Criminal laws for Environment

This article is written by J Jerusha Melanie, a student of SRM School of Law, Tamil Nadu. This article seeks to exhaustively explain the meaning, importance, principles, and components of environmental legislation. It also provides a brief account of various Indian and international environmental legislations. 

It has been published by Rachit Garg.

Introduction

The environment consists of the air we breathe, the plants and animals around us, the land on which we stand, the water that quenches the earth’s needs, and much more. It is everything that surrounds us. Hence, it probably isn’t wrong to say that we humans are nothing without a protected environment. However, as we know, pollution in recent times is taking a toll on the environment. As we look around, the failure to protect the environment is evidently retaliating against us in the form of deadly diseases and unfavourable living conditions. To prevent the environment from falling apart further, the government takes measures in the form of environmental legislation. Let’s get to know all about it. 

What is Environmental Legislation 

Environment legislation is the collection of laws promulgated to specifically govern various aspects of the environment like air, water, forest, wildlife, etc. 

The French L’ordonnance des Eaux et Forets or the Ordonnance et Forest passed during King Lous XIV’s reign under the direction of Jean-Baptiste Colbert in 1669 is one of the earliest known environmental legislations. The King passed it as a preventative measure against widespread exploitation of French forests, which was feared to impact warship construction. 

Environmental legislation may be either national or international. National environmental legislations are in the form of Acts, Rules, Regulations, etc. In the international arena, it is concise in Conventions, Treaties, Protocols, etc. 

Components of Environmental Legislation

The component-specific promulgation of laws is important to identify and tackle specific issues to the environment. Unspecific laws are vague, hence raising confusion and letting environmental offenders escape through legislative loopholes. There are various components based on which any environmental legislation is framed; the components are as follows: 

  1. Food management

Food is one of the necessities of living. In the absence of a legally regulated system, the production and management of food may go haywire. Mismanagement of food may result in catastrophic effects on the food sustainability in the country. Food-related environmental legislation (often called “food laws”), regulates the harvest, storage, trade, and distribution of food. Such legislation is also required to establish minimum safety standards relating to varied aspects of food management. 

The Food Safety and Standards Act, 2006 (FSSA) is the key food-management law in India, laying down various scientific standards for food articles regarding its production, storage, distribution, sale, etc. It established the Food Safety and Standards Authority of India (FSSAI), an autonomous statutory body function under the Ministry of Health & Family Welfare, Government of India. The FSSAI strives to implement the FSSA in the best possible manner. 

  1. Waste management

Waste management is the process by which the waste generated by various sources like households and industries is managed, from its genesis to removal from the environment. It involves garbage collection, segregation, transportation, storage, and processing. Based on the ability to naturally break down, waste is classified as biodegradable and non-biodegradable. Unattended non-biodegradable wastes remain in the ecosystem for a prolonged period, causing serious damage to the environment. So, it is pertinent that the government come up with robust waste management laws to systemise waste generation and disposal. 

Most waste management legislation supports the ‘3 R’s’ concept representing “Reduce, Reuse, Recycle”. Various other legislation also aims to create waste management awareness among citizens.  

In India, waste management is governed by the Ministry of Environment, Forest and Climate Change. The major waste management legislation in India includes the Hazardous Wastes (Management, Handling, and Transboundary Movement) Rules, 2008, E-Waste (Management and Handling) Rules, 2011, and Plastic Waste (Management & Handling) Rules, 2011, among others.

  1. Water reserve

Water, the elixir of life, is as important for non-consumption purposes like irrigation as it is for internal consumption. Though it is a renewable resource, the rising climate change phenomena have disturbed the desired pattern and amount of rainfall. So, the water reservation and distribution is one of the key areas addressed by environmental legislation, to ensure it is available to satisfy the present and future needs of every citizen. Facilitating the availability of adequate contamination-free potable water is also crucial in preventing the spread of water-borne diseases. Establishing a proper water drainage system is another aspect dealt with by water-related legislation. The Water (Prevention and Control of Pollution) Act, 1974 is one of the prime water-related legislation in India. 

