LAW MANTRA THINK BEYOND OTHERS (National Monthly Journal, I.S.S.N 23216417)

Do environmental laws promote cleaner environment? - Indian Scenario

India has seen a plethora of legislations layering diverse aspects of the environment to

guarantee its conservation. However, due to loopholes and problems in the laws or perhaps, the

sluggishness of the authorities imposing the laws, these legislations have merely remained a

compendium of powerless and helpless phrases that have lost their teeth within the course of

time. There is no excuse good enough, no obstacle obtrusive enough, and no circumstance

restrictive enough to absolve the government from deteriorating to carry out and execute its

statutory duty to arrest environmental decline and demur.

To deal with the environmental issues the Department of Environment was established in India

in 1980 to ensure a healthy environment for the country which later became the Ministry of

Environment and Forests in 1985. The constitutional provisions are also supported by a

number of laws, acts, rules and notifications. The Environment Protection Act, 1986 came into

force soon after the Bhopal Gas Tragedy which was a major leak of toxic chemical gases

occurred from the Union Carbide chemical plant in the city of Bhopal in 1984 and is

considered an umbrella legislation as it fills many gaps in the existing laws Therefore a large

number of laws came into existence afterwards as the problems and conflicts were arising.

The 42nd amendment to the constitution was introduced about in the year 1974, which makes

it accountable and also makes it responsibility of the state government to protect and improve

the environment and to safeguard the forests and wildlife of the country. The latter, under

fundamental duties, amendment introduced makes it the fundamental duty of every citizen to

protect and improve the natural environment including forests, lakes, rivers and wildlife and to

have compassion for living creatures.

The forty-second amendment to the Indian constitution added and introduced principles of

environmental protection in an explicit manner into the constitution through Articles 48A and

51-A (g). Article 48A, part of the directive principles of state policy, obligated the state to

protect and improve the environment. On the other hand as well, Article 51A (g) obligated

citizens to undertake the same responsibilities. The Stockholm conference is honoured by in

references to the air act and the environment act which can be seen as a outcome and result of

effective applications of Article 253 of the Constitution, which gives the power to make laws

implementing international obligations for India, as well as any decision made at an

international conference, association or other body.

The responsibility of the state with consideration upon environmental protection has been laid

down under Article 48-A of our constitution, which states as: "The State shall endeavour to

protect and improve the environment and to safeguard the forests and wildlife of the country".

Also environmental protection is one of the fundamental duty of every citizen of this country

under Article 51-A (g) of Constitution of India which states that It shall be the duty of every

citizen of India to protect and improve the natural environment including forests, lakes, rivers

and wildlife and to have compassion for living creatures. Article 48-A of the constitution

comes under directive principles of State policy and Article 51-A(g) of the constitution comes

under fundamental duties as defined separately and distinctively.

In addition to the constitutional provisions and constitutional directive, India has a number of

other national policies governing environmental management and administration, including the

National Policy on Pollution Abatement (NPPA, 1992) and the National Conservation Strategy

and Policy Statement on Environment and Development (NCS/PSED, 1992). While these

national policies are not judicially enforceable, they serve as guiding principles for the central

and state governments to follow1.

Legal Framework of Environmental Protection

India has an elaborate and highly structured legal framework and support with many laws

relating to environmental protection. Key national laws for the prevention, control and to

manage the industrial and urban pollution include the following2:

Water (Prevention and Control of Pollution) Act, 1974: This act was introduced with the ain

to prohibit the release of pollutants into water bodies beyond a prescribed standard, and lays

down penalties for non-compliance of the provisions. The act was amended in 1988 to conform

closely and eradicate the conflicts to the provisions of the EPA, 1986. Central Pollution 1 See, S.C. Shastri; Environmental Law, II Edition; Eastern Book Company (2005) 2 Syed Ussain Saheb, Sepuri Seshaiah and Buddolla Viswanath, Environment and their legal issues in India Available at http://www.isca.in/IJENS/Archive/v1/i3/8.ISCA-IRJEvsS-2012-043.pdf, last accessed on 18th April, 2014

Control Board (CPCB) was set up under the Act which lays down standards for the prevention

and control of water pollution and the State Pollution Control Board (SPCBs) were set up at

the state level to function under the direction of the CPCB and the state government.

