All aspect of human knowledge especially natural sciences were directed to develop with technology to add  creature comfort  and  add value to human live. In the present scenario the whole approach of understanding natural phenomena has became anthropocentric. In this context modern biological approach of biotechnology and its evolutionary application of genetic engineering proved to be ambrosia   for qualitative improvement of food production. 

By the studies of Herbert Boyer in 1969 on couple of restriction enzymes of E. coli bacterium. He discovered the DNA strand cutting in particular fashion, leading to the pasting of DNA pieces together which in turn led to a rich and rewarding experiment done by Stanley Cohen, he discovered the method of removing plasmids from the cell and then reinserting them into the other cells. And by combining the processes enabled by Boyer and Cohen to recombine the desired configuration to DNA and insert it into bacterial cell which then led to the manufacturing of plants of specific protein. Which is major breakthrough in the history of biotechnology known as recombinant DNA technology or Genetic engineering.

 To meet the food demands of growing population, after so many critical researches, genetically modified crops were introduced. Which less or more satisfied the eyes of farmers and cultivators but burnt a hole in the pocket as well as led to everlasting devastation to the environment.

Genetically modified crop and it’s impact

 India being the agrarian country, its agrarian communities comprises over 58% of its total population and are engaged primarily in farming. But the major abiotic stress such as salinity, high temperature, drought  and biotic components as insects and pests are  persistent problems of sustainable agricultural development which often lead to starvation and other social issues , in year 1972 green revolution on the land of Punjab, Haryana and part of Uttar Pradesh became a landmark victory in order to combat such stresses. After a passage of time and experiment by crossing many hurdles India got its first GM crop Bt–cotton commercialized in 2002. It was introduced by Maharashtra Hybrid seed company in collaboration with MONSANTO – world’s biggest seed company, initially on 6 states were allowed to grow GM crops, now the numbers of states are 10. As per professor Snehlata Singh Parekh a group leader and national officer at ‘International Center for Genetic Engineering and Biotechnology, Delhi  to carry out evolution in GM  crops there group had designed technology to increase the ‘Lycopene’-an potent antioxidant content in GM tomato, to ensure the longevity boost crop production. These mechanism of genetics are emerging as kind of new green revolution in the world, but in this very aspect India experienced the other side of the coin. 

India’s first GM crop Bt- cotton crop besides many promises suffered drastically by the attack of pests. Enormous complaints of crop losses and increased numbers of suicides of farmers in cotton growing areas added a new concern to the very topic,  a new chapter was added by the  Delhi high court verdict on 11th March 2018 that MONSANTO a company who provide GM crops to India cannot claim patent on its GM cotton seeds as per law of land. 

When in 1996 GM crops were approved for commercial purposes it claimed to increase crop yields and bring profits to farmers but the plight of farmers remained unchanged and companies providing GM crops grew richer and prosperous. The main aim of GM crop was  to combat the pests that reduces the crop production. Initially it was intended to resist American and Pink bollworm and hence will limit the use of pesticides, claiming to be drought and flood resistant add bonus to the process.  But all the promises and claims vanished into thin air as GM crops got resistance to pests and led to depletion of crop yields. It was confirmed by Central Institute Of Cotton Research in 2017 that GM seeds susceptible to pink bollworm. A detailed study by CRCR- Ignorance of farmers towards technology cited as the main cause of development of resistance of pink bollworm. 

Under regulatory guidelines: 

Farmers who cultivate GM crops as Bt- cotton must plant varieties of cotton plant at least 20 per cent without having  Bt gene to curb the pests from developing resistance against Bt -toxins. And seed companies are required to provide mix Bt- cotton seeds with refuge seeds but the present scenario is that about 90 per cent of refuge seeds shows poor cultivation and do not act as same due to having different window periods. 

