Introduction to Indian Environmental Law (Unit-4)

March 24, 2020

Introduction to Indian Environmental Law

Introduction

Unsustainable development is the sort of development that does not consider future needs and the protection of the environment (or of social needs) on its plans. Many acts of unsustainable development, in which we all have participated, are driven by good intentions and a lack of understanding of the possible long term consequences.

Whereas, Sustainable development is defined as development that meets "the needs of the present without compromising the ability of future generations to meet their own needs". That means, that developmental projects are planned to meet the long term needs of the population and not only those of the present.

From Unsustainable to Sustainable development

It is a known fact that man is strongly related to the environment and is solely dependent on the nature.
But over the few years, over exploitation of natural resources has disturbed the environment.
The success of environmentally sound development depends upon proper understanding of social needs; opportunities and environmental characteristics.
Sustainable development is a pattern of resources that aims to meet the human needs while preserving the environment so that these needs can be met not only in the present, but in indefinite future.
Sustainable development tries to create a bond between natural system and social challenges facing humanity.
Environmental sustainability is the process of making sure that current processes of interaction with the environment are pursued with the idea of keeping the environment as pristine as possible.
An “unsustainable situation” occurs when natural capital (the sum of total of nature’s resources) is used up faster than it can be replenished.
Sustainability requires that human activity only uses nature’s resources at a rate at which they can be replenished naturally.

Following are some steps which should be undertaken to maintain environmental sustainability

Environmental education is necessary to improve understanding among general public about the environment.
Awareness must be given to understand the relationship between human beings and their environment. Understanding basic ecological concept and current environmental issues will help in solving environmental problems.
Make the people understand that environmental protection and resource conservation are the main advantages to lead a better life.

Legal framework for Indian Environmental Law

Introduction

From Colonial period to the Stockholm Conference, no significant endeavor had been made regarding the protection of the environment. This period has exerted more pressure on resources for the development of infrastructure with little or no concern for the environmental. The Stockholm Conference can easily be said to be the landmark in catalyzing India’s attempts to maintain the wholesomeness of the environment. This conference is of particular significance to India as it expressed the policy concern of our country on environmental protection, as a member state, and at the same time, it influenced the process of environmental management in the years to come. Presently, in India, more or less, 200 legislations deal directly or indirectly deal with environment pollution and degradation.

Constitutional aspects of environmental law

The supreme law of the land, the Indian Constitution, exhibits a keen interest in conservation of the environment. The Preamble of the Constitution declares that the State is under an obligation to fulfill the basic aim of socialism i.e. to provide a decent standard of living to all, which can be possible in a pollution free environment. Thus to constitute a socialistic pattern of society, the important aspect of environmental protection cannot be overlooked.

Part III of the Indian Constitution deals with fundamental rights. Also, these rights are enforceable in the court of law (Art. 32). In an ample number of cases, the Supreme Court has held that clean environment is essential to bring some value to life. In many judgments, the Supreme Court has held that “right to life is a fundamental right under Article 21, and it includes the right of enjoyment of pollution free water and air for the full enjoyment of life.” It also added that “if anything endangers or impairs that quality of life in derogation of laws, a citizen has a right to have recourse to Article 32 for removing the pollution of water or air, which may be detrimental to the quality of life.”

Part IV of the Indian Constitution i.e. the Directive Principles of State Policy deal with the environment in Article 47. It directs the state to improve the standard of living and general well-being of the public. To fulfill this constitutional goal, it is necessary that the state should provide pollution free environment. These provisions are incorporated in the Constitution of India by the Constitution (42^nd Amendment) Act, 1976. Article 48-A, thus added to the Directive Principles states that it is the duty of government to safeguard the environment i.e. the forests and wildlife. The chapter on Fundamental Duties states that it is the duty of every citizen to take care of and safeguard the natural environment.

