Assistant Professor

Institute of Law

Jiwaji University

Gwalior  Madhya Pradesh, India 

Institute of Law

Jiwaji University

Madhya Pradesh

India

Abstract

Every individual has the right to live in a healthy and decent environment. Healthy environment is vital to the human life as it allows people to grow physically, mentally and intellectually healthy. Right to healthy environment is the constitutional law of our country and hence it laid down the responsibility on the state to adopt an active and dynamic laws to protect the rights of an individual to live in a environment which is pollution free.

Introduction

Right to live in a healthy environment is one of the basic human rights of every individual. Lot of changes is introduced in the environment due to the advancement of science and technology. Natural environment, i.e. air, water, land, trees, plants, animals, microorganisms, rivers, lake, mountains etc is adversely affected by the man made environment. Environment is polluted by the natural and man-made causes. Population, poverty, Urbanization, Industrialization are the main reason for the pollution of environment. As the population increases, more resources are required for the people for meeting their day to day basic needs. Rapid and unplanned urbanization, deforestation which also contributed for the environment pollution and degradation of human environment. As rightly said by Mahatma Gandhi "Earth has sufficient resources for everyone needs not for everyone greed's". Due to the rapid development unprecedented use of technology give births to many problems as a result of which environment damage increases.

Environment damage is not the new challenges and every nation across the globe facing this problem. Its emergence can be traced back on the planet in the times of 2500 years ago. Due to which we have customs, traditional, policies and laws for the protection and conservation of environment. During the ancient time forest, wildlife and trees are always highly important.  British Government also laid down first policy in the year 1884 which is related to the protection of environment. After independence, India drafted the Indian Constitution which come into force on 26th January 1950. Constitution of India obligated "State"  as well as the citizens to protect and improve the environment. Indian judiciary plays an important role in the protection and promotion of environment. One of the prominent reason for environment pollution is the increased activity of human. When the increased activity of human which lead to damage the environment, laws come into play to make a balance between the environment protection and  development.

In Indian Council for Enviro-Legal Action V. Union of India[1], Court laid down in these case

While economic development should not be allowed to take place at the cost of ecology or by causing widespread or by causing widespread environment destruction and violation; at the same time, the necessity to preserve ecology and environment should not, hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment.

In the case of T. N Godavarman Thirumulpad V. Union of India[2], declared

Environment is a difficult word to define. It normal meaning related to the surroundings, but obviously that is a concept it is surrounded. Einstein had once observed, the environment is everything that is not me. 

 In the year 1972, first United nations conference held in Stockholm declared, to defend and improve the human environment for the present and future generations which is also necessary for all the mankind. 26 Principles laid down under this convention which is also known as the Magna Carta on Human Environment. It is the first conference which introduced the concept of sustainable development. Our Prime Minister Indira Gandhi also participated in this conference and raise its concern for the eco-imbalances, environment degradation and pollution problem. As the Development activities increasing, it is necessary that various statutes should be laid down for the protection and improvement of environment because it is become necessary not only for human beings but it also affects the flora and fauna.

Legislative Framework For Environment Protection

India is one of the signatory to the Stockholm Convention which is also known as the Magna Carta on environment.  Article 253[3] of the Constitution empowers parliament to legislate on any matter for implementing the international obligation and decisions taken at the international conference, association or other body's meeting. List III (Concurrent List)[4] of schedule VII also provides to the Indian Parliament on the various subjects to the environment. In order to fulfill its obligation under the conference, the Indian Parliament passed the 42nd Amendment to the Constitution in 1976 and added the two articles relating to the protection and improvement of the environment.

Over the period of time, we enacted various legislations for the protection and improvement of environment. It is very important that law must fulfill the needs of the society and it the dire need of time for the protection and improvement of environment. As the development activities is increasing in the society, it is important to make a balance between the environment and development. Indian parliament enacted the various legislation and make amendments in the current legislature for the protection and improvement of environment. These are the list of various legislature which are enacted to protect the environment.

1. Constitution of India

2. Water (Prevention and Control of Pollution) Act, 1974

3.  Wildlife (Protection) Act, 1972

4.  Air (Prevention and Control of Pollution) Act, 1981

5  The Forest (Conservation) Act, 1980

6. Environment Protection Act, 1986 

7. Biological Diversity Act 2002

Constitution of India

Indian Constitution does not have any explicit references for the environment protection. Constitution drafters does not put much emphasis on the protection of environment. At the time of drafting of constitution, our constitution maker does not include any provision for the 42nd Constitution Amendment incorporated the two important article, Article 48A[5] and 51A(g)[6] which related to the environment for the protection and improvement the environment.

