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BURNISHED LAW JOURNAL
Pradip Kumar Kashyap & Sunit Dwivedi
Laws and Institutions Relating to Environmental Protection in India: Challenges for Enforcement
Pradip Kumar KashyapSunit Dwivedi1
“Earth provides enough to satisfy every man's needs, but not every man's greed.”
-Mahatma Gandhi
Abstract
The development of Indian environmental law has happened, for the most part, over the last
three decades, with a significant level of polarization around the latter half of this period.
Therefore, a paper detailing “recent developments in India” would necessarily involve a
thorough discussion of most relevant environmental issues and their consequences. The
development of the law in this area has seen a considerable share of initiative by the Indian
judiciary, particularly the higher judiciary, consisting of the Supreme Court of India, and the
High Courts of the States. The paper will dwell on this aspect and its effect on the strength of the
legal framework. Legislative schemes and initiatives have been created in most areas involving
the environment, albeit with some degree of overlap. The role of the administration, although a
critical factor in the success of any environmental management programme, has seen its share of
problems of scale and definition. The essence of the existing law relating to the environment has
developed through legislative and judicial initiative.
Through this article I would like to focused on the following matters
a) Phases of the Evolution of Environment Law
b) The Constitutional Framework, Legislative Measures for Protection of Environment
c) Role of Indian Judiciary in Environmental Protection
1 Research Scholar, CCS University Meerut,[email protected]., E-mail:- [email protected], P.no:- 08802437640
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d) Development of Environmental Law Principles
e) Challenges for Enforcement of Environment Legislation Effetely etc.
This research paper is totally based upon secondary source of data such as books, magazine,
newspaper, articles etc.
Key words: - Environment, Legislation, Sustainable Development, PIL, Hazards.
1. Introduction
Word "environment" is most commonly used describing "natural" environment and means the
sum of all living and non-living things that surround an organism, or group of organisms.
Environment includes all elements, factors, and conditions that have some impact on growth and
development of certain organism. Environment includes both biotic and a-biotic factors that have
influence on observed organism. A-biotic factors such as light, temperature, water, atmospheric
gases combine with biotic factors (all surrounding living species). Environment often changes
after some time and therefore many organisms have ability to adapt to these changes. However
tolerance range is not the same with all species and exposure to environmental conditions at the
limit of an certain organism's tolerance range represents environmental stress.
Environment is the immediate surrounding space around man. It includes a biotic and biotic
component. So environment not only means our environment but also varies of issues connected
with human activity and its impact on natural resources. It has been observed that in recent past
far reaching changes have taken place. Man has played a key role in modifying the environment
in his constant efforts towards improving the standard of living2
Today, the conservation, protection and improvement of human environment are major issues all
over the world. Human environment consists of both physical environment and biological
environment. Physical environment covers land, water and air. Biological environment includes
plants, animals and other organisms. Both physical and biological environment are inter-
dependent. Industrialization, urbanization, explosion of population, over-exploitation of
resources, disruption of natural ecological balances, destruction of a multitude of animal and
2 L.D Saini, Environmental Education, Kalyani Publisher, Ludhiana, p 1.
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plant species for economic reasons are the factors which have contributed to environmental
deterioration.3
Environment is defined as the surroundings in which the organism lives. The environment may
be the physical environment, the chemical environment or the biological environment.Organisms
are dependent on the environment to fulfill their needs; man is also constantly interacting with
the environment in order to fulfill his needs. These needs include the basic needs of oxygen, food
and shelter in addition to the social needs like entertainment, medicines, etc. The things that man
requires for his survival and comfort are called the resources. The environment is a reservoir of
resources. Maintaining the natural resources of the environment and their careful use is called
conservation. The conservation of environment involves the conservation of the natural
resources.4
2. Phases of the Evolution of Environment Law in India
The evolution of environment Law in India can be divided into three phases.