In India Genetically modified crops are regulated by Ministry of Environment and Forest. But the safety aspect is looked by statutory bodies of three committees. Namely:

1. Genetic Engineering Appraisal Committee (GMAC) 

It is constituted under the rule of the manufacture use, export/import and storage of hazardous microorganisms or cells,1989, notified under the Environment (protection)Act,1986.  It was initially formed as Genetic Engineering Approval committee and was renamed as its current name in 2010. It’s main work is appraisal of activities that consist of large scale use of hazardous microbes and recombinants in research and industrial production from the environmental angle. It also assesses the proposals regarding the release of genetically engineered products and organisms on mass scale into the environment, and it includes experimental fields. The  Committee also looks into the  matter regarding the use of living modified organism that comes in the risk category III and above, in the import/manufacture of recombinant pharma products, or where the end-product of the recombinant pharma product is a modified living organisms. The committee also enjoys the power to take punitive actions against people or body under Environment protection Act. The GEAC provides mandatory approval before genetically modified organisms and products derived from them can be commercially accessible. GMAC is headed by the Special Secretary or Additional Secretary of the Ministry of Environment, Forests and Climate Change, GOI. And a next to him is headed by the representative of the Department of Biotechnology. Every month meetings are held by many members to review the applications in the Committee’s domain They are experts from other ministries as well as institutions such as the ICAR, ICMR, CCMB, etc.

2. Recombinant DNA Advisory Committee:  It is an advisory committee  

3. Review Committee on Genetic Manipulation (RCGM) 

4. Institutional Bio Safety Committee (IBSC)   

These committees provide permission for release and cultivation after having assured of environment and food safety assignment, but since 2011 it became mandatory to take state‘s permission to conduct large scale experiments in open fields. The trials of many GM crops were accepted by UPA government. Around 10 GM crops such as wheat, paddy, Jawar ,bajra ,and maize  were approved but in 2010 the then environment minister  Jai Ram Ramesh banned the trials. And for the very first time the standing committee on agriculture did a deep investigation in 2013- 2014. The committee held 27 meetings and discussed with the experts of the concerned topic and drew a conclusion that besides possessing risk to human and animal health it also poses threats to another crops.  

CONCLUSION: – 

Nature has evolved a specific kind of evolutionary balance. But with the forceful injection of bacterial DNA or any foreign component is completely unnatural and is injustice to environment. This aggressive bombardment of  gene to the plants lead the plants to react and can produce toxins which may be harmful or allergic. According to WHO, DNA  in GMO is changed in such a way that now there is no natural occurring of reproduction process. Environmentalist are very much concerned about the  safety of the country’s ecological diversity  due to trans-boundary  movement in Bangladesh  so they wrote to the ministry urging to explore all the options of “Cartagena Protocol “ 

If we really want to see bottle – neck production of the crops without harming environment, then we must provide farmers with plenty of water. As paucity of water is the major problem to farmers interest world wide

There is no use of GM crops  as it has no better taste not cheaper as Bt cotton seeds are 200 times more expensive than normal one, instead it is risky. It only benefits to the companies neither to the farmers nor the consumers. Adding more to the disability part the impact of genetically modified crops on  Environment is unrepairable, and the whole ecological structure of the world is  under threat. 

The post Genetic Modification of Crops: An Emerging Issue in Environment appeared first on Legal Desire Media and Insights.

“Humans have turned ignorant to save the environment which opened doors for environment degradation and converted us into a follower of punitive laws or actions to save the environment from a vigilant, active and responsible citizen”.

Health is the first priority that is linked to our environment. The Environment is not a concept which is confined to some territory or to a nation, it is a global concern as every nation irrespective developed or developing, requires healthy surroundings to live in. Today we witness many environmental issues such as ecological imbalance, degrading environment, depredated earth etc. Caused or influenced by human actions only. Globalization has put the world in huge danger and if continues, the end is not far. Industrialization directly or indirectly is eating up our environment and inducing us to breathe in poisonous air, drink contaminated water and live on degraded earth. Thus, the protection of the environment is necessary. This influenced the world to be integrated and to protect our environment by coordinated efforts at a global level. The principles of International law are intended to regulate the conduct of every nation towards safeguarding the environment. International environmental law is not just norms but an effective law accepted by most of the nations.

