Perspectives on Environmental Law & Policy

Abstract

The law which governs environment-related issues is “The Environment (Protection) Act, 1986”. This Act is for the protection and improvement of an environment by taking care of the living creatures who are residing in it i.e. human beings, plants and animals. This law came into existence after India’s participation in the United Nations Conference on the Human Environment in 1972 for the protection and improvement of the environment. An Environment includes land, water, air, animals and humans where all are inter-related and dependent on each other for their survival and even if one suffers due to pollution or misuse of the resources, all the rest will suffer in the ecosystem. Every element of the ecosystem has its own importance and in order to monitor its improvement and prevent the overuse or misuse of the resources, the lawmakers of our country came up with this law for the proper utilization of the available resources.

This article will look into the positive aspects of the environment law that are implemented by the judiciary from further exploitation of resources and also by taking into account the current environmental health condition. The initiatives and policies which are made by the government for further protection from the domestic, industrial and commercial exploitation of the environmental resources and for the purpose of the improvement in the quality of life. It will also look into the hazardous activities which took place within the boundary of the country and what important role citizens play in its protection.

Introduction

Environment protection is not today’s issue, but it has been a concern since the Vedic times. Back then trees, rivers, mountains, animals and land were worshipped as the customary norms in every sect of the society. It was believed that these elements of biodiversity are Gods themselves and if anyone harms them was amounted for punishment[1]. But during the Aryan civilization, deforestation[2] was done for human settlement and for producing crops which ultimately led to climatic change. However, during the reign of ruler Ashoka the conservation of wildlife and the clean environment was emphasized[3]. He banned the hunting of animals and several herbal and medicinal plantations were done. Trees[4] like peepal, banyan, Ashoka, bel, mango, neem, banana, coconut, etc. were worshipped and are still worshipped during any auspicious event as per the Hindu religion and all these trees are dedicated to respective Gods. In ancient India, there were not only trees  but also rivers that were worshipped and are still considered as holy rivers[5] such as Ganga, Yamuna, Saraswati, Godavari, Narmada, Kaveri and Sindu ( now in Pakistan); there are animals like cow, tiger, elephant, bull, snake birds like peacock, swan, etc. that are still considered as sacred. There are mountains that are too considered as the adobe of God such as mount Kailash, Vaishno Devi, Haridwar, Hrishikesh, Badrinath, Kedarnath, Vyenkata Hill, etc. but sooner the exploitation of these natural resources started taking place for the purpose of mining, agriculture, settlement, commercial purposes, etc. which ultimately lead to scarcity of clean water, extinction -of birds and animals, flood, extreme exposure to sun, health and other issues.

In 1976 article 48A was inserted by the 42^ndamendment Act[6] in Part-4A of our Indian Constitution as our fundamental duty “to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures[7]”. In the 7^th schedule[8] list 3 of concurrent list, the entries for water storage, regulation of mines, agriculture-related education and protection of plants from pests, fisheries, protection of animals, etc. are given which gives the power to both central and state government to implement laws in this respect. The birds were the first to get protection under the Wild Birds Protection Act, 1887. With the enactment of this Act, it prohibited the possession or sale of only certain kinds of a wild bird during the breeding season. In 1935 the Act was amended allowing the provincial government to declare any area to be a sanctuary for the birds or animals, and their killings were made unlawful[9]. Further, there were more Acts enacted by the government for proper utilization and protection of resources like Easement Act 1882, Indian Fisheries Act 1897, Factories Act 1987, River Boards Act 1956, Merchant Shipping Act 1970, Wildlife Protection Act 1972, Water Act 1974 and many more enactments were done to look after the different available resources, to give guidelines to central government, state government, municipal bodies and corporation regarding the proper utilization  these resources in sustainable manner so that overutilization of the resources cannot be done and also gives strict provision for those who do not comply with these rules and regulation set by the jurisdiction of our country.

