This article is written by Jeffy Johnson, currently pursuing B.A. LLB (Hons) from School of Law, CHRIST (Deemed to be University). This is an exhaustive article which deals with the need for reforms in environmental laws in India.
India has the largest democracy and owns one of the biggest emerging economies. It also has a high-level concentration of individuals who belong to the category of extreme poverty. They experienced a surge of environmental justice movements because of the desire to grow and make themselves part of the societies and ecosystems. India’s judiciary has evolved a crucial role in environmental claims. Mainly because of legislative provisions: Article 21 of the Constitution on the Right to Life, Article 48-A (4) of the Directive Principles of State Policy and Article 51-A (g) of the Indian constitution on the fundamental duties of every citizen of India.
The Supreme Court through a series of cases has tried to strike a balance between growth, equity and sustainability. In the case of the Bhopal Gas Tragedy of 1984, the Supreme Court declared that “issues of the environment must and shall receive the highest attention from this court.” This launched neo-liberal reforms in India and its pathway to re-emergence as a global economic power. In Subhash Kumar v State of Bihar 1991 AIR 420, the Supreme Court observed that “the 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.” This landmark interpretation by the Supreme Court set the foundation for the expansion of rights-based approaches to challenging environmental impacts of growth.
Filling the gaps and the lacunae in administration and law
In certain cases, the courts issue directions to meet the spaces in existing law. They may also go to the extent of inquiring into the matters of the government to ensure that they constitute national and state regulatory authorities or environmental courts. In many cases, courts have issued and given directions to remind and alert the statutory authorities of their responsibility to protect the environment. And of the same time safeguard it and protect it from pollution. Thus, directions were given to local bodies, especially municipal authorities, to remove garbage and waste and clean towns and cities.
In Vellore Citizens Welfare Forum v. Union of India (1996), after giving various warnings to shut down and relocate the tanneries in Tamil Nadu which was causing pollution the Supreme Court entrusted the Madras High Court with the responsibility of introspecting matters under Article 226. The request made by the Supreme Court to the Chief Justice of the Madras High Court was to create a ‘green bench’- to deal with the case and other environmental matters, as is done in Calcutta, Madhya Pradesh and in some other High Courts. In Indian Council for Enviro-legal Action v. Union of India 1996 AIR 1446, the Supreme Court believed that such norms in various parts of the country being better known to them, the High Courts would be the most appropriate forum to be moved for more effective transactions, implementations and invigilation of the anti-pollution laws.
The Supreme Court passed regulations for more effective control and monitoring of such laws and regulations. The High Courts have greater responsibilities in curbing such issues and constraints. It concerns the geographical areas within their respective States, where general directions are issued by this Court. It also gives way to more effective implementation of the same. The High Courts concerned assume the responsibility of enabling law enforcement and examining the complaints, mostly made by the local inhabitants. These are about the infringement of the laws and spreading of pollution leading to degradation of ecology and hampering biodiversity.
Environment justice and the India Constitution
There is no specific entry on the subject of environmental protection and justice in the Indian Constitution although it is very crucial and vital to have it in the legislation. Constructive suggestions and feedback were put forward to incorporate the environment in the concurrent list which was rejected. In the 74th amendment the state legislature has passed a regulation on urban forestry, promotion and protection of the environment this is with reference to the concurrent legislation. The environmental protection comes under the preview of three important levels of lawmaking authority. These vest power and privileges of the states in consensus with panchayats and municipalities.
The Indian judicial system has a bent for innovation and advancement which paves the way in formulation of a solution to environmental problems. These are met within the ambit of public interest litigation. The constitution provisions also provide the court with adequate jurisdiction to look into matters concerned with the environment. According to Article 142, the Supreme Court has reasonable powers to channelize the decisions in order to satisfy justice. Although the Supreme Court is the final authority as to the matters to constitutional interpretation are concerned but assumes a sort of primal position in the Indian environmental legal structure.
In the landmark case of Subhash Kumar v. The State of Bihar, the court held that the right to live of Article 21 of the Constitution of India is a fundamental right. This also includes the right of enjoyment of clean water and air. If this infringes the right to the enjoyment of the environment and quality of life becomes derogation of the rights of the citizens of the state. All citizens have the right to have recourse to Article 32 of the Indian Constitution. The Supreme Court of India looked into Article 21 which has aided in the growth of environmental jurisprudence in India. This, in turn, protects human right jurisprudence. There have been several landmark judgements passed that highlight that the pollution-free surroundings and right to a clean environment have been inseparable from human rights and ultimately boils down to the fundamental rights of every citizen. In the case of Kendra v. State of UP 1985 AIR 652, the court put down five comprehensive interim orders which direct on the understanding of the environment rights from the viewpoint of the judiciary. All this is conferred to article 21 with simple lines is the case of T Damodar Rao v. Special Officer Municipal Hyderabad AIR 1987 AP 171, and also in the case of L K Koolwal v. The State of Rajasthan AIR 1988 Raj 2.
