Author: Shrankhala Parwar, School of Law, DAVV, Indore.
Environmental Law– Principles and Policies in India
Environment policies of the Government of India includes legislations related to environment. In the Directive Principles of State Policy, Article 48(a) says “the state shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country”; Article 51-A states that “it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures.”
India is one of the parties of the Convention on Biological Diversity (CBD) treaty. Prior to the CBD, India had different laws to govern the environment. The Indian Wildlife Protection Act 1972 protected biodiversity. It was amended later multiple times. The 1988 National Forest Policy had conservation as its fundamental principle. In addition to these acts, the government passed the Environment (Protection) Act 1986 and Foreign Trade (Development and Regulation) Act 1992 for control of biodiversity.
ENVIRONMENTAL LAWS IN INDIA
Notably, the government has passed various legislations to curb the damage caused to the environment such as the Environmental Protection Act, 1986, Forest Conservation Act, 1980, Water Prevention and Control of Pollution Act, 1974, Biological Diversity Act, 2002, Public Liability Insurance Act 1889 and National Green Tribunal Act, 2010.
According to Article 48 (A) of the Indian Constitution, the state shall try to protect and improve the environment. It should also endeavor to safeguard forests and wildlife of the country.
According to Article 51(A) (g) of the Indian Constitution, every citizen of India has a fundamental duty to protect and improve the natural environment including forest, lakes, rivers, and wildlife and should have compassion for living creatures.
Important Climate Change Laws in India
The Environmental Protection Act of 1986 is the most important legislation with respect to climate changes in India. The Act confers power on the Central and State government for the purpose of – First, protecting and improving the quality of the environment. Second, preventing and abating environmental pollution.
The Air Prevention and Control of Pollution Act of 1981 is innovative legislation that lets the State regulate the standard for emission of air pollutants. The Act empowers the State to inspect any factory and check any control equipment and manufacturing process. It further allows the State to take the necessary steps for the control of air pollution. No industry can operate without meeting the requirements mentioned in this act.
The National Green Tribunal Act of 2010 was enacted to govern the National Green Tribunal. These Tribunals were established to ensure the fast and effective disposal of cases that relate to the protection of the environment. These tribunals also have jurisdiction over cases where a substantial question relating to the environment arises.
The Energy Conservation Act of 2001 was enacted to provide a legal framework for the efficient use of energy. It does this by ensuring that only energy efficient equipment is provided to consumers and by providing a comprehensive framework for power development.
The Forest Conservation Act of 1980 was enacted to conserve and protect the existing forests in India. After the enactment of this act, all forests became the reserved property of the government. The act also provides a compensatory measure to be taken when any reserved forest is directed to non- forest purposes.
The Water Prevention and Control of Pollution Act of 1977 was enacted to prevent pollution of water through agricultural, industrial and household waste. The act also regulates the cess paid on the consumption of water.
The Wildlife Protection Act of 2002 was enacted to protect wildlife within the borders of India. The act has three main objectives – First, to establish uniform legislation for wildlife.
Second, to establish a network of national parks and wildlife sanctuaries. Third, to regulate the illicit trade of wildlife and its products.
The Biological Diversity Act of 2002 was enacted for the conservation and sustainable use of biodiversity in the country. This act helps bring India one step closer to the objective of realizing the equitable sharing of its biodiversity.
Constitutional Interpretation of Environment:-
● The 42nd Amendment to the Constitution of India added Article 48A and 51A(g) which comes under the Directive Principle of State Policy and the Fundamental Duties respectively. The Supreme Court of India in “Sachidanand Pandey v. State of West Bengal AIR 1987 SC 1109” stated that the Court is bound to bear in mind the above said articles whenever a case related to Environmental problem is brought to the Court.
● Article 48A states: “The State shall endeavor to protect and improve the environment and to safeguard the forest and wildlife of the country.”
● Article 51A(g) imposes a duty upon every citizen of India to protect and improve the natural environment and confers the right to come before the Court for appropriate relief.
● The Apex Court in “Damodar Rao v. S.O. Municipal Corporation AIR 1987 AP 171” held that the environmental pollution and spoliation which is slowly poisoning and polluting the atmosphere should also be regarded as amounting to a violation of Article 21 of the Indian Constitution.