Legislation Regarding Environment Protection

For the protection of the environment from exploitation, the laws with rules and regulations were passed and also amended according to the requirement. The environment comprises air, water, land, and biodiversity i.e. animals, flora, and fauna. Due to a lack of awareness, the misuse of environmental resources was done without taking future generations into consideration. The other reason was also for developmental reasons. After taking into account the existing situation these laws implemented as every citizen has the Right to life under Article 21 of the constitution. These legislations are as follows:

• The Water (Prevention and Control of Pollution) Act, 1974, amended 1988
• The Water (Prevention and Control of Pollution) Cess Act, 1977, amended 1992 and 2003
• The Air (Prevention and Control of Pollution) Act 1981, amended 1987
• The Wildlife (Protection) Act, 1972, amended 1993, 2002 and 2006
• The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
• Forest (Conservation) Act, 1980, amended 1988
• Forest (Conservation) Act, 1980, amended 1988
• Biological Diversity Act, 2002
• National Green Tribunal Act, 2010 (No. 19 of 2010)
• The Prevention of Cruelty to Animals Act, 1960

The implementation of these laws helped in the betterment of the environment’s health. It gave guidelines for the use of the resources that were once exploited due to a lack of importance in the ecological system. We know the importance of forest in our environment as trees give us oxygen which is necessary for our survival, it is required during monsoon season as trees are the good observant of water and maintain the fertility of the soil. It also keeps the temperature in control and also controls air and noise pollution. Forests are the shelter of different kind of wildlife animals and also give protection to the tribal population. The importance of trees was observed in Rural Litigation and Entitlement Kendra vs. the State of UP[10]. The trees were cut down for human settlement, agriculture or industrial purposes which ultimately lead to climate change, irregular monsoon, flood, drought etc. as were not aware of the consequences. In recent years there was almost half of India that gets submerged during monsoon season because of poor management and proper utilization of the resources by the state government for developmental reasons.

However, in Banwasi Seva Ashram vs The State of UP observed that forests are much wanted national asset and disturbing it has resulted in depletion of an economy. These have long term adverse effects on the national economy. At the same time, we cannot lose sight of the fact that for industrial growth and for the provision of improved facilities there is a great demand in this country for energy such as electricity…[11]. The court gave equal importance to the right of forest dwellers by giving responsibility to NTPC to find an alternative plot, render restriction and subsistence allowance, give free transportation, reserve jobs and provide facilities of road, water supply, health care, and electricity[12].

Under the Indian Forest Act, 1927 there were reserve forests and protected forests. The state government could constitute any forest land or wasteland by notification as reserved forest and then state government would get regulatory right over it. They become entitled to own the whole or any part of the forest produce. The activities in these forests were regulated and any person indulging in prohibited acts such as setting fire to the forest, hunting, trespassing, quarrying, fishing and setting traps were liable to be prosecuted. A protected forest[13] is not a reserved forest but state government can again by notification declare to reserve trees, close any portion of such forests against the right of a private person, prohibit stone quarrying, burning of lime and prevent removal of forest produce or clearing for cultivation. Therefore, the power to regulate forest was vested on state government[14].The impact of the forest Act had a devastating effect on the ecological balance, the forest was seen as a source of revenue not as a factor of maintaining ecological balance[15].There is a need for development but not for the sake of human existence. The development must go hand in hand with the proper estimation of the needs of present and future generations. Soon Forest Conservation Act 1980 was enacted after the extensive destruction in ecological balance was made. These law therefore came into existence because there was exploitation of the resources in extreme which also has resulted in extinction of few animals, as for their survival the temperature they require was not appropriate or due to poaching, for example, northern white rhinoceros, Spix Macaw, thylacine, passenger pigeon, Quagga, Pyrenean Ibex, golden toad, etc.

But there are few animals who are on the verge of extinction so those governments started projects like project tiger, project elephant and also opened reserves for birds and animals which drastically changed their pollution. Project tiger and project elephant were started with the help of an World Wide Fund for Nature (WWF) and the International Union for Conservation of Nature and Natural Resources (IUCN). In 1973 nine tiger reserves were open and now there are 45 reserves over all the country. The action was taken by High Court Delhi when in 1971 Tiger Task Force predicted that by the end of the 19th- century tiger would be extinct and banned the hunting of tiger in India^[16]. During that time the population of tigers drastically increased but by 1993 again there was a fall in pollution of the tiger and it was called “the second tiger crisis” this happened due to poaching for traditional Chinese medicine^[17]. This fall was because it was poor state government attention towards the fund which was allocated for their care but it was negligently used for other purposes. In 2011 again the increase in the population of tigers was estimated. The goal of accomplishing the increase in pollution growth will only be achieved when the state government and forest officials get serious about it.

