ENVIRONMENTAL LAW IN INDIA – PART II-A

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

Environmental protection in independent India

The purpose of the independence movement was to release the people and country from the control of the British regime and to govern the country by our own people with our own laws. During the foreign rule, it was not only the people who suffered but also the environment, which had deteriorated in many ways.

After independence, the hitherto people and environment unfriendly laws and policies have been overhauled, modified, and repealed with new provisions in tune with the Constitution of India. The Constitution contained some provisions such as Articles 39 (b), 47, 48, and 49 which provided for the State’s responsibility to own and control the material resources of the community and distribute them to serve the common good, raise the level of nutrition, and standard of living of people and improve public health, promote agriculture and animal husbandry and protect every monument, etc., and declare them to be of national importance, respectively. Though these Articles provided an indirect and tangential reference to the environment, they do not prescribe a comprehensive national agenda to protect and conserve the environment in its totality. This prompted eminent jurists like Prof. Upendra Bakshi to state that the Constitution of India was “environmentally blind”.

Lawson atomic energy, explosives, insecticides, mines, wildlife protection (mainly state legislation), and land management were the initial initiatives made in India.

The year 1972 marked a watershed in the environmental conservation movement in India. On the eve of the United Nations Conference on Human Environment in 1972, popularly called the Stockholm Conference, the Pitamber Committee was set up to make a report on the state of the environment in India, and based on its recommendations, a National Committee on Environmental Planning and Coordination (NCEPC) was constituted by the Government of India in the Department of Science and Technology in order to plan and coordinate environmental programs and policies and advice various ministries on environmental protection. Later, this department was elevated to form an exclusive Ministry of Environment and Forests in 1985.

The first-ever global effort was made at Stockholm in 1972 to protect the environment at the international level. On behalf of India, Smt. Indira Gandhi, the then Prime Minister of India participated in the Stockholm Conference. She not only represented India but all the third world countries. She gave a new dimension to the problem by saying that it is not only the developmental activities but poverty, which is the greatest polluter. The Conference proclaimed that man had the fundamental right to freedom, equality, and adequate conditions of life, in an environment of a quality that presented a life of dignity and well-being.

The Stockholm Declaration mandated all the countries to approach environmental problems with new vigour by enacting fresh laws and policies in their countries. This became a starting point for many countries. Those who already had laws and policies fine-tuned their instruments to meet new demands.

India responded to the problem to a great extent and many new special legislations have been enacted besides upgrading the existing ones. The Constitution of India was amended in 1976 (42nd amendment) to incorporate two important provisions on the environment in the Constitution. Article 48-A was inserted into Part IV of the Constitution-making environmental protection a part of Directive Principles of State Policy. Article 48-A states that the State shall “strive to protect and improve the environment and to safeguard forests and wildlife”. Article 51-A(g) declared that it shall be the fundamental duty of every citizen of India “to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures”. This is a significant leap forward in environmental management in India. Article 48-A mandated the State to make new laws and policies for the protection of the environment. Taking a cue from the fundamental duty under Article 51-A (g), many Public Interest Litigations (PIL) were filed by the Indian citizenry to assert their environmental rights.

As far as environmental laws are concerned, they can be classified into two categories: laws dealing with pollution and laws pertaining to the conservation of nature such as forests and wildlife.

Pollution related laws

Among the laws dealing with pollution, the Water (Prevention and Control of Pollution) Act, 1974, the Water (Prevention and Control of Pollution) Cess Act 1977, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public Liability Insurance Act, 1991 the National Environment Tribunal Act, 1995 and the National Environmental Appellate Authority Act, 1997 require special mention. These are special enactments to deal with the problems posed by industrial activities.

to be continued……

L. Pushpa Kumar
CPREEC

Source: Eco News, Vol.9, No.2 (July – September), 2003.

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