  1. Pollution control

The rise of pollution in recent times has pushed governments to rapidly promulgate effective national pollution control legislation. Generally, such legislation focuses on aspects like effluents or emission control, the use of environment-friendly materials, etc. 

  1. Mining

Mining affects both the present and the future generations since underground-occurring minerals and coal are non-renewable resources. So, stringent mining-related environmental legislation is required to not just achieve sustainable development but also control pollution. The key mining legislation in India is the Mines and Minerals (Development and Regulations) Act, 1975.   

  1. Flora and fauna

Environmental legislation governing the flora and fauna has economic, cultural, recreational, and ethical importance. Nevertheless, its significance to the ecosystem supersedes everything else. Robust wildlife and forest protection legislation aims to safeguard the natural habitat of the wildlife by maintaining the forest cover, creating protected areas, and restricting unwarranted human activities within it. The Wildlife Protection Act, 1972 and Forest (Conservation) Act, 1981 are two of the prime environmental legislation for wildlife and forest in India. 

new legal draft

Need and importance of Environmental Legislation

The basic reason why we need environmental legislation is that our reckless activities are inversely affecting the environment we live in. Looking around, it is no secret that pollution is on a high rise. The more we are industrially developing the more we are hurting the environment. The hurt environment is in turn harming us, humans. 

Look at the following statistics. The per capita carbon dioxide emission in India has mounted from 0.39 metric tons in 1970 to 1.87 metric tons in 2019. Methane emissions in India have increased almost 30% since the 1990s; similarly, nitrous oxide emissions have grown by more than 40% since 2000. At the same time, the number of deaths attributable to air pollution in India has risen from 1.33 million in 1990 to 1.66 million in 2019. That’s just a tiny instance of the impact of our environment-degrading activities on ourselves. 

The life of human beings depends upon ecological balance and environmental protection. Any environmental destruction directly or indirectly affects us. Unless the rate at which our environment deteriorating activities is reduced, the consequences are going to be severe, enormous, and irreversible. 

This is why stringent checks and regulations are needed on human activities that may affect the environment even slightly. Environmental legislation aims to do exactly the same. It is vital to restrict citizens from doing certain environment-harming activities and punish the ones who irresponsibly violate the restrictions. 

Principles of Environmental Legislation

Most environmental legislations are drafted based on the six general principles of environmental law as elucidated below: 

  1. Polluter Pays Principle

This Principle is also popularly called ‘Extended Producer Responsibility’. As the name suggests, it means the one who pollutes must be held liable to reverse it. It was first described by Thomas Lindhqvist for the Swedish Government in 1990 and then popularised by the Organisation for Economic Co-operation and Development (OECD). OECD defined the principle as, “a concept where manufacturers and importers of products should bear a significant degree of responsibility for the environmental impacts of their products throughout the product life-cycle, including upstream impacts inherent in the selection of materials for the products, impacts from manufacturers’ production processes itself, and downstream impacts from the use and disposal of the products.” 

The Polluter Pays Principle holds the polluter liable to pay both the damages for the pollution caused and the cost of reversing or repairing it. 

In India, the principle was initially defined and applied in the case of Indian Council of Enviro-Legal Action v. Union of India (1996). In this case, the consequences of the effluents released from the chemical industries situated within the limits of a tiny village named Bichhri village in Rajasthan were contended. Defining the Polluter Pays Principle, the Court held,  “The polluter pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution.” The Respondents, in this case, were ultimately directed to pay for the remedial measures required to clean the affected areas. 

  1. Public Trust Doctrine

The Public Trust Doctrine was developed by the ancient Roman Empire. It states that certain resources like rivers, air, seashore, forests, etc. are reserved exclusively for public use, and that the state is required to maintain them for the reasonable use of the public. Such resources must not be subject to private ownership, as they are ‘gifts of nature and equally important to all the citizens. 

The doctrine primarily establishes that the state is the trustee and the citizens are the principles of the public resources. As trustees, the state must protect the resources for the enjoyment of the general public rather than authorise their use for private ownership or commercial purposes. 

The doctrine imposes the following three types of restrictions on the state: 

  • The property must not only be used for a public purpose, but it must also be available for use by the general public; 
    • The property must not be sold, even for fair cash equivalent, and
    • The property must be maintained for particular kinds of uses, such as navigation, recreation, fishery, etc. 

