Chapter IV

CLIMATE CHANGE AND DISASTER MANAGEMENT-

CONSTITUTIONAL AND STATUTORY PROTECTION
IN INDIA

INTRODUCTION

Climate change is a major challenge for developing countries like India

that face large climate variability and are exposed to enhanced risks from
climate change. Climate change will also significantly impact the economic
growth and social development of India, where eradication of poverty is the
first and overriding priority. It is for this reason that India has a huge stake in
the multilateral climate change negotiations that are taking place under the
purview of United Nations Framework Convention on Climate Change
(UNFCCC).

No single country causes the problem, no single country can cure it, and
only by collective community action can that tragedy be avoided.1 India is also
not immune from the impact of global warming and climate change. Any sharp
rise in sea level could have a considerable impact on India. The United Nations
Environment Programme included India among the 27 countries that are most
vulnerable to a sea level rise.2

Unfortunately, India is among the countries that will suffer the most
serious consequences as a result of global warming. The impact is already
being felt. 3 In India, climate change could represent additional pressure on
ecological and socio-economic systems that are already under stress due to

1
Fred L., Morrision and Rudiger Wolfrum, International, Regional and National Environmental Law,
Netherland, Kluwer Law International, 2000, p.167.
2
H.A.C. Prasad, J.S.Kochher, “Climate Change and India: Some Major Issues and Policy
Implications.” Department of Economic Affairs, Ministry of Finance, government of India, March
2009,p.8
3
R. Ramchandran, “Himalayan Concerns”, Frontline, March9, 2007, p.14.

208
rapid urbanization, industrialization, and economic development. With its huge
and growing population, a 7500-km long densely-populated and low-lying
coastline, and an economy that is closely tied to its natural resource base, India
is considerably vulnerable to the impacts of climate change.

Increases in temperature and seasonal variability in precipitation are

expected to result in more rapid recession of Himalayan glaciers. In fact, the
Gangotri glacier is already retreating at a rate of 30 meters a year. According
to the UN report, in the Himalayas, rapidly melting glaciers will cause floods
followed by a dip in river flow. The decrease could see the Gangetic plans turn
infertile. Cholera and malaria would increase because of floods. Cereal yields
in such Asia could drop by 30 per cent by 2050, devastating an agriculture-led
rural economy like India. Food security and loss of livelihood along with
cultivable land is a nightmarish scenario.

The country is extremely vulnerable to the possible impact of climate

change, especially sea-level rise and shifts in monsoon cycles, because
agriculture contributes approximately 30 percent to the gross domestic product
and employs about two-thirds of the labor force.4

Thus many nations including India have understood the importance of

environmental law. At first the environmental law focused attention towards
the punitive aspects only. Gradually the state realized that prevention of
environmental degradation and pollution is more important than punishing the
persons for causing pollution. Thus the legal objective has changed from
punitive to preventive. Here comes the importance of the preventive and
protective legislations.5

Thus, there is a need of an effective response to curb global warming by

evolving norms and establishing institutions to take strategic steps to mitigate
global warming in India. To address these environmental challenges in

4
Sprinz and Martin Weifs, supra note 3, p.88
5
S.Sivkumar, “Environmental Protection: International and National Perspectives”, CULR,
2004,p.291

209
 coordination with the state governments, the central government has
established an environmental legal and institutional system to meet these
challenges within overall framework of India’s development agenda and
international principles and norms.

4.1 GENERAL LAWS

4.1.1 Pre Constitutional era

The history of the evolution of law in relation to pollution and other

environment problems can be traced to the ancient period. Form the Vedas,
Upanishads, Smritis and other ancient literatures we find that man lived
incomplete harmony with nature. From the ancient scriptures of Hindu
religion one learns that the people gave so much importance to trees, plants,
wild lives and other things of nature that they developed a long tradition of
protecting and worshiping nature. Environmental ethics has always formed an
inherent part of Indian religious precepts and philosophy.6 Yajnavalkya Smriti,
a historic Indian text on statecraft and jurisprudence, suggested to have been
written before 5th century AD, prohibited the cutting of trees and prescribed
punishment for such acts, Kautalya’s Arthashastra, written in Mauryan period,
emphasized the need for forest administration. Ashoka went further, and his
Pillar Edicts expressed his view about the welfare of environment and
biodiversity. Thus, ancient India had a philosophy of environmental
management enshrined in old injuctions contained in various scriptures and
Smritis.7

4.1.2 Law of Torts

The law of torts is largely not codified and also based on accepted
principles. Thus the common law principles including nuisance, negligence,
trespass and strict liability are the oldest form of remedies to abate the hazards

6
Bhaskar Kumar Chakravarty, “Environmentalism: Indian Constitution and Judiciary”, JILI, vol.
48,Jan-Mar 2006,p.99
7
S. Shanthakumar’s Introduction to environmental Law, 2nd edition, Nagar, Wadhwa and company,
Reprint 2009, p 75.

210
of pollution. In India the law of torts has been generally followed to provide
equity, justice and good conscience. The Supreme Court has evolved the
principle of absolute liability in addition to the above traditional categories as it
felt that the rule of strict liability laid down in Ryland v Fletcher8 was no longer
suitable in the prevailing socio-economic conditions of the country.9

4.1.3 Early Legislations

The Shore Nuisance (Bombay-Kalova) Act, 1893 was enacted to check

wastes and marine water pollution. The Oriental gas Company Act, 1857 and
the Bengal Smoke Nuisance Act, 1905 were enacted to prevent or reduce
atmospheric pollution in and around Calcutta. The Bombay Smoke Nuisance
Act, 1912 was passed to check smoke nuisance in Bombay area. For
preservation of forests, the Cattle Trespass Act 1871 and Indian Forest Act
1927 were passed. The Indian Easement Act of 1882 guaranteed property rights
of riparian owners against “unreasonable” pollution by upstream users.

4.2 THE INDIAN PENAL CODE, 1860

The Indian Penal Code 1860, enacted during the British rule, contains
one chapter (chapter XIV) on offences affecting public health, safety,
convenience, decency and morals. It deals with offences affecting public
health, safety and conveyance, which covered aspects like water, are and noise
pollution. Section 268 covers public nuisance. It defines public nuisance as
any act or an illegal omission which cause any common injury, danger, or
annoyance to the public or to the people in general who dwell or occupy
property in the vicinity, or which must necessarily cause injury, obstruction,
danger or annoyance to person who may have occasion to use any public right.
Section 269 and 272 deal with adulteration of food or drink for sale and
adulteration of drugs respectively, Section 277 lays down that, whoever,
voluntarily corrupts or fouls the water of any public spring or reservoir, so as to
render it less fit for the purpose for which it is ordinarily used shall be punished
8
918680 LR 3 HL 330.
9
M.C. Mehta V Union of India, AIR 1987 SC 1086.

211
with imprisonment for a term which may extend to 3 months, or with a fine
which may extend to Rs. 500, or with both. Section 278 lays down that
whoever voluntarily vitiates the atmosphere so as to make it noxious to the
health of persons in dwelling or carrying on business in the neighborhood or
passing along a public way shall be punished with fine which may extent to Rs.
500. Sections 284, 285 and 286 deal with negligent conduct with respect to
poisonous substances, combustible matter and explosive substances. Section
428 and 429 cover mischief to animals.

Other concerned provisions are a “negligent act likely to spread

infection or diseases dangerous to life”10 and making atmosphere noxious to
health. Thus, even the pre-constitutional statues like Indian Penal code 1860
and Code of Criminal Procedure, 1973 and the criminal sanctions contained in
specific environmental legislation and municipal Acts contain provisions for
criminal aspects relation to environment.

4.2.1 The Indian Forest Act, 1927

Although it embodies the colonial policies of the pre-independence era,

the Forest Act of 1927 remains in force. This Act consolidates, with minor
changes, the provisions of the Indian Forest

The 1927 Act deals with four categories off forest, namely, reserved
forests, village forests, protected forests, and non-government (private) forests.
A state may declare forestlands or waste lands as reserved forests, and may sell
the produce from these forests. Any unauthorized felling of trees, quarrying,
grazing and hunting in received forests is punishable with a fine or
imprisonment, or both11. Such initiatives help reduce pollution. Thus, various
legislative measures were taken during the British period for prevention of
pollution and for conservation of natural resources.

10
The Indian Penal Code 270. Act of 1878 and it’s amending Acts.
11
Shyam Divan and Amin Rosencranz, Environmental Law and Policy in India, 2nd edition, New
Delhi, Oxford University Press, 2001,p.64

212
4.2.2 Constitution and Environment Protection

The post Independence era witnessed a lot of changes in the policies of

the government with respect to environment protection especially after the
framing of the Constitution. The constitutional law has a seminal role to play
in the protection and preservation of environment. In fact the space for
environment-related legislation in the constitution is an outcome of the human
urge for development with a social face12.

