Post Graduate Diploma in Environmental Management (PGDEM)

Paper - III
ENVIRONMENTAL LAWS

Unit - 5 Environmental Laws

Unit - 6 National Legislations on Environment

Protection

EPCO INSTITUTE OF ENVIRONMENTAL STUDIES

EPCO Paryavaran Parisar, E-5 Arera Colony, Bhopal 462016 (M.P.)
Tel. 2466970, 2464318, 2466859 Fax: (0755)-2462136
Website www.epco.in email: [email protected] , [email protected]

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BLOCK -V
ENVIRONMENTAL LAWS
CONTENT PAGE

Unit - 5 ENVIRONMENTAL LAWS

1. Introduction & Objectives 5
1.1 Environment: Defined and Explained
1.2 Environmental Pollution
1.3 Environmental Challenges
1.4 Objectives
2. Ancient Ethics and Environment Protection 8

3. Indian Constitution and Environment Protection 9

3.1 Introduction
3.2 State Obligation to Protect & Improve Environment
3.2.3 The Fundamental Duty of Citizens to protect Environment
3.2.4 The Right to Wholesome Environment
3.2.5. Right to Constitutional Remedies and Environment
3.2.6 Other Relevant Provisions
4. International Environmental Law Developments 15
4.1. Stockholm Conference on Human Environment, 1972
4.1.1 Contributions of the Conference
4.1.2 Developments Post Stockholm
4.2. Rio Conference on Environment & Development, 1992
4.2.1. The Objectives
4.2.2 The Declaration
4.3 Johannesburg Summit on Sustainable Development, 2002
4.3.1 Salient Features of the Summit
4.3.2 Agenda 21
4.3.3 UN F C C
4.3.4 UN C B D
4.3.5 Forest Principles
4.4 Conventions on Chemicals and Hazardous Waste
4.5 Convention on Ozone Depletion

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4.6 International Principles and Doctrines
4.6.1 Intergenerational Equity
4.6.2 The Public Trust Doctrine
4.6.3 Precautionary Principle
4.6.4 Polluter Pays’ Principle
4.6.5 Preventive Principle

Unit - 6 National Legislations on Environment

Protection
1.0 National Legislations on Environment Protection 35
1.1 The Water (Prevention & Control of Pollution) Act, 1974
1.2 The Water Cess Act, 1977
1.3 The Air Act, 1981
1.4 The Forests and Wildlife Protection Acts
1.4.1 The Forest (Conservation) Act, 1980
1.4.2 The Wildlife Protection Act, 1972
1.5 The Environment Protection Act, 1986
1.5.1 Hazardous waste (Management and Handling)
Rules, 1989
1.5.2 The manufacture, Storage and Import of
Hazardous Chemical Rules, 1989
1.5.3 The Manufacture, Use, Import, &port and Storage
of hazardous Microorganisms/ Genetically
Engineered Organisms or Cells Rules, 1989
1.5.4 Biomedical Waste (Management and Handling)
Rules, 1998
1.5.5 Recycled Plastic Manufacture and Usage Rules,
1999 & Recycled Plastic Manufacture and
usage Amendment Rules, 2002
1.5.6 Municipal Solid Wastes (Management and
Handling) Rules, 2000
1.5.7 Noise Pollution (Regulation and Control) Rules
2000
1.5.8 Ozone Depleting Substances (Regulation and
Control Rules, 2000
1.5.9 Important Notifications
2. Issues in Enforcement 47
2.1 Problems and Perspective

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3. Case Studies 50

3.1 Silent Valley Movement

3.2 Narmada Bachao Andolan
3.3. Bhopal Gas Disaster
3.4 Oleum Gas Leak Case
3.5 R LE K
4. Institutional Arrangement 54
4.1. The C.P.C.B
4.2 The Functions of CP.C.B
5 . Activities 58
6. Summing Up 59
7. Further Readings 60

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Unit - 5 ENVIRONMENTAL LAWS

1. INTRODUCTION & OBJECTIVES

In this course so far we have covered many environmental issues and by now we are clear as
to what environment means to us, why do we need to protect & improve environment. But it
may be noted that our ordinary understanding of the term environment may not suffice when
we think of environment management especially the legal mechanism for ensuring proper
management of environment. The word ‘environment’ is a wide term which could be used to
encompass anything from the whole biosphere to the habitat of the smallest creature or
organism. The term ‘environment’ is used to mean the region, surroundings or circumstances
in which anything exists and everything external to the organism is included in it. It is
derived from an old French word ‘environ’ meaning “encircle”. As you know ‘environment’
is a composite term which may broadly include two constituents: (1) the purely physical or
biotic milieu or environment in which it exists i.e. geographical location, climatic conditions
and the terrain; and (2) the organic or biotic milieu or environment including non-living or
organic matter and other organisms, plants and animals in the region including the population
to which organism belongs. Environment in a generic sense, means the surroundings of the
planet Earth, comprising of air, water, land and other things visible and invisible living in, on
and above the Earth.

1.1 Environment: Defined and Explained

It is difficult to define the term and arrest the scope of its meaning as it is of broad spectrum
which brings within its ambit from hygienic atmosphere to ecological balance, surroundings
to anything other than me etc. Though, it is sometimes defined as the aggregate of social and
cultural conditions that influence the life of an individual or any community. The Random
House Webster’s College Dictionary defines ‘Environment’ as ‘the aggregate of
surrounding things, conditions or influence’. It has also been defined as the aggregate of all
the external conditions and influences affecting the life and development of an organism. It is
said to include whole surrounding objects, regions or circumstances. Thus the whole range of
perceptible surroundings that influence the human life consciously or unconsciously would
qualify as environment. The definition of ‘environment’ has been given in the Environment
(Protection) Act, 1986 under section 2(a) which ‘includes water, air and land and the
interrelationship that exists among and between the water, air, and land, and human beings,

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other living creatures, plants, micro-organisms and property.’ According to the
Encyclopedia 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 to individual.” According to the United States Council on
Environment Quality, “Environment” means ‘man’s total environmental system including no
only the biosphere, but also his interactions with his natural and man-made surroundings.’
The Black’s Law Dictionary defines “environment” as the totality of physical, economic,
cultural, aesthetic, and social circumstances and factors which surround and affect the
desirability and value of property and which also effects the quality of peoples’. According to
Legal Thesaurus, ‘it means atmosphere, aura, circumstances, context, environs, locality,
milieu, situation, surroundings’. The American Heritage Dictionary of Science defines it as
‘all the surrounding things, conditions, and influences affecting the development of living
things.’ Thus keeping in mind above definitions and in particular the definition given in the
Environment (Protection) Act, 1986 the following two propositions emerge:
The expression “environment” includes water, air and land; and
Further the expression includes the interrelationship which exists among and between
water, air and land, and human beings, other living creatures, plants, micro-organisms
and property.

1.2 Environmental Pollution

In order to understand the importance of the definition of environment, it is necessary to
understand at least two important terms related to the present study: (i) Environmental
pollutants; and (ii) Environmental pollution. These two terms have been defined in the
Environment (Protection) Act, 1986 which are appended below:

(i) Section 2(b) of the Environment (Protection) Act, 1986 defines ‘environmental
pollutant’ as “meaning any solid, liquid or gaseous substance present in such
concentration as may be, or tend to be, injurious to environment”.
(ii) Section 2© of the Environment (Protection) Act, 1986 defines ‘environmental
pollution’ as “meaning the presence in the environment of any environmental
pollutants”.
The above two definitions are relevant to appreciate the nature and scope of the study as the
whole discussion revolves around the above terms. Besides, it may be further pointed out that

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different types of pollutions, viz. water pollution, air pollution, noise pollution, hazardous
wastes etc have been defined under other specific laws which would be discussed at an
appropriate place.
1.3 The Environmental Challenges
The world community generally and our country in particular is facing various challenges
relating protection and management of environment, prevention, control and abatement of
pollution, conservation of natural resources and biodiversity, protection of wildlife and flora
fauna. In order to understand the ambit of these problems and their ramifications in our lives
we need to identify the challenges at the outset. It is an un-denying fact that the development
with the use of modern technological and scientific know-how has made our lives more
comfortable and enjoyable but this has also brought into an inevitable enemy i.e. pollution.
The soil is becoming unfertile due to excessive use of pesticides and fertilizers, rivers are
crying and filled with pollution, greenery is fast eroding, the green lungs, i.e. the forests cover
is shrinking. The country is facing the challenge of safe disposal of industrial waste, solid and
liquid hazardous waste and other chemicals. Thus the challenges that we are facing include:

Prevention, control and abatement of different kinds of pollution;

Conservation of natural resources and wildlife;
Protection and management of forests, water resources etc.;
Extinction of species and loss of biodiversity;
Ozone depletion and climate change;
Access to fresh and potable water;
Food security and agriculture;
Eradication of poverty and control of population growth;
Unplanned urbanization and urban environmental problems etc.
1.4 Objectives:
After reading this Unit, you should be able to:
Discuss various legislations for the protection of environment at national level;
Understand various international environmental law developments and how far they
have influenced the national enactments;
Understand the Enviro-Constitutional vision and its different dimensions;
Explain the challenges in protection of environment and enforcement of
environmental legislations; and

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Discuss the role played by different enforcement agencies viz. Pollution Control
Boards, i.e. (C.P.C.B and S P.C.Bs.), the judiciary, people’s movement and the
Ministry of Environment & Forests.

Thus it would suffice to mention that all these developments have led to the protection and
improvement of environment. How and to what extent the bases of environment protection
have been changing is discussed in this text.

2 ANCIENT ETHICS AND ENVIRONMENT PROTECTION

Whenever we commence our discussion on environment protection, we often begin with the
developments that have taken place since 1972, i.e. the Stockholm Conference on Human
Environment held in June 1972. No doubt, the legal framework for protection, improvement
and management of environment has been adopted after 1972 but it would be incorrect to
assume that we did not have any concern for protection of environment before 1972. If we
have a glance at the ancient Vedic literature, i.e. Vedas, Puranas, Upnishads, and Smritis, we
find that the main motto of social life has been to live a life in harmony with Nature. India,
i.e. Bharat is known for its rich cultural and religious practices world-wide. Every religion
enshrines respect for Nature and its components including trees, rivers, wild-life and other
flora and fauna. All the holy scriptures guide us to live a life in harmony with nature, our
dependence of life on various components of nature, respect & protection of natural
environment, divine presence in all living and non-living objects and we all must have
compassion for animate objects e.g. trees, animals, birds, aquatic life etc. Many verses in the
Rigveda and Atharva Veda have been devoted to the praise of Surya Devta (Sun God), Vayu
Devta (God of the Winds), Agni Devta (God of Fire), Varun Devta (God of Water) and the
Prithvi Mata (Mother Earth). Rigveda, Manusmriti and Charaksamhita have emphasized on
the purity of water and its healing and medicinal values. We may recall our worshipful
attitude towards river Ganga, Narmada, Krishna, Godavari etc. It is a popular practice that
any religious ceremony we use water of these rivers in order to purify our places and even
offer water of river Ganga to a person on death bed. Thus when we worship or respect these
elements is it possible and proper for us to pollute them? Rather they should be better
protected, maintained and their purity cannot be ignored. Similarly, trees and plants find a
very respected place in these scriptures. We all know that in number of trees we acknowledge
the divine presence of God like, Pipal, Aanwala, Lotus, Ashoka, Neem, etc and believe them

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to be the pious abode of many Gods/Goddesses. Accordingly, Varaha Puran provides that
‘one who plants a pipal, neem tree or ten flowering plants will not go to hell rather according
to Matsya Puran, plantation of one tree is equal to nourishing ten sons. Cutting of tree and
destruction of flora is considered to be sin in Manusmritis. According to Charak Samhita
destruction of forests is considered to be the most dangerous act for humanity and its welfare.
Protection of wildlife is also amply provided in these texts. Several animals/birds were the
mounts of many Hindu Gods/Goddesses, viz. Lion—Maa Durga, wild goose—Bramha,
Elephant—Lord Indra, Ganesha, Bull—Lord Shiva etc. Thus we can find that the religious
base in India provided a much stronger and better protection to the environment in the form
of our sacred duty to live in harmony with nature and to have compassion for all living
creatures. However, the ever changing greed, avarice and capacity to mould Nature with
which we all are endowed and our ever changing needs made us to exercise control over
nature in utter disregard to our pious duty. We may note that during the British regime many
penal laws, i.e. the Indian Penal Code 1860 and the Code of Criminal Procedure, were
enacted wherein some of the provisions did make it an offence and laid down punishment.
We may have a look at some of the provisions of I.P.C. like section 268 (Public Nuisance),
ss. 269 & 284 (Negligence), s. 285 (Poisonous substances), 286 (Explosive substances), 425-
440 (Mischief) which provide for criminal sanctions. Two other sections which deserve
particular mention are: (i) section 277, relating water pollution, which says ‘whoever corrupts
or fouls water of any public spring or reservoir so as to render less fit for which it is
ordinarily used and (ii) section 278, dealing with air pollution makes it an offence ‘if any
person voluntarily vitiates the atmosphere in any place so as to make noxious to health of
persons in general dwelling’. Similarly, the Code of Criminal Procedure adequately
empowers the Executive Magistrates under sections 133 to 144 to order removal of public
nuisance and also to take care of the urgent cases of public nuisance and lays down a detailed
procedure to be followed by the Executive Magistrates while ordering removal of public
nuisance. Thus we may safely conclude that it is a misnomer to begin our discussion on
environment management from 1972 onwards, our ancient literature did provide adequately
in the form of pious duty to protect natural environment and its other components—animate
or inanimate. During the British regime penal sanctions were imposed for fouling of water,
contamination of air, or throwing other harmful substances etc.