Project Elephant was started in 1992 with the aim of protecting the dwindling species of elephants. These are given protection against poachers and also against the unnatural cause of deaths[18]. Relocation of the population outside the national park and sanctuaries, restoration of migration corridors for elephants, erecting of electric fences along forest borders to safeguard against human-elephant conflict and strengthening anti-poaching infrastructure in the states, are the wide parameters of ‘project elephant’[19].

Landmark Judgments

MC Mehta and Anr. Etc vs Union of India[20] case is also known as Oleum Leakage Case. The Court held that the permission for carrying out any hazardous industry very close to human habitation could not be given and the industry was relocated. This case, however, paved the way for Factory Act, 1948.

TN Godavarman Tirumulpad vs. Union of India^[21] case the court proceeded towards the constitution of a committee to oversee the strict and faithful implementation of its order. They were asked to constitute an expert committee for identification of forest, a complete ban was imposed on felling of a tree in the tropical wet evergreen forest in Arunachal Pradesh and Supreme Court also asked for measures such as relocation of industries, identification of ecologically sensitive areas and an institution of state-level committee to evolve licensing regulations. Hence CAMPA was setup by the apex court.

In M.C. Mehta vs. Union of India[22] case activist advocate M.C. Mehta filed a writ petition for pollution in Ganga by hazardous industries discharge. In this judgment, it was observed that when an industry that cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot setup a primary treatment plant cannot be permitted to continue to be in existence.

In M.C. Mehta vs. Union of India (Taj Trapezium Case) [23] TajMahal, was facing threat due to high toxic emissions from Mathura Refineries, Iron Foundries, Glass and other chemical industries. This case in 1996 gave various directions including banning the use of coal and cake and directing the industries to Compressed Natural Gas (CNG).

There are other such landmark judgments that paved the way the people used to treat these natural resources for their benefit and brought a major difference in the society towards its protection. Due to unawareness these resources were over-utilized and misused which has ultimately threatened the future generation’s life. These judgments gave insight and hope to society and made them aware of society and government.

Initiatives by the Government

In the fiscal year of 2019-20, the budget allocation for the Ministry of Environment was increased by 10.4 percent which is also termed as “green budget” by the Prime minister of India with the motive of promoting the electric vehicle, reducing air pollution, and encouraging afforestation[24]. Several initiatives have been undertaken by the government to bring about both, awareness and conservation of the environment and natural resources in the country. Some of the noteworthy projects are as mentioned:

FAME Scheme

The FAME India (Faster Adoption and Manufacturing of (Hybrid &) Electric Vehicles in India) scheme[25], was launched in 2015 with the motive of promoting the manufacturing of electric and hybrid vehicles and for sustainable growth. But in its 1^st phase it was launched for 2 years with four the main goals:

• Demand creation
• Technology platform
• Pilot project
• Charging infrastructure

Based on the result of the 1^st phase of FAME, the 2^nd phase is implemented for 3 years from FY 2019-20 to FY 2021-22 with the goal[26] of

• Demand incentives
• Establishment of a network of charging stations
• Administration of the scheme including publicity, IEC (Information, Education, and communication) activities.

Under demand incentive, this scheme will cover electric buses, four-wheelers, three-wheelers and two-wheelers. This incentive will be available to vehicles that are used for Public transport and for commercial purposes and those who privately own e2-w can avail this benefit. However, all the vehicles need to be registered under CMVR[27], 1989 for availing reimbursement.

CAMPA fund

Compensatory Afforestation Fund Management and Planning Authority[28] (CAMPA) was established by the Hon’ble Supreme Court of India in 2009 as the National Advisory Council under the chairmanship of the Union Minister of Environment & Forests for monitoring, technical assistance, and evaluation of compensatory afforestation activities. It is meant to promote afforestation and regeneration activities as a way of compensating the forest land converted into non-forest land. The objectives are to:

• Lay down broad guidelines for State CAMPA.
• Facilitate scientific, technological and other assistance that may be required by State CAMPA.
• Make recommendations to State CAMPA based on a review of their plans and programs.
• Provide a mechanism to State CAMPA to resolve issues of an inter-state or Centre-State character.