Inspite of such a rich reverence shown to the earth and its environment,
as depicted in the ancient Indian scriptures, the Constitution of India, as
enacted and adopted in 1949, hardly averred to natural environment of earth
and its vitality for human health. The makers of the Constitution did not
appear to be concerned in this regard so as to give a constitutional mandate for
preservation and protection of the natural environment. It did not contain any
specific provisions on environment and even the world environment did not
find a place in the Constitution but there were certain provisions which to a
great extent had direct bearing on the environment such as improvement of
public health13, organization of agricultural and animal husbandry on modern
and scientific lines 14 and protection of natural monuments from spoliation,
disfigurement etc.15 The provision contained in Article 47 is more important as
it provides that the state shall regard the raising of the level of nutrition and the
standard of living of its people and improvement of public health as among its
primary duties. Protection and improvement of environment is inherently
included in the improvement of public health because without it public health
cannot be assured. This clearly reflects that the framers of our constitution
were very much conscious about the environmental concern.

12
Md Zafar Mahfooz Nomani, “Enviro-Constitutional Ethos in right Duty Discourse: Towards the
Creation of an equitable and Sustainable Socio-legal Order”, Indian Journal of Environmental Law,
Vol.1, 2000. P. 61.
13
Constitution of India, Article 47.
14
Constitution of India, Article 48
15
Constitution of India, Article 49.

213
 Many countries have engrafted environmentalism into their basic
constitutional laws. India by the 42nd Constitutional Amendment, 1976
enjoined the State as well as citizens to express solidarity and compassion to
biotic and abiotic entitles. The constitutionalism and environmentalism inter
woven strive to achieve to said goals through superior as well as subordinate
legislations.

The UN Conference on Human Environment held at Stockholm in 1972

exerted major influence on environmental legislations in India. A National
Committee on Environmental Planning and Coordination (NCEPC) was set up
in the department of Science and Technology in 1972 to make necessary
preparations for the Conference. The Government of India took a number of
steps to implement the decisions taken at the conference by means of
amendments to the Constitution, new legislations relating to environmental
protection and creation of institutions for implementing the legislations. The
Constitution of India was amended by the 42nd constitutional amendment and
the subject of “ecology and environment” was incorporated for the first through
Article 48A and 5 A (g)16 .

Thus, India took a bold step to include environmental protection rights

and duties in its Constitution. By incorporating Article 48A in part IV of the
constitution, which contains the directive principles of state policy, the state
has been given the constitutional mandate to protect and improve the
environment and to safeguard the forest and wildlife of the country. Since the
principles laid down in the part IV of the Constitution are fundamental in the
governance of the country, therefore it has been now the constitutional duty of
state to deal with the matters relating to environment, forest and wildlife of the
country.

16
Art. 48A – the State shall endeavor to protect and improve the environment and to safeguard the
forests and wildlife of the country. Art. 51 A (g) – it shall be the duty of every citizen of India – to
protect and improve the natural environment including forests, lakes, rivers and wild life, and to
have compassion of living creatures;

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4.2.3 The Preamble

The Preamble contains certain basis values and philosophies that India
guarantees to its citizens and strives to achieve as a nation. The Preamble states
inter alia that social, economic and political justice will be secured for all
citizens and that liberty and equality will be promoted. These values are the
cornerstone of true democracy and are universal in nature. Every nation strives
to achieve them.17

The Preamble opens with the words, ‘We, the people of India’ which
indicates the source from which the Constitution comes. i.e., the people of
India. Thus, we, the people are solely responsible for constituting India into a
“sovereign, Socialistic, and Secular, Democratic, republic”18 and in this we find
a glimpse of the concern for the society as in such a society the state pays more
attention to the social problems than any individual problems. Environmental
pollution which has emerged as one of the biggest social problems is being
regarded as a real problem affecting the society at large and thus the State is
under an obligation to fulfill basic aim of socialism, i.e., to provide decent
standard of living to all which can be possible with a pollution free
environment.

Environment as a subject, environment as a concern and environment as

a part of socio-economic-political structure in the country seems to have taken,
of. In fact it has entered the structure in such a way that no intellectual, political
or even academic discourse is complete without it. Thus, when we talk of
social, economic or political justice we must include environment, as it has
become a part of the social structure. The state, therefore, should endeavor to
take all necessary steps to secure its citizens environmental justice.19

17
http://www.lawteacher.net/internationa-law/essays/domestic-implementation-of -international- law-
law-esssay,php and also at http://ssrn.com/abstract=1771302 accessed pm 5th Jan 2014.
18
Inserted by the Constitution (42 Amendment) Act, 1976 for “Sovereign, Democratic, republic”
19
Dr. Sukanta K. Nanda, Environmental Law, Ist edn, Allahabad, Central Law Publications, 2007,p
65

215
4.2.4 Fundamental Rights

The fundamental rights are a necessary consequence of the declaration

in the preamble to the constitution that the people of India having solemnly
resolve to constitute India into a sovereign, democratic, republic. The framers
of the Indian constitution visualized the great many difficulties in enunciating
the fundamental rights in general terms and have left in the hands of the
judiciary to interpret them. 20

The Fundamental Rights in Part III and the positive mandates to the
State in the form of Directive Principles in Part IV can be compared with the
Universal Declaration of Human Rights (UDHR) and commonalities can be
traced. While enjoining the fundamental right to freedom, equality and
adequate conditions of life, in an environment of a quality, it imposes a solemn
responsibility to protect and improve the environment for present and future
generations. The Rio Declaration on Environment and Development 1992
provides that ‘human beings are at the centre of concern for sustainable
development and they are entitled to a healthy and productive life in harmony
with nature’. To promote environmentalism it calls for application and use of
law as an essential means at local, national and global levels.

Through Article 21 does not explicitly mention environment, the

Supreme Court 21 and the various High Courts of the country have given a
wider interpretation to the word “life” in this Article. According to the courts,
the right of life includes the right to live in an environment congenial to human
existence.

Thus, Right to life being the foremost human right implies the right to
live without the deleterious invasion of pollution, environmental degradation
and ecological imbalances. The Environment today should be of paramount
legal importance and the focal agenda of modern socio-legal order. The legal
20
Prof. M.P. Jain, Indian Constitutional Law, 5th edn, Nagpur, Wadhwa & Company, 2005, p. 832.
21
Subhash Kumar v, State of Bihar, A.I.R. 1991 S.C.420, 423: M.C. Mehta v, Union of India (Delhi
Crushing Case), (1992)3 S.C.C. 256,256, and Virendar Gour v, State of Haryana (1995)2, S.C.C.
577,581.

216
system, therefore, is expected to instill environmentalism, deep ecological
values and eco-centrism to bring about an equitable and sustainable socio-legal
regime. However, the task is quite assiduous because scientific and
technological developments have suppressed the harmony of creation.

4.2.5 Directive Principles of Sate Policy

The State’s responsibility with regard to environmental protection has

been laid down under Article 48-A of our Constitution, which reads as follows:
“The State shall endeavor to protect and improve the environment and to
safeguards the forests and wildlife of the country”.

India’s constitutional commitment towards environmentalism, under

Directive Principles, endeavors to protect the environment and continuously
improve its status. The constitutional duty entrusted upon the state to protect
and improve the natural environment is based on the “Doctrine of Public
Trust”.

By incorporating Article-48-A in part IV of the Constitution, which

contains the directive principles of state policy, the state has been given the
constitutional mandate to protect and improve the environment and to
safeguard the forest and wildlife of the country. Since the principle lay down
in the part IV of the Constitution are fundamental in the governance of the
country, therefore, it has been now the constitutional duty of the state to deal
with the matters relating to environment, forest and wildlife of the country.
While the executive and legislative wings of the state are implementing the
directive principles by policy decisions and appropriate legislations, the judicial
wing is also implementing them through judicial activism.

4.2.6 Fundamental Duties

The 42nd constitutional amendment did not confine the constitutional

obligation to protect and improve environment only in the hands of the state
but brought the obligation down to the level of the citizens also by

217
incorporating Article 51 A(g) in a newly introduced part, namely part, IV-A of
fundamental duties. This amendment is considered to be a revolution, as it was
not

Only first of its kind in constitutional history expressing concern for

environment and its Protection, but it also accorded recognition to Buddhist
and Gandhian environmental ethics, as Article 51 A (g) made it a fundamental
duty for all the citizens of Indian not only to protect and improve the natural
environment but also to have compassion for all living creatures. Another
significant aspect of Articles 48 A and 51 A (g) is that the state and its citizens
shall not only protect the environment but must also improve it.

Environmental protection is a fundamental duty of every citizen of this

country under Article 51-A (g) of our Constitution which reads as follows: “It
shall be the duty of every citizen of India to protect and improve the natural
environment including forests, lakes, rivers and wildlife and to have
compassion for living creatures”.

The Constitutional mandate to environmentalism is not only directed to

states but to citizens as well. The fundamental duty chapter is the charter of
country’s resolution towards implementation of human values, eco-ethics,
national ideology and environmentalism. It solemnly resolves to protect
improve the natural environment by adopting sympathy and compassion for
living creatures. Article 48 envisages that the state shall endeavor to protect
and improve and safeguard the flora and fauna of the country. The protection
and improvement clause appearing in both articles speaks volumes about
environmentalism and constitutionalism. Mere protection is not considered
enough in the eye of the constitution but a solemn constitutional commitment
to improve the environment and its quality coupled with kindness and
compassion towards natural entities, animals and living creatures are pointers
to environmentalism oriented values. Compassion and kindness the subject of
morality amply reflect the constitutional conscience towards environmentalism.

