Environmental Protection in India: An overview

Introduction

The right to live in a healthy environment is one of our fundamental rights. Environment protection is not just a responsibility but our obligation. With our busy lifestyle, we almost forget about how much we are exploiting nature for our own benefit. People almost forget that all these resources that are available to future generations are limited. New industries are being opened that have a large impact on the environment. Unnatural reactions that produce so much smoke and waste pollute air and water when they are released, which affects human life adversely. Accidents and disasters have questioned human existence. To stop all this, our government has made laws and rules to protect the environment to some extent. There is great importance for the Environment Protection Law in India for various reasons to protect biodiversity and decrease pollution of air, water, and land. Protecting our environment and resources would help sustain our resources for future generations, and when we use our resources mindfully, it will protect us and our environment from all disasters.

Significance of Environmental Protection in India

Environmental conservation was already a notion in antiquity. Ancient environmental law can be found in the Arthashastra of Kautilya. Each person has the Dharma to safeguard the natural world and its creatures. It was considered a holy obligation. The items of nature were being worshipped. In the trees resided the saints and sages. There are many instances of environmental conservation found in the Vedas, Upanishads, and Smriti. Every religion acknowledges how close humans are to the natural world. The five fundamental elements of the universe are mentioned in the Rigveda. The Yajna, or sacrifice fire, was acknowledged as being significant by the Yajur Veda, Samaveda, and Manu Smriti. The preservation of domestic cattle and wildlife is addressed in the Atharva Veda.

Hinduism worships all facets of nature because it views it as the body of God. Buddhism upholds the fundamental principles of Ahimsa or non-violence. which are critical to the preservation and safeguarding of the natural world. Minimal destruction of life and non-living resources is the fundamental tenet of Jainism. According to the Quran, Allah is the land's owner. All living things are regarded as the beneficiaries, and mankind is the 'Guardian. Water is seen by Christians as a symbol of baptismal purity.[i]

International Perspective

The United Nations Conference on Human Environment And Development in Stockholm in 1972 Is considered to be the Magna Carta of environmental protection and sustainable development. The Stockholm Declaration consists of seven universal truths and 26 principles besides the preamble. The Stockholm Declaration resulted in various revisions to the Indian Constitution. Through the 42nd Amendment, the ideals of the Stockholm Declaration were integrated into our Constitution. This amendment produced Articles 48A and 5A(g). Through the Amendment forest and wildlife conservation were also added to the Concurrent List as entries 17A and 17B respectively.

The Montreal Protocol or the Ozone Treaty of 1987 aimed at the elimination of ozone-depleting substances. The Brundtland Commission (1983) report gave a comprehensive definition of ‘sustainable development.’ The Rio Declaration and Agenda 21 which came through the Earth’s Summit of 1992 at Rio de Janeiro focused on the concept of environmental protection and sustainable development.

In 1997 the World Climate Conference was held in Kyoto, Japan signed for mandatory reduction in the emission of greenhouse gases to save the earth from global warming. In 2002 the Word Summit On Sustainable Development was held in Johannesburg, South Africa where the participating nations reaffirmed their commitment to sustainable development. Besides these, many other follow-up commissions and conferences were held relating to environmental protection and sustainable development thereafter. [ii]

Indian Perspective

Under the Constitution of India:

Article 48A of the Indian Constitution states that states have a responsibility to make laws and orders to protect and improve the environment and safeguard forests and wildlife in the country.

Article 51A(g) of the Indian Constitution talks about the fundamental duties of every citizen to protect and improve the natural environment, including the forests, lakes, rivers, and wildlife, and to have compassion for living natural creatures.

The right to live in a healthy and safe environment also comes under the fundamental right to life provided under Article 21.

Citizens are entitled to the fundamental freedom of speech and expression under Article 19(1)(a). However, this kind of freedom shouldn't contribute to environmental pollution in any manner. The judiciary has taken proactive steps regarding the same. Article 19(1)(g) entitles the freedom to practice any profession or to carry on any occupation, trade or business. But this is also subject to reasonable restrictions. Hence, in the interest of the public, no trade or business causing environmental degradation will be allowed to function.

Article 14 grants equality before the law and equal protection of the law. Any arbitrary actions taken by the State authorities regarding environmental matters that violate Article 14 will be taken down by the judiciary.

As per the Constitution, citizens also bear responsibilities for environmental conservation in addition to the government. According to Article 32 and Article 226, every citizen has the right to petition the Supreme Court or a High Court respectively in the event that their fundamental rights are violated.

Article 253 gives power to parliament to bring any legislation on environmental protection, with the help of which parliament enacted the Environmental Protection Act 1986 to give effect to the decision of the UN Conference on Human Environment held in Stockholm in 1972.

