SUSTAINABLE MANAGEMENT AND USE OF TERRESTRIAL

ECOSYSTEM

INTRODUCTION

In the first year of the present millennium, with the main aim of eradicating
poverty and fostering development, 189 countries agreed on the Millennium
Development Goals (MDGs) consisting of eight goals, 21 related targets,
measured by 60 official indicators.

Rio+20 called for developing a set of inclusive Sustainable Development

Goals (SDGs) drawing from the experiences of MDGs and integrating social,
economic and environmental aspects.2 Development cannot be sustainable
without considering its environmental dimensions and poverty eradication
cannot be achieved if ecosystem services and natural capital are degraded.3
The UN General Assembly’s Open Working Group (OWG) on Sustainable
Development Goals brought out a proposal incorporating 17 goals, 126 level 1
targets and 43 level 2 targets to be achieved by the year 2030.4 The post-
2015 development agenda of India in the context of SDG 15 should build on
all relevant existing international commitments, as MDGs, the Strategic Plan
for Biodiversity 2011-2020 and Aichi Biodiversity Targets of Convention on
Biological Diversity (CBD).

The MDG 7 had limited coverage of environmental sustainability issues, as

desertification and land degradation and did not address mountain
ecosystem, inland waters, grasslands, nor concentrated on drivers of
biodiversity loss. A broad perspective of multiple synergies and trade-offs with
other goal/targets is necessary. This paper presents an analysis of the
progress in achieving the relevant MDG 7 “Ensure Environmental
Sustainability” and an outline of the governance challenges and opportunities
for implementing SDG 15 in India.

India’s Progress and Gaps in Realising MDGs

Environmental objectives in the MDGs are reflected in MDG 7 and four

subsidiary targets of which Targets 7a and 7b are relevant in the context of
SDG 15.
Target 7a: Integrate the principles of sustainable development into country
policies and programmes and reverse the loss of environmental resources.

Target 7b: Reduce biodiversity loss, achieving, by 2010, a significant

reduction in the rate of loss.

Indicator 7.1 : Proportion of Land Area Covered by Forest

India has added around 3 million hectares (mha) of forest and tree cover over
the last decade.5 The forest cover of the country increased from 6,90,899 sq
km (21.02 per cent of the geographical area) in 2007 to 6,97, 898 sq km
(21.23 per cent) in 2013.6 In comparison to 2011 there is a total increase of
5,871 sq km of forest cover. The tree cover is estimated to be 91,266 sq km
(2.78 per cent of geographical area) and an increase of 278 million tonnes of
carbon stock of country was recorded with respect to 2011. The Indian Forest
Survey 2013 has attempted to demarcate forest cover within green wash area
(corresponding to recorded forest area) and outside green wash area. Out of
the total increase in 5,871sq km, 132 sq km is observed within green wash
area and 5,739 sq km outside green wash area.

Indicator 7.6: Ratio of Area Protected to Maintain Biological Diversity to

Surface Area

The country has been on track in increasing the protected area network for
maintaining ecological balance. From a Protected Area (PA) network of 54
national parks covering 21,003 sq km and 373

sanctuaries covering 88,649 sq km (total 1,09,652 sq km or 3.34 per cent of

the country’s geographical area) in 1988, the network has increased to 103
national parks, 531 wildlife sanctuaries, 66 conservation reserves and 26
community reserves in 2015 thus totalling to 1,60,499.31 sq km (4.88 per cent
of geographical area).8 In addition 9 biosphere reserves and 465 Important
Bird Areas (IBAs) have been identified in India. 40 per cent of these IBAs fall
outside the PA network and contain a range of habitats. Currently, there are
19 species recognised by the Alliance for Zero Extinction (AZE) in India,
affirming India’s commitment to zero extinction as outlined in Aichi Biodiversity
Target 12. A total of 141 community conservation areas covering an area of
1,57,046 hectares (ha) have been identified for conservation measures and
110 Medicinal Plants Conservation areas, each of an average size of 200 ha,
have been set up across 13 States of India.9 In addition the managed forests
under the State Forest Departments are also contributing towards biodiversity
conservation. Thus, India has over 20 per cent of the total geographical area
under effective biodiversity conservation, thereby exceeding the 17 per cent
figure envisaged in Aichi Target 11.10

Indicator 7.7: Proportion of Species Threatened with Extinction

The Red List Index, used to measure progress towards the Aichi Target 12
and the MDGs show that globally a substantial proportion of species are
declining overall in population and distribution. Terrestrial species declined by
39 per cent between 1970 and 2010. The Living Planet Index for freshwater
species shows an average decline of 76 per cent.11

India is known to have over 6.7 per cent of animal species that the world
holds and 3.7 per cent of the world’s threatened vascular plants are in India.
In India, 7.7 per cent of vascular plant species are under threat, while at
global level, 13.8 per cent vascular plants are in a similar position.13 Species-
specific projects (Project Tiger, Project Elephant and Project Snow Leopard)
are under implementation across the PAs as well as in areas outside the PA
network. Species recovery plans for 16 terrestrial and 7 marine species
(Dugong, four species of Sea turtle, Irrawaddy dolphin and Whale shark) are
being prepared. Periodic assessment and updating of species protected
under Wildlife Conservation Act of India is necessary (Table 1).

Table 1: Indian Fauna under IUCN Threat Categories

IUCN Red Number of species

List Category (n = 4681)

Extinct 1

Critically endangered 73

Endangered 198

Vulnerable 375

Near Threatened 322

Source: ENVIS Centre on Wildlife and Protected Areas

Integration of Sustainable Development into Country Policies and

Programmes

India has been part of several international agreements such as the Ramsar
Convention on Wetlands, Convention on International Trade in Endangered
Species of Fauna and Flora (CITES), CBD, etc. India has put in place various
statutory provisions for conservation of the country’s natural resources. These
include:

• The Indian Forest Act 1927

• The Wildlife Protection Act 1972

• The Water (Prevention and Control of Pollution) Act 1974

• The Forest (Conservation) Act 1980

• The Environment (Protection) Act 1986

• The Biological Diversity Act 2002

• The Scheduled Tribes and Other Traditional Forest Dwellers

(Recognition of Forest Rights) Act 2006

Green India Mission aims to increase forest and tree cover in 5 mha and
improve quality of forest cover in another 5 million hectares (mha) on a
landscape based approach.14 The National Afforestation Programme (NAP)
is a flagship scheme of India. India has also established six National Bureaus
dealing with genetic resources of plants, animals, insects, microorganisms,
fish and soil sciences. The twelfth five year plan (2012-2017) mooted a four-
pronged strategy of ‘growth, inclusion, carbon mitigation and local
environment benefits.15

Sustainable Development Goals: An Overview and Interlinkages

SDGs 12 through 15 focus on strategies for reversing the negative impacts of

economic development on ecosystems and the services they provide. SDG
12 (Targets 12.2, 12.8) focusses on reducing the pressure on resources
through promotion of sustainable consumption and production pattern. SDG
15 is linked to SDG 2 on food security (Targets 2.3, 2.4, 2.5), SDG 6 (Targets
6.3, 6.4,6.5,6.6) on water and sanitation, SDG 11 (Targets 11.4, 11.6, 11.7) on
sustainable cities and SDG 13 (13.1) on Climate Change. SDG 15 shows
clear linkages with other UN environmental agreements and incorporates 9
level 1 targets and 3 level two targets.

SDG 15 and National Context

Land Degradation

At the Rio+20 Conference, world leaders recognised that desertification, land

degradation and drought, were challenges affecting sustainable development.
In the last two centuries, humans have converted 70 per cent of the
grassland, 50 per cent of the savannah, 45 per cent of the temperate
deciduous forest, and 27 per cent of the tropical forest biome to agricultural
land.16 While the world’s drylands continue to be the most vulnerable and
threatened by desertification, land degradation and drought (DLDD), 78 per
cent of the total degraded land is located in terrestrial ecosystems other than
drylands.17 Globally the percentage of total land area that is already
degraded or being degraded has increased from 15 per cent in 1991 to 24 per
cent in 2008.

India has a total geographical area (TGA) of 328.2 mha with drylands
covering 228.3 mha (69.6 per cent of the total land area). Land is a natural
capital vital for food security, regulating hydrological regimes, nutrient
recycling and storing carbon, and other ecosystem services. The total area of
India undergoing the process of land degradation is 105.4 mha that is about
32 per cent of the total land. The major process of land degradation is soil
erosion (due to water and wind erosion), contributing to over 71 per cent of
the land degradation in the country. Water erosion, the most widespread form
of degradation, occurs widely in all agroclimatic zones. It has caused up to
33.56 mha (10.21 per cent of TGA) of land degradation. Wind erosion
dominant in the western region, leading to loss of topsoil and shifting of sand
dunes, has caused upto 17.56 mha of degradation (5.34 per cent of TGA).

Fragmentation

A considerable area of forests is under low fragmentation i.e 49.63 per cent of
TGA, 21.89 per cent under medium while 5.16 per cent is under high
fragmentation.20 Although India has improved its aggregate forest cover,
India’s forests have changed from multi-product and multi-layer to timber
oriented, affecting livelihood of forest-dependent communities.

Inland Fresh Water Ecosystems

India has about 7,57,060 wetlands with a total wetland area of 15.3 mha,
accounting for nearly 4.7 per cent of the TGA of the country. Out of this, area
under inland wetlands accounts for 69 per cent, coastal wetlands 27 per cent,
and other wetlands (smaller than 2.25 ha) 4 per cent.22 The Millennium
Ecosystem Assessment evaluates that the beneficial expansion of public
water supply for households and industry may result in a large increase in
wastewater loadings to freshwater ecosystems in many developing regions
during the 21st century.23 A holistic approach considering interlinkages
between the SDGs dealing with water resources (Targets 15.1 and 6.6) has to
be followed to achieve sustainability.

Desertification

In India degradation occurs in arid, semi ‐arid and dry sub ‐humid areas where
productivity is constrained by water availability, leading to desertification.
About 81. 45 mha is being subjected to desertification, i.e. 25 per cent of the
TGA of India is affected by desertification.24 About 69 per cent of the
country’s lands are drylands and degradation of these lands has severe
implications for the livelihood and food security of millions. Desertification
causes deterioration of the productivity of the fragile ecosystems, and
increases poverty. In this context India’s problem is not only sustainable land
management but also reversing declines in productivity by restoring and
regenerating land that is already degraded.

Mountain Ecosystem

The Rio conference, 1992 recognised the crucial role played by mountain
ecosystems by highlighting that the livelihood of about 10 per cent of the
world’s population depended directly on mountain resources such as water,
forests and agricultural products and minerals. In India mountain ecosystems
cover 18 per cent of the geographical area and are inhabited by 51 million
people. Mountain areas are vulnerable to environmental degradation
pressures placed by increasing population growth, tourism, infrastructure
development, mining, etc. The working group on Indian Mountain ecosystem
has recommended the following:

(a) Soil Conservation and managing the water resources for optimal
utilisation and development of horticulture, floriculture and other agricultural
usages.

(b) Strategy for disaster management in the States of mountain region.

(c) Nature conservation, involvement of community for management of

forests, medicinal and aromatic plants, promotion of organic farming.

