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Published: Fri, 02 Feb 2018
Environmental protection laws in india
Judiciary And TheEnvironmental Protection Laws In India: An Appraisal
It is interesting to note that natural resourceshad been stored virtually untouched in the Earth for millions of years. Butsince the start of the industrial revolution vast amounts of these resources hadbeen exploited within a period of just a couple of hundred of years atunimaginable rates, with all the waste from this exploitation going straight inthe environment (air, water, land) and seriously damaging its natural processes.Although pollution had been known to exist for a very long time (at least sincepeople started using fire thousands of years ago), it had seen the growth oftruly global proportions only since the onset of the industrial revolutionduring the 19th century.
Environmental degradation in India has beencaused by a variety of social, economic, institutional and technologicalfactors. Rapidly growing population, urbanization and industrial activities haveall resulted in considerable deterioration in the quality and sustainability ofthe environment. Environmental ethics have also formed an inherent part ofIndian religious precepts and philosophy. Worship of nature – Sun, Moon, Earth,Air and Water – was not merely a primitive man’s response to the fear of theunknown, but it arose from the deep reverence shown to the forces of naturewhich sustained and preserved human life on earth. The basic tenet thatunderlies this deep reverence for nature is the belief that life is a singular,continuous and uniform phenomenon and even a small change in one part of theeco-system is likely to reverberate throughout. Guru Nanak (Founder of the SikhReligion, 1469-1539), said ‘Pawan Guru, Pani Pita Mata Dhart Mahat, Divis RaatDoi Daia, Khele Sagal Jagat’ (Air is like God, Water is father and Earth is themother. It is through the harmonious interaction of all these three vitalingredients that the whole universe is being sustained). The ancient Greeks, onthe same reasoning, revered the Earth as Gaia, the Earth Goddess.
The importance of Judiciary in a democratic setup for protection of life and personal rights can hardly be overestimated. Indiahas a highly developed judicial system with the Supreme Court having plenarypowers to make any order for doing complete justice in any cause or matter and amandate in the Constitution, to all authorities, Civil and Judicial, in theterritory of India to act in aide of the Supreme Court. The scope of WritJurisdiction of the High Courts is wiser than traditionally understood and thejudiciary is separate and independent of the executive to ensure impartiality inadministration of justice. The judiciary has a central role to play in thisthriving democracy and shuns arbitrary executive action. The higher judiciaryhas been empowered to pronounce upon the legislative competence of the lawmaking bodies and the validity of a legal provision. The range of judicialreview recognized in the higher judiciary in India is the widest and mostextensive known to any democratic set up in the world. Liberty and Equality havewell survived and thrived in India due to the pro-active role played by theIndian judiciary.
In considering the role of the judiciary inenvironmental governance, there are two issues that need to be considered. Thefirst is the role the judiciary in the interpretation of environmental law andin law making and the second is the capability of jurists to effectivelyinterpret the increasingly cross-linked issues brought to their attention. Forthe judiciary, probably the burden of implementation is greater, as they mustnot only interpret laws that incorporate the Rio Principles of sustainabledevelopment, including the polluter pays principle, the precautionary principle,and the principle of continuous mandamus in the corpus of international andnational law; inter- and intra-generational equity; importance of traditionalvalues and ideas; interpretation of constitutional rights including the right tolife and the right to a healthy environment, etc., but also have to weigh theseagainst economic and political principles.
Environment Protection Legislations inIndia
With a view to protecting and improving theenvironment, different legislations have been made and different regulations,rules have been issued. The Government of India, through its Ministry ofEnvironment and Forests is administering has enacted nation wide comprehensivelaws. One of the major environmental enactments came just two years after theStockholm Conference in 1974. The Water (Prevention and Control of Pollution)Act was passed for the purpose of prevention and control of water pollution andfor maintaining and restoring the wholesomeness of water. The Water Actrepresented India’s first attempt to deal with an environmental issue from alegal perspective.
