Environmental Law in India PDF

PACE LAW SCHOOL, PACE UNIVERSITY
Environmental Law
in India
The paper traces the history of environmental laws in India
focusing on the influences of international environment laws on
the domestic laws and court judgments along with a restatement
of important environmental laws of India.
Sayan S. Das
5/14/2012
Environmental Law in India
Comparative International Environmental Law Professor Nicholas Robinson

2011-12
INDEX
Serial Number Contents Page Number

1 Introduction Pg. 4
History of Environmental Laws

2 Pg. 5 – 12
in India
Ancient India Pg. 5 – 9

Medieval India Pg. 9
British India Pg. 9 – 12
An Overview of the Indian

3 Pg. 13 – 17
Constitution
The Constitution of Indian and

4 Pg. 18 – 20
the Environment
5 The Indian Legislature Pg. 21- 24
Indian Judiciary and

6 Pg. 25 – 45
Environmental Protection
The Evolution of the Indian

Pg. 25 – 29
Judiciary
The Indian Judiciary,
Environmental Laws and Pg. 30 – 40
Principles
The National Green Tribunal
Pg. 41 – 45
Act, 2000
India and International

7 Pg. 46 – 55
Environmental Laws
International Law, the Indian

Constitution, Executive, and the Pg. 47 – 49
Legislature
Influences of International
Environmental Law on Pg. 50 – 53
Domestic Laws
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Influences of International
Environmental Law on Pg. 54 – 55
Constitution of India
Restatement of Important Indian

8 Pg. 56 – 98
Environmental Laws
The Wildlife (Protection) Act

1972, Rules 1973 and Pg. 56 – 62
Amendment 1991
The Water (Prevention and
Pg. 63 – 67
Control of Pollution) Act, 1974
The Air (Prevention and Control
Pg. 68 – 72
of Pollution) Act, 1981
The Environment (Protection)
Pg. 73 – 80
Act, 1986
The Public Liability Insurance
Act, 1991 and Rules and Pg. 81 – 84
Amendment, 1992
The Biological Diversity Act,
Pg. 85 – 91
2002
Laws for Schedule Tribes Pg. 92 – 98
Issues with Environmental Laws

9 Pg. 99 – 116
in India
Development over
Pg. 103 – 105
Environmental Protection
Urban Bias of Environmental
Pg. 106 – 107
Laws
Failure of Indian Executive Pg. 108 – 110
Issues with Specific Indian
Pg. 111 – 116
Laws
10 Recommendations Pg. 117 – 124
11 Conclusion Pg. 125 – 126
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a) INTRODUCTION
Since the Stockholm Conference India has been a major player in the world of international
environmental issues and debates. Currently it is the ring leader of a group of nations which
could define the upcoming Rio+20 Conference in Brazil in June, 2012. With such an
international presence, it is only fair that a country have environmental jurisprudence of some
depth. India has built such jurisprudence over the last forty years.
Yet it is a misconception that India’s torrid love affair with the environment only began in 1972,
around the Stockholm Conference. Environmental issues have always held central position in
India with these issues being central to the holistic Hindu philosophy. Though medieval India
saw some disinterest towards the environment but independent India took over the lax British
laws and has tried to make them as successful as it can be. With a large country and as diverse as
India, the success of a particular law can be a debate. Yet the highest judiciary of the country has
been part of the success story with landmark judgments which have tried to uphold the stringent
measures of the laws that the legislature has passed over the years.
This paper traces the history of environmental law in India along with the influences of
international environmental law on the domestic laws of India. The paper also looks into
landmark judgments on environmental issues, restates important Indian environmental laws and
the many loopholes in the laws and the law making process.
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b) HISTORY OF ENVIRONMENTAL LAWS IN INDIA
India has had a colourful history. With each phase of colonization, either by the Aryans in one of
the earliest civilisations of the world- The Harrappa and Mohenjodaro civilization, to the
occupation of the country by the Mughals from Central Asia and finally the three hundred year
old domination by England, Environmental Laws have kept pace with each phase according to
the administrative desires of the occupants.
i. Ancient India
Indian philosophy of the Vedic period recognises five natural elements as panchmahabhut for
stavan, meaning worship. These five basic natural elements are water, earth, food-grains, sun, air
and sky. Since the Vedic period, Earth and Rivers are worshipped as mothers1:
Mata Bhumi Putaro Aham Prithvaiya
Hinduism, regarded by many as Sanatan Dharam, or the Eternal Truth, contains the one of the
oldest scriptures of the world. The scriptures contain in them the philosophy, theology and
spiritual guidance for life which forms the religion for over a billion people2.
1
Development and implementation of environmental law in India by Justice D. M. Dharmadhikari, Judge, Supreme
Court of India- http://data.iucn.org/dbtw-wpd/html/EPLP-060/section7.html
Last Visited on 9th April, 2012
23
Hinduism, The Environment and the Long Term Future by Judge Weeramantry-
http://www.asiantribune.com/index.php?q=node/6083
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Ancient Hindu scriptures believed in establishing harmony amongst the components on the earth.
Natures as a whole, was an important component, and the scriptures believed that the nature
controlled man and not the other way around. Thus for man to live peacefully, establishing a
harmonic relationship with the nature was essential.
Ancient Hindu texts have specific teaching on environmental issues3.
 “Do not cut trees, because they remove pollution.” (Rig Veda, 6:48:17)
 “Do not disturb the sky and do not pollute the atmosphere.” (Yajur Veda,5:43)
 Destruction of forests is taken as destruction of the state, and reforestation an act of
rebuilding the state and advancing its welfare. Protection of animals is considered a
sacred duty. (Charak Sanhita)
 “Resources are given to mankind for their living. Knowledge (Isha)
of using them is necessary.” - The first stanza of Isha Upanishad
In the Bhagvat Gita, Lord Krishna compares the world to a single large banyan tree which has
unlimited branches under which all species of animals, humans and life live. Thus the scriptures
have envisioned a bond not just between nature and man but also animal life and vegetation.
Another Hindu concept proposes the good of the community over personal good. This concept
falls under the aegis of Dharma, and is called Sarva Bhuta Hita. Amongst other components,
environmental safeguarding takes high priority under this concept4.
Last Visited 17th March, 2012
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The Doctrine of Karma is another Hindu concept which speaks about the consequences of one’s
action, weather good or bad. The consequences of one’s deed follow him through his life and the
cycle does not stop at the end of the current life cycle but continues in the next birth. Every
action performed creates a chain of reactions. Polluting the environment is supposed to be bad
Karma and could lead to a cyclic reaction of unfavourable life consequences5.
Kautilya, a law-maker of distinction in Ancient India, wrote about environmental protection in
the larger canvas of ethical administration. His greatest production, Arthsastra has been the
foundation of legal philosophy in India. He wrote6-
“The punishment of one eight Panna should be awarded to those who throw dust on the road.
For muddy water one fourth Panna, if both are thrown then the punishment has to be
doubled.” (Arthasasthra, 2.145)
In 256 BC India, the great King Ashoka (Piyadasi) of India, practicing Buddhism, issued Seven
Pillar edicts, one of which states: "Twenty-six years after my coronation various animals were
declared to be protected -- parrots, mainas, ruddy geese, wild ducks, bats, queen ants,
45
6
Ethical Perspective on Environmental Issues in India by George A. James
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terrapins, boneless fish, fish, tortoises, porcupines, squirrels, deer, bulls, wild asses, wild
pigeons, domestic pigeons and all four-footed creatures that are neither useful nor edible"7.
According to Buddhist scholar Ven. S. Dhammika, Ashoka is significant today "With
widespread disillusionment in prevailing ideologies and the search for a political philosophy
that goes beyond greed (capitalism), hatred (communism) and delusion (dictatorships led by
"infallible" leaders), Asoka's edicts may make a meaningful contribution to the development
of a more spiritually based political system."8
Gandhi, an environmentalist amongst many other things, drew inspiration from the deep Hindu
traditions of trusteeship. In Ishopanishad there is a verse saying that a selfish man over-utilizing
the resources of Nature to satisfy his own ever increasing needs is thieves because using
resources beyond one’s needs would result in the utilization of resources to which others have a
right9. This influenced Gandhi when he said the following- “The country’s development has to
be in harmony with nature … each member of a community has to live in communion with
nature. The earth has resources to meet everybody’s needs, but not anybody’s greed. Man
must voluntarily limit his wants. We must learn to live lives of simplicity and austerity.” Hindu
philosophy saw Nature as a sustainer of humanity, and harnessing it should be governed by
principles of need and reverence. In essence, nature was as an asset is to be held in a trust. This is
78
Environmental History Timeline- http://www.radford.edu/~wkovarik/envhist/1ancient.html
9
Development and implementation of environmental law in India by Justice D. M. Dharmadhikari, Judge, Supreme
Court of India- http://data.iucn.org/dbtw-wpd/html/EPLP-060/section7.html
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turn is how the global concept of sustainable development is seen today and Hindu philosophy
provides a strong philosophical base for this concept10.
ii. Medieval India
Medieval India was marked by the emergence of the Islamic rule of the Mughals. Known for
their lavish architectural heritage, the Mughal took pride in building great gardens, orchards, and
parks throughout the length and breadth of the country which were used as resorts or summer
retreat houses. Islam sought harmony between man and the nature. During this period people
lived in such a way as not to destablise the eco-system. The Mughals never codified any law
regarding the environment; they did make laws regarding hunting. The lack of laws affected
forest conservation though the Mughals were known to be deep lovers of the environment11.
iii. British India
The British colonised India and for the next three hundred years and plundered the natural
resources in the country with profit motive being the mechanism behind the exploitation. Though
environmental laws were passed, they were myopic with limited territorial reach. These laws did
not have any teeth because the law which existed to prosecute the exploiters was made by the
exploiters themselves. In essence, the British were the only entity which invested in the
10
11 12 13 14
An Appraisal Of Environmental Law: Birth Of The Right To Environment In India by Sangeetha
Mugunthan- http://www.legalserviceindia.com/articles/evn.htm
Development of Environmental Institutions and Laws in Pakistan by Mujahida Naureen-

http://www.nihcr.edu.pk/Latest_English_Journal/Development_of_Environmental_Institutions.pdf
9

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exploiting the natural resources and the laws were made by them, thus environmental protection
took a backseat. Environmental laws mostly regulated forest, water pollution and wildlife
issues12.
The greatest exploitation of any natural resource in India was the forests. Due to the geographical
diversity in India, forests provided many different types of timber. The British slowly extended
their domination over Indian natural resources in 1805 when they formed a commission to
enquire into the availability of teak in the forests of south India. The Conservator of Forest was
appointed but the conserver in turn plundered the forest and the post was abolished in 182313.
Removal of forest added land to the British territory and thus they were systematically
decimated. This land was to be used as agricultural land which in turn led to huge revenues for
the colonial power. Forests were also cleared to fuel the demand of timber for the British Navy
and the expansion of the railway network in the country14.
In 1855 Lord Dalhousie, the then Governor General of India, started the Indian Forest
Department which led to the annexation of large tracts of land under the pretext of conservation
of forests. These forests became protected and were staffed by professionals. The Indian Forest
Department did not have intentions to protect the forests or give the royals a place to hunt, but it
was established strictly for income generation from selective exploitation of Indian forests and
Environment Protection Laws in the British Era by Bharat Budholai-

http://www.legalserviceindia.com/articles/brenv.htm
Last Visited by 18th March, 2012
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increasing the clout of the imperial power with the symbolic alliance of environmental protection
under the increasingly powerful state administration15.
Some of the important environmental legislations passed by the British were16:
1. The Shore Nuisance (Bombay and Kolaba) Act, 1853
2. The Orient Gas Company Act, 1857
3. The Indian Fisheries Act, 1897
4. The Indian Ports Act, 1901
5. The Bengal Smoke Nuisance Act, 1905
6. The Explosives Act, 1908
7. The Indian Ports Act, 1908
8. The Bombay Smoke Nuisance Act, 1912
9. The Indian Steam Vessels Act, 1917
10. The Indian Forest Act, 1927
In the end, the British hardly helped save the environment of India, but they did leave behind a
text of environmental laws which had no teeth. After India achieved independence, these laws
were suitably amended and then put into greater force. After the Stockholm Conference in 1972,
15 16
An Appraisal Of Environmental Law: Birth Of The Right To Environment In India by Sangeetha Mugunthan-
http://www.legalserviceindia.com/articles/evn.htm

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environmental laws in India were brought with greater enthusiasm and ably supported by the
judiciary with landmark judgments17.
17
An Appraisal Of Environmental Law: Birth Of The Right To Environment In India by Sangeetha Mugunthan-
http://www.legalserviceindia.com/articles/evn.htm