The first phase can be dated back to pre Vedic age, when the Manusmriti is supposed to be
created. The society at that time respected and even prayed the environment, as the components
of environment, like animals, trees had considerable importance in our ancient texts. Examples
of this are, the concept of Panchvati and the fact that Manusmriti punishes for causing injury to
plants. Kautilya, described penal actions against a person hurting a tree on the basis of the
sanctity adorned to the tree. The nature of the duty of individual to protect the environment was
not only to punish the culprit but also to balance the eco system. The concept of Sustainable
Development as defined by the Brunt land Commission was the essence of duty imposed upon
an individual to protect the environment by the ancient manuscripts in India. These manuscripts
had the force of law, so these can be said to be the first phase of Environment Legislation in
India. Most of the laws were codified by the British in the second half of the 19 th century. .
Similarly many environment protection oriented legislation like- The Shore Nuisance Act, 1853,
Indian Forests Act, 1865, Wild Birds and Animals protection Act, 1912 -Explosive Substance
Act, 1908, The Poison Act, 1919. The objective of these laws was to protect the environment by
preventing discharge of polluting substances, by limiting or banning their discharge, and the
objective was also to prevent hunting, poaching and tree felling. In the Constitution of India, all 3Sachidanand Pandey v. State of West BengaAIR 1987 SC 1109.4Our Environment Introduction, Available at http://www.tutorvista.com/content/science/science-ii/ environment /introduction.php.
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natural resources except forests were given to states for management and forests were kept in the
concurrent list. Many legislations like Water (Prevention and Control of Pollution Act), 1974,
Environment Protection Act, 1986, Air (Prevention and Control of Pollution Act), 1981. The
Article 48 and 51, Directive Principles of State Policy and Fundamental Duties of every citizen
of India, envisage to rotect the environment. These are some laws by which the Parliament began
its legislations on Environment.
The third phase of environment legislations began in India, when the Supreme Court over ruled
the principle of Strict Liability (Rylands v Fletcher) and formulated the principle of Strict
Liability in the case of MC Mehta v Union of India5, which says that for every non natural use of
land, by bringing a hazardous thing on that land, and if that escapes even without fault of
defendant, the defendant is absolutely liable for its escape and defenses are very less. During this
phase, the concept of filing a public interest litigation for environment related causes, where
anyone could approach the courts to stop an activity causing environmental degradation. Also
there are parameters like Environment Impact Assessment, Environment Management Plan
which every industry have to make and follow.6
3. The Constitutional Framework
Stockholm Declaration of 1972 was perhaps the first major attempt to conserve and protect the
human environment at the international level. As a consequence of this Declaration, the States
were required to adopt legislative measures to protect and improve the environment.
Accordingly, Indian Parliament inserted two Articles, i.e.,, 48A and 51A in the Constitution of
India in 19767. Article 48A of the Constitution rightly directs that the State shall endeavour to
protect and improve the environment and safeguard forests and wildlife of the country. Similarly,
clause (g) of Article 51A imposes a duty on every citizen of India, to protect and improve the
natural environment including forests, lakes, river, and wildlife and to have compassion for
living creatures. The cumulative effect of Articles 48A and 51A (g) seems to be that the 'State' as
well as the 'citizens' both are now under constitutional obligation to conserve, perceive, protect
and improve the environment. Every generation owes a duty to all succeeding generations to
develop and conserve the natural resources of the nation in the best possible way8. In the 5AIR 19876Raghav Joshi, Evolution of Environment Law in India, Available at http://lawpeedia.blogspot.in.7 Inserted by the Constitution (Forty-second Amendment) Act, 1976.8State of Tamil Nadu v. Hind Store, AIR 1981 SC 711; see also Rural Litigation and Entitle Ji: at Kendra v. State of Uttar Pardesh, AIR 1987 SC 359.
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Constitution of India it is clearly stated that it is the duty of the state to ‘protect and improve the
environment and to safeguard the forests and wildlife of the country’. It imposes a duty on every
citizen ‘to protect and improve the natural environment including forests, lakes, rivers, and
wildlife’. Reference to the environment has also been made in the Directive Principles of State
Policy as well as the Fundamental Rights. The Department of Environment was established in
India in 1980 to ensure a healthy environment for the country. This later became the Ministry of
Environment and Forests in 1985.
