Compatibility between Indian Environmental Laws and International Conventions DISSERTATION
SUBMITTED IN THE PARTIAL FULFILLMENT OF THE REQUIREMENT FOR THE AWARD OF THE DEGREE OF BACHELOR OF LAW
Submitted By: A3208305053
Under the Supervision of MS. Shruti Sharma Lecturer
AMITY LAW SCHOOL, NOIDA UTTAR PRADESH 2010
TABLE OF CONTENTS
1. 2. 3. 4. 5. Certificate Acknowledgment Table of cases Introduction Chapter 1: ENVIRONMENTAL ACT AND BASIC PRINCIPLES 1.1 PRECAUTIONARY AND POLLUTOR PAYS PRINCIPLE 1.2 PUBLIC TRUST DOCTRINE,INTERNATIONAL EQUITY 1.3 SUSTAINABLE DEVELOPMENT 1.4 LIBERALISATION AND ECONOMIC APPROACHES
III IV V 1 12 13 13 14 16
Chapter 2: CONSTITUTION OF INDIA AND ENVIRONMENT 2.1 CONSTITUTION ARTICLES 2.2 RIGHT TO KNOW, WRITS REMEDIES 2.3 PUBLIC INTEREST LITIGATION
19 19 22 23
Chapter 3: LAW OF TORTS, CRIMES AND ENVIRONMENT 3.1 LAW OF TORTS 3.2 LAW OF CRIMES
Chapter 4: INDIAN ENVIRONMENTAL ACTS AND PROTECTION 4.1 THE WATER ACT 4.2 THE AIR ACT 4.3 NOISE AND HAZARDOUS SUBSTANCE REGULATION 4.4 THE BHOPAL GAS 4.5 THE ENVIRONMENTAL ACT
32 32 88 36 39 44
Chapter 5: INTERNATIONAL ENVIRONMENTAL LAW AND GLOBAL ISSUES
5.1 ENFORCEMENT OF INTERNATIONAL LAWS 5.2 STOCKHOLM, MONTREAL, KAULA LUMPUR CONFERENCE 5.3 RIO, ADENDA-21, BIO-DIVERSITY 5.4 KYOTO AND BIO-SAFETY PROTOCOL 5.5 SUSTAINABLE DEVELOPMENT, JOHANNASBURG,COPENHAGEN
50 52 54 57 60
Chapter 6: Conclusion and Suggestions 5.1 Conclusion 5.2 Suggestions
67 67 92
11. Bibliography I Primary Sources 107
II Secondary Sources III Other Sources
AMITY LAW SCHOOL CERTIFICATE
I have the pleasure to certify that A3208305053, a student of Amity Law School, Noida, has pursued his research work and prepared the present dissertation entitled ‘Compatibility between Indian Environmental Laws and International Conventions”. To the best of my knowledge, the dissertation is the result of his research. This is being submitted to Amity University for the Degree of Bachelors of Law in partial fulfilment of the requirements of the said Degree. MAJ. GEN Nilendra Kumar Director Amity Law School, Noida Block, I-2, Sec.-125 Amity Campuses Amity University, Noida. Noida. Mrs. Shruti Sharma Lecturer Amity Law School, Noida Block, I-2, Sec.-125 Amity Campuses Amity University,
This Dissertation is an outcome of study by the author. Any material written by another person that has been used in this paper has been thoroughly acknowledged. As my research for this dissertation has concluded, there are a number of people I would like to thank for this successful attempt. I thank the esteemed Director of the Institution, MAJ. GEN Nilendra Kumar for inculcating the concept of preparing a Dissertation and allowing me to present my viewpoints in a liberal manner. In addition to this, I would like to show my heart-felt gratitude to Ms. Shruti Sharma, who undertook the role of a supervisor, mentor and guide for the successful preparation of this Dissertation. I would also like to thank the Additional Director of Law, Mr. Ishwar Singh and the Jury Shristi National Energy Conservation, Mr. Satish Tamta, for guiding me through research on the topic. I would like to thank Dr. Kanwal D.P.Singh for guiding me during the preparation of this Dissertation. On a personal level, I would like to extend appreciation towards my family and friends who supported me throughout.
A3208305053 B.A LL.B. (Final Year)
TABLE OF CASES
S.No. Name of the Cases Citation Page no.
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18.
A.P pollution Control Board Case] M.C Mehta v Kamal Nath Dehradun Quarrying Case JAGANNATH V UOI Vellore Citizens’ Welfare Forum V UOI L.K Kollwal V State of Rajasthan D.V Vyas v Ghaziabad Development Authority Kinkri Devi v State of H.P. ..Menaka Gandhi v Union of India Ganga Pollution (Tanneries) Case State of U.P v Raj Narain Bombay Environmental Action Group v Pune Cantonment Board Rampal v state of Rajasthan Hussainnara Khatoon v Home Secretary, State of Bihar .M.C Mehta v Union of India (TTZ) Durga Prasad v State Union Carbide Corporation V Union of India J.C Gasltaun v Dunia Lal Seal 6
AIR1987 SC982/ SC1086 (1997) 1 SCC 388 AIR 1987 SC 359 (1997)2 SCC87 AIR 196 SC 26715 AIR 1988 Raj. 2 AIR1993 All. 57 AIR 1988 HP 4 AIR 1978 SC 597 AIR 1987 SC 1086 AIR 1975 SC 865 Writ petition no. 2733 of 1986 AIR 1981 raj 121 AIR 1979 SC 1360 AIR 1997SC 734 AIR 1962 Raj. 92 AIR 1990 SC 273 1905 9 CWN 612
12 13 14 14 15 19 19 21 21 21 22 22 22 24 25 26 27 28
AIR 1987 Karnt. 87 19. 20. 21. Govind Singh v Shanti Sarup 22. U.P PCB v Modi Distillery 23. K. K. Nandi v Amitabha Banerjee, 24. Mahmood Ali v State of Bihar 25. Haryana St. Board v Jai Bharat Woollen 26. U.P PCB v Mohan Meakins Ltd 27. Orissa SPCB v Orient Paper Mills 28. M.C Mehta v Union of India 29. State of Rajasthen v G. Chawla 30. Foundation for Science v UOI 31. Trails Smelter Arbitration 32. 33. The Corfu Channel Case M.C. Mehta v Union of India 1939_ AJIL, p.182 194135 JIL,p484 U.K V Albania 1949 ICJ AIR 1987 SC 1086 2003 (8) SC258 AIR 1959 SC 544 1991 2 SCC 137 AIR 2003 SC 1066 AIR 2000 SC 1456 1993 For Lt101 AIR 1986 Pat133 1983 CrLJ 1479. A.I.R 1988 SC 1128 Mukesh Textike Mills (P) LTD. v H.R Subramanya Sastry AIR 1980 SC 1623 Ratlam Municipality v Vardhichand AIR 1979 SC 143
31 34 34 34 34 34 36 36 37 38 51
FLASHBACK OF INDIAN ENVIRONMENTAL POLICY AND LEGISLATION The term “environment” includes air, water and land and interrelationships which exist among and between these basic elements and human beings and other living organisms. Besides the physical and biological aspect, the “environment” embraces the social, economical, cultural, religious, and several other aspects as well. The environment, thus, is an amalgamation of various factors surroundings an organism that interact not only with the organism but also among themselves. It means the aggregation of all the external conditions and influences affecting life and development of organs of human beings, animals and plants. In India, attention has been laid right from the ancient times to the present age in the field of environment protection and improvement. Historically speaking, the laws relating to environment were simple but quite effective and the people were aware of the necessity of the environment protection. For this, one have to view the policies over the years India had observed during the rule of various empires.
Policy and Laws in Ancient India
In the ancient India, protection and cleaning up of environment was the essence of the Vedic culture. The conservation of the environment formed an ardent article of faith, reflected in the daily lives of the people and also enshrined in myth folklore, art, culture and religion. In Hindu theology forests, trees and wildlife protection held a place of special reference. A.READINDS FROM THE ANCIENT INDIAN LAW
GUPTA; KAUTILYAN JURISPRUDENCE, 155 (1987) LAW CONCERNING FORESTS
State to maintain forests: The ruler shall not only protect produce- forests, elephantforest but also set up new ones. Forests shall be grown, and foresters’ working in the produced-forests shall be settled there. Forest reserves for the wild animals: On the borders of the country or any other suitable locality, forest shall be established where all animals are welcomed as guests and given full protection. Protection of wild life: The superintendent of the slaughter house shall punish, with the highest amercement, a person for entrapping, killing or injuring deer, bison, birds or fish which are declare to be under state protection. For entrapping, killing or injuring fish and birds whose killing is forbidden, he shall be impose a fine of twenty -- six panas and three quarters, for entrapping deer and beasts, double that. One- sixth of live animals and birds shall be let off in forests under the state’s permission. Fee for hunting: Of those killing is permitted and who are not protected in enclosures. The superintendent of the slaughter house shall receive one sixth shares of fishes and birds, one-tenth share of deer and beasts, in addition to duty.
5th PILLAR EDICT1 This speaks the Beloved of the Gods, the king Piyadassi: When I have been consecrated for twenty-six years I forbade the killing of the following species of animals, namely; parrots, mainas, red-headed, domesticated animals, and all the quadrupled which are of non utility are not to be eaten. Capons must not be made. Chaff which contains living animal should not to be set on fire. Forests must not be burned in order to kill living things or without any good reason. An animal must not be fed with another animal. On the first full moon days of the three four-monthly seasons, and for three days when the full moon falls on the star Tisya, and the fourteen and fifteenth of the bright fortnight, and first of the dark, and on the regularly on fast days, fish are not to be caught or sold. And on these same days in the elephant-park and fisheries, other classes of animals likewise must not be killed. On the days of the stars Tisya and Punarvasu, on the first full moon days of the four-monthly seasoned, and on the fortnights following them, cattle and horses are not to be branded. Under the Hindu culture moral injunctions acted as guidelines towards environmental preservation and conservation. For instances, to maintain the quality of water and to avoid the water pollution, Manu advised not to contaminate water by urine, stool or coughing, un-pious objects, blood and poison. Yagyavalkya Smriti and Charak Samhita give many instructions for the use of water for maintaining its purity. Under the Arthashastra, various punishments were prescribed for cutting trees, damaging forests, and for killing animals. The State assumed the functions of maintenance of forests, regulation of forest produce and protection of wildlife. Arthashatra also prescribed punishment for causing pollution and un-civic sanitation. Thus, ancient India had a philosophy of environmental management principally enshrined in old injunctions as they were contained in many scriptures and smritis. The environment ethics of nature conservation were not only applicable to common man but the ruler and kings were bound by them.
Policy and Laws in Medieval India
During the mogul period environment conservation did not receive much attention. ‘To Mogul rulers, forest meant no more than woodlands where they could hunt. To their governors, the forests were properties which yielded some revenue. Barring ‘royal trees’ which enjoyed patronage from being cut except upon a fee, there was no restriction on cutting of other trees. Thus, forests during this period shrank steadily in size”. However, the forests were managed with the help of a complex range of rules and regulations woven around the socio-cultural features as well as the economic activities of local communities. Further, the religious policy of Akbar based on the principle of complete tolerance also reflect concern for the protection of birds and beasts in so much so as endeavours were taken during his reign to stop the unnecessary killings.During medieval era, another set of legal principles were inducted, governed by the holy KORAN which declares that “we made from water every living thing”.
Policy and Laws in British India
1 THAPAR; ASOKA AND DECLINE OF THE MAURYA, 264(2nd ED.1973) 9
B.READING ON FOREST POLICY AND LEGISLATION2 BY AROUND 1860, Britain had emerged as the world leader in deforestation, devastation its own woods and the forest of Ireland, South Africa and north eastern United States to draw timber for shipbuilding, iron-smelting and farming. In the early nineteenth century, the Raj carried out a fierce onslaught on the subcontinent’s forests. The revenue orientation of the colonial land policy also worked towards the denunciation of forests. This process greatly intensified in the early years of building of the railway network after about 1853. the sub-Himalayan forest of Garhwal and Kumaon, for example, were all `felled in even to desolation’, and ‘thousand of trees were felled which were never removed, nor was their remove was possible’. * * *
The imperial forest department was formed in1864, with the help of experts from Germany, the country which was at the time the leading European nation in forest management. The first inspector-general of forests, Dietrich Brandish, had been a botanist and recognise awesome task of checking the deforestation, forging legal mechanism to assert and safeguard states control over the forests. it was his dual sense that the railway constituted the crucial watershed with respect to the water management in India- the need was felt to start an appropriate department, and for its effective functioning legislation was required to curtail the previously untouched access enjoyed by the rural communities. Before its too late recognition of the strategic importance of forests, the policy of the colonial state has been to recognise forests and wasteland as the property of the village communities within those boundaries these fell. The first attempt at asserting state monopoly was through the Indian forest act of 1867.hurriedly drafted 1867 act was passed to facilitate the acquisition of those forest areas that were earmarked for railways supplies it merely sought to establish the claims of the states to the forests it immediately required, subject to the proviso that existing rights not to abridged. A preliminary draft, prepared by Brandis in 1869, was circulated among the various presidencies. A conference of forest officers, convened in 1864 * * *
Adducing no evidence, Baden –Powell [ a civil servant] claimed that ‘the right of the state to dispose of or retain for public use the waste and forest area, is among the most ancient and undisputed of features in oriental sovereignty’. ‘In India’, an official primer on forest law likewise affirmed, ‘the government id by ancient law …the general owner of all unoccupied and wasteland’. The ‘right’ of oriental governments
2AN ECOLOGICAL HISTORY OF INDIA, 118 (1993). 10
‘The right to conquest is the strongest of all rights – it’s like a right against there is no appeal. Counter posed to this claim of an old age right was a total denial of legitimacy of any state intervention in the forest. The madras government rejected Baden-Powell‘s tendentious distinction between legally proven ‘rights’ and ‘privileges’ exercised without written sanction. It states that all instances of the use of the forest by the people should be taken as presumptive evidence of property therein’. Both; private grantees and village and tribal communities have cherished and maintain these rights [in the forest] with the same tenancy with which private property in land is maintained elsewhere’. * * *
The 1878 act was a comprehensive piece of legislation which, by one stroke of the executive pen, attempted to obliterate centuries of customary use by rural populations all over India. It provided for three classes of forest. ‘Reserved forests’ consisted of compact and valuable area. Well connected to town s, would lend them to sustained exploitation. In reserved forests a legal desperation of rights were aimed for, it being thought to be advisable to safeguard total control by a permanent settlement that either extinguished private rights, transferred from elsewhere, or in exceptional cases allowed their limited exercise. In the second category, the so called ‘protected forests’ (also controlled by state), rights were recorded but not settled. Given increased commercial demand and their relatively precarious position from the government point, the protected areas were gradually converted into reserved forests where the state could exercise fuller control. The act also provide for the constitution of a third class of forests- village forests- although the option was never exercised by the government over the most part of the sub-continent. Finally, the new legislation greatly enlarged by the punitive sanctions available to the forest administration, closely regulating the extraction and transit of forest produce and prescribing a detail set of penalties for transgressions of the act.
The continuity between the forest policies of colonial and independent India is exemplified by the national forest policy of 1952. Upholding the ‘fundamental concepts’ of its predecessor – the forest policy of 1894- it reinforces the right if the state to exclusive control of state over forest protection, production and management. With the integration of the princely state into the Indian Union, the forest department in fast considerably enlarge its domain in the early years of independence. While inheriting the institutional framework of colonial forestry, however, the new government put it slightly different uses. The major difference uses. The one major difference in the post -1947 situation has been the rapid expansion of forest-based industry. The demands of the commercial- industrial sector have strategic imperial needs as the cornerstone of the forest policy and management.
Policy and Laws in Independent India
The Indian Constitution, as adopted in 1950, did not deal with that the subject of environment or prevention and control of pollution as such (until 1976 Amendment).The original text of the constitution under Article 372(1) has incorporated the earlier existing laws into the present legal system and provides that notwithstanding the repeal by this constitution of enactment referred to in article 397, but subjected to the other provisions of the constitution, all laws in force immediately before the commencement of the constitution shall remained in force until altered,repealed or amended by a competent legislature or other competent authority. As a result, even after five decade of independence. The plethora of such laws is still in operation without any significant changes in them. The two early post- independence laws touched on water pollution .The Factories Act of 1948 required all factories to make effective arrangements for waste disposal and empowered state governments to frame rules implementing this directive. Under the River Boards Acts of 1956, rivers boards established are empowered to prevent water pollution of inter-state rivers. To prevent cruelty to animals, the Preventions of Cruelty to Animal Act was framed in 1960. Some states took initiative in the fields of environment protection, viz. Orissa River Pollution Prevention Act, 1953, and, Maharashtra Prevention of Water Pollution Act, 1969. While the Orissa Act was confined only to the rivers, the Maharashtra Act extended to rivers, watercourses, whether flowing or for the time being dry, inland water both natural and artificial, and subterranean streams. Thus there were scattered provisions for checking pollution of air, water etc. but there was no unified effort in developing any policy concerning the pollution emanating from these areas. This position went up to the seventies. Meanwhile concern arose over, inter alia population increase, greater pollution levels; human impact on animal population increase, greater pollution levels; and natural landscapes and other aspects of resource depletion. It was the Stockholm Declaration of 1972 which turned the Indian Government to the broader prospective of environmental protection. The Government made its stand well known through five year plans as well as the legislation enacted subsequently to curb and control environmental pollution.
C.READINGS ON INDIA’S ENVIRONMENTAL POLICY IN THE 1970s
In the summer of 1972, Stockholm staged the first UN Conference held specifically to consider global environment conditions. Official from 113 countries participated in the deliberations which culminated in the adoption of a declaration and an Action Plan, Prime Minister Indira Gandhi was amongst the leaders of the third world who addresses the conference.
GANDHI; ADDRESS OF PRIME MINISTER AT THE UNITED NATIONS ON THE HUMAN ENVIRONMENT, Stockholm, 14 June 1972 On the one hand the rich look askance at our continuing poverty – on the other hand, they warn us against their own methods. We do not wish to impoverish the environment any further and yet we cannot for a moment forget the grim poverty of large numbers of people. Is not poverty and need the greatest polluters? For instance, unless we are in the position to provide employment and purchasing power of daily necessity of the tribal people and those live around our jungles, we cannot prevent them from combing the forest for food and livelihood; from poaching and despoiling the vegetation. When they themselves feel deprived, how can we urge the preservation of animals? How can speak to those who live in village and in slums to keep the ocean clean when their own lives are contaminated at the source? The environment cannot be improved in the conditions of poverty. Nor can poverty be eradicated without the use of the science and technology. The year 1972 marks a watershed in the history of environment management in India. Prior to 1972 environment concern such as sewage, disposal, sanitation, and public health were dealt with by different federal ministries. A committee on the Human Environment under the chairmanship of Pitambar Pant, member of the Planning Commission, was set up to prepare India’s report. With the help of these reports, it has been realise that unless a national body was established to bring about coherence in the environment policies and programmes and to integrate environment concerns in the plans for economic development, an important lacuna would remain in India’s planning process. Consequently on 12 April 1972 a National Committee on Environment Planning and Coordination (NCEPC) was established. The NCEPC was an apex advisory body in all matters relating to environmental protection and improvement .at its inception the Committee consists of fourteen members drawn from various discipline concerned with the environmental management. Most of the non-official members were specialist. The committee plans to coordinate, but the responsibility for execution remained with the various ministries and government agencies. Over the time the composition of the NCEPC changed significantly. While the membership of NCEPC increased from 14 in 1972 to24 in 1977 to 35 to 1979,the number of non-officials decision making more complex. Consequently the cooperation of other department also decreased, exacerbated by the fact that different departments had started to view the committee as intruder. The Fifth Five Year Plan (1974-79) stressed that the NCEPC should be involved in all major industrial decisions. The plan also emphasised that a link and balance between the development planning and environment management is too maintained. In this context the Minimum Needs Programme (concerning rural and elementary education, rural health and sanitation, nutrition, drinking water, provision of housing sites and slum improvement) received a fairly high priority.
In this Sixth Year Plan (1980-85), an entire chapter on ‘Environment and Development ‘ was included that emphasised sound environment and ecological principle in land use, agriculture, forestry, marine exploitation , mineral extraction , fisheries, energy production and human settlement. It provided environmental guidelines to be used by administrator and resource managers when formulating and implementing programmes, and lay down an institutional structure for environmental management by the central and state governments. The basic approach taken by the Seventh Plan (1985-90) was to emphasise sustainable development in the harmony with the environment, as the federal government has recognised the negative effects that development programmes were having on the environment. The Plan called for the government and voluntary agencies to work together to create environmental awareness because improving quality of the environment required the involvement of the entire public. The Eight Five Year Plan (1993-97), because of the uncertain political situation in India, came out in 1992 rather than 1900. It gave an important place to the environment by moving it to the fourth category of subjects examined in the text. The Plan stated:Systematic efforts have been made since the Sixth Plan period to integrate environmental considerations and imperatives in the planning process in all the key socio-economic sectors. As the result of sustained endeavour. Planning in all major sectors like industry, science and technology, agriculture, energy and education includes environmental consideration.
D.POLICY SINCE THE MID-1980s
The continuing decline in the quality of environment, together with the tragedy at Bhopal in which leak a from a pesticide factory killed more than 2,500 people and injured several thousand others, has spurred the Central Government and a few state government to adopt stronger environment policies, to enact fresh legislation and to create, recognise and expand administrative agencies. In December, 1988 the Union Ministry of Environment and Forests constitute a committee to recommend a framework and an action plan for the conservation of resources. National Conservation Strategy and policy on environment and development formed in June, 1992(NCS)3. the preamble to the NCS adopt the policy of ‘Sustainable Development’. In February 1992 the Union Government published its policy for the abetment of pollution4. this statement declares the objective of the government to integrate environmental considerations into decision-making at all levels. To achieve this goal, the statement adopts fundamental guidelines principles, namely (i) prevention of pollution at source., (ii) the adoption of the best available technology .(iii)the polluter pays principle; and (iv) public participation in the decision making. 3 MEnF, GoI, NCS and policy statement on Environment and Development (june1992).
4.MEnF,GoI,Policy Statement for Abetment of Pollution(26 Feb1992) 4
1.My aim is to proof whether the Indian environmental laws in relation to air, water, noise, hazardous substances sustainable development and bio-diversity are compatible to international law on climate; and 2. if ,yes then why the international laws are unable enforce themselves as the local laws. 3. Whys these conventions are proving to be failure and what lacks in our local laws.
OBJECTIVE OF STUDY
To study and examine the existing mechanism for dealing with environment related disputes.
1. To study and examine the existing mechanism for dealing with environment related disputes.
2. To determine why Environmental Agencies lack enforcement and depends upon various Municipal and Criminal laws and why burden is always on Courts
3. To examine if the Indian Environmental Law alone would provide easy access
to justice to the victims of environmental consequences.
4. To examine the scope and ambit of the Indian Environmental Law to deal with
Environmental disputes and Global Issue in a holistic manner.
SCOPE OF THE STUDY
The present topic is wide enough to incorporate many dependent and independent variables. The aim of my study is to find whether there is compatibility between the Indian environmental law which still looking for its status quo, highly depends upon constitution and judicial activism and International Law which is professed by global institution’s rules and norms , which are not ardently followed up by major countries and it’s a slow process.
The research methodology followed by me is purely doctrinal and does not involve empirical approach. My research is based on the authoritative texts on The National Environmental Act, 1986, Law of Torts, Indian Penal Code 1860, Civil Procedure Code 1908, Criminal Procedure Code 1973. The Air and Water Pollution Act, Noise and Hazardous Substance Control Regulations Act. Global Issues and UN Conventions, case laws, newspaper articles, Periodicals and internet sites. The sources for the completion of this dissertation will be both primary and secondary. Primary to the extent of that the books will be referred in great depth. Data will be collected from reports, judgements and legislations. Secondary sources such as World Wide Web and articles published therein will also be made use of. Under Doctrinal Data, I plan to collect the following: Books by various authors on environment would be referred to.
1. Cases will be mentioned and in this regard, books, law reporters and software and online material (such as SCC Online and Manupatra) will be referred to. 2. Various Acts and Legislations dealing with Environment Law will be studied. 3. The Constitution of India shall be referred. This dissertation shall comprise of the following chapters:
CHAPTER 1: ENVIRONMENTAL ACT AND BASIC PRINCIPLES. This chapter shall mention the various Primary Principles and Legislation which were generally kept in mind by the policy maker, legislatures, environmental agencies and jurists in matter relating to Indian Environment that have been enacted such as The Water Act, The Air Act, The Environment Protection Act, Noise (Regulation and Control), Regulation of Hazardous Substances. Various judgements passed by the apex court and the High Courts will be reflected in this chapter to demonstrate the Judicial trend dealing with environment related cases. CHAPTER 2: CONSTITUTION OF INDIA AND ENVIRONMENT. This chapter would provide for the options available to the common man in our Constitutional legislations for environmental justice. It would lay down the remedies available to the aggrieved person who has suffered due to pollution.
CHAPTER 3: LAW OF TORTS, CRIMES AND ENVIRONMENT. This chapter would explain the law of Torts, Crimes with purpose of the environmental legislation in mind. It shall also mention the Indian Criminal and Civil Laws including Indian Penal Code and the salient and innovative features how these Codes are helpful in dealing Environment.
CHAPTER 4: INDIAN ENVIRONMENTAL ACTS AND PROTECTION. This chapter will state the legislation regarding Indian Environmental Acts in details with a overview what comes after the Bhopal Gas Tragedy over various issues including accountability, biasness and restricting appeals.
CHAPTER 5: INTERNATIONAL ENVIRONMENTAL LAW AND GLOBAL ISSUES. This chapter dedicated to the global issues with regards to contemporary environmental problems in India and addressing new concepts like bio-diversity, sustainable development and regulated emission etc. all after and from the famous Stockholm Conference. CHAPTER 6: CONCLUSION AND SUGGESITONS. A summary of all that mentioned in the various chapters shall be given. I shall be stating my opinion on whether there is coherence in Indian Environmental Law to embrace policies of Global Convention and if not what is needed to be done to make it work in our favour with its jurisdiction and powers.