Statutory control of Environmental Pollution

The Water (Prevention and Control of Pollution) Act, 1974 is one of the major laws relevant to the environment as the first of its kind after the Stockholm Conference. It provides for ‘the prevention and control of wholesomeness of water, and also for establishing and conferring appropriate powers upon Pollution Control Board, established for the purpose of achieving the above set purpose.

The Air (Prevention and Control of Pollution) Act, 1981 was enacted as a follow-up of the Stockholm Conference and was enacted for taking appropriate steps for preservation of natural resources of the earth, which among other things include preserving the air quality and control of air pollution. The Act contains a definition clause, which attempts to bring all aspects of air pollution, including noise, within its fold.

In 1986, following the catastrophe of Bhopal, Parliament was roused to address every single environmental issue by enacting a special legislation viz, Environmental (Protection) Act, 1986. Under this, the central government has the responsibility for deciding the standards for accident prevention and handling of hazardous waste, oversight of investigations and research on pollution issues, onsite inspections, the establishment of laboratories, and collection and dissemination of information. In this legislative effort, an attempt was also made to control the environmental pollution in a holistic manner instead of sectoral /piecemeal approach.

The modern technological state intensifies the conflict between environmental values and developmental requirements. Legal strategies are necessary to reconcile this conflict and to augment sustainable development. It is very important that repercussions of projects at all levels be analyzed before execution. Environment Impact Assessment (EIA) examines these consequences and predicts future changes in the environment. It guides administrative agencies to balance conflicting social values and environmental quality. It helps them to make the best choice among various available options. EIA foresees and avoids potential dangers. Prevention is ecologically benign, and also economically viable.

EIA may be classified into two categories viz, the mandatory model and the discretionary model. In the mandatory model, public participation and judicial review are integral parts of mandatory model making it an important tool in protecting and managing the environment. Whereas, in the discretionary model, public participation is not allowed as a matter of routine; it is an exercise controlled and allowed by administrative expediency and requirement.

Judicial approach towards environmental protection

The constitutional and statutory provisions have been supported by judicial principles in the enforcement of the law about environment protection. The courts have developed principles and strategies that have done an appreciable job.

Polluter Pays Principle

The formulation of certain principles to develop a better regime for protecting the environment is a remarkable achievement of judicial review in India. According to the Polluter Pays Principle, the polluter is accountable for repaying and repairing the harm brought by his/her activities. The polluter has an absolute liability of hazardous and inherently dangerous objects brought by him/her, and this sets a high water mark of the development of this principle. Despite its deterrence impact, it is limited in the sense that it can be applied only at the remedial stage i.e. after pollution has taken place.

Precautionary Principle

The Precautionary Principle rests upon the preventive aspect of environmental law. The discharge of pollutants, which are potentially harmful, must be controlled, even in the absence of specific data concerning it. It involves apprehension of environmental harm and taking up of effective measures to avoid it or choosing the less environmentally harmful activity. The Preventive Principle rests on the maxim, ‘prevention is better than cure.’ Complete prevention of environmental pollution is not possible; if any industry is responsible for river pollution, the chances of restoring the prior condition is impossible. Pollution should, therefore, be controlled at primary level.

Public Trust Doctrine

According to the Public Trust Doctrine, the State is the trustee of all natural resources which are by nature meant to benefit the public in large. The State as a trustee is under a legal duty to protect the natural resources. In MC Mehta v. Kamal Nath, the Supreme Court did not hide its ire in extending facilities by permitting a motel to deviate the flow of a river and using the forest for non-forest purpose. The Supreme Court is approving this doctrine imposing on the model the responsibility of restoring the environment and ecology of the area.

Public Interest Litigation

Public Interest Litigation has played a unique role by which people belonging to different walks of life, and especially the downtrodden are getting social justice from the Supreme Court as well as the High Courts. It is because of this new strategy of Pro Bono Litigation that the poor and the downtrodden have been able to seek justice from courts.