218
 Generally, Articles 48 A and 51 A (g) impose two fold responsibilities.
On one hand, it gives directives to the state for the protection and improvement
of environment and on the other it casts a duty on every citizen to help in the
preservation of the natural environment. Combined together it lays the
foundation for unique enviro-constitutional jurisprudence in a novel discourse
of right and duty.

Article 51 A gives effect to the declaration in Article 29 (1) of the

Universal Declaration of Human Rights, which emphasizes the duties owed by
individuals to the community at large. These duties benefit community and
also help in the full flourishing of the individual.

By the 42nd constitutional amendment the Constitution of India has

become one of the very few constitutions in the world, which have enshrined a
commitment for protection, and improvement of environment. One can now
very emphatically assert that by raising the protection and improvement of
environment to the status of constitutional law, the “third generation” human
right which is very important not only from the individual point of view but
also from the point of view of the community at large has got its due place in
the national charter of India. It is submitted that by incorporating this third
generation human right under directive principles of state policy and
fundamental duties of citizens, an endeavor has been made to make
enforcement of this right mandatory for both the state and its citizens. The
constitutional duty entrusted upon the state to protect.

There is a constitutional pointer to the state under Article 48 A not only

to protect but also to improve the environment. The neglect or failure to abide
by the pointer or to perform the duty is nothing short of betrayal of
fundamental law which the state and every citizen is bound to upload and
maintain. Other Constitutional Amendments were the two entries 17 A Forests
and 17B Protection to wild animals and birds were added in the Concurrent
List.

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4.2.7 Constitutional basis of Law and Policy relating to Climate Change

Article 21 of the Constitution is a fundamental right which reads as

follows: “No person shall be deprived of his life or personal liberty except
according to procedure established by law,” Climate Change, if unmitigated,
will directly and indirectly bear upon Article 21 rights that are guaranteed
under the Indian Constitution. This is evident in some of the early predictions
made by scientists and some preliminary observations of possible climate-
related occurrences. For example, the IPCC predicts that glacial melts in the
Himalayan region alone will increase flooding, trigger avalanches and
landslides, and cause extinction of species and ecosystems. As such,
Himalayan glaciers, including the Gangotri which is a source of the perennial
and holy river Ganga, have receded by 30 meters, endangering water supply in
the dry season. Other changes in hydrological cycles are also expected to cause
extreme drought or flood conditions in some river basins, shorten crop duration
periods to the detriment of agricultural yields, the retain biological diversity,
increase the risk of malarial outbreaks by creating conditions favorable to
disease carrying vectors, and increase cyclones in coastal regions.

Some early observations of the effects of climate change are also

becoming visible. In early 2007, an Indian farmer was reportedly forced to
abandon his ancestral agricultural land because it was part of one of two islands
submerged in the Sunder bans region. Another farmer faced a similar threat
temporarily. Absent compensation and support from their government, the
former moved to urban areas in search of alternative livelihood, whereas the
latter stayed on despite the risk of future flooding and limited access to food.
Both incidents, which have been attributed to climate change related sea level
rise, portend the fate of some of the nearly 65% of India’s population that is
dependent on agriculture, forestry and fisheries for a living. 22

22
Benjamin J Richardson (ed), “Climate Law and Developing Countries”, UK : Edward Elgar
Publishing Limited, 2009,p.69.

220
 Thus, climate change will affect not only the economic growth of India
but more importantly the wide array of fundamental rights – to life, to
livelihood and to health that have been guaranteed under the Indian
Constitution. Pursuing constitutional remedies, however, presents risks as well
as opportunities.

Bringing climate change within the constitutional dialogue may not only
be strategically desirable, but may be the only viable option in India to
compensate victims for their loss and, more importantly, to deter continuing
GHG emissions in India. The Indian Constitution, could serve as a potential
basis for pursuing climate change litigation within India, not only because of its
substantive provisions but also because the Supreme court of India has
facilitated enforcement of fundamental constitutional rights by relaxing several
formal procedural rules, which generally Impede access to courts. Thus, the
presence of substantial threats of climate-related violations should be sufficient
to invoke the Court’s writ jurisdiction under Article 32.

Thus the basic law of the land enjoins both the state and the citizen to
protect the environment and conserve the better part of it. The regulation of
environmental area began in the colonial period with forest related legislation
and now it includes the specific legislation in the areas like water, air, forest,
wildlife and the Environment (Protection) Act 1986. Specific environmental
legislations have met more success, but the substances and administration of
the above legislation have widely been criticized.

4.3 SPECIAL LAWS & HISTORY

In addition to the Constitutional mandate, India has a number of national

policies governing environmental management, including the National Policy
on Pollution Abatement (NPPA, 1992) and the National Conservation Strategy
and Policy Statement on Environment and Development (NCS/PSED,1992),
While these national policies are not judicially enforceable, they serve as
guiding principles for the central and state governments to follow.

221
 The NPPA encourages the use of economic instruments to complement
traditional command-and control approaches to pollution abatement. To
integrate environmental considerations into decision making at all levels, the
policy adopts the following guiding principles:

i. Prevention of pollution at source

ii. Adoption of best available technology
iii. The polluter pays principle
iv. Public participation in decision making.

The NCS/PSED provides an overarching policy framework on

environmental management, including conservation of natural resources and
economic development. Key instruments for promoting environmental change
include conducting environmental impact assessments, developing educational
campaigns, and ensuring public participation. As the nodal agency, the
Ministry of environment and Forests (MOEF) are responsible for implementing
the NPPA and the NCS/PSED. 23

4.3.1 National Environment Policy, 2006

National Environment Policy, 2006 outlines essential elements of

India’s response to Climate Change. These, inter-alia, include adherence to
principle of common but differentiated responsibility and respective
capabilities of different countries, identification of key vulnerabilities of India
to Climate change, in particular impacts on water resources, forests, coastal
areas, agriculture and health, assessment of the need for adaptation to Climate
Change and encouragement to the Indian Industry to participate in the Clean
Development Mechanism (CDM). 24

The primary objective of any legislation is to ensure social justice and

well-being through enforcement of certain codes of conduct, Legislation for

23
http://www.occd.org/environment/ourreach/37838061.pdf accessed on 7th March 2014.
24
Lok Sabha Secretariat Parliament Library and reference, Research, Documentation and Information
Service (LARRDIS) Climate Change-India’s Perspective at http://164.100.47.134/intranet / Climate
Change- India’s Perspective, pdf accessed on 7th March 2014.

222
environmental protection is also based on the recognition of the fact that it is
necessary to abide by the requirements to prevent damage to the environment,
which is a common property.

4.3.2 Legislative Framework of regulation of Global Warming in India

There is a dichotomy in environmental protection and economic

development through industrialization. A possible compromise between the
two is conceived in the form of sustainable development. It aims at economic
development without inflicting any serious harm to the environment. It aims at
economic development without inflicting any serious harm to the environment
or tilting ecological balance. This is serious concern to a developing country
like India. Thus preservation and conservation of environment have become
the objectives of legal thinking in this millennium, along with policies
governing economic development. There are about two hundred laws dealing
with environmental protection both before and after independence in India.
However, the pre-independence laws have not dealt with environmental
protection exclusively.25

Subscription to internal legal arrangements and commitment to

implement them through ratification, without the necessary national
preparation for the same in putting across the Indian points of view, in
international for a, have led to making of laws to fulfill our international
obligations.26

The year 1972 marks a watershed in the history of Environment

Protection in India. In this year The Stockholm Declaration which may be
considered as the Magna Carta of the Environment declared: (a) 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 well-being and (b)

25
Michael R. Anderson, Individual Rights to Environment Protection in India” in alan e/ Boyle and
Michael R. Anderson (Eds). Human rights Approaches to Environmental Protection, clarendon
Press (1996), pp. 199-200, CULAR, 2004 S.Sivakumar.
26
M.K.Ramesh, “Environment Justice Delivery in India: in India: In Context”. Indian Journal of
Environmental Law, Vol, 2, 2002, 9.12.

223
Man bears a solemn responsibility to protect and improve the environment for
present and future generations. The conference is of particular significance to
India as our country expressed its policies and concern over environmental
protection and at the same time the conference initiated a series of
environmental legislations in India. 27 India was represented by the Prime
Minister Smt. Indira Gandhi who while addressing the Conference brought on
the forefront the peculiar environmental problems of India.28

The views expressed at the Stockholm Conference forms a core part of

the basic environmental philosophy of India that found expression in various
governmental policy pronouncements in subsequent years.

