Critical Analysis of Environmental Laws of India

The importance of the environment cannot be ignored in our lives; each and everything we use today is somehow or the other from the environment. The water we drink, the air we breathe and the food we eat are all derivatives of the environment. It is hard to imagine our lives in the disappearance of the environment and to protect our environment from the inhumane human industrial expansion; there have been several laws drafted. The constitution of India also talks about the need for protection and conservation of the environment and sustainable use of natural resources under Article 51-A. This article casts a duty on every citizen of India to protect and improve the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for living creatures. Similarly, Article 48-A says that the State shall endeavor to protect and improve the environment and safeguard the country’s forests and wildlife. The history of steps taken for environmental up-gradation traces back to the pre-independence, where several environmental legislations existed but were not adequate.

A well-developed framework for environment protection emerged after the UN Conference on the Human Environment (Stockholm, 1972). After this declaration, the National Council for Environmental Policy and Planning within the Department of Science and Technology was set up in 1972. Later on, this council grew and was converted into the Ministry of Environment and Forests (MoEF) in 1985. The Stockholm in 1976 was given constitutional sanction for environmental concerns through the 42nd Amendment, which incorporated them into the Directive Principles of State Policy and Fundamental Rights and Duties. Today, MoEF is the apex regulatory body in the country for regulating and ensuring environmental protection and lays down the legal and regulatory framework for the same. A few of the important legislation that the MoEF made for the regulation of the environment in the country are:

• The Environment Protection Act, 1986
• The National Green Tribunal Act, 2010
• The Air (Prevention and Control of Pollution) Act, 1981
• The Water (Prevention and Control of Pollution) Act, 1974

Apart from the legislation drafted, many judgements directed the way for resolving a dispute regarding the environmental degradation by the industries. Though there are tribunals, legislation and judgements, there is still no proper safeguarding of the environment. There is a broad scope of improvement in the regulation of environmental laws to secure a better future for our coming generation.

The Environment Protection Act, 1986:- The most significant industrial disaster in India was the Bhopal gas tragedy 1984 that devastated many lives and badly injured the environment of that area. This tragedy taught many lessons to the Indians and, at the same time, highlighted the loopholes in the existing environmental laws for such environmental disasters. So after two years of environmental disaster, the Environment Protection Act 1986 was enacted to protect and improve the environment. This Act is the pioneer of environmental laws in India. The legislation was enacted under Article 253, which empowers the parliament to legislate laws for giving effect to international agreements. Section 3 of the Act grants powers to the Central Government to take measures to protect and improve the environment. The Government can also take all such steps as it deems necessary to protect and improve the quality of the environment and prevent, control, and abate environmental pollution. Section 4 of the Act talks about the appointment of officers by the Central Government and their powers and functions. Section 5 mentions the exercise of the Central Government’s powers and performance of its functions under this Act to issue directions in writing to any person, officer, or authority. Such person, officer or authority shall be bound to comply with such directions.

The next chapter of the Act, chapter III, talks about prevention, control and abatement of environmental pollution under which there are sections that talks about Restrictions imposed on or discharge of environmental pollutants more than the standards, Powers of entry and inspection, Reports of Government Analysts and offences by the company and government departments. Although this Act was a need of an hour and is doing its job very efficiently, there are still few drawbacks which are:-

• The Act is entirely centralized, which means such wide powers are provided to the Centre and no powers to the State Governments. The former is liable for its arbitrariness and misuse.
• The Act does not emphasize public participation in keeping the environment clean, as there is always a need to involve the citizens in environmental protection to check arbitrariness and raise awareness and empathy towards the environment.

The National Green Tribunal Act, 2010:– The main objective of the National Green Tribunal Act 2010 is to provide effective and expeditious disposal of the dispute related to environmental protection, conservation of forests and other natural resources through the establishment of the National Green Tribunal. This legislation also aims to provide compensation for the loss of persons and property in the matter related to environmental rights. Article 21 of the constitution of India provides for the right to life, and judicial pronouncement had made the right to a healthy environment a part of the right to life. Therefore, this Act tries to provide a healthy environment to the citizen of India. Section 3 of this Act provides for the establishment of the National Green Tribunal. Section 4 states the tribunal’s composition, regulation of the posts, qualification for appointment, terms of office, resignation, and removal and suspension of chairman.

The tribunal’s jurisdiction under Section 14 includes jurisdiction over the civil cases, which are in accordance with the matters related to the environment. Section 16 of the Act talks about the appellate jurisdiction of the tribunal, and “section 17” talks about the conditions in which liability arises to pay compensation or relief. The award or decision of the tribunal may be challenged before the Supreme Court within 90 days from the date of communication of the disputed orders. This Act also defines the qualifications of a person who can file the appeal before the Court. This includes any person who sustained an injury, the legal representative of the deceased in which the cause of death is related to the environment, and the person aggrieved including the representative body or an organization.

This legislation has many sections that discuss various matters related to environmental protection and the establishment of the National Green Tribunal. Still, if we see the ground-level situation, there has not been any significant relief over ten years. Environmental degradation is at a high pace, and pollution is rising exponentially. Therefore some many drawbacks and loopholes need to be corrected for effective results. The first loophole is the lack of judicial independence since the member appointed still holds the government job. Therefore, the person working for the Government will never take any action against the Government because he may face opposition at their workplace. Coming to the second drawback is the lower number of benches(5) of the NGT and less number of members in the tribunal, due to which the pendency of cases is increasing, and the dispute is not speedily solved. The next obstacle creating hindrance is the absence of the authority, who will pay the compensation when the public or the environment is harmed.