One of the classic examples of the doctrine in the case of M.C. Mehta v. Kamal Nath (1996). This case became the precedent for the application of the Public Trust Doctrine in India. In this case, the then Minister of Environment and Forests, Kamal Nath had leased to and allowed Span Motels Pvt. Ltd., a company with which he had personal ties, to encroach a forest land near River Beas. The encroachment was meant for an ambitious project named Span Club. The construction activities near the riverside caused devastating floods and loss of ₹ 105 crores. Declaring Kamal Nath’s action as a violation of the Public Trust Doctrine, the Supreme Court held that the Himachal Pradesh Government committed patent breach of public trust by leasing the ecologically fragile land to the Motel management. The impugned lease was cancelled and set aside. Further, the Court also held that the Public Trust Doctrine is a part of the law of the land.  

  1. Precautionary Principle

This Principle provides that as a preventative measure, any developmental activity must be stopped and prevented if it causes or appears to cause any irreversible damage to the environment. It also states that the state must strive to anticipate, prevent, and find an alternative method to do the developmental activity that may cause environmental damage. Further, the principle lays the onus of proof on the developer to prove that the developmental activity is not detrimental to the environment in any possible way. 

The Precautionary Principle was held as a part of the states’ environmental law in the case of Vellore Citizens’ Forum v. Union of India (1996) the release of untreated effluents from tanneries into agricultural fields, waterways, etc. was questioned. Applying the Precautionary Principle, the Supreme Court ordered the closure of the tanneries till the setting up of required pollution control devices.

  1. The Doctrine of Intergenerational Equity

This Doctrine provides that the present generation has a moral obligation to manage the earth and the resources on it in a way that will not endanger the aesthetic and economic welfare of future generations. It emphasises that both the present and the future generations of humans hold the earth in common. 

The Doctrine of Intergenerational Equity concerning environmental law gained much momentum in the Filipino case of Oposa v. Factoran Minors Oposa (1993), wherein it was held that the present generation can file a class suit for or on behalf of the future generations.

  1. Sustainable development 

Sustainable development refers to the act of satisfying the developmental needs without utilising or degrading the natural resources more than what is required. It was defined in the Brundtland Report released by the United Nations in 1987 in the following way: “Sustainable Development is a development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. The principle restricts the over-exploitation of natural resources. 

  1. Principle of Strict Liability

The Principle of Strict Liability, in environmental law, refers to the liability of any person keeping hazardous substances on his premises if such substances escape from his premises and cause any harm or damage. 

However, the liable person may exit from his liability by citing any of the following exceptions: 

  • Plaintiff’s fault;
  • Act of God;
  • Act of a third party, or
  • Consent of the plaintiff. 

This Principle was introduced in the landmark case of Rylands v. Fletcher [3 H.L. 330 (1868)]. 

Constitutional provisions on Environmental Legislation in India

Initially, the Constitution of India contained no specific provisions for environmental safeguards. Nevertheless, the 42nd Constitutional (Amendment) Act, 1976 introduced various environmental law-specific constitutional provisions. These provisions are divided among the parts of Fundamental Rights, Fundamental Duties, Directive Principles of State Policy, and the Seventh Schedule of the Constitution of India, as explained below; 

  1. Article 21 of the Constitution of India

Article 21 of the Constitution of India deals with the Right of Life of citizens. It provides that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. 

In the landmark case of Maneka Gandhi v. Union of India (1978), it was held that the fundamental right to live in a healthy environment is enshrined in Article 21 of the Constitution of India. 

  1. Article 48A of the Constitution of India

Article 48A of the Constitution of India was introduced by the 42nd Constitution (Amendment) Act 1976 as a Directive Principle of State Policy (DPSP). It states that The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”. 

  1. Article 51A(g) of the Constitution of India

Article 51A(g) of the Constitution of India imposes the Fundamental Duty on citizens to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures”. 

