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Development of environmental law in India post Stockholm Declaration

April 3, 2021

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This article is written by Aditya Agrawal, from Amity Law School, Amity University, Madhya Pradesh.

Table of Contents

Introduction

Environmental Law could be defined as the legal mechanism including the principles, directives, policies and regulations, brought into existence by various local, national or international entities for the purpose of preserving and safeguarding the environment so that it could be made suitable for the present as well as the future generation.^[1]

As per the Black’s Law Dictionary, environmental law could be defined as, “collective body of rules and regulations, orders and statutes, constraints and allowances that are all concerned with the maintenance and protection of the natural environment of a country”.^[2]

As per the definition of the Free Legal Dictionary, “environmental Law is, “an amalgam of state and federal statutes, regulations, and common-law principles covering Air Pollution, Water Pollution, hazardous waste, the wilderness, and endangered wildlife”.^[3]

What is environment?

The term “environ” is derived from the French term ‘environner’ which means “to surround”. Environment refers to all the surroundings in which a human lives. These surroundings include all the natural and manmade environment. Natural environment means air, water, lakes, trees, mountains, etc. While, manmade environment refers to the surroundings created by man such as buildings, roads, parks, bridges, monuments, gardens, etc.

According to Section 2(a) of Environment Protection Act, 1986, “environment includes Water, Air & Land and the inter-relationship which exists among and between Water, Air and Land & Human Beings, other Living Creatures, Plants, Micro Organisms & Property”.^[4]

Environmental Pollution

The word ‘pollution’ is derived from Latin word “Polluere”, which means to contaminate any feature of the environment. Pollution of the environment is there when there is a mixture of any substance in the environment which degrades its quality and makes it not fit for humans to live. Various types of environmental pollution could be air pollution, water pollution, noise pollution, etc.

According to Section 2(c) of the Environment (Protection) Act, 1986,“environmental pollution means the presence in the environment of any environmental pollutant”.^[5]

Need for protection of the environment

Environment and life are interrelated. Quality of environment defines the life a human is living. This is the reason why the Supreme Court of India in numerous cases held that the right to live in a pollution free environment, including right to fresh water and quality air is a fundamental right and is a part of right to life enshrined under Article 21 of the Constitution of India.

Development of Environmental Law

When we talk about the development of modern international environmental law, we need to trace the international legal developments in the second half of the nineteenth century.

Stages of development of International Environmental Law post nineteenth century^[6]

Traditional Era (1900-1945)

This period is considered to be the pre-stockholm era, it started with the bilateral fisheries treaties in the nineteenth century and ended up with creating new international organizations in 1945. This was the period where people started realizing that a balance is required to be maintained between development activities and the resulting impact of such activities on the environment so that the environment could be preserved and safeguarded.

Modern Era- From creation of the UN to the Stockholm Declaration (1945-1972)

This period commenced with the creation of the UN and the United Nations Conference on the Human Environment, held in June 1972 in Stockholm. Various international organizations were created during this period. Development at both national and international level took place resulting in much awareness and bold steps being taken worldwide with highlighting various sources of pollution like oil pollution, wetlands, nuclear testing, pollution of marine environment, etc.

Treaty developments, developments in dispute settlement, developments in national law, international environmental law as a discipline were the major changes observed during this period.^[7]

Post-Modern Era- from Stockholm to Rio (1972-1992)

The period after Stockholm saw the changes at National levels as green political parties were introduced, creation of environmental ministries took place, environmental development at local levels started taking place. Brundtland Commission was formed by the UN in the year 1983 which targeted the relationship between development and environment. Concept of sustainable development was coined during this period. Montreal Protocol was signed in 1987 to combat depletion of the ozone layer. International cooperation was secured by it and beliefs of recovery of the ozone layer by 2050 started surfacing.

United Nations Conference on Environment and Development (1992)

The conference is also known as the Earth summit held in Rio de Janeiro, Brazil from 2rd June to 14^th June 1992. It was held on the occasion of the 20th anniversary of the Stockholm conference. It aimed at producing a broad agenda and a roadmap for international action on the development of the environment and issues that could guide international cooperation. It concluded that sustainable development is a goal to be achieved all over the world and also asked for integrating and balancing social, economic and environmental concerns. Major outcome of this conference was Agenda 21, which called for new strategies to be adopted to achieve the goal of sustainable development in the 21^st century.^[8]

Fourth period (period of Litigation)

This period was set forth by the United Nations Conference on Environment and Development and is considered as a period of litigation where compliance with international environmental obligations was focused.

