- The idea of environmental protection is an age-old idea imbibed in the Indian cultural ethos since time immemorial.
- To understand the present-day legal provisions for environmental protection and conservation of natural resources, it is important to look into the past Indian history of protecting the environment.
- Environmental awareness can be said to have existed even in the pre-Vedic Indian valley Civilization which flourished in northern India about 5,000 years ago.
- This is evident from the archaeological evidence gathered from Harappa and Mohenjo-Daro which were the prominent cities of the civilization.
- Their awareness about hygiene and sanitation as evident from their constructions of ventilated houses, orderly streets, numerous wells, bathrooms, public baths and covered underground drains.
- Protection and cleaning up of the environment were the essence of Vedic (1500–500 BC) culture. Charak Samhita (medical Science book of 900 BC – 600 BC) give many instructions for the use of water for maintaining its purity.
- Under the Arthashastra (an ancient book on statecraft, economic policy and military strategy), various punishments were prescribed for cutting trees, damaging forests, and for killing animals and environmental ethics of nature conservation were not only applicable to the common man but the rulers and kings were also bound by them.
- The legislative history aimed at protecting the environment to maintain the ecological balance dates back to the Indian Penal Code 1860.
- There are various sections in the Indian Penal Code, 1860 that make polluting the environment punishable.
- Chapter XIV of the IPC, containing Section 268-294-A, deals with the offences that are related to safety, public health, etc.
- These provisions make public health a priority and make any act punishable which pollutes the environment and makes the life of an individual dangerous.
Laws in British India (1800-1947 AD):
- Shore Nuisance (Bombay and Kolaba) Act, 1853 imposed restrictions on the fouling of seawater.
- The Merchant Shipping Act of 1858 dealt with the prevention of sea pollution by oil.
- The Fisheries Act, 1897
- The Bengal Smoke Nuisance Act of 1905
- Bombay Smoke Nuisance Act of 1912
- Wild Birds and Animals Protection Act, 1912
- In the early years of Independence, there was no precise environmental policy and not many attempts were made to frame any specific policy or law for the protection of the environment. However, the concern for environmental protection was reflected in the national planning process and forest policy.
- The legislative fight against pollution continued in independent India. But it is interesting to know that the Indian Constitution adopted in 1950 did not deal with the subject of environment or prevention and control of pollution as such. It was the Stockholm Declaration of 1972 that turned the attention of the Indian Government to the broader perspective of environmental protection.
- Now there is a host of legislation in India aimed at protecting the environment from pollution and maintaining the ecological balance. The Environment (Protection) Act, 1986 is one major Act for environmental protection. The Government of India has launched various programmes and made use of audio-visual media to educate the people and arouse their consciousness for the protection of the environment.
- Fundamental status has been given to the concept of protecting the environment as it is essential to promote human health to have a healthy environment and affords a right to a healthy environment to all. Preserving the environment protects the health of every individual and a healthy individual promotes the development of the environment which is the need of the hour.
- Law acts as a means of regularizing human conduct and provides the smooth functioning of society. Since the word ‘Environment’ did not find its existence in the Indian Constitution, it became essential to insert provisions in the constitution as it is the supreme law of the land and such insertion thus, would prove to be fruitful to protect the environment from exploitation.
The Preamble of the Constitution and Environment Protection:
- The Preamble of the Indian Constitution begins by stating that the people of India solemnly resolve to constitute India into a socialist country. This indicates that our Constitution affords us with the socialist pattern of society. Thus, aiming at dealing with and solving social problems first, rather than concentrating on individual problems.
- One of the basic aims of the Preamble is socialism and it is the responsibility of the state to fulfil this by taking stringent measures to make the environment free from all forms of pollution.
- All the citizens of India intend to secure freedom which also includes securing justice. Justice can be interpreted and sought in many forms. Thus, citizens have a right to environmental justice.
Provisions in the Indian Constitution that Ensures Environmental Protection:
- The constitution of India is not inert but a living document that evolves and grows with time. The specific provisions on environment protection in the constitution are also a result of this evolving nature and growth potential of the fundamental law of the land.
- The preamble to our constitution ensures a socialist pattern of the society and the dignity of the individual. A decent standard of living and a pollution-free environment is inherent in this.
FUNDAMENTAL RIGHTS & ENVIRONMENT:
- 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 the environment is also a right without which the development of an 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.
