All About Environmental Laws In India

1.    INTRODUCTION 

Concern for protection and conservation of the environment and reasonable use of natural resources is well embedded in the Indian constitution and also in international treaties to which India is a signatory. An Environment is one of the basic needs for living things like water, air, soil, etc. and decides the existence, growth and enhancement of human and all his related activities. According to the census data, population of India touched 1. 21 billion and its economy is growing at a rate of 8 percent per annum. GDP growth rate of 5%, the second only to China. Because of the population density, India advances to extensive industrial expansion. Therefore, thousands of industrial clusters across the country generate massive amounts of untreated toxic waste, which pollutes the rivers, lakes, forests, and landfills. This notion of environmental protection and preservation is not new. It has been cored to many ancient societies and cultures. New economic growth that has characterized the Indian economy over the last one and a half decade has had it side effects. The advancement of industrialization and economic improvement has brought about poor air and water quality that affects the incidence of infant deaths and life expectancies. The measures that India has taken to reduce air and water pollution have given only a minor increase in IMR in India. This could partly be attributed to poor institutional settings of the regulations and more importantly, lack of enforcement of the regulations. As such, thousands of industrial clusters across the country discharge thousands of untreated hazardous wastes that are dumped in rivers, lakes, forests, and landfills. Despite the fact that India does have adequate environmental laws, lack of enforcement and often absence of funds a manpower is the main barrier for the pollution control boards. The issues of environment are the consequences of the human’s actions, which do not possess any civic conscience and focus solely on the monetary gains without caring for the consequences to the environment and their life span. 

To address such challenges particularly on environmental management the Government of India has developed an environmental legal and Institutional System to address the challenges within the broad framework of India’s development framework and principles of international environmental law. The preamble of the Constitution of India lay down that, it is the responsibility of the state ‘to protect and develop the environment and to conserve the forests, wildlife and other natural resources of the country’. In this respect, it assigns the obligations to every individual to defend and enhance the natural environment such as forests, lakes rivers and probably habitats of wildlife. There has also been reference to the environment in the Directive Principles of State Policy and in the Fundamental Rights chapters. Environment as the central concern for human was initially responded by the department of environment formulated in India in 1980. 

2.    HISTORICAL EVOLUTION OF ENVIRONMENTAL LAWS IN INDIA

The international legal steps to conserve and protect human environment were started with Stockholm declaration in 1972. For this reason, the States needed to ratify legislative mandate to preserve and enhance the condition of the environment of the concerned State. Therefore, for that reason Indian Parliament passed two Articles, namely Article 48–A and 51–A to the Indian Constitution in 1976. Article 48–A of the Constitution rightly states that the State shall strive to ensure the protection and rejuvenation of the environment as also the forests and wildlife in the country. Similarly, Clause g of Article 51–A has made it the fundamental duty of each citizen of India, to protect and improve the natural environment include the forest, lakes, river, wild life and wildlife and to have compassion for animals.

What has emerged due to the combined impact of Articles 48–A and 51–A [g] is that the ‘State’ as also the ‘citizen’ are both under constitutional obligation to preserve, enjoy and mitigate the environmental situations of India. Each generation has a responsibility with all succeeding generations and that is to cultivate and preserve the natural and original capital of India in the optimum manner. The words ‘protects and improves’ occurring in these both Articles 48–A and 51–A[g] reasonably indicate an affirmative Government action for enhancing the quality of the environment and not to merely retain the polluted environment.

Beside the constitutional provisions in Part IV and XII of the Constitution to protect and enhance environmental features; there are a series of legislations on the topic but the most relevant legislations pertinent to our purpose includes; the Forest [Conservation] Act, 1980; the Water [Prevention and Control of Pollution] Act, 1974; Wildlife [Protection] Act, 1972; the Environment [Protection] Act, 1986. 

