Introduction

What is environment? Environment is the aggregate of air, water, minerals, organisms and all the external factors surrounding and affecting organism at any time. In ancient Indian law provisions had been made for safeguarding the environment. Living in harmony with the nature has always been at the core principles of Indian since ancient times. References and examples can be found in many of the ancient texts and royal edicts of kings. One such example can be found in Arthashatra by Kautilya. Kautilya laid down that it is the duty of the State to maintain forests, and selling of forest produce by common man without permission shall incur a hefty fine.1 There were also provisions for reservation of forests and wild life.2 Certain animals and birds were prohibited from being hunted or for committing any injury to them.3 Fines and punishments were levied on those who poached in these forests or illegally harvested forest produce form them.4 Similarly, King Ashoka issued edicts that prohibited the killing of certain animals and birds on certain days. 5 Forests were not to be burnt or harmed in any way, but had to preserved. 6 These stupas by King Ashoka were his personal commandments made directly to the general populace were a first of their kind. They had a great impact on the minds of the people. These edicts reflect his foresight about the inevitability of conflict between man and his surroundings and the importance of preserving the natural environment. Early Environmental Legislations Apart from the forest laws established by the British, which gave the State comprehensive power to acquire forest land and use it for its own purpose, environmental laws in India dealt with only two other aspects; water pollution and air pollution.

1 2

Arthashastra, Kautilya. ibid 3 ibid 4 ibid 5 Environmental Law and Policy in India, Shyam Divan and Armin Rosencranz, Second edition, pg 25. 6 ibid

The Shore Nuisance (Bombay and Kolaba) Act of 1853, one of the earliest laws concerning water pollution attempted to regulate the pollution produced by the Oriental Gas Company by imposing fines on the company and giving a right of compensation to anyone whose water was fouled by the companys discharges.7 The Indian Penal Code imposes a fine on a person who voluntarily fouls the water of any public spring or reservoir.8 In case of wildlife protection, early legislation was mostly limited to some specific areas and particular endangered species.9 The Elephants Preservation Act of 1879 to protect wild elephants and the Wild Birds Protection Act prohibiting the possession or sale of wild birds recently killed or taken during the notified breeding seasons.10 All the above legislations have been piecemeal and inadequate for the protection of the environment. In most cases legislations have been curative rather than preventive. They have been enacted after the damage had been done and no foresight was shown by the government. With the continuing decline in the environment and issues such as climate change and global warming coming to the fore, and the Bhopal Gas tragedy, spurred the government into to adopt more stringent environmental policies. However these policies are not justiciable and cannot be enforced. It falls upon the courts to interpret these policies in accordance with existing environmental laws or for directing the governmental agencies to act in accordance with the laws.11 In the case of State of Himachal Pradesh v. Ganesh Wood Products12 the court cautioned the government departments against ignoring the forest policies and warned that disregard of these policies would imperil government decisions.

7 8

ibid Indian Penal Code, 1860. 9 Environmental Law and Policy in India, Shyam Divan and Armin Rosencranz, Second edition, pg 25. 10 ibid 11 ibid 12 AIR 1996 SC 149

Environmental Concerns in India There is a lack of control on the pollution of rivers as untreated effluents and other waste products are discharged into water without any kind of treatment. Rapid industrialization, urbanization and agricultural development have led to problems like water logging, decline in water quality, ingress of saline water from the sea in to coastal fresh water aquifers and the groundwater contamination of arsenic has been a severe problem in India.13 Increasing use of agricultural chemicals like pesticides and fertilizers has increased the land pollution. In India nearly 20 million hectares of cropland has been seriously damaged and farmers abandoned 10 million hectares of productive croplands due to waterlogging and salinity.14 Indiscriminate use of pesticides increases the salinity of water and renders it unsuitable for use of agriculture.

13 14

Public Interest Environment Litigation in India, Pakistan and Bangladesh, by Jona Razzaque, pg 5. ibid