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c) AN OVERVIEW OF THE INDIAN CONSTITUTION
The Constitution of India is the supreme law of the land in India. The text exhaustively covers
the working of the governmental machinery operating through the length and breadth of India.
The Constitution puts in writing the fundamental political principles, defining the structure of
governance, laying down the procedures, powers and duties of the government and its officials.
It also gives the citizen of the country, fundamental rights, directive principles and fundamental
duties. The Constitution of India is the longest written document in the world containing
395 articles in 22 parts, 12 schedules and 115 amendments. According to the Constitution, India
is a sovereign, socialist, secular, democratic republic and its citizens are guaranteed
justice, equality, and liberty.
Salient Features18
1) Written, Lengthy and Detailed Constitution: Our Constitution is written, lengthy and
detailed. The Constitution of India is an elaborate document and is the most voluminous
Constitution in the world. An important reason for the extraordinary volume of the
Constitution is that it contains detailed provisions regarding numerous aspects of
governance. This was done to minimize confusion and ambiguity in the interpretation of the
Constitution, another reason for its unusual lengthy is the incorporation of the good points
18
Salient Features of Indian Constitution- http://kish.in/salient_features_of_indian_constitution/
Last visited 10th February, 2012
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of various constitutions of the world. The vastness of our country and its peculiar problems
has also added to the bulk of the Constitution.
2) Partly Rigid and Partly Flexible Constitution: The Indian Constitution is neither very
flexible nor very rigid. Some provisions of the Constitution can be amended by a simple
majority of Parliament but for the very important provisions of the Constitution an
amendment passed by a two-thirds majority of Parliament should also be ratified by at least
one-half of the State legislatures. The Indian Constitution thus combines the flexibility of
the British Constitution and the rigidity of the American Constitution.
3) Partly Federal and Partly Unitary: Our Constitution declares India a Union of States
(federation). It prescribes dual set of governments-the Union Government and the State
Governments. The subjects of administration have also been classified into three lists-the
Union List, the State List and the Concurrent List. Both the Union Government and the
State Governments operate within the spheres of their authority. The Union Parliament and
the State Legislatures enjoy co-equal powers to make laws in regard to the Concurrent
subjects. However, if there is a conflict between a Union law and a law passed by one or
many State Legislatures, the law made by the Union Parliament would prevail over the State
law. The Indian Constitution possesses other features of a federation too, for example,
supremacy of the constitution.
The Indian Constitution, though federal in form, has a strong unitary bias. The Central
Government possesses extensive powers compared to the State Governments. The exercise
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of these powers by the Centre gives the Constitution the strength of a unitary government. A
unitary feature of our Constitution is that it gives Union Parliament the power to alter the
boundaries of the existing States or to carve out new States out of the existing ones. It is on
account of these features that the Indian Constitution is said to be federal in form but unitary
in spirit.
4) Parliamentary System: The Constitution of India adopts Parliamentary system of
government at the Centre and in the States. In such a system of government, the executive
power is wielded by the Council of Ministers which is collectively responsible to the
legislature. The Ministers continue in office so long as they enjoy the confidence of a
majority of Members in the legislature. The Ministers are duty-bound to answer all such
questions and satisfy the Members of the legislature.
5) Fundamental Rights: Certain rights are considered basic or fundamental as they provide
suitable conditions for the material and moral uplift of the people. The Indian Constitution
guarantees a number of such rights to the citizens of India. The fundamental rights as
envisaged in the Constitution of India are justiciable. The Fundamental Rights of
India conferred by the Constitution are:
a) The Right to Equality;
b) The Right to Freedom;
c) The Right against Exploitation;
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d) The Right to Freedom of Religion;
e) Cultural and Educational Rights; and
f) The Right to Constitutional Remedies.
6) Directive Principles of State Policy: These Principles embody certain ideals and objectives
which should be kept in mind by the Union and State Governments while making laws and
implementing policies. The implementation of these directives was not made compulsory
due to the paucity of resources. The framers of the Constitution expected that as and when
the future Governments would mobilise resources, they would do their best to implement
these directives. The Directive Principles of State Policy are non-justifiable. However, these
principles are considered important in the governance of the country. It becomes a moral
duty of every government to follow them and realise the purpose behind them.
7) Independence of the Judiciary: Our Constitution has taken special care to establish an
independent and impartial judiciary. The judges of the Supreme Court and the State High
Courts have been provided security of service. Once appointed, their salaries and allowances
cannot be altered to their disadvantage by the Government during the course of their tenure.
Nor can they be dismissed before the age of their retirement except in case of proven
misconduct supported by a resolution of Parliament passed by a two-thirds majority.
Security of service of judges is in keeping with the dignity and prestige of the highest
judicial organs of the country. This provision has been made in the Constitution to keep the
judges independent and immune from the control and influence of the Executive. The judges
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can exercise their discretion in the dispensation of justice even if their decisions go against
the Government.
8) Adult Franchise and Joint Electorates: The Constitution provides for Universal Adult
Franchise. The citizens of India who are 18 years of age and above have been granted the
right to vote irrespective of any qualification pertaining to education, possession of property
or payment of income tax.
9) Establishment of a Welfare State: The Preamble to the Constitution, as modified by the
Forty-second Amendment Act, 1976 and the Directive Principles of State Policy aim at the
establishment of a Welfare State in India. Keeping in view the inherent spirit of the
Constitution, the successive governments at the Centre have been pursuing a policy of
democratic socialism to remove gross inequalities of wealth and to usher in an era of social
and economic equality.
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d) THE CONSTITUTION OF INDIA AND THE ENVIRONMENT
The Constitution of India has a few particular provisions with regards to the environment. The
42nd Amendment of the Constitution took place in 1976, four years after the Stockholm
Conference. This amendment incorporated two significant Articles to protect the environment.
 Art. 48-A: "The state shall endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country".
 Art. 51- A (g): It shall be a duty of every citizen India.......... "to protect and improve the
environment including forests, lakes and wild life and to have compassion for living
creatures".
Principle 1 of the Stockholm Declaration can be retraced in the Fundamental Rights that are
among the basic features of the Constitution of India. Principle 1 of the Stockholm Declaration
states- Man has the fundamental right to freedom, equality and adequate conditions of life, in
an environment of quality that permits a life of dignity and wellbeing.
Articles 14, 19 and 21 reflect the Principle stated above.
 Article 14- Right to Equality
The state shall not deny to any person equality before the law or equal protection of the laws
within territory of India.
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In the case, Sushila Saw Mills vs. State of Orissa19, the Supreme Court held that a ban
imposed on the saw mill business operating in the confines of the protected forests did not
violate Article 14, and was neither unreasonable nor arbitrary.
 Articles 19 (1) (g) and 19 (6) - Freedom of trade and business guaranteed
All citizens shall have the right to practice any profession, trade or business.
Art. 19(6) under which ‘reasonable restrictions' can be imposed upon such right in the
interest of the general public.
These freedoms are not absolute. The Constitution recognises the tendencies of a few trades
and businesses which are prone to polluting the flora and fauna of the land along with
discharging sewage into running water bodies like rivers and lakes. This behavior in turn
leads to damaging impacts on vegetative cover, animals, plants, aquatic species, soil, and
human health. Thus Article 19 (6) sets our restrictions on such behavior which adversely
affects the natural resources of the country.
In the case of MC Mehta vs Union of India20, the river Ganga was being polluted by the
discharges of the tanneries which were operating on its banks. The Supreme Court ordered
the business to establish effluent plants within six months of the court order or face closure.
19
(1995) 5 SCC 615
20
(1995) 5 SCC 615
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 Article 21- Right to Life
No person shall be deprived of his life or personal liberty except according to procedure
established by law.
Though not expressly mentioned, the Right to life encompasses in it, the right to a healthy
environment. In the case of Rural Litigation and Entitlement Kendra (RLEK) vs State of
UP21, the mining operation of limestone in the valley was causing ecological disturbance as
contended by the petitioner. The Supreme Court established Committee of Experts which
found the ecological balance to have been damaged. Though the petitioner never contended
redressal of injury under Article 21, but it is an accepted notion, that the court did operate on
the same premise.
In the Seventh Schedule of the Constitution of India, under Article 246, three lists have been
drawn up giving exclusive legislative powers to the Union and state. The Union list empowers
the Central Government, the State list gives powers to the States and the Concurrent list lists
items on which both the Union and States can make laws, though laws made by the Union
supersede the one made by the States.
 Union List- Fisheries beyond territorial waters, regulation and development of interstate
rivers and river valleys
 State List- Land, Water (storage, drainage and embankment, water power, canals and
irrigation, water supplies)
 Concurrent List- Forest, Wildlife, Boilers
21
(1995) 5 SCC 615
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e) THE INDIAN LEGISLATURE
(A survey of Environmental Laws in India)
Environmental law, post-independence, started growing its roots in India in the early 70’s.
Inspired by the Stockholm conference, and the fact that India was represented by its head of
state, the only nation to do so, various laws were passed. The Wildlife (Protection) Act 1972 was
the first such statute to be promulgated. In the following years the Water (Prevention and Control
of Pollution) Act of 1974, The Forest (Conservation) Act 1980, The Air (Prevention and Control
of Pollution) Act 1981, and The Environment (Protection) Act 1986 collectively gave the
country a bundle of strong laws.
The Wildlife (Protection) Act 1972 was the first piece of legislation passed to protect the
environment. The Wildlife Act sought to protect species of animals and birds which were under
threat of extinction. There are 410 species of mammals in India which account for 8.86% of the
world's mammals22. Nearly 89 species are listed as threatened in the International Union for
Conservation of Nature and Natural Resources (IUCN) Red List of Threatened Animals (IUCN
2006)23. This includes two species that are locally extinct from India are the Cheetah and the
Indian Javan Rhinoceros. The biggest loss has been the extinction of Asiatic lion. Other
endangered species include endangered mammals like Asiatic Golden Cat, Asiatic Cheetah,
22
Endangered Species of India- http://moef.nic.in/downloads/publicinformation/critically_endangered_booklet.pdf
Last visited on 28th January, 2012
23
List of Endangered Species, IUCN- http://www.iucnredlist.org/apps/redlist/search
Last visited on 28th January, 2012
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Indian Wild Ass or Khur and Asiatic Wild Dog/ Dhole. There is a huge governmental and non-
governmental drive to save the tiger despite of which the number of tigers in the country
continues to decrease24.
In essence India had a definitive set of environment protection and enhancement acts before the
Rio Declaration came into force. It can be concluded that India thus had a set of laws which
could counter any environment issue but as is typical fell short due to huge expanse of the laws
which give an easy through-fare to exploiters.
The Water (Prevention and Control of Pollution) Act, 1974 was an effort to reduce and stop
pollution in rivers. The Air (Prevention and Control of Pollution) Act, 1981 is made on similar
lines as the Water Act but it goes a few steps forward in terms of details. It was made to take
appropriate steps for the preservation of the natural resources of the earth which, among other
things, includes the preservation of the quality of air and control of air pollution. It became the
first environmental act to not only put into words the complete spectrum of environmental issues
affecting the air pollution in one act but also gave guidelines to not only protected the air but to
also improved its quality. The act must be lauded for it has an all-inclusive outlook towards
defining key environmental terms. The act also puts forwards meticulous standards of air
pollution with particular regard to industries. These standards are effectively backed by severe
penalties. Offences in the Act include flouting the restrictions on the establishments on certain
industries in air pollution control areas, the emission of air pollutants by any person operating an
24
Current Status of Tigers in India- http://www.wpsi-india.org/tiger/tiger_status.php
Last Visited on 31st January, 2012
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industry in an air pollution control area and listed offences by companies. Penalties include
imprisonment of between 1.5 and 6 years, and fine, additional fine in case of a continuing
offence and continuing offence after one year of conviction: imprisonment of between 2 and 7
years, and fine25.
The Environment (Protection) Act (EPA), 1986, is the first Indian legislation to deal with
environment protection and its components in a holistic way. The EPA was purportedly framed
to give effect to the decisions taken at the UN conference on the human environment held in
1972; however, many critics say that it was the Bhopal tragedy that precipitated the enactment of
the legislation. The EPA provided a framework for management of hazardous substances, prior
assessment of the environmental impact of major developmental projects, discharge of industrial
pollutants and effluents into the environment, guidance for industrial sitting, and management of
chemical accidents.
The EPA takes away the independence of the States with regards to action and legislation
towards issues of the environment. The Act requires the States to get clearance from the Centre
to flag off projects. This political invasion leads to many foreseeable delays 26. Additionally the
central clearance requirement does not always weed out projects which are given the green signal
25
Section 15 of the Air (Prevention and Control of Pollution) Act, 1981 prescribes penalties
26
Maheshwar Dam Issue in Madhya Pradesh- http://www.thaindian.com/newsportal/india-news/madhya-pradesh-
cm-meets-manmohan-singh-on-maheshwar-dam-issue_100358954.html
Last Visited on 28th January, 2012
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are not always the most eco-friendliest of projects. Some of the projects allowed to flourish are
plain exploitative and ecologically damaging.
The Public Liability Insurance Act, 1991 came on the heels of the Bhopal Gas tragedy27. Its main
aim was to provide relief to victims of industrial disaster victims. It became obligatory for
industrial set-ups to obtain insurance which was equivalent to the capital needed to establish the
industry. The District Administration was responsible in giving compensation to the effected
person in reasonable time.
In June 2010 the National Green Tribunal (NGT) Bill was passed. It heralded a new dawn in
environmental protection. The court has been set in Bhopal and five benches spread around the
country with the sole mission to quickly dispose of environmental protection cases. The court
has been designated to be headed by a sitting or retired Supreme Court judge or the Chief Justice
of a High Court. Its first target will be to wrap up 5,600 cases taken from all the High Courts to
of the country. Compensation can be claimed in case of death, disability, damage to property and
loss of business or employment. Though no limit has been fixed for the compensation, the
tribunal may provide relief and compensation to the victims as it may think fit.
27
The Bhopal disaster (also referred to as the Bhopal gas tragedy) is the world's worst industrial catastrophe. It
occurred on the night of December 2–3, 1984 at the Union Carbide India Limited (UCIL) pesticide plant in Bhopal,
Madhya Pradesh, India. A leak of methyl isocyanate (MIC) gas and other chemicals from the plant resulted in the
exposure of several thousands of people.
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f) INDIAN JUDICIARY AND ENVIRONMENTAL PROTECTION
i. The Evolution of the Indian Judiciary
The Indian Judiciary has seen the same transformation as has the Indian economy and culture.
From the highly strung cultural and economic transformation into an India which is much more
open and receptive, the Judiciary similarly has gone through a revolution which was both
inspiring and trail blazing. Justice Krishna Iyer, in his own vivid terms, explained that:
“A Nineteenth Century text, when applied to Twentieth-Century conditions, cannot be
construed by signals from the grave”.
Justice Krishna Iyer in the landmark decision of Rajendra Prasad vs. State of U.P. observed
that:
“When the legislative text is too bald to be self-acting or suffers zigzag distortion in action, the
primary obligation is on Parliament to enact necessary clauses by appropriate amendments.
But if legislative under taking is not in sight, judges who have to implement the Code cannot
fold up their professional hands but must make the provision viable by evolution of
supplementary principles, even if it may appear to possess the flavour of law-making.”28
Late 1970’s saw the Indian courts swing into action under the aegis of Justice P.N. Bhagwati and
Justice V.R. Krishna Iyer when they realised that relaxing the requirements of the doctrine of
28
How far is Judicial Activism Justified?- http://airwebworld.com/articles/index.php?article=1204
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locus standi was essential to provide justice to the underprivileged sections of society29. As the
emergency faded away and politics rolled back into an unsteady democracy, a subconscious
understanding was formed amongst the lawyers, judges and social activists who took the aid of
investigative journalism to increase the accountability of law enforcement agencies. These
investigations exposed custodial errors, repression of facts, corruption and loopholes in the
chaotic governmental and administrative systems30.
PIL has thus become a necessary rejection of the laissez faire notions of traditional
jurisprudence. PIL today is a system which allows for redressal of the grievances of those
individuals who do not have adequate means to directly approach the Courts. The first reported
case of PIL in 1979 focused on the inhuman conditions of prisons and under trial prisoners 31.
The judgments passed by the courts since then became far more consequential, in public
significance and kept in touch with the letter and spirit of law.
Justice V.R. Krishna Iyer started the principle of liberal interpretation of Article 142 of the
Constitution32. Justice Krishna Iyer quoted Lord Denning in his interpretation of Article 2133:
29
Social Change and Public Interest Litigation in India- http://www.ngosindia.com/resources/pil_sc.php
30
Anil Yadav v. State of Bihar, AIR 1982 SC 1008
31
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360
32
Article 142, Constitution of India- “Enforcement of decrees and orders of Supreme Court and orders as to
discovery, etc”
33
Article 21, Constitution of India- Right to Life
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“Many of the Judges of England have said that they do not make law. They only interpret it.
This is an illusion which they have fostered. But it is a notion which is now being discarded
everywhere. Every new decision - on every new situation - is a development of the law. Law
does not stand still. It moves continually. Once this is recognised, then the task of the Judge is
put on a higher plane. He must consciously seek to mould the law so as to serve the needs of
the time. He must not be a mere mechanic, a mere working mason, laying brick on brick,
without thought to the overall design. He must be an architect - thinking of the structure as a
whole, building for society a system of law which is strong, durable and just. It is on his work
that civilised society itself depends.”34
M. P. Jain, a legal luminary, argues that judicial interpretation of Article 21, which provides that
“No person shall be deprived of his life or personal liberty except according to procedure
established by law”; has led to a vast extension of substantive rights.
According to Jain:
“The interpretation of Article 21 is the Indian version of the American concept of due process
of law, but the scope of the expansion into the substantive domain engineered by the Indian
Court far exceeds that of its American counterpart. The Indian Court has emerged relatively
unscathed in recent decades as a leading actor in the ordering of domestic priorities within the
34
Judicial Interpretation of Article 21 of Constitution of India by Abhay Ostwal- http://legal-
articles.deysot.com/constitutional-law/judicial-interpretation-of-article-21-of-the-indian-constitution.html
Rajendra Prasad v State of U.P, 1979 SCR (3) 78
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polity can be attributed in no small measure to a constitutional ethos that encourages all
institutions, including the judiciary, to become active participants in the realization of
particular ideological aspirations. In effect there exists a constitutional mandate for judicial
activism.”35
This interpretation is seen in the case of Maneka Gandhi vs. Union of India. The case involved
the refusal by the government to grant a passport to Gandhi, which thus restrained her liberty to
travel. In its ruling in the case, the Supreme Court of India in a departure from its earlier stand
taken in its ruling in A.K. Gopalan vs. State of Madras expanded the scope and content of the
right to life and liberty by introducing the concept of substantive due process to Indian law. In
writing that decision, Justice M Hamedullah Beg found that:
"Democracy is based essentially on free debate and open discussion, for that is the only
corrective of government action in a democratic setup."36
In the SP Gupta case37 the Supreme Court put into fine words the concept of PIL as it is
recognized under Indian Jurisprudence:
35
MP Jain “Indian Constitutional Law (2 Vols)”, 6th Edition 2010, Revised by Samraditya Pal & Ruma Pal
36
Maneka Gandhi vs Union of India, 1978 AIR 59
37
SP Gupta v. Union of India and Others AIR (1982) SC149
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“Where a legal wrong or a legal injury is caused to a person or to a determinate class of
persons by reason of violation of any constitutional or legal right or any burden is imposed in
contravention of any constitutional or legal provision or without authority of law or any such
legal wrong or legal injury or illegal burden is threatened and such person or determinate
class of persons by reasons of poverty, helplessness or disability or socially or economically
disadvantaged position unable to approach the court for relief, any member of public can
maintain an application for an appropriate direction, order or writ in the High Court under
Article 22638 and in case any breach of fundamental rights of such persons or determinate
class of persons, in this court under Article 3239 seeking judicial redress for the legal wrong or
legal injury caused to such person or determinate class of persons.”
38
Article 226, Constitution of India- Power of High Courts to issue certain writs
39
Article 32, Constitution of India- Remedies for enforcement of rights conferred by this Part.
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ii. Landmark Indian Cases and Environmental Laws and Principles
The Indian judiciary, as a part of its activism, has for long used established international
environmental principles while adjudicating a host of landmark environmental cases in India.
These cases reflect the high standards of awareness of the Indian judiciary which not only took
judicial activism to unseen heights in the country but also provided strong precedents in
environmental actions. The various cases discussed below have had the Judiciary seeking
arguments from various quarters of the world- The various UN Conventions, European Union
Laws and Precedents from Common Law Nations.
The Supreme Court of India has referred to the Stockholm Declaration to be the ‘Magna Carta’
of our environment40. The Supreme Court refers to several declarations as “enacted”. In a case
