ENVIRONMENTAL LAW IN INDIA – PART I

In a three-part series of articles the author analyses the development of environmental law in India during different periods. The first part deals with the evolution and development of environmental jurisprudence during ancient and medieval periods and during British rule in India. The second part will throw light on the environmental legal framework since independence to date. The third part of the article will analyze the active role and contribution of the Judiciary in environmental protection.

Environmental protection is not a new concept to Indians. It has a 5000-year-old history and tradition. The efforts for environmental protection can be traced from early Indian history to the modern age.

India is a unique sub-continent with vast variations in a geographic area, topography, and climate. It has a great diversity of ecosystems from the cold and high Himalayan ranges to the sea coasts, from the wet north-eastern green forests to the dry north-western arid deserts. Different types of forests, wetlands, islands, estuaries, oceans, and plains endow the country with a rich blend of diversified natural settings. Natural and biological resources in the country being abundant, the kind of exploitation they have had to undergo throughout the ages has been tremendous leading to the degradation of the environment in multifarious ways. There have been efforts right from the beginning by the people of this great sub-continent to conserve and utilize natural resources in a sustainable way. Many customary and community norms were evolved by the society to protect the environment. An inquiry into the methods of environmental protection in India can be looked at under the following heads:

  1. Environmental protection during the ancient and medieval period
  2. Environmental protection during British rule
  3. Environmental protection in independent India

This article focuses on the legal regime for environmental protection during the ancient and medieval periods and during British rule.

Environmental protection during the ancient and medieval period

In the early days many religious and customary norms governed environmental conservation. The people gave utmost importance and reverence to every aspect of nature. They seemed to have understood the significance of the environment for the sustenance of life on earth. It was the dharma of each individual in the society to protect nature. The people worshipped the objects of nature. The trees, water, land, and animals gained importance in ancient time1. The five important elements of nature – air, water, land, fire, and space (Panchaboothas) – were divine incarnations to them. Natural resources management was given greater importance. Conservation of water bodies and protection of forests and wildlife were considered to be important aspects of governance by the rulers and local people.

Punishments were prescribed for causing injury to plants2. Govindaraja makes a distinction between injury to shade-giving plants, flower-bearing plants, and fruit-bearing plants3. Sacred groves were the inherent feature of the ecological heritage and tradition. They were kept undisturbed since time immemorial4. Evidences in Vedas, Kautilya’s Arthasasthra, etc., show how the environment was protected in those days and dynasty after dynasty, accorded top priority to environmental protection and sustainable use of its components. Kautilya fixed the punishment on the basis of the importance of the part of the tree5. Some of the important trees were even elevated to the position of God. Manu imposed a duty on mankind to protect forests6. The rivers also enjoy a high position in the life of the society7. The Ashoka Edicts, especially the 5th Pillar Edict, states how animals and birds were protected in those days8. The major drawback of this period was that India was not a single political entity and consisted of many empires, kingdoms, and small samasthanas. A result, the agenda for environmental protection was not uniform throughout the country and their priority for environmental conservation varied from time to time and ruler to ruler. The rural and tribal communities also evolved unique rules to be followed by the people. For instance, the customary laws prevailing in Arunachal Pradesh are very effective even today9. Though the customary and religious norms contributed tremendously to the conservation of the environment, the right spirit was lost somewhere in between and a number of superstitious and unsustainable rituals crept into the religious practices, which gravely affected the water bodies, flora, and fauna in due course. The emergence of statutory instruments has also diminished the value of customary and community norms.

In the medieval period, though there have been instances of the establishment of nature parks, gardens, and fruit orchards by the Mughal rulers around their palaces and banks of rivers, they did not have any definite policy to protect the forests or wildlife; rather they were merely considered to be a good source of revenue and pleasure.

Environmental protection during British rule

The advent of British rule significantly changed the perception of the environment in India. The early days of British rule marked large-scale plunder of natural resources from India. Forest resources were the major casualties. However, the British regime resorted to legalized exploitation in due course. In 1865, the first Indian Forest Act was passed by the Supreme Legislative Council in England, which paved the way for the exploitation of forest resources in a legitimate manner. In 1884, a Forest Policy was formulated by the British Government with the objectives of promoting the general well-being of the people and, preserving the climate and physical conditions of the country. The Indian Forest Act, 1927 was enacted to implement the Forest Policy (1884). The 1927 Act was passed with an objective to consolidate the existing laws relating to forests, the transit of forest produce, and the duty leviable on timber. This Act established reserved forests, protected forests, and village forests.

Another aspect of the British Rule is that it marked the establishment of industries in coastal and other parts of the country. In the process, many enactments were made by them to deal with air, water, and land pollution. The Shore Nuisance (Bombay and Colaba) Act 1853, the Oriental Gas Company Act 1857, the Indian Penal Code 1860, the Indian Easement Act 1867, the Indian Fisheries Act 1897, the Bengal Smoke Nuisance Act 1905, and the Bombay Smoke Nuisance Act 1912 are a few enactments.

The Indian Penal  Code  (IPC),  1860  in  Chapter 14 (Sections 268 to  291)  contains provisions relating to offenses affecting public nuisance, public health, safety, and convenience.  The Criminal Procedure Code (Sections 133 to 144) also deals with abatement of public nuisance. Both of these enactments are in force even today.

On wildlife conservation, the British regime made two significant steps. They were the Elephants Preservation Act 1879 enacted by the Madras Government and the Wild Birds and Animals Protection Act 1912.

The purpose of British rule in India was not to protect nature’s wealth and people’s interests in India. Hence, one cannot expect that they would make laws for the betterment of the country and environment. It is obvious that their laws furthered their own intention of getting the best out of available resources for their benefit. However, their initiatives in making laws on every aspect paved the way for the establishment of a formalized legal regime in the country and provided a platform for environmental jurisprudence in India.

Endnotes

  1. Jariwala, C.M., Changing Dimensions of Indian Environmental Law, in P. Leelakrishnan, et.al. (eds.), Law and Environment (1992), p.2.
  2. Manu VIII, p.282, as reported in Supra note 1.
  3. Govindaraja On Manu, p. 285 as reported in Supra note 1.
  4. Vartak, V.D., et.al. Sacred Groves – A Sanctuary for lofty trees and lianas in eco-development of West of Western Ghats, 1986, p.55.
  5. Kautilya, Arthasasthra, III, XIX, p. 197 as reported in Supra note 1.
  6. Max Mueller (ed.), The Sacred Books of the East, (1965), Vol. XIV, Part II, p. 389, as reported in Supra note 1.
  7. See History of Dharma Sasthras, Vol. I, p. 358 as reported in Supra note 1.
  8. Thapar, Ashoka and the Decline of the Mauryas (1973), p. 264.
  9. Pant, Ruchi, Customs and Conservation: Cases of Traditional and Modern Law in India and Nepal, Kalpavriksh, 2002.

to be continued……

Pushpa Kumar
CPREEC

Source: Eco News, Vol.9, No.1 (April – June), 2003.

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