From this period onwards, the Central Governmenthas been considered as highly environmentally active. In 1976, the Constitutionof India was amended to insert a separate fundamental duties chapter. The 1980switnessed the creation of many eco-specific organizations. In the year 1980, theForest (Conservation) Act was passed for the conservation of forests and tocheck on further deforestation. The Air (Prevention and Control of Pollution)Act of 1981 was enacted by invoking the Central Government’s power under Art253. The Air Act contained several distinguishing features. The preamble of theAir Act explicitly reveals that the Act represents an implementation of thedecisions made at the Stockholm Conference. Also, a notification relating toNoise Pollution (Regulation & Control) Rules was made in the year 2000 withthe objective of maintaining Ambient Air Quality Standards in respect ofnoise.
In the wake of the Bhopal gas tragedy, theGovernment of India enacted the Environment (Protection) Act, 1986. The lawsthat existed prior to the enactment of EPA essentially focused on specificpollution (such as air and water). The need for a single authority which couldassume the lead role for environmental protection was answered through theenactment of EPA. It is in the form of an umbrella legislation designed toprovide a framework for Central Government to coordinate the activities ofvarious central and state authorities established under previous laws. It isalso in the form of an enabling law, which delegates wide powers to theexecutive to enable bureaucrats to frame necessary rules andregulations.
Apart from this, several notifications and ruleshave also been made, some of which include the Hazardous Wastes (Management andHandling) Rules in 1989, the Biomedical Wastes (Management and Handling) Rulesin 1998, Recycled Plastics (Manufacture and Usage) Rules 1999, Environment(Silting for Industrial Projects) Rules 1999 and the Municipal Solid Wastes(Management and Handling) Rules in 2000.In addition to these eco-specificlegislations, realizing that there is no comprehensive legislation dealing withbiodiversity in India, and to fulfill its international obligation under theConvention on Bio-Diversity, the Government of India has enacted the BiologicalDiversity Act, 2002.
It is a paradox that despite the presence ofsuch diverse laws, the pollution rate has crossed the dead line. This isprobably because of the reason that the law is so complicated and vague thateven the experts may not know the intricacies of it.
TheJudiciary in India has been taking steps for directing state agencies, tostrictly adhere to the legislations in protecting the environment and totallyarresting the various manmade disasters. The Judiciary has taken such stepsespecially, because of the various public interest litigations arisen out ofmanmade disasters such as Bhopal Gas tragedy etc. Itwas held in MC Mehta Vs Union of India and others, that one of the principlesunderlying environmental law is sustainable development. This principle requiresdevelopment to take place which ecologically sustainable. It was further heldthat there are two essential features of sustainable development such asprecautionary principle and polluter pays principle. The precautionary principlewas elucidated by the Supreme Court in Vellore Citizens’ Welfare Forum Vs Unionof India and other states that the state government and its agencies muchanticipate, prevent, and attack the causes of environmental degradation. Statesshould not take up any activity and measure which is not environmentally benign.It seems that lack of sufficient funds allocation to the Ministry of Environmentand Forests, lack of sufficient number of qualified and trained staff such asacademicians, legal professionals, medical experts and technologists in theMinistry and its subordinate offices all over the country, lack of commitment ofthe people and awareness about the environment protection and improvement,complicated procedures for approvals and authorizations of the Pollution ControlBoards, are the main reasons for ineffective implementation of environmentslaws. If proper reforms are made in this area, probably the environmental lawswill be implemented effectively thereby ensuring problem freeenvironment.
Environment Protection Laws and theJudiciary
The right to live in a clean and healthyenvironment is not a recent invention of the higher judiciary in India. Theright has been recognized by the legal system and the judiciary in particularfor over a century or so. The only difference in the enjoyment of the right tolive in a clean and healthy environment today is that it has attained the statusof a fundamental right the violation of which, the Constitution of India willnot permit.
It was only from the late eighties andthereafter, various High Courts and the Supreme Court of India have designatedthis right as a fundamental right. Prior to this period, as pointed out earlier,people had enjoyed this right not as a constitutionally guaranteed fundamentalright but as a right recognized and enforced by the courts under different lawslike Law of Torts, Indian Penal Code, Civil Procedure Code, Criminal ProcedureCode etc. In today’s emerging jurisprudence, environmental rights whichencompass a group of collective rights are described as third generationrights.
