Laws available for the protection of Environment

3rd Year Law Student From IFHE, Hyderabad (Icfai Foundation for Higher Education)

 

Introduction:

Our environment is a system of interaction between the natural system and the social system for meeting. Our human needs and wants are dependent on the biophysical environment, which is governed by a set of sovereign immutable laws. This will enable us to make a rational and appropriate use of environmental resources for suitable development.The word 'Environment' has originated from French word environ, means surroundings and "ment" means the actioning. The term 'environment' etymologically means surroundings. According to the committee on Environmental Health Association of America, environment comprises the surroundings in which man lives, works and plays.

Environment is defined as including water, air, soil, flora and fauna. In the 1972 Stockholm Declaration also “especially representative samples of natural ecosystems” are included in the definition  and the New Zealand Environment Act of 1986, where the environment is defined as including:

“a) ecosystems and their constituent parts;

b) all natural and physical resources;

c) the social, economic, aesthetic and cultural conditions which affect the environment or which are affected by changes to the environment

 

Increased population in the world, and all human are the Major Reasons for Environmental Pollution.In the 1960s, issues concerning oil casualties and use of pesticides were on the agenda. During the 1970s, the major cause of damage concern was point sources, i.e. emissions from large industrial plants, and chemicals. During the 1980s, non-point sources, i.e. diffuse emissions from numerous small activities, came into focus. A typical example is car emissions. Transport, agriculture, and trade in products for consumption were major components of the discussion. Further issues attended were the ozone layer1 and climate together with waste management. Today, the protection of biological diversity and natural resources, as well as remedying contaminated land, are being highlighted. This change of direction could be due to the findings of the 1987 Brundtland Report and there are many legislations evolved in our Country for the protection of the Environment. Therefore, a paper detailing “recent developments in India” would necessarily involve a thorough discussion of most relevant environmental issues and their consequences

Judicial Activism for the protection of the Environment:

Failure on the part of the governmental agencies to effectively enforce environmental laws and non-compliance with statutory norms by polluters resulted in an accelerated degradation of the environment.  Most of the rivers and water bodies were polluted, and large-scale deforestation was carried out with impunity. There was also a rapid increase in casualties due to respiratory disorders caused by widespread air pollution .and Public Interest Litigation (PIL) has come to stay in India.  Which “means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected." Contrary to the past practices, today a person acting bona fide and having sufficient interest can move the courts for redressing public enquiry, enforcing public duty, protecting social and collective rights and interests and vindicating public interest. In course of time there has been a wave of environmental litigation .At present most environmental actions in India are brought under Articles 32 and 226 of the Constitution

The Court has successfully isolated specific environmental law principles upon the interpretation of Indian statutes and the Constitution, combined with a liberal view towards ensuring social justice and the protection of human rights. The principles have often found reflection in the Constitution in some form, and are usually justified even when not explicitly mentioned in the concerned statute.

The precautionary Principle and the new concept ‘Burden of Proof” The polluter pays principles and sustainable development in relation to Environmental Protection have merged and govern the Law of our Country can be seen in A.P.Pollution Board vs Prof. M.V.Naidu and the Court discussed the development of the precautionary principle. Furthermore, in the Narmada case, the Court explained that “When there is a state of uncertainty due to the lack of data or material about the extent of damage or pollution likely to be caused, then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution.”

 

Constitutional Provisions for the protection of the Environment:

Under Part III of the Indian Constitution Fundamental Rights were inserted in our constitution and Article 21 of the Indian Constitution talks about that According to Article 21 of the constitution, “no person shall be deprived of his life or personal liberty except according to procedure established by law.” And Article 21 guarantees a fundamental right to life –a life of dignity to be lived in a proper environment, free of danger of disease and infection. The right to live in a healthy environment as part of Art. 21 of the Constitution was first recognized in the case of Rural Litigation and Entitlement Kendra vs. State of U.P., AIR 1988 SC 2187 (Popularly known as Dehradun Quarrying Case). It is the first case of this kind in India, involving issues relating to environment and ecological balance. The R.L. & E. Kendra and others in a letter to the Supreme Court complained about the illegal / unauthorized mining in the Missouri, Dehradun belt. As a result, the ecology of the surrounding area was adversely affected and it led to the environmental disorder. The Supreme Court treated the letter as writ petition under Art. 32 of the Constitution and directed to stop the excavation (illegal mining) under the Environment (Protection) Act, 1986. The respondents contended / argued that the write petition was registered in 1983 and the Environment (Protection) Act was passed in 1986 and hence the criminal proceedings cannot be initiated with retrospective effect. The court rejected the contention of the respondents and held that the provisions of procedural law shall apply to ordinary criminal cases and not to the environmental cases. The court directed the Central and State Governments to take necessary steps to prevent illegal mining and to re-afforesation in the area of mining.

Article 48-A in the Chapter, Directive Principles of State Policy. Deals with the protection of the Environment which states that  “the State shall Endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”. Further, a new provision Article 51-A in the form of “Fundamental Duties” was also incorporated by the 42nd Amendment. According to the sub-clause (g) of Art. 51-A, “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”

The above two provision impose two-fold responsibilities. On the one hand, it gives directive to the State for protection and improvement of environment, and on the other hand it casts/imposes a duty on every citizen to help in the preservation of natural environment.

