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Environmental Laws and Constitutional Provisions in India- Part 1



Environmental Laws and Constitutional Provisions in India- Part 1

It is interesting to note that natural resources had been stored virtually untouched in the Earth for millions of years. But since the start of the industrial revolution vast amounts of these resources had been exploited within a period of just a couple of hundreds of years at unimaginable rates, with all the waste from this exploitation going straight in the environment (air, water, land) and seriously damaging its natural processes. Although pollution had been known to exist for a very long time (at least since people started using fire thousands of years ago), it had seen the growth of truly global proportions only since the onset of the industrial revolution during the 19th century.

Environmental degradation in India has been caused by a variety of social, economic, institutional and technological factors. Rapidly growing population, urbanization and industrial activities have all resulted in considerable deterioration in the quality and sustainability of the environment. Environmental ethics have also formed an inherent part of Indian religious precepts and philosophy.[1]

The importance of Judiciary in a democratic set up for protection of life and personal rights can hardly be overestimated. India has a highly developed judicial system with the Supreme Court having plenary powers to make any order for doing complete justice in any cause or matter and a mandate in the Constitution, to all authorities, Civil and Judicial, in the territory of India to act in aide of the Supreme Court. The scope of Writ Jurisdiction of the High Courts is wiser than traditionally understood and the judiciary is separate and independent of the executive to ensure impartiality in administration of justice.[2]

In considering the role of the judiciary in environmental governance, there are two issues that need to be considered. The first is the role the judiciary in the interpretation of environmental law and in lawmaking and the second is the capability of jurists to effectively interpret the increasingly cross-linked issues brought to their attention.

Historical Overview:

The Environment Protection Act 1986 defines environment as:

“environment includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro organism and property.”

Besides the physical and biological aspect, the “environment” embraces the social, economic, cultural, religious, and several other aspects as well. The environment, thus, is an amalgamation of various factors surroundings an organism that interact not only with the organism but also among themselves. It means the aggregation of all the external conditions and influences affecting life and development of organs of human beings, animals and plants.

Policy and Laws in Ancient India:

In ancient India, environmental protection and cleaning was the essence of Vedic culture. The preservation of the environment was an ardent article of faith, reflected in people's daily lives and embedded in myths of folklore, art, culture and religion. Forests, trees and wildlife protection held a special place of reference in Hindu theology.

Policy and Laws in British India

By AROUND 1860, Britain had emerged as the world leader in deforestation, devastating its own woods and drawing timber for shipbuilding, iron smelting and agriculture from the forests of Ireland, South Africa and the north-east of the United States. In the early nineteenth century, the Raj carried out a fierce attack on the forests of the subcontinent. The revenue coordination of the colonial land policy also worked for the admonition of forests.

The imperial forest department was established in 1864 with the help of experts from Germany, the country that was the leading European forest management nation at the time. The first forest inspector general, Dietrich Brandish, was a botanist and recognized the wonderful task of controlling deforestation, forging legal mechanisms to assert and safeguard forest control by states.

It was his dual sense that the railway constituted the crucial watershed with respect to the water management in India- the need was felt to start an appropriate department, and for its effective functioning legislation was required to curtail the previously untouched access enjoyed by the rural communities[3].

Policy and Laws post-independence of India:

As adopted in 1950, the Indian Constitution did not address the issue of the environment or pollution prevention and control as such (until 1976 amendment). The original text of the constitution pursuant to Article 372(1) has incorporated the earlier existing laws into the present legal system and stipulates that notwithstanding the repeal by this constitution of the act referred to in Article 397 but subject to the other provisions of the constitution, all laws in force immediately before the beginning of the constitution remain unchanged. As a result, even after five decades of independence, the superfluity of such laws is still in operation without any noteworthy change in them.

The Principles on environment

With a view to protecting and improving the environment, different legislations have been made and different regulations, rules have been issued. The Government of India, through its Ministry of Environment and Forests is administering has enacted nationwide comprehensive laws.

The Stockholm Declaration of 1972 states that "man has a fundamental right to freedom, equality and adequate living conditions in an environment of quality that allows a life of dignity and well- being, and a solemn responsibility to protect and improve the environment for present and future generations..." [4]This shows that it has been internationally recognized that man's fundamental rights embraces the need to live in an uncontaminated environment but it also puts forth man's obligation to protect the environment for posterity.[5]

The Supreme Court stated that the' precautionary principle' and the' polluter pays principle' are essential characteristics of' sustainable development.' These concepts are part of the country 's environmental law. The "precautionary principle "states that the absence of management measures does not justify the lack of information. Instead, management measures should be established to maintain resource conservation. The assumptions and methods used to establish the scientific management basis should be presented.