(d) Governance and Institutional framework for Spatial Planning and

Sustainable Development.

Fair and Equitable Sharing of Benefits

The three pillars of CBD- conservation, sustainable use, fair and equitable
sharing of the benefits arising from the utilisation of genetic resources form
principal building blocks toward poverty eradication and sustainable
development. In India Biodiversity Act 2002 and Rules 2004 address the
issues relating to conservation of genetic resources and equitable sharing of
benefits arising out of it through a decentralised three tier system. During
2014-15 National Biodiversity Authority (NBA) granted approvals to 19
applications from foreign nationals seeking access to Bioresources for
research and commercial purposes and 14 applications for intellectual
property rights (IPRs). The first internationally recognised certificate of
compliance was issued by NBA on 1 October 2015, following a permit made
available to the Access and Benefit-Sharing (ABS) Clearing House by India.
The certificate serves as evidence of the decision by India to grant access to
ethno-medicinal knowledge of the Siddi community from Gujarat to a
researcher affiliated with the University of Kent in the United Kingdom.

Invasive Species

India has an estimated 18,000 plants, 30 mammals, 4 birds, 300 freshwater

fishes and 1100 arthropods that are invasive which is one of the major drivers
of biodiversity loss.
National and Local Level Planning and Poverty Reduction Strategies

At the local level, strengthening democratic institutions is necessary for

sustained management of natural resources. Women’s participation in local
institutions governing natural resources is critical for sustainable forest and
water management. Biodiversity Act 2002 promotes conservation and
sustainable utilisation of bioresources by a three tier system comprising
National Biodiversity Authority, State Biodiversity Boards and Biodiversity
Management Committees (BMC) at local level. The role of natural resources
in local livelihoods should be recognised as 200 million people are dependent
on forests for their livelihood in India.

Consistency with Existing Agreements and Implementation of SDGs

The success of SDGs implementation framework depends on aligning targets

with existing international agreements and SDGs can draw from what is
agreed by CBD. Over the last year several proposals for a monitoring
framework have been proposed which can be taken into consideration by
India in addition to the National Biodiversity Targets (NBTs). This section
analyses some of the complimentary targets and indicators.

SDG Targets and Aichi Targets

The Strategic Plan for Biodiversity 2011-2020 and its 20 Aichi Targets25
provide an agreed overarching framework for action on biodiversity and a
foundation for sustainable development. Among the Aichi Biodiversity Targets,
the following measurable targets are particularly pertinent for SDG 15:

Target 5: By 2020, at least halving deforestation and the loss of other natural
habitats.

Target 7: Sustainably managed areas under agriculture, aquaculture and

forestry.

Target 11: Protecting at least 17 per cent of land and 10 per cent of oceans
through protected areas.

Target 15: Restoring at least 15 per cent of degraded lands.

The UN Convention to Combat Desertification (UNCCD)

UNCCD is a legally binding international agreement linking environment and
development to sustainable land management, Parties adopted a 10-year
strategic plan for 2008-2018 with 4 main strategic objectives and indicators,
which are:

1) To improve the living condition of the people affected

 Proportion of people living below poverty line

 Decrease in number of people negatively impacted by process

of desertification/land degradation/drought

 Land cover status

2) To improve the condition of affected ecosystem

 Reduction in total area affected by desertification/ land

degradation/drought

 Increase in net primary productivity in affected areas

3) To generate global benefits through effective implementation of

UNCCFD

 Increase in carbon stock in affected areas

 Areas of forest, agriculture, aquaculture ecosystem under

sustainable management

4) To mobilise resources to support implementation of convention

 Increase in level and diversity of funding for combating

desertification/land degradation/ drought

 Development of policies and legal measures to address

desertification/land degradation/ drought

Sustainable Development and National Twelfth Plan

Sustainable development is a key agenda in National Twelfth Plan27 which

has identified deliverables consistent with SDG 15:

 Assess and remediate 12 identified contaminated sites with

potential for groundwater contamination by 2017.
  Clean 80 per cent of critically polluted stretches in rivers by 2017
and 100 per cent by 2020.

 • Greening 5 mha under Green India Mission including 1.5

million ha of degraded lands, afforestation and eco-restoration of
0.9 mha of ecologically sensitive areas.

 Technology-based monitoring of forest cover, biodiversity and

growing stock including change-monitoring on periodical basis
through dedicated satellite by 2017 and establishment of open
web-based National Forestry and Environmental Information
system for research and public accessibility by 2015.

 Engagement of Village Green Guards/Community

 Foresters for every Joint Forest Management (JFM) village by

2016.

 Establish forestry seed bank in forest circles and Model Nursery

in every district with information on public portal by 2014.

 20 per cent of veterinary professionals in the country will be

trained in treating wildlife.

 Integrated Ecotourism District Plans covering 10 per cent of all

potential Protected Areas (PAs) by 2017.

 Restore 0.1 mha of wetlands/inland lakes/water bodies by 2017.

 Mapping and preparation of biodiversity management plans for

deserts (both cold and arid), coastal areas, important coral
zones, wetlands, mangroves and so on to be completed by
2017.

SDGs and National Biodiversity Targets and Indicators

India has put in place an enabling legal mechanism under National

Biodiversity Authority and a monitoring framework, National Biodiversity
Targets28 with indicators for each of the targets. Synchronisation of NBTs with
SDG targets will contribute to development of a monitoring framework post
2015. India’s National Biodiversity Targets (NBTs) 2, 3, 4, 5, 6, 8, 9, 10, 12
and Aichi Targets 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 17, 19, 20 are
concomitant with SDG 15. This section attempts to draw the inter-linkages
between the SDG targets, Aichi Targets and NBTs and corresponding
indicators. Annex 1 depicts the national position.

An analysis of the National Biodiversity Targets and indicators in the

perspective of SDG 15 reveals that two of the SDG targets namely 15.4 and
15.7 and one of the level two targets 15.c are not specifically addressed.

Promoting integrated watershed development and alternative livelihood

opportunities, generating and strengthening knowledge about the ecology and
sustainable development of mountain ecosystems require a holistic approach.
A composite indicator for conservation of mountain ecosystem and trends in
poaching and illegal trade of protected species can be incorporated.

Challenges and Opportunities

India’s major challenges include pollution of its inland rivers and waters;
depleting fresh water sources and groundwater; land degradation,
desertification, fragmentation and biodiversity loss and unsustainable
utilisation of natural resources. Although India is reporting a marginal increase
in forest cover this increase can be attributed to the fact that there is no
distinction made between natural forests (usually mixed biodiverse) and
plantations (often monoculture).29 A periodic assessment of the loss of non-
forest ecosystems of biodiversity outside the PAs as also inviolate forest
areas is necessary.

India with about 2.4 per cent of world’s geographic area, supports 17 per cent
of world’s population and 18 per cent of global livestock population, faces
severe pressure on land. India had a poverty ratio of 29.5 per cent during
2011-201230 and 200 million people are dependent on forests for livelihood.
Forests also meet 30 per cent of fodder needs of the cattle population and 40
per cent of domestic fuel wood needs of the people. Achieving food security is
a crucial pillar of human development but can have severe negative impacts
on biodiversity through land-clearing, the introduction of non-native species,
excessive water use, habitat conversion, excessive use of chemical fertilisers
and pesticides, chemical run-off and soil and water contamination and
declining soil fertility associated with unsustainable production. Large scale
ecological losses occur due to soil erosion, soil alkalinity and salinity,
micronutrient deficiency, water logging and fast depletion and contamination
of ground water, principle cause being irrigation. With a global population
projected to reach 9 billion by 2050, ensuring food, water and energy security
will be the challenge before all governments.31 India is still home to a quarter
of all the undernourished population in the world.32 In India at the current
nutritional level, about 100 million tonne of additional food grains are needed
by year 2020 to achieve food security which will aggravate pressure on dry
land ecosystems leading to over exploitation of land and water resources. The
total contribution of irrigated agriculture to food grain production in terms of
area expansion and yield improvement is likely to be around 64 million tonnes
by 2020 leaving a shortfall of 36 million tones necessitating added productivity
from dry lands.33 The 2014 Global Harvest Initiative Report estimates that
India’s domestic production will only meet 59 per cent of the country’s food
demand by 2030 at the current growth rate of Total Factor Productivity
Growth.

In India 60.6 per cent of total land area is agricultural land , 35 per cent of the
area is sown under irrigation.34 Although agricultural land is constant for the
past several years, 60 per cent of the total area under cultivation is
substantially degraded. Most of this damage is in the form of loss of topsoil
and gradual deterioration of soil health and thus long-term productivity. While
agriculture expansion can contribute to terrestrial ecosytem decline,
integrated land use planning, agroecological methods and maintaining genetic
diversity of cultivated plants and their wild relatives can form part of the
solution.

Linkage of goals with specific and measurable indicators is a prerequisite for

monitoring and evaluation. Since the SDG 15 has inter-linkages with targets in
several other goals, fragmentation of issues at multi-departmental level is
inevitable which may lead to lack of coordination and wastage of resources.
The complexity of a system with a multitude of institutions and stakeholders
with diverse aims and competences has to be taken into account while
formulating the SDG framework for a diverse nation as India.

Free and open access to biodiversity data and interoperability mechanism

between scientific and research institutions and science policy interface has to
be developed. National Biodiversity Information Outlook (2012)35 advocated
a national information grid for biodiversity, to facilitate monitoring and
management of natural resources.

A key factor to ensure compliance is effective governance regimes at national

and local levels. Efforts to improve governance through strengthening
Panchayati Raj Institutions (PRIs) and developing interlinkages between
complementary institutions as BMC, JFM, etc., is indispensable.

Emerging demands for integrating information on environmental sustainability

and human well-being needs an understanding of what ecosystems provide in
terms of both market and non-market goods and services. UN Statistical
Commission has developed a system for environmental-economic accounting
which can be used as a framework for studying the impacts of the economy
on the environment and the contribution of the environment to the economy.

Table 2: Funding for Biodiversity Conservation, 2013-2014

Nature of funding Amount (in Rs. crores)

MoEF

Core 1564.34

Forestry and Wildlife 1195.83

Research and development 153.51

Conservation of natural resources 90.00

National coastal management

programme 125.00

Non-core 259.80

Total 1824.14
 States 5025.57

Peripheral funding (Biodiversity related

programmes of

2354.74

23 departments under 77 schemes)

9204.45 crores

Total

Source: India’s Fifth National Report to Convention on Biological Diversity,

2014.

It is estimated that a REDD+ (Reducing Emissions from Deforestation and

Forest Degradation) programme for India could capture more than 1 billion
tonnes of additional CO2 over the next 30 years and provide more than US$ 3
billion as carbon service incentives under REDD+. A national REDD+ strategy
needs to be implemented along with relevant Aichi Biodiversity Targets (5, 7,
11, 14, and 15) and National Biodiversity Targets (3, 5,6,14).

Financing Biodiversity

During COP12 it was reaffirmed to double total biodiversity-related

international financial resource flows to developing countries using average
annual biodiversity funding for the years 2006 -2010 as a baseline.
Governments also agreed to increase domestic financing for biodiversity and
identified a set of actions to allow the increased mobilisation of financial
resources from all sources.

