Environmental Law- The Historical and Contemporary Policies

    The word ‘Environment’ has never been too difficult to define- neither for jurists, nor for environmentalists. It can simply be defined as all living and nonliving components, and the effects they have on human beings or their surroundings. While all living components present in the environment include animals, birds, plants, fisheries etc., nonliving components include water/water bodies, land, sun. Although this cardinal definition deals with a scientific angle, this article mainly concentrates on the need and rationale behind protecting the environment and discusses in detail the environmental law; its historical and contemporary policies.

    With the advent of industrialization and technological advancements in India, a clean environment has been on the brink of extinction for quite some time. The need to protect the environment became so important that the emergence of Legislation required a holistic, extensive and a well taut approach. The Indian Judiciary and Legislation have been cultivating a boundless and unprecedented approach to recognise the environmental rights across the country. This paper reviews the literature of development and evolution of Environmental Law in India, the reasons and the factors that helped with its evolution, such as the UN Conferences and landmark case laws; and the contemporary policies India has adopted to fight the current Environmental issues and problems.     

    Environmental Policy : United Nations Conference On Human Environment(1972)

    The United Nations Conference on Human Environment was a breakthrough achievement in the evolution of making environmental policy legislations in India[1]. The Conference proclaimed that the lack of development in the developing nations is a big reason for environmental problems, and thus the Conference laid down 26 principles. These principles were designed to call upon the Governments and people to employ common goals and efforts to preserve and improve the human environment, for the benefit of all humankind [2]. India welcomed the 26 principles of the UN Conference, and enforced environment policies by way of a number of administrative and legislative activities. In this series of enactments, the first legislation was the Wildlife (Protection) Act, which was passed by the Parliament in September, 1972 [3]. This Act was noteworthy, as the Parliament was empowered to override its capability to legislate on a State assigned subject. The Act forms the foundation for the conservation of wildlife, and outlaws hunting and/or destruction of diverse species, as elucidated under the Schedule. Under the Schedule, Tiger was one of the animals defined as a protected wildlife species. 

    The next legislation that saw the light of the day, was the Water (Prevention and Control of Pollution) Act [4], which was enacted in 1974. This legislation was enacted to protect the water bodies from any kind of pollution, such as discharge of untreated industrial effluent. The Act was a radical step, for it covered all water bodies- which includes rivers and streams, sea and other water bodies, whether natural or artificial [5]. Along with that, the Central Pollution Control Board was also created for granting permissions and enforcement.

    The next piece of legislation that came into the picture was the Air (Prevention and Control of Pollution) Act [6], which came into force in 1981. The Act gave a concise definition of air pollutants which, according to the Act, means any solid, liquid or gaseous substance, including noise present in concentrations sufficient to be injurious to human health. 

    It should be noted that the 26 principles of the United Nations Conference that influenced the successive legislative enactments, also influenced the Constitution of India. The 42nd Amendment of 1976 introduced Article 48A in the Directive Principles of State Policy.[7] Article 48A clearly highlighted the fact that the protection and improvement of the environment, including wildlife, should be a salient characteristic for directing the fundamentals in the governance of India. Although the Directive Principles of State Policy have no enforceability in any court of law, Article 48A has been read and incorporated into the right to life guaranteed under Article 21[8], as a fundamental right available to all citizens. The 42nd Amendment in 1976 also introduced Article 51A, in part IV-A of the Constitution i.e. Fundamental Duties. Article 51A requires every citizen to protect and improve the natural environment. 

    The United Nations Conference on Human Environment, thus, was a huge factor, responsible for a paradigm shift in the Environmental policies and agendas in India. The UN Conference laid the foundation and the groundwork for the protection and preservation of Environment, and its influence on the Constitutional reforms also helped judicial activism in India, in environmental matters in later years.        

    The Bhopal Gas Leak Tragedy(1984-1991)

    December 3, 1984, was a tragic day for India. On this day, the Bhopal plant of Union Carbide India Limited (UCIL) released into the atmosphere, methyl isocyanate gas- a highly poisonous and noxious gas. As a result of this, over 4000 deaths were recorded. Moreover, it was estimated that over 5,00,000 people had been exposed to the gas, 35,000 of which endured medium and long-term health problems[9]. This incident then became significant, for it was responsible for completely changing the course of public response to the prevailing and upcoming environmental issues[10]. The public uproar caused due to the Bhopal Gas leak tragedy compelled the government to take strict and immediate policy action. Henceforth, the Parliament enacted the Environment (Protection) Act[11] in 1986. This Act gave thorough powers to the Government, arrogating to it the powers to set environmental standards, giving the authority to grant environmental clearances for all kinds of activities, such as mining and industrial activities, and laying down guidelines for prevention of accidents. 

    The Environment (Protection) Act, 1986, defined the environment radically, which included “water, air and land- and the relationship which exists along and between water, air, land and human beings, other living creatures and microorganisms”[12]. The Environment (Protection) Act, accompanying the Water Act and the Air Act, constituted the three laws that were responsible for regulating environmental pollution, and clearly elucidating the measures for subsiding the same.   