3. KEY ENVIRONMENTAL REGULATIONS

A. The Environment (Protection) Act, 1986

Some of the main principles of the Environment Protection Act, 1986 as follows:

• Strengthening the United Nations International Conference on the Human Environment held in Stockholm.
• Development of a government body to supervise industry which the body has the power to give directions such as closure directions.
• Conducting coordination of activities of various agencies which are working under the prevailing laws.
• Existing as ordinary statutes for the conservation and preservation of the environment.
• Punishing and penalizing players that compromise the environment, safety and health. For each failure/ contravention, the punishment includes imprisonment up to 5 years or a fine of up to one lakh rupees or both. This can also be extended for up to seven years in cases.
• Participating in the process of the sustainable determination of the environment.
• Realization of the constitutional right to protection of life enshrined under Article 21 of the Constitution.

By the Act, the EPA authorizes the Centre to “do all such things as it may consider necessary” in the area of environmental conservation:

• It can thus, coordinate and implement nationwide programs and plans to enhance matters of environmental protection under the law.
• It can prescribe environmental quality standards including those regarding emission or discharge of environmental pollutants.
• It should be noted that this law may limit the geographical location of industries.
• The law also provides the government the right of entry for examination, testing of equipment and other purposes and right to to analyse the sample of air, water, soil or any other substance from any place.
• The EPA clearly prohibits the release of environmental pollutants above certain prescribed regulatory levels.
• There is also provided a related provision which addresses the handling of hazardous substances that are prohibited unless in compliance with legal permissions.
• The Act also entitles any person save for an authorised officer of the government to institute proceedings in any court for any breach of the provisions of the Act.

B. The Water (Prevention and Control of Pollution) Act, 1974

The Central and State Pollution Control Boards have been formed under the provision of Section 3 and 4 of the Act. Further, CPCB was entrusted with the powers and functions under the Air (Prevention and Control of Pollution) Act, 1981.

The CPCB as a statutory body came into existence in September, 1974 under the Water (Prevention and Control of Pollution) Act, 1974. The environmental groups work under the Ministry of Environment, Forest and Climate Change (MoEFCC) and operates in collaboration with the state Pollution Control Boards and others.

Composition of Central Board (Section 3):

• A chairman who possesses this knowledge or a chairman who has practical experience in handling cases involving environmental conservation. Selection of the chairman is also very isolated in that he is to be appointed by the central government only.
• Not more than 5 representatives that are selected from the central government.
• The number of members that maybe nominated by the central government from the members of the State Board shall not exceed 5.
• Up to 3 members nominated by the central government to have a representative whose interest is in agriculture, fishing, trading or any other intercession.
• 2 persons to represent the companies and corporation which are owned, controlled and being operated directly by the central government.
• A fulltime member secretary conversant with scientific management and prevention of environmental pollution including its full qualification. Provide recommendations to the Central Government on any matter relating to prevention and control of polluted water.

Functions of the Central Board (Section 16):

• Supervise the functioning of the State Boards and mediate in case of conflict, among themselves or with other institutions.
• Give advisory service to the State Boards, initiate, execute and fund and/or sponsor studies and research studies on problems concerning water pollution and measures for prevention, control or abatement of water pollution.
• Arrange and schedule the training of persons who are employed or to be employed on terms and conditions the Central Board may determine.
• Therefore, it is recommended that through the mass media a campaign should be conducted in relation to the prevention and control of the BCS.

Composition of the State Board (Section 4): 

• The state government through a notification in the official Gazette has the right to appoint or establish a stated board to be named as State Pollution Control Board.
• A Chairman who either have knowledge or some experiences in handling cases involving pollution of the environment.
• No more than 5 persons nominated by the state government to represent the government.
• No more than two persons by the state government who are currently acting as members of local authorities in the state
• No more than three persons appointed by the state government to hold the interest of fisher folks, farmers, traders and any other interest that the state government may deem appropriate.
• 2 persons from companies, corporations where at least one is deemed to be controlled, owned or managed by the state.
• A member secretary who has adequate knowledge, qualifications and experience in handling cases of environmental pollution.

