Environmental Laws of INDIA
Environmental Laws of INDIA
Introduction:
The constitution of India is not an inert but a living document which evolves and grows with time. The specific provisions on environment protection in the constitution are also result of this evolving nature and growth potential of the fundamental law of the land. The preamble to our constitution ensures socialist pattern of the society and dignity of the individual. Decent standard of living and pollution free environment is inherent in this. The Environment (Protection) Act, 1986 defines environment as “environment includes water, air and land and the interrelationship which exists among and between air, water and land and human beings, other living creatures, plants, micro-organism and property”.
The chapter on fundamental duties of the Indian Constitution clearly imposes duty on every citizen to protect environment. Article 51-A (g), says that “It shall be duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures.”
The Directive principles under the Indian constitution directed towards ideals of building welfare state. Healthy environment is also one of the elements of welfare state. Article 47 provides that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. The improvement of public health also includes the protection and improvement of environment without which public health cannot be assured. Article 48 deals with organization of agriculture and animal husbandry. It directs the State to take steps to organize agriculture and animal husbandry on modern and scientific lines. In particular, it should take steps for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other milch and draught cattle. Article 48 -A of the constitution says that “the state shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country”.
The Constitution of India under part III guarantees fundamental rights which are essential for the development of every individual and to which a person is inherently entitled by virtue of being human alone. Right to environment is also a right without which development of individual and realisation of his or her full potential shall not be possible. Articles 21, 14 and 19 of this part have been used for environmental protection.
According to Article 21 of the constitution, “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Article 21 has received liberal interpretation from time to time after the decision of the Supreme Court in Maneka Gandhi vs. Union of India, (AIR 1978 SC 597). Article 21 guarantees fundamental right to life. Right to environment, free of danger of disease and infection is inherent in it. Right to healthy environment is important attribute of right to live with human dignity. The right to live in a healthy environment as part of Article 21 of the Constitution was first recognized in the case of Rural Litigation and Entitlement Kendra vs. State, AIR 1988 SC 2187 (Popularly known as Dehradun Quarrying Case). It is the first case of this kind in India, involving issues relating to environment and ecological balance in which Supreme Court directed to stop the excavation (illegal mining) under the Environment (Protection) Act, 1986. In M.C. Mehta vs. Union of India, AIR 1987 SC 1086 the Supreme Court treated the right to live in pollution free environment as a part of fundamental right to life under Article 21 of the Constitution.
Excessive noise creates pollution in the society. The constitution of India under Article 19 (1) (a) read with Article 21 of the constitution guarantees right to decent environment and right to live peacefully. In PA Jacob vs. The Superintendent of Police Kottayam, AIR 1993 Ker 1, the Kerala High Court held that freedom of speech under article 19 (1)(a) does not include freedom to use loud speakers or sound amplifiers. Thus, noise pollution caused by the loud speakers can be controlled under article 19 (1) (a) of the constitution.
Article 19 (1) (g) of the Indian constitution confers fundamental right on every citizen to practice any profession or to carry on any occupation, trade or business. This is subject to reasonable restrictions. A citizen cannot carry on business activity, if it is health hazards to the society or general public. Thus safeguards for environment protection are inherent in this. The Supreme Court, while deciding the matter relating to carrying on trade of liquor in Cooverjee B. Bharucha Vs Excise commissioner, Ajmer (1954, SC 220) observed that, if there is clash between environmental protection and right to freedom of trade and occupation, the courts have to balance environmental interests with the fundamental rights to carry on any occupations.
Public Interest Litigation under Article 32 and 226 of the constitution of India resulted in a wave of environmental litigation. The leading environmental cases decided by the Supreme Court includes case of closure of limestone quarries in the Dehradun region (Dehradun Quarrying case, AIR 1985 SC 652), the installation of safeguard at a chlorine plant in Delhi (M.C. Mehta V. Union of India, AIR 1988 SC 1037) etc. In Vellore Citizens Welfare Forum vs. Union of India (1996) 5 SCC 647, the Court observed that “the Precautionary Principle” and “the Polluter Pays Principle” are essential features of “Sustainable Development.”
At local and village level also, Panchayats have been empowered under the constitution to take measures such as soil conservation, water management, forestry and protection of the environment and promotion of ecological aspect.
Environment protection is part of our cultural values and traditions. In Atharvaveda, it has been said that “Man’s paradise is on earth; this living world is the beloved place of all; It has the blessings of nature’s bounties; live in a lovely spirit”. Earth is our paradise and it is our duty to protect our paradise. The constitution of India embodies the framework of protection and preservation of nature without which life cannot be enjoyed. The knowledge of constitutional provisions regarding environment protection is need of the day to bring greater public participation, environmental awareness, environmental education and sensitize the people to preserve ecology and environment.
India: Environment Laws In India
The need for protection and conservation of environment and sustainable use of natural resources is reflected in the constitutional framework of India and also in the international commitments of India. The Constitution under Part IVA (Art 51A-Fundamental Duties) casts a duty on every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures. Further, the Constitution of India under Part IV (Art 48A-Directive Principles of State Policies) stipulates that the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.
