Introduction
In 1972,113 world governments assembled in Stockholm to participate in the UN conference on Human Environment. The Stockholm conference proclaimed that,"The protection and improvement of human environment is a major issue which affects the well being of people and economic development throughout the world and it is the duty of all government and people to exert common effort for the preservation and improvement of human environment, for the benefit of all people and their posterity". After the United Nations Conference on the Human Environment held at Stockholm in 1972, where India was a participant, it was realized that that a framework of laws was necessary to deal with environmental hazards that was resulting from the process of development.
India was the first country to impose a constitutional obligation on the state and citizens to protect and improve the environment as one of the primary duties.
Environmental law is an important instrument of environmental management. The existing laws relating to the environment has developed through legislative and judicial initiative in India. For a long time the subject of environment was a part of various civil and criminal laws specifying rights of individuals, groups of people and the state over the nature i.e., land, water, air, plants, wild life, etc. The Constitution of India clearly states that it is the duty of the state to 'protect and improve the environment and to safeguard the forests and wildlife of the country'. The Constitution of India imposes a duty on every citizen 'to protect and improve the natural environment including forests, lakes, rivers, and wildlife'. Both the Directive Principles of State Policy and Fundamental Rights refer to the environment. In 1976, the forty-second amendment to the Constitution introduced principles of environmental protection through Articles 48A and 51A (g). Article 48A, part of the Directive Principles of State Policy imposes obligation upon the State to protect and improve the environment. Article 51A (g) of the Constitution also imposes obligation upon the citizens to protect and improve the environment. Owing to the amendment, the subjects of “forests” and “protection of wild animals and birds” have been moved from the State List to the Concurrent List. These constitutional provisions have been endorsed by a number of Acts, Rules, and Notifications. After the United Nations Conference on the Human Environment held at Stockholm in 1972, where India was a participant, it was realized that that a framework of laws was necessary to deal with environmental hazards that was resulting from the process of development. The first law on protection of environment in India was the Water (Prevention and Control of Pollution) Act of 1974 and it was followed by other major enactments.
Constitutional Provisions
The Constitution of India came into force on 26th January, 1950. Originally, the constitution contains no specific provisions for environmental protection. However, certain specific provision have been incorporated by the Constitution (Forty Second Amendment) Act, 1976 and subsequent amendments. Indian Constitution is one of the very few constitutions in t he world, which provides for specific provision for the protection and improvement of the Environment.
The amendment provided for the following inclusions:
(1) Directive Principles-Article 48 A: By the Constitution (42nd Amendment) Act - "The State shall endeavor to protect and improve the environment and to safeguard the forest and wildlife of the country".
(2) Fundamental Duties -Article 51A(g): By Constitution (42nd Amendment) Act - "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".
Thus the Indian Constitution makes two fold provisions:
(2) Fundamental Duties -Article 51A(g): By Constitution (42nd Amendment) Act - "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".
Thus the Indian Constitution makes two fold provisions:
(a) On the one hand, it gives directive to the State for the protection and improvement of environment.
(b) On the other hand the citizens owe a constitutional duty to protect and improve natural environment.
(b) On the other hand the citizens owe a constitutional duty to protect and improve natural environment.
The Government of India to accelerate the pace for environment protection, further amended the constitutional text by making the following changes:
(I)
Seventh Schedule of the Constitution:
In the Concurrent List, 42nd Amendment Inserted
(a) Entry 17-A, providing for forests.
(b) Entry 17-B, for the protection of wild animals and birds.
(c) Entry 20-A, providing for population control and family planning.
(II) Eleventh Schedule of the Constitution
This new schedule is added by the Constitution 73rd Amendment Act, 1992. This schedule has 8 entries (2, 3.6.7, 11, 12, 15 and 29) providing for environmental protection and conservation.
(III) Twelfth Schedule of the Constitution
The entry number 8 of this schedule added to the constitutional text by the 74th Amendment Act, 1992, provided for the Urban Local bodies, with the function of environment protection and promotion of ecological aspects to them.
Due to the above changes the division of legislative power between the Union and the States is spelt out in the following three of the 7th Schedule of the constitution.
List I (Union List) Entries
52. Industries.
53. Regulation and development of oil fields and mineral oil/resources.
54. Regulation of mines and mineral development.
56. Regulation and development of inter -State rivers and river valleys.
57. Fishing and fisheries beyond territorial waters.
List II (State List) Entries
6. Public health and sanitation.
14. Agriculture .protection against past and prevention of plant diseases.
18. Land.colonisation .etc.
21. Fisheries.
23. Regulation of Mines and Mineral development subject to the provisions of
24. Industries
List III (Common or Concurrent List) Entries
17- Forests.