India has also participated and contributed its best in major international events on environment and biodiversity conservation since 1972 and developed many enactments, ratified and complied many international conventions in its domestic laws. Hence this paper attempts to bring out some important international conventions which have been formulated as global initiatives to protect the environment.

SOME IMPORTANT INTERNATIONAL CONVENTIONS RELATED TO ENVIRONMENT

The United Nations Framework Convention on Climate Change (UNFCCC)

It is an international environmental treaty informally known as the Earth Summit, developed to combat the problem of climate change due to increase in global temperature (Global Warming), signed at Rio de Janeiro in June 1992 by some 155 states, modelled on the 1985 Vienna Convention. It was entered into force on 21 March 1994, after India in Nov 1993 and many other countries later or earlier had ratified it. Kyoto Protocol and Paris Agreement are parts of the UNFCCC. This was signed with the objective of stabilization of greenhouse gas concentrations or emissions in the atmosphere through international cooperation at a level that will prevent dangerous anthropogenic interference with the climate system as stated under Article 2.

Further, Article 3(1) of the Convention states that Parties should act to protect the climate system on the basis of “common but differentiated responsibilities”, and that developed country Parties should “take the lead” in addressing climate change. Consequently, India being a developing country was not bound to commitments for mitigation of greenhouse gas emissions, as the reduction/limitation requirements apply only to developed countries. The core reporting obligation for developing countries relates to the construction of a GHG inventory. But after the Paris Agreement of 2015, India becomes obligatory to fulfil the commitment to participate in multilateral negotiations under the UNFCCC.

Two primary duties are imposed on all Parties by Article 4: (a) to develop, periodically update, publish and make available a national inventory of anthropogenic emissions by sources and removals by sinks of all greenhouse gases using comparable (and yet to be agreed upon) methodologies; and

 (b) to formulate, implement, publish and regularly update national and regional programmes of measures to mitigate climate change by addressing anthropogenic emissions by sources and removals by sinks of all greenhouse gases and measures to facilitate adequate adaptation to climate change.

Performing these duties, India submitted its initial national communication to the UNFCCC in June 2004 at the Subsidiary body Meeting of the UNFCCC in Bonn. India is now required to prepare and communicate its second national communication containing updated information for the base year 2000. India is taking an active part in the negotiations of the Kyoto Protocol. The ICFRE, TERI, IISC and a number of other institutions are an active part in the meetings of the country consultative group and preparing documents for various international meetings.

Vienna Convention for the protection of ozone layer (1985)

It was one of the successful and widely ratified treaties in UN history with 197 nations members of this convention as well as EU adopted on 22nd March 1985 and came into force on Sep 22, 1988. India became Party to the Vienna Convention for the Protection of Ozone Layer on 19 June 1991. The objective of this convention was preventing damage caused to the stratospheric ozone layer by working together through an international legal framework, such as by developing technologies to prevent its depletion, by cooperating with international organisations for effective implementation, by formulating standards for such implementation and by sharing research and information by every member state to analyse the effects of human activities on the ozone layer and thus recognising and adopting appropriate legislative and administrative steps and measures in order to control, limit or prevent any such human activities which are causing or likely to cause any adverse effect on the ozone layer. But this does not legally bind the members for reduction goals for the use of CFCs and other main chemical agents causing ozone depletion.

It was terminus a quo of global integration in order to protect the ozone layer from its depletion, later it was supplemented by the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, amended by the London Meeting of 1990 and latest by the Copenhagen Meeting of November 1992.  

Now this protocol is called as Montreal Protocol on Substances that Deplete the Ozone Layer (to the Vienna Convention for the Protection of the Ozone Layer), 1987. It came into force in 1989 and it aims to cut the production and consumption of ozone-depleting substances in order to reduce their abundance in the atmosphere to protect the earth’s fragile ozone Layer. It has created a history in the chapters of the UN as it is universally ratified by 197 nations. It proved to be a very successful international arrangement, as it has phased-out more than 95% of the ODS so far as per its main mandate in less than 30 years of its existence. Further, the distinguishing feature of it is that this protocol is legally binding on the nations and thus removes the lacunae of Vienna Convention of not being legally binding.

