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Environmental Policy In India and the Role of Judiciary in Imparting Environmental Justice
- Justice Hima Kohli, High Court of Delhi, India
What of thee I dig out, let that quickly grow over, Let me not hit thy vitals, or thy heart.
-Atharva
Veda
The Underlying auses of !nvironmental "egradation in India
Social Factors Economic Factors Institutional Factors
#ocial $actors
Population Poverty Urbanization
!conomic $actors
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Non e!istent or poorly functioning mar"ets for environmental goods and services #ar"et distortions controls and subsidies created by price
$he manufacturing technology adopted by most of the industries %hich generally is based on intensive resource and energy use& E!pansion of chemical based industry 'ro%ing transport activities E!pansion of port and harbour activities&
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Institutional $actors
(ac" of a%areness and infrastructure ma"es implementation of most of the la%s relating to environment) e!tremely difficult and ineffective&
!nvironmental %olicy In India
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*ncient India
$he &rthashastra by +autilya) %ritten as early as bet%een ,-. and ,// 01) contained provisions meant to regulate a number of aspects related to the environment& $he fifth pillar edict of Emperor *sho"a also contains such regulations
!nvironmental %olicy In India
2uring the 0ritish Reign in India3
Shore Nuisance 40ombay and +olaba5 *ct) .67, $he Indian Penal 1ode) .68/ $he Indian Easements *ct) .66$he Fisheries *ct) .69: $he Factories *ct) .69: $he 0engal Smo"e Nuisance *ct) .9/7 $he 0ombay Smo"e Nuisance *ct) .9.$he Elephant;s Preservation *ct) .6:9 <ild 0irds and *nimals Protection *ct) .9.-
!nvironmental %olicy In India
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#odern India
National 1ouncil for Environmental Policy and Planning %as set up in .9:- %hich %as later evolved into #inistry of Environment and Forests 4#oEF5 in .967& #oEF and the pollution control boards 41P10 i&e& 1entral Pollution 1ontrol 0oard and SP10s i&e& State Pollution 1ontrol 0oards5 together form the regulatory and administrative core of the sector&
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!nvironmental %olicy In India
$he Policy Statement for *batement of Pollution and the National 1onservation Strategy and Policy Statement on Environment and 2evelopment %ere brought out by the #oEF in .99-&
$he
E*P
4Environmental
*ction
Programme5
%as
formulated in .99, %ith the ob=ective of improving environmental services and integrating environmental considerations into development programmes&
!nvironmental %olicy In India
National Environment Policy) -//8
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It the first initiative in strategy formulation for environmental protection in a comprehensive manner& It underta"es a diagnosis of the causative factors of land degradation %ith a vie% to flagging the remedial measures re>uired in this direction& It recognizes that the relevant fiscal) tariffs and sectoral policies need to ta"e e!plicit account of their unintentional impacts on land degradation&
!nvironmental %olicy In India
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National Environment Policy) -//8 4contd&5
$he solutions offered to tac"le the problem comprise adoption of both) science based and traditional adoption of land use large practices) scale pilot scale partnerships) demonstrations) dissemination)
#ulti sta"eholder
promotion of agro forestry) organic farming) environmentally sustainable cropping patterns and adoption of efficient irrigation techni>ues&
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onstitutional $ramework
*rticle -. *rticle ?6* Fundamental Rights 2irective Principles of State Policy
*rticle 7.*4g5 Fundamental 2uties
Legislative $ramework
Water '%revention and ontrol of %ollution( &ct, )*+,
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Water '%revention and ontrol of %ollution( ess &ct, )*++ &ir '%revention and ontrol of %ollution( &ct, )*-) &tomic !nergy &ct of )*-. /otor 0ehicles &ct ,)*-The Wildlife '%rotection( &ct, )*+. The $orest ' onservation( &ct, )*-1 !nvironment '%rotection( &ct, )*-2 '!%&( The 3ational !nvironment &44ellate &uthority &ct, )**+ %u5lic Lia5ility Insurance &ct '%LI&(, )**) 3ational !nvironment Tri5unal &ct, )**6
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!nvironment Im4act &ssessment '!I&(
$here are t%o types of EI* models the statutory model %hich ma"es the assessment of impact compulsory under an enacted la%) or a delegated legislation) and the administrative model under %hich an administration e!ercises its discretion to find out %hether an impact study is necessary& $ill .99-) India %as follo%ing the administrative model of EI*&
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!nvironment Im4act &ssessment '!I&( 'contd.(
@n -:th January) .99? a notification %as issued dealing %ith mandatory EI*& $he notification re>uires pro=ect proponent to submit an EI* report) and environment management plan) details of the public hearing and a pro=ect report to the impact assessment agency for clearance) further revie% by a committee of e!perts in certain cases& 0y the amendment in the year .99:) public hearing %as made compulsory before impact assessment %as finalized&
7ole of 8udiciary in Im4arting !nvironmental 8ustice
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$he Judiciary has come up %ith the A=udge implementationB of environmental
driven
administration in India& It has isolated specific environmental la% principles upon interpretation of Indian Statutes and 1onstitution& Public Interest (itigations 4PI(s5 %hich is the result of the rela!ation of the locus standi rules by the =udiciary) is the characteristic feature of the environmental litigation in India&
7ole of 8udiciary in Im4arting !nvironmental 8ustice
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2isputes relating to environment are treated as cases related to violation of fundamental rights) rather than claims under la% of torts& It has been held that the Supreme 1ourt and the Cigh 1ourts can be directly approached under *rticle ,- and *rticle --8 of the 1onstitution of India in case of matters relating to environment&
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7ole of 8udiciary in Im4arting !nvironmental 8ustice ' ontd.(
$he orders of the Supreme 1ourt and the Cigh 1ourts cover a %ide range of areas including air) %ater) solid %aste) hazardous %astes) forests) mining activities) and architectural treasures& Policy Statements of the government) %hich other%ise are not enforceable in 1ourts) have been used as aids by the Judges for interpreting environmental statutes and for spelling out obligations of the 'overnment&
"octrines !volved 5y ourts9
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Public $rust 2octrine3
#&1&#ehta v& +amal Nath) 4.9985 . S11 ,63 In a case where an attem4t was made to divert flow of a river for augmenting facilities at a motel, it was held that #tate and its instrumentalities as trustees have a duty to 4rotect and 4reserve natural resources. #I 0uilders Pvt& (td& v& Radhey Shyam Sahu) *IR .998 S1 -?863 a city develo4ment authority was asked to dismantle an underground market 5uilt 5eneath a garden of historical im4ortance.