Rural Litigation and Entitlement Kendra v. State of UP can be said to be a harbinger of the new trend. When the limestone quarries in the Mussoorie Hills range were found to be creating an imbalance to ecology and a hazard to a healthy environment, the court in PIL by the Kendra, ordered a major part of the quarrying activities to be closed down.

The series of PIL cases instituted by a public-spirited lawyer, Mr. MC Mehta, in the Supreme Court set a glorious precedent. In MC Mehta v. Union of India, the way of PIL challenged discharge of effluents by tanneries and chemical industries into river Ganga, and the court ordered those tanneries are not having pre-treatment plants approved by the pollution control board to stop their discharge of trade effluents.

The scenario of environmental litigation is very vibrant in India due to the applicability of Locus Standi of applicants approaching the court by way of PIL.

Indian Acts related to the Environmental Protection

Act 1- Environment Protection Act -1986

Environment legislation means that the government took substantial legislative steps for environment protection. India is the first country in the World to have made provisions for the protection and conservation of environment in its constitution.

On 5^th June, 1972, environment was an agenda in Stockholm. Since then 5^th June is celebrated as the World Environment Day for the awareness and importance of healthy environment.
The Environment Protection Act (1986) came into force soon after the Bhopal Gas Tragedy and is considered to be an umbrella legislation as it is an enabling law to frame various rules and regulations to protect the environment. T
The Act defines terms such as environment, environmental pollutants and hazardous substance.

According to the Act, the Central Government has the power to do the following:

Take measures to protect and improve the environment.
Give directions (such as close, prohibit or regulate and industry, operation or process).
Make rules to regulate environmental pollution (air, water quality standards; prohibition in handling hazardous materials etc).
The Act covers many aspects such as controlling discharge of environmental pollutants, enforcing compliance with procedural safeguards, setting up environmental laboratories etc and also prescribing penalties for contravening the Act.

Act 2- The Air (Prevention and Control of Pollution) Act -1981

The Air (Prevention & Control of Pollution) Act was enacted by the Parliament in 1981 with an objective to prevent, control & abatement of air pollution. Under Section 19 of this act the whole of National Capital Territory of Delhi has been declared as air pollution control area by the Central Government. Under this section the government approved fuels to be used in the air pollution control area.

Under this Act, in case of hotels, the occupier of the hotel or the restaurant is the person who has control over the affairs of the premises. The occupier has certain specific obligations, rights and duties with regard to prevention and control of pollution.

To provide legislative support for prevention and control of air pollution, the Government of India enacted a central legislation called the Air (Prevention and Control of Pollution) Act, 1981. It is also referred to as Air Act, 1981.
This Act defines Air Pollution as the presence in the atmosphere of any solid, liquid or gaseous substance (incl. noise) in such concentration as may be injurious to human beings, other organisms, property or environment.
This is an Act to provide for the prevention, control and abatement of air pollution in the country so as to preserve the quality of air.
Hotels and restaurants are advised to check with the local PCB (Pollution Control Board) if the areas wherein they are located fall under the “air pollution control zone”.
Presence of “chimney” or duct emitting solid, liquid or gaseous substances.
The State Government, by notification in the Official Gazette may prohibit the use of any such fuel, if it is likely to cause air pollution.
The State Government, by notification in the Official Gazette directly, may specify that no appliance other than an approved appliance shall be used in the premises situated in an air pollution control area.
The State Government, by notification in the Official Gazette may prohibit burning of any material other than fuel in such an area. Hotels and Restaurants which are in the habit of burning leaves, dry waste etc need to be aware of these notifications in their respective areas.
Penalty for contravention of these provisions and notifications shall be punishable with imprisonment for a term up to three months or fine which may extend to Ten Thousand rupees or both.