 In the case of M.C Mehta V. Union of India[7] (Oleum Gas Leakage case), the Supreme Court held down in these case that right to live in pollution free environment as  a part of fundamental right to life under Article 21 of the Constitution.

 In the L.K Koolwal V. State[8], Maintenance of health, preservation of the sanitation and environment falls within the purview of Article 21 of the Indian Constitution which adversely affect the life of the citizens because it leads poisoning and reducing the life of the citizens.

Wildlife Protection Act, 1972

Protection of species contributes to the healthy planet for the people's health and well being and it also the integral for the maintenance of balance of nature. It is necessary to protect the species because it is  essential for goods and services that makes our life possible and contribute enormously for the human health and the well-being. Conservation of wildlife is of immense importance to the mankind. Extinction of wildlife will ultimately lead to the extinction of the human race. 

In the case of State of Bihar V. Murad Ali Khan[9]  Supreme Court explained the

The policy and object of the Wildlife has a long history and it is the result of an increasing awareness of the compelling needs to restore the serious the ecological balance introduced by the depredations inflicted on nature by man. Preservation of the flora and fauna is necessary because some species which is getting extinct at an alarming rate. and the urgent necessity for the survival of humanity and these laws reflects the grave situation emerging from the long history of insensitiveness to the enormity of the risks to the mankind that go with the deterioration of environment.

Water (Prevention and Control of Pollution), 1974

This is the first Act which comprehensively deal with the environment issue and it prohibits the discharge of the pollutants into the water bodies beyond the given standard and it laid down the penalties  for the non-compliance. To maintain or restore the wholesomeness of water and to prevent, control and abate water pollution. The main objectives of this statute is to provide the clean water to every citizen. Section 2 of this Act defines pollution which means the contamination of water, alteration of physical, chemical or biological properties of water, discharge  of sewage or trade effluents and to create any nuisance in the water. This Act also empowers the Central and state government for the constitution of Central Pollution Board and state pollution Board. 

Susetha V. State of Tamil Nadu[10],

In this case Supreme Court laid down that the State is under a constitutional obligation under Article 48 for the protection of the natural water bodies and it is the duty of the state to restore the water bodies and to protect the natural lakes, rivers, wetlands, marshland.

In the case of M.C Mehta Vs. Union of India[11] popularly known as the Ganga Pollution case. This case not only focus on the rights of people, compensation and loses but it also highlighted and focused on the environment issue and it highlighted that development is necessary and at the same time environment protection is necessary.

Man’s progress is frequently regarded as occurring at the expense of the environment. Everything, from the inappropriate disposal of non-biodegradable objects to major industrial discharges, has an impact on the environment, which is essential for human survival. The Ganga, India’s most sacred river, has suddenly become a dumping ground for massive volumes of residential and industrial trash. The lawsuit concerns the dumping of hazardous industrial effluents into a river. 

Air (Prevention and Control Of Pollution), 1981 

This Act provides for the prevention, control and abetment of air pollution and it laid down the establishment of Board to carry out the abovementioned purpose. It carry on and assign to such board powers and the functions relating to the prevention, control and abatement of the air pollution and its main objective for the maintain the quality of air and to deal with the counter associated with the problem associated with the air pollution, ambient air quality were established. This Act main focus to combat the air pollution polluting the fuels and substances and by regulating appliances which gives air pollution. This act gives the power the power to the Central and the State government to establish the Central and State pollution board. 

In the case of M.C Mehta Vs. Union of India, court observed that various industries which is located near Taj Mahal. This industry emitted the sulphur dioxide from coal/ coke was causing acid rain which had a corroding effect on the gleaming white marble of the Taj Mahal. Court ordered to close down the industries or switch to using gas. 

The Forest (Conservation) Act, 1980

Forest is derived from the Latin word "foris" which means "outside" probably which is outside the dwelling house. Forest are the major natural resources and it recognized as guardians and protector of the wildlife of the country. Forest are important not for the flora and fauna but also for the minerals, watersheds and also the recreational resources and for their scenic beauty. Therefore the management of forest  is an essential aspects for the protection of the environment. This legislation is landmark in the protection of forests.

 Protection of forest is necessary because deforestation causes the ecological imbalance and leads to environment deterioration. The main reason for the deforestation of forest is the increase rate of deforestation is going in our country.  Objective of this legislation is to provide for the conservation of forests and for matter incidental therein. This Act consist of only five sections which proved very effective and successful in the conservation of forest.  

Environment Protection Act, 1986

Environment Protection Act was passed  to fulfill the constitutional obligation under Article 48A.  It is an umbrella legislation which designed to provide a framework for the coordination of Central and State authorities under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1974. This Act empower the Central government to take the necessary measures for the protection and improvement of the quality of environment by establishing the standards for the emission and discharge and it also regulated the location of the industries, management of hazardous industries waste and protection of public health and welfare. This Act cover the uncovered gaps in the areas of major environment hazards such as Bhopal Gas Tragedy in 1984 as the existing laws generally focused on the specific types of pollution or on specific categories of hazardous substances and some major areas of environment which are not covered under the previous legislations.

