Ethics of Environmental Law

Environment is a gift of God and Nature and it is endowed with a bounty of natural and living resources. It is this environment that makes life possible on this earth. In the tribal and primitive societies environment is not misused by the human beings. With the growth of human civilization, exploitation of the resources available in the state of nature has also started and has reached alarming proportions over a period of time. It is appropriate to remember what has been stated in Atharva Veda regarding the nature and environment,

“What of thee I dig out

Let that quickly grow over,

let me not hit thy vitals

or thy heart.”

According to the ancient Indian environmental ethics, Prakruti is a gift of God. Air, water, earth, light, life forms, plants and all other elements in the state of nature are considered as divine. Vayudeva, Suryadeva, Agnideva, Parvatha, Ganga, Mother Earth, etc. can be quoted as few examples of the Indian tradition of treating all aspects of nature and environment as Gods and Goddesses. Polluting air, land and water is considered as a disservice to God. Water is considered as a symbol of purity and polluting it was unthinkable. It is stated,  

“Those who wish to wash away their sins bathe

three times in Saraswathi River

seven times in the Yamuna

once in the Ganga

But the very sight of the river Narmada

is cleansing enough.”[1]

Therefore, maintenance of rivers should be viewed as ethical mandate. If rivers are kept pure, they will help us in washing our sins away. Divinity is attached to other natural phenomena such as trees, mountains and animals. Tulsi is a plant that adores the front courtyard of every house in our country giving enhanced good oxygen. Turmeric is not only a medicinal herb but it has a cultural tag. Dharbe grass is essential for Ganesha Puja. Cow is considered as an embodiment of crores of Gods and Goddesses and therefore its killing is considered as a sin. One is reminded of the story of Punyakoti, which symbolizes victory of truth, honesty and sincerity. Even the cruelest of animals, the lion, becomes dumbfound and lays its life in front of the honesty of the meek cow, Punyakoti. Lion can be symbolized as the destroyer of environment and cow as the protector of environment. Killing animals is considered as unethical and killing a cow is considered as a heinous crime. Ahimsa is the kernel of Indian philosophy from Vedic period to the Gandhian era. Indian environmental ethics is a well blossomed philosophy of environmental protection and sustainable development.

According to the Injunctions of Koutilya, State is required to maintain forests.[2] There were regulations for cutting and selling trees and fines were imposed for violating the norms and the compensation has to be paid by the culprits. People were held liable for damaging forests and again fines and compensations were imposed on the violators. The ruler alone is entitled to exploit the forest produce. Forest reserves for wild animals were also maintained. Protection of wild life is provided and fee is charged for hunting.

Ashoka took tremendous care of invaluable assets of environment. He prohibited killing of varieties of animals. Chaff containing living things must not be set on fire; forests must not be burnt; an animal must not be fed with another animal; fishing was regulated; and killing, castrating and branding domestic animals was regulated.[3] This is how Indian history is replete with examples of respecting the nature and environment.

Many of the Indian ethical formulations were in practice until India came under various foreign rulers. We find gradual erosion of these ethical and moral principles during the long spell of foreign rule of our country. The aftermath of industrial revolution saw ruthless exploitation of the environment. The newly brought out scientific and technological tools and equipments came in handily to satisfy the greed of the human beings in exploiting the rich resources of the nature resulting in the degradation of environment. Establishment of huge industries has added fuel to the fire of pollution. The problem of environmental pollution became international over a period of time resulting in the convening of international conference in a bid to find a solution to this problem. Indira Gandhi made the following observation at the conference, “It has been my experience that people who are at cross purposes with nature are cynical about mankind and ill-at-ease with themselves. Modern man must reestablish an unbroken link with nature and with life. He must again learn to invoke the energy of growing things and to recognise as did the ancients in India centuries ago, that one can take from the earth and the atmosphere only so much as one puts back to them.”[4]

Environmental protection has been a very important legal matter in independent India. Under the Indian Constitution, right to a wholesome environment is a facet of right to life under Article 21. Legal obligation is imposed under the Constitution for strict enforcement of environmental laws. There could be no justification for non-performance. Two principles that govern the responsibility were the polluter pays principle and the precautionary principle. Government agencies were required to pay due regard for ecological factors while decision making. Stringent action against defaulters was contemplated. Power was given under environmental laws only to advance environmental protection. State is the trustee of all natural resources. The State is under an obligation not only to protect but also improve the environment. It is stated under the Directive Principles of State Policy that the State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country.[5] In the chapter on Fundamental Duties added later on to the Constitution, there is a clear duty cast upon every one “to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures.”[6]  

In addition to the constitutional mandate, series of enactments were passed in our country to protect the environment. They include The Environment (Protection) Act, 1986; The Air (Prevention and Control of Protection) Act, 1981; The Water (Prevention and Control of Pollution) Act, 1974; The Water (Prevention and Control of Pollution) Cess Act, 1977; The Wild Life (Protection) Act, 1972; The Public Liability Insurance Act, 1991; The National Environmental Tribunal Act, 1995; The National Environmental Appellate Authority Act, 1997; The Mines and Minerals (Regulation and Development) Act, 1957; The Indian Forest Act, 1927; The Forest Conservation Act, 1980; The Insecticides Act, 1968; The Atomic Energy Act, 1948; The Factories Act, 1948, etc.