the Rio Declaration on Environment and Development was described as “agreements which were
enacted” although their importance is rarely discussed41. With the emphasis placed on such non-
binding agreements by the county’s highest court has also encouraged environmental lawyers to
consider them as logical and heavyweight arguments. The Legislators are also influenced and
begin to consider these declarations as significant. Thus, they are informally transformed into
"Customary International Law”. As the Courts believe these unincorporated documents to hold
40
Essar Oil Ltd. v. Halar Utkarsh Samiti, [2004] 2 S.C.C. 392
41
Karnataka Indus. Areas Dev. Bd. v. Kenchappa, 2006, A.I.R. SC 2546, para. 54: "The Earth Summit held in Rio
de Janeiro in 1992 altered the discourses of environmentalism in significant ways. Sustainability, introduced in the
1987 Brundtland Report-Our Common Future-and enacted Rio agreements, became a new and accepted code
word for development"
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values that the Indian Constitution elucidates, it becomes a natural extension for the Courts to
refer to them and implement them in their awards42.
 The Polluters Pays Principle and Precautionary Principle
Indian Council for Enviro-legal Action v. Union of India43
AP Pollution Control Board v. Nayudu44
Vellore Citizens’ Welfare Forum v. Union of India45
The Organization of Economic Co-operation and Development and the European Community
starting with the early 1970’s supported the idea of Precautionary Principle which gained
statutory recognition in many European Nations- including Belgium, France and Germany. This
Principle is today one of the fundamental principles of the environmental policy of European
Community. The Treaty Establishing the European Community, under Title XIX Environment,
provided in the Article 174.246. Principle 15 of the Rio Declaration on Environment and
Development also supports this principle47 and is laid down in Principle 11 of the UN General
42
Research Found. for Sci., Tech. and Natural Res. Policy v. Union of India, 2005 (10) SCC 510
43
1996(3) SCC 212.
44
[2000]Supp5SCR249
45
1996(5) SCC 647, (at 659)
46
Title XIX Environment, Article 174.2: Community policy on the environment shall aim at a high level of
protection taking into account the diversity of situations in the various regions of the Community. It shall be based
on the precautionary principle and on the principles that preventive action should be taken, that environmental
damage should as a priority be rectified at source and that the polluter should pay.
47
Principle 15 of Rio Declaration on Environment and Development: In order to protect the environment, the
precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of
serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-
effective measures to prevent environmental degradation.
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Assembly Resolution on World Charter for Nature48. It has also been mentioned in the 1992
Framework Convention on Climatic Change (UNFCC) and in the preamble to the 1992
Convention on Biological Diversity (CBD). These factors led the Court to implement this
principle in this case.
In AP Pollution Control Board v. Nayudu the Indian Supreme Court applied the precautionary
principle in considering a petition against the development of certain hazardous industries. The
Court held that "It is necessary that the party attempting to preserve the status quo by
maintaining a less-polluted state should not carry the burden or proof and the party who
wants to alter it, must bear this burden.”
This Supreme Court of India has devised an innovative method to calculate damages to be borne
by the polluter where the Court examines the situation independently, regardless of the claims
put forward by both parties. This allows the court to keep a watch on the deterrent nature of its
award49. It has also held under Article 3250 of the Constitution that pollution fines would not be a
48
Principle 11 of World Charter for Nature- The environmental policies of all States should enhance and not
adversely affect the present or future development potential of developing countries, nor should they hamper the
attainment of better living conditions for all, and appropriate steps should be taken by States and international
organizations with a view to reaching agreement on meeting the possible national and international economic
consequences resulting from the application of environmental measures.
49
M.C. Mehta v. Union of India (Oleum Gas case), AIR 1987 SC 965
50
Article 32, Constitution of India- Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by
this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law
empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by
the Supreme Court under clause ( 2 )
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part of damages; ordinary or exemplary51. In a policy statement issued by the Government of
India, it has been accepted that the Polluters Pays principle has to be an essential aim of the
government policy to prevent and control pollution52.
In the case brought by the Indian Council for Enviro-legal Action, the petitioners sued to stop
and remedy the pollution caused by chemical producing plants, operating without permits, in the
north-western state of Rajasthan. Apart from oleum and single super phosphate, the plants
produced a form of a highly toxic chemical banned in western countries called ‘H’ Acid.
This landmark case saw the Indian apex court use the Polluters Pays principle inspired by the
Principle 16 of the Rio Declaration on Environment and Development which supports Polluter
Pays Principle53. The court held that if an enterprise is engaged in an inherently dangerous
activity, which might cause harm to another in course of the actions, will have to bear the
financial burden of preventing or remedying the damages that might been caused by the pollution
being created by the manufacturing process. The enterprise would also be strictly and absolutely
liable for the damages caused by his actions.
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution
51
M.C. Mehta v. Kamal Nath, AIR 2000 SC 1997
52
Ministry of Environment and Forests, Government of India, “Policy Statement for Abatement of Pollution”, para
3.3, February 26, 1992.
53
Principle 16 of Rio Declaration on Environment and Development: National authorities should endeavour to
promote the internalization of environmental costs and the use of economic instruments, taking into account the
approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and
without distorting international trade and investment.
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In the Vellore Citizen’s Welfare Forum case, tanneries in the South Indian state of Tamil Nadu
were discharging effluents without treating them which caused huge tracts of agricultural land to
become infertile and groundwater to be severely polluted.
The Court held that Polluters Pays principle, in this case, must extend to paying damages for the
environmental degradation caused by the pollutants discharged by them. The Court also
observed that sustainable development, polluters pay and precautionary principles were part of
international customary law and as such, it had to apply to Indian cases as well. The Court held:
"We have no hesitation in holding that the precautionary principle and polluter pays principle
are part of the environmental law of India. Remediation of the damaged environment is part
of the process of 'Sustainable Development' and as such polluter is liable to pay the cost to the
individual sufferers as well as the cost of reversing the damaged ecology."
This case also formalized Precautionary Principle as a customary international law.
 Absolute Liability
M.C. Mehta v. Union of India (Oleum Gas case)54
In the Oleum Leak case, the petitioner brought a suit in the Supreme Court of India as a writ
petition where a fertilizer manufacturing plant, operating in a densely populated part of the city
of New Delhi, had a case of leaked oleum gas. This incidence killed a person and severely
54
AIR 1987 SC 965
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injured others. The closure of the plant caused widespread angst because 4000 workers were
rendered unemployed.
The Supreme Court of India laid down in the case that any industry engaged in a hazardous or
inherently dangerous activity owes an absolute and non-delegable duty to the immediate
community to ensure no harm is done to them. This applies if the activity undertaken in the
facility could create a health or safety hazard not only for the workers but also for those people
who live in the adjacent areas. The enterprise will still be liable if it has taken every possible
precaution and no negligence can be accounted to it. The Court also observed that the larger
physical and economic structure of the enterprise, the heftier would be the compensation.
The Court in its award modified the rule in Rylands v. Fletcher55 and the way it applied to the
Indian cases. Enterprises could not get away with proving the fact that they could not foresee the
injury that was caused and that the activity on their land and premise was not an unnatural use to
begin with.
55
[1868] LR 3 HL 330
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 Sustainable Development and Inter-generational Equity
Narmada Bachao Andolan v. Union of India56
M.C. Mehta v. Union of India57
State of Himachal Pradesh v. Ganesh Wood Products58
Sustainable Development has received a global definition thanks to the Brundtland Commission,
in which it was suggested that the phrase covered “development that meets the needs of the
present without compromising the ability of future generations to meet their own needs.”
Yet in Indian context sustainable development primarily meant material or economic progress.
Though the courts have led the environmental protection brigade with extreme enthusiasm which
has allowed concerned citizens to raise their voices effectively, it has had a particularly
controversial position in India’s largest environment law dispute- the Narmada Bachao Andolan
v. Union of India wherein it was observed that “Sustainable development means what type or
extent of development can take place, which can be sustained by nature/ecology with or
without mitigation.”
The Narmada Bachao Andolan had filed a written petition with the Supreme Court of India, with
the goal to stop the work on the dam. The Supreme Court first ruled in favour of the petitioners
and stayed the construction till the entire rehabilitation work was done as envisaged. After seven
56
2000 (10) SCC 664 at p.727
57
AIR 1997 SC 734
58
AIR 1996 SC 149
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years, the Supreme Court gave the green signal to the construction of the dam but also brought
about a machinery which ensured the continuous rehabilitation of the affected population and
kept a strict eye on the issue of raising the height of the dam through the Grievance Redressal
Authorities (GRA) which was established in every state which had a stake in the project.
The court's final line of the order states-
"Every endeavour shall be made to see that the project is completed as expeditiously as
possible".
Subsequent to the court’s verdict, Press Information Bureau (PIB) featured an article 59 which
states that:
"The Narmada Bachao Andolan has rendered a yeoman's service to the country by creating a
high-level of awareness about the environmental and rehabilitation and relief aspects of
Sardar Sarovar and other projects on the Narmada. But, after the court verdict it is incumbent
on it to adopt a new role. Instead of 'damning the dam' any longer, it could assume the role of
vigilant observer to see that the resettlement work is as humane and painless as possible and
that the environmental aspects are taken due care of."
As a developing economy, the Courts have given Sustainable Development a new model where
certain ecologically harmful measures in the name of development are permissible as long as it
59
Dinkar Shukla "Verdict on Narmada 2000". Press Information Bureau, Government of India
http://pib.myiris.com/features/article.php3?fl=001108161656
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does not harm the community critically. This is done so that the future generations may be able
to get benefits from a strong law and ethical developmental practices. This was seen in the Taj
Trapezium case60.
Inter-generational equity is held in high regard as well and is seen as an important component of
conservation of nature and sustainable development, with the Supreme Court invalidating forest
based industry61. In the case Indian Council for Enviro-Legal Action v. Union of India, the
Court noted that the principle would be violated if there were a substantial adverse ecological
effect caused by industry.
 Public Trust Doctrine
MC Mehta v. Kamal Nath62
Public Trust is a principle that the state has a certain obligation to protect and preserve resources
which are for public use. In the case of MC Mehta v. Kamal Nath, the Court quoted Professor
Joseph Sax’s doctrine of public trust63, obligating conservation by the state. In this case, a motel
was constructed over the River Beas which interfered with its flow. The court quashed this action
and the private enterprise which was constructing the hotel had to pay compensation to reverse
the damage to the ecology and environment of the area. The Court also held that property meant
for public use and enjoyment could not be transferred to the private domain and ownership.
60
M.C. Mehta v. Union of India, AIR 1997 SC 734
61
State of Himachal Pradesh v. Ganesh Wood Products AIR 1996 SC 149
62
(1997) 1 SCC 388
63
(1997) 1 SCC 388, Para. 24
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 Other Important Cases
Forest Conservation Law has also been significantly been impacted through cases concerning
national parks and sanctuaries64. While hearing this case, the Supreme Court through one of its
interim orders has restrained all State Governments from de-reserving national parks, sanctuaries
and forests.
April 1996 saw another important step being taken when the Supreme Court under the aegis of
Justices Kuldip Singh and S. Saghir Ahmed directed the Chief Justice of the Calcutta High Court
to constitute a special division bench to hear environment-related petitions. Thus this became the
first “Green Bench” of India. The Supreme Court asked the Calcutta High Court to convene
once a week to deliberate on cases related to environmental issues. While deliberating in The
Vellore Citizen’s Forum case65 the Supreme Court asked the Chennai High Court to constitute a
special green bench to deal exclusively with environmental matters in that state. The initiative of
the Supreme Court in setting up these green benches is a very welcome step for a more effective
redressal of environmental disputes.
In the last two-and-a-half decades, the contribution of the Indian judiciary to the evolution of
environmental law regime has been commendable. The higher judiciary has creatively
interpreted the constitutional provisions in the light of emerging principles of environmental
64
Centre for Environmental Law (WWF) – India v. Union of India
65
Vellore Citizen’s Forum v. Union of India and Others (1996) 5 SCC 647
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jurisprudence to determine liability of industry for damage to environment and human health.
Principles such as “precautionary principle”, “polluter pays”, “sustainable development” and
“absolute liability” are now an integral part of the country’s environmental law regime. The
precautionary and polluter-pays principles are articulated under the Environmental Protection
Act, and its rules wherein “duty of care” and liability for environmental restoration have been
cast on the industry.
The judiciary finds itself in a tough spot when it comes to considering environmental issues. The
leading factor remains the balance one has create in terms of interpreting two sets of laws and
economic reality- The law of the land and Constitutional rights, the international laws most
importantly the Rio Declaration along with economic, political and social principles and facts.
The other issue is the pressure put on the capability of jurists and judges on effectively
interpreting these multi-dimensional issues.
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iii. The National Green Tribunal Act, 2000
 Introduction
The Lok Sabha (The lower and most important National Legislative House of India) passed
the National Green Tribunal (NGT) Act of 2000 on 18 October 2010. It encompasses within it
the Fundamental Right to a Healthy Environment that is enshrined in the Indian Constitution
under Article 2166. It heralded a new dawn in environmental protection and will replace the
National Environment Tribunal Act, 1995 and the National Environment Appellate Authority
Act, 1997. The Tribunal in essence is a fast track court specializing in dispensing justice on
environmental issues thus displacing the burden that the Indian courts are bearing at this moment
and giving judicial legitimacy to Principle 13 of the Rio Declaration67. After Australia and New
Zealand, India is the third country to have a dedicated all-encompassing Green Tribunal68.
 The National Green Tribunal Act, 2000
The court has been set in Bhopal and five benches spread around the country with the sole
mission to quickly dispose of environmental protection cases. The three circuit benches are set
66
Article 21, Indian Constitution- Right to Life
67
Principle 13, Rio Declaration- states shall develop the national law regarding liability and compensation for the
victims of Pollution and other environmental damage
68
National Green Tribunal Starts Functioning- http://articles.economictimes.indiatimes.com/2011-07-
04/news/29736147_1_national-green-tribunal-ngt-environment-ministry
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up in Kolkata, Chennai, and Pune. The court has been designated to be headed by a sitting or
retired Supreme Court judge or the Chief Justice of a High Court. Its first target will be to wrap
up 5,600 cases taken from all the High Courts to of the country. Compensation can be claimed in
cases of death, disability, damage to property and loss of business or employment. Though no
limit has been fixed for the compensation, the tribunal may provide relief and compensation to
the victims as it may think fit. The court must dispose the case in six months. To ease the
disposal of cases the courts are not bound by the Code of Civil Procedure but they are bound by
the principles of natural justice. The Central Government funds the working of the courts. Justice
L.S. Panta, Former Judge of the Supreme Court has been appointed as the first Chairperson of
the NGT69.
 Salient features of the Act70
The Act in its Preamble gives a complete view of it motivations that are based in the
international environmental conferences in Stockholm and Rio de Janeiro and the commitments
India made there. The Act makes it clear that it will call on cases which have an unanswered
substantial question of law regarding the environment. The Act also clearly states that it would
69
http://www.greenworldinvestor.com/2011/07/04/national-green-tribunal-ngt-of-india-what-you-need-to-know-
historychallengescircuit-benchesnecessity/
70
National Green Tribunal Act, 2000- http://moef.nic.in/downloads/public-information/NGT-fin.pdf
The National Green Tribunal Act: An Overview by Aruna B. Venkat (Nalsar Law Review)-
http://www.commonlii.org/in/journals/NALSARLawRw/2011/7.html
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only encourage cases that affect the broader community at large but they might steam from a
complaint by an individual. Thus, it will not entertain individual actions unless it reflects on the
community as a whole. No civil court in India can entertain cases which fall under the
jurisdiction of the Green Tribunal.
The Act allows a time limitation of six months to file a complaint though it might entertain cases
beyond the limitation period if circumstances dictate so. It also states a limitation period of five
years to apply the relief which has been granted by the Tribunal. Relief can be in form of
compensation, fines, and restitution of private or public property and the damaged environment.
The Act lays down a few principles it will work on. It will entertain complaints and appeals from
other Environmental Authorities established under other environmental laws of India. The Courts
will apply the Principles of Natural Justice and International Environmental Principles, Treaties
and Conventions that India has ratified while following while deciding cases. The Court has been
exempt from following the rules of the Code of Civil Procedure. This will expedite proceedings
and allow the court to not waste time in useless proceedings
The Act provides that an application for grant of relief or compensation or settlement of dispute
may be made to the Tribunal by any person who has sustained the injury, the owner of the
property to which the damage has been caused, all or any of the legal representatives of the
deceased where death has resulted from the environmental damage, any agent duly authorized by
such person or owner of such property or all or any of the legal representatives of the deceased,
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as the case may be and any person aggrieved including any representative body or
organization.
In addition, the Central or State Governments, or a Union Territory administration or the Central
or State Pollution Control Boards or any environmental authority constituted or established under
the Environment (Protection) Act, 1986 or any other law for the time in force, can also move the
Tribunal.
 Cases in the Tribunal
The Green Tribunal officially started functioning on 4th July, 201171. In a recent order by the
NGT in a case regarding coal fired thermal plants, could affect such plants all over India. In the
present case, the residents of a town in Maharashtra were opposing the expansion of a thermal
plant. In the order, the Tribunal directed the Union Ministry of Environment and Forests (MoEF)
to make a detailed assessment of the supposed radiation caused by the thermal power plants in
the country. A week before that, the tribunal had asked MoEF to get prescribed national
standards from Department of Atomic Energy (DAE) within a year on the permissible levels of
nuclear radiation in residential, industrial and ecologically sensitive areas72.
71
72
Green Tribunal Seeks Details on Radiation from Thermal Power Plants-
http://www.downtoearth.org.in/content/green-tribunal-seeks-details-radiation-thermal-power-plants
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In another case, The NGT suspended the environmental clearance obtained by a Belgaum-based
mining company to extract iron ore from the south Maharashtra sea-coast. The tribunal's order
was in response to an appeal filed by the affected villagers, found serious procedural lapses in
grant of environmental clearance by an expert Advisory Committee (EAC) of the MoEF to the
company73.
In two recent cases the Tribunal came into prominence, first because it could get its biggest case
yet and in the second instance it delivered its biggest judgment till date. In the first case the
dispute was regarding the environmental clearance over a residential township being built over a
hilly terrain in the state of Maharashtra. In the said case the Bombay High Court suggested the
case along with the pending PIL’s regarding the project, be take over the NGT. The High Court
has sought the positions of the parties involved in the case if they agree to the suggestion. If
these cases are moved to the NGT, it will be the biggest and the most high profile case to be
given to the Tribunal. In the second instance, the NGT cancelled the steel plant being built by the
South Korean steel giant POSCO, which consequently sent back the largest foreign direct
investment in India back to the drawing board. The $12 million steel plant has been a hotly
debated issue for over seven years because of its location in the tribal heartland which could take
away large tracts of forest land, cause tribal and human rights violation, human displacement,
and potential large scale environmental and ecological disaster74.
73
Green Tribunal Suspends Environmental Clearance to Gogte Minerals-
http://www.downtoearth.org.in/content/green-tribunal-suspends-environmental-clearance-gogte-minerals
74
Lavasa Petitions Can be Heard BY Green Tribunal, Says HC- http://economictimes.indiatimes.com/news/news-
by-industry/indl-goods-/-svs/metals-mining/lavasa-petitions-can-be-heard-by-green-tribunal-hc-
uggests/articleshow/10754888.cms
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g) INDIA AND INTERNATIONAL ENVIRONMENTAL LAW
“The fact remains that they have a persuasive value and command respect. The Rio
Declaration is the product of hectic discussion among the leaders of the nations of the world
and it was after negotiations between the developed and the developing countries that an
almost consensus declaration had been sorted out. Environment is an international problem
having no frontiers creating trans-boundary effects. In this field every nation has to cooperate
and contribute and for this reason the Rio Declaration would serve as a great binding force
and to create discipline among the nations while dealing with environmental problems”75
Since the United Nations Conference on the Human Environment, held in Stockholm in 1972,
India has been an active participant in every such conference and has passed numerous
environmental laws relating to environmental protection. International environmental law has
deep foundations in these laws and India has not only ratified many UN Conventions but the
judiciary has actively implemented them on its own accord in the many landmark judgments, as
far back as the 1980’s. India also has a burgeoning NGO community which is deeply resourceful
and committed to making India an environmentally friendly state. As India is a Commonwealth
nation, one can frequently look to countries like England, USA, and Australia for precedents.
This gives legislators, lawyers, and judges access to global jurisprudence, which is unparallel and
brings to them a wealth of knowledge.
Posco’s Steel Dreams Laid to Rest- http://www.tehelka.com/story_main52.asp?filename=Ne140412POSCO.asp