CHAPTER 1 ENVIRONMENTAL ACT AND BASIC PRINCIPLES
PRECAUTIONARY AND POLLUTOR PAYS PRINCIPLE The precautionary principle is based on the theory that it is to better to err on the side of the caution and prevent environmental harm which may indeed become irreversible. It involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. Environmental protection should not only aim at protecting health, property and economic interest but also protest the environment for its own sake [A.P pollution Control Board Case]5. The essential ingredients of the precautionary principle are: (i) Environmental measures- by the state government and the statutory authorities- must anticipate, prevent and attack the causes of environment degradation. (ii) When there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measure to prevent environmental degradation. (iii) The “Onus of Proof” is on the actor or the developer/industrialist to show that his action is environmentally benign. (iv) Precautionary duties must not only be triggered by the suspicion of concrete danger but also by concern or risk potential. In M.C.Mehta v Union of India (CNG Vehicle Case) (AIR 2002 SC 1696) The supreme court observed that any ‘auto-policy’ framed by the Government must, therefore, of necessity conform to the constitutional principles well as overriding statutory duties cast upon the government under the EPA. The auto policy must adopt a ‘precautionary principles’ and make informed recommendation s which balance the needs of transportation with the need to protect the environment. POLLUTER PAYS PRINCIPLE IT MEANS THAT ‘Polluter should bear the cost of pollution as the polluter is responsible for pollution’. The principle demands that financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause pollution. Under it, it is not so the role of government to the costs involve in either prevention of such damages, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. It may be noted that the polluter pays principle evolved out of the rule of ‘absolute liability’ as laid down by the apex court in Sriram Gas Leak Case. In the Bichhri
55.AIR1987 SC982/ SC1086
6. Council for Enviro-Legal Action v Union of India AIR1996SC1446
Case6 the apex court nicely weighed and balanced the conspectus of absolute liability and polluter pays principle. The court interpreted the principle to mean that the absolute liability for harm to the environment extended to the cost of restoring the environmental degradation in addition to compensating the victims of pollution. The court observed that Secs. 3 and 5 of the Environment (protection) Act, 1986, empower the Central Government to give directions and take measures for giving effect to this principle. The ‘power to lay down the procedures, safeguards and remedial measures ‘ under the omnibus power of taking all measures impliedly incorporated the polluter pays principle. PUBLIC TRUST DOCTRINE The ancient Roman Empire developed a legal theory known as the “Doctrine if the Public Trust”. the doctrine primarily rest on the principle that certain resources like air, sea, waters and forests have such a great importance to the people as a whole that it would be wholly unjustified to make them subject of private governorship. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in like. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their own use for private ownership or commercial purposes. The Supreme Court in India also recognises that this doctrine is the part of the Indian law. The court in the below mentioned case held that the doctrine of public trust implies following instructions on government authority: “First, the property subject to the trust must not only be used only be used for a public purpose, but it must be held available for the use of the general public. Secondly, the property may not to be sold, even for a fair cash equivalent. Thirdly, the property must be maintained for particular types of uses”. M.C.Mehta v Kamal Nath (SPAN MOTEL CASE).7 A news item appeared in the Indian Express stating that a lease granted by the state government of riparian forest land for commercial purposes to a private company having a Motel located at the bank of river Beas (the family of Kamal Nath, a former Minister for Environment and Forests, had direct a link in the company). The motel management interfere with the natural flow of river by blocking natural relief/spill channel of the river, ostensibly to save the Motel from the future floods. The Supreme Court taking note of the news item and consequent writ petition held that the State Government committed a breach of public trust by leasing the ecologically fragile land to the management. The court quashes the lease and the prior approval granted by the State Government and Ministry E&F. The resolution of ‘environmental-development’ conflict in any given case is for the legislature and not to the legislature and not the courts. But in the absence of any
7M.C Mehta v Kamal Nath (1997) 1 SCC 388 20
legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. INTERGENERATIONAL EQUITY Intergenerational equity i.e. moral obligation of the present generation to manage the earth in a manner without jeopardizing the aesthetic and economic welfare of the future generations is advanced as an argument in favour of sustainable development’ If the present generation continues to consume and deplete resources at unsustainable rates, future generations will suffer the environmental (and economical) consequences. The origins if the principle can be seen in the principles 1 and principle 2 of the Stockholm declaration, these principle lays down the solemn responsibility of the man to safeguard the natural resource of the earth for the benefit of the present and future generations through careful planning and management, the report of WCED8 emphasizing the importance of sustainable development talked not only to the equity for the present but of intergenerational equity. And thus the wheel of human reasoning came full circle – 2000 years age the Isopanishad had stated: “All, in this manifest world, consisting of moving or non-moving, are governed by the Lord. Use its resources with restraint. Don’t grab the property of others- distant and yet to come.” In Dehradun Quarrying Case9 the Supreme Court of India observed: “We are not oblivious of the fact that natural resources have got to be tapped for the purposes of the social development but one cannot forget at the same time that tapping of resources have to be done with requisite attention and care so ecology and environment may not have to suffer in the serious way. It has always to be remembered that these are the permanent assets of mankind and not indented to be exhausted in one generation”. In Shrimp Culture Case10 the apex court opined that sustainable development should be the guiding principle for ‘shrimp agriculture’ and by following natural method, though the harvest is small but sustainable over long periods and it has no adverse effect on the environment and ecology, it held that there must be an Environment Impact Assessment (EIA), before permission is granted to install commercial shrimp farms. The assessment must be taken into consideration the intergenerational equity. SUSTAINABLE DEVELOPMENT ‘Sustainable Development’ means an integration of development and environment imperative; it means development in harmony with environmental considerations. To 8 Brundtland Report, 1987.
9.AIR 1987 SC 359 supra page 17 10.SHRIMP CULTURE CASE- JAGANNATH V UOI (1997)2 SCC87 9 10
be sustainable, development must posses both economic and ecological sustainability. It is a development process where exploitation of resources, direction of investment, orientation of technology development and institutional changes are all in harmony. Sustainable development also implies local control over the resource use, and is the only path for conserving and promoting socio-economic well being in a democratic form. However pursuit of sustainable development is not going to be easy as it depends upon several factors and requires socio-economic restructuring e.g. policy changes, institutional development, law enforcement, close interaction, among various sector and a high level of awareness among all sections. But, we Indians have an ethos and tradition of conservation and sustainable development which have sustained us in the face of adversaries. ‘eco-development’ is a related concept. It is a process of ecologically sound development, of positive management of environment for human benefits. For example banning tree felling in reserve forests and permitting harvesting of minor forest products by rural poor and tribal; development of community or common lands for rural subsistence needs of industries, towns and villages. These are the components of the “new development strategies”. The component of eco-development also includes alternative development strategies; biogas, substitute for natural resources, social forestry, micro irrigation and recycling of waste to prevent pollution. The Report of WCED11 1987 produced a document defining and explaining the concept of sustainable development. “Sustainable development is development that meets the Needs of the present without compromising the ability of the future generations to meets their own needs”. Vellore Citizens Case12 is a landmark judgement where the principle of sustainable development has been adopted by the Supreme Court as a balancing concept. While rejecting the old notion that development and environmental protection cannot go together, the apex court held the view that sustainable development has now come to be accepted as “ a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystem.” Thus, pollution created as a consequence of development must be commensurate with the carrying capacity of our ecosystem. FACTS - In this case, certain tanneries in the State of Tamil Nadu were discharging untreated effluent into agricultural fields, roadsides, waterways as open lands. The untreated effluent finally discharges in the river which has the main source of water supply to the residence of Vellore. The Supreme Court issued comprehensive directions for maintaining the standards stipulated by the Pollution Control Board. OBSERVATIONS - The Supreme Court Observe that the “precautionary principle” and the “polluter pays principle” are part of the Environment law of the country. These principles are essential features of “Sustainable Development.” The “precautionary principle” in the context of the municipal law means: (i) Environmental measures by the State Government and the statutory authorities – must anticipate , prevent and attack the cause of the environmental degradation(ii) Where there are threats of serious irreversible damages, lack of scientific certainty should not 11 Brundtland Report, 1987-Caring for the Earth: A Strategy for Sustainable Living.
12..Vellore Citizens’ Welfare Forum V UOI (AIR 196 SC 26715 12
be used as a reason for postponing measures to prevent environmental degradation . (iii) The “onus of proof “in on the actor /industrialist to show that his action id environmentally benign. The Supreme Court observed; Sustainable Development as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features have yet to be finalised by the International Law Jurists. Some of salient principles of “Sustainable development”, as called out from Brundtland Report and other international are- Intergenerational Equity, Use and Conservation of Natural Resources, Environmental Protection , the Precautionary Principle, Polluters Pays, Principle, Obligation to assist and co-operate, Eradication of Poverty , and, Financial Assistance to the developing countries. DECISION: - The Supreme Court directed the Central government to constitute an authority under sec. 3 of the Environment Act, 1986 and confer on the said authority all the powers necessary to deal with the situation created by the powers necessary to deal with the situation created by the tanneries and other polluting industries in the State of Tamil Nadu. The authority (headed by retired judge of the High Court) shall implement the precautionary and polluter pays principles. The authority should compute the compensation under two heads, namely, for reserving the ecology and for the payment to individuals. E. LIBERALISATION AND ECONOMIC APPROACHES Since 1991 India has adopted new economic policies to spur development. In an effort to integrate the Indian economy with the Global Trade, the Government has reduced industrial regulation, lowered international trade and investment barriers and encouraged export-oriented enterprise. Some commentators fear that liberalisation will exacerbate environment problems and increase inequalities.13On the more positive note let there is assessment of economic tools and a call to rein on pollution through a system of economic incentive. PANDIAN AND CAMPBELL14: Despite the progress made under India’s environmental command and control regulations. India’s environment is degrading rapidly. A recent World Bank study estimate that environmental damage in India amounts to US $9.7 billion per year, or 4.5 percent of India’s Gross Domestic Product. The 1995 Economic Survey of the Government of India indicates that 90 percent of water in241 cities is polluted; moreover, 54 percent of the urban and 97 percent of the rural population have been cut by 35.5 percent over the last five yearsa time when the government’s economic liberalisation policies are likely to increase the pollution problem. The quality of life for many citizens, particularly those residing in urban areas, is at unacceptable level. In fact, the most challenging environmental problem s facing India stem from the rapid growth of large, polluting industries in urban areas. 13 R. Sudarshan, Liberalization and the Environment, The Hindu
14. PANDIAN AND CAMPBELL; ECONOMIC APPROACH ES FOR A GREEN INDIA, 1 (1999) 14
For years, industrial development came without rather planning or environmental controls. In sum, the command and control regulatory approach towards environment protection in India has failed to do the job. Penalties are too trivial to deter polluters; bribes often subvert regulatory intent; and the government agencies rarely use their power to shut down offending industries because of the economic dislocation that would result. Market driven solutions to environmental problems, as a complement to existing laws and rules, could result in a better use of scarce societal resources and better environmental protection as industry itself decides how to use its resource to abate pollution. After 1970, comprehensive (special) environment laws were enacted by the Central Government in India: Wildlife (Protection) Act, 1972, aimed at rational and modern wild life management. Water (Prevention and Control of Pollution) Act, 1974, provides for the establishment of pollution control boards at Centre and States to act as watchdogs for prevention and control of pollution. Forest (Conservation) Act, 1980 aimed to check deforestation, diversion of forest land for non-forestry purposes, and to promote social forestry. Air (Prevention and Control of Pollution) Act, 1981, aimed at checking air pollution via pollution control boards. Environment (Protection) Act, 1986 is a landmark legislation which provides for single focus in the country fro protection of environment and aims at plugging the loopholes in existing legislation. It provides mainly for pollution control, with stringent penalties for violations. Public Liability Insurance Act, 1991 provides for mandatory insurance for the purpose of providing immediate relief to person affected by accidents occurring while handling any hazardous substance. National Environment Tribunal Act, 1995, was formulated in view of the fact that civil courts litigations take a long time (as happened in Bhopal Gas Tragedy Case). The Act provides for speedy disposal of environment related cases through environment tribunals. Under the Act, four branches of the Tribunal will be set up in Delhi, Calcutta, Madras and Mumbai and 8000 of the most Hazardous industrials units in the country will be brought under its security. National Environment Appellate Authority Act, 1997, provides for the establishment of a National Environment Appellate Authority (NEAA) to hear appeals with the respect to restrict in areas in which any industries, operations or process shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986. Biological Diversity Act, 2002, is a major legislative intervention affected in the name of the communities supposed to be involved in the protection of biodiversities around 24
them; The Act intends to facilitate access to genetic materials while protecting the traditional knowledge associated with them. DRAFT NATIONAL ENVIRONMENT POLICY, 2004 The Union Ministry of Environment and Forests has released a draft environment policy called the ‘National Environment Policy 2004 (NEP).’ Its preamble states that there is a need for a comprehensive policy statement “in order to infuse common approach to the various sectors, cross sectional, including fiscal approaches to environmental management”. At present country lacks a comprehensive policy enunciating environmental chllenges and solutions, there are different policies to guide different policies to guide different sectors; the National Forest Policy, 1988; The National Conservation Strategy and Policy Statement on the Environment and Development, 12992; Policy Statement on Abetment of Pollution , 1992; The National Water Policy, 2002. The NEP 2004 would serve as the basis for “reviewing objectives, instruments and strategies” embodied in other policies and laws pertaining to the environment. The preamble further states that NEP id “intended to be a guide to action”. The NEP states the environmental challenges as; increased poverty because of environmental degradation; increased health burden, and global environmental concern like climate change. In its assessment: “Activities undertaken in the process of development or poverty by themselves do not cause environmental degradation; rather, it is caused by institution failures such as lack of clarity on the rights of access and the use of environmental resources, improper policies such as subsidies ( direct or indirect) for the use of certain resources market failures linked to inadequate regulation and limits on government”. Therefore, the challenge is to balance aspirations with protection and sustainable use of natural resources, by concerning anomalies in regulations, in policies and in institutions and practices.
CHAPTER 2 CONSTITUTION OF INDIA AND ENVIRONMENT
To protect and improve the environment is a constitutional mandate. It is the commitment for a country wedded to the ideas of a welfare State. The Indian constitution contains specific provisions for environmental protection under the chapters of Directive Principles of the State Policy and Fundamental Duties. The absence of any specific provision in the Constitution recognising the fundamental right to (clean and wholesome) environment has been set off by judicial activism in the recent times. Article 48A and 51 (A)(g) A global adaption consciousness for the protection of the environment n the seventies prompted the Indian Government to enact the 42nd Amendment (1976) to the Constitution. The said amendment added Art. 48A to the Directive Principles of State Policy. It Declares:“the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”. A similar responsibility imposed upon on every citizen in the form of Fundamental Duty – Art. 51(A) (g): “to protect and improve the natural environment including forest, lakes, rivers and wildlife, and to have compassion for living creatures”. The amendments also introduced certain changes in the Seventh Schedule of the Constitution. ‘Forest’ and ‘Wildlife’ were transferred from the State list to the Concurrent List. This shows the concern of Indian parliamentarian to give priority to environment protection by bringing it out the national agenda. Although enforceable by a court, the Directive Principles are increasingly being cited by judges was a complementary to the fundamental rights. In several environmental cases, the courts have guided by the language of Art. 48A. and interpret it as imposing “an obligation” on the government, including courts, to protect the environment. In L.K Kollwal V State of Rajasthan15, a simple writ petition by citizens of Jaipur compelled the municipal authorities to provide adequate sanitation. The court observes that when every citizen owes a constitutional duty to protect the environment (Art.51), the citizen must be also entitled to enlist the court’s aid in enforcing that duty against recalcitrant State agencies. The Court gave the administration six month to clean up the entire city, and dismissed the plea of lack of funds and staff. In D.V Vyas v Ghaziabad Development Authority16, the court held that:” Failure to develop public parks embarks in development plan amounts to failure in discharging its (GDAs) responsibility under Art.51A of the Constitution ……in the crowded town the residents do not get anything but an atmosphere polluted smokers and fumes…..parks are the lungs of human beings. 15In L.K Kollwal V State of Rajasthan AIR 1988 Raj. 2
16.In D.V Vyas v Ghaziabad Development Authority AIR1993 All. 57 16
It is the verdant cover provided by the public parks and green belts in towns which renders considerable relief to the public….” It may be noted that the scope of fundamental duty is limited as it refers to only forests, lakes, rivers, and wildlife and uses the expression “natural environment”; it exclude many others in the fields of pollutions such as ‘noise’, ‘light’, ‘radioactive and hazardous’, etc. Further, Art.51-A (g) imposes no obligation on “non-citizens”. Article 246 Art.246 of the Constitution divides the subject areas of legislation between the Union and the States. The Union List (List I) includes defence, foreign affairs, atomic energy, intestate transportation, shipping, air trafficking, oilfields, mines and interstate rivers. The State List (List II) includes public health and sanitation, agriculture, water supplies, irrigation and drainage, fisheries. The Concurrent list (List III) (under which both State and the Union can legislate) includes forests, protection of wildlife, mines and minerals and development not covered in the Union List, population control and factories. From an environmental standpoint, the allocation of legislative authority is an important one – some environmental problem such as sanitation and waste disposal, are best tackled at the local level; others, like water pollution and wildlife protection, are better regulated uniform national laws. Article 253 Art.253 of the Constitution empowers Parliament to make laws implementing India’s international obligations as well as any decision made at an international conference, association or other body. Art.253 states: Notwithstanding anything in the foregoing provision provisions of this chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. The Tiwari Committee in 1980 recommended that a new entry on “environmental Protection” be introduced in the concurrent list to enable the centre to legislate on environmental subjects, as there was no direst entry in the 7 th seventh enables Parliament to enact comprehensive environment laws. The recommendation, however, did to consider parliament’s power under Art.253. Article 14 and Article 19 (1) (g) ART. 14 states: “The states shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’’ The right to equality may also be infringed by government decisions that have an impact on the environment. An arbitrary action must necessary involve a negation of equality, thus urban environmental groups often resort to Art.14 to quash arbitrary municipal permission for construction that are contrary to development regulations.
Besides, Art 14 may also be invoke to challenge Government sanctions for mining and others activities with high environmental impact, where the permission had been granted arbitrarily without an adequate consideration of environmental impacts.17 Article 21 (Right to Wholesome Environment) “No person shall be deprived of his life or personal liberty except according procedure established by law.” In Maneka Gandhi v Union of India18, the Supreme Court while elucidating on the importance of the‘right to life’ under Art. 21 held that the right to life is not confined to mere animal existence, but extends to the right to live with the basic human dignity (Bhagwati J.). In Dehredun Quarrying Case19 the Supreme Court evolved a new right to environment without specifically mentioning it. The case was filed under Art. 32 of the Constitution and orders were given with emphasis on the need to protect the environment. According to a committee of experts appointed by the court, mining of limestone in certain was found dangerous and damaging ecological balance. Similarly while interpreting Art.21 in Ganga Pollution Case20, Justice Singh justified the closure of polluting tanneries observed: “we are conscious that closure of tanneries may bring unemployment, loss of revenue, but life. Health and ecology have greater importance to the people”. While the Apex Courts was reluctant for a shorter period of time to confer specifically a right to a clean and humane environment under Art. 21 of the Constitution,, various High Courts in the country went ahead and enthusiastically declare that that the right to environment was included in the right to life concept in Art.21. In comprehending the right to environment, the High courts were more specific and direct. In the T.Damodar Rao, “the enjoyment of life and its attainment and fulfilment guaranteed by Art. 21 of the Constitution embraces the protection and reservation of nature’s gift without (which life cannot be enjoyed”. It may be noted that as there is no clear-cut provision of the ‘right to environment’, one has to depend upon the continued ‘right to clean environment’; one has to depend upon the continued judicial cooperation. In this context, Professor C.M Jariwal has proposed to amend the Constitution of India and India and include the following provision: Art. 21A Protection of Environment – All persons shall have the right to clean and liveable environment throughout the territory of India subject to any law imposing reasonable restriction in the interest of general public.
1717.Kinkri Devi v State of H.P., AIR 1988 HP 4 1818..Menaka Gandhi v Union of India (AIR 1978 SC 597) 19.Dehradun Quarrying Case AIR 1987 SC 359 20.Ganga Pollution (Tanneries) Case (AIR 1987 SC 1086) 19 20
RIGHT TO KNOW: Non-disclosure id the norm of the India; openness is the exception; there is no specific enactment in India imposing the duty on the government to supply information to an individual seeking it. Instead, government actions are thickly veiled by the archaic Official Secret Act of Act of 2003. The Delhi Government recently enacted Right to Information Act, 2001. In State of U.P v Raj Narain21, the court held that the people have a right to know every public act, everything that is done in a public way, by their public functionaries. In S.P Gupta v Union of India* the court recognised the right to know to be implicit in the right to free speech and expression i.e. Art. 19(1)(a) of Constitution. In Bombay Environmental Action Group v Pune Cantonment Board22, the High Court of Bombay held that a recognised environmental group has a right to examine municipal permission granted to private builders. The judgement is of examine municipal permission granted to private builders. The judgement is of seminar importance because it transforms the right to know from judicial rhetoric into a substantive, enforceable right. More significantly , it recognise s the right to know to be a distinct, self-contained right, independent from the government’s claim to privilege under Indian Evidence Act. Further, the court upholds the petitioner’s right to know without any proof of Government irregularity: Indeed, the only requirements for a recognised environment group asserting this right are that group must act bona fined and for a genuine purpose. The Supreme Court (when the case came before it by a special leave petition), extended this right to all persons residing within the area as well to any social action group, interest or pressure group. Further, the Supreme Court carved a very limited “interests of security” exception to this right (in comparison to High Court’s requirements of “genuine purpose”). CONSTITUTIONAL REMEDIES: THE WRITS A writ petition can be filed to the Supreme Court under Art.32 and the High Court under Art.226, in the case of a violation of a fundamental right. Since the right to a wholesme environment has beemn recognise as an implied fundamental rights, the writ patitions are often restorted to in environment cases. Generally, the writs of Mandamus, Certiorari and Prohibition are used in environmental matters. For instance, a Mandamus (a writ to command action by a public authority when an authority id vested with power and wrongfully refuses to exercise it ) would lie against a municipality that fails to construct sewers and drains, clean street and clear garbage(“ Rampal v State of Rajasthan23), likewise, a state pollution control board may be compelled to take action against an industry discharging pollutants beyond the permissible level. 21 In State of U.P v Raj Narain (AIR 1975 SC 865)
22.Writ petition no. 2733 of 1986 BOMBAY ENV ACTON GROUP 23.Rampal v state of Rajasthan AIR 1981 raj 121 22 23
The writs of certiorari and prohibition are issued when an authority acts in excess of jurisdiction, acts in violation of the rules of natural justice, acts under a law which id unconstitutional, commits an error apparent on the face of the record, etc. For instance , a writ of certiorari will lie against a municipal authority that consider a builder’s applications and permits construction contrary to development riles e.g. wrongfully sanctions an office building in an area reserve for a garden. Similarly, against water pollution control board that wrongly permits an industry to discharge effluents beyond prescribe levels. The writs procedure is preferred over the conventional suit because it is a speedy, relatively inexpensive and offers direct access to the higher courts. However, there are certain limitations on the writs jurisdiction:(i) Locus standi- Only aggrieved person could petition the courts for a writ. However, recently, the Supreme Courts has recognised that where the public wrong id caused by the State, any member of the public acting in good faith cab maintain an action for redress. Alternative remedies – when a fundamental right has been violated, relief through writs is fully appropriate. Where no fundamental right is involved, the High Court and Supreme Court will decline to exercise their jurisdiction if an equally effective remedy is available and has not been used. However, this rule of exhaustion of remedies can be waived by a court in suitable cases e.g. where the impugned action violates the principles of natural justice, or where a government authority has exceed its jurisdiction. The issue of an alternative remedy, however, is unlikely to arise in environmental writs, since existing environmental laws do not create alternative for a dispute resolution (except Water and AIR Acts) or the redress of public grievances. Laches- A writ petition may be rejected on the grounds of inordinate delay. However, the doctrine of laches is often relaxed in environmental actions brought in the public interest ( the court is being aware of the financial constraints and obstacle that environmentalists face in obtaining authentic and documentation).
PUBLIC INTEREST LITIGATION (PIL)
In a public interest case, the subject matter of litigation is typically a grievances against the violation of basic human rights of the poor and helpless or about or about the content or conduct of government policy this litigation is not strictly adversarial (in a adversarial procedure, each party produces his own evidence tested by crossexamination by other side) and in it a judge play a large role in organising and shaping the litigation and in supervising the implementation of relief.
Since the 1980s public interest litigation (PIL) has altered both the litigation landscape and the role of the higher judiciary in India. Supreme Court and High Court judges were asked to deal with public grievances over flagrant human rights 30
violations by the state or to vindicate the public policies embodied in statutes or constitutional provisions. This new type of judicial business is collectively called ‘public interest litigation’24 Public interest litigation in India was initiated and fostered by a few judges of the Supreme Court. The method they used to redress the public grievance was, to relax the traditional rules governing standings (locus standi). Standing is required to have a Court hear one’s case. The Supreme Court has lowered the standing barriers by widening the concept of ‘the person aggrieved’. Traditionally, only a person whose right was in jeopardy was entitled to seek remedy. When extended to public actions, this meant that a person asserting a public right or interest had to show that he or she had suffered some special injury over and above what members of the public had generally suffered. Thus, injuries such as air pollution affecting large communities were difficult to redress. Even under the traditional doctrine, a narrow exception has been available to citizens bringing environmental actions against local authorities. A rate tax payer25, for example, may compel municipal authorities to perform their public duties although the rate tax payer has not suffered any individualised harm. Thus, a rate tax payer’s right to challenge an illegal sanction to convert a building into a cinema was upheld by Supreme Court in K. Ramdas Shenoy v The Chief Officer, Town Municipal Council, Udipi.26
In cases involving the underprivileged, the Supreme Court began to override the procedural obstacles and technicalities that had unite then obstructed redress. Rather than reject a petition for lack of standing the court chose to expand the expanding so that it could decide the substantive issues affecting the rights of under privileged. In Hussainnara Khatoon v Home Secretary, State of Bihar27, the court implicitly recognised the standing of a public spirited lawyer to move petition on behalf of 18 prisoners awaiting trials for a very long periods in jails in the State of Bihar. The petitioner led to the discovery of over 80,000 prisoners, some of whom had been languishing in prisons for periods longer than they would have served, if convicted.
2424. Reforming Indian Environmental Laws’ Presentation NLS Bangalore 1999. 2525.Someone who pays rate, cess or assessment in the value of his or her property. Rates are paid to
the municipality and are available to local public purposes. 26.K, Ramdev Shenoy v Chief Officer, Town Municipality Council, Udipi 27..Hussainnara Khatoon v Home Secretary, State of Bihar AIR 1979 SC 1360 26 27
This second modification of the classical doctrine, here a concerned citizen ( or voluntary organisation ) may sue, not as an representative of other as but in his own right as a member of the citizenry to whom a public duty is owned, may be the termed ‘citizen standing’. In the Ganga Pollution (Municipalities) Case28, the Supreme Court upheld the standing of a Delhi resident to sue the Government agencies where prolonged neglect had resulted in severe pollution of the river. Justice Venkataramiah’s opinion in this case supports the notion citizens standing. M.C Mehta v Union Of India (Taj Trapezium Case)29 Facts- The present petition relates to the protection of Taj Mahal, at Agra, India. According to the Petitioners, the foundries, chemicals /hazardous industries and the refinery at Mathura are the major sources of damage to the Taj. The So2 emitted by the Mathura Refinery and the industries when combined with Oxygen – with the aid of moisture –n the atmosphere forms sulphuric acid called “Acid Rain” which have the corroding effect on the gleaming white marble. Industrial refinery emissions, brick-kiln, vehicular traffic and generator-sets are primarily responsible for polluting the ambient air Taj Trapezium (TTZ). Observation and Decision- The Supreme Court, after taking into consideration reports of various technical authorities , found out that the emission generated by the coke /coal consuming industries are air –pollutant and have damaging effect on the Taj and the people living in the TTZ. The atmospheric pressure pollution in TTZ has to be eliminated at any cost. The Court held that 292 industries located and operating in Agra must changeover within fixed time schedule to natural gas as industrial fuel or stop functioning with coke /coal and get relocated. The industries not applying for gas or relocated are to stop functioning with coke/coal from 30-04-97. The Shifting industries shall be given incentives in terms of the provisions of Agra Master Plan and also the incentive normally extended to the new industrial units. Regarding the rights and benefits of the workmen employed in such industries, the court directed that an additional compensation of six years wages to be given to employees of industries which are closed. A shifting bonus to be given to the employees who agree to shift with industry. The Supreme Court further directed that all emporia and shops functioning within the Taj premises to be closed.