The salient features of this Act are :

This Act is applicable to the whole of India.
Under section 19 of the Act, the State Government in consultation with the SPCB is vested with the power to declare Air Pollution Control Area in which provisions of the act shall be applicable.
As per the provisions in Sec.21 (1) & (2), no person can establish or operate any industrial plant without the previous consent of the State Pollution Control Board. Every application for consent shall be made in Form-1 and shall be accompanied by prescribed fee.
Within a period of four months, after the receipt of application, the Board shall complete the formalities to either grant or to refuse consent. During the course of processing application, Board may seek any information about the industry after giving notice in the Form 2.
Under section 22(A) operating any industrial plant so as to cause emission of air pollution in excess of the standard laid down by the State Board is liable for litigation by the Board.
The states are required to prescribe emission standards for industry and automobiles after consulting the Central Board and noting its ambient air quality standards.
Prior to its amendment in 1987, the Air Act was enforced through mild court-administered penalties on violations. The 1987 Amendment strengthened the enforcement machinery and introduced stiffer penalties.

Act 3- Forest Conservation Act-1980

The Forest Conservation Act was introduced in 1980, and after implementation in 1981, the Act has been amended in 1988.
The special feature of this Act compels a State Government to take prior approval of the Government of India, if it deserves a “reserved forest”, wants to use forest designated land for non-forest purpose, wants to assign any forest designated land to a private person or corporation, and wants to clear a forest land for reforestation.
Approvals are granted or refused only after the advice of any advisory committee constituted to look after these requests from the states.
When diversion is allowed, compensatory afforestation of a non-forest land of same area is directed along with other pre-conditions.
In case, non-forest lands are not available, compensatory afforestation should be conducted on a degraded forest land and the area should be twice the area behind diverted.

Act 4- Water (Prevention and Control of Pollution) Act- 1974

The Green Revolution and rapid industrialization and urbanization have resulted in a profound deterioration of India’s water quality.
To provide legislative support for prevention of water pollution, Parliament passed India’s first major Water Legislation, called the Water (Protection and Control of Pollution) Act, 1974.

Some of the important provisions of the Water Act, 1974 and Amendment, 1988 are as follows:

In order to achieve its objectives, the Central Pollution Control Board (CPCB) and State Pollution Control Board (SPCB) were constituted under section 3 & 4 of the Act respectively.
The Act was amended in 1978 and 1988 to clarify certain ambiguities and to vest more powers in Pollution Control Boards.
Obligations on the part of the industries is to obtain consent to establish or discharge U/S 25 of the Act. This is mandatory for every industry discharging any domestic sewage or trade effluent into water, stream or well.
The main objective of this act is to provide for the prevention and control of water pollution and maintaining or restoring of wholesomeness of water.

Act 5- Wildlife Protection Act-1972

This Act enables all the State Wildlife Advisory Boards to regulate hunting of wildlife, regulation of wildlife trade, regulation of trade of animal and bird products, establishments of sanctuaries and national parks.
The Boards can impose penalty on offenders showing non-compliance with the law.

This Act has listed species according to their conservation status in five schedules:

    Schedule – 1 lists endangered species that cannot be harmed in any way.
    Schedule – 2 includes species that need special protection.
    Schedule – 3 includes big games species.
Schedule – 4 includes small game species.
     Schedule – 5 includes species that can be hunted without permission

Hunting of species under Scgedule-2, 3 and 4 is regulated through licensing.
The Act was amended in 1982 to introduce provisions for capture and transport of wildlife to different locations for scientific management and ex situ conservation.
India is a signatory to the Convention of International Trade in Endangered Species of Fauna and Flora (CITES 1976).
Under this, export or import of endangered species and their products are governed by conditions and stipulations laid down therein.
Indian Government has also started some conservation projects for individual endangered species like Lion (1972), Tiger (1973), and Elephants (1991-92), Brown-antlered Deer (1981).

Assignment:
Q1- Explain Constitutional aspects of environmental law and Statutory control of Environmental Pollution. Also discuss the Judicial approaches towards environmental protection in India.

Q2- Is there a link between the COVID-19 pandemic and climate change ? Does CIVID-19 spread due to human-led environmental destruction? Focus on the role of Indian environmental laws to fight against this pandemic.