India became a Party of the Montreal Protocol on substances that deplete the ozone layer on 17 September 1992. Under this India has decided to eliminate the use of HFC-23, a greenhouse gas (GHG) by 2030, plus Indian companies will not be compensated for the costs involved in ensuring that these gases are not released. Interestingly, The Ministry of Environment and Forest has established an ozone cell and a steering committee on the protocol to facilitate the implementation of the India country program, for phasing out ozone-depleting substances production by 2010 to meet the commitments India has also taken policy decisions. Also, The Ozone Depleting Substances (Regulation and Control) Rules 2000 were drafted under Environment (Protection) Act, 1986.

Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 1973

It is a multilateral treaty to protect endangered flora and fauna, i.e., plants and animals, also known as the Washington Convention, drafted as a result of a resolution adopted in 1973 at a meeting of members of the International Union for Conservation of Nature (IUCN), signed on 3 March, 1973, came into force On 1 July 1975. It aims to control or prevent international commercial trade in endangered species of flora and fauna or products derived from them by cooperation in restricting international trade between export and import trade and grants protection to more than 34,000 species of animals and plants Since this convention does not directly protect the endangered species, rather it seeks to reduce the economic incentive to poach endangered species and destroy their habitat by closing off the international market, thus there arises a requirement of authorising the import and export through a licensing system.

India became a party to the convention in 1976 and CITES is legally binding on the Parties and it provides a framework to protect the endangered species which should be observed, respected and adopted by all the member nations in their own domestic legislation to implement CITES at the national level, but it does not take the place of national laws. Thus, Cites is regulated through the provisions of the Wildlife (protection) Act 1972 in India.  Each protected species or population is included in one of three lists, called Appendices.

Basel Convention on Trans-boundary Movement of Hazardous Wastes, 1989

It is an international treaty, popularly known as Basel Convention, which was opened for signature on 22 March 1989 and came into force on 5 May 1992. It was formulated with the aim to reduce and restrict the movements of hazardous waste between nations, especially to prevent the transfer of hazardous waste from developed to less developed countries (LDCs), also, to minimize the creation of such wastes & toxicity of wastes generated and to prohibit their shipment to countries lacking the capacity to dispose of hazardous wastes in an environmentally sound manner. However, it does not address the movement of radioactive waste. Some of the wastes which are regulated by this convention are Biomedical and healthcare wastes, Used oils, Used lead-acid batteries, Persistent Organic Pollutant (POP) wastes, Polychlorinated Biphenyls (PCBs) and many more thousands of chemical wastes generated by industries and other consumers. As of Feb 2018, 185 states and the European Union is parties to the Convention. Haiti and the United States have signed the Convention but not ratified it, even though this convention is not legally binding upon member countries.

India ratified the convention in 1992 and give effect to this convention by including some of its provisions, related to the notification of import and export of hazardous wastes, illegal traffic and liability, in the Indian Hazardous Wastes Management Rules Act 1989. Recently, in its 14th meeting, held  in 2019 on the theme “Clean Planet, Healthy People: Sound Management of Chemicals and Waste”, the members decided to amend the convention to include unsorted, mixed and contaminated plastic waste under PIC (Prior Informed Consent) procedure and improve the regulation of its trans-boundary movement.

 Convention on Biological Diversity, 1992

CBD is a multilateral treaty, informally known as the Biodiversity Convention. It is one of the important agreements which dealt and addressed all the aspects of biodiversity comprehensively at a global level, biodiversity conservation and sustainable usage, habitat preservation, and protection of indigenous people’s rights, and intellectual property. Thus, it recognized that the conservation of biological diversity is “a common concern of humankind”, for the very first time. It was adopted during the Earth Summit held in Rio de Janeiro on 5 June 1992, came into force on 29 December 1993, has been ratified by 180 countries, and was negotiated under the auspices of The United Nations Environment Programme (UNEP) In Nairobi in 1992. All UN member states have ratified the treaty except the United States of America (USA). The two protocols to CBD are (a) Cartagena Protocol on Biosafety, 2000 (b) Nagoya Protocol (Biodiversity Accord), 2010. This is a legally binding convention upon all member states.