3. INDIAN CONSTITUTION AND ENVIRONMENT PROTECTION

3.1 Introduction:

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As we know that in view of the status of environment at cross-roads, the different countries,
partly by their own experiences about deteriorating environmental status and partly getting
alarmed by international environmental law developments started shaping their legal regime
to protect environment. Since the Constitution is the fundamental law of any country and all
laws not only emanate from the Constitution but also have to be in conformity with it, and
therefore, several countries started internalizing the concern for environment protection in
their Constitution. Often a question is raised: Why should a Constitution provide for
environment protection and not a statute? It may be pointed out that while a statute is a mere
legislative enactment in the usual process of legislation, the Constitution is a Constituent
legislation forming the fundamental or organic law of the land to which all other laws made
by legislature must conform. The Constitution is a creation of sovereign act and thus a
supreme law of the country. It is the source, the jurisprudential fountain head from which
other laws must flow in harmony. A nation’s Constitution is more than an organic Act
establishing governmental authorities and competencies; guarantees citizens’ basic
fundamental rights, provides for separation and distribution of powers; for ultimate
governance of the people and country which is sovereign. The working of the Constitution
needs a detailed study as to how it adapts to the future challenges. In this context it becomes
relevant to take a cursory look at this juncture as to how the Constitution has equipped itself
to combat the menace of pollution and ensure proper protection, improvement and
management of the environment in India.

The Constitution of India (1950), it is often said, was environmentally blind and it rose from
hibernation after the tall claims and commitments made by India at the Stockholm
Conference, 1972. Accordingly, the Constitution (Forty-second Amendment) Act, 1976 was
introduced which injected a new environmental spirit and nutrition to bring back ancient
environmental ethics in the Constitution. Two important changes were introduced: one, the
obligations of the state to protect and improve environment bringing back the Raj Dharma of
Paryavaran, i.e. the State Obligation to protect and improve environment under Article 48-A;
and two, the Praja dharma of Paryavaran, i.e. a Fundamental Duty of the citizens to protect
and improve natural environment under Article 51-A(g) of the Constitution.

3.2 State Obligation to Protect and Improve Environment

Article 48-A of the Constitution provides that “the State shall endeavor to protect and
improve the environment and to safeguard the forests and wildlife of the country.” Further

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Article 51-A (g) of the Constitution provides that, “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.

It may be noted that Article 48-A is a part of directive principles of State Policy enshrined in
Part IV of the Constitution. Though it is said that these directives are active obligations of the
State, they are policy prescriptions for the guidance of the Government. But at the same time
the directive principles of State Policy are non-enforceable by any Court as given under
Article 37. However, it would be wrong to assume that Article 48-A is of no significance.
The experience shows that “although unenforceable by a Court, the directive principles are
increasingly being cited by judges as complementary to the Fundamental Rights. In several
environmental cases the Courts have been guided by the language of Article 48-A. For
example, the Supreme Court’s observation in Sachidanada Pandey v. State of West Bengal,
(1987) 2 SCC 295 depicts the approach adopted by the Court and highlights significance of
the above provision. It observed that,
“Wherever a problem of ecology is brought before the Court, the Court is bound to
bear in mind Article 48-A of the Constitution… and Article 51-A(g)… When the Court
is called upon to give effect to the Directive Principles and fundamental duty, the
court is not to shrug its shoulder 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 must
depend on the circumstances of the case. The Court may always give necessary
directions. “
There are some other provisions apart from Article 48-A in Part IV of the Constitution which
are relatable to the environment management. One such Article is 39(e) of the Constitution
which provides that “the State shall, in particular, direct its policy towards securing… that
the health and strength of workers, men and women, and the tender age of children are not
abused.” Also Article 47 of the Constitution provides that “the State shall regard the raising
of the level of nutrition and standard of living of its people and the improvement of public
health as among its primary duties…” It may be pointed out here that this Article directs the
State to protect and improve the environment without which public health cannot be assured.
This Article has been referred by the Supreme Court in many decisions involving
environmental matters. One may see cases like, Virendra Gaur v. State of Haryana, (1995) 2

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SCC 577; Vellore Citizens’ Welfare Forum v. Union of India, AIR 1996 SC 2715; and M.C.
Mehta v. Union of India, (2002) 4 SCC 356. We would agree that environmental pollution
may cause damage to the monuments of national importance, the protection of which is a
duty of the State under Article 49 of the Constitution. Article 49 of the Directive Principles
of State Policy provides for an obligation of the State to protect monuments, places and
objects of national importance. In M.C. Mehta v. Union of India, AIR 1997 SC 734, the
Supreme Court of India appears to have been guided by Article 49 and it directed that the Taj
Mahal, a monument need be protected from harmful industrial emissions.

3.3 Citizens’ Duty to Protect Environment (the Praja Dharma of Environment)

As pointed out at the beginning that the Constitution (Forty-second Amendment) Act, 1976
inserted Part IV-A, a new Chapter, into the Constitution of India which prescribes certain
fundamental duties for the citizens of India. The Courts have used this provision as an
effective tool for the protection of environment. The Rajasthan High Court in L.K. Koolwal v.
State of Rajasthan, AIR 1988 Raj 1 observed that,
“We can call Article 51-A ordinarily, as the duty of the citizens, but in fact it is the
right of the citizens as it creates right in favour of the citizens to move to the Court to
see that the State performs its duties faithfully and the obligatory and primary duties
are performed in accordance with the law of the land. Omissions or commissions are
brought to the notice of the Court by citizens and thus, Article 51-A gives right to the
citizens to move the Court for the enforcement of the duty cast upon States,
instrumentalities, agencies, departments, local bodies and statutory authorities
created under the particular law of the State.”

Further an observation made the Hon’ble apex court in Rural Litigation and Entitlement
Kendra v. State of Uttar Pradesh, AIR 1987 SC 359 case highlights the significance of the
fundamental duty wherein it observed that, “preservation of environment and keeping the
ecological balance unaffected is a task which not only Government but also every citizen
must undertake. It is the social obligation and let us remind every citizen that it is his
fundamental duty as enshrined in Article 51-A (g) of the Constitution. Giving effect to the
combined reading of the Article 48-A and 51-A (g), the Himachal Pradesh High Court held
that,
“Thus there is both a Constitutional pointed to the State and a Constitutional duty of
the citizens not only to protect but also to improve the environment and to preserve

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and safeguard the forests, the flora and fauna, the rivers and lakes and all other
water resources of the country. The neglect or failure to abide by the pointer or to
perform the duty is nothing short of betrayal of the fundamental law which the State,
and, every Indian, high or low, is bound to uphold and maintain.”
It may be further noted that the fundamental duty to protect and environment extends to
Courts also. Andhra Pradesh High Court has category ruled in T. Damodar Rao v. S.O.
Municipal Corporation, Hyderabad, AIR 1987 A.P. 171 case that protection of the
environment is not only the duty of the citizen but it is also the obligation of the State and all
other State organs including Courts. Thus we may conclude that the insertion of Article 48-A
and 51-A (g) has added green eye in the Constitution and brought in remarkable momentum
in protection, improvement and management of environment.

3.4 Right to Healthy Environment

One very important change that has been left out in the Constitution of India is the express
recognition of a Fundamental Right to wholesome and healthy environment. There may have
been some concerns for non-inclusion of the fundamental right in the Constitution. However,
that does not mean that we do not have a right to live in healthy and wholesome environment.
This Constitutional vacuum has been filled by the Indian judiciary by making an expansive
interpretation of Article 21. Article 21 of the Constitution enshrined in Part III, the chapter on
Fundamental Rights, guarantees us all a fundamental right to life and personal liberty which
includes the right to live in a healthy environment. Article 21 provides that “no person shall
be deprived of his life or personal liberty except according to procedure established by law”.
The Supreme Court has clarified in M.C. Mehta v. Kamal Nath, AIR 2000 SC 1997 case that
‘any disturbance of the basic environment elements, namely air, water and soil, which are
necessary for life, would be hazardous to life within the meaning of Article 21. The Andhra
Pradesh High Court in T. Damodar Rao v. S.O. Municipal Corporation, Hyderabad case held
that “there can be no reason why practice of violent extinguishment of life alone should be
regarded as violative of Article 21 of the Constitution. Slow poisoning of the atmosphere
should be regarded as amounting to violation of Right to Life under Article 21”. In Subhash
Kumar v. State of Bihar, AIR 1991 SC 420 case, the apex court declared that ‘Article 21
includes the right to enjoy pollution free water and air as they are necessary for full
enjoyment of life’. The proactive approach of the Indian judiciary has not only read the right
to environment as part of Article 21 but also has added other components of environment. For
example, in F.K. Hussain v. Union of India, AIR 1990 Ker 321 case the Kerala High Court

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declared that one of the attributes of right to life is a right to potable water as it is one of the
basic elements which sustain life itself. Smoking in any form in public places has been held
to be health hazard and violative of right to life under Article 21. It has been made clear by
the Supreme Court that smoking in public places indirectly deprives a non-smoker of his life
without the process of life. (See, Murali S Deora v. Union of India, (2001) 8 SCC 765 case).

3.5 Right to Constitutional Remedies and Environment

As we know that Article 32 of our Constitution is one of the fundamental rights—known as
the ‘right to constitutional remedies’ for enforcement of fundamental rights. This
constitutional duty of protection of fundamental rights has been cast on the Supreme Court of
India under Article 32 and on the State High Courts under Article 226 of our Constitution.
The Courts while granting relief to the aggrieved and checking activities injurious to
environment have issued orders, directions and writs from time to time. Under the Public
Interest Litigation (PIL) courts possess wide powers to grant relief and prevent any activity
endangering humans and damaging environment. PIL may be brought by any public spirited
person, who may not be an aggrieved person, for a common cause or against any activity or
conduct which adversely affects the public at large or group of persons. However, the Courts
have been careful to discourage private interest or political interest litigations under the garb
of Public Interest Litigation. One may find that although in Subhash Kumar case important
contributions were made by the apex court but the individual petitioner was imposed a
penalty of Rs. 10,000/- for filing a frivolous PIL which was more in nature of private interest
litigation. Further it may also be noted that it is not always necessary to file a proper writ
petition, even in some urgent cases, a letter written to the Supreme Court has been treated to
be a PIL and remedies have been awarded. The case of Rural Litigation and Entitlement
Kendra (RLEK) v. State of Uttar Pradesh is an example of this kind wherein the Supreme
Court accepted a letter written to the Court as a writ petition and was considered to be the
first case of its kind in the country involving issues relating to environment and ecological
balance. The letter was written by RLEK, a voluntary organization. The Supreme Court has
issued directions even without there being any infringement of the fundamental rights. For
example in M.C. Mehta v. Union of India, (1992) 1 SCC 358 (popularly known as
environmental education) case recognized that keeping the citizens informed is a social
obligation of the Government, particularly about the environment free of cost and ordered
that environmental education be introduced compulsorily at all the levels of education; and
there should be mass awareness and education programmes through mass media like, Radio,

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T.V. This order was passed by the Hon’ble Supreme Court under Article 32 of the
Constitution. It may also be remembered that a majority of cases mentioned above were
brought to the courts under Articles 32 and 226 of the Constitution.

3.6 Other Relevant Provisions

Further, the Constitution (Seventy-third and Seventy-forth Amendment) Acts, 1992 have
taken the environmental protection and promotion of ecological aspects down to the grass
root level. The Amendment gave a Constitutional status to the Panchayati Raj Institutions and
vested them with the responsibility of safeguarding various components of environment. One
may seek number of entries given in Schedule XI and XII of our Constitution wherein
responsibility on Panchayats and Nagar Palika have been expressly included. Thus we can
say presently the environment management is vested at all the three tiers of governance, i.e.
Central, State and the units of local self governments. Besides we can infer from Article 51-A
(g) that even citizens have also a duty to protect and improve environment and to have
compassion for other living creatures.

4. INTERNATIONAL ENVIRONMENTAL LAW DEVELOPMENTS

During 1960s the problems of pollution and its harmful effects on the human beings and
other components of environment became rampant which was revealed in the book titled
“The Silent Spring”, authored by Mr. Rachel Carson, a leading biologist. The book made a
very passionate and persuasive examination of chlorinated hydrocarbon pesticides and the
environmental damage by their use. In fact the world community was sensitized to the cause
of environmental hazards and led them to reconsider broader range of actual and potential
environmental hazards and evolve the mechanism to handle such environmental problems.
As the environmental issues were not so rampant, the efforts to meet the challenges also were
also scattered, overlapping and inadequate. But in light of above developments, it was felt
that the environmental challenges were no longer limited to the geographical boundaries but
created trans-boundary pollution. The United Nations joined in action directed at protecting
the environment. In 1968, the General Assembly proposed the holding of a world conference
on human environment to be held in Stockholm in 1972. In 1970s, the Organisation for
Economic Cooperation and Development (OCED) also appointed a Committee for
Environment to look into the environmental problems. In 1971, the Convention of
International Liability for Damage caused by Space Objects was made. The basis of liability

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under the convention was not on the proof of wrongfulness, but on the absolute damage
caused by space objects to the surface of the earth or to aircrafts in flight.

