Aditi Singh | Army Institute of Law, Mohali | 4th October 2020
Introduction
Over the years, the Indian Governments have had a prodigious pressure on them to maintain a steady balance between the country’s economic necessities and developmental strategies—which has proved to be an arduous task. In order to achieve this, a colossal mistake seemed to be the brushing off of environment related issues to a dusty backseat. This is specifically true for the early years of Independence where there was no precise environment protection legislation or policies as such. The period of 1970s witnessed massive changes from indifference towards the aforesaid difficulties to consequently, taking suitable steps to improve the conditions of the state of Environmental legislations in India by reshaping it to adapt with the growing requirements. The advancements in India’s approach only came after the growing International awareness. In 1972, the United Nations Conference on Human Environment was held in Stockholm which distinctly elucidated and conceptualized, “environment” and the factors deteriorating it, for the first time. Since then constant efforts have been made at a major scale, both internationally and in India, to integrate society, environment, development and law for the welfare of humankind.
Eventually, as a result of major issues highlighted by collected reports, a National Committee on Environmental Orchestrating and Coordination (NCEPC), an apex advisory body, was established in the Department of Science and Technology[1]. It was constituted to promote and coordinate environmental protection and policies; and as an advisory body for ministries regarding the same. However, in 1985, this department was upraised to form an exclusive Ministry of Environment and Forests[2].
Environmental Pollution
In the Declaration of the United Nations Conference on the Human Environment, it was observed that environment contains both natural and man-made aspects which are essential for the well-being and enjoyment of basic human rights[3]. Additionally, the Organisation for Economic Co-operation and Development (or OECD) has defined environment as a, “totality of all the external conditions affecting the life, development and survival of an organism.”[4]Basically, environment is the combination of biotic and abiotic factors existing together which is crucial for survival and, hence, needs to be preserved and protected. Herein, under the Environment (Protection) Act, 1986, the term environmentincludes, “water, air, and land and human beings, other living creatures, plants, micro-organisms and property.”[5]
Environment Pollution is one of the major aspects of environmental degradation since it involves the addition of particles, heat, substances (in any form), or such other things in a massive way and faster rate which has the ability to disrupt the ecological balance[6] and also, creates an imbalance in nature and the natural resources. Therefore, “environmental pollution” means the presence in the environment of any “environmental pollutant[7]” under the Environment (Protection) Act, 1986[8].
International Regulations
Since the Rio Declaration on Environment and Development (Earth Summit) held in 1992 wherein the concept of Sustainable Development was underlined, the streamlined efforts towards environmental cooperation and development have only become more innovative and modernized. Agenda 21 was thereby adopted in the aforesaid summit furthering the establishment of a Commission of Economic and Social Council of United Nations in 1993. Additionally, in 1997, the Kyoto Protocol as well necessitated change with urging the industrialized nations to lessen their “average yearly emissions of greenhouse gases” for protection from global warming.
With emphasis coming from international scenario and due to increasing awareness, rationalization of impact and the severity of pollution and environmental degradation, many countries of the world have taken this area with utmost seriousness[9].
Internationally, nations have taken stringent measures to curb pollution and provide proper means to protect environment like overhauling internal regulatory mechanisms for maintaining and controlling the environment[10] whereas most states have established specialized courts to meet the urgent requirement to provide environment justice. Establishment and organization of specific bodies and commissions focused solely on environmental research and development has also taken place. Herein, its pertinent to note that most states have take efficient steps to improve the current situation like: the United Kingdom has introduced number of legislations to take care of almost every aspect of civic life with the help of enforcement authorities whereas, in the USA, Environment Protection Agency has been established, consolidating federal research. There’s implementation of environment laws, issuance of sanctions and assistance is provided among other things. Furthermore, many states in the US have established their own specialized environment courts like Indianapolis, Memphis etc.
Besides the aforementioned there’s also enactment of specific laws, steps taken by the legislature and executive, and such others policies which help in furthering environment preservation.
Indian Laws Regarding Environment Protection
In recent years there has been immense focus on the Judiciary’s role in implementing, monitoring and devising pollution control along with the preservation of environment and public interest. However judicial intervention can only be preventive and not protective. Protection, prevention and promotion of environment are primarily the job of the legislature and executive organs of the State.
The legislature has enacted several necessary environmental provisions and the remedies and general provisions are available through:
Constitutional Provisions
India has enough Constitutional provisions which tackle enviro-crimes in the country, and so the judiciary has extended the sphere of environmental jurisdiction through its land mark judgements[11] however it doesn’t explicitly conceptualise the inter-relationship between environment and development. In India, the concern for environment protection has not only been raised to the status of fundamental law of the land, but it is also wedded with the human rights approach. The Apex Court has held that essential features of “sustainable development”, “polluter pays principle” and the “precautionary principle” are part of the environmental law of the country[12].
Under Constitutional provisions, three main distinctions which can be drawn are: fundamental duties, directive principle of state policy (DPSP) and fundamental rights.