Air (Prevention and Control of Pollution) Act, 1981: it set up the ambient air quality

standards, means for the control, to manage and abatement of air pollution prohibits the use of

polluting fuels and substances and regulates appliances and specifies standards that give rise to

air pollution. The air (prevention and control of pollution) amendment act, 1987, was enacted

to empower the central and state pollution boards to convene grave emergencies. The boards

were authorized to take immediate measures and actions to tackle such emergencies and

recover the expenses incurred from the offenders.

Environment Protection Act, 1986 (EPA): An Act brought in with aim to provide for the

protection and improvement of environment and for matters connected therewith. It provide a

framework and structure for the co-ordination of central and state authorities established under

the water (prevention and control) act, 1974 and air (prevention and control) act, 1981. Also

central government is empowered to take measures and methods necessary to protect and

improve the quality of the environment by setting standards for emissions and discharges;

regulating the location of industries; management of hazardous wastes, and protection of public

health and welfare.

Power of Central Government to take measures to protect and improve environment: To

improve the quality of the environment and to prevent controlling and abating environmental

pollution, the central government shall have the power to take all such measures as it deems

necessary or expedient for the purpose of its protection but that would be subject to the

provisions of this act.

Such measures may include measures with respect to all or any of the following matters, in

particular and devoid of prejudice to the generality of the provisions namely:- co-ordination

and synchronization of actions by the state governments, officers and other authorities under

this act, or the rules made or under any other law for the time being in force which is relevant

to the objects of this act; planning and implementation of a nation-wide agenda for the

prevention, control and abatement of environmental pollution; laying down standards for the

quality of environment in its various aspects; laying down standards for emission or discharge

of environmental pollutants from various sources: Provided that different standards for

emission or discharge may be laid down under this provision from different sources having

regard to the quality, values or composition of the emission or discharge of pollutants from

such sources; restraint of areas in which any industries, operations or processes or class of

industries, operations or processes shall not be carried out or shall be carried out subject to

certain safeguards; laying down procedures, safeguards and different measures for the

prevention and preclusion of accidents which may cause environmental pollution and also

remedial measures for such accidents; laying down procedures and safeguards for the handling

and management of hazardous substances; examination or assessment of such manufacturing

processes, materials and substances as are likely and prone to cause pollution; carrying out and

sponsoring investigations and research relating to problems of environmental pollution or

inspection or scrutiny of any premises, plant, equipment, machinery, manufacturing or other

processes, materials or substances and giving, by order, of such directions to such authorities,

officers or persons as it may consider necessary to take steps for the prevention, control and

abatement of environmental pollution; collection and diffusion of information in respect of

matters relating to environmental pollution; preparation of manuals, codes or guides relating to

the prevention, control and abatement of environmental pollution; and any such other matters

as the central government deems necessary or expedient for the purpose of securing the

effective implementation and execution of the provisions of this act.

The National Environment Appellate Authority Act, 1997: it was established with the

purpose and aiming to hear appeals with reverence to restriction of areas in which any industry

operation or process or class of industries, operations or processes could not carry out or would

be allowed to carry out subject to certain safeguards and restrictions under the environment

(Protection) Act, 1986.

Factories Act, 1948 and its Amendment in 1987: The Act contains a comprehensive list of

total of 29 categories of industries involved in hazardous processes, which are defined as a

process or activity where unless special, particular and exceptional care is taken, raw materials

used therein or the intermediary or the finished products, by-products, wastes or effluents that

would cause material impairment and mutilation to health of the persons engaged there in and

it would result in the pollution of the general environment.

Public Liability Insurance Act (PLIA), 1991: The PLIA was amended in 1992, and under it

the central government was authorized to establish the environmental relief fund, for making

relief payments.

National Environment Tribunal Act, 1995: The act provided strict liability for damages and

compensation arising out of any accident or mishap occurring while handling any hazardous

substance and for the establishment of a national environment tribunal for effective and

expeditious disposal of cases arising from the same, with a view to provide relief and

compensation for damages to persons, property and the environment and for the matters related

therewith or incidental thereto.

The Ministry of Environment and Forests (MOEF), the Central Pollution Control Board

(CPCB), State Departments of Environment, State Pollution Control Boards (SPCBs) and

Municipal Corporations are the primary institutions accountable for the formulation and

enforcement of environmental acts and rules.