It has 3 main goals: (as mentioned under Article 1 of the Biodiversity Convention)

1-The conservation of biological diversity

2- The sustainable use of the components of biological diversity.

3- The fair and equitable sharing of the benefits arising out of the utilization of genetic resources.

In other words, it’s objective is to develop national strategies for the conservation and sustainable use of biological diversity and To observe & perform these goals, member-states must develop plans for protecting habitat and species; provide fair and equitable sharing of  funds and technology to help developing countries provide protection; ensure commercial access to biological resources for development and share revenues fairly among source countries and developers; and establish safety relation and accept liability for risks associated with biotechnological development.

India is a Party to the CBD. India has actively participated in all the eight meetings of the Conference of the Parties (COP), held so far and has prepared 3rd national report to the CBD after consultation with ministries, experts and other concerned organisations. Thus India made significant positive contributions. Thus, it is a major step is taken globally to conserve our biological diversity.

UN Convention on Desertification, 1994

This convention was adopted in Paris, France on 17 June 1994 and came into force in December 1996. It is the only convention that addresses the issue of desertification having an international legally binding effect. It mainly deals with the arid, semi-arid and dry sub-humid areas, known as the drylands, to improve the living of the person in these areas and to restore and retain, if any left, the soil productivity and fertility, to mitigate the natural disaster of drought. South Asia has a Regional Action Program with seven countries signatory to the convention including India. It collaborates closely with the other two Rio Conventions- the Convention on Biological Diversity (CBD) and the United Nations Framework Convention on Climate Change (UNFCCC).

Prior Informed Consent, Rotterdam Convention

It is a multilateral treaty commonly known as the Rotterdam Convention and formally known as The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, which came into force in February 2004. It was designed with the aim to promote the environmentally safe use of the hazardous chemicals and to promote shared responsibility in the trade of hazardous chemicals by supporting a national the decision-making process on their export and import by facilitating information exchange, in order to protect human health and the environment . It looks over the pesticides and industrial chemicals that have been banned or severely restricted for health or environmental reasons by the members. This convention empowers the signatory nations to decide whether to allow or ban the importation of chemicals listed in the treaty and it is the obligation of the producers of exporting nations to comply with the jurisdictional matters. It requires Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade and thus have a binding effect on members for its implementation.

India ratified the treaty in 2005 and implemented this convention in the form of a statute, by laying down some standards in Hazardous Wastes (Management and Handling) Rules, 1989.

Convention of Migratory Species of Wild Animals

It is also known as the Bonn Convention, signed in 1979 in Bad Godesberg, a suburb of Bonn and came into force in 1983.  This is sole convention dealing with taking or harvesting of species from the wild. And this has been successful to an extent as it currently protects 173 migratory species from across the globe. It under the aegis of the United Nations Environment Programme (UNEP). There are 130 signatories to this convention including the EU. It is designed to conserve terrestrial, marine and avian migratory species throughout their range. It consists of two Appendices:

Appendix I-  migratory species that are endangered or threatened with extinction.

Appendix II- migratory species that have unfavourable conservation status and which require international agreements for their conservation and management.

India became a party to the Convention in 1983 but India has signed a non legally binding Memorandum of Understanding (MoU) with CMS on conservation and management of Siberian Cranes (1998), Marine Turtles (2007), Dugongs (2008), and Raptors (2016). A proud moment of India is that it is going to host the 13th Conference of the Parties to the Convention on Migratory Species (CMS COP13) on the theme “Migratory species connect the planet and together we welcome them home”.

CONCLUSION

Global environment has been adequately protected through International Treaties and Conventions which got recognition and observance in domestic laws and maintained the ecological balance particularly in India. The country like India was not much inclined towards environment protection just after independence as the main concern was Industrialization. But after the Stockholm Conference in 1984, India took a diversion and attempted to recognize the International conventions and have done so. Also, apart from the above discussed there are other many conventions such as the International Tropical Timber Agreement and The International Tropical Timber Organisation (ITTO), 1983, been ratified by India. Other agreements or conventions signed by India includes the Convention on Wetlands of International Importance, especially as Waterfowl Habitat (Ramsar, 1971); the Protection of the World Cultural and Natural Heritage (Paris, 1972); the International Plant Protection Convention (1951); the Convention on Early Notification of a Nuclear Accident (1986); the United Nations Convention on the Law of the Sea (Montego Bay, 1982) and many more.

