Environmental Law and its Implementation in India; A Judicial Role with Special Reference to CrP.C.
The meaning of environment is surroundings of us and includes all parts of nature resources which is necessary to the survival of the man and their health, happiness and prosperity. Apart from this, nature reserves immense potential to maintain ecological balance. Nature and its resources have their adequate capacity to feed and bear the burden of the requirements of the mankind. Once these resources are overburdened due to the undue pressure of human activities, it disturbs the equilibrium relationship between the man and the nature necessary for human existence. Consequently it gives rise to the problems of environmental pollution.
According to Section 2(a) of the Indian Environment (Protection) Act 1986, the term “Environment” includes water, air and land and human beings, other living creatures, plants, micro-organism and property. However, under Section 1(2) of the Environment Protection Act 1990 of the United Kingdom, the term “environment” consists of all or any of the following medium, namely, air, water and land and the medium of air made structures above or below ground. According to the Encyclopaedia Britannica, the term “Environment” means the entire range of external influence acting on an organism, both the physical and biological and other organism, i.e., forces of nature surrounding of an individual. Besides, man-made environment is created by us i.e., industrial revolution, communication networks like telephones, internet etc., agricultural & plantation for the protection of environment, power generations, sustainable development is a tool of protect the pollution free environment.
The degradation in environmental quality has been evidenced by enormous pollution, loss of vegetal cover and biological diversity, excess accumulation of harmful chemicals in the atmosphere and in food chains, growing risks of environmental accidents and threats to life support system. The expression “the people of the whole world resolve to protect and enhance the environmental quality” is found in the decisions taken at the United Nations Conference on the Human Environment which took place at Stockholm in June 1972. The Government of India was participated in the Conference and strongly voiced the environmental concerns. While several measures have been undertaken for environmental protection, but the need for a general legislation has become increasingly evident. Although, there are existing laws dealing directly or indirectly with several environmental matters, it is necessary to have a general legislation for environmental protection. Existing laws generally focus on specific types of pollution or on specific categories of hazardous substances. Some major areas of environmental hazards are not covered. There also exist uncovered gaps in areas of major environmental hazards. There are not adequate linkages in handling matters of industrial and environmental safety. Control of mechanism to the guard against slow insidious to develop of the hazardous substances, especially new chemicals are weak in an environment. Because of a multiplicity of regulatory agencies, there is need for an authority which can assume the lead role for studying, planning and implementing long term requirements of environmental safety and to give direction to and to co-ordinate a system of speedy and adequate response to emergency situations threatening the environment.
The deforestation, cutting of tree without permission from the competent authority, rapid growth of industrialization, there is no check & balance of hazard standards equipment in industrial units, expulsion of population, inadequate knowledge among the people about environment and pollution are the main causes of environmental issues and challenges. Besides, the government agencies/functionary is not activated to control these problems and prospects in such a manner as requires the problems of our nation. There is a need of an hour to motivate these agencies to do something in inspirit of the legislation with the strong “Political Will of the State”. NGOs can perform to aware about issues and solutions amongst to the common people.
The rapid growth of industry and direct foreign investment is the result of our liberal economy policy on the monumental scale pose new challenges and new threats for a complex plural society. These challenges have often been noticed in the past, it is merely the scale, which might be different in future. If there has been indeed, a regrettable aspect to the Independent Nation’s history, it has been the inability of the Executive wing to deal with these problems effectively and set a precedent, which may be followed. The trains that such rapid Industrial advancement place on a Nation’s environs are unfathomable, the destruction that it has the capacity of causing, almost frightening and under these circumstances the means and measures which ordinary citizens have in dealing with them, seemingly hopeless.
But it is each society’s own unique way of dealing with the challenges before it. Reformed Government has not yet been India’s response. The sheer destruction of our ecology has been met with firmly by only one pillar of the vast State. It is indeed almost ironic that the task of saving India’s natural resources.
The Herculean task undertaken by the Supreme Court has been made possible by the now settled principle of dilution of the old rule of locus standi. Invention has occurred by now in a plethora of cases, most of them discussed on innumerable occasions by Jurists and the Intelligentsia and PIL can be filed for the protection of environment.