28Ganga pollution case- M.C Mehta v Union of India AIR 1988SC 1115 29.M.C Mehta v Union of India (TTZ) (AIR 1997SC 734)
LAW OF TORTS, CRIMES AND ENVIRONMENT
A common law tort action against the polluter is one of the major and among the oldest of the legal remedies to abate pollution. Most pollution cases in tort law fall under the categories of nuisance, negligence and strict liability. A plaintiff in tort action may not sue for damaged or on an injunction, or both. While the damaged are pecuniary compensation payable for the commission of tort, an injunction is a judicial process where a person who has infringed or is about to infringe the rights of another is restrained from pursuing such acts. Although in theory damages are the principle relief in tort action, in practice injunction relief are more affecting in abating pollution. In case of continuing cause of action such as the pollution of a stream by factory waste or smoke emission from a chimney, proper course is to sue for an injunction. Compensation awarded is often very low, moreover adjudication of cases takes very long time. NUISANCE The deepest doctrinal roots of modern environmental law are found in the common law concept of nuisance. However there is much difficulty in employing tortuous action based on nuisance as an effective remedy against environmental pollution because of the exhaustive and diverse definition of term ‘nuisance’. In Durga Prasad v State 1930, it was observed that ‘nuisance ordinarily means anything which annoys hurts or that which is offensive. Nuisance includes any act, omission, injury, damages, annoyance or offence to the sense of sight, smell, hearing or which is or may be dangerous to life or injurious to health or property. It is important to note that for an interference to be an actionable nuisance the conduct of the defendant must be an actionable nuisance, the conduct of the defendant must be unreasonable. Must not be momentary, but must continue for sometime. A single, short inconvenience is not actionable. In common law nuisance are of two types- public and private. A public nuisance can be defined as an unreasonable interference with the right common to general public. It is both tort and crime, thus the action can be brought by a civil or by a criminal action. A private nuisance is a substantial and um reasonable interference with the use and enjoyment of land. The procedure for the removal of a public nuisance is laid down in sec. 133 to143 of the Code of Criminal Procedure, 1973, and in sec 91 of the Code of Civil Procedure, 1908. Sec. 91 of the C.P.C reads- public nuisance and other wrongful acts affecting the public, (1) in the case of a public nuisance or other wrongful act affecting or likely to effect the public, a suit for a declaration and injunction or for any such other relief as may be appropriate in the circumstances of the case, may be instituted,(2) by the Advocate General, or
30Durga Prasad v State (AIR 1962 Raj. 92) 33
(3) With the leave to the court, by 2 or more persons, even though no special damages has been caused to such person by reason of such public nuisance or other wrongful act. (4)Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions. NEGLIGENCE Negligence is another specific tort on which a common law action for preventing environmental pollution can be based. It is the failure to exercise that care which the circumstances demand in any given situation. Where there is duty to care, reasonable care must be taken to avoid acts or omission which can be reasonably foreseen to be likely to cause physical injury to persons and property. An act of negligence may also constitute a nuisance if it unlawfully interference with the enjoyment of another’s right in land. Similarly it amounts to a breach of the rule of strict liability. The casual connection between the negligent act and the plaints’ injury is often the most problematic link in pollution cases. Where the pollutant is highly toxic and its effect is immediate, as with the methyl isocyanides that leaked from the Union Carbide plant in Bhopal31, the connection is relatively straightforward. The casual link is more tenuous when the effect of the injury remains latent over a longer period of time and can be attributed to the factors other than that the pollutant, or to polluters other then the defendant. Thus, where one brings an action for lung damage caused by fine dust particles against a local cement plant or glass factory, the case gets extremely difficult from a causation standpoint. STRICT LIABILITY The doctrine of strict liability – liability without fault – is worth considering in relation to cases arising from environmental pollution. The rule in Ryland v Fletcher, although normally dealt with as a separate tort, can be considered as an extension of the law of nuisance. The doctrine of strict liability allows for the growth of hazardous industries, while ensuing that such enterprises will bear the burden of the damage they cause when hazardous substance escapes. The Supreme Court in Shriram Gas Leak Case32 has stated a new principle of liability (“absolute liability”) for enterprise engage in hazardous or inherently dangerous activities. J.C Gasltaun v Dunia Lal Seal 33
31 UNION CARBIDE CORPORATIOON V UNION OF INDIA (AIR 1990 SC 273)
32.Infra- page 8- Indian Council for Enviro-Legal Action v Union of India AIR 1996 SC 1446 32
33J.C gasltaun v Dunia Lal Seal (1905) 9 CWN 612
34..Mukesh Textike Mills (P) LTD. v H.R Subramanya Sastry(AIR 1987 Karnt. 87)
Facts- This appeal arose out of a suit foe a perpetual injunctions to abate a nuisance and for damages on the account for the same. The plaintiff has a garden- house and the defendant has a shellac factory situated 200-300 yards to the north-west of it. The defendant discharges the refuse- liquid of hid manufactory into a Municipal drain that passes along the north of the plaintiff’s garden, and the plaintiff alleges, first, that the liquid is foul smelling and noxious to the health of the neighbourhood and specially to himself, and secondly that it has damaged him in health, comfort and market value of his garden property. The defendant contented that the refuse liquid is not noxious if it stagnant, that the stagnant is really due to the faulty nature of the Municipal drain. Observations- the defendant’s action consists of two parts; first, he has discharged the refuse liquid into the drain. And, secondly he has done so knowingly that it cannot be efficiently carried away, but must stagnate, decompose and give off an offensive stench. The first part of the action constitutes a legal nuisance which the plaintiff is entitled to restrain. Carrying on an offensive trade so as to interfere with other’s health and comfort or his occupation of property has been constantly held in England to be a legal nuisance against which the courts give relief. The second part also constitutes nuisances. The defendant is responsible for the consequences that arise necessarily out of his action. Decision- the High Court held that an injunction for the permanent stoppage of nuisance is the only effectual remedy. On the question of the damages, the court observed that persistence in a proved nuisance has been held in England to be a just cause for giving exemplary damages. The defendant has certainly persists in spite of Municipal warning. This, therefore, is not a case of in which the damages awarded should be nominal. There can be no doubt that material injury has been caused to the plaintiff and the damages should be substantial. Comments- Apart from its historical significant, the case is important because it shows how the common law regulatory system can check the polluters in a preindustrial society. It is interesting to note the polluters defence rejected by this court at the beginning of the century, are still raised today, and the awards of Rs.1000 in damages was a very large amount at that time. Mukesh Textike Mills (P) LTD. v H.R Subramanya Sastry34 Facts- this is one of the few reported pollution cases in which a judgement was rendered for damages. Appellant has a sugar factory adjacent to the cultivated land of the respondent. Appellant stores molasses, a bye- product in the manufacture of sugar, in the three tanks in the factory premises. The third mud tank is close to the respondent’s land separated only by a water channel. On one night, the said tank containing 8000 tones of molasses collapsed ( due to borrowing activity of the rodents) and molasses emptied themselves into water channel and through it spread over respondent’s land damaging the standing paddy and sugarcane crop. Respondent bought a present suit for damages of Rs35, 000/- . In
the defence appellant contented that this was an ‘Act of God’ …..He could not have seen this burrowing by rodents, so he is not liable. The Lower Court held that the damages suffered by the respondent s were attributable to actionable negligence on the part of the appellant. The court awarded rs.14, 700 as damages.
LAWS OF CRIMES AND ENVIRONMENT
The provisions of the Code of Criminal Procedure provide a much speedier and summary remedies against public nuisance, in comparisons to the Air, Water and Environmental Acts which provide cumbersome procedure for prosecution. The provision of Cr.P.C, remained unused for a long time for removing public nuisance, but, of late, the Supreme Court revitalised them. The public duty of the Magistrate to come to the rescue of the citizens in such cases was emphasized. Section 133 of Cr. P.C provides an independent, speedy and summary remedy against public nuisance. This section empowers a magistrate to pass an order for the removal of a public nuisance within a fixed period of time. The District Magistrate or Sub- Divisional Magistrate (S.D.M) or other executive magistrate, may make such order on receiving the report of the police or other information (includes complaint made by a citizen) and on taking such evidence as he thinks fit. If he considers among other things – (a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or (b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort or the community, and that in consequences such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; Such Magistrate may make a conditional order to remove such nuisance or obstruction or tot desists from carrying on, or to remove or regulate, in such manner as may directed, such trade or obstruction. The order is conditional because it is the only preliminary order. When a person fails to appear and show cause (against the order), or when the court is satisfied on the evidence adduced that the initial order was proper, the order is made final. Otherwise it is vacated. Sec. 133, Cr.P.C is categorical, although real discretionary. Judicial discretion, when the facts for its exercise ere present, has a mandatory import. Once a magistrate has before him evidence of a public nuisance, he must order removal of the nuisance within affixed period of time. The power of Magistrate under the code is a public duty to the members of the public who are the victim of the nuisance, and so he shall exercise it when the jurisdictional facts are present. If the final order is defied or ignored, Sec 188 of Indian Penal Code comes into play : Whosoever , knowing that, by an order promulgated by a public servant lawfully empowered such order, he is directed to abstain from certain act, or to take certain order either certain property in hid possession or under his management , disobeys such directions and if such disobedience causes or tends to cause a riots or affray, 36
shall be punished with the imprisonment of either description for a term which may extend to six months or fine which may extend to one thousand rupees, or with both. Ratlam Municipality v Vardhichand35 Facts- the key question in this case is whether by affirmation action a coiut can compel a statutory body to carry out its duty to the community construction sanitation facilities at great cost and on a time – bound basis. The court found the municipality indifferent to its basic obligations under Sec. 123 of the M.P Municipalities Act,1961 ( i.e. cleansing public streets, places and sewer, etc.) and thus directly guilt of breach of duty and public nuisance and active neglect. The municipalities pleaded that the municipal funds being insufficient it cannot carry out its duties. Observations- the Court observed: “The criminal Procedure Code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under part III of the constitution have to be respected by the State regardless of budgetary provision. Otherwise, a profligate statutory body or psychometric governmental agency may legally defies duties under the law by urging in self-defence a self-centred bankruptcy or prevented expenditure budget. Public nuisance, because of pollutant being discharge by big factories to the detriment of the poorer sections,, is a challenge to the social justice component of the rule of law. Likewise, the grievous failure of the local authority to provide the basic amenities drives the miserable slum dwellers to ease in the streets…..because under nature’s pressure, bashfulness becomes a luxury and dignity become a difficult art. Decency and dignity are non negotiable facets of human rights and are first charge on local self- governing bodies. Similarly providing drainage system …..to meet the needs of the people cannot be evaded if the municipality is to justify its existence.” The court further observed: “Although these two Codes are of ancient vintage, the new social justice orientation imported to them by the Constitution of India makes it remedial weapons of versatile use. Social justice is due to the people and, therefore, the people must be able to trigger off the jurisdiction vested for their benefits in any public functionary like a Magistrate under Sec.133, Cr.P.C. in the exercise of such power, the judiciary must be informed by the broader principle of access to justice necessitated by the conditions of developing countries and obligation by Art.38 of the Constitution. The nature is the judicial process is not purely adjudicatory. Affirmative action to make the remedy effective is the essence of the right which otherwise becomes sterile.” Decision- the court ordered that the Municipalities should take action for constructing latrines and providing drainage within a period of 6 months. The court said it is sure that the State Government will make available by the way of loans or grants sufficient financial aid to the Ratlam Municipalities to enable to fulfil its obligations under this order. The State will realise that Art. 47 of Constitution make it a paramount principle of governance that steps are taken ‘for the improvement of public health as amongst
35Ratlam Municipality v Vardhichand (AIR 1980 SC 1623) 37
its primarily duties.’ the Municipalities also will slim its budget on low priority items and enlists projects to use the savings on the sanitation and public health. Comments- The judgement in this case, thus, explicitly recognise the impact of a deteriorating urban environment on the poor. And links the provision of basic public health facilities to both human rights and the directive principles in the Constitutional dimensions, social justice, environmental cleanliness and public health is of great significance. Despite its vast potential, the Ratlam judgement remains under used. Citizen’s petitions to stir indolent municipalities into action are still rare. In another respect, however, the lead provided by Ratlam has been widely followed: judicial activism now characterizes the out come of most environmental litigation. Govind Singh v Shanti Sarup36 Facts- in this case, an application filed under Sec. 133 of Cr.P.C complaining that the application who had been carrying on the occupation of a baker had constructed an oven and a chimney which created a public nuisance. The S.D.M served a conditional order on the appellant calling upon him to demolish the oven and chimney within the period of 10 days from the date of the order, and to show cause why the order should not be confirmed. After hearing the parties and considering the evidence led by them, the Magistrate however directed the appellant to cease carting on the trade of a baker at the particular site and not to lit the oven again. The High Court upheld the order of the magistrate. Decision- The Supreme Court observed that the evidence disclosed that the smoke emitted by the chimney was injurious to the health and physical comfort of the people living in the proximity of the appellant’s bakery and that there was no justification on the part of appellant for discharging the smoke from the chimney on the G.T Road. The Court said: we are of the opinion that in matter of this nature what is involved is not merely the right of a private individual but the health, safety and convenience of the public at large. The Supreme Court, however, found the final order the final too broad. The court directed the appellant to demolish the oven and chimney within a month, but allowed him to practice his trade.
CHAPTER 4 INDIAN ENVIRONMENTAL ACTS AND PROTECTION
36Govind Singh v Shanti Sarup (AIR 1979 SC 143)
The Water (Prevention and Control of Pollution) Act, 1974 it is social welfare legislation, enacted for the purpose of prevention of pollution of water and for maintaining or restoring wholesome of water. Water is a subject in the State List. Thus the Water Act, central law, was enacted under section under Art.252 (1) of the Constitution which empowers the Central Government to legislate in a field reserved for the state with consent of two or more state legislature. All the States have now approved the Act. The water Act is comprehensive in its coverage, applying to streams, inlands waters, subterranean waters, and sea or tidal waters’ defines the terms the term ‘pollution’ in quite elaborate manner- covering any contamination of water or alteration of properties (physical, chemical or biological) of water, discharge of sewage or trade effluent or any other substance ( liquid, solid or gaseous) into water, whether directly or indirectly, as may or is likely to create nuisance or injurious to life or health of human beings, animals, plants aquatic organism or legitimate uses of water[ Sec.2 (e)]. Constitution of Central and State Boards Sec.3 and 4 of the Water Act provides for the constitution of Central and State Boards. The Central board or the State board, as the case may be, shall consists of the following members, namely(a) a full time chairman, being a person having special knowledge or practical experience in the respect of matters relating to environmental protection or a person having knowledge and experience in administrating institutions dealing with the matters aforesaid, to be nominated by the Central Government or the a State Government, as the case may be. (b) Such number of officials, not exceeding five, to be nominated by Central or State Government, as the case may be, to represent that Government. (c) Such number of person, not exceeding five, to be nominated by the Central Government, from amongst the members of State Boards; and in the area of State Board, to be nominated by the State Government from amongst the members of the local authorities; (d) such number of non-officials, not exceeding three, to be nominated by the Central or State Government, as the case may be, to represent the interest of agriculture, fisheries or industry or trade or any other interest which is in the opinion of the Government ought to be represented; (e) two persons to represent the companies or corporations owned, controlled or managed by the Central Government or the State Government, as the case may be, to be nominated by the Central or State Government, (f) a full-time member-secretary, possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control;, to be appointed by the Central or State Government, as the case may be. Sec. 5 of the water act provides that a member of a board other than s membersecretary shall not hold office for a term of three years from the date of his nomination. Functions of the Boards 39
According to sec.16 of the Water Act, the main function of the Central Board shall be to promote cleanliness of the streams as wells in the different areas of the states. Other functions of the Central Board include: (1) (2) (3) (4) to advise the Central Government on the water pollution issues, coordinates the activities of the State Boards and resole disputes among them, carry out and sponsor investigation and research relating to water pollution , to develop a comprehensive plan for the control and prevention of water pollution, (5) to lay down , modify or annul , in consultation with the state Government concerned, the Standards for the stream or well, (6) To perform the function of a State Board for the union territories. Functions of the State Boards specified by the Sec. 17 of the water Act include: (1) to plan a comprehensive programme for prevention, control and abetment of water pollution in the State, (2) to encourage , conduct and participate in investigation and research of water pollution problems. (3) To inspect sewage or trade effluents, works and plants for the treatment of sewage and trade effluents, (4) To development economical and reliable methods of treatment of sewage and trade effluents, (5) To lay down standard of treatments of sewage and trade effluents to be discharged into any particular stream ( Thus, standards for the discharge of effluent or the quality of receiving water are not specified in the Act itself). Parliament revised the Act in 1988 to make closely conform to the provisions of the Environment Acct of 1986. The 1988 amendments introduced a new Sect.33A Which empower Board to issue directions to any person, officer or authority? The amendments also increased the power of the Central Board relative to the State Boards, by making changes in sec.18. The 1988 amendments modified Sec.49 to allow citizens to bring actions under the water act. Now a state board must relevant reports available to complaining citizens, unless the Board determines that the discloser would harm “public interest”. The 1988 amendments have provided for more stringent penalties under sec 41 for failing to comply with a court under order under sec. 33 or a direction from the board under sec. 33A. The penalties range seven years, and a fine from Rs.1, 000 to Rs.10,000. The Act also extends the liability for violations committed by companies to certain corporate employees and officials and to heads of government departments (sec. 47-48). Thus, these amendments have strengthened the Water Act implementation provisions. For example, the addition of a citizens ‘suit provision to the Water Act may result in a more diligent enforcement of the Act. Corporate Liability under the Water Act 40
Sec.47 lays down that where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was as the responsible to the company for the conduct of the business of the company, as well as the company, shall be liable to be proceeded against and punished accordingly. Provided that such liability shall not extend to a person if he proves that the offence was committed without his knowledge for that he exercises all due diligence to prevent the commission of such offence [sub-sec (1)]. Sec. 48 lays down that where an offence under this Act has been committed by any Department of Government, the head of the department shall be deemed to be guilty of the offence unless he proves that the offence was committed without his knowledge or that he exercise all due diligent to prevent the commission of such offence. In U.P PCB v Modi Distillery37, The State Board initiated proceedings against a company and its corporate officials under sec. 47 of the Water Act. The apex court upheld the proceedings against corporate officials. Discussing the liability of a manager, the Calcutta High Court in K.K. Nandi v Amitabha Banerjee38, held that a person designated as manager of a company in prima facia liable under Sec.47. The court observed that whether or not such person was in fact the over all in charge of the affairs of the company and whether or not ha had any knowledge of the violation of the Act, are question s of fact to be determined at the stage of trial. In Mahmood Ali v State of Bihar39, it was held that under Sec.47, only those directors, officers, etc. can be punished with those consent or connivance or on account of whose neglect the offence was committed. In Haryana State Board v Jai Bharat Woollen Finishing Works40, the court held that in absence of proof that the concerned partner was in-charge of a responsible to the firm for the conduct of the business; the partner could not be prosecuted and acquitted the ‘sleeping’ partner. In U.P PCB v Mohan Meakins Ltd. 41 The apex court made it clear that the directors/managers/partners would also be held responsible if they were responsible for construction of the plant, for the treatment of highly polluting and toxic effluents and will be prosecutes and punished under the Environment Act, and , Water Act.
The Air (Prevention and Control of Pollution) Act of 1981 was enacted by the parliament by invoking the Central Government’s power under Art. 253 to make laws implementing decision taken at international conferences. The Act deals exclusively with the preservation of air quality and the control of pollution. The Air Act defines air pollution to mean the presence in the atmosphere of any air pollutants [Sec. 2(b)].
37 .U.P PCB v Modi Distillery(A.I.R 1988 SC 1128) 38K. K. Nandi v Amitabha Banerjee, 1983 CrLJ 1479. 39 Mahmood Ali v State of Bihar (AIR 1986 Pat133) 40 Haryana State Board v Jai Bharat Woollen Finishing Works, 1993 For Lt101 41 U.P PCB v Mohan Meakins Ltd (AIR 2000 SC 1456)
And the latter denotes “any solid, liquid or gaseous substance including noise present in the atmosphere in such concentrations as may be or tend to be injurious to human beings or other living creatures or plants or property or environment’ [sec,2(a)]. The purpose of the Act is the presentation, control and abetment of air pollution. the Acts covers within its ambit the emission from the common and important sources of air pollution such as the industrial plants and automobiles. The State Boards provided for in this Act are constituted under sec.4 of the Act. Sec.17 deals with functions of the State Boards, clause (g) of section 17 (1) reads: to lay done, in consultant with the Central Board, standard s for the quality of air laid down by the Central Board, standards for emission of air pollutants into the atmosphere from industrial plants and automobiles or for the discharge of any air pollutant into the atmosphere from any other source whatsoever not being a ship or aircraft. Under Sec. 19, the State Government is, after consultant with State Boards, by notification in the Official Gazette, entitled to declare any area(s) within the State as “air pollution control area(s)” for the purpose of this Act. Inclusion of noise within the definition of air pollution and control on pollution caused by motor vehicles.[sec.20]. Under Sec. 21 no person, without the previous consent of the State Board, is entitled to operate any industrial plant for the purpose industrial plant for the purpose of any industry specified in Schedule in an air pollution control area. Under sedc.22, no person, carrying on the industries specified in the schedule in any pollution control area, can discharge the emission of any air pollutant in excess of the standards laid down by the Board under sec. 17(1) (g). Any person, who does not apply for the consent under sec.21 or who infringed sec.22, is liable to be punished under sec. 38 of the Act. 1987 Amendment Act The Air of 1981, as amended in 1987, contains several important features: (i) The Acts grants government discretion to each State Government to designate particular areas as” air pollution control areas”. [Sec.19]. polluters located put side such air pollution control areas cannot be prosecuted by the State Board [section 21]. (ii) Sec. 22a provides for the power of the boards to make an application to court for restraining person causing such pollution. (iii) Penalties have been increased so that the polluter’s cost of noncompliance is substantial .imprisonment from three month to seven years and a fine up to maximum of ten thousand rupees. (iv) Citizens can not only sue to enforce the Act to gain compliance by the industries, but can also require the board to provide the emission data needed to build a citizens case (sec.43). In Orissa SPCB v Orient Paper Mills.42 The issue related to the manner of exercise of the powers by the State Government to declare ‘Air pollution control areas’. There was absence of rules in this regard. It was held that non-framing of rules does not curtail the power of State Government and by
42 Orissa SPCB v Orient Paper Mills (AIR 2003 SC 1066)
the virtue of sec, 19 of the Act, 1981. It is authorise to declare any area as; air pollution control area’ by means of a notification published in the official gazette. M.C Mehta v Union of India.43 The motor vehicle case indicates the difficulty of the courts intermittent attempts to oversee a complex problem fraught with political, economical and technological considerations. These cases related to vehicular emission and resulting air pollution in Delhi. The Supreme Court directed the government to set up a high-powered committee to come up with the solutions to the problem. On the recommendation of the committee, the court exerted pressure on the government to ensure that new vehicles were with catalytic converters and that lead-free petrol as introduced. It recommended compliance with Euro I and Euro II standards fro automobile manufacturers. The court directed the Delhi Government to use only CNG (Compressed natural Gas) as fuel for all public transport.
NOISE POLLUTION (Regulation and Control) Rules, 2000.
The Central Government in exercise of the its powers conferred by sec.3(2)(ii), 6(1) and (2)(b), and 25 of the Environment Act, 1986 read with Rule 5 of the Environment (Protection) Rules, 1986 framed the Noise Pollution ( Regulation and Control) Rules 2000. these rules relate to maintaining of ambient air quality standards in respect of noise in different areas/zones, responsibility as to the enforcement of noise pollution control measures, restrictions on the use of loudspeakers/public address system, consequences of any violation in silent zones/ areas, authorities to whom complaints may be made for violation of the rules and the power to prohibit the continuance of noise pollution. Under the Noise Rules, 2000, separate ambient levels are fixed for industrial, commercial and residential areas and silence zones. The prescribed day time levels (6.00 AM to 10.00 PM) are typically ten decibel higher than the corresponding levels for night time. An area comprising not less than 100 metres around hospitals, educational institutions and courts may be declared as ‘silenced area/zone’ for the purpose of these rules [rule3(5)]. The states are required to designate an authority or officers responsible for maintaining the ambient standards [rule 4]. The designate authority could be the District Magistrate or Police Commissioner or any other official [rule2(c)]. The noise pollution can be attached either under the law of torts or under the Code of Criminal Procedure as a nuisance. In 1992, Tiz Hazari Court in Delhi ordered the municipal authorities to control noise level at public functions (However, the order remains ineffective till today). Noise pollution complaints are usually ineffective and
43M.C Mehta v Union of India.(CNG Fuel/ Motor Vehicle Case)(1991 2 SCC 137) 43
not even recorded by the police. Nevertheless, the higher judiciary in India have evolved certain principles to check the noise pollution. In State of Rajasthen v G. Chawla.44 The Supreme Court held that the State’s power to legislate in relation to public health includes the power to regulate the use of the amplifier as producers of loud noise when the right of such user, by the disregard of the comfort of and obligation to others, emerges as a manifest ‘nuisance’ to them.
Regulation of Hazardous Substances
Sec 2(e) of the Environment (protection) Act, 1986, defines a “hazardous substance” to mean any substance or preparation which, but reason of its chemical or physicochemical properties or handling, is liable or cause harm to human beings, other living creatures, plants, micro-organisms, property or the environment. Specific provision is made in the environment protection Rules for handling hazardous substances (rule 13.), before permitting the handling hazardous substances in an area, the Central Government has to take into consideration the hazardous nature of the substance and its potential to damages the environment, human being, etc. Hazardous Wastes (Management and Handling) Rules, 1989 These Rules are framed under the enabling provisions of the Environment Act, 1986 (Sec. 6, 8 and 25). They apply to apply to designated categories of waste and exclude radioactive wastes covered under the Atomic Energy Act, 1962. Under Rule 4, a person generation hazardous waste in quantities exceeding specified limits is required to take all practical steps to ensue that such waste are property handled and disposed of without any adverse effects. Such a person is responsible for the proper handling, storage and disposal of wastes. Rule 5 prescribed a permit system administration by State Pollution Control Boards to the handling and disposal of hazardous wastes: no person without Boards authorisation may collect, receive, rest, transport, store or dispose of, hazardous waste s. rule 8 require State Governments to compile and public an inventory of hazardous waste disposal sites.
