LAW AND ENVIRONMENT

WITH SPECIAL REFERENCE TO INDIAN ENVIRONMENTAL JURISPRUDENCE

As I sat down to pen down an article on an issue of environmental relevance, there was a flood of memories which took me back to my childhood days, the lions share of which was spent in a picturesque village in Kerala, the Gods own country, as it is affably called. Growing up in an abode embraced by greenery had given me some beautiful memories which I would cherish all through my life. With the elapse of time and advancement in technology, there seemed to have been a shift in peoples attitude towards their environment which is undeniably the very essence of their sustenance. No longer does they care for their surroundings nor does they feel ashamed of polluting their environment. This has resulted in the severe environmental degradation and the aftermath is less trees, more buildings scenario. In the light of this scenario where destruction of environment is deemed to be a sine qua non for industrial advancement, the moot question arises as to what the state does to alleviate environmental destruction. It brings into foray the pertinent issue of the effectiveness of environmental laws in containing the large scale adverse impacts on environmental stability. Environmental law is a complex and interlocking body of treaties, conventions, statutes, regulations, and common law that operates to regulate the interaction of humanity and the natural environment, toward the purpose of reducing the impacts of human activity. Environmental law draws from and is influenced by principles of environmentalism, including ecology, conservation, stewardship, responsibility and sustainability. Pollution control laws generally are intended (often with varying degrees of emphasis) to protect and preserve both the natural environment and human health. Resource conservation and management laws generally balance (again, often with varying degrees of emphasis) the benefits of preservation and economic exploitation of resources. From an economic perspective environmental laws may be understood as concerned with the prevention of present and future externalities, and preservation of common resources from individual exhaustion. The limitations and expenses that such laws may impose on commerce, and the often unquantifiable (non-monetized) benefit of environmental protection, have generated and continue to generate significant controversy. Pollution does not respect political boundaries, making international law an important aspect of environmental law. Numerous legally binding international agreements now encompass a wide

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variety of issue-areas, from terrestrial, marine and atmospheric pollution through to wildlife and biodiversity protection. While the bodies that proposed, argued, agreed upon and ultimately adopted existing international agreements vary according to each agreement, certain conferences, including 1972's United Nations Conference on the Human Environment, 1983's World Commission on Environment and Development, 1992's United Nations Conference on Environment and Development and 2002's World Summit on Sustainable Development have been particularly important. Given the broad scope of environmental law, no fully definitive list of environmental laws is possible. The following discussion and resources give an indication of the breadth of law that falls within the "environmental" metric.

SOURCES OF ENVIRONMENTAL LAW Treaties International environmental agreements are generally multilateral (or sometimes bilateral) treaties (a.k.a. convention, agreement, protocol, etc.). The majority of such conventions deal directly with specific environmental issues. There are also some general treaties with one or two clauses referring to environmental issues but these are rarer. There are about 1000 environmental law treaties in existence today; no other area of law has generated such a large body of conventions on a specific topic. Protocols Protocols are subsidiary agreements built from a primary treaty. They exist in many areas of international law but are especially useful in the environmental field, where they may be used to regularly incorporate recent scientific knowledge. They also permit countries to reach agreement on a framework that would be contentious if every detail were to be agreed upon in advance. The

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most widely known protocol in international environmental law is the Kyoto Protocol, which followed from the United Nations Framework Convention on Climate Change. Customary international law Customary international law is an important source of international environmental law. These are the norms and rules that countries follow as a matter of custom and they are so prevalent that they bind all states in the world. When a principle becomes customary law is not clear cut and many arguments are put forward by states not wishing to be bound. Examples of customary international law relevant to the environment include the duty to warn other states promptly about icons of an environmental nature and environmental damages to which another state or states may be exposed, and Principle 21 of the Stockholm Declaration ('good neighbourliness' or sic utere). Judicial decisions International environmental law also includes the opinions of international courts and tribunals. While there are few and they have limited authority, the decisions carry much weight with legal commentators and are quite influential on the development of international environmental law. One of the biggest challenges in international decisions is to determine an adequate compensation for environmental damages. The courts include: the International Court of Justice (ICJ); the international Tribunal for the Law of the Sea (ITLOS); the European Court of Justice; European Court of Human Rights[2] and other regional treaty tribunals. Arguably the Organizations Dispute Settlement Board (DSB) is getting a say on environmental law also.