After the advent of Stockholm Conference in 1972 there was a

significant change in the concept of environmental protection in India. India
has enacted several legislations to protect and conserve the environment. The
major environmental concerns of India were focused on water pollution, air
pollution, soil erosion, deforestation, desertification and loss of wildlife. The
most challenging problem in protection of environment is the Nation’s desire to
industrialize faster. 29 Most of the environment related laws enacted by the
Parliament have been based on Articles 252 and 253 of the Constitution. 30

27
Dr. J.L. Aparajit and Miss. Adhara Badhe, “Judicial ‘response towards the Protection of
Environment”, Journal of Indian Legal thought, Vol. 197, 2003,p.122.
28
She emphasized that: “poverty and need” are the biggest polluters. She exclaimed that, “the
environmental problems of the developing countries are not the side effects of excessive
industrialization but reflects the in-adequacy of the development. The rich countries may look upon
the development a cause of environmental destruction, but to us it is one of the primary means of
improving the environment for living or providing food, water sanitation and shelter of making the
desert given and the mountain habitable. Hence the view point of developed countries is that
environmental problems were an abjection of industrialization and their suggestion for no growth
policy as the only viable means of protecting the biosphere. “India shared the view along with other
developing countries that environmental problems are mostly due to lack of development rather
than excessive development.
29
R.C.Trivedi, “Laws and Institutions for Control of Pollution in India”, Chartered Secretary,
September 2002, p.1257.
30
Art. 252 (1) – if it appears to the Legislature of two or more States to be desirable that way of the
matters with respect to which parliament has no power to make law for the states except as provided
in Art.249 and 250 should be regulated in such states by Parliament by Law, and if resolutions to
that effect are passed by the all the houses of the Legislatures of those States, it shall be lawful for
parliament to pass an Act regulating that matters accordingly, and any Act so passed shall apply to
such state sand to any other States by which it is adopted afterwards by resolution passed in that
behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of the
State. (2) Any Act so passed by parliament may be amended or replaced by an Act of parliament

224
Some of these legislations are regulatory while some are punitive and others
prevent the damage to the environment.

Environment statutes are regarded as ‘beneficent’ legislations, enacted

to advance the directive principals of state policy contained in Article 48A of
the Constitution. Being beneficent legislation, it is the duty of the court to
adopt an interpretation favoring ecological preservation. Another related rule
requires courts to adopt a ‘purposive’ interpretation, or an approach that
advances the purposes that the legislature had in mind when enacting the law.
Thus various national laws for the prevention and control of industrial and
urban pollution which also aim at combating global warming have been
enacted.

4.3.3 The Forest (Conservation) Act, 1980

Alarmed at India‘s rapid deforestation and the resulting environmental

degradation, the Central Government enacted the (Conservation) Act in 1980.
This act was adopted to protect and conserve forests. The Act restricts the
powers of the state in respect of de-reservation of forests and use of forestland
for non-forest purposes.

As amended in 1988, the Act requires the approval of the Central

Government before a sate ‘de reserves’ a reserved forest, uses forestland for
non-forest purposes, assigns forestland to a private person or corporation, or
clear forest land for the purpose of reforestation. An advisory Committee
constituted under the Act advises the center on these approvals.

It prevents even the State Governments and any other authority de-
reserves a forest which is already reserved. It prohibits forestland to be used for
non-forest purposes, except with the prior approval of the central government.

passed or adopted in like manner but shall not, as respects any states to which it applies, be
amended or repealed by an Act of the legislature of that states. Art. 253 Notwithstanding anything
in the forgoing provisions of this Chapter, Parliament has power to make any law for the whole
orany part of the territory of India for implementing any treaty, agreement or convention with
anyother country or countries or any decision made at any international conference, association or
other body.

225
This Act was passed to prevent deforestation, which results in ecological
imbalance and environmental deterioration resulting in global warming.

4.3.4 The Air (Prevention and Control of Pollution) Act, 1981

To implement the decision taken at the United Nations Conference on

the Human Environment held at Stockholm in June 1972 Parliament enacted
the Air Act. The Act’s statement of objects and reasons contains the
government’s explanation of the contents and the scope of the law, and its
concern for the ‘detrimental effect (of air-pollution) on the health of the people
as also on animal life, vegetation and property’.

The Air Act’s framework is similar to the one created by its predecessor,
the Water Act of 1974. To enable an integrated approach to environmental
problems, the Air Act expanded the authority of the central and state boards
established under the Water Act, to include air pollution Control and states not
having water pollution boards were required to set up air pollution boards.

The objective of this Act is to provide for the prevention, control and
abatement of air pollution, for the establishment, with a view to carrying out
the aforesaid purposes, of Boards, for conferring on and assigning to such
Boards powers and functions relating thereto and for matters connected
therewith.

To counter the problems associated with air pollution, ambient air

quality standards were established, under the 1981 Act. The Act seeks to
combat air pollution by prohibiting the use of polluting fuels and substances, as
well as by regulating appliances that give rise to air pollution. Under the Act
establishing or operating of any industrial plant in the pollution control area
requires consent from state boards. The boards are also expected to test the air
in air pollution control areas, inspect pollution control equipment, and
manufacturing processes.31

31
http://envfor.nic.in/divisions/ic/wssd/doc2/ch.2,html accessed on27th May 2014.

226
 Increase in Air pollution contributes to Global Warming and the major
sources of air pollution are industrial emissions from thermal power plants,
cement plants, petroleum refineries and chemical industries, automobile
exhaust, house hold burning of fossil fuels and other carbonaceous matter
sources like dust storms and forest fires etc.

Therefore, to reduce air pollution and combat global warming Chapter

IV of the Air Act, 1981 from Sec.19 to 31 A contains provisions for the
prevention and control of Air pollution.

4.3.5 The Environment Protection Act, 1986

The Environment Protection Act (EPA) was enacted in the aftermath of

the Bhopal gas tragedy in 1984 calming more than 3000 lives. The Statement
of Objects and Reasons of this Act refers to the decisions taken at the
Stockholm Conference in June 1972 and expresses concern about the decline in
environmental quality, increasing pollution, loss of vegetal cover and
biological diversity, excessive concentrations of harmful chemicals in the
ambient atmosphere, growing risks of environmental accidents and threats of
life system.

The EPA is an ‘umbrella’ legislation designed to provide a framework

for Central Government coordination of the activities of various central and
state authorities established under previous laws, such as the Water Act and Air
Act. It is also an enabling law, which articles the essential legislative policy on
environmental protection and delegates wide powers to the executive to enable
bureaucrats to frame necessary rules and regulations. 32 Under this Act, the
central government is empowered to take measures necessary to protect and
improve the quality of the environment by setting standards for emissions and
discharges; regulating the location of industries; management of hazardous
wastes, and protection of public health and welfare. The scope of the EPA is
broad, with ‘environment’ defined to include water, air and land and the inter
32
P.K.Goel, K.P. Sharma, “Environmental Guidance & Standards in India”, ist edn. Jaipur, Techno
Science Publications, 1996,p.66

227
relationships which exist among water, air and land, and human beings and
other living creatures, plants, micro-organisms and property. ‘environmental
pollution’ is the presence of any environmental pollutant, defined as any solid,
liquid, or gaseous substance present in such concentration as may be, or may
tend to be, injurious to the environment.33

Section 31, of the Act empowers the Center ‘ to take all such measures
as it deems necessary or expedient for the purpose of protecting and improving
the quality of the environment and preventing, controlling, and abating
environmental pollution’.

Section 7 of the EPA prohibits the discharge or emission of

environmental pollutants in excess of the prescribed standards. To implement
this mandate, the government has framed the Environment (Protection) Rules
of 1986 (EPR). The standards are set out in the schedule appended to the
EPR.34

This act provides for Environment impact assessment (EIA) which is the
first attempt at a comprehensive statutory EIA programme which began on 27
January 1994 when the Union Ministry of Environment and Forests issued a
notification dealing with mandatory EIA report, an Environment management
plan, details of the public hearing and a project report to the impact assessment
plan, details of the public hearing and a project report to the impact assessment
agency for clearance, with further review by a committee of experts tin certain
cases. The impact assessment agency is the ministry itself.

This Act provides for Environment Impact Assessment (EIA) which is

the first attempt at a comprehensive statutory EIA programme which began on
27 January 1994 when the Union Ministry of Environment and forests issued a
notification dealing with mandatory EIA. The notification mandates a public
hearing and requires the project proponent to submit an EIA report, an
environment management plan, details of the public hearing and a project
33
See Sec.2 (b) and (C) of E.P. Act, 1986.
34
See Rule 3 of EP Rules 1986

228
report to the impact assessment agency for clearance, with further review by a
committee of experts in certain cases. The impact assessment agency is the
ministry itself.

This Act also provides for the Eco mark Scheme wherein 1991, the
Department of Environment, Forests and wildlife announced a scheme for
labeling environment friendly products. The objects of the scheme are to
encourage manufacturers to introduce environment friendly products, reward
genuine initiatives to reduce adverse environmental impacts and assist
consumers in making an informed, responsible choice while purchasing goods.
The label known as ‘Eco mark’ may be used by the manufacturers of the
consumer goods who meet the environment criteria notified by the Central
Government for the purpose of the scheme. Though qualification criteria have
long been published for a number of goods such as soaps, detergents, paper and
paints the scheme has yet to gain acceptance.

From time to time the central government issues notifications under the
EPA for the protection of ecologically-sensitive areas or issues guidelines for
reducing pollution to mitigate global warming.

