INDIAN ENVIRONMENTAL LAW – AN OVERVIEW

1. INDIAN ENVIRONMENTAL LAW –AN OVERVIEW Dr.M.K.RAMESH, PROFESSOR, NLSIU, BANGALORE mkramesh13@gmail.com

2. I LEGAL FRAME FOR DEVELOPMENT & ENVIRONMENT • THE SETTING : • ONE, THE ANTI THESIS OF THE OTHER- • ENVIRONMENT : RESOURCE , LIFE SUPPORT- CONSERVATION • DEVELOPMENT: RESOURCE USE, EXHAUTION- DEPLETION & LOSS • NOTION OF SUSTAINABLE DEVELOPMENT “DEVELOPMENT THAT MEETS THE NEEDS OF THE PRESENT WITHOUT COMPROMISING THE ABILITY OF THE FUTURE GENERATIONS TO MEET THEIR OWN NEEDS” • CONSTITUTIONAL COMMANDS • RESPONSES OF THE LEGAL ORDER

3. II INDIAN CONSTITUTIONAL SCHEME • PRESENTS A MODEL THAT ACCOMMODATES ALL THE POSITIVE ASPECTS OF SD AND MORE- DEMOCRATIC IN LETTER AND SPIRIT – COMBINATION OF AUTHORITY AND RESPONSIBILITY IN THE WHOLE SYSTEM OF GOVERNANCE : • EQUITY – DPSP: Art.39 (b) and (c) 2. STATE RESPONSIBILITY AND INDIVIDUAL DUTY- ENVIRONMENTAL STEWARDSHIP: Arts. 48A & 51A(g) 3.PARTICIPATORY AND DECENTRALIZED RESOURCE MMT. REGIME: Communitarian Mmt.:Schedules V & VI; Third Tier of Governance: 73rd and 74th Amendments

4. -Most of the Constitutional Developments and judicial interpretations, that have put Environmental Conservation and Stewardship at the hub of resource governance, are apost-1970 phenomena - more of an after thought , not having figured in at the time of the making of the Constitution

5. III POLICY PERCEPTIONS ENVTL. POLICY THRUST TILL EARLY 1990s’: • ACCOMMODATIVE OF CONSTITUTIONAL ESSENCE AND INTERNATIONAL PRINCIPLES- “CONSERVATION AND DEVELOPMENT AS TWO WHEELS OF THE CHARIOT” • NATIONAL ENVTL. ACTION PLAN FOR CONTROL OF POLLUTION, 1992 • NATIONAL CONSERVATION STRATEGY, 1992 # POLICY THRUST FROM LATE 1990s’: ATTEMPTS TO INTEGRATE CONSERVATION,EFFICIENT MMT. OF RESOURCES, ECONOMIC EFFICIENCY AND SOCIAL JUSTICE AS TANTAMOUNTING TO SD # ECONOMIC POLICY & PLANS- STEERING NATURAL RESOURCE MMT. POLICIES & LAWS • NEP,2006 – COMBINATION OF SUBLIME & THE RIDICULOUS!

6. ELEVENTH NATL. PLAN – SETS HIGH GROWTH TARGETS AND AT THE SAME TIME INSISTS ON ENDEAVORING “ TO PROVIDE ACESS TO BASIC FACILITIES SUCH AS HEALTH, EDN., CLEAN DRINKING WATER ETC., TO LARGE SECTIONS OF POPULATION WHICH DO NOT HAVE SUCH ACCESS AT PRESENT”- IDENTIFIES PROTECTION OF ENVT. AS ONE OF THE SEVEN MAJOR CHALLENGES – OFFERS MARKET MECHANISMS FOR BETTER ENVTL. MMT.- A LITTLE VAGUE AND, AT TIMES, INCONSISTENT AS TO ENVTL. MMT. (-” Rapid economic growth can intensify envtl. Degradation “ , “ The solution does not lie in slowing growth since slow growth also leads to its own form of envtl. Degradation : , “ With rapid growth we can also have the resources to prevent and deal with envtl. Problems, but we must also ensure that the rapid growth is also envtlly. Benign”) - THE PLAN AND THE POLICY GIVE A CALL FOR DILUTION OF THE EXISTING PROCEDURES OF ENVTL. CLEARANCES IN ORDER TO FACILITATE LARGE INVESTMENTS IN ORDER TO ACCELERATE GROWTH - HAVE CAST A DENSE SHADOW ON BOTH ENVTL. POLICIES AND LAW