Article 51-A (g) specifically deals with fundamental duties with respect to environment for protecting and improving the “natural environment”. On the other hand, DPSP’s describing the states duties under Art. 47 provides for the State to raise the levels of nutrition and standard of living of its people and public health as a primary duty. Furthermore, Art. 48-A provides for, “endeavours to protect and improve the environment and to safeguard the forests and wildlife of the country”.
Fundamental rights majorly focus on the right to life, right to livelihood under Art 21 which mandates the providing of adequate means of survival to people. It also might include the freedom to carry on trade or business under Art 19(1)(g) with “reasonable restrictions in the interest of the general public” subject to Art 19(6) to prevent hazards of any trade or business and; right to equality under Art 14. There’s also the availability of remedies through writ jurisdiction. The right to enforce fundamental rights under Art 32 in the Supreme Court is available.
Common Law Provisions
The Common Law remedies against environmental pollution are available under the law of torts. The Apex Court in the case of, M.C. Mehta v. Union of India[13], observed that, “environment pollution amounts to civil wrong against the whole community…in addition to damages the person guilty can be held liable to pay exemplary damages so that it can act as a deterrent for others”. The tortuous liabilities are of the following forms:
Nuisance
Nuisance can be further divided into “Private” and “Public” Nuisance. Private nuisance can be categorized as just unreasonableness interference by dust emissions, noise, smell, fumes etc., however, public nuisance is interference to the general right of the public and is to be focused on more since it’s both a tort as well as a crime. It is harmful to the general public interest in the form of environmental pollution. For instance, industrial effluents being expelled in a residential area would amount to public nuisance; it would not only expose unwilling people to disastrous levels of pollutants but also gravely affect the ecology.
Trespass
Trespass is the direct interference in someone proprietary rights like the discharge of factory effluents onto someone’s land.
Negligence
In environmental cases, the tort of negligence is utilized when other torts or nuisance and trespass aren’t available[14]. Under negligence it has to be proved that due care hasn’t been taken by the alleged party which has eventually resulted in some form of harm.
Strict and Absolute Liability
The rule of strict and absolute liability are very similar except for the fact that strict liability has certain exceptions to it to avoid the said charge, however liability is absolute in the latter, and can’t be escaped. The principle of strict liability was laid down in Rylands v. Fletcher[15], wherein it was held that knowledge, default and act aren’t relevant wherein a dangerous substance is present on their property and it escapes. It has been disapproved in M.C. Mehta v. Union of India[16] and observed the “polluter pays principle” as a more relevant principle which necessitated the payment of exemplary damages for harming the environment as a way to hold the polluter responsible to better the harm caused by them and not the government or the people.
Furthermore, absolute liability was evolved in the (Oleum Gas Leak Case) or M.C. Mehta v. Union of India[17], as a means to hold the industries compulsorily accountable for harming the public and environment.
Criminal Law Provisions
The Indian Penal Code, 1860 (hereinafter, ‘the IPC’) makes various acts affecting environment as offences. Sections 268 – 294A (Chapter XIV) deal with offences affecting the “public health, safety, convenience, decency and morals”. Under these sections, acts are punishable which make environment polluted or threaten the life of people.
S. 268 of the IPC defines public nuisance and further on, S. 290 provides for punishment for the same in cases not otherwise provided for. Moreover, sections like S. 269 provides for negligent acts likely to spread dangerous infection like if the pollution is caused by an act which spreads the infection of disease dangerous to life. The IPC basically can be used to prevent pollution of atmosphere noxious to health of person in general. Furthermore, sections 426, 430, 431 and 432 of the IPC provides for general pollution caused by mischief.
Similarly the provisions of the Criminal Procedure Code, 1973 (hereinafter, ‘the CrPC’) can be invoked as well to prevent pollution. Sections 133 to 143 and; Section 144 (under chapter X, part A and B respectively) provide most effective and speedy remedy for preventing and controlling public nuisance causing air, water and noise pollution.
The object and purpose behind S. 133 is essentially to prevent public nuisance and it involves a sense of urgency. For instance, it can be called in aid to remove public nuisance caused by discharge of effluents and air discharge causing hardship to the public. Conclusively, S. 133 confers upon the Magistracy speedy and summary power to give directions for abatement of a public nuisance. Additionally, under S. 133, the district magistrate, if so empowered by the State or Government, on such information can make a conditional order to remove the public nuisance causing pollution. If the order is failed to be carried the person may be prosecuted under S. 188 of the IPC; even the head of the government department or public body can be prosecuted for defying the order. Also in order to provide a sanction under the said section the magistrate must be satisfied of some specific conditions.
S. 144 of the Cr.P.C. is more of a general provision meanwhile S. 133 is more specific, while the order under the latter is conditional, in the former its absolute.
Herein it is noteworthy that using criminal law machinery is not a bar even as person the Environment (Protection) Act, 1986. Like it was held in Lakshmi Cement v. State[18], S. 133 doesn’t automatically get repealed after commencement of the Air (Prevention and Control of Pollution) Act, 1981. So proceedings under the said section aren’t barred.