Functions of State Board (Section 17):

• For the purpose of framing out a systematic schedule to check and avoid pollution of the wells and streams in the state and to ensure the implementation of the plan.
• For the purpose of recommending the appropriate measures that needs to be taken by the State Government in matters concerning prevention and controlling water pollution.
• Working with the central board to educate persons currently or to be employed for preventing or controlling water pollution.
• Providing for the adoption of new or the amendment of effluent standards of sewage and trade effluents and for the quality of receiving water consequent upon the discharge of such effluents and classifying the waters of the state.
• To establish methods for the effective use of sewage and appropriate trade effluents in the agricultural field.
• The state Board has powers to establish laboratories to facilitate the discharge of the board’s function, such as the collection of samples of water from any stream or sewage or trade effluents.

C. The Air (Prevention and Control of Pollution) Act, 1981

Here are the definitions under the Air (Prevention and Control of Pollution) Act. 

Section 2(a) of the cleaner air act defines ‘air pollutants’ as any solid liquid or gaseous substance which may cause harm or damage to the environment, humans, plant, animal or even damage properties. This was followed by an amendment to the act passed in 1987 that included ‘noise’ as one of the injurious substances. According to the air act ‘air pollution’ has been defined as any presence of any dangerous pollutant that makes the air itself to be non-ideal for breathing. 

Section 2 (g) of the Act provided for the Central Pollution Control Board (CPCB) which was vested with power for the whole of India. For implementing the CPCB’s directive the act had also envisaged formation of the State Pollution Control Board (SPCB) for each state in India. The failure to adhere to the Central Pollution Control Board directives meant that one would be imprisoned for one year. It can be extended to 6 years with a fine with the additional fine of Rs. 5000 per day added provided the directive are still not met.

D. The Forest (Conservation) Act, 1980 

The aims of the Act are:

• Safeguard the forest as well as all plants and animals that dwell in it, and all the other features of the forests while maintaining their entirety and domain.
• Tackle forest bio-diversity loss
• Check that forest lands should not be exchanged for the needs of agriculture, pastures or for any other commercial needs and purposes.

Elements of the Forest and Conservation Act 1980:

• The Act further limits the state government and other authorities from making decisions first without the consent of the central government.
• The Forest Conservation Act provides full power to the Central government to implement the given objectives of the act.
• It contains civil penalties regarding the violations of the provisions of FCA.
• The Forest Conservation Act will have advisory committee that will assist the Central government in matters concerning forest conservation.

Section 2: Restriction of further usage of forests for purposes not related to forests.

The section includes provisos where the state authorities cannot enact laws in relation to the forest without the approval of the Central Government. 

According to the Section 3 of this Act, the Central government has the authority to establish an advisory council in relation to advice given to the central government on the conservation of forests

E. The Wildlife (Protection) Act, 1972

The Wild Life Protection Act of 1972 offer legal instruments to protect species of wild animals and plants, management of their ecosystems, regulation and control of trade in wild animals, plants and products for them. The act also categorizes schedules of plants and animals that are protected and closely monitored by the government. Wildlife Act also helped in getting membership for India in the CITES (Convention on International Trade in_Endangered Species of Wild Fauna and Flora). Earlier, Jammu and Kashmir was not included in the Wildlife Protection Act, 1972 passed and implemented across the country. Out of the three new reorganised states, the Indian Wildlife Protection Act now covers the area of J & K. Constitutional Provisions for the Wildlife Act: The 42nd Amendment Act, 1976, Forests and Protection of Wild Animals and Birds was from the State list shifted in Concurrent list. The Constitutions of many countries expressly include protection of the natural environment and wildlife as a fundamental duty of the citizen this is as enshrined in the Article 51 A (g) of the Indian Constitution. The provision on the Directive Principles of State Policy makes it the duty of the State to protect and improve the environment and to preserve the forests and wildlife of India. 

Bodies Constituted under the Act:

National Board for Wildlife (NBWL):National Board for Wildlife (NBWL): 

 NBWL thus functions as a coordinating body for consideration of all matters related to wildlife and as a clearance giving body for any project that is to be located within or near national parks and sanctuaries. 

