Protection of The Environment: Under The Indian Framework

    An environment can be defined as every living and non-living element surrounding us which includes plants, animals, fish, soil, water, etc., which has some influence over human life. 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.” These elements are a type of natural gift which would help enrich lives on earth. Environment plays a vital role on earth as it influences human lives. The different elements of the environment help living species to fulfil their need such as food, water, air, and other necessaries.

    The natural resources which are there in our environment are a result of millions of years that have been stored on the Earth. But due to the industrial revolution in the whole world these resources have been depleting day by day. More industries were set up due to which there was deforestation and loss of animal lives. For the last few hundred years, industries are releasing an unimaginable amount of waste into the environment especially in water, air, and soil which is causing serious damage to these natural resources. In India, various factors have caused environmental degradation such as technology, industries, population, urbanization, and various other socio-economic activities. There has been a considerable increase in global warming due to recent activities by individuals like excess usage of plastics and electronics, obsolete techniques for cooking in some rural areas, etc. These are some methods of degradation of the environment by an individual which can detriment every living being on earth which includes humans, animals, plants, organisms, etc.

    Sustainable development can be defined as the type of developmental activity where the needs of the present are fulfilled without exploiting the resources which would meet the need of people in the coming generation. World Commission on Environment and Development in its report Our Common Future has defined sustainable development where they said, “Sustainable development is the development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. The sustainability process is not just about the environment and conserving resources but also to check that no person or area of life gets affected due to environmental legislations. It also tells the future initiatives which can be taken accordingly to avoid future damages or effects. It can also be said that sustainable development is the only process to conserve resources in this democracy.

    During ancient times, there were no laws that were passed for the protection of the environment and to conserve resources. People of that era always had the motive to protect and clean the environment. The actions of people to conserve the environment was reflected in their day-to-day activities and also the Hindu people gave special preferences to the wildlife, forests, and trees because they believed that these things were related to their religion and protecting them was their priority.

    During the British Raj, there was large-scale deforestation as the East India Company (EIC) was a state entity and held a monopoly position in the country. East India Company started to set up factories and the wood was also utilized for other purposes like construction of road and railways, etc. Huge chunks of forest were just cut down to make a benefit out of it and at that time there were no stringent laws that could have curbed this issue. The British government enacted the Forest Act of, 1865 which was a stepping stone towards conserving forests. In 1878, this act was revived and more states and territories under British rule were included under the prevue of this act. The main aim was to penalize anyone for the transgression of the provision of this act. However, it was not in force stringently and due to lack of proper enforcement, the above act failed. In 1884, the British government had come up with its first forest policy where they had the following objectives:

    • Encourage the general welfare of the common public in the country.
    • To protect the climatic and physical condition in the country.
    • To satisfy the needs of the common people.

    Subsequently, this policy had been enacted by the British government, additionally, more acts were also passed to have control over the forest through the Government of India, and later this subject was included in the provisional legislature list.

    Under the Indian constitution, lists have been classified into three types: union lists, state lists, and concurrent lists. Environmental issue has been classified under concurrent list where both state and centre can construct laws and take action on any matter relating the same. Part IV-A which deals with fundamental duties was passed in the 42nd constitutional amendment act, 1976. But before this amendment people were more concerned about their right rather than their duties. Therefore, the makers of the constitution decided to give equal responsibility to both state and the citizen to ensure the safety standards of the environment so that it becomes a safe place for all the living creatures. Two such articles define these responsibilities. They are:

    Article 48A(under part IV which specifies Directive Principles of State policies) has been inserted under the 42nd constitutional amendment act which says, “Protection and improvement of environment and safeguarding of forests and wildlife, the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.”

    Article 51A (g) (under part IV-A which specifies fundamental duties) which says, “To protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures.”

    Article 21 (under part III which specifies Fundamental rights) which says, “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.”

    Under Article 21 there has been the use of the word except which can be interpreted to mean that this provision is an exception to the said legislation which can be controlled by the law from case-to-case basis. Right to life means to have a life that fulfils bare necessities like water, clean air, food, shelter, etc. This also means a person has the right to have a clean and disease-free environment to avoid the threat to life.

    In the case of Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh Article 21 has been elaborately discussed. Here petitioner and some citizens filed a writ petition stating that the continuous mining activity denuding trees and forest of Mussoorie hills had caused soil erosion and a large number of landslides, causing damage to not only the environment but also the man-made properties. A committee was appointed to advise on this behalf and the court decided that the limestone quarrying must be closed as it was infringing the right to life of local people and this activity was interrupting the water cycle causing damage to the people at large.

    In the case of Kinkri Devi and Anr. v. State of Himachal Pradesh And Ors., the court had stated that under Article 48A and Article 51A (g) it is the duty of both state and the citizen of the country to promote, protect and preserve the forests, wild fauna and flora, water reserves, and all lakes across the country. In case of betrayal, the court can intervene by issuing notices, writs and can take action according to the situation.