Public Liability and Public Nuisance:-
● “M.C. Mehta and Anr. Etc vs. Union Of India and Ors. Etc 1986 SCR (1) 312” discusses the concept of Public Liability. This case is also known as Oleum Leakage Case. It is a landmark judgment in which the principle of Absolute Liability was laid down by the Supreme Court of India. The Court held that the permission for carrying out any hazardous industry very close to human habitation could not be given and the industry was relocated.
● The instant case evolved the “Deep Pocket Principle”. This judgment guided the Parliament to add a new chapter to the Factory Act, 1948. The Public Liability Act was passed and the policy for the Abatement of Pollution Control was also established.
● When the Directive Principles of State Policy has clear statutory expressions then the Court will not allow Municipal Government to make fun of the Statutes by sitting idly. It was decided by the Supreme Court in the “Municipal Corporation, Ratlam vs. Vardhichand AIR 1980 SC 1622”. The plea of lack of funds will be poor alibi when people in misery cry for justice. The office in charge and even the elected representatives will have to face a penalty if they violate the constitutional and other statutory directives.
● The Bench of Justices PN Bhagwati and Ranganath Mishra in “Rural Litigation and Entitlement Kendra, Dehradun vs. State of Uttar Pradesh AIR 1987 SC 2187” introduced the concept of “Sustainable Development”.An NGO named RLEK filed a case against limestone quarrying in the valley in 1987.
● It was stated that the permanent assets of mankind are not to be exhausted in one generation. The natural resources should be used with requisite attention and care so that ecology and environment may not be affected in any serious way.
Environmental Impact Assessment
● Justice Jeevan Reddy in the landmark judgment of “Indian Council for Enviro-Legal Action vs. Union of India AIR 1999 SC 1502” held that the financial costs of preventing or remedying the damage caused by pollution should lie with the undertakings which cause the pollution by adopting the “Polluter Pays Principle”.
● The Court set a time limit for the coastal states to formulate coastal management plans and banned industrial or construction activity within 500 meters of the High Tide Line.
● The writ petition filed by the activist advocate M.C. Mehta in the Supreme Court highlighted the pollution of the Ganga river by the hazardous industries located on its banks. Justice ES Venkataramiah gave a historic judgment in “M.C. Mehta vs. Union of India AIR 1988 SCR (2) 538” ordering the closure of a number of polluting tanneries near Kanpur.
● In this judgment, it was observed that just like an industry that cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence.
● The Hon’ble Supreme Court in prohibited Jallikattu and other animal races and fights. It was observed that the Bulls cannot be performing animals in the case of the “Animal Welfare Board of India vs. A. Nagaraj and Ors. (2014) 7 SCC 547”.
● The court alluded to the section 3 and section 11 of the Prevention of Cruelty to Animals Act, 1960 and declared that animal fights incited by humans are illegal, even those carried out under the guise of tradition and culture. The Court listed various recommendations and overhauled the penalties and punishment in the Prevention of Cruelty to Animals Act, 1960 to function effectively.
● The pride of India and one of the wonders of the world i.e., the Taj Mahal, was facing threat due to high toxic emissions from Mathura Refineries, Iron Foundries, Glass and other chemical industries. The acid rain was a serious threat to the Taj Mahal a 255 other historic monuments within the Taj Trapezium.
● The Apex Court in “M.C. Mehta vs. Union of India (Taj Trapezium Case) AIR 1987” delivered its historic judgment in 1996 giving various directions including banning the use of coal and cake and directing the industries to Compressed Natural Gas (CNG).
Environmental Awareness and Education Case
● The Supreme Court in “M.C. Mehta vs. Union of India WP 860/1991” ordered the Cinema theatres all over the country to exhibit two slides free of cost on the environment in each show. Their licenses will be canceled if they fail to do so. The Television network in the country will give 5 to 7 minutes to televise programs on the environment apart from giving a regular weekly program on the environment.
● Environment has become a compulsory subject up to 12th standard from academic session 1992 and University Grants Commission will also introduce this subject in higher classes in different Universities.
Wildlife and Forest Protection Case
● The livelihood of forest dwellers in the Nilgiri region of Tamil Nadu was affected by the destruction of forests. The Supreme Court in “TN Godavarman Thirumulpad vs. Union of India and Ors.” passed a series of directions since 1995, till the final judgment in 2014.