The total budget allocated for Ministry of Environment, Forest and Climate
Change (MoEF) for the year 2013-2014 was Rs. 2430 crores out of which the
core funding for schemes relevant to biodiversity conservation was Rs.
1564.34 crores. Compared to 2010-2011 core funding has increased by 45
per cent. Allocation of funds by MoEF for forestry and wildlife has increased
by 50.7 per cent, research and development by 46.6 per cent, conservation of
natural resources has tripled and national coastal management programmes
have been reduced by 17.2 per cent when compared with 2010- 2011 levels
(figures of 2013-14 is presented in table 2). Government of India through 23
Ministries/Departments and 77 schemes is implementing schemes relevant to
biodiversity conservation

The highest allocation of funds is for NBT 6, NBT 1 and NBT 3 which are
complimentary to SDG 15 and specifically address rate of degradation,
fragmentation and loss of natural habitats. Of the combined allocations of all
related ministries including MoEF maximum funds are allocated towards NBT
3, and least for NBT 7, safeguarding genetic diversity of cultivated plants and
their wild relatives and NBT 4 management and identification of pathways of
invasive alien species. In this context, NBT 7 needs special attention as
maintaining genetic diversity within agricultural systems and adopting
biodiversity friendly farming practices can provide solution to the problem of
balancing food security and biodiversity conservation.

Conclusions

Experts are warning that the country may shortly reach a threshold where the
combination of poverty, poor resource management and climate change will
contribute to a significant, if not irreversible, increase in fragility. Healthy and
productive soils/lands, forests, oceans and fresh water ecosystems, and the
services they provide are critical for meeting this challenge. Protection of
terrestrial ecosystems can be achieved only by sustainable forest
management, conservation of inland waters, ecosystems, restoration of
degraded lands, biodiversity conservation, and sustainable use of natural
resources which is envisaged in SDG

15. India has attained much progress since and has achieved the MDG in
some sectors, but achieving sustainable development of its 1.27 billion people
requires well defined targets and indicators. Protection and sustainable use of
terrestrial ecosystem can be achieved only as part of an integrated agenda of
land use, food security, biodiversity conservation, that also provides for
access to drinking water, sanitation and renewable energy while mitigating
climate change. People are at the centre of sustainable development and
ultimately the effectiveness of implementing SDGs depends on how well they
are integrated into a decentralised governance framework.

Endnotes

1. Official List of MDG Indicators, available at: http://mdgs. un.org/

2. “Future We Want – Outcome Document”, Resolution adopted by

General Assembly, Rio+20, A/RES/66/288. Available at:
https://sustainabledevelopment.un.org/futurewewant.html

3. Millennium Ecosystem Assessment. 2005. Ecosystems and Human

Well-Being: Synthesis. Island Press, Washington,

4. DC. Available at: http://www.unep.org/maweb/documents/

document.356.aspx.pdf

5. Report of the Open Working Group of the General Assembly on

Sustainable Development Goals, A/68/970. Available at:
http://undocs.org/A/68/970

6. MoEF. 2010. “India’s Forests and REDD+.” Ministry of Environment

and Forests (MoEF), Government of India.

7. FSI. 2013. India State of Forest Report 2013. Forest Survey of India
(FSI), MoEF, Government of India.

8. ibid.

9. Protected Areas of India, ENVIS Centre on Wildlife and Protected

Areas. Available at: http://wiienvis.nic.in/

10. MoEF. 2014. India’s Fifth National Report to the Convention on

Biological Diversity 2014. Ministry of Environment and Forests (MoEF),
Government of India.

11. ibid.

12. WWF. 2014. Living Planet Report 2014. Available at: www.
wwf.panda.org

13. ibid 8.
14. MoSPI. 2011. Compendium of Environmental Statistics India, 2014.
Ministry of Statistics and Programme Implementation,

15. Central Statistical Office (MoSPI), Social Statistics Division,

Government of India. Available at: http://mospi.nic.in/Mospi_
New/upload/compendium_2014_16feb15.htm

16. MoSPI. 2011. Millennium Development Goals India Country Report

2011.Central Statistical Organization, Ministry of Statistics and
Programme Implementation (MoSPI), Government of India. Available
at: http://mospi.nic.in/ mospi_new/upload/mdg_2011_24apr12.pdf

17. Planning Commission, Government of India.2013. Twelfth Five Year

Plan (2012-2017): Faster, More inclusive and Sustainable Growth.
Planning Commission, Government of India.

18. FAO. 2011. The State of the World’s Land and Water Resources for
Food and Agriculture Managing Systems at Risk. Food and Agriculture
Organisation of the United Nations (FAO), Rome and Earthscan,
London.

19. Bai, Z.G., Dent, D.L., Olsson, L., Schaepman, M.E. 2008. Global
Assessment of Land Degradation and Improvement, 1. Identification by
Remote Sensing, Report 2008/01, ISRIC World Soil Information,
Wageningen.

20. ISRO. 2007. Desertification and Land Degradation Atlas of India.

Space Application Centre, India Space Research Organisation (ISRO),
Ahmedabad, Government of India.

21. Available at: www.moef.nic.in/sites/default/files/desert_atlas. pdf

22. ibid.

23. MoEF. 2012. “Elucidation of Fifth National Report.” Submitted to

UNCCD Secretariat, MoEF, Government of India.

24. MoEF. 2011. National Wetland Atlas. MoEF, Government of India.

25. Millennium Ecosystem Assessment. 2005. Global Assessment Reports,

http://www.unep.org/ma.web/ng/Global
26. SRO. 2007. Desertification and Land Degradation Atlas of India. Space
Application Centre, India Space Research Organisation (ISRO),
Ahmedabad, Government of India. Available at:
www.moef.nic.in/sites/default/files/desert_atlas.

27. Quick guide to Aichi Biodiversity Targets, 2013. Convention on

Biological Diversity. Available at: https://www.cbd.int/nbsap/
training/quick-guides

28. ibid 21.

29. ibid 15.

30. ibid 9.

31. Kothari, Ashish. 2013. “Development and Ecological sustainability in

India Possibilities for Post-2015 Framework.” Oxfam India Working
Papers OIWPS – XVI.

32. Planning Commission, Government of India. 2014. Report of the Expert

Group to Review the Methodology for Measurement of Poverty.

33. IUCN. 2013. IUCN Views on the Post-2015 Agenda and SDGs.
https://cmsdata.iucn.org/

34. FAO. 2014. The State of Food Insecurity in the World. UN.

35. UNIndia. 2015. India and the MDG’s - Towards a Sustainable Future for
All. UN February 2015. Available at: www.in.one.
un.org/img/uploads/India_and_the_MDGs.pdf

36. Oza, A. 2007. Irrigation and Water Resources. India Infrastructure

Report.

37. NBA. 2012. National Biodiversity Information Outlook. (Editors:

Vishwas Chavan, Jitendra Gaikwad and Vinod B. Mathur), National
Biodiversity Authority, Chennai. Available at:
http://nbaindia.org/uploaded/pdf/Final%20NBIO_9%20 Oct
%202012_1.pdf
Environmental Laws The Indian Scenario

Abstract of the Study

In this project all efforts have been made to trace the history of environmental
laws in India focusing on the influences of international environment laws on
the domestic laws and court judgments along with a restatement of important
environmental laws of India along with real time scenarios where our laws
proved ineffective (lenient) when compared to other international laws. The
paper also looks into landmark judgments on environmental issues and the
many loopholes in the laws and the law making process.

INTRODUCTION

What constitutes an environmental law?

Environmental law means the laws that regulate the impact of human
activities on the environment. Environmental law covers a broad range of
activities that affect air, water, land, flora or fauna. It includes laws that relate
to:

 Protection of animals and plants

 Planning for the use and development of land

 Mining, exploration and extractive industries

 Forestry

 Pollution

 Fisheries

 Land and fire management

 Agriculture and farming

 Waste management

 Climate change and emissions

 Water resource management (lakes, wetlands, rivers and

oceans)

 Chemicals and pesticides

  Weeds and invasive species

 Marine life

 Conservation of natural and cultural heritage

The general functions of most environmental laws are to:

 Set offences and penalties for causing harm to the environment

which is not authorized

 Assess, control or stop certain activities (such as land use and

development) before they are carried out

 Set policies and standards for how activities will be controlled

and how environmental decisions and approvals will be made

 Enable members of the public to take part in environmental

decision-making

 Create regulatory structures for environmental management,

such as regulatory agencies (e.g. the Department of Lands,
Planning and Environment)

 Create specialist courts and tribunals (e.g. the Lands, Planning

and Mining Tribunal)

The Indian Story

Since the Stockholm Conference in 1972 India has been a major player in
the world of international environmental issues and debates. Currently it
has been the ring leader of a group of nations which played an important
role in defining the Rio+20 Conference in Brazil in June, 2012. With such
an international presence, it is only fair that a country have environmental
jurisprudence of some depth. India has built such jurisprudence over the
last forty years and still has a lot more to build upon.

Yet it is a misconception that India’s torrid love affair with the

environment only began in 1972, around the Stockholm Conference. With
reference to the Hindu philosophy it is observed that environmental issues
were given a holistic approach towards solving them. Though medieval
India saw some disinterest towards the environment but independent India
 took over the lax British laws and has tried to make them as successful as
it can be. Yet the highest judiciary of the country has been part of the
success story with its landmark judgments which many have tried to
uphold the stringent measures of the laws that the legislature has passed
over the years.

Now moving on to the ancient India and its relationship with the well-being
of its own environment.

HISTORY OF ENVIRONMENTAL LAWS IN INDIA

India has had a colorful history. With each phase of colonization, either by the
Aryans in one of the earliest civilizations of the world- The Harappa and
Mohenjo-Daro civilization, to the occupation of the country by the Mughals
from Central Asia and finally the three hundred year old domination by
England, Environmental Laws have kept pace with each phase according to
the administrative desires of the occupants.

1. Ancient India

The Indian Vedic period recognizes five natural elements that is water, earth,
food-grains, sun, air and sky as panchmahabhut for worship. Since the Vedic
period, Earth and Rivers are worshipped as mothers.

Mata Bhumi Putaro Aham Prithvaiya

Ancient Hindu texts have specific teaching on environmental issues.

 “Do not cut trees, because they remove pollution.” (Rig Veda,
6:48:17)

 “Do not disturb the sky and do not pollute the atmosphere.”
(Yajur Veda,5:43)

 Destruction of forests is taken as destruction of the state,

and reforestation an act of rebuilding the state and
advancing its welfare. Protection of animals is considered a
sacred duty. (Charak Samhita)
  “Resources are given to mankind for their living. Knowledge
(Isha) of using them is necessary.” The first stanza of Isha
Upanishad

Instances from ancient history as proof of existence of concern over

environment

 Concept of Sarva Bhuta Hita (enhancing the common good

of all beings )falling under the aegis of Dharma which was
widely practiced.