7. IV ENVIRONMENTAL LAWS AND ADMINISTRATION • GENERAL LAW & ADMINISTRATION : COMMON LAW & CRIMINAL LAW – LAW OF NUISANCE NEGLIGENCE & LIABILITY. • NATURAL RESOURCES MANAGEMENT LAWS : LAND REVENUE, LAND ACQUISITION, LAND REFORMS ; IRRIGATION,FISHERIES ; MINES & MINERALS ; FOREST, WILDLIFE , BIODIVERSITY ,PLANT VARIETIES, GEOGRAPHICAL INDICATIONS • OVERARCHING LAW : ENVIRONMENT PROTECTION ACT, RULES, NOTIFICATIONS AND AUTHORITIES • POLLUTION CONTROL LAWS : WATER AND AIR POLLUTION • ENVIRONMENTAL JUSTICE : TRIBUNALS, APPELLATE AUTHORITY, GREEN TRIBUNAL ACT,2010 • DECENTRALIZED GOVERNANCE: PANCHAYATS, CORPORATIONS, MUNICIPALITIES, TOWN & COUNTRY PLANNING • HEALTH, SANITATION,HYGIENE, SAFETY : FACTORIES, INDUSTRIAL ESTABLISHMENTS, HEALTH CARE SERVICES ,FOOD ADULTRATION, PHARMACEUTICAL DRUGS, CONSUMER INTEREST ETC.

8. V JUDICIAL GLOSS • RIGHT TO DEVELOPMENT AND ENVIRONMENT PART OF Art.21 - • P.U.B.L.I.C. v.State of WB (1993): ‘ Demands of development can not dominate environmental interests’ • State of HP v.Ganesh Wood Products (1995) :- striking down of state approvals for production of forest-based products that posed envtl. Threats • Vellore Citizens Welfare Forum v. UOI (1996): SD as a viable concept to eradicate poverty and improve quality of life while living with in the carrying capacity of supporting ecosystems • Indian Council for Enviro-Legal Action v.UOI (1996): Application of SD as the basis for calculation of damages for envtl. Wrongs • N.D.Dayal v.UOI (2003):SD as sine qua non for the symbiotic balance between the rts. Of envt. And development • PUBLIC TRUST DOCTRINE-M.C.Mehta v. UOI (1996) • PRINCIPLE OF PRECAUTION – “ Scientific uncertainty, no excuse” _- (Vellore)

9. VI EVALUATION • HIGHLY CENTRALISED AND BUREAUCRATIZED- ( -STATE AS THE LAW MAKER, ENFORCER, JUSTICE DISPENSER) • CENTRE AND STATE GOVTS. LAY DOWN POLICIES AND MAKE LAWS (- LSG- “ ADMINISTRATIVE FUNCTIONS” )-LEGISLATIONS NOT IN DYNAMIC FERMENT (- Even those, that seem like breaking away from the past stereo types, hardly get implemented- Biodiversity and Forest Rights etc.) • PRIMARILY A COMMAND AND CONTROL REGIME(- SALIENT FEATURE OF ALL POLLUTION CONTROL AND NATURAL RESOURCE MMT. LAWS)- EPA, NO LONGER AN OVERARCHING, ALL ENCOMPASSING , UMBRELLA LAW (-ENVIRONMENTAL IMPERATIVES NEITHER INFORM NOR INFLUENCE) • LEGAL PRESCRIPTIONS SEEN MORE AS HURDLES FOR DEVELOPMENT- AMENDED, OFTEN, TO DILUTE THEM (- EIA, CRZ)- ENVTL. CONSERVATION, A CASUALTY

10. SECTORAL APPROACH- VERY LITTLE HARMONY IN FUNCTIONING AMONG MINISTRIES AND LINE AGENCIES IN EVOLVING MANAGEMENT STRATEGIES AND FUNCTIONING. • THE LEGAL ORDER PRESENTS A DISCONCERTING PICTURE , OF A SYSTEM THAT EXCLUDES (-BOTH IN TERMS OF RESOURCES AND THE ACTORS , WHO DO MATTER A LOT FOR CONSERVATION AND MANAGEMENT) AND FRAGMENTS DIFFERENT ASPECTS OF ENVIRONMENT THAN THE ONE THAT WOULD HELP, ENABLE AND EMPOWER AS TO MAKE ENVIRONMENTAL CONSERVATION , A RIGHT, DUTY AND RESPONSIBILITY OF EVERYONE • INDIAN MODEL OF GOVERNANCE IS, PERHAPS , JUST THE MICROCOSM OF WHAT THE CLOBAL LEGAL ORDER IS!!!

11. References: Shyam Divan & Armin Rosencranz, Environmental law & Policy in India, (2nd.Ed.) OUP,New Delhi,2001