Under Criminal and Civil Laws:

Pollution is also considered as a public nuisance. This can be remedied under the provisions of the Indian Penal Code of 1860, as well as the Criminal Procedure Code of 1973. Chapter 14 of the IPC contains sections 268 to 294A which deal with the offenses affecting public health, safety, convenience, decency, and morals. Section 268 defines what is a public nuisance and the punishment is provided under section 290.

Chapter 10 Part B (Sections 133-144) and Part C (Section 144) of the CrPC provide speedy remedies for preventing and controlling public nuisances causing environmental pollution.

Section 91 of the Civil Procedure Code also provides the right of action in case of public nuisance. Similarly, environmental pollution amounts to a civil wrong and, by its nature, it is a tort committed against the whole community.[iii]

Some Other Legislations:

The Forest Act of 1927 provides consolidated laws relating to forests in India. It covers all the categories of forests.

The Forest (Conservation) Act of 1980 was passed to check deforestation in the country. It aims to put restrictions on the use of forest land for non-forest purposes.

The Wildlife Protection Act of 1972 provides for the protection of wild animals, words, and plants.

The Water (Prevention and Control of Pollution) Act of 1974 aims to control water pollution. It also helps in maintaining and restoring the wholesomeness and purity of water in various sources.

The Air (Prevention and Control of Pollution) Act of 1981 provides to control and prevent air pollution And the matters connected therewith.

The Environment (Protection) Act of 1986 is the general and comprehensive law on environmental protection in India.

Public Liability Insurance Act of 1991 was enacted to provide speedy relief to the victims of accidents that occur while handling hazardous substances This legislation acknowledged the principle of no-fault liability in India.

Scheduled Tribes And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act of 2006 recognizes and vests the forest rights of the Forest Dwelling Scheduled Tribes and Other Traditional Forest Dwellers who have been residing in such forests for generations.

The National Green Tribunal Act of 2010 repealed the old National Environmental Tribunal Act of 1995 and the National Environment Appellate Authority Act of 1997. It was established as a result of the 186th Law Commission report in 2003 which provided for the setting up of environmental courts to deal with environmental matters exclusively in an effective and expeditious manner.

The Bhopal Gas Tragedy

The Bhopal gas tragedy, which happened on the night of 3rd December 1984, also known as the world's largest industrial disaster, caused the death of thousands of people and animals overnight. 40 tons of methyl isocyanate gas leaked from the Union Carbide India Limited pesticide plant in Bhopal because of insufficient safety measures and a careless attitude towards the issue. When the legal wheel came in motion, the Union Carbide Corporation immediately tried to get rid of the legal responsibilities and settle the issue with the Indian government by paying $470 million in compensation. But was it enough? When gas spread over a densely populated area where no exact number of dead people was given, those who survived suffered severe health injuries, and the effects of this disaster are still there after 39 years.

Causes of Disaster

There were many reasons that led to this tragedy, the heavy leak of the gas and its exposure to the air. The first reason was that there were 3 tanks to store MIC, but among them, one tank needed to be emptied for emergencies; it was filled, and the other 2 should have been half-filled, but they were filled more than the prescribed amount, which resulted in MIC being stored more than its capacity. Besides this, on the day of the disaster, no safety measures were working and they were switched off. There were unskilled laborers who didn’t have any proper training for the emergency. Additionally, there were no safety systems to detect leaks in the plant.[iv]

Aftermath of the Tragedy

After the disaster, hospitals were filled with patients, but doctors didn’t have any idea what was happening and were not prepared for this kind of disaster. Public health infrastructure was very weak at that time in Bhopal. Union Carbide Corporation refused to take any responsibility and blamed its Indian subsidiary, Union Carbide India Ltd. For the leak, the case went to the CBI for investigation. Also, the Bhopal Commission on Gas Leakage was set up by the government of Madhya Pradesh to hold an inquiry, which was headed by Justice N. K. Singh (MP High Court Judge).[v]

The Need for a New Law: The EPA, 1986

The Bhopal gas tragedy was a catastrophic incident that shocked the entire globe, resulting in thousands of deaths within hours of the gas leaking and numerous injuries. After this deadly incident, environmental awareness and activism in India arose. Just one year after this, on December 4th and 6th, 1985, a massive leakage of oleum gas occurred in Delhi from one of the plants of the Shriram food and fertilizer industry. One gas explosion was due to the collapse of the structure, and another was due to gas escaping from the joints of pipes.

All these led to the enactment of an Environmental Protection Act. In 1972, India participated in the UN Conference on Human Environment held in Stockholm, which decided to take steps towards the protection and improvement of the environment. Before 1984, no major steps were taken to make laws on environmental protection.

The Environment (Protection) Act of 1986, strengthened India’s commitment to the environment. The Act was enacted with the aim of providing protection and improving environmental safety. [vi] It specifically provides to maintain certain standards, and no person or industry will be permitted to cause any damage to the environment.[vii] If a person is found guilty, then he can be asked to pay the exemplary damages for polluting the environment by the ‘polluter pays principle.’[viii] Persons handling hazardous substances are required to comply with procedural safeguards. They shall be bound to mitigate or reduce environmental pollution and also should intimate and render all assistance to the authorities.[ix] The Act also gives the central government the power to protect the environment and restrict any industry that does not operate on environmental grounds.

