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Environmental Jurisprudence– what is to be done to save future problems
April 13, 2017
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Environmental Jurisprudence

 

If one wants to indulge in any discourse on environment, one should not forget to mention that almost all the countries of the world are unanimous in their view that centuries of invention driven development has brought the existence on the earth to a crossroads and the people have before them only two options left—to live reasonably or face the gradual extinction.  In fact, scientific achievements, one after another, made people very complacent and they did not think even for a while that more development would mean more adoption of faster but unscrupulous means that will some day lead to a very dangerous situation.  Let alone laymen, even the knowledgeable people with scientific approach to the advancement of society forgot that hasty development efforts made for a long time would result in catastrophic climate change or global warming.  Now, almost everyone agrees that global warming should be retarded and finally stopped in a phasewise manner.  People have been compelled to think so because scientists all over the world no think that steps need to be taken to limit the temperature rises across the world to 2oC.  The exigency of the aim will require global emissions to peak and begin falling within the next five years.  A bigger rise of 3oC to 4oC—the seemingly insignificant increase as a delayed action would ravage the earth, i.e. the continents would run short of water.   It would mean farmland changing into desert; almost fifty percent of all species becoming extinct; displacing millions of people, a number of nations submerging under water.

 

The world is quite aware that development means consumption of energy-producing materials which is not possible without carbon emission in most of the cases.  It was the worry of the scientific community all over the world that forced all the major nations of the world to sit together and adopt on December 11, 1977 a Protocol in Kyoto Protocol.  In November 2009, 187 nations signed and ratified it.  Under the Protocol, 37 industrialised countries (called Annexe I countries) commit themselves to a reduction of four greenhouse gases (GHG)—carbon dioxide, methane, nitrous oxide and sulphurhexafluoride—and two groups of gases (hydrofluorocarbons and perfluorocarbons) produced by them, and all member countries give general commitments.  The Annexe I countries agreed to reduce their collective greenhouse gas emissions by 5.2 percent from the 1990 level.  Emission limits do not include emissions by international aviation and shipping.  Chlorofluorocarbons (CFCs) are dealt with under the1987 Montreal Protocol on Substances that Deplete the Ozone Layer.  The benchmark 1990 emission levels accepted by Conference of the Parties to the UN Framework Convention on Climate Change (UNFCCC) were the values of global warming potential calculated for the Nobel Prize-winning Intergovernmental Panel for Climate Change (IPCC)’s Second Assessment Report.

As far as India is concerned, it has taken the Kyoto Protocol very seriously.  In fact, India started serious legislative attempts several years (almost two decades) prior to the Kyoto Protocol’s coming into effect in 2005.  The 42nd Amendment in 1976 to the Constitution introduced new provisions.  A provision added to the Directive Principle of state policy reads that the state shall endeavor to protect and improve environment and to safeguard the forests and the wildlife of the country.  Among the Fundamental Duties, prominent is the duty to protect environment.  Every citizen shall have a fundamental duty to protect and improve the natural environment including forests, lakes, rivers and wildlife and have a compassion for living creatures.  The Water (Prevention and Control of Pollution) Act, referred to as Water Act 1974, was passed, as its name indicates, for the purpose of prevention and control of pollution.  Water being a State subject, Parliament passed the law on the request of some of the States.  The Act envisages not only to control pollution of water but to also restore and maintain the wholesomeness of water.  The philosophy behind it is that water is ‘jeevan’, the life-giving force for every living organism and man has a bounden duty to preserve it.  The Act defines pollution as “contamination of water, alteration of the physical, chemical or biological properties of water or discharge of any sewage or trade effluent or any other liquid, gaseous or solid substance into water.  Prohibition of disposal of pollution matter to a stream or well or sewer or on land is key to the regulatory system under the Act.

