An Integrated Framework For Preventing Pollution And Protecting The Environment
Government has the duty to protect the ‘exhaustible natural resources from rash reckless spoliation’. This duty is also base on the Professor Joseph Sax’s doctrine of public trust. Under this doctrine, Government, as the trustee for its citizen and unborn generation, has the enough competencies to control the polluter to prevent the natural resources or in much simpler term protect the environment. Indian Government is also aware of its responsibility. With being the signatory to UN Convention on Environment, 1972 and Constitutional provisions, legislations and administrative directions to protect the Environment, Indian Government has shown its seriousness about the environment.
The government can protect the environment in the two ways – market based solution and direct regulation. Market based solution gives some incentive to the produce so that he can be influenced to reduce the level of pollution. Pollution tax, fine, reductions in other direct or in indirect tax are the good example of that. On the other hand, through the direct regulation, government can fix the amount of pollution, for example granting license. Both instruments are reflected in the Environment (Protection) Act, 1986, the Environment (Protection) Rules, 1986 and other laws. The one of the main aim of environment protection law is to prevention from pollution.
This project is going to analyse integrated framework for prevention of pollution and protection of environment.
How does Indian Government control pollution?
What are the frameworks in India for the prevention from pollution?
Development Of Legal Framework To Protect The Environment And Control Pollution
The government has the responsibility to take the necessary steps to protect the environment. Because, it is a trustee of public; and also it is the most capable machinery to control pollution and protect environment. Another reason behind the government responsibility is that the environment is a common resource and economic principle of problem of common property suggests that general public generally do not bother about the conservation of such resources. The solution to this type of problem can be that, the government should take necessary step to protect such resources. In conclusion one can say that the government has the main responsibility to take the necessary steps to frame the law regarding environment and pollution.
India has shown its consciousness about environment and it has framed laws to protect environment. Development of Indian laws relating to environment protection can be divided into two phases – Pre 1972 Development and Post 1972 Development.
Pre 1972 Development
Before 1972 conference, the main laws regarding environment protection were criminal law, easement laws, tort law, laws regarding canal and water, forest law and some special laws regarding hazardous substance. Certain Constitutional provisions can also be interpreted as the environment protection laws. Initially Indian Constitution does not talk directly about the Environment Protection, but it gives fundamental rights to life or Article 21 to its citizen, which could be treated as the right to enjoy wholesome environment.
But the main drawback of such laws is that, those are not made especially for the protection of environment and approach of such laws is human centric and not the environment. Those laws also lack special enforcement and monitoring agency.
Post 1972 Development
After the 1972 Indian Government bring major changes in environmental law, the it move from protection of environment through general law to specific law regarding environment.
The UN Conference on Human Environment and Development held at Stockholm and ‘Stockholm Declaration on the Human Environment’ 1972 has the significant impact on India Environment Law. It is considered as magna carta of Environmental law and it has same parallel significance as Universal Declaration on the Human Right, 1948. In this conference, twenty-six principles were laid down.
Stockholm Conference And Constitution Of India
After the Stockholm Conference, 1972, Government of India brought the 42nd amendment in the Constitution and incorporated Article 48A and Article 51A (g). Article 48A comes under the part IV ‘Directive Principle of State Policy’, and under this Article the states are under the ‘active obligation’ that it shall endeavour to protect and impose the environment. Whereas Article 51A (g) states the citizen has the duty to protect and improve the environment. Article 51A (g) is not law and, a fortiori, not supreme law.
Stockholm Conference And Indian Legislation
Stockholm Conference, 1972 also has the impact on the environment related laws. After 1972, India enacted the Water Act 1976, Air Act 1981, Environment Protection Act, 1986, various policies and notification.
The Water Act does not refer the Stockholm Conference, 1972; this Act was the result of approach of State Government to the Centre to frame the laws regarding water. Water Act, 1976 provide the provision to protect the water from pollution. It also gives statutory definition of pollution regarding water. Another significant development in Water Act, 1976 was the establishment of central board and state board for the prevention and control of water pollution.
After Water Act, the Air Act, 1981, was passed. The main purpose of this Act is the prevention, control and abatement of air pollution. It also confers power to board established under the Water Act, 1976, to attain the objective of the Air Act.
Environment Protection Act
After the Bhopal Gas Tragedy the Government of India, felt the lacuna of environmental laws and in order to strengthen the environmental laws Government passed the umbrella legislation for environment, the Environment Protection Act 1986. This legislation indented to protect the entire environment, rather merely the water or the air. According to it ‘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’. It also defines environmental pollution as the presence of any environmental pollutant in the environment. Another significance of this Act is that it.
Environment Protection Rule
In the same year on 19 November, the Environment Protection Rule 1986was notified. Main purpose of this rule is to fulfil the requirement of the EP Act 1986, it a practical aspect of EP Act. This rule explains ‘standards’, ‘procedure of taking sample for analysis’, ‘service of notice’, ‘function of environmental laboratories’, ‘analyst’, ‘furnishing information’, ‘how report should be submitted’. This Rule also contains schedules and form.