17-B Protection and wild animals and birds.
20. Economic and social planning.
20-A Population control and family planning.
The constitutional changes effected in the 7th Schedule by the 42nd Amendment Act, 1976 is a milestone steps, in the direction of the protection of environment. Because the subject of forests originally was in the State list as entry 19, this resulted into no uniform policy by the State so as to protect the forests. By placing the item 'forest' now in the concurrent list by the entry 17-A, along with the State, Parliament has acquired a law making power.
Because of the above change, in order to have a uniform policy in the forest management the Government of India in the year 1980 set up the Ministry of Environment and Forests. By virtue of this change Parliament also enacted, the central legislation i.e. Forest Conservation Act, 1980, which was amended in 1988. The government also adopted the new National Forest Policy in 1988 with a twin object. One to protect the forests and another to consider the needs of the forest dwellers.
Similarly the insertion of the entry 17-B in the concurrent list has empowered the Parliament to enact a law with a view to protection of wild animals and birds. Although we had a comprehensive legislation in the form of Wildlife Protection Act of 1972 the 42nd Amendment has considered the wildlife along with forests. India has also formulated National Action plan for the Protection of wild life. The new entry 20 A in the concurrent list embowers the Parliament to regulate the population explosion one, of the prime cause of the environmental pollution. By these changes, legally and constitutionally it has become possible to lake a uniform action in the matters of proper management of the environment.
Fundamental Rights
The judiciary's dynamic interpretation of fundamental rights have regulated into the rights to healthy environment from the following Articles:
(a) Article 14: "State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India".
(b)Article 15(2) prohibits discrimination on the ground of sex, race, religion, caste, place of birth etc. to make use of the public places the general public. The public places, which are part and parcel of the human environment should be made available to the public. The preamble to our constitution ensures socialistic pattern of the society and decent standard of life, which can be pollution free environment.
(c) Article 19 (6): State is empowered to make any law imposing in the interests of the general public, reasonable restrictions on the exercise of freedom to practice any profession, or to carry on any occupation, trade or business. Guaranteed by (1) (g).
(d) Article 21: "No person shall be deprived of his life or personal liberty except according to procedure established by law".
(c) Article 19 (6): State is empowered to make any law imposing in the interests of the general public, reasonable restrictions on the exercise of freedom to practice any profession, or to carry on any occupation, trade or business. Guaranteed by (1) (g).
(d) Article 21: "No person shall be deprived of his life or personal liberty except according to procedure established by law".
(e) Article 24: “No child below the age of 14 years shall be employed to wok in any factory or mine or engaged in any other hazardous employment” this provisions is certainly in the interest of public health and part of the environment.
The constitutional provisions are backed by a number of laws – acts, rules, and notifications
Following is a list of the environmental legislations that have come into effect:
General
1986 - The Environment (Protection) Act authorizes the central government to protect and improve environmental quality, control and reduce pollution from all sources, and prohibit or restrict the setting and /or operation of any industrial facility on environmental grounds.
1986 - The Environment (Protection) Rules lay down procedures for setting standards of emission or discharge of environmental pollutants.
1989 - The objective of Hazardous Waste (Management and Handling) Rules is to control the generation, collection, treatment, import, storage, and handling of hazardous waste.
1989 - The Manufacture, Storage, and Import of Hazardous Rules define the terms used in this context, and sets up an authority to inspect, once a year, the industrial activity connected with hazardous chemicals and isolated storage facilities.
1989 - The Manufacture, Use, Import, Export, and Storage of hazardous Micro-organisms/ Genetically Engineered Organisms or Cells Rules were introduced with a view to protect the environment, nature, and health, in connection with the application of gene technology and microorganisms.
1991 - The Public Liability Insurance Act and Rules and Amendment, 1992 was drawn up to provide for public liability insurance for the purpose of providing immediate relief to the persons affected by accident while handling any hazardous substance.
1995 - The National Environmental Tribunal Act has been created to award compensation for damages to persons, property, and the environment arising from any activity involving hazardous substances.
1997 - The National Environment Appellate Authority Act has been created to hear appeals with respect to restrictions of areas in which classes of industries etc. are carried out or prescribed subject to certain safeguards under the EPA.