The Supreme Court in the case of State of M.P. v. Kedia Leather & Liquor Ltd.[19], while observing the relevance of Cr.P.C. hereinafter with the enactment of Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974 held that, “the are of operation in the provisions of Cr.P.C. and the above mentioned pollution laws is different with wholly different aims and objectives…the provisions of S. 133 of Cr.P.C. are in the nature of preventive measures, the provisions contained in the two Acts are not only curative but also preventive and penal”.
Penal sanctions are also available under the relevant Municipal Act and certain provisions under the Factories Act, 1948 like Section 96-A mentions penalty for contravention of provisions under sections 41-B, 41-C and 41-H defining a punishment of a term extending to ten years[20].
The Apex Court has observed that although, both the IPC and the Cr.P.C., “are of ancient vintage, the new social justice orientation imparted to them by the Constitution of India makes them a remedial weapon of versatile use” for the protection of the environment[21].
Civil Law Provisions
The statutory provision also involves the Civil Procedure Code (hereinafter, ‘the CPC’) with Public Nuisance. Section 91 of the CPC provides the right of action in case of public nuisance. Herein, the person under this section, polluting the atmosphere is liable to pay Rs. 200/- which is rather meagre; therefore there are several other provisions available to effectively preserve the environment. In addition to this several states have their own laws regulating pollution[22]. The Indian Forest Act, 1927; The Motor Vehicles Act, 1939; Northern India Canal & Drainage Act, 1873; and several other such acts have been enacted to help efficiently with the situation at hand.
Conclusion
According to the data amassment and environment amassment studies of World Bank experts, between 1995 through 2010, India has made one of the most expeditious progress in the world, in addressing its environmental issues and amending its environmental quality. All contemporary legal systems of the world recognize that law plays a vital role in translating a “policy” into “practice”[23]. Ultimately, use of criminal machinery for the protection of the environment has the capability of solving environmental problems speedily and economically and a revolutionary change can be brought not only to safeguard the environment but also safeguard the lives of the public at large[24]. Additionally devices such as Public Interest Litigation (PIL) have been prominently relied upon to tackle environmental problems and this approach has its supporters as well as critics since, generally environment law provides for a system of regulation by statutes, however, in India most of the environmental jurisprudence has been developed thorough writ jurisdiction. Regardless there are still several measures which can be taken to improve the condition in India; a step in the right direction might be to establish specific environmental courts to deal with cases in an efficient manner and to implement internationally well-acknowledged principles like sustainable development in a better way.
[1] Pushpendra Kumar Mishra, The Impact of Environmental Pollution in India and Role of Judiciary to Protect Environment, 24 ALJ 300, 300 (2016-17).
[2] L. Pushpa Kumar, Environmental Law in India – Part II, C.P.R. Environmental Education Centre (Aug. 15, 2013), http://cpreec.org/152.htm.
[3] The United Nations Conference on Human Environment, Stockholm (5 to 16, June 1972)
[4] Environment, OECD (July 5, 2005), https://stats.oecd.org/glossary/detail.asp?ID=813.
[5] The Environment (Protection) Act, No. 29 of 1986, § 2(a).
[6] Jerry A. Nathanson, Pollution, Encyclopaedia Britannica (Aug. 6, 2020, 12:00 AM), https://www.britannica.com/science/pollution-environment.
[7] “environmental pollutant means any solid liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment;” The Environment (Protection) Act, No. 29 of 1986, § 2(b).
[8] The Environment (Protection) Act, No. 29 of 1986, § 2(c).
[9] Anupama Goel & Shalini Marwaha, Environment Protection and Conservation: Real and requisite visage of remedial actions at national and international level, 18 ALJ 139, 141-142 (2007-08).
[10] Ibid.
[11] Fasih Raghib Gauhar & Mirza Juned Beg, Judicial Activism to Judicial Adventurism for the Protection of Environment: An analysis in the context of Expansive Meaning of Article 21 of Indian Constitution, 24 ALJ 225, 225 (2016-17).
[12] Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647.
[13] (2000) 6 SCC 213.
[14] Dr. P.S. Jaswal et al., Environmental Law 25-26 (4 ed. 2018).
[15] (1869) (19) LT 220.
[16] AIR 1987 SC 965.
[17] AIR 1987 SC 1086.
[18] 1994 Cri LJ 3649 (Raj).
[19] (2003) 7 SCC 389.
[20] The Factories Act, 1948 § 96-A (2).
[21] Ratlam Municipality v. Vardhichand, AIR 1980 SC 1622.
[22] Supra, note 13, at 37.
[23] K.I. Vibhute, Environment, Development and Law: Indian Perspective, 37 JILI 182, 184 (1995).
[24] K. Rama Joga Rao, Use of Criminal Law Machinery for Environment Protection, 7 SCC J-57, J-62 – 63 (2001).
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