The main attribute of EP Rule is section 3. Section 3 and schedule I to IV of EP Rule 1986 explain about the ‘standards for emission or discharge of environment pollutants’; this was the outcome of requirement of Section 7 of the EP Act 1986, which prohibits the discharge or emission of environmental pollutants in excess of the ‘prescribed standards’. Another main feature is the analysis of sample of air, water, oil and other substance. Section 11 of empower the central government to take sample; and to fulfil and support this provision, the EP Rule 1986 prescribe the manner to take sample, function of environment laboratories where these sample can be analyse, and the manner in which the report should be submitted.
Hazardous Substance And Bio-Medical Waste
In order to fulfil the requirement of Section 8 of EP Act 1986, the Hazardous Waste (Management and Handling) Rule, 1989, the Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989 and the Chemical Accidents (Emergency, Planning, Preparation, Preparedness and Response) Rule, 1996 were issued and these rules deal with the hazardous substance. Bio-Medical Waste (Management and Handling) Rule 1980 deals with the regulation of hospital, clinic, veterinary institution and other institution regarding bio-medical waste.
Coastal Area Regulations
The Coastal Zone Regulation 1991 deals with the regulation of any development activities within the strip of 500 meters from the sea shore.
Environment Impact Assessment
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 and for granting the Environment Clearance Certificate. The EIA Notification 1994 was amended in 1997 and in 2006 the EIA Notification brought new EIA. The main feature of 2006 Notification is that it brought major change in public hearing process.
Environment Policy 2006
Environmental Policy 2006 is significant development in the Indian Environmental Law, the main purpose of this policy is to extend the coverage of environmental law and to fill the gaps in environmental laws and policy. This policy understands the changes in the society and its problem regarding pollution and environment; it tried to bridge the gap between old laws & policy and new changed circumstances.
Indian Environmental Law And Its Functional Aspect
Success of every law depends on the efficiency of functional aspect of such laws, i.e. efficiency of enforcement agency, monitoring body, courts and adjudicating body. In India, Pollution Control Boards are the functional aspect of Indian environmental law and the Indian Court also keeps eye on environmental issues through PILs and appeals.
Pollution Control Board
The present Pollution Control Board was initially known as the Water Board, which was constituted under the Water Act, 1976. At that time the Board had the responsibility of prevention of water pollution, and later under the Air Act, 1981 the Board also get the responsibility of prevention of air pollution. In Subsequent years, 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 PCBs are to promote cleanliness of water and control, prevent and abate air pollution, advice respective Government, coordinate activity of state board (by CPCB), formulation of standards, inspection of industries, collection of sample, recognition of laboratories, submit reports.
Role of Pollution Control Board was criticised by the Supreme Court and various Scholars for its inefficiency. Calcutta Tanneries Case, Kanpur Municipalities Case, Supreme Court criticised the inefficient role of PCBs. Shyam Divan also criticised the PCBs, especially he criticised the Bihar Pollution Control Board for its poor infrastructure, less staffs and minimal funds. Justice B.N. Kirpal in his article Environmental Justice in India, criticised the legislation and administration; and explained why the judiciary need to step-in to protect the environment.
Role Of Court
Whenever the PCBs failed to fulfil his responsibility, the Courts successfully complement the responsibility of protection of environment. Court generally takes environmental case as constitutional responsibility toward environment, which more assertive and forceful in nature. Court generally uses the Article 21, 48A and 51 A (g) of the Constitution of India, and few environmental principles to control the pollution and protect the environment.
In the Subash Kumar v State of Bihar, the Supreme Court found that for the full enjoyment of the Article 21 of the Constitution, which is a right to life, right of enjoyment of pollution free water and air are necessary. Some High Courts also found Article 21 useful in the protection of environment. Whereas, in M.C. Mehta v Union of India Supreme Court used the Article 48A to make the government liable for controlling pollution. Besides Article 21, 48A, 51A(g) of Constitution of India, Indian Court use the few other principles to prevent pollution; Absolute Liability, Sustainable Development, Precautionary Principle, Polluter Pays Principle are the few of them.
Another area where the Supreme Court developed the environmental law is the Expansion of Public Interest Litigation (PIL). After the expansion of Locus Standi in S.P. Gupta v Union of India (Judge Transfer Case I), the PIL came in the light and it was later expanded and used in the M.C. Mehta v Union of India, Rural Litigation Entitlement Kendra v State of UP, M.C. Mehta v Union of India (Kanpur Nagar Mahapalika Case), Vellore Citizen Welfare Forum v Union of India.
Establishment Of National Environment Tribunal And National Environment Appellate Authority
Under the National Environment Tribunal Act, 1995, establish the National Environment Tribunal, which hear the matter related to damages out of accident due to any hazardous substance. It was establish to fulfil the responsibility of under the Rio Declation 1992.
Whereas under the National Environment Appellate Authority Act, 1997, the National Environment Appellate Authority was established to hear the appeal arises under the Environment Protection Act, 1986.
Indian shown its sincerity regarding environment after the Stockholm Conference, 1972, and brought major changes in its legal framework. Another significant development was the establishment of PCBs and broadening of its scope. Indian Courts also tried to protect the environment through PIL.
This shows that the integrated framework for preventing pollution and protecting environment is very efficient. Law and the functional aspect of it is very efficient, but sometimes PCBs do not work efficiently, in that situation, Supreme Court come forward through PIL to protect the environment.
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