 

Besides the Water Act, the Environmental Protection Act passed in 1986, referred to as EPA, also contains provisions for control of pollution of water.  EPA defines environment as including water, air and land and the inter-relationship which exists among and between water, air and land and human beings and other living creatures, plants, micro-organisms and properties.  Subject to the provisions of the Act, the Central Government shall have the power to take measures necessary for protecting the environment.  It can constitute authorities, appoint officers, issue directions for the purpose of the Act air(Prevention and Control of Pollution) Act, hereinafter referred to as Air Act was passed by the Parliament under Article 253 of the Constitution.  This Act is an extension of Water Act 1974 and entrusts powers and functions to the boards which are constituted under the Water Act for their exercise and discharge.  Under the Act, air pollution means any solid, liquid or gaseous substance, present in atmosphere in such concentration as may be injurious to human beings or living creatures, plant, property or environment.  State government is authorized to notify ‘air pollution control areas; to prohibit use of such fuels in the said areas which in the opinion of the State government are likely to cause pollution.  In such areas no person shall establish or operate industrial unit without permission and no person operating industrial unit shall discharge or cause emission of any air pollutant in excess of the prescribed standard.  Failure to comply with provisions of the Act will attract penal consequences.  The Air Act operates in tandem with the Environmental Protection Act.  The boards constituted under the Act will be empowered to control soil pollution.

 

Every legislation carries within it the aspirations of social well-being.  Out of the widespread concerns for large-scale deforestation, resulting in ecological imbalance and environmental degradation, the Forest (Conservation) Act 1980 was passed.  Restriction on de-reservation of forests or use of forests, or forest lands for non-forest purpose is the crux of the Act.  The expression ‘Non-forest Purpose’ is significant.  It means breaking up or clearing of any forest land for the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture corps or medicinal plants.  The law enables the Central Government to appoint a committee, to advise it on the grant of prior approval and matters connected with the conservation of forests.  The 9th Five-year Plan proposed legislations in the field of conservation of energy.  Considering the vast potential of energy savings and benefits of energy efficiency, the Parliament enacted the Energy Conservation Act 2001.  The Act provides for the legal framework, institutional arrangement and a regulatory mechanism at the Central and State levels to embark upon energy efficiency drive in the country.  Under the Act, “energy” means any form of energy derived from fossil fuels, nuclear substances or materials, hydro-electricity and includes electrical energy of electricity generated from renewable sources of energy or bio-mass connected to the grid.  The Act led to the establishment of the Bureau of Energy Efficiency (BEE).  The primary objective of the BEE is to reduce the energy intensity through institutionalizing and strengthening of delivery mechanisms for energy efficiency services.  The thrust areas identified for implementation are: Indian industries energy programme for energy conservation, designated consumer, standards and labeling programmes for equipments, certification and accreditation of energy managers, energy auditors, etc.  The Act notifies 15 energy-intensive industries as designated consumers, to comply with benchmark energy consumption, to carry out energy audit and to appoint energy managers.

 

The key environmental challenges that the country faces relate to the nexus of environmental degradation with poverty in its many dimensions.  The proximate drivers of environmental degradation are population growth, and subsequent scarcity of resources.  This is connected with the state of environmental resources, such as land, water, air and their flora and fauna.  It is said that population grows geometrically and production increases arithmetically.  The rapid and uncontrolled growth of population is the greatest danger to the environment.  Vast population causes overburden on the natural resources.  Population explosion gave birth to poverty and that in turn generated pollution and environmental degradation.    When such degradation impacts soil fertility, quantity and quality of water, air quality, forest, wildlife and fisheries, it enhances and perpetuates poverty.  Thus it becomes a vicious circle of degradation of both human life and nature.  Poor people have limited access to resources. Poor communities suffer most, when the environment deteriorates, as they are not capable of taking necessary measures to prevent degradation.  In addition, mighty legislation with effective implementation strategy has become inevitable to control plastic pollution.  The future legislation need to take into consideration the prohibition of use of disposable plastics, irresponsible throwing away of plastic, etc.  While prohibiting plastic, the possible alternatives and their ecology impact need to be scientifically studied.  It is suggested that the future legislation should bring forth an institutional mechanism which will simultaneously take serious actions (including penalties) against plastic pollution and encourage and establish scientific research in this area.