State CAMPA would receive all the funds collected from user agencies as compensation under the Forest Conservation Act, 1980 and would utilize it for the purpose of afforestation, assisted natural regeneration, conservation, and protection of forests, infrastructure development, wildlife conservation, and protection and other related activities. In sum, the prima facie task would be to regenerate forest wildlife and building up the institution involved in it i.e. State Forest Department.

LED Bulb Mission

Under UJALA Yojana LED bulbs were distributed in approximately 35cr. households by replacing incandescent bulbs and CFL. This mission would be used to promote the use of solar stoves and battery chargers[29] in the country which will lead to a cleaner environment and sustainable development ultimately.

ICZM Project

• The coastal zone of India is rich in its biodiversity and it has not received adequate protection as it required. There has been misuse and overuse of the resources. So the government launched the 1^st Phase of ICZM (Integrated Coastal Zone Management) Project[30] in 2010 with the assistance of World Bank in the states of Gujarat, Odisha and West Bengal with the following aims:
• Achieve sustainable development in marine and coastal areas.
• Reduce vulnerability to natural hazards which have major implications on the coastal areas and coastal communities especially with respect to Sea Level Rise (SLR) and increased frequency of cyclones and storm surges.
• To conserve and protect the fragile coastal ecosystems such as the mangroves, brackish water wetlands and coral reefs, including addressing the pollution of coastal waters and livelihood improvement of local communities.
• Strengthen institutional and governance capacity for Integrated and sustainable Coastal Management as per the National Environmental Policy 2006.
• Capture and disseminate lessons in best practice, both locally and globally.

And with its success, the Finance minister extended it in 13 Coastal States/UTs [31]Maharashtra, Gujarat, Odisha, West Bengal, Andhra Pradesh, Tamil Nadu, Goa, Puducherry, Kerala, Karnataka, Daman and Diu, Andaman and Nicobar Island, Lakshadweep in its 2^nd Phase with the respective goals:

• Conservation of coastal & marine ecological resources.
• Coastal pollution management and related infrastructure upgrades.
• Livelihood security and sustainable development of coastal communities.
• Capacity building & implementation of ICZM Plans.

CPCB

Central Pollution control board (CPCB) is a statutory organization that was constituted in 1974, under Water Pollution Act, 1974 and further, it was entrusted with the power and function under Air Pollution Act, 1981. The functions of CPCB fall under two-levels i.e. national level and state level, under these two levels CPCB has to provide ways to prevent the air and water pollution and improve the quality of air, plan, organize and train the personnel those who are involved in prevention and control of air and water pollution. It also lays down the standard for sewage and trade effluents on land, assesses the quality of ambient water and air, and inspect wastewater treatment installations, air pollution control equipment, industrial plants or manufacturing process to evaluate their performance and to take steps for the prevention, control, and abatement of air and water pollution.

Besides this, CPCB has an automatic monitoring station at ITO Intersection in New Delhi. At this station, Respirable Suspended Particulate Matter (RSPM), Carbon Monoxide (CO), Ozone (O3), Sulphur Dioxide (SO2), Nitrogen Dioxide (NO2) and Suspended Particulate Matter (SPM) are being monitored regularly. This information on Air Quality at ITO is updated every week[32]. And it has also setup 2500 stations in 28 States and 6 Union Territories spread over the country for monitoring the water resources quality[33].

NTCA

National Tiger Conservation Authority (NTCA) is a statutory body of the ministry the performs function under the Wildlife Protection Act, 1972[34]. The government took an initiative in 1972 by launching ‘Project Tiger’ and establishing nine tiger reserves. Due to this, the population of tigers increased which has fallen drastically after independence[35].

Creation of Management Structure for Management Substances Under the scheme, the activities are carried out under three thrust areas namely; chemical safety, chemical accident prevention and sound management of hazardous waste and municipal solid wastes. The activities initiated accordingly, include preparation of offsite emergency plans, setting up of emergency response center, establishment of Common Treatment, Storage and Disposal Facilities (TSDF) for industrial hazardous wastes. Preparation of hazardous analysis reports, etc[36].