4.1 The Stockholm Conference, 1972

In this background the U.N. Conference on Human Environment was held at Stockholm from
5th to 16th June 1972 to deliberate and decide on the common outlook for the global
environmental problems so as to inspire the world community for preservation and
improvement of the environment. It was one of the most successful international conferences
on protection of environment attended by one hundred and thirteen countries. The half
hearted approach for protection of environment may be noted from the fact that out of 113
countries only two countries were represented by their head of state i.e. India and Sweden—a
host country. This means that the nations of the world were still not convinced that the
protection of environment was a serious agenda. But the success of the conference may be
noted from the fact that it had produced three most important documents: (i) an ‘Action Plan’
to protect global environment containing 106 recommendations for environmental
management; (ii) the United Nations Environment Program and the related Environment
Fund; and (iii) the Stockholm Declaration on the Human Environment containing twenty six
principles. The U.N. General Assembly in announcing the main purpose of the Conference
observed that,
“the main purpose was to serve as a practical means to encourage, and provide
guidelines for, action by Governments and international organizations designed to
protect and improve the human environment, and to remedy and prevent its
impairment, by means of international cooperation, bearing in mind the particular
importance of enabling developing countries to forestall occurrence of such
problems.”
The purpose of the Conference may be summarized as:
To encourage and provide guidelines;
For action that the governments and international organizations would initiate;
The actions of the governments and international organizations to be designed to
protect and improve human environment;
To remedy and prevent the impairment of environment
Through the tools of international cooperation;

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With emphasis on the importance of enabling developing countries to forestall
occurrence of environmental problems.
The Stockholm Action Plan document was a comprehensive effort to identify international
environmental issues and provide a roadmap for participating nations to combat those
challenges. It was comprised on 106 separate priority recommendations which included
twenty specific recommendations. The international action was solicited in the following five
major areas:
Planning and managing human settlement for environmental quality;
Addressing the environmental aspects of natural resources management;
Identifying and controlling pollutants of broad international significance;
Exploring and strengthening the educational, informational, social and cultural
aspects of environmental issues; and
Addressing the integration of development and environment.
Another document that was passed is called the Stockholm Declaration on the Human
Environment and contained twenty-six principles of policy called as Magna Carta on Human
Environment. These Principles ought to be followed by the States for preservation, protection
and improvement of human environment. Some of the principles relevant for the present
study are as follow:
Principle -1: “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 he bears a solemn responsibility to protect and improve the environment.”

Principle – 2: “The Natural Resources of the earth including air, water, land, flora
and fauna must be safeguarded for the benefit of present and future generations
through careful planning and management.”

Principle – 21: “States have the sovereign right to exploit their own resources
pursuant to their environmental policies and the responsibilities to ensure that the
activities within their jurisdiction do not cause damage to the environment of other
states.”

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Principle – 22: “The States shall co-operate to develop the international law relating
to liability and compensation for the victims of pollution and other environmental
damage.”

The above Principles read with Action Plan recommendations have many lessons to give so
far as environmental care and protection is concerned. The Stockholm Conference made
‘environment protection’ as an area of international concern and led to the
internationalization of environmental protection—the new environmentalism.
Environmentalism is a movement to protect the environment.

4.1.1 The Contribution of the Conference

Principle 1 recognizes that 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. Thus it may be seen from this principle that emphasis of the international
community is on quality environment that allows life of dignity and well being. It means the
qualitative life in an environment free from pollution. This principle also imposes an
obligation—a solemn responsibility, on everyone to protect and improve the environment not
only for present but future generations also. The element of ‘intergenerational equity’ in the
form of solemn responsibility of the present generation is articulated.

Principle 2 of the Stockholm Conference lay emphasis on safeguarding natural resources and
suggests the mechanism for the same for the benefit of present and future generations through
a careful planning and management. Careful planning and management became a mantra for
conservation, protection and management of natural resources. Another very important facet
of the principle is the emphasis of international community on protection of some of the vital
resources like air, water, land, flora and fauna as the basic elements for survival of mankind
on the earth.
Principle 21 is a double-edged commitment of the international community. On one hand it
gives nations the sovereign right to exploit their own resources through proper planning. And
on the other it imposes restrictions on the activities so as not to damage the environment of
other countries. It may be pointed here that pollution knows no boundaries. It gets easily
transmitted, percolated to other nations artificially created geographical boundaries and
causes contamination and pollution of resources. The Climate change may be seen as one of
the effects of such trans-boundary harm.

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Principle 22 of the Declaration exhorts the cooperation of the world community to develop
international law to compensate the victims of pollution and environmental damage.
one of the most important outcomes of the Declaration is that it has established linkage
between environment and development issues providing that neither of them are superior
concerns, nor antithesis to each other but are complementary. It placed primary responsibility
for environmental protection on the governments and people. This points the internalization
of the concept of sustainable development without clearly defining it. It may be pointed out
that although the term sustainable development was, for the first time, used at Cocoyoc
Conference on Environment and Development, 1967. While using the term, the delegates
might not have even dreamt that in the days to come it would become an important slogan, a
mantra for environmental governance worldwide and the agenda for future growth and
development. The term came to be used as an important means of interlinking of human
rights and environment at the Stockholm Declaration wherein it was provided that ‘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. Further that he (man) bears a solemn
responsibility to protect and improve the environment for present and future generations’.
Thus the Stockholm Declaration may be called a ‘visionary document’ and is often referred
to as ‘Magna Carta’ on environment protection. Looking to the success of Stockholm
Conference, a large number of other Organizations also became involved in protection of
environment viz, the International Maritime Organisation, the U.N.E.P., the UNESCO, and
the International Union for the Conservation of Nature (IUCN). Several treaties have been
signed at their behest and otherwise during the decade. They are given below:
The Treaties on trans-boundary pollution include: (a) Convention on Long Trans-boundary
Air Pollution, 1979; Protocol Concerning Co-operation in Combating Pollution in cases of
Emergency, 1981.
The Treaties on Marine Pollution include: (a) Convention on Prevention of Marine Pollution
by Dumping of Wastes and other Matter, 1972; Convention on Prevention of Pollution by
Dumping from Ship and Aircraft, 1972; International Convention for Prevention of Pollution
from Ships, 1973; Protocol relating to the Intervention on High Seas in cases of Pollution by
substances other than Oil, 1973; Convention on Prevention of Marine Pollution from Land –
based Sources, 1974.
The Treaties on Protection of Wildlife and Flora and Fauna include: (a) Convention on
International Trade in Endangered Species (CITES) of Wild Flora and Fauna, 1973;
Agreement on Conservation of Polar Bear, 1973; Bonn Convention Agreement on

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Conservation of Species of Wild Animals, 1979; the Conservation on Wetlands of
International Importance, 1971; Protection of World Cultural and Natural Heritage, 1972 (at
the initiatives of the UNESCO); Convention on the Conservation of Wildlife and Natural
Habitats, 1979.

4.1.2 Developments Post Stockholm

In 1983, the UN General Assembly appointed a Commission, headed by the Prime Minister
of Norway, Mr. G.H. Brundtland, ‘to re-examine the crucial issues of environment and
formulate ‘innovative’, ‘concrete’ and ‘realistic’ action proposals to deal with them’. The
Commission, with these two specific terms of reference, engaged in serious discussions, and
deliberations for four years and came out with a ‘Strategic Document’ divided in three Parts
i.e. (i) Common Concerns, (ii) Common Challenges; and (iii) Common Endeavors. This
Document, titled as, Our Common Future has not only given recognition to the concept of
‘sustainable development’ but also defined the concept as:
‘The Sustainable Development’ is the development that meets the needs of the present
without compromising the abilities of future generations to meet their own needs’.

This definition of sustainable development received universal acceptance. It also added a new
dimension to the concept by providing for sustainable use of resources so as to ensure the
equity among the present generation and also the availability of resources to meet the “needs”
of future generations. The concept imposed restrictions on indiscriminate use of resources for
the welfare of the present generation, although it permits everyone a right to live a life of
dignity in an environment of quality and this clause when read carefully exhorts the need to
create balance between development and environment. The document has provided ‘twenty-
two’ Legal Principles for environmental protection and sustainable development. Principle 1
declares that ‘all human beings have the fundamental right to an environment adequate for
their health and well-being’. Principle 2 enunciates the doctrine of inter-generation equity. It
reads, “State shall conserve and use the environment and natural resources for the benefit of
present and future generations. Other principles relate to the obligations and rights
concerning transboundary natural resources and environmental interference and include
principles of strict liability and compensation for substantial trans-boundary harm. The
Commission recommended that ‘human laws must be formulated to keep human activities in
harmony with the unchanging, and universal laws of nature’. Principle 21 provides for State
responsibility for breach of an international obligation regarding the environment and

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payment of compensation for the harm caused. And finally it declares that States shall settle
environmental disputes by peaceful means such as mutual agreement, conciliation, arbitration
and judicial settlement under Principles 22.

Other important contributions of the Commission in the form of recommendations include:

(i) That economic growth must be stimulated, particularly in developing
countries, while enhancing environmental resource base,
(ii) Must be of a kind in which sustainability, equity, social justice, and
security are firmly embedded as major social goals i.e. change the
quality of growth.
(iii) Conserve and enhance resource base by using them ‘efficiently’;
(iv) Reorient technology and manage risks as the technology creates risks,
but it also offers the means to manage them,
(v) Integration of environment and economics in decision making ;
(vi) Strengthen international co-operation by giving higher priority to
environmental monitoring, assessment, research & development, and
resource management in all fields of international development.
It was also resolved by the U.N. General Assembly in Dec 1988, that a Conference on
Environment and Development be convened in 1992 which was held at Rio-de-Janeiro,
popularly known as “Earth Summit”.

4.2. Rio Conference, 1992 (The Earth Summit)

The Rio Conference marked continuation of the process of environmentalism started at
Stockholm. It further strengthened the concerns, e.g. the concept of sustainable development
which marked a beginning in an unclear way. At Rio, it got strengthened, concretized with a
commitment of its implementation and was accepted to be new ‘mantra’ of environmentalism
and development. Some of the important features of the Rio Conference are given below:
4.2.1 The Objectives:
Some of the important Objectives include: (i) to examine the state of the environment and
changes since Stockholm; (ii) to identify regional and global strategies to address major
environmental issues in the socio-economic development processes of all countries within a
particular time-frame; (iii) recommend national and international measures to protect and
enhance the environment, taking into account the specific needs of developing countries; (iv)
promote further development of international environmental law, taking into account the

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Stockholm Declaration… and examine in this context ‘the feasibilities of elaborating general
rights and obligations of states as appropriate in the field of environment, and taking into
account relevant existing international legal instruments.
With these high sounding objectives, the Conference excessively deliberated on the so called
‘second generation environmental issues’ relating climate change, loss of biodiversity, green
house gases effect, depletion of ozone layer, loss of forest cover etc and handed out five
major documents viz. The Rio Declaration, (ii) Convention on Climate Change; (iii) A
statement of Forest Principles; (iv) Convention on Bio Diversity; and (v) the Agenda 21. The
salient features of the five documents, the product of Earth Summit, 1992, are as follow:
4.2.2 The Rio Declaration
The Preamble of the document opens with reaffirming its commitment made at the United
Nations Conference on the Human Environment, Stockholm 1972 and seeking to build upon
it, with the goal of establishing a new and equitable global partnership through the creation of
new levels of cooperation among States, working towards international agreements which
respect the interests of all to protect the integrity of the global environmental and
developmental system, recognizes the integral and interdependent nature of the Earth, our
home, makes twenty-seven proclamations. These proclamations are in the form of Principles
of document called, Rio Declaration. Some of the important principles of the Declaration
include:
Principle-1 of the Declaration emphasizes on ‘Sustainable Development’ which reads,
“Human beings are at the centre of concerns for sustainable development. They are
entitled to a healthy and productive life in harmony with nature”.
Principle 2 Endorses the sovereign right to exploit natural resources as given under Principle
22 of the Stockholm Declaration, exhorts the member nations to equitably meet their
environmental and developmental needs of present and future generations under Principle 3
which reads,
“The right to development must be fulfilled so as to equitably meet the developmental
and environmental needs of present and future generations.”
Other principles aim at eradication of poverty by seeking cooperation of all states and its
people as an indispensable requirement for sustainable development. This principle exhorts
all states to cooperate in poverty eradication programs so as to eradicate disparities in
standards of living and to meet the needs of the majority of the people of the world.
Reduction and elimination of unsustainable patterns of production and consumption and
promotion of demographic policies is enshrined under Principle 8 which reads,

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“To achieve sustainable development and a higher quality of life for all people, States
should reduce and eliminate unsustainable patterns of production and consumption
and promote appropriate demographic policies.”
Principle 10 recognises that environmental issues are best handled with the participation of
all concerned citizens, at the relevant level. It further provides access to information to all the
people and states that: (i) at the national level, each individual shall have the appropriate
access to information concerning the environment that is held by public authorities including
information on hazardous materials and activities in their communities; and (ii) that each
individual shall have the opportunity to participate in decision-making process. It charges the
states with a responsibility to facilitate and encourage public awareness and public
participation by making information widely available. The Principle 22 besides recognizing
the significance of the use of knowledge of the indigenous people in protection and
improvement of environment also provides for protection of their knowledge for sustainable
development. Principle 22 reads,
“Indigenous people and their communities, and other local communities, have a vital
role in environmental management and development because of their knowledge and
traditional practices. States should recognize and duly support their identity, culture
and interests and enable their effective participation in the achievement of sustainable
development.”
Further, in June 1997, the UN General Assembly held a special session called, “Rio+5”, to
take an account of the progress of sustainable development after Rio Declaration. It was
confirmed on the basis of most ecological indicators that little or no improvement has been
made in this regard. This failure seen in the light of the high sounding promises and
commitments made at Rio, the General Assembly exhorted for greater leadership in future.
4.3 World Summit on Sustainable Development, Johannesburg, 2002
Year 2002 added another landmark chapter in the history of international environmental law
development when World Summit on Sustainable Development was held at Johannesburg,
(South Africa) from 26 August to 4th September. It was attended by the delegates of about
191 countries. At the Summit, Mr. Kofi Annan, the UN Secretary General observed that,
“The model of development we are accustomed to have been fruitful for the few, but
flawed for many. A path to prosperity that ravages the environment and leaves a
majority of humankind behind in squalor will soon prove to be a dead end road for
everyone.” He hoped that “the World Summit on Sustainable Development in

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Johannesburg would mark the opening of a new chapter of responsibility, partnership
and implementation.”
This observation of the U.N. Secretary General unfolds many myths about the sustainable
development of the international environmental law for protection and improvement of
environment. It highlights the fact as to how few nations have been benefited and others were
not. This practice, according to Mr. Kofi Annan, will soon ‘prove to be a dead end road for
everyone’ and thus needed special attention at the hands of participating nations in the World
Summit on Sustainable Development, 2002. The Conference, besides being important from
international environmental law perspective, also marked completion of ten year’s journey
and thus the time to take an audit of the progress made since Rio. The subsequent discussion
brings out the salient features of the Summit, its outcome and the directions.