From ‘Strict Liability’ to ‘Absolute Liability’

Strict Liability: The strict liability law evolved in the case of Ryland v. Fletcher.[x] The strict liability states that if any person keeps any hazardous or dangerous substance on his property and such substance escapes from his premises and causes any damage, then he will be responsible and answerable for the damages caused. He will be held accountable even if he takes proper care to stop the escape of the substance. But the strict liability came with certain exceptions.[xi]

Absolute Liability: The rule of absolute liability evolved from the case of M.C. Mehta v. Union of India.[xii] In this case, the Ryland v. Fletcher Rule was first applied, but according to Justice Bhagwati, it was not enough to decide this case, so the Supreme Court further implemented the absolute liability rule. So, the principle of ‘absolute liability’ was established by the judiciary and it states that in industries where dangerous activities are carried out, absolute liability will be applied. The rule laid down in this case was followed by the Supreme Court in the Bhopal gas tragedy case. The rule of absolute liability states that if any harm is caused to anyone by any accident at the time of carrying out any dangerous or hazardous activities, then the person who is carrying out such activities will be held liable and he will be “absolutely liable to compensate.” Under this rule, there are “no exceptions” for accidents, like in the strict liability.

Role of the Judiciary

The judiciary plays a vital role in interpreting the law. The principles of environmental protection in India were developed mainly through judicial activism. Environmental jurisprudence in India mainly developed through Public Interest Litigation (PILs) or writs that came to the Supreme Court and the High courts as per Articles 32 and 226 of the Constitution.[xiii]

The judgments of the Supreme Court relating to environment laws include M.C. Mehta v. Union of India[xiv] (1986), which gives the principle of absolute liability as well as the polluter pays principle, and M.C. Mehta v. Kamal Nath[xv] (1996), in which the Supreme Court recognizes the public trust doctrine, in which the government has a responsibility to safeguard natural resources. The court also recognized the precautionary principle which says that environmental measures must anticipate, prevent, and attack the causes of environmental degradation.[xvi]

Conclusion

Concerns regarding environmental protection are rooted in the cultural and religious sentiments of India from time immemorial. Initially, India didn’t have an umbrella legislation for the protection of the environment or to address environmental issues, but after dealing with major disasters in Bhopal and Delhi, the Environment (Protection) Act was enacted. The judiciary always plays a proactive role in protecting and safeguarding the environment. The environmental jurisprudence in India has grown so far. Both the state and the citizens have played a major role in environmental protection and sustainable development. Our country is now aware of its environmental issues and takes steps to protect and preserve the environment.

References

[i] Dr. Paramjit S. Jaswal et. al., Environmental Law, (Allahabad Law Agency 4th ed. 2019).

[ii] Id. (i).

[iii] M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213.

[iv] N.D. Jayaprakash, Bhopal Gas Leak Disaster: UCC’s Heinous Crime and Response of the Indian State, The Marxist, Vol. 26(2), April–June 2010.

[v] Edward Broughton, The Bhopal Disaster And Its Aftermath: A Review, Environ Health Vol. 4(6) (2005). https://doi.org/10.1186/1476-069X-4-6

[vi] The Environment (Protection) Act of 1986 (Act No. 29 of 1986).

[vii] Section 7 of the Environment (Protection) Act of 1986.

[viii] Supra note (iii).

[ix] Section 8 of the Environment (Protection) Act of 1986.

[x] Rylands v. Fletcher, (1868) LR 3 HL 330.

[xi] Absolute Liability: The Rule of Strict Liability in Indian Perspective. https://docs.manupatra.in/newsline/articles/Upload/2D83321D-590A-4646-83F6-9D8E84F5AA3C.pdf

[xii] M.C. Mehta v. Union of India, AIR 1987 SC 1086.

[xiii] Role Of Judiciary In Environmental Protection. https://www.nluassam.ac.in/docs/lex%20terra/Lex%20Terra%20Issue%2032_5.pdf

[xiv] M.C. Mehta v. Union of India, AIR 1987 SC 1086.

[xv] M.C. Mehta v. Union of India, (1997) 1 SCC 388.

[xvi] M.C. Mehta v. Union of India, (1997) 2 SCC 353. (Taj Mahal Case).

Disclaimer: The author affirms that this article is an entirely original work, never before submitted for publication at any journal, blog, or other publication avenue. Any unintentional resemblance to previously published material is purely coincidental. This article is intended solely for academic and scholarly discussion. The author takes personal responsibility for any potential infringement of intellectual property rights belonging to any individuals, organizations, governments, or institutions.

About the Author: Priyanshi Lekhwar is a first-year BA.LL.B student at Vivekananda Institute of Professional Studies, Pitampura, New Delhi.