Apart from all these schemes, the government has policies for environment protection these are[37];

• Environment Protection Act, 1986 – it was enacted in 1988 after the Bhopal Gas Tragedy with the objective of providing for the protection and improvement of the environment. It empowers the Central Government to establish authorities under section 3(3) of the Act. It also defines the environment and the rules for the protection of the environment were enacted.
• National Conservation Strategy and Policy Statement on Environment and Development, 1992– in response to the need for laying down the guidelines that will help to weave environmental considerations into the fabric of our national life and of our development process. It is an expression of our commitment to reorienting policies and actions in unison with the environmental perspective[38].
• Policy Statement for the Abatement of Pollution, 1992 – lays emphasis on pollution prevention and also identified the adoption of best available and workable technologies as the major element for pollution prevention. The focus of the various programmes and schemes of the Ministry and its associated organizations related to pollution prevention and control is, therefore, on such issues such as promotion of clean and low waste technologies, waste minimization, reuse or recycling, improvement of water quality, environment audit, natural resource accounting, development of mass-based standards, institutional and human resource development etc. The whole issue of pollution prevention and control is dealt with by a combination of command and control methods as well as voluntary regulations, fiscal measures, promotion of awareness, etc.
• National Environment Policy, 2006– this policy came in light of filling the gap between the existing policies in order to attain the goal of sustainable development more broadly. It does not displace but builds on the earlier policies.  The present-day consensus reflects three foundational aspirations. First, human beings should be able to enjoy a decent quality of life; second, that humanity should become capable of respecting the finiteness of the biosphere; and third, that neither the aspiration for the good life nor the recognition of biophysical limits should preclude the search for greater justice in the world. The National Environment Policy is also a response to India’s commitment to a clean environment, mandated in the Constitution in Articles 48 A and 51A (g), strengthened by judicial interpretation of Article 21. It also establishes that maintenance of a healthy environment is not the sole responsibility of the government but also the responsibility of every citizen[39].
• Vision Statement on Environment and Health- The key purpose of this Vision Statement on Environment and Human Health is to evolve a strategy for health risk reduction. It also offers a comprehensive approach to environmental health management plans, which would be a systematic approach to estimate the burden of disease and injury due to different environmental pollutants. Therefore, the activities and programs required to be taken up for the protection of public health due to environmental pollution are also given in this statement in the form of a road map[40].

There are other initiatives that are taken by the central government, state government, NGOs and other organization towards the healthy environment which makes awareness towards the protection of the environment and make it a responsibility of every citizen toward its utilization. Campaigns like single use of plastic, #selfiewithsapling, etc. connect people from the root level of the society towards environment protection. These campaigns motivate individuals to become environment-sensitive.

Natural calamities or manmade calamities usually take place in areas where state government and the people are not sensitive towards the environment. Problems like air pollution due to smoke emission from industry or vehicle, water pollution due to industrial water waste discharge, washing of clothes on the river banks, an improper link of water bodies, poor drainage system, deforestation, use of plastics, building dams, etc. create health issues. The flood which takes place in the urban areas can be managed but due to inadequate urban planning flood happens. Urban water bodies such as wetlands, provide crucial services like groundwater recharge and flood management. But these bodies are not recorded under municipal laws[41].

In the run of being a developed nation, the importance of the environment is lost. There are so alternative sources of energy available like solar energy, water harvesting, etc. but very few people know the proper method of applying it in their daily life. Although the use of solar energy is motivated by the government and subsidy is also provided but very few use it. We need to take small steps on our part for a healthy environment. The water bodies that are not recognized under the law should be covered under the law and should be used for storing rainwater during summers when water scarcity.