In M.C. Mehta v Union of India (CNG Vehicle Case) (AIR 2002 SC 1696)

The Supreme Court noted that any "auto-policy "formulated by the government must therefore necessarily comply with the constitutional principles and the overriding statutory duties imposed on the government under the EPO. The automotive policy must adopt a' precautionary principle' and make informed recommendations that balance transport requirements with environmental protection.

The “polluter pays” principle came about in the 1970s when the importance of the environment and its protection was taken in world over. The Organization for Economic Cooperation and Development (OECD) has subsequently supported it. The principle of' polluter pays' as interpreted by the Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution, but also to compensate for the costs of restoring environmental damage. In other words, Polluter should bear the cost of pollution as the polluter is responsible for pollution’. The principle demands that financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause pollution.[6]

It may be noted that the polluter pays principle evolved out of the rule of ‘absolute liability’ as laid down by the apex court in Sriram Gas Leak Case.[7]

Sustainable Development

Sustainable development means integrating development and the environment in a way that is compatible with environmental considerations. Development needs economic and ecological sustainability to be sustainable. It is a development process in which resource utilization, investment direction, technological development orientation and institutional change are all in harmony. Sustainable development also involves local control over the use of resources and is the only democratic way to conserve and promote socio-economic well-being.

'eco-development’ is a related concept. It is an environmentally sound development process, a positive environmental management process for the benefit of humans. For example, the prohibition of tree felling in reserve forests and the harvesting of small forest products by rural poor and tribal people; the development of communities or common lands for the needs of industries, towns and villages for rural subsistence. These are the components of the "new strategy for development. " The eco-development component thus includes alternative development strategies; biogas, natural resource substitute, social forestry, micro-irrigation and waste recycling to prevent pollution.[8]

Vellore Citizens Case:

In a landmark judgment where the principle of sustainable development has been adopted by the Supreme Court as a balancing concept, while rejecting the old notion that development and environmental protection cannot go hand in hand, the apex court upheld the opinion that sustainable development has been accepted as “a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting [9]eco system.” Thus, pollution created as an outcome of development must be proportionate with the carrying capacity of our environment.[10]

Observations

The Supreme Court Observe that the “precautionary principle” and the “polluter pays principle” are part of the Environment law of the country. These principles are essential features of “Sustainable Development.” The “precautionary principle” in the context of the municipal law means: (i)Environmental measures by the State Government and the statutory authorities – must anticipate , prevent and attack the cause of the environmental degradation(ii) Where there are threats of serious irreversible damages, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation . (iii) The “onus of proof “in on the actor /industrialist to show that his action is environmentally benign.[11]

DECISION:  The Supreme Court directed the Central government to constitute an authority under sSec 3 of the Environment Act, 1986 and confer on the said authority all the powers necessary to deal with the situation created by the powers necessary to deal with the situation created by the tanneries and other polluting industries in the State of Tamil Nadu. The authority (headed by retired judge of the High Court) shall implement the precautionary and polluter pays principles. The authority should compute the compensation under two heads, namely, for reserving the ecology and for the payment to individuals.[12]

 

Click here to read the Constitutional and Legislative measures on Environmental Laws in the next article.


Footnotes:
[1] http://www.legalservicesindia.com/article/1926/Environmental-Laws-and-Constitutional-Provisions-In-India.html
[2]  Report on Environmental Evolution, Ministry of Environment and Forest, Govt. of India.
[3] H.N. Tiwari, Allahabad Law Agency, Environmental Law (2007).
[4] http://www.legalserviceindia.com/articles/ptdoc.htm
[5] Supra note1.
[6] M.C. Mehta v Union of India (CNG Vehicle Case), AIR 2002 SC 1696.
[7] Supra note 1.
[8] Supra note 1.
[9] Vellore Citizens Forum, Petitioner v. Union of India and others, Respondents, AIR 1996 SC 2715.
[10]  Supra note 1.
[11] Supra note 9.
[12] ibid.

 

Environment Pollution Control Authority (EPCA)
Environmental Law
Ministry of Environment and Forests (MoEF)
Organization for Economic Cooperation and Development (OECD)
Sustainable Development

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