There has been a change in the judicialinterpretation of Article 21 ever since the case of Maneka Gandhi v. Union of India and Anr. The understanding of the words ‘life’ and ‘personalliberty’ is much more than the mere literal implication. It extends to includeimproving the worth of life making it safer and more whole. This way manydirective principles have been covered under the ambit of Article 21 making itenforceable in the court of law. Among the aspects that have come under thebroadened outlook of Article 21 is the protection and improvement of the ecologyand environment.
Principle 1, 1972 Stockholm Declaration affirmsthat “Man has the fundamental right to freedom, equality and adequate conditionsof life, in an environment of quality that permits a life of dignity andwell-being, and he bears a solemn responsibility to protect and improve theenvironment for present and future generations…” This showsthat it has been internationally recognized that man’s fundamental rightsembraces the need to live in an uncontaminated environment but it also putsforth man’s obligation to protect the environment for posterity.
The Supreme Court has laid down that the”Precautionary principle” and the “Polluter Pays Principle” are essentialfeatures of “sustainable development”. These concepts are part of EnvironmentLaw of the country.
The “Precautionary Principle” establishes that alack of information does not justify the absence of management measures. On thecontrary, management measures should be established in order to maintain theconservation of the resources. The assumptions and methods used for thedetermination of the scientific basis of the management should bepresented.
The ‘polluter pays’ principle came about in the1970’s when the importance of the environment and its protection was taken inworld over. It was subsequently promoted by the Organization for EconomicCooperation and development (OECD).The ‘polluter pays’ principle as interpretedby the Court means that the absolute liability for harm to the environmentextends not only to compensate the victims of pollution but also the cost ofrestoring the environmental degradation.
The Court has also evolved the special burden ofproof in environmental cases. In the case of Vellore Citizens Welfare Forum v.Union of India, the Court has stated that:”The onus of proof is on the actor orthe developer/industrialist to show that his actions is environmentallybenign”.
For the first time in the case of Subash Kumarv. State of Bihar, the court declared that the right to life under Art 21includes the right to clean water and air. In the same case, the rule of locusstandi was enlarged so that the court could take cognizance of environmentaldegradation and regulate the prevention of the same in an effective manner. InVirender Gaur v. State of Haryana, the Apex Court conformed that for everycitizen, there exists a constitutional right to healthy environment and furtherconferred a mandatory duty on the state to protect and preserve this humanright. Another landmark and revolutionary judgement is Indian Council forEnviro-Legal Action vs. Union of India, a case concerned serious damage bycertain industries producing toxic chemicals to the environment of BichhriDistrict in Rajasthan. Directions for the closure of the industry were given andthe decision in the Oleum Gas Leak case regarding absolute liability forpollution by hazardous industries was reaffirmed. Moreover, the polluter paysprinciple was explicitly applied for the first time in the Bichhricase.
A foundation for the application of thePrecautionary Principle, the Polluter Pays Principle and SustainableDevelopment, having been laid down, the three principles were applied togetherfor the first time by the Supreme Court in Vellore Citizens Welfare Forum v.Union of India, a case concerning pollution being caused due to the discharge ofuntreated effluents from tanneries in the state of Tamil Nadu. The Court,referring to the precautionary principle, polluter pays principle and the newconcept of onus of proof, supported with the constitutional provisions of Art.21, 47, 48A and 51A (g) and declared that these doctrines have become part ofthe environmental law of the country.
The Public Trust Doctrine, evolved in M.C. Mehtav. Kamal Nath, states that certain common properties such as rivers, forests,seashores and the air were held by Government in Trusteeship for the free andunimpeded use of the general public. Granting lease to a motel located at thebank of the River Beas would interfere with the natural flow of the water andthat the State Government had breached the public trust doctrine.
A matter regarding the vehicular pollution inDelhi city, in the context of Art 47 and 48 of the Constitution came up forconsideration in M.C. Mehta vs. Union of India (Vehicular Pollution Case). Itwas held to be the duty of the Government to see that the air did not becomecontaminated due to vehicular pollution. The Apex court again confirming theright to healthy environment as a basic human right stated that the right toclean air also stemmed from Art 21 which referred to right to life. This casehas served to be a major landmark because of which lead-free petrol supply wasintroduced in Delhi. There was a complete phasing out old commercial vehiclesmore than 5 years old as directed by the courts. Delhi owes its present climaticconditions to the attempt made to maintain clean air.