State Board for Wildlife (SBWL):State Board for Wildlife (SBWL): 

The chairperson of board is the Chief Minister of the state/UT and rest members are the local bureaucrats and health officials. 

Central Zoo Authority: 

The CZA as a chief executive organ has its members who are fixed at 10, inclusive of the Chairperson and a Member-Secretary. The authority gives accreditation to zoos and is also responsible for the governance and supervising of the zoos throughout the country. 

4. COMPLIANCE REQUIREMENTS

A. ENVIRONMENTAL CLEARANCES

Environmental clearance means getting clearance from the government especially for installation and modification (amendment) of the specified projects. This is required for activities that pose a threat of significant pollution of the surrounding environment. Below are some of the projects by the government which include, mining, thermal power plants, infrastructural developmental among other that need environmental compliance. Out of 39 projects today, there are ones that require clearance comprising screening, scoping, and evaluating the upcoming project. The Environment Impact Assessment Notice divides projects into two types: Category A and Category B according to the potential impacts of projects on the environment. Category A projects are approved by the MoEF & CC, whereas Category B projects are approved by the SEIAA of the respective state. Public participation as a key component of the EIA processes Another critical component of EIA is public participation. This empowers persons who are directly affected by the project to contribute to the project’s environmental and social consequences while also making the EC process more transparent. Public participation feature is observed in virtually all EIA systems. These are conducted by public consultation (or discussion) or public participation; this is a more direct and extensive means of engaging the stakeholders.

Public participation is one of the steps in the EC process and is crucial in the outcome of an EIA. It gives people affected by the project an opportunity to raise their concerns towards social and environmental impacts of the proposed project and makes the EC process transparent. Almost all EIA systems contain a provision for public participation in the decision-making process. It might be in form of Participation or Consultations. Many of the EIA procedures include public participation. Public consultation can be defined as the process that enables consideration of residents’ concerns about adverse effects in the EIA study.

The Documents required for obtaining EC may vary depending on the project's nature, scope, and scale. However, some of the commonly required Documents include the following: 

Project proposal or feasibility report – This document gives general information about the project and why it is to be carried out, the geographical area of operation, and the project’s size.

Environmental Impact Assessment (EIA) – A document whose primary content is a statement of the effects that the proposed project is most likely to have on the environment and the measures that are likely to be taken to avoid the effects.

Site plans and maps – These documents are crucial as they indicate location, dimensions, and physical characteristics of the project site.

If the project involves the construction of new plant or expansion of the existing facilities, consent from the local authorities like NOCs/SVCs from SPCB, Ministry of Urban Development or Ministry of Civil Aviation as the case may be.

General description of the project – Provide a brief description of the project that is being proposed, the location, estimated project cost and components of the project for which funding is being sought.

Public hearing report – In situations where the project proponent is obliged to so, they must convene a public hearing with an intent of receiving from the community their views and opinions on the intended project. The public hearing, therefore, needs to be reported to the commission as part of the application for an EC.

Environmental Management Plan (EMP) - EMP is a comprehensive and particular roadmap for controlling and mitigating the effects of the project on the environment as well as possible strategies for managing pollution, wastes, and the protection of species.

The Notification on EIA of 1994 has made EC mandatory for new projects as well as expansion/modernisation of existing projects in 29 disciplines including hydro-power, water resource for substantial irrigation and for flood control. Schedule 1 of EIA Notification 2006 enlists 32 different project categories that must go through the environment approval. Also, an industrial colour code was established with the aim of dividing sectors according to their impacts on the environment. Respecting to their emission intensity the industries were segmented into four categories, such as red categories, orange categories, green categories, and white categories. This means that, companies believed to be white are the only companies that are exempted from obtaining environmental permission.

