An appraisal of Environmental Law in India
Once the poverty was considered the biggest polluter in India but after the rapid growing industrialisation in post 1991 era is leading to a number of environmental issues in India because of the uncontrolled growth of urbanisation and industrialisation expansion and massive intensification of agriculture, and the destruction of forests.
Major environmental issues are forest and agricultural degradation of land, resource depletion (water, mineral, forest, sand, rocks etc.), enviromental degradationpublic health, loss of biodiversity , loss of resilience in ecosystems, livelihood security for the poor.
Environmental Law in India is very scattered and patchy. It shows that the Environmental Law in India is still in a developing phase and has not attained its maturity. India's approach towards the Environment would be clear from the speech of the former prime minister of India Smt. Indira Gandhi who said that the biggest polluter in India is poverty. From there India has come a long way and now the industrialization in India due to post 1991 liberalization and globalization has paved the way to the Environmental pollution.
Now India is facing the environmental pollution from the Air craft to Mobile. The Air Pollution, Noise Pollution, Water Pollution and E-waste, Bio-medical waste is a big area of concern. After the Rio de Janerio summit India has also made changes in its Environmental policies and law. Further where the executive has legislature has failed the judiciary has filled the vacuum.
In the ancient India forests & wildlife were considered as vital ingredients of the global system. Here, the entire scheme of environmental preservation was essentially duty-based. The legislative measures were taken only by the British Government for prevention of pollution and for conservation of natural resources when Laws aimed at controlling air pollution were enacted ie. The Bengal Smoke Nuisance Act of 1905 and the Bombay Smoke Nuisance Act of 1912.
The Constitution of India originally adopted, did not contain any direct and specific provision regarding the protection of natural environment but a careful analysis of various provisions prior to the 42nd Constitutional Amendment, reveals that some of the Directive Principles of State Policy showed a slight inclination towards environmental protection. It can be inferred from Art 39(b), Art 47, Art 48 and Art 49 [1].The Indian Constitution under Article 246, empowers the Union Parliament and the state legislatures to enact and implement laws relating to activities under their domain. The seventh schedule to the constitution assigns the responsibilities of the two levels of government under the "union", "state" and "concurrent" lists. The central and state governments have exclusive authority over the union and state lists respectively and both the levels have jurisdiction over the activities in the concurrent list with the former having overriding powers. The residual power to legislate on the subjects not covered in the three lists is delegated to the centre by Article 248. Article 249 empowers the centre to legislate on any subject in the state list in the "national interest", it can also enact laws on state subject if two or more state legislatures consent to such legislation (Article 252). Article 253 empowers the centre to make laws necessary to implement treaties to which India is a signatory and decisions of conferences of which India is a participant.
Some important piece of legislation during post independence era are The Water (Prevention and Control of Pollution) Act of 1974, The Air (Prevention and Control of Pollution) Act of 1981, The Environment Protection Act of 1986, Public Liability Insurance Act in 1991, The National Environmental Tribunal Act of 1995, Wildlife Protection Act, 1972 , The Biological Diversity Act, 2002, Hazardous Wastes (Management And Handling) Amendment Rules, 2003, and some related legislation i.e The Merchant Shipping Act, 1958, The River Boards Act, 1956 ,The Mines Act, 1952,The Factories Act, 1948, The Damodar Valley Corporation Act, 1948 ,The Indian Forest Act, 1927
Apart from above there are some rules relating to Environmental Pollution which include the Hazardous Wastes (Management and Handling) Rules in 1989, the Biomedical Wastes (Management and Handling) Rules in 1998, Recycled Plastics (Manufacture and Usage) Rules 1999, Environment (Silting for Industrial Projects) Rules 1999 and the Municipal Solid Wastes (Management and Handling) Rules in 2000.In addition to these eco-specific legislations, realizing that there is no comprehensive legislation dealing with biodiversity in India, and to fulfill its international obligation under the Convention on Bio-Diversity, the Government of India has enacted the Biological Diversity Act, 2002.