In the very recent case of T.N. GodavarmanThirumulpad v. Union of India, a case concerning conservation of forests,Justice Y.K. Sabharwal, held: …Considering the compulsions of the States andthe depletion of forest, legislative measures have shifted the responsibilityfrom States to the Centre. Moreover any threat to the ecology can lead toviolation of the right of enjoyment of healthy life guaranteed under Art 21,which is required to be protected. The Constitution enjoins upon this Court aduty to protect the environment.
The Patna High Court in Rajiv Ranjan Singh v.State of Bihar held that failure to protect the inhabitant of the locality fromthe poisonous and highly injurious effects of the distillery’s affluents andfumes amounted to an infringement of the inhabitants’ rights guaranteed underArts. 14 and 21 read with Arts. 47 and 48-A of the Constitution of India. TheCourt further directed in this case that if any person has contracted anyailment, the cause of which can be directly related to the affluent dischargedby the distillery the company shall have to bear all the expenses of histreatment and the question of awarding the suitable compensation to the victimmay also be considered.
Following a long course of active interpretationof constitutional and legislative clauses by the judiciary and vigorous effortsof some green citizens, the Indian environmental scenario has undergone apositive change. The Indian environmental jurisprudence was in a deep slumber.But today, the environmental consciousness imported by the courts, mingled withsubsequent legislative efforts in the later years, introduced the right toenvironment as a fundamental right.
The law relating to environment under Article 21is thus evolving in a phase wise manner and is getting shaped into a welldefined commandment. The extended view of Article 21 recognizes an individual’sright to live in a pollution free environment as it contributes towardsimproving one’s quality of life. Thus any citizen can resort to filing writpetitions under Article 226 or Article 32 to take recourse against environmentalpollution as it is detrimental to the quality of life.
Theterm judicial activism is used to refer to the ‘extended arm of judiciary’ orthe increasing active interest that the judiciary is taking in our every daylife. This ‘activism’ on the part of the judiciary derives its constitutionallegitimacy from Art. 141 of the Constitution which lays down that the SupremeCourt’s declaration of law is final and Art. 13 which empowers the judges todeclare any law null and void if it was found to be against the provisions ofPart III of the Constitution. Its areas of activity are widening such as PublicInterest Litigation, writ petitions under Art. 32, interpretation of Arts. 12,14, 19, 21 etc.
Different interpretations are being given to the termjudicial activism. Justice Kuldip Singh has said that the term judicial activismwas a misnomer as the judiciary was only doing what the Constitution hadenjoined upon it. P.P. Rao, a Supreme Court lawyer and a jurist felt that thebasic cause of judicial activism is the non-existence of effective government,whereas Rajeev Dhawan felt that activist judiciary was one which was dedicatedto mould the law and its interpretations to achieve social justice and rule oflaw aims of the Constitution. Meera Sapatnekar, on the other hand feels that theobject of the judiciary is to clear out all social, political and nationalmaladies of the country as the executive has failed to perform its duties andmade it necessary for the judiciary to intervene to give justice to the peopleand the nation. The Vice-President, Mohammad Hamid Ansari has attributed theover-activism of the judiciary mainly to the ‘downward spiral’ of the rule oflaw and malfunctioning of the institutions of the State, particularly theexecutive.
Governance, as we all know, is a decision making process,which has always existed since the dawn of human civilization. The role ofjudiciary lies in protecting the interest of individuals and others against themisuse of power by public authorities. Despite judicial review and PublicInterest Litigation, there is an erosion of public confidence in the systemitself due to lack of effective access to justice, huge backlog of cases andlong delay in decisions.
“The keys to good governance, as articulated bythe United Nations Development Programme, are rule of law, participation, andaccountability and transparency.” The role of the judicial branch of governmentis critical in ensuring the implementation of the principles of both the rulesof law and accountability. Firstly, the functioning of a society according tothe rule of law is based on the judiciary. Secondly, the judiciary ensures theaccountability of other institutions of government and individuals.