When commencing any new infrastructure or the expansion project, an EC certificate from the central or state pollution control board is required. It validates to the public that the project will not in any way affect the environment or the society. Clearance or rejection letters are needed where a project falls under both EC and the provisions of the Forest (Conservation) Act of 1980. Both types are submitted to the ministries that are responsible for them. When all the papers and data necessary for the assessment and evaluation of the impact of a particular project on the environment have been received from the project authorities concerned, and after public hearings, if required, the process is completed within 90 days max and the decision of the ministry is communicated to the aforementioned within one month. National Environment Appellate Authority Act states that any individual who is unhappy with the order of granting the EC in the areas in which the industries, operations, or processes indicated shall or shall not be allowed to operate can appeal to the Authority within thirty days from the date of the order was passed. However, if there is a good cause to explain the delay, the Authority shall be allowed to hear the appeal despite having expired the above specified time. The appeal in the Industrial Court must be determined within ninety days from the filing of the appeal. This can be renewable after 30 days, may be a one-time extension or many times depending on the personal preference of the client.

B. ENVIRONMENTAL AUDITS AND REPORTING

First, an environmental audit aims at assessing the performance of a company in terms of the environment. Environmental audits may be conducted on certain activities or, in the case of operations, on certain sections to determine the extent of efficiency and compliance with environmental standards and policies. There are environmental audits today that will make sure that companies try insofar as it is possible to continue with the protection of the environment. Also, their rationale is to monitor and regulate the activities of a company in relation to the environment and its compliance with the various rules that may apply to a firm. Generally, an environmental audit aims to: determine which parts of comprehensive environmental management are effective; discover where there are opportunities to make improvements with regard to environmental sustainability; and …evaluate any emerging new threats in regard to the environment. A variety of objectives and goals can be achieved through an environmental audit. Introducing these audits from a wider perspective, it is possible to state that they evaluate organizational environmental responsibilities. They can to demonstrate to the managerial teams what can be done to enhance environmental aspects, demonstrate which environmental process have the positive impact on the productivity and efficiency, and identify specific threat areas that have potential to cause problems prior to their occurrence.

On this aspect, the main purpose of environmental audits is to determine compliance with environmental laws. There are also legal criteria that vary from one territory or jurisdiction to another in terms of environmental standards, policies, and procedures affecting all organizations. It is worth to underline that violation of the rules and regulations shall entail serious consequences including fines and other penalties depending on the legislation of the certain country.

Organizational compliance measures on the other hand, require environmental audits to ensure that standards are set and applied uniformly across the organization. By the way of environmental audits, an organization establishes where training is required and whether the company has put in place the right control mechanisms. They can also identify whether a company has sufficient channels of communication in matters of environmental issues conformity.

For certification level, organizations have to undergo assessments by an independent third party in order to qualify for certification level ISO 14001. However, in the third party, companies can make their own preliminary internal audit to assess the company’s current status and whether it can be certified in the third-party inspection.

C. WASTE MANAGEMENT

Waste management compliance refers to observing all the laws, rules, and regulations that preserve or govern the collection, transportation, treatment, disposal or landfilling of wastes including hazardous wastes. The constraints narrow down as regulations turn stiff, and to address them, you must maintain a clear and present understanding of all the requirements that an organization has to meet so as to abide by the law diligently, and with documented evidence.

D. CORPORATE SOCIAL RESPONSIBILITY (CSR)

Moving from profit margins, corporate social responsibility widens responsibility horizons with social and environmental aspects. CSR entails the act of a business showing commitment to the wellbeing of the society though support and involvement in the community. According to CSR, a company depicts a certain attitude toward business that stresses success in a way that has direct impact on all the key points of interest to all the stakeholders, including consumers, the employees, society at large, and physical environment. An example is Patagonia which is an outdoor apparel organization; this case can be used since it is well known for its ethical practice and has in the recent past come out more environmental conscious. While embracing the use of sustainable materials, free and fair labor associations, and backing for local environmental causes, corporate social responsibility is visible in the Patagonia Company. Hence, through incorporation of CSR into its strategic business model, Patagonia has over the years nurtured a reliable readership base and a robust brand to cater for the socially-aware customers. An organization can also motivate a employee’s engagement and retention with corporate social responsibility programs. Another reason as to why organizations that support CSR are more likely to employ talent that has similar convictions is that employees will be more productive when working on something they believe in. It is necessary to stress that the successful alignment of the employees and the corporate values contributes to such positive changes as increased satisfaction among the employees and the productivity at the workplace, as well as the increased success rate of the business. Strong CSR assurances can raise progress in environmental performance by supporting pro-active and accountable organizational cultures. Environmental management and corporate social responsibility are connected Environmental management can support the ESP programs of an organization also if only the organization is responsible for its operations.

