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ENVIRONMENTAL PROTECTION LAWS

IN INDIA: A CRITICAL STUDY OF
JUDICIAL TRENDS

A Thesis Submitted to
Department of Law
Maharshi Dayanand University, Rohtak
for the degree of
Doctor of Philosophy of Law

Supervisor: Submitted by:

DR. PREET SINGH SOM DUTT BHARDWAJ

Reader of Law Regn. No : 96-RUR- 122
Department of Law
M.D. University, Rohtak

MAHARSHI DAYANAND UNIVERSITY

ROHTAK-124001
2008
 SUMMARY
The word ‘environment’ is difficult to define. It includes the complex physical, chemical
and biological factors surrounding an organism or an ecological community. Such factors act and
interact with various species and organisms to affect their form, growth and survival. Any
unfavorable alteration of this environment is called environmental pollution. Air, water, land,
radiation and thermal are the common type of pollution. Rapid population growth, urbanization,
industrialization, deforestation and lack of public awareness and participation are the main
causes of environmental pollution. Today, environmental pollution has become global problem
and climatic change, depletion of ozone layer, acid rain, ocean pollution, desertification and loss
of tropical forests are some of the global concern. International fraternity has devised some
important principles to deal with global environmental pollution. Legislative instruments,
environmental agreements, self imposed regulations and principles devised by courts are source
of environmental laws. Desire for rapid development and excessive use of technology has led to
degradation of environmental quality. Therefore various legal instruments have been enacted to
take care of environment.
The Constitution of India contains provisions for environmental protection. It imposes a
duty on every citizen to take care and protect environment. Supreme Court had widened the
scope of fundamental rights and elevated ‘pollution free environment’ to the level of
fundamental right. Directive principles of state policy cast a duty on the state to protect
environment from degradation.
There are various remedies available against erivironmental pollution under common law
in the form of nuisance, trespass, negligence and strict liability. Supreme Court has modified the
rule of strict liability into absolute liability as far as environmental pollution is concerned. There
are nearly two hundred laws in India which directly or indirectly regulate and control
environmental pollution. Some of laws are; Indian Penal Code, Criminal Procedure Code, The
Police Act, Civil Procedure Code, Specific Relief Act, Factories Act and Consumer Protection
Act. Supreme Court has elaborated the importance of these general laws for environmental
protection in Ratlam Municipality case.
Parliament has passed special laws to abate and control the pollution. Some of these Acts
are passes as a result of international obligations. Most of these laws are subject specific and
deals in detail with every aspects of pollution. Air (Protection and Control of Pollution) Act,
1981; Water (Prevention and Control of Pollution) Act 1974; Environment Protection Act, 1986;
Public Liability Insurance Act, 1991; Wild Life (Protection) Act, 1972; National Environmenl
Tribunal Act, 1995; National Environment Appellate Authority Act, 1997 are some of important
laws dealing with environmental pollution.
The legislature passes a law not to be locked in a statute book but to attain its prescribed
objectives and therefore, the law has to be seen and interpreted in the correct perspective. But the
concerned governments, on the contrary, not only violated the norms and procedure but also
adopted sidelines and bypasses to achieve their own objectives. In this game mostly the greenery,
the very basis of the existence of life, was given a go by to accommodate the non-forest purposes
under one or the other pretext. The court at time came down heavily against such illegal actions
and exposed and decried the dictatorial approach of the government. The function of the
judiciary is to administer justice and the concerned litigation parties are required to comply with
its orders. The case law shows that their orders/ directions had been subjected to more
disobedience rather than compliance. Further, the erring governments, corporations, industries
and individual polluters ran from court to court waiting for the hot iron to cool down or
expecting, at some stage, a favourable order in their case to be delivered. The result has been that
the governmental actions have attracted large number of litigations. On the top of this there was
non-compliance with the judicial process and at time delaying tactics by the concerned
governments. A soft approach in these matters has put at stake the credibility of the Indian
judiciary.
It is suggested that there should be a regular review of environmental laws by legislature
in the light of problem faced by the executive in their implementation. The legislative measures
can succeed only through the involvement of industries and people. Therefore, industries and
chambers of commerce should be given a prominent role in environmental decision making. In
this non-eompliers’ world, the legislature must equip themselves to take a stock of the fate of
their efforts rather than remaining a spectator in such illegal games. It is the time that the
sanctions of ‘contempt of the house’ must be used against the habitual environmental offenders
and non-compliers. Further, the house in order to maintain its credibility must oversee, through
its select committee of ‘Green Members’, an effective implementation of the output of its
legislative powers.
There must be dedicated research and development facility for the production and use o
environmental friendly technologies. Cleaning the environment has the potential of acquiring th<
status of an industry but would require large-scale promotion of research and development
There exist a number of possibilities in various sectors where pollution levels could be reducei
but these suffer for want of advanced technologies, which could only be developed througl
research. In the energy sector, new technologies for environmentally sound energy systems
including new and renewable energy sources and nuclear energy, improving energy efficiency
improving environmental management in mining are potential areas for research when
substantial reduction in pollution could be achieved. In the transport sector, which contribute
greatly to air pollution through vehicular emissions, research for technology improvement b;
developing efficient multi-valve engines, catalytic converters and microprocessors to maintah
air fuel ratio etc could yield good results in abating pollution. Enhancing productivity an<
minimising wastes through efficiency improvement programmes would lead to substantia
reduction in waste generation thereby directly reducing pollution. The need to develop cleane
production systems in many processing industries and improving productivity acquire
importance for research. India has a large potential to generate electricity through wind and sola
power. In fact solar electricity generation technologies are promising future options fo
renewable energy supply. An outcome of greater use of wind and solar technology would be th<
mitigation of carbon emissions. These environmentally friendly technologies are only at ;
nascent stage of development and it would require adequate research inputs to perfect thess
technologies. These are some of the key areas where research in our country should focus in th<
coming years.
The judiciary must see that the dormant penal sanctions under the different environmenta
laws against the ‘Offences by Government Departments’ are put to adequate use so that official:
playing foul with the Indian environment, are made accountable. The weapon of ‘contempt o:
court’ should be activated against the naked violations of the court’s orders by the habitua
environmental offenders who must be booked and taught a lesson. Moreover, justice requires the
judiciary to keep track of implementation of its judgments/ orders through an authority/ agency
created by it which shall apprise the judiciary in this regard from time to time.