Various notifications are issued under EPA, 1986 for the proper regulation of environmental

rules some of them are- The Environmental Impact Assessment of Development Projects

Notification, 1994 and as amended in 1997. According to this notification, all projects listed

under Schedule I require environmental clearance and permission from the MoEF. Projects

belonging to delicenced category of the new industrial policy also entail clearance from the

MoEF. All developmental projects whether or not under the schedule I, if situated in fragile

regions must obtain MoEF clearance. Industrial projects with investments above Rs 500

million must get hold of MoEF clearance and are further required to obtain a Letter of Intent

(LOI) from the Ministry of Industry and a No Objection Certificate (NOC) from the SPCB and

the State Forest Department if the location involves forestland. Once the NOC is obtained, the

LOI is converted and renewed as an industrial licence by the state authority. The notification

also set procedural requirements for the establishment, operation and function of new power

plants.

Offences by companies3: Where any offence under this Act is committed by a company, every

person who, at the time the offence was committed, was directly in charge of, and was

accountable to, the company for the conduct of the business of the company, as well as the 3 Id,

company, shall be deemed to be guilty of the offence and shall be liable to be proceeded

against and punished accordingly, Provided that nothing contained in this sub-section shall

render any such person liable to any punishment provided in this Act, if he proves that the

offence was committed without his knowledge or that he exercised all due diligence to prevent

the commission of such offence4.

Notwithstanding anything contained in sub-section (1), where an offence under this Act has

been committed by a company and it is proved that the offence has been committed with the

consent or connivance of, or is attributable to any neglect on the part of, any director, manager,

secretary or other officer of the company, such director, manager, secretary or other officer

shall also deemed to be guilty of that offence and shall be liable to be proceeded against and

punished accordingly.

Offences by Government Departments5: Where an offence under this Act has been

committed by any Department of Government, the Head of the Department shall be deemed to

be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Provided that nothing contained in this section shall render such Head of the Department liable

to any punishment if he proves that the offence was committed without his knowledge or that

he exercise all due diligence to prevent the commission of such offence.

Notwithstanding anything contained in sub-section (1), where an offence under this Act has

been committed by a Department of Government and it is proved that the offence has been

committed with the consent or connivance of, or is attributable to any neglect on the part of,

any officer, other than the Head of the Department, such officer shall also be deemed to be

guilty of that offence and shall be liable to be proceeded against and punished accordingly6.

Problems in Present Environmental laws:

We share our Mother Earth with everything that grows on it. For hundreds and hundreds of

years, this continent's Indians have shared a spiritual belief that they must respect and protect

their Mother Earth above everything else. In the present time, however, many tribes no longer

see the environment as a bank of natural resources that they must protect and shelter at any 4 Geetanjoy S., Implications of Indian Supreme Courts Innovations for Environmental Jurisprudence, Law, Environment and Development Journal, 4(1), 119 (2008) 5 Supra note 2 6 Government of India (Department of Science and Technology), Report of the (Tiwari) Committee for Recommending Administrative Measures and Legislative Machinery for Ensuring Environmental Protection, New Delhi (1980), read at moef.gov.in/report/0304/chap-09.doc

cost. Instead, the various economic pressures of the twentieth century particularly

underdevelopment, unemployment, and poverty are inducing a growing number of Indian

tribes to exchange the spiritual view of their once pristine environment for a commercial one.

Environmental Protection and ecological balance are very much essential for the survival of

mankind in the modern world. The problem of pollution is posing threat to the very existence

of human and due to lack of balance between environment and development. Stability of

empire depends upon stability of environment.

Although, the Environmental Laws have seen considerable development in the last two

decades, with the provisions of the constitution laying down the basic principles on which the

environmental justice system stands; yet there are various legislations governing environmental

laws which are insufficient and are unable to address all the environment related problems.

Even after the number of laws enacted for the safeguard of the environment and the rigorous

efforts put in by the judiciary; it can be said that the judiciary remain hamstrung when dealing

with the environmental problems.