Several environment protection legislations existed even before Independence of India. However, the true thrust for putting in force a well-developed framework came only after the UN Conference on the Human Environment (Stockholm, 1972). After the Stockholm Conference, the National Council for Environmental Policy and Planning was set up in 1972 within the Department of Science and Technology to establish a regulatory body to look after the environment-related issues. This Council later evolved into a full-fledged Ministry of Environment and Forests (MoEF).
MoEF was established in 1985, which today is the apex administrative body in the country for regulating and ensuring environmental protection and lays down the legal and regulatory framework for the same. Since the 1970s, a number of environment legislations have been put in place. The MoEF and the pollution control boards ("CPCB", ie, Central Pollution Control Board and "SPCBs", ie, State Pollution Control Boards) together form the regulatory and administrative core of the sector.
Some of the important legislations for environment protection are as follows:
- The National Green Tribunal Act, 2010
- The Air (Prevention and Control of Pollution) Act, 1981
- The Water (Prevention and Control of Pollution) Act, 1974
- The Environment Protection Act, 1986
- The Hazardous Waste Management Regulations, etc.
These important environment legislations have been briefly explained in the succeeding paragraphs.
The National Green Tribunal Act, 2010
The National Green Tribunal Act, 2010 (No. 19 of 2010) (NGT Act) has been enacted with the objectives to provide for establishment of a National Green Tribunal (NGT) for the effective and expeditious disposal of cases relating to environment protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.
The Act received the assent of the President of India on June 2, 2010, and was enforced by the Central Government vide Notification no. S.O. 2569(E) dated October 18, 2010, with effect from October 18, 2010. The Act envisages establishment of NGT in order to deal with all environmental laws relating to air and water pollution, the Environment Protection Act, the Forest Conservation Act and the Biodiversity Act as have been set out in Schedule I of the NGT Act.
Consequent to enforcement of the National Green Tribunal Act, 2010, the National Environment Tribunal Act, 1995 and the National Environment Appellate Authority Act, 1997 stand repealed. The National Environment Appellate Authority established under s 3(1) of the National Environment Appellate Authority Act, 1997stands dissolved, in view of the establishment of the National Green Tribunal under the National Green Tribunal Act, 2010 vide Notification no. S.O. 2570(E) dated October 18, 2010.
The Air (Prevention and Control of Pollution) Act, 1981
The Air (Prevention and Control of Pollution) Act, 1981 (the "Air Act") is an act to provide for the prevention, control and abatement of air pollution and for the establishment of Boards at the Central and State levels with a view to carrying out the aforesaid purposes.
To counter the problems associated with air pollution, ambient air quality standards were established under the Air Act. The Air Act seeks to combat air pollution by prohibiting the use of polluting fuels and substances, as well as by regulating appliances that give rise to air pollution. The Air Act empowers the State Government, after consultation with the SPCBs, to declare any area or areas within the Sate as air pollution control area or areas. Under the Act, establishing or operating any industrial plant in the pollution control area requires consent from SPCBs. SPCBs are also expected to test the air in air pollution control areas, inspect pollution control equipment, and manufacturing processes.
The Water (Prevention and Control of Pollution) Act, 1974
The Water Prevention and Control of Pollution Act, 1974 (the "Water Act") has been enacted to provide for the prevention and control of water pollution and to maintain or restore wholesomeness of water in the country. It further provides for the establishment of Boards for the prevention and control of water pollution with a view to carry out the aforesaid purposes. The Water Act prohibits the discharge of pollutants into water bodies beyond a given standard, and lays down penalties for non-compliance. At the Centre, the Water Act has set up the CPCB which lays down standards for the prevention and control of water pollution. At the State level, SPCBs function under the direction of the CPCB and the State Government.
Further, the Water (Prevention and Control of Pollution) Cess Act was enacted in 1977 to provide for the levy and collection of a cess on water consumed by persons operating and carrying on certain types of industrial activities. This cess is collected with a view to augment the resources of the Central Board and the State Boards for the prevention and control of water pollution constituted under the Water (Prevention and Control of Pollution) Act, 1974. The Act was last amended in 2003.
The Environment Protection Act, 1986
The Environment Protection Act, 1986 (the "Environment Act") provides for the protection and improvement of environment. The Environment Protection Act establishes the framework for studying, planning and implementing long-term requirements of environmental safety and laying down a system of speedy and adequate response to situations threatening the environment. It is an umbrella legislation designed to provide a framework for the coordination of central and state authorities established under the Water Act, 1974 and the Air Act. The term "environment" is understood in a very wide term under s 2(a) of the Environment Act. It includes water, air and land as well as the interrelationship which exists between water, air and land, and human beings, other living creatures, plants, micro-organisms and property.
Under the Environment Act, the Central Government is empowered to take measures necessary to protect and improve the quality of environment by setting standards for emissions and discharges of pollution in the atmosphere by any person carrying on an industry or activity; regulating the location of industries; management of hazardous wastes, and protection of public health and welfare. From time to time, the Central Government issues notifications under the Environment Act for the protection of ecologically-sensitive areas or issues guidelines for matters under the Environment Act.