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Important cases include the Trail smelter arbitration 1,Nuclear weapons testing cases, such as between New Zealand and France before the International Court of Justice, GabcikovoNagymaros Dam Case2.

Administration and enforcement The United Nations Environment Programme (UNEP) is an international organization that coordinates United Nations environmental activities, assisting developing countries in implementing environmentally sound policies and practices. Its activities cover a wide range of issues regarding the atmosphere, marine and terrestrial ecosystems, environmental governance and green economy. It has played a significant role in developing international environmental conventions, promoting environmental science and information and illustrating the way those can be implemented in conjunction with policy, working on the development and implementation of policy with national governments, regional institutions in conjunction with environmental Non-Governmental Organizations (NGOs). UNEP has also been active in funding and implementing environment related development projects. The World Meteorological Organization and UNEP established the Intergovernmental Panel on Climate Change (IPCC) in 1988. UNEP is also one of several Implementing Agencies for the Global Environment Facility (GEF) and the Multilateral Fund for the Implementation of the Montreal Protocol, and it is also a member of the United Nations Development Group. The International Cyanide Management Code, a program of best practice for the chemicals use at gold mining operations, was developed under UNEPs aegis.

ENVIRONMENTAL JURISPRUDENCE IN INDIA: AN OVERVIEW

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33 AJIL (1939) ICJ Rep (1997)

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In the Constitution of India it is clearly stated that it is the duty of the state to protect and improve the environment and to safeguard the forests and wildlife of the country3. It imposes a duty on every citizen to protect and improve the natural environment including forests, lakes, rivers, and wildlife4.The Department of Environment was established in India in 1980 to ensure a healthy environment for the country. This later became the Ministry of Environment and Forests in 1985. The constitutional provisions are backed by a number of laws acts, rules, and notifications. The EPA (Environment Protection Act), 1986 came into force soon after the Bhopal Gas Tragedy and is considered an umbrella legislation as it fills many gaps in the existing laws. Thereafter a large number of laws came into existence as the problems began arising, for example, Handling and Management of Hazardous Waste Rules in 1989. A brief description of the important legislative mechanisms which are employed to further the cause of environmental jurisprudence in India is welcome at this moment. The Environment (Protection) Act, 1986 authorizes the central government to protect and improve environmental quality, control and reduce pollution from all sources, and prohibit or restrict the setting and /or operation of any industrial facility on environmental grounds. The Environment (Protection) Rules, 1986 lay down procedures for setting standards of emission or discharge of environmental pollutants. The objective of Hazardous Waste (Management and Handling) Rules, 1989 is to control the generation, collection, treatment, import, storage, and handling of hazardous waste. The Manufacture, Storage, and Import of Hazardous Rules, 1989 define the terms used in this context, and sets up an authority to inspect, once a year, the industrial activity connected with hazardous chemicals and isolated storage facilities. The Manufacture, Use, Import, Export, and Storage of hazardous Micro-organisms/ Genetically Engineered Organisms or Cells Rules were introduced in 1989 with a view to protect the environment, nature, and health, in connection with the application of gene technology and microorganisms. The Public Liability Insurance Act and Rules and Amendment, 1992 was drawn
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Art 48A, The Constitution of India Art 51(g), The Constitution of India

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up to provide for public liability insurance for the purpose of providing immediate relief to the persons affected by accident while handling any hazardous substance. The National Environmental Tribunal Act, 1995 has been created to award compensation for damages to persons, property, and the environment arising from any activity involving hazardous substances. The National Environment Appellate Authority Act 1997 has been created to hear appeals with respect to restrictions of areas in which classes of industries etc. are carried out or prescribed subject to certain safeguards under the EPA. The Biomedical waste (Management and Handling) Rules, 1998 is a legal binding on the health care institutions to streamline the process of proper handling of hospital waste such as segregation, disposal, collection, and treatment. The Environment (Siting for Industrial Projects) Rules, 1999 lay down detailed provisions relating to areas to be avoided for siting of industries, precautionary measures to be taken for site selecting as also the aspects of environmental protection which should have been incorporated during the implementation of the industrial development projects. The Municipal Solid Wastes (Management and Handling) Rules, 2000 apply to every municipal authority responsible for the collection, segregation, storage, transportation, processing, and disposal of municipal solid wastes. The Ozone Depleting Substances (Regulation and Control) 2000 Rules have been laid down for the regulation of production and consumption of ozone depleting substances. The Batteries (Management and Handling) Rules, 2001 rules shall apply to every manufacturer, importer, re-conditioner, assembler, dealer, auctioneer, consumer, and bulk consumer involved in the manufacture, processing, sale, purchase, and use of batteries or components so as to regulate and ensure the environmentally safe disposal of used batteries. The Noise Pollution (Regulation and Control) (Amendment) 2002 Rules lay down such terms and conditions as are necessary to reduce noise pollution, permit use of loud speakers or public address systems during night hours (between 10:00 p.m. to 12:00 midnight) on or during any cultural or religious festive occasion. The Biological Diversity Act 2002 is an act to provide for the conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits arising out of the use of biological resources and knowledge associated with it.