Therefore, the adoption of the emphatic and sympathetic approach provides companies with a better outlook within the development of the use of a sustainability strategy that integrates the environmental and social factors. Strengthens the company’s positions and its preparedness for further growth at the times when the market is progressively concerned with sustainability and offers value to the planet and society.

5. LANDMARK CASES

A. M.C. MEHTA V. UNION OF INDIA (1986)

The Central Pollution Control Board had asked a question relating to the effluents and waste water discharge since they did not adhere to follow the standard set by the board involving the discharge of wastes with proper technologies. Shriram was required to get consent order under section 25 of the Water (Prevention And Control Of Pollution) Act, 1974 for releasing effluents from the plant. Therefore, the Court ordered the Central Water Board to give a consent order for thirty days only. The Court also directed the Board to take samples out of discharged effluent to ensure that the collected samples meet the aforesaid standards mentioned in the consent order. In the case where the Board was to discover that the standards had been violated, it should notify the Court of the violation. The Court advised that under the consultation with the Central Board, the Government of India should establish a “High Powered Authority” for monitoring the operations of such industries. The Court also asked to prepare a policy of social relevance, the location of such industries in areas where there are no or minimum threats to the health of the public at large.

Certain amount of scientific and technical knowledge is necessary to identify the legal cases on the subject of environment. And if there is no other machinery available, it is quite difficult. For this reason, the Court asked the Indian Government to establish piece of independent machinery known as the “Ecological Sciences Research Group” that would comprises of various science and technology personnel to help the Court in dealing with various environmental matters.

B. VELLORE CITIZENS WELFARE FORUM V. UNION OF INDIA (1996)

The court directed the central government to establish an authority under section 3(3) of the Environment Protection Act of 1986 and prescribed some guidelines for the authority's operation: The authority was provided with powers whereby it could handle matters relating to tanneries and other industries that were polluting in Tamil Nadu State. The authority has the capacity to provide directions under Section 5 of The Environment Act. It should apply what is known as the precautionary principle and the polluter pays principle. It should divide compensation into two categories: reversion of the payments to individuals and the reversal of the ecosystem. A statement should be prepared which includes full of compensations to be paid, names and addresses of polluters and affected families and the total amount to be deposited with the district magistrate/collector of the affected area who will refund the said amount to the affected families. All tanneries identified in North Arcot Ambedkar, Dindigul Anna, Erode Periyar, Chennai M. G. R. and Trichi were charged a cumulative pollution fine of Rs. 10,000 each and were directed to pay the amount before 31st October 1996. It should be paid to the District Magistrate/Collector, who shall pay the same under the head of ‘Environment Protection Fund’ to compensate the affected people and to restore the environment. It has also directed the provision of community treatment works or single source pollution control equipment as well as board approval for sustained operation. The court has passed orders to the superintendent of police and collector/magistrate of the concerned area to shut down or relocate those tanneries which have not obtained permission from the board. It continued to state this in relation to the board’s TDS guidelines as effective and binding on all companies and tanneries operating in Tamil Nadu. The Court suggested the Government of India set up a “High Powered Authority” after consulting with the Central Board to supervise the functioning of such industries. The Court further requested to formulate a national policy regarding the location of such industries in places where there are little or no health hazards to the common public.