 Kautilya in his greatest production, Arthsastra the foundation

of legal philosophy wrote about punishments for abusing
environment. Some excerpts are provided below

“The punishment of one eight Panna should be awarded to those who

throw dust on the road. For muddy water one fourth Panna, if both are
thrown then the punishment has to be doubled”. (Arthasasthra, 2.145)

 One among the seven Pillar edicts issued by the great King
Asoka of India states

"Twenty-six years after my coronation various animals were declared to

be protected -- parrots, mainas, ruddy geese, wild ducks, bats, queen
ants, terrapins, boneless fish, fish, tortoises, porcupines, squirrels, deer,
bulls, wild asses, wild pigeons, domestic pigeons and all four-footed
creatures that are neither useful nor edible”.

Hindu philosophy saw Nature as a sustainer of humanity, and harnessing it

should be governed by principles of need and reverence. In essence, nature
was as an asset is to be held in a trust. This is in turn is how the global
concept of sustainable development is seen today.

2.Medieval India

 Marked by the emergence of the Islamic rule of the Mughals.

 Islam sought harmony between man and the nature.

 Infrastructure was given prominence like lavish architectural

heritage, great gardens, orchards, and parks.
  Rules regarding regulated hunting were in prominence.

 People lived in such a way as not to destabilize the eco-

system.

 Forest conservation was deeply affected because of non-

regulation of forest land.

3. British India

After the period of medieval India the British colonized India for the next 300
years and plundered the natural resources in the country with profit motive as
the sole mechanism behind the exploitation. Though environmental laws were
passed, they were myopic with limited territorial reach and with no teeth
because the law which existed to prosecute the exploiters was made by the
exploiters themselves.

Forests were also cleared to fuel the demand of timber for the British Navy
and the expansion of the railway network in the country.

Some of the important environmental legislations passed by the British were:

1. The Shore Nuisance (Bombay and Kolaba) Act, 1853

2. The Orient Gas Company Act, 1857

3. The Indian Fisheries Act, 1897

4. The Indian Ports Act, 1901

5. The Bengal Smoke Nuisance Act, 1905

6. The Explosives Act, 1908

7. The Indian Ports Act, 1908

8. The Bombay Smoke Nuisance Act, 1912

9. The Indian Steam Vessels Act, 1917

10. The Indian Forest Act, 1927

In the end, the British hardly helped save the environment of India, but they
did leave behind a text of environmental laws which had no teeth. After India
achieved independence, these laws were suitably amended and then put into
greater force.
THE CONSTITUTION OF INDIA AND THE ENVIRONMENT

The Constitution of India being the longest written document in the world
containing 395 articles in 22 parts, 12 schedules and 115 amendments is
considered the supreme law of the land in India. The Constitution puts in
writing the fundamental political principles, defining the structure of
governance, laying down the procedures, powers and duties of the
government and its officials.

The Constitution of India has a few particular provisions with regards to

environment. The 42nd Amendment of the Constitution took place four years
after the Stockholm Conference, 1972.

This amendment incorporated two significant Articles to protect the

environment.

 Art. 48-A: "The state shall endeavor to protect and improve

the environment and to safeguard the forests and wild life of
the country".

 Art. 51- A (g): It shall be a duty of every citizen India..........

"to protect and improve the environment including forests,
lakes and wild life and to have compassion for living
creatures".

Three lists have been drawn up under Article 246 giving exclusive legislative
powers to the Union and state in the Seventh Schedule of the Constitution of
India. The Union list empowers the Central Government, the State list gives
powers to the States and the Concurrent list lists items on which both the
Union and States can make laws, though laws made by the Union supersede
the one made by the States.

 Union List- Fisheries beyond territorial waters, regulation

and development of interstate rivers and river valleys

 State List- Land, Water (storage, drainage and

embankment, water power, canals and irrigation, water
supplies)

 Concurrent List- Forest, Wildlife, Boilers

A SURVEY OF ENVIRONMENTAL LAWS IN INDIA

Environmental laws, post-independence, started growing its roots in India in

the early 70’s. Inspired by the Stockholm conference, and the fact that India
was represented by its head of state, the only nation to do so, various laws
were passed. Among them were

 The Wildlife (Protection) Act 1972

 The Water (Prevention and Control of Pollution) Act of 1974

 The Forest (Conservation) Act 1980

 The Air (Prevention and Control of Pollution) Act 1981

 The Environment (Protection) Act 1986

Since discussion on completed topics concerning history and evolution of the

Environmental Laws in India have been completed now a brief gist of
importance of some of the important policies (which I feel are) and acts
concerning environment are described below

The Wildlife (Protection) Act 1972

India is a land with a rich heritage of wild life and home to many big animals
and smaller species in large numbers. The Indian jungles are famous and
immortalized by Rudyard Kipling in his Mowgli books. To get a magnitude of
the wild life in India one has only to examine the numbers of these animals as
they existed throughout history. Reports indicate that the elephant population
number over 500,000 and the lion roamed all over India. The tiger population
was over 100,000. But indiscriminate poaching and hunting by Maharajahs
and their kin, depleted the wild life dangerously. The British who for a long
period ruled India were not concerned about Indian wild life and over the
years the Lion almost became extinct and the number of tigers dwindled
dangerously. There were also only 5 wild life parks available when India
became free in 1947.

The Wildlife (Protection) Act 1972

 First piece of legislation passed to protect the environment.

  Central Act of Parliament providing for the protection of wild
animals, birds and plants and for ensuring the ecological and
environmental securities of the country.

 Extends to the whole of India except the state of Jammu and

Kashmir.

 The act also provides for the constitution of a State Board for
Wildlife to advise the state government in matters connected
with the protection of wildlife.

 It can be concluded that India thus had a set of laws which could
counter any environment issue but as is typical fell short due to
huge expanse of the laws

The Water (Prevention and Control of Pollution) Act 1974

The Water (Prevention and Control of Pollution) Act, 1974 was an effort to
reduce and stop pollution in rivers. The Air (Prevention and Control of
Pollution) Act, 1981 is made on similar lines as the Water Act but it goes a
few steps forward in terms of details. It was made to take appropriate steps
for the preservation of the natural resources of the earth which, among other
things, includes the preservation of the quality of air and control of air
pollution. It became the first environmental act to not only put into words the
complete spectrum of environmental issues affecting the air pollution in one
act but also gave guidelines to not only protected the air but to also improved
its quality.

The act also puts forwards meticulous standards of air pollution with particular
regard to industries. These standards are effectively backed by severe
penalties. Offences in the Act include flouting the restrictions on the
establishments on certain industries in air pollution control areas, the emission
of air pollutants by any person operating an industry in an air pollution control
area and listed offences by companies. Penalties include imprisonment of
between 1.5 and 6 years, and fine, additional fine in case of a continuing
offence and continuing offence after one year of conviction: imprisonment of
between 2 and 7 years, and fine.
The Environment (Protection) Act (EPA) 1986

The EPA is the first Indian legislation to deal with environment protection and
its components in a holistic way and provided a framework for management of
hazardous substances, prior assessment of the environmental impact of
major developmental projects, discharge of industrial pollutants and effluents
into the environment, guidance for industrial sitting, and management of
chemical accidents.

The EPA takes away the independence of the States with regards to action
and legislation towards issues of the environment. The Act requires the States
to get clearance from the Centre to flag off projects. This political invasion
leads to many foreseeable delays; additionally the central clearance
requirement does not always weed out projects which are given the green
signal are not always the most eco-friendliest of projects. Some of the projects
allowed to flourish are plain exploitative and ecologically damaging.

The Public Liability Insurance Act, 1991

It came on the heels of the Bhopal Gas tragedy. Its main aim was to provide
relief to victims of industrial disaster victims. It became obligatory for industrial
set-ups to obtain insurance which was equivalent to the capital needed to
establish the industry.

The National Green Tribunal (NGT) Bill

In June 2010 the National Green Tribunal (NGT) Bill was passed. It heralded
a new dawn in environmental protection. The court has been set in Bhopal
and five benches spread around the country with the sole mission to quickly
dispose of environmental protection cases. The court has been designated to
be headed by a sitting or retired Supreme Court judge or the Chief Justice of
a High Court.

INDIAN JUDICIARY AND ENVIRONMENTAL PROTECTION

The Indian Judiciary has seen the same transformation as has the Indian
economy and culture. From the highly strung cultural and economic
transformation into an India which is much more open and receptive, the
Judiciary similarly has gone through a revolution which was both inspiring and
trail blazing.

1 Landmark Indian Cases and Environmental Laws and

Principles

The Indian judiciary, as a part of its activism, has for long used established
international environmental principles while adjudicating a host of landmark
environmental cases in India. These cases reflect the high standards of
awareness of the Indian judiciary which not only took judicial activism to
unseen heights in the country but also provided strong precedents in
environmental actions. The various cases discussed below have had the
Judiciary seeking arguments from various quarters of the world- The various
UN Conventions, European Union Laws and Precedents from Common Law
Nations.

In many occasions the Supreme court of India referred to the “Stockholm

Declaration” to be the ‘Magna Carta’ of our environment. With its emphasis on
non-binding agreements, environmental lawyers consider these as logical and
heavy weight arguments.

Case 1:

Let’s analyze the AP Pollution Control Board v. Nayudu case where in the
Supreme court of India held that “It is necessary that the party attempting
to preserve the status quo by maintaining a less-polluted state should
not carry the burden of proof and the party who wants to alter it, must
bear this burden.”

In turn the highest court in the country devised an innovative method for
calculating the damages by the polluter where in the court will examine this
independently irrespective of claims of both the parties. Ina policy statement it
was mentioned that “Polluter Pays” is an essential aim of the govt. policy
towards preventing and controlling pollution.

Case 2:

In the case pertaining to highly toxic chemical banned in western countries

called ‘H’ Acid by the Indian Council for Enviro-legal Action, the petitioners
sued to stop and remedy the pollution caused by chemical plants, operating
without permits, in the north-western state of Rajasthan.

This landmark case saw the Supreme Court use the “Polluters Pays” principle
inspired by the Rio Declaration on Environment and Development. The court
held that “If an enterprise is engaged in an inherently dangerous activity,
which might cause harm to another in course of the actions, will have to
bear the financial burden of preventing or remedying the damages that
might been caused by the pollution being created by the manufacturing
process. The enterprise would also be strictly and absolutely liable for
the damages caused by his actions”.

Case 3: (Imparting Absolute Liability)

Considering the Oleum leak case (M.C.Mehta v. Union of India) where a writ
petition was filed on a fertilizer manufacturing plant, having its operations in
the densely populated Delhi, had an incident of oleum gas leakage where in a
person was killed and several others were left injured. The immediate closure
of the plant spread widespread anger among the 4000 workers who were left
unemployed.

The Supreme Court of India laid down in the case that “Any industry
engaged in a hazardous or inherently dangerous activity owes an
absolute and non-delegable duty to the immediate community to ensure
no harm is done to them. This applies if the activity undertaken in the
facility could create a health or safety hazard not only for the workers
but also for those people who live in the adjacent areas. The enterprise
will still be liable if it has taken every possible precaution and no
negligence can be accounted to it”. The Court also observed that the
bigger the physical and economic structure of the enterprise, the heftier would
be the compensation.

Case 4: (Regarding sustainable development and inter-generational

equity)

A widespread agreed definition of sustainable development is that “It is

where development meets the needs of the present without
compromising the ability of future generations to meet their own
needs.”

Even then in Indian context it primarily meant material or economic progress.