Last Visited 31st March, 2012
75
Zia v. WAPDA, P L D 1994 Sup. Ct. 693
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i. International Law, the Indian Constitution, Executive and Legislature
Articles 24676 and 25377 read with Entries 13 and 14 of List I78 of the Seventh Schedule of the
Indian Constitution give the Government of India the authority to implement any international
treaty that the country has signed. Article 253 gives the Central Government the power to enact
laws on such international instruments unless it violates the division of powers as given under
Article 246 when read with the Seventh Schedule.
Under Article 5379, the executive powers of the Union rest with the President of India. The
President may execute the powers through the Presidential office or through subordinate officers.
76
Article 246, Constitution of India- Subject matter of laws made by Parliament and by the Legislatures of States
(1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has exclusive power to make laws with respect to
any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List)
(2) Notwithstanding anything in clause ( 3 ), Parliament, and, subject to clause ( 1 ), the Legislature of any State
also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in
this Constitution referred to as the Concurrent List)
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included
(in a State) notwithstanding that such matter is a matter enumerated in the State List
77
Article 253, Constitution of India- Legislation for giving effect to international agreements
Notwithstanding anything in the foregoing 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
78
Entry 13- Participation in international conferences, associations and other bodies and implementing of decisions
made thereat.
Entry 14- Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and
conventions with foreign Countries.
79
Article 53, Constitution of India- Executive power of the Union
(1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or
through officers subordinate to him in accordance with this Constitution
(2) Without prejudice to the generality of the foregoing provision, the supreme command of the Defense Forces of
the Union shall be vested in the President and the exercise thereof shall be regulated by law
(3) Nothing in this article shall
(a) be deemed to transfer to the President any functions conferred by any existing law on the Government of any
State or other authority; or
(b) prevent Parliament from conferring by law functions on authorities other than the President
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Article 7380 of the Indian Constitution confers upon the government of India executive powers.
India follows the dualist theory of implementing international law through national laws. It
means, that every international treaty, declaration, accord or agreement, has to be passed as a
Legislation for the courts to implement it as law81. Thus, international laws cannot automatically
form part of national laws unless they are incorporated by the Parliament through legislation.
Article 51 (c)82 of the Indian Constitution is the instrument by which International Law becomes
enforceable by laws in India. Article 51 (c) has been made part of the Indian Constitution as
Directive Principle of State Policy. This is a principle which is directive and not enforceable. Yet
the states are morally duty bound by enforce these directives though one cannot bring a suit in
the Courts of the country if the state does not fulfill its moral obligations with regards to these
directive principles. Good faith is the inspiration behind India to implement international laws in
the Indian context. Though there is strict division of powers in India, the judiciary often finds
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Article 73, Constitution of India- Extent of executive power of the Union
(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend
(a) to the matters with respect to which Parliament has power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the government of India by virtue
of any treaty on agreement: Provided that the executive power referred to in sub clause (a) shall not, save as
expressly provided in this constitution or in any law made by Parliament, extend in any State to matters with respect
in which the Legislature of the State has also power to make laws
(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding
anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for
that State such executive power or functions as the State or officer or authority thereof could exercise immediately
before the commencement of this Constitution Council of Ministers
81
Gramophone Company of India Ltd. v. Birendra Bahadur Pandey AIR 1984 SC 667
82
Article 51 (c), Constitution of India- Promotion of international peace and security
The State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised
peoples with one another; and encourage settlement of international disputes by arbitration
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itself interpreting international laws in cases, on its own free will. In the landmark case of
Kesavananda Bharathi v. State of Kerala83, the Supreme Court held:
“It seems to me that, in view of Article 51 of the directive principles, this Court must interpret
language of the Constitution, if not intractable, which is after all an intractable law, in the
light of the United Nations Charter and the solemn declaration subscribed to by India.”
83
AIR 1973 SC 1461
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ii. Influences of International Environmental Law on Domestic Law
There are numerous influences of international environmental laws on domestic Indian
environmental laws. Environmental jurisprudence, as we know today, in India has grown on the
same lines as international environmental laws primarily because both came into being in the
same year- 1972. Thus, Indian lawmakers have always looked to international conventions,
treaties, and declarations to form domestic laws.
After the Stockholm Conference, the Government of India laid down the foundation of the
National Council of Environmental Policy and Planning within the Department of Science and
Technology. This body later became the Ministry of Environment and Forest in 1985 with an
independent Central Minister.
The Air (Prevention and Control of Pollution) Act, 1981 has its roots in the Stockholm
Conference where Principle 13 stated “In order to achieve a more rational management of
resources and thus to improve the environment, States should adopt an integrated and
coordinated approach to their development planning so as to ensure that development is
compatible with the need to protect and improve environment for the benefit of their
population”.
Environmental Impact Assessment has been always been a contested issue in India with no
impact assessment studies being undertaken until as recently as the 1980’s. Major legislative
reforms were brought about only in 1994 where Sections 3 and 4 of the Environmental
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Protection Act, 1986 called the “Environment impact Assessment Notification 1994”84. Apart
from Principle 14 of the Stockholm Conference85, this measure was chiefly inspired by Principle
17 of the Rio Declaration, which provides that: “EIA as a national instrument shall be
undertaken for the proposed activities that are likely to have significant adverse impact on the
environment and are subject to a decision of a competent national authority”.
The Biological Diversity Act was passed in India in 2002 after India signed and ratified the
United Nations Convention on Biological Diversity signed at Rio de Janeiro in 1992. This Act
was passed to “provide for conservation of biological diversity, sustainable use of its
components and fair and equitable sharing of the benefits arising out of the use of biological
resources, knowledge and for matters connected therewith or incidental thereto.” Many of the
provisions of the Convention were also placed in the amendment brought in the Wildlife
(Protection) Act 1972 in 1991.
India is a signatory of the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES). As a party to the Convention India has amended its laws to reflect the
assertions made in the Convention towards the international trade of flora and fauna. The
Wildlife (Protection) Act 1972, the Customs Act 1992 and the Import/Export Regulations of the
country jointly regulate the provisions of CITES86.
84
“Environment impact Assessment Notification 1994- http://envfor.nic.in/legis/eia/so-60(e).html
Last visited 30th January, 2012
85
Principle 14 of the Stockholm Declaration: “Rational planning constitutes an essential tool for reconciling any
conflict between the needs of development and the need to protect and improve the environment”
86 87
Legal and Regulatory Framework of Environmental Law in India (Chapter 2), Ministry of Environment and
Forest- http://moef.nic.in/divisions/ic/wssd/doc2/ch2.html
Last Visited 31st January, 2012
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India acceded to The Montreal Protocol on Substances That Deplete the Ozone Layer and to the
London Agreement in 1992. The Ministry of Environment has made an Ozone Cell and a
steering committee which would implement the provisions of the Protocol in India. Though India
ratified The Basel Convention on the Control of Trans boundary Movements of Hazardous
Wastes and Their Disposal in 1992, the Indian Hazardous Wastes Management Rules Act, 1989
has implemented many provisions from the Convention when it was passed. India hosts the
network on agroforestry and soil conservation for one of the six Thematic Program Networks for
the Asian Region under the United Nations Convention to Combat Desertification in Those
Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa87.
The Lok Sabha (The lower and most important National Legislative House of India) passed
the National Green Tribunal (NGT) Act of 2000 on 18 October 2010. It encompasses within it
the Fundamental Right to a Healthy Environment that is enshrined in the Indian Constitution
under Article 2188. It heralded a new dawn in environmental protection and will replace the
National Environment Tribunal Act, 1995 and the National Environment Appellate Authority
Act, 1997. The Tribunal in essence is a fast track court specializing in dispensing justice on
environmental issues thus displacing the burden that the Indian courts are bearing at this moment
88
Article 21 of the Indian Constitution- Right to Life
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and giving judicial legitimacy to Principle 13 of the Rio Declaration89. After Australia and New
Zealand, India is the third country to have a dedicated all-encompassing Green Tribunal90.
89
Principle 13, Rio Declaration: “States shall develop the national law regarding liability and compensation for the
victims of Pollution and other environmental damage”
90
Last visited 31st January, 2012
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iii. Influence of International Environmental Law on the Constitution of India
Since the Stockholm Conference in 1972, India has brought in two important Constitutional
Amendments. With the 42nd Constitutional Amendment Act, 1976, the Indian legislature
introduced environmental protection and conservation into the Constitution. Environmental
Protection became a Directive principle of the State under Article 48-A91 whereby it became an
enforceable right (at the State’s discretion) to protect the environment and wildlife of the
country. The Amendment also made environmental protection a Fundamental (and
Constitutional) Duty of the citizens of the country under Article 51-A (g)92.
The Amendment also shifted two important provisions—“Forests” and “Protection of Wildlife
and Bird” from the State List to the Concurrent List93. This allowed a strong hold of the Central
(Federal) government on these subjects thus allowing laws to be created which had a larger
perspective on the issue thus guaranteeing better protection and administrative forums to be
created.
Being a member to the Stockholm Conference gave a few positive dividends for the country.
Article 253 of the Indian Constitution allowed the National Parliament to give significance to
91
Article 48A: “The State shall endeavour to protect and improve the environment and to safeguard the forests and
wildlife of the country.”
92
Article 51A(g): “To protect and improve the natural environment including forests, lakes, rivers and wild life, and
to have compassion for living creatures;”
93
The Seventh Schedule of the Constitution delineates legislative power between the Centre and the States. List I
(the Union List) comprises subjects over which only the Centre shall legislate. List II (the State List) comprises
subjects over which only the State shall legislate. List III (the Concurrent List) contains subjects over which both
entities may legislate, subject to a preference for the Centre pursuant to the doctrine of “occupied field”.
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India’s participation in international conferences, and make laws based on the decisions,
responsibilities, and outcomes of these conferences94.
94
Article 253: Notwithstanding anything in the foregoing 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
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h) RESATATEMENT OF IMPORTANT INDIAN ENVIRONMENTAL LAWS
The Wildlife (Protection) Act, 197295
History:
Wildlife protection has been a focal point of every ruler in India. The earliest law on wildlife
protection was created by Ashoka, the King of Maghdha. The first codified law on wildlife
protection was created by the British and was called the Wild Birds Protection Act, 1887. This
Act protected wild species of birds which were hunted especially during their breeding season.
The British subsequently passed the Wild Birds and Animals Protection Act, 1912 and amended
it in 1935, but both proved futile in their attempt to protect wildlife. With the Second World War,
wildlife protection took a backseat but with the independence of India, the Constituent Assembly
in the Draft Constitution placed "Protection of Wild Birds and Wild Animals" at entry No.20 in
the State List and the State Legislature has been given power to legislate. It was only in the late
1960’s which saw a concern for the depleting numbers of wildlife due to illegal poaching.
Passed on:
The Act was passed on 9th September, 1972. Amendments to the Act were brought in 1976,
1982, 1991 and 1993. The last amendment was brought in 2003 which made penalties much
more stringent.
95
The Wildlife (Protection) Act, 1972- http://envfor.nic.in/legis/wildlife/wildlife1.html
The Wildlife (Protection) Amendment Act, 2002- http://www.envfor.nic.in/legis/wildlife/wild_act_02.htm