The Environmental Protection Act, 1986 is passed in order to implement the principles of Stockholm Declaration, 1972. It is umbrella legislation for coordination of the laws relating to the protection of environment. It is an enabling law providing wide powers to execute the environment policy. Broad definition of environment is given under the Act. Section 3 empowers the Central Government to take measures to protect the environment. Section 23 empowers the Center to delegate its powers to any officer, State Government or other authority. Section 24 gives overriding effect to this law over any other law. Environment impact assessment programme was launched in 1994 as required under this umbrella legislation.

The Water (Prevention and Control of Protection) Act, 1974 establishes Central and State Pollution Control Boards. The Act covers streams, inland waters, subterranean waters, sea and tidal waters. State Boards are empowered to prescribe standards. The Air (Prevention and Control of Protection) Act, Act, 1981 provides executive functions to the State Boards. It grants discretion to State Governments to designate “air pollution control areas”. Magistrate is authorized to restrain air polluters. Citizens can sue polluters and also get data from Boards. Procedures are the same as in Water Act. The Forest Act, 1927 gives jurisdiction to States on private and public forests. Public forests are classified into reserve forests, village forests and protected forests. The Wildlife Protection Act, 1972 provides statutory framework for protecting wild animals, plants and their habitats. The Act has adopted a two-pronged conservation strategy: first, specified endangered species are protected regardless of location; and secondly, all species are protected in designated areas called sanctuaries and national parks. This enactment provides for Wildlife Advisory Boards and appointment of wildlife wardens and other staff to protect the wild animals. Hunting of animals listed in schedules is prohibited.

There is no doubt that we have number of laws relating to the protection of our environment. But the million dollar question that is to be examined is whether the Environmental Law of our country is effective? Observation made by the Hon’ble Supreme Court in the case of Indian Council for Enviro-Legal Action v Union of India[7] bears a testimony to the inefficacy of our environmental law. The Court observed, “If the mere enactment of laws relating to the protection of environment was to ensure a clean and pollution free environment, then India would perhaps, be the least polluted country in the world. But this is not so. There are stated to be over 200 Central and State statutes which have at least some concern with environmental protection, either directly or indirectly. The plethora of such enactments has unfortunately, not resulted in preventing environmental degradation which, on the contrary has increased over the years.”

Environment pollution is going on in our country unabatedly, in spite of a plethora of laws being enacted to protect our precious environment and the valiant efforts by environment activists like M.C. Mehta of environment litigation fame and Sunderlal Bahuguna of Chipko Movement and other environmentalists. We have to ponder over the causes and reasons for the environment pollution and the ways and means of preventing and controlling it.

In the first instance, it is to be noted that the State itself is the greatest polluter of our environment. Mega projects such as The Silent Valley Project 1970, The Tahri Dam Project 1985, The Narmada Valley project, Thermal Power Projects, etc are the state sponsored activities that are disturbing the environment. Protests are held by environment activists against these projects. When ever the developmental projects are to be taken up by the government, is it not its duty to balance the problem of environmental hazard and the development?

In many cases the Government deliberately remains a silent spectator and allows the pollution to go on. Industrial pollution is mainly by the big industrial tycoons who are always hand in glove with the men in governance. The men in governance have to exhibit the courage of implementing the law dispassionately.

I would like to draw your attention to the mining of manganese ore in Karnataka, which has become a big environmental hazard and nuisance to the people. Is our Mines Act inefficient to regulate these mining activities? The way in which entire atmosphere in the area of mining and the area through which it is transported is vitiated is a serious matter requiring not only serious attention but also a viable solution.

Another disturbing activity having impact on the environment is the establishment of SEZs by taking away huge farm lands. The expansion of cities by destroying the green belt around them is a matter of serious concern.

The Government of India intends to increase its forest cover from the current 22 percent of total land area to 33 percent. The ground realities are different. A large number of dams, coal and hydel power stations, and SEZs, which are being proposed and implemented in the country, will only reduce the forest coverage.[8] The country has no option but to make sincere efforts to balance the social and environmental aspects on one hand and the demand for more exploitation of natural resources on the other hand. Business as usual cannot be an option for the future. What the country urgently needs is a set of highly effective policies and implement such policies earnestly and set a model of development to the global community.[9]

I have tried to raise some of the issues that are required to be looked into by those who really care for environment. The distinguished resource persons and the delegates will take up these issues along with other important national and international issues relating to environment and deliberate upon with a view to find out concrete solutions to these burning problems. I wish the seminar a great success and thank the organizers for giving me an opportunity to inaugurate the Seminar.

Dr. J. S. Patil*