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    In the case of M.C. Mehta and Anr. v. Union of India and Ors. which also known as the Oleum gas leak case, dealt with public nuisance where the court had introduced a new form of tort called absolute liability. The Supreme Court held that carrying out any hazardous activity in or around human habitation will not be permitted and the remaining industries will be reallocated. This case established a new policy for the Abatement of pollution control, including a new chapter to the Factory Act, 1948, and the Public Liability act was also passed.

    Apart from these articles in our Constitution, various other legislations were enacted by our parliament to protect and preserve the environment, maintain quality of air, conserve water and soil. Some legislations like the Environment (Protection) Act, 1986, Hazardous Waste (Management and Handling) Rules, 1986, Environmental Impact Assessment Regulations, 1994, Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981, etc. Some major legislation is defined below:

    Environment (Protection) Act, 1986 which was enacted by the Indian Parliament under Article 253 of the Indian Constitution in the wake of Bhopal Gas Tragedy, came into force in November 1986 and has been classified under 26 sections and 4 chapters. The main purpose of the act is to execute the decisions of the United Nation on the Human Environment. They specifically focus on the preservation and improvement of the environment and try to prevent the effects from hazards to human beings, other living beings, plants, and property.

    National Green Tribunal Act, 2010 was passed to provide for the productive and quick disposal of cases concerning to environmental protection and conservation of forests and other natural resources as well as enforcing any legal rights relating to the environment and to alleviate and compensate for damages to persons and property or matters connected therewith.

    The Wild Life (Protection) Act, 1972 was enacted to have effective protection over the wildlife in the country, control poaching, illegal activities, smuggling, etc. The act was amended in January 2003 and more stringent rules were made to control the issue. Penalties and punishment would be charged to the offenders if there would be any violations. The ministry had proposed to bring more stringent laws to protect the wild fauna and flora and selected prohibited areas.

    The Forest Conservation Act, 1980 was enforced to conserve the forest in the country. It strictly regulates and restricts the appropriation of forests and the use of forest land without prior permission from the Government. This act creates the prior condition for the divergence of forest land for non-forest purposes.

    Global Issues Related to the Depletion of Ozone Layer and Global Warming (Green House Effect)

    The layer is getting depleted as a result of which global warming (greenhouse effect) has resulted in problems considering the prevailing circumstances. To realize its seriousness, it is important to put focus on the existence of the ozone layer which plays a crucial role in the overall fortification of planet earth.

    Ozone Layer

    The Ozone Layer exists being a monochrome gas that is an allotropism of oxygen. Compared to oxygen it consists of three atoms. It is made of two atoms and is shaped by the recombination of oxygen with UV rays present in the upper layer of the atmosphere. The overall creation has occurred 16 km in the Stratosphere and extends to 35 km.

    Depletion and causes of Ozone Layer

    Such a useful layer that is present especially in the uppermost part of the atmosphere is under the menace of human practices. Most parts of the ozone layer prevail above the equator as the maximum of the sun’s harmful rays falls straight on this region. However, its highest concentration is seen in the polar region because of the circulation of air at the global level. In 1985 farmer accompanied by his team of eminent researchers and scientists pointed the existing gap or hole in the layer that exists over the Antarctica region regarded as Antarctica Hole or Ozone Hole. The rudimentary fact is that there was initially no real hole in the layer but due to the thin lining of its concentration it gradually came to be known as the hole. Thus, the depletion brought many adverse consequences. The highlighted causes behind such a formation are the constant use of aerosols like CFCs (Fluoro-carbons and Chlorofluorocarbons) and nitrous oxide that has been depleting it by 14 % and 3.5 % simultaneously at the current emission rate. The CFCs are usually used in sprays and as refrigerants wherein it reacts with them and eventually chlorine is emitted. It has been estimated that one chlorine atom could destroy over 5000 molecules per month.

    In the year 1992 back at Rio-de-Janeiro two important conventions were retained. The initial included the Convention relating to vicissitudes in climate and the second focused on Biological Assortments. The Conference relating to such changes made it mandatory for every State to enact effective steps that would help reduce greenhouse emissions that would help protect our planet from global warming. Looking from a broader vision it helped concretize the overall environmental fortification and sustainable development. Back in Earth Summit Plus five at New York which noted an increase in the concentration of CO2 by 2 percent in the atmosphere from constantly being heated up.

