Emergence of Environmental Legislation

Introduction:

Article 51 A (g) of Fundamental Duties of Constitution states that “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.”

Protection of the environment is not only the responsibility of government but also citizens (include corporations, organisation, association etc). For the continuity of human life, it is important that the environment is preserved. In order to understand present-day environmental laws, it is important to look at history.

Laws keep on changing from time to time according to the need of society similarly the practices which were followed during Ancient India aren’t followed now.

Since the ancient period, people were aware of the importance of nature. Laws regarding protection of the environment has been there in India since the 19th century that is during the British Raj it was during their ruling when proper rules and regulations were made for governing environment. It was only after independence that environmental laws were made which protected them especially after the United Nation conference on Human Environment that well-developed laws were made.

Policies in Ancient India

In India, preservation of the environment can be seen since civilisation began. Various Hindu scriptures like Vedas, Upanishads, Ramayana etc. have mentioned the importance of planting trees and wildlife. Vedas contain several references for ecological balance and weather cycle.  Yajnavalkya Smriti prohibited the cutting of trees and punishment were provided for such acts. In Arthashastra various punishments were provided for cutting trees, killing animals and damaging forests. If Arthashastra is to be believed then preservation of environment commenced from the Mauryan Period, during this period emphasis was laid upon administration of forest. Emperor Ashoka’s pillar has numerous quotes which have highlighted the importance of environment protection. Thus, the people of that time period were aware of the impact of deforestation.[1][2][3]

Policies during Medieval India

 During this period no efforts were made by the emperor to preserve the environment. During the Medieval period, the forests were nothing more than haunting land. During Akbar’s rule, every other person was forbidden from haunting except for rulers only those trees were spared which were of religious importance. Apart from these their we’re no restriction upon killing or hunting animals. Forest during this period decreased rapidly.

Policies and Laws during the British Period

During the 18^th century, no substantial steps were taken to control the environment. Forest was mercilessly cut for military, export, agriculture and other purposes. During this period although our country’s natural resources were used brutally but it was during this era we saw proper laws governing the environment. There were many acts introduced during this time. Although environmental legislation during British Raj governed few aspects only those were forest, water pollution and wildlife.[4]

1. Shore Nuisance (Bombay and Kolaba) Act, 1853 imposed restrictions on the fouling of seawater.
2. Oriental Gas Company Act, 1857
3. Merchant Shipping Act of 1858 dealt with the prevention of sea pollution by oil.
4. Cattle Trespass Act, 1871
5. Indian Easement Act, 1892 (which part of India)
6.  The Fisheries Act, 1897 
7.  The Bengal Smoke Nuisance Act of 1905 
8.  Bombay Smoke Nuisance Act of 1912
9. Wild Birds and Animals Protection Act, 1912  
10. Indian Forest Act, 1927

Indian Penal Code, 1860 also contains provides punishment for polluting the environment under section 268 (defines public nuisance) and 290 (provides punishment for public nuisance). Section 277 deals with voluntarily contaminating the water of spring or reservoir. Section 278 lays down Whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way, shall be punished with fine which may extend to five hundred rupees. Section 284, 285 and 286 deals with negligent handling of hazardous substances. Section 428 and 429 deal with mischief against animals.[5]

Many critics believe that the main reason for bringing environmental laws was not because they cared about the environment instead it was to earn more revenue.

Laws after Independence

Many laws were made by the Indian Parliament but it was only after Stockholm Conference major changes were made in the environmental legislation.

Following are few laws which were passed before 1972 Conference –

1. Factories Act, 1948
2. The Prevention of Food Adulteration Act, 1952
3. The River Borders Act 1956
4. The Mines and Minerals (Regulation and Development) Act, 1957
5. The Ancient Monuments and Archaeological Sites and Remains Act, 1958
6. The Atomic Energy Act, 1962
7. The Insecticides Act, 1968

• Well framed laws came after UN Conference on Human Environment in 1972, popularly known as the Stockholm Conference. After Stockholm Conference the Pitamber Committee was set up on its recommendations, a National Committee on Environmental Planning and Coordination (NCEPC) was constituted by the Government of India in the Department of Science and Technology in order to plan and coordinate environmental programmes and policies and advice various ministries on environmental protection. Later on, the government Ministry of Environment and Forest 1985 it’s an apex body.

• The Water (Prevention and Control of Pollution) Act, 1974 was passed 2 years after the Stockholm Conference purpose of this act is to prevent and control water pollution and restore water. Which allows the publishing of pollution boards at the Centre and State level.

• The Forest (Conservation) Act, 1980 aimed to conserve forest and check deforestation.

• The Air (Prevention and Control of Pollution) Act,1981, aimed at examining air pollution through pollution control boards.

• The Environment (Protection) Act, 1986 is legislation which provides for single focus in the country for protection of the environment and aims at closing the loopholes in prevailing legislation. This act was enacted after the Bhopal Gas Tragedy which took 3000 lives. Laws before this act focused on specific environment problem the need for authority controlling this act changed it. Under this act, the Central Government is empowered to take necessary measures in order to protect and improve the quality of the environment by setting standards for emissions and discharges of pollution in the atmosphere by any person carrying on an industry or activity; regulating the location of industries; management of hazardous wastes, and protection of public health and welfare.