The constitutional provisions are backed by a number of laws – acts, rules, and notifications. The
EPA (Environment Protection Act), 1986 came into force soon after the Bhopal Gas Tragedy and
is considered an umbrella legislation as it fills many gaps in the existing laws. Thereafter a large
number of laws came into existence as the problems beganarising, for example, Handling and
Management of Hazardous Waste Rules in 1989.
3.1. Major Constitutional Amendments Related to Environment
The 42nd Constitution Amendment Act, 1976, inserted specific provisions for environmental
protection in the form of Directive Principles of State Policy and Fundamental Duties. Article
48A (Directive Principles) enunciates that ‘the state shall endeavor to protect and improve the
environment and to safeguard the forests and wild life of the country’. Article 51A (g)
(Fundamental Duties): ‘To protect and improve the natural environment including forests, lakes,
rivers, wildlife and to have compassion for living creatures’. Two entries 17A – Forests and 17B
– Protection to wild animals and birds were added in the Concurrent List.The 73rdand
74thConstitutional amendments of 1992 recognized the three-tier structure of the government by
devolution of power to the local bodies viz. panchayats in rural areas and municipalities in urban
areas. With the passage of bills by the state legislatures and devolving powers and allocating
revenue sources, these local bodies can become institutions of self-government. The eleventh
schedule contains environmental activities such as soil conservation, water management, social
forestry and non-conventional energy that panchayats can undertake. The twelfth schedule lists
activities such as water supply, public health and sanitation, solid waste management and
environmental protection which the municipalities can undertake.
4. Legislative Measures for Protection of Environment
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It is possible to suggest with conviction that the beginnings of Indian environmental law were
sown at the United Nations Conference on the Human Environment held at Stockholm in 1972,
A National Committee on Environmental Planning and Coordination (NCEPC) was set up in the
Department of Science and Technology in 1972 to make necessary preparations for the
Conference. The Government of India took a number of steps to implement the decisions taken
at the Conference by means of amendments to the Constitution, new legislations relating to
environmental protection and creation of institutions for implementing the legislations. Many
Supreme Court judgments in the late eighties and the nineties refer to the decisions made at the
Stockholm Conference. The Bhopal gas tragedy claiming more than 3000 lives triggered the
passage of environmental legislations and formulation of rules relating to the use of hazardous
substances. where India was a participant, leading to some sort of realization that a framework of
laws was necessary to deal with environmental hazards that would result from the stage of
development that India was entering in the 1970s.9Prior to this phase, Indian environmental law
mainly consisted of claims made against tortious actions such as nuisance or negligence. The
Water (Prevention and Control of Pollution) Act of 1974 gave the statute book its first real
foundation for environmental protection. Other major enactments followed in 1980 (The Forest
(Conservation) Act), 1981 (The Air (Prevention and Control of Pollution) Act and 1986 (The
Environment (Protection) Act).
Apart from the constitutional mandate to protect and improve the environment, there are a plenty
of legislations5 on the subject but more relevant enactments for our purpose10Following are the
list of the environmental legislations that have come into effect.
1) General
2) Forest and wildlife
3) Water
4) Air
I. General
9 This is in contrast to laws in countries such as England, which were sometimes a direct result of some mass environmental disaster; for example, the Clean Air Act of 1956 was the outcome of the deadly smog that killed over 4000 people in London in 1952. (The Act has since been replaced by the Clean Air Act of 1993). See Harish Salve, “Justice between Generations: Environment and Social Justice”, Supreme But Not Infallible: Essays in Honour of the Supreme Court of India, Oxford University Press, New Delhi, 2000, pp.360-380. Salve adds: “In the fullness of time, political upheavalsbrought home the realization that freedom can only survive if it honours basic human rights and is founded onprinciples of natural justice.”10E.g. Indian Forest Act, 1927; the Factories Act, 1948; the Atomic Energy Act, 1962; insecticide 1968.