4.3.1 The Salient Features of the Summit

The Summit introduced a new dimension to the concept of sustainable development by
including a component of social development along with economic development and
environment protection. The eradication of poverty once again became a focal point and its
eradication became the cornerstone of sustainable development. Johannesburg Plan of
Implementation provided for the establishment of World Solidarity Fund to eradicate poverty
and promote social and human development. The summit stressed on the effective
implementation of the ‘precautionary and polluter pays principles’ as contained in Principle
15 & 16 of the Rio Declaration, 1992. It also emphasized that good governance within each
country and at the international level is essential for sustainable development. Other
important features include:
It recommended that peace, security, stability and respect for human rights and
fundamental freedoms, including the right to development, as well as respect for
culture were essential for achieving sustainable development.
It acknowledged the importance of ethics for sustainable development and
emphasized the need to consider ethics in implementation of Agenda 21.
Mobilization of the provisions of capacity building, technology transfer and diffusion
of environmentally sound technologies.
It recommended utilization of the financial instruments and mechanisms to provide
financial resources to developing countries, particularly to the least developed
countries.

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It recommended for change in unsustainable pattern of production and consumption.
It highlighted the need to promote the ratification and implementation of International
Environmental Treaties.
It emphasized that the Convention on Climate Change and the Kyoto Protocol, 1997
are significant instruments to achieve sustainable development.
That biodiversity plays a critical role in overall sustainable development and poverty
eradication and thus is essential to our planet, human well being and to the livelihood
and cultural integrity of people.
The Plan reiterated its stand that a vibrant and effective UN system is fundamental for
promotion of the international cooperation for sustainable development.
The Plan of implementation proclaimed that the Commission on Sustainable
Development should continue to be the high-level commission within the UN system
and serve as a forum for consideration of issues relating integration of the three
components of sustainable development.

It further declared that the primary responsibility of promoting sustainable

development at national level vests in the respective nations and therefore all
countries should promote sustainable development at national level by enacting and
enforcing clear laws that support the sustainable development.

From the above discussion it is clear that the sustainable development became the guiding
principle and the ‘mantra’ of global governance. Therefore it becomes important to take an
account of the journey of the concept of sustainable development and its significance in the
contemporary world as the succeeding chapters would be focusing on internalization of these
concepts in the Constitutions.
4.3.2 The Agenda 21
A very comprehensive document—having forty chapters with over 800 pages is a detailed
blueprint for the future implementation of the sustainable development. In the addition to the
Preamble, the document is divided into four major Sections: (i) Social and Economic
Dimensions; (ii) Conservation and Management of Resources; (iii) strengthening the role of
major groups; and (iv) Means of Implementation. Agenda 21 provides a framework for
evaluating the progress of different levels of government in achieving the integration of
environment and development. It is a non-binding instrument and provides certain strategies

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and other detailed programmes to contain environmental degradation and to promote
environmentally sound and sustainable development.

4.3.3 U.N. Framework Convention on Climate Change, 1992

The document consisting of 27 Articles, aims to ‘stabilize greenhouse concentration in the
atmosphere at the level that would prevent anthropogenic interference with climate system’.
It has provided that (i) each State party shall make national policies and take corresponding
measures on the mitigation of climate change by limiting its anthropogenic emission of
green-house gases and (ii) protecting and enhancing its green-house gas sinks and reservoirs.
The Kyoto Protocol of 1997 is a part of this Convention as Article 17(1) provided that the
conference of the parties may adopt Protocols to the Convention. The object of the UN
Framework Convention on Climate Change, 1992 is ‘to achieve stabilization of greenhouse
gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic
interference with the climate system’. Accordingly the Convention aims at achieving such a
level within a time frame sufficient to allow ecosystems to adapt naturally to climate change,
to ensure that food production is not threatened and to enable economic development to
proceed in a sustainable manner. Article 3 of the Convention provides that the State parties
should protect the climate system for the benefit of present and future generations of
humankind on the basis of equity and in accordance with their common but differentiated
responsibilities and respective capabilities. It also provides for the States to take
precautionary measures to anticipate, prevent or minimize the causes of climate change and
mitigate its adverse effects. It gives the State parties a right to sustainable development and
duty to promote it and also cooperate to promote a supportive and open international
economic system that would lead to a sustainable economic growth and development in all
countries. This provision of the document when read in light of Principle 7 of the Rio
Declaration, 1992 creates a controversy. Principle 7 of the Rio Declaration reads,
“States shall cooperate in a spirit of global partnership to conserve, protect and
restore the health and integrity of the Earth’s ecosystem. In view of the different
contributions to global environmental degradation, States have common but
differentiated responsibilities. The developed countries acknowledge the
responsibility that they bear in the international pursuit of sustainable development in
view of the pressures their societies place on the global environment and of the
technologies and financial resources they command.”

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This concept of common but differentiated responsibility is highly controversial for the
following reasons:
(i) that it imputes differentiated responsibilities to States in accordance with their
different levels of responsibility for causing the harm; and
(ii) that fixes differentiated responsibilities on the different capacities of the
States, namely, the technological and financial resources they command.
4.3.4 Convention on Biological Diversity, 1992
The Convention, consisting of 42 articles, aims to develop national strategies, plans and
programs for conservation and sustainable use of bio-diversity besides providing for ‘in-situ’
and ‘ex-situ’ conservation measures. It also has provisions to ‘encourage customary use of
biological resources in accordance with traditional cultural practices’ that are compatible with
conservation or sustainable use requirements. Article 10 dealing with sustainable use of
components of biological diversity provides that,
“Each contracting State shall, as far as possible and as appropriate:
integrate consideration of the conservation and sustainable use of biological
resources into national decision-making;
adopt measures relating to the use of biological resources to avoid or minimize
adverse impacts on biological diversity;
protect and encourage customary use of biological resources in accordance
with traditional cultural practices that are compatible with conservation or
sustainable use requirements;
support local population to develop and implement remedial action in
degraded areas where biological diversity has been reduced; and
encourage cooperation between its governmental authorities ad its private
sector in developing methods for sustainable use of biological resources.”
There are also suggestions to provide incentive, research and training, public education and
awareness and introduce impact assessment of the projects likely to have significant adverse
effects on biological diversity with a view to avoid or minimize such effects and allow public
participation in such procedure. The document provides for access to and transfer of
technology among the nations and makes it obligatory for developed countries to provide
new and additional financial resource. Article 20 of the document directs the developed
countries to provide new and additional financial resources to enable developing countries to
meet the agreed full incremental costs for implementing measures which fulfill the

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obligations of this Convention. It may be pointed out that conservation of biological
diversity, sustainable use of its components and fair and sharing of benefits arising out of
utilization of genetic resources are the objectives of the Convention on Biological Diversity.
However, looking to the scheme of document a query may be raised that will it be possible to
protect biological diversity?

4.3.5 Forest Principles

Forests, the green lungs of a nation have come under severe attack owing to developmental
activities. They have led to deforestation, desertification. The total forest cover of every
nation has been on decrease. The significance of forests cannot be undermined for ensuring
healthy life on the planet. Looking to the scenario, the participating states at the Earth
Summit, 1992 adopted a statement of principles for the sustainable management of forests.
The agreement is titled as, Forests Principles: Non-Legally Binding Authoritative Statement
of Principles for a Global Consensus on the Management, Conservation and Sustainable
Development of all Types of Forests. It contains fifteen principles, out of which thirteen of
them are merely recommendatory in nature as to what states ‘should do’ to ensure sustainable
forestry principles. These principles, unlike other documents handed down in Earth Summit,
calls for information and technological exchange among the parties to the agreement. It
encourages public participation, including that of indigenous peoples likely to be affected by
a proposed forest project. It also acknowledges the extreme importance of sustainable
forestry practices.
It may be pointed that the developed nations, like United States, pursued their goal of a
binding global forest management and protection treaty at the Earth Summit, 1992. But
several developing countries, including India and Malaysia, strongly resisted a binding treaty.
Developing countries viewed industrialized nations’ attempts at negotiating a binding
agreement as a means of compromising their sovereign right to exploit their own resources.
This document has been criticized for being a non-binding in nature.
4.4 Conventions on Chemicals and Hazardous Wastes
In 1982, UNEP decided to deal with the problem of growing Trans boundary transportation
and disposal of toxic wastes after an adhoc-working group of environment experts met in
Montevideo, Paraguay. In 1985, UNEP issued the Cairo Guidelines and Principles for the
Environmentally sound Management of Hazardous Wastes. In June 1987, UNEP established
a Draft Convention on the Trans boundary shipment of Hazardous Waste and created an
adhoc working group composed of legal and technical experts. This group finally developed a

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recommendation for the Basal Conversation. After two years of intense and divisive debate
on Mach 22, 1989, 34 Nations signed the Basel Conventions.

The Base Convention on the Control of Trans boundary Movement of Hazard Ous Wastes
and their Disposal was adopted in 1989 and enforced on 5 may 1992. The Convention is
considered the response of the international community to their problem caused by the annual
worldwide production of 400 million tonnes of wastes which are hazardous to people or the
environment because they are toxic, poisonous, explosive, corrosive, flammable, eco-toxic, or
infectious.

The main principles of the Basel Convention are: Trans boundary movement of hazardous
waste should be reduced to a minimum consistent with their environmentally sound
management.
1. Hazardous waste should be treated and disposed of as close as possible to their source
of generation.

2. Hazardous waste generation should be reduced and minimized at source itself.

In order to achieve the three main principles, the convention established its secretariat to
control the Tran boundary movement of Hazardous Waste, to monitor and prevent illegal
traffic, to provide assistance for the environmentally sound management of hazardous waste,
to cooperate with, party countries or promote cooperation between parties, and to develop
technical guidelines for the management of hazardous wastes. The convention is further
modified in the third meetings and it has decided to bait exports of hazardous wastes to
developing countries, on the grounds that those countries mostly have neither the expertise
nor the facilities to manage such wastes.

4.5 Conventions on the Ozone Layer

Ii is now generally understood that ozone is constantly created, destroyed and recreated in the
upper part of the atmosphere (i.e. the stratosphere) by numerous photochemical reactions.
Some chemicals such as chlorofluorocarbons (CFCs), Nitrous Oxide, Methane and other
gases tend to change this equilibrium. Because CFCs are particularly stable compounds, they
do not break up in the lower atmosphere (i.e., the troposphere). Instead, they gradually
transgress to the stratosphere where, in the presence of ultraviolet radiation, they are broken
down, releasing chlorine. This free-floating chlorine acts as a catalyst and destroys ozone.

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Laboratory work indicates that one chlorine atom can destroy about 100,000 ozone
molecules. This destructive process has significant implications for human health and has
important impacts on plants; aquatic organisms and man-made the materials as ozone layer in
stratosphere stop harmful ultraviolet radiations. There is now evidence that the increased
ultraviolet radiation, which directly results from ozone depletion, induces certain types of
skin cancer, suppresses or destroys the human immune system and causes cataracts. Many
varieties of terrestrial and aquatic plants are also affected by increases in ultraviolet radiation.
Further, any species of phytoplankton, which provide food for nearly all fish, are also in
danger. What is more, ultraviolet radiation reaching the earth’s surface following
stratospheric ozone depletion contributes, along with other forms of air pollution, to property
damage such as fading paint yellowing of window glazing and chalking of polymer
automobile roofs.

The United Nations Environment Programme (UNEP) has been addressing this issue since
1977. Under the auspices of UNEP, the nations of the world arrived at The Convention for the
Protection of the Ozone Layer in Vienna in 1985. Through this Convention, nations
committed themselves to protecting the ozone layer and to co-operation with each other in
scientific research to improve understanding of the atmospheric processes and serious
consequences of ozone depletion The Convention provided for future protocols and specified
procedures for amendment and dispute settlement.

To pursuant the objectives of convention for the protection of ozone layer the Montreal
Protocol on Substances that Deplete the Ozone Layer was agreed to by nations in 1987 and
has since been amended five times so far. Its control provisions were strengthened through
five amendments to the Protocol adopted in London (1990), Copenhagen (1992), Vienna
1995), Montreal (1997) and Beijing (1999). The Protocol aims to reduce and eventually
eliminate the emission of man-made ozone depleting substances.

The Vienna Convention and Montreal Protocol are considered a highly effective regime for
reducing— and possibly, in the future, eliminating — emissions of ozone layer-depleting
chemicals. Unlike most environmental agreements, the Montreal Protocol contains economic
incentives to encourage participation and compliance. The parties have agreed to establish a
working group to develop recommendations concerning the determination and consequences
of non-compliance. The Montreal Protocol uses three kinds of provisions as economic
incentives to encourage participation and compliance with the Protocol’s control regime; (1)

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entry into force requirements, (2) controls on trade with non-parties, and (3) research and
technology transfer benefits. The Montreal Protocol provides in its Article 16 that eleven
countries representing two-thirds of global consumption of controlled substances must ratify
the Protocol before it may enter into force. Thus, the Protocol creates a cartel of consumers
who control the consumption market, and who have agreed to reduce their consumption. The
Montreal Protocol also provides a gradual ban on trade with non-parties. The Protocol
promotes technology transfer to developing countries, thereby offering economic incentives
for developing countries to join and comply.