- Article 21: It states that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Article 21 guarantees the fundamental right to life. Right to the environment, free of the danger of disease and infection is inherent in it. The right to a healthy environment is an important attribute of the right to live with human dignity.
- Being negligent in maintaining hygiene and sanitation standards slowly affects the lives of living beings and poisons the environment at large. This infringes the fundamental right of life of the citizen as provided under article 21, which also extends to having a decent standard of living and a clean and safe environment.
Article 14: Right to Equality and Environmental Protection
- Equality before the law and equal protection of the law has been granted under article 14 of the Constitution. This fundamental right impliedly casts a duty upon the state to be fair while taking actions in regard to environmental protection and thus, cannot infringe article 14.
- In cases of exercise of arbitrary powers on behalf of the state authorities, the judiciary has played a strict role in disallowing the arbitrary sanction. The use of discretionary powers without measuring the interest of the public violates the fundamental right of equality of the people.
Article 19(1)(a): Freedom of Speech and Expression and Environmental Protection
- The right of speech and expression is a fundamental right expressly mentioned in article 19(1)(a) of Part III of the Constitution. There have been several cases where people have approached the court through the way of speech and expressed themselves by writing letters where they have expressed the violation of their right to have a clean and safe environment and a right to livelihood.
- In India, the media has been playing a crucial role in moulding the perception of people on issues relating to the environment. Thus, Article 19(1)(a) is interpreted to include the freedom of the press as well.
Article 19 (1)(g): Freedom of Trade and Commerce and Environmental Protection
- All the citizens of India have a fundamental right to carry on any profession or business, trade or commerce at any place within the territory of India under Article 19 (1)(g) of the Constitution. But this is not an absolute right and thus, has reasonable restrictions to it.
Article 19(6) of the Constitution lays down the reasonable restriction to this fundamental right to avoid environmental hazards. Thus, safeguards for environmental protection are inherent in this. The courts have to balance environmental interests with the fundamental rights to carry on any occupation.
- The purpose is to avoid the ecological imbalance and degradation of the atmosphere in the name of carrying on a trade, business, occupation or carrying on any profession. Thus, in the name of business or profession, one cannot cause harm to the environment.
DIRECTIVE PRINCIPLES OF STATE POLICY (PART IV)
The Directive principles under the Indian constitution are directed towards ideals of building a welfare state. A healthy environment is also one of the elements of a welfare state.
- Article 47: This article imposes a duty on the State to improve the standards of living of citizens by providing health facilities, proper nutrition, and sanitization and protecting the environment to live safely. Article 47 also pressurizes its citizens to be more conscious of the environment.
- Article 48-A: This Article comes under the Directive principle of the State policy. This article implies that State shall endeavour to protect the environment. It also emphasizes safeguarding the forests and wildlife of the country. Article 48-A imposes a duty on State to protect the environment from pollution by adopting various measures.
Article 51-A (g): Fundamental duties (Part IV A)
- The chapter on fundamental duties of the Indian Constitution clearly imposes a duty on every citizen to protect the environment.
- Article 51-A (g), says 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.”
ROLE OF THE SUPREME COURT IN ENVIRONMENTAL PROTECTION:
While incorporating the important features to the fundamental right provided in Article 21, certain principles were ascertained by the supreme court to be necessarily ensured for the protection of the atmosphere, which are as follows:
1. Polluter Pays Principle: The basic concept behind this principle is that “if you make a mess, it becomes your duty to clean it up”. The polluter pays principle does not lay emphasis on the ‘fault’ rather on the curative approach to repair the ecological damage caused by any person or group of persons.
2. Precautionary Principle: Principle 15 of the Rio Declaration provides for the precautionary principle. According to this. To protect the environment, it is essential to apply the precautionary principle. This principle means that where there is a chance of great threat or irreversible damage to the environment, lack of full scientific certainty cannot be taken as a reason for not issuing the cost-effective methods.
M.C Mehta v. Union, popularly known as Taj Mahal Case:
- It was a judgement passed based on the precautionary principle. In this case, public interest litigation was filed alleging the degradation of the Taj Mahal due to environmental pollution. Court referred the case to the expert committee to seek technical inputs on the matter. In the findings it came out, that the industries located in the Taj Trapezium Zone (TTZ) were using coke/coal as the industrial fuel, thus emitting effluents.