In case of any non-compliance or contravention of the Environment Act, or of the rules or directions under the said Act, the violator will be punishable with imprisonment up to five years or with fine up to Rs 1,00,000, or with both. In case of continuation of such violation, an additional fine of up to Rs 5,000 for every day during which such failure or contravention continues after the conviction for the first such failure or contravention, will be levied. Further, if the violation continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years.
Hazardous Wastes Management Regulations
Hazardous waste means any waste which, by reason of any of its physical, chemical, reactive, toxic, flammable, explosive or corrosive characteristics, causes danger or is likely to cause danger to health or environment, whether alone or when in contact with other wastes or substances.
There are several legislations that directly or indirectly deal with hazardous waste management. The relevant legislations are the Factories Act, 1948, the Public Liability Insurance Act, 1991, the National Environment Tribunal Act, 1995 and rules and notifications under the Environmental Act. Some of the rules dealing with hazardous waste management are discussed below:
Hazardous Wastes (Management, Handling and Transboundary) Rules, 2008, brought out a guide for manufacture, storage and import of hazardous chemicals and for management of hazardous wastes.
Biomedical Waste (Management and Handling) Rules, 1998, were formulated along parallel lines, for proper disposal, segregation, transport, etc, of infectious wastes.
Municipal Solid Wastes (Management and Handling) Rules, 2000, aim at enabling municipalities to dispose municipal solid waste in a scientific manner.
In view of the short-comings and overlapping of some categories causing inconvenience in implementation of the Biomedical Waste (Management and Handling) Rules, 1998 as well as the Municipal Solid Wastes (Management and Handling) Rules, 2000, the Ministry of Environment, Forest and Climate Change has formulated the draft Bio-Medical Waste (Management & Handling) Rules, 2015 (Draft BMW Rules) and the draft Solid Waste Management Rules, 2015 (Draft SWM Rules) and sought comments on the draft Rules.
The Draft BMW Rules are to replace the Biomedical Waste (Management and Handling) Rules, 1998, and the Draft SWM Rules are to replace the Municipal Solid Waste (Management and Handling) Rules, 2000. The objective of the Draft BMW Rules is to enable the prescribed authorities to implement the rules more effectively, thereby, reducing the bio- medical waste generation and also for its proper treatment and disposal and to ensure environmentally sound management of these wastes, and the Draft SWM Rules aim at dealing with the management of solid waste including it segregation at source, transportation of waste, treatment and final disposal.
E - Waste (Management and Handling) Rules, 2011 have been notified on May 1, 2011 and came into effect from May 1, 2012, with primary objective to reduce the use of hazardous substances in electrical and electronic equipment by specifying threshold for use of hazardous material and to channelize the e-waste generated in the country for environmentally sound recycling. The Rules apply to every producer, consumer or bulk consumer, collection centre, dismantler and recycler of e-waste involved in the manufacture, sale, purchase and processing of electrical and electronic equipment or components as detailed in the Rules.
Batteries (Management & Handling) Rules, 2001 deal with the proper and effective management and handling of lead acid batteries waste. The Act requires all manufacturers, assemblers, re-conditioners, importers, dealers, auctioneers, bulk consumers, consumers, involved in manufacture, processing, sale, purchase and use of batteries or components thereof, to comply with the provisions of Batteries (Management & Handling) Rules, 2001.
Other Laws Relating to Environment
In addition, there are many other laws relating to environment, namely –
The Wildlife Protection Act, 1972
The Wild Life (Protection) Act, 1972 was enacted with the objective of effectively protecting the wild life of this country and to control poaching, smuggling and illegal trade in wildlife and its derivatives. The Act was amended in January 2003 and punishment and penalty for offences under the Act have been made more stringent. The Ministry has proposed further amendments in the law by introducing more rigid measures to strengthen the Act. The objective is to provide protection to the listed endangered flora and fauna and ecologically important protected areas.
The Forest Conservation Act, 1980
The Forest Conservation Act, 1980 was enacted to help conserve the country's forests. It strictly restricts and regulates the de-reservation of forests or use of forest land for non-forest purposes without the prior approval of Central Government. To this end the Act lays down the pre-requisites for the diversion of forest land for non-forest purposes.
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, recognises the rights of forest-dwelling Scheduled Tribes and other traditional forest dwellers over the forest areas inhabited by them and provides a framework for according the same.
The Indian Forest Act, 1927 consolidates the law relating to forests, the transit of forest-produce and the duty leviable on timber and other forest-produce.
Public Liability Insurance Act, 1991
The Public Liability Insurance Act, 1991 was enacted with the objectives to provide for damages to victims of an accident which occurs as a result of handling any hazardous substance. The Act applies to all owners associated with the production or handling of any hazardous chemicals.)
The Biological Diversity Act, 2002
The Biological Diversity Act 2002 was born out of India's attempt to realise the objectives enshrined in the United Nations Convention on Biological Diversity (CBD), 1992 which recognises the sovereign rights of states to use their own Biological Resources. The Act aims at the conservation of biological resources and associated knowledge as well as facilitating access to them in a sustainable manner. The National Biodiversity Authority in Chennai has been established for the purposes of implementing the objects of the Act.