India has observed these international conventions in domestic laws by virtue of Article 51 and 253 of Indian Constitution. India has enacted various enactments such as Environment Protection Act, 1986; Water (Prevention and Control of Pollution) Act, 1974; Air (Prevention and Control of Pollution) Act, 1981; Atomic Energy Act, 1982; The Wildlife (Protection) Act, 1972; he Forest (Conservation) Act, 1980 etc. Also, environmental protection has been granted a constitutional status including the same in Directive Principles of State Policy and Fundamental duties by 42nd Constitutional Amendment Act, 1976 and judiciary held a right to healthy environment a fundamental right under Article 21 of Indian Constitution.

Environmental laws have thus been greatly influenced by international legal developments. International conventions are thus not only the way or path to save the environment but also a good initiative by all the nations to get integrated. 

REFERENCES

1-International Environmental Conventions, ILO Encyclopaedia of Occupational Health & Safety https://www.iloencyclopaedia.org/part-vii-86401/environmental-policy/item/744-international-environmental conventions#:~:text=In%20order%20to%20provide%20an,regulation%20of%20transboundary%20environmental%20impacts., last seen on 08/07/2020.

2- International Agreements on the Environment and India , Geography and You https://www.geographyandyou.com/international-agreements-environment-india/ , last seen on 08/07/2020.

3- INTERNATIONAL CONVENTIONS ON ENVIRONMENT AND ECOSYSTEM, Sodhganga, https://shodhganga.inflibnet.ac.in/bitstream/10603/217423/7/07_chapter%202.pdf and https://shodhganga.inflibnet.ac.in/bitstream/10603/6868/7/08_chapter%203.pdf , last seen on 08/07/2020.

4- Jagran Josh, https://www.jagranjosh.com/general-knowledge/bonn-convention-washington-and-the-ramsar-convention-1441609764-1?ref=list_gk ; https://www.jagranjosh.com/general-knowledge/the-montreal-protocol-the-vienna-convention-1441623090-1?ref=list_gk ; https://www.jagranjosh.com/general-knowledge/the-convention-on-biological-diversity-cbd-1441622131-1?ref=list_gk , last seen on 08/07/2020.

 International Conventions, Treaties And Institutions India As a partner, India’s Forests, http://ifs.nic.in/Dynamic/book/page8.pdf , last seen on 08/07/2020.

The post Conventions relating to Environmental Law appeared first on Legal Desire Media and Insights.

The environmental issues facing individuals and countries throughout the world are ample and complicated. Most countries of the world identify environmental challenges as a combination of social, cultural and economic issues. Environmental maladministration has created severe bequest issues in most countries and for the world at large including the oceans. Evolution of civilization increased the number of floating vessels appearing on national and international waters.  The oceans are now considered as routes facilitating marine trade instead of frightening obstacles.  Nations with sprawling marine coasts and docks are considered to be fortunate as they have easy access to global trade but that’s just one side of the coin, the other stressful side of the coin makes them recipients of marine pollution caused by oceanic traffic. The environmental dilapidation of international waters is a global problem. Overfishing, destruction of marine biodiversity, vessel and land-based pollution, unsustainable and environmentally unfriendly exploitation of mineral resources are the concerns of all humanity. This has given rise to globally consider ways and means to protect the environment including the marine life and in turn, have given rise to various International Environmental Laws. This article aims to discuss the International Environmental Laws relating to Marine Life.