4.3.6 The Factories Act, 1948

The primary aim of the 1948 Act & amended in 1987 to ensure the
welfare of workers not only in their working conditions in the factories but also
their employment benefits. While ensuring the safety and health of the
workers, the Act contributes to environmental protection. The Factories-Act,
1948 provides that the liquid effluents, gases and fumes generated during a
manufacturing process should be treated before their final disposal to minimize
the adverse effects. During this period the focus of economic policy was on
planned economic development in a mixed economy framework. The
dominant policy objectives were economic growth. Employment generation,
balanced regional development and equity.

229
 The Act contains a comprehensive list of 29 categories of industries
involving hazardous processes, which are defined as a process or activity where
unless special care is taken, raw materials used therein or the intermediate or
the finished products, by-products, wastes or effluents would cause material
impairment to health of the persons engaged Result in the pollution of the
general environment but after the Amendment in 1987 as a post-independence
statute has explicitly showed concern for the environment. Soon after the
decisions of the Supreme Court in Shriram Gas Leak Case35 and experience of
Bhopal Tragedy, the 1987 amendment to the Factories Act introduced special
provisions on hazardous industrial activities.

The 1987 amendment empowers the states to appoint site appraisal

committees to advice on the initial location of factories using hazardous
processes. The occupier of very hazardous unit must disclose to her workers
the Factory Inspector and the local authority all particulars regarding health
hazards at the factory, and the preventive measures taken. The occupier is
required to maintain workers, medical records and must employ operations and
maintenance personnel who are experienced in handling hazardous substances.

4.3.7 Public Liability Insurance Act, 1991

The Public Liability Insurance Act (PLIA), 1991 is enacted ‘to provide
for mandatory public liability insurance for installations handling hazardous
substances to provide minimum relief to the victims’. Such insurance apart
from safeguarding the interests of the victims would also provide cover and
enable the industry to discharge its liability to settle large claims arising out of
major accidents. If the objective of providing immediate relief is to be achieved
the mandatory public liability insurance should be in the principle of “no fault”
liability as it is limited to only relief on a limited scale. The Act covers
accidents involving hazardous substances and insurance coverage for these.
Where death or injury results from an accident, this Act makes the owner liable

35
M.C.Mehta v. Union of India AIR 1987 SC 965.

230
to provide relief as is specified in the Schedule of the Act. The PLIA was
amended in 1992, and the Central government was authorized to establish the
Environment Relief Fund, for making relief payments.

However, availability of immediate relief would not prevent the victims

to go to courts for claiming larger compensation it mandates that business
owners operating with hazardous substances take out insurance policies
covering potential liability from an accident and establish Environment Relief
Funds to deal with accidents involving hazardous substance. The National
Environmental Appellate Authority Act of 1997 requires the central
government to establish an authority to hear appeals on area restrictions where
industrial operations will not be carried out or will be carried out with certain
safeguard measures. In 2000, Parliament enacted the right to information Act
designed to promote greater transparency and accountability of the government
and public participation in decision-making.

Society’s responses to climate change, be they in the realm of adaptation

or mitigation, will also entail liabilities for insurers and their customers. The
insurance industry faces material liability exposures to both the causes and
consequences of climate change and the costs of adaptation. Climate change
will clearly affect insurers as policy holders suffer damage from extreme
weather events, climate change will also implicate insurers in other ways as
climate –related liability risks increase.

Liability claims related to climate change have already emerged in

United states, Australia, Germany, New Zealand, the United Kingdom, and
perhaps elsewhere. For almost a decade now, plaintiffs have tried to sue
various industries for damages resulting from greenhouse gas emissions and
climate change. Therefore under this Act also such liabilities may incur in the
near future.

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4.3.8 The Electricity Act, 2003

This Act seeks to create a framework for the power sector development
by measures conducive to the industry. Electricity Act does not explicitly deal
with environmental implications of activities related to power transmission.
The applicable legal provisions under this Act are as follows. Section 68(1)
sanction from the Ministry of Power (MOP) is a mandatory requirement for
taking up any new project. 36 The development of grid interactive renewable
power took off with the coming into force of Electricity Act 2003 (EA 2003),
which, among other things, provides for regulatory interventions for promotion
of renewable energy. 37

The National Tariff Policy (NTP) 2006 requires the State Electricity
Regulatory Commissions (SERCs) to fix a minimum percentage of Renewable
Purchase Obligation (RPO) from such sources taking into account availability
of such resources in the region and its impact on retail tariffs and procurement
by distribution companies at preferential tariffs determined by the SERCs. NTP
has further elaborated on the role of regulatory commission, mechanism for
promoting renewable energy and time frame for implementation, etc. the policy
was emended in January 2011 to 3 per cent by 2022. Further, the National
Action Plan on Climate Change (NAPCC) suggests increasing the share of
renewable energy in the total energy mix at-least up to 15 percent by 2020.

Ministry of New & renewable energy has initiated an exercise to track

the evolving renewable power regulatory framework and develop a repository
of information in a consolidated manner. This exercise is expected to help
understand the dynamic nature of the renewable energy regulations and related
issues and also create a platform to share information on pertinent issues which
helps in mitigating global warming.

36
http://www.caretrust.in/Environmental%20laws.pdf accessed on 14th April 2014.
37
http://mnre.gov.in/information/renewable-energy-regulatory-framework/accessed on4th April 2014

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4.3.9 The Energy Conservation Act 2001

Considering the vast potential of energy savings and benefits of energy

efficiency, the Government of India enacted the Energy Conservation Act,
2001. The Act provides for the legal framework, institutional arrangement and
a regulatory mechanism at the Central and State level to embark upon energy
efficiency drive in the country. Five major provisions of EC Act relate to
Designated Consumers, Standard and Labeling of Appliances, Energy
Conservation Building Codes, Creation of Institutional Set up (BEE) and
establishment of energy Conservation Fund.

The Act became effective from 1st March, 2002 and Bureau of energy
Efficiency (BEE) operational zed from 1st March, 2002. Energy efficiency
institutional practices and programs in India are now mainly being guided
through various voluntary and mandatory provisions of the Energy
Conservation Act.38

It provides a legal mandate for the implementation of the energy

efficiency measures through the institutional mechanism of the BEE in the
central government and designated agencies in each state. A number of
schemes and programmes have been initiated and it is anticipated that these
would result in saving of 10,000 mw by the end of 11th five year plan in 2012.

To enhance energy efficiency, four new initiatives will be put in place.

These are, a market based mechanism to enhance cost effectiveness of
improvements in energy efficiency in energy-intensive large industries and
facilities, through certification of energy saving that could be traded.
Accelerating the shift to energy efficient appliances in designated sectors
through innovative measures to make the products more affordable. Creation
of mechanisms that would help finance demand side management programmes

38
http://pwermin. Nic. In/acts notification/energy_conservation_act/introduction. Htm accessed on
18th april 2014.

233
in all sectors by capturing future energy saving sand lastly developing fiscal
instruments to promote energy efficiency. 39

This Act requires large energy consumers to adhere to energy

consumption norms, new building to follow the Energy Conservation Building
Code, and appliances to meet energy performance standards as well as display
energy consumption labels. The Act also created the Bureau of energy
Efficiency to implements the provisions of the Act. 40

Programmes such as The Energy Conservation Awards recognize

innovation and achievements in energy conservation by the Industries,
buildings, zonal railways, state designated agencies, aviation, manufacturers of
BEE star labeled appliances and municipalities and raises awareness that
energy conservation plays a big part in India’s response to reducing global
warming through energy savings. These initiatives suggest the potentials for
large scale replication and of concrete measures which can help mitigate global
warming. The awards scheme has been in operation since 1991. 32 sectors of
Industry and other establishments are included in the Awards. In the Awards
2010, a new category for Thermal Power Stations has also been introduced to
as to recognize their initiatives and efforts undertaken to conserve energy.

Another such initiative is the Bachat Lamp Yojana (BLY) Lighting

Programme, 2006. This scheme was developed by Bureau of Energy Efficiency
(BEE) to promote energy-efficient lighting in India. There are no mandatory
requirements in India requiring the use of energy efficient CFL at the
household level, so participation is voluntary. Quality long-life (CFLs will be
distributed to grid- connected residential households in exchange for an
incandescent lamp (ICL). Once the CFLs have reached their end of life or any
CFLs which have failed prematurely during the project period will be collected

39
India: National Action Plan on Climate Change (NAPCC) http://climalaya.org/2012/01/21/india-
national-action-plan-on-climate-change-napcc/accessed on 24th May, 2014.
40
www.iea.org/policesand measures/pams/India/name-23940-en.php accessed on 3rd May, 2014.

234
and disposed of as per applicable environmental norms. Such schemes are
aimed at reducing global warming.