    The Bhopal Gas leak tragedy was also responsible for two other legislations- the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 [13] and the Public Liability Insurance Act , 1991[14]. 

    The Bhopal Gas Leak Tragedy acted as a catalyst in the positive enforcement of policy making in India. The legislations enacted immediately post the tragedy were strict in its spirit and essence, and the implementation of them were meant to be stringent. The Central Government and the judiciary wanted a holistic approach in the legislations, in order to make sure that no other incident similar to the Bhopal Gas Leak would occur. Surely, the tragedy was an unfortunate event, however it was a noteworthy landmark in the history of Environmental Policy making in India. 

    Landmark Case Laws

    • M.C. Mehta v. Union of India [15]:- This case was filed pursuant to an incident which took place in Delhi. An Industry saw leakage of Oleum gas, which resulted in several deaths, out of which one of them was a practicing advocate. Soon thereafter, a PIL was filed by M.C. Mehta, frowning upon the damage done by the industry- both to human life and the environment. The Supreme Court took cognizance of the same, and directed that “an enterprise engaged in a hazardous or dangerous industry, having the potential to threaten the human health and safety of the people working in the factory owes an absolute duty to the community, to ensure that no harm results to anyone on account of hazardous or dangerous activity which has been undertaken.” The Supreme Court laid down guidelines, highlighting that highest standards of safety and precautions must be adopted, and the enterprise shall be absolutely liable for any harm. The enterprise tried to escape their liability, by claiming the defence of ‘no fault’ and ‘reasonable care’. However, the court was quick to refuse their claims, and thus introduced the doctrine of strict liability and absolute liability.
    • M.C. Mehta v. Union of India [16]:- In the present case, tanneries in Kanpur discharged trade effluents into the river Ganga. This caused serious health hazards and environmental pollution, for the trade effluents severely and substantially polluted the Ganga water. The Court observed that the Kanpur Municipal Corporation should also be held responsible for discharge of insufficiently treated sewage into the river. Henceforth, the result of the PIL was that the Central Government constituted the Ganga River Basin Authority, whose main responsibility was abatement of the pollution in river Ganga. While continuing to hear the matter, the Supreme Court observed that the effluent discharged from the tanneries was highly noxious, and reiterated the right to a clean environment under Article 21[17]. Although the tanneries and industries claimed that their financial capacity was limited, the Supreme Court rejected their claims and ordered them to build treatment plants in their premises.
    • Vellore Citizens Welfare Forum v. Union of India[18]:- This landmark judgement became noteworthy in 1996, for the Apex Court established the ‘precautionary principle’ and ‘polluter pays’ principle into environment law.     
    • M.C. Mehta v. Union of India (Delhi Vehicular Pollution Case) [19]:- In 1998, the Supreme Court, after hearing a vehicular pollution case, directed the Central Government to establish a body that is empowered to advise the Court on matters related to pollution in National Capital Region (NCR), and to monitor the implementation of its orders. Soon after, the Environment Pollution (Protection and Control) Authority (EPCA) was established, and was placed before the court in January, 1998. The EPCA since then was an influential body in several administrative steps for mitigation of vehicular pollution in Delhi. It was on the advice of EPCA that all the public buses were asked to switch to CNG as fuel. This direction was later extended to other public transports, such as auto-rickshaws. 

    https://legalreadings.com/nabha-power-ltd-v-punjab-state-power-corporation-2/

    Contemporary Policies

    The National Green Tribunal Act, 2010

    Although the decisions taken at the United Nations Conference on the Human Environment, 1972, and even at the United Nations Conference on Environment and Development held in Rio de Janeiro in June, 1992 were principally and institutionally sound, the rapid industrialisation and rampant technological development posed a threat to the natural environment and human health of all citizens. Owing to this tussle between environment friendly laws and industrialisation, the number of cases in India saw a sharp increase, putting a lot of pressure and workload on courts. Keeping this in mind, the Indian legislature enacted the National Green Tribunal Act, 2010 [20]. According to the NGT Act, the National Green Tribunal was established for speedy disposal of cases, involving multi-disciplinary issues relating to the environment [21].

    Section 19 of the National Green Tribunal Act, 2010, states that NGT is authorized to hear all civil cases related to the environment. It is also noteworthy that NGT is bound by principles of Natural Justice, and not the Code of Civil Procedure, 1908. The NGT shall, while deciding a case, apply and appertain the principles of Natural Justice, principles of Sustainable Development and the two principles laid down in Vellore Citizens Welfare Forum v. Union of India, i.e. the polluters pay principle and precautionary principle.

    Sustainable Development Goals

    The United Nations Conference on Sustainable Development was held in Rio de Janeiro, in 2012. This Conference laid down 17 Sustainable Development Goals; also known as SDGs, to face the ongoing/contemporary and threatening environmental challenges faced by the world. India has been working tirelessly to achieve the SDGs- people living in India have become conscious about these goals, and have been burning the midnight oil to work together as global citizens.