No doubt, industrialization is the backbone of our economy and agrarian sector is not capable to fulfil the requirement of an employment opportunities but we cannot be compromised with environment, development should be made in such a manner to use the natural resources in a minimize waste with maximum satisfaction of the wants of the people as the theory of “Social Engineering” propounded by Dean R. Pound. Therefore, sustainable development is the best solution of our problem as discussed above.
The pollution of water is a phenomenon that is characterized by the deterioration of the quality of water as a result of different human activities. It is estimated that man can survive 20 days without food, but starts struggling for life in the absence of water just after one day. Water is the need for the maintenance of life of plants and animal; for navigation and hydro-electric power. That is why most of our cities, towns, and villages sprang up near places where plentiful water is available in the form of lakes, rivers and sea. History reminders us that many civilizations perished or migrated to better locations due to scarcity of water. Water pollution is a global problem, affecting both the industrialized and the developing nations. The water pollution problem is in rich and poor nations, these can be sorted out with collective measures and efforts of the nations. Human activities related with water pollution can be attributed to mining, agriculture, stockbreeding, fisheries, forestry, urban development, construction works, industries, etc., in our country unsanitary water and malnutrition can account for most of the illness and death. Like air pollutants, water pollutants, come from numerous natural and anthropogenic sources. Likewise, water pollutants produced in one nation may flow into others, creating complex international control problems that may take decades to solve. Therefore, management and conservation of water resources have become important issues for the protection of environment.
Environmental protection has now become a matter of grave concern for human existence. It is the duty of State and each & every people of the world to maintain the ecological system of the environment and pollution free society of the world. Industrialization, over exploitation of resources, the scientific and technological progress of man have invested the man with immense power over nature and these have been the principal causes for the impairment of the quality of the environment.
Environmental degradation is a social problem and considering its impact on the society has risen to deal with the situation as it demands in the present day-to-day. It is not merely confined to the Apex Court, but also the High Courts in India including Orrisa High Court which have shown dynamism in evolving the right to environment in India. While dealing with an environmental issue on Bhitarakanika Sanctuary, Hon’ble A. Pasayat and P.C. Naik , JJ felt in the case of Centre for Environmental Law V. State of Orrisa that there is constitutional imperative on the State Government and the local bodies like Municipalities not only to ensure and safeguard proper environment but also an imperative duty to take adequate measure to promote, protect and improve the environment.
(1) Constitutional Protection of the Environment
The Indian Constitution is amongst the few in the world that contains specific provisions on environmental protection. The Directive Principles of State Policy and the Fundamental Duties chapters explicitly enunciate the national commitment to protect and improve the environment. Judicial interpretation has strengthened this constitutional mandate. Recently, the courts have recognised the right to a wholesome environment as being implicit in the fundamental right to life.
Environmental protection and improvement were explicitly incorporated into the Constitution by the Constitution (Forty – Second Amendment) Act of 1976. The Constitution (Forty – Second Amendment) Act, 1976 introduced Article 48-A in Part IV which provides that “the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country”, the provision though not enforceable in a court, directs the State to enact legislation and frame policies towards attaining these goals.
The Constitution (Forty-Second Amendment) Act, 1976 also introduced Article 51A in Part IV A of the Constitution Article 51 A (g) provides that “it shall be the duly of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures”. Thus the State now is under a moral duty to take measures to prevent ecological imbalances resulting from modern industrialization. The Constitution has also cast a duty on the citizen to take steps for maintaining ecological balance. Although the language of Article 48 A and Article 51 A (g) differs to each other, the differences appear to relate to form rather than to substance. Together, the provisions highlight the national consensus on the importance of environmental protection and improvement. The incorporation of protection of environment as an obligation of the state and as a mandate to the citizens of India as part of the fundamental duties is notable indication to the importance of the protection of environment.
“Whenever a problem of ecology is brought before the Court, the Court is bound to bear in mind Article 48A of the Constitution and Article 51A (g) of the Constitution. When the Court is called upon to give effect to the Directive Principle and the Fundamental Duty, the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter for the policy -making authority. The least that the Court may do is to examine whether appropriate considerations are borne in mind and irrelevancies excluded. In appropriate cases, the court may go further, but how much further will depend on the circumstances of the case. The Court may always give necessary directions.