4.3.10 The Companies Act, 2013

The landmark Companies Act, 2013, makes it mandatory for companies

to spend 2% of their profit on corporate social responsibility (CSR)41. This will
set stricter compliance and create new opportunities for Business spending on
environmental issues and clean energy. Companies are advised to give
preference to CSR activities that best align with the business. “Environment
Sustainability’ is listed as one of the eligible CSR activities. 42

Corporate Social Responsibility is not a new concept in India, however,

the Ministry of Corporate Affairs, Government of India has recently notified
the Section 135 of the Companies Act, 2013 along with Companies (Corporate
Social Responsibility Policy) Rules, 2014 “hereinafter CSR Rules” make it
mandatory (with effect from Ist April, 2014) for certain companies who fulfill
the criteria as mentioned under Sub Section 1 of Section 135 to comply with
the provisions relevant to Corporate Social Responsibility.43

It requires that companies having a net worth of Rs. 500 core or more a
turnover of Rs. 1,000 crores or a net profit of 5 crores must spend 2% of net
profit on CSR activities. A schedule in the rules lists various activities
companies can undertake as CSR. Companies should take measure to check an
prevent pollution: recycle, manage and reduce waste, should manage natural
resources in a sustainable manner and ensure optimal use of resources like land

41
The Term “Corporate Social Responsibility (CSR)” can be referred as corporate initiative to assess
and take responsibility for the company’s effects on the environment and impact on social welfare.
The term generally applies to companies efforts that go beyond what may be required by regulators
or environmental protection groups1.
Corporate social responsibility may also be referred to as “corporate citizenship” and can involve
incurring short-term costs that do not provide an immediate financial benefit to the company, but
instead promote positive social and environmental change.
42
http://www.theclimategroup.org/what-we-do/news-and-blogs/indian-businesses-must-spend-2 of. their –
earnings -on-csr/accessed on 13th Jan,2014
43
Megha Kapoor, “India’, Corporate Social responsibility: Mandating Companies to Contribute
Towards society”
http”//www.mondaq.com/india/x/305620//corporate+Commercial+Law/Corporate+Social+Respons
ibility+Mandating+Companies+To+Contribute+Towasrds+Society accessed on 20th May 2014.

235
and water, should proactively respond to the challenges of climate change by
adopting cleaner production methods, promoting efficient use of energy and
environment friendly technologies. 44

Thus, the move makes India one of the first countries in the world to
mandate spending on social welfare as part of company activity by law. The
Climate Group is of the view that, this new provision will facilitate an enabling
environment to develop longer term strategies to address some of the most
persistent economic, social and environmental issues facing Indian society.
Furthermore, this provision has the potential to play a catalytic role in bringing
together many corporate under an umbrella to address some of these issues
collaboratively for much greater impacts.

4.4 PLANS AND MISSIONS

4.4.1 Twelfth Five-Year Plan and Climate Change

Indian Five year Plans have stressed on goals such as rapid economic
growth, employment generation, poverty alleviation and balanced regional
development. Since June, 1991 there has been a tilt in economic policy towards
economic liberalization and globalization. The importance of sustainable
development is also being stressed as an objective of public policy.

The theme for 12th five year plan is faster, inclusive and sustainable
growth. But in making planning and development policies, programmes and
plans they still use old indicators for sustainable growth like responsibility of
industries for monitoring environmental concerns, waste management, eco-
friendly tourism etc. The underlying notion is that growth will take care of
environment and sustainability concerns automatically. With increasing
industrialization, growing population, progressive pressure put by socio-
economic infrastructure, our natural resources and environment has come under

44
Lok Sabha Secretariat, Parliament Library and Reference, Research, Documentation and
Information Service (LARRDIS) Corporate Social Responsibility available at
http://164.100.47.134/instant/CorporateSocial Responsibility, pdf accessed on 6th March,2014.

236
lot of stress leading to adverse effects of climate change, depleting natural
resources and ecosystem imbalance. 45

While India is increasingly pushing for sustainability development in

nation’s growth, back home it is quite lackadaisical in adopting innovative
practices. In Economic Survey 2012-13, it was stated that, currently
sustainable development and planning process are seen in divergent views and
there is increasing need to integrate then so that sustainable development is
seen as integral part of our planning process. Sustainable development rests on
the pillars of economic, social and environmental convergence and any
imbalance in any one of these is bound to create ecological, humanitarian and
socio-economic crisis. Environmental imbalance due to local, regional
ecological disturbances, unbearable and unviable social and economic practices
has brought adverse effects to our nation as well as to world. A 4x4 study by
Ministry of environment and forests has put forth four vulnerabilities caused by
climate change: Food, Agriculture, forests and Environment degradation.

But at a time when India is embarking on path of economic

empowerment the need for adopting suitable green accounting practices and
environment friendly regime in planning and. implementing process is not up
to desired global standards

4.4.2 National Action Plan on climate Change

At a global level, climate change management has taken the form of an

International Convention, the UNFCCC, 1992. The primary goals of the
UNFCCC were to stabilize greenhouse gas emissions at levels that would
prevent dangerous anthropogenic interference with the global climate. The
convention embraced the principle of common but differentiated
responsibilities which has guided the adoption of a regulatory structure.

45
Sustainable Development in Indian planning process and climate change available at
http://donny1605.hubpages.com/hub/Sustainable-Development-in-Indian-planning-procees-and-
climate -change accessed on 27th May, 2014.

237
 India signed the agreement in June, 1992, which was ratified in
November 1993. As per the convention the reduction/limitation requirements
apply one to developed countries. The only reporting obligation for developing
countries relates to the construction of a GHG inventory. India has initiated the
preparation of its First National Communication (base year 1994) that includes
an GHG sources and sinks, potential vulnerability to climate change, adaptation
measures and other steps being taken in the country to address climate change.

Building on the framework of the UNFCCC, the Kyoto Protocol broke

new ground with its legally binding constraints on greenhouse gas emissions
and its innovative ‘mechanisms’ aimed at cutting the cost of curbing emissions.
India has undertaken numerous response measures that are contributing to the
objectives of the UNFCCC. India is a non-annex I country under the Kyoto
Protocol and thus has no binding target for emissions reduction.

However, India is an active participant in the CDM established by the

Protocol. Rather than integrative binding legislation, India is developing a
policy process to specifically address climate change. India adopted NAPCC
in 2008 outlining existing and future policies and programmes directed at
climate mitigation and adaptation. On 4th October 2012, the Indian government
approved India’s 12th Five-Year Plan for 2012-2017, drafted by the Planning
Commission, which sets a target of 8.2% growth during that period. The Plan
makes clear that high growth requires supporting growth in energy and that the
Indian government must take steps to reduce the energy intensity of production
processes and also to increase domestic energy supplies as quickly as possible.

India’s emissions are estimated to be of the order of 1331.6 million

tonnes of the carbon dioxide equivalent GHG emissions in 2007. The emissions
indicate an annual growth of 4.2% from the levels in 1994. Whereas India’s
CO2 emissions are only about 4% of total global CO2.

238
 Emissions and much less if the historical concentrations are taken into
account. Still India has been conscious of the global challenge of Climate
Change.

In pursuance of the obligations cast on pursuance of the obligations cast

on parties to the UNFCCC, India has undertaken to communicate information
about the implementation of the convention, taking into account the common
but differentiated responsibilities and respective capabilities and their specific
regional and national development priorities, objectives capabilities and their
specific regional and national development priorities, objectives and
circumstances. The elements of information provided in the communication
include a national inventory of anthropogenic emissions by sources and
removals by sinks of all GHGs, a general description of steps taken to
implement the convention including an assessment of impacts and vulnerability
and any other relevant information. India has submitted the Second National
Communication (NATCOM) to the UNFCCC in 2012.

The first National Communication was submitted in 2004. As per the

Second national communication submitted by India to the UNFCCC, it is
projected that the annual mean surface air temperature rise by the end of the
century ranges from 3.5 C to 4.3 C whereas the sea level along the Indian coast
has been rising at the rate of about1.3 mm/year on an average. These climate
change projections are likely to impact human health, agriculture, water
resources, natural ecosystems, and biodiversity. India’s strategy for addressing
Climate Change is reflected in many of its social and economic development
programmes.

Thus, NAPCC incorporates its vision of sustainable development and

the steps it must take to realize it. The Prime Minister, Dr. Manmohan Singh,
set up a High Level advisory group known as the Prime Minister’s Council on
Climate Change which included Government Representatives and Non-
government Members. The Council coordinated National Action Plans for
assessment, adaptation and mitigation of Climate Change. It also advised the
239
government on proactive measures that can be taken by India to deal with the
challenge of climate Change. It also facilitated inter-ministerial coordination
and guide policy in relevant areas.

The NAPCC coordinated by the Ministry of Environment and Forests is

being implemental through the nodal Ministers in specific sectors/areas. On
June 30, 2008 India’s first NAPCC outlining existing and future policies and
programs addressing climate mitigation and adaptation was released. The plan
identifies eight core “National missions”.

4.4.3 National Solar Mission

Its objective is to make solar energy competitive with fossil-based

energy options. Launch an R&D programme facilitating international co-
operation to enable the creation of affordable, more convenient solar energy
systems and Promote innovations for sustained, long-term storage and use of
solar power. A national solar mission will be launched to significantly increase
the share of solar energy in the total energy mix while recognizing the need to
expand the scope of other renewable and non-fossil options such as nuclear
energy, wind energy and biomass.