In the case of M.C Mehta V. Union of India[12], the Supreme Court held that the directions given by the Environment Pollution (Prevention and Control) authority which is constituted under Section 3 of the Environment protection Act are final and binding on all person and organization.

Environment protection Act is a very important legislation and it cover all kinds of pollutions which also includes the noise pollution. It also laid down the deterrent punishment who danger human environment, safety and health. 

Environment Impact Assessment

EIA is the process of identifying, predicting, evaluating and mitigating the biophysical, social and other relevant effects of development proposals prior to major decisions being taken and commitments made. It is a precautionary step taken for the protection of environment to do assessment to ensure that any decision making will not affect the environment. EIA takes into consideration the adverse effects on human beings, vegetation cover, animal kingdom, air, water, land and property.

India also adopted EIA and one of the reason to adopt this model was Bhopal Gas Tragedy which is known as the world worst disaster. This incident highlight that preventive laws and regulations should be taken for the protection environment rather than curative ones.

In 1997, amendment made under this model and we add "public hearing" as a part of EIA . It is necessary to give one month prior notice to the resident of that area where project will start.  Environment clearance Regulation 2006 issue in the supersession of the notification dated 27 January 1994 relating to EIA.

In the case of Orissa Mining Corpn Ltd. V. Ministry of Environment & Forest[13], the supreme court made it clear that there stage wise grant of clearance to ensure the Compliance with environment safeguards and there can be rejection of final clearance due to the non-compliance of the conditions imposed in preliminary clearance stage. An opportunity must be provided for the compliance of the precondition for grant of final clearance. It is state that while granting final clearance, the social, political, cultural and religious rights of the tribal people including right to worship must be taken into account and must be safeguarded.

National Green Tribunal Act, 2010 

In the case of M.C Mehta Vs. Union of India[14] observed that "environment courts" must be established for the expeditious disposal of the environment cases.  Establishment of the separate courts for the environment matter is reiterated again and again. National Environment Tribunal Act, 1995 and the National Environment Appellate Authority Act, 1997 passed by the parliament but these acts not much effective. Greater demand is increasing for the effective legislation which effectively deal  with environment cases. As a result of which National Green Tribunal Act, 2010 was enacted to deal all the cases which is relating to the environment. 

The main objective of this Act was the effective and expeditious disposal of cases relating to the environment protection and conservation of forest and other natural resources including the enforcement of other legal rights relating to environment and provides relief by giving compensation for damages to persons and property and any matter connected therein. NGT is created with an aim to industrial pollution and allow the aggrieved persons to approach the tribunal for claiming the civil damages for non-implementation of environmental laws.

The Act has also laid down the punishment for not abiding by the rules and regulation of award/order/decision with a imprisonment of a term which may me extend to 3 years, or with fine which may extend to 10 Crore or both  and in case the failure or contravention continues, with the additional fine of Rs.25000 for everyday on failure to pay the fine.

Conclusion

After the independence, lot of development and economic activities is carried by the state for the development of the state. Our main focus is to developed the country infrastructure, means of transport and industrialization. Problem like poverty, population is prevalent in the society and State is making efforts to reduce it to the maximum level and over a period of time we realized that these activities are threatening our survival on the earth. Environment is degrading due to the human activity and it is one of the reason various laws are drafted for the protection of environment. Law is the regulator of various human activities. In India, concern for environment protection become the fundamental law of the land and we made amendments after the participation in the Stockholm Conference. It is the dire need of time that we need to made development which is environmentally friendly. Principles like sustainable development and precautionary principle should be implement properly for the protection of environment. laws and sanction for the violation of environment laws should be implemented properly.

Reference

[1] (1996) 5 SCC 281

[2] (2002) 1 SCC 66

[3] Legislation for giving effect to international agreements. Notwithstanding anything in the foregoing provisions of this chapter, parliament has power to make any law for the whole of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

[4] Concurrent List consist of 47 items on which parliament and state legislatures both can make laws. But if both laws inconsistent, the laws passed by parliament will prevail.

[5] 48A. Protection and improvement of environment and safeguarding of forests and wild life The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

[6] to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

[7] A.I.R 1987

[8] A.I.R1988

[9] A.I.R 1989 S.C

[10] (2006) 6 SCC 543

[11] 1988 AIR 1115, 1988 SCR (2) 530

[12] (2002) 4 SCC 356

[13] (2013) 6 SCC 476

[14] (1987) 1 SCC 395