Although India has enough environmental legislation but the implementing system is ineffective and it said that the Environmental laws in India are like a barking dog which seldom bite. The shortcomings of the executive in coping with the pressures on the environment brought about by change in the country's economic policies had thrust the responsibility of environmental protection upon the judiciary. This has meant that in India, the Judiciary in some instances had had to not only exercise its role as an interpreter of the law but has also had to take upon itself the role of constant monitoring and implementation necessitated through a series of public interest litigations that have been initiated in various courts. In its efforts to protect the environment, the Supreme Court and the Indian Judiciary in general have relied on the public trust doctrine, precautionary principle, polluter pays principle the doctrine of strict and absolute liability, the exemplary damages principle, the pollution fine principle and inter-generational equity principle apart from the existing law of the land. Another guiding principle has been that of adopting a model of sustainable development. The consistent position adopted by the courts as enunciated in one of its judgments has been that there can neither be development at the cost of the environment or environment at the cost of development.
Leading environmental case dealt by the Supreme Court are MC. Mehta v. Union of India AIR 1987 SC 1086, Consumer Education and Research Center v Union of India AIR 1995 SC 992,Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647, Indian Council for Enviro-Legal Action v Union of India AIR 1996 SC 1446, Vineet Kumar Mathur v. UOI & Others (1996) 7 SCC 714,TN Godavarman v Union of India (1997) 10 SCC 775, M.C.Mehta v. Kamal Nath And Others(1997)1 SCC 388, Andhra Pradesh Pollution Control Board v Prof MV Nayadu (1999) 2 SCC 718. - M.I. Builders v Radhey Shyam Sahu AIR 1999 SC 2468, Research Foundation for Science Technology National Resource Policy v. Union of India and anr.(1999) 1 SCC 223,, AQFM Yamuna v Central Pollution Control Board (2000) 9 SCC 499, Buffalo Traders Welfare Association v Union of India & Ors. (2004) 11 SCC 333, Re Noise Pollution - (2005) 5 SCC 733.
Author: Azeez Nazar Sabri, LLM(Business Laws), email :azeezsabri@gmail.com
Major environmental issues are forest and agricultural degradation of land, resource depletion (water, mineral, forest, sand, rocks etc.), enviromental degradationpublic health, loss of biodiversity , loss of resilience in ecosystems, livelihood security for the poor.
Environmental Law in India is very scattered and patchy. It shows that the Environmental Law in India is still in a developing phase and has not attained its maturity. India's approach towards the Environment would be clear from the speech of the former prime minister of India Smt. Indira Gandhi who said that the biggest polluter in India is poverty. From there India has come a long way and now the industrialization in India due to post 1991 liberalization and globalization has paved the way to the Environmental pollution.
Now India is facing the environmental pollution from the Air craft to Mobile. The Air Pollution, Noise Pollution, Water Pollution and E-waste, Bio-medical waste is a big area of concern. After the Rio de Janerio summit India has also made changes in its Environmental policies and law. Further where the executive has legislature has failed the judiciary has filled the vacuum.
In the ancient India forests & wildlife were considered as vital ingredients of the global system. Here, the entire scheme of environmental preservation was essentially duty-based. The legislative measures were taken only by the British Government for prevention of pollution and for conservation of natural resources when Laws aimed at controlling air pollution were enacted ie. The Bengal Smoke Nuisance Act of 1905 and the Bombay Smoke Nuisance Act of 1912.
