Introduction:
The protection of the environment has become one of the big global concerns of the 21st century. Human’s exploitation of nature and their ability to manipulate the world by science and technological achievement has made them cynical not only to themselves but also to other living beings, plants, living organisms, and macro-organisms.
Traditionally, environmental problems have been discussed in India by private law doctrines such as strict liability, trespass, nuisance, or negligence in India or remedies available in compliance with the Indian Penal Code or the Criminal Procedure Code. There are a plethora of legal provisions in India that aim to protect the environment from threats by the human race. In addition to the existing constitutional provisions, a variety of statutory enactments have been enacted by the Parliament of India to fulfill the constitutional objective of ensuring a clean environment for the citizens of India. Like Air (Prevention and Control of Pollution) Act, 1981; Water (Prevention and Control of Pollution) Act, 1974; Environment (Protection) Act, 1986.
Environment Protection and Indian Penal Code, 1860
While understanding of the hazards of development came after the Bhopal leak and the need had been felt to constitute the new special laws for the Environment Protection Act, 1986, was a measure in this direction of precaution. We cannot say that there was no law on this purpose before. Various Laws during the British Empire were introduced to deal with numerous environmental problems. One of these is the Indian Penal Code, implemented in 1860. It’s still applicable today. There are many provisions against pollution in the Indian Penal Code, 1860. Like Sections 268, 269, 270, 279, 280, 287, 288, 290 291,294 of Chapter IV of the Indian penal code deal with offenses relating to public health, safety, decency, convenience, and morality.
Public Nuisance has been defined in section 268 as a person who is guilty of public nuisance, or is guilty of any act of unlawful omission that causes any common injury, threat/ damage or annoyance to the public or to people in general who reside or occupy the neighboring property; Or which may inevitably inflict harm, obstruction, threat or inconvenience to individuals who may have the ability to use any public right.[1] Section 268 also specifies that there is no excuse for common nuisance on the ground that it gives rise to any comfort or advantage. The public nuisance has covered all forms of pollution, i.e. soil, water, air, noise pollution, etc. Section 290 of the Indian penal code (I.P.C.) provides for punishments for public nuisance (including pollution cases) in scenarios not otherwise provided for.
In the case of K. Ramakrishnan v. State of Kerala[2], the High Court held that smoking of any manner in public places is a public nuisance and that cases of public nuisance can be filed under section 290 of the Penal Code as an infringement of the right to life provided under Article 21 of the Constitution.
Sections 269 to 271 deal with negligent acts prone to spread life-threatening infections and diseases. Such acts are punishable under sections 269 to 271 of the Indian Penal Code Act. The penalty or punishment granted under section 269 and 271 is imprisonment for up to six months or fine or both. Section 277 can be used to deter water pollution.[3]
Section 277 specifies that “anyone who knowingly contaminate or fouls the water of any public spring or reservoir in such a way as to make it less desirable for the purpose, where it is widely used, shall be punished with simple or strict incarceration for a period of imprisonment extend to three months or a fine of five hundred ropes or both.
Section 286 of I.P.C. specifies that punishment for negligent behavior with respect to explosives. Similarly, Section 284 and 285 allow for punishments for negligent actions with regard to toxic material and negligent conduct with respect to fire or fuel matter, respectively. The negative side of these provisions is that the punishments given for the above-mentioned crimes are too inadequate to solve today’s immense environmental pollution issue.[4]
Water polluters may also be prosecuted for misconduct under section 425 of I.P.C. If his/ her conduct causes wrongful loss or damage to the environment or another person or if his or her conduct causes water contamination, he or she may be brought under section 511 of the Act. Section 440 of the Act deals with the suffering incurred by the killing or maiming animals and cattle.[5]
Remedies available under common law vis-à-vis Environmental Protection
Nuisance
The greatest doctrinal foundations of modern environmental law can be found in the common law principles of nuisance. Effective remedy against environmental pollution as a consequence of the exhaustive and diverse meanings of the word “nuisance” which means something irritating, harmful, or offensive. Nuisance includes any act, injury, damage, omission, annoyance, or offense to the sense of sight, smell, hearing, or which is or may be dangerous to life or injurious to health or property.[6]
In common law, there are two forms of nuisance, known as a public and private nuisance. A public nuisance can be described as an unreasonable interference with a right common to the general public. A private nuisance is a substantial and unreasonable interference with the enjoyment and use of land. Public nuisance has also been specified in Section 268 of the Indian penal code (Ayotte and Smith, 2011).
In India, a public nuisance case can be taken before a court of law either through a civil or a criminal proceeding. Section 91 of the Code of Civil Procedure, 1908, provides for the right to take action in the case of public nuisance. The process for the prevention of public nuisance is laid down in sections 133 to 143 of the Code Criminal Procedure, 1973.[7]
In the case of Ramlal v. Mustafabad Oil and Oil Ginning Factory[8], the Punjab and Haryana Court observed that if noise has been found to be above the requisite level to incur liability for public nuisance, there is no legitimate protection to the argument that such noise has emerged out of any lawful activity.
Negligence
According to black law’s dictionary negligence means ‘the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do’.
The element which constitutes negligence is that the respondent did not take adequate care to avoid the public nuisance that the person was expected to take such care under the law. In the case of Naresh Dutt Tyagi v. State of Uttar Pradesh[9], pesticide-free gases leaked from ventilators to the surrounding house, resulting in the death of three children and a fetus in a pregnant woman.