Coastal Regulation Zone Notification
The Ministry of Environment and Forests had issued the Coastal Regulation Zone Notification vide Notification no. S O. 19(E), dated January 06, 2011 with an objective to ensure livelihood security to the fishing communities and other local communities living in the coastal areas, to conserve and protect coastal stretches and to promote development in a sustainable manner based on scientific principles, taking into account the dangers of natural hazards in the coastal areas and sea level rise due to global warming.
The various provisions and laws in India relating to protection of environment. We are surviving because of environment and it is our duty to protect it along with maintenance of Sustainable Development.
Environmental Laws and Constitutional Provisions In India
It is interesting to note that natural resources had been stored virtually untouched in the Earth for millions of years. But since the start of the industrial revolution vast amounts of these resources had been exploited within a period of just a couple of hundreds of years at unimaginable rates, with all the waste from this exploitation going straight in the environment (air, water, land) and seriously damaging its natural processes. Although pollution had been known to exist for a very long time (at least since people started using fire thousands of years ago), it had seen the growth of truly global proportions only since the onset of the industrial revolution during the 19th century.
Environmental degradation in India has been caused by a variety of social, economic, institutional and technological factors. Rapidly growing population, urbanization and industrial activities have all resulted in considerable deterioration in the quality and sustainability of the environment. Environmental ethics have also formed an inherent part of Indian religious precepts and philosophy.
The importance of Judiciary in a democratic setup for protection of life and personal rights can hardly be overestimated. India has a highly developed judicial system with the Supreme Court having plenary powers to make any order for doing complete justice in any cause or matter and a mandate in the Constitution, to all authorities, Civil and Judicial, in the territory of India to act in aide of the Supreme Court. The scope of Writ Jurisdiction of the High Courts is wiser than traditionally understood and the judiciary is separate and independent of the executive to ensure impartiality in administration of justice.
In considering the role of the judiciary in environmental governance, there are two issues that need to be considered. The first is the role the judiciary in the interpretation of environmental law and in law making and the second is the capability of jurists to effectively interpret the increasingly cross-linked issues brought to their attention.
Historical Overview:
The Environment Protection Act 1986 defines the environment as.
“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.”
Besides the physical and biological aspect, the “environment” embraces the social, economic, cultural, religious, and several other aspects as well. The environment, thus, is an amalgamation of various factors surroundings an organism that interact not only with the organism but also among themselves. It means the aggregation of all the external conditions and influences affecting life and development of organs of human beings, animals and plants.
Policy and Laws in Ancient India:
In the ancient India, protection and cleaning up of environment was the essence of the Vedic culture. The conservation of the environment formed an ardent article of faith, reflected in the daily lives of the people and also enshrined in myth folklore, art, culture and religion. In Hindu theology forests, trees and wildlife protection held a place of special reference.
Policy and Laws in British India
BY AROUND 1860, Britain had emerged as the world leader in deforestation, devastation its own woods and the forest of Ireland, South Africa and north eastern United States to draw timber for shipbuilding, iron-smelting and farming. In the early nineteenth century, the Raj carried out a fierce onslaught on the sub continent’s forests. The revenue orientation of the colonial land policy also worked towards the denunciation of forests.
The imperial forest department was formed in1864, with the help of experts from Germany, the country which was at the time the leading European nation in forest management. The first inspector-general of forests, Dietrich Brandish, had been a botanist and recognise awesome task of checking the deforestation, forging legal mechanism to assert and safeguard states control over the forests. it was his dual sense that the railway constituted the crucial watershed with respect to the water management in India- the need was felt to start an appropriate department, and for its effective functioning legislation was required to curtail the previously untouched access enjoyed by the rural communities.
Policy and Laws post-independence of India:
The Indian Constitution, as adopted in 1950, did not deal with that the subject of environment or prevention and control of pollution as such (until 1976 Amendment). The original text of the constitution under Article 372(1) has incorporated the earlier existing laws into the present legal system and provides that notwithstanding the repeal by this constitution of enactment referred to in article 397, but subjected to the other provisions of the constitution, all laws in force immediately before the commencement of the constitution shall remained in force until altered, repealed or amended by a competent legislature or other competent authority. As a result, even after five decade of independence. The plethora of such laws is still in operation without any significant changes in them.
The Principles on environment
With a view to protecting and improving the environment, different legislations have been made and different regulations, rules have been issued. The Government of India, through its Ministry of Environment and Forests is administering has enacted nationwide comprehensive laws.
1972 Stockholm Declaration affirms that "Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations..." This shows that it has been internationally recognized that man's fundamental rights embraces the need to live in an uncontaminated environment but it also puts forth man's obligation to protect the environment for posterity.
The Supreme Court has laid down that the "Precautionary principle" and the "Polluter Pays Principle" are essential features of "sustainable development". These concepts are part of Environment Law of the country.
The "Precautionary Principle" establishes that a lack of information does not justify the absence of management measures. On the contrary, management measures should be established in order to maintain the conservation of the resources. The assumptions and methods used for the determination of the scientific basis of the management should be presented.
The essential ingredients of the precautionary principle are:
- Environmental measures- by the state government and the statutory authorities- must anticipate, prevent and attack the causes of environment degradation.
- When there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measure to prevent environmental degradation.
- The “Onus of Proof” is on the actor or the developer/industrialist to show that his action is environmentally benign.