    India has been on the path to implement these goals, and deliver on its commitments to achieve sustainable development. Externally, the country has played a key role in moulding the SDGs and ensuring the equilibrium amongst the three important pillars- economic, social and environmental. Simultaneously, internally, India has launched many programs to make progress towards these goals. Although India suffers from several hurdles, for example shortage of financial resources, for the per-capita income is relatively low; sizeable and substantial population, it is nevertheless dedicated to achieving such ambitious goals, within a short period. 

    Central and State Governments, technical experts and academicians have been coming together to promote a holistic and a better, complete future for India. They have been making efforts to supply electricity and digital connectivity for rural areas, access to renewable energy, housing and sanitation for all. Overall, they plan on making Indian lifestyle better, simpler and easier. [22].

    Climate Change

    Climate change has become a global issue, and transcends into a transnational problem. Countries with high carbon emission rate need to switch to low carbon economies, and must help developing countries with low/zero carbon emission infrastructure as well. 

    In order to combat this serious issue, nations came together at the Conference of the Parties on December 12, 2015, and accepted the Paris agreement. Subsequently, India ratified to it on October 10, 2016- and has been showing strong commitment to combat the transnational crisis. India’s percentage share of global Annual emission is 5.7% [23], which is relatively lesser than the USA and China. 

    Conclusion

    Historically speaking, environment policy in India has been dominantly influenced by several actors and forces over many years. Immediately after the UN Conference on Human Environment in 1972, India enacted many legislations and tried to strictly implement them across the nation. However, after the Bhopal Gas leak tragedy, the policy makers realised that the implementation of the enacted legislations is not stringent, and the general public and the environment are susceptible to such accidents in the future as well. Thereafter, the implementation of various principles and stricter punishments for violators of the same became the agenda of the Government. Consequently, judicial activism played an important role in policy making as well, and now India has become a land of sound Environment Law for several years.

    The contemporary policies of India have been revolving around achieving Sustainable Development Goals, as part of the United Nations Conference on Sustainable Development in Rio de Janeiro (2012). India has been goal oriented in achieving these long term SDGs, and simultaneously in combating Climate change. A harmony and co-existence of industrialisation and Sustainable Development should be India’s mindset, and energy efficiency should be the aim to create a better and resource-rich future. 

    REFERENCES

    [1] Saumya Umashankar, “Evolution of Environmental Policy and Law in India”, October 2, 2014.

    [2] United Nations Environment Programme, 1972; Declaration of the United Nations Conference on the Human Environment.

    [3] The Wildlife (Protection) Act, 1972; available at http://legislative.gov.in/sites/default/files/A1972-53_0.pdf 

    [4] The Water (Prevention and Control of Pollution) Act, 1974; available at http://legislative.gov.in/actsofparliamentfromtheyear/water-prevention-and-control-pollution-act-1974

    [5] Ibid.

    [6] The Air (Prevention and Control of Pollution) Act, 1981; available at http://legislative.gov.in/actsofparliamentfromtheyear/air-prevention-and-control-pollution-act-1981

    [7] The Constitution of India, Art. 48A.

    [8] The Constitution of India, Art. 21.

    [9] Paul Cullinan, “Case Study of the Bhopal Incident”, Environmental Toxicology and Human Health, UNESCO- Encyclopedia of Life Support Systems (EOLSS).

    [10] Ibid. 

    [11] The Environment Protection Act, 1986; available at http://legislative.gov.in/actsofparliamentfromtheyear/environment-protection-act-1986

    [12] U. Sankar, “Laws and Institutions Relating to Environmental Protection in India”; 1998.

    [13] The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985; available at http://legislative.gov.in/actsofparliamentfromtheyear/bhopal-gas-leak-disaster-processing-claims-act-1985

    [14] The Public Liability Insurance Act, 1991; available at http://legislative.gov.in/actsofparliamentfromtheyear/public-liability-insurance-act-1991

    [15] AIR 1987 SC 1086.

    [16] 1988 1 SCC 471.

    [17] Ibid.

    [18] AIR 1996 SC 2715.

    [19] 1991 SCC (2) 353.

    [20] The National Green Tribunal Act; available at http://legislative.gov.in/actsofparliamentfromtheyear/national-green-tribunal-act-2010

    [21] Pragya Ohri, “India:- Need for Sustainable Development”, January 12, 2017, available at  https://www.mondaq.com/india/clean-air-pollution/559702/need-for-sustainable-development (last visited on December 27, 2020).

    [22] United Nations- High Level Political Forum, 2017, “Voluntary National Review Report on Implementation of Sustainable Development Goals”.

    [23] Ibid.


    BY MRIGANC | FACULTY OF LAW, THE MAHARAJA SAYAJIRAO UNIVERSITY OF BARODA

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