In days where courts were leading the mantle for environmental protection, it
has had a particularly controversial position in the India’s largest environment
law dispute- “The Narmada Bachao

Andolan v Union of India”

The court initially granted stay on the construction till all of the rehabilitation
work completes but after 7 long years the court gave green signal for the work
to start.

The court's final line of the order states-

"Every endeavor shall be made to see that the project is completed as

expeditiously as possible".

Subsequent to the court’s verdict, Press Information Bureau (PIB) featured an

article which states that:

"The Narmada Bachao Andolan has rendered a yeoman's service to the

country by creating a high-level of awareness about the environmental
and rehabilitation and relief aspects of Sardar Sarovar and other
projects on the Narmada. But, after the court verdict it is incumbent on it
to adopt a new role. Instead of 'damning the dam' any longer, it could
assume the role of vigilant observer to see that the resettlement work is
as humane and painless as possible and that the environmental aspects
are taken due care of."

In the light of the above development several courts have given sustainable
development a new definition which can be interpreted as a new model where
certain ecologically harmful measures in the name of development are
permissible as long as it does not harm the community critically. Taking into
consideration the future generations may be being able to get benefits from a
strong law and ethical developmental practices. This was seen in the Taj
Trapezium case.
Case 5: (Public Trust Doctrine)

In principle Public trust doctrine states that the state has a certain obligation to
protect and preserve resources meant for public use. In case of M C Mehta v.
Kamal Nath, the court quoted Prof. Joseph Sax’s doctrine of public trust,
obligating conservation by the state. Here a motel was constructed over the
river beas and the court ordered to pay compensation to reverse the damage
to the ecology and environment of the area.

The Court also held that “Property meant for public use and enjoyment
could not be transferred to the private domain and ownership”.

The judiciary finds itself in a tough spot when it comes to considering

environmental issues. The law of the land and Constitutional rights is the
leading factors to be considered among others like the international laws most
importantly the Rio Declaration along with economic, political and social
principles and facts. The other issue is the pressure put on the capability of
jurists and judges on effectively interpreting these multi-dimensional issues.

The National Green Tribunal Act, 2000

The National Green Tribunal Act of 2000 was passed by Lok Sabha on 18th
Oct. 2010. It encompasses the Fundamental Right to a Healthy Environment
that is enshrined in the Indian Constitution under Article 21.

This tribunal is essentially a fast track court specializing in dispensing

environment related issues thus relieving the burden on other Indian courts.
After Australia and New Zealand, India is the third country to have a dedicated
all-encompassing Green Tribunal.

The Tribunal

The court has been set in Bhopal and five benches spread around the country
with the sole mission to quickly dispose of environmental protection cases.
The three circuit benches are located in Delhi, Kolkata, and Chennai and
Pune. Funding is done by the Central government along with Justice L S
Panta (Former judge of Supreme Court) as the appointed first chairperson of
the NGT.

It is important to know the following.

  The NGT Act 2010 applies to civil cases and it excludes
criminal offences.

 There is no limit for the compensation that the green tribunal

can award to the victims of environmental degradation
/damage.

 Compensation or relief ordered to be paid by the tribunal

shall be credited to the Environmental Relief Fund 2008
established under Public Liability Insurance Act 1991.

 Whoever fails to comply with the order or award of the

tribunal shall be punishable with imprisonment, which may
extend to 3 years or with a fine, which may extend to Rs 10
crores. In case of companies, the penalty may extend to Rs
25 crores.

 A person aggrieved by any decision or award of the tribunal

can appeal to the Supreme Court.

The green tribunal functions as appellate authority to persons aggrieved by

any order or decision made under the following Acts:

 Water (Prevention and control of Pollution) Act 1974

 Water (Prevention and Control of Pollution) Cess Act 1977

 Forest (Conservation) Act 1980

 Air (Prevention and Control Pollution) Act 1981,

 Environment (Protection) Act 1986 and

 Biological Diversity Act 2002.

In two recent cases the Tribunal came into prominence, first because it could
get its biggest case yet and in the second instance it delivered its biggest
judgment till date. In the first case the dispute was regarding a residential
township being built over a hilly terrain in the state of Maharashtra. In the said
case the Bombay High Court suggested the case along with the pending PIL’s
regarding the project, be take over the NGT. If these cases are moved to the
NGT, it will be the biggest and the most high profile case to be given to the
Tribunal.

In the second instance, the NGT cancelled the steel plant being built by the
South Korean steel giant POSCO, which consequently sent back the largest
foreign direct investment in India back to the drawing board. The $12 million
steel plant has been a hotly debated issue for over seven years because of its
location in the tribal heartland which could take away large tracts of forest
land, cause tribal and human rights violation, human displacement, and
potential large scale environmental and ecological disaster.

INDIA AND INTERNATIONAL ENVIRONMENTAL LAW

India has been an active participant in every conference related to preserving

and protection of environment since the UN conference on Human
environment, held in Stockholm in 1972. International laws have deep
foundations in these laws not only did India ratify these laws but its judiciary
as mentioned in the earlier chapter actively implemented them on its own
accord in many landmark cases. Being a commonwealth country, gives
legislators, lawyers, and judges access to global jurisprudence and they can
always look up to countries like England, USA, and Australia.

Influences of International Environmental Law on Domestic Law

India has grown on the same lines as international environmental laws

primarily because both came into existence in the same year- 1972. Thus,
Indian lawmakers have always looked to international conventions, treaties,
and declarations to form domestic laws.

National Council of Environmental Policy and Planning within the Department

of Science and Technology was laid down by the Govt. of India after the
Stockholm Conference which later on became the Ministry of Environment
and Forest in 1985 with an independent central minister.

Environmental Impact Assessment has been always been a contested issue

in India with no impact assessment studies being undertaken until as recently
as the 1980’s. Major legislative reforms were brought about only in 1994
called the “Environment impact Assessment Notification 1994”.
The Biological Diversity Act was passed in India in 2002 after India signed and
ratified the United Nations Convention on Biological Diversity signed at Rio de
Janeiro in 1992. The Biological Diversity Act was passed in India in 2002 after
India signed and ratified the United Nations Convention on Biological Diversity
signed at Rio de Janeiro in 1992.

India acceded to The Montreal Protocol on Substances That Deplete the

Ozone Layer and to the London Agreement in 1992. The Ministry of
Environment has made an Ozone Cell and a steering committee which would
implement the provisions of the Protocol in India on the other hand Though
India ratified The Basel Convention on the Control of Trans boundary
Movements of Hazardous Wastes and Their Disposal in 1992, the Indian
Hazardous Wastes Management Rules Act, 1989 has implemented many
provisions from the Convention when it was passed.

Influence of International Environmental Law on the Constitution of

India

Since the Stockholm Conference in 1972, India has brought in two important
Constitutional Amendments. One is the 42nd Constitutional Amendment Act,
1976, which shifted two important provisions—“Forests” and “Protection of
Wildlife and Bird” from the State List to the Concurrent List.

Being a member to the Stockholm Conference gave a few positive dividends

for the country. Article 253 of the Indian Constitution allowed the National
Parliament to give significance to India’s participation and decisions based on
International conferences.

ISSUES WITH ENVIRONMENTAL LAWS IN INDIA

India has always been known to be land of contradictions and it is no surprise

that in its fight against environmental degradation India is caught between the
raging war of a western concept of development to eradicate poverty and
conservation of the environment. In past six decades of independence,
though thrust has been on economic growth, the constant battle for India has
been the poverty eradication and yet as India progresses towards being a
developed nation, environmental degradation threatens population which till
today struggles with poverty.
India’s mindset that development comprises of industrialization, urbanization,
commercialization, and consumerism without referring to underlying
foundation of economic and social equity and environmentally sustainable
growth process, has created a huge complication which has deep ecological
impact.

The issues with the Indian environmental laws are that they are in their
tremendous minutiae. The extreme Indian need to fine print each and every
detail of the legislation which leads to many loopholes which are in turn
exploited by poachers and petty criminals and on one hand the Corporations
and their ‘top-of-the-line’ legal advisors. Furthermore the environment, though
clearly stated to be an important agenda in our lengthy Constitution has
always received a lower pedestal in comparison to development

Even though there is consistent petitioning to have stringent norms for the
usage of our limited natural resources, the response of the government has
always been to pass new legislation instead of referring to the already existing
laws. The courts have creatively included the environment under the Article 21
but the Constitution of India needs a new fundamental right which clearly
enunciates environmental rights for the people of India, especially the
Scheduled Tribes.

A clearly enunciated fundamental right will give the people strength so that
they do not always have to rely on the precedents of the court to assert their
rights.

Development over Environmental Protection

India is one of the nations brimming with unlimited aspirations while on its own
it owns limited natural resources. This indeed leads to a conflict between the
States committed to development for the “greater good of all” while the
process of development severely marginalizes the poor and tribal.

Thus when natural resources are diverted to fit the development agenda and
meet the needs of the market, the conflict between commercial interest and
people’s interest intensifies.

Case 1:
Due to large scale illegal mining in India and in the Aravalli hills Range
situated in Rajasthan and Haryana the forest cover has depleted by 90% and
drying up wells affecting agriculture. Due to media and public protest the
Supreme Court on February 20, 2010 directed the cancellation of 157 mining
leases operating in Rajasthan’s eco-sensitive Aravalli Hills.

The Center of Science and Environment report has made extensive analysis
of environment degradation and pollution due to mining, wherein it has said, in
2005-06 alone 1.6 billion tons of waste and overburden from coal, iron ore,
limestone and bauxite have added to environment pollution.

With the annual growth of mining at 10.7 per cent and 500-odd mines awaiting
approval of the Centre, the pollution would increase manifold in the coming
years. Rajasthan is the largest producer of dimensional stones in the country.
The state alone produces resources worth 5 crore rupees a year.

It has been observed several times from sources obtained from reputed news
agencies with corporations and MNC’s flying on wings made out of political
and financial prowess, state governments in the light of myopic development
are reluctant or incapable to legislate on these pressing issues.

Case 2:

Karnataka is a prime victim of such events. Mining is rampant on land for

which permission is not granted. Sometimes, revenue and forest officials do
not check feasibility of the sites, but give permission to mine. On several
occasions, the sketch of the mining map shown to the department of mines
and geology did not match with the site and overlapped forest areas.
Irregularities have been found in the de-reservation of 2670.5 sq km of forest
area in Shimoga, Chikmagalur, Hassan, Kolar, Chitradurga and Mysore
districts.

India’s commitment towards industrialization has taken its toll on the

environment. Most of the industries are set up without regard to environmental
requirements of the area, without any concern for the pollution. Pollution in
rivers have reached alarming levels with stretches of the river systems
infected with bacteria feeding on wastes. These rivers have fallen prey to
industrial toxins, killing millions of fishes and then irrigating farmlands.
Most of the pollution control mechanism need technological overhauls and it is
majorly observed to remain at the mercy of profit generation. If there is a dip
in profits, these mechanisms are the first to be taken off

Urban Bias of Environmental Issues

Pollution further means urban pollution because the twin concepts of

industrialization and urbanization have “historically” only affected the urban
populations. This is also a failure on the part of the NGO’s to persuade the
Supreme Court to take a broader approach.