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Forest and wildlife Protection The Indian Forest Act and Amendment, 1984, is one of the many surviving colonial statutes. It was enacted to consolidate the law related to forest, the transit of forest produce, and the duty leviable on timber and other forest produce. The Wildlife Protection Act, Rules 1973 and Amendment 1991 provides for the protection of birds and animals and for all matters that are connected to it whether it be their habitat or the waterhole or the forests that sustain them. provides for the protection of and the conservation of the forests. Water The Easement Act, 1882 allows private rights to use a resource that is, groundwater, by viewing it as an attachment to the land. It also states that all surface water belongs to the state and is a state property. The Indian Fisheries Act, 1897 establishes two sets of penal offences whereby the government can sue any person who uses dynamite or other explosive substance in any way (whether coastal or inland) with intent to catch or destroy any fish or poisonous fish in order to kill. The River Boards Act, 1956 enables the states to enroll the central government in setting up an Advisory River Board to resolve issues in inter-state cooperation. The Merchant Shipping Act, 1970 aims to deal with waste arising from ships along the coastal areas within a specified radius. The Water (Prevention and Control of Pollution) Act 1974 establishes an institutional structure for preventing and abating water pollution. It establishes standards for water quality and effluent. Polluting industries must seek permission to discharge waste into effluent bodies. The CPCB (Central Pollution Control Board) was constituted under this act. The Water (Prevention and Control of Pollution) Cess Act 1977 provides for the levy and collection of cess or fees on water consuming industries and local authorities. The Water (Prevention and Control of Pollution) Cess Rules, 1978 contains the standard definitions and indicate the kind of and location of meters that every consumer of water is required to affix. The Coastal Regulation Zone Notification, 1991 puts regulations on various activities, including construction, are regulated. It gives some protection to the backwaters and estuaries.

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Air The Factories Act, 1948 and Amendment in 1987 was the first to express concern for the working environment of the workers. The amendment of 1987 has sharpened its environmental focus and expanded its application to hazardous processes. The Air (Prevention and Control of Pollution) Act, 1981 provides for the control and abatement of air pollution. It entrusts the power of enforcing this act to the CPCB. The Air (Prevention and Control of Pollution) Rules, 1982 defines the procedures of the meetings of the Boards and the powers entrusted to them. The Atomic Energy Act, 1982 deals with the radioactive waste. The Air (Prevention and Control of Pollution) Amendment Act, 1987 empowers the central and state pollution control boards to meet with grave emergencies of air pollution. The Motor Vehicles Act, 1988 states that all hazardous waste is to be properly packaged, labeled, and transported.

LANDMARK JUDGMENTS Municipal Council Ratlam v Vardhichand and ors. AIR 1980 SC 1622 The residents of a locality within the limits of Ratlam Municipality, tormented by stench and stink by open drains and public excretions by nearby slum dwellers moved the Sub-Divisional Magistrate under Sec. 133 CrPC to require the Municipality to construct drain pipes with the flow of water to wash the filth and stop the stench towards the members of the Public. The Municipality pleaded paucity of funds as the chief cause of disability to carry out its duties. The Magistrate gave directions to the Municipality to draft a plan within six months for removing nuisance. The High Court approved the order of the Magistrate, to which the Municipality further appealed to the Supreme Court. The issue was whether a Court can compel a statutory body to carry out its duties to the community by constructing sanitation facilities? The Supreme Court through J. Krishna Iyer, upheld the order of the High Court and directed the Municipality to take immediate action within its statutory powers to construct sufficient number of public latrines, provide water supply and scavenging services, to construct drains, cesspools and to