INTERNATIONAL ENVIRONMENTAL LAWS:

There is no prescribed definition or a single law formulated to be called the International Environmental Law. International environmental law is a combination of many bilateral and multilateral international agreements and treaties concerned with protecting the environment. The mid-twentieth saw development of International environmental law as a subset of international law. International environmental law is a resultant of three sources namely, international treaties, customary international law, and judicial decisions of international courts. Customary international law refers to a set of unwritten laws that have arisen from widespread custom and usage among nations. Examples of environmental international customary law include warning a neighbouring nation about a major accident that could affect its environment. Decisions by international courts or arbitrators, such as the International Court of Justice and the International Tribunal for the Law of the Sea, also shape international environmental law. International treaties are the most recent, and most effective, source of international environmental law.

International Environmental Laws have a soft status, which means, they by themselves are not enforceable but influence the development and implementation of legal provisions in national law.  The soft status of international environmental law is a consequence of apprehensions over sovereignty. Nations are usually hesitant to surrender control over their territory, citizens, and undertakings to peripheral international establishments.

DEVELOPMENT OF INTERNATIONAL ENVIRONMENTAL LAWS FOR PROTECTING MARINE ENVIRONMENT AND LIFE:

The modification and improvement of the modern law of the sea along with the deteriorating condition of the oceans gave birth to various legal regimes addressing problems of the marine environment like pollution, loss of biodiversity, protection of marine life especially the endangered species, and marine animals. The international law of the sea provides a foundation for ongoing development. The future of marine protection is subject to the capability and readiness of countries to work together to achieve these collective objectives and the ability of individual states to propose and implement their own marine protection laws.[1] Some of the International Environmental dealing with the protection of the marine environment and life can be discussed as below:

Safety of Life at Sea (SOLAS)

The original version of SOLAS was adopted in 1914 in response to the Titanic disaster. The parties substantially amended SOLAS in 1929, 1948, 1960, 1974, and 1978. Most relevant to marine pollution issues, SOLAS’s 1978 Protocol was adopted at the International Conference on Tanker Safety and Pollution Prevention in February 1978 and came into force on May 1, 1981. This Protocol requires tankers carrying crude oil and other products to have substantial protection against spills. For example, tankers over 20,000 deadweight tons must have an inert gas system to contain oil.[2]

Convention on Fishing and Conservation of the Living Resources of the High Seas – 1958

High seas have no borders leading to the issues that arise due to overfishing to have no borders as well. Entire world suffers from the unprincipled actions of a single reprobate fishing industry, it became necessary for countries to work together toward a unified front on sustainable fishing. The main aim of the convention was to help create an outline through which international conservation laws can be enforced on the high seas. It achieves this goal by provoking international cooperation toward commonly advantageous conservation goals. It also meant that they are more likely to enjoy the biodiversity protected by this initiative.[3]

The Stockholm Conference – 1972

United Nations Conference on the Human Environment held in Stockholm in 1972 (the Stockholm Conference) is considered as the awakening of environmental awareness in international law. Though there were environmental crises that required legal attention before the Stockholm Conference, there was no comprehensive body of international law addressing them. The Stockholm Conference was organised by the United Nations (U.N.) following mounting apprehensions by the United States and other industrialised and developed countries on issues relating to pollution, population growth, and the exhaustion of natural resources. 114 developed and developing countries attended the Stockholm Conference.

Principles 21 addresses the right of countries to use their own resources along with the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment and Principle 22 mandates the countries to develop international law calculating the liability and reparation for victims of pollution and other environmental damage. The Stockholm Declaration was mainly known for these two principles. The Stockholm Conference was a noteworthy beginning point, but because of its patronising objectives without further utilitarian accomplishment it remained a wish list.

United Nations Convention on the Law of the Sea (UNCLOS) – 1982

One of the most important maritime environmental treaties, the United Nations Convention on the Law of the Sea clarifies the responsibilities and rights of all countries that use the oceans. A set of rules and regulations were formulated to conduct business within the scope of the world’s oceans, the UNCLOS protects the health and resources of the oceans from proliferating overuse. It codifies the national and international water boundaries and the exclusive economic zones of all countries that have marine coasts.