There should be proper management of waste. Swachh Bharat mission a flagship program by the government for providing proper sanitation to everyone is the aim. If there will be improper management of waste, the waste will ultimately contaminate water bodies which will lead to water pollution and marine life is also affected. There are still illicit cutting of trees happening in the name of unreserved forest which recently happened in the array forest, Mumbai were thousands of trees that were cut off by the municipal body because it was not forested under the Environment Protection Act, 1987. These should be identified by the state government and protected by them; they should be made reserved under the law. There is already a lot of harm is done to the environment due to insensitivity towards it. The protection of it is now in the responsibility of everyone. The blame for exploitation cannot be only given to the government it is also the duty of us for its conservation. 

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference

[1]Id., p. 55.

[2] Culture and societies of the Indus tradition- Harappa, available at,https://www.harappa.com/sites/default/files/pdf .

[3]Sanchari Pal, Barking up the right tree(feb 15, 2017) available at,https://www.thebetterindia.com.

[4]  Raman deep kaur, Sacred trees worship in India(july 7, 2014) available at, www.Mapsofindia.com.

[5] Heart of Hinduism, available at,https://iskconeducationalservices.org

[6]  The constitution 42^nd amendment act, 1976, available at,http://legislative.gov.in.

[7]P. M. Bakshi, THE CONSTITUTION OF INDIA.

[8]Constitution of India 1950, 7^th schedule,available at, https://www.mea.gov.in.

[9] P LeelaKrishnan, ENVIRONMENTAL LAWS IN INDIA, (lexis nexis3rd edn., 2008), Pg. 67.

[10]Litigation and Entitlement Kendra vs. State of UPAIR 1988 SC 2187

[11]Id., p 376.

[12]Banwasiseva ashram vs state of UP, (1992) 2 SCC 202.

[13]Id., pp29-33.

[14]P Leelakrishnan, ENVIORNMENTALLAW IN INDIApg. 40-41(lexis nexis3^rdedn., 2008).

[15]P Leelakrishnan, ENVIORNMENTAL LAW IN INDIA pg. 42 (lexis nexis3^rdedn.,2008).

[16] A concise history of tiger hunting in India,available at, https://blog.nationalgeographic.org.

[17] A concise history of tiger hunting in India,available at,https://blog.nationalgeographic.org.

[18] About project elephant,available at,http://www.wildlifeofindia.org

[19]P Leelakrishnan, ENVIRONMENTAL LAW IN INDIA pg. 81(lexis nexis3^rdedn., 2008).

[20]MC Mehta and Anr. Etcvs Union of India, 1986 SCR (1) 312.

[21]TN GodarvarmanTirumulpadvs Union of India AIR 1998 SC 769.

[22]M.C. Mehta vs. Union of India AIR 1988 SCR (2) 538.

[23]M.C. Mehta vs. Union of India (Taj Trapezium Case) AIR 1987

[24]Budget 2019,(july 5, 2019)available at, https://economictimes.indiatimes.com.

[25]Ministry of heavy industries and public enterprises, Fame India Scheme,available athttps://pib.gov.in.

[26]Department of heavy industries, FAME Phase 2, available at, https://dhi.nic.in

[27]The Control Motor Rules, 1989.

[28] About CAMPA, available athttp://egreenwatch.nic.in

[29]LED Bulb Mission (july 5, 2019)available athttps://www.indiainfoline.com.

[30] ICZM Project 1^st Phase available athttp://sicom.nic.in.

[31]ICZM Project 2^nd Phase available athttp://sicom.nic.in.

[32]Central Pollution Control Board available athttps://cpcb.nic.in.

[33] National Water Quality Monitoring Program available athttps://cpcb.nic.in.

[34] National Tiger Conservation Authority available athttps://projecttiger.nic.in.

[35] A concise history of tiger hunting in India (Mar. 10, 2014) available at https://blog.nationalgeographic.org.

[36] Planning commission report 2007, Report on environment and environmental regulatory mechanism, available athttp://planningcommission.nic.in.

[37]Policies on environment protection available athttp://iced.cag.gov.in.

[38]National Conservation Strategy and Policy Statement on Environment and Development, 1992,available athttp://indiaenvironmentportal.org.in.

[39] National Environment Policy, 2006, available athttp://iced.cag.gov.in.

[40]Vision Statement on Environment and Healthavailable athttp://iced.cag.gov.in. 

[41]Extreme weather is the new norm,Hindustan Times (Delhi, 1^st October 2019).