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SESSION 1
INTRODUCTION TO ENVIRONMENTAL LAW AND POLICY
CONTENTS
1. Concept of Law and Policy 1.1. Introduction 1.2. Concept of Law - Law as Commands - Law as Rules - Law as Principles - Law as Ethics or Morality - Law as Social Norm and Customs - Law as Written Documents - Law Distinguished from Policy 1.3. Environmental Law and Policy 2. Environmental Law and the Indian Constitution Constitution of India (selected provisions) - Part IV- Article 37, 39(e), 48A, 49, 51(c) - Part IVA- Article 51A - Part III- Article 14, 21, 32, 19(1)(g) - Article 243-B, 243-G - Article 32 and 226 2.1. Some important provisions - Duty of the State (Part 1V) - Fundamental Duties of the Citizens (Part IV A) - Fundamental Rights (PART III) ¾ Right to Wholesome Environment ¾ Right to livelihood vis-à-vis Environment ¾ Right to equality ¾ Freedom of Trade - Role of Panchayat and Municipalities - Writ Jurisdiction and Public Interest Litigations 3. Law of Crimes and Environment Related Legislations (select provisions)
- Indian Penal Code, 1860-Section 277,278,
- The Indian Criminal Procedure Code of 1973 (CrPC) – Section 133 3.1 Introduction 3.2 Indian Penal Code, 1860 3.3 The Indian Criminal Procedure Code of 1973 (CrPC) 3.4 Different Types of Environmental Crimes 3.5 Punishment 4. Law of Torts and Environment Related Legislations (select provisions)
- The Environment (Protection) Act 1986
- The Factories (Amendment) Act 1987
- The Public Liability Insurance Act, 1991 (PLIA)
- Civil Procedure Code, 1908 4.1 Introduction 4.2 Hazardous and Inherently Dangerous Activities 4.3 Some Important Legislations in Detail 4.4 Civil Procedure Code, 1908 5. Environmental Justice, Equity and Governance 5.1. Introduction 5.2. Stages in Environmental Protection 5.3. Environmental Doctrines
- Intergenerational equity
- Precautionary Principle
- Polluter-pays Principle 6. The Environment (Protection) Act, 1986 6.1. Introduction 6.2. Premises of the Act 6.3. Objectives 6.4. Scope and Applicability 6.5. Definitions 6.6. Powers of Central Government to take measures to Protect and Improve the Environment 6.7. Powers of the Court 6.8. Prevention, Control and Abetment of Environment Pollution
SESSION 1
INTRODUCTION TO ENVIRONMENTAL LAW AND POLICY
1. Concept of Law and Policy
1.1. Introduction
‘Environment’ is a very comprehensive term. It includes within its ambit a wide variety of phenomenon. It is a dynamic term that may be used to describe a limited area on one hand, and the entire planet on the other. The term Environment may be perceived in different connotations. There numerous definitions of the term as provided by different National and International legal instruments. Generally speaking, Environment includes the external conditions, resources, stimuli etc. with which an organism interacts. The Preamble of the United Nations Declaration on Human Environment, adopted in Stockholm in June 1972 states, “Man is both creature and moulder of his environment, which gives him physical substance and affords him the opportunity for intellectual, moral, social and spiritual growth”. The environment is clearly at risk from a variety of sources of harm, mostly of human origin. In order to tackle this problem it is important that we develop strategies for modifying human behavior towards environmentally benign practices and away from environmentally damaging ones. In very broad terms, techniques for modifying human behavior can be thought of as falling into two types: incentives and disincentives. Law is important as it creates a framework within which incentives and disincentives can operate. Law is all pervasive. Other methods for influencing human behavior are to a certain extent, voluntary or optional. Education, ethics, peer and family pressure: these all apply in various degrees. Law, on the other hand, cannot easily be avoided. It is axiomatic to the “rule of law” that law in a society applies equally to everyone at all times.
1.2. The Concept of Law
Law has been described as ‘generally...a way of regulating human behavior”^1. Yet
(^1) Mc Eldowney and Mc Eldowney 1996, Volume. 3
such simple formulations leave many issues unresolved. Hence, there is a need to closely consider the concept of “law”
One school of thought 2 is that the only thing that count as ‘laws’ are commands of a sovereign, backed up by sanctions in the event of disobedience. A sovereign, for Austin, is an individual or body that is clearly identifiable, habitually obeyed by society, and is not habitually obedient to any other superior. One problem with the command concept of law is that it doesn’t fit very readily with laws that merely empower or permit one to do something. It fails adequately to separate legal coercion from non-legal coercion.