Indian Prime Minister Atal Bihari Vajpayee addressed the meeting. The Government of Italy
from 1-12 December 2003 will host COP9 Conventions on Biodiversity
Although not formally part of the UNCED preparatory process, the Rio Summit provided
political impetus for completing the negotiations on the Convention on Biological Diversity
(CBD), this was not part of the formal UNCED process, but was an important parallel
outcome. The aim of the CBD is to promote the conservation and sustainable use of
biodiversity through commitments relating for example to: promoting scientific and
technological co-operation, establishing protected areas, eradicating alien species, respecting
and maintaining traditional knowledge and practices, and providing financial resources. In
January 2000, the Cartagena Bio safety Protocol was adopted to address potential risks
associated with cross-border trade and accidental releases of living modified organisms. It is
hoped that this Protocol will be ratified at the Johannesburg summit 2002.

4.6 International Principles and Doctrines

Noted from the above discussed international environmental law developments, it is found
that one common theme reflected from Stockholm Declaration 1972 to the Johannesburg
Conference, 2002 and beyond, the thrust of international community rather world community
is on ‘sustainable development’. Therefore, it is appropriate to take a holistic look at the
features of sustainable development, its contours and their impact on protection,
improvement and management of environment. The principles that may be culled out of the
concept of sustainable development include: the polluter pays principle, precautionary
principle, preventive principle, the public trust doctrine, and intra/intergenerational equity.
Being part of the sustainable development process these principles are briefly discussed
hereunder with a view to understand their relevance in contemporary situation and also the
views of scholars and authorities on these contours of sustainable development.

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4.6.1 The Intergenerational Equity
One of the cardinal principles of the concept of sustainable development, as culled out from
the Brundtland Commission Report, is the principle of intergenerational equity. The theory of
intergenerational equity stipulates that we, human beings hold natural environment of our
planet in common with all our species, past generations, the present generation and future
generations. As members of the present generation, we hold the earth in trust for future
generations. At the same time, we are beneficiaries entitled to use and benefit from it. And
the present generation also has the corresponding duty to maintain the quality of natural
system as the theory of intergenerational equity stipulates that all generations have an equal
place in relation to the natural system. Professor Edith Brown Weiss is the leading scholar on
the principle of intergenerational equity. She describes intergenerational equity as the basis
for the duty the present generation to protect the natural environment for future generations.
Each generation, according to her, has a right to use and enjoy the natural system. She further
emphasizes that the present generation must not allow that system to be destroyed or
compromised in a way that diminishes the inheritance left the next generation. David Hunter
argues for right and duty relationship in the intergenerational equity and says that it gives
positive right to use natural resources but a corresponding duty to maintain the quality of
natural system for the use of future generations. He identifies three basis of the principle
which includes: (i) conservation of options, (ii) conservation of quality, and (iii) conservation
of access. However, this doctrine of inter-generation equity came under severe criticism at
the hands of different scholars’ viz. Henry Smith points to the problem of identifying interest
and needs of future generation and says—(i) how long will it take to identify the interest of
future generations; and (ii) what shall be the means of future generations?

4.6.2 The Public Trust Doctrine

Another very important dimension of the principle of sustainable development is the ‘public
trust doctrine’ which has its origin in the early Roman law. It is founded on the idea that
common properties like water, air and forests (the principal components of environment and
nature’s gift) are held by the governments in trust for free and unimpeded use of general
public. Under the Roman law these properties were classified under the head of ‘res extra
commercium’ meaning things out of patrimony i.e. owned by none but belong to the
community called res commune. Looking to their nature and significance in our lives, these
common properties were kept out of individual ownership and were given under custody and

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not ownership of the state for the sake of regulating use of common property resources. The
public trust doctrine depicts the same philosophy and thus according to Professor Sax, it
imposes following restrictions:
The property subject to trust must not only be used for a public purpose, but it must be
held available for use by the general public;
The property must not be sold even for a fair cash equivalent; and
The property must be maintained for particular types of uses.
Thus, the doctrine is negative ownership of natural resources by the states, and prohibits the
states not only from misusing or allowing misuse of resources but to protect them for the
present and future generations on the grounds that environment is no one’s property. The
state holds them as a trustee and it is the trustee’s responsibility to maintain status quo of the
property besides protecting it from damage or destruction and preventing its misuse.
However, the state has to regulate reasonable use of resources for ensuring life of dignity in
an environment of quality. The doctrine requires that developmental and environmental needs
of the present and future generations must be fulfilled equitably.

4.6.3 Precautionary Principle

Another very important part of the ‘sustainable development’, precautionary principle
requires that the developmental activities must be stopped and prevented if they are likely to
cause serious and irreversible damage. At the Rio Conference, the Earth Summit 1992,
Principle 15 of the ‘Rio Declaration’ explicitly contained a provision which reads:
“In order to protect the environment, the precautionary principle approach shall be
widely applied by the states according to their capabilities. Where there are threats of
serious or irreversible environmental damage, lack of scientific certainty shall not be
used as a reason for postponing cost-effective measures to prevent environmental
degradation.”

Similarly the U.N. Framework Convention on Climate Change, 1992 obliges parties,
“to take precautionary measures to anticipate, prevent, or minimize the causes of
climate change and mitigate its adverse effects. Where there are threats of serious or
irreversible environmental damage, lack of scientific certainty shall not be used as a
reason for postponing such measures…”

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From the above three postulates, it emerges that:
The environmental measures, taken by the state governments and the statutory
authorities, must anticipate, prevent and attack the causes of environmental
degradation,
Where there are threats of serious or irreversible damage, lack of scientific certainty
should not be used as a reason for postponing measures to prevent environmental
damage,
The “onus of proof” is on the actor or the developer/industrialist to show that his
action is environmentally benign.
Thus the Precautionary Principle involves anticipation of environmental harm and taking
measures to avoid it or to choose the least environmentally harmful activity. It rejects the idea
of scientific uncertainty and provides that environmental protection should not only aim at
protecting health, property and economic interest but also protect the environment for its own
sake.

4.6.4 The Polluter Pays Principle

One of the most important and useful international environmental law principles, as part of
sustainable development, is the ‘Polluter Pays Principle’. Although the principle was
propounded in 1868 but not so clearly articulated. It has further been developed by the
Organisation of Economic Cooperation and Development (OCED) in early 70s which has
come to mean that one who pollutes will have to bear the cost of making good the loss caused
to the victims of pollution i.e. to the human beings, other living creatures and to the
environment itself. The principle further found a very prominent place before the
international community at Rio Conference, 1992 wherein Principle 16 of the Declaration
provided that ‘national authorities should endeavor to promote internalization of
environmental costs and the use of economic instruments, taking into account the approach
that the polluter should, in principle, the cost of pollution, with due regard to the public
interest and without distorting international trade and investment.’ Thus the principle aims at
making the creator of the activity accountable and to bear the cost of preventing or dealing
with pollution which is caused by his industrial processes. It is used for allocating costs of
pollution prevention and control measures to encourage rational use of scarce environmental
resources and to avoid distortions in international trade and investment.

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4.6.5 The Preventive Principle
The principle discussed above becomes operative when environment has already been a
casualty and then restoration of damage is to be undertaken which is a difficult process.
Keeping in mind the difficulties of ‘polluter-pays’ principle, the members of international
community at Stockholm Conference provided that the States are obliged to anticipate and
prevent transboundry pollution. Principle 21 states that,
“States have in accordance with the Charter of United Nation and the principles of
international law, the sovereign right to exploit their own environmental policies and
the responsibility to ensure that activities within their jurisdiction or control do not
cause damage to the environment of other states or of areas beyond national
jurisdiction.”

Thus it may be safely concluded that the journey of international environmental law
development has achieved several milestones, made very significant contributions for
safeguarding and managing the environment and its components.

Unit - 6 National Legislations on Environment Protection

1.0 NATIONAL LAWS FOR ENVIRONMENT PROTECTION AND MANAGEMENT
Pollution has become the enemy of the first order not only for human beings but also for
other animate and inanimate objects. Its prevention and control poses a new challenge which
requires to be combated effectively, timely. Pollution is a generic term and includes a variety
of kinds of pollution, viz. environment pollution, water pollution, air pollution, noise
pollution, and land pollution etc. The word ‘pollution’ is derived from Latin word ‘pollutus’
which means defiled. Further in the ordinary parlance the word ‘pollution’ means ‘to make
dirty, destroy the purity and sanctity of’. From a legal point of view, pollution is ‘the
wrongful contamination of the atmosphere or of water, or of soil, to the material injury of the
right of an individual’.

The term “environment pollution” means pollution of the environment. For the purposes of
Environmental Pollution laws, the definition of this term provided under clause © of Section
2 of the Environment (Protection) Act, 1986 can be invoked. The definition given under this
provision is as follow:
“Environmental pollution” means the presence in the environment of any
‘environmental pollutant’.”

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The term ‘Environmental Pollutant’ has also been defined under section 2 clause (b) of the
Environment (Protection) Act, 1986 which is given below:
“Environment Pollutant” means any solid, liquid or gaseous substance present in
such concentration as may be, or tend to be, injurious to environment.”
The term ‘pollution of water’ has been used differently in different statutes and different
persons have different perception about it. Some describe it as a ‘Nuisance” and others
maintain that it is a Negligence in carrying rubbish. Yet another way of describing water
pollution is as “Fouling of Water”. In some statutes water pollution has been described as
‘poisoning water’ while other enactments explain it as “rendering water less fit for
consumption by persons and animals”. The interference with or alteration of inflow of water
in a river or stream, so as to endanger, damage or render these water ways less useful is
another form of describing water pollution. By all these diverse descriptions of water
pollution one thing is mainly emphasized upon, i.e. mode of causing pollution rather than
explains pollution itself. However the definition of “pollution” given under Section 2(e) of
the Water (Prevention and Control of Pollution) Act, 1974 is more comprehensive and the
same is given as under:

‘pollution means such contamination of water or such alteration of the physical,

chemical or biological properties of water or such discharge of sewage or trade
effluent or of any other liquid, gaseous or solid substance into water (whether directly
or indirectly) as may or is likely to create a nuisance or render such water harmful or
injurious to public health or safety, or to domestic, commercial, industrial,
agricultural or other legitimate uses, or to the life and health of animals or plants or
of aquatic organism.”

Air pollution may be described as the imbalance in the quality of air, which causes ill effects.
The sources of air pollution are chiefly man-made, namely, transportation, stationary
combustion, industrial process and solid waste disposal process. The ill effects of air pollution
of countless. It endangers lives of human beings and plants and adversely affects the
materials or atmosphere itself. Thus the air pollution need be understood properly. The
definition of air pollution given under section 2 (b) of the Air (Prevention and Control of
Pollution) Act, 1981 provides that, “air pollution means the presence in the atmosphere or
any air pollutants.” The Act also defines ‘air pollutant’ under section 2 (a) which reads as
follow:

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‘air pollutant’ means any solid, liquid or gaseous substance (including noise) present
in the atmosphere in such concentration as may be or tend to be injurious to human
beings or other living creatures or plants or property or environment.”

It appears to be difficult to identify the causes of pollution because they are many and are
peculiar to the type of pollution. However, the basic causes for deterioration of environment
may include: (i) Population explosion, (ii) Over Industrialisation, (iii) Unplanned
Urbanisation, (iv) Poverty, (v) Deforestation, and (vi) expansion of the use of efficient new
technology with its associated demands on space, food and natural resources.

At the national level serious efforts to ensure protection and improvement of environment
started after the Stockholm Declaration 1972 (discussed above). We shall find that all
environmental legislations were enacted post 1972 including the amendment in the
Constitution. We have already noted that the Constitution (42 nd Amendment) Act, 1976
inserted two important provisions, viz. the Article 48-A and 51-A (g) in the Constitution and
also changed the legislative competence of Parliament. The entries like Forest Conservation
and Wildlife protection were shifted from List II (State List) to List III (the Concurrent List)
of the VIIth Schedule of the Constitution. These Constitutional provisions are further backed
by number of environmental legislations—the Act(s) and Rules for effective prevention and
control of pollution and management of environment. Existing Indian environmental
legislations can be grouped in following four categories: i) Water Act; ii) Air Act; iii) Forest
Conservation and wildlife Protection Act(s) and iv) the Environment Protection Act. Salient
features of these Acts are given below:

1.1 Water (Prevention and Control of Pollution) Act, 1974

The Green revolution, rapid industrialization and urbanization resulted in a profound
deterioration of India’s water quality. To provide legislative support for prevention of water
pollution, Parliament passed India’s first major Water legislation, called the Water
(Protection and Control of Pollution) Act, 1974. Some important features of the Water Act,
1974 and Amendment, 1988 are given below.
The main Objective of this Act is to provide for the prevention and control of water pollution
and maintaining or restoring of wholesomeness of water (in the streams or well or on land).
Other important provisions of this Act include:

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Constitution of Pollution Control Boards—their Functions and Powers:
Section 3 and 4 provides for establishment of the Central Pollution Control Board (C.P.C.B.)
to be appointed by the Central Government to perform functions enlisted in section 16 of the
Act and the State Pollution Control Board(s) (S.P.C.Bs) to be constituted by the State
Governments of the respective States as the regulatory authorities. The Act also provides for
setting up of the Joint Boards for two or more adjoining states and for the Union Territories
the C.P.C.B. exercises similar authority and enjoys powers as given to the S.P.C.Bs. The Act
lays down number of functions of the Boards under section 16 and 17. Important functions of
Central Board are to advise the Central Government on any matter concerning the prevention
and control of water pollution; to coordinate the activities of the State Boards; to provide
technical assistance and guidance to the State Boards; to plan and organize the training of
persons engaged in prevention and control of pollution; to collect, compile and publish
technical and statistical data relating water pollution and to lay down, modify or annul, in
consultation with the State Govt concerned the standards for a stream or well. Similar
functions are to be performed by the State Boards for their respective State and Government.
Section 17 mentions fifteen functions of the State Boards. Detailed discussion on functions is
given at the Institutional Arrangement for Monitoring and Enforcement part of this reading.
However, students are advised to refer to the Water Act, 1974 for other details.