Under Rule 10, when the accident occurs at the facility or on a hazardous waste site or during transportation, the occupier or operator of a facility shall report immediately to the Board about the accident. Rule 11 prohibits import of hazardous wastes into India for dumping disposal. Import is, however, allowed with the permission of the Central Government, for processing or re-use as raw material. 44 State of Rajasthen v G. Chawla(AIR 1959 SC 544) 44
In January 2000, the Centre introduced comprehensive amendments to the Hazardous Wastes Rules of 1089. The amendments extend the application of the Rules to hitherto unregulated processes and wastes (viz. zinc and lead wastes), strengthen the existing permit system and introduce a new set of regulations to restrict the export and import of hazardous wastes for revelling and reuse. The union ministry of Environment and Forests is designated as the nodal agency to permit the Tran boundary movement of hazardous wastes. Case Law In ‘Shriram Gas Leak Case’, M.C.Mehta v UOI.45 The Supreme Court introduced a new “no-fault” liability standard (absolute liability) for industries engaged in hazardous activities. Chief Justice Bhagwati said: “we have to involve new principles and lay down new norms which would adequately deal with the new phenomenon which arise in a highly industrialised economy. In Fertilizers & chemical, Travancore Ltd. Employees’ asscn. V Law Society of India46 However, the apex court held the directions to decommission and empty ammonia storage tank because of possibility of air crash, sabotage or earthquake was mot proper. The structural integrity of storage tanks and operational risks were considered and approved by the Expert Committee. A balance has to be struck between the ‘utilities serving public interest and the human safety’. In res. Foundation for Science v UOI47, The apex court observed that every day 2000 tons of hazardous waste is generated in the country. thus , a prompt action is required to be taken not only by central govt. but all the states govt. as well as central and states PCB,s the court issued appropriate direction, which were necessary to ensure performance of duty by state govt, pollution control boards and other concerned authorities
THE BHOPAL CASE48
The Bhopal disaster raised complex legal questions about the liability of parent companies for the acts of their subsidiaries, the responsibilities of multinational
45 Infra page 8- Shriram Gas Leak Case’, M.C.Mehta v UOI.(AIR 1987 SC 965) 46.Fertilizers & Chemical, Travancore Ltd. Employees’ V Law Society of India, 2004 AIR SCW 1430 472003 (8) SC258 48 .Union Carbide Corporation v Union of India (AIR 1990 SC 273
corporations engaged in hazardous activities, the transfer of hazardous technologies, and the applicable principles of liability. Bhopal was inspirational factor for the judicial innovation in the area of evolving principles of corporate liability for use of hazardous technology. There ere also amendments in the existing Acts and a complete new legislation, the Environment (Protect) Act, 1986, was brought about as a realisation of inadequacy of the existing laws. In a fast developing economy, industrial venture may at times lead to accidents causing pollution resulting in injury and even death. The Bhopal accident, worst ever industrial accident in history, is a glaring example. Till the Bhopal incident, the courts in India have been applying the principle of common law liability for compensating the victims of the pollution. The post Bhopal era shows a significant change. On December 3, 1984,highly toxic methyl isocyanides (MIC), which had been manufactured and stored in Union Carbide’s chemical plant in Bhopal, escaped into the atmosphere and killed over 3,500 people and seriously injured about 2 lakh people. The Bhopal gas leak disaster (Processing of Claims) Act, 1985 was passed by parliament to ensue that the claims arising out of the Bhopal disaster were’ dealt with speedily, effectively, equitably and to the best advantage of the claimants’.” The Bhopal Act conferred an exclusive right on the Indian Government to represent all claimants. In April 1985, shortly after the enactment of the Bhopal At, the Indian Government sued Carbide in the United State. The US Court, however, declined to try the Bhopal law suit, declaring that India was the more appropriate forum.
(I) US Court’s Decision
The Indian Government’s preferences for an American Courts stemmed from the lack of confidence in it as own judicial system, the lure of large damages that an American jury might award , and its uncertainty about whether the Union Carbide would submit to the jurisdiction of an Indian Court. Further, American Courts routinely impose strict liability for accident resulting from hazardous activities, and in such cases reject the notion that the parent corporation has a separate legal; personality from its subsidiary. In USA, the case was dismissed on the grounds of forum non conveniens. It was held that the absence of a rule for class actins, which is identical to the Americans rules, does not lead to the conclusion that India is not a alternative forum. The presence of India of the overwhelming majority of the witness and evidence, both documentary and real, would itself suggest India is in must convenient forum. All the private interest factors weigh heavily towards the dismissal of this case on the ground of forum noon conveniens.
(II) Bhopal District Court Judgement
The plaint filed in the District Court, Bhopal, M.P., had four crucial components, according to professor Baxi. First, India articulates a new conception of parens patrae role on which its capacity to sue Union Carbide Corporation (UCC) basically rests. Second, in order to pursue the UCC, and not the UCIL, it has to develop the thesis 46
that the UCC was the mind and soul of the Bhopal Plant and the UCIL only its docile arm. Third, Indian needed to establish a standard, a principle, of liability appropriate to compensate victims of a toxic tort in a mass disaster situation. Fourth, India has to precisely identify the general pattern of injury to human health and environment as well as the individual units of injuries suffered by each Bhopal victim; The Union carbide’s multiple defences were as follows: First, either the UCIL is an autonomous body Indian corporate entity or the UCC’s role was deliberately reduced by India’s sovereign functions of regulation. In neither case, is the UCC liable. Second, rather there exist, awaiting recognition, the principle of absolute multinational liability or there is no such principle. If it so it does not extent to the Bhopal Case. If it does not, there is no case. In neither case, is the UCC liable. Third, either MIC, in the present state of knowledge is not ‘ultra hazardous’ or if it is hazardous it is no more so than other chemicals that India stores in large quantities. In neither case, is the UCC liable. Fourth, either the UCC is not liable at all or if it is liable, so are India and State of M.P. in neither case, is the UCC liable. Craven by the compassion for the Bhopal victims, Judge Deo ordered carbide to pay interterm compensation of Rs.350 cr. This action had an effect of derailing the primary lawsuit against Carbide. It also raised question of fair judicial procedure and the right to the trail on the merits before the issuance of a judgement. Carbide filed a revision application against the interim payment decision.
High Court Judgement
Justice Seth used English Rules of procedure to create an entitlement to interim compensation (i.e. it is permissible for courts to grant relief of interim payment under the substantive law of torts). Under the English rules, interim relief granted in personal injury cases if a prima facia case is made out. He said that “more than prima facia case have been made out” against the Carbide.
He observed that the principle of absolute liability without exceptions laid down in M.C. Mehta case applied more vigorously to the Bhopal suit. He holds that Carbide is financially a viable corporation with $ 6.5 billion unencumbered asset and $ 200millions encumbered assets plus an insurance which could cover up to $250 millions worth of damages. Given carbide’s resources, it is eminently just that it meet a part of its liability by interim compensation (Rs.250cr.) 47
Professor Baxi applauds Justice Seth’s “precise measure of compensation of 2lakh for death for total or permanent disability and Rs.1lakh for partial permanent disabilitycorresponded with objective data on actual costs of medical care, reduced life expectancy, loss of employment and loss of lifetime earning power.
(Supreme Court’s Judgement (The Bhopal Settlement)
Both UCC and the Indian Government applied against the High Court judgement. UCC claimed that the judgement unsustainable because it amounted to a verdict without trial. The Indian Government appealed because Justice Seth had reduced by 30% District Judge Dao’s earlier interim award. In Union Carbide Corporation v Union of India (AIR 1990 SC 273), the Supreme Court secured a compromise between the UCC and Government of India. Under the settlement, UCC agreed to pay US $470 million in full and final settlement of all past, present and future claims arising from the Bhopal disaster. In addition to facilitate the settlement, the Supreme Court exercised its extraordinary jurisdiction and terminated all the civil, criminal and contempt of court proceedings that had arisen out of the Bhopal disaster. It was declared by the court that if the settlement funds is exhausted, the Union of India should make good the deficiency. The Bhopal settlement has largely been criticised. However, according to the supporters appear to achieve the mixed private and public goals of compensation, corrective justice and deterrence. Although the Supreme Court’s orders do not ascribe liability to Carbide, the settlement implicitly establishes the multinational’s accountability. Further, the Bhopal settlement is the first in a mass tort case where multinational had paid for the actions of its local subsidiary. One of the most outspoken critics of the settlement was former chief justice of India, P.N Bhagwati. According to him, the court order places the value of Indian life at a ridiculously low figure. In the US $ 2.5 billion as paid by John Manville Corporation to 60,000 claimant foe asbestos related to injuries and $520 million by AH Robins Company to settle 0,450 injury claims by users of Dalkon Shield Contraceptives. In comparison, Bhopal victims have got “peanuts”. He further said it was difficult to understand how a landmark judgement disposing of the case for compensation was suddenly delivered by the Supreme Court when it was only an appeal against the interim order which was being argued and even in this appeal the arguments had not concluded. Further, he pointed the failure of the Government, as trustee for the victim, to consult with the victim’s organisation. The court’s eagerness to secure immediate relief to the victims, obscured its vision of constitute fair and adequate relief. The Supreme Court in its order of May 4, 1989, set forth the reasons for urging the settlement. The court started that in view of the enormity of human suffering occasioned by the Bhopal Gas Disaster. There was a pressing urgency to provide immediate and substantial relief to the victims. The court considered the sum ‘just, reasonable and equitable’, because the idea of reasonableness for the present purpose is necessary a broad and general estimate in 48
the context of a settlement of the dispute and not on the basis of an accurate assessment by adjudication. The question is how good or reasonable it is as a settlement, which would avoid delays, uncertainties and assure immediate payment. In the process of arriving at the amount of compensation the court into account several factors such as the number of fatal cases, instances of serious personal injury, medical expense s for treatment, loss of personal belongings and livestock, range of offers and counter offer of parties, the estimate made by the high court in fixing the interim compensation on the basic of the Mehta principle. Etc. in quantifying the compensation what the court did was that it fixed the amount far higher than the average rates of compensation in comparable cases (e.g. motor accident cases). Justice Rangnathan Mishra said the M.C Mehta principle that in toxic mass tort actions arising out of a hazardous enterprise, the award for damages should be proportional to the economic superiority of the offender cannot be pressed to assail the Bhopal settlement. ‘The criticism of the Mehta principle, perhaps, ignores the emerging postulate of tortuous liability whose principle focus is the social limits on economic adventurism.’ Thus, the trend of the decision evidently rules out the possibility of adverse comment that by resorting to a compromise the Supreme Court lost an opportunity to apply the Mehta doctrine in Bhopal. However, the Supreme Court seems to have deliberately missed an opportunity to develop new principles in relation to Multinational Corporation operating with inheriting dangerous technologies in the developing countries. As the court itself said, it would have examined various dimensions of this problem like the protection of the environment, the permissibility of ultra hazardous technology, standards of disaster liability for multinationals operating in developing countries, etc. The court did not proceed to deal with these issues as the need for immediate relief to the victims of the tragedy could not wait till these questions are elaborately examined and decided.
Review petition under Art.137 and writ petitions under Art.32 of the Constitution of India were filed questioning the constitutional and under the Bhopal Act (providing for the registration and processing of claims) and the resultant categorisation of the victims was also upheld. It was laid down that “there is no need to tie down the tortfeasor to future liability” [UCC v UOI AIR 1992 SC 248].
(III) The Bhopal Act Judgement
In December 1989, the Supreme Court upholds the constitutional validity of the Bhopal Act, 1985. Under the Act, the Indian Government reserved for itself the exclusive right to represent all Bhopal victims in civil litigation against Carbide. 49
The court in this case [Charan Lal Sahu v UOI]49 declare that “to do great right”, it is permissible sometimes “to do a little wrong”. The grant right, presumably, is the settlement, which finally will put money into victim’s hands. The little wrong is the denial of a fair opportunity (i.e. a notice and opportunity to be heard on any proposed settlement) to the victims. The court outlined an action programme to avoid future Bhopal. The courts inter alia called upon the Central Government to enact a law entitling future mass disaster victim to interim relief and damages, and to someone who compel multinational engaged in hazardous activities to submit to the jurisdiction of Indian courts for damages claims that would reach their total global assets. The court observed that to ensure immediate relief, tribunals are to be constituted for determining compensation, appeal against ethics may lies to this court. Further, Industrial Disaster Fund should be established. The contribution to the Fund may be made by the government and the industries. The Fund should be permanent in nature so that money is readily available for providing immediate relief to the victims.
(IV) Criminal Liability of Carbide Officials
In UCC v UOI (AIR 1992 SC 248), the supreme court reinstate criminal charges foe ‘homicide not amounting to murder’ (Sec. 034,Part II, IPC) against top executives at Union Carbide( viz. nine UCIL employees and three foreign accused, including Warren Anderson, the CEO) while uploading the rest of the settlement. The CBI in December 1993 finally prepared the documents necessary to extradite Warren Anderson. In Keshub Mahindra V state of M.P., JT 1996(8) SC 136, the charges against the nine Indian accused were reduced to one of rash and negligence act under Sec. 034A, IPC, from an offence of culpable homicide not amounting to murder. This was because the accused had no direct knowledge that the factory if allowed to operate, would result in death of so many people. The court also recognises that that the trial of the criminal case against three foreign accused had to be “segregate and split up as they were absconding”. However, the CBI in 2002 filed an application before the CJM, Bhopal for the dropping the charge of culpable homicide against the former chairman of the UCC, Warren Anderson. It relied on the aforesaid Judgement of the apex court. The dilution of charges against Anderson has been vehemently opposed by the various social action groups working for the Bhopal victims.
(VIII) “Clean-up/ slow-motion Bhopal” Case: US Court
The present case – a “class action suit: was filed in the U.S District Court by Haseena Bi, one of the survivors of the tragedy, and several organisations in Bhopal representing survivors, seeking damages and injunctive relief for the severe pollution of their land and the drinking water. They claimed that the pollutant for the plant continued to seep into the local environment causing serious health problems for
49 Charan lal sahu v UOI AIR 1990 SC 1480
nearby residents. Thus, there would be possibility of another “slow-motion Bhopal”. Were thousand of people over several generations may be injured or even killed by the underground contamination spreading through the water supplies of the area. The U.S District Court, however, rejected their claims. The matter came up before the Appeal Court. After nearly 20 years of struggle for justice and due compensation, the survivors of the 1984 Bhopal Gas Tragedy won a major legal victory against UCC, in the U.S Courts of the Appeals for the second circuit, New York. On March 17, 2004, setting a significant precedent in the history of environmental litigation , the court applaud “injunctive environmental remediation” against UCC to clean up the pollution it caused in Bhopal. The term “injunctive environment remediation” encompasses by work that has to be done to remove contamination or pollution groom a given site in order to restore it to certain applicable environmental standards. While the U.S District Court held that any grant of such equitable relief by the U.S Courts for remediation affecting property located outside the U.S would automatically amd inevitable be inappropriate because it would be interfere with or impugn a foreign sovereign interests, the Appeal Court said: “There may be circumstance in which it is appropriate for a court to grant injunctive relief with respect to the remediation of an environmental problem in a foreign country.”
It may be noted that the Dow Chemical, which has inherited the UCC’s assets and liabilities in India was reluctant to own up responsibility for the clean-up. The M.P and the Indian Government has asked the company to do so, but it refused. The Indian Supreme Court too has looked at the matter and asked that the international principle of “polluters pays” should be applied to the issue.
Investigation following the Bhopal catastrophe showed that the responsibility of both the company and the government went far beyond the mere neglect of elementary safety measures. “Bhopal”, concluded a UN expert ‘was a catastrophe waiting to happen’.
Further, the case in chief was never adjudicated on the merits, nor have the criminal charges, still pending in India, have been effectively perused by the Indian Government .Warren Anderson, till date, is fugitive living in the United States, avoiding criminal prosecution in India it is hard to understand why the CBIO move an application favouring Anderson when the latter is still a fugitive in the eyes of Indian law. 51
The Doctrine of parens patriae i.e. role of State as sovereign and guardians of persons under legal disability has been, thus, negated by the Bhopal case. Justice V.K Krisna Iyer called “Bhopal gas Tragedy” a “mini – Hiroshima”. He criticised the Indian Judicial system as he noted: “Judicial engineering assumes credibility only if there is jurisdictional sympathy, procedural fairness and naturalness in the rules of evidence. Unfortunately, our court system more or less negates both. Inevitably, the reform of these aspects of our legal system is imperative especially when we deal with category of victims of injustices which is overcome by insufferable tragedy and over- borne by economic, social and educational disabilities”.50
The Environmental (Protection) Act, 1986
The Environment (Protection) Act, 1986 is the first legislation dealing with the environment taking it as a whole. This Act was passed in the wake of the Bhopal Gas Tragedy, one of the world’s worst environmental disasters, and it took an event of that magnitude for India to realize the inadequacy of the existing laws to deal with environmental issues. 50 Article “Union Carbide’s “bhoposhima” and Indian Justice in Somna-Coma” 52
The EPA serves as an ‘umbrella’ legislation designed to provide a framework for Central Government for coordination of the activities of various central and state authorities established under the Water and Air Acts. The Act tries to view the issue of pollution and its impact on the environment as a whole, and as a result takes a comprehensive view of pollution by dealing simultaneously with air, water and noise pollution, and it also regulates the treatment of hazardous materials. In addition to the Water Act and Air Act, the government can also regulate these kinds of pollution under the EPA. The Central Government is entitled to the exercise of following powers: The central government has the power to take all kinds of measures in order to protect and improve the quality of the environment and also take measures to prevent, control and abate environmental pollution. It has to ensure that there is proper co-ordination of actions by the State governments, officers and other authorities as far as planning and execution of a nation-wide program for the prevention, control and abatement of environmental pollution. This is an important power as without cooperation amongst officials from different departments, it would not be possible to protect the environment. The Central Government may make Rules to provide for protection of different aspects of environmental law. It has to power to lay down standards for the quality of Environment in its various aspects and also lay down standards for emission or discharge of environmental pollutants from various sources. The Central government also has the power to restrict areas in which any industries, operations or processes, or Class of industries, operations or processes cannot be carried out or it could be carried out subject to certain safeguards. The Central government can also lay down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents. This is a very important power conferred on the government, because if there was one lesson that was there to be learnt post-Bhopal was that India did not have any environmental disaster management system in place. It also lays down procedures and safeguards for the handling of hazardous substances.
Similar to the Water and Air Acts, the EPA also contains provisions to ensure compliance which includes power of entry for examination, testing of equipment and other purposes, power to take samples of air, water, soil, or any other substances from any place for analysis, power to issue direct written orders in Order to close, prohibit 53
or regulate any industry, operation or process or to stop or regulate the supply of electricity to that industry. The government is also given the responsibility of collecting and disseminating information in respect of matters relating to environmental pollution, and also preparation of manuals, codes or guides relating to the prevention, control and abatement of environmental pollution. This is a very important power as educating the masses is one of the most important methods of implementing environmental laws. The masses must be educated about the dangers to the environment in order to elicit their participation and cooperation in protecting the environment.
NATIONAL ENVIRONMENT TRIBUNAL ACT, 1995: By virtue of Section 3 (3) of the Environment Protection Act, 1986, the Central Government has powers to order constitution of an authority or authorities by such name as may be specified in such order, for the purpose of exercising and performing such powers and functions as may be specified as necessary to protect and improve environment. In furtherance of this and to implement resolutions of the United Nations Conference on Environment and Development held at Rio De Janerio in June, 1992, in which India also participated, the National Environment Tribunal Bill was introduced in the Parliament in 1992 to provide for the establishment of a National Environment Tribunal for effective and expeditious disposal of cases arising out of any accident occurring while handling any hazardous substances, with a view to give relief and compensation for damages to persons, property and the environment and for matters connected therewith or incidental thereto. The preamble of the Act states, “An Act to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of a National Environment Tribunal for effective and expeditious disposal of cases arising from such accident, with a view to giving relief and compensation for damages to persons, property and the environment and for matters connected therewith or incidental thereto”.
NATIONAL ENVIRONMENT APPELLATE AUTHORITY ACT, 1997 The preamble of the Act states, “An Act to provide for the establishment of a National Environment Appellate Authority to hear appeals with respect to restriction of areas in which any industries, operations or processes or class of industries, operations or 54
processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 and for matters connected therewith or incidental thereto”. Thus as stated in the preamble of the Act, this Act provides for the establishment of a National Environment Appellate Authority to hear appeals with respect to restriction in areas with respect to restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment Protection Act, 1986 and for the matters connected therewith or incidental thereto, regarding which the central government is empowered to make rules under section 6(2) of the Environment Protection Act, 1986. Thus, the scope of authority constituted under the Act is very limited. Both, the National Environment Tribunal Act, 1995 and the National Environment Appellate Authority Act, 1997 did fill up many gaps in the existing laws. However, they had a limited mandate to provide relief and compensation to the victims who are affected because of handling of hazardous substance. These Acts failed to resolve the multidisciplinary and complex environmental issues which needed specialised Tribunals, which the National Green Tribunal Bill, 2009, seeks to establish. Thus, by passing of the National Green Tribunal Bill, these Acts are sought to be repealed.
CHAPTER 5 INTERNATIONAL ENVIRONMENTAL LAW AND GLOBAL ISSUES
Global environmental change is detrimental to the health of human beings, and would result in hotter summers, colder winters, rise in sea levels, change in the monsoon pattern, droughts, extinction of biodiversity and devastating floods. In the wake of intensification of the problem of global environment change, the mankind faces environmental dilemma. Global environmental change in common concern of mankind and possesses inherent capability of transcending national boundaries (one country’s degradation of the global commons degrades of the global environment for all countries). Therefore, the international regulation and control of the phenomenon of global environment change is legitimate (however, the principle instrument for preventing global pollution and degradation is domestic law and policy). On 7 November 1989, Noordwijk Declaration of Atmospheric pollution and Climate Change proclaims that climate change is a common concern of mankind. However, the developed countries (“North”) have robbed the developing countries(“South”) by dangerously polluting the environment which is common heritage of mankind. It is, therefore, the first and foremost duty of the developed countries to provide a healing touch to the developing countries by the way of transfer of technology and adequate compensation. Thus, north-South cooperation is a pre-condition for evolving and implementing legal measures to control global environment change. According to R.S Pathak ( Former Chief Justice, India); “The global concern for the protection and preservation of our environment arises from recognition of the unity of the human race. And, therefore, there is no logic in maintaining a barrier between the developed and developing nations. The NorthSouth dialogue should be viewed now in the context of a greater threat, that of grave environment damage to the entire planet, and the demand of the South for the free flow of technology and scientific knowledge from the North should be weighed not merely in the dimension of poverty removal and economic justice but in the further reality of the need of developing nations for alternative systems of energy and environment protection strategies.” Thus, it emerges that the environmental la is a pointer towards world order, or in other words, a harbinger to an emerging world legal order. Although the world is not environmentally uniform and the nations differ in environmental resources, but degradation of the environment affects all the nations, which require a resolve on the part of all of them to converse and protect the environment.
The Brundtland Report51signalled changes in the way we look at the world: “Until recently, the planet was a large world in which human activities and their effects were nearly compartmentalised within nations, within sectors(energy, agriculture, trade) and within broad areas of concern( environmental, economic, 51 Our common future, report of the world commission on environment and development, 1987 56
social). These compartments have begun to dissolve. This applies in particularly to the global ‘crises’ that have seized public concern, particularly over the last decade. These are not separate crises: an environmental crisis, a development crisis, and energy crises. They are all one”. Nevertheless, despite this progress, from a global perspective the environment has continued to degrade during the past decade, and significant environmental problems remain deeply embedded in the socio-economic fabric is just too slow. Internationally and nationally, the funds and political will are insufficient to halt further global environmental degradation and to address the most pressing environmental issues. Comprehensive response mechanism have not yet been fully internationalised at the national level. The development at local, national, and regional levels of effective environmental legislation and of fiscal and economic instruments has not kept pace with the increase in environmental institutions. ENFORCEMENT OF INTERNATIONAL ENVIRONMENTAL LAW “International environmental law” comprises those substantive procedural and institutional rules of international law which have as their primary objective the protection of the environment. Under international law, a distinction is often made between ‘hard’ and ‘soft’ law. Hard international law generally refers to agreements or principle that is directly enforceable by a national or international body. Soft international law refers to agreements or principles that are meant to influence individual nations to respect certain norms or incorporate them into national law. Although these agreements sometimes oblige countries to adopt implementing legislation, they are not usually enforceable on their in a court. Thus, the enforcement of international law is a complex and often political process. Besides the jurisdictional problem (wiz, who may bring a suit, which international forum has subject matter of jurisdiction.etc.) these are other hurdles. “First, the environmental harm must be large and notorious for a country to notice. Second, for a country to harm a stake in the outcome of the subject matter, some harm may come to cross the borders of the violating country into the country that is suing. Finally, even in the Tran boundary harm does exist, the issue of causation, especially in the environmental field, is often impossible to prove with any certainty.” The, International law thus, remains largely unenforceable. One may ask: what is the purpose of international environmental law- is it a mortal statement, a deterrence, or a socializing tool?