Stockholm Declaration of 1972

It was the output of the first global environmental conference namely, the United Nations Conference on the Human Environment, held between 5th to 16th June, 1972. It is considered to be the first major highlight on the impact of humans around the globe on the environment. It attempted to address the challenge of preserving and enhancing the human environment. Broad policy goals and objectives were espoused by it. It resulted in spreading awareness of environmental issues all around the world in a dramatic manner and also had a great impact on improving the international environment law making.^[9]

The Declaration of Stockholm contains a preamble which gives an introduction to the 26 principles contained in the Declaration. These 26 principles give a very clear message and cover all the areas which are required to be focused and worked upon to ensure that the environment could be protected and restored in such a manner, which is suited to a human to live and not only covers matters for environmental protection. It also aims at covering the matters like availability of essential commodities and equal distribution, etc. which are though not directly related to the environment, but are subjects to ensure that humans get to live a human life and do not face any sort of inhuman treatment.

Development of Environmental Law in India

The development of Environmental Law is also even divided into two periods:^[10]

Pre 1972 Development

During this period, tort laws, criminal law, laws regarding water, forest laws, special laws, etc. were there to deal with the subject of protection of the environment. We can say that there was not much development in the Indian Environmental Law during this period.

Post 1972 Development

It was the post Stockholm period and witnessed the development in the area of International Environmental Law at a very great level. Stockholm Conference resulted in highlighting the environmental protection concerns for the whole world, so is for the country of India.

Development of Environmental Law in India post Stockholm Declaration

The UN Conference on Human Environment and Development held at Stockholm was the one which gave birth to the Stockholm Declaration on the Human Environment of 1972. This Stockholm Declaration is considered to be the magna carta of Environmental law and it got the significance parallel to that of the Universal Declaration on Human Rights of 1948.^[11]

The conference of Stockholm was attended by the then Prime Minister of India, Mrs. Indira Gandhi and she got inspired a lot by the discussions held, issues raised and development took place during that conference. The results could be reflected in the quick developments that took place immediately after the Stockholm Conference.^[12]

42^nd Amendment to the Constitution of India^[13]

The 42^nd Amendment to the Constitution, which was introduced after the Stockholm Conference of 1972, brought major changes to the Constitution of India and for that, it is considered to be the mini constitution. This Amendment brought changes on the various subjects but when we talk about the changes with respect to the Environmental law, it introduced responsibility on part of both, state and citizens to protect and improve the environment.

By introducing Article 48-A^[14] in the Constitution of India as part of the Directive Principle of State Policy, it imposed a duty on the state, “to protect and improve the environment and to safeguard the forests and wildlife of the country”.

By introducing Article 51-A^[15], it imposed a total of 10 fundamental duties on the citizens. These duties were imposed on the citizens because they are vested with the various fundamental rights as part of the citizens of this country and as rights and duties, both are correlative, fundamental duties were imposed on the citizens to serve as a constant reminder to them that the Constitution conferred them certain fundamental rights, it also requires certain duties on their part to be fulfilled as being ideal citizens.

As a result, Article 51-A (g)^[16] conferred the fundamental duty on the citizens, “to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures”.

Article 47 of the Constitution of India^[17] also assigns a duty on the State to raise the level of nutrition and standard of living of its people and improve the health of the public. States should also make efforts to prohibit all intoxicating substances except for the purpose of consumption.^[18] The provisions of this Article basically enjoins the responsibility on part of the state to take all those measures necessary to secure the health of the people.

Article 21 of the Constitution of India provides Fundamental Right to live in a pollution free environment and access to fresh water and quality air.

Although the right to life and personal liberty was there from the very beginning but various facets of right to life got developed with the passage of time and the observations made by the Courts time to time.

It was after the period of 1980s only that the Supreme Court of India gave decisions in various cases pertaining to the protection of an individual’s right to live in a pollution free environment and for that various observations were made, rulings were given and restrictions were imposed only to ensure that an individual could have a pollution free environment to live, which he deserves being a human.

Case laws

Rural Litigation and Entitlement Kendra v. State of U.P., 1985 AIR 652^[19]

The Supreme Court in this case ordered the closure of some limestone quarries because a lot of serious deficiencies were found in them regarding safety and hazards. The pollution caused by the quarries was affecting the health of the people nearby at a large level which necessitated it on part of the Supreme Court to give such ruling.

Indian Council for Enviro-Legal Action v. Union of India, 1996 AIR 1446^[20]

In this case, an environmentalist organization filed a writ petition on behalf of the people living in the vicinity where chemical industrial plants were established and requested for appropriate actions to be taken keeping in mind the deterioration in people’s health. The argument was made that the Supreme Court cannot act on it as the concerned industry is a private entity and not a state under Article 12 of the Constitution of India and accordingly, no remedy could be enforced against a private individual.

The Supreme Court held that the court is required to intervene if the government or authorities have not taken appropriate actions to ensure pollution free environment for the citizens to live and the Supreme Court can act in such matter where the fundamental rights of people are getting violated irrespective of the fact whether the violation is done by the State or private entity.

Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647^[21]

The petition was filed by the Vellore Citizens Welfare Forum by way of PIL to draw the attention of the Supreme Court towards the pollution caused by the large amount of discharge of untreated effluent by the tanneries and other industries in the State of Tamil Nadu which is severely causing the pollution in the area.

The Supreme Court held that it is required on part of such industries to primarily install the requisite measures to control and curb the pollution. These industries, even after their being of major importance could not be allowed to function on the cost of causing pollution, degrading the environment, destroying the ecology and posing the health hazard for the people living in the vicinity.

Developments made by M.C. Mehta through various Environmental Protection Litigations

M.C. Mehta played a very major role in the history of Indian Environmental Law. He was an Environmental attorney and filed various PILs in the Supreme Court of India to expose a number of cases where violation of environmental protection norms and loss and degradation to environment was taking place.

M.C. Mehta v. Union of India, (1986) 2 SCC 176^[22]

In this case, there was a leakage in the plant of Chlorine gas which caused the death of a person and also caused serious problems to the people living in the vicinity, eventually the plant got closed.

The Supreme Court directed the company engaged in the manufacturing of hazardous and lethal chemicals to take necessary steps in order to ensure safety to the life of the people and workmen living in the neighbourhood and then only open the plant to function again.

M.C. Mehta v. Union of India, (1987) 4 SCC 463^[23]

In this case, the Supreme Court ordered the tanneries in Jajmau near Kanpur to shut down the operation as they were causing pollution to the river Ganga. The provisions contained under the Water pollution Act and Environmental Protection Act were also not followed by the Industry.

M.C. Mehta v. Union of India, (1988) 1 SCC 471^[24]

The petitioner, though not interested in the subject matter where the river Ganga was getting polluted, approached the Supreme Court to get the appropriate directions issued for that subject matter.

The Supreme Court held that the person, though not getting affected by the pollution, could still approach the Supreme Court for the issuance of the directions and he got the locus standi for that matter as he was interested in securing the life of the people who are actually getting affected by the pollution to the river.

M.C. Mehta v. Union of India, (1996) 4 SCC 750^[25]

The Supreme Court in this case ordered a total of 168 hazardous industries operating in Delhi to shift their operation as they were causing severe damage to the ecology and directed that they be relocated lands to the National Capital Region as provided in the Master Plan for Delhi.

Apart from this, M.C. Mehta was involved in various other landmark issues where his contribution helped in highlighting various environmental issues and appropriate actions were taken in those subject matters.

Major enactments for the protection of Environment in India

WILDLIFE (PROTECTION) ACT, 1972^[26]

It came into force on 9^th September, 1972 and it is an act containing the provisions for the protection of wild animals, birds and plants.

WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974^[27]

It came into force on 23^rd March, 1974. The provisions of the Act differ from State to State as it is a law on State subject. The Act contains the provisions for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water. It also provides for the establishment of Boards for the prevention and control of water pollution and their powers and duties.

FOREST (CONSERVATION) ACT, 1980^[28]

It came into force on 25^th October, 1980. This Act contains provisions for the conservation of the forests.

AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981^[29]

It came into force on 29th March, 1981. The Act contains provisions for the prevention, control and abatement of air pollution. It also provides for the establishment of Boards and also defines their powers and functions.

ENVIRONMENT (PROTECTION) ACT, 1986^[30]

It came into force on 23rd May, 1986. This Act contains the provisions for the protection and improvement of the environment.

PUBLIC LIABILITY INSURANCE ACT, 1991^[31]

It contains provisions of public liability insurance for the purpose of providing immediate relief to the persons affected by accident occurring while handling any hazardous substance.

BIOLOGICAL DIVERSITY ACT, 2002^[32]

This Act came into force on 5^th February, 2002 and it contains provisions for the conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources.

NATIONAL GREEN TRIBUNAL ACT, 2010^[33]

It came into force on 2^nd June, 2010. This Act contains provisions for the establishment of a National Green Tribunal for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to the environment and giving relief and compensation for damages to persons and property.

Conclusion

This is how development of International, as well as Indian Environmental Law, took place with the passage of time and a major role was played by the conference of Stockholm only for both International as well as Indian Environmental Law. The Stockholm conference, which gave birth to the Stockholm declaration proved to be an igniting point for generating awareness all over the world for environmental concerns. This is the reason that history of Indian Environmental Law is also divided into two parts, i.e., pre-Stockholm period and post-Stockholm period as the major developments could be observed in the post-Stockholm period only. Recognition of right to pollution free environment as part of fundamental right under Article 21 of the constitution, various rulings and observations of the Supreme Court in various matters pertaining to the environmental pollution and degradation and introduction of various enactments for the protection of various subjects of environment are abundantly doing the needful.