Main acts for environment protection in India
- The Forest Conservation Act, 1980.
- The Prevention of Air and Water Pollution, 1974, 1981 (The Central Pollution Control Board) (CPCB) was constituted under this Act.
- The Air Prevention and Control of Pollution, 1981.
- The Atomic Energy Act, 1982.
- The Environmental Protection Act, 1986. (It came into force soon after the Bhopal Gas Tragedy)
- The Environmental Conservation Act, 1989.
- The National Environmental Tribunal, 1995.
- National Environmental Appellate Authority Act, 1997.
- National Environment Management Act (NEMA), 1998
- Handling and Management of Hazardous Waste Rule in 1989.
- The Public Liability Insurance Act (Rules and Amendment), 1992.
- The Biomedical Waste Management and Handling Rules, 1998.
- The Environment (Siting for Industrial Projects) Rules, 1999.
- The Municipal Solid Waste (Management and Handling) Rules, 2000.
- The Ozone Depleting Substance (Regulation and Control) Rules, 2000.
- The Biological Diversity Act of 2002.
Environmental awareness and education
The directives of the Supreme Court was able to spread the idea of environmental awareness and literacy in its subcontinent. It also paved the way in establishing environmental education not only at the school level but also at the college level. In the most renowned MC Mehta v. Union of India 1987 AIR 1086 laid due importance on the need for introducing schemes such as to promote human conduct in accordance with the requirements of the law. There should be proper steps taken in order to ensure that people are aware of the indispensable necessity of their conduct being affiliated with the requirements of law. The court also gave directions to All India Radio and Doordarshan to highlight their programmes on various aspects of the environment which was immediately implemented. The Supreme Court also stated that every state government and educational board promotes and facilitates environmental education. It also stated that in the course of time these directions and various authorities function with due diligence in matters and schemes relating to environmental education.
Need for reforms
There is a need for addressing the problems of existing environmental laws. All this will ultimately result in long-standing illegalities. We should understand the actual social and environmental impacts. With changing times there is a need to meet modern times. Currently, the important aspect is regarding the decision-making process this provides the extent of the scope and mechanism. All this will improve the knowledge and strategic measures that can improve the prevalent environment laws and regulation. The main issue lies in understanding the need for reforms analysis in the existing laws and precedent. Making recommendations and amendments based on the flaws and gaps. This will facilitate the process of filling the lacunas in the laws of the environment. The environmental law implementation can be evaluated by the time spent in delivering judgements. It is required to provide positive outputs. There should be quick and speedy disposal of decisions. There is a need for a proper mechanism for ensuring faster trail. This will benefit both the parties involved in the disputes. With this, it requires the aid and advice of environmental experts and advisors. With advice received, it is important to formulate and ensure reforms and proposals to facilitate environment problems faced by law and order system. With proper participation and speedy justice delivering system backed with approvals will ensure this objective is achieved.
The High-Level Committee (headed by T.S.R Subramanian) constituted by India’s Ministry of Environment, Forest and Climate Change for reviewing India’s major environmental laws suggested the recommendation that technology will ensure more accountability, transparency and fast-track mechanism. The government need to work towards formulating proper functioning of existing committees and bodies which regulate environmental concerns. All where there is an absence of any regulating body to look into any unaddressed issue it is the duty of the authorities to ensure a new body is constituted to meet such requirements. The environmental issue is something that requires close supervision. To meet such concern quickly the government need to be equipped with technology and strategic plans
In recent times the state and its citizens are under the fundamental duty and responsibility of protecting and improving the environment. They are obligated to safeguard the flora, fauna and at the same time have civic sense towards the environment. The constitutional compulsions should vitalise the rule of law into creating dynamic policies on the environment. If this is not carried out, the paramount laws will be stultified into a mere declaration in papers. Indian democracy depends on the welfare of its people and active participation must not lead to submission to monocracy. This will damage the environment and create ecological imbalance. Affirmative judicial actions and legal actions despite its adversarial concerns are required to enliven environmental law.
Human existence depends on the crises of a dangerous degree of pollution. It is vital to reiterate the need to achieve growth in the economic and social well-being of people throughout the world within the boundaries of a sustainable development base. Then the community sensitivity will have to be accompanied by the desire and the capacity to subject developmental projects at the government level. This impact is based on principles of ecology and energy conservation. And also efficiently designed government projects blended with people’s action can alone take the goal to the conservation cannot remain the responsibility solely of the Government and other authorities must work together to create greater awareness. Then environmental democracy and justice will be at par and have its effective implication in Indian society.
- Anant Sudarshan, An environment for reform, Indian Express, 18 June 2014.
- Reforming Environmental Law, Phillip D. Reed.
- Els Reynaers Kini and Gautambala Nandeshwar, and M V Kini, Environmental law and practice in India: overview, 01-Apr-2020.
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