The enforcement agencies fail to understand that sustainable development

lies in balancing the interests of the always accounting for progress and
safeguarding interests of the entire community. As already illustrated by me,
our existing laws don’t have a supportive structure for the rural development
through sustainable means.

The issue can be resolved best by allowing the effected people to be part of
the decision making process at the grass root level. This can only happen
when they are trusted with their own destiny and lives. When it comes to their
own surroundings it is natural that they do know what is very best for them.

Failure of the Indian Executive

Two instances need to be discussed when one has to see the failure of the
Indian Executive.

 Banning of Plastic hand bags

 Incompliance on part of Delhi Administration to ply buses on

CNG within the deadlines given by the Supreme Court.

The Supreme Court has tried often to make environmental auditing free of
blemishes while making the heads of the enforcement agencies personally
liable. These measures have had meager responses.

The issues of car pollution emission check serve as a prominent example.

Present Euro III/Bharat Stage IV norms mandates that every vehicle will have
to undergo emission checks in periods ranging between three to six months at
Pollution Under Control Centers parked at Fuel Centers or Garages which
have received authorization to check vehicles.

The Government has been more concerned about the process of regulation
rather than the impact of regulation. Very little help is forthcoming from the
pollution control agencies in identifying the most feasible technology for
individual projects

The same issue persists with the ban of plastic handbags. Plastic bags have
known to be non-biodegradable, kill stray animals, litter the landscape and are
made out of petroleum. Though there have been many cases where the
courts have issued directions; they seem to have fallen on deaf ears. Plastic
bags which do not meet standards are widely used and distributed. There are
areas, like smaller cities and Union territories in particular which have led by
example.

Issues with Specific Indian Laws

The British administration has left a lot of their bequests and one among them
is the system of Boards and their rigorous institution in the Indian
administration.

The Air Act provides for the setting up of Pollution Control Boards across the
country confers on them an extensive array of powers and functions. These
include the duty to oversee the enforcement of the provisions of the Act, to
collect samples to check pollution, inspection of industries, hospitals and local
bodies; monitoring ambient air and stack emissions, inspection of sites
proposed for setting up of industries and to verify the suitability of the same.

Questions arise regarding the jurisdiction pertaining to the establishment of

boards both at state and central level. While the State government is
constitutionally appointed to protect water bodies. The major flaw of the Act is
that the states are only bound by the provisions of the act if and when they
approve to the extension of the authority of the Act on them. There are Boards
set up at both the Central and State levels which add to jurisdictional
discomfort on them.

Compliance is an important issue is dependent of effective decision making

process. These decisions making procedures must take into account all
interests, costs and benefits which is lacking. There is a need for a process
which prevents and mitigates environmental conflicts. Though the Judiciary is
the arena for such conflict resolution, reliance on such measures burdens the
inflated legal process, is costly and is not accessible to everyone.

Implementation of law has always been poor in India and this coupled with
uncontrolled and rapid industrialization has meant that the damage to the
environment has doubled. India lacks the infrastructure and resources to give
effect to its many laws even though the spirit and the intention behind them
are versed on the positive.

RECOMMENDATIONS

India is in a position where it has all the laws that need to be there. It is their
details that have made these inflexible and thus made to twist around in ways
to ease oneself out of judicial trouble. These laws are practical but ineffective
because of their isolated formulation and plagued implementation ranging
from failure of officials, lack of funds and infrastructure, conflict with
urbanization.

The need of the hour is to create a mechanism which is independent,

authoritative, responsive, and which can effectively co-operate and co-
ordinate with other Ministries where environmental issues have a prominent
stake. India already has a good network of laws, all that is needed is its
effective implementation could bring in some well needed reforms. Policies
formulated in addition to these laws must be comprehensive with a focus to
bring in innovative yet effective solutions to the problems of the day

The establishment of ‘Rashtriya Paryavaran Salhakar Samiti’ (National

Environmental Advisory Committee) within the Department of Environment,
consisting of representatives from voluntary agencies to keep the government
informed about peoples’ problem and emerging issues is a step in the right
direction. This will ensure people’s participation.

Promoting public participation should be made through a national program

which raises the knowledge and sensitivity towards the environment. This
knowledge must be made accessible not just to individuals but to the
community at large.
National programs must:

 Create effective guidelines for the various Pollution control board on

public consultation.

 Focus on industries coming out with guidelines for public participation

of the community surrounding the establishment.

 Must facilitate sharing local knowledge with the governmental agencies

and the industry.

 Advertise the ways to effectively use ‘Right to Information (RTI) Act,

2005’ as questions pertaining to environment and allied issues doesn’t
fall under exception clause.

 Streamline public information services by regularly publishing and

updating their database.

 Develop “New generation” area based pollution management

methodology focusing on ambient quality.

 Create new structure of emission standards for small and medium

sized industries which will successfully allow them to comply with
specific standards set specifically for them.

 Strengthen self-reporting mechanisms with good incentives given to

industries for compliance.

 Voluntary initiatives must be similarly rewarded and such good

practices publicized.

 Protect flora and fauna like air and water from industrial damage and
remove conditions which threaten them.

 Create infrastructure for waste treatment and disposal and

environmentally-sound management of industrial activities.

 Encourage tax benefits for environment conscious initiatives and

endeavors.

Conclusion
Intense debate on the new tomorrow which the present power hungry India
with its vast population, extreme climate, vulnerable ecology is a must for
mustering the hopes alive for seeing India’s flagship economy to be among
the biggest and cleanest in the world.

The recommendations described in the report mandate high levels of

determination, consensus, commitment, planning, and effective execution of
will.

The Govt. which consists of The Executive, The Legislature and The Judiciary
are still not in tandem with each other as the following conditions prevail

The executive whose arms are forever twisted in favor of political gimmicks,
corruption and wrongful human resource, has hampered what could have
been a successful flight chartered very effectively through well intended law-
making and sound judicial backing.

Quick actions are supposed to be taken along with the major stake holders; all
communities of people for implementing actions supported by necessary
resources, targets, and clear accountability mechanisms.

The work of NGO’s of India have been commendable and with their constant
help along with the backing of Indian Government rural India will soon feature
in environmental programs befitting them.

Though thorough research is required to weed out most of the loop holes
used by big shot companies for their benefit in turn floating many
environmental norms. This would actually require a highly coordinated effort
from all three segments constituting the government of India.

“What's the use of a fine house if you haven't got a tolerable planet to
put it on?”

References

 http://www.wealthywaste.com/wildlife-protection-act-1972-a-
summary

 http://envfor.nic.in/legis/wildlife/wildlife1.html
 http://statutory-law.knoji.com/the-salient-features-of-the-indian-
wild-life-protection-act-1972/

 http://siteresources.worldbank.org/INDIAEXTN/Resources/2955
83-1176163782791/complete.pdf

 http://www.asiantribune.com/index.php?q=node/6083

 http://www.legalserviceindia.com/articles/brenv.htm

 http://moef.nic.in/downloads/publicinformation/critically_endange
red_booklet.pdf

 http://www.thaindian.com/newsportal/india-news/madhya-
pradesh.html

 http://www.ngosindia.com/resources/pil_sc.php

 http://www.downtoearth.org.in/content/green-tribunal-suspends-
environmental-clearance-gogte-minerals

 http://articles.economictimes.indiatimes.com/2011-11-
16/news/30405840_1_lavasa-corporation-lavasa-township-moef