1998 - The Biomedical waste (Management and Handling) Rules is a legal binding on the health care institutions to streamline the process of proper handling of hospital waste such as segregation, disposal, collection, and treatment.
1999 - The Environment (Siting for Industrial Projects) Rules, 1999 lay down detailed provisions relating to areas to be avoided for siting of industries, precautionary measures to be taken for site selecting as also the aspects of environmental protection which should have been incorporated during the implementation of the industrial development projects.
2000 - The Municipal Solid Wastes (Management and Handling) Rules, 2000 apply to every municipal authority responsible for the collection, segregation, storage, transportation, processing, and disposal of municipal solid wastes.
2000 - The Ozone Depleting Substances (Regulation and Control) Rules have been laid down for the regulation of production and consumption of ozone depleting substances.
2001 - The Batteries (Management and Handling) Rules, 2001 rules shall apply to every manufacturer, importer, re-conditioner, assembler, dealer, auctioneer, consumer, and bulk consumer involved in the manufacture, processing, sale, purchase, and use of batteries or components so as to regulate and ensure the environmentally safe disposal of used batteries.
2002 - The Noise Pollution (Regulation and Control) (Amendment) Rules lay down such terms and conditions as are necessary to reduce noise pollution, permit use of loud speakers or public address systems during night hours (between 10:00 p.m. to 12:00 midnight) on or during any cultural or religious festive occasion
2002 - The Biological Diversity Act is an act to provide for the conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits arising out of the use of biological resources and knowledge associated with it
1986 - The Environment (Protection) Rules lay down procedures for setting standards of emission or discharge of environmental pollutants.
1989 - The objective of Hazardous Waste (Management and Handling) Rules is to control the generation, collection, treatment, import, storage, and handling of hazardous waste.
1989 - The Manufacture, Storage, and Import of Hazardous Rules define the terms used in this context, and sets up an authority to inspect, once a year, the industrial activity connected with hazardous chemicals and isolated storage facilities.
1989 - The Manufacture, Use, Import, Export, and Storage of hazardous Micro-organisms/ Genetically Engineered Organisms or Cells Rules were introduced with a view to protect the environment, nature, and health, in connection with the application of gene technology and microorganisms.
1991 - The Public Liability Insurance Act and Rules and Amendment, 1992 was drawn up to provide for public liability insurance for the purpose of providing immediate relief to the persons affected by accident while handling any hazardous substance.
1995 - The National Environmental Tribunal Act has been created to award compensation for damages to persons, property, and the environment arising from any activity involving hazardous substances.
1997 - The National Environment Appellate Authority Act has been created to hear appeals with respect to restrictions of areas in which classes of industries etc. are carried out or prescribed subject to certain safeguards under the EPA.
1998 - The Biomedical waste (Management and Handling) Rules is a legal binding on the health care institutions to streamline the process of proper handling of hospital waste such as segregation, disposal, collection, and treatment.
1999 - The Environment (Siting for Industrial Projects) Rules, 1999 lay down detailed provisions relating to areas to be avoided for siting of industries, precautionary measures to be taken for site selecting as also the aspects of environmental protection which should have been incorporated during the implementation of the industrial development projects.
2000 - The Municipal Solid Wastes (Management and Handling) Rules, 2000 apply to every municipal authority responsible for the collection, segregation, storage, transportation, processing, and disposal of municipal solid wastes.
2000 - The Ozone Depleting Substances (Regulation and Control) Rules have been laid down for the regulation of production and consumption of ozone depleting substances.
2001 - The Batteries (Management and Handling) Rules, 2001 rules shall apply to every manufacturer, importer, re-conditioner, assembler, dealer, auctioneer, consumer, and bulk consumer involved in the manufacture, processing, sale, purchase, and use of batteries or components so as to regulate and ensure the environmentally safe disposal of used batteries.
2002 - The Noise Pollution (Regulation and Control) (Amendment) Rules lay down such terms and conditions as are necessary to reduce noise pollution, permit use of loud speakers or public address systems during night hours (between 10:00 p.m. to 12:00 midnight) on or during any cultural or religious festive occasion
2002 - The Biological Diversity Act is an act to provide for the conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits arising out of the use of biological resources and knowledge associated with it
Forest and wildlife
1927 - The Indian Forest Act and Amendment, 1984, is one of the many surviving colonial statutes. It was enacted to 'consolidate the law related to forest, the transit of forest produce, and the duty leviable on timber and other forest produce’.