The Act empowers the respective governments and the Boards to take measures to prevent,
control and abate water pollution under Chapter V sections 19 to 33-A. They are as under:
The Boards control sewage and industrial effluent discharges by approving, rejecting
or conditioning applications for consent to discharge.
The state boards also minimize water pollution by advising state governments on
appropriate sites for new industry.
Act granted power to the Board to ensure compliance with the Act by including the
power of entry for examination, testing of equipment and other purposes and power to
take the sample for the-purpose of analysis of water from any stream or well or
sample of any sewage or trade effluents.
Prior to its amendment in 1988, enforcement under the Water Act was achieved
through criminal prosecutions initiated by the boards, and through applications to
magistrates for injunctions to restrain polluters under section 33. The 1988,

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amendment strengthened the Act’s implementation provisions and now, a board may
order closure of a defaulting industrial plant or withdraw its supply of power or water,
and blacklist such erring industries under section 33-A of the Act. The penalties are
more stringent, and a citizen’s suit provision supports the enforcement machinery as
given in sections 41 to 49 of the Act.
Further the Central/Governments also have the power to supersede Boards (ss. 61 and
62 respectively) and make rules for effective implementation of the Act as provided
under sections 63 and 64.

1.2 The Water (Prevention and Control of Pollution) Cess Act 1977:
The Water Cess Act was passed to help meet the expenses of the Central and State Water
Boards. The Act creates economic incentives for pollution control and requires local
authorities and certain designated industries to pay a cess (tax) for water consumption. These
revenues are used to implement the Water Act. The Central Government, after deducting the
expenses of collection, pays the Central Board and the states such sums, as it deems
necessary to enforce the provisions of the Water Act. To encourage capital investment in
pollution control, the Act gives a polluter a 70 per cent rebate of the applicable cess upon
installing effluent treatment equipment.

1.3 The Air Act

To provide legislative support for prevention and control of air pollution, the Government of
India enacted a central legislation called the Air (Prevention and control of Pollution) Act,
1981 referred to as Air Act, 1981. The Act aims at prevention, control and reduction of air
pollution. Beside this, Environmental (Protection) Act, 1986 also covers some aspects of air
pollution. Some details of the Air Act, 1981 and its amendment in 1987 are given below.
The aims and objects of the Air Act provide: that in order to implement the decisions taken at
the United Nations Conference on the Human Environment held at Stockholm in June 1972,
Parliament enacted the nationwide Air Act. The Act aims to achieve the following goals: (i)
to provide for the prevention, control and abatement of air pollution; (ii) for the establishment
of Boards with a view to carry out above mentioned purposes; (iii) to confer on and assign to
such Boards powers and functions relating to prevention, control and abatement of air
pollution and other matters connected thereto; and (iv) to lay down the standards to maintain
the quality of air Some of the important features of this Act are given below:

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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. Chapter II of the Act which runs from
Sections 3 to 15, provides for the constitution of a Boards, qualifications of its
members, terms and conditions of their service etc.
States not having Pollution Control Boards were required to set up Air Pollution
Boards. Under the Air Act, all industries operating within designated air pollution
control areas must obtain“consent” (permit) from the State Boards (section 21).
The States are required to prescribe emission standards for industry and automobiles
after consulting the Central Board and noting its ambient air quality standards.
Act granted power to the Board to ensure compliance of the Act and they include: the
power of entry and inspection (s. 24) for testing of equipment and other purposes; the
power to take the sample for the purpose of analysis of air or emission from any
chimney, fly ash or dust or any other outlet (s. 26) in such manner as may be
prescribed.
Prior to its amendment in 1987, the Air Act was enforced through mild court-
administered penalties on violations. The 1987 Amendment strengthened the
enforcement machinery and introduced stricter penalties which include punishment
with imprisonment which shall not be less than one year and six months and which
may extend to 6 years and with a fine. The penal provisions are given in sections 37 to
43.

The Board may be superseded by the State Government on the grounds that the board
persistently made default in performance of functions or there are circumstances
which render it necessary in public interest so to do, as given under section 47 or be
dissolved under section 49.

Now, the Boards may issue order for closing down a defaulting industrial plant or
may stop its supply of electricity or water under section 31-A. A Board may also
apply to court to restrain emissions that exceed prescribed limits (Section 31).
Notably, the 1987 Amendment introduced a citizen’s suit provision into the Air Act
and extended the Act to include noise pollution.

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1.4 Forests Conservation and Wild Life (Protection) Acts
It is often alleged that the forests and wildlife were better protected in ancient days rather till
the beginning of the British rule. Our ancient religious texts like ‘Vedas’, ‘Shrutis’,
‘Upnishads’ and ‘Purans’ make elaborate provisions for protection of forests (trees) and
wildlife. The systematic exploitation of forests once commenced in the British regime did
not stop till date. The first Forest Act was enacted in the year 1865 and the forest department
was established. The Act meant to regulate forest exploitation, and management and
preservation of forest resources. However, the Act was amended in the year 1878 which
claimed absolute control and ownership rights of the State on forests. India is one of the few
countries, which had a forest policy since 1894. The Act 1873 was repealed by a new
comprehensive law called the Forest Act 1927 which is still in force. The main objects of the
Act are: (a) to consolidate laws relating to forests; (b) to regulation of and the transit of forest
produce; and (c) to levy duty on timber and other forest produce. This Act maintained the
classification of forests like reserved forests (ss. 3 to 27) village forests (s. 28); protected
forests (ss. 29 to 34). A state may declare forestlands or waste lands as reserved forest and
may sell the produce from these forests. An unauthorized felling of trees quarrying, grazing
and hunting in reserved forests is punishable with a fine or imprisonment, or both. Reserved
forests assigned to a village Community is called village forests. The state governments are
empowered to designate protected forests and may prohibit the felting of trees, quarrying and
the removal of forest produce from these forests. The preservation of protected forests is
enforces through rules, licenses and criminal: prosecutions. Forest officers and their staff
administer the Forest Act.

Other important provisions of the Act include the control of forests not under the state, the
duty on timber and other forest produce (sections 39 and 40) control of forests and other
forest produce in transit under section 41 to 44. Chapter IX of the Act provides for penalties
and procedure thereof. However, in the independent India, following legislations have been
enacted to conserve forests and protect wild life

1.4.1 The Forest (Conservation) Act, 1980

As mentioned earlier, the Parliament got the powers to make laws on forests in 1976.
Pursuant to this power, union government passed the Forest Conservation Act 1980 which is
considered to be a landmark in the history of the protection of forests. This Act aims to
provide for the conservation of forests and for matters connected or ancillary or incidental
thereto. It is a brief legislation with five sections but equally effective and the only legislation

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directly dealing with conservation of forests in India. It came into force with effect from
December 27, 1980. Section 2 of the Act places restrictions on desertion of forests or use of
land for non forest purpose. and provides for constitution of Advisory of Advisory
Committee by the Central Government. This Advisory Committee is to advise the
Government with regard to (i) grant of approval under section 3; and (ii) any other matter
connected with the conservation of forests which may be referred to it by the Government.
The section 2 in fact has taken away the powers of the State Governments to allow any non
forests activities within their respective States except with the prior approval of the Central
Government. Thus the state autonomy over forest wealth is circumvented. Further section 3-
A added by an amendment in the year 1988 prescribes penalties for violation of the
provisions of this Act which may be an imprisonment not exceeding 15 days. Section 4
empowers the Central Government to frame rules for effective implementation of the Act.

1.4.2 The Wild Life (Protection) Act, 1972

Parliament enacted the Wild Life Act (Protection) Act, 1972. The Act aims to ensure
protection of wildlife birds and plants and the matters connected thereto with a view to ensure
the ecological and environmental security of the country. It not only prohibits hunting but
also creates protected areas and controls trade in wildlife products. In order to achieve these
objectives, it provides for state wildlife advisory boards, regulations for hitting wild animals
and birds, establishment of sanctuaries and national parks, regulations for trade in wild
animals, animal products and trophies, and judicially imposed penalties for violating the Act.
Harming endangered species listed in Schedule 1 of the Act is prohibited throughout India.
Hunting species, like those requiring special protection (Schedule II), big game (Schedule
III), and small game (Schedule IV), is regulated through licensing. A few species classified as
vermin (Schedule V) may be hunted without restrictions. Wildlife Wardens and their staff
administer the Act. An amendment to the Act in 1982, introduced a provision permitting the
capture and transportation of wild animals for the scientific management of animal
population. India is a signatory to the Convention of International Trade in Endangered
Species of Fauna and Flora (CITES, 1976). Under this, export or import of endangered
species and their products are governed by the conditions and
stipulations laid down therein. Indian government has also started some conservation projects
for individual endangered species like Hungal (1970), Lion (1972), Tiger (1973), Crocodiles
(1974), and Brown-antlered Deer (1981), Elephant (1991-92) etc.

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1.5 The Environment (Protection) Act, 1986

The enactment of the Environment Protection Act came in the wake of the Bhopal gas
disaster and the Oleum Gas lakage. 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 considered to be an
“umbrella” legislation designed to provide a framework for ensuring better management of
environment. The Central Government is designated as an authority to coordinate activities of
various Central and State authorities established under previous Acts, like the water Act and
the Air Act. The Act has given a legal definition of the term “Environment”. Section 2 (d)
defines environment which means that the ‘environment includes water, air and land and the
interrelationship that exists among and between the water, air, and land, and human beings,
other living creatures, plants, micro-organisms and property.’ Further Section 2 (b) defines
“Environment Pollutant” which means “any solid, liquid, or gaseous substance present in
such concentration as may be or tend to be, injurious to the environment” and the
environment pollution means the presence in the environment of any environmental
pollutants according to secton 2 (c).

“Hazardous substances” include any substance or preparation, which may cause harm to
human beings, other living creatures, plants, microorganisms’ property or the environment.
The main provisions of this Act are given below:

Section 3 (1) of the Act empowers the Central Government to take all such measures
as it deem necessary or expedient for the purpose of protecting and improving the
quality of the environment and preventing, controlling arid abating environmental
pollution”. Specifically, the Central Government is authorized to set new national
standards for the quality of the environment (ambient standards) as well as standards
for controlling emissions and effluent discharges; to regulate industrial locations, to
prescribe procedures for managing hazardous substances; to establish safeguards
preventing accidents, and to collect and dismantle information regarding
environmental pollution. The Act also authorizes the Central Government to appoint
‘Authorities’ under section 3(3), officers under section 4 and has the power to issue
directions to the authorities and officers under section 5. Thus a cumulative reading of
the above provisions suggests that the Central Government has not only been made

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the nodal authority but also has been adequately empowered to ensure effective
implementation of the Act for achieving the objects of the Law. By virtue of this Act,
Central Government has armed itself with considerable powers which include,
coordination of action by State, planning and execution of nationwide programmes,
laying down environmental quality standards, especially those governing emission or
discharge of environmental pollutants, placing restriction on the location of industries
and so on.

The powers claimed are indeed comprehensive, the coverage includes handling of
hazardous substances, prevention of environmental accidents, inspection of polluting
units, research, establishment of laboratories, dissemination of information, etc.

The Environment (Protection) Act was the first environmental legislation to give the
Central Government authority to issue direct orders, included orders to close, prohibit
or regulate any industry, operation or process or to stop or regulate the supply of
electricity, water or any other service. Other power granted to the Central Government
was to ensure compliance with the Act included the power of entry for examination,
testing of equipment and other purposes and power to analyses the sample of air,
water, soil or any other substance from any place.

The Act explicitly prohibits discharges of environmental pollutants in excess of

prescribed regulatory standards (section 7). There is also a specific prohibition against
handling hazardous substances except in compliance with regulatory procedures and
standards under section 8. Persons responsible for discharges of pollutants in excess
of prescribed standards must prevent or mitigate the pollution and must also report the
governmental authorities under section 9 of the Act.

The Act provides provision for penalties under sections 15 to 17. Any person who
fails to comply with or 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 an imprisonment for a term up to five years or fine up to Rs. 1 lakh, or both. The
Act imposed 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 an offender may be punished with imprisonment term, which may be,
extend to seven years.

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The Environment (Protection) Act contains significant innovations for its
enforcement, not contained in any other pollution control legislation at the time of the
Act’s adoption. Section 19 provides that any person, in addition to authorized
government officials, may file a complaint with a court alleging an offence under the
Act. This “Citizens’ Suit” provision requires that the person has to give notice of not
less than 60 days of the alleged offence of pollution to the Central Government or the
competent authority.

Under the Act the Central Government may, by notification in the office Gazette, make rules
for the enforcement of the Act. It is worth mentioning the names of few important rules,
which have been notified under the Environment (Protection) Act, 1986 in recent past for the
management and control of hazardous substances, which include hazardous chemicals, waste
and microorganisms.

1.5.1. Hazardous waste (Management and Handling) Rules of 1989: The objective is to
control generation, collection, treatment, import, storage and handling of hazardous waste.

1.5.2 The manufacture, Storage and Import of Hazardous Chemical Rules of 1989
Defines the terms used in this context, and sets up an Authority to inspect, once a year, the
industrial activity connected with hazardous chemicals and storage facilities.

1.5.3 The Manufacture, Use, Import, &port and Storage of hazardous

Microorganisms/Genetically Engineered Organisms or Cells Rules of 1989: These were
introduced with a view to protect the environment, nature and health, in connection with the
application of gene technology and microorganisms.

