Development of Environmental Laws: Indian Perspective

Nature is the common heritage of mankind. To preserve this nature i.e. environment mankind must make constant efforts. When voluntary action of lawmakers fails, a necessary action must take over. By this process, environmental law came into force. Environmental pollution is existing from the time when the evolution of homo sapiens on the planet took place. Nowadays development in different industries has brought an immediate rise in environmental pollution. These did upset the nature-laws, thereby shaking the balance between human life and the environment with other innumerable problems which affected the environment. The discussion got in the minds of countries through the Stockholm Declaration while discussing the serious problem of environmental pollution.

Over the last century, due to the economic transformation of the world, renewable and non-renewable resources are decreasing at an increasing rate. This has resulted in irreversible environmental exploitation and caused serious adverse effects on the lifestyles of human beings, plants, animals and other living organisms. An over-whelmed developmental plan possesses serious threats to human beings and the natural environment. Every developmental plan and programme, which is based on human needs and comforts, poses some threat to the environment and takes it on the verge of extinction.

 Major International Conventions

The customary international law provides no specific rules for environmental conservation and protection. Therefore, in addition to the general beliefs of state responsibility, the most important international treaty obligation is to regulate the roles and duties of State. The Trial Smelter case[1] is a landmark case in this regard. In the context of the international framework of law, the Trail Smelter Arbitration between the United States of America and Canada acknowledged that no State has the right to use or permit the use of its territory in order to cause smoke injury in the territory of another country where conclusive proof of serious injury has been done.

  • Stockholm Conference 1972

The UN Conference on Human Environment and Development held at Stockholm is famous for its name known as Magna Carta of environmental protection and sustainable development. This was the first time when all the countries of the world got together to discuss an important issue of environmental preservation and sustainable development. The conference resulted in the ‘Stockholm Declaration On thè Human Environment’.

Besides the preamble, the Declaration consists of seven universal truths and twenty-six principles. It proclaimed that man is both the founder and the maker of his ecosystem, which gives him physical comfort and gives him an opportunity for intellectual, moral, mental and spiritual growth. Both facets of man’s climate, natural and man-made, are important for his well-being and for the fulfilment of basic human rights and the right to life itself.

The basic principles laid down in that conference included, (i) man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permitted life of dignity and well being; and (ii) man bears a solemn responsibility to protect and improve the environment for present and future generations.[2]

  • Basel Convention 1989

To check the dumping of hazardous and toxic wastes and resultant damage to the environment, the United Nations General Assembly at its 43rd session urged all member states to take legal and technical measures to halt and stop the international traffic in dumping and resultant accumulation of toxic and dangerous products and wastes. Consequently, an expert group was set up by the United Nations Environment Programme (UNEP) to prepare a global convention in this area keeping the aforesaid resolution of the assembly in mind.

The drafting process of the Global Treaty to control trade movement of hazardous wastes and their disposal began in 1987. All export-import movements of hazardous wastes have to be covered by insurance, bond or another guarantee. Thus, the Basel Convention provides for timely notification, information, exchange and consultation between state parties in relation to hazardous waste.

  • Earth Summit 1992

The United Nations Conference on Environment and Development (UNCED), popularly known as Earth Summit,[3] was the most important and largest UN conference ever held and put the world on the path of sustainable development which aims at meeting the needs of the present, without limiting the ability of future generations to meet their own needs. The Earth Summit forced the people worldwide to rethink how their lives affect the natural environment and their resources. Some major achievements of Earth Summit are reproduced in the following documents:

(i) The Rio Declaration of Environment and Development which consists a series of principles defining the right and liabilities of states regarding protection of the environment; (ii) Agenda 21 is a comprehensive blueprint for global actions to affect the transition to sustainable development; (iii) a set of principles to support the sustainable management of forests worldwide; (iv) the legally binding conventions, i.e., the Convention on Climate Change and Convention on Bio-diversity which are aimed at preventing global climate change and eradication of biologically diverse species.

The Rio Declaration,[4] in principle 13 calls upon the states to develop national laws regarding liability and compensation for victims of pollution and other environmental damages. This Declaration is of utmost importance to India. National Environment Tribunal Act is the direct outcome of this Convention. The ‘Precautionary Principle’ is incorporated in principle 15 according to which there are threats of serious and consistent damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to stop environmental degradation.