- Precautionary duties must not only be triggered by the suspicion of concrete danger but also by concern or risk potential.
In M.C. Mehta v Union of India (CNG Vehicle Case) (AIR 2002 SC 1696)
The supreme court observed that any ‘auto-policy’ framed by the Government must, therefore, of necessity conform to the constitutional principles well as overriding statutory duties cast upon the government under the EPA. The auto policy must adopt a ‘precautionary principles’ and make informed recommendations which balance the needs of transportation with the need to protect the environment.
The “polluter pays” principle came about in the 1970's when the importance of the environment and its protection was taken in world over. It was subsequently promoted by the Organization for Economic Cooperation and development (OECD). The ‘polluter pays' principle as interpreted by the Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation.
In other words, Polluter should bear the cost of pollution as the polluter is responsible for pollution’. The principle demands that financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause pollution.
It may be noted that the polluter pays principle evolved out of the rule of ‘absolute liability’ as laid down by the apex court in Sriram Gas Leak Case.
Sustainable Development
Sustainable Development means an integration of development and environment imperative it means development in harmony with environmental consideration. To be sustainable, development must possess both economic and ecological sustainability. It is a development process where exploitation of resources, direction of investment, orientation of technology development and institutional changes are all in harmony. Sustainable development also implies local control over the resource use, and is the only path for conserving and promoting socio-economic wellbeing in a democratic form.
'eco-development’ is a related concept. It is a process of ecologically sound development, of positive management of environment for human benefits. For example banning tree felling in reserve forests and permitting harvesting of minor forest products by rural poor and tribal; development of community or common lands for rural subsistence needs of industries, towns and villages. These are the components of the “new development strategies”. The component of eco-developmental so includes alternative development strategies; biogas, substitute for natural resources, social forestry, micro irrigation and recycling of waste to prevent pollution.
Vellore Citizens Case:
In a landmark judgment where the principle of sustainable development has been adopted by the Supreme Court as a balancing concept while rejecting the old notion that development and environmental protection cannot go together, the apex court held the view that sustainable development has now come to be accepted as “a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystem.” Thus, pollution created as a consequence of development must be commensurate with the carrying capacity of our ecosystem.
FACTS - In this case, certain tanneries in the State of Tamil Nadu were discharging untreated effluent into agricultural fields, roadsides, waterways as open lands. The untreated effluent finally discharges in the river which has the main source of water supply to the residence of Vellore. The Supreme Court issued comprehensive directions for maintaining the standards stipulated by the Pollution Control Board.
Observations
The Supreme Court Observe that the “precautionary principle” and the “polluter pays principle” are part of the Environment law of the country. These principles are essential features of “Sustainable Development.” The “precautionary principle” in the context of the municipal law means:
- Environmental measures by the State Government and the statutory authorities – must anticipate, prevent and attack the cause of the environmental degradation
- Where there are threats of serious irreversible damages, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
- The “onus of proof “in on the actor /industrialist to show that his action is environmentally benign.
Decision
The Supreme Court directed the Central government to constitute an authority under sec. 3 of the Environment Act, 1986 and confer on the said authority all the powers necessary to deal with the situation created by the powers necessary to deal with the situation created by the tanneries and other polluting industries in the State of Tamil Nadu. The authority (headed by retired judge of the High Court) shall implement the precautionary and polluter pays principles. The authority should compute the compensation under two heads, namely, for reserving the ecology and for the payment to individuals.
The Constitutional and Legislative measures – The Constitution of India and Environment.
To protect and improve the environment is a constitutional mandate. It is the commitment for a country wedded to the ideas of a welfare State. The Indian constitution contains specific provisions for environmental protection under the chapters of Directive Principles of the State Policy and Fundamental Duties. The absence of any specific provision in the Constitution recognising the fundamental right to a (clean and wholesome) environment has been set off by judicial activism in recent times.
Article 48A and 51 (A)(g)
A global adaption consciousness for the protection of the environment in the seventies prompted the Indian Government to enact the 42nd Amendment (1976) to the Constitution. The said amendment added Art. 48A to the Directive Principles of State Policy. It Declares:-
“The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country”.
A similar responsibility imposed upon every citizen in the form of Fundamental Duty –
Article 51(A) (g)
“To protect and improve the natural environment including forest, lakes, rivers, and wildlife, and to have compassion for living creatures”.
The amendments also introduced certain changes in the Seventh Schedule of the Constitution. ‘Forest’ and ‘Wildlife’ were transferred from the State List to the Concurrent List. This shows the concern of Indian parliamentarians to give priority to environment protection by bringing it out the national agenda. Although unenforceable by a court, the Directive Principles are increasingly being cited by judges as complementary to the fundamental rights. In several environmental cases, the courts have been guided by the language of Art. 48A. and interpret it as imposing “an obligation” on the government, including courts, to protect the environment.
In L.K Kollwal V State of Rajasthan, a simple writ petition by citizens of Jaipur compelled the municipal authorities to provide adequate sanitation. The court observes that when every citizen owes a constitutional duty to protect the environment (Art.51A), the citizen must be also entitled to enlist the court’s aid in enforcing that duty against recalcitrant State agencies. The Court gave the administration six month to clean up the entire city and dismissed the plea of lack of funds and staff.
