HISTORY
The first significant worldwide attempt to preserve and safeguard the human environment was the Stockholm Declaration of 1972. This Declaration obliged the States to enact laws requiring the improvement and protection of the environment in the relevant endeavor. As a result, in 1976, the Indian Parliament added two new Articles to the Indian Constitution, 48-A and 51-A. The state shall endeavor to maintain and improve the environment as well as preserve the nation’s forests and wildlife, as Article 48-A of the Constitution rightly requires. Similarly, every Indian citizen is required under Clause [g] of Article 51-A to preserve and enhance the natural environment, which includes forests, lakes, rivers, and animals, as well as to show sympathy for living creatures.
The combined effect of Articles 48-A and 51-A [g] seems to place constitutional responsibility for the preservation, maintenance, and enhancement of India’s natural conditions on both the “state” and the “citizen.” It is the responsibility of every generation to preserve and develop India’s unique natural resources in the best manner possible for future generations. The phrase “protects and improves,” which appears in Articles 48–A and 51–A [g], appears to indicate a proactive government initiative to enhance environmental quality rather than merely conserve it in its contaminated state.
Apart from the constitutional mandate to protect and improve environmental conditions, there are a series of legislations are the Forest [Conservation] Act, 1980; the Water [Prevention and Control of Pollution] Act, 1974; the Wildlife [Protection] Act, 1972; the Environment [Protection] Act, 1986; the Air [Prevention and Control of Pollution] Act, 1981; the National Environment Tribunal Act, 1995; the National Green Tribunal Act, 2010; the Biological Diversity Act, 2002; and the Hazardous Wastes [Management and Handling] Amendment Rules, 2003, etc.
CONSTITUTIONAL PROVISION OF ENVIRONMENTAL LAW
There are certain constitutional provisions that give certain powers and rights to citizens to protect the environment. Let’s have a look:
Article 48A: This article falls within the state policy direction premise. This article implies that the government must make an effort to protect the environment. It also emphasizes the need to protect the country’s forests and animals. Article 48A requires the state to take different measures to protect the environment from pollution.
Article 51A (g): it is the obligation of every Indian citizen to safeguard and improve the natural environment, which includes lakes, rivers, forests, and wildlife. This article also emphasizes compassion for living beings. This article is similar to Article 48A in that it focuses on people’s fundamental duties, whereas Article 48A urges the state to do its duties and protect the environment. As a result, it is our responsibility to not only protect the environment from contamination but also to improve its quality.
Article 246 distributes legislative issues between the Union and the States. It also details the concurrent list, in which both the Union and the States make laws by sharing jurisdiction, including mine protection, animal protection, and resource development. As a result, both the state and the union have the authority to adopt environmental legislation. Article 246 also gives Parliament the authority to make legislation on the state list in the national interest.
Article 47: This article imposes a duty on the state to improve residents’ living conditions by providing health care, sufficient nourishment, and sanitation, as well as safeguarding the environment so that they can live safely. Article 4 also encourages its residents to be more environmentally responsible.
Article 2 states that the right to life is not just for animals; it also provides the right for humans to live safely in an environment with basic human dignity.
Article 19(1)(g) states that citizens cannot practice trade or business activities that are hazardous to public health.
Articles 32 and 226: This article gives citizens the right to file a PIL (Public Interest Litigation) with the Supreme or High Court if they believe their fundamental rights have been violated. This article contributes to environmental preservation and ecological balance. This article further states that environmental conservation is the responsibility of all Indian citizens, not just the government.
The constitutional provisions are backed by a number of laws – acts, rules, and notifications. The EPA (Environment Protection Act), 1986 came into force soon after the Bhopal Gas Tragedy and is considered an umbrella legislation as it fills many gaps in the existing laws. Some of the existing laws are:
(1) THE WILDLIFE (PROTECTION) ACT, 1972
The Act protects wild animals, birds, and plants, as well as items related to, auxiliary to, or incidental to them. It covers the entire country of India.
It is divided into six schedules that provide differing degrees of protection:
(a) Schedule I and Part II of Schedule provide absolute protection; offenses under these are prescribed the highest penalties.
(b) Species listed in Schedule III and Schedule IV are also protected, but the penalties are much lower.
(c) Animals under Schedule V, e.g. common crows, fruit bats, rats, and mice, are legally considered vermin and may be hunted freely.
(d) The specified endemic plants in Schedule VI are prohibited from cultivation and planting.
Statutory bodies under WPA:
(a) The National Board for Wildlife and state wildlife advisory boards
(b) Central Zoo Authority
(c) Wildlife Crime Control Bureau
(d) National Tiger Conservation Authority
(2) THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974
The goal is to prevent and regulate water contamination. Maintaining or restoring the wholesomeness and purity of water from diverse sources
It vests regulatory authority Centre Pollution Control Board (CPCB) and State Pollution Control Board (SPCB). The CPCB and SPSB are statutory agencies established by the Water Act of 1974.
CPCB serves the same functions for union territories, as well as developing policies to avoid water pollution and coordinating the actions of several SPSBs.
SPCB regulates sewage and industrial effluent discharge by accepting, rejecting, and giving discharge consent.
(3) THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981
The act’s primary goals are to manage and prevent air pollution in India.
- To provide for the prevention, control, and reduction of air pollution.
- To provide for the formation of boards at the federal and state levels to carry out the act.
CPCB and SPCB were tasked with the task. It states that sources of air pollution, such as internal combustion engines, industry, vehicles, and power plants, are not permitted to exceed predetermined limits for particulate matter, lead, carbon monoxide, sulphur dioxide, nitrogen oxide, volatile organic compounds (VOCs), or other toxic substances.
