By Deepali Bagla, Pravin Gandhi College of Law, Mumbai.

India has always been conscious about the environment and it has been framing laws to protect the environment even before it got independence. The development of Indian laws relating to environment protection is divided into two aspects i.e. Pre 1972 Development and Post 1972 Development. Before 1972, the main laws regarding environment protection were tort laws, laws regarding water, criminal law, easement laws, forest laws and special laws regarding hazardous substances. The Indian Constitution does not directly talk about the Environment Protection, but gives fundamental right to life i.e. Article 21 to its citizen, which is treated as the right to enjoy wholesome environment.

The Government of India has the duty to protect the ‘natural resources from reckless spoliation’. Indian Government is also aware of its responsibility. India is one of the signatory to the UN Convention on Environment, held in Stockholm in 1972; since then Indian Government has shown its seriousness about the environment. The National Environment Policy (NEP), 2006 was enacted by the Ministry of Environment and Forests keeping in view the key environmental challenges, objectives of policy formulation and strategies, their causes and effects, and programmes that needs to be carried out to satisfy the objectives that needs to be implemented. The Government of India has passed Acts to protect the environment from degradation and destruction under Article 242 of the Constitution of India which empowers the Union to pass legislation on matters mentioned in the State list if two or more States ask it to do so. Some of the laws enacted prior to 1947 are: The Bengal Smoke Nuisance Act of 1905, The Bombay Smoke Nuisance Act of 1912, and The Wild Birds and Animal Protection Act of 1912. The Wildlife (Protection) Act, 1972 is mainly concerned with the wildlife conservation and protection of endangered species and prohibits trade in them. The Water (Prevention and Control of Pollution) Act 1974 was enacted by the Government to deal with water pollution. The Air (Prevention and Control of Pollution) Act in 1981 and the Environment Protection Act, 1986 further empowered the Government to take steps to protect and preserve the environment. The Environment Protection Act, 1986 was passed by the Indian Parliament on May 23, 1986. The Act covers wide aspects in respect to the protection of the environment and includes laws relating to handling of hazardous substances, research, inspection of polluting units, prevention of environmental accidents, setting up of laboratories and dissemination of information.

However the main drawback of such laws is that these laws relating to the environment are not actually for the protection of the environment but are human centric i.e. to say that these laws are enacted as per the convenience of the humans and not taking environment as the main consideration. These laws lack monitoring agency and special enforcement. After 1972, the Indian Government has bought about major changes in environmental law and it has moved from protection of environment through general law to specific law regarding environment. The Stockholm Declaration on the Human Environment 1972 has the significant impact on the Indian Environment Law. It is considered as Magna Carta of Environmental law.

The Bhopal Gas Tragedy has made the Government of India, realise the shortcomings of the environmental laws and the need to strengthen them resulted in the passing of the Environment Protection Act 1986. This law intended to protect the environment wholly, and specifically water and the air. According to the Environment Protection Act, 1986; ‘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’. In the same year, the Environment Protection Rule 1986 was notified. This rule supported the Environment Protection Act 1986 and also helped in the implementation of the provisions mentioned therein. The Coastal Zone Regulation Act 1991 deals with the regulation of developmental activities within the strip of 500 meters from the sea shore. The Environmental Impact Assessment was brought by the EIA Notification 1994, for the assessment of projects or industry as listed in Schedule I of the Notification. The EIA Notification 1994 was amended in 1997 and in 2006 the EIA Notification brought new EIA. The main feature of 2006 Notification of the EIA is that it brought about major change in public hearing process. Environmental Policy 2006 has been significant in the development of the Indian Environmental Law. The main feature of this policy is to extend the coverage of environmental law and to fill the gaps and the shortcomings in environmental laws and policy.

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Success and implementation of every law depends on the efficiency of functional and practical aspect of such laws, i.e. efficiency of enforcement agency, monitoring agency, courts and adjudicating body. In India, Pollution Control Boards are broadly divided into Central Pollution Control Board and State Pollution Control Board is the functional aspect of Indian environmental law. The present Pollution Control Board of India was initially known as the Water Board, which was constituted under the Water (Prevention and Control of Pollution) Act, 1976. At that time the Board had the responsibility of prevention of water pollution, and later under the Air (Prevention and Control of Pollution) Act, 1981 the Board also got the responsibility of prevention of air pollution. After the Environment Protection Act, 1986, and Environment Protection Rule, 1986, the Board was renamed as Pollution Control Board; and some additional responsibility to implement the laws under the Environment Protection Act and Rules and other environment laws.

Main functions of the Central Pollution Control Board in India is to promote wholesomeness of water and control, prevent air pollution, advice the Government, coordinate with the State Pollution Control Board, Initiate awareness programmes and activities to protect the environment, formulation of standards to be maintained, inspection of industries and factories emitting harmful elements in water and air, collection of samples, recognition of environment laboratories, submitting of reports, etc. However, the role of Pollution Control Board was criticised by the Supreme Court of India. Some of the landmark cases where the role of the Pollution Control Board was criticised by the Supreme Court of India are: Calcutta Tanneries Case, Kanpur Municipalities Case. Justice B.N. Kirpal has also criticised the legislation and administration in his article Environmental Justice in India and explained why the judiciary need to step-in to protect the environment. Whenever the Pollution Control Board fails to fulfil their responsibilities, the Indian Judiciary successfully interferes and reminds the Pollution Control Board of their responsibility of protection of the environment. The Indian Judiciary generally takes environmental cases as constitutional responsibility toward environment. The Judiciary generally uses the Article 21, 48A and 51 A (g) of the Constitution of India, and a few environmental principles to control the pollution and protect the environment.

In the case of Subash Kumar v. State of Bihar[1], the Supreme Court held that for the full enjoyment of the Article 21 of the Constitution, which is a right to life and personal liberty, right of enjoyment of pollution free water and air is necessary. Whereas, in M.C. Mehta v. Union of India[2], the Supreme Court made use of Article 48A to make the government liable for controlling pollution. Besides Article 21, 48A, 51A(g) of Constitution of India, Indian Courts use the few other principles to prevent pollution; Absolute Liability, Sustainable Development, Precautionary Principle, Polluter Pays Principle, etc.

The Supreme Court developed the environmental law to a greater extent by the expansion of Public Interest Litigation (PIL). After the expansion of the principle of Locus Standi in S.P. Gupta v Union of India[3] which is commonly called the Judges Transfer Case, the PIL came in the limelight and it was later expanded and used in the Rural Litigation Entitlement Kendra v State of UP[4], Vellore Citizen Welfare Forum v Union of India[5].

CONCLUSION

Thus, India has shown its sincerity regarding environment ever since the Stockholm Conference, 1972, and brought about major changes in its legal framework. The Indian Judiciary has been trying to protect the environment through Public Interest Litigation (PIL). Any law is as good as long as the implementation takes place and in an efficient manner. There must be a strong and effective monitoring mechanism. However, it is on us as an individual of integrity with a strong value base and deep commitment to abide by the law and help the Government in its implementation programme which will indirectly benefit the individuals themselves.

References:

[1] 1991 AIR 420, 1991 SCR (1)5

[2] 1988 AIR 1115, 1988 SCR (2) 530

[3] AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365

[4] 1985 AIR 652, 1985 SCR (3) 169

[5] AIR1996SC2715

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