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The Environment (Protection) Act11 authorizes the central government to protect and
improve environmental quality, control and reduce pollution from all sources, and
prohibit or restrict the setting and /or operation of any industrial facility on environmental
grounds.This Act was enacted in the aftermath of the Bhopal gas tragedy 12claiming more
than 3000 lives. The Statement of Objects and Reasons of this Act refers to the decisions
taken at the Stockholm Conference in June 13 and expresses concern about the decline in
environmental quality, increasing pollution, loss of vegetal cover and biological diversity,
excessive concentrations of harmful chemicals in the ambient atmosphere, growing risks
of environmental accidents and threats of life system. According to this Act14
environment includes ‘water, air and land and the interrelationship which exists among
and between water, air and land, and human beings, other living creatures, plants, micro
organism and property’. It defines hazardous substance as ‘any substance or preparation
which, by reasons of its chemical or physiochemical properties or handling, is liable to
cause harm to human beings, other living creatures, plants, micro-organism, property or
the environment’
The Environment (Protection) Rules15 lay down procedures for setting standards of
emission or discharge of environmental pollutants.
The objective of Hazardous Waste (Management and Handling) Rules 16is to control the
generation, collection, treatment, import, storage, and handling of hazardous waste.
17The Manufacture, Storage, and Import of Hazardous Rules define the terms used in this
context, and sets up an authority to inspect, once a year, the industrial activity connected
with hazardous chemicals and isolated storage facilities.
18The Manufacture, Use, Import, Export, and Storage of hazardous Micro-organisms/
Genetically Engineered Organisms or Cells Rules were introduced with a view to protect
111986 12 in 198413 197214 Sec-2b151986 161989 17 1989 181989
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the environment, nature, and health, in connection with the application of gene
technology and microorganisms.
The Public Liability Insurance Act and Rules and Amendment,19was drawn up to provide
for public liability insurance for the purpose of providing immediate relief to the persons
affected by accident while handling any hazardous substance.
The National Environmental Tribunal Act20 has been created to award compensation for
damages to persons, property, and the environment arising from any activity involving
hazardous substances.
The National Environment Appellate Authority Act21 has been created to hear appeals
with respect to restrictions of areas in which classes of industries etc. are carried out or
prescribed subject to certain safeguards under the EPA.
The Biomedical waste (Management and Handling) Rules22 is a legal binding on the
health care institutions to streamline the process of proper handling of hospital waste
such as segregation, disposal, collection, and treatment.
The Environment (Siting for Industrial Projects) Rules, 231999 lay down detailed
provisions relating to areas to be avoided for siting of industries, precautionary measures
to be taken for site selecting as also the aspects of environmental protection which should
have been incorporated during the implementation of the industrial development projects.
24The Municipal Solid Wastes (Management and Handling) Rules, 2000 apply to every
municipal authority responsible for the collection, segregation, storage, transportation,
processing, and disposal of municipal solid wastes.
The Ozone Depleting Substances (Regulation and Control) 25Rules have been laid down
for the regulation of production and consumption of ozone depleting substances.
191991 201995 211997 221998 231999 242000 252000
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26The Batteries (Management and Handling) Rules, 2001 rules shall apply to every
manufacturer, importer, re-conditioner, assembler, dealer, auctioneer, consumer, and bulk
consumer involved in the manufacture, processing, sale, purchase, and use of batteries or
components so as to regulate and ensure the environmentally safe disposal of used
batteries.
The Noise Pollution (Regulation and Control) (Amendment)27 Rules lay down
such terms and conditions as are necessary to reduce noise pollution, permit use of loud
speakers or public address systems during night hours (between 10:00 p.m. to 12:00
midnight) on or during any cultural or religious festive occasion
The Biological Diversity Act28 is an act to provide for the conservation of biological
diversity, sustainable use of its components, and fair and equitable sharing of the benefits
arising out of the use of biological resources and knowledge associated with it
II. Forest and wildlife
The Indian Forest Act and Amendment, 198429, is one of the many surviving colonial
statutes. It was enacted to ‘consolidate the law related to forest, the transit of forest
produce, and the duty leviable on timber and other forest produce’.
The Wildlife Protection Act, Rules 1973 and Amendment 199130 provides for the
protection of birds and animals and for all matters that are connected to it whether it be
their habitat or the waterhole or the forests that sustain them.
The Forest (Conservation) Act and Rules, 31, provides for the protection of and the
conservation of the forests.