 

Noise is also a major pollutant of the environment.  In 1976, loss of hearing due to noise was included in the Factories Act.  But in the Air Act, noise was not included as air pollutant when drafted originally.  The term emission includes only solid, liquid or gaseous substance.  It does not include noise.  Therefore, the noise blown out from an industrial unit will not be a noise.  Vehicles are also potential makers of noise pollution.  The statutory rules framed under the Motor Vehicles Act 1989 mandate that vehicles should have electric horns of approved standard.  In 1993, by amendment, it was substituted by noise standard indicated by the rules.  These rules have a very limited scope to deal with a particular type of noise.  The EPA authorized the Central Government to frame rules to cover noise pollution of every kind.  Similarly, the Water Act does not deal with groundwater pollution which needs a serious consideration.  Groundwater is available from underground aquifers.  Aquifers near surface are subject to annual discharge from precipitation, which can be affected by human interference.  Contamination and depletion of groundwater is caused by improper use of agricultural chemicals and other industrial and urban uses.  Since it is a major source of drinking water, immediate efforts are required to protect and preserve groundwater by law.  Definition of the term ‘stream’ in the Act can be interpreted to include subterranean water.  Thus wider interpretation of the provision may bring groundwater pollution under the Act.  But the overburdened Pollution Control Boards are normally reluctant to go for such wider interpretation of law and to assume powers.  It is advisable to enact comprehensive legislation exclusively deal with groundwater pollution.  Water Act does not provide for public participation and impact study, before a decision is taken to grant the consent.  This defect needs to be cured by apt amendments.  Number of people dying in urban India due to deteriorating air quality is increasing day by day.  The Air Act does not empower the Pollution Control Boards to prosecute polluters outside the limits of air pollution control areas’.  This provision also requires a revisit.

 

Promotion of public transport in urban areas can reduce energy consumption, especially that of fossil fuels.  Right to travel is also a part of right to life as it includes all comfortable living conditions.  Therefore, legal attempts are necessary to accelerate a drive for effective and mass transport, such as underground and elevated trains or dedicated bus lanes to serve the future population.  As a result of the initiative taken by BEE under the Energy Conservation Act, CFL bulbs are widely advertised and largely used.  It is reported that they carry a significant mercury hazard, if allowed to enter our landfills through mishandled disposal cycle.  There are suggestions about BEE taking initiatives to compel manufacturers to take back the CFL waste for recycling.  Conservation can be promoted by making them available at economical rates.  Renewable energy sources like wind, solar, biomass, and biogas are available locally and are environment-friendly.  Promotion of various non-conventional energy sources will play a central role in protection of natural resources and reduction of greenhouse gas emission.  Article 21 of the Constitution deals with a fundamental right which reads as follows, “no person shall be deprived of his life or personal liberty except according to the procedure established by law.”  Though this Article does not explicitly mention environment, the Supreme Court and High Courts have given a wider interpretation to the word ‘life’ Article.  According to them, right to life includes the right to living in an environment congenial to human existence.

 

Taking environment seriously, the 12th Five-Year Plan document clearly says that India faces the twin challenges of adaptation and mitigation.  As a country with many critical sectors and regions that are highly climate-sensitive, there are significant costs in addressing the impact of climate variability and change.  At the same time, as a signatory to the UNFCCC, India is expected to undertake mitigation actions consistent with the multilateral framework.  India has already taken decisive steps in this regard.  Over the 11th Plan Period, it initiated the National Action Plan on Climate Change, which is monitored by a body no less than the Prime Minister’s Council for Climate Change. It has set up an Indian Network for Climate Change Assessment for making periodic assessment of climate variability and change.  It has also set up an Expert Group to evolve Low Carbon Strategies for Inclusive Growth, which has made important recommendations for power, industry, transport, buildings and forestry sectors.

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