The Public Trust Doctrine evolved in M.C. Mehta v. Kamal Nath, states that certain common properties such as rivers, forests, seashores and the air were held by Government in Trusteeship for the free and unimpeded use of the general public. Granting lease to a motel located at the bank of the River Beas would interfere with the natural flow of the water and that the State Government had breached the public trust doctrine.
A matter regarding the vehicular pollution in Delhi city, in the context of Art 47 and 48 of the Constitution came up for consideration in M.C. Mehta vs. Union of India (Vehicular Pollution Case). It was held to be the duty of the Government to see that the air did not become contaminated due to vehicular pollution. The Apex court again confirming the right to healthy environment as a basic human right stated that the right to clean air also stemmed from Art 21 which referred to right to life. This case has served to be a major landmark because of which lead-free petrol supply was introduced in Delhi. There was a complete phasing out old commercial vehicles more than 5 years old as directed by the courts. Delhi owes its present climatic conditions to the attempt made to maintain clean air.
The Ganga Water Pollution case: M C Mehta V. Union of India, AIR 1988, SC 1037
The owners of some tanneries near Kanpur were discharging their effluents from their factories in Ganga without setting up primary treatment plants. The Supreme Court held that the financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. The Court directed to stop the running of these tanneries and also not to let out trade effluents from the tanneries either directly or indirectly into the river Ganga without subjecting the trade effluents to a permanent process by setting up primary treatment
In the very recent case of T.N. Godavarman Thirumulpad v. Union of India, a case concerning conservation of forests, Justice Y.K. Sabharwal, held: Considering the compulsions of the States and the depletion of forest, legislative measures have shifted the responsibility from States to the Centre. Moreover any threat to the ecology can lead to violation of the right of enjoyment of healthy life guaranteed under Art 21, which is required to be protected. The Constitution enjoins upon this Court a duty to protect the environment.
Article 246
Art.246 of the Constitution divides the subject areas of legislation between the Union and the States. The Union List (List I) includes defence, foreign affairs, atomic energy, intestate transportation, shipping, air trafficking, oilfields, mines and inter-state rivers. The State List (List II) includes public health and sanitation, agriculture, water supplies, irrigation and drainage, fisheries. The Concurrent list (List III) (under which both State and the Union can legislate) includes forests, protection of wildlife, mines and minerals and development not covered in the Union List, population control and factories. From an environmental standpoint, the allocation of legislative authority is an important one – some environmental problem such as sanitation and waste disposal, are best tackled at the local level; others, like water pollution and wildlife protection, are better regulated uniform national laws.
Article 253
Art.253 of the Constitution empowers Parliament to make laws implementing India’s international obligations as well as any decision made at an international conference, association or other body. Art.253 states: Notwithstanding anything in the foregoing provision provisions of this chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. The Tiwari Committee in 1980 recommended that a new entry on “environmental Protection” be introduced in the concurrent list to enable the centre to legislate on environmental subjects, as there was no direst entry in the 7th seventh enables Parliament to enact comprehensive environment laws. The recommendation, however, did to consider parliament’s power under Art.253
Article 14 and Article 19 (1) (g)
ART. 14 states: “The states shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’’ The right to equality may also be infringed by government decisions that have an impact on the environment. An arbitrary action must necessary involve a negation of equality, thus urban environmental groups often resort to Art.14 to quash arbitrary municipal permission for construction that are contrary to development regulations.
Article 21
(Right to Wholesome Environment)
"No person shall be deprived of his life or personal liberty except according procedure established by law."
In Maneka Gandhi v Union of India, the Supreme Court while elucidating on the importance of the ‘right to life’ under Art. 21 held that the right to life is not confined to mere animal existence, but extends to the right to live with the basic human dignity (Bhagwati J.)
Similarly while interpreting Art.21 in Ganga Pollution Case as discussed before, Justice Singh justified the closure of polluting tanneries observed: "we are conscious that closure of tanneries may bring unemployment, loss of revenue, but life. Health and ecology have greater importance to the people."
Environmental Laws In India
THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT 1974
The Act prohibits the discharge of pollutants into water bodies beyond a given standard and lays down penalties for non-compliance with its provisions.
It set up the Central Pollution Control Board (CPCB) which lays down standard for the prevention and control of water pollution. At the state level, the State Pollution Control Board (SPCB) functions under the direction of CPCB.
The functions of CPCB have been laid down in section 16 whereas the functions of SPCB has been laid down in section 17.
The sampling of effluents for test has been laid down in section 21.
In Delhi Bottling Co. Pvt. Ltd. V. CPCB, AIR 1986 Del 152, it was found that the representatives of board got the samples analysed from a non-recognized laboratory by the state. The court held that since section 21 was not complied upon, the test results were inadmissible as evidence.
The Air (Prevention And Control Of Pollution Act, 1981)
To implement the decision taken in the Stockholm Conference, the Parliament enacted the Air Act under Article 253.
It controls mainly air pollution and its abatement. Also establishes air quality standards.
The Central and State Boards set up under section 16 and 17 independently notify emission standards.