Inthe case of environmental governance, the judiciary also has the difficult roleof considering not only environmental instruments, but also economic,developmental and political as well as social instruments. The compliance andenforcement of sustainable development instruments also serves in the promotionof synergies or inter-linkages among multiple issues, also known as theinter-linkages approach. This is because compliance and enforcement requirescooperation and coherence in policies across multiple departments and branchesof government.
On environmental lawinterpretation and law making, although most people would argue that judges arethere merely to interpret legislation and not to make laws, severaldistinguished jurists have pointed out that the judiciary also contributes to defacto “law making” through precedents. On the capability of jurists, severalissues need attention, but one possible solution is the enhancement of theirawareness and knowledge of global and regional environmental issues viewed froma wider context of sustainable development. In the Johannesburg Principles, theglobal judiciary expressly recognized this fact and called on UNEP and otherorganizations within and outside the United Nations to actively support a majorcapacity building programme for judges, prosecutors, enforcement officers andrepresentatives of civil society organizations that are engaged in safeguardingthe environmental rights of citizens.
Statutory interpretation and InternationalTreaties
As provided by Article 51(c) of the Constitutionof India, the State is under a constitutional directive to endeavor to fosterrespect for international law and treaty obligations in the dealings of theorganized peoples with one another. Though the directive principles of StatePolicy cannot be enforced in the Municipal Courts, they are nonethelessfundamental in the governance of the Country. The definition of ‘State’ given inArticle 12 for part III of the Constitution relating to Fundamental Rights andincorporated in Article 36 for Part IV which contains the Directive Principlesof State Policy; is very wide and includes judicial and quasi-judicialauthorities also. Therefore, the courts in India are obliged to endeavor tofoster respect for international law and obligations under the internationaltreaties.
The constitutional concern for respectinginternational law including international treaties and conventions is alsoreflected in Article 253 which, notwithstanding the distribution of legislativepowers between the Federal Union and the States, empowers the Parliament to makelaw for the whole or any part of the territory of India for implementing anytreaty, agreement or convention with any other Country or Countries or anydecision made at any international Conference, association or other body. TheParliament is under Article 246 read with entry 14 of the Union List of subjectson which it can legislate contained in Schedule VII of the Constitution,empowered to legislate with respect to the subject of entering into treaties andagreements with foreign countries and implementing of treaties, agreements andconventions with foreign countries. However, barring treaties which requirelegislation to be made, the international agreements entered into by the Unionin exercise of its executive power under Article 73 which are not contrary tolaw are required to be recognized by the Municipal Courts. For entering intotreaty or bringing it in force for India, it is not a Constitutional requirementthat the executive should have the support of Parliamentarylegislation.
Ininterpreting a statute, the Courts in India would, so far as its languagepermits, construe it so as not to be inconsistent with the comity of nations orthe established rules of International law. If the terms of the legislation arenot clear and are reasonably capable of more than one meaning, the internationalagreements or conventions on the points become relevant, for, there is a primafacie presumption that Parliament does not intend to act in breach ofInternational law, including therein specific treaty obligations; and if one ofthe meanings which can reasonably be ascribed to the legislation is consonantwith the treaty obligations and the other is not, the meaning which is consonantis to be preferred. Where an international agreement is incorporated in anIndian Statute, the statute should be construed with a view to attaininguniformity in the different jurisdictions in which the agreement operates. Thisis ordinarily the approach of Courts in India while dealing with the mattersrelating to various rights which is warranted by the Constitutional directive tothe State to foster respect for International law and treatyobligations.
Trail smelter Arbitration is the father ofdevelopments in the area of International Environmental Law. It concerns withshort range Tran frontier Air Pollution by Sulfur Dioxide fumes originating inCanada and causing damage in the U.S. Moreover, India has ratified the 1933London Convention related to the Preservation of Fauna and Flora in theirNatural State. India also ratified the 1951 Rome International Plant ProtectionConvention. India, became a member of the these institutions and ensured itssupport to them. India also participated in the United Nations Conference onHuman Environment, popularly known as the Stockholm Conference, held in 1972which resulted in codification of environmental law in India.
In addition to the above, India is a party tothe various international environmental agreements. The following is the list ofsuch agreements:
International Convention for the Regulation ofWhaling, 1946;
The Antarctic Treaty, 1959;
Convention on the Conservation of AntarcticMarine Living Resources, 1980; and
United Nations Convention on Law of theSea.