Nevertheless, International law and institutions serve as the principle framework for international co-operation and collaboration between members of the international community in their effort to protect the local, regional and global environmental law are widely accepted. This acceptance is evidenced in a number of ways, such as international agreements, national legislation, domestic and international judicial decisions and scholarly 57
writing. Environmentalists at “Earth Summit plus Five” (1997) gave a call to create a “World Environment Court” to solve the international environmental disputes. INTERNATIONAL LEGAL MEASURES Significant International Legal Measure taken for the protection of environment and regulation and control of acid rain, greenhouse effect, ozone depletion, etc. Some of the decision of the courts and international tribunals recognised the State liability in relation to trans-boundary environmentally harms. Trail Smelter Arbitration52. Between Canada and the United States concerned action brought by the United States for the pollution caused by a Canadian smelter in British Columbia. It was held by the Arbitral Tribunal that no Action State had the right to use or permit the use of its territory such that emissions cause injury in or to the territory of another State or to properties or persons therein. The tribunal also emphasised the importance of the States jointly working together to eliminate trans-frontier environmental problems. The trail Smelter decision substantially advanced principles of State responsibility in regards to Tran frontier pollution but uncertainty existed as to how far these principles could extend. The Corfu Channel Case53confirms the principles of State responsibility for injurious act which occur within territory under State control. As a result of this decision, the potential now existed for the principle of Trial Smelter to be extended beyond and air pollution to a wide variety of injurious acts. The 1957 Lake Lanoux Arbitration between France and Spain further developed some of these principles by making reference to the obligations State owned to advise their neighbours of activities which could result in Tran boundary harm. In the 1950s, the international community legislate on International oil pollution in the oceans, and the conservation of living resources of the High Seas and the Antarctica region. In the 1960s, State liability for nuclear damage and the oil pollution damage was recognised. By the 1970s, the regional consequences of pollution and the destruction of flora and fauna were obvious. Some very significant conventions took place during this decade such as the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora. Over 113 nations had signed the 1973 Convention on International Trade in Endangered Species (CITES).CITIES does not seal to directly protect endangered species or the development practices that destroy their habitats. Rather, it seeks to reduce the economic incentive to kill endangered species and destroyed their habitat by closing off the international market. Cites regulates by means of an international permit system. For plant and animal species threaten with extinction, international import or export is strictly forbidden. For plant and animal species suffering decline but not yet facing extinction, international import/export permits must be secured. These CITES permits enable the trade to be controlled and monitored so that it does not lead species extinction or decline. By the late 1980s, global environment threats were part of the international community’s agenda as scientific evidence identified the potential consequences of
52 Trails Smelter Arbitration [(1939_ AJIL, p.182 ;( 1941) 35 AJIL,p484) 53 The Corfu Channel Case [U.K V Albania (1949) IC]]
ozone depletion, climate change and loss of bio-diversity. Local issue were recognised to have Trans boundary, and then regional, and ultimately global consequences. The 1990s saw the crucial Rio Conference. The 1985 Vienna Convention can be cited as examples of international regulations being adopted in the face of scientific uncertainty and in the absence of an international consensus on the existence of environmental harm. STOCKHOLM CONFERENCE THE United Nation Conference on Human Environment 1972, marked watershed in international relations and placed the issue of the protection of biosphere on the official agenda of international relations and placed the issue of the protection of biosphere on the official agenda of international policy and law. The States reveals apart the narrow issues of the sovereignty and jurisdiction to collectively resolve complex issues of environment and development. The initial stages of the conference saw the emergence of two conflicting approaches. The first approach insisted that the primary concern of the conference was the human impact on the environment with the emphasis on control of pollution and conservation of natural resources. The second approach laid emphasis on social and economic development as the real issue. The conference was remarkable achievement as 114 participating nations agreed generally on a declaration of principles and an action plan. The principles contained in the Stockholm Declaration demonstrate that the world has just one environment. Principle 21 of the Declaration confers responsibility on States to ensure that activities within their jurisdiction and control do not cause damage to environment of other States. Principle 22 requires the State to co-operate to develop international standards regarding liability and compensation for the victims of pollution and other ecological damage. Principle 25 of the Stockholm Declaration states: “State shall ensure that international organisations play a coordinated, efficient and dynamic role for the protection and improvement of the environment.” The Stockholm Conference is a major landmark in the effort of nations to collectively protect their life support base on earth. UNEP, an activator of the Stockholm Action Plan, has given the international environment movement universality, legitimacy, and acceptability in the developing countries. The United Nations Environment Programme (UNEP) born out of the common concern of mankind for the environment. The primary significant of UNEP lies in the fact that it provides a forum acceptable to the developing countries that emphasise on the development as a vehicle for raising the quality of the environment. UNEP has been responsible for the establishment and implementation to the Regional Seas Programme, including some thirty regional treaties, as well as important global treaties addressing ozone depletion, trade hazardous waste and biodiversity. It also established the Global Environment Monitoring System (GEMS) under its ‘Earth Watch’ programme. THE MONTREAL PROTOCOL (OZONE TREATY) 59
In 1985, Vienna Convention established a framework for the adoption of measures ‘to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer’. The Montréal Protocol, 1987, which cane into force from January 1, 1989, initially aimed at the elimination of ozone depleting substances at a uniform rate irrespective of the development status of a country. The pact was signed by 48 nations, mostly developed countries. India and the other developing nation like Malaysia and china refuse to sign it because of pragmatic considerations and discriminatory clauses in Protocols, namely (i) Per Capita Consumption of CFCs. (ii) Patterns of consumption of CFCs. (iii) Massive switch over costs. (iv)Transfer of technology. All were either directed against developing nations or the onus of pollution to be beard by north countries. PROTOCOL AFTER “LONDON/ OTHER AMENDMENTS” The amendments to the pact resulted because of a firm stand taken by the developing nations including India. The amendments provided for – a multilateral nations including India. The amendments provided fro – a multilateral fund with obligatory contributions from developed nation; equal voting rights for all the parties to the protocol;; a fund to cover all extra costs incurred by developing nations in meeting the obligations of protocol; and, to ensure transfer of technology to developing nations. India was the last major country to sign Protocol. The amendments became operational from august, 1992: developed countries will phase-out CFCs between 1995 and 2000, while developing nations will begin their elimination programme only in 2000 and end it in 2010. As per the Montreal Protocol, the State parties should not only help prohibit trade in ‘controlled-substances’ (ozone depleting substances) between the parties and nonparties of Protocol. Thus, parties to the Protocol are prohibited from improving such substances or exporting CFC production technology and equipment. This comprehensive trade ban places both economic and diplomatic pressure on al nations to join the Protocol. The Protocol was further supplemented wit the amendment in Copenhagen on 25th November 1992, wherein time table for phasing out substance was enhanced. The list of controlled substances has been further expanded with the adoption of 1995 and 1997 amendments to the Protocol. KUALA LUMPUR CONFERENCE A ministerial level conference of developing nations in 1992at Kuala Lumpur, Malaysia, adopted certain far-reaching declarations. For example, setting up of an international “green fund” for greening the Earth (each country to cover at least 30% of its area with forest by 2000 A.D.) with a higher share from the developed nations. However, US rejected the proposal as existing GEF was sufficient, and a country receiving funds may divert money for other purposes. Global Environment Facility (GEF) it’s an U.N. mechanism (with World Bank’s assistance) for funding the greening of the earth and promoting sustainable 60
development; India and the other developing nations opposed it as it has a ‘donor bias’ and its not democratic. India, at this conference, also mooted the idea of “Environment Tax” on developed nations to pay for the global environment clean up. Also, India outlined a ‘new global partnership’ based on the sound principles- equal weight age to all nations, with stronger U.N role; no condition in funding of trade on grounds of environment protection; no globalisation of national resources like genetic diversity, and, no enforcing of environmental standards at international level in place of national limits. Thus, India recognises the sovereign “right to development”. RIO CONFERENCE (EARTH SUBMMIT) Rio de Janeiro, Brazil, was chosen as the venue for the earth summit to effectively highlight the consequences of man’s recklessness and to device strategies to combat the ecological disaster. This UN Conference for Environment and Development UNCED), held in June 1992, was attended by representatives of 178 nations and 115 heads of government. (A) Key Issues Issues dividing the North and South were placed in the agenda for discussion at the summit. The issue were as follows(i)Greenhouse gas emission- North want a shift from the use of coal and wood for energy and to stabilise CO2 emission at 1990 levels by 2000 A.D. South blames for excessive emission and wants them to reduce it; opposed to any cut in its own emission as it hinders development. (ii)Forests- North wants a legally binding convention to restrict deforestation in tropical countries rich in bio-diversity. South asserted that such works would impinge on national sovereignty; rich must compensate for conservation and share profits for researches on species. (iii)Population- North wants population control in South, and thus to check deforestation, population, etc. South blames the rich for over consumption i.e. 60% of world’s energy. (iv)Technology transfer- North say that technology development is commercial and thus countries wanting to utilise it must pay. South says that” environment-friendly” technology to be transferred cheaply. (v)Finance (‘who would pay for the clean up’?)- North say that existing UN mechanism of GEF is sufficient; want finance sharing from all countries with no mandatory contribution from North. South favours “polluter must pay” principle, thus North to pay major part with firm commitments; a new institution, in place of GEF, is needs whose functioning is transparent and democratic. (B) (i) OutlookRio declaration – a statement of principles which set out the rights and obligations of all nations in relation to the environment, however, not legally but morally hiding only. 61
(ii) (iii) (iv)
Climate convention- a commitment to reduce CO2 emission, signed by 150 nations including USA, however, or does not fix any deadline for reducing or any immediate change in fuel consumption. Declaration on principles in forestry conservation- adopted, however, it is not legally binding convention. AGENDA 21- a blue print for ecologically safe development up to year 2000 and beyond (21 century) adopted, covering issues like transfer of environment – friendly technology. Creating environmental awareness, an integral approach to land resource use, checking deforestation, peaceful use of nuclear energy, etc. However, it avoided the question of who would pay for it (European countries promised to pay only a partial amount). New UN panel on environment- to assess the environmental impact of lending by WB and IMF, and implementation of Agenda 21. Also, a Sustainable Development Commission 9SDC) to be set up to monitor the implementation of Agenda 21. Biodiversity treaty- 1550 nations, excluding USA, signed a companion treaty to protect the endangered species on earth.
Attitude of USAUSA stuck to its unreasonable stand even though it got completely isolated (its allies Japan and Britain signed the bio-diversity treaty).US watered down the climate treaty by non- inclusion of any deadlines. US were concerned that it would require major changes in economy that will lead to joblessness in the country. USA did not want to sign the bio-diversity treaty as it would harm the interest of its bio-technology companies (regarding patents); impose upon burden on its taxpayer(because of the funds for conservation),and; raise problems of ‘control’ on funds the developing countries will get. USA instead proposed a separate international plan for the world’s forests by developing eco-technological practices, and contributing funds for it.
(D) India’s ContributionIndia, a key player in negotiations, put much heart and energy even at the risk of getting unpopular with the US administration. India did not agree to the phraseo graphy in the text of some clauses of Agenda 21(‘terms for transfer of technology’), India had strong reservations about the dilution of original commitment in climate treaty. India proposed a “Planet Protection Fund to help but environment ‘friendly technology world-wide and make them available free of cost to any country seeking them. (E) Significance of summit-
Earth summit was intended to call attention to the environment as an urgent international issue, and to agree on how to fix it. What the summit achieved id that the 62
problem of environment has come to be recognise as central to saving this planet and inscribed as the agenda of this day and age. However, summit failed to achieve agreement on crucial environmental issues and to extract definite commitments for financial resources from the developed countries. The summit failed to raise enough funds for GEF. Also, the question of technology transfer remained unclear. The summit, surprisingly, did not address the central question of world population. Thus, the net- outcome is hardly satisfying in any concrete measure to the developing countries. The experience of the summit was that the developed nations were unwilling to bear the responsibility for their consumerism though they acknowledge that their model of civilisation is bringing disaster for developing nations. However, the basis of this new perception is their realisation that their own future is equally threatened. In the final analysis, North will have to be more firm in its commitments, and South must endeavour and thereby forge a consensus on the approach to save the planet. The Earth Summit Plus Five (1997), a special session of the UN General Assembly held after five year from the historic “earth summit”, was suppose to ascertain that “hoe far the committed nation had gone from Rio.” The representatives of various nations reviewed the progress that they had made in achieving the goal of sustainable development and to save the planet Earth from the further deterioration.
Agenda 21 Adopted at the 1992 UNCED, Agenda 21 is another important non binding instrument and action plan for sustainable development. It provides mechanisms in the form of policies, plans, programme, and guidelines for national governments to implement the principles contained in the Rio Declaration. Agenda 21 comprises 40 chapters focusing on major issues like poverty, sustainable agriculture, desertification, land degradation, hazardous wastes, atmosphere, fresh water, toxic chemicals, biological diversity, etc. These various chapters are categorized under four sections: • Social and Economic Dimensions • Conservation and Management of Resources for Development • Strengthening the Role of Major Groups • Means of Implementation Under Agenda 21, provisions were adopted for decision making on natural resources management to be decentralized to the community level, giving rural populations and indigenous peoples land titles or other land rights and expanding services such as credit and agricultural extension for rural communities. The chapter on major groups calls on governments to adopt national strategies for eliminating the obstacles to women’s full participation in sustainable development by the year 2000.
THE BIODIVERSITY CONVENTION At the Rio Conference, an agreement was reached on the conservation and sustainable development of the world’s biodiversity. The Convention on Biodiversity was signed by 153 nations on 14th June, 1992; it took effect on 29 decembed, 1993, after it was ratified by the required minimum of 30 countries. The Conventions aimed to establish a global partnership for the protection of natural resources with the recognition of the sovereign rights of States over their resources. 63
The Convention lacks any specific standards or methods to ensure compliance. However, Art. 26 imposes an obligation on each parties to submit to the conference of the Parties, reports or measures which it has taken for the implementation of the provision of the convention and their effectiveness in meeting the objective of Convention. The convention suffers from various fundamental defects. The countries adopt nature protection standards that are appropriate to their own economic needs and priorities. However the Convention, which id legally binding agreement, contains several provisions which would be advantageous to exploited nations. One such provision relates to the links to the biodiversity and biotechnology. The Convention includes new international rules on access to genetic resources, access to and transfer of technology, and handling of biotechnology and distributions of its benefits. Themselves poor in biodiversity, the developed nations have been forcibly looting the resources of the biologically rich tropical countries, yet denying the latter the technologies and benefits arising out of these resources ( by way of patent and other intellectual property rights). Countless “wonder” drugs produced by multinational companies and western countries are based on plant extract taken from the tropic, yet the people of the latter not only are denied a share of the resultant benefits, but have to buy these drugs for exorbitant prices. Therefore, the United States (alone among industrialised countries) decided not to sign the Convention. The USA eventually changed its stands during the Bill Clinton’s regime and signed the Convention. The Biodiversity Convention, which is legally binding, can be construed as an important effort to protect and conserve natural resources of the world as a whole. The Convention is likely to become the principle framework within which the development and implementation of rules on biodiversity conservation will occur. KYOTO SUMMIT ON GLOBAL WARMING, 1997 The convention on Climate change had decided that a review conference would be convened after a period of 5 years .therefore, a conference on ‘climate change’ was held in Kyoto(Japan) to review the progress made in 5 years and to chalk out plans and fix strategies/objective for the future. More than 150 countries participated in it.
The Conference achieved some success as it took certain solid decisions, which. That the emission of greenhouse gases from the 1990 level would be reduced by8%, 7% and 6% by the European Union, America and Japan, respectively. Similarly, targets of 21 other industrial countries were fixed for reducing emissions of green house gases. The Kyoto process envisages that poor or developing nation will take on targets at later stages. The developing countries expressed the view that their economic conditions do not permit them to accept such commitments; therefore, they (including China and India) 64
were exempted from such commitments. On of the main reasons fro this is that per capita emission of these gasses countries is far less than in developed industrial; countries. The U.S.A argues that “the Kyoto Protocol is unfair to the United States and to other industrialised nations because it exempted s 80% of the world from compliance.” The argument is misplaced, because the developing countries’ contribution to the global warming via greenhouse emissions pales besides Americafirst on the list. The Kyoto Protocol has been criticised on the ground that it calls for sharp reductions in emission over a relatively short period of time .there are ambitious targets but no limits on compliance costs (which could be very high). The forth session of the Conference of the Parties to the UN Framework Convention on Climate Change (COP4) [Buenos Aires, 1998], COP6 [Hague, 2000], and, COP7 (2002) have failed because of the U.S intransigence. When Clinton signed the treaty in 1998, it was thought that U.S ratification would follow and the Kyoto Protocol would become law. But in dramatic turn of events, George Bush pulled out of treaty in 2001, seriously endangering global climate negotiations. BIOSAFETY PROTOCOL, 2000 No other scientific controversy in recent timed would seems to have polarised opinion as much as the issue of genetically /living modified organism (GMOs). A genetically/ living modified organism (GMO) refers to an organism into which one gene from an unrelated organism has been transferred and incorporated in the genetic material, which means that its characteristics in the latter. This makes it possible to produced agricultural crops(‘transgenic plants’) or create domestic animals with particulars characteristics. The main issues of contentions vis-à-vis the use of GMOs pertain to the lack of transparency and public awareness about them and environmental and ecological safety. Other aspects of the controversy relates to social and economic equity, legal and regulatory considerations and moral and ethical issues. The issue of bio safety has always posed problems due to scientific inadequacy and uncertainties on Biological Diversity adopted a supplementary agreement to the Convention Known as the ‘Cartagena Protocol on Bio safety” on 29 Jan. 2000.the Protocol seeks to protect the biological diversity from the potential risk posed by living modified organisms resulting from modern biotechnology. It establishes a procedure for ensuring that countries are provided with the information necessary to make informed decisions before agreeing to the import of such organisms into their territory. The Protocol establishes a Bio safety Clearing-House to facilitate the exchange of information on living modified organism and to assist countries in the implementation of the Protocol.Art.8(g) of it lays down that the Parties shall establish the means to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology which are likely to have an adverse effect upon environment that could affect the conservation and sustainable use of biological diversity,, taking into account the risks to human health. 65
The bio safety Protocol requires exporters of genetically modified organisms to obtain prior approval from the importing country. Such regulations are intended to aloe countries to reduce the ecological risks from introducing genetically altered plants, animals and microorganism into the environment. The main sticking point in the bio safety negotiation was whether the requirement should apply to genetically alter agricultural commodities meant for eating or processing, as opposed to plant. The U.S and the other five big agricultural exporters (Canada, Australia, Argentina, Chile and Uruguay) argued that such a requirement would not be protected biodiversity because commodities such as corn and soybeans do not enter the environment. The U.S and its allies obviously wanted to protect the interests of their framing and biotechnology industries. However, the developing nations and the European Union argued that commodities should be included because they have seeds that can be planted. The Bio Safety Protocol was mainly meant to help developing countries, which are now lack the expertise and legislation to regulate biotechnology. The Bio safety Protocol came into force on Sept.11, 2002, when the requisite number of parties had rectified it. India is a signatory to the Protocol; and is bound by its provisions. USA is not a member of the Protocol. REGULATORY MECHANISM IN INDIA India woke up to the GMO threats in 1998 after reports about the controversial “Terminator” technology and the angry responses of farmers’ organisations to field trials in India of Bollgard (BT) cotton seeds, manufactured by Monnsanto/Americam Home Products, appeared in the media. The approval for the commercial release of Bt- Cotton was given by the Genetic Engineering Approval Committee (GEAC) of the Central MoEF, the statutory body set up for approving large scale (research or commercial) use of genetically engineered organisms (GEOs) following the rules enacted in 1989 in 1989 under the Environment Act, 1986.The GEAC is the apex clearing authority in the three tier regulatory system structure after bio-safety studies and small scale field trials are evaluated by review committee for Genetic Manipulation and the Monitoring Committee and Evaluation of the Department of biotechnology (DBT). The State-level Committees are also to be consulted in the process of approval. Recently enacted Biological Diversity Act, 2002, also contains provision relating to the regulation of GMOs. The Central Government is required to undertake measures to regulate, manage or control the risks associated the use and release of living/ genetically modified organism resulting from biotechnology likely to have adverse impact on the conservation and sustainable use of the diversity and human heath. SUSTAINABLE DEVELOPMENT
Development without concern for the environment for the environment can only be short-term development. In the long term,, it can only be anti-development and can go only at the cost of enormous human suffering, increased poverty and oppression. Over the past few decades increased poverty and oppression. Over the past few decades, indiscriminate, mineral exploitation, industrialisation and urbanisation have led to an unsustainable environment viz. creation of wastelands, polluted rivers and seas, global warming, acid rain, deteriorating air, etc. Environmental protection measures have thus become mandatory in order to achieve sustainable development globally. The concept assumed immense importance against the backdrop of the growth of human population and modern man’s indiscriminate and unbridled exploitation of environment to gratify his ever-growing hunger for prosperity. Meaning and Concept “Sustainable development is development that meets of the present without compromising the ability of the future generations to meet their own needs”(WCED Report, 1987). Economists define it as an economic progress in which the quantity and quality of our stocks of natural resources (like forest) and the integrity of bio-geochemical circles (like climate) are sustained and passed on, unimpaired, to future generations. The eminent Indian economist Sukhamoy Chakravarty has pointed out that the success of ‘sustainable development’ lays in the fact that it says nothing exercise and, therefore, means anything to anybody! For a logging company it can be mean sustained projects; for an environmental economist it can mean sustained stocks of natural forests; and for an environmentalist it can mean a clean heritage for our children. As the western jokes go now, sustainable development for multinational companies means ‘sustained growth’ or ‘sustained profits’. The concept of sustainable development signifies a policy approach or goal rather than a substantive prescription. Its principle merits is that it modifies the previously ‘unqualified’ development concept.
UNITED NATIONS COMMISSION ON SUSTAINABLE DEVELOPMENT, 1992 In 1992, pursuant to its mandate in Agenda 21, the General Assembly and Economic and Social council of United Nations established the UN commission on Sustainable development (CSD). It is intended to monitor, review and consider progress in the implementation of international environmental policy as found in Agenda 21 and in international conventions on the environment. 67
The CSD is composed of 53 nations who are elected from members of the United nations and from specialised agencies. It is intended to maintain an equitable geographic distribution around the world, there are 13 representative fron African States, 11 from Asian States, 10 from Latin American and Caribbean States, 6 from East European States and 13 from Western European and other States. The term of office of the various members are intended to be varied in order to ensure the broadest representation of countries over the period of years. In 1995, nations from the Sia Pacific region included India. The functions of CSD broadly fell into three categories: (i) (ii) Monitoring the implementation of Agenda 21 which means gathering information from governments, various UN agencies/bodies, international institutions and NGOs. Reviewing the availability of financial and technical resources i.e. to determine whether and to what extent, developed countries have honoured their commitment in Agenda 21 by providing resources to developing resources to developing countries to enable them to implements Agenda 21. Acting as a forum for discussion, consensus- building and decisionmaking, which will include identifying weakness in the international legal and institutional regime , proposing areas for regulation by treaty, and forging consensus on new issues.
It is submitted that the establishment of the CSD was a significant step but its success lies on many factors. The Commission will have to rely on political rather than legal authority to integrate global environmental and economic policies,. Its successes heavily depend upon on the quality of participation from various national governments. The Commission should establish effective subsidiaries bodies, disseminate information, and play a role in developing and assessing the implementation of national strategies. DELHI SUSTAINABLE DEVELOPMENT SUMMIT, 2002 The Sustainable Development Summit 2002 held in Delhi drew world’s attention to poverty alleviation as the means to a sustainable future.” a world in which property and inequity are endemic will always be prone to ecological and the other crises.”[WCED]. Poverty eradication in the long run requires the poor to sustain enhanced standards of living through promotion of opportunity, empowerment and security, which is essence lays down the foundation of the “sustainable livelihood” approach. Globalisation is both an opportunity and the threat to such approach: “on the upside , globalisation could make economic activities an institutions more efficient, developed human capital, enhance employment opportunities, provide access to the cleaner technology, promote environmental awareness and create market self regulation of industrial activities. On the other side the exacerbation of in equities in the distribution of benefits among worlds population had been an impediment to sustainable livelihoods.” 68
The summit noted that while issues outlined in Agenda 21 had been reiterated as various forum they were yet to find effective expression in national strategies for development or in bilateral an d multilateral commitment. Indian P.M Vajpayee criticised the developed world for not fulfilling “lesser obligations” of just one- third of the financial resources required to implement Agenda 21 he said; “Clearly they must give more resources directly through higher aid and of indirectly by opening their market to the poorer nations. Therefore imposing environmental or labour restrictions on free movements of goods and services in the name of selective aspect of sustainable development……will only is intensifyin the developing world.” JOHANNESBURG SUMMIT ON SUSTAINABLE DEVELOPMENT, 2002 The world summit on sustainable development [WSSD] held in Johannesburg, 2002 had no set Conventions or agenda to be signed. However, some vague commitments were made under ‘type 1’, outcome (plan of action) and several plans announced under the ‘type 2’ initiative. While type 1 was a largely political rhetorical political declarations focusing five priority Ares: Water and sanitation, energy health, agriculture and bio diversity and eco system management (popularly call WEHAB), the ‘type 2’ was a mom binding partnership arrangement between business, NGOs and Governments. The Summit tried to bring into its fold all binding conventions and agreements signed by Governments till ne and all the issues ranging from the local to the international but it ended up echoing the two pointing agenda of the U.S; of rolling back what was agreed upon at Rio, and pushing not binding private partnership under type – 2 initiatives. These initiatives fall outside the binding commitments of the U.N and dilute the process of multilateral commitments of the U.N and dilute the process of multilateral agreement which were central to Rio conference and led to Governments abdicating their responsibilities. It may noted with establishment of WTO in 1995, the environmental and developmental agenda became subservient to trade and business Johannesburg was the sustainable development agenda been given away to global corporation on a platter. Developing courtiers become a voice in the wilderness with even the group of 77 and China- which were local and effective in Rio- been pushed to the sidelines. India presence was also low-key. Barring the achievements of getting Russia, china and Canada to agrees to ratify KYOTO PROTOCOL. Johannesburg became a battle ground as countries and participants slugged it out on such crucial issues as ‘Target and time frames’.’ common but differential responsibilities’ ,’new and additional finance’,’ good governance’, ‘corporate responsibilities’ and ‘trade and globalisation’. The Summit diluted Government promises and empowered global business to protect the Earth degradation and, in the processes, undermining the problems faced but millions of poor people whom the WSSD promised to protect. At the end of the Summit the South African president said; 69
“We are fighting a global apartheid of the rich against the poor in dealing with sustain able development”
India, the world's last major emitter to formally back the Copenhagen Accord, has done so. Environment Minister Jairam Ramesh said the decision reflected India's contributions in shaping the Accord. Ramesh went on to list the three conditions under which India will participate: 1) The Accord is a political document and not a legally binding one. 2) The Accord is not a separate negotiating track outside the UNFCCC framework. (Thing discussed as a possibility due to the perceived increasingly unwieldy nature of trying to get so many countries to agree...) 3) The purpose of the Accord is to bring consensus in the ongoing two-track UNFCCC process. (Too bad the consensus is still not enough action quickly enough...) The Economic Times quotes Jairam Ramesh as saying: Listing in the [preamble] of the Accord implies that we participated in the negotiations on the Copenhagen Accord and that we stand by the Accord. The Accord could have value if the areas of convergence reflected in it are urged to help the parties reach agreed outcomes under the UN multilateral negotiations in the two tracks
COPENHAGEN SUMMIT, 2009
A US-led initiative called the Copenhagen Accord has formed the centre-piece of a deal at UN climate talks in Copenhagen, despite some countries' opposition. Below is an explanation of the main points in the agreement. Legal Accord
The Accord, reached between the US, China, India, Brazil and South Africa, contains no reference to a legally binding agreement, as some developing countries and climate activists wanted. Neither is there a deadline for transforming it into a binding deal, though UN Secretary General Ban Ki-moon said it needed to be turned into a legally binding treaty next year. The accord was merely "recognised" by the 193 nations at the Copenhagen summit, rather than approved, which would have required unanimous support. It is not clear whether it is a formal UN deal. Temperature Rise The text recognises the need to limit global temperatures rising no more than 2C (3.6F) above pre-industrial levels. The language in the text shows that 2C is not a formal target; just that the group "recognises the scientific view that" the temperature increase should be held below this figure. However, the accord does not identify a year by which carbon emissions should peak, a position resisted by some richer developing nations. Countries are asked to spell out by 1 February next year their pledges for curbing carbon emissions by 2020. The deal does not spell out penalties for any country that fails to meet its promise. Financial Aid The deal promises to deliver $30bn (£18.5bn) of aid for developing nations over the next three years. It outlines a goal of providing $100bn a year by 2020 to help poor countries cope with the impacts of climate change. The accord says the rich countries will jointly mobilise the $100bn, drawing on a variety of sources: "public and private, bilateral and multilateral, including alternative sources of finance." A green climate fund will also be established under the deal. It will support projects in developing countries related to mitigation, adaptation, "capacity building" and technology transfer. Emission Transparency The pledges of rich countries will come under "rigorous, robust and transparent" scrutiny under the UN Framework Convention on Climate Change (UNFCCC). In the accord, developing countries will submit national reports on their emissions pledges under a method "that will ensure that national sovereignty is respected."
Pledges on climate mitigation measures seeking international support will be recorded in a registry. Review of Progress The implementation of the Copenhagen Accord will be reviewed by 2015. This will take place about a year-and-a-half after the next scientific assessment of the global climate by the Intergovernmental Panel on Climate Change (IPCC). However, if, in 2015, delegates wanted to adopt a new, lower target on global average temperature, such as 1.5C rather than 2C, it would be too late.
AGENDA FOR REFORM
Each society experiments and learns from its own mistakes. Sustainable development cannot be thrust upon anyone by an external agent-whether it is the World Bank, the UNO, or the forestry departments of the Government. Strong public institutions and environmental protection policies seem to be essential. Policies aimed at changing behaviour should rely heavily on economic incentives. In the formulation of policies and decision-making, effective participation of the people on the spot should be ensured. Finding and implementing solutions to environment problems requires a partnership of efforts among nations. The mankind needs a global consensus for economic growth; North and South will have to forge equal partnership. It is the time to launch a new era of international co-operation. Issues like debt crises, trade policies, resources for the international financial institutions, harassing technology for global benefits, strengthening the United Nations system, and specific major threats to the environment such as global warming are inter-related.