● The Apex Court decided to set up a Compensatory Afforestation Funds Management and Planning Authority (CAMPA) to monitor the afforestation efforts, to oversee th compensation who suffered on account of deforestation, and to accelerate activities for preservation of natural forests.
● A writ petition was filed by the Tarun Bharat Sangh in the Supreme Court to stop mining activities in the Sariska Wildlife Sanctuary. The Court in the case of “The Tarun Bharat Sangh vs. Union of India and Ors. (1991)” banned all the mining activities in the Sanctuary.
Public Trust and Right to Life
● The Bench of Justices Kuldip Singh and Sagir Ahmed held that the Government violated the Doctrine of Public Trust in “M.C. Mehta vs. Kamal Nath and Ors. (1996)”. The Himachal Pradesh State Government had leased out a protected forest area on the bank of river Beas to motels, for commercial purposes.
● In 1996, the Supreme Court passed a judgment that would hold the State more responsible for maintaining natural resources.
● The Right to Pollution Free Environment was declared to be a part of Right to Life under Article 21 of the Constitution of India in the case of “Subhash Kumar vs. State of Bihar and Ors. (1991)”. Right to Life is a Fundamental Right which includes the Right of enjoyment of pollution free water and air for full enjoyment of life.
Role of the Supreme Court in environmental protection
In lieu of the wide range of cases dealt by the supreme court with regard to environmental protection, a plethora of judgments have been passed which have laid down various principles to be taken care of before indulging in any activity which might pose a threat to the environment. Also, different aspects of the environment have been highlighted by giving them immense importance like natural resources. Air and water have been given the status of the gift of nature and inalienable part of life.
What are the proposed changes under Environment Laws (Amendment) Bill, 2015?
The proposed amendments provide for effective deterrent penal provisions and the concept of monetary penalty for violation and contraventions and ensuring compliance with environmental norms. The amount collected as the penalty could be used for remediation and reclamation of polluted sites and improvement of the environment.
● In hard line with violators, on Friday the environment ministry proposed stiff penalties for substantial environment damage, a minimum fine of 5 crore in a radius of 5-10km radius counting from outer perimeter of a project, extending to Rs.10 crore and in the case of continuing damage, entail an addition of Rs.50 lakh per day and imprisonment of seven years.
● In cases where the damage goes beyond a 10 km radius from the project site,15 crores, counting with Rs.75 lakh per day if substantial environmental damage. The fine can go up toRs.20 crore and the imprisonment can even extend to a life term in case of serious violations.
● The fine for a minor violation is in the range of1,000-10,000, with an additional penalty of Rs.5,000 for every day that the violation continues after its detection. A minor violation is an act of omission or commission by a person causing environmental damage due to the failure of compliance with green laws.
● Any violation which can neither be termed minor nor substantial will be construed as non-substantial damage. In the case of non-substantial damage, the violator will have to cough up1 lakh, extendable to Rs.5 crore, and pay an additional penalty of Rs.1 lakh per day of continued damage.
The draft defines substantial damage to the environment caused by direct violation and omission of statutory environmental laws resulting in adversely affecting the environment. The factors taken into account for deciding on penalties are the repetitive nature of the damage, the quantum of damage caused unfair advantage, disproportionate gain, and counting the extent of injury caused to the ecosystem including public, living organism or to property and health.
Gaps in Draft Environment Laws (Amendment) Bill, 2015:
● Bill focuses on environment protection but on hazardous substance as a source of environmental pollution and no provision are there for the control of environment ills like deforestation, noise pollution, slum congestion in the Bill.
● Environment pollutants like solid, liquid and gaseous substances were only included as the pollutants and substances like heat which causes thermal pollution, nuclear radiation and noise pollution are absent.
● Bills include certain unclear terminologies like offences marked as a minor violation, non-substantial damage, and substantial damage. Categorical division of the damage as minor violations, substantial damage, and non-substantial damage is highly condemned. As there is no defined prospective as to what degree of damage will categorically ascertain them. As factually any biological, chemical and physical activity is sufficient enough to cause damage to the environment.