- It was held by the court that, the Taj apart from being a cultural heritage, is also industry by itself and thus, it was directed to all the industries operating in TTZ to use natural gas as a substitute for coke/coal as an industrial fuel and if they cannot be restored to it for any reason, they must stop functioning and they may relocate themselves as per directions of the court.
3. The Doctrine of Public Trust: This doctrine rests on the principle that certain resources which are required for fulfilling the basic amenities of life like air, water etc hold great importance to the people at large that it would be completely unjustified to make these resources available to the private ownership.
4. Sustainable Development: The term sustainable development was for the first time used at the Cocoyoc Declaration in Mexico. Thereafter it received further impetus through the Stockholm declaration where it was held that the world has just one environment and that man is both the creator and moulder of the environment. Further, in the Brundtland Report, the definition of sustainable development was given according to which it is the optimum utilization of resources for both the present and future generations. Thus, intergenerational equity is a must.
The principle of sustainable development is one such approach that if followed can fulfil the basic human right of having a dignified life. Resources have to be protected for both the present and future generations.
HISTORY OF ENVIRONMENTAL LAWS IN INDIA:
- The Indian Constitution adopted in 1950 never dealt with the subject of environment or prevention until the 1976 amendment was not passed. The post-independent Indian approach was centred on economic development and poverty alleviation.
The development of Environmental Law can be divided into two periods:
- Pre 1972 Development
- During this period, tort laws, criminal law, laws regarding water, forest laws, special laws, etc. were there to deal with the subject of protection of the environment. We can say that there was not much development in the Indian Environmental Law during this period.
- Post-1972 Development
- It was the post-Stockholm period and witnessed the development in the area of International Environmental Law at a very great level. Stockholm Conference resulted in highlighting the environmental protection concerns for the whole world, so is for the country of India.
- The detailed and developed framework for environmental protection came after the UN conference on Human Environment in Stockholm, in 1972. This led to the formation of the National Council for Environmental Policy and Planning in 1972 within the science and technology department. It was set up to establish a regulatory body for the overview of the environmental-related issues and concerns. This council was later converted to the Ministry of Environment and Forests (MoE&F) in 1985.
IMPORTANT LEGISLATION FOR ENVIRONMENTAL PROTECTION
Wildlife Protection Act (WPA), 1972:
- Enacted with the motive to protect the wildlife of this country, the Act also controls smuggling, poaching, and illegal trade in wildlife and its derivatives. Moreover, the act was amended in Jan 2003, making penalties and punishments more stringent for offences under the act. The aim is to protect the endangered flora and fauna and also the ecologically important areas.
It has six schedules that give varying degrees of protection:
- Schedule I and part II of Schedule provide absolute protection, offences under these are prescribed the highest penalties.
- Species listed in Schedule III and Schedule IV are also protected, but the penalties are much lower.
- Animals under Schedule V, e.g., common crows, fruit bats, rats, and mice, are legally considered vermin and may be hunted freely.
- The specified endemic plants in Schedule VI are prohibited from cultivation and planting.
Statutory Bodies under Wildlife Protection Act:
1. National Board for Wildlife and state wildlife advisory boards
2. Central Zoo Authority
3. Wildlife Crime Control Bureau
4. National Tiger Conservation Authority
Water (Prevention and Control of Pollution) Act, 1974:
- After the Stockholm conference on Human Environment in June 1972, it was considered appropriate to have uniform law all over the country for broad Environment problems endangering the health and safety of our people as well as of our flora and fauna. The Water (Prevention & Control of Pollution) Act, 1974 is the first enactment by the Parliament in this direction.
- The Water (Prevention and Control of Pollution) Act was enacted in 1974 to provide for the prevention and control of water pollution, and for the maintaining or restoring of wholesomeness of water in the country.
This Act covers the following aspects of regulating water resources in the country:
- To prevent and control water pollution.
- To maintain “wholesomeness” of water, i.e., to maintain the qualities of water so that its consumption and use by living organisms is not hampered.
- To establish State Boards for prevention and control of pollution, which gets subsumed by the Air Act, passed in 1981.
- To empower the Boards for prevention and control of pollution.
- To provide penalties for breaking the rules of the provisions under this Act.
- To establish state water testing laboratories and develop its protocols.
- The Act was amended in 1978 and again in 1988. In 1988 Amendment made it conform closely with the provisions of the Environment Protection Act, 1986.
Forest Conservation Act, 1980:
- As the name suggests, the Act was enacted to conserve the forests of our country. Moreover, it strictly prohibits and regulates the de-reservation of forests or the use of forest land for non-forest purposes without the Central Government’s approval.