(2) Scope of the Environment (Protection) Act, 1986
In the wake of the Bhopal tragedy, the Government of India enacted the Environment (Protection) Act of 1986, under Article 253 of the Constitution. The purpose of the Act is to implement the decisions of the United Nations Conference on the Human Environment of 1972, in so far as they relate to the protection and improvement of the human environment and the prevention of hazards to human beings, other living creatures, plants and property. The Act is an ”umbrella” legislation designed to provide a framework for Central Government co-ordination of the activities of various central and state authorities established under previous laws, such as the Water Act and Air Act.
This Act is the first Act dealing with the Human environment as a composite whole and it is a comprehensive legislation on this point and also dealing with air, water, and noise pollution as also regulating the treatment of hazards materials. Besides, Act is contained the 26 Sections and divided into four chapters. The legislature has made the first time attempts to lay down the said law on this point and goes beyond the scope of the water and Air Pollution Acts passed in 1974 and 1981 respectively. But Act also suffers from shortcomings. The drawbacks of the Act relate to its narrow area of operation weak citizens suit provision, tax provisions relating to fixing of liability of corporate officials and lack of provisions providing for an individual’s right to sue a defaulter for damages.
The potential scope of the Act is broad, with ‘environment’ defined to include water, air, and land and the inter-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. Hazardous substances’ include any substance or preparation which may cause harm to human beings, other living creatures, plants, micro-organisms, property or the environment.
The Act provides for severe penalties. Any person who fails to comply with or contravenes any of the provisions of the Act. or the rules, orders, or directions issued under the Act shall be punished, for each failure or contravention, with a prison term of up to five years or a fine of up to Rs. l lakh, or both. The Act imposes an additional fine of up to Rs. 5,000 for every day of continuing violation. If a failure or contravention occurs for more than one year after the date of conviction, on offender may be punished with a prison term which may extend to seven years.
The Parliament has enacted various legislations for the protection of environment, pollution and maintains the ecological system of our nature, such as even in pre-independent era environment pollution was regulated by general laws viz: I.P.C. 1860, Cr.P.C. 1898 and Police Act 1861 having relevant provisions dealing with control of water, air, noise pollution and nuisances. Whereas, water pollution was controlled mainly by the North canal and Drainage Act 1873, and the Obstruction of Fair Way Act 1881, Air Pollution Control Provisions were contained in the Oriental Gas Company Act 1957, Explosives Act 1884, Indian Boilers Act 1923, The Petroleum Act 1934, Poison Act 1919, The Environment (Protection) Act 1986, Air (Prevention and Control of Pollution) Act 1981, The Water Cess Act 1977, The water (Prevention and Control of Pollution) Act 1974, The Bhopal Gas Leak Disaster (Processing of Claims) Acts 1985, The Public Liability Insurance Act 1991, The Wild Life (Protection) Act 1972, The Forest (Conservation) Act 1980, The Indian Forest Act 1927 The National Green Tribunal Act 2010 but the implementation of these laws couldn’t achieved the require result, it may be a failure of our function & functionary. But it can get the require result with the aid of “Strong Political Will of the State” and NGOs can play the vital role for awareness of environment and pollution free atmosphere among the common peoples.
(3) The Environment Protection: Cr. P. C & I. P. C.
The question whether the SDM was justified in passing order for closure of factory on the ground of causing pollution. Andhra Pradesh High Court in the case of Nagarjuna Paper Mills Ltd. V. S.D.M & R.D. Officer, has held that the Water Act 1974 has not taken away the power of Sub-Divisional Magistrate under Section 133 of Cr. P.C to close a factory causing pollution when appreciation certificate is not produce. The remedy under Section 133 of Cr. P.C is a quick and injunctive relief to the aggrieved party but the case may come within the purview of public nuisance under Section 133 of Cr. P.C and not for private nuisance which can be adjudicated before the Civil Court.