The agenda for reform is large and comprehensive. Accepting the challenge to accelerate development in an environmentally responsible manner will involve substantial shifts in policies and priorities will be costly. Failing to accept the challenge will be costlier still. But, the value of this challenge becomes clear only when we realise that humanity is not distinct from nature but a part of it. The motto should be: “you must give back to the earth, what you take from it” 72
The opening reading consists of readings from the ancient Indian law. The most profound and perceptive of these are the provisions found in Kautilya’s Arthashatra written between 321 and 300 B.C. Kautilya was the prime minister of the Magadha Empire during the reign of Chandragupta Maurya. It is collection of scattered shlokas present them in organise form. The core materials are on forest policy and legislation under the one despot rule. Kautilya jurisprudence provide for law concerning forests, wild life, forest reserves, poaching and punishment in default. Next is the epitome of Buddhist philosophy “to live and other live” Governed by policy of tolerance and brotherhood provide law in form of folklore and the himself spoken by Gods or in this case the KING himself, the origin of state 73
theory governs the behaviour of people toward natural resources like river, wildlife, forest etc. as they consider the words of the King as the words of God. The above two just reflect the intentions of our ancestors towards the nature and environment. It can say that attention is given to the environment and it considered being an important part of Aryan philosophy. But it does not provide any proof of strict adherence of such laws and legislation. The ruler who have extended kingdom all over India can cannot provide a guarantee that this rule are being acknowledge by all his ‘praja’ . In other case, India is the country which is rule by numbers rulers and it consist of small tribal kingdoms which generally have there own set of rules, and principle they are sovereign tribes they do not like to be compelled by the other law. Plus, the demographic feature of India does not allow following the law in the same manner as it indented. Things which are taken to be true in south may not be with consistence with Northern provinces. India witnesses number of fall and rise and change of powers during these times Gutpa, Maurya, Cholas and Nands, they all the part of ancient India. It is country subject to conquest and continuous War. A settled administration can look after the Environment and law. It is highly unlikely the kingdom under fire all the time can even have time for the maintenance of forest and wildlife. Mughal Period starts with the establishment of kingdom by Babur in India. Before this there was only evidence of raids by the Afghan and Turks in India. During the Reign of Akbar emphasis id given on the protection and mercy towards the wildanimals and there is no other hint towards maintenance of forest and reserves. The forests were only use for the entertainment purposes and hunting is the only sports played in them. There is evidence of law against poaching and selling of animals. Thus can be said as the neglect but not the decline as India got vast resources and the population was meagre. Now, coming to the British rule in India starting from 1600 B.C till 1947. Nearly two decade and if someone ask me under which rule do you prefer India Mughal or British in will definitely go far Mughals. The British Indian Government’s forays into strengthening and safeguarding state control over forest resources began with the formation of the Imperial Forest Department in 1864.
The first Inspector General of the Forest Department, a trained botanist by the name of Dietrich Brandis constituted the Imperial Forest Service in 1867 with the officially vowed policy of addressing the need of having a premier forest service in order to manage the natural resources of India and to organize the affairs of the Imperial Forest Department. It was at around the same time that the first proper legislative enactments on the issue of management of forest resources came up in the form of the Indian Forest Act of 1865, which has been described as being the first attempt to asset the state’s monopoly over forests. This was superseded thirteen years later by the more comprehensive Forest Act of 1879, which was itself apparently only passed after intense debate and controversy within this emergent colonial bureaucracy.
These policies were never in favour good intentions towards India; their sole motive is to rob us from our heritage whether it is monetary resources or environmental resources. Terms like deforestation, devastation, forced farming, come into picture. With the defeat of Marathas the onslaught of our natural resources by East India Company began. Destruction of teak forest of Ratnagiri, oak forests vanishes to England to build their navy and railway network. Surat and Malabar Coast were there dockyard, revenue based policy also worked towards the denunciation of forests. Imperial Forest Department was formed in 1864, Indian Forest Act 1865 the only thing introduced by them is the survey of land. Act of 1978, describe the forests into three category but the right to use, such was taken away from the inhabitant and tribes who are depend upon them. Forests which are their inherited property under natural law, such rights were taken and vested in the state in order to accelerate the denunciation of environment. National forest policy of 1894 reinforces the right of the state to exclusive control over forest protection, production and management. The British Indian Government next followed the goal of creating a multi-tier forest administration system splitting the management of the forest resources between the Federal and provincial governments by constituting the Provincial Forest Service and the Executive and Subordinate Services.With the transferral of the ‘Forestry’ subject from the Federal Government’s jurisdiction to the Provincial List by the Government of India Act of 1935.
Ecological change and the peasant resistance. The major difference in the post-1947 situation has been a rapid expansion of forest based industry. The demands of the commercial-industrial sector have replaced strategic imperial needs as the cornerstone of forest policy and management. Reflecting on the century of social protest culminating in the Chipko Andolan, what is especially striking from the perspective of the sociology of peasant protest is the persistence of conflicts over the forests rights in India.
The forest conflict in Europe was representative of a particular historical epoch, when the rise of capitalism undermined the basic of subsistence agriculture. Bitter as these struggles were, they greatly diminish in scope and intensity within maturing of the Industrial Revolution and absorptions of surplus workers in the cities or through immigration to the colonies. Simultaneously the intensification of agriculture at home widening of the food production based through colonisation greatly reduced the dependence of farming and stock rearing on the forest. Subjected to commercial exploitation under sustainedyield silviculture, the forest has itself been transformed into an industrial enterprise run on capital lines. 75
The battle for the forest, however, between commercial forestry and the rural community, has, with the victory of industrial capitalism, been transformed into a battle in the forest. Although the commercial forestry in India has seated its own tensions between contractor and labour, these conflicts pale into in significance when compared with the continuing struggle between peasant and over control and use of forest. The battle for the forests remains a very visible part for the social and ecological landscape. From an ecological perspective, therefore, peasant movements like Chipko and not merely a defence of the little community and its values, but also an affirmation of a way of life more harmoniously adjusted with the natural processes. At one level they are defensive, seeking to escape the tentacle of the commercial economy and the centralising state; at yet another level they are assertive, actively challenging the ruling class vision of a homogenising urban-industrial culture. It is fusion of what it is termed as the ‘private’ (peasant movement and ‘public’ (ecological movement) profiles that has lent to Chipko movement a distinct quality and strength. For from being dying wail of a class about to drop down the trapdoor of history, the call of Chipko represents one of the most innovative responses to the ecological and cultural crises of modern society. It is a message we may neglect at our own peril. A survey of early environmental legislation indicates the nature and levels of governmental awareness indicates the nature and levels of governmental issues, Apart from forest laws, nineteenth century legislation also partly regulator two other aspects of India’s environment; water pollution and wildlife. These laws are however, had narrow purposes and limited territorial reach. The Indian penal code, enacted in 1860, impose a fine on a person who voluntarily fouls the water of any public spring or reservoir. In India, there are a number of laws deals with various aspect aspects of environmental protection, regulation, conduct of environmentally harmful activities and provide for remedies in case of their breach. Some of them are ‘general’ having an ‘in direct’ bearing on environment protection, while others are ‘special’ (Water, Air and Environment Acts, Forest A, etc.) bring “directly: concerned with environment protection.
General legislation consists of Indian penal Code, 1860; Code of Criminal Procedure, 1973; Code of Civil procedure, 1908. And specific sectarian legislations having a bearing on the environmental aspects, viz. the factories Act, 1948, the mines Act,, 1952, The Atomic Energy Act,1962. Etc. Under Indian law, for instance the remedies for a public nuisance are;(i) a criminal prosecution for the offence causing public nuisance(IPC,1860. Sec, 268.), (ii) a criminal proceeding before a magistrate for removing a public nuisance(Criminal Procedure Code 1973, SEC. 133-44), and(iii) a civil action by an Advocate general or 76
by two or more member of the public with permission of the court, for a declaration, an injunction or both (Civil procedure Code,1908, sec. 91) The remedy under the civil law is not often used; however this provision is a reservoir for the class action against the environmental violations. Traditionally, the interpretation for the Indian Penal Code has been viewed as a contraceptive attempt at enforcement. This is because punishment and fines have been characterised as meagre. Intention is an important element in criminal liability, which is often difficult to ascribe to a polluter. Criminal law presupposes the possibility of identification on a specific person or body. For example, a badly planned or unplanned city which leads to environmental congestion is the result of the activities of many people, whose actions are neither related nor indented to bring about congestion. The law of the public nuisance contained in Sec. 133, Cr.P.C has been used in a number of cases for the purpose of protection of the environment. In 1987, shortly after Bhopal Gas Tragedy and the Supreme court’s ruling in the Shriram Gas Leak Case54 , the 1987 amendments to the factories Act introduced special provision on hazardous industrial activities. The amendment empowers the States to appoint: site appraisal committees” to advice on the initial location of factories using hazardous processes. The occupier of every hazardous unit must disclose to her workers the Factory Inspector the local authority and the general public in the vicinity all particulars regarding health hazards at the factory, and the preventive measures taken. The control of Air pollution resulting from the vehicular emissions which contributes for about 65-70 per cent of the pollution load in India was taken care of the Motor Vehicle Act, 1939. The Act empowered the State Government to make rules inter-alia regarding the emission of smoke, visible vapour, sparks, ashes, grit and oil. repeal by the Motor Vehicle Act. 1988. Section 110 of the new Act empowers the Central Government to make Rules regulating the construction equipment and maintenance of motor vehicle and trailers.
The various Municipal laws have also provided for legal control of pollution. The Delhi Municipal Corporation Act, 1957 contains extensive provisions for prohibiting the erection of latrines, septic tanks or other source of supply not vested in the corporation when it is so polluted as to be prejudicial to the health of the people. However, these statute contains piecemeal provision s which are not only insufficient but have no effective management for controlling pollution, Further, different authorities envisages under these Acts is inimical to an integrate approach to conservation issues.
54 Shriram Gas Leak Case (AIR 1987 SC 1086)
The general legislation like C.P.C, I.P.C, Cr.P.C, M.V. Act, Labour law Acts, etc. could be quite effective in controlling environmental violations because of the easy availability of the enforcement machinery (police, judiciary, etc.) in every district of the country. Some of these Acts have been amended recently to incorporate current trended creating a greater public awareness about them, there should be coordination between different types of authorities so as to effectively protect and preserve the environment. The Indian constitution contains specific provision for environmental protection under the chapter of Directive Principle of State Policy Article 48 A and 51(A) (g) and Fundamental Duties- Art 51A Although enforceable by the court, Directive Principles are increasingly being citied by the Judges as complimentary to the fundamental rights. In several environmental cases, the court has been guided by the language of the Art. 48A, interpreted as “imposing obligation” on the government including courts to protect the environment. Encourage by an atmosphere of freedom and articulation in the aftermath of the emergency (proclamation of emergency 25 june1975) the Supreme Court entered on of its most creative period. Specifically, Court fortified and expanded the Fundamental rights enshrined in Part III of the Constitution. In this process, the boundaries of the Fundamental rights to Life and Personal Liberty guaranteed in Article 21 were expanded to include environmental protection, which includes: The right to wholesome environment. The right to livelihood. The right to equality. freedom to trade vis-à-vis Environmental protection; and newly added to corroborate the above four is:Right to Information.(2001) The only problem with the applicability of Directive Principle and Fundamental duties are that they are not enforceable no authority in the State or Central Government will prove to be any help with the regards to its enforcement unless given by Apex Courts. And this could be only possible when such matter to be taken by Courts. General public cannot afford to go top Courts every times there is violation of there Directive Principle or Fundamental Duties.
It can be further noted that the scope of fundamental duty is limited as it refers to only forests, lakes, rivers and wildlife and the uses the expression “natural environment”, it exclude many other things in the field of pollution such as the ‘noise’, ‘light’,’ radioactive and hazardous wastes’ .etc. The expanded version of Fundamental Right Art.21 is much more convenient regards to file writ petition and claim damages. Damages are the principle relief in a tort action. However, damages awarded in tort actions in India are very low, and neither such relief poses any deterrents to the polluter. Secondly, relief of damages are not 78
effective remedy for the abatement of pollution. The common law remedies could be effective “supplement” the special procedure provided under the special laws relating to environment protection. The Law Commission of India in its 37th Report had rightly notified that in view of predominant purpose of environment protection, the common law remedies are not to be impliedly repealed but not to be used in emergency. Shortcoming of nuisance law- the courts tendency to balance hardship and denying injunction and lack of “standings” to sue are factors which make the nuisance law inadequate pollution in private action on public nuisance, special injuries to be prove If the action is to succeed the special injury suffered by the plaintiff must be different from any kind from that suffered by general public and not just different only in degree if the court insists on this, the nuisance action by private individual against pollution (particularly Air pollution) will be less effective. Another difficulty is burden of proving material harm attributable to unreasonable conduct of the defendant since it is impossible to point out any particular polluter for the low Air and Water quality. The inherent ability of courts to deal efficiently with issues of scientifically complex nature is another problem. In environmental degradation situation often a considerable time elapses before symptoms of disease caused from pollution become manifest the chemical, biological, physiological and other scientific evidence required to proof the casual connection between the allegedly discharge of pollutant to the plaintiff is often highly technical. Reasonableness of defendant conduct is the central problem in nuisance cases. In nuisance cases, the burden of proving unreasonableness is often difficult because reasonableness of defendant conduct is determined by weighing its utility against its gravity of harm to the plaintiff. However, Courts have sometime held that the relatively test id not sufficient great to bar an injunction. To determine’ reasonableness’, court will be guided by the ordinary standards of comfort prevailing in the neighbourhood. Minor discomfort which is common in crowded cities will not be viewed as a nuisance by the courts.
The Dramatic Growth in the Indian Administrative Structure dealing with environmental management beginning from the 1970s. This culminated in the production of three reports by May 1971 which all-in-all examined the impact of the population explosion on the natural environment and the existing state of environmental problems. The resultant findings of these reports caused the realization by early 1972 that major flaws would remain in India’s planning process unless a national body was established to facilitate greater coordination and coherence in environmental policies 79
and programmes in addition to integrating environmental concerns into development plans. This resulted in the formation of the National Committee on Environmental Planning and Coordination (NCEPC) on 12th April 1972, a definite by-product of the Stockholm Conference process. The NCEPC was essentially entrusted with the task of planning and coordinating national environmental policies and was not a full-time environmental Management and administrative agency; the actual implementation of the policies framed by it was left to the various other Ministries and government agencies. They also note that the committee became unwieldy and had difficulties in simplifying the decision making process, which they in large part seem to explain as a consequence of increasing “bureaucratization” on account of the addition of more secretaries. This decreasing operational efficiency, coupled with the decreased political clout of Subsequent Committees (as compared to the first NCEPC) resulted in decreasing cooperation from other government departments, especially given the apparent perception amongst them that the NCEPC was an “intruder” on their turf. The 6th Five Year Plan would appear only to have clearly furthered the cause of environmental management amongst the civil service dominated administrative structure. An additional step taken subsequently by the Planning Commission, besides the general examination of environmental matters in the 8th Five Year Plan, was the setting up of an expert committee by it to formulate long term sectoral policies in relation to the environment and forests. Post-Bhopal and the Current Structure The Bhopal Gas Leak tragedy that took place in December 1984, in conjunction with the continuing decline in the quality of the environment, transformed the manner in which the Indian State looked at environmental management; essentially leading to what many agree was a period in which the tightening of environmental regulation took place. It appeared to spur the Central Government as well as a few state governments to adopt stronger environmental policies, not only including the enactment of fresh legislation but also the creation, reorganization, and expansion of Administrative agencies. Most importantly, it led to the establishment of the Ministry of Environment and Forests (hereinafter referred to as the MoEF).
Springing into existence by the enactment of the Environmental Protection Act, 1986, this comprehensive ministry to administer and enforce environmental laws and policies was established by the Central Government, subsuming the previously existing Department of Environment. The rather wide nature of the MoEF’s activities can been seen from diverse activities that it devotes its organization units to. The MoEF Is divided into the following divisions:· Animal Welfare (AW),· Clean Technology (CT),· Conservation & Survey (CS) -Biological Diversity (BD),-Protocol on Biosafety (PB),· Control of Pollution (CP) 80
Environment Education (EE),· Environment Research (RE),-National Natural Resource Management System (NNRMS), Environmental Information (EI) -Environmental Information System (ENVIS), ENVIS - A Gateway on Sustainable Development,-NGO Cell (NC),· Forest Conservation (FC),· Forest Policy (FP) Forest Protection (FPR),· Research & Training (Forestry) (RT),· Forest Services Hazardous Substances Management (HSM), International Cooperation and Sustainable Development(IC&SD),-Climate Change (CC) [8th Conference of Parties to UNFCCC,-Clean Development Mechanism (CDM), Ozone Cell (OC) Internal Work Study Unit (IWSU), National Afforestation & Eco-Development Board (NAEB)United Nation Convention to Combat Desertification,· Plan Coordination (PC)Policy & Law (PL),· Project Elephant (PE),· Project Tiger (PT),· Survey & Utilization (SU),· Wildlife (WL),-Regional Offices (RO),· Budget and Accounts (BA) Civil Construction Unit (CCU),· General Administration & Grievances Cell (GA) General Co-ordination, Protocol, & Parliament (GC) · Integrated Finance (IF) The MoEF does not act directly to manage the environment in terms of regulating environmental pollution. Rather, it enforcement actions are directed by means of other bodies set up under the pollution control laws, namely the Central Pollution Control Board (CPCB) and the various State Pollution Control Boards (SPCBs).
IMPLEMENTATION OF ENVIRONMENTAL LAWS
India’s implementation strategy has been influenced and developed by different sources of authority over the years. The environment protection laws like the Water Act, Air Act provide for the constitution of certain administrative bodies which are entrusted with the responsibility of managing the quality of the environment and implement the laws. These laws confer the authorities with certain powers regarding fixing of standards in order to maintain the quality of the environment, identifying the pollutants and ensuring that they are brought to book and comply with the rules, and all other powers in order to protect and maintain the environment. The legislature has also been quick to pass legislations and they have conferred these pollution control agencies with vast powers to regulate industry, mines and other Polluters but there are certain constraints within the system hampering effective exercise of these powers. It is one thing to have it on paper, but an entirely different thing to actually implement it at the ground level. This is also the problem faced in our country, where the ground level implementation has been very lax. The courts, for this reason, have had to step in time and again, Playing the role that is the responsibility of the executive and legislature. Some of the decisions of the Supreme Court and High Courts are so significant in the development of environmental jurisprudence in India that no discussion is complete by highlighting the role of the judiciary in implementation of the environmental laws. This represents the dichotomy in the implementation strategy where on the one hand we have the non-performing regulatory mechanisms comprised of the pollution control boards, forest bureaucracies and state agencies, while on the other hand, the courts and the non-state agencies have been on the vigil trying to salvage whatever could be. 81
The specific laws dealing with environmental pollution was passed only after the 1990s. Most of the laws passed in India have been reactionary rather than being the result of a well thought out policy on the environment. In order to understand the defects there is need to study the issue of implementation and enforcement of the environmental laws. To look at the statutory laws and regulations that has set up various executive agencies to implement the laws. To study the power and function of these agencies and their contributions or thereof any lack to the implementation of laws. The researcher shall then study the role played by the judiciary through the enunciation of various environmental principles and innovative interpretation of the law. The phase in the implementation of environmental laws was brought about as result of the changes that India made to its environmental policy. One could also argue with some merit that there was no policy before this period. Without getting into that Debate, the shift in the environmental policy was inspired by the UN Conference on Human Development that was held in Stockholm, in 1972. Being the first major conference on international environmental issues; it marked a turning point in the development of India’s environmental policy. It raised issues of awareness of Environmental issues among public and governments, inspiring many countries to formulate policies for environmental monitoring and regulation and it also laid framework for future environmental cooperation at the international level. This conference urged participant states to take appropriate steps for the preservation of the natural resources of the earth, and this alerted India to the need for enacting special laws for environmental protection. The Water (Prevention and Control of Pollution) Act of 1974 was the first major statute that laid the foundation for environmental protection. Within the next decade the parliament passed The Forest (Conservation) Act, 1981, The Air (Prevention and Control of Pollution) Act, and The Environment (Protection) Act, 1986. These legislations and the Rules formulated under them provide for the chunk of regulations regarding the environmental management and implementation thereof.
SPECIAL ENVIRONMENTAL LAWS
Air and Water Acts Under S. 3 of the Water Act, The Central Government was given the power to constitute a Central Pollution Control Board to perform certain functions and exercise the powers conferred under the Act, and S.4 confers the power on the State Government to constitute a State Pollution Control Board. S.3 and S.4 of the Air Act provides that these Pollution control boards set up under the Water Act be also entrusted with the responsibility of prevention and control of Air Pollution. 82
The Water and Air Act are not without their shortcomings. In fact, there are many. These two statutes do not provide for concrete policy guidance in its provisions but merely lays emphasis upon the purposes, constitution of the Boards and powers and functions of the Boards.
Criticism of the Environmental Enforcement Agencies E(P),ACT 1986
The implementation process in India has been poor for a number of different reasons, many of which have got to do with the manner in which the enforcement agencies are organized and function. Scholars have criticized the implementation strategy adopted by the government. Some of the main criticisms are: · Lack of Trained Staff Although the environmental protection laws emphasize on providing adequate training and education in environmental matters, the enforcement agencies are woefully short of trained and skilled personnel in law. None of the personnel in these Departments remain long enough to understand the nature of work and acquire an indepth knowledge over its functioning. The pollution control boards do not take any special care is taken in ensuring that the personnel recruited possess the adequate level of knowledge and skill required for understanding and interpretation of environmental laws. The legal personnel at the various Pollution Control Boards also do not possess adequate knowledge about the environment and this eventually disables the Board from effectively implementing the environmental laws. There have been lapses in observing the mandatory procedures prescribed under the laws in many occasions. This reflects lack of training and knowledge and the enforcement agencies are doing precious little to help the situation. · Defective Management There is lack of professionalized management dealing with the environmental issues. Although many policy documents have often underlined the need to develop appropriate organizational structures to deal with the management of the environment, it still remains on paper and there have been no steps taken by the government in this regard. · Jurisdictional issues The environmental laws in India create a number of agencies and charge them with the responsibility of implementing laws. The pollution control boards, the Forest and Wildlife Authorities, and a number of agencies of State like the Revenue, Transport, Government and Industry are all made to implement different aspects of the laws. One of the rules of interpretation of statutes insists that whenever a number of statutes deal with the same subject matter, they ought to be harmonious construed as to ensure that each one would complement and strengthen the other and avoid any kind of overlaps in jurisdiction. 83
The roles and responsibilities of the agencies under different statutes have not been laid down by the legislature, and as a result, there have been a number of cases dealing with such jurisdictional issues. This clearly leaves their functions undefined, and this would inevitably lead to problems in implementing the laws. · Organizational and financial problems There have been several instances where the enforcement agencies and pollution control boards do not receive adequate funding in order to fulfil their basic functions under the Act like adequate inspection and monitoring the polluters. Inadequate budgetary allocation has contributed a lot towards the lax enforcement of environmental laws. The enforcement authorities lack such facilities like scientific instruments to test the levels of pollution, ill-equipped laboratories to test effluents and emissions are all hampering the functioning of these bodies. Although a number of plan and policy documents have repeatedly stressed on making the environmental enforcement machinery more efficient and broad-based, it is yet to be implemented. · Bureaucracy and Lack of administrative will It has been the practice of the judiciary to constitute expert groups in order to conduct studies and research over certain matters affecting the environment, in order to better understand and protect it. But this seems to have become an exercise followed by the governments to buy time and postpone decision-making. Often, these reports do not really contain tools for better and effective implementation, but merely lay down certain principles in abstraction which does not solve the problem. Administrative highhandedness and non-observance of procedural formalities, political interference in appointments and in the day-to-day functioning of enforcement agencies have often resulted in industries getting away with violations. Centralized and Non-participatory Regime The main criticism of the enforcement agencies is that the administration is too centralized and non-participatory in decision making. The Central Government wields immense powers of decision-making in respect of environmental management. There has been no viable mechanism evolved to elicit prior informed consent of the local community and making them participants and partners in the developmental process. Where there have been mechanisms put in place, they have never been implemented. Stakeholders’ consultation and participation on matters affecting the environment are yet to be practised. Rule-making powers, laying down procedures for implementation and the power to issue directions to protect, maintain and improve the quality of the environment are all vested in the Central Government. Environmental clearance as to major developmental activities Under the Environmental Impact Assessment Rules requires central clearance. Although this leaves the Central Government with a lot of scope for the involvement of expert bodies in aiding, advising and to make recommendations, the Central 84
Government is, however, under no compulsion to put into effect what these obligations, and further, it not even under an obligation to give reasons as to why its decisions differed from the advice received by it. The Rules formulated by the government is also unsatisfactory. They are mainly aimed at going through the formality of giving some information to the local community of a proposed developmental activity and to hear their objections. There is no guarantee that the objections raised by the local people in Public Hearings or even the concerns expressed at the state level administration would form part of decision-making at the Government level.
Lack of Maintenance of Records and Poor Vigilance Laws are sought to be enforced without any planning or surveillance. The administrative machinery is guilty of poor maintenance of records. The official records are not maintained regularly, and the key to sound implementation of environmental laws is that there must be up to date records on the nature of activity, kinds of discharges resulting from operations, safety and precautionary measures as to potential mishaps, and these records are most scarcely maintained. The judiciary has pulled up the enforcement agencies a number of times for the inadequacies in the official records In the absence of making available information, on a regular basis, about different aspects of environmental management, the task of bench- marking or evaluating the potential and performance of different aspects of environmental management, becomes nearly impossible.
The environmental protection laws enable ordinary members of the public to complain to the agencies of enforcement about alleged violations of environmental regulations and expect timely action from the latter to set right the wrong. It also enables them to initiate legal action against the alleged offender, after sixty days of complaint, if no or satisfactory action is forthcoming from the agency. Lack of proper maintenance of records and poor vigilance makes it impossible for an ordinary member of the public to make use of the available avenues for seeking and securing environmental justice.
The status of India in international environmental legislation and its implementation
It can be asserted that nowadays no country can effectively protect its environment and solve its various environmental problems on its own. No matter how advanced its science and technology are or how perfect the means of legislation and implementation of environmental law are, an independent effort to resolve global problems is not enough. Global problems require a global effort. To name a few, the problems include pollution of the atmosphere, of marine life, of coastal and inland waters, and of all areas reached by acid rain. 85
We can also say with certainty that no country on its own is able to pay the cost of environmental damage, including the ever-increasing cost of the new technologies developed to remedy the damages caused by pollution. Since we have only one earth and given that the international community is an organic whole, it could also be asserted that man's endeavour to solve global environmental problems will not be accomplished and will be of no avail if we fail to bring into play every positive factor and unite all available forces. Given this situation, contemporary international jurists have clearly realized that the settlement of environmental issues, the drafting of legislation, and the implementation of international environmental law must take into account the contributions and the needs of third-world countries. The participation of third-world countries in international environmental protection, legislation, and implementation of international environmental law is very relevant. As a matter of fact, although limited by insufficient resources and by unbalanced economies, the third-world countries deserve the following observations regarding the arena of international environmental protection: The rise of the third world has indeed been the greatest event of our times. These states constitute a majority, since the total number of states in the world is about 167. Third-world countries all share the same historical experience of material and cultural gains under colonialism that are the reason for their current economic underdevelopment and scientific backwardness. They stand for the common historical goals of eliminating North-South disparities, developing their national economies, and consolidating their economic and political independence. Even though India comes under the third world, she is highly productive force that must not be underestimated if implementation of international environmental law is going to succeed. Fortunately, in the world community, they not only enjoy rights and undertake duties under international law, but they also enjoy the same sovereign rights as the more developed countries. India with the others must join in formulating international rules and participating in international legal processes. It is imperative that the third world make a more appropriate contribution to the formulation of international environmental law.
The adoption of the Declaration on the Human Environment in 1972, the enactment of the United Nations Convention on the Law of the Sea in 1982, the adoption of Resolution 1803 (XVII) by the United Nations General Assembly in 1962, and the enactment and the adoption of the United Nations Declaration on the Right to Development in 1986 could not have transpired without the great support and efforts by third-world countries. The present economic situation of India is in part the result of low levels of development, their backward industry, and outdated agricultural methods. It is understandable why their economies have vestiges of colonialism. The India with 20 per cent of the world's population, subsist on only 1 per cent of the world's GNP.
