environment and constitution

In this Guest Post, Yash Dahiya criticises the implementation of Environmental Laws in India.

INTRODUCTION

Environmental laws in India are strong but it lacks obedience from the people. Despite having a specialized court which deals with environmental cases. India still ranks high in terms of pollution around the world.  According to the Environmental Performance Index India currently ranks 177 out of 180 countries. Environmental law in India truly faces an implementation crisis.  [1] With rapid industrialization, deforestation, increase in population at a booming rate and lack of knowledge amongst people about the environment and pollution our natural resources are decreasing at a terrifying rate.

ENVIRONMENTAL LAWS IN INDIA

Notably, the government has passed various legislations to curb the damage caused to the environment such as the Environmental Protection Act, 1986, Forest Conservation Act, 1980, Water Prevention and Control of Pollution Act, 1974, Biological Diversity Act, 2002, Public Liability Insurance Act 1889 and National Green Tribunal Act, 2010.

According to Article 48 (A) of the Indian Constitution, the state shall try to protect and improve the environment. It should also endeavour to safeguard forests and wildlife of the country. [2]

According to Article 51(A) (g) of the Indian Constitution, every citizen of India has a fundamental duty to protect and improve the natural environment including forest, lakes, rivers, and wildlife and should have compassion for living creatures. [3]

REASONS

  • One of the main reasons for this is that the there is no independent regulatory body for environmental governance. It is looked after the Ministry of Environment Forest and Climate Change (MoEF). Due to excessive interference by government on the governance of the Ministry, there is poor implementation of environmental law. [4]
  • There is also a lack of political will and public awareness. [5]
  • Almost all laws related to environment consider the superiority of human over ecosystem and nature.[6]
  • We have an ineffective pollution control mechanism. The present framework under the Water Prevention and Control of Pollution Act, 1974 and Air Prevention and Control of Pollution Act, follows the command and control structure.[7]
  • Industries are obligated to take permission from the State Pollution Control Board to discharge effluents and causing emissions but there is laxity in compliance due to lack of strong penalty measures. The Comptroller and Auditor General in India in its 2011-12 report on Performance Audit of Water Pollution in India say that the penalties for contravention of WPCA 1974 are too weak.[8]
  • There is lack of independence given to the central and the state boards who still have to depend on the state and the central government for the appointment. This leads to a lack of competent people.[9] The appointment is at the wish of the government.
  • PCB’s don’t have legal authority and their decisions tend to be overruled by the government.[10]
  • There is also a lack of funds to the Pollution Control Boards and they don’t even have proper infrastructure or laboratories.[11]
  • There are certain laws which are not very elastic.[12]
  • The existing laws give importance to some specific types of pollution or specific categories of hazardous substances. [13]
  • The present mechanism fails to accept the polluter pay principle.
  • Environmental Litigation is more expensive compared to other disputes as it involves expert testimony and technical evidences [14]

SOLUTION

  • An independent regulatory body needs to be established. The MoEF in 2009 had proposed for a “National Environmental Protection Authority’ in its discussion paper which would act as a body for ‘monitoring, regulation and enforcement’ of environmental governance. Like in the case of Vellore Citizen Forum vs. Union of India the principle of polluter pay principle was applied. In this case, a Public Interest Litigation was filed by the petitioners on the grounds that the tanneries and other industries were discharging untreated effluents into the River Palar in Tamil Nadu. 35,000 hectares of agricultural land has become either totally or partially unfit for cultivation according to Tamil Nadu Agricultural University Research Centre, It was held that the industries have to pay compensation to the villagers for the damage caused by them and also compensate for the restoration of the environment[15]
  • A reward mechanism needs to be given to business, organizations etc. to detect violations and take action to address the issue. [16] Financial subsidies, cost sharing should also be promoted.[17]
  • Public awareness and an increase in political will is a must. NGO’s can play a very important role in this.
  • There should be less political interference in the independent regulatory body.[18]
  • More decision making power needs to be given to the boards. There is also a need to establish a body of experts just like the civil services.
  • It is important that laws give environmental values to the society and Courts and Tribunals should refrain from carrying out policy functions and must focus on making a strong environmental jurisprudence in India. [19]
  • There is a need to discipline engineers who do not follow rules. [20]
  • It is important to have a general legislation for environmental protection.
  • The National Environmental Policy 2006 identifies and indicates that there is a need to move to a strong civil liability mechanism which is based on the polluter pay principle instead of a criminal penalty mechanism. [21]
  • There is also a need for the government to pass the Environmental Laws Amendment Bill, 2015 which tries to impose a fine of 50-100 million rupees civil liability for causing substantial damage to the environment.[22]

CONCLUSION

Air Pollution kills around 1.2 million people annually in India. New Delhi’s air quality is 20 times above the safe limit. 70% of India’s surface water and groundwater is contaminated and unfit for drinking.[23] By 2020 it is expected that 21 cities won’t have any groundwater left. This is according to the recent Niti Aayog report. [24]Around 47 species of animals and plants are critically endangered in India according to the International Union for Conservation of Nature’s Red Data Book. [25]Phalodi in Rajasthan recorded India’s hottest day which was 51 C that is equivalent to 123.87 F back in May 2016.[26] Urban India is the world 3rd largest garbage generator and by 2050 waste is expected to rise to a staggering 436 million tonnes. [27]So it is very essential that environmental laws need to implemented strongly because by the looks of it India’s future does not look bright.