• The Public Liability Insurance Act, 1991 through this act workers are given reassurance if they work at a hazardous factory.

• National Environment Tribunal Act, 1995 this act was made to provide strict liability for damages occurred due to accidents while handling any hazardous substances.

• There are various acts for the management of hazardous waste. There is an act for e-waste too.
• The Biological Diversity Act, 2002
• National Environment Policy 2004

• In 1980 Government of India set a committee (Tiwari Committee) under the chairmanship of Shri N.D Tiwari then chairman of Planning Commission this committee was set up to review prevailing environmental laws. The committee laid emphasis upon the need for controlling and managing the country’s natural resources like land, forest, water etc. It’s major recommendation were –
  1. Constitution of environment courts at the district level
  2. Creation of Department of Environment
  3. Setting up a central land commission
  4. Environment Impact Assessment (EIA)
  5. Environment code for covering all types of pollution

Provisions for economic incentives for encouraging environment-friendly products, income tax and sale tax benefits for using clean technology etc.[6]

The government did constitute Department of Environment in 1980 but it was transferred to Ministry of Environment and Forest 1985. The land commission was also set up. EIA has become important for highly polluting industries since 1994

Constitutional Amendment

Originally the Constitution of India did not have provisions regarding the protection of the environment they were included after the amendments.

42^nd Constitution Amendment Act 1976, made provisions for the environment in form of Directive Principles of State Policy and Fundamental Duties. Article 48A of DPSP states that ‘the state shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country’. 51A(g) states that ‘to protect and improve the natural environment including forests, lakes, rivers, wildlife, and to have compassion for living creatures’.

Supreme Court on various occasions had said that the right to life includes safe drinking water, proper sanitation and pollution-free environment.

Important Cases

1. M.C Mehta v Union of India and Ors, (1986)[7], in this case, it was decided that every person has the right to a clean environment.
2. Sachidanand Pandey v. State of West Bengal[8], under this case, the Supreme Court stated that the Courts while deciding any case related to the environment has to apply Article 48A and 51A(g) of Constitution
3. Rural Litigation and Entitlement Kendra, Dehradun vs. State of Uttar Pradesh[9] through this case idea of sustainable development was introduced.
4. Subhash Kumar vs. State of Bihar and Ors.[10] Through this case, the court decided that the right to pollution-free environment is part of Article 21 of the Constitution as every individual has the right to live and have access to a pollution-free environment and water.
5.  Indian Council for Enviro-Legal Action vs. Union of India[11] through this case the court decided that the person who pollutes the environment shall pay for the same. Through this time limit was set and industrial construction activities were banned within 500mtrs of the high tide line.

Conclusion

Sense of protectiveness over the environment in India is not a new notion. It can be seen that from the Ancient period Hindus were aware of the importance of the environment and the negative impact of deforestation. Muslims are also known for their love towards nature which couldn’t be seen during Mughal time.

During the British era, various law’s and policies were enacted by them for protection of the environment but critics argue that it was their way to earn more revenue. After the independence of our country, various laws were enacted but they didn’t have a strong base. It was after the UN Conference in 1972 which led to change and protection of the environment was taken seriously. Bhopal Gas Tragedy also led to the implementation of new act which acted as an umbrella for other environment-related laws as before Environment (protection) Act 1986 the acts covered matters individually.

Initially when the Constitution was made no laws mentioned protection of the environment but courts made sure that the environment was taken care. And through various amendment Articles, we’re added. Courts have been nature friendly and have given various theories which have been adopted.

Consequently, activities which posed a major threat to the environment and human were curtailed.

Luc Ferry said ‘the world we have treated as an object, has become a subject again’.

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References:

[1] https://www.mondaq.com/india/waste-management/624836/environment-laws-in-india

[2] https://legaldesire.com/evolution-of-environmental-law-and-policies-in-india/

[3] https://www.google.com/amp/s/www.indiatvnews.com/amp/buzz/mouthful/world-environment-day-154.html

[4] http://www.legalserviceindia.com/articles/evn.htm

[5] http://www.ecology.edu/environmental-legislation.html#:~:text=The%20first%20important%20environmental%20law,of%20Pollution)%20Act%2C%201974.&text=This%20Act%20mentions%20Central%20Board,and%20State%20Pollution%20Control%20Boards.

[6] http://www.ecology.edu/environmental-legislation.html#:~:text=The%20first%20important%20environmental%20law,of%20Pollution)%20Act%2C%201974.&text=This%20Act%20mentions%20Central%20Board,and%20State%20Pollution%20Control%20Boards.

[7] M.C Mehta v. Union of India1986 SCR (1) 312 https://en.m.wikipedia.org/wiki/M._C._Mehta_v._Union_of_India#:~:text=Union%20of%20India%20originated%20in,Shriram%20Food%20and%20Fertilisers%20Ltd.&text=This%20gas%20leak%20occurred%20soon,incident%20and%20few%20were%20hospitalized.

[8] Sachidanand Pandey v. State of West Bengal 1987 AIR 1109, 1987 SCR (2) 223

[9] Rural Litigation and Entitlement Kendra, Dehradun vs. State of Uttar Pradesh AIR 1987 SC 2187

[10] Subhash Kumar vs. State of Bihar and Ors. AIR (1991) SC 420

[11] Indian Council for Enviro-Legal Action vs. Union of India AIR 1999 SC 1502