It is clear that Section 133 of the Code of Criminal Procedure, 1973 deals with the public nuisance. On the other hand the Air (Prevention and Control of Pollution) Act, 1981 was enacted by the Parliament under Article 252 (1) of the Constitution, however, after securing enabling resolutions from 12 States. The said Act, 1981 represents an Human Environment held at Stockholm in 1972. The executive functions of the Air Act are performed by the State Pollution Control Boards, as delegation of executive functions is permitted by Article 258 (2) of the Constitution. By virtue of Article 258 (3) of the Constitution, the Central Government is under Constitutional obligation to compensate the States for the cost of carrying out the delegated functions.
The issue was raised before the Rajasthan High Court whether the provisions of the Air Act, 1981 operate to impliedly repeal the provisions of Section 133 of Cr. P.C in the case of Lakshmi Cement V. State, wherein the State Pollution Control Board having rejected the consent application directed the company to stop its operations. This direction was issued prior to the introduction of Section 31-A of the Air (Prevention and Control of Pollution) Act, 1981 which was brought into effect from 1st April 1988 and the Board endorsed a copy of the latter to the District Collector requesting to take administrative action against the company/factory. The District Collector forwarded the latter to the Magistrate who passed an order under Section 133 of Cr. P.C requiring the company/factory to abate the public nuisance. By the time High Court has decided the company’s petition challenging the Magistrate’s order, the petition was regarded infructuous on account of subsequent events. The State Pollution Control Board has issued a provisional consent to the company immediately after the Magistrate’s order and company installed air pollution control equipment which brought down the emissions within the prescribed limits. The Rajasthan High Court while allowing the petition to “secure the ends of justice” and since the menace of the public nuisance had long abated, the High Court rejected the company’s plea that Section 133 of the Code stood impliedly repealed by passage of the Air (Prevention and Control of Pollution) Act, 1981.
I.P.C. and Protection of Environment
The provisions under Sections 268 to 294-A of the Indian Penal Code dealing with an environment problems however, certain sections of the I.P.C, are concern with the matters of public nuisance, negligent/malignant act likely to spread infection of disease dangerous to life, adulteration of drugs/foods, fouling of water of public spring or reservoir, making atmosphere noxious to health and punishment for public nuisance are embodied in the chapter XIV of the Indian Penal Code.
The public nuisance is also called common nuisance. It is annoyance which affects the public and is an actual annoyance to all the subjects. To amount a public nuisance there must be an act or an illegal omission. It is not mandatory that the act should be illegal. However, as soon as an act becomes a nuisance, it becomes illegal not because it is ‘per se’ illegal, but because it has an injurious effect upon and is not tolerable to the public.
The Section 269 of I.P.C contains the provisions about the punishment of the Offence related to spread infectious diseases by any person in the society. The infectious diseases are cholera, plague and small-pox etc. However, such person must have knowledge that his action was likely to spread infectious diseases. Where a man was suffering from cholera and was aware of its infectious nature, travelled by train without informing the railway authorities of his condition, it was held that he was responsible for spreading infectious of cholera.
The Section 270 of I.P.C is the aggravated form of the offence punishable under the last Section. The word “malignantly denotes a deliberate intention to cause intention of any disease on the part of accused.
The Section 272 of I.P.C says that a person who mixes harmful ingredient in food or drink shall be punished under this section. Mere adulteration with harmless ingredients for the purpose of getting more profit is not punishable under this Section e.g. mixing water with milk or ghee with vegetable oil. Similarly Section 278 of I.P.C provides punishment for making atmosphere noxious to heath and affects the health of the public at large.
(4) The Environmental Laws: A Judicial Approach
The Supreme Court has held that every attempt should be made to preserve the fragile ecology of the forest areas and to protect the tiger reserve and the right of tribal in the State of M.P. Hence, it is a landmark decision of Apex Court to protection of deforestation of our Jungles.
In the case of Supreme Court has recognised the importance of pollution free environment and gave it the status of a human right.