Air (Prevention and Control of Pollution) Act, 1981:
- The effects of climate change caused by all forms of pollution became all too apparent in the early 1970s. To mitigate their harmful effects, it was believed that nations would need to pass their own laws.
- Thus, during the United Nations General Assembly on Human Environment held in Stockholm in June 1972, a resolution was passed which implored the nations of the world to preserve natural resources such as air.
- IT combat these factors a special law was enacted under the Constitution of India, which was the Air (Prevention and Control of Pollution) Act of 1981.
The act targets to control and prevent air pollution in India and its main objectives are:
- Advising Central Government of Air and Air Pollution related issues
- Research about the causes and impact of Air Pollution
- Spread awareness to stop air pollution
- To establish central and State Boards and empower them to monitor air quality and control pollution.
The Environment (Protection) Act, 1986:
- The Environment (Protection) Act (EPA) was enacted in 1986 with the objective of providing the protection and improvement of the environment.
- It empowers the Central Government to establish authorities charged with the mandate of preventing environmental pollution in all its forms and to tackle specific environmental problems that are peculiar to different parts of the country.
- The Act is one of the most comprehensive legislations with a pretext to protection and improvement of the environment.
- The EPA Act was enacted under Article 253 of the Indian Constitution which provides for the enactment of legislation for giving effect to international agreements.
Statutory bodies under the EPA, 1986:
- Genetic Engineering Appraisal Committee
- National Coastal Zone Management Authority (later converted to National Ganga Council under Ministry of Jal Sakthi).
Noise Pollution (Regulation and Control) Rules, 2000
- Noise pollution is a major issue in today’s urban areas. From factories to vehicles, from machinery to daily equipment, everything produces a noise that is having a significant impact on the ambient environment as well as the health and wellbeing of humans.
- Recognizing the harmful effects of noise, the Indian government included measures to abate noise pollution under the Environment Protection Act, 1986. Noise pollution was one of the categories being addressed under this Act.
- However, in the late 1990s, the government decided to come out with separate legislation solely focusing on noise pollution. Thus, was born, Noise Pollution (Regulation and Control) Rules, 2000.
- Under this Act, the legislation has divided all areas into 4 categories viz. Each of these areas has an ambient air quality standard (AAQS) specified for a day (6 AM to 10 PM) and night (10 PM to 6 AM) times. The standards are as follows:
Coastal Regulation Zone (CRZ) Notification 2018:
- It was notified based on the recommendations of the Shailesh Nayak Committee.
- To promote sustainable development while taking into account the natural hazards such as increasing sea levels due to global warming.
- To conserve and protect biodiversity besides livelihood security to local communities including the fishermen.
CRZs have been classified into 4 zones for regulation:
- CRZ-I: includes ecologically sensitive areas, where no construction is allowed except activities for atomic power plants, defence.
- CRZ-II: includes designated urban areas that are substantially built up. Construction activities are allowed on the landward side only.
- CRZ-III: includes relatively undisturbed areas, mainly rural areas. No new construction of buildings is allowed in this zone except repairing the existing ones. However, constructions of dwelling units in the plot area lying between 200-500m of the high tide line is allowed.
- CRZ-IV: includes the water area covered between the Low Tide Line and 12 nautical miles seaward. Except for fishing and related activities, all actions impugning on the sea and tidal water will be regulated in this zone.
The Ozone-Depleting Substances (regulation and control) rules, 2000:
- It set deadlines for phasing out of various Ozone Depleting Substances (ODSs) and regulating production, trade import, and export of the product containing ODS.
- These rules prohibit the use of CFCs, halons, ODSs such as carbon tetrachloride and methyl chloroform, and SFC except in metered-dose inhalers and for other medical purposes.
The Energy Conservation Act, 2001:
- It was enacted as a step towards improving energy efficiency and reducing wastage. It specifies the energy consumption standards for equipment and appliances.
- It prescribes energy consumptions norms and standards for consumers. It prescribes energy conservation building codes for commercial buildings.
- Bureau of energy efficiency (BEE) is a statutory body established under the act.
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 recognizes the sovereign rights of states to use their own Biological Resources.
- It aims at the conservation of biological resources, managing their sustainable use and enabling fair and equitable sharing of benefits arising out of the use and knowledge of biological resources with the local communities.