III. Water
262001 272002 282002 291927 301972 311981
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1882 - The Easement Act allows private rights to use a resource that is, groundwater, by
viewing it as an attachment to the land. It also states that all surface water belongs to the
state and is a state property.
1897 - The Indian Fisheries Act establishes two sets of penal offences whereby the
government can sue any person who uses dynamite or other explosive substance in any
way (whether coastal or inland) with intent to catch or destroy any fish or poisonous fish
in order to kill.
1956 - The River Boards Act enables the states to enroll the central government in setting
up an Advisory River Board to resolve issues in inter-state cooperation.
1970 - The Merchant Shipping Act aims to deal with waste arising from ships along the
coastal areas within a specified radius.
1974 - The Water (Prevention and Control of Pollution) Act establishes an institutional
structure for preventing and abating water pollution. It establishes standards for water
quality and effluent. Polluting industries must seek permission to discharge waste into
effluentbodies.The CPCB (Central Pollution Control Board) was constituted under this
act.
1977 - The Water (Prevention and Control of Pollution) Cess Act provides for the levy
and collection of cess or fees on water consuming industries and local authorities.
1978 - The Water (Prevention and Control of Pollution) Cess Rules contains the standard
definitions and indicate the kind of and location of meters that every consumer of water is
required to affix.
1991 - The Coastal Regulation Zone Notification puts regulations on various activities,
including construction, are regulated. It gives some protection to the backwaters and
estuaries.
Leading Case:-
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In the Ganga Water Pollution case32 the owners of some tanneries near Kanpur were
discharging their effluents from their factories in Ganga without setting up primary
treatment plants. The Supreme Court held that the financial capacity of the tanneries
should be considered as irrelevant while requiring them to establish primary treatment
plants. The Court directed to stop the running of these tanneries and also not to let out
trade effluents from the tanneries either directly or indirectly into the river Ganga without
subjecting the trade effluents to a permanent process by settingup primary treatment
plants as approved by the State Pollution Control Board.
IV. Air
1948 – The Factories Act and Amendment in 1987 was the first to express concern for
the working environment of the workers. The amendment of 1987 has sharpened its
environmental focus and expanded its application to hazardous processes.
1981 - The Air (Prevention and Control of Pollution) Act provides for the control and
abatement of air pollution. It entrusts the power of enforcing this act to the CPCB .
1982 - The Air (Prevention and Control of Pollution) Rules defines the procedures of the
meetings of the Boards and the powers entrusted to them.
1982 - The Atomic Energy Act deals with the radioactive waste.
1987 - The Air (Prevention and Control of Pollution) Amendment Act empowers the
central and state pollution control boards to meet with grave emergencies of air pollution.
1988 - The Motor Vehicles Act states that all hazardous waste is to be properly packaged,
labeled, and transported.
5. Role of Indian Judiciary in Environmental Protection
The Supreme Court and the High Courts have played an active role in the enforcement of
constitutional provisions and legislations relating to environmental protection. The fundamental
right to life and personal liberty 33has been held to include the right to enjoy pollution free air and
32M.C.Mehta v. Union of India, AIR 1988 SC 1037. See also Bhavani River v. Sakthi Sugar Limited AIR 1998 SC 2059.33 Article 21 of the Constitution.
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water. In R.R. Delavoi v. The Indian Overseas Bank case34the Madras High Court pointed out:
‘Being aware of the limitations of legalism, the Supreme Court in the main and the High Courts
to some extent for the last decade and a half did their best to bring law into the service of the
poor and downtrodden under the banner of Public Interest Litigation. The right of a person to
pollution free environment is a part of basic jurisprudence of the land. The Supreme Court has
interpreted the right to life and personal liberty to include the right to wholesome environment.35
Judicial and Quasi Judicial Bodies for Environmental Protection are the Courts or Authorities
established under various environmental Protection Legislations for interpretation and effective
implementation of these statutes.