The inefficiency of these laws in controlling environmental pollution and promoting a cleaner

environment is symbolic to the essentially reactive nature of the legal approach towards

environment problems. Keeping the development of the environmental jurisprudence in India

as the background of the study, this article highlights the problems that the Indian legal system

is confronting which have led to a call for a specialized provisions and the intervention of

judiciary. In fact, the need for judicial intervention as a method of solving the environmental

issues needs to be examined in the backdrop of failure of the laws on environment protection to

find the long term solutions to these issues in India.

Reasons for Shortcomings in the Current law:

Do we have a right to clean air, safe drinking water and a healthy environment? Few years

back, the concept of human right to a clean and healthy environment was viewed as a noble

and radical idea. These days, it is widely endorsed by an overwhelming proportion of countries

and recognized by international law. The provisions of environmental law are having a

remarkable impact, ranging from the stronger laws on environment and landmark court

decisions to the cleanup of pollution and the provision of safe drinking water.

Environmental responsibilities and rights have become a cornerstone of any legal systems for

millennia. Even after this, the right to a healthy and a clean environment is not found in

pioneering human rights documents such as Universal Declaration of Human Rights (1948),

the International Covenant on Civil and Political Rights (1966).

Environmental pollution has these days become a global issue. Its harmful effects leads to

depletion of the ozone layer and causes consequences like climate change and it makes ground

water toxic, causes major health issues and so on. The absence of proper laws on environment

protection worsens the situation further. There are a number of reasons due to which the

environmental pollution laws are being hampered like the political and bureaucratic

intervention in day to day activities. This shows that Environmental pollution is rampant and

the following are the bottlenecks to be aware of7:

Lack of Vision and Planning

There is a lack of vision and planning on the part of the Government in foreseeing the impacts

of environmental issues. There is again a drawback that Government is unable to formulate

appropriate policies and plans for the resolution of the issues.

Flaws in the process of developing policies

We can find many flaws in the law making process as there is a need of stringent laws for the

protection of environment to duly address the issues. In most of the cases, law function like

paper tiger. To take the example of the National Agricultural policy which is not encapsulated

in any law and therefore, it is ineffective.

Flaws in Law making process

The law making process even today has many loopholes and drawbacks. It does not follow a

defined and consistent path neither at the drafting stage nor at the stage of enforcement.

Issues in the Process of law Enforcement 7 Environment Pollution and Related Problems in India, available at http://www.lawisgreek.com/environment-pollution-and-related-problems-india , last accessed at 18th April, 2014

Our country still follows the old environmental

laws and there are some other shortcomings which contribute towards the poor

implementation of these laws. These are

Lack of adequate skills amongst the agencies responsible for law enforcement.

Lack of clear understanding of the laws relating to the protection of environment.

Lack of harmony among the law enforcement authorities and officers.

Jurisdictional Conflicts.

Scarcity of skilled legal personnel.

At present, in the field of environment law, ineffective application and enforcement remains a

major problem. Surprisingly, despite of all the technological progress in the recent years, there

is little knowledge about the real dimensions of the problem. The main reason behind

implementation issue is the ambiguity and lack of clarity in public objectives, the participation

of overlapping authorities and the lack of motivation from the implementers and the resistance

or inefficiencies.

Legal Issues:

The Environment Protection Act, 1986 was enforced soon after the Bhopal Gas Tragedy, a

case of major leak of toxic chemical gases escaped from the Union Carbide chemical plant and

is regarded as an umbrella legislation as it fills many gaps in the existing laws.8 A large

number of laws came into existence as and when the problem began arising. The Bhopal

disaster discusses the problem governments confront in formulating a response to environment

related issues.

Further, in the very opening line of the judgment of the Supreme Court pertaining to the Indian

Council of Enviro-Legal action vs. Union of India9, the Judiciary observes that if the mere

8 National Institute of Public Finance and Policy, Report of the Task Force to Evaluate Market Based Instruments for Industrial Pollution Abatement, National Institute of Public Finance and Policy, New Delhi (1997). Available at http://www.lawisgreek.com/environment-pollution-and-related-problems-india [last visited on April 12, 2014]. 9 AIR 1992 SC 1446

enactment of laws can ensure a clean and healthy environment, then perhaps India would have

been pollution free.10

Although the environmental laws have made some headway towards protecting the

environment against the dangers confronting it since it was introduced, there is still much room

left for improvement. As more complex pollutants threaten to hurt our eco-system, it is likely

that the present laws will have to be vastly improved and amended in order to continue to

protect the environment and public health.