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Purpose of the Act:
The Act protects wild animals, birds and plants by prohibiting hunting, harvesting of species,
poaching, illegal trade in wildlife and derivatives and protection of endangered flora and fauna in
protected areas.
Structure of the Act:
The Act is fairly extensive with 66 sections divided into ten chapters and six schedules. The Act
applies to the whole of India except the northern state of Jammu and Kashmir. This state has its
own law on protecting wildlife. Under Schedule I and Part II of Schedule II any offence has the
highest penalties and species under these Schedules are given absolute protection. Penalties are
less for the species listed under these Schedules under Schedule III and Schedule IV. Schedule V
lists animals which cannot be hunted and Schedule VI lists plants which cannot be cultivated and
grown in plantations.
Definitions under the Act:
Section 2 of the Act defines core terms.
 "animal" includes amphibians, birds, mammals, and reptiles, and their young, and also
includes, in the cases of birds and reptiles, their eggs.
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 "animal article" means an article made from any captive or wild animal, other than vermin,
and includes an article or object in which the whole or any part of such animal has been used
and an article made therefrom.
 "hunting" includes
(a) capturing, killing, poisoning, snaring, or trapping any wild animal, and every attempt
to do so
(b) driving any wild animal for any of the purposes specified in sub clause
(c) injuring, destroying or taking any body part of any such animal, or in the case of wild
birds or reptiles, disturbing or damaging the eggs or nests of such birds or reptiles.
 "taxidermy" means the curing, preparation or preservation of trophies.
 "trophy" means the whole or any part of any captive or wild animal (other than vermin)
which has been kept or preserved by any means, whether artificial or natural. This includes:
(a) rugs, skins, and specimens of such animals mounted in whole or in part through a
process of taxidermy
(b) antler, horn, rhinoceros horn, feather, nail, tooth, musk, eggs, and nests.
 "uncured trophy" means the whole or any part of any captive animal (other than vermin)
which has not undergone a process of taxidermy. This includes a freshly killed wild animal,
ambergris, musk and other animal products.
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 "vermin" means any wild animal specified in Schedule V.
 "wildlife" includes any animal, bees, butterflies, crustacean, fish and moths; and aquatic or
land vegetation which forms part of any habitat
Provisions of the Act:
Prohibition on Hunting- The Act expressly prohibits hunting of wild animals under Schedules
1-4 except in circumstances when the animal becomes a danger to human life and property
(standing crops and land) and is diseased beyond cure. In such a case a written permission from
the Chief Wildlife Warden needs to be taken and the act needs to be recorded in writing. A
person can hunt only when The Chief Wildlife Warden gives written permission when the
purpose is for education and scientific research and management, collection of specimens and
derivation, collection or preparation of snake-venom for the manufacture of life saving drugs.
Prohibition on picking, uprooting specified Plants- The Act prohibits a person from willfully
pick, uproot, damage, acquire or collect any specified plant from an area specified and preserved
by the Government for wildlife unless the purpose is for scientific and education which has been
expressly sanctioned by the Chief Wildlife Warden. Unless a valid license has been granted by
the Chief Wildlife Warden, no one can trade in specified plants and purchase them from
unauthorised dealers. These specified plants for all purposes are property of the State
Governments.
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National Parks, Sanctuaries and Closed Areas- The Act deals with National Parks,
Sanctuaries and Closed Areas. If an area is rich in ecological, faunal, floral, natural or zoological
significance, it can be declared as a sanctuary by the State Government. This gives them an
opportunity to develop these areas exclusively for wildlife in a protected environment. Entry is
restricted into these areas unless expressly granted. Any illegal activity within these areas is
liable to be punished under the Indian Penal Code. Those acts are not permitted within these
areas which destroy, exploit, or remove any wildlife from a National Park destroy or damage the
habitat or any wild animal and deprive any wild animal or its habitat within such National Park.
Grazing of any livestock is not permitted in a National Park.
Zoos and Zoo Authority: The Act recognises and constitutes the Central Zoo Authority. This
Authority will place rules which will serve as minimum standards for the animals kept in zoos. A
zoo cannot operate without the recognition of the Authority. The Authority has among the many
duties, to specify the minimum standards for housing, unkeep and veterinary care of the animals
kept in a zoo; evaluate and assess the functioning of zoos with respect to the standards or the
norms as may be prescribed; recognise or derecongnize zoos; and identify endangered species of
wild animals for purposes of captive breeding and assigning responsibility in this regard to a zoo.
Trade or Commerce in Wild Animals: The Act provides rules for Trade or Commerce in Wild
Animals, Animal Articles and Trophies and prohibitions on them. Wild Animals under this Act
are property of the Government and any illegal act towards them will be a crime under the Indian
Penal Code. Without the express sanction of the Chief Wildlife Warden no wild animal can be
sold, offered to be sold or transported. The forest rangers or concerned officers can seize any
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captive animal, wild animal, animal article or any specified plant from the possession of any
offender and can arrest him without warrant.
Penalties under the Act:
After the Wildlife (Protection) Amendment Act, 2003 was passed, punishment for non-
compliance with the provisions of the Act have been made more stringent. Punishment for
offences related to Schedule I, Part II of Schedule II, hunting and altering the boundaries of a
sanctuary or national park would be a minimum imprisonment for three years which may extend
to seven years, with a minimum fine of Rs. 10,000. For a subsequent offence of this nature, the
term of imprisonment shall not be less than three years but may extend to seven years with a
minimum fine of Rs. 25,000. Provision of bail for offences under Schedule I and Part II of
Schedule II will be given only when the Public Prosecutor has been given an opportunity of
opposing the release on bail; and where the Public Prosecutor opposes the application, the Court
is satisfied that there are reasonable grounds for believing that he is not guilty of such offences
and that he is not likely to commit any offence while on bail.
The reward for intelligence gathering about wildlife crime is now 50% of the entire money
which is gathered in a case. A reward up to Rs 10,000 is given to each informant who detects a
crime or gives inputs on a crime which could take place.
Persons can only inherit trophies, articles and live animals which fall under schedule-I and part II
of Schedule- II. They cannot sell or gift such articles. The exception is live elephants. Offences
related to trade and commerce in trophies, animals articles etc. derived from certain animals
attracts a term of imprisonment up to three years and/or a fine up to Rs. 25,000/-.
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Punishment on the lines of Narcotic Drugs and Psychotropic Substances Act, 1985 have been
proposed for criminals with a past record of crimes against wildlife. Officials have also been
given special powers to evict encroachers into protected areas.
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Water (Prevention and Control of Pollution) Act, 1974 and Rules 197596
The Act:
The Water (Prevention and Control of Pollution) Act was passed in 1975. It was the first
legislation which systematically dealt with issues of water pollution in India. It is expansive and
applies to streams, inland waters, subterranean waters and sea or tidal waters. The Act works
through a system of “command and control” by establishing State Pollution Control Boards
which prescribes standards of discharge and exceeding such standards are met with penalties
which include fines and imprisonment. The Act establishes permit systems which allows a
person who consents to the standards set by the State Boards to establish effluent discharge and
treatment systems in the industry which is being operated. The Act was amended in 1988 to align
it with the provisions of the Environment (Protection) Act, 1986.
Definitions:
The Act lays down a few important definitions in Section 2:
 Occupier is the person who has control over the affairs of the factory or the premises.
96
The Water (Prevention and Control of Pollution) Act, 1974- http://www.moef.nic.in/legis/water/wat1.html
The Water (Prevention and Control of Pollution) Act, 1974, Relevant Provisions-
http://hspcb.gov.in/Water%20Act,%201974%20Relevant%20provisions.pdf
Chapter 1, Review of the existing environmental norms concerning the power sector by Consumer Education and
Research Centre- http://www.cercind.gov.in/chapter1.pdf
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 Water Pollution is contamination of water or alteration of the physical, chemical, or
biological properties of water or such discharge of any sewage or trade effluent or of any
other liquid, gaseous or solid substance into water, directly or indirectly, or is likely to create
a nuisance, or render such water harmful or injurious to public health or safety or to
domestic, commercial, industrial, agriculture or any other legitimate uses, or to the life and
health of animals or plants or of aquatic animals.
 Trade effluent is any liquid, gaseous or solid substance which is discharged from any
premises used for carrying on any industry, operation or process or treatment and disposal
system, other than domestic sewage.
 Sewage Effluent is effluent from any sewerage system or sewage disposal works and
includes sullage from open drains.
 Stream includes river, water course (whether flowing or for the time being dry), inland water
(whether natural or artificial), sub-terranean waters, sea or tidal water to such extent or as the
case may be to such point as the state government may by notification in the official gazette
specify in the behalf.
Important Provisions of the Act:
The Central Pollution Control Board (CPCB) and State Pollution Control Boards (SPCB)-
The Act establishes the CPCB and SPCB’s. States with common borders can establish Joint
State Boards with shared resources. These Boards have legal personalities and can acquire and
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dispose of property, can sue and be sued. The CPCB functions under the authority of the Central
Government. The SPCB functions under the dual authority of the respective State Government
and the CPCB. In case of a conflict between the SPCB and CPCB, the matter is referred to the
Central Government.
The Act lays down the functions of the CPCB which are to advice the Central Government on
matters concerning the prevention and control of water pollution, coordinate the activities of the
State Boards and resolve disputes among them, provide technical assistance and guidance to the
State Boards, carry out and sponsor investigations are research relating to matters of water
pollution, organize training programmes for officers involved in prevention and control of water
pollution, collect and publish data and lay down standards in consultation with the concerned
State Government.
The Act also lays down the functions of SPCB which are to draw up comprehensive plans for the
prevention and control of water pollution in the State, advice the State Government on matters
concerning prevention and control of water pollution, organise training programmes for officer
involved in prevention and control of water pollution, lay down standards and evolve economical
and reliable methods of treatment of effluents
The Act empowers the Central and State Government to set up Labs and appoint analysts. The
CPCB and the SPCB are also empowered to make rules for the implementation of the Water Act.
Members of the Boards- The Members of the Boards occupy important positions in the Act as
they are the ones who enforce and execute the provisions of the Act. The Act lays down the
terms and conditions of service of the members of the Boards and means and reasons for their
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disqualification along with the powers for the Members of the State Boards to give directions to
obtain information, to take samples of effluents and enter and inspect premises which discharge
effluents.
Prohibition on Polluting Streams and Wells- The Act expressly prohibits the use of streams or
wells for disposal of polluting waters. This section defines the offences against the Act. The
essence of the offence is causing a qualitative change in the water of a stream or a well.
Establishment of Treatment and Disposal Systems- The Water Act says that no industry or
operator process or any treatment and disposal system can be established without the previous
consent of the State Board. It lays down the provision that no industry or process can discharge
sewage or trade effluent into a stream or well or sewer or land in excess of the standards and
without the consent of the Board. Whoever contravenes the provisions of the Act shall be
punishable with imprisonment for term which shall not be less than one and half year but which
may extend to six years with fine. The industry can make an appeal if aggrieved against the
orders of the Board. The Board can also issue directions for closure of industry & disconnection
of electricity in case of persistent defiance by any polluting industry.
Review by an appellant authority- Under the Act the SPCB's decisions are subject to a review
by an appellant authority appointed by the State Government. Impositions of unreasonable
conditions can be annulled or varied by the State Government by giving the SPCB an
opportunity of being heard. The Act bars the jurisdiction of civil court to entertain any suit or
proceedings when the appellate authority is determining any action taken or to be taken under
this Act.
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The Water (Prevention and Control of Pollution) Rules, 1975- The Rules contain detailed
schedules and forms for providing information on the administration and establishment each
industry is expected to furnish.
Penalties under the Act
The penal provisions provided in the Act are comprehensive. An offender under the Act shall on
conviction be punishable with imprisonment for a term which may extend to three months or
with a fine which may extend to Rs 5000 or with both, and in case the failure to comply
continues, an additional fine of Rs 1000, for every day of the violation.
The offences under the Act may be pulling down, destroying or defacing any installation made
under the authority of the Board, obstructing any person engaged in discharge of his or her duties
under the Act, damaging any property belonging to the Board, failure to furnish information or
intimate the occurrence of an accident to Board officials, knowingly giving false information and
furnishing false information to obtain the consent of the board.
Burden of liability- 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 responsible to the
company shall be deemed to be guilty of the offence, except when he or she can prove that the
offence was committed without their knowledge or that he or she had exercised due diligence to
prevent the offence. The Act provides for punishment also to those who give consent to the
offensive act or connive in the Act, be it the director, the manager, the secretary or any other
official of the company.
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Air (Prevention and Control of Pollution) Act, 198197
The Act
The Air (Prevention and Control of Pollution) Act, 1981 was enacted to by the Central
Government in pursuance to the Stockholm Declaration in 1972. The Act is mirrored on the
Water (Prevention and Control of Pollution) Act, 1974 where the Act has been passed by the
Central Government but the executive functions are carried out by the State Pollution Control
Boards (SPCB).
Definitions under the Act
Section 2 of the Act gives out a few important definitions:
 Air Pollutant- Any solid, liquid or gaseous substance (including noise) present in the
atmosphere in such concentration as may be or tend to be injurious to human beings or other
living creatures or plants or property or environment.
97
The Air (Prevention and Control of Pollution) Act, 1974- http://www.moef.nic.in/legis/air/air1.html
The Air (Prevention and Control of Pollution) Act, 1974, Relevant Provisions-
http://hspcb.gov.in/Air%20Act%201981%20Relevant%20Provisions.pdf
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 Approved Appliances- Any equipment or gadget used for the bringing of any combustible
material or for generating or consuming any fume, gas of any particulate matter and
approved by the State Board.
 Control Equipment- Any apparatus, device, equipment or system to control the quality and
manner of emission of any air pollutant and includes any device used for securing the
efficient operation of any industrial plant.
 Industrial Plan- Any plant used for any industrial or trade purposes and emitting any air
pollutant into the atmosphere.
 Emissions- Any solid or liquid or gaseous substance coming out of any chimney, duct or flue
or any other outlet
Provisions of the Act
The Central Pollution Control Board (CPCB) and State Pollution Control Boards (SPCB)-
The Act constitutes CPCB and SPCB on the same lines of the Water Act. The jurisdictions of the
State Boards are common under both the Acts. The Air Act provides for State boards even in
states which do not have pollution control boards established under the Water Act.
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The Board shall perform such functions as given in Sections of the Air Act for the prevention,
Control and abatement of air pollution. The Central Board under this Act advises the Central
Government, plans and executes nationwide programs, and coordinates the activities of the State
boards and has the power to issue binding directions to the Central board and the State boards.
The functions of the SPCB similarly consist of implementation of the ground objectives spelt out
under the Act. If the State Government, after consultation with the State Board, is of opinion that
the use of any fuel other than an approved fuel/or burning of any material in any Air Pollution
Control area or part thereof may cause or is likely to cause air pollution, State Board has the
power to prohibit the use of such fuel in such area or part that area.
The State boards are empowered to ask for accurate information, to have its inspectors enter,
enquire and verify compliance of standards, take samples of emissions from any chimney or
duct, secure analyses of the sample taken and punish the offenders. The State Government is also
empowered to declare any area within the State as an air pollution control area.
The Act says that no person shall, without the previous consent of the State Board, establish or
operate any industrial plant in an Air Pollution Control Area. No person operating any industrial
plant, in any air pollution control area shall discharge or cause or permit to be discharged the
emission of any air pollutant in excess of the standards laid down by the State Board. If a unit is
emitting air pollutant in excess of the standards laid down by the State Board, in any air pollution
control area, the Board may make an application to a court. The Board has laid down the
standards of air emission for compliance by industry. The industry can make an appeal if
aggrieved against the orders of the Board.
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The PCBs are to be provided information immediately in case there is an emission more than the
stipulated standards because of an accident or an unforeseen event. The authorised person under
the Act can enter any place to obtain information relevant to the Act, examine and test any
control equipment, industrial plant or any document.
Declaration of restricted areas- Air pollution in the Act is sought to be combated by means of
declaration of restricted areas, prohibition of the use of pollution fuel and substances, as well as
by regulating the appliances that give rise to air pollution. The State boards are authorized to
implement the standards set by the Central Board, restrict the operation of certain industrial
plants and issue consent orders on payment of a prescribed fee, upon conditions deemed
necessary for the abatement of pollution. Non-compliance with the conditions will lead to the
cancellation of the consent which, in turn, raises the culpability and liability of the offending
individual or industry. Every person who has obtained the consent is expected to install control
equipment specified by the board. The person concerned is also expected to keep the equipment
in good condition.
The Air (Prevention and Control of Pollution) Rules- These Rules have been adopted in 1982.
The rules define the procedures for the meeting of the boards, the powers of the presiding
officers, decision-making procedures including quorum, the manner in which records of meeting
are to be kept etc. The rules also prescribe the manner and purpose of seeking assistance from
specialists and the fee to be paid to them.
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The penalties prescribed under the Act are quite similar to those laid down under the Water Act
which is imprisonment for three months or a fine which may extend to Rs 10,000. In case of
continuing contravention an additional fine of Rs 5000, for every day of the contravention.
The Act applies even to Government departments, but has a provision to protect action taken in
good faith. The punishments imposed are subject to review by an appellate authority, and no
injunction is to be granted by any court in respect of any action taken in pursuance of any power
conferred under this Act.
Power to order closure, prohibition or regulation of any industry- After the Amendment of
the Act in 1987, the Act gives the power to issue directions was clarified to the effect that such
power includes closure, prohibition or regulation of any industry, and the power to stop or
regulate the supply of electricity, water or any other service.
Some of the major amendments related to empowerment of the Central and State Pollution
Control boards to meet with grave emergencies of air pollution. The boards were authorized to
take immediate measures to meet such emergencies and recover from the persons concerned the
expenses incurred in the process. The power to cancel consent for non-fulfillment of the
conditions prescribed is also emphasized under the Air Act Amendment.
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The Environment (Protection) Act, 198698
History:
The Environmental (Protection) Act, 1986 was enacted in pursuance to the Stockholm
Declaration, 1972 which India was a signatory to. The Ministry of Environment and Forest was
created in 1985, and thus the Environment (Protection) Act was legislated as a umbrella
legislation for environmental protection and regulation of developmental activities and after the
Bhopal Gas Tragedy took place in 1986 and there was a sense of urgency to prevent such
catastrophic incidents by creating a mechanism of co-operation in planning, policy making and
co-ordination of action between the Central and State Governments.
Purpose of Act:
The purpose behind creating the Act was to give force to the Article 48 (A) of the Constitution of
India which states “Protection and improvement of environment and safeguarding of forests
and wild life The State shall endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country”. The Act also gave force to Article 51 (A) (g)
of the Constitution of India which states that every citizen of India has a Fundamental Duty to
98
Environment (Protection) Act, 1986- http://envfor.nic.in/legis/env/env1.html
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“to protect and improve the natural environment including forests, lakes, rivers and wild life,
and to have compassion for living creatures”.
Important Definitions:
The Act provides for a few important definitions:
 Environment includes water, air and land and the inter-relationship which exists among
and between water, air and land, and human beings, other living creatures, plants, micro-
organism and property
 Environmental pollutant means any solid, liquid or gaseous substance present in such
concentration as may be, or tend to be, injurious to environment
 Environmental pollution means the presence in the environment of any environmental
pollutant
 Handling, in relation to any substance, means the manufacture, processing, treatment,
package, storage, transportation, use, collection, destruction, conversion, offering for sale,
transfer or the like of such substance
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 Hazardous substance means any substance or preparation which, by reason of its chemical
or physico-chemical properties or handling, is liable to cause harm to human beings, other
living creatures, plants, micro-organism property or the environment
 Occupier, in relation to any factory or premises, means a person who has control over the
affairs of the factory or the premises and includes, in relation to any substance, the person in
possession of the substance
 Prescribed means prescribed by rules made under this Act
Provisions of the Act:
The Act empower the Ministry of Environment and Forest (MoEF) to lay down standards for
environmental quality; emissions or discharge of environmental pollutants from various sources,
devise procedures for handling hazardous substances, formulate rules for locating industry,
mandating compulsory reporting of environment pollution by industry and provide for recovery
of costs of cleanup from the polluter99.
The Act creates an Authority to exercise powers to fulfill the provisions of the Act and gives the
Government of India to lay down directions on which the appointed Authority must act to fulfill
the provisions in the Act. The Government is empowered to make rules to regulate
99
Environmental Laws in India: Overview and Important Principles by K.V. Singh and Shephali M. Birdi (Kochhar
and Co.)- Environment Law Institute, Washington DC, 2009
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environmental pollution. The MoEF is responsible for making rules to implement the EPA and
has adopted industry specific standards for effluent discharge and emissions for 24 designated
industries. Thermal power plants fall in this list. For other water polluters general standards are
prescribed.
The Act sets standards for the discharge of pollutants for industries and lays down procedures
and standards for person handling hazardous substances. The Act expressly states that those
persons who are carrying on industry, operations etc., are not to allow emission or discharge of
environmental pollutants in excess of the standards.
The Act lays down rules for furnishing of information to authorities and agencies in certain
cases. In cases where discharge of an environmental pollutant occurs in excess of the prescribed
standards, or there is an apprehension of this occurring due to an accident or some other
unforeseen event, then the person who is in charge at that particular time is responsible for
preventing environmental pollution due to the said discharge. It is the responsibility of the person
to intimate the occurrence of the discharge to the CPCB/SPCB (Central/State Pollution Control
Board), and provide all possible assistance to the regulatory agencies to counter the ill effects of
the discharge. All expenses incurred by the regulatory agency in undertaking remedial measures
may be recovered from the polluter.
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The Authority has the Powers of entry and inspection of industrial sites and the power to take
samples. The search and seizure authority provided in the earlier section is supplemented with
the power to take samples of air, water, soil or any other substance from the factory premises.
The Act establishes Environmental laboratories. The samples collected are to be sent to notified
laboratories for analysis under Government analysts with specific qualifications. The functions
of environmental laboratories and the qualifications of Government analysts are described in the
Environment (Protection) Rules, 1986.
The Act also gives effect to other laws. After the exceptionally stringent penal provisions
provided (discussed under), the EPA dilutes the same drastically. Where an act or omission
constitutes an offence punishable under EPA and also under any other Act, then the offender
shall be liable to be punished under the other Act and not this Act.
The Act lays down penalties in case of unlawful discharge of pollutants. The person responsible
for such discharge is liable for punishment for a term which may extend to five years and a fine
which may not go beyond one lakh rupees or both. If one does not comply with the penalty, they
will be liable to pay Rs. 5000 per day for every day of non-compliance, and if the non-
compliance stands for more than a year, then imprisonment may extend to seven years. If the
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pollutant has been discharged by any department of government, the head of the department shall
be deemed to be guilty of the offence and shall be liable to be proceeded against and punished
accordingly along with any officer in the department who is liable for the discharge.
Select Notifications under the Act
Coastal Regulation Zone Notification (1991) (CRZ)
This regulates activities along the coastal stretches. The Central Government has declared the
coastal stretches of seas, bays, estuaries, creeks, rivers, and backwaters which are influenced by
tidal action (the land ward side) up to 500 meters from the high tide line (HTL) and the land
between the low tide line (LTL) and the HTL as a Coastal Regulation Zone. The facts which
were relevant for power plants under this notification are dumping of ash or any wastes from
thermal power plants in the CRZ is prohibited and thermal power plants require environmental
clearance from the MoEF, for foreshore facilities for transport of raw material and for facilities
for intake of cooling water and outfall for discharge of treated waste water/cooling water, in the
CRZ.
The Environment Impact Assessment of Development Projects Notification, 1994 and as
amended in 1997
Until January 1994, obtaining environmental clearance from MoEF was only an administrative
requirement intended for mega projects undertaken by the Government or public sector
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undertakings. The EIA notification of May, 1994, makes EIA (environmental impact assessment)
statutory for 29 activities (Schedule I of the notification). Thermal power plants and
hydroelectric projects fall into this category. The salient provisions required all projects listed
under Schedule I are required to obtain environmental clearance from the MoEF. Projects which
fall under the delicenced category of the New Industrial Policy also need clearance from the
MoEF. All development projects whether under Schedule I or not, if they are to be located in
certain notified ecologically sensitive or fragile areas will have to obtain clearance from MoEF.
Industrial projects where the investment is Rs 500 million or more must get MoEF clearance.
Industrial projects are further required to obtain a LOI (letter of intent) from the Ministry of
Industry, and a NOC (no objection certificate) from the SPCB and the State Forest Department if
the location involves forest land. Once the NOC is obtained, the LOI is converted to an industrial
license by the State authorities. However, if the project falls under Schedule I of the EIA Review
of existing environmental norms 14 TERI Report No. 99PG64 notifications, it must obtain an
environmental clearance from the MoEF.
Taj Trapezium Notification (1998)
The Central Government has constituted an authority known as the Taj Trapezium Zone
Pollution (Prevention and Control) Authority. This authority is empowered to monitor the
implementation of various schemes for the protection of the Taj Mahal and protection and
improvement of the environment in the Geographical limits of the Taj Trapezium.
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The geographical limits of the Taj Trapezium have been defined in the shape of a trapezoid
between 26° 45¢ N and 77° 15¢ E to 27 °45¢ N and 77° 15' on the west of the Taj Mahal and on
the east between 27° 0 0¢ N and 78° 3 0¢ E to 27° 30¢ N and 78° 3 0¢ E. No power plants can
be set up within this geographical limit.
The Environment (Protection) Rules, 1986
The Environment (Protection) Rules, 1986 have been made by the Central Government under the
EPA. The Rules lay down the procedure for setting standards of emission of discharge of
environmental pollutants. They contain detailed norms for the directions that the Central
Government can issue. The Rules also prescribe the parameters for the Central Government,
under which it can issue orders of prohibition and restriction on the location and operation of
industries in different areas. The Rules also lay down the procedure for taking samples, serving
notice, submitting samples for analysis and submitting the laboratory report. The functions of
environmental laboratories are described under the Rules, and the qualifications for the
government analysts are also laid down. A schedule, an appendix and the copies of forms
appearing at the end of the Rules contain the procedural format and the information requires
under the Rules. Some relevant provisions of the Rules pertain to standards for emission,
issuance of specific directions to an industry, prohibition and restriction on the location of
industries in different areas, specific procedure to be followed by the officer collecting the
samples, manner of giving notice, and environmental audit report.
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Public Liability Insurance Act (PLIA), 1991100
The Act
The Public Liability Insurance Act (PLIA) was passed in 1991. The Act deals with accidents
caused by hazardous substances and provides insurance to persons who have been affected by
will be given immediate relief by the persons handling the hazardous goods. Where death or
injury results from an accident, this Act makes the owner liable to give relief as is specified in
the Schedule of the Act. The basis for the Act is ‘No Fault Liability’.
Definitions
Section 2 of the Act gives definitions of the following:
 Accident- An unintentional sudden occurrence while handling any hazardous substances
resulting in continuous, intermittent or repeated exposure that could be potentially fatal, of or
injury to any person or damage to any property.
 Collector- The Collector who has jurisdiction over the area in which the accident occurs.
100
Public Liability Insurance Act (PLIA), 1991- http://www.moef.nic.in/legis/public/public1.html
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 Handling- The manufacture, processing, treatment, package, storage, transportation by
vehicle, use, collection, destruction, conversion, offering for sale, transfer or the like, of such
hazardous substances.
 Hazardous substance- Any substance or preparation which is defined as hazardous substance
under the Environment (Protection) Act, 1986 (29 of 1986), and exceeding such quantity as
may be specified, by notification, by the Central Government
 Relief Fund- The Environmental Relief Fund establishment under section 7A
 Owner- A person who owns, or has control over handling any hazardous substance at the
time of accident and includes-
 In the case of firm, any of its partners
 In the case of an association, any of its members
 In the case or a company, any of its directors, managers, secretaries or other officers who
is directly in charge of, and is responsible to the company for the conduct of the business
of the company;
Duty of Owner
It is the express duty of every owner of an industry which handles hazardous substances to take
out insurance policies to cover such situations. No insurance policy taken out or renewed by an
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owner shall be for an amount less than the amount of the paid up capital of the undertaking
handling any hazardous substance and owned and controlled by that owner, and more than the
amount, not exceeding fifty crores rupees, as may be prescribed.
The designated court for recovery of such insurance is metropolitan magistrate or a first class
judicial magistrate or higher. The expenses of such prosecution are recoverable from the owner
as arrears of land revenue.
Provisions of the Act
Environmental Relief Fund- The PLIA was amended in 1992 and the Central Government has
been authorized to establish the Environmental Relief Fund which can be utilised for making
relief payments by the Collector.
Application for claim for relief – Whenever it comes to the notice of the Collector that an
accident has occurred in any place within his jurisdiction, he is to verify such occurrence and
publicise it for inviting applications for relief.
The Public Liability Insurance Rules- In 1991 Rules were issued which contain the standard
administrative procedures for seeking relief and the documents that are required for making such
claims. Under the rules the powers of the Collector and the extent of the liability of the owner of
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the Hazardous substances have been clarified, especially with reference to the contribution of the
owner to the Environmental Relief Fund.
Exception101 - The Policy does not cover liability arising out of willful or intentional non-
compliance of any statutory provisions; in respect of fines, penalties, punitive and/or exemplary
damages; arising under any other legislation; in respect of damage to property owned, leased or
hired or under hire purchase or on loan to you or otherwise in your control, care or custody;
directly or indirectly occasioned by happening through or in consequence of war, invasion, act of
foreign enemy, hostilities (whether war be declared or not), civil war, rebellion, revolution,
insurrection or military or usurped power; and directly or indirectly caused by or contributed to
by ionising radiation or contamination by radioactivity from any nuclear fuel or from any nuclear
waste from the combustion of nuclear fuel and the radioactive, toxic, explosive or other
hazardous properties of any explosive nuclear assembly or nuclear component thereof.
The punishment for violation of the Act is imprisonment for a year, extendable to six years for
continued violation or a fine of one lakh rupees. The Central Government has the power to issue
directions under the Act to regulate the handling of any hazardous substance and to stop or
regulate the supply of electricity, water or any other service to the owner.
101
The Public Liability Insurance Act, 1991, Chola Insurance- http://www.cholainsurance.com/corporate/liability-
insurance/public-liability-act.aspx
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The Biological Diversity Act, 2002102
The Law
India is a party to the Convention of Biological Diversity, 1992 which gives every nation, which
has ratified the Convention, the right of sovereignty over its natural resources. In pursuance of
the same India created an umbrella act which is the Biological Diversity Act, 2002.
Purpose of the Act:
The Act fulfills its obligations under the Convention of Biological Diversity; harness India’s
natural resources in a sustainable, conserve natural resources, facilitate access to the resources in
a just manner, sharing benefits arising out of such access and use, use of natural resources for
commercial and research purposes of bio-survey and bio-utilisation, and transfer of research
results and application for intellectual property rights (IPRs) relating to Indian biological
resources.
102
The Biological Diversity Act, 2002- http://nbaindia.org/text/12//TheBiologicalDiversityAct2002.html
National Biodiversity Action Plan, 2008- http://www.cbd.int/doc/world/in/in-nbsap-v2-p1-en.pdf

