development of environmental jurisprudence in India are -
l NARMADA BACHAO v. UNION OF INDIA
If we see back in history in the year 1946, the Government of India at that time, the Central Provinces and the Government of Bombay had requested the Central waterways, Irrigation and Navigation Commission to take the investigation on the Narmada river system for basin development and for improvement with the flood control, irrigation, power and extension of the Navigation. This matter was later referred to Tribunal in 1968 which was constituted under the Inter-State water Disputes Act, 1956. Any agreement was signed by the 4 Chief Minsters of states those were Madhya Pradesh, Rajasthan, Maharashtra and Gujarat on the basis of that the tribunal declared its award on 16thAugust 1978. Therefore in order to meet the financial obligations, consultations were started in the year 1978 with the World Bank for taking a loan. In the year 1985 the loan was sanctioned by the World Bank. And in the year 1987 the Ministry of Environment started their work.
On the other hand Supreme Court had made an observation in Sardar Sarovar Project and said that this project made a positive impact on the preservation of environment. This project was very much waited by the citizens of Gujarat. Through this project the water will be reaching many parts of the state where people were not having pure water to drink. These areas where no proper water was there for the people, through this project the transfer of Narmada water will help in sustainable agriculture and spread of green cover.
Due to this there will also be improvement of fodder availability, which will automatically reduce the pressure on Bio-Diversity and vegetation. The Government was also planning for making dams, but Supreme Court held it unfit as its advantages over took its disadvantages. But later the permission was given by the Supreme Court for building dams with some certain Conditions. All these interpretations were made under Article 21 of the Constitution of India by the Supreme Court and these interpretations become the basis of Environmental Jurisprudence. Therefore in today’s present era now we have large number of laws for the protection of Environment.
l TAJ MAHAL CASE
In this case, the Supreme Court have issued directions to all coal and coke based industries in Taj Trapezium either to shift their industries or to use natural gas as they were damaging the Taj. The Court also said that the environmental changes cannot be controlled because of the Industrial development in our Country, but it also said that the quality of environment can be controlled by taking measures and by not polluting the air, water and land to such an extent that it becomes a health hazard for the citizens living in that area or all over the country. After this Court also observed that every citizen has a right to fresh air and to live in pollution free environment.
l M.C. MEHTA v. UNION OF INDIA
In this case Supreme Court has directed the Government of Uttar Pradesh to take certain and quick steps for seeing that the water supplied to the plants is clean or not. On the other hand Supreme Court has also directed Union Government for the release of funds without waiting for the receipt of the proposal from the Government of Uttar Pradesh on the basis of the copy of report.
l GANGES POLLUTION CASE
In this case the Supreme Court reacting to the Public Interest Litigation has passed many judgements against polluting industries approximately 50,000 in the Ganga Basin. Therefore the result of these judgements and directions given by the Supreme Court saved lives of millions of people from the effect of air and water pollution in Ganga Basin which covers 8 states in India.
l M.C. MEHTA v. UNION OF INDIA
This case is also known as Oleum Gas Leak Case. In this case Supreme Court said that right to live in pollution free environment is a part of fundamental right to life under Article 21 of the Constitution of India. Further Supreme Court observed and said that where any industry or an enterprise is engaged in Hazardous, dangerous activity and if any harm happens due to some accident in the operation of such activity the enterprise is absolutely liable to compensate to all those citizens who have been affected by such accident and such a liability is not subject to any exception. The enterprise must be absolutely liable to compensate for such harm.
On the other hand Supreme Court has also given many decisions and directions to certain State Governments, the directions include banning the use of coal and coke and have directed the Industries for the protection of environment switch to Compressed Natural Gas (CNG).
LATEST DEVELOPMENT IN ENVIROMENTAL LAWS
The centre is likely to amend six environmental laws. For this a two day conference was inaugurated on Monday by the Prime Minister Narendra Modi in September 2015. In this meeting the state environment ministers and other officials discussed some issues regarding forests, wildlife, pollution, biodiversity and climate change.
Survey was taken by various reporters and the reports submitted by them have suggested that over 100 have been suggested by Prime Minister’s office which ensure the ease of doing business in India. According to the ministry, some of the changes call for a single clearance window for saving the time for various development projects like power infrastructure, defence installations and roads.
According to the reports of Environment Ministry, the Government will also finalize all the changes that need to be made in Environment Impact Notification 2006. On the other hand Government will also finalize the issue of land banks.
Prime Minister came up with a copy of annual tiger census and the national air pollution index during the inauguration of the conference. On the other hand the Prime Minister also told the State Environment Minsters that India should lead the global fight against climate change. He also said that the world needs to ease some restrictions on India for importing nuclear fuel so that country could produce clean energy. He also said that for producing clean energy the focus was on solar radiation, wind and biomass.
The six laws which are related to protection of environment and wildlife and are likely to be amended are -
l The Environment Protection Act, 1986
l The Forest Conservation Act, 1980
l The Wildlife Protection Act, 1972
l Water Preservation and Control of Pollution Act, 1974
l Air Preservation and Control of Pollution Act, 1981
l The Indian Forest Act, 1927
For the amendment in these laws a committee was formed in September 2014 by Under Former Cabinet Secretary T S R Subramanian.
As we have seen above in this whole paper that Indian Judiciary has given its best for the protection of Environment. On the other hand powers vested or given to Pollution Control Boards are not enough to prevent pollution. The major problem is that the Control board is not having the power to punish the violators, but they can launch prosecution against them in the Courts which will automatically defeat the purpose and object of the Environmental Laws due to the delays in deciding the cases. Therefore it is very important for the country if they want to protect the environment Government or Indian Judiciary should give more powers to Control Board.
On the other hand we need social awareness from below and not laws form above. Therefore in order to educate the people or citizens there should be awareness campaigns and programs and exhibition slides in various regional languages at cinema houses and televisions without any cost. At last The Government should try that in Schools and Colleges there should be general growth of awareness.
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 PART IV - OF THE CONSTITUTION OF INDIA
 PART IV-A OF THE CONSTITUTION OF INDIA
 AIR 1988 RAJ 2; 1987 (1) WLN 134
 (1997) 1 SCC 388
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