Judicial Initiative:

Failure on the part of Government agencies to effectively and efficiently enforce

environmental laws and non compliance with the statutory norms by polluters resulted in an

accelerated degradation of the environment. Most of the rivers and water bodies were polluted

and there was large scale deforestation carried out with impunity. There was also a sudden

rapid increase in casualties because of the respiratory disorders caused by the widespread air

pollution. Such a large scale environmental degradation and its adverse effects on public health

have prompted environmentalists and residents of polluted areas, as well as non-governmental

organizations, to approach the courts, particularly the higher judiciary, for suitable remedies.

There is a no scarcity of legislations on the protection of environment in India but the

enforcement of the same has been far from satisfactory. Now, there is a dire need for the

effective and efficient enforcement of the provision on the protection of the environment and

of the Constitution mandates to ensure a cleaner environment. The creative role of judiciary

has been of utter significance and laudable. One countrys degradation of environment destroys

the global environment of all the countries.11 The problem with the environmental pollution

has acquired an international dimension and India is no exception to it.

The recent developments although can be seen as the rise of judicial activism in the

enforcement of environmental legislation. The same is reflected in the number of environment

related public litigation cases that have led the courts to take major steps such as ordering the

shutdown of polluting factories. Further, Agenda 21 highlights the need for the integration of

10 Divan, Shyam & Rosencranz, Armin; Environmental law and policy in India; 2nd edition; OUP; 2002; pp82-83 11 See Armin Rosencranz, Shyam Divan and Martha L.Noble, Environmental Law and Policy in India (1991), p. 25

environmental concerns at all stages of policy, planning and decision making processes

including the use of an effective legal and regulatory framework.

Even after all the efforts that has been put into, we are unable to see the desired fruitful results

leading us to the clean environment; it demonstrates that our current system of environmental

protection pacifies the public with a false sense of security, dampens environmental activism,

and erects legal barricades and bureaucratic barriers to shield powerful polluters from the wrath

of their victims. After examining the corrosive economic and political forces undermining

environmental law making and enforcement, it desires the potential for real improvement and

the possibility of building cooperative international agreements to confront the rising tide of

ecological perils threatening the entire planet.

Conclusion:

The overall framework for environmental legislation in India has been set up by the National

Conservation Strategy and Policy Statement on Environment and Development, issued by

Ministry of Environment and Forests (MoEF). The Indian Judiciary has seen the human rights

on one hand and the protection of environment on the other hand just like the two sides of the

same coin. The Indian Judiciary while acting as the guardian of the fundamental rights of each

individual has protected their rights in relation to life which also includes rights to cleaner

environment under Article 21 of the Indian Constitution. Today, when we look at the number

of cases in the courts, we find many of them relating to Public Interest Litigation against air

pollution, water pollution, hazardous waste etc. other issues related to environment.

The Constitution of India clearly specifies that the State shall endeavour to protect and promote

clean environment and to safeguard the natural resources of the country. According to the

provisions of the Constitution, it is the fundamental duty of every citizen of India to protect the

environment and to have concern for living creatures. By raising environmental concerns to the

constitutional level, India has provided its citizens with a powerful policy tool to protect the

environment.

Even after the various policies and laws on environment, there is a paucity of the evidence of

the efficacy of the environmental regulation in the developing countries like India.

Environmental Law being an emerging field attracting cross border disciplinary studies, like in

many countries of the world challenges the established notions of a legal system. Despite

existence and continuance of environmental policy, the constitutional mandate of environment

protection, flurry of legislations and administrative infrastructure of implementation and

execution, the problem of environmental pollution still remains a great reason of concern in our

country. The future must be seen as a great challenge to be overcome by society as a whole, by

evolving new means and mechanisms in tackling complex problems arising out of rapid

Industrial advancement. The new means and mechanisms, will introduce the greatest possible

transparency and accountability in the functioning of the Government and modes and measures

of enforcing laws effectively in dealing with offences against environment which is the greatest

wealth shared by all citizens.

By:- Harsha Laddha and Sanjana Mishra, University Of Petroleum And Energy Studies,

Dehradun