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provide basic amenities to he public. The Court also accepted the use of sec. 133 CrPC for removal of public nuisance. A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. M. C Mehta v State of Orissa AIR 1992 Ori 225 A writ petition was filed to protect the health of thousands of innocent people living in Cuttack and adjacent areas who were suffering from pollution from sewage being caused by the Municipal Committee Cuttack and the SCB Medical College Hospital, Cuttack. The main contention of the petitioner was that the dumping of untreated waste water of the hospital and some other parts of the city in the Taladanda canal was creating health problems in the city. The State, on the other hand contended that a central sewerage system had been installed in the hospital and that there is no sewage flow into the taladanda canal as alleged. Further, it was asserted that the State had not received any information relating to either pollution or of epidemic of water borne diseases caused by contamination of the canal. Also, the health department shrugged off the responsibility for supply of drinking water and passed the buck to the Municipality which refuted the contentions of carelessness and callousness. The Court reprimanded the authorities and directed the government to immediately act on the matter. Also, the court recommended setting up of a committee to take steps to prevent and control water pollution and to maintain wholesomeness of water meant for human consumption amongst other things. A responsible Municipal Council is constituted for the precise purpose of preserving public health. Provision of proper drainage system in working conditions cannot be avoided by pleading financial inability. Society for Protection of Silent Valley v Union of India [unreported [UP Nos 2949 and 3025 of 1979 of Kerala High Court] In the late 1970s, the silent valley project stirred up a hornet's nest in India's first major 'environment versus development' controversy. The proposed project, now abandoned, was to dam the Kuntipuzha river in Kerala's Palghat district. As it flows through the valley, the

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Kuntipuzha drops 857 meters, making the valley an attractive site for generation of electricity. Environmentalists, on the other hand, asserted that as home to one of the few remaining rain forest in the Western Ghats, the valley ought to remain pristine. They further contended that with over 900 species of flowering plants and ferns and several endangered species of animals and birds, Silent Valley was on of the world's richest biological and genetic heritages. He project was abandoned due to pressure exerted on Prime Minister Indira Gandhi, within the government and from international groups and governments. A writ petition was filed before the Kerala High Court seeking to prevent the state government from constructing a hydroelectric project in Silent valley. The petition stated that the necessary deforestation would affect climatic condition in the state and would interfere with the balance of nature. Dismissing the petition, the court held that consideration of the scientific, technical and ecological concerns was the job of the government and that it was not for the courts to evaluate these considerations again as the evaluation had already been done by the government. Indian Council for Enviro-Legal Action v Union of India AIR 1996 SC 1446 Bichhri is a small village in Udaipur District of Rajasthan. To its north is a major industrial establishment, Hindustan Zinc ltd., a public sector concern had established a chemical plant to produce Oleum. The real calamity occurred when a sister concern, Silver chemicals commenced production of 'H' acid in a plant located within the same complex. 'H' acid was meant for export exclusively. Its manufacture gives rise to enormous quantities of highly toxic effluents--in particular, iron based and gypsum based sludge--which if not properly treated, pose threat to Mother Earth. It poisons the earth, the water and everything that comes in contact with it. The water in the wells and streams has turned dark and dirty rendering it unfit for human consumption. It has become unfit for cattle to drink and for irrigating land/ the soil has become polluted rendering it unfit for cultivation, the mainstay of the villagers. It spread disease, death and disaster in the village. The villager rose in revolt leading to the imposition of sec. 144 CrPC by the District Magistrate in the area and the closure of the Silver Chemicals in Jan 1989. It is averred by the respondents that both the units, Sliver Chemicals and Jyoti Chemicals have