Part XI of the Constitution governs the division of legislative and administrative authority between the centre and states. Article 246 divides the subject areas for legislation into three lists, viz, Union List, State List and Concurrent List. The subject areas related to environmental protection are:

Union List

6. Atomic energy and mineral resources necessary for its production

14. Entering agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries

24. Shipping and navigation on inland waterways

25. Maritime shipping and navigation, including shipping and navigation on tidal waters

29. Airways, regulation and organisations of air traffic and of aerodromes

52. Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest

53. Regulation and development of oil fields and mineral oil resources

54. Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest

56. Regulation and development of inter-state rivers and river valleys

57. Fishing and fisheries beyond territorial waters

 

State List

6. Public health and sanitation, hospitals and dispensaries

10. Burials and burial grounds, cremations and cremation grounds

14. Agriculture

15. Preservation, protection and improvement of stock and prevention of animal diseases

17. Water, that is to stay, water supplies, irrigation and canals, drainage andembankment,water storage and water power subject to the provisions of Entry 56 of Union List

18. Land

21. Fisheries

Concurrent List

17. Prevention of cruelty to animals

18. Adulteration of food stuffs and other goods

19. Drugs and poisons

20. Economic and social planning

20A. Population control and family planning

29. Prevention of the extension from one state to another of infecting or contagious diseases or pests affecting, men, animals or plants

32. Shipping and navigation on inland waterways as regards mechanically propelled vessels

36. Factories

37. Boilers

38. Archaeological sites and remains other than those declared by or under law made by Parliament to be of national importance

Criminal Liability in relation to Environmental Pollution:

The Indian Penal Code 1860, enacted during the British rule, contains one chapter(ChapterXIV) on offences affecting public health, safety, convenience, decency and morals. Section 268 covers public nuisance. Sections 269 and 272 deal with adulteration of food or drink for sale and adulteration of drugs respectively. Section 277 lays down that, whoever, voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less fit for the purpose for which it is ordinarily used shall be punished with imprisonment for a term which may extend to 3 months, or with a fine which may extend to Rs.500, or with both. Section 278 lays down that whoever voluntarily vitiates the atmosphere so as to make it noxious to the health of persons in dwelling or carrying on business in the neighbourhood or passing along a public way shall be punished with fine which may extent to Rs.500. Sections 284,285 and 286 deal with negligent conduct with respect to poisonous substances, combustible matter and explosive substances. Sections 428 and 429 cover mischief to animals.

 

Conclusions and Suggestions:

Despite Many Legislative Framework in India and proactive engagement of Indian Judiciary in protection of Environmentbecause of which, some critics of India's Supreme Court describe the Court as the Lords of Green Benchor Garbage Supervisor. Supporters of India's Supreme Court term these orders and the Indian bench as pioneering, both in terms of laying down new principles of law, and in delivering environmental justice but still India is facing the major issues like Air pollution, poor management of waste, growing water scarcity, falling groundwater tables, water pollution, preservation and quality of forests, biodiversity loss, and land/soil degradation.

Major Reasons for the Pollution in India is the Population of the Country,Changing Lifestyle, and Some believe economic development is causing the environmental issues. Others believe economic development is key to improving India's environmental management and preventing pollution in India and Lack of the Proper Implementation by the Government are the Reasons for the Environmental Pollution in Our Country.

Suggestions:

1. Awareness have to be spread among the People about the dangerous effects of the Environmental Pollution

2. As per the 186th Report of the Law Commission on ‘Proposal to constitute Environment Courts’.Government have to take an initiative to set up the Environmental Courts

3. The government can also provide an enabling environment to community based organizations to participate in the management of local commons and in the enforcement of environmental laws and rules

 

References:

1. All India Reports

2.  Supreme Court Digests

3. Environmental Law Case Book, 2nd Edition by P Leelakrishnan

4. Environmental Jurisprudence-Polluters Liability, 1st Edition,by Indrajeet Dubey

5. Book on Constitutional Law of India , ,48th Edition, By Dr.J.N.Pandey

6. The Constitutional of India Vol.1 & 2, By Kagzi , M.C. Jain

7.  Padala Ramireddy , Indian Penal Code,1860

Websites:

1. http://www.ceeraindia.org/documents/lib_tabofcon_160300.htm

2. http://lawcommissionofindia.nic.in/reports/186th%20report.pdf

3. http://www.lawteacher.net/environmental-law/essays/environmental-protection-laws-in-india.php

4. http://www.lawteacher.net/environmental-law/essays/environmental-protection-laws-in-india.php

5. http://envfor.nic.in/modules/rules-and-regulations/environment-protection/

6. http://moef.nic.in/divisions/ic/wssd/doc2/ch2.html

7. http://saferenvironment.wordpress.com/2010/04/01/the-environment-protection-act-1986-in-india/

8. http://www.ecoinsee.org/T.S.%20III%20A%5Cprasad_environmental.pdf

9. http://www.chillibreeze.com/articles_various/Environment-in-India.asp  

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Ch.Lakshmi Anusha

 

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