Scientific and technical knowledge is required to determine the legal cases regarding the environment. In the absence of any independent machinery, it becomes difficult. Hence, the Court requested the Indian Government to set up a piece of independent machinery called the “Ecological Sciences Research Group” consisting of various science and technology experts to assist the Court in cases relating to environmental issues. The Central Pollution Control Board had asked a question relating to the effluents and waste water discharge since they did not adhere to follow the standard set by the board involving the discharge of wastes with proper technologies. Shriram was required to get consent order under section 25 of the Water (Prevention And Control Of Pollution) Act, 1974 for releasing effluents from the plant. Therefore, the Court ordered the Central Water Board to give a consent order for thirty days only. The Court also directed the Board to take samples out of discharged effluent to ensure that the collected samples meet the aforesaid standards mentioned in the consent order. In the case where the Board was to discover that the standards had been violated, it should notify the Court of the violation. The Court advised that under the consultation with the Central Board, the Government of India should establish a “High Powered Authority” for monitoring the operations of such industries. The Court also asked to prepare a policy of social relevance, the location of such industries in areas where there are no or minimum threats to the health of the public at large.

Certain amount of scientific and technical knowledge is necessary to identify the legal cases on the subject of environment. And if there is no other machinery available, it is quite difficult. For this reason, the Court asked the Indian Government to establish piece of independent machinery known as the “Ecological Sciences Research Group” that would comprises of various science and technology personnel to help the Court in dealing with various environmental matters.

C. INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UNION OF INDIA (1996)

In this context, the principle of “Polluter Pays” was, therefore, stated and acted out by the Court following section 3 and section 5 of the Environment (Protection) Act, 1986 which empowers the Court to take such measures to enforce such a rule. The principle of pricing was adopted under Principle 16 of the Rio Summit of 1992 which entailed that the polluter should in the first instance bear the costs of the pollution charges. In India it evolved with an application of the ‘absolute liability’ principle coined in the case of M. C. Mehta v. Union of India where the court ordered that the polluters have to pay a amount as a penalty for polluting which would be spent on upgrading the environmental and residential conditions of the people of the affected zones. It has further evolved with the case of Indian Council for Environment-legal action Vs. Union of India (UOI) and Ors where the court included accountability, remuneration to the people affected from the environmental deterioration with the total absolute liability rule for the damage caused to the environment of the region. Despite the fact that Polluter Pays was admitted as a principle at the Indian judicial, however, such principle does not appear to form part of the governing or the impending laws. By the Vellore Citizens Welfare Forum v. Union of India and Ors, the Court held that this principle was governed by Articles 48-A and 51-A(g) of the Constitution of India and that the principle could be inferred from the existing legislation. Even where the pollution created fell squarely to within the confines stated upon the polluters, the realization of the market value has been adequately made by the Courts. .

D. S. JAGANNATH V. UNION OF INDIA (1997)

In this case the issues of focus were the ecological and social consequences of commercial aquaculture of shrimp in India. The rice shrimp rotating acqua culture system as practiced earlier by the Indian fishermen had started shifting to more intensified forms of shrimp culture that could yield as many as few thousand kg/ha. This led to the development of a large number of private firms and multi-national firms investing in shrimp farms. In three to four years’ time, it saw more than eighty thousand hectares of land being turned into shrimp production. High returns on investment and expanding market was also anticipated when traditional mode of culture which is environmentally benign was replaced from semi-intensive and intensive methods.

The petitioner required enforcing a coastal zone regulation notification by the Government of India; preventing the intensive and semi-intensive type of prawn farming specifically in the ecologically productive coastal regions; there should be a ban to wet lands for Prawn farming; the formation of National Coastal Management Authority for the protection of marine lives and coasts.

The Supreme Court considered various national and international findings on the environmental and socioeconomic effects of export-oriented shrimp cultivation. The challenges which it considered include loss of agricultural land and mangroves, blocking of natural drains, salinisation, depletion of natural sources of seed, drug and chemical use, extraction of water from the ground, and loss of the diversity. The court further noted that the new increase in the level of shrimp farming, the increased scale of shrimp farming, with little control and management of feeds, seeds, other inputs and water management practices, has raised a new and specific threat to the environment and ecology. There were reports that agricultural lands were being sold and developed into commercial aquaculture farms and the affected farm workers who had been displaced and also loss of arable lands.