Strict Liability
The principle of strict liability emerged in the case of Rylands v. Fletcher [10]“The person who, for his intentions, brings to his land and gathers and retains there something likely to do wrong, if it escapes, must keep it at his own expense and, if he does not do so, is prima facie responsible for all the harm which is the natural consequence of his escape”
Strict liability in an Indian case is M.C. Mehta v. Union of India[11], popularly known as Oleum Gas Leak Incident. In that case, the honorable Supreme Court observed that if any dangerous or potentially harmful activity carried out in any premises and the case of the discharge of any poisonous material caused any damage such Endeavour is purely and liable for any damages resulting therefrom, except with any of the cases set out above, does not serve as a protection in the event of strict liability.
Trespass
Trespass is an unlawful interference with the ownership of another’s land. The key element in deciding the case of trespass is that there will be a deliberate violation of another’s physical ownership of the property.
Constitutional provisions vis-à-vis Environmental Protection
The term ‘environment’ was not mentioned in the Indian Constitution before the 42nd amendment. By this amendment, Article 48-A was added to the directive principles of state policy of the Directive and Article 51-A incorporated a new clause in the form of a fundamental duty. Under Article 48-A, The State shall ensure the security and improvement of the environment and the conservation of forests and wildlife of the country.
According to the sub-clause (g) of Article 51-A, “It is the duty of every citizen of India to conserve and improve the natural environment, including forests, lakes, rivers, and wildlife, and to have empathy for living organisms.”[12] In the case of L. K. Koolwal v. State of Rajasthan and Ors[13], the court explained the scope of Article 51-A. under Article 51-A (g) of the Constitution, It is true that it is the duty of the citizen to protect the environment, but this article also provides for the right of the citizen to appear before the court to enforce Article 51-A (g).
Part III of the Constitution of India deals with the issue of fundamental rights. Article 21 deals with the right to live. This right would be worthless if there were no safe communities for people to live in. In M.C. Mehta v. Union of India7, the Supreme Court held that the freedom to live in a pollution-free atmosphere is part of the basic right to life under Article 21 of the Constitution.
In the case of P.A. Jacob v. Superintendent of Police, Kottayam[14], the court held that subjecting an unstable citizen to a disastrous level of noise pollution would lead to the violation of the fundamental right of the individual under Article 21 of the Indian Constitution.
The major environmental laws, including in respect of which numerous key environmental permits (or consents) are given in India, are as follows:[15]
- Water (Prevention and Control of Pollution) Act 1974 (Water Act), which also initially identified the powers, functions, and hierarchy of the environmental agencies, the CPCB, and the SPCBs.
- Air (Prevention and Control of Pollution) Act 1981 (Air Act).
- Environment (Protection) Act 1986 (EP Act). A broad range of notifications and rules have been adopted under it, such as the:
- E-Waste (Management) Rules 2016, as amended in 2018 (E-Waste Rules);
- Bio-Medical Waste Management Rules 2016;
- Plastic Waste Management Rules 2016;
- Solid Waste Management Rules, 2016;
- Construction and Demolition Waste Management Rules 2016;
- Hazardous and Other Waste (Management and Tran boundary Movement) Rules 2016, as amended in 2019 (HW Rules);
- Manufacture, Storage and Import of Hazardous Chemicals Rules 1989 (MSIHC Rules);
- Coastal Regulation Zone Notification 2019; and
- Environment Impact Assessment Notification 2006.
- Biological Diversity Act, 2002.
- National Green Tribunal Act, 2010.
- Forest (Conservation) Act, 1980.
- Biological Diversity Act, 2002.
- Public Liability Insurance Act, 1991.
- National Green Tribunal Act, 2010.
- Wild Life (Protection) Act, 1972.
Conclusion
India has more than enough laws and legalizations for environment protection but there is a need for more comprehensive regulations that can offer a much simpler and more streamlined solution that can provide the requisite environmental protection. The pollution boards have been given the authority to launch litigation before the court of law to bring the violators to justice in relation to environmental destruction. The idea of granting quasi-judicial powers to these pollution boards can be considered in such a way that they can impose penalties on those who violate the law and also reduce the burden on already overburdened courts.
There is an evident need to amend local legislation to establish the Department of Environmental Management in municipal and large environmental corporations. It is not just the duty of the Government to make laws, but rather the responsibility of the public to be aware of and truly educated. It’s us who make the world; it’s us who have to look after the precious environment.
Man is a complex being: he makes deserts bloom and lakes die.
Gil Scott-Heron
References:
[1] Indian Penal Code, 1860, Section 268.
[2] AIR 1999 Ker 385
[3] Indian Penal Code, 1860, Section 269 to 271.
[4] Indian Penal Code, 1860, Section 284, 285, 286.
[5] Indian Penal Code, 1860, Section 425, 440, 511.
[6] Shastri, S.C., Environmental Law, Ed. 3rd , p.71
[7] V. K. BEENA KUMARI CASE
[8] AIR 1968 P&H. 399
[9] 1995 Supp (3) SCC 144
[10] 1868 LR 3 HL 330
[11] 1868 LR 3 HL 330
[12] Constitution of India, Article 51-A
[13] AIR 1988 Raj 2.
[14] A.I.R. 1993 Ker. 1
[15] Environmental law and practice in India: overview by Els Reynaers Kini and Gautambala Nandeshwar, M V Kini
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