Environmental Laws and the Impact of Judicial Pronouncements in Promoting Environmental Concerns

Written By: Ms Ashima Mishra

The environment is the only factor that is the necessity of every person and it cannot be compromised at any cost. Comfort and luxury are two things that can be adjusted but cannot but necessity can never be.

In the post-independent era, the growth of industries has been so massive that the judiciary became bound to take steps for the enactment of several environmental laws. Especially, the higher judiciary has been devised and monitored several implementing measures for the control of pollution, conservation of forest and wildlife protection.

Judiciary has played a major role in promoting environmental laws to reduce environmental concerns. The people have always taken the help of PILs to tackle the problems related to the environment.

What actually Environment mean?

According to a layman, “Environment means the surrounding where we live in and it is covered with air, water, mountains, flora and fauna.” Under the Environment Protection Act, 1986, the term ‘environment’ has been defined in Section 2 (a). It includes, “water, air and land and inter-relationship which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property.”

What are Environmental Laws?

Environmental Laws are those laws or legislations which are made or implemented in regard to the environment and for its protection. The laws related to air, water, noise, forests, wildlife, and everything related to the environment. Every country has its own set of rules regarding the environment. Similarly, India has been always a step forward in showing concern for the environment.

It has implemented many major environmental laws for its protection and some of them are as follows: –

The Indian Forest Act, 1927, amended in 1984
The Environment Protection Act, 1986
The Wildlife Protection Act, 1972, Rules 1973 and amended in 1991
The Water Prevention and Control of Pollution Act, 1974
The Forest Conservation Act and Rules 1980 & 1981 respectively
The Air Prevention and Control of Pollution Rules, 1982

Protection of Environment in regard to Constitutional Provisions

India was too ahead of other nations in terms of environmental protection. It was seen that even before three years of the Stockholm declaration, India prepared a note in IV Five-year plan which was from 1969 to 1974 about the integration of the environment into planning. In the early period just after independence, the environment was not a fundamental right but gradually in the late ’80s, the Supreme Court regarded it as a fundamental right. In the year 1986, a provision related to protection was passed for the first time. When people started thinking about the environment. The Environment has also been included under the DPSPs of the constitution. It has gained its constitutional status in the 42^nd Amendment of the constitution.

There are three important provisions under the constitution that speaks about the environment and they are: –

Article 21- It states about “Right to pollution free environment”
Article 48- It states “the state shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.”
The word environment has also been included in the fundamental duties of the Indian Constitution. It is found under Article 51 A (g) which speaks about “duty of every citizen of India to protect and improve the natural environment which also included forests, lakes, rivers and wildlife and also to have love and compassion for living creature.”

Few Doctrines Regarding Environment

Precautionary Principle- This principle is based on the theory that “it is better to make mistakes on the side of caution and prevent environmental harm which may indeed become irrevisible. It states that if any action has risk which can cause harm to the environment and its people who is taking action that has idea or any knowledge about that risk, that in the absence of scientific measures that action or project is harmful, then the burden of proof lies on the person who take that action that it’s not harmful. In this principle, there remains a social obligation to protect the public from any harm, if any scientific investigation is found to be risky in future.

Sustainable Development Doctrine-The concept of sustainable development has been developing in both national and international level. Sustainable development refers to that kind to development which takes place without compromising the needs of the future generation. It means to maintain a balance between the development of present generation and the development of future generation. The Apex court in the case of Vellore Citizens Welfare Forum Vs. Union of India[1] was of view that the traditional concept tat development and ecology are different to each other, is no longer acceptable, ‘sustainable development is the answer.’

Public Trust Doctrine- The origin of this doctrine dates back to very primitive time when the ancient Roman Empire developed a legal theory and named as Public Trust.

It is a part of India’s legal jurisprudence as we know Indian laws are purely based on the common law system.

This doctrine states that the state is a guardian of natural resources and it is made available for the public for their enjoyment by nature and it can’t be considered as private property. The state is legally bound to protect it.

In M.C. Mehta Vs. Kamal Nath[2], the supreme court for the first time applied this doctrine and stated, “the public trust mainly rests on the principle that some resources such as air, seawater, the forest is of greater importance to the people as a whole. So, it would be a wrong thing to declare them as private assets.”

Polluter’s pay Principle- Due to immense growth of industries in India, the country had to undergo through various problems like compensating people who have suffered through losses due to environmental pollution. This principle says that the polluter means the person who pollutes the environment must pay for the damage caused due to him.

In the case of M.C. Mehta Vs. Kamal Nath[3], the supreme court also directed the ‘motel to pay compensation by way of cost for the restitution of the environment and ecology of the area which was caused due to diverting the natural flow of the river water for private and commercial use.

Some Remarkable Decisions Delivered By The Supreme Court of India

M.C. Mehta Vs. Union of India[4]

It is about the constitution of an Authority (Bhurelal Committee) which dealt with the pollution of the National Capital Region. The Supreme Court after consideration of the draft order of the Government of India, Ministry of Environment and Forests opined that it would be good if the Government of India supersede the prior notification constituting the authority which is to be headed by Justice R.K. Shukla as a continuance of two authorities for a single agenda would lead to conflict. To solve the jurisdiction issue the apex court took such a decision.

Sachidanand Pandey Vs. State of Bengal[5]

This is a famous case called Calcutta Taj Hotel Case. In the present case, a group of people challenged the location of a five-star hotel on the following ground that it will hamper the zoo garden which is near the proposed area where the construction shall begin. Also they also stated that it would interfere with the flight of many migratory birds.

After all the facts and views considered, the Supreme Court held that it does not find any way of disturbance for the birds or the zoo. Still, the court said that if any activity took place with regard to the likelihood of the prejudice of the public then it is bound to interfere through an order. The court further added that when a case related to ecology or environment comes to it, they are bound to keep in mind the provisions under Article 48A and Article 51 A (g).

Almitra H. Patel Vs. Union of India[6]

A writ petition was filed under Article 32 before the Apex court regarding the implementation of management of municipal solid waste. In the year 1997, the Apex Court directed the respondents to give the details regarding the existing municipal solid waste practices. After consideration and view of all facts, the Apex Court held that “it is not the duty of the court to direct as to how the municipal authorities should work or function and resolve the difficulties in the solid waste management. But however, the court directed that the local authorities, government, and all statutory authorities must discharge their duty properly and keep the city clean.

Remedies for Environmental Pollution

We have both laws of torts and statutory laws as legal remedies for the protection of the environment in India. When a person is aggrieved then he can file a suit under section- 19 of the Environment Protection Act, 1986. He can file a PIL under Articles 226 and 32 in the High Court and the Supreme Court respectively.

Conclusion

The environment has been identified as a fundamental right as well as the duty of every citizen of the country. The Court of Law also had taken many initiatives for the protection of the environment. The Indian Courts have evolved the concept of Judicial activism and made it more effective and workable. As a result of which, we are able to protect our environment. The best thing that the Indian Judiciary has done is it has opened the doors for PILs for environmental issues in the courts as a result many aggrieved people could not afford to come to courts due to lack of money or other issues have received strong support. Still, there are some loopholes found on the part of citizens. Only blaming the courts for the pending of cases won’t solve any problem but it can be solved, if we stop doing mistakes. In spite of deforestation, if we take a step forward towards afforestation, then the burden upon the judiciary would definitely be less. As it is said, “Prevention is better than Cure.”