5.1 Supreme Court of India
I. Public Interest Litigation (PIL) 36
II. Special Leave Petition 37
I. Public Interest Litigation (PIL)
This is a new remedy available to public spirited individuals or societies to go to the court 38
for the enforcement of the fundamental right to life (including clean air and water) contained
in Article 21. A Public Interest Litigation (PIL) can be filed in any High Court or directly in
the Supreme Court. It is not necessary that the petitioner has suffered some injury of his own
or has had personal grievance to litigate. PIL is a right given to the socially conscious member
or a public spirited NGO to espouse a public cause by seeking judicial for redressal of public
injury. Such injury may arise from breach of public duty or due to a violation of some
provision of the Constitution. Public interest litigation is the device by which public
participation in judicial review of administrative action is assured. It has the effect of making
judicial process little more democratic39
M. C Mehta v State of Orissa 40
34 AIR 1991,35Rural Litigation and Entitlement Kendra, Dehradun V. State of U.P., AIR 1988 SC 1037.36 Under Article 32 of the Constitution.37 Under Article 136.38Under Article 3239 Available at http://www.ngosindia.com/resources/pil.php, Last visited on 10.12.2015, at 3:40 IST.40AIR 1992.
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A writ petition was filed to protect the health of thousands of innocent people living in
Cuttack and adjacent areas who were suffering from pollution from sewage being caused by
the Municipal Committee Cuttack and the SCB Medical College Hospital, Cuttack.
The main contention of the petitioner was that the dumping of untreated waste water of the
hospital and some other parts of the city in the Taladanda canal was creating health problems
in the city. The State, on the other hand contended that a central sewerage system had been
installed in the hospital and that there is no sewage flow into the taladanda canal as alleged.
Further, it was asserted that the State had not received any information relating to either
pollution or of epidemic of water borne diseases caused by contamination of the canal. Also,
the health department shrugged off the responsibility for supply of drinking water and passed
the buck to the Municipality which refuted the contentions of carelessness and callousness.
The Court reprimanded the authorities and directed the government to immediately act on the
matter. Also, the court recommended setting up of a committee to take steps to prevent and
control water pollution and to maintain wholesomeness of water meant for human
consumption amongst other things. A responsible Municipal Council is constituted for the
precise purpose of preserving public health. Provision of proper drainage system in working
conditions cannot be avoided by pleading financial inability.
M. C Mehta v Union of India 41
On the eve of his retirement, J. Kuldip Singh delivered the judgment in the Taj Trapezium case,
culminating a long and arduous battle fought by M. C Mehta for over a decade. The case was
first placed in 1984, wherein the petitioner warned of damage to the TajMahal from air
pollutants from the Mathura refinery.
It was alleged by the petitioner that the suplphur dioxide emitted by the Mathura refinery and
the industries when combined with Oxygen-with the aid of moisture-in the atmosphere forms
suplphuric acid which has a corroding effect on the gleaming white marble of the Taj.
Industrial/Refinery emissions, brick-kilns, vehicular traffic and generator sets are primarily
responsible for polluting the ambient air around Taj Trapezium. The petition states that the
white marble has yellowed and blackened in places. It is inside the Taj that the decay is more
apparent. Yellow pallor pervades the entire monument. In places the yellow hue is magnified
41 AIR 1997 SC 734.
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by ugly brown and black spots. Fungal deterioration is worst n the inner chamber where the
original graves of Shah-Jahan and Mumtazmahallie.The Court observed that the Taj, apart from
being cultural heritage, is an industry by itself, More than two million tourists visit the Taj
every year. It is a source of revenue for the country.Various orders were passed by the Court.
The Court created a Taj Trapezium which consisted of 10, 400 sq. Kms in the shape of a
trapezium to regulates activities in relation to air pollution.Industries were asked to shift to eco
friendly fuel and use lessen the use of diesels generators, and asked the State to improve power
supply the city. Tanneries operating from Agra were asked to shift from the Trapezium.
Bangalore Medical Trust v B. S Muddappa42
In this case it was held that absence of open space and public park, in present day when
urbanization is on increase, rural exodus is on large scale and congested areas are coming up
rapidly, may give rise to health hazard. To say, therefore, that by conversion of a site reserved
for low lying park into a private nursing home social welfare was being promoted was being
oblivious of true character of the two and their utility.