  1. Article 246 of the Constitution of India

Article 246 of the Constitution of India provides the 7th Schedule, under which there are three Lists, namely the Union List, State List, and Concurrent List. These Lists contain the subject matters on which the Union, state, or both governments have the exclusive powers to make laws respectively. Certain environmental legislative powers are under all the three Lists as enumerated below: 

  1. List I- Union
    1. Entry 52: Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest
    2. Entry 53: Oilfields, mineral oil resources, petroleum and petroleum products, and other liquids and substances declared by Parliament by law to be dangerously inflammable.
    3. Entry 54:  Mines and mineral development to the extent to which such regulation and development under the control of the Union are declared by Parliament by law to be expedient in the public interest.
    4. Entry 55: Labour and safety in mines and oilfields.
    5. Entry 57: Fishing and fisheries beyond territorial waters. 
  2. List II- State
    1. Entry 6:  Public health and sanitation; hospitals and dispensaries.
    2. Entry 14: Agriculture, including agricultural education and research, protection against pests and prevention of plant diseases.
    3. Entry 18:  Land (rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents), transfer and alienation of agricultural land, land improvement, agricultural loans,  colonisation.
    4. Entry 21: Fisheries.
    5. Entry 23: Mines and mineral development (subject to the provisions of List I concerning regulation and development under the control of the Union).
    6. Entry 25: Gas and gas works.
  3. List III- Concurrent 
    1. Entry 17A: Forests.
    2. Entry 20A: Population control and family planning.

Environmental Legislation in India

Laws about the environment existed in India for a very long time. However, those laws were quite simple, owing to the environmental awareness of people. Modern-day environmental legislation is centred more around regulating the practices affecting the environment than creating environmental awareness. 

The following are a few of the environmental legislations in British and post-Independence India:

  1. British India
    1. The Shore Nuisance (Bombay and Kolaba) Act, 1853
  • The Act is the earliest legislation on water pollution in India;
  • It aimed to regulate the discharge of industrial waste into the coasts of Bombay and Colaba.
  1. The Indian Fisheries Act, 1897
  • The Act aimed to prohibit the usage of poison and explosives to kill fish. 
  1. The Indian Forest Act, 1927
  • This Act was legislated for the British to get unrestricted timber to satisfy their developmental needs;
  • It classified forests into reserved forests, protected forests, and village forests.  
  1. Post-Independence India
    1. General 
      1. The Environment (Protection) Act, 1986
  • The Act aims to be comprehensive legislation for the protection and development of the environment;
  • It was introduced following the United Nations Conference on the Human Environment held in Stockholm in 1972;
  • It gives powers to the Central Government to establish authorities to tackle specific environmental issues in the country.
  1. Hazardous Waste (Management and Handling) Rules, 1989
  • It regulates the generation, transport, storage, treatment, disposal, and transport of hazardous waste in India; 
  • It also prohibits the cross-border transportation of hazardous waste.
  1. The Air (Prevention and Control of Pollution) Act, 1981
  • The Act aims to monitor and reduce air pollution in India by establishing regulatory boards at various levels.
  1. The Public Liability Insurance Act, 1991
  • The Act mandates insurance to provide quick relief to anybody affected while handling any hazardous substance. 
  1. The National Environment Tribunals Act, 1995
  • Various environment tribunals were established under this Act for the speedy disposal of environmental cases. 
  1. The Biodiversity Act, 2002
  • This Act provides for equitable benefit sharing from the utilisation of traditional knowledge;
  • It emphasises the involvement of local communities in sustainable development and the protection of biodiversity. 
  1. Forest and Wildlife
    1. The Wildlife Protection Act, 1972
  • It provides for the formation of advisory boards at various levels; 
  • It enlists various species under six schedules, depending on the degree of protection required;
  • It provides five types of protected areas: Sanctuaries, National Parks, Conservation Reserves, Community Reserves, and Tiger Reserves.
  1. The Forest (Conservation) Act, 1980
  • It aims to the forest cover, and the flora-fauna of the country; 
  • It prohibits the conversion of forests into agricultural or grazing land. 
  1. Water 
    1. The Water (Prevention and Control of Pollution) Act, 1974
  • It aims to control and prevent water pollution;
  • It establishes pollution control boards at various levels.
  1. The Coastal Regulation Zone Notification, 1991
  • The Notification was issued under the Environment (Protection) Act, 1986
  • It categorises Coastal Regulation Zones and imposes specific restrictions on them.
  1. Air  
    1. The Air (Prevention and Control of Pollution) Rules, 1982
  • The Act aims to prevent and control air pollution in India by setting up regulatory boards at various levels;
  • It also provides for the declaration of ‘air pollution areas’ for specific air pollution control. 