Biodiversity: An Overview, Tamil Nadu Agricultural University-

http://agritech.tnau.ac.in/forestry/biodiversity.html#nationalbio
The National Biodiversity Authority- http://www.moef.nic.in/divisions/csurv/nba_act.htm

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Passed on:
This Act was passed by the Lok Sabha (the lower house of Parliament) on December 2, 2002 and
by Rajya Sabha (the upper house of Parliament) on December 11, 2002. India ratified the
Convention of Biological Diversity in February, 1994.
Reason behind the Act:
The chief reason behind the passage of the Act was to conserve 91,000 species of animals and
45,500 species of plants in its ten bio-geographic regions, 6,500 native plants are still used
prominently in indigenous healthcare systems, thousands of locally-adapted crop varieties,
grown traditionally since ancient times and 140 native breeds of farm livestock, continue to
thrive in its diversified farming systems.
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India is one of the eight Vavilovian Centres of Origin and Diversity of Crop Plants. It has having
more than 300 wild ancestors and close relatives of cultivated plants still growing and evolving
under natural conditions.
Salient Features of the Act:
The Act aspires to regulate access to biological resources of the country with the purpose of
securing equitable share in benefits arising out of the use of biological resources; and associated
knowledge relating to biological resources; conserve and sustainably use biological diversity;
respect and protect knowledge of local communities related to biodiversity; secure sharing of
benefits with local people as conservers of biological resources and holders of knowledge and
information relating to the use of biological resources; conservation and development of areas of
importance from the standpoint of biological diversity by declaring them as biological diversity
heritage sites; protection and rehabilitation of threatened species and involvement of institutions
of state governments in the broad scheme of the implementation of the Biological Diversity Act
through constitution of committees.
Applies to:
Biological Diversity is a multi-faceted and multi-disciplinary subject which requires it to look at
specific needs of various interest groups and stake holders. These stake holders include the
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Central Government, State Governments, institutions of local self-governmental organizations
and the industry.
The Act applies to foreigners, non-resident Indians, body corporate and association or
organization that is either not incorporated in India or incorporated in India with non-Indian
participation in its share capital or management
To have access to the natural resources of the country for commercial and research purposes,
these entities need to take prior approval of the National Biodiversity Authority, based in the city
of Chennai, Tamil Nadu. Indians and Indian Institutions have to inform the State Biodiversity
Boards prior to the activities listed above though commercial activities have to be approved by
the National Biodiversity Authority.
Exclusions:
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The Act excludes Indian biological resources that are normally traded as commodities and
traditional uses of Indian biological resources and associated knowledge and when they are used
in collaborative research projects between Indian and foreign institutions with the approval of the
central government.
The National Biodiversity Authority (NBA):
The National Biodiversity Authority has been established in Chennai, Tamil Nadu in October,
2003 pursuant to the Biological Diversity Act, 2002. Since its establishment, NBA has supported
creation of SBBs in 26 States and, facilitated establishment of around 32,796 Biodiversity
Management Committees. It performs functions like laying down procedures and guidelines to
govern the activities like obtaining any biological resource, transferring the results of any
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research and certain collaborative research projects exempted. The NBA advices the Government
of India on specific areas like notifications of threatened species,
designate institutions as repositories for different categories of biological resources and exempt
certain biological resources, normally traded as commodities. The NBA also encourages setting
up State Biodiversity Boards, builds up database and documentation system and create
awareness through mass media to train personnel and bring necessary measures in the areas of
Intellectual Propriety Rights.
Relevant definitions:
 Biological resources: means plants, animals, microorganisms, genetic material and by-
products of value but excluding human genetic material.
 Bio-survey and bio-utilization: means survey or collection of species, sub-species, genes,
components and extracts of biological resources for any purpose including for
characterisation, inventories and bioassay.
 Benefit claimers: means conservers of biological resources and their by-products and
creators and holders of knowledge relating to the use of such biological resources.
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 Commercial utilization: means using biological resources as drugs, industrial enzymes,
food flavours, fragrances, cosmetics, emulsifiers, oleoresins, colours, extracts and genes used
for improving crops and livestock through genetic intervention.
Violation of Provisions of Act:
When permission of National Biodiversity Authority has not been taken for the use of natural
resources, punishment can extend to five years imprisonment or a fine of ten lakh rupees or both.
When State Biodiversity Board has not been informed of the use of natural resources the
punishment can extent to three years imprisonment or a fine of five lakh rupees or both. Any
offence under the Act is cognizable and non-bailable.
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Laws for the Schedule Tribes
The Constitutional Guarantees for Schedule Tribes
The father of the Indian Constitution, B.R. Ambedkar, was also the mass leader of the
“Depressed Classes”. Under his auspices, the Constitution of India created a few protective
devices for the Schedule Castes and Schedule Tribes.
The makers of the Constitution approached the issue of upliftment of the Depressed Classes with
three goals103:
 Protection against social malice’s which continued in post independent India. These
measures forced the citizens of Indian into eliminating practices which allowed prejudices,
harassment, and unequal treatment towards the Schedule Castes and Tribes. In the years after
independence a number of laws were passed which enforced principles of equality. These
were The Untouchability Practices Act, 1955, Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989, The Employment of Manual scavengers and
Construction of Dry Latrines (Prohibition) Act, 1993, etc.
 Reservation seen as the Indian brand of Affirmative Action which would give the Schedule
Cates and Tribes quotes in Governmental, Central and Sate, jobs and educational institutions,
103
National Human Rights Commission Report on Schedule Caste and Schedule Tribes-
http://nhrc.nic.in/Publications/reportKBSaxena.pdf
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thereby empowering them to be contributing members of the society thus allowing greater
integration skills.
 Social and Economic Development so as to reduce the disparities between the conditions of
the Scheduled Castes and Scheduled Tribes and the mainstream Indian of other religions and
regions.
The Constitution of India gives exclusive protection the Scheduled Tribes under Articles 244104
and 244 (A)105. Article 244 makes special provision for the administration and control of the
Scheduled areas and Scheduled tribes in any State by the application of the Fifth and Sixth
Schedules. The expression “administration and control” in Art.244 (1)106 extends to
administration and control by the exercise of Governmental powers of every description –
executive, judicial and legislative. The Fifth Schedule provides for the administration and control
of Scheduled Areas and Scheduled Tribes (areas and tribes needing special protection due to
disadvantageous conditions). The Schedule requires the submission of Annual Reports by the
Governors to the President of India regarding the Administration of the Scheduled Areas and
setting up of Tribal Advisory Councils to advise on matters pertaining to the welfare and
104
Article 244, Constitution of India- Administration of Scheduled Areas and Tribal Areas
(1) The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and
Scheduled Tribes in any State other than the States of Assam Meghalaya, Tripura and Mizoram
105
Article 244 (A), Constitution of India- Formation of an autonomous State comprising certain tribal areas in
Assam and creation of local Legislature or Council of Ministers or both therefor
106
Article 244 (1), Constitution of India- The provisions of the Fifth Schedule shall apply to the administration and
control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam Meghalaya,
Tripura and Mizoram
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advancement of the Schedule Tribes while the Sixth Schedule (Articles 244 and 275107) provides
for the administration of tribal areas in Assam, Meghalaya, Tripura, and Mizoram.
The Constitution of India also guarantees also guarantees certain Fundamental Rights to every
citizen of the country. Chief amongst them is Article 14108 confers equal rights and opportunities
to all. Article 15109 prohibit discrimination against any citizen on the grounds of sex, religion,
race, caste etc; while Article 15(4)110 enjoins upon the State to make special provisions for the
advancement of any socially and educationally backward classes. Article 16(4) 111 empowers the
State to make provisions for reservation in appointments or posts in favour of any backward
class of citizens, which in the opinion of the State, is not adequately represented in the services
under the State. Articles 29112 and 30113 protect the interests of the minorities and gives them the
107
Article 275, Constitution of India- Provides for the payment out of the Consolidated Fund of India as grants-in-
aid of the revenues of a State such capital and recurring sums as may be necessary to meet the cost of development
schemes for the promotion of the welfare of the Scheduled Tribes in the State
108
Article 14, Constitution of India- Equality before law The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth
109 110
Article 15, Constitution of India- Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth
(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision
for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and
the Scheduled Tribes
111
Article 16, Constitution of India- Equality of opportunity in matters of public employment
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or
posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in
the services under the State
112
Article 29, Constitution of India- Protection of interests of minorities
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freedom to establish and administer their own educational institutions. Article 32114 can be used
to fight for the causes related to the marginalized class of scheduled and non- scheduled tribes.
Article 46115 enjoins upon the State to promote with special care the educational and economic
interests of the weaker sections of the people and, in particular, the Schedule Tribes and gives
assurances to protect them from social injustice and all forms of exploitation. Article 46 is a
Directive Principle of the State Policy116 and is a principle which is directive and not
enforceable. Yet the states are morally duty bound to enforce these directives though one cannot
bring a suit in the Courts of the country if the state does not fulfill its moral obligations with
regards to these directive principles. Good faith is the inspiration behind India to implement this
provision.
Articles 330117, 332118 and 335119 stipulate reservation of seats for STs in the Lok Sabha (The
National Legislature) and in the State Legislative Assemblies and in services. Articles 338120,
113
Article 30, Constitution of India- Right of minorities to establish and administer educational institutions
114
Article 32, Constitution of India- Remedies for enforcement of rights conferred by Part III
115
Article 46, Constitution of India- Promotion of educational and economic interests of Scheduled Castes,
Scheduled Tribes and other weaker sections The State shall promote with special care the educational and economic
interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes,
and shall protect them from social injustice and all forms of exploitation
116
They are guidelines for creating a social order characterized by social, economic, and political justice, liberty,
equality, and fraternity as enunciated in the constitution's preamble.
117
Article 330, Constitution of India- Reservation of seats for Scheduled Castes and Scheduled Tribes in the House
of the People
118
Article 332, Constitution of India- Reservation of seats for Scheduled Castes and Scheduled Tribes in the
Legislative Assemblies of the States
119
Article 335, Constitution of India- Claims of Scheduled Castes and Scheduled Tribes to services and posts
120
Article 338, Constitution of India- Special Officer for Scheduled Castes, Scheduled Tribes etc
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338(A)121 and 340122 of the Constitution of India ensure appointments of Special Officers and
establishment of National Commissions for Schedule Castes and Schedule Tribes by the
President of India. The Commissions are appointed to investigate the conditions of the socially
and educationally backward classes and to specify those Tribes or Tribal Communities deemed to
be as Schedule Tribes and advice the Central Government on policy matters pertaining to
Scheduled Tribes and Castes. In 2003, through the Constitution (89th Amendment) Act, 2003 the
National Commission for Schedule Castes and Schedule Tribes was split into two ensuring one
separate entity for the Schedule Tribes called the National Commission for Scheduled Tribes
(NCST). It came into effect in 2004123.
The Statutory Guarantees for Schedule Tribes
The long standing issue of the forest rights of the Tribes gave way for the Government of India
to enact the “The Schedule Tribes and other Traditional Forest Dwellers (Recognition of Forest
Rights) Act 2006”. The activists who support this Act believe this legislation gives the Tribals
and other “traditional forest dwellers” the stature of being stakeholders in the forests of India.
This stature helps them not be labeled as encroachers and are given protection to not be evicted
121
Article 338 (A), Constitution of India- The Article has been amended in 1990 for the constitution of a National
Commission for Scheduled Castes and Scheduled Tribes consisting of a Chairperson, Vice Chairperson and five
other Members who shall be appointed by the President by warrant under his hand and seal. The amended Article
elaborates the duties of the said Commission and covers measures that should be taken by the Union or any state for
the effective implementation of the reports presented by the Commission. It also provides that the Commission shall,
while investigating any matter or inquiring into any complaint have all the powers of a Civil Court trying a suit and
the reports of the said Commission shall be laid before Parliament and the Legislature of the states.
122
Article 340, Constitution of India- Appointment of a Commission to investigate the conditions of backward
classes
123
National Commission for Schedule Tribes: Introduction-
http://ncst.nic.in/index2.asp?slid=466&sublinkid=344&langid=1
Last Visited 23rd January, 2012
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and be compensated from the forests which will be legally cleared for modern development.
Tribal right activists will secure tenurial rights for these Tribals which will allow them to manage
land sustainably using traditional methods. The Act loses steam when it comes to execution.
Only those tribal families will benefit from the Act if three or more generations (nearly 75 years)
of the family have resided in the forests. This creates a broader issue of who exactly come into
the fold of the legislation. This builds up pressure on the verification process of these families
because the parameters have not been defined124.
Though the Act does not allow development which stands opposed to the Tribals and their rights,
politicisation of the process will always be a factor. Political mileage will always be used to
churn out favours which could lead to obstruction of Tribal rights. Though the Gram Sabha
(Village Self Government) of the Tribal community must give accent to such development, this
particular body can be manipulated because they are headed by people who might not be
educated with the tools of mainstream India. The Forest Department of India is also another
bureaucratic body with enough power to either make a difference by implementing the Act as it
should be or deny the Tribals their rights by twisting the words of the Act in their favour125.
The Indian Government in 1996 passed The Panchayat126 (Extension to Schedule Areas)
commonly known as PESA. This Act would give the Tribals, the much needed right to manage
124
Tribal Land Issues in India: Communal Management, Rights, and Displacement by Hari Mohan Mathur-
http://www.adb.org/Documents/Books/Land-Cultural-Survival/chap06.pdf
Last Visited on 7th March, 2012
125 127
Tribal Land Issues in India: Communal Management, Rights, and Displacement by Hari Mohan Mathur-
http://www.adb.org/Documents/Books/Land-Cultural-Survival/chap06.pdf
126
The Panchayat System is a village governance system as founded by Mahatma Gandhi. This system brings
democracy to the lowest level with an elected body of five (Panch) governing the day to day issues of the village.
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their own land and natural resources independently but this right has not been implemented. The
lands then become contentious and vulnerable, opening them to corporates who defy rules to
exploit them127.
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i) ISSUES WITH ENVIRONMENTAL LAWS IN INDIA
“Most of the environment related decisions are enacted by those sections of the Government
which are already innocuous or whose knowledge about interest in environment is more of
academic interest. This outlook myopia can be understood from the fact that an official in
Delhi uses a shirt made of cotton grown in the fields of Maharashtra heavily sprayed with
pesticides leading to multiple resistance in mosquitoes, uses electricity from a dam in the
Himalayas that has destroyed forests and blocked migration of fish, writes on paper produced
in Madhya Pradesh by a factory that has polluted the local river and logged forests in an ever-
widening circle disrupting the life of tribals, eats cereals from Punjab produced using a
technology that drain soil fertility and so on.”128
India has always been known to be land of contradictions and this comes in no surprise that in its
fight against environmental degradation it is caught between the raging dichotomy of a western
concept of development to eradicate poverty and conservation of the environment. In six decades
of independence, through thrust has been on economic growth, the constant battle for India has
been the poverty eradication and yet as India progresses towards being a developed nation,
environmental degradation threatens population which till today struggles with poverty. India
borrowed successful ideas without testing them first on her waters. Taking cues from developed
countries, those models of economic reforms were planted without any modification leading to
disastrous consequences of the misuse of natural resource base - soil, forest, water and bio-
128
Environmental Conflicts In India by Dharitree Dwivedy and Arabinda Acharya, Center for Peace and
Development Study- http://www.cpdsindia.org/environmentalconflictsinindia.htm
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diversity. Mounting debt with high interest rates and commodification of nature and is resources
have created new unsustainable economic, social, and political mechanisms in India. Planning in
India is done on basis of income generation and profit making which takes a toll on traditional
lifecycles and livelihood. India’s mindset that development comprises of industrialization,
urbanization, commercialization, and consumerism without referring to underlying foundation of
economic and social equity and environmentally sustainable growth process, has created a huge
complication which has deep ecological impact129.
India seems to have all the laws that need to protect the environment and seem to be the most
extensive on paper and if implemented with enthusiasm they will result in examples of good
governance. The issues with these laws are in their tremendous minutiae. The extreme Indian
need to fine print each and every detail of the legislation leads to many loopholes and lacunas
which are in turn exploited by poachers and petty criminals on one hand and Corporations and
their ‘top-of-the-line’ legal advisors. Furthermore the environment, though clearly stated to be an
important agenda in our lengthy Constitution has always received a lower pedestal in comparison
to development130. The Indian Executive has long proved that it suffers in silence the
infringement of laws and that implementation is a servant of political games and competition.
129
130
Battling for clean environment: Supreme Court, Technocrats and Populist Politics in Delhi by Kuldeep Mathur-
http://www.jnu.ac.in/cslg/workingPaper/CSLG%20WP%2003-01%20Kuldeep%20Mathur.pdf
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The environment has suffered as a consequence as has every other important spheres of the
country’s growth process over the years.
Even though there is consistent petitioning to have stringent norms for the usage of our limited
natural resources, the response of the government has always been to pass new legislation
instead of referring to the already existing laws. The complications increase with the
impediments imposed by the Constitution of India in the form of a strict hierarchy in terms of
administration. The Constitution has created separate areas of jurisdiction131 for the Centre and
States, the majority of the areas of interest regarding environment are vested under the States.
The Indian Constitution is perhaps one of the most advanced in the world and up to date. It is
extensive and tries to cover every issue possible. Keeping this aspect in mind, one must keep in
mind the fact that environment though mentioned in the Constitution has been mentioned in a
very flimsy manner. It has been placed under the directive principles which are not enforceable
but is a moral duty of the state to enforce. Now the state apart from being an administrative body
has become an economic machinery as well. Keeping this in mind it must be realized that the
state will not enforce environmental standards which are not enforceable in the constitution
especially if the case is motivated by profit and the filling of the state treasury.
Though the fundamental rights have been interpreted by the courts as right to clean environment,
it is not clear. Article 21 which states Right to life can cover vast estates of issues and the
environment is one of them. The courts have creatively included the environment under the
Article but the Constitution of India needs a new fundamental right which clearly enunciates
131
Seventh Schedule (Article 246)- The union (central government), state, and concurrent lists of responsibilities
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environmental rights for the people of India, especially the Scheduled Tribes whose rights are
often violated without notice. A clearly enunciated fundamental right will give the people
strength who do not always have to rely on the precedents of the court to assert their rights.
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Development over Environmental Protection
India is brimming with unlimited aspirations while it owns limited natural resources. This leads
to a conflict between the States committed to development for the “greater good of all” while the
process of development severely marginalizes the poor and tribals. Thus when natural resources
are diverted to fit the development agenda and meet the needs of the market, the conflict between
commercial interest and people’s interest intensifies. In essence, conflicts over natural resources
are conflicts over rights132. Development takes precedence over the environment and thus issues
of the environment get relegated to the background, a recent example being that of illegal mining
in Rajasthan133. Due to large scale illegal mining in India and in the Aravalli hills Range in
Rajasthan and Haryana the forest cover has depleted by 90 percent and drying up wells and
affecting agriculture. The governments remain silent in these years. Due to media and public
protest the Supreme Court on February 20, 2010 directed the cancellation of 157 mining leases
operating in Rajasthan’s eco-sensitive Aravalli Hills.
The Center of Science and Environment report134 has made extensive analysis of environment
degradation and pollution due to mining, wherein it has said, in 2005-06 alone 1.6 billion tonnes
of waste and overburden from coal, iron ore, limestone and bauxite have added to environment
pollution. With the annual growth of mining at 10.7 per cent and 500-odd mines awaiting
132
Development and implementation of environmental law in India by Justice D. M. Dharmadhikari, Judge,
Supreme Court of India- http://data.iucn.org/dbtw-wpd/html/EPLP-060/section7.html
133
M/s Bahubali Stone Crusher Vs. Rajasthan State Pollution Control Board and allied cases
134
The Center for Science and Environment (CSE) Report, December 29, 2007
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approval of the Centre, the pollution would increase manifold in the coming years. Rajasthan is
the largest producer of dimensional stones in the country. The state alone produces resources
worth 5 crore rupees a year.
Adding to the breadth of issues is the fact that these States are victims of the interest groups
spread in the two capitals of the country- political and financial, New Delhi and Mumbai.
Lobbyist have found new ground in India and with their knowledge limited to making their
clients and political organizations happy, their operations see neither environmental viability or
sustainability. With corporations and MNC’s flying on wings made out of political and financial
prowess, state governments in the light of myopic development are reluctant or incapable to
legislate on these pressing issues135.
Karnataka is a prime victim of such events. Mining is rampant on land for which permission is
not granted. Sometimes, revenue and forest officials do not check feasibility of the sites, but give
permission to mine. On several occasions, the sketch of the mining map shown to the department
of mines and geology did not match with the site and overlapped forest areas. Irregularities have
been found in the de-reservation of 2670.5 sq km of forest area in Shimoga, Chikmagalur,
Hassan, Kolar, Chitradurga and Mysore districts. Private players have cashed in on reserve
135
What Bleeds Bellary- http://www.downtoearth.org.in/node/1739
Last Visited on 31st March, 2012
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forests for mining, and people are the worst affected. They do not enjoy any advantages from
mining in their region136.
India’s commitment towards industrialization has taken its toll on the environment. Most of the
industries are set up without regard to environmental requirements of the area, without any
concern for the pollution load factors of land and water and in sectors i.e. small-scale where
providing pollution control equipment is uneconomical. Pollution in rivers have reached
epidemic levels with stretches of the river systems infected with bacteria feeding on wastes,
proliferating between twenty to one thousand times over the safe levels. These rivers have fallen
prey to industrial toxins, killing millions of fishes and then irrigating farmlands. Most of the
pollution control mechanism need technological overhauls and remain at the mercy of profit
generation. If there is a dip in profits, these mechanisms are the first to be taken off137.
136
No Rules for Mining- http://downtoearth.org.in/node/2927
137
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Urban Bias of Environmental Issues
Pollution further means urban pollution because the twin concepts of industrialization and
urbanization have “historically” only affected the urban populations. This is also a failure on the
part of the NGO’s to persuade the Supreme Court to take a broader approach.
This insular outlook towards all things environment has caused the country to taking a detour
from principles of sustainable development. The enforcement agencies fail to understand that the
essence of sustainable development lies in balancing the interests of the always accounts for
progress and safeguarding interests of the entire community. As already illustrated by me, our
existing laws don’t have a supportive structure for the rural development through sustainable
means. The policies formed by the government have a pyramidical structure attached to them
with very little participatory means for the affected people. This leads to an unreceptive
environment when a project is initiated which serves as a distinct handicap. The government
must not expect the fact that while in policy making they exclude the effected masses due to lack