1.5.4 Biomedical Waste (Management and Handling) Rules of 1998: It is a legal binding
on the health care institutions to streamline the process of proper handling of hospital waste
such as its segregation, disposal, collection and treatment

1.5.5 Recycled Plastic Manufacture and usage rules of 1999 & Recycled Plastic
Manufacture and usage Amendment Rules of 2002: Rules were introduced to prohibit the
usage of carry bags or containers made of recycled plastic for foodstuffs. Rules also lay down
procedures for the manufacture of virgin and recycled plastic carry bags and recycled plastic
containers.

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1.5.6 Municipal Solid Wastes (Management and Handling) Rules, 2000: According to
these rules any municipal solid waste generated in a city or a town, shall be managed and
handled in accordance with the compliance criteria and the procedure laid down in Schedules
of these rules. The waste processing and disposal facilities to be set up by the municipal
authority on their own or through an operator of a facility shall meet the specifications and
standards as specified in Schedules.

1.5.7 Noise Pollution (Regulation and Control) Rules 2000: The Rules have been framed
by the Government of India under the provisions of the Environment Act, 1986 read with
Rule 5 of the Environment Protection Rules 1986. Rule 3 of the Noise Rules 2000 provides
for ambient air quality standards in respect of noise for different areas/zones as specified in
the Schedule annexed to the rule. Rule 5 restricts use of loudspeakers/public address systems
and provides that they shall not be used at night (between 10.00 pm to 6.00 am) except in
closed premises for communication.

1.5.8 Ozone Depleting Substances (Regulation and Control Rules, 2000: To prevent
harmful effects of depletion of Ozone layer, the Ministry of Environment & Forests, Govt. of
India, notified the above Rules in exercise of its powers under the Environment Protection
Act, 1986 and the Environment (Protection) Rules, 1986. These Rules aim at regulating the
Ozone Depleting substances. Rule 3 prohibits the production and consumption of ozone
depleting substances and Rule 4 prohibits import or export of any Ozone depleting substance
without license. Rule 6 specifies that no people shall either himself or by any other person on
his behalf or enterprise, sell, stock, or exhibit for sale or distribute any ozone depleting
substances unless he is registered. Rule 7 prohibits purchase of ozone depleting substances
and Rule 9 prohibits persons from establishing or expanding any manufacturing facility for
production of ozone depleting substances.

1.5.9 Important Notifications

The Ministry of Environment & Forests has notified many notifications for environmental
management. The first notification issued by the Ministry was Eco-labeling notification
issued on 20th Feb 1991 wherein scheme on labeling of Environment friendly products is
desired. The label is known as “ECOMARK”. Any product which is made, used or disposed
of in a way that significantly reduces the harm could be considered environment friendly

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product. The second notification relates to the Environment Impact Assessment (E.I.A)
issued by the Ministry in the year 1992 and modified from time to time. It requires E.I.A. of
each project and Environment Management Plan for the prevention, elimination or mitigation
of the impact likely to be caused by certain developmental projects.

2. ISSUES IN ENFORCEMENT
In the earlier section of this unit you have learnt about the Constitutional perspective on
environment protection, international environmental law development and various
Environmental Acts at national level. Now we will take up the issues involved in their
enforcement.

2.1 Problems and prospects

You must be aware that despite so many legislative measures the state of the environment in
India continues to be gloomy. The rivers and the lakes continue to be polluted with sewage
and industrial waste, bio resources continue to disappear. The air quality in some major cities
is at alarming stage. According to the World Health Organization, at present the Capital city
of New Delhi is one of the top ten most polluted cities in the world. Surveys indicate that in
New Delhi the incidence of respiratory diseases due to air pollution is about 12 times the
national average. All these situations force us to know the answers of following questions.
Where are the problems? What can be done to reverse the process and restore a balance state
of the environment? Let us first, identify the basic problems in enforcement of national
environment legislations.

After an analysis of all enactments and provisions at national level, it is to be noted

that nature of most of the existing environmental legislations are essentially punitive
not preventive. Only once the chemicals or substances are discharged into the air or
water or soil does the act apply. The preventive measures have hardly ever evoked or
worked and the concerned agencies have moved into action only after the harm has
been done. If we are serious in enforcement of environmental legislations we have to
stop this fire-brigade approach — rushing to the spot of fire, after it break out. The
strategy should lay equal emphasis on attacking the cause of fires. An ounce of
prevention in the field of environment is literally worth a gallon. • More serious
problem in the implementation of environmental legislation is overlapping powers of
authorities involved in supervising the safety mechanism and: devices of companies,

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and in granting or refusing No Objection Certificate (NOC). Thus though the water
and air pollution board may refuse to grant NOC, the Municipality may grant a
license to an industrial unit based on which it may start its manufacturing activity.

In some cases statutes of environmental legislations do not lay down any guidelines
on the nature of the authority and their specific rights and the obligations. In the
absence of statutory guidelines the agencies can be: structurally inexpert, functionally
inefficient and thus totally ineffective. It is also possible that act is passed long time
back but rules are not framed for enforcement and prosecution. In the absence of such
rules it becomes very difficult for the environmental agencies to take any action
against defaulters. In recent past Delhi State Government has banned the: manufacture
and use of colored plastic bags, without formulating the rule to prosecute defaulters.
So when the state environment department found some factories manufacturing the
banned bags, it has little clue on what action to take.

Some times casual attitude of enforcement agencies also affects the enforcement of
the legislations. This can be illustrated by taking an example of National
Environmental Tribunal Act, 1995. This legislation was passed seven years ago for
delivering speedy justice to those suffering from accidents involving hazardous
substances. But the fact is that the Environmental Ministry has not yet been able to
find a suitable officer to head it. This is a gross display of apathetic attitude of
environmental agencies.

A common feature with environmental legislation in India is that they exclude

peoples’ participation in their implementation. The enterprises, which make profits at
the expertise of the environment, are always well represented and their interests well
protected but not those of the common person who suffer the consequences of
pollution and degradation.

Sometime enforcement of legislation is difficult due to shortage of funds. Take for

example the rivers pollution in India. It is well known that the major source of
pollution of rivers is domestic sewage which municipalities dump in the nearest
rivers. Ninety percent of the pollution of Ganga stream from the 100 odd untreated
municipal waste dumping. The colossal cleaning up operation, Ganga Action Plan,
will be an exercise in futility if it is not accompanied by a massive effort to prevent

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the municipalities from dumping their wastes in the river. Every one: knows that the
technology for treating municipal wastes exists. But its cost many and most of the
municipalities cannot afford it.

Public opposition also makes difficult the implementation of environmental

legislation. For example, India Supreme Court recently made mandatory the use of
CNG for all public transport vehicles in New Delhi, This ruling, however, led to the
disappearance of some 15,000 taxis and 10,000 buses from the city creating public
protests, riots, and widespread commuter chaos. Similarly public did not support the
order of Supreme Court regarding ban on all public vehicles that were more than 15
years old.

Thus we can conclude that the environmental Act is being designed as a “Watchdog”
guarding society against pollution. But the question is to what extent have these legislations,
together with the Pollution Boards, succeeded in improving the quality of human life? The
record of their ineffectiveness is far more voluminous than that of their success. Soon after
the Bhopal tragedy, a series of gas explosions, chemical accidents and leakages occurred in
many parts of the country. Nevertheless, despite the existing inadequacy of legislations and
the complexity of judicial procedures, some new decisions of the court in recent past have
generated a hope that with the passage of these enactments, environmental protection will be
controlled to some extent in the country and that the offending companies /agencies will be
brought to book by streamlining the enforcement agencies. This is possible if the enforcement
machinery and agencies function properly along with public support.

Now a days, judiciary is playing a vital role in the growth and development of environmental
precedents. As a watchdog it strives to maintain the sanctity and dignity of the Constitution
so that it may not remain a mere paper tiger. But these are very few examples in which
people through Public Interest Litigations (PIL) seek judiciary to enforce existing
environmental legislations. For highlighting the contribution of PILs, We are giving few
notable examples, In year 2000, Supreme Court ordered to shut down polluting factories in
residential areas of Delhi. This order was opposed by thousands of workers and factory
owners. But this move has and will definitely safe guard the health of many residents who are
living nearby to the polluting industries. Due to excess noise during the festival periods, the
local curt in Kolkata passed strict limits on noise beyond certain limits and ordered ifs strict
enforcement. Similarly, in the capital region of Delhi, all new vehicles from June, 2001

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should have pollution prevention mechanism comparable to Euro-Il levels (known as Bharat
Stage-Il) prevailing in many European countries. In recent time, laws on disposal of plastics,
packaging, locating and shifting of polluting industries, and common effluent treatment
plants for small scale industries and making mandatory the use of CNG in vehicles used for
public transport have all become very important and these legislations are being regularly
followed by implementing authorities by the order of honorable courts.

Another good example of the success of PIL is case of Taj Mahal. In this famous case,
Mahesh Chandra Mehta, a prominent environment lawyer, fought for ten years to persuade
the Supreme Court to ban coal-based industries emitting effluents that damaged the soft
marble of the Taj Mahal, India’s architectural masterpiece. The court shut down 230 factories
and directed more than 300 others near the building to install pollution-control devices. For
this public service Mehta has won the 1997 Ramon ,Magsaysay Award. Mehta also
campaigned for the introduction of direction. After all, many environmental legislations are
essentially “social code of conduct” that should automatically be a part of a better civic sense
instead of a legal framework. Thus, public awareness and environmental education together
can considerably reduce the needs for multitudes of environmental legislations since
enforcement under the Indian context will continue to be difficult in foreseeable future.

As we have said earlier that international law is different in basic concepts from domestic
legislation because there is no world govern with enforcement authority over all nations, As a
result, antennal legislations must depend on the agreement of the parties concerned oink them
to follow up the term and condition of the concerned document. But there may be a
possibility that many residents of a particular nation may oppose. Because of this reason
efforts at the international level to improve environmental quality have been largely
unsuccessful. There are many examples of abuse of the planet despite of hundreds of
international treaties, protocols and conventions. But these international legislations certainly,
have played a major role in protecting many resources, restoring water quality regionally, and
slowing the depletion, of global resources such as the ozone layer. In next sub-section we will
take up few important case studies on environmental issues.

3. CASE STUDIES
Though legislations and regulations are the foundations of most environmental protection
policies. The global nature of resources and pollution make international legislations and

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conventions essential. Public interest Litigations and People’s Movement have also played
very important role in environmental protection. If this section we will take up a few cases of
PIL and people’s movement in India against environmental degradation.

3.1 Silent Valley Movement

This movement is one of the most important ecological movements in India. Silent valley is
the narrow valley of the Kunthi River in the state of Kerala in the south west of India at high
elevation. Its 8950 hectares of rain forest is rich with valuable plants and animals. In 1973,
the state government of Kerala decided to build a dam across the gorge in order to generate
hydro electricity. It would have drowned valuable forest and threatened the loss of wild life.
Even the government’s ecological task force expressed its dissatisfaction over the loss of
forest and wild life. By 1979, Students voluntary organization like Kerala Sastra Sahitya
Parishad (KSSP), Science forums, Teachers, progressive citizens and Journalists began 60 to
work against the project. In 1979; Save Silent Valley Committee emerged. Lobbyists like
Variva also worked for it. (Ms. Dilna Vaz Variava was the coordinator of the Mumbai-based
Save Silent Valley Committee in the crucial period a quarter century ago, and instrumental in
mobilising global agencies such as the International Union for the Conservation of Nature
(IUCN) which, petitioned the Union Government to save the Valley) This hue and cry among
all circles led the government headed by the then Prime Minister, Mrs. Indira Gandhi, to set
up a high-level technical committee headed by Prof M.G.K. Menon and accept its
recommendation that the project should not be proceeded with and that the Valley should be
preserved as a precious biosphere reserve.

3.2 The Narmada Bachao Andolan

The Narmada dam project dispute is ambitious plan to build 30 large, 135 medium and 3000
small dams to harness the waters of the Narmada and its tributaries. But this project is at the
core of many controversies. Environmentalists suggest construction of large number of small
dams along the river as the alternative of large dams which can be socially and economically
and environmentally sustainable. Though the dam issue may have no problem with existing
environmental legislations, the social problems associated with the dam issue needs
consideration outside the sphere of only legal perspectives. While the Supreme Court has
given his judgment on this (18 Oct. 2000), court has allowed the construction subject to
certain condition. Further, the earthquake in Gujarat (Jan. 26, 2001) has reopened the ‘hot’

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discussion about large dams on Narmada River though the Supreme Court had earlier cleared
the dam construction subject to certain condition.

3.3 The Bhopal Gas Disaster

On the night of 2/3 rd December 1984, there was a massive escape of lethal gas from MIC
(Methyl Isocynate) storage tank of the Union Carbide Corporation (I) Ltd. plant at Bhopal
resulting in large-scale deaths and disaster. The Union Carbide Corporation, a U.S. based
multi-national Corporation had entered into an agreement with the Union Carbide
Corporation (India) Ltd with a partnership of 50.1 and 49.9% shares respectively. The MIC
chemical, known to be extraordinary reactive, toxic, volatile, flammable and ultra-hazardous,
was used in the manufacture of agricultural pesticides produced and marketed by the Union
Carbide. Within a week after the accident, many American lawyers filed suits on behalf of
the victims in the U.S. District of New York. Even the Union of India, being empowered by
the Act of Parliament known as the Bhopal Gas Disaster (Processing of Claims) Act, 1985
filed a representative suit on behalf of all the victims of the disaster before the U.S. District
Court New York. However, the suit was dismissed by the Judge (Mr. John F. Keenan) of the
U.S. District Court on the grounds of inappropriate forum with specific directions to the
Union Carbide Corporation to surrender to the jurisdiction of Indian Courts. After a long
drawn legal battle the dispute was settled by the Hon’ble Supreme Court on the basis of a
compromise between UCC and UCIL wherein UCC agreed to pay $470 million Dollars.
However, the plight of the victims, i.e. human beings and the environment continue to haunt
the minds of role players. The debris deposited on the plant site still need to be disposed off
in an environment friendly manner. The victims have been paid out of the relief fund created
for the purpose. The final payment processes are on in the Courts in Bhopal. Restoration of
degraded environment is still to be taken up.