 http://www.tehelka.com/story_main52.asp?
filename=Ne140412POSCO.asp

 http://www.constitution.org/cons/india/const.html

 http://www.cercind.gov.in

 http://nhrc.nic.in/Publications/reportKBSaxena.pd
“Polluter Pays Principle: Pros and Cons of Indian Laws Relative to
International Practices”
Abstract
Any successful international negation for reducing emissions must be based
on four principles: The Precautionary Principle, The Principle of Sustainable
development, The Polluter-Pays Principle of Equity. The strength of
‘contraction and convergence’ is that it satisfies all these principles.
1. Sir John Houghton
The paper starts with the basic knowledge of the Polluter Pays Principle and
proceeds with the Historical evolution of the principle. The paper also deals
with how the International and national development of the principle.
The adoption of the principle in the legislation and judiciary is also dealt in
detail in the paper. The later section of the paper deals with the disadvantage
of the principle and ends with the conclusion.
Introduction
“The ‘polluter pays principle’ states that whoever is responsible for damage to
the environment should bear the cost associated with it.” 1
The Polluter Pays Principle (PPP) is one of the internationally recognized
principles that influence the shaping of environmental policy at both the
national and international level. As one of the environmental principles that
have developed ‘from political slogans to legal rules,’ 2 it is also increasingly
reflected in national and international law.3
It is seen and analysed both as a principle of environmental economics and
as a principle of environmental law. In environmental economics, it is
discussed as an efficiency principle of internalization of environmental costs.
As a legal principle, it is usually treated as a principle for the allocation of the
cost of pollution prevention, and for liability and compensation for
environmental damage. In general, it is regarded as an important and ‘right’
principle in the perspective of environmental protection. It is often mentioned
together with other major environmental principles such as the precautionary
principle, the principle of prevention and the principle of integration. 4
In general, it is regarded as an important and ‘right’ principle in the
perspective of environmental protection. It is often mentioned together with
other major environmental principles such as the precautionary principle, the
principle of prevention and the principle of integration.
The “polluter pays principle”(PPP)meant that the producer of goods of other
items should be responsible for the cost of preventing or dealing with any
pollution that the process caused. This included environmental cost
preventing or dealing with any pollution that the process caused. This
included environmental cost as well as direct cost to the people or property; it
also covered cost incurred in avoiding pollution and not just those related to
remedying any damage. It would include full environment cost and not just
those which are immediately tangible. The principle also did not mean that the
polluter could pollute and pay for it. Its main goals are cost allocation and cost
internalization. In 1972, the Organization for Economic Co-operation and
Development (OECD) articulated the explicitly and in 1989 indicated that it
should be applied to agriculture. Though the principle originated as an
economic principle, since 1990 it has been recognized internationally as a
legal principle.5The PPP now plays an important role in national and
international environmental policy. The European community (EC) adopted
the principle in the 1987 Single European Act, 6 and it has appeared in
international agreements, including the Rio Declaration of 1992. 7 The principle
is an explicit part of legislation in some nations; in others, it is an implicit
subtext for both environmental regulation and liability for pollution.
Historical Evolution Of Polluter Pays Principle
The polluter pays principle, like the other great towering principle that today
influence international environmental law, such as:
(1) The sustainable development principle; (2)Theprevention principle; (3) The
precautionary principle; and (4) The proximity principle, started as a political
declaration without legal force. The polluter pays principle has been included
in documents with legal status. For instance, many modern constitutions in
the European Union explicitly provide for a right to a clean environment 8 and
thus environmental policy principles also constitute environmental law. The
right to a clean environment implies a duty of the state to protect its citizens,
but it is questionable whether these principles or social rights can yet be
considered subjective rights, meaning that they can be enforced by citizens in
a court. However, some see the right to a clean environment as a human or a
natural right existing independently of politically decided treaties. Finally, the
polluter pays principle is now seen in specific pieces of legislation becoming
more (or some might say ‘less’) than a grand constitutional statement of an
intractable human right.
OECD – The birth of the polluter pays principle
Some explanation of the sometimes arbitrary course of the principle of
polluter pays can be found in its historical development. The principle first
appeared in a legal context in a document prepared by the International
Organisation of Economic Cooperation and Development (“OECD”) 9 and
included the following recommendation:
“The principle to be used for allocating costs of pollution prevention and
control measures to encourage rational use of scarce environmental
resources and to avoid distortion in international trade and investment is the
so-called ‘polluter pays principle’. This principle means that the polluter should
bear the expenses of carrying out the above mentioned measures decided by
public authorities to ensure that the environment is in an acceptable state. In
other words, the cost of these measures should be reflected in the cost of
goods and services which cause pollution in production and/or consumption.
Such measures should not be accompanied by subsidies that would create
significant distortion in international trade and investment.”
In 2001, the OECD Joint Working Party on Agriculture and Environment, after
years of gestation and development by other organisation, stated that a new
and expended form of the polluter pays principle should provide that:
“......the polluter should be held responsible for environmental damage caused
and bear the expenses of carrying out pollution prevention measures or
paying for damaging the state of the environment where the consumptive or
productive activities causing the environment damage are not covered by
property rights.”10
United Nations-The Rio Declaration
This proclamation was proved, at least on paper, if not yet by jus cogens, in
1992 when the United Nations Conference on the Environment and
Development delegates agreed on The Rio Declaration on Environment and
Development (The “Rio Declaration”)11, which has been described as an
“instrument of international jurisprudence [that] articulates policies and
prescriptions directed at the achievement of worldwide sustainable
development”.12 It is of note that Principle 16 of Rio Declaration provides that:
“national authorities should Endeavour to promote the internalization of
environmental cost and the use of economic instruments, taking into account
the approach that the polluter should, in principle, bear the cost of pollution,
with due regard to the public interest and without distorting international trade
and investment”.13 The principle’s appearance in such a seminal statement of
the fundamental principle of international environmental law demonstrates its
significance in environmental liability regimes around the world.
United States
The principle has to some extent informed United States’ legislation, but its
influence should not be overstated and commentators note that: “The United
States, in contrast to the European nations, does not officially recognize the
[polluter pays principle] as a distinct principle or policy mandate, but does, by
natural political and economic inclination, closely follow its precepts in
practice”.14 Certain provision of the United States Clean Air Act 1970 (the
“CAA”) and Clean Water Act 1977 (The “CWA”) require polluters to satisfy
environmental standards at their own expense; and the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
(“CERCLA”) assigns liability for costs associated with cleaning-up sites
contaminated by hazardous wastes. CERCLA is a notable milestone in the
development of the polluter pays principle in the United States and
commentators have noted that: “the polluter pays principle is one of the
central objectives or goals of CERCLA”.15
Flaws in Polluter Pays Principle
Few people could disagree with what seems at first glance to be such a
straightforward proposition. Indeed, properly construed, this is not only a
sound principle for dealing with those who pollute but is an extension of one
of the most basic principles of fairness and justice: people should be held
responsible for their actions. Those who cause damage or harm to other
people should “pay” for that damage. This appeal to our sense of justice is
why the “polluter pays principle” (PPP) has come to resonate so strongly with
both policy makers and the public. As a general rule, sound economic
analysis of pollution and environmental problems must also be based on the
principle of responsibility. Forcing polluters to bear the costs of their activities
is good economics too; it not only advances fairness and justice, but also
enhances economic efficiency. In other words, with appropriate policies based
on a PPP, we should not have to give up the economic efficiency of a free
market system based on private property in order to obtain environmental
protection, nor vice versa. But as with most such general principles, the devil
is in the details. In this case, the details relate to three basic questions that
any application of the PPP must answer. First, how do we define pollution and
therefore a polluter? Second, how much should the polluter pays, once he is
identified? Third, to whom should the payment be made? The answers to
these questions are at the heart of whether any application of the PPP will be
either just or economically efficient.
A correctly construed polluter pays principle would penalize those who injure
other people by harming their persons, or by degrading their property. Too
often, however, the PPP is misdefined and misused to suppress private
economic activity that benefits the parties directly involved and does no
specific damage to other people, but which offends those who oppose human
impact on the environment and prefer to leave resources undeveloped. The
objective is to restrain the resources use at the expense of the property
owners and consumers without cost to those who wish to see the resources
remain idle. Under such a misapplication of the PPP, very often “a polluter” is
not someone who is harming others, but is someone who is simply using his
own property and resources in a way that is not approved ofby government
officials or environmentalists. In such cases there is no harm to be measured
and no real victim to compensate. Consequently, the amount to be paid is not
determined by the extent of any actual damage done. Rather, it is set at a
level that curbs the politically disfavoured activity to the degree desired by its
opponents. And finally, the payment (whether there are real victims or not)
typically goes to the government in the form of tax. In other words, in most
cases, the PPP is used as cover to promote a political or ideological agenda
rather than to ensure that real polluters pay compensation to real victims of
their activities.
Constitutional and Legislative Measures
Stockholm Declaration of 1972 was perhaps the first major attempt to
conserve and protect the human environment at the international level. As a
consequence of this Declaration, the States were required to adopt legislative
measures to protect and improve the environment. Accordingly, Indian
Parliament inserted two Articles, i.e... 48A and 51A in the constitution of India
in 1976,16 Article 48A of the constitution rightly directs that the state shall
endeavour to protect and improve the environment and safeguard forests and
wildlife of the country. Similarly, clause (g) of Article 51A imposes a duty on
every citizen of India, to protect and improve the natural environment
including forests, lakes, river, and wildlife and to have compassion for living
creatures. The cumulative effect of Article 48A and 51A (g) seems to be that
the ‘state’ as well as the ‘citizens’ both are now under constitutional obligation
to conserve, perceive, protect and improve the environment. Every generation
owes a duty to all succeeding generations to develop and conserve the
natural resources of the nation in the best possible way. 17 The phrase ‘Protect
and improve’ appearing in both the Article 48A and 51A
(g) seems to contemplate an affirmative government action to improve the
quality of environment and not just to preserve the environment in its
degraded form.
Apart from the constitutional mandate to protect and improve the environment,
there are a plenty of legislations 18 on the subject but more relevant enactment
for our purpose are 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; Public Liability Insurance Act, 1991; the National Environment
Tribunal Act, 1995 and the National Environment Appellate Authority Act,
1997; the Wildlife (Protection) Act, 1972; the Forest (Conservation) Act, 1980.