The Civil Liability for Oil Pollution Damage,1969;
The Fund Convention, 1971; and
The International Convention for the Preventionof Pollution from Ships, 1973 and the 1978 Protocol (MARPOL)
The ‘Ramsar Convention’, 1971 (onwetlands);
The World Heritage Convention, 1972;
The Convention on Trade in Endangered Species(CITES), 1973;
The Convention on Migratory Species,1979;
International Tropical Timber Agreement,1983;
FAO International Undertaking on Plant GeneticResources, 1983; and
The Convention on Biological Diversity,1992.
Vienna Convention for the Protection of theOzone Layer, 1985;
Montreal Protocol on Substances that Deplete theOzone Layer, 1987 and its London Amendment, 1990;
Framework Convention on Climate Change,1992;
Kyoto Protocol, 1997 on Reduction of Greenhousegases; and
The Johabbesburg Declaration on SustainableDevelopment, 2002.
Treaties are not just used as “a source ofinterpretation”, in respect of the statutes which seek to implement thatparticular treaty. Under Indian law treaties are also used as a “source ofinspiration” to give meaning to legal rights and obligations within the legalsystem. The first of such uses consists of interpreting statutes in the light ofinternational treaties. The second use is similar to that of the first in thatit entails using human rights in the fundamental rights chapter of the Indianconstitution.”
In Kesavananda Bharati V. State of Kerala Sikri,C.J., “while referring to the provisions of the UN Charter on Human Rights,observed: in view of Art 51 of the directive principles, this Court mustinterpret the language of the Constitution, if not intractable, which is afterall a municipal law, in the light of the United Nations Charter and the solemndeclaration subscribed to by India.” The doors were, therefore, thrown wide openfor international law to play a part in the development of human rights andpersonal liberties in this country.
Thus, the correct interpretation ofinternational law by municipal courts as a tool of interpretation would warrantArticle 253 being read in conjunction with the Directive principles. Article 51has a bearing on the interpretation of Indian law norms reflected in the generalmultilateral treaties have been incorporated into the Indian legal system ornot. Article 51 is designed to serve the courts to interpretation ofinternational agreements. It articulates India’s attitude towards internationallaw, but since it occurs in part IV it is often dismissed as hortatory, howeverthis misconception has been dispelled with.
The Doctrine of “Pacta Sunt Servanda” onInternational Treaty Implementation
It is said that Vienna Convention is theconvention of conventions. The doctrine of “pacta sunt servanda” contained inarticle 26 and article 27 of the -Vienna Convention, 1980 lays down that everytreaty in force is binding upon the parties to it and must be performed in goodfaith and a party may not invoke the provisions of its internal law as ajustification for its failure to perform a treaty.
With such expectations flowing out of thedoctrine of “pacta sunt servanda” leads us to another question that is dointernational treaties have to stand the constitutional test of being conformitywith part III of the Constitution of India as advocated by Basu; and in additionto it do they also have to stand the test of the “vague” doctrine of BasicStructure; or can a State have the defense of “Sovereignty” for non- compliancewith the treaty provisions.
International obligations once undertaken mustbe complied with, but International Law does not mention the manner in whichcompliance is to be carried out, with this perception, all the divergence ofstate practices are accommodated. Secondly, such International treatyobligations “command” responsibility or liability at international plane and atNational plane it is submitted it is only a “legitimate expectation” that can bemade by such International treaties Hence while interpreting Internationaltreaty provisions the domestic courts will have to subject such interpretationto such Constitutional tests as stated hereinabove.
The same view has been expressed by the“National Commission to Review the Working of the Constitution” in the followingterms: “Judiciary has no specific role in treaty-making as such but if and whena question arises whether a treaty concluded by the Union violates any of theConstitutional provisions, judiciary comes into the picture. It needs noemphasis that whether it is the Union Executive or the Parliament, they cannotenter into any treaty or take any action towards its implementation whichtransgresses any of the constitutional limitations. .”
It may be interesting to know that somecountries like France in fact have a “Counseil Constitutionnel” post who havethe a
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