Every industrial operator within a declared air pollution area, must obtain a permit from the State Board (Sec-21(1) and (2)).
Within four months from the date of application for the permit, the board must complete the formalities – either grant or refuse consent.
Power of the Boards:
- Power of entry and inspection
- Power to take samples
- Power to give directions
Other important laws:
- 1927 - The Indian Forest Act and Amendment, 1984, is one of the many surviving colonial statutes. It was enacted to ‘consolidate the law related to forest, the transit of forest produce, and the duty leviable on timber and other forest produce’.
- 1948 – The Factories Act and Amendment in 1987 was the first to express concern for the working environment of the workers. The amendment of 1987 has sharpened its environmental focus and expanded its application to hazardous processes.
- 1986 - The Environment (Protection) Act authorizes the central government to protect and improve environmental quality, control and reduce pollution from all sources, and prohibit or restrict the setting and /or operation of any industrial facility on environmental grounds.
- 1989 - The objective of Hazardous Waste (Management and Handling) Rules is to control the generation, collection, treatment, import, storage, and handling of hazardous waste.
- 1991 - The Public Liability Insurance Act and Rules and Amendment, 1992 was drawn up to provide for public liability insurance for the purpose of providing immediate relief to the persons affected by accident while handling any hazardous substance.
- 2000 - The Municipal Solid Wastes (Management and Handling) Rules, apply to every municipal authority responsible for the collection, segregation, storage, transportation, processing, and disposal of municipal solid wastes.
- 2002 - The Noise Pollution (Regulation and Control) (Amendment) Rules lay down such terms and conditions as are necessary to reduce noise pollution, permit the use of loudspeakers or public address systems during night hours (between 10:00 p.m. to 12:00 midnight) on or during any cultural or religious festive occasion.
Writs And PILs For Safeguarding The Environment
A writ petition can be filed to the Supreme Court under Art.32 and the High Court under Art.226, in the case of a violation of a fundamental right. Since the right to a wholesome environment has been recognised as an implied fundamental rights, the writ petitions are often restorted to in environment cases. Generally, the writs of Mandamus, Certiorari and Prohibition are used in environmental matters. For instance, a Mandamus (a writ to command action by a public authority when an authority id vested with power and wrongfully refuses to exercise it ) would lie against a municipality that fails to construct sewers and drains, clean street and clear garbage (Rampal v State of Rajasthan) likewise, a state pollution control board may be compelled to take action against an industry discharging pollutants beyond the permissible level.
The writs of certiorari and prohibition are issued when an authority acts in excess of jurisdiction, acts in violation of the rules of natural justice, acts under a law which is unconstitutional, commits an error apparent on the face of the record, etc. For instance, a writ of certiorari will lie against a municipal authority that consider a builder’s applications and permits construction contrary to development riles e.g. wrongfully sanctions an office building in an area reserve for a garden. Similarly, against water pollution control board that wrongly permits an industry to discharge effluents beyond prescribe levels.
A writ of Certiorari will lie against a municipal authority that permits construction contrary to development rules or acts in excess of jurisdiction or in violation of rules of natural justice for instance wrongly sanctioning an office building in an area reserved for garden.
When a fundamental right, which includes right to wholesome environment is violated Art. 32 and 226 provide appropriate remedy.
In E.Sampath Kumar v. Government of Tamil Nadu, 1998, AIHC 4498
The party an individual was troubled by the excessive noise pollution and vibrations caused by electrical motors, diesel engines, and generator used by a Hotel. The high court held that an affected person can maintain a writ petition while rejecting the hotel owner’s plea that a civil suit would be proper remedy.
Public interest litigation describes legal actions brought to protect or enforce rights enjoyed by members of the public or large parts of it.
In a public interest case, the subject matter of litigation is typically a grievances against the violation of basic human rights of the poor and helpless or about or about the content or conduct of government policy this litigation is not strictly adversarial (in a adversarial procedure, each party produces his own evidence tested by cross-examination by other side) and in it a judge play a large role in organising and shaping the litigation and in supervising the implementation of relief.
Since the 1980s public interest litigation (PIL) has altered both the litigation landscape and the role of the higher judiciary in India. Supreme Court and High Court judges were asked to deal with public grievances over flagrant human rights violations by the state or to vindicate the public policies embodied in statutes or constitutional provisions. This new type of judicial business is collectively called public interest litigation.
In Ramdas Shenoy v The Chief Officer, Town Municipal Council , Udipi a rate tax payer’s right to challenge an illegal sanction to convert a building into a cinema was upheld by Supreme Court.
In Mahesh R Desai V. Union of India, a journalist complained to the Supreme Court that the national coastline was being sullied by unplanned development that violated a Central Government directive. The Supreme Court registered the letter as a petition, requested the court’s legal aid committee to appoint a lawyer for the petition and issued notice to the Union Government and the government of the all States.