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stopped manufacturing 'H' acid since Jan. 1989 and are closed, yet the consequence of their action remain--the sludge, the long-lasting damage to earth, to underground water, to human being, to cattle and the village economy. It was with this contention that this writ petition was addressed. The Court held that the Company was absolutely liable for the environmental degradation caused by the production of 'H' acid. It was up to the company to pay for the pollution and redo the environmental damage and wrong caused by its industrial activity. Sec. 3 and 4 of the EPA, 1986 empowers the government to recovery cost of the pollution and sue the same for redoing the harm caused to the environment. Narmada Bachao v. Union of India AIR 2000 SC 3751 Narmada is the fifth largest river in India and largest west flowing river of the Indian Peninsila. Originating from the Maikala ranges at Amarkantak in Madhya Pradesh, it flows westward over a length of 1312 kms before draining into the Gulf of Cambay. The first 1077 km stretch is in Madhya Pradesh and the next 35 km stretch of the river forms the boundary between the State of Madhya Pradesh and Maharashtra. The next 30 kms forms the boundary between Maharashtra and Gujarat and the last stretch of 161 kms lies in Gujarat. Way back in 1946, the then government of the Central Provinces and Berar and the then government of Bombay requested the Central Waterways, Irrigation and Navigation Commission to take up investigation on the Narmada river system for basin wise development of the river with flood control, irrigation, power and extension of Navigation as the objectives in view. The Project was inaugurated by the then Prime Minister Shri. Jawaharlal Nehru on 5th April 1961. Thereafter due to certain difference of opinion between the riparian States, the matter was referred to a tribunal in 1968 constituted under the Inter-State Water Disputes Act, 1956. Based on the agreement between the Chief Ministers of 4 States [M.P, Maharashtra, Rajasthan and Gujarat] the tribunal declared is award on 16th August 1978. In order to meet the financial obligation, consultations started in 1978 with the World Bank for obtaining a loan. In May 1985 the loan was sanctioned, and in 1987 the Ministry of Environment and Forest accorded Environmental Clearance subject to certain conditions.

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Taking the cause of the oustees, those displaced by the acquisition of land and submergence of land to the building of the many dams across the river, in April 1994 the NBA filed a writ petition praying that the respondent should be restrained from proceeding with the construction of the dam.

The Supreme Court observed that the Sardar Sarovar Project would make a positive impact on the preservation of environment. The project has been long awaited by the people of Gujarat to whom water will be available to the drought prone and arid parts, this would help in effectively arresting ecological degradation which was returning the make these areas inhabitable due to salinity ingress, advancement of desert, ground water depletion, fluoride and nitrite affected water and vanishing green cover. The ecology of water scarcity areas is under stress and transfer of Narmada water to these areas will lead to sustainable agriculture and spread of green cover. There will also be improvement of fodder availability, which will reduce pressure on biodiversity and vegetation. The SSP by generating clean eco-friendly hydropower will save the air pollution which would otherwise take place by thermal general power of similar capacity. The Court observed that poverty of the biggest threat to environment and unless people are provided with water and other development amenities, the environment will be exploited to a larger extent. Following the above analysis the Court thought it unfit to interfere with the construction of the dam, as its advantages over took its disadvantages. The construction of the dam was allowed subject to certain conditions. T. N Godavarman Thirumulpad v Union of India AIR 2000 SC 1636 Beginning December, 1996 the Supreme Court went one step ahead of the Maneka judgment [as to the Environment law], by issuing sweeping directions to oversee the enforcement of forest laws across the nation. Assisted by amicus curiae the court froze all wood based industrial activity, reinforced the scope of the embargo on forest exploitation, issued detailed directions for

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the sustainable use of forests and created its own monitoring and implementation machinery through regional and state level communities. The case has no parallel, even by the expansive standards of India's pro-active judiciary. As the court assumes the role of a super-administrator, regulating the felling, use and movement of timber across the country in the hope of preserving the nation's forest. The analysis is especially important in its impact in the North east region, where the wood based industries contribute substantially to the region's economy. The Court examined in detail all the aspect of the National Forest Policy, the Forest Conservation Act, 1980, which was enacted with a view to check further deforestation. The word 'forest' must be understood according to its dictionary meaning. This covers all statutorily recognized forest, whether designated as reserved protected or otherwise for the purpose of sec. 2(i) of the Forest Conservation Act. The term 'forest land' occurring in sec. 2, will not only include 'forest' as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. Environmental jurisprudence in India, is essentially the vision of the judges who had great insight and the requisite boldness to read beyond the statutes, if the situation demands so to deliver judgments which would help usher in new avenues of sustainable development. Yes friends, sustainable development is the keyword. It means a pattern of growth in which resource use aims to meet human needs while preserving the environment so that these needs can be met not only in the present, but also for generations to come. Precisely, sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. I would like to sign off praying that our grandchildren and their grandchildren would get to enjoy the blessings of our nature just as we do now. For that, an efficient environmental jurisprudence is indeed the key.