(4) THE ENVIRONMENT (PROTECTION) ACT, 1986
This act was passed under Article 253 (legislation for giving effect to international agreements)
This was passed in the wake of the Bhopal gas tragedy December 1984. It was enacted in order to achieve the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment. The MoEFCC notifies eco-sensitive zones or environmentally fragile regions under the EPA, 1986: 10 km buffer zones around protected sites.
Statutory bodies under the EPA, 1986:
1. Genetic Engineering Appraisal Committee
2. National Coastal Zone Management Authority (later converted to National Ganga Council under Ministry of Jal Sakthi)
The ozone-depleting substances (regulation and control) rules, 2000
It established timeframes for the phase-out of certain Ozone Depleting Substances (ODSs) and regulated the manufacture, sale, import, and export of ODS-containing products. Except in metered-dose inhalers and for other medical applications, these guidelines restrict the use of CFCs, halons, ODSs such as carbon tetrachloride and methyl chloroform, and SFC.
Coastal Regulation Zone Notification 2018:
It was notified based on the Shailesh Nayak Committee’s recommendations.
To promote sustainable development while accounting for natural threats such as rising sea levels caused by global warming.
conservation and protection of biodiversity, as well as livelihood security for local residents, notably fishers. RZs have been divided into four regulatory zones:
1. CRZ I– ecologically sensitive areas such as mangroves, coral reefs, salt marshes, turtle nesting grounds, and the inter-tidal zone
2. CRZ II– areas close to the shoreline and which have been developed.
3. CRZ III- Coastal areas that are not substantially built up, including rural coastal areas.
4. CRZ IV- water area from Low Tide Line (LTL) to the limit of territorial waters of India.
(5) THE ENERGY CONSERVATION ACT, 2001
It was enacted in order to improve energy efficiency and reduce waste. It establishes energy consumption guidelines for machinery and appliances. It establishes consumer energy usage regulations and standards. It establishes energy-saving building codes for commercial structures. The Bureau of Energy Efficiency (BEE) is a statutory entity created by the act.
(6) BIOLOGICAL DIVERSITY ACT 2002
It was put in place to give effect to the CBD, Nagoya Protocol. To combat biopiracy, conserve biological diversity, and local producers through a three-tier system of central and state boards, as well as local committees. To establish the National Biodiversity Authority (NBA), State Biodiversity Boards (SBBS), and Biodiversity Management Committees (BMCS).
Benefit sharing is provided for in Article 21 of the Act. It attempts to guarantee that the person seeking such benefits and the local bodies concerned share fairly in the benefits generated from the biological resources, their byproducts, knowledge, and related behaviors.
(7) SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST RIGHTS) ACT, 2006 (FRA)
The act grants forest-dwelling Scheduled Tribes (FDST) and Other Traditional Forest Dwellers (OTFD) who have been living in these forests for many generations recognition and the right to occupy forest land. The Ministry of Tribal Affairs is in charge of this act. The statute also specifies who is in charge of what in terms of biodiversity conservation, sustainable use, and upholding the ecological balance between OTFD and FDST.
It guarantees the FDST and OTFD’s means of subsistence and food security while fortifying the forest conservation regime. The FDST and OTFD are essential to the survival and maintenance of the forest ecosystem, and this initiative aims to right colonial injustices against them.
The act identifies four types of rights:
(a) Title rights
Up to a maximum of 4 hectares of land farmed by tribal people or forest dwellers, it grants FDST and OTFD the right to ownership. No new land will be awarded; ownership is limited to the property that the concerned family is currently cultivating.
(b) Use rights
Dwellers have rights over grazing areas, pastoralist routes, and the extraction of minor forest products.
(c) Relief and development rights
Rehabilitation for cases of forcible or unlawful eviction, as well as basic amenities, subject to limitations for the preservation of the forest
(d) Forest management rights
It includes the freedom to manage, restore, conserve, and regenerate any community forest resource that has historically been preserved and conserved for long-term use.
(8) THE NATIONAL GREEN TRIBUNAL ACT, 2010
It was created in tandem with the 1992 Rio Summit to offer victims of pollution and other environmental harm legal and administrative recourse. Additionally, it complies with Article 21 of the Constitution, which guarantees residents the right to a healthy environment.
Within six months of the appeals being filed, the NGT must decide the cases that are brought before it. Regarding matters pertaining to significant environmental questions, the NGT has original jurisdiction. NGT handles civil actions pertaining to the seven environmental acts:
(a) The Water (Prevention and Control of Pollution) Act, 1974
(b) The Water (Prevention and Control of Pollution) Cess Act, 1974
(c) Air (Prevention and Control of Pollution) Act, 1977
(d) Forest Conservation Act, 1980
(e) Environmental Protection Act, 1986
(f) Public Liability Insurance Act 1991
(g) Biological Diversity Act, 2002
The NGT has excluded the subsequent two acts from its purview:
(a) The 1972 Wildlife Protection Act
(a) The Forest Rights (Recognition of Scheduled Tribes and Other Traditional Forest Dwellers) Act of 2006 (FRA)
- High courts and the Supreme Court have the authority to hear challenges to the NGT’s rulings.
(9) COMPENSATORY AFFORESTATION FUND ACT, 2016
The ad hoc Compensatory Afforestation Fund Management and Planning Authority (CAMPA) was in charge of overseeing the monies collected for compensatory afforestation prior to the enactment of the CAF Act.
When forest land is diverted for uses other than forests, such as mining or industry, the user agency is responsible for compensating the loss of forest cover by planting trees over an equivalent amount of non-forest land, or in the event that non-forest land is unavailable, twice the area of degraded forest land.
According to the regulations, the Center is to keep 10% of the funds from the CAF and deliver the remaining 90% to the states.
ADV. KHANAK SHARMA (D\1710\2023)