The Constitution of India originally adopted, did not contain any direct and specific provision regarding the protection of natural environment but a careful analysis of various provisions prior to the 42nd Constitutional Amendment, reveals that some of the Directive Principles of State Policy showed a slight inclination towards environmental protection. It can be inferred from Art 39(b), Art 47, Art 48 and Art 49 [1].The Indian Constitution under Article 246, empowers the Union Parliament and the state legislatures to enact and implement laws relating to activities under their domain. The seventh schedule to the constitution assigns the responsibilities of the two levels of government under the "union", "state" and "concurrent" lists. The central and state governments have exclusive authority over the union and state lists respectively and both the levels have jurisdiction over the activities in the concurrent list with the former having overriding powers. The residual power to legislate on the subjects not covered in the three lists is delegated to the centre by Article 248. Article 249 empowers the centre to legislate on any subject in the state list in the "national interest", it can also enact laws on state subject if two or more state legislatures consent to such legislation (Article 252). Article 253 empowers the centre to make laws necessary to implement treaties to which India is a signatory and decisions of conferences of which India is a participant.
Some important piece of legislation during post independence era are The Water (Prevention and Control of Pollution) Act of 1974, The Air (Prevention and Control of Pollution) Act of 1981, The Environment Protection Act of 1986, Public Liability Insurance Act in 1991, The National Environmental Tribunal Act of 1995, Wildlife Protection Act, 1972 , The Biological Diversity Act, 2002, Hazardous Wastes (Management And Handling) Amendment Rules, 2003, and some related legislation i.e The Merchant Shipping Act, 1958, The River Boards Act, 1956 ,The Mines Act, 1952,The Factories Act, 1948, The Damodar Valley Corporation Act, 1948 ,The Indian Forest Act, 1927
Apart from above there are some rules relating to Environmental Pollution which include the Hazardous Wastes (Management and Handling) Rules in 1989, the Biomedical Wastes (Management and Handling) Rules in 1998, Recycled Plastics (Manufacture and Usage) Rules 1999, Environment (Silting for Industrial Projects) Rules 1999 and the Municipal Solid Wastes (Management and Handling) Rules in 2000.In addition to these eco-specific legislations, realizing that there is no comprehensive legislation dealing with biodiversity in India, and to fulfill its international obligation under the Convention on Bio-Diversity, the Government of India has enacted the Biological Diversity Act, 2002.
Although India has enough environmental legislation but the implementing system is ineffective and it said that the Environmental laws in India are like a barking dog which seldom bite. The shortcomings of the executive in coping with the pressures on the environment brought about by change in the country's economic policies had thrust the responsibility of environmental protection upon the judiciary. This has meant that in India, the Judiciary in some instances had had to not only exercise its role as an interpreter of the law but has also had to take upon itself the role of constant monitoring and implementation necessitated through a series of public interest litigations that have been initiated in various courts. In its efforts to protect the environment, the Supreme Court and the Indian Judiciary in general have relied on the public trust doctrine, precautionary principle, polluter pays principle the doctrine of strict and absolute liability, the exemplary damages principle, the pollution fine principle and inter-generational equity principle apart from the existing law of the land. Another guiding principle has been that of adopting a model of sustainable development. The consistent position adopted by the courts as enunciated in one of its judgments has been that there can neither be development at the cost of the environment or environment at the cost of development.
Leading environmental case dealt by the Supreme Court are MC. Mehta v. Union of India AIR 1987 SC 1086, Consumer Education and Research Center v Union of India AIR 1995 SC 992,Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647, Indian Council for Enviro-Legal Action v Union of India AIR 1996 SC 1446, Vineet Kumar Mathur v. UOI & Others (1996) 7 SCC 714,TN Godavarman v Union of India (1997) 10 SCC 775, M.C.Mehta v. Kamal Nath And Others(1997)1 SCC 388, Andhra Pradesh Pollution Control Board v Prof MV Nayadu (1999) 2 SCC 718. - M.I. Builders v Radhey Shyam Sahu AIR 1999 SC 2468, Research Foundation for Science Technology National Resource Policy v. Union of India and anr.(1999) 1 SCC 223,, AQFM Yamuna v Central Pollution Control Board (2000) 9 SCC 499, Buffalo Traders Welfare Association v Union of India & Ors. (2004) 11 SCC 333, Re Noise Pollution - (2005) 5 SCC 733.
Author: Azeez Nazar Sabri, LLM(Business Laws), email :azeezsabri@gmail.com
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