The Water Act provides for the prevention and control of water pollution and
the maintaining or resorting of the wholesomeness of water. The Act prohibits
any poisonous, noxious or polluting matter from entering into any stream or
well. The Act provides for the formation of Central Pollution Control Board and
the State Pollution Control Board. The new industries are required to obtain
prior approval of such Boards before discharging any trade effluent, sewages
into water bodies. No person, without the previous consent of the Boards shall
bring into use new or altered outlet for the discharge of sewage or
tradeeffluent into a stream or well or sewer or on land. The consent of the
Boards shall also be required for continuing an existing discharge of sewage
or trade effluent into stream or well or sewer or land.
In the Ganga Water Pollution case 19, the owners of some tanneries near
Kanpur were discharging their effluent from their factories in Ganga without
setting up primary treatment plants. The Supreme Court held that the financial
capacity of the tanneries should be considered as irrelevant while requiring
them to establish primary treatment plants. The Court directed to stop the
running of these tanneries and also not to let out trade effluents from the
tanneries either directly or indirectly into the river Ganga without subjecting
the trade effluents to a permanent process by setting up primary treatment
plants as approved by the State Pollution Control Board.
The Water (Prevention and Control of Pollution) Cess Act, 1977 aims to
provide levy and collection of a cess on water consumed by persons carrying
certain industries and local authorities to augment the resources of the
Central Board and the State Boards constituted for the prevention and control
of water pollution. The object is to realise money from those whose activities
lead to pollution and who must bear the expenses of maintaining and running
of such Boards. The industries may obtain a rebate as to the extent of 25% 20 if
they set up treatment plants of sewage of trade effluent.
The Air Act has been designed to prevent, control and abatement of air
pollution. The major sources of air pollution are industries, automobiles,
domestic fires, etc. The air pollution adversely affects heart and lung and
reacts with haemoglobin in the blood. According to RoggerMustress, the
American Scientist, air pollution causes mental tension which leads to
increase in crimes in the society.
The Air Act defines an air pollutant as any ‘solid, liquid or gaseous substance
including noise present in the atmosphere in such concentration as may be or
tend to be injurious to human beings or other living creatures or plants or
property or environment.’ The Act provides that no person shall without the
previous consent of the State Board establish or operate any industrial plant
in an air-pollution control area. The Central Pollution Control Board and the
State Pollution Board constituted under the Water Act shall also perform the
power and function under Air Act. The main function of the Board under Air
Act is o improve the quality of the air and to prevent, control and abate air
pollution in the country.
The permission granted by the board may be conditional one where the
stipulations are made in respect of raising of stack height and to provide
various control equipment’s and monitoring equipment’s. It is expressly
provided that persons carrying on industry shall not allow emission of air
pollution in excess of standards laid down by the Board.
In Delhi, the public transport system including buses and taxies are operating
on a single fuel CNG mode on the direction given by the Supreme Court. 21
Initially, there was a lot of resistance from bus and taxi operators. But now
they themselves realise that the use of CNG is not only environment friendly
but also economical.
Noise has been taken as air pollutant within the meaning of Air Act. Sound
becomes noise when it causes annoyance or irritates. There are many
sources of noise pollution like factories, vehicles, reckless use of
loudspeakers in marriages, religious ceremonies, religious places, etc. Use of
crackers on festivals, winning of team in the games, and other such occasions
causes not noise pollution also air pollution.
The Air Act prevents and controls both these pollutions. The Environment
(Protection) Act, 1986 was enacted to provide for the protection and
improvement of the quality of the environment and preventing, controlling and
abating environmental pollution. The Act came into existence as a direct
consequence of the Bhopal Gas Tragedy. The term ‘environment’ has been
defined to include water, air and land, and the inter-relationship which exists
among and between water, air and land and human being, other living
creatures, plants, micro-organism and property. The definition is wide enough
to include within its purview all living creatures including plants and micro-
organism and their relationship with water, air and land. The Act has given
vast power to the central government to take measures with respect of
planning and execution of a nation-wide programme for prevention, control,
abatement of environmental pollution. It empowers the Government to lay
down standards for the quality of environment, emission or discharge of
environmental pollutants; to regulate industrial locations; to prescribe
procedure for managing hazardous substances, to establish safeguards for
preventing accidents; and to collect and disseminate information regarding
environmental pollution. Any contravention of the provisions of the Act,
Rules,Orders, or Directions made there under is punishable with
imprisonment for a term which may extend to five years or with fine up-to one
lakh rupees or with both. The Act is an ‘umbrella’ legislation designed to
provide a frame work for central government coordination of the activities of
various central and state authorities establish under previous laws, such as
the Water Act and the Air Act.22
The parliament passed the Public Liability Insurance Act, 1991 to provide for
public liability insurance for the purpose of providing immediate relief to the
persons affected by accident occurring while handling any hazardous
substance and for matter connected therewith. The Act provide for mandatory
public liability insurance for installation handling and hazardous substance to
provide minimum relief to the victim (other than workers) through the
mechanism of collector’s decisions. Such insurance will be based on the
principle of ‘no fault’ liability as it is limited to only relief on a limited scale. 23
The National Environment Tribunal Act, 1995 was enacted to provide for strict
liability for the damages arising out of any accident occurring while handling
any hazardous substance. The Act provide for establishment of a National
Environment Tribunal for effective and expeditious disposal of cases arising
from such accident. It imposes liability on the owner of an enterprise to pay
compensation in case of death or injury to any person; or damage to any
property or environment resulted from an accident. The accident must have
occurred while handling any hazardous substance. A clamant may also make
an application before the Tribunal for such relief as is provided in the Public
Liability Insurance act, 1991.
The National Environment Appellate Authority Act, 1997 has been enacted to
provide for the establishment of a National Environment Appellate Authority to
hear appeal with respect to restriction of areas in which any industries,
operations or processes shall not be carried out or shall be carried out subject
to certain safeguard under the Environment (Protection) Act, 1986. After the
establishment of the authority, no civil court or other authority shall have
jurisdiction to entertain an appeal on matters on which authority is so
empowered under the Act. It is evident that this Act has been made with
objective to provide speedy justice on environmental issues.
The Wild Life (protection) Act, 1972 was enacted with a view to provide for the
protection of wild animals, birds and plants. The Act prohibits hunting of
animals and birds as specified in the schedules. The Act also prohibits
picking, uprooting, damaging, destroying etc. Any specified plant from any
forest. The Act provides for State Wildlife Advisory Board to advise the State
Government in formulation of the policy for protection and conservation of the
wildlife and specified plants; and in selection of areas to be declared as a
sanctuaries, national parks, etc. The Act is administered by a Director of
Wildlife Preservation with Assistant Director; and a Chief Wildlife Warden with
other Warden and their staff. The forest (Conservation) Act, 1986 was passed
with a view to check deforestation of forests. The Act provides that no
destruction of forests or use of forest land for non-forest purposes can be
permitted without the previous approval of the central government. The
conservation of forest includes not only preservations and protection of
existing forests but also reforestation. Reforestation should go on to replace
the vanishing forests. It is a continuous and integrated process. 24 The Act is
intended to save a laudable purpose and it must be enforced strictly for the
benefit of the general public.
It is evidently clear that there is no dearth of legislation on environment
protection in India. But the enforcement of these legislations has been far
from satisfactory. What is needed is the effective and efficient enforcement of
the constitutional mandate and the other environmental legislations
The Problem with Indian Environment Law and the Polluter Pays
Principle
A problem that is very specific to India is that “legal redressal through private
law may not be an option for most of the poor, illiterate, uneducated and rural
masses because often they are unaware of their rights and legal
procedures”.25 There is also certain disillusionment prevalent because courts
in India are unable to provide relief and redressal to citizens due to legal
delays, higher litigation costs, complicated legal procedures, and a general
apathy towards smaller, less urgent, cases. 26 While the Polluter Pays Principle
using the absolute liability regime has designed a better incentive and cost
internationalisation structure; it is not perfect and has its own set of
drawbacks.
The first problem faced by all liability regimes is that like the harms of
degradation on the environment are externalised, so are the benefits of
environmental litigations. Therefore, often the damage borne by individual is
very small and the compensation he shall receive from the courts shall also
be small, whereas the cost of environmental litigation is usually high. Thus
there is the problem of “rational disinterest” as the expected compensation
may not be enough to induce any individual victim to sue the injurer. 27 This
problem of rational disinterest is further exacerbated in the case of health
problems, when the victims are injured. This problem is particularly
heightened in India, where the common man already suffers much
disillusionment towards the Indian judiciary and the criminal justice system.
This problem has been partly mitigated by allowing class-action tort or PIL. It
is however seen in practice that most legal systems have very little exposure
to such litigation.28
Second, the outcome of civil liability “would be inefficient if the tortfeasor has
the opportunity of settling with the a few potential litigants in return for
continuing his polluting activity. This small portion of the victims could become
a credible treat and appropriate due compensation out-of-court from the
tortfeasor leaving the majority to their fate. Here only a part of the social cost
is internalized by the tortfeasor by means of paying compensation to group A.
This leaves the economy still in a sub-optimal equilibrium where the socially
damaging activity is over-supplied.” 29
Thirdly, even in strict liability regimes where one does not need to prove fault;
causation must be proved and attributed to the injurer. To begin with, there
may be many given sources or causes for a particular pollutant and it may not
be possible to impute the source to the injurer. And more often than not,
environmental damage is cumulative and it is difficult to attribute the share of
damage. The problem is exacerbated further in those cases where there is a
latency period between the event of pollution and the time when the harm
manifests itself on the victim. It is also difficult or impossible to determine
harm in cases where the event increases the probability of a certain disease,
but may not be the only manifest cause. 30
A fourth, more crucial problem often faced by courts is that the injury suffered
by an individual due to the pollution must be protected by a legal right. In the
case of environment, it becomes difficult to delineate clear property right
especially when it concerns an injury like deforestation, as opposed to
something more explicit such as chemical poisoning.
The fifth problem is that in many cases where the damage is large with many
victims suing for compensation, the injurer might be judgement proof. This
implies that he may be insolvent or may not have the required solvency to pay
for the full damage caused by his actions. 31 This problem may be mitigated by
using insurance for environmental liability. Regarding the question of liability
of the importers to pay the amount to be spent for destroying the goods in
question the courts stressed that the liability could not be doubted on
applicability of Precautionary Principle and Polluter Pays Principle.
Finally, there is the problem of assessment of damages, which is often faced
by courts. This partly follows from the inability to delineate property rights and
partly from the problem of cumulative pollution over many years by many
polluters. In many cases, the effects of certain environmental harms are still
unknown and therefore it becomes more difficult to estimate damages.
Conclusion
It’s good that India that imbibed the Polluter Pays Principle (PPP) in their Law
of land. And, it also had actually helped in imposing damages on the polluter
but still the problem with this principle is that it hasn’t been implemented
properly. If we look at the exemplary damages granted to span motels does
not serve the purpose of the exemplary damages. Ten lakhs rupees is nothing
for the big corporation like span motels. For them atleast Tencrores rupees
exemplary damages should be given. And again if we look at the penalty
imposed in the Vellore Citizens Case, then it just shocks us that how ten
thousand rupees can justify the pollution spreaded by the tanneries in the
nearby areas. The author personally feels that this is not an effective way of
fund raising. We should reconsider the criteria laid to decide the
compensation amount. At least it should deter the polluters from spreading
pollution. This principle needs a strict interpretation from our judiciary with
immediate effect and we just can’t afford any sort of delay in its proper
implementation in developing country, like India.
By:- Nilesh Ranjan And Chhavi Bahal, 3rd year, B.A LL.B (Hons.), Faculty
of Law, ICFAI University Dehradun
1
Taking Action, Chapter 2 pg 3. Published by the United Nations
Environmental Programme[sic]. Found at
www.rona.unep.org.action.02.htm.
2
Sadeleer 2000 at 23-32
3
Macrow 2004.
4
For a more thorough discussion, see Bugge 1996 at 53-90
5
Environment Directorate, OECD, The Polluter-Pays Principle: OECD
Analyses and recommendations, at 9. Doc.
OCDE/GD(92)81 (1992) [hereinafter OECD, PPP Analyses].
6
Single European Act, 17 Feb, 1986, 1987 OJ (L 169)1.
7
United Nations Conference on Environmental and Development, Rio
Declaration on Environment and Development, UNCED Doc.
A/CONF.151/5/REV,1,31 ILM 874 (1992)[hereinafter Rio
Declaration].
8
Michael G. Faure, The Economic Analysis of Environment Policy and
Law: An Introduction, Edward Elgar Publishing, 2003.
9
Environment and Economics: Guiding Principle Concerning International
Economics Aspects of Environmental Policies, Annex 1, OECD Doc.
C(72)128, (May 26, 1972), available at 1972 WL 24710
10
WWW.eoearth.org/article/Polluter_pays_principle.
11
Rio Declaration on Environment and Development, United Nations
Conference on Environment and Development, UN.Doc. A/CONF.
151/5/Rev.1 (1992), reprinted in 31 I.L.M. 874,878(1992).
12
John Batt and David C. Short, The Jurisprudence of the 1992 Rio
Declaration on Environment and Development: A Law, Science, and Policy
Explication of Certain Aspects of the United Nations Conference on
Environment and Development, 8 J. NAT. RESOURCES 8: ENVTL. L.
229,230(1993)
13
Rio Declaration at 879.
14
See Sanford E. Gaines, The Polluter-Pays-Principle: From Economic
Equity to Environmental Ethos, 26 TEX, INT’L LJ. 463,480 (1991)
15
J. Whitney Pesnell, The Contribution Bar in CERCLA Settlements and Its
Effect on the Liability of Nonsettlors, 58 LA. L. REV. 167,190 (1997)
16
Inserted by the Constitution (42nd Amendment) Act, 1976.
17
State of Tamil Naduvs. Hind Store, AIR 1981 SC 711;see also Rural
Litigation and Entitle Ji : at Kendra vs.
State of U.P., Air 1987 SC 359.
18
E.g. Indian Forest Act, 1927; The Factories Act, 1948; The Atomic Energy
Act, 1962; Insecticide 1968.
19
M.C.Mehta v. Union of India, AIR 1988 SC 1037. See also Bhavani River v.
Sakthi Sugar Ltd. AIR 1998 SC 2059.
20
Substituted for ‘70%’, w.e.f. 26th January, 1992.
21
M.C.Mehta v .Union of India, AIR 1998 SC 2963.
22
Supra note 2 , p.68.
23
See Public Liability Insurance Act, 1991, the schedule.
24
Anupama Minerals v. Union of India and Others, AIR 1986 AP. 225.
25
Prasad P.M., “Environmental Protection: The Role of Liability System
in India”, Economic and Political Weekly, 17 th January , 2004, on page
257.
26
Ibid.
27
Ott Clause and Schafer Hans-Bernd, “Special Problems in Civil Liability”,
The Economics Analysis of Civil Law, 2004, Edwar Elgar Publishing Ltd,
UK; Ott Clause and Schafer Hans-Bernd,”Widening the Scope of
Environmental liability”, Erling Ide and Roger van den Bergh, Eds, Law
and Economics of the Environment 1996, (J and F), page 109-114.
28
Schafer Hans-Bernd, “The Bundling of Similar Interests in Litigation. The
Incentives for Class Action and Legal Actions Taken by Associations,
“European Journal of Law and Economics, 2000, page 183.
29
Raja, A.V and Rathinam, Francis, “Economics Efficiency of Public Interest
Litigations (PIL): Lessons from India” Munich Personal RePEc Archive,
MPRA Paper No. 3870, June 2005, Munich Germany, downloaded from
MPRA at http://mpra.ub.uni-muenchen.de/3870/ on July 17, 2008.
30
OECD: “Recommendation of the Council concerning the Application
of the Polluter-Pays-Principle to Accidental Pollution C (89)88.” ,
1989, Paris, France.
31
Supra Note 68.