REFERENCES 

[1]  India ranks 177 out of 180 in Environmental Performance Index, The Hindu (2018), https://www.thehindu.com/sci-tech/energy-and-environment/india-ranks-177-out-of-180-in-environmental-performance-index/article22513016.ece  (last visited on Jul 20, 2018).

[2] Article 48 (A) in the Constitution of India 1949, Indian Kanoon, https://indiankanoon.org/doc/871328/ (last visited on Jul 24, 2018).

[3] Article 51(A) in the Constitution of India 1949, Indian Kanoon., https://indiankanoon.org/doc/867010/ (last visited on Jul 24, 2018).

[4]  Dr. Deva Prasad. M, Taking Environmental Law Seriously: An Indian Perspective, Live Law.in (2017), http://www.livelaw.in/taking-environmental-law-seriously-indian-perspective/ (last visited on Jul 20, 2018).

[5]  Shailesh, How we failed to implement environmental laws in India, Green Clean Guide (2017), http://greencleanguide.com/how-we-failed-to-implement-environmental-laws-in-india/  (last visited on Jul 20, 2018).

[6] Ibid.

[7] Dr. Deva Prasad. M, Taking Environmental Law Seriously: An Indian Perspective, Live Law.in (2017), http://www.livelaw.in/taking-environmental-law-seriously-indian-perspective/ (last visited on Jul 20, 2018).

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Article on importance of environmental laws in India, Law Updater (2016), https://lawupdaterblog.wordpress.com/2016/09/07/article-on-importance-of-environmental-laws-in-india/ (last visited on Sept 7, 2016).

[12] Ibid.

[13] Binod B. Sandwar, Implementation of Environmental Legislations for Environmental Protection, Journal for Industrial Pollution Control, http://www.icontrolpollution.com/articles/implementation-of-environmental-legislations-forenvironmental-protection-.php?aid=45644 (last visited on Jul 24, 2018).

[14] Ibid.

[15] Vellore Citizens Welfare Forum versus Union of India, Lawnn (2017), https://lawnn.com/vellore-citizens-welfare-forum-versus-union-india/ (last visited on Jul 24, 2018).

[16]  Problems in enforcing environmental law and ensuring environmental law and ensuring environmental rights for legal aid beneficiaries, IUCN (2012), https://www.iucn.org/content/problems-enforcing-environmental-law-and-ensuring-environmental-rights-legal-aid (last visited on Jul 20, 2018).

[17] Binod B. Sandwar, Implementation of Environmental Legislations for Environmental Protection, Journal for Industrial Pollution Control, http://www.icontrolpollution.com/articles/implementation-of-environmental-legislations-forenvironmental-protection-.php?aid=45644 (last visited on Jul 24, 2018).

[18] Dr. Deva Prasad. M, Live Law.in (2017), http://www.livelaw.in/taking-environmental-law-seriously-indian-perspective/ (last visited on Jul 20, 2018).

[19]  Dhvani Mehta, India and Climate Change: Lack of clear regulatory framework sets country behind, Firstpost, https://www.firstpost.com/long-reads/india-and-climate-change-lack-of-clear-regulatory-framework-sets-country-behind-3448112.html  (last visited on Jul 20, 2018).

[20] Ibid.

[21] Dr. Deva Prasad. M, Live Law.in (2017), http://www.livelaw.in/taking-environmental-law-seriously-indian-perspective/ (last visited on Jul 20, 2018).

[22] Ibid.

[23] Shailesh, Green Clean Guide (2017), http://greencleanguide.com/how-we-failed-to-implement-environmental-laws-in-india/  (last visited on Jul 20, 2018).

[24]  Jacob Koshy, India faces worst water crisis: Niti Aayog, The Hindu (2018), https://www.thehindu.com/sci-tech/energy-and-environment/india-faces-worst-water-crisis-niti-aayog/article24165708.ece (last visited on Jul 20, 2018).

[25] Sujatha, Environmental Issues in India Today, Maps of India (2016), https://www.mapsofindia.com/my-india/india/environmental-issues-in-india-today (last visited on Jul 24, 2018).

[26] Agence France- Presse, The Guardian (2016), India records its hottest day ever https://www.theguardian.com/world/2016/may/20/india-records-its-hottest-day-ever-as-temperature-hits-51c-thats-1238f (last visited on Jul 24, 2018).

[27]  Anisha Bhatia, Waste Management: How India is drowning in garbage, NDTV Banega Swatch India (2017), (https://swachhindia.ndtv.com/waste-management-india-drowning-garbage-2147/ (last visited on Jul 24, 2018).

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