ENVIRONMENTAL PROTECTION AND LAW A BRIEF CONSPECTUS
INTRODUCTION:
Increasing pollution problem in India may be ascribed to development and industrialization of the country, which was started in the late 1960’s[1] and the growing population in the late 20th century started to destroy the environment to live better. So, to protect our environment for the future, people should have awareness and environmental education. There should be effective legislation to protect the environment or else the need for resources by the growing population will create havoc on the environment.[2] The right to a healthy environment has been construed as a part of the right to life under Article 21 of the Constitution.[3] The systematic expansion started with the Stockholm conference in 1972 when parliament started taking cognizance of water pollution.[4] The 1972 United Nations Conference on the Human Environment in Stockholm was the first world conference to make the environment a major issue.[5] Seventy international treaties, declarations, charters, accords, and other documents have since been ratified by several countries. These attempts were made to protect the environment and strike a balance between environmental preservation and human development. The plethora of such enactments has, unfortunately, not resulted in preventing environmental degradation which, on the contrary, has increased over the years.[6]
Environmental law in India:
Following the United Nations Conference on Human Environment, which took place in Stockholm in 1972, an amendment to the Indian Constitution mandated environmental protection. The 42nd Amendment clause (g) to article 51A of the Indian Constitution made it a fundamental duty to protect and improve the natural improvement.[7]
Article 51A (g) of the Indian Constitution states that
“To protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures”.[8]
There is a directive, given to the state as one of the Directive Principles of State Policy regarding the protection and improvement of the environment.[9]
Article 48A states “The state shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country”.[10]
Environmental laws in India are adopted, implemented, and enforced by three main entities. They are the Ministry of Environment, Forest, and Climate Change along with the central pollution control board at the National levels as well as the state pollution control boards at the state level[11]. The Ministry of Environment was established in 1980 as Department of Environment, to ensure a healthy environment for the country[12] and it was afterward modified to become present in 1985. This ministry has the responsibility for administering and enforcing environmental legislation and policies.[13] The Bhopal gas tragedy gave rise to the enforcement of the Environmental Protection Act, of 1986.
The Environmental Protection Act is also considered umbrella legislation as it fills many lacunae in the existing legislation such as the Water (Prevention and Control of Pollution) Act 1974, Air (Prevention and Control of Pollution) Act 1981, etc.
Other statutes that support Environmental law:
The Biomedical waste (management and handling) Rules, 2016:
The Bio-Medical Waste (Management and Handling) Rules, 2016 is a repealed version of The Bio-Medical Waste (Management and Handling) Rules, 1998. The current BMWM rules are an improvement over earlier rules in terms of improved segregation, transportation, and disposal methods, to decrease environmental pollution and ensure the safety of the staff, patients, and public.[14] Bio-medical waste (BMW), is defined as any waste generated during diagnosis treatment, or immunization, of human beings or animals or in research activity.[15] The waste produced in the course of healthcare activities has greater potential and possibility for causing injury and infection than other types of waste.[16] As per the recent Bio-Medical Waste (Management and Handling) Rules, 2016 these rules apply to all persons who generate, collect, receive, store, transport, treat, dispose or handle BMW in any form including hospitals, nursing homes, clinics, dispensaries, veterinary institutions, animal houses, pathological laboratories, blood banks, Ayush hospitals, clinical establishments, research or educational institutions, health camps, medical or surgical camps, vaccination camps, blood donation camps, first aid rooms of schools, forensic laboratories, and research laboratories by whatever name they are called to take all the steps to ensure that such waste is handled without any adverse effect to human health and environment.[17]
The Air (Prevention and control of pollution) Act, 1981:
The Air (Prevention and Control of Pollution) Act of 1981 is a key piece of legislation that addresses both the prevention and control of air pollution as well as maintaining the air's high quality. Section 2(a) and Section 2(b) of the Air (Prevention and Control of Pollution) Act, 1981 define “air pollutant” and “air pollution”. According to the said act, “air pollutant” means any solid, liquid, or gaseous substance [(including noise)] present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment.[18] The aforementioned act defines “air pollution” in the following way, “air pollution” means the presence in the atmosphere of any air pollutant.[19]
Central Pollution Control Board and State Pollution Control Boards, which were constituted under Section 3 and Section 4 of the Water (Prevention and Control of Pollution) Act, for the protection of Water, were also made responsible for the Air (Prevention and Control of Pollution) Act under the same section of 1981 Act.