India is a tropical country, where sunshine is available for longer hours

per day and in great intensity. Solar energy, therefore, has great potential as
future energy source. It also has the advantage of permitting a decentralized
energy, thereby empowering people at the grassroots level. Photovoltaic cells
are becoming cheaper with new technology. There are newer, reflector-based
technologic that could enable setting up megawatt scale solar power plants
across the country. Another aspect of the solar mission would be to launch a
major R & D programme, which could draw upon international cooperation as
well, to enable the creation of more affordable, more convenient solar power
systems, and to promote innovations that enable the storage of solar power for
sustained, long-term use.

240
4.4.4 National Mission for Enhanced Energy Efficiency

The National Mission for Enhanced Energy Efficiency is one of the

eight missions under the National Action Plan on Climate Change. The
objective of the Mission is to achieve growth with ecological sustainability by
devising cost effective strategies for end-use demand side management. The
MOP and BEE have been entrusted with the task of preparing the
implementation plan for the National Mission for enhanced energy efficiency
(NMEEE) and to upscale the efforts to create and sustain market for energy
efficiency to unlock investment of around Rs. 74,000 Cross. The Mission, by
2004-15, is likely to achieve about 23 million tons oil-equivalent of fuel
savings in coal, gas, and petroleum products, along with an expected avoided
capacity addition of over 19,000 MW. The carbon dioxide emission reduction
is estimated to be 98.55 million tons annually.

Market Transformation for Energy Efficiency (MTEE) to accelerate the

shift to energy efficient appliances in designated sectors through innovative
measures to make the products more affordable with focus on leveraging
international financial instruments, including CDM to make energy efficient
appliances affordable and increase their levels of penetration. Since the public
sector holds the key to aggregation of CDM projects so as to reduce transaction
costs, barriers to widespread adoption of CDM need to be removed.

4.4.5 National mission on sustainable habitat

A national mission on sustainable habitat will be launched to make

habitat sustainable through improvements in energy efficiency in buildings,
management of solid waste and modal shift to public transport. The mission
will promote energy efficiency as an integral component of urban planning and
urban renewal through three initiatives.

The energy conservation building code, which addresses the design of

new and large commercial buildings to optimize their energy demand, will be

241
extended in its application and incentives provided for retooling existing
building stock.

Recycling of material and urban waste management will be a major

component of ecologically sustainable economic development. India already
has a significantly higher rate of recycling of waste compared to developed
countries. A special area of focus will be the development of technology for
producing power from waste. The national mission will include a major R & D
programme, focusing on bio chemical conversion, waste water use, sewage
utilization and recycling options wherever possible.

Better urban planning and modal shift to public transport, making long
term transport plans will facilitate the growth of medium and small cities in
ways that ensure efficient and convenient public transport. In addition, the
mission will address the need to adapt to future climate change by improving
the resilience of infrastructure, community based disaster management, and
measures for improving the warning system for extreme weather events.
Capacity building would be an important component of this mission.

4.4.6 National Water Mission

A national water mission will be mounted to ensure integrated water

resource management helping to conserve water, minimize wastage and ensure
more equitable distribution both across and within states. The mission will take
into account the provisions of the national water policy and develop a
framework to optimize water use by increasing water use efficiency by 20%
through regulatory mechanisms with differential entitlements and pricing. It
will seek to ensure that a considerable share of the water needs of urban areas
are met through recycling of waste water, and ensuring that the water
requirements of coastal cities with inadequate alternative sources of water are
met through adoption of new and appropriate technologies such as low
temperature desalination technologies that allow for the use of ocean water.

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 The national water policy would be revisited in consultation with states
to ensure basin level management strategies to deal with variability in rainfall
and river flows due to climate change. This will include enhanced storage both
above and below ground, rainwater harvesting, coupled with equitable and
efficient management structures.

The mission will seek to develop new regulatory structures, combined

with appropriate entitlements and pricing. It will seek to optimize the efficiency
of existing irrigation systems, including rehabilitation of systems that have
been run down and also expand irrigation, where feasible, with a special effort
to increase storage capacity. Incentive structures will be designed to promote
water-neutral or water-positive technologies, recharging of underground water
sources and adoption of large scale irrigation programmes which rely on
sprinklers, drip irrigation and ridge and furrow irrigation.

4.4.7 National Mission for Sustaining the Himalayan Ecosystem

A mission for sustaining the Himalayan ecosystem will be launched to

evolve management measures for sustaining and safeguarding the Himalayan
glacier and mountain eco-System. Himalayas, being the source of key
perennial rivers, the mission would, inter-alia, seek to Understand, whether and
the extent to which, the Himalayan glaciers are in recession and how the
problem could be addressed. This will require the joint effort of climatologists,
glaciologists and other experts. We will need to exchange information with the
south Asian countries and countries sharing the Himalayan ecology.

An observational and monitoring network for the Himalayan

environment will also be established to assess freshwater resources and health
of the ecosystem. Cooperation with neighboring countries will be sought to
make the network comprehensive in its coverage.

The Himalayan ecosystem has 51 million people who practice hill

agriculture and whose vulnerability is expected to increase on account of
climate change. Community-based management of these ecosystems will be

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promoted with incentives to community organizations and panchayats for
protection and enhancement of forested lands. In mountainous regions, the aim
will be to maintain two-thirds of the area under forest covers in order to prevent
erosion.

4.4.8 National Mission for a Green India

A national mission will be launched to enhance ecosystem services

including carbon sinks to be called green India. Forests play an indispensable
role in the preservation of ecological balance and maintenance of bio-diversity.
Forests also constitute one of the most effective carbon-sinks

The Prime Minister has already announced a green India campaign for
the afforestation of 6 million hectares the national target of area under forest
and cover is 33% while the current area under forests is 23%. The mission on
green India will be taken up on degraded forest land through direct action by
communities, organized through joint forest management committees and
guided by the departments of forest in state governments. An initial corpus of
over Rs.6000 crore has been earmarked for the programme through the
commence work. The programme will be scaled up to cover all remaining
degraded forest land. The institutional arrangement provides for using the
corpus to leverage more funds to scale up activity.

4.4.9 National Mission for Sustainable Agriculture

The mission would devise strategies to make Indian agriculture more

resilient to climate change. It would identify and develop new varieties of crops
and especially thermal resistant crops and alternative cropping patterns, capable
of withstanding extremes of weather, long dry spells, flooding, and variable
moisture availability.

Agriculture will need to be progressively adapted to projected climate

change and our agricultural research systems must be oriented to monitor and

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evaluate climate change and recommend changes in agricultural practices
accordingly.

This will be supported by the convergence and integration of traditional

knowledge and practice systems, information technology, geospatial
technologies and biotechnology. New credit and insurance mechanisms will be
devised to facilitate adoption of desired practices. Focus would be on
improving productivity of rainfed agriculture. India will spearhead efforts at
the international level to work towards an ecologically sustainable green
revolution.

4.4.10 National Mission on Strategic Knowledge for Climate Change

Its objective is to work with the global community in research and

technology development by collaboration through different mechanisms. The
mission also has its own research agenda supported by climate change related
institutions and a climate research fund. Encourage initiatives from the private
sector for developing innovative technologies for mitigation and adaptation.46
To enlist the global community in research and technology development and
collaboration through mechanisms including open source platforms, a strategic
knowledge mission will be set up to identify the challenges of, and the
responses to, climate change. It would ensure funding of high quality and
focused research into various aspects of climate change.

The mission will also have, on its research agenda, socio-economic

impacts of climate change including impact on health, demography, migration
patterns and livelihoods of coastal communities. It would also support the
establishment of dedicated climate change related academic units in
universities and other academic and scientific research institutions in the
country which would be networked. A climate science research fund would be
created under the mission to support research. Private sector initiatives for
development of innovative technologies for adaptation and mitigation would be
46
http://currentaffairs, gktoday.in/pmo-forms-executive-lpanel-on-climate-change-0220134896 html
accessed on 20th April 2014.

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encouraged through venture capital funds. Research to support policy and
implementation would be undertaken through identified centers. The mission
will also focus on dissemination of new knowledge based on research findings.

These eight national missions, taken together, with enhancements in

current and ongoing programmes included in the technical document, would
not only assist the country to adapt to climate change, but also, importantly,
launch the economy on a path that would progressively and substantially result
in mitigation through avoided emissions.

Ministries with lead responsibility for each of the missions are directed
to develop objectives, implementation strategies, timelines, and monitoring and
evaluation criteria, to be submitted to the Prime Minister’s Council on Climate
Change. The Council will also be responsible for periodically reviewing and
reporting on each mission’s progress. To be able to quantify progress,
appropriate indicators and methodologies will be developed to assess both
avoided emissions and adaptation benefits.47

The Government is implementing the NAPCC with a view to enhance

the ecological sustainability of India’s development path and address Climate
Change.

The Government regularly reviews the progress under the NAPCC,

based on the information provided by the concerned nodal Ministry. The
government has also constituted an Executive Committee on Climate Change
in January, 2013, under the chairmanship of Principal Secretary to Prime
Minister to assist the Prime Minister’s Council on Climate Change in evolving
a coordinated response to issues relating to Climate Change at the national
level and to monitor the implementation of a the eight National Missions and
other initiatives under the NAPCC.