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"octrines !volved 5y ourts9
Precautionary Principle3
Dellore 1itizens <elfare Forum v& U@I) *IR .998 S1 -:.63 The 4rinci4le was ado4ted to check 4ollution of underground water caused 5y tanneries in Tamil 3adu. Narmada 0achao *ndolan v& U@I) *IR -/// S1 ,:73 The #u4reme ourt held that the 4recautionary 4rinci4le could not 5e a44lied to the decision for 5uilding a dam whose gains and losses were 4redicta5le and certain.
"octrines !volved 5y ourts9
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Polluter Pays Principle3
The o5:ect of this 4rinci4le is to make the 4olluter lia5le for the com4ensation to the victims as also for the cost of restoring of environmental degradation. Dellore 1itizens <elfare Forum v& U@I) *IR .998 S1 -:.63 It was held that the 4recautionary 4rinci4le and the 4olluter 4ays 4rinci4le are 4art of environmental law of the country.
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"octrines !volved 5y ourts9
*bsolute (iability Principle3
#& 1& #ehta v& U@I) *IR .96: S1 ./68 4@leum 'as (ea" 1ase53 The 4rinci4le was ado4ted to com4ensate victims of 4ollution caused 5y inherently dangerous industries. Narmada 0acho *ndolan v& U@I) *IR -/// S1 ,:73 The #u4reme ourt held that the 4recautionary 4rinci4le could not 5e a44lied to the decision for 5uilding a dam whose gains and losses were 4redicta5le and certain.
"octrines !volved 5y ourts9
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Sustainable 2evelopment3
#&1& #ehta v& U@I) *IR .99: S1 :,? 4$a= $rapezium 1ase59 while taking note of the disastrous effects that the emissions from the /athura ;il 7efinery had on the Ta: /ahal, the #u4reme ourt a44lied the 4rinci4le of sustaina5le develo4ment to the case, and a4art from 4assing various directions, ste44ed in to e<ecute and su4ervise the resultant actions& State of Cimachal Pradesh v& 'anesh <ood Products) *IR .998 S1 .?9, the #u4reme ourt invalidated forest 5ased industry, recogni=ing the 4rinci4le of inter>generational equity and sustaina5le develo4ment.
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ontri5ution of the "elhi ?igh ourt
In a PI( pending before the 2elhi Cigh 1ourt challenging the development of the common %ealth games site on the riverbed and floodplain of the Eamuna) a 0ench of t%o Judges hearing the matter) personally visited the site recently to see as to ho% much of the riverbed and floodplain had been ac>uired to build the 'ames Dillage) so that an appropriate order could be passed in the case and the infrastructural needs could be balanced %ith the environmental concerns&
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ontri5ution of the "elhi ?igh ourt
2irections have been passed by the Cigh 1ourt in various PI(s for clearing the river Eamuna of all encroachments and for demolition of the slums on its ban"s& In !nkay %lastics %vt. Ltd. 0s. Union of India 'U;I( and ;rs., .111'62("78-.-) the Cigh 1ourt upheld the order of the 2elhi Pollution 1ontrol 1ommittee for closure of certain polluting industries) and held that the direction of close do%n the industry %hich is creating air pollution in residential areas&
ontri5ution of the "elhi ?igh ourt
In the case of 0imal @hai v. U;I A ;rs., 'W.%.
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' ( )+2-.B.116, W.%.' ( )+2-CB.116, W.%.' ( )+2-,B.116 decided on .*.6..116(, the Union of India and all its concerned functionaries %ere directed to ta"e re>uisite steps for clearing the proposals related to the appointment of the 1hairman of the *ppellate *uthority and other $echnical #embers and reconstitute the *uthority %ithin ?7 days) under the National Environment *ppellate *uthority *ct) .99:&
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