The act envisaged a three-tier structure to regulate the access to biological resources:
1.The National Biodiversity Authority (NBA)
2. The State Biodiversity Boards (SBBs)
3. The Biodiversity Management Committees (BMCs) (at the local level)
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA)
- The act recognizes and vests the forest rights and occupation in forest land in Forest Dwelling Scheduled Tribes (FDST) and Other Traditional Forest Dwellers (OTFD) who have been residing in such forests for generations. This act comes under the aegis of the Ministry of Tribal Affairs.
- The act also establishes the responsibilities and authority for sustainable use, conservation of biodiversity, and maintenance of the ecological balance of FDST and OTFD.
- It strengthens the conservation regime of the forests while ensuring the livelihood and food security of the FDST and OTFD.
- It seeks to rectify colonial injustice to the FDST and OTFD who are integral to the very survival and sustainability of the forest ecosystem.
The act identifies four types of rights:
- Title rights: It gives FDST and OTFD the right to ownership of land farmed by tribals or forest dwellers subject to a maximum of 4 hectares. Ownership is only for land that is being cultivated by the concerned family and no new lands will be granted.
- Use rights: The rights of the dwellers extend to extracting Minor Forest Produce, grazing areas, pastoralist routes, etc.
- Relief and development rights: To rehabilitation in case of illegal eviction or forced displacement and basic amenities, subject to restrictions for forest protection
- Forest management rights: It includes the right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use.
National Green Tribunal Act (NGT), 2010
- It was established in concurrence to Rio Summit 1992 to provide judicial and administrative remedies for the victims of the pollutants and other environmental damage.
- It also agrees with article 21, the Right to a healthy environment to its citizens of the constitution.
- The NGT has to dispose of the cases presented to it within 6 months of their appeals.
- NGT has original jurisdiction on matters related to substantial questions of the environment.
The NGT has the power to hear all civil cases relating to environmental issues and questions that are linked to the implementation of laws listed in Schedule I of the NGT Act. These include the following:
- The Water (Prevention and Control of Pollution) Act, 1974;
- The Water (Prevention and Control of Pollution) Cess Act, 1977;
- The Forest (Conservation) Act, 1980;
- The Air (Prevention and Control of Pollution) Act, 1981;
- The Environment (Protection) Act, 1986;
- The Public Liability Insurance Act, 1991;
- The Biological Diversity Act, 2002.
- The NGT has not been vested with powers to hear any matter relating to the Wildlife (Protection) Act, 1972, the Indian Forest Act, 1927 and various laws enacted by States relating to forests, tree preservation etc.
Hazardous Wastes Management Regulations, 2016
- In order to strengthen the implementation of environmentally sound management of hazardous waste in the country, the Ministry of Environment, Forest and Climate Change has amended the Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016.
- 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.
- Hazardous Wastes (Management, Handling and Transboundary) Rules, 2008, brought out a guide for manufacture, storage and import of hazardous chemicals and 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 of municipal solid waste scientifically.
Compensatory Afforestation Fund (CAF) Act, 2016
- The Compensatory Afforestation Fund Management and Planning Authority (CAMPA) Act seeks to mitigate the impact of diversion of forest land for non-forest purposes by making sure through a well-defined institutional mechanism, that the funds are released and utilized quickly, efficiently and transparently. The CAMPA law applies to States, Union Territories, and the Centre as well.
Compensatory afforestation means that every time forest land is diverted for non-forest purposes such as mining or industry, the user agency pays for planting forests over an equal area of non-forest land, or when such land is not available, twice the area of degraded forest land.
- As per the rules, 90% of the CAF money is to be given to the states while 10% is to be retained by the Centre.
- The funds can be used for the treatment of catchment areas, assisted natural generation, forest management, wildlife protection and management, relocation of villages from protected areas, managing human-wildlife conflicts, training and awareness generation, supply of wood saving devices, and allied activities.
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 we must 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 needed of the day to bring greater public participation, environmental awareness, environmental education and sensitize the people to preserve ecology and the environment.
For the success of local environmental laws, it is essential to create a sense of civic awareness and public hygiene in the use of municipal services such as roads, public squares, drainage, etc. Strict compliance with the legal requirements is also required. Law is an effective tool for obliging people to practice cleanliness and thus fight pollution. No right can be fully protected and guaranteed unless the entire community recognize their moral, ethical, social and constitutional duties and rise to abide by them.