International Environmental Legislations

Environmental issues do not know boundaries. These issues do not just concern a particular country; its impact has a domino effect on first, the neighbouring countries, and then, the entire earth. The transboundary influence of environmental problems makes it imperative for all the nations to join hands to agree upon common solutions and implement them in their respective states. This is done through international environmental conventions, treaties, and protocols. A few of the important international environmental legislations are explained below. 

  1. Declaration of the United Nations Conference on the Human Environment (1972)

The Declaration of the United Nations Conference on the Human Environment (1972) is also called the Stockholm Declaration. Being the first UN declaration on the international environment, it is also sometimes referred to as the Magna Carta on the human environment. It aimed to put forward the importance of environmental preservation and make nations take initiative for it.  

It has 26 principles dealing with specific aspects like sustainable development, preventative measures, international cooperation, national environmental policy-making, etc. 

The Stockholm Declaration laid the foundations of subsequent international environmental legislations like the Convention on International Trade in Endangered Species of Wild Flora and Fauna, 1973. 

As a result of being a participant in the Stockholm Declaration, the Indian government passed various environmental legislation like the Water (Prevention and Control of Pollution) Act, 1974, the Environment (Protection) Act, 1986, etc. 

  1. Rio Declaration on Environment and Development (1992)

The Rio Declaration on Environment and Development, or the Rio Declaration, is also known as the Earth Summit. It was adopted at the United Nations Conference on Environment and Development (UNCED) in 1992. 

It has 27 principles dealing with various rights and obligations of member States regarding sustainable development and environmental preservation. It underlined the need for sustainable development in all countries, irrespective of the level of development they are at. It also established the concept of intergenerational equity concerning the environment.    

  1. Kyoto Protocol (1997)

The Kyoto Protocol to the United Nations Framework Convention on Climate Change, or the Kyoto Protocol, was adopted aiming to reduce greenhouse gases emission in 41 countries along with the European Union. The goal was to reduce the levels of carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), perfluorocarbons (PFCs), hydrofluorocarbons (HCFs), and sulfur hexafluoride (SF6) 5.2% below to 1990 levels during the commitment period of 2008-2012. The principle of “common but differentiated responsibilities” was the basis of the Kyoto Protocol. 

This Protocol was adopted for a second commitment period (2013-2020) by the Doha Amendment, held in Doha, Qatar, in 2012.  

Conclusion

The environment is the basis of our survival. Every harm that we do to it hits us back like a boomerang. Environmental protection is strictly the need of the hour. Countries must resolve to make their environmental legislation loophole-free, not to mention the pressing need to efficiently enforce the laws. Nevertheless, no legislation can be effective if we, the citizens, fail to do our part. Let’s be responsible citizens for the nation and strive to protect the environment by adopting a sustainable lifestyle. After all, shouldn’t we be the guardians of our home, the earth?  

Frequently Asked Questions (FAQs)

  1. Where was ‘Sustainable Development’ defined for the first time? 
  • The Brundtland Report
  1. What is Agenda 21? 
  • It is a non-binding action plan for sustainable development released by the United Nations in 1992, as an outcome of the Rio Declaration. 

References 

  1. https://www.nios.ac.in/media/documents/333courseE/23.pdf
  2. https://www.mondaq.com/india/waste-management/624836/environment-laws-in-india
  3. https://www.conserve-energy-future.com/environmental-law-and-its-components.php
  4. International Law and Environmental Protection | Law column
  5. Kyoto Protocol | History, Provisions, & Facts | Britannica
  6. Everything you need to know about the Stockholm Declaration – iPleaders
  7. The concept of polluter pays and its potential in India – iPleaders
  8. History of Environmental Law – Law Times Journal
  9. S7.pdf (mea.gov.in) 

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

LEAVE A REPLY

Please enter your comment!
Please enter your name here