Therefore though the NGT act 2010 established the NGT, which was necessary to protect the environment, there are many improvements needed for speedy and accessible justice to people affected and the harmed environment.

The Air (Prevention and Control of Pollution) Act, 1981:- This legislation was made after the United Nations Conference on the Human Environment held in Stockholm in June 1972, which directed member countries to undertake steps to preserve natural resources, including air. The Act was drafted to provide for the prevention, control and abatement of air pollution. Not only that, the Act was made for the formation of boards for conferring on and assigning to such Boards powers and functions relating to it and for matters connected in addition to that. Section 3 of The Air (Prevention and Control of Pollution) Act, 1981 provides for the establishment of the Central Pollution Control Board, which would perform for the prevention and control of air pollution under this Act. Section 5 talks about the constitution of the State Pollution Control Board under a state and section 4 of the Act defines that any State in which the Water (Prevention and Control of Pollution) Act, 1974 is in force and the state government constituted a pollution control board so that board will get recognised as State Board for the Prevention and Control of Air Pollution. The terms and conditions for the board’s membership have been described under section 7 of the Act, and disqualifications as the member have been mentioned under section 8 of the Act. Coming to the powers and function of the board, Section 16 of the Act talks about functions of the board, which includes improvement of the quality of air and to prevent, control or abate air pollution in the country. Also, to advise the Central Government on any matter concerning the improvement of the quality of air and the prevention, control or abatement of air pollution; lay down standards for the quality of air and to plan and cause to be executed a nation-wide programme for the prevention, control or abatement of air pollution. Section 17 mentions the functions that are expected to be performed by the state board at the state level. Chapter IV (Section 19- Section 31A) of the Act is entirely dedicated to Prevention and Control of Air pollution, where the boards are allotted with certain powers to use and certain restrictions to impose to control the air pollution.

The Water (Prevention and Control of Pollution) Act, 1974:- This Act has the responsibility of preventing and controlling water pollution and maintaining or restoring wholesomeness of water. This Act also establishes boards and confers them with power so that perform the task mentioned above. This law has specific regional applicability as this Act is applicable in the States of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal, it could also come into force in those states which adopt this Act under clause (1) of Article 252 of the Constitution. More or less, the structure of this Act is similar to the Air (Prevention and Control of Pollution) Act, 1981 in matters of the constitution of boards, members of the board, and disqualification. Section 3 of the Act talks about the board’s constitution at the central level with a full-time chairman and the total number of members not exceeding 16 members representing different functions nominated by the Government of India. Section 4 of the Act talks about the board’s constitution at the state level and the nomination of members. Section 5 talks about the terms and conditions of the membership of the boards, section 6 talks about the conditions when a member of the board can be disqualified from the membership. This Act also talks about the constitution of joint boards in chapter III of the Act, joint boards are the boards formed by two or more Governments of contiguous States and by the Central Government & one or more Governments of State governments. Coming down to the powers and function of the boards, so the powers and function of the boards are described in chapter IV of the legislation where section 16 talks about Functions of the Central Board, section 17 talks about Functions of State Board and at last section 18 talks about Powers to give directions. The last important chapter is chapter V, which mentions prevention and control of water pollution through Sections 19-33A.

Important Judgements

1. M.C. Mehta v. Union of India (Gas Leak in Shriram Factory); Supreme Court of India: This was when oleum gas leaked from a company and caused a lot of damage to people living in and the environment of that area. This is a landmark case because it evolved a new concept of “absolute liability”. This concept states that if one stores any harmful product that leaks can cause great damage, there would be absolute liability of all the harms caused by that escape, and there would be no defense available to the respondent.

2. M.C. Mehta v. Union of India- Ganga Pollution Case; Supreme Court of India: This was a case of filing of writ petition of mandamus for preventing the leather tanneries from disposing of the domestic and industrial waste and effluents in the Ganga River. The petitioner requested the Court to request the Supreme Court (the Court) to restrain the respondents from releasing effluents into the Ganga river until they incorporate certain treatment plants to treat toxic effluents to arrest water pollution. The Court, in this case, stated the importance of the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act). The Supreme Court held that despite provisions in the Water (Prevention and Control of Pollution) Act, 1974 Act, the State Board took no effective steps to prevent the discharge of effluents into the river Ganga. Also, despite the provisions in the Environment Protection Act, no effective steps were taken by the Central Government to prevent the public nuisance caused by the tanneries at Kanpur. The Court ordered the closure of several polluting tanneries near Kanpur.

3. Art of Living Case on Yamuna Flood Plain; National Green Tribunal: An event by the foundation of Sri Sri Ravishankar was held in the flood plain area at the bank of Yamuna River in Delhi. This event caused several damages to the flood plains of river Ganga. The NGT panel imposed Rs. 5 Crore on the Art of Living Foundation as environmental compensation after coming down heavily on the foundation for not disclosing its complete plans. The Art of Living Foundation said in a statement that-“We will appeal to Supreme Court. We are confident that we will get justice.”

This article is authored by Utkarsh Pandey, student at Chanakya National Law University.