Environmental Law in India and their role in actually mitigating climate

change

Like other developing countries, there has been rapid degradation of the environment in
India. It is due to overexploitation of resources, more and more reliance on the old and
conventional sources of energy, population explosion, urbanization, etc. 1 India has always
been keen on environmental protection and it adopted various laws and policies to mitigate
the climate change. The Constitution of India contains several provisions to protect
environment which cast a positive role both on the state 2 and citizens3 to safeguard it. Apart
from this, the parliament has enacted laws from time to time to counter the menace of
environmental degradation in India. In this part, we have figured out some of the key
legislation regarding environmental protection in India. These are:

1. The Water (Prevention and Control of Pollution) Act 1974: -

It is one of the earliest environmental legislations in India that deals explicitly with
pollution and mechanism to control it. This was enacted by the parliament of India in
1974 in accordance with the provision mentioned under Article-252 4 of the
Constitution of India. Section-95 of the Act provides power to take emergency
measures in case of pollution of well or streams caused due to release of some
obnoxious or poisonous substance. Different penalties have been prescribed under
section-41 to 45 A of the water Act. Section-41 prescribe a provision of fine and an
imprisonment up to 7 years for violation of orders or any direction prohibiting
discharge of any polluting materials into stream, lake or land. Section-45 A of the Act
provides for residuary penalty provision. It gets applicable in such cases when no
penalty for an offence has been provided at any other places of water Act. Apart from
this, at various instance the court has applied the doctrine of “polluter pays principle”
as well and accordingly held them liable to pay compensation.6

2. The Air (Prevention and Control of Pollution) Act 1981: -

1
Dr. Paramjit S. Jaswal, Dr. Nishtha Jaswal and Vibhuti Jaswal, Environmental Law, 175 (5 th ed. 2021).
2
Article-48 A
3
Article-51 A
4

6
M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388.
 Air pollution has an adverse effect on human beings and environment. According to a
report about 25 lakh people dies every year due to toxic air. The counts of death in
urban area due to the air pollution is rising every year. Realizing the menace of air
pollution, the government of India enacted The Air (Prevention and Control of
Pollution) Act 1981. It was enacted in pursuant of Article-2537 of the Constitution of
India to give an effect to the decision and goals set in the United Nation Conference
on the Human environment which took place in Stockholm in June 1972. The aim and
objective of this Act is to provide a mechanism to control, prevent and mitigate the air
pollution.
The Act provides wide ambit of power to the central and state government to take
decisive measures to safeguard environment. Section-19 of the Act is an important
regulatory trigger, since it empowers the State Government to designate regions as
"air pollution control" zones, prohibit the use of fuel, or burn other material. Section-
20 authorizes the state government to issue guidelines to Motor Vehicle Registration
authorities to comply with the standard laid down by the state board. Section-37
prescribes imprisonment for the term up to seven-years in case of failure to comply
with the provision issued by the authority under various provision such as section-21,
section-22 or section-31-A. Section-40 of the Air Act is based on the principle of
vicarious liability. It states that if an offence is committed by a company, every person
who, at the time of offence is directly in charge of company for the conduct of
business would be liable and punished accordingly, subject to the condition that the
offence should not be committed without his knowledge.
3. The Environment (Protection) Act 1986: -
The continue declination of environment has an adverse effect on survival of living
creatures. Realizing the potential need to save the environment from further
degradation, the parliament has enacted the most comprehensive law relating to
environment protection known as “The Environment (Protection) Act 1986.” The Act
was enacted to implement the decision taken at the Stockholm conference.
The objective of this Act is to ensure sustainable development and to provide for
deterrent punishment to those who jeopardize the human environment, protection and
well-being. Section-15 of the Act has provision that if in case one would not comply
with the rules and regulations made under this act, he/she shall be liable for

7
 imprisonment up to 7-years along with fine. Further, Section-16 incorporates the
principle of vicarious liability, if in case when offence is committed by a company.
Similarly, there are other Rules under the Environment Protection Act, such as the
Hazardous Wastes Rules, Bio-Medical Waste Rules, Municipal Waste Management
Rules, which the State Pollution Control Board administer as entities under the
Environmental Protection Act, accountable to the Central Pollution Control Board.

Only making stringent laws to combat environmental pollution is not a

solution

The various provisions summarized above appear to be the most exhaustive in nature. It
seems that we have done enough to safeguard our environment and there is nothing to do
anything more. However, this is not the case. The various latest reports and observation
suggests that India has failed to successfully protect its environment. According to pollution
Index by city 2021 Mid-year report, there are three Indian city in top-10 list. The latest report
of the IPCC is worrisome for India. It forecasts that India would be among the countries
worst hit by rise in global earth’s temperature due to global warming. These phenomena
would lead to the melting of glaciers and eventually rise in sea level which possess a serious
threat to coastal cities like Mumbai, Chennai, Kolkata and Vishakhapatnam etc. In the plains,
winter precipitation would be waning causing water scarcity, shrinking grasslands and
prompting a fodder crisis. The evil consequences of climate change can be felt easily from
exhibiting circumstances. In 2019, Chennai hit the headlines for being one of the first major
cities in the world to run out of water—trucking in 10 million liters a day to hydrate its
population. Now a question that arises here is that why India lags behind in ensuring a better
environment? Why its laws are not effective in curbing down the menace of environmental
degradation?

It is important to understand that only making laws are not inadequate. The law needs to be
implemented effectively. Legislating without the strong political will to implement and
monitor its effectiveness is futile. In most of the cases, offenders go escaped. It is a tragedy of
the nation that none of political party in India in its manifesto talks of giving a healthy
environment. This show state’s apathy towards environment. There are certain key flaws in
existing laws as well and it need to be modified.
………………………………………………………...
 Way Forward and Conclusion

Climate change is a very sensitive issue and hence, it is utmost importance to protect it from
any further degradation. The existing plan on climate change need to be revisit and some
changes should be made. The Environment Protection Act must be changed from a standard-
setting to an objective-oriented law focusing on environmental quality, with one of the goals
being to limit climate change.8 State governments and pollution control boards should be
empowered to implement the more rigorous penalties under the Environment Protection Act
(rather than being limited to those under the Air Act), and sample collection and evidentiary
standards for proving air pollution should be upgraded. The violation of environment laws
not only affect existing quality of life but also affect future generation by creating an
ecological imbalance. Further, it is very essential that people should be more concerned of
their duties. This could be done by raising awareness. An effort should be made to improve
the working of existing institutionalism mechanisms.

8
Chandra Bhushan and Tarun Gopalakrishnan, Environmental Laws and Climate Action, IFOREST, 58, 59,
(2021).