M. C. Mehta (Badkhal and Sujratkund Lakes Matter) vs. Union of India 43
The court held that Articles 21, 47, 48A and 51A (g) of the Constitution of India give a clear
mandate to the state to protect and improve the environment including forests, lakes, rivers and
wildlife and to have compassion for living creatures. The "precautionary principle" makes it
mandatory for the State Government to anticipate, prevent and attack the causes of environment
degradation.
6. Development of Environmental Law Principles
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 foundreflection in the
Constitution in some form, and are usually justified even when not explicitlymentioned in the
concerned statute. There have also been occasions when the judiciary hasprioritized the
42AIR 1991 SC 1902.43W.P. (C) No.4677/ 1985 decided on Oct.11, 1996.
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environment over development, when the situation demanded an immediateand specific policy
structure.44
The Precautionary Principle
Beginning with Vellore Citizens’ Welfare Forum v. Union of India45, the Supreme Court has
explicitly recognized the precautionary principle as a principle of Indian environmental law.
More recently, in A.P. Pollution Control Board v. M.V. Nayudu46, the Court discussed the
development of the precautionary principle.47Furthermore, in the Narmada case48, the Court
explained that “When there is a state of uncertainty due to the lack of data or material about
theextent of damage or pollution likely to be caused, then, in order to maintain the ecology
balance, the burden ofproof that the said balance will be maintained must necessarily be on
the industry or the unit which is likelyto cause pollution.”
The “Polluter Pays” Principle
The Supreme Court has come to sustain a position where it calculates environmental
damages not on the basis of a claim put forward by either party, but through an examination
of the situation by the Court, keeping in mind factors such as the deterrent nature of the
award.49However, it held recently that the power under Article 32 to award damages, or even
exemplary damages to compensate environmental harm, would not extend to the levy of a
pollution fine.50 The “polluter pays” rule has also been recognized as a fundamental objective
of government policy to prevent and control pollution.51
The Doctrine of Public Trust
To further justify and perhaps extract state initiative to conserve natural resources, the Court
enunciated Professor Joseph Sax’s doctrine of public trust, obligating conservation by the
state. In M.C. Mehta v. Kamal Nath52, the Court held that the state, as a trustee of all natural
44M.C. Mehta v. Union of India, (1987) 4 SCC 463. The Court held: “ life, public health and ecology has priority over unemployment and loss of revenue problem.”45AIR 1996 SC 2715.46AIR 1999 SC 812.47See also S. Jagannathv. Union of India (Shrimp Culture case), AIR 1997 SC 811.48Narmada BachaoAndolanv. Union of India, AIR 2000 SC 375149See also the explanation for the principle of absolute liability in M.C. Mehta v. Union of India (Oleum Gas case), AIR 1987 SC 965, and its subsequent application in Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212.50M.C. Mehta v. Kamal Nath, AIR 2000 SC 1997.51Ministry of Environment and Forests, Government of India, Policy Statement for Abatement of Pollution, para 3.3, February 26, 1992.52 (1997) 1 SCC 388.
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resources, was under a legal duty to protect them, and that the resources were meant for
public use and could not be transferred to private ownership.
7. Challenges for Enforcement of Environment Legislation Effetely
We have more than 200 Central and State legislations which deal with environmental issues.
More legislation means more difficulties in enforcement. There is a need to have a
comprehensive and an integrated law on environmental protection for meaningful enforcement.
It is not enough to enact the legislations. A positive attitude on the part of everyone in society is
essential for effective and efficient enforcement of these legislations. The powers vested to the
Pollution Control Boards are not enough to prevent pollution. The Boards do not have power to
punish the violators but can launch prosecution against them in the Courts which ultimately
defeat the purpose and object of the Environmental Laws due to long delays in deciding the
cases. Thus, it is imperatively necessary to give more powers to the Boards.
You must be aware that despite all this legislative activity the state of the environment in India
continues to be gloomy. The rivers and the lakes continue to be choked with sewage and
industrial waste. The air quality in some major cities has gained the dubious distinction of being
worse than that of the American cities like Chicago and New York.
Forests continue to disappear, and the consequent loss of soil has led to the scourge of floods
with sickening regularly. What can the country do to reverse the process and restore a balanced
state of the environment?