47
National Action Plan on Climate Change Government of India June 2008 http://www.c2es.org/doc
uploads/India%20 National%20Action%20Plan%n%20Climate%20Chang-Summary.pdf accessed
on 5th April 2014.

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 All national missions have been approved by the Prime Minister’s
Council on Climate Change and are at different stages of implementation.
Thus, these national missions will be institutionalized by respective ministries
and will be organized through inter-sectoral groups which include in addition
to related ministries, ministry of finance and the planning commission, experts
from industry, academia and civil Society. The institutional structure would
vary depending on the task to be addressed by the mission and will include
providing the opportunity to compete on the best management model.

Each mission will be tasked to evolve specific objectives spanning the

remaining years of the 11th plan and the 12th plan period 2012-13 to 2016-17.
Where the resource requirements of the mission call for an enhancement of the
allocation in the 11th plan, this will be suitably considered, keeping in mind the
overall resources position and the scope for reprioritization.

4.4.11 Indian Network for Climate Change Assessment

Steps have also been taken to increase capacity at the institutional level
for conducting research into Climate Change science and making necessary
assessments. The Ministry has already set up a network, namely the Indian
Network for Climate Change Assessment (INCCA) comprising of 127 research
institutions tasked with undertaking research on the science of Climate Change
and its impacts on different sectors of economy across various regions of India.
INCCCA has helped the Ministry put together its GHG Emissions Inventories
and in carrying out other scientific assessments at more frequent intervals.

The approach that the NAPCC proposes India takes is, “a directional
shift in the development pathway that promotes development objectives while
also yielding co-benefits for addressing climate change effectively.” Once
again it should be pointed out that climate change benefits are seen only as a

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byproduct or co-benefit of a sustainable plan to meet development targets and
not as a goal in itself.48

4.4.12 State Action Plan on Climate Change

Under advice of the Central Government, State governments are also

preparing State Action Plan on Climate Change that are aimed at creating
institutional capacities and implementing sectoral activities to address Climate
Change. So far, 21 States namely Andaman and Nicobar, Andhra Pradesh,
Arunachal Pradesh, Assam, Delhi, Jammu & Kashmir, Kerala, Karnataka,
Lakshadweep, Madhya Pradesh, Manipur, Meghalaya, Mizoram, Nagaland,
Odisha, Punjab, Rajasthan, Sikkim, Tripura, Uttarakhand, and West Bengal
have prepared document on Sate Action Plan on Climate Change (SAPCC).

Climate change may alter the distribution and quality of India’s natural
resources and adversely affect the livelihood of its people. With an economic
closely tied to its natural resource base and climate –sensitive sectors such as
agriculture, water and forestry, India may face a major threat because of the
projected changes in climate. India’s development path is based on its unique
resource endowments, the overriding priority of economic and social
development and poverty eradication, and its adherence to its civilization
legacy that places a high value on the environment and the maintenance of
ecological balance.

The states play the major role in the implementation of the NAPCC. In
an address on August 18, 2009, the Prime Minister called upon the state and
union territories to initiate the preparation of state action plans. State level
plans need to create an institutional and operational frame work for
implementing the missions and aligning them with other developmental
priorities of the state.

The Indian Ministry of Environment and Forests (MoEF) has asked all
Indian states to develop action plans to define how they intend to undertake
activities and programmes aimed at climate change adaptation and mitigation.

48
http://www.climate-leaders.org/climate-change-resources/india-and-climate-change/indias-national-
action-plan-on-climate-change accessed on 19th June 2014.

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These SAPCC should be in line with the objectives of the NAPCC and ensure
its implementation at state level.49

State Climate Change action plans are treated synonymously with

sustainable development planning. This approach usefully injects environment
issues into development planning, but represents a lost opportunity to
internalize climate resilience. The study draws on an analysis of sate climate
plans in five states: Karnataka, Himachal Pradesh (HP), Madhya Pradesh (MP),
Odisha, and Sikkim. The states were primarily chosen to represent geographic
and agro-climatic spread, and variability in donor organization involved, with
additional attention to agro-variability, size and economic prosperity. Further,
only states that had completed a draft report were considered. As of January,
2014, the climate plans of MP and Sikkim had been endorsed, whereas HP,
Karnataka and Odisha were awaiting approval. 50

4.5 TECHNO-LEGAL REGIME

The Disaster Management Act, 2005, lays down the institutional and
coordination mechanisms at the National, State, District and Local level. The
relevant Acts, Rules and Regulations warranting amendments need to be
identified and brought in conformity with the Disaster Management Act in a
phased manner by the Central and State governments and other agencies
concerned51

On the whole, the Act seeks to create a top-down model of disaster

management in India by imposing the overbearing authority of a central agency
both in planning and execution of the disaster management policies and plans
in the country. At the apex level, the National Disaster Management Authority
(NDMA) is constituted to formulate policies and approve the national plan for

49
http://www.ccarai.org/fields-of-work-html accessed on 11th Dec, 2013
50
From margins to mainstream?; climate change planning in India as a ‘door opener’ to sustainable
future available at http://wwwindianvironmentported . org.in/content (389214/from-margins-
tomainstra-climate-change-planning –in-India –as-adoor-opener-to-a-sustainable-future/ accessed
on 23rd Nov. 2013.
51
National Policy on Disaster Management 2009, Approved by the Union Cabinet on 22nd October,
2009

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disaster management apart from coordinating “the enforcement and
implementation of the policy and plan for disaster management.”

4.5.1 Revision of Municipal Regulations

In view of the construction boom and rapid urbanization, municipal

regulations such as development control regulations, building bye-laws and
structural safety features need to be revisited. These regulations will be
reviewed periodically to identify safety gaps from seismic, flood, landslide and
other disasters and suitable modifications will be made to align them to the
revised building codes of the Bureau of Indian Standards (BIS). Undesirable
practices compromising safety during disasters, that tend to crop up from time
to time, will need to be addressed in the regulations. The utilisation of
unsuitable areas for construction, without necessary safeguards further
enhances vulnerability and needs to be guarded against through appropriate
compliance mechanisms. Similarly, the introduction of suitable regulations for
rural areas will also be emphasised. Where required, local bodies will be
provided with suitable financial incentives for the preparation of appropriate
regulations. This process will involve an all inclusive exercise involving due
sensitization of governmental organisations at all levels, local authorities and
the community at large to accrue maximum results thereof.

4.5.2 Land Use Planning

Central Ministries and Departments concerned in consultation with

scientific institutions will carry out analysis of environmental and hazard data
for formulation of alternative land use plans for different geographical and
administrative areas with a holistic approach. This is more relevant to mega
cities, metros and high-density urban settlements for safer location of habitat
and other critical facilities. A review of master plans and their compliance, on
priority, will be essential and regarded as the paramount responsibility of the
States/UTs. At the macro-level, there is a need for preparation of land use
planning based on the inventory database of various uses. As far as urban

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settlements are concerned, the future land use is to be assessed keeping in view
the anticipated intensity of development.

4.5.3 Safe Construction Practices 52

Hazards like earthquakes and cyclones do not kill people but

inadequately designed and badly constructed buildings do. Ensuring safe
construction of new buildings and retrofitting of selected lifeline buildings, as
given in the Earthquake Guidelines, is a critical step to be taken towards
earthquake mitigation. The design and specification of houses being
constructed, under 24 National Policy on Disaster Management 2009 the Indira
Awas Yojana (IAY) and other government welfare and development schemes,
will also be reexamined to ensure hazard safety. Building codes will be updated
every five years as a mandatory requirement and also put in the public domain.
Observance of the National Building Code should be made mandatory in all the
State/ Municipal building bye-laws.

Training of engineers, architects, small builders, construction managers

and artisans has already been started and needs to be intensified at the State and
District level. Safe schools and hospitals (with large capacity) and National
monuments besides other critical lifeline buildings will be regarded as a
National priority. Enabling provisions shall be made in all the Centrally
Sponsored Schemes to design school buildings/hostels with earthquake resilient
features and to equip them with appropriate fire safety measures

4.5.4 Compliance Regime

There is a need for putting in place a sound compliance regime, with

binding consequences, to ensure the effectiveness of techno-legal and techno-
financial provisions. It is important to ensure that monitoring, verification and
compliance arrangements are in place both at the National and State level. It
will be the responsibility of all stakeholders concerned, to implement these

52
Recommendation of the meeting “techno-legal Regime for safer Construction in Disaster Prone
Areas” held on March 14, 2001, Vigyan Bhawan, New Delhi.

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provisions. Adoption of best management practices like self-certification,
social audit, and an external compliance regime including audit by professional
agencies, need to be encouraged through development and design of tools such
as IT-enabled monitoring software to suit the DM systems in India, in
consultation with various stakeholders and knowledge institutions for adoption
after due trial and validation

Enforcement

After having put the techno-legal and compliance system in place, the
States/UTs will also ensure their enforcement by establishing an effective
mechanism, under the provisions of the Act.

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