Problems with ‘command’ theories of law led to the development of “rule” theories of law. Hart (1961), the most eminent rule theorists, divided legal rules into primary rules and secondary rules. Primary rules have substantive content (e.g. it is an offence to pollute a watercourse). Secondary rules are rules about primary rules. It is the possession of both primary and secondary rules which according to Hart, demarcates a legal system from other institutions for social control. This implies, incidentally, that less formal systems of social conventions and rules as much as those possessed by certain indigenous peoples may not achieve the status of ‘legal system’. The rule model of law faces certain problems. First, what should courts do if the law does not contain a rule governing a particular case or if the rule seems vague? Hart’s answer is that laws, whilst generally comprehensive and clear, there may be situations where the judges must exercise discretion. This would imply that we must accept that judges actually make law where the legislature has been unclear or left a gap. The discretion explanation itself however is subject to criticism. Second, it is not certain that any clear rules exist. Some rules are made not by the legislature but by the judges. In the case of judge-made rules (precedents) the scope of any given rule is often unclear.
(^2) Hobbes 1996, orig. 1651; Bentham 1891, orig. 1776; Austin 1954, orig. 1832
importance in environmental protection^5. The recent development of the field of ‘environmental ethics’ raises the question of a role for natural law in promoting or protecting basic ethical values in nature. Natural law theory is subject to certain criticisms. Most obvious is the difficulty of ascertaining or reaching agreement on, those ethical principles and values that should inform or limit law’s content.
- Law as Social Norm and Customs
The western concept of law is not shared universally. In particular, many indigenous peoples exist within less formalized systems of law in which the boundary between social norms and ‘legal’ rules is blurred or non-existent^6. Laws based on local custom-‘customary law’-continue to be of considerable practical importance in many developing countries, especially in Africa. Individuals often rely on customary rights to protect their environment, and their own homes, from the threat of development. Many important concepts existing within one legal culture may be absent, or present only in altered form, in others. Sometimes law cannot replace the social functions of tradition and custom. Attitudes and behaviours formed from thousands of years of custom and tradition can be almost impossible for law alone to alter. The practice in China and Hong Kong of eating wild animals, often exotic and/or endangered species has been little affected by laws rendering such practices illegal. Furthermore, the use of wild animal parts in medicinal preparations in these countries is not considered to be morally wrong.
- Laws as Written Documents
It is assumed in the modern western society that laws must exist in a written form. This stems, historically, from the need for dissemination of laws. It also acts as a safeguard against corruption or mischievous interpretation. The requirement is met in modern times, by the publication of statutes, or, in civil law countries, ‘codification’ of the whole environmental law. In recent times access to environmental legislation-at international, regional and domestic levels-has been significantly improved by creation of numerous Internet sites which facilitate
(^5) Boyle and Anderson 1996
(^6) Stavenhagen 1990
access. The desirability of setting laws in written form led to an increase in written reports of courts’ judgment. In addition to the traditional medium of the printed page, decided cases are increasingly disseminated via electronic media such as CD ROMs and the Internet.
- Law Distinguished From Policy
An important distinction in the concept of law is the one between law and policies. Government circulars, strategies or advice documents cannot substitute for the hard-edged character of legislation which is necessary so that ‘individuals are in a position of legislation which is necessary so that ‘individuals are in a position to know their rights in order to rely upon them where appropriate’. Two factors distinguish law from policy. First, policy is generally advisory in nature, recommending objectives or setting targets, rather than prescribing particular actions. Second, policy may derive from any number of institutional processes whereas law must pass strict secondary rules of recognition before it has legal quality. The ‘relegation’ of some instrument to the field of policy rather than law does not exclude it from legal importance. Failure to take relevant policies into account or, conversely, consideration of irrelevant policies may invalidate decisions of public bodies. Not surprisingly, disputes not infrequently arise concerning the relevance, hence permissibility, of environmental policies taken into account by public authorities. Sometimes environmental policies must be taken into account. For instance, in UK development control law, governing advice about development controls, issued in the form of Planning Policy Guidance (PPG) notes, must be taken into consideration in the determination of applications for planning permission.^7
1.3. Environmental Law and Policy
Environmental Law is a body of law, which is a system of complex and interlocking statutes, common law, treaties, conventions, regulations and policies which seek to protect the natural environment which may be affected, impacted or endangered by human activities. Some environmental laws regulate the quantity
(^7) Moore 1987, 176
University, Volume 8, p. 101.