● The Constitution of the adjudicating authority is also very unclear. It seems like an additional layer to National Green Tribunal and there is no reason as to why it has been created? And obviously the appointment procedure is also undefined. Whether the adjudicating authority is separated from the Government. There are certain like questions that are unanswered.
● No provision talks about the measures for mitigating the damage done already by the company that seems after paying required fine, the polluted soil, lake, the river will remain as they are. There must be a provision for creating responsibility for the pollution creators for cleaning the polluted body.
● There is no provision for any public account or committee supervising the amount collected by means of penalty that will be used by the government for the protection and improvement of the environment.
● A major drawback is official bodies are excluded from the ambit of punishment or penalty if they fail to perform the duty if environmental pollution continues to happen within their jurisdiction.
● The penalty can’t be a fixed cap amount rather it should depend upon the intensity of damage caused by the pollutant. There is also no robust calculation amount put forth by the ministry for deciding the amount of penalty. This creates a doubt, how MOEFCC decided the fixed penalty amount for violations of environmental laws is highly unconvincing.
● There should be a third party or agency which can handle the responsibility of inspection, filing grievances by affected citizens, monitoring industries and auditing large-scale industries on a regular basis.
● Provisions under this Act geared towards penalty in case of environmental damage. But making certain set rules of technology used should also be provided to which companies should strictly adhere to.
● Instead of implementing a fine regime and imprisonment which many corporate companies and industries can take advantage of a provision that can be made for shutting down the company/industry temporarily, till set standards are complied with.
● For greater transparency, a quarterly or annual report on environmental norms followed mandatorily is put on the company’s website. Keeping track of the company’s standards and false reports, especially during surprise visit will become easy
● Each state should carry out a public consultation to know people’s views regarding the proposed bill.
Poor Implementation of Environmental Laws in India Reasons
● One of the main reasons for this is that there is no independent regulatory body for environmental governance. It is looked after by the Ministry of Environment Forest and Climate Change (MoEF). Due to excessive interference by the government on the governance of the Ministry, there is the poor implementation of environmental law.
● There is also a lack of political will and public awareness.
● Almost all laws related to the environment consider the superiority of humans over the ecosystem and nature.
● We have an ineffective pollution control mechanism. The present framework under the Water Prevention and Control of Pollution Act, 1974 and Air Prevention and Control of Pollution Act, follows the command and control structure.
● Industries are obligated to take permission from the State Pollution Control Board to discharge effluents and causing emissions but there is laxity in compliance due to lack of strong penalty measures. The Comptroller and Auditor General in India in its 2011-12 report on Performance Audit of Water Pollution in India say that the penalties for contravention of WPCA 1974 are too
● There is a lack of independence given to the central and the state boards who still have to depend on the state and the central government for the appointment. This leads to a lack of competent people. The appointment is at the wish of the government.
● PCB’s don’t have the legal authority and their decisions tend to be overruled by the government.
● There is also a lack of funds to the Pollution Control Boards and they don’t even have proper infrastructure or laboratories.
● There are certain laws which are not very elastic.
● The existing laws give importance to some specific types of pollution or specific categories of hazardous substances.
● The present mechanism fails to accept the polluter pay principle.
● Environmental Litigation is more expensive compared to other disputes as it involves expert testimony and technical evidence.
The Environment that surrounds us is the only source of our sustenance. We survive if the environment around us survives. The natural tendency of man in his relationship with nature is to take without giving and destroy without replenishing. This is leading to many problems not only for other flora and fauna but for our own well-being and that of our descendants. It is only upon our initiative and insistence that the rampant degradation of the environment can be slowed down. This is why we have laws that aim at environment protection.
A number of landmark cases have been mentioned to make the concept even more clear and how this plethora of judgments have clearly mentioned the importance to protect this environment. It can also be concluded that the supreme court has played a major role in laying down the environmental jurisprudence. Also, fundamental rights are essential and cannot be infringed upon but in accordance with the reasonable restrictions can be dealt with.
To have a healthy environment is so essential because a healthy environment promotes good health of the greater number which leads to less diversion of resources or spending of the huge amount of money on the treatment of the people. In these situations, the poor suffer the most as they do not have enough resources to afford their health issues. Moreover, healthy beings are valuable assets for the country who when healthy and fit can contribute much towards the economy and develop the nation thoroughly by paving a path of progress, generating employment and increasing the GDP.
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