Although the legislative measures taken and the administrative set-up is sufficiently indicative of
the Government’s concern, the implementation does not reflect a sound appreciation of the issue
involved in eco-management and development.
Environment is a resource-perhaps the most precious of all the Earth’s resources. It should be
treated as such. The measures adopted by the Government until now do not reveal an equal
emphasis on the management and development aspects of this vital resource. Often these
measures reflect a fire-brigade approach rushing to the spot of fire, after it breaks out. The
strategy should lay equal emphasis on attacking the cause of fires. An ounce of prevention in the
filed of environment is literally worth a gallon of cure.
Take for example the river pollution in India. It is well known that the major source of pollution
of rivers is domestic sewage, which municipalities nonchalantly dump in the nearest rivers.
Ninety percent of the pollution of Ganga stems from the 100-odd littoral municipal waste
dumpings.
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The colossal cleaning-up operation, Ganga Action Plan, will be an exercise in futility if it is not
accompanied by a massive effort to prevent the municipalities from dumping their wastes in the
river. Every one knows that the technology for treating municipal waste exists. But it costs
money and most of the municipalities cannot afford it.
If the Environment (Protection) Act is taken seriously, all the municipalities abutting the Ganga
will have to be prosecuted. The Act, rightly, makes no distinction between private and public
polluters. But that would be taking a very restrictive view of the law.
The more modern view is that the law must guide and help people and establish a trend of
acceptance. Environmental law has little chance of acquiring effectiveness unless accompanied
by a whole set promotional measures, ranging from direct financial subsidies to cost sharing, for
example, in installing treatment plants.
Litigation is an expensive affair. Environment litigation is more expensive than other types of
disputes, since it involves expert testimony, technical evidence and so on. State Boards will-have
to be able to afford the expertise and the administrative backing. Most of the State Boards suffer
from inadequate expertise and funds to pursue their objectives. There is, therefore, a tendency to
seek to exercise gentle pressure on the polluting industry and pursue settlements outside the
courts.
There is nothing fundamentally wrong with out-to-court settlement of environmental disputes. In
fact, in some developed countries, like the United States, a preference is shown toward such a
procedure. But in India, officially initiated and sanctioned out of court settlements may aggravate
the perennial problem of corruption. Sharing the costs of anti-pollution measures taken by the
industry seems to be a better strategy than state-sponsored expensive and length prosecutions.
Admittedly, the state of environment of the country is not rosy; the imperatives of development
have sometimes come into sharp conflict with those of the environment; the administrative
machinery set up to solve the problems of environment has often failed in its task; the laws
enacted to meet the challenger have been generally inept. But these are the failings of a nation
wresting with hundreds of problems on thousands of fronts. The water of survival, which is what
the sorry state of the nation’s environment poses to the country, inquires first and foremost the
will to survive. The Government and, more importantly, the people have demonstrated it in
abundance. The rest is a matter of skill and experience, which we seem to be acquiring slowly
but steadily.53
53J DURGA, What are the Difficulties faced in Enforcement Environmental Legislation?,Available at www.Preservearticles.com/
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9. Conclusion
Environment is an important part of human life and a healthy environment is a must for human
existence. Therefore, it is crucial that we take care of our surroundings and help nature maintain
ecological balance so that we could hand over to the coming generations the environment as we
found it, if not any better. In the recent past there has been a lot of damage to the ecology. Air,
water and soil have been polluted and there appears to be no decisive end to it. The scientific
advancement and rapid industrialization has taken its toll.Nowadays protection of the
environment is very important as the world is moving into a new era without considering any of
the major problems of pollution with rapid industrialization. The best way to protect the
environment is conservation. Conservation is the philosophy and policy of managing the
environment to assure adequate supplies of natural resources for future as well as present.
Tropical forests are being destroyed at an ever-increasing rate. Estimates of the extent and rate of
loss vary, but it appears that nearly half of the world tropical forests already have been lost, and
the remainder will all but disappear in the next two to three decades. The loss is incalculable.
These forests provide habitat for an estimated half of the world plant and animal species, provide
water and fuel for much of the world population, and influence regional and global climate.
Commercial logging, clearance for agriculture,
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