In addition, although India contain and produce the main portion of the world's energy and raw materials, three-fourths of the oil supply, one-third to one-half of the world's most important non-ferrous metals and many other minerals, they only utilize a small portion of their wealth for themselves, most of these materials satisfying the needs of the developed countries for energy and raw materials. It would be very one-sided and would not conform with the actual situation, if we argued that the main difficulties in the legislation and implementation of international environmental law should be attributed to the weak economic bases and low productive levels of India. Even if it were true, developed countries cannot shift all the responsibility and blame to the third-world countries. On the contrary, the developed countries must give more support and cooperation in this joint undertaking of international environmental protection in light of the limited economic and social capacity of third-world nations as well as their inadequate scientific and technological levels. Nevertheless third-world countries should rely on their own resources to overcome the obstacles to environmental improvements. Generally speaking the environmental problems facing developed countries are caused by their excessive discharge of hazardous substances, which affect not only themselves but also their neighbours, and ultimately threaten other areas of the world. In India, the predominant cause of environmental problems is under development. The objective facts show that developed countries should bear major responsibility for global environmental degradation: misguided industrial development and overconsumption by developed countries are the main causes of the greenhouse effect, the excessive release of chloro-fluorocarbons (CFCs), causing the ozone depletion, and the excessive diffusion of SO2, causing acid rain. Although developed countries and third-world nations are both responsible for global environmental degradation, there are profound differences between the way each has contributed to that degradation. Underdevelopment and lack of environmental sensitivity are the main explanations for India’s contribution to environmental problems. The underdevelopment results from the prolonged colonial plunder, control, exploitation, and oppression to which they have been subjected.
As a result, our natural resources and environments were seriously harmed and wasted. Today, because of the combined effects of a weak economic base, irrational economic structures, a low level of science and technology, overpopulation with no sign of improvement, as well as heavy domestic and foreign indebtedness, we are unable to sustain the financial and technological burdens necessary to substantially improve the environment. Although in case of North nations they have attained independence, in order to survive, some of other countries have no alternatives but to interact with the environment in a destructive manner. This result is inevitable because in balancing the economic viability of a country against the need to protect the environment, the former will invariably win.
Furthermore, as the international environment continues to deteriorate, Indian states will be less and less able to clean up their own environments. This is further complicated by the indifference of the developed countries toward the developmental problems of this country. It can be concluded from the above that third-world states are not only the owners of tremendous natural and environmental resources, but they also are the principal victims of environmental pollution. The third-world nations contain the majority of the world's population; they are an indispensable force in the legislation and implementation of international environmental law. They have become promoters and drafters of legislation affecting the international environment. 1. The increased participation India in legislating and implementing international environmental law should proceed from the principles listed in the Declaration on the Human Environment of 1972. Among those principles the following are especially important: the international cooperation principle; the state equality principle; as well as the principle of special assistance to developing countries in financing and transferring technology. The establishment of a new international economic order as a global means to reverse the course of environmental degradation was put forward in the Nairobi Declaration on the Global Environment of 1982. This declaration should also be implemented, in its entirety, as a way of encouraging participation by third-world nations. 2. It is necessary to take into full consideration the conditions and needs of the developing countries and to envisage creative participation of the India in environment-related cooperative activities. 3. The environmental funds raised by the Governing Council for the United Nations Environment Programme should benefit the third-world states in order to help them protect and improve their environment, as well as to develop their environmental technology, as they see fit. 4. Development banks, which are either global or regional, should provide third-world nations with long-term favourable loans at low interest rates to meet their financial and technological needs as they begin to implement environmental protection programmes. 5. Financial and technological assistance provided by developed countries to thirdworld nations should be chosen by the recipient countries according to their economic conditions. Moreover, nations like India should be assured of a good command of the technology, so as to prevent developed countries from manipulating or exploiting third-world countries in order to test their environmental technology. 88
6. In order to encourage third-world nations like India to participate in the drafting and implementation of environmental legislation, such incentives as tax exemptions, interest-free or low-interest loans, transfers of environmental technology and information should be adopted. However, these incentives must be provided without strings or discriminatory terms. Furthermore, lessons might be drawn from the UNEP Montreal Protocol to Protect the Ozone Layer, which provided for different standards for controlling CFC use for developed and for developing countries according to their differing situations. This model could help in reaching agreements on the control and use of other pollutants, and finally could improve the management and conservation of the global environment. 7. In order to advance the development of third-world nations on environmental protection, which is also to the advantage of the world community, developed countries should co-sponsor studies or symposia on environmental protection, cooperate with third-world nations, become involved as environmental monitors, conduct scientific investigations, implement personnel training programmes, and conduct feasibility studies and other pollution control projects. In conclusion, the formulation of any international environmental legislation by the world community should be based on the principles of the permanent sovereignty over natural resources of states, in addition to the five principles of peaceful coexistence. The economic and social capacity of the third world, as well as its special problems and needs, must be considered at all times. We must also respect the sovereignty of Indian states and protect their material interests. Sanctioning nations like India is undesirable and ineffective. International treaties have been negotiated on the basis of equality and they have established international commitments that must be abided by and implemented at the municipal level. I am convinced that a vast number of third-world nations(including India) will play an influential role in the creation of international environmental legislation and its implementation, thereby making an even greater contribution to the protection of the earth.
A Planetary Defeat: The Failure of Global Environmental Reform
The first Earth Summit in Rio de Janeiro, Brazil in 1992 generated hopes that the world would at long last address its global ecological problems and introduce a process of sustainable development. Now, with a second summit being held ten years later in Johannesburg, that dream has to a large extent faded. Even the principal supporters of this process have made it clear that they do not expect much to be achieved as a result of the Johannesburg summit, which is likely to go down in history as an absolute failure. We need to ask ourselves why? 89
The first reason is perhaps the most obvious, at least to environmentalists. The decade between Rio and Johannesburg has seen the almost complete failure of the Rio Earth Summit and its Agenda 21 to produce meaningful results. This has highlighted the weaknesses of global environmental summitry. Second, the U.S. refusal to ratify the Kyoto Protocol and the Convention on Biological Diversity—the two main conventions evolving out of Rio—has raised questions about the capacity of capitalism to address the world environmental crisis. The United States, as the hegemonic power of the capitalist system, further signaled its rejection of global environmental reform by announcing that President Bush would not be attending the Johannesburg summit. Third, both the rapid globalization of the neoliberal agenda in the 1990s and the emergence of a massive anti globalization movement in Seattle in November 1999 have highlighted the system’s antagonism toward all attempts to promote economic and environmental justice. Fourth, the World Summit on Sustainable Development is occurring in a period of economic and financial crisis that bodes ill for those concerned with the issues of the environment and third world development. The capitalist world economy as a whole is experiencing global recession. Hardest hit are the countries of the global South, which—thanks to neoliberal globalization—are caught in worsening economic crises over which they have less and less control. Fifth, we are witnessing the growth of a new virulent wave of imperialism as the United States has begun a world war on terrorism in response to the events of September 11, 2001. This is taking the form of U.S. military interventions not only in Afghanistan but also potentially against Iraq, along with stepped-up U.S. military activities in locations throughout the third world. Under these circumstances, war is likely to trump the environment. Sixth, South Africa, which nearly ten years ago became a symbol of human freedom with the overthrow of apartheid, was chosen mainly for that reason as the site of the second earth summit. It has now come to symbolize for many something quite different: the rapacious growth of neo-liberalism and the refusal to address major environmental and social crises.
The Undermining of Rio
The inability of the 1992 Rio Earth Summit to set in motion processes that would lead to genuine sustainable development has negatively affected perceptions of what is possible as a result of the Johannesburg summit. In the words of the sixteen environmentalists who contributed to The Jo’burg Memo, written for the World Summit on Sustainable Development and edited by Wolfgang Sachs: Rio 1992 reveals itself a vain promise. While governments at the Earth Summit had committed themselves in front of the eyes and ears of the world to curb environmental decline and social impoverishment, no reversal of these trends can be seen a decade down the line. On the contrary the 90
world is sinking deeper into poverty and ecological decline, notwithstanding the increase of wealth in specific places. ...Fifty years from now, when the Earth is likely to be hotter in temperature, poorer in diversity of living beings, and less hospitable to many people, Rio might be seen as the last exit missed on the road to decline. How can it be that the Rio Earth Summit, which ten years ago was thought to mark a decisive change in the human relation to the environment, has come to be seen as such a colossal failure? The answer is that it was undermined by global capital both from within and without. A close examination of the Rio summit reveals that it was far from the earth-friendly phenomenon that it professed to be. The Convention on Biological Diversity was much more about deciding who was to have the right to exploit living nature than protecting the earth’s biodiversity. (The Convention was nonetheless opposed by the United States because it supported the South’s rights to its genetic resources over the demands of the U.S. biotechnology industry.) The UN Framework for Climate Change, which later became the Kyoto Protocol, was resisted by the United States and other countries because of its attacks on the autopetroleum economy. The Agreement on Forest Principles, which emerged out of Rio, never even mentioned the problem of deforestation in its “forest principles,” but was concerned much more with the sovereign right of each country to use/exploit its forests as it pleased. The forty chapters of Agenda 21 presented economic growth under free market principles as the primary objective, within which a commitment to the environment was to be situated. “The market economy of the world” was seen as the place in which all environmental problems would be addressed. As Pratap Chatterjee and Matthias Finger observed in The Earth Brokers, the leading critique of the Rio Earth Summit, “The only mention of corporations in Agenda 21 was to promote their role in sustainable development. No mention was made of corporations’ role in the pollution of the planet” These results stemmed in part from direct pressure exerted by capital. Important lobbying came from the Business Council for Sustainable Development, led by Swiss industrialist Stephan Schmidheiny. Membership on the Business Council included top officers of leading multinational corporations: Chevron Oil, Volkswagen, Mitsubishi, Nissan, Nippon Steel, S.C. Johnson and Son, Dow Chemical, Browning-Ferris Industries, ALCOA, Dupont, Royal/Dutch Shell, and others. Schmidheiny’s 1992 book Changing Course, which was written to influence the Rio summit, promoted a view that the market mechanism if allowed to operate freely was the only conceivable means of achieving sustainable development. The primary agents of such a transition to a more sustainable world were to be multinational 91
corporations, which would supposedly extend principles of total quality management and full cost pricing to encompass environmental concerns. The Business Council for Sustainable Development played a role, through the corporations associated with it, in financing the 1992 Earth Summit, and was brought directly into the core planning of the summit. If the Rio summit was transformed from within into a vehicle that mainly served the interests of capital, processes were going on outside Rio that further weakened any attempts at global environmental reform. Even while the Rio summit was taking place, the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) negotiations was proceeding. With the establishment of the World Trade Organization (WTO) in 1995, the leading capitalist states had created an international structure to promote neoliberal free market principles while making environmental reforms in individual countries much more difficult. Globalization of capitalism was to supplant local control, countries were to be encouraged to exploit their natural resources to the fullest, public goods were to be opened up to relentless privatization, and environmental regulations were to be geared to the lowest common denominator in order to not interfere with free trade. The WTO was meant to mark the total triumph of capitalism, limiting environment and development policies in the third world to those acceptable to the ruling interests of the wealthy capitalist states. It was the promise of development in the periphery of the capitalist world economy that was invariably used as the justification for watering down and effectively eliminating meaningful global environmental change. As conceived by the centers of world capital, development could only be sustained by pursuing the neoliberal agenda of opening up whole countries and every single sphere of economic activity to market forces. Far from developing the global South, this strategy, however, only served to deepen the economic stagnation or decline of most third world countries and to reinforce a growing gap between rich and poor countries—along with accelerated destruction of the environment. Still, insofar as it served the economic interests of the rich countries, it was treated by the dominant powers as an unmitigated success. A quick look at global trends in relation to the environment and development shows how disastrous this period of unfettered global capitalism over the last ten years has proven to be. The United Nations has projected that by 2025 two-thirds of the world population may be suffering from water stress. Water tables are falling under large expanses of agricultural land in China, India, and the United States due to the over pumping of ground water for irrigation. The overall species extinction rate is now at least a thousand times (and maybe as much as ten thousand times) faster than the normal or background rate of extinction. Habitat destruction, particularly of tropical forests, threatens as many as half of the world’s species over the course of this century. Coral reefs, second only to forests in biological wealth, are being degraded at an alarming rate. Over a quarter of coral reefs have now been lost, up from 10 percent in 1992, and the share to be lost is expected to rise to 40 percent by 2010. 92
Genetically modified crops pose once again the issue of the sorcerer’s apprentice, as agribusiness continues to alter the bases of life and our food supply in ways radically at variance with evolutionary processes. Commercial technologies are altering the genetic and chemical composition of what we eat, with very little consideration of consequences beyond questions of profitability. Where development itself is concerned, there have been no appreciable gains in the relative position of the global South, which, taken as a whole, is falling further behind the rich countries. Income inequality has been rapidly increasing both within countries and between countries over the last two decades. Fifty-two countries experienced negative growth over the 1990s. Between 1975 and 2000 per capita income in sub-Saharan Africa dropped from one-sixth to only onefourteenth of that of the rich countries in the Organization for Economic Cooperation and Development. The income of the richest 10 percent of the U.S. population (around 25 million people) now equals that of the poorest 43 percent of world population or some 2 billion people.s55
The Johannesburg Summit:
Given this generally dismal picture of past accomplishments, there is reason to question what can be accomplished as a result of the Johannesburg summit. What might lead us to believe that the record ten years from now will not be far worse than what confronts us today a decade after Rio? Even amongst those environmentalists who are sharply critical of global neoliberalism, multinational corporations, the IMF, the World Bank and the WTO, there is a tendency to seek out some sort of compromise in the face of defeat. Environmentalists have been driven to such a state that they frequently seek salvation in the very institutions to which they attribute the present evils. One example of this is The Jo’burg Memo. The environmentalist authors of this memo are on the left in the sense of identifying with the anti globalization movement. They argue that neo liberalism and particularly the WTO crushed the global environmental reform program introduced at Rio. They believe that the world needs to put the environment and social justice first. But their solutions for the World Summit on Sustainable Development sound like an attempt to find a middle ground with current economic policies, without challenging the fundamentals of the neoliberal project, much less the logic of capital accumulation itself. What crushed the hopes engendered by Rio, according to The Jo’burg Memo, was “a fateful style of economics.” What is needed therefore is a new style of economics, less opposed to sustainability. What would this new style of economics involve? Their more general proposals in this respect are derived from the work of U.S. environmentalist and entrepreneur Paul Hawken, a contributor to the memo, who has argued in favor of what he calls “natural capitalism”—or capitalism that fully
55 (The United Nations, Human Development Report 2002, pp. 17–19).
incorporates nature into its system of value . As stated in The Jo’burg Memo, “as long as corporations’ short and long term interests diverge from the public interest, no tinkering, reforms, regulations, or World Summits will change the status quo.” The problem then becomes one of ensuring that corporations conform to the public interest with respect to the environment. This can be achieved by turning environmental amenities, which have no value from the standpoint of the market, into goods that have market value. An economic system is not fully “capitalist,” we are informed, unless everything—including nature—is treated as capital. Moreover, the potential for “radical resource productivity”—the more efficient utilization of energy and materials through new technology—means there is no incompatibility between rapid and unlimited capitalist economic growth and environmental sustainability. Environmental reform must therefore tap into the “un rivalled effectiveness” of markets. At an international level, according to The Jo’burg Memo, what is needed is a “global deal,” particularly between the global North and the global South that would make development sustainable, while at the same time enhancing the developmental opportunities of the South. Among the proposals is the notion that it is necessary to “frame the WTO sustainably.” Thus the WTO, which up to now has been concerned solely with the penetration of capital into every nook and cranny of the globe, must be converted into a much broader institution concerned also with environmental sustainability. This is to be accomplished by launching, through the WTO, a “Multilateral Agreement on Sustainable Investment,” which would establish verifiable guidelines for the foreign direct investment of multinational corporations. Nor do the reform plans stop with the WTO. “Both the IMF and the World Bank,” the memo states, “need to be re-directed, democratized and re-structured” to take into account environmental needs. The IMF should abandon its structural adjustment programs. Furthermore, a “balance of power” needs to be established between Bretton Woods’s institutions, namely, the IMF, the World Bank and GATT, and the UN system. This would make possible equilibrium between financial goals and more universal goals, such as those of the environment and social justice. One major step forward, it is suggested, would be the creation of a World Environment Organization within the UN system. Another key proposal of The Jo’burg Memo is to establish a convention on corporate accountability that will allow for legal redress in the face of corporate wrongdoing. Similar proposals for change have been introduced by the International Forum on Globalization, a leading anti globalization organization based in San Francisco and headed by John Cavanagh and Jerry Mander. In its Intrinsic Consequences of Economic Globalization on the Environment, prepared for the Johannesburg summit, the International Forum on Globalization recommends “reigning in corporate power.” In addition to the creation of an Organization for Corporate Accountability, which would monitor corporations and provide information on their business practices, they propose cutting the staffs of the 94
IMF and the World Bank and creating a separate International Finance Organization under the UN system. The main fault of the present world economy, we are told, is its emphasis on the globalization of economic relations. Instead, a principle of localization should be applied wherever possible in order to promote ecological well-being and sustainable development. There is no doubt that the intention of these proposed reforms is to promote social and environmental justice. Yet, such proposals seek to strike an accord with neoliberal institutions while leaving the underlying logic of the system intact. One thing should be clear to those who do not simply deny the harsh reality of twenty-first century capitalism: that the WTO and its sister institutions cannot promote sustainability since this would contradict their whole reason for existence. Their role is to facilitate the accumulation of global capital and protect the big banks and financial centres up North. “A balance of power” strategy that sets UN system institutions against Bretton Woods institutions will inevitably come up short, since it is predicated on the vain illusion that real power is based in these institutions rather than in the vested interests they serve. The main lesson to be derived from the failure of global environmental reform associated with the Rio summit is that there is no possibility for an effective movement for social justice and sustainability separate from the struggle to create an alternative society. An approach that acknowledges the failure of global ecological reform, and at the same time adopts the position made famous by Margaret Thatcher, that “There is No Alternative” to the present market-driven order, has little to offer in the way of real change. Its initiatives are limited to a few alterations or additions to international organizations, the mythical conversion of corporations into “public citizens,” or the illusion that the earth’s salvation lies in treating nature (and thus everything in existence) as capital.
The Real Struggle
The truth is that no “global deal” will be arrived at as a result of the Johannesburg summit. The leading capitalist powers are not prepared to strike a deal that would interfere with opportunities to make more and more profits. The main issue supposedly on the table is that of free trade and development. The countries of the South are demanding that the North abide by its own principles by removing tariff and non-tariff barriers that protect Northern industry, in precisely the same fashion as the North demands that protectionist measures be removed in the South. Yet, neither genuine free trade nor environmental sustainability will be advanced by the summit talks. The rich countries at the centre of the capitalist world system are not about to apply to themselves the same rules they impose on poor states in the periphery. 95
Their goal is to continue to extract surplus from the periphery. Fiddling with their own trade barriers is not a means for achieving that end. What we will see, as always, are further promises on the part of the wealthy capitalist states to provide capital in the form of loans, needed technological assistance, and some debt relief to the very poorest countries (those that are completely unable to pay). In return the rich countries will insist on the elimination of all barriers to capital erected in third world states, including such things as food subsidies to the poor, which are seen as distorting markets. Privatization of water and food are perceived as solutions, not as problems. The way that the global struggle over sustainable development is now being played out can be seen quite clearly in the case of South Africa, which during the preparations for the Johannesburg summit had vowed to make it a true summit of the South. Tragically, the South African state has come more and more to symbolize the present period of global neo liberalism and imperial expansion. It is currently in a battle with its population over the privatization of water and basic services such as electricity. This is in sharp contrast to what was imagined only a decade ago when the overthrow of apartheid made South Africa one of the foremost symbols of the advance of human freedom. Today South Africa is the principal, sub imperialist force behind the neoliberal penetration of the African continent through the New Partnership for Africa’s Development (NEPAD). It is with this sub imperialist South Africa that the United States is increasingly willing to deal, since its goals are not incompatible with those of the American Empire. None of this, however, has anything to do with genuine sustainable development. But there is also another South Africa. In the last few years a militant mass movement has risen up in South Africa against neo liberalism and NEPAD—one that has its roots in the same townships that led the way in the fight against apartheid. This new anti-neoliberal, anti globalization struggle is animated by a spirit of socialism and environmental justice in a way that belies the view that there is no alternative. If the second earth summit, despite everything, still offers a rational basis for hope, this has less to do with the summit process itself than with the mass social action taking place in the streets of Johannesburg, Durban, and throughout the world. In the end there is only one absolute certainty in our uncertain future—that the global struggle for a just and sustainable future will continue.
Copenhagen-The New One.
It is the Copenhagen climate change conference draws; India had been singled out by the international media as a “spoiler” in the battle to save the planet. This reputation stems from India’s insistence that it will not accept ceilings on carbon emissions if this means sacrificing economic growth, and that the industrialized countries – which are mainly responsible for the dangerous concentration of 96
greenhouse gases (GHGs) in the atmosphere – must accept responsibility for first stabilizing the atmosphere and then bringing GHG levels down. The criticism of India reached a crescendo immediately after the G-8 summit at Aquila. In its July 11 issue, The Economist referred derisively to India’s demand for “carbon space.” The New York Times linked India’s recalcitrance on global warming to its determination to misuse the Indo-US nuclear deal to make more nuclear weapons and missiles and also blamed India for single-handedly sabotaging the Doha round of trade negotiations. Indian policymakers and environmentalists resent these criticisms deeply. But what they find even more difficult to swallow is the way in which the OECD countries – having brought the world to where it is today – are now attempting to tailor the agenda to their own political compulsions and ideological preferences while paying lip service to the political and ideological necessities of developing countries. Indians feel both hurt and bitter that India is being made a target precisely because – being a functioning democracy – it feels both the compulsion and duty to articulate developing countries’ point of view. THE SOURCES OF INDIA’S RESENTMENT To understand where India’s resentment springs from it is necessary to draw a distinction between concern for global warming and concern for the environment. Over the last four decades, Indian environmentalists have chalked up a long list of successes in their battle to minimize the damage inflicted by economic development on the environment—ranging from halting deforestation to establishing more than 300 national parks. But the focus of environmentalists has remained national. The threat they have perceived is from the inexorable commercialisation and exploitation of nature. Environmentalists’ awareness of the threat posed to all of humanity by the rising concentration of CO2 and other greenhouse gases in the atmosphere was – and still is – limited. The media itself is partly to blame. Five years ago, Al Gore’s film “An Inconvenient Truth” received warm but transient attention in India—it provoked no analysis and triggered no warnings to the public. When Gore and the Intergovernmental Panel on Climate Change (IPCC) were awarded the Nobel Prize in 2007 and R.K. Pachauri went to Stockholm to receive the prize on the IPCC’s behalf, the media nearly suffocated on an overdose of national pride and treated Pachauri’s achievement simply as another feather in India’s cap. But the media is not wholly to blame, for by the time that the IPCC’s 2007 Fourth Assessment Report was released, a large part of the Indian intelligentsia had become sceptical of the warnings emanating from the Western climate science community. The most important cause for such scepticism was that India’s very first encounter with global warming policy had been a bruising one. 97
In March 1990, three months before the Rio conference on Environment and Development, the US-based World Resources Institute (WRI) published a study that held developing countries responsible for fully 47 percent of the rise in the concentration of GHGs in the atmosphere. According to the report, while the developing countries did account for only a small fraction of the fossil fuels consumed by the human race, it contributed large amounts of GHGs through deforestation and the burning of biomass and also by way of methane emissions from its rice fields and from the digestive systems of cattle. Needless to say, the two main culprits were China and India. Indian environmentalists were flabbergasted. But their surprise turned into anger when the Delhi-based Centre for Science and Environment revealed that the WRI had arrived at this conclusion by apportioning the annual GHG absorption by the world’s natural “carbon sinks” between countries on the basis of the amount they were already emitting, instead of on a per capita basis. What angered them most was the implicit assumption that the rich nations had a right to pollute because they had “got there first.” therefore became the cornerstone of the Indian position at Rio in 1992 and at Kyoto in 1997. It remains the centre piece of Indian policy today.
The high court and supreme court of India have seized opportunities presented by cases to the environment. Judicial action must be seen, however, as only one of many tools to bring about environment improvement. In many situations, lobbying of public education and political action by mobilising people, are far more effective mechanism than bringing a law suit. Before we examine individual cases, there are some features of the judicial process that should be recognised. First, judges are non-specialist relatively insulated from the political process. This had its advantages. Generalist judges have a broader vision of national policies and interests than the parochial stand of specialist government agencies charged with establishing large, environmentally disruptive, and industrial and development projects. 98
Moreover, since the judges are not involve in the electoral politics, they may be more willing than the other wings of the government to take unpopular decision that are beneficial in long time. The second feature of the judicial process that it frequently compels the defendant project authority to increase environment related spending. For example, if the location of the project is challenged in court by the environment group, the promoters frequently spend more funds on environmental impact appraisal and pollution abatement, than they otherwise might. Third, it should be remembered that the court could only respond to the cases that comes before them. They can rarely effect the systemic and wide-changes in the environmental conditions. Finally, unlike administrative decision –making, the judicial process is highly structured. Accordingly, policy implications of a case are sometimes ignored. This possibility often persuades judges to defer to the supposed expertise of governmental agencies. However, since the late 1980s, the Supreme Court and a few high courts have embarked on the complex administrative exercises. One example is the Ganga pollution case56, a massive judicial effort to clean the river Ganga. Here, the litigation affected parties were several hundred, posing an immense management problem for the court. The sprawling dimensions of the Ganga Case prompted the court during Justice Kuldeep Singh’s tenure to evolve new procedures. Unlike conventional litigations, affected polluters were dissuaded from filing documents in the court’s registry. All affidavits were tendered before the respective pollution control boards. I this manner, the courts reduced its administrative burden. Moreover, to tailor its directions to each situation, the court issued orders piecemeal. What at the end of the day read like one comprehensive court order, was in fact a series of directions-dictated one paragraphed at a time- and punctuated by brief arguments on each issue. It was this procedure that enabled the court to respond with specificity to each situation. Throughout this period of judicial activism, the bar has made important contributions to the development of environment jurisprudence. The leading environment lawyer M.C Mehta has through his petitions and interim applications set the national agenda in the fields of water and air pollution, vehicular emission control, preservation of the coast, and the translocation of heavy industry away from urban areas. His example has inspired dozens of the other advocates in the High Courts to pursue polluting industry and negligent enforcement agencies. Among them, the late Ajit Padiwal of Gujarat tenaciously battled factories around Ahemdabad that had blighted agricultural fields by discharging untreated effluent. In the large number of such public interest litigations, the legal assistance is rendered pro bono or at nominal fee. Recently, the Supreme Court has appointed senior advocates as amicus curiae, to assist the court in tackling complex environmental and policy issues. With the advent of special
56 M.C Mehta v Union of India AIR 1988 SC 1037 and 1115 infra p17 99
environment tribunals and for a, the role of the bar will give in the coming years with the strong likelihood of a new specialization developing among its members. Until the 1970s, the role of the court was largely ‘negative' — to confine governmental action within constitutional bounds. Unlike the 1970s, Parliament today has little time for details. In the field of social change, it lays down a broad legislative policy: such as, preserve and protect the environment. How to go about this is left to the discretion of the executive wing. As a result, most of the body of environmental law takes the shape of rules, regulations, notifications and orders. These are the laws that come up for interpretation before the judiciary. As we shall see, judges are far less deferential to subordinate legislation than to parliamentary enactments. Another important feature that has driven the environmental regulation process through the courts is the proliferation of citizens groups and non-governmental organisations (NGOs) agitating for better governance. The NGOs frequently comprise activists drawn from backgrounds similar to those of our judges, with whom they share a value system. So when environmental public interest litigation (PIL) reaches the court, a bench which empathises with the NGOs concerns looks around to find a glaring failure on the part of the executive. The judges then set about the business of trying to set matters right. Since there is no resistance from the other wings of government, the new turf on which the judiciary treads yields easily to the foray. A study of the recent volumes of the Supreme Court Almanac which reports even the briefest and most obscure pronouncements of the court — gives a sense of what is happening in the apex court. A few emerging judicial trends become clearer with every fresh pronouncement. First, the environmental jurisdiction of the Supreme Court is a ‘creeping jurisdiction', one which grows and extends gradually. Take for example, the Vehicular Pollution* which initially concerned emissions by government vehicles, and has now extended to mandatory seat belts! Second, the court appears quite willing to engage in micro-management. The Taj Mahal matter is a case in point. The court spent much time on the most suitable equipment for the air quality monitoring laboratory at the Taj and on police bandobast to prevent ‘rowdies' from sullying the ambience around the Taj. Third, the courts have nudged the bureaucracy to introduce new laws. An example of this is the rather bold suggestion in the Mussoorie Case that a law be enacted to divest parties of their illegal buildings. Fourth is the court's desire to improve the implementation of environmental laws. In the Yamuna Case, the court threatened, admonished and attempted to shame enforcement agencies to come up with solutions that would help attain statutory environmental standards. Fifth is the thrust to educate the public in matters concerning environment. 100
The new role of the Supreme Court is that of a policymaker, lawmaker, public educator and super administrator all rolled in one. In the US, they have the Congress, the Federal Environment Protection Agency and bags of money to protect the natural environment. Here, we have our Supreme Court. There are some achievements that undoubtedly do credit to the courts. The courts have clearly succeeded in heightening bureaucratic awareness in respect of environmental issues. The court's directions — forcing industry to shut down operations because of excessive pollution or because they violated forest laws — have helped sensitise the bureaucracy to environmental concerns. Implementing a closure direction involves a large number of bureaucrats down the line, and the process of sealing factories or ensuring that a mine in a forest stops operations has sent a strong message to the bureaucracy with regard to the importance of the environment in relation to economic activities. The second measure that does credit to the court is that its orders have helped increase the deterrence factor by enhancing non-compliance costs. Until the higher judiciary issued closure directions against polluters and violators, industry regarded pollution laws as a voluntary code. Today, industry takes environmental laws much more seriously than it did a decade ago, and the credit largely goes to the judiciary. Further, the courts' initiatives have resulted in a much greater public awareness of environmental issues, and have spurred citizens to organise themselves and secure a more healthful environment in their respective localities. Another set of significant achievements relates to the entitlements created by the Supreme Court.