Under Section 3 and Section 4 of the Air (Prevention and Control of Pollution) Act, both Central boards and state boards exercise the powers and perform the functions for the prevention and control of air pollution.[20]
The National Green Tribunal Act, 2010:
The National Green Tribunal Act of 2010 is an act to provide for the establishment of a National Green Tribunal for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.[21] Thus, in pursuance of the said act the Government of India has formed the National Green Tribunal in the year 2010. As aforementioned this quasi-judicial body was meant to deal exclusively with environmental laws and provide citizens the right to the environment.[22]
[1] Govind Narayan Sinha, A comparative study of the environmental laws of India and the UK with special reference to their enforcement (2003) (Unpublished LL.M dissertation, The University of Birmingham.
[2] National institute of Open Schooling, Environmental Science Senior Secondary course, Environmental Management, Environmental legislation Module 7.
[3] The National Green Tribunal Act 2010, India, available at: https://greentribunal.gov.in/sites/default/files/act_rules/National_Green_Tribunal_Act,_2010.pdf (last visited on September 9, 2023).
[4] Changing Base of Indian Environmental Law, 1 RMLNLUJ (2008) 48
[5] UN General Assembly, United Nations Conference on the Human Environment, A/CONF.48/14/Rev.1, UNDOC/GEN/NL7/300/05 (June 5-16, 1972).
[6] Indian Council for Enviro-Legal Action v. Union of India 1996 (5) SCC 293.
[7] National Institute of Open Schooling, Environmental Science Senior Secondary course, Environmental Management, Environmental legislation Module 7.
[8] The Constitution of India, 2022 available at: https://legislative.gov.in/constitution-of-india/ (last visited on 9 September 2023).
[9] Supra note 7 at 143.
[10] Supra note 8 at art. 48A.
[11] Sunita Paudyal, New environmental laws in India: The next chapter of change, enhesa, 19 January 2022, available at: https://www.enhesa.com/resources/article/new-environmental-laws-in-india-the-next-chapter-of-change/ (last visited on 9 September 2023)
[12] Supra note 7 at 143.
[13] Ibid. at 143.
[14] Datta, Priya et al. “Biomedical waste management in India: Critical appraisal.” Journal of laboratory physicians vol. 10,1 (2018): 6-14. doi:10.4103/JLP.JLP_89_17.
[15] Razdan P, Cheema AS, Bio-medical waste management system, proceedings of ASCNT, CDAC available at: http://www.scribd.com/doc/41660937/ ALU-Abstract (last visited on 9 September 2023).
[16] Rutala, W., Mayhall, C. (1992). Medical Waste. Infection Control Hospital Epidemiology, 13(1), 38-48. doi:10.1086/646421.
[17] Plastic Waste Management (Amendment) Rules, 2018 available at: https://cpcb.nic.in/displaypdf.php?id=cGxhc3RpY3dhc3RlL1BXTV9HYXpldHRlLnBkZg== (last visited on 9 September 2023).
[18] The Air (Prevention and Control of Pollution) Act 1981, available at: https://www.indiacode.nic.in/bitstream/123456789/9462/1/air_act-1981.pdf (last visited on 9 September 2023).
[19] Ibid. at sec.2.
[20] Ibid. at sec. 3.
[21] The National Green Tribunal Act, 2010 available at: https://greentribunal.gov.in/sites/default/files/act_rules/National_Green_Tribunal_Act,_2010.pdf (last visited on 9 September 2023).
[22]Patra, Swapan kumar Krishna, Venni. (2014). National Green Tribunal and Environmental Justice in India. Indian Journal of Geo-Marine Sciences available at: https://www.researchgate.net/publication/266676371_National_Green_Tribunal_and_Environmental_Justice_in_India (last visited on 9 September 2023).