1972 - The Wildlife Protection Act, Rules 1973 and Amendment 1991 provides for the protection of birds and animals and for all matters that are connected to it whether it be their habitat or the waterhole or the forests that sustain them.
1980 - The Forest (Conservation) Act and Rules, 1981, provides for the protection of and the conservation of the forests.
1972 - The Wildlife Protection Act, Rules 1973 and Amendment 1991 provides for the protection of birds and animals and for all matters that are connected to it whether it be their habitat or the waterhole or the forests that sustain them.
1980 - The Forest (Conservation) Act and Rules, 1981, provides for the protection of and the conservation of the forests.
Water
1882 - The Easement Act allows private rights to use a resource that is, groundwater, by viewing it as an attachment to the land. It also states that all surface water belongs to the state and is a state property.
1897 - The Indian Fisheries Act establishes two sets of penal offences whereby the government can sue any person who uses dynamite or other explosive substance in any way (whether coastal or inland) with intent to catch or destroy any fish or poisonous fish in order to kill.
1956 - The River Boards Act enables the states to enroll the central government in setting up an Advisory River Board to resolve issues in inter-state cooperation.
1970 - The Merchant Shipping Act aims to deal with waste arising from ships along the coastal areas within a specified radius.
1974 - The Water (Prevention and Control of Pollution) Act establishes an institutional structure for preventing and abating water pollution. It establishes standards for water quality and effluent. Polluting industries must seek permission to discharge waste into effluent bodies.The CPCB (Central Pollution Control Board) was constituted under this act.
1977 - The Water (Prevention and Control of Pollution) Cess Act provides for the levy and collection of cess or fees on water consuming industries and local authorities.
1978 - The Water (Prevention and Control of Pollution) Cess Rules contains the standard definitions and indicate the kind of and location of meters that every consumer of water is required to affix.
1991 - The Coastal Regulation Zone Notification puts regulations on various activities, including construction, are regulated. It gives some protection to the backwaters and estuaries.
1897 - The Indian Fisheries Act establishes two sets of penal offences whereby the government can sue any person who uses dynamite or other explosive substance in any way (whether coastal or inland) with intent to catch or destroy any fish or poisonous fish in order to kill.
1956 - The River Boards Act enables the states to enroll the central government in setting up an Advisory River Board to resolve issues in inter-state cooperation.
1970 - The Merchant Shipping Act aims to deal with waste arising from ships along the coastal areas within a specified radius.
1974 - The Water (Prevention and Control of Pollution) Act establishes an institutional structure for preventing and abating water pollution. It establishes standards for water quality and effluent. Polluting industries must seek permission to discharge waste into effluent bodies.The CPCB (Central Pollution Control Board) was constituted under this act.
1977 - The Water (Prevention and Control of Pollution) Cess Act provides for the levy and collection of cess or fees on water consuming industries and local authorities.
1978 - The Water (Prevention and Control of Pollution) Cess Rules contains the standard definitions and indicate the kind of and location of meters that every consumer of water is required to affix.
1991 - The Coastal Regulation Zone Notification puts regulations on various activities, including construction, are regulated. It gives some protection to the backwaters and estuaries.
Air
1948 – The Factories Act and Amendment in 1987 was the first to express concern for the working environment of the workers. The amendment of 1987 has sharpened its environmental focus and expanded its application to hazardous processes.
1981 - The Air (Prevention and Control of Pollution) Act provides for the control and abatement of air pollution. It entrusts the power of enforcing this act to the CPCB .
1982 - The Air (Prevention and Control of Pollution) Rules defines the procedures of the meetings of the Boards and the powers entrusted to them.
1982 - The Atomic Energy Act deals with the radioactive waste.
1987 - The Air (Prevention and Control of Pollution) Amendment Act empowers the central and state pollution control boards to meet with grave emergencies of air pollution.
1988 - The Motor Vehicles Act states that all hazardous waste is to be properly packaged, labeled, and transported.
1981 - The Air (Prevention and Control of Pollution) Act provides for the control and abatement of air pollution. It entrusts the power of enforcing this act to the CPCB .
1982 - The Air (Prevention and Control of Pollution) Rules defines the procedures of the meetings of the Boards and the powers entrusted to them.
1982 - The Atomic Energy Act deals with the radioactive waste.
1987 - The Air (Prevention and Control of Pollution) Amendment Act empowers the central and state pollution control boards to meet with grave emergencies of air pollution.
1988 - The Motor Vehicles Act states that all hazardous waste is to be properly packaged, labeled, and transported.
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