In the case of Supreme Court held on the facts that discharge of smoke from the chimneys of the plant, was not causing pollution. The petitioner samithi alleged that the Junjunwala Oil Mills and Refinery Plant located in the green belt area was causing environmental pollution due to the emissions of smoke and dust from the chimneys of the mill and effluents discharged from the Plants. The petitioner prayed for necessary direction. The Apex Court having considered the facts and circumstances, the nature of allegations and the long history of enmity and animosity between parties, expressed the opinion that there was no conduct on the part of the respondent to attribute pollution of air or ecological imbalance calling for interference by the Court. The petition was held devoid of any merit. Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India. Anything which endangers or impairs, by conduct of anybody either in violation or in derogation of laws, that quality of life and living is entitled to be taken recourse of Article 32 of the Constitution.
The Supreme Court has enunciated the doctrine of “Public Trust”, based on the legal theory of the ancient Roman Empire. The idea of this theory was that certain common properties such as rivers, seashores, forests and the air, were held by the Government in trusteeship for the free and unimpeded use of the general public. The resources like air, sea, waters and the forests have such a great importance to the people as a whole, that it would be totally unjustified to make them a subject of private ownership. The concept “environment” bears a very close relationship to this doctrine. The doctrine enjoins upon the resources for the enjoyment of the general public, rather to permit their use for private ownership or commercial purposes. It was thus held that the State Government committed breach of public, by leasing the ecologically fragile land to the Motel management.
Right under Article 19 (1) (g) of the Constitution is not an absolute right but it is subject to suspension/restriction/prohibition. Thus, it is clear that a licence to carry on activities of traders doing business of gunny bag can be cancelled on account of creating nuisance. Hence, the right of the petitioner to carry on business in old and used gunny bags cannot be said to be absolute.
The chemical or other hazardous industries which are essential for economic development may have to be set up. But measures should be taken to reduce the risk to the community by taking all necessary steps for locating such industries in a manner that would pose the least risk or danger to the community and for maximizing safety requirements in such industries. The Supreme Court directed the High Court to set up Green Bench.
The Supreme Court has directed the Union of India and University Grant Commission to take appropriate steps immediately to give effect to the guidelines laid down by the Court, i.e., requiring the Universities to prescribe the course on environment. They would consider the feasibility of making this a compulsory subject at level in college education. So far as every State Govt. and every Education Board connected with education up-to the matriculation stage or even intermediate College to immediately take steps to enforce compulsory on environment in a graded way.
The Supreme Court has held that the material resources of the community like pounds, forests and mountains etc., are bounty of nature. They are responsible for maintaining ecological balance all over. Therefore, they need to be protected for proper and healthy environment which enables people to enjoy quality of life which is the essence of the guaranteed right under Article 21 of the constitution. Thus, the Govt. and its agencies are under constitutional obligation itself provides concept and object for protection and improvement of environment then an Act to provide for the protection and improvement of environment and for matters connected therewith, cannot be said to be unconstitutional in any way.
The “precautionary principle” requires the State to anticipate and attack the causes of environmental degradation.
To wind up our discussion made so far, it would be well in point to recapitulate the following essential things around which this work has been spinning.
In the present day globalization era, the theory “Social Engineering” Propounded by Roscoe Pound says: The policy of Law makers, town planner, developers of industrial sectors in such a manner, it should be satisfying the maximum wants, or desires, or claims of the human beings with minimum waste, means a balance between the competing interests in the society”. In fact industrialization plays vital role in our economy & commerce and also generate employment opportunities to our youth generations but keep in mind an environmental factor also. So, sustainable development is the need of an hour and it would helpful to maintenance of environmental factor and ecological balance should be maintained. Natural resource may be utilized as small as and policy makers must plans industrialization & urbanization policy in such a manner to protect & improve the environment & pollution free atmosphere in order to preserve the fertile lands and industrial township can be set up in non-fertile lands. So, Green belt to be developed for the progress of oxygen from trees and policy-makers may plan their in such a manner to provide an opportunity to the farmers to develop the groves & orchards due to creation oxygen to our lungs and control of pollution.
Author: Faisal Ali Khan
Disclaimer: This Article Has been Published in Legal Desire International Journal on Law, ISSN 2347-3525 on Page no 13 and Issue no. 8th
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