3.4 The Oleum Gas Leakage Case

The Shriram Food and Fertiliser Industry, a subsidiary of Delhi Cloth Mills Ltd., had several
units and was engaged in manufacture of caustic soda and chlorine. On the night of 4th
December 1985, immediately after an year of Bhopal disaster, a major leakage of Oleum gas
took place from one of the units of Shriram Food and Fertifizer Industry. This leakage
affected a large number of persons—both amongst workmen and the public. Moreover an
advocate practicing in Tees Hazari Court at Delhi died on account of inhalation of the oleum

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gas. The leakage occurred due to bursting of a tank containing oleum gas as a result of the
collapse of the structure on which it was mounted. The District Magistrate ordered the
closure of the industry under section 133 of the Code of Criminal Procedure, 1973. A writ
petition was filed before the Supreme Court under Article 32 by Mr. M.C. Mehta, an
environmental activist, on 7 December 1985. The case is popularly known as M.C. Mehta v.
Union of India, (1987) 1 SCC 395. The petition came up for hearing thrice before the apex
court and the expert committees were appointed by the hon’ble court. The court developed a
new principle of liability called, the Absolute Liability Principle by providing that ‘an
enterprise which is engaged in hazardous or inherently dangerous industry posing a potential
threat to the health and safety of the persons working in the factory and residing in the
surrounding areas owes an absolute and non-delegable duty to the community to ensure that
no harm results to anyone on account hazardous or inherently dangerous nature of activity
which it has undertaken.’ This proactive and creative step of judiciary would go a long way
in deterring the entrepreneurs and making them to adopt precautionary measures to avoid
industrial accidents and even if then the accident occurs causing loss to the mankind and
environment, the entrepreneurs would be made to pay under the principle of polluter pays.
The damages were awarded by the court to the victims of accident in this case.

3.5 Rural Litigation and Entitlement Kendra (R.L.E.K) case

The Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh,
(popularly known as the R.L.E.K. case) is a unique case and the first of its own kind. A letter
was written by the R.L.E.K. to the Supreme Court was treated as a Writ Petition and the
Supreme Court by its order dated 14-7-1983 issued notices against the State of U.P. and the
Collector of Dehradun. The petitioners in their letter alleged that unauthorized and illegal
mining operations were carried on in the Mussoorie Hills and the area around them was
adversely affecting the ecology of the area and leading to environmental disturbance. The
Supreme Court showing the importance of the case observed that, “This is the first case of its
kind in the country involving issues relating to the environment and ecological balance and
the questions arising for consideration are of grave significance not only to the people
residing in the Mussoorrie Hills range forming part of the Himalayas but also in their
implications to the welfare of the generality of people living in the country. It brings into
sharp focus the conflict between development and conservation and serves to emphasise the
need for reconciling the two in the larger interest of the country.” The court appointed many

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committees to study and submit their reports on the alleged issues. Chiefly among these
committees were the D.N. Bhargava Committee and D. Bandopadhyaya Committee. The
Court pointing out the adverse effects of mining observed that, “Mining operations in these
areas have led to cutting down of the forests. Digging of limestone and allowing the waste to
roll down or be carried down by rain-water to the lower levels has affected the villages and
also the agricultural lands located below the hills.” A fine balance between the environment
conservation and development was struck by the court besides recording appreciation for the
steps taken by the R.L.E.K. and awarded a sum of Rs. 10,000 to the Kendra for the costs of
the proceedings and the U.P. Government was asked to pay this amount within one month.
The Court held that “we are not oblivious of the fact that natural resources have got to be
tapped for the purposes of social development but one cannot forget at the same time that
tapping of resources have to be done with requisite attention and care so that ecology and
environment may not be affected in any serious way, there may not be any depletion of water
resources and long term planting must be undertaken to preserve national wealth. It is always
to be remembered that these are paramount assets of mankind and are not intended to be
exhausted in one generation.” Thus many principles of international environmental law were
considered by the court while disposing of the petition.

4. INSTITUTIONAL ARRANGEMENTS FOR MONITORING AND

ENFORCENMENT

The Government of India recognizing the severity of environmental problems, in 1972

established a National Committee on Environmental Planning and Coordination (NCEPC) to
advise the Government on environmental problems and make recommendation for their
improvement. The NCEPC was replaced by a National Committee of Environmental
Planning (NCEP) to discharge the following functions:

• Preparation of an annual ‘State of Environment Report’ for the country,

• Establishing an Environmental information and communication system to propagate

environmental awareness through the mass media

• To sponsor environmental research

• Arranging public hearing or conferences and issues of environmental significance In 1980,

the Government appointed Tiwari Committee, which recommended formation of Department

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of Environment for ensuring environmental protection. On this basis, a full-fledged
Department of Environmental created with effect from November 1st 1980 under the charge
of the Prime Minister.The Department of Environment is the nodal agency in the
administrative structure of the Central Government for planning, promotion and coordination
of environmental programme. Since January 1985, it forms a part of the newly created
Ministry of Environment and Forests. This Ministry, now, is the nodal agency for planning,
promotion, coordination and supervising the implementation of the various environmental
and forestry programmes. The Ministry has also overall responsibility few administering and
enforcing environmental legislations and policies. The Ministry has also been designated as
the nodal agency in the country for the United Nations Environment Programme (UNEP),
International Centre for Integrated Mountain Development and looks after the follow-up of
the United Nations’ Conference on Environment and Development (UNCED). The activities
of the Ministry include:

• Conservation and survey of flora fauna, forests and wildlife, forestation and regeneration of
degraded area Prevention and control of pollution,

• Protection of environment

• Environmental Impact Assessment

• Dissemination of environmental information

• Eco-regeneration

• Assistance to Organizations implementing environmental and forestry programmes

• Promotion of environmental and forestry research

• Extension, outreach, education and training to augment the requisite manpower

• Coordination with Central Ministries, State Governments

• Environmental policy and legislation, and

• International cooperation

Creation of Environmental awareness is on all sections of the population. The Ministry has
many Divisions, Departments and Boards to implement its own objectives and environmental

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legislation such as Botanical Survey of India, Zoological Survey if India, National Museum
of Natural History, Indian Forest Services, Central Pollution and Control Board (CPCB),
Forest Survey of India, National Afforestation and Eco-development Board, etc. In next part
we will discuss the role of CPCB in environmental protection sketchily.

4.1 The Central Pollution Control Board (CPCB)

The Central Pollution Control Board (CPCB) was constituted in September 1974 under the
provisions of The Water (Prevention & Control of Pollution) Act, 1974. The main functions
of CPCB, as spelt out in the Water (Prevention and Control of Pollution) Act, 1974, and the
Air (Prevention and Control of Pollution) Act, 1981, are:

i) To promote cleanliness of streams and wells in different areas of the States through
prevention, control and abatement of water pollution; and

ii) To improve the quality of air and to prevent, control or abate air pollution in the
country.
The main functions of CPCB are given below.

4.2 Functions of the Central pollution Control Board

• To advise the Central Government on any matter concerning prevention and control of
water and air pollution and improvement of the quality of air;

• To plan and execute a nationwide programme for the prevention, control or abatement
of water and air pollution;

• To co-ordinate the activities of the, State Boards and resolve disputes among them;

• To provide technical assistance and guidance to the State Boards, carry out
Environmental and sponsor investigations and research relating to problems of water and
Legislation air pollution, and for their prevention, control or abatement;

• To plan and organize training of persons engaged in programmes on prevention control

or abatement of water and air pollution;

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• To organize through mass media, a comprehensive mass awareness programme on
prevention, control or abatement of water and air pollution;

• To collect, compile and publish technical and statistical data relating to water and air
pollution and the measures devised for their effective prevention, control or abatement;

• To prepare manuals, codes and guidelines relating to treatment and disposal of sewage
and trade effluents as well as for stack gas cleaning devices, stacks and ducts;

• To disseminate information in respect of matters relating to water and air pollution and
their prevention and control;

• To lay down, modify or annul, in consultation with the State Governments concerned,
the standards for stream or well, and lay down standards for the quality of air; and

• To perform such other functions as and when prescribed by the Government of India
CPCB also functions as State Board for the Union Territories. In such situation its
functions are-as follows:

• To advise the Governments of Union Territories with respect to the suitability of any
premises or location for carrying on any industry which is likely to pollute a stream or
well or cause air pollutions;

• To lay down, standards for treatment of sewage and trade effluents and for emissions
from automobiles, industrial plants, and other polluting sources;

• To evolve efficient methods for disposal of sewage and trade effluents on land;

• To develop reliable and economically viable methods of treatment of sewage, trade

effluent and air pollution control equipment;

• To identify any area or areas within Union Territories as air pollution control area or
areas to be notified under the Air (Prevention and Control of Pollution) Act, 1981; and

• To assess the quality of ambient water and air, and inspect wastewater treatment
installations, air pollution control equipment, industrial plants or manufacturing process
to evaluate their performance and to take steps for the prevention, control and abatement
of air and water pollution.

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As per the policy decision of the government of India, the CPCB has delegated its powers
and functions under the Water (Prevention and Control of Pollution) Act, 1974, the Water
(Prevention and Control of Pollution) Cess Act, 1977 and the Air (Prevention and Control of
Pollution) Act, 1981 with respect to Union Territories to respective local administrations.
CPCB along with its counterparts, State Pollution and Control Boards (SPCBS) are
responsible for implementation of legislations relating to prevention and control of
environmental pollution.

The CPCB advises the Central Government on all matters concerning the prevention and
control of air, water and nose pollution and provides technical services to the Ministry for
implementing the provisions of the Environmental (Protection) Act of 1986. Under this Act,
effluent and emission standards in respect to various categories of industries have been
notified. During 2000- 2001 standards for coalmines, standards for effluents from textile
industries and primary water quality criteria for bathing water have been finalized and
notified in the Gazette. Board has identified seventeen categories of heavily polluting
industries and they are: cement, thermal power plant, distilleries, sugar, fertilizer, integrated
iron and steel, oil refineries, pulp and paper, petrochemicals, pesticides, tanneries, basic drugs
and pharmaceuticals, dye and dye intermediates, caustic soda, zinc melter, copper smelter and
aluminium smelter. C.P.C.B. in consultation with State Boards has also identified some
critically polluted areas in the country, which need special attention for control of pollution:
Action plan have been prepared and are being implemented in these areas. The CPCB in
collaboration with the SPCBs monitor the quality of fresh water resources of the country
through a network of 507 monitoring stations located all over the country. Under the National
Ambient Air Quality Monitoring Programme, 290 stations covering over 90 cities/towns are
being monitored by the CPCB.

5. ACTIVITIES

5.1 Activity – 1

In this text we have discussed only the legislations enacted by the Parliament, prepare a list of
environmental legislations of your State and municipality areas.

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5.2 Activity - 2
In this text we have mentioned a few notifications issued by the Ministry of Environment and
Forests, find out the processes involved in Environment Impact Assessment of any
development project approved in your State.

5.3 Activity – 3

Carry out a survey of the bio-medical waste or municipal solid waste disposal in your
town/city and verify the data with the Rules made by the Ministry of Environment and
Forests in this respect.

6. LET US SUM UP

In this Unit we have studied that:

The terms like, ‘environment’, environmental pollution and their causes, kinds and
effects have been defined and explained under various environmental legislations

The Constitution was amended in 1976 in response to the commitment made to the
international community at the Stockholm Conference 1972. This amendment added a
green eye to the Constitution yet the amendment fell short of our aspirations as it
failed to guarantee us a Fundamental Right to Healthy Environment.

Though the Constitution did not guarantee a fundamental right to healthy environment
yet through pro-environment interpretation of the State Obligation under Article 48-A
and citizens’ duty to protect and improve natural environment under Article 51-A (g)
by judiciary did recognize a fundamental right to live in a healthy environment.

The international conferences/Declarations have made immense contribution globally

for ensuring better protection and management of environment and the prevention,
control and abatement of pollution.

The Conventions on Biological Diversity, Ozone Depletion and Climate Change have
influenced developing legal framework for mitigating the adverse effects of climate
change, conservation and protection of biodiversity and for reducing the
concentrations of ozone depleting substances in the atmosphere.

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Despite there being so many Laws for protection of environment and conservation of
resources, the adequate infrastructure and administrative set up being created the
problems of environmental degradation continue to be noticed. In such circumstances,
what may be done is a matter of consideration. Do we need the laws to be suitably
modified/amended and enacted or we need to infuse more vigor, enthusiasm and
passion for environment protection as our sacred duty found in the religious and
legislative texts.

Though Public Interest Litigations have helped in spreading environmentalism and

ensuring participatory environmental management yet the involvement of citizenry
through environmental education/awareness and citizen’s suit need be encouraged.

This learning must lead us to achieve the objectives enumerated in the beginning of
the text.

7. FURTHER READINGS

1. Shyam Diwan and Armin Rosencrantz, Environmental Laws and Policy in

India; Cases, Materials and Statues, (2000) Oxford University Press,.

2. S.C. Shastri, Environmental Law, 2 nd Ed, (2005), Eastern Book Company,

Lucknow.

3. C.M. Jariwala, Environment and Justice, (2004), A.P.H. Publishing

Corporation, New Delhi

4. Stuart Bell and S. Ball, Environmental Law, Universal Law Publishing Co.,
New Delhi.

5. Tiwari A.K., Environmental Laws in India, (2006), Deep & Deep

Publications Pvt. Ltd. New Delhi.

6. S. Shanthakurma’s, Introduction to Environmental Law, 2 nd Ed, 2005,

Wadhwa & Co., Nagpur.

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