Reference Books:
- Nayak, R.K. (ed.), Shaping the Future by Law: Children, Environment and Human Health, Indian Law Institute, New Delhi, 1996.
- Divan, Shyam and Rosencranz, Armin, Environmental Law and Policy in India - Cases, Materials and Statutes, Oxford University Press, New Delhi.
- Thakur, Kailash, Environmental Protection Law and Policy in India, 1997
2. Environmental Law and the Indian Constitution
Constitution of India (selected provisions) – (Annexure 1)
- Part IV- Article 37, 39(e), 48A, 49, 51(c)
- Part IVA- Article 51A
- Part III- Article 14, 21, 32, 19(1)(g)
- Article 243-B, 243-G
- Article 32 and 226
1.4. Some important provisions
- Duty of the State ( Part IV) Part IV of the Constitution of India contains the directive principles of State policy. These directives are the active obligations of the State; they are policy prescriptions for the guidance of the Government. Article 37 of Part IV of the Constitution limits the application of the directive principles by declaring that these principles shall not be enforceable by any Court. Therefore, if a directive is not followed by the State, its implementation cannot be secured through judicial proceedings. On the other hand, these principles are fundamental in the governance of the country and it is the duty of the state to apply these principles during the process of law-making.
Part IV - Directive Principles of State Policy Article 48A. Protection and improvement of environment and safeguarding of forests and wild life The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. The parliament had considerable debate over the wording of the draft Article 48- A. Several amendments were moved in both the houses of the Parliament. H.M. Seervai has correctly pointed out: Article 48-A reflects an increasing awareness of people all over the word of the need to preserve the environment from pollution, especially in urban areas. Smoke, industrial waste, deleterious exhaust fumes from motor cars and other combustion engines are injurious to the health and well-being of
Article 51A. Fundamental duties It shall be the duty of every citizen of India … (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; Then Indian Constitution has imposed a joint responsibility upon the State; and every citizen of India to protect and improve the natural environment. In the words of Ranganath Mishra, J.: “Preservation of environment and keeping the ecological balance unaffected is a task which not only Government but also very citizen must undertake. It is a social obligation and let is remind every citizen that it is his fundamental duty as enshrined in Article 51-A (g) of the Constitution”^10 After making reference to Article 48-A and Article 51-A (g), the High Court of Himachal Pradesh concluded- Thus there is both a Constitutional pointer to the State and a Constitutional duty of the citizens not only to protect but also to improve the environment and to preserve and safeguard the forests, the flora and fauna, the rivers and lakes and all the other water resources of the country. The neglect or failure to abide by the pointer or to perform the duty is nothing short of a betrayal of the fundamental law which the State and, indeed, every Indian high or low, is bound to uphold and maintain.^11 The Courts have reminded time and again to both State as well as citizens about their duties towards environment while deciding environmental issues by referring to Article 48-A and 51- A(g) of the Constitution.
- Fundamental Rights (Part III)
¾ Right to Wholesome Environment
Part III of the Constitution of India contains fundamental rights. These rights were included in the Constitution after long debates in the Constituent assembly. Part III - Fundamental Rights Article 21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according
(^10) Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1987 SC 359, 364.
(^11) Kinkri devi v. State of Himachal Pradesh , AIR 1988 HP 4,8.
to procedure established by law.
Article 32. Remedies for enforcement of rights conferred by this Part (1) the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. It was the Maneka Gandhi case that heralded the new era of judicial thought. The court started recognising several unarticulated liberties that were implied by Article 21 and during this process the Supreme Court interpreted, after some hesitation the right to life and personal liberty to include the right to wholesome environment. The conflict between development needs and environmental protection has been the most controversial issue before the courts in decide in environmental matters. Incidentally the Dehradun Quarries case that paved the way for right to wholesome environment has also focused on this continuing conflict. The judgments in Dehradun quarries cases were passed under Article 32 of the Constitution and involved closure of some of the quarries on the ground that their operation was upsetting ecological balance of the area. The indirect approval of the right to humane and healthy environment by the Supreme Court continued further in the Oleum gas leak case^12. Life cannot be possible without clean drinking water therefore; right to clean water is one of the attributes of the right to life in Article 21 of the Constitution^13. The industrial establishments in and around residential colonies are another cause of concern, more so, when the industries have mushroomed contrary to the development plans. In V. Lakshmipathy v. State of Karnataka 14 the same issue came before the High Court of Karnataka. The High Court held that once a development plan had earmarked the area for residential purpose, the land was bound to be put to such use only. Thus, High Courts , it seems, were more
(^12) M.C. Mehta v. Union of India, AIR 1987 SC 965.