    The Asian Haze or Asian Brown Cloud

    The scientists of the 20th Century associated with INDOEX (Indian Ocean Experiment) were successful in recognizing new threats in the world dealing with climatic changes. The study conducted by UNEP (United Nations Environment Programme) consisting of 200 scientists discovered a 3 km blanket that is concentrated particularly over the South Asian region and the Indian Ocean. They finally decided to name it “Asian Haze” or “Asian Brown Cloud (ABC)”. It has resulted in being hazardous for our environment. The haze includes a combination of ash, acids, sulphates, nitrates, black carbon, and particles in the air known as aerosols and other air-borne contaminants. When wood and fossil fuels are burned it emerges larger aerosols that fallouts as natural desert sand and sea salt. In rural India elements like cow dung and kerosene are mostly used by households to cook food that eventually causes pollution. However, in metropolitan cities, the overall contribution is greater than its share in rural areas. At the basic level, the rate of poverty is one of the common origins of “Asian Brown Cloud”.

    Constitutional Commitments

    India is one of the rarest constitutions that contains provisions concerning the environment. It ensures duty on both the State and its citizens to abide by the laws that aim at its protection. The significance of the environment has grown so much that it is now considered an integral part of our existence and falls under the ambit of Article 21 of our constitution. Furthermore, Article 32 and 226 empowers both the SC and HC to issue writs, orders, and directions. The writs are habeas corpus, mandamus, quo warranto, and certiorari. From a specific point, the above writs are enacted keeping the environment in vision. The Indian Judiciary has enacted positive insights that have helped initiate a new perception of‘ environmental jurisprudence’.

    People’s Response to the Problem and Role of the Indian Judiciary

    How each one of us aims to protect the environment is the resultant factor of both public and private rights, obligations and welfare made accessible as traversable commodities could be attained at any rate. It is the responsibility of every individual to be aware of the hazardous consequences initiated by environmental pollution and should not only focus on protecting the environment but also help implement anti-pollution laws. Considering the Indian scenario, the concern of the people has proved to be positive. Considering the Indian scenario, the concern of the people has proved to be positive. Many had formed pressure groups that helped influence the government to enact developmental projects after implementing EIA (Environmental Impact Association). For example- The Silent valley Movement took spark in the state of Kerala wherein the role of various NGOs resulted in being significant. Both the scientific as well as the academic community played an important function by contributing their opinion in different environmental matters. Both the CHIPKO and APIKO movements that took place in Karnataka relating to the protection of forests from exploitation are related to such protection. In the State of Kerala, one such campaign took place against the Valley and was led by KSSP (Kerala Sastra Sahitya Parishad). The Society focused on similar protective measures filed a PIL against the government to stopover the project’s implementation. In the case of M.C.Mehta v. Kamal Nath, it was observed that any kind of pollution dealing with the environment amounts to a civil wrong being committed affecting the community at large.

    The Preamble

    The Preamble provides that our country is created on the ideals of socialism in which the State gives importance to the already existing social problems in place of individual ones. The main aim of the principle of socialism to ensure that all individuals have a decent standard of living when they find themselves in a clean and pollution-free environment. Socialist principle, therefore, is a concept where problems of the society are being taken as utmost importance. Its main objective is specified in part 4 of the constitution dealing with DPSPs. Environmental pollution is one such major issue. Excess of pollutants is being released beyond its prescribed limit into the atmosphere causing a threat to all living beings. Therefore, being a socialist country, the state must be responsible to provide us a good environment free from pollution to have a better standard of living. Everybody must get environmental justice as a right to a clean environment is necessary for a living being and at the same time, all citizens must protect the same. Both are interconnected because the state must give a clean environment then people should not do such activities which would pose threat to society.

    Fundamental Duties

     Article 51-A(g) in particular deals with the various fundamental duties concerning the environment.

    The fundamental duties aim in the promotion of a restructured and building welfare society. The entire concept of the environment’s protection is a constitutional priority. All the existing problems are related to the concern. Article 51-A(g) mentions the fundamental duties of every citizen that aims at making their surroundings worthy of living. The modern industrialized civilization in particular initiates a similar concept as the above is a contradiction. Our nature has provided us with a safe and clean environment which should be well-preserved. Every citizen of India should not only concentrate on protecting his/her environment but also suggest ways to help improve it. Under the listed Article all such citizens are placed under the basic obligation of ensuring the same. The foremost necessity is to ensure that our country strives towards excellence across all the different spheres that surround an individual which would result in collective protection.

    The very essence of Article 51-A(g) could have been explained by Rajasthan HC was the case of L.K. Koolwal v. State wherein included the Municipal authority operating under the Rajasthan Municipalities Act 1959 was charged with the primary duty to clean all the public streets, sewers, and spaces that aren’t falling under private property and are open for the enjoyment of the public thereby eliminating noxious vegetation from all public nuisance and to eradicate filth, rubbish, night soil, odour, and other offensive matter. Mr. L.K. Koolwal later moved to the HC under Article 226 and highlighted the fact that the Municipality had failed to discharge its duty that resulted in an acute problem related to sanitation in Jaipur which resulted in being hazardous to the life of its citizens.


    BY PRIYADARSHINI GOENKA & BHAGYASHREE BEHERA | NATIONAL LAW UNIVERSITY, ODISHA (NLUO)

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