Over the last decade, the court has interpreted the right to a clean environment to be an enforceable fundamental right, and has derived a clutch of collateral principles that environmentalists and NGOs in the West have struggled to have their courts and lawmakers adopt: • Enforcement agencies are under an obligation to strictly enforce environmental laws, and they may not plead infrastructural or other insufficiencies to justify nonperformance; • The ‘polluter pays principle' requires a polluter to bear remedial costs as well as compensate the victims of pollution; • The ‘precautionary principle' requires authorities to anticipate and attack the causes of pollution; it also places the burden of proof on the developer or industrialist to show that his or her action is environmentally benign; 101
• Agencies charged with decision-making ought to give due regard to ecological factors, including: • • environmental sustainable policy development of the and Central utilisation and of state natural government; resources;
• obligation of the present generation to preserve natural resources and pass on to future generations an environment as intact as the one inherited from the previous generation; • Stringent action to be taken against persons who carry on activities for profit without regard to environmental laws; • No power under an environmental statute may be exercised to defeat the object of the law; • The State is the trustee of all natural resources.
In some fields — such as vehicular emissions, municipal solid waste handling, groundwater management, aqua-culture and hazardous waste imports — the Supreme Court has facilitated the formation of national policies or supplemented the legislative regime where gaps existed. Here, the court has muddled through, and there has been serious criticism — much of it warranted. Environmental regulation through courts has serious drawbacks, and it is to these drawbacks that I next turn. Judicial intervention is most effective in correcting bureaucratic conduct when it is selective and surgical. In several of the major environmental litigations handled by the Supreme Court, what began as a surgical intervention has expanded into huge administrative exercises extending over several years. The result is that the concerned government agency is debilitated by the continuous judicial supervision.
A decade after the Supreme Court's rebuke to the Kanpur tanneries in the M C Mehta Case , the Calcutta tanneries were still discharging untreated effluents into the river Ganga, forcing M C Mehta into yet another bout of protracted litigation. Quite evidently, the pollution control board, the polluters, the state government and the city of Calcutta had drawn few lessons from the previous Supreme Court judgment. The Ganga Pollution Case, the Vehicular Pollution Case, the Taj Case, each of which is still pending before the Supreme Court, was filed in 1985, and has been proceeding in fits and starts.
The cases have become a crutch, preventing the growth of strong bureaucracies. In many instances, the administrative agency has been reduced to preparing knee-jerk responses to judicial orders. 102
Despite more than a decade of judicial activism, there is no evidence to show that the pollution control boards, municipalities and forest departments are institutionally stronger, or more capable of discharging their responsibilities today.
It's more than likely that the administrative agencies will revert to their old ways the moment judicial oversight wanes. There is a need for autonomous independent environmental regulators with adequate budgetary support that can effectively implement our environmental laws. The higher judiciary has been unable to create a worthy successor who can build on the judicial initiatives.
There are fashions in the law and the current passion for environmental protection will soon yield to a younger subject. Inevitably, after a few years the courts will set apart less time and resources for environmental cases. What then? For a lasting legacy, the court must find new ways to strengthen the institutional capacity of our agencies.
Transparency, public hearings, citizen representation on decision-making bodies, ombudsmen, assured budgetary support and autonomy is but a few of the elements that would help build stronger administrative agencies. It is time the court looked beyond the narrow issues before it, and addressed the bigger question of implementation of environmental laws, beyond Delhi and the Yamuna.
The state of India's environment: the first citizen's report This report analyses the little understood relationship between development and environment, the impact of environmental degradation on individual, social groups, tribal and nomads. In many ways, this voluntary report on the state of the environment in India is a unique document. It is the product of an enormous participatory effort. A range of voluntary agencies and individuals interested in environmental issues have contributed their best efforts towards making this report. Right to Information A boost to transparency in environment regulations 103
Recent rulings by the Central Information Commission offer hope that decisionmaking in environmental regulation will be more transparent and participatory henceforth, and embrace suo moto disclosures. The introduction of the Right to Information (RTI) Act in 2005 has critically transformed the way citizens can seek transparency in decision making and implementation of policies, programmes, legislations in any given sector or particular project. At the same time the Act allows one to demand for disclosure of information which an authority or department has failed to suo moto put in the public domain. When it comes to environmental governance, RTI undoubtedly is a key advocacy tool. Groups all across the country have been using it to seek information related to clearances of development projects, government expenditure on programmes as well as development of legislations. However, the information sought has not always been forthcoming. Typically, a tedious process needed to be followed before favourable and just decisions were made. With the new rulings, one hopes that will change. Citizen voices, policy choices It is clear that people across the country are driven by strong environment values. Therefore, without having a policy process that channelizes their perceptions and crystallises them in policy statements, it is not possible to sequence and prioritise our environmental problems, says Videh Upadhyay. 19 February 2005 - Commenting recently on the process behind the coming of the Draft National Environment Policy 2004 I observed that in the hidden hierarchy - first the Experts, then Counter-experts, then 'Citizen-experts' and finally the common man - it is only the first category of people who form the policy community of the day, and only they are likely to have a decisive influence. In that context, at least the consultation conferences planned post-draft need to move out of the capital and to as many regional locations as possible. Also in all the locations across the country they need to be preceded by adequate publicity through mainstream media and alternative or traditional information dissemination sources wherever suitable. Plus, the conferences proposed should aim to bring together a sizable number of citizens - lay participants and not experts! Of course, apart from the lay citizens, advocacy groups, local NGOs and experts with special interest and knowledge would be a part of these conferences. The conclusion from the deliberations in these conferences than should be publicly presented with copies of the discussion reports being widely circulated including to Members of Parliament, local bodies and institutions. Perhaps they could see that the growing complexity, indeterminacy and intractable nature of environmental problems would ensure that the hold of the policy community would not only last but would perhaps tighten further in times to come. Precisely because of the odds stacked against such a suggestion, I feel compelled to elaborate on why I think the suggestion continues to make great sense to me. 104
The argument for making an effort to rope in more lay participants and not experts in policy making is grounded in my understanding that any approach to environmental questions involves values as much as facts, and as much 'cultural rationality' as scientific expertise. In fact the approach to problems - as distinguished from mere technical competence to deal with them - could be a decisive factor while deciding most environmental issues of the day. The relevant points from this understanding are that (a) An Environment Policy cannot afford value-neutrality, and (b) The value-neutrality cannot be addressed by even more expertise from the policy community Ministry of Corporate Environment Thus far, MoEF has only been negligent in safeguarding the environment, but now it proposes to do away with even the need to do so. The new draft notification from the ministry has obligingly confined itself to facilitating new investments, and ignored all other stakeholder voices, writes Kanchi Kohli. 04 August 2006 - "The Ministry of Environment and Forests is the nodal agency in the administrative structure of the Central Government for planning, promotion, coordination and overseeing the implementation of various environmental and forestry programmes. The Ministry is also the nodal agency in the country for the multilateral and bilateral co-operation in the field of sustainable development." Ministry of Environment and Forests (MoEF) as specified in its Citizen's Charter on. Ideally, should allow citizens to understand what role the MoEF can play in safeguarding environmental and social justice concerns, especially at a time when other ministries of the government are going all out to achieve economic development objectives, often unmindful of the consequences. But how true is the MoEF to this vision? Judging by the changes that are being made to the environmental clearance regime in the country, and the blatant manner in which highly environmentally destructive projects are being granted clearances, the Ministry appears to have abandoned this vision altogether. MoEF is the nodal agency responsible for the implementation of the Environment Impact Assessment Notification (EIA), 1994 through which 32 categories of development and industrial projects in India seek environment clearances before they can begin construction and operation. But for most corporations, obtaining these clearances has become a trivial irritant at best - the MoEF has happily obliged their requests, even in the face of tremendous public opposition, or overwhelming evidence of the environmental risks in some projects. These decisions have had - and will have in the future as well - significant and irreparable impacts on both the stability of the fragile ecosystems and life forms dependant on them as well as the livelihoods of communities which are integrally linked with this stability of ecosystems (see links in box below).
Not only community groups and environmentalists, even state governments are unhappy about the MoEF excluding them from the draft notification and subsequent revisions. If, thus far the MoEF has not sufficiently guarded the environment, now it proposes to go one step further in disregarding its vision. The Ministry is now on the verge of 'reengineering' the Environment Clearance (EC) process altogether to suit the needs of investors in a manner that will severely compromise the ecological security of our country and the space for the meaningful involvement of local communities and citizens in the decision making of development projects. The ministry's draft EIA notification was opened for public comments on 15th September 2005 for a period of 60 days. In today's era of electronic democracy and internet-based public participation, MoEF made this draft available on its website. But, to the dismay of many environmentalists, this was only in English Effective environment education Not quite. Despite widespread water scarcity, deforestation, chaotic cities, pollution and global warming having transformed into everyday realities, environment education in schools and colleges across the country is limited in its content and reach. The sudden information overload on environment conservation has left most well intentioned school managements perplexed and confused. Though most urban schools have jumped on the green bandwagon, introducing environment education as an academic subject or an extra-curricular activity, there is widespread dispute about its contours and content. “I don’t think there’s much environment education happening in schools — urban or rural. If it is, it’s about tigers and trees, not about real ecology issues. Both tigers and trees are dependent on natural resources such as water. But the vital connection between water scarcity and modernisation is seldom made in school curriculums. The reality is that environmental issues are intimately connected with a nation’s social, political and economic policies. It cannot be taught in isolation as a ‘science’ subject. Unfortunately awareness of environment as a holistic discipline is lacking in most curriculums. Environment education has become just another subject to be rote-learned for marks and results,” says Darryl D’Monte, the wellknown Mumbai-based environmentalist and author (Temples or Tombs) and former resident editor of Times of India, Mumbai. D’Monte, who has conducted numerous workshops for school children in Mumbai on environmental issues, is a leading light of a new group of green campaigners who are resolutely opposed to the trivialisation of environment education, which they believe requires carefully chosen multidisciplinary inputs. The pioneer organisation spearheading this school of thought is the Centre for Science and Environment (CSE), a public interest research and advocacy NGO (non-government organisation). Founded in 1980 by the late and legendary Anil Agarwal, CSE has a fully-fledged environment education unit which has been given the mandate of “producing quality resource material and programmes to bring about a more ecologically conscious way of thinking and living” for secondary schools and institutions of higher education. 106
Moreover to spread the message of holistic, integrated environment education, CSE also conducts its own in-house programmes. Among them: the Environmental Educators Workshop for teachers which helps them incorporate environment awareness and learning into their subjects; the Ecological Footprint Project, comprising a package of four eco-tours (Yamuna Yuk Ride, Water Walk, Jungle Jog, Raising a Stink and Sanitation) to make students aware of their role as urban consumers and its impact upon their immediate environment, hinterland and beyond. Currently these tours are available only to schools in Delhi. But a manual has been prepared for teachers so that across the country they can conduct eco-tours of their own. CSE also publishes Gobar Times, an environment focused monthly magazine for teachers and children. Access to Genetic Resources and Transfer of Technology According to the framework provided by the CBD, the rights over the genetic resources in any given country have to be established through an iterative process. In the first instance, the CBD provides that the nation states would have sovereign rights over their own biological resources. The Preamble that defines the rights of states also emphasizes that states would have to bear the responsibility for the conservation and sustainable use of their biological resources. In the exercise of these rights, governments can determine physical access to the genetic material that lie in areas within their jurisdiction by enacting suitable legislation. This right to fully determine access to genetic material in its territory provides a government an opportunity to ensure securing of benefits from any commercial exploitation of its genetic material. The Convention also states that access to genetic resources, wherever granted, shall take place on terms that are mutually agreed to by the providers and receivers of the genetic material, subject to the prior informed consent of the parties providing such resources.
The Convention also provides that every state shall make efforts to develop and carry out scientific research based on genetic resources provided by other contracting parties with the full participation of, and to the extent possible, within the countries supplying the genetic material. Through this provision, the CBD aims at ensuring that the developing countries are able to participate in the process of technology development where the technologies utilize their genetic resources. Technical and Scientific Co-operation
There are a number of provisions in the CBD that deal with implementation through international cooperation. As such, provisions are made for international cooperation in the field of research and training particularly taking note of the needs of developing countries and public education and awareness. As a means of further enhancing cooperation between states, there are also provisions dealing with the exchange of information relevant to conservation and sustainable use of biological diversity and improved international technical and scientific cooperation.
Pollution control is the process of reducing or eliminating the release of pollutants (contaminants, usually human-made) into the environment. It is regulated by various environmental agencies that establish limits for the discharge of pollutants into the air, water, and land. A wide variety of devices and systems have been developed to control air and water pollution and solid wastes. Air pollution control Methods of air pollution control can be divided into two categories: the control of particulate emissions and the control of gaseous emissions. The term particulate refers to tiny particles of matter such as smoke, soot, and dust that are released during industrial, agricultural, or other activities. Gaseous emissions are industrial products such as sulfur dioxide, carbon monoxide, and oxides of nitrogen also released during various manufacturing operations. Particulate control. Methods for particulate control tend to operate on a common principle. The solid particles are separated from the gases in which they are contained by physical procedures such as passage through a settling chamber. A settling chamber is a long, wide pipe through which gases from a manufacturing process are allowed to flow. As these gases slow down in the pipe, the solid particles settle out. They can then be removed from the bottom of the pipe. A cyclone collector is another device for removing particulates from stack gases. The gases are fed into a rotating cylindrical container. Equipment for the complete recovery and control of acid and oxide emissions. Centrifugal forces (the forces that move things away from the centre of rotation) send solid particles in the gas outward against the walls of the container. They collect there briefly, and then fall to the bottom of the container. Gases from which the particles have been removed then escape from the top of the container. Gaseous emissions. Many different methods are available for removing unwanted gases, most of which are acidic. Scrubbers are smokestack devices that contain a moist chemical such as lime, magnesium oxide, or sodium hydroxide. When gases escape from a factory and 108
pass through a scrubber, they react with the moist chemical and are neutralized. From time to time, the scrubbers are removed from the smokestack, cleaned, and replaced. Another method for controlling gaseous emissions is by adsorption. Activated charcoal is charcoal that has been ground into a very fine powder. In this form, charcoal has the ability to adsorb, or adhere to, other chemicals. When unwanted gases flow over activated charcoal on the inside of a smokestack, they are adsorbed on the charcoal. As with scrubbers, the charcoal is removed from time to time, and a new lining of charcoal is installed in the smokestack. Water pollution Methods of controlling water pollution fall into three general categories: physical, chemical, and biological. For example, one form of water pollution consists of suspended solids such as fine dirt and dead organisms. These materials can be removed from water by simply allowing the water to sit quietly for a period of time, thereby allowing the pollutants to settle out, or by passing the water through a filter. (The solid pollutants are then trapped in the filter.) Chemical reactions can be used to remove pollutants from water. For example, the addition of alum (potassium aluminum sulfate) and lime (calcium hydroxide) to water results in the formation of a thick, sticky precipitate. When the precipitate begins to settle out, it traps and carries with it solid particles, dead bacteria, and other components of polluted water. Biological agents can also be used to remove pollutants from water. Aerobic bacteria (those that need oxygen to survive) and anaerobic bacteria (those that do not require oxygen) attack certain chemicals in polluted water and convert them to a harmless form. Solid pollutants Solid pollutants consist of garbage, sewage sludge, paper, plastics, and many other forms of waste materials. One method of dealing with solid pollutants is simply to bury them in dumps or landfills. Another approach is to compost them, a process in which microorganisms turn certain types of pollutants into useful fertilizers. Finally, solid pollutants can also be incinerated (burned).
Trade and Environment
The main goal is to make the complex relationship between the environment and international trade more understandable from the developing countries’ perspective. It also aims to dispel the idea that the relationship between trade and environment can easily be described as either negative or positive. It is extremely complex and varies from country to country. There are both threats and opportunities in this relationship for developing countries pursuing economic development and environmental protection.
The conclusions that can be drawn from this that from the developing countries’ perspective is to exploit the opportunities and reduce the threats, and in so doing, to maximize the net positive contribution that trade can make sustainable development. A broader and clearer understanding of the linkages between trade, environment, and development is a prerequisite for seizing those opportunities and reducing those threats. On the other hand, environmental requirements however, may be used for protectionist purposes and may operate as a non-tariff barrier. In future, there is a likelihood of more trade embargos in the name of environment, especially in cases where countries fail to comply with certain environmental standard requirements. Thus, the outcome of the various case studies has the potential for strengthening the hand of protectionist lobbies, in the name of conservation and protection of the environment. Finally, the threat of embargo can also be used to make countries adhere to certain environmental policies and regulations, which they would otherwise not adopt due to various socio-economic compulsions. Moreover, these environmental friendly policies demand the attention and cooperation of international institutions such as the World Bank as well as NGOs and other grassroots environmental groups. Protecting the environment is a luxury good, often only afforded to the wealthy countries. Therefore, these policies should be coupled with ones that encourage the transfer and exchange of environmentally friendly technologies and the build up of industries oriented to sustainable development. ENVIRONMENTAL MANGEMENT The management of interaction of modern human societies with an impact upon the environment. The three main issues that affect managers are those involving politics (networking), programs (projects) and resources (money, facilities, etc.). The need for environmental management can be viewed from a variety of perspectives. A more common philosophy and impetus behind environmental management is the concept of carrying capacity. Simply put, carrying capacity refers to the maximum number of organisms a particular resource can sustain. The concept of carrying capacity, whilst understood by many cultures over history, has its roots in Malthusian theory. Environmental management is therefore not the conservation of the environment solely for the environment's sake, but rather the conservation of the environment for humankind's sake. This element of sustainable exploitation, getting the most out of natural assets, is visible in the EU Water Framework Directive. Environmental management involves the management of all components of the biophysical environment, both living (biotic) and non-living (abiotic). This is due to the interconnected and network of relationships amongst all living species and their habitats. 110
The environment also involves the relationships of the human environment, such as the social, cultural and economic environment with the bio-physical environment. As with all management functions, effective management tools, standards and systems are required. An 'environmental management standard or system or protocol attempts to reduce environmental impact as measured by some objective criteria. The ISO 14001 standard is the most widely used standard for environmental risk management and is closely aligned to the European Eco-Management and Audit Scheme (EMAS). As a common auditing standard, the ISO 19011 standard explains how to combine this with quality management. Other environmental management systems (EMS) tend to be based on the ISO 14001 standard and many extend it in various ways: The Green Dragon Environmental Management Standard is a five level EMS designed for smaller organisations for whom ISO 14001 may be too onerous and for larger organisations who wish to implement ISO 14001 in a more manageable stepby-step approach BS 8555 is a phased standard that can help smaller companies move to ISO 14001 in six manageable steps The Natural Step focuses on basic sustainability criteria and helps focus engineering on reducing use of materials or energy use that is unsustainable in the long term Natural Capitalism advises using accounting reform and a general bio mimicry and industrial ecology approach to do the same thing US Environmental Protection Agency has many further terms and standards that it defines as appropriate to large-scale EMS. The UN and World Bank has encouraged adopting a "natural capital" measurement and management framework. The European Union Eco-Management and Audit Scheme (EMAS)
Some personal views and suggestions to encourage a more positive role of the third world in the legislation and implementation of international environmental law:
Firstly, it should be pointed out that, in spite of their low economic and technological levels, the third-world nations have not taken a passive attitude nor have they been indifferent toward international environmental protection. On the contrary, many of them exerted their utmost efforts by taking an active part in international environmental legislation and implementation.
Especially since the 1980s, they have made active appeals for the strengthening of international cooperation; the provision of assistance to expand coastal jurisdiction; protection against sea-coast pollution; the control of the export and transport of hazardous products; the control of the processing of solid wastes; and the protection of the soil. Owing to their active initiative, participation, and support, such instruments as the World Soil Charter, the World Charter for Nature, and the United Nations Convention on the Law of the Sea were enacted. Here, it is appropriate to mention that the third-world countries united to ensure the adoption of the United Nations Declaration on the Right to Development (1986), whereby the bases and contents of international environmental laws were further expanded. Secondly, there is no doubt that what the third-world nations urgently need is to develop their national economies, establish their own modernized industries, improve their agricultural methods, obtain their economic independence, as well as to maintain and consolidate their political independence and sovereignty. Then and only then will third-world countries be able to exert their utmost efforts towards improving the environment. Such improvement must come gradually, according to their financial and social capacities. The environmental plight in third-world nations cannot be mentioned in the same breath with that of developed countries. There is a great difference in the damage caused by the latter countries. Even though environmental pollution in some developing states is very serious and affects other states, as well as the world's ecosystem, the attitudes toward such pollution are different. In the United Nations Declaration on the Human Environment of 1972 it was said that "... in developing countries most of the environmental problems are caused by underdevelopment... developing countries should devote themselves to development." Experience also shows that only on the basis of self-reliance, after their national economies have been developed, modern industries have been established, and agricultural methods have been improved, can third-world nations gradually achieve effectiveness in maintaining and improving their own environments. Then and only then can they effectively throw themselves into the struggle for international environmental protection. Needless to say, while engaging in domestic production and construction, third-world nations should interact appropriately with the environment and constantly balancing parochial and global interests, need to take the necessary measures to protect the environment and to control pollution. Thirdly, it should also be mentioned that developed countries should continue to keep a high profile on pollution control, especially since they are the main contributors of environmental pollution. The earth is a single entity and global environmental protection is a matter of life and death for all of humanity.
As a result, all of its members are jointly liable. Developed countries must utilize their economic and technological advantages to create an international environment favourable to economic development and to improve that which the third-world states are unable to do because of their poverty. Developed countries should also do more to help third-world nations financially and technologically, in addition to encouraging them to become involved in efforts to control the global environment. Lastly, considering the economic and political features of third world states as well as the cause and nature of their environmental pollution, the incentives adopted to attract them to active participation in the drafting and implementing of international environmental legislation should be based on the principles that all nations, big or small, are equally important and that full consultation in any international cooperation or action is imperative. No country is allowed to encroach on another's sovereignty, interfere with another's internal affairs, or impair another's interests under the pretext of environmental protection. Coercion, sanctions, and conditional investments or technical transfers are all unworkable.
LEGISLATIONS • The Water (Prevention and Control of Pollution) Act, 1974. • The Water (Prevention and Control of Pollution) Act, 1977. 113
• • • • • • • • • • • • • • • • • •
The Air (Prevention and Control of Pollution) Act, 1981. The Environment Protection Act, 1986. The Public Liability Insurance Act, 1991. The National Environment Tribunal Act, 1995. The National Environment Appellate Authority Act, 1997. The Biological Diversity Act, 2002. The Indian Forest Act, 1927. The Wild Life (Protection) Act, 1972. The Forest Conservation Act, 1980. Code of Criminal Procedure, 1973. Code of Civil Procedure, 1908 National Environment Tribunal Act, 1995. National Environment Appellate Authority Act, 1997. The Factories Act, 1948. The Bureau of Indian Standards Act, 1986. Mines And Minerals (Development and Regulation) Act, 1957. The Atomic Energy Act, 1962. The Energy Conservation Act, 2001.
Mohanty, S.K., Environment and Pollution Laws, Universals Legal Manual, (2010). 114
• • • •
Tiwari, H.N., Environmental Law, Allahabad Law Agency, (2007). Pandey, J.N., Constitutional Law of India, Central Law Agency, 44th edition, (2007). Rai, Kailash., Public Lawyering,Legal Aid and Para Legal Services, 5th edition, (2008). Mulla & Pollock : Indian Contract Act and Specific Relief Act, 10th edition.
ARTICLES 1. Rosencranz Armin, National Green Tribunal Bill, 2009: Proposals for improvement; Economic & Political Weekly, Vol. XLIV, p 48. 2. Law and Other Things; Environment Tribunals in India: From the NEAA to the National Green Tribunal, Wednesday, 13th January 2010. 3. Green Tribunal Bill has Many Flaws, One World South Asia; February 17, 2010. 4. Krishna Gopal, Not Enough Teeth in Green Tribunal, Rediff News, August 11th 2009. 5. Law Society in collaboration with The Access Initiative, National Green Tribunal Bill-2009: How Green Is It? , 13th March 2010.
1. http://www.mp.gov.in/bgtrrdmp/relief.htm 2. http://www.legalserviceindia.com/articles/jjj.htm 3. http://www.zeenews.com/news610986.html 4. http://timesofindia.indiatimes.com/news/india/Jairam-unveilsblueprint-for-new-body-to-regulate-environmentnorms/articleshow/5023639.cms 5. http://www.lead-journal.org/abstracts/08050.htm 6. http://timesofindia.indiatimes.com/articleshow/4845007.cms 7. http://labour.delhigovt.nic.in/act/factories.html 8. http://www.maharashtradirectory.com/bureau_of_indian_standards.ht m 9. http://www.powermin.nic.in/acts_notification/energy_conservation_act /introduction.htm 10. http://www.prsindia.org/index.php? name=Sections&action=bill_details&id=6&bill_id=740&category=42 &parent_category= 11. http://southasia.oneworld.net/opinioncomment/green-tribunal-bill-hasmany-flaws 12. http://www.ercindia.org/node/209 13. http://www.livemint.com/2009/07/24222534/Bill-to-set-up-nationalgreen.html 14. http://www.lead-journal.org/abstracts/08050.htm 15. http://labour.delhigovt.nic.in/act/factories.html 16. http://southasia.oneworld.net/opinioncomment/green-tribunal-bill-hasmany-flaws 17. http://news.rediff.com/column/2009/aug/11/guest-not-enough-teeth-ingreen-tribunal-bill.htm