The shrimp aquaculture should be done in a sustainable manner that enhances the development of other aspects of the country. It had to grow under the unison banner of ‘environment and development. ’This would require an environmental study of the area that also included social effects on various population groups before permission could be granted for the installation of commercial shrimp farms. It also had to consider the inter-generational justice, as well as the remuneration for those who suffered losses and discrimination.

The court therefore ordered amongst other things that the Central Government ‘must form an authority possessing all the powers required to preserve the fragile coastal ecological systems’. To address these drawbacks, the authority used the “the Precautionary Principle” and “the Polluter Pays” principles. In accordance with the notification of the coastal zone regulation, it was forbidden to construct or set up any shrimp culture pond within the coastal regulation zone. This direction should not be misconstrued as excluding conventional forms of technologies. As prescribed under the notification, all shrimp culture industries within the Coastal regulation zone had to be removed. 

Some of the areas that could not be converted into construction of shrimp culture ponds included agricultural lands, salt pan lands, mangroves, wet lands, forest lands. The other type of shrimp culture industry other than the traditional and improved traditional type could be located outside the coastal regulation zone as provided in the notification with prior permission from the above-mentioned authority. It had to estimate the loss to the ecology and also it had to estimate compensation to individuals/families who had been adversely affected by the pollution.

E. T.N. GODAVARMAN THIRUMULPAD V. UNION OF INDIA (1997)

The court analysed and scrutinized the National Forest Policy and the Forest Conservation Act of 1980. This was to cover the aspects of deforestation. It also looked at the word Forest in relation to the new definition and falls under Section 2 of the Forest Conservation Act 1980. This section says that no state government or any other authority can use the land of the forest for any purpose other than the forestry through prior permission of the central government. As for the new interpretation of Section 2 of the Forest Conservation Act and forest land, it cannot de-reserve protected forest for business purposes without permission. This means that all forest ventures need the approval of the Central Government. For example activities such as a sawmill, mining and plywood factory can function with permission from the Central Government. The key feature of the case is the Constitution of India with regard to the roles of the Central and State governments in the protection of the natural resources against unlawful acts. Article 48A talks of an endeavour for the acquisition and improvement of the environment and includes a responsibility to protect the forest and wildlife of our country. Article 51A gives it upon all the citizens of India the duty to protect and enrich the natural resources that include rivers, lakes, forests, wildlife and to have compassion on all forms of life.

This case is a great example of continuous mandamus at its peak. This is why it is considered to be absolutely the best example of judicial activism and it also serves the purpose of judicial empowering only. They also draw specific negative features of the unreasonable judicial takeover as well as its loopholes. This case clearly explained and defined what the apex court and other leading authorities do to distribute justice. Continuation mandamus refer to a situation whereby the court prolongs its decision-making process and the case can go for over 20 years but has not been completed. In every hearing there is something new in form of new directions being given. The court also went further than the doctrine of separation of power ahead. This was illogical and unpredictable; Most decisions it made were illogical and could have been made arbitrarily. Hence this case contains positive attributes which are the protection of the environment. And also, the disadvantages of encroaching onto other areas of authorities and getting involved therein.

The judgment that they delivered the Supreme Court created a major black market in timber. These encouraged unlawful undertakings within the forest land including cutting down of trees to utilize the space under non-forest use. Interference was observed to be overwhelming to that extent in which the court interfered in the affairs of Ministry of Environment and Forest. Because of this, the Ministry of Environment and Forests was mute; each time they were overshadowed by the directions made by the court and the authorities. This case resulted in what shall be called ‘the centralisation of powers’ where all powers were vested in the Central Government. It was now up to the Central Government only to decide about environment laws in India.

6. FREQUENTLY ASKED QUESTIONS

a. What are the initiatives under the Wildlife Protection Act, 1972?

Project Tiger Conservation launched in 1973, Project Elephant launched in 1992.

b. What is an environment pollutant?

It is a solid, liquid or gaseous substance that is present in concentration and is injurious to the environment.

c. Under which legislation does the Environment Protection Act falls under?

The Welfare Legislation