(^13) Attakoya Thangal v. Union of India 1990 (1) KLT 580
(^14) AIR 1992 Kant 57
natural environment and where such sanctions involve arbitrary considerations.
¾ Freedom of trade Article 19(1) (g) of the Constitution guarantees to all citizens of India, the right to practice any profession or to carry on any occupation or trade or business. The freedom however, is not uncontrolled. The aggrieved industrialist may resort to Article 19 in case his trade and business interests are affected by the action of governmental agencies in the name of the environmental protection. “As environmental regulation grows more stringent and its enforcement becomes more vigorous, industrial challenge to agency action is likely to increase. Courts will then need to balance environmental interests with the fundamental right it carry on any occupation, trade the fundamental right to carry in any occupation, trade or business guaranteed in Article 19(1) (g). Various standards have been prescribed by the Government for the discharge of different pollutants. An industry may challenge a very stringent standard which cannot be complied with, despite best efforts by available technology or if it is otherwise unreasonable.
Role of Panchayat and Municipalities The Constitution (Seventy-third Amendment) Act 1992 and the Constitution (Seventy –fourth Amendment) Act 1992 have given a Constitutional status to the panchayats and the Municipalities respectively. Article 243-B provides or the establishment of intermediate and district levels. Article 243-G authorises the legislature of State to endow the Panchayats with such powers and authority as may be necessary to enable them to function as institution of self-government. The Eleventh Schedule along with other matters contains following maters which are directly or indirectly related to environment like, agriculture, soil conservation, water management and watershed development; fisheries; social forestry and farm forestry; minor forest produce; drinking water; health and sanitation; and maintainace of community assets.
The matters which are related to environment in the twelfth Schedule may be enumerated as follows- Urban planning including town planning regulation of land use water supply; public health, sanitation, conservancy and solid waste management, urban forestry, protection of the environment and promotion of ecological aspects;
provision of urban amenities such as park grounds ; cremation grounds and electric crematoriums; prevention of cruelty to animals regulation slaughter houses and tanneries. Thus it is evident that the Constitution imposes the duty to protect and preserve the environment in all the there tiers of the Government i.e. Central, state and local.
Writ Jurisdiction and Public Interest Litigations One of the most innovative parts of the Constitution is that the Writ Jurisdiction is conferred on the Supreme Court under Article 32 and on all the High Courts under Article 226. Under these provisions, the courts have the power to issue any direction or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition , quo warranto and certiorari , whichever is appropriate. This has paved way for one of the most effective and dynamic mechanisms for the protection of environment, that is, Public Interest Litigations.
49. Protection of monuments and places and objects of national importance.— It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be. 51. Promotion of international peace and security.— The State shall endeavor to— (a) promote international peace and security; (b) maintain just and honorable relations between nations; (c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and (d) encourage settlement of international disputes by arbitration.
II. PART IV A FUNDAMENTAL DUTIES 51A. Fundamental duties.— It shall be the duty of every citizen of India— (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; (b) to cherish and follow the noble ideals which inspired our national struggle for freedom; (c) to uphold and protect the sovereignty, unity and integrity of India; (d) to defend the country and render national service when called upon to do so; (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; (f) to value and preserve the rich heritage of our composite culture; (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; (h) to develop the scientific temper, humanism and the spirit of inquiry and reform; (i) to safeguard public property and to abjure violence; (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.
III. PART III
FUNDAMENTAL RIGHTS
Right to Equality
14. Equality before law. —The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Right to Freedom 19. Protection of certain rights regarding freedom of speech, etc.— (1) All citizens shall have the right— (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and [ (f) has been repealed] (g) to practise any profession, or to carry on any occupation, trade or business. 21. Protection of life and personal liberty.— No person shall be deprived of his life or personal liberty except according to procedure established by law. Right to Constitutional Remedies 32. Remedies for enforcement of rights conferred by this Part .— (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under Clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
IV. ARTICLE 243 B and 243 G