Principle 16 of the Declaration reiterates the proposition that polluter must pay, known as ‘Polluter Pays Principle’. It also envisaged the ‘Environmental Impact Assessment’ as a national instrument in matters which adversely affect the environment.[5] It paves the way for legislation affecting mass disaster with emphasis on the right to know. These principles have found judicial recognition in landmark decisions of the Supreme Court of India.[6]

Indian Constitutional Mandate

Environmental legislation has a special position in the Constitution of India. Even before the 42nd amendment, Article 21 of the Constitution enforced the protection and maintenance of the environment. Article 21 reads as follows: ‘No citizen shall be deprived of his life or personal liberty except in compliance with the process laid down in the constitution.’ It ensures to every person the fundamental right to life and personal liberty.[7]  Justice P.N. Bhagwati in Francis Coralie v. Union Territory of Delhi,[8]followed:

We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing, shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with a fellow human being.

In Subhash Kumar v. State of Bihar,[9] the court stated:

Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.

Furthermore, Maneka Gandhi[10] the case has added dimension to this concept. A law affecting the life and liberty of a person has to stand the scrutiny of articles 14 and 19 of the Constitution and the procedure laid down must be reasonable, fair and just. This case has broadened the scope of the right to life and therefore it included many things which are essential for survival, for example, clean air, water and a healthy environment.

In Oleum gas leak[11] case, the Supreme Court once again impliedly treated the right to live in pollution free environment as part of the fundamental right to life under article 21 of the Constitution. The directive principles of state policy also provide for the prevention of health hazards. Article 47 of the Constitution declares that the state must prohibit hazardous activities and directs the state to remove unsanitary conditions. Writs have been admitted by the Supreme Court directly where pollution affected the public at large, e.g., pollution of the river Ganga,[12] ecological imbalance,[13] etc. The improvement of public health will also include the protection of the environment without which public health and livelihood cannot be assured. The Supreme Court has also affirmed this right in various decisions.[14] Similarly, the high courts may find it a paramount principle as the primary duty of governance.[15]

Conclusion

Several regulatory steps and actions have recently been taken in India to conserve and develop the environment. In addition to the constitutional provisions, a survey of Indian legislation shows that there are numerous environmental laws passed by both the central and the state legislatures. Yet this variety of environmental legislations has not been able to regulate environmental pollution and economic imbalances.

In the absence of clear and detailed environmental law policy, the courts of India have played a crucial role and the judicial interpretation of the law has helped to create environmental jurisprudence which attempts to strike a balance between environmental protection and enhancement. However, pollution control measures need to be complemented by effective administrative restrictions. The Environment Protection Act is one such legislative initiative to make the legislation stronger before moving land for construction purposes which requires several assessments which surveys that may forecast environmental impacts.

India has a significant environmental legislation framework. Its legislative contribution to the objectives of environmental policy is illustrated by a continuous amendment to the Constitution. Some rulings of the Indian courts have provided for the protection of environmental protections, which is more stringent than in other nations, such as the acceptance of the right to the environment as an intrinsic part of the right to life under Article 21 of the Constitution.

Although issues remain to be addressed concerning the suitability of the factual availability of legislation and the coordination between existing legislation and regulations, the main legal issue to be considered at this time is the strengthening and implementation of existing legislation. One such example is the efficient utilization of current resources. One such example is the efficient utilization of current resources. Especially within resources, the land is one field where stringent control is required to ensure effective land use management. The independent solution to related problems can not be a valid replacement for growth. Regulatory measures under the Environmental Protection Act still need to be reinforced.


[1] United States v. Canada, 39 Am J Inť I Law 684 (1941).

[2] The Stockholm Declaration of the United Nation Conference on the Human Environment was adopted on June   16, 1992. See, Report of the United Nations Conference on the Human Environment, Stockholm (1972).

[3] Held from June 3-14, 1992 at Rio de Janeiro were more than 170 countries participated.

[4] Rio Declaration on Environment & Development 1992, 31 ILM 874-80 (1992).

[5] Id., principle.

[6] Indian Council for Enviro-legal etc. v. Union of India and others, AIR 1996 SC 1466 and Vellore Citizens’ Welfare Forum v. Union of India and Others, AIR 1996 SC 2715.

[7] Maneka Gandhi v. Union of India, AIR 1978 SC.

[8] AIR 1981 SC 746.

[9] AIR 1991 SC 420.

[10] Supra Note 8.

[11] M.C. Mehta v. Union of India, AIR 1987 SC 1086. See also, AIR 1987 SC 965.

[12] M.C. Mehta v. Union of India, AIR 1988 SC 1115.

[13] Rural Litigation and Entitlement Kendra, Dehradun v. the State of UP., AIR 1988 SC 2187.

[14] Consumer Education and Research Centre v. Union of India, AIR 1995 SC 922.

[15] K.C. Malhotra v. State of M.P., AIR 1994 MP 48.

Aum Purohit from Institute of Law, Nirma University

“Aum is passionate legal guy who is always ready to work hard when it comes to legal world.”

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