Taj Mahal Case:
In Taj Mahal's case (M C Mehta V. Union of India, AIR 1997, SC 734), the Supreme Court issued directions that coal and coke based industries in Taj Trapezium (TTZ) which were damaging Taj should either change over to natural gas or to be relocated outside TTZ. Again the Supreme Court directed to protect the plants planted around Taj by the Forest Department as under:
The Divisional Forest Officer, Agra is directed to take immediate steps for seeing that water is supplied to the plants... The Union Government is directed to release the funds immediately without waiting for receipt of the proposal from the U.P. Government on the basis of the copy of the report. Funding may be subsequently settled with the U.P. Government, but in any set of circumstances for want of funds the officer is directed to see that plants do not wither away.
The Court held that 292 industries located and operating in Agra must changeover within fixed time schedule to natural gas as industrial fuel or stop functioning with coke /coal and get relocated. The industries not applying for gas or relocated are to stop functioning with coke/coal from 30-04-97. The Shifting industries shall be given incentives in terms of the provisions of Agra Master Plan and also the incentive normally extended to the new industrial units.
The integration of the international principles of environmental law into the Indian legal framework is an important consequence of the emergence of Public Interest Litigation in the realm of environmental law. (Razzaque, 2004) In fact, the application and re-interpretation of international legal principles in the Indian context reflect a greater concern with making hazardous industrial enterprises responsible towards environmental concerns. In M C Mehta v Union of India the Supreme Court extends the principle of strict liability drawing from the Rylands v Fletchers case in English law to formulate a principle of absolute liability whereby an enterprise carrying out a hazardous activity is “absolutely liable” to compensate for any harm arising from such activity. The principle of strict liability in English common law states that “a person will be strict liable when he brings or accumulates on his land something likely to cause harm if it escapes, and damage arises as a natural consequence of its escape.”(Razzaque, 2004: 210) However, in formulating a principle of absolute liability, the Court contends that such liability is not subject to any of the exceptions“ under the rule in Rylands v Fletcher.”
The Bhopal Gas Leak Case
The Bhopal disaster raised complex legal questions about the liability of parent companies for the acts of their subsidiaries, the responsibilities of multinational corporations engaged in hazardous activities, the transfer of hazardous technologies and the applicable principles of liability. Bhopal was inspirational factor for the judicial innovation in the area of evolving principles of corporate liability for use of hazardous technology.
On December 3, 1984,highly toxic methyl isocyanides (MIC), which had been manufactured and stored in Union Carbide’s chemical plant in Bhopal, escaped into the atmosphere and killed over 3,500 people and seriously injured about 2 lakh people.
The Bhopal gas leak disaster (Processing of Claims) Act, 1985 was passed by parliament to ensure that the claims arising out of the Bhopal disaster were dealt with speedily, effectively, equitably and to the best advantage of the claimants.
High Court Judgment:
Justice Seth used English Rules of procedure to create an entitlement to interim compensation (i.e. it is permissible for courts to grant relief of interim payment under the substantive law of torts). Under the English rules, interim relief granted in personal injury cases if a prima facie case is made out. He said that “more than prima facie case have been made out” against the Carbide.
He observed that the principle of absolute liability without exceptions laid down in M.C. Mehta case applied more vigorously to the Bhopal suit. He holds that Carbide is financially a viable corporation with $ 6.5 billion unencumbered asset and $200millions encumbered assets plus an insurance which could cover up to $250millions worth of damages. Given carbide’s resources, it is eminently just that it meet a part of its liability by interim compensation (Rs.250cr.)
In Union Carbide Corporation v Union of India (AIR 1990 SC 273), the Supreme Court secured a compromise between the UCC and Government of India. Under the settlement, UCC agreed to pay US $470 million in full and final settlement of all past, present and future claims arising from the Bhopal disaster. In addition to facilitate the settlement, the Supreme Court exercised its extraordinary jurisdiction and terminated all the civil, criminal and contempt of court proceedings that had arisen out of the Bhopal disaster. It was declared by the court that if the settlement fund is exhausted, the Union of India should make good the deficiency.
Review petition under Art.137 and writ petitions under Art.32 of the Constitution of India were filed questioning the constitutional and under the Bhopal Act (providing for the registration and processing of claims) and the resultant categorization of the victims was also upheld. It was laid down that there is no need to tie down the tortfeasor to future liability [UCC v UOI AIR 1992 SC 248].
Criminal Liability of Carbide Officials:
In UCC v UOI (AIR 1992 SC 248), the supreme court reinstate criminal charges for homicide not amounting to murder’ (Sec. 304,Part II, IPC) against top executives at Union Carbide( viz. nine UCIL employees and three foreign accused, including Warren Anderson, the CEO) while uploading the rest of the settlement. The CBI in December 1993 finally prepared the documents necessary to extradite Warren Anderson.
Conclusion:
The powers vested to the Pollution Control Boards are not enough to prevent pollution. The Boards do not have power to punish the violators but can launch prosecution against them in the Courts which ultimately defeat the purpose and object of the Environmental Laws due to long delays in deciding the cases. Thus, it is imperatively necessary to give more powers to the Boards.
What we need is social awareness from below, not laws from the above. No law works out smoothly unless the interaction is voluntary. In order to educate people about the environmental issues, there should be exhibition of slides in the regional languages at cinema houses and television free of cost. Further, as directed by the Supreme Court of India in M C Mehta Case (M C Mehta V Union of India 1992, SC 382) school and college levels in graded system so that there should be general growth of awareness.
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