of “specialized knowledge”; the government later cannot expect complete support and resolve
of the same masses in seeing the project through.
This can also be seen in policies formed for the Schedule Tribes. The approach again wants these
people to come within the blanket of the rule as provided by the administration without question
it or being asked to participate in formulating them. Historically these tribes have always been
marginalized from mass society and for them being a part of the execution of the given law
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seems to be hogwash at best. Without any means to participate, the turn of events have hurt India
in recent times with the emergence of Naxal terrorism. The failure to garner their support has
also hurt forest management, as these tribes have essential education in reaping benefits from the
forest without exploiting the resources adversely.
The issue can be resolved best by allowing the effected people to be part of the decision making
process at the grass root level. This can only happen when they are trusted with their own destiny
and lives. When it comes to their own surroundings it is natural that they do know what is very
best for them. Change is hard to be digested thus projects must be brought in which can work
from within the existing social framework to bring out a change from within the system as
opposed to bringing an alien concept from outside to affect change.
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Failure of the Indian Executive
Two instances need to be noted when one has to observe the failure of the Indian Executive. The
first one regarding banning of plastic hand bags will be discussed further in this segment. The
second instance is that of Delhi Administrations failure to ply buses run on compressed natural
gas (CNG) within the deadlines as given by the Supreme Court138. Repeated delays gave way to
new deadlines which were routinely flouted before the capital finally had its entire fleet running
on the nonpolluting gas.
NGO’s have found that industries routinely flout environmental protection norms. This is more
evident in small scale industries139 run out of premises which are not noted well by the
enforcement agencies and often fall off the radar due to their petite productions. The larger
industries also flout norms though they have to have sufficient facilities to comply with the
standards. “Sufficient” never means fully compliable. Then again if one is caught flouting
norms, there is always an easier way to get around penalties. The Supreme Court has tried often
to make environmental auditing free of blemishes while making the heads of the enforcement
agencies personally liable. These measures have had meager responses.
The issues of car pollution emission check serve as a prominent example. Present Euro III/Bharat
Stage IV140 norms mandates that every vehicle will have to undergo emission checks in periods
138
M.C. Mehta vs Union Of India & Ors, AIR 2001 SC 1848
139
Industrial Pollution: State of the Environment 2003- http://parisara.kar.nic.in/PDF/ip.pdf
140
Bharat Stage emissions standards are emissions standards instituted by the Government of the Republic of
India (Bharat) that regulate the output of air pollutants (such as nitrogen oxides(NOx), carbon
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ranging between three to six months at Pollution Under Control Centers parked at Fuel Centers
or Garages which have received authorization to check vehicles. Regional Transport Office’s
will carry out annual tests to check fitness for standards such as emissions, safety and
roadworthiness.
There are many loopholes in this system141. These range from inadequate practices and outdated
training procedure in independent centers, faulty equipments which are not checked, malpractice
and tracking systems of vehicles which fail to meet norms. The government has also been
criticised for not having drafted a mandatory Fuel Efficiency Standard for vehicles in the
country. The government must make the labeling of Carbon Dioxide emissions mandatory for all
new vehicles. Customers must also be educated in emissions standards before buying cars.
Jai Ram Ramesh, the former Environment Minister, also called for penalties on diesel-driven
SUV’s:
“Put a penalty on the type of cars you don't want to see on the roads, which are diesel-driven
cars, SUVs. We cannot ask people to buy or not buy a particular car. But through an effective
fiscal policy, we can certainly have an impact''142.
monoxide (CO), hydrocarbons (HC), particulate matter (PM), soot, and, where applicable, sulfur oxides (SOx))
by internal combustion engine powered equipment, including motor vehicles, or other air polluting facilities or
equipment. In many cases they are similar to European emissions standards.
141
Presentation on Vehicle Emission Standards in India by K K Gandhi, SIAM
142
SUVs guzzling cheap diesel criminal: Jairam- http://timesofindia.indiatimes.com/business/india-business/SUVs-
guzzling-cheap-diesel-criminal-Jairam/articleshow/6916729.cms#ixzz1DXRehYHn
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The Government has been more concerned about the process of regulation rather than the impact
of regulation. Very little help is forthcoming from the pollution control agencies in identifying
the most feasible technology for individual projects143.
The same issue persists with the ban of plastic handbags144. Plastic bags have known to be non-
biodegradable, kill stray animals, litter the landscape and are made out of petroleum. Though
there have been many cases where the courts have issued directions; they seem to have fallen on
deaf ears. Plastic bags which do not meet standards are widely used and distributed145. There are
areas, like smaller cities and Union territories in particular which have led by example but they
are far and few in between.
144
Mr. O.P. Ratra v. Union of India
143 145
Plastic Ban in New Delhi: Is it Effective? - http://theviewspaper.net/the-plastic-ban-in-new-delhi-is-it-
effective/
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Issues with Specific Indian Laws146
The pre-independence British administration has left a lot of their bequests in India. One of them
is the system of Boards and their rigorous institution in the Indian administration. With a close
scrutiny in every Indian Environment Legislation one will find the institution of a Board to
implement the standards set by the Act. Both the Air and Water Acts set up Boards to oversee
the implementation of the policies of the Acts.
The Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of
Pollution) Act, 1981 and the Environment Protection Act, 1986 (EPA) provide the reader a law
based on firm grounds. They are exhaustive and provide possible solutions to every issue but
what holds them back are the institution of the Boards which regulate and oversee the effects of
the Act in question.
The Air Act provides for the setting up of Pollution Control Boards across the country147 confers
on them an extensive array of powers and functions. These include the duty to oversee the
enforcement of the provisions of the Act, to collect samples to check pollution, inspection of
industries, hospitals and local bodies; monitoring ambient air and stack emissions, inspection of
sites proposed for setting up of industries and to verify the suitability of the same from
146
147
Section 3(3) and Section 4 Constitute the Central and Sate Pollution Control Boards respectively as done under
the Water Act, 1974.
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environmental point of view148. The act falters in its impossible depth. It is exceptionally
extensive and this allows potential exploitation of the act as has been shown earlier in the paper.
Once the law gives out too many of its legs, it becomes easy to set foot on one and walk away
knowing the head might turn but would not be able to identify which leg was hurt.
Many major industries like coal, petroleum, electricity, iron and steel, agro-chemicals, and heavy
machines are in the public sector. Pollution Control Boards have seldom prosecuted government
nominees on the management boards of such public undertakings. The statistics show that the
Central Water Pollution Control Board has achieved convictions of only 2.8% and only under the
Air Act149.
Furthermore, with the establishment of these boards at both the central and state level, leads to
jurisdictional questions regarding the autonomy of the state boards. While the State government
is constitutionally prescribed to protect water bodies150, the Water Act causes a major fatality in
this mission. Historically the states have always disregarded this duty with interest. The major
flaw of the Act is that the states are only bound by the provisions of the act if and when they
approve to the extension of the authority of the Act on them. There are Boards set up at both the
Central and State levels which add to jurisdictional discomfort on them. This further slows down
148
Karnataka State Pollution Control Board- http://kspcb.gov.in/RTI_eng.pdf
149
150
Entry 17 in 2nd List of Schedule VII of the Indian Constitution
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effectively- or something in that affect. Similar problems are faced by the different boards in
different acts- mention.
The Environment (Protection) Act provides for collection and dissemination of information
regarding environmental pollution. Yet there is no regulatory mechanism which gives teeth to
this provision. The absence of a mechanism leaves the Authorities unprepared in the face of an
emergency especially in relation to hazardous substances and keeps the community where the
substance is found uneducated of the consequences.
The Act also gives the public to power to enforce the Act but as only Governments officials are
allowed to collect samples as evidence with sixty days to decide on the action to be taken against
the offender, the offending industry has time to clean up and prepare itself for collection of
samples. The same issue is seen in the Water Act where State Bards can be lax in their
undertaking over offences and refuse reports to the complaining citizens citing disclosures would
harm “public interest”.
There is a conflict in terms of application of the Act along with other Acts that have been
legislated. Generally more recent legislation, which conflicts with the previous legislation,
supersedes the previous legislation. Standards set by the EPA often collide with those in the
Water Act and Air Act, wherein the penal provisions of the latter applies and thus penal
provisions of the EPA remain paper tigers when it comes to the Air and Water Acts. The other
issue of conflict arises when the discharge levels vary between the EPA and the Air and Water
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Acts. Even if the Water and Air Acts have lower standards, they are applicable over the
standards of the EPA, thus compromising on the environmental protection.
The Boards are mere showpieces which serve as empty suits. Just as most government offices
are, the Boards harbor human resource which lack in training or qualification. They are not
educated in issues of the environment, are corrupt, disinterested and are effective only in state
capitals or in smaller cities, especially Union Territories which have a strict enforcement agency
or a rigorous work ethic.
The Ministry and Boards do not have the tools to check compliance, there is lack of technical
and legal capacity to review such compliance, and ineffective inspection devices hamper review
of policies and remedial action on such short comings are slow and tedious. Monetary gains for
such actions are lacking in the machinery. These Boards are essentially 'technical advisory body'
and their legal infrastructure is weakening because of low monetary incentives for lawyers which
slow down execution of the provisions of the Acts. They are not involved in making industrial
policy and they are both numerically and technically unable to enforce the laws against
pollution151.
The Boards must not look at deterrent measures of punishments because penal provisions alone
cannot discourage violations of environmental laws. The critics say that “the risk of penalties is
151
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so low that it is more cost effective for industries to pollute than to invest in emission control
measures”152. It will be useful if it is supported by a system of incentives for better compliance.
The Boards must look at industries as the industries view themselves- profit making models.
Thus, the Boards must recognize that cost of defiance is lower than cost of compliance and
adding the penalties to it does not deter the industries. The thrust of these Boards must be on
environmental management and not the “pipe cleaning approach” when it comes to enforce
provisions towards industries and similar ventures. It must become a priority for industries to
comply with mechanisms like I.S.O. 14,000 series which is extended to provide standardisation
in environment management and I.S.O. 14001 which requires that the concerned industry
achieve continuous improvements in emission standards waste management committing
corporates to environment policies for sustainable socio economic development. Thus a
mechanism of pollution charges subsidies, enforcement incentives, marketable permits, and
deposit/return schemes would encourage the industries to not violate the law153.
Compliance is an important issue is dependent of effective decision making process. These
decisions making procedures must take into account all interests, costs and benefits which is
lacking. There is a need for a process which prevents and mitigates environmental conflicts.
Though the Judiciary is the arena for such conflict resolution, reliance on such measures burdens
the inflated legal process, is costly and is not accessible to everyone.
152
153
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The Green Tribunal has also come on criticism. It states that it will take on cases which have
“substantial question involving the environment”. This phrase has come under a lot of criticism
as it is vague and does not earmark the parameters of the Act. The Act also does not create
criminal liability for environmental offences, treating them merely as civil issues154.
Implementation of law has always been poor in India and this coupled with uncontrolled and
rapid industrialization has meant that the damage to the environment has doubled. India lacks the
infrastructure and resources to give effect to its many laws even though the spirit and the
intention behind them are versed on the positive.
154
Green Tribunal Bill- http://www.downtoearth.org.in/node/996
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j) RECOMMENDATIONS
India is in a unique position where we have all the laws that need to be there. It is in the details
that have made these laws inflexible and thus made to twist around in ways to eke oneself out of
judicial trouble. Very often these laws seem practical but are often ineffective because of their
isolated formulation. India has carried an impressive legacy of sound environmental laws
though the implementation of these laws are plagued by issues such as failure by authorities to
perform their statutory roles, lack of provision of funds and infrastructure to authorities by the
state, and runaway urbanization. Yet there is hope as the country constantly looks to create a
better administrative system.
The Indian Legislature has also taken on the responsibility to create laws which are founded on
sound international principles. India is a committed country towards creating a development
structure which is sustainable. These laws actively allow it to forge relationships with other
countries on the global platform and creating alliances and coalitions to put forward ideas which
not only represent the Indian consciousness but also those which could bring a positive change
in the world. Sustainable practices are embedded in the country’s planning process and the
following years will see the country recommit itself to creating a safer environment for its
citizens.
The urgent need at this point of time is to appoint a Minister who is an expert in Environmental
issues. Due to India’s coalition political system, Ministries are often bartered on the basis of
sheer number of representation on the Parliament floor. Change will only begin when the
Minister and the Ministry itself is empathetic towards environmental issues and can form a core
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group of experts around him. The need of the hour is to create a mechanism which is
independent, authoritative, responsive, and can effectively co-operate and co-ordinate with other
Ministries where environmental issues have a prominent stake. These coordinated activities
must create a list of common goals which will allow for minimum friction between and among
ministries and their divergent goals allowing for a mechanism where common goals and hurdles
are tackled together while keeping separate interests unhurt155. India already has a good network
of laws, and its effective implementation could bring in some well needed reforms. Policies
formulated in addition to these laws must be comprehensive with a focus to bring in innovative
yet effective solutions to the problems of the day156.
There Ministry must keep itself attuned to the realities of the ground. This can be done by
purposefully forging relations with responsible and accredited Non-Governmental organization
with proven track records of sustained good work in the various spheres of environmental
issues. The establishment of ‘Rashtriya Paryavaran Salhakar Samiti (National Environmental
Advisory Committee) within the Department of Environment, consisting of representatives
from voluntary agencies to keep the government informed about peoples’ problem and
emerging issues is a step in the right direction. This will ensure people’s participation. It will
155
India Strengthening Institutions for Sustainable Growth: Country Environmental Analysis (South Asia
Environment and Social Development Unit, South Asia Region) by the World Bank, and the Ministry of
Environment and Forests (MoEF), the Ministry of Power, the Ministry of Industry, and the Ministry of Shipping,
Road Transport and Highways, the Government of India, 2006-
http://siteresources.worldbank.org/INDIAEXTN/Resources/295583-1176163782791/complete.pdf
Last Visited on 5th May, 2012
156
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thus create greater sense of responsibility not only in the Ministry but also amongst the citizens
who will deem themselves to be true stakeholders of the environment157.
Promoting public participation should be made through a national program which raises the
knowledge and sensitivity towards the environment. This knowledge must be made accessible
not just to individuals but to the community at large. National Programs must create effective
guidelines for the various Pollution control board on public consultation with special emphasis
on public-government monitoring and enforcement structures. National Programs must also
focus on industries coming out with guidelines for public participation of the community
surrounding the establishment. These guidelines must revolve specifically around the specialty
of the industry and on how such participation could improve the project performance. Sharing
local knowledge with the governmental agencies and the industry should be facilitated which
will allow a greater sense of equality and protection to the local community when industrial
establishments are being set up158.
There must be effective use of the Right to Information (RTI) Act, 2005159. This Act is a power
tool in the hands of the common man of India. RTI has proved to be a worthy weapon in finding
157
158
159
The Right to Information Act 2005 (RTI) is an Act of the Parliament of India "to provide for setting out the
practical regime of right to information for citizens." The Act applies to all States and Union Territories of India
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answers from Governmental Agencies. As the name of the Governmental Officer’s name is
registered along with the query, delay in providing answers often leads to promotional issues for
the officer, thus the results of RTI in most cases is swift. As the question revolving the
environment and allied issues do not fall under the exception clause160 it is pertinent that the
people use this Governmental machinery to its maximum possible potential to elicit information
that could help affected people get justice. The information received from such methods must
be disseminated to the local communities which could be affected from such knowledge or lack
of it161.
Environmental agencies should streamline their public information services by regularly putting
information online and updating their data base. Along with this, they must create easy and
accessible public information centers with widely distributed offices. Like the RTI procedure, a
minimal upkeep fee will allow for maintenance of such offices. Industries must also provide for
such centers where the work done by them and its records are in easy reach for the public along
except the State of Jammu and Kashmir. Under the provisions of the Act, any citizen may request information
from a "public authority" (a body of Government or "instrumentality of State") which is required to reply
expeditiously or within thirty days.
160
RTI Act (2005), Section 8 Exemption from disclosure of information- http://www.vakilno1.com/bareacts/rti-
act/S8.html
Last Visited 18th October, 2011
161
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with updating their websites with information. In addition to the above, industries must develop
sectoral guidelines and/or share best practices to overcome specific knowledge gaps162.
The Government Environmental Agencies should develop “new generation” area-based
pollution management programs dealing with multiple sources that focus on ambient quality
outcomes. It should also review best practices methods, test them for Indian conditions and then
put them up as standards for the industry. This mechanism must also update upcoming sectors
into its data base and monitor their contribution to pollution. This methodology must be done
regularly to keep abreast with the ever progressing and new scientific advances. At the same
time they must issue new economic impact assessment studies for these standards. It will be a
win-loss setting if to save the environment or the economy, wither of the two components is
allowed to take a setback. As such, a balance must be created and thus these studies facilitate
the same. The civil society must be given an opportunity to review these standards
independently and come up with their own assessments. The Government through effective
channels must allow such reports and observations to reach policy makers for further reviews.
The industry too should collaborate with the Government in the making of these standards by
contributing economic data to make these standard much more effective and industry friendly.
162
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Industry should also develop, in collaboration with the Government a consistent framework for
integrating externalities in the regulatory regime for the power sector163.
A huge area of concern is the small and medium sized industry which cannot amalgamate into
itself the mainstream environment friendly technology due to their small size and lack of
finance. Thus the Government should create a new structure of emissions standards for these
industries which will successfully allow them to comply with specific standards set for them. At
the same time such industries should also provide training and capacity building to its
employees. The local community around these industries must also participate in the
development and monitoring of such industries and subsequent environmental programs164.
Self-reporting mechanisms must be strengthened along with good incentives given to industries
for compliance. When such compliances are met voluntarily, green ratings must be publicly
given with public assessment of their compliance. Voluntary initiatives must be similarly
rewarded and such good practices publicised. Public-private partnership must be improved to
disseminate information especially when information relates to zoning and planning activities,
and oversight of local environmental programs. In this regard giving more power to the local
self-governing groups in the grass root level will help tremendously. This gives mandates to the
163 164
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73rd and 74th Amendments165 to the Constitution. The Government must also coordinate the
development of a strategic framework for using global environmental financing instruments. It
also must review and recommend measures to improve the forestry clearance process166.
With the given situation the government needs not only to protect natural resources like air and
water from industrial damage and remove conditions which threaten flora and fauna but also
create infrastructure for waste treatment and disposal and environmentally-sound management
of industrial activities. These will necessitate investment which the private sector alone cannot
cough up. In this situation, the government must consider separate budgetary allocation for
environment restoration and protection, either through existing resources or levying an
environmental cess on industry and citizens. The government should encourage tax benefits for
environment conscious initiatives and endeavors. Taking a cue from such incentives the
industries should incorporate sustainable solutions to industrial issues as a part of their
corporate social responsibility (CSR)167.
165
The Constitution (73rd Amendment) Act, 1992 made rural democracy mandatory in creating the three tier grass
root democracy at the village, block and district levels, and transferring 29 subjects to the grass root democracy to be
managed by the elected representatives and by the electorate from the age of 18 years and above.
The Constitution (74th Amendment) Act, 1992 provisions, thus, provide a basis for the State Legislatures to guide
the State Governments in the assignment of various responsibilities to municipalities and to strengthen municipal
governance.
166
167 168
Corporate Social Responsibility by Sanjiv Agarwal-
http://www.taxmanagementindia.com/visitor/detail_article.asp?ArticleID=1119
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Through the concept of CSR corporate initiatives for the benefit of the society and environment,
are properly formulated and defined, structured and implemental using a well laid down system.
To illustrate, GAIL’s CSR Policy provides for the structure for carrying out CSR activities and
budgetary allocation of funds for CSR:
“To enhance value creation in the society and in community in which it operates and to
promote sustained growth for the society and community and to fulfill its role as a socially
responsible corporate with environmental concern. Be the leading company in natural gas
and beyond, with global focus, committed to customer care, value creation for all
stakeholders and environmental responsibility.”168
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k) CONCLUSION
With our population, extreme climate, vulnerable ecology, compliance ratio of monitored
industries being less than 50%, and the economy resting heavily on extinguishable natural
resources, sustainability is the next big challenge for the country. The new tomorrow which
India hopes to see with its economic flashlights requires an intense debate about environmental
viability. In this scenario the environmental agenda is immense. In a country like India where
dichotomy exists in everyday life, pollution and environment hazards chiefly emanate from
“poverty related risks” and “growth related risks”. Wide ranging changes from institutional re-
organisation to paradigm shift amongst the people and finally turning the lopsided industrial
approach to the environment are required at this point of time. This change will require
determination, consensus, commitment, planning, and effective execution of will and national
programs. Consultation with the public, regulated community and the various wings of the
government will become vital. Though consistent results are desirable, patience in this regard is
vital. India has risen to such national challenges before and has tremendous potential to do so
now. What is required is the faith of the people as there is a serious breakdown in trust on the
government machinery and constructive dialogue169.
169
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Though the work done by the Judiciary in this regard is praiseworthy; yet a lot can still be
expected. Similarly the executive whose arms are forever twisted in favour of political
gimmicks, corruption and wrongful human resource execution has hampered what could have
been a successful flight chartered effectively through well intended law-making and sound
judicial backing. It would be important to move quickly towards reaching a broad agreement
with all major stakeholders on the priority actions, and develop a medium- to long-term
program of implementing the agreed actions supported by necessary resources, monitorable
targets, and clear accountability mechanisms170.
Yet there is a lot to cheer for. NGO’s have constantly striven towards excellence and with
continued governmental support rural India may soon feature prominently in environmental
programs while law making and execution will begin a new journey towards effective ends.
"Blessed are the flexible, for they shall never get bent out of shape."
170
126

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PACE LAW SCHOOL, PACE UNIVERSITY

Comparative International Environmental Law Professor Nicholas Robinson

Serial Number Contents Page Number

History of Environmental Laws

Ancient India Pg. 5 – 9

An Overview of the Indian

The Constitution of Indian and

5 The Indian Legislature Pg. 21- 24

Indian Judiciary and

The Evolution of the Indian

India and International

International Law, the Indian

Comparative International Environmental Law Professor Nicholas Robinson

Restatement of Important Indian

The Wildlife (Protection) Act

Issues with Environmental Laws

10 Recommendations Pg. 117 – 124

11 Conclusion Pg. 125 – 126

Comparative International Environmental Law Professor Nicholas Robinson

Comparative International Environmental Law Professor Nicholas Robinson

b) HISTORY OF ENVIRONMENTAL LAWS IN INDIA

the administrative desires of the occupants.

Mata Bhumi Putaro Aham Prithvaiya

Comparative International Environmental Law Professor Nicholas Robinson

harmonic relationship with the nature was essential.

Ancient Hindu texts have specific teaching on environmental issues3.

 Destruction of forests is taken as destruction of the state, and reforestation an act of

sacred duty. (Charak Sanhita)

 “Resources are given to mankind for their living. Knowledge (Isha)

of using them is necessary.” - The first stanza of Isha Upanishad

environmental safeguarding takes high priority under this concept4.

Last Visited 17th March, 2012

Comparative International Environmental Law Professor Nicholas Robinson

Karma and could lead to a cyclic reaction of unfavourable life consequences5.

Kautilya, a law-maker of distinction in Ancient India, wrote about environmental protection in

foundation of legal philosophy in India. He wrote6-

doubled.” (Arthasasthra, 2.145)

Comparative International Environmental Law Professor Nicholas Robinson

According to Buddhist scholar Ven. S. Dhammika, Ashoka is significant today "With

of a more spiritually based political system."8

philosophy saw Nature as a sustainer of humanity, and harnessing it should be governed by

Comparative International Environmental Law Professor Nicholas Robinson

provides a strong philosophical base for this concept10.

ii. Medieval India

iii. British India

Development of Environmental Institutions and Laws in Pakistan by Mujahida Naureen-

Comparative International Environmental Law Professor Nicholas Robinson

and the expansion of the railway network in the country14.

Environment Protection Laws in the British Era by Bharat Budholai-

Comparative International Environmental Law Professor Nicholas Robinson

under the increasingly powerful state administration15.

Some of the important environmental legislations passed by the British were16:

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

2. The Orient Gas Company Act, 1857

3. The Indian Fisheries Act, 1897

4. The Indian Ports Act, 1901

5. The Bengal Smoke Nuisance Act, 1905

6. The Explosives Act, 1908

7. The Indian Ports Act, 1908

8. The Bombay Smoke Nuisance Act, 1912

9. The Indian Steam Vessels Act, 1917

10. The Indian Forest Act, 1927

Environment Protection Laws in the British Era by Bharat Budholai-