‘States have the obligation to protect and preserve the marine environment’ (Article 192). Countries have the right to use their natural resources but it is their duty to protect and preserve the marine environment. They, individually or jointly, have to take all measures necessary for conservation, using the best practical means available to them. They have to ensure that activities under their jurisdiction or control are conducted with care so as not to cause damage by pollution ‘beyond the areas where they exercise sovereign rights’. They must take measures to protect and preserve ‘rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life’.[4]

Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter – 1972 – London Protocol – 1996 enforced in 2006

The London Convention contributes to the international control and prevention of marine pollution by eliminating the dumping of certain hazardous materials. A special permit is required prior to the dumping of a number of other identified materials and a general permit for other wastes or matter. The London Protocol stresses on the precautionary approach, which requires appropriate preventative measures to be taken when there is reason to believe that wastes or other matter introduced into the marine environment are expected to cause harm even without evidence to prove a causal relation between inputs and their effects.

It works on the principle of “the polluter should pay” and emphasizes that Contracting Parties should ensure that the Protocol should not simply result in pollution being transferred from one part of the environment to another.

The Contracting Parties to the London Convention and Protocol are working towards mitigating the impacts of increasing concentrations of CO2 in the atmosphere and ensuring that new technologies that aim to better the climate by reducing the potential to cause harm to the marine environment are effectively utilised.[5]

Conventions for the Prevention of Pollution from Ships:

To ensure that shipping is cleaner and natural, International Maritime Organisation has implemented protocols to discourse the emanation of air pollutants from ships and has implemented mandatory energy-efficiency measures to reduce greenhouse gas emissions from international shipping. These include the landmark International Convention for the Prevention of Pollution from Ships of 1973, as modified by a 1978 Protocol (MARPOL) and the International Convention for the Prevention of Pollution of the Sea by Oil -1954.

International Code for Ships Operating in Polar Waters – Polar Code

In 2017, the International Code for Ships Operating in Polar Waters (Polar Code) entered into force. The Polar Code covers an entire range of strategy, structure, apparatus, operative, training, examination and liberation and environmental protection matters relevant to ships operating in the unreceptive waters surrounding the two poles. It was an important regulatory development in the field of transport and trade facilitation, alongside a range of regulatory developments relating to maritime and supply chain security and environmental issues.

Other than these conventions and treaties there are many other conventions and treaties signed for conservation of marine biodiversity and marine life between some countries of a particular continent or area or between countries having similar objectives. These conventions and treaties have also played a major role in protecting the marine environment and marine life.

Also one can find many international organisations working towards the protection of marine environment and conservation of marine resources some of which are discussed below.

Organisations dealing in Protection of marine environment and biodiversity

The United Nations Environment Programme (UN Environment) aims to protect oceans and seas and promote the sustainable use of marine resources. The Regional Seas Conventions and Action Plans is the world’s only legal framework for protecting the marine environment at the provincial level. UNEP also created a programme for the Fortification of the Marine Environment from Land-based Activities. It is the only global intergovernmental mechanism directly addressing the link between terrestrial, freshwater, coastal and marine ecosystems.

The United Nations Educational, Scientific and Cultural Organization (UNESCO), through its Intergovernmental Oceanographic Commission, coordinates programmes in marine research, observation systems, hazard mitigation and better managing ocean and coastal areas.

The International Maritime Organization (IMO) is an important United Nations institution for the development of international maritime law. Its main task is to create a fair and effective, generally accepted and implemented a legal framework for the shipping industry.

CONCLUSION:

The threats to marine biodiversity are many. Only an international law regime that addresses all of those threats — pollution, overfishing and its associated problems, loss of habitat, and invasive species — both individually and collectively can effectively terminate, and hopefully inverse, the increasing marine species disappearances and loss of marine biodiversity. The next decades will be an important time in the evolution of the international law of the sea, but the regional treaties discussed above provide encouragement that the world will gradually comprehensively protect its most hidden, but arguably most important, natural

The post Marine Life and International Environmental Laws appeared first on Legal Desire Media and Insights.

THE ENVIRONMENTAL ISSUES OF THE 21st CENTURY:

The thinned layer of the  ozone layer or the depletion of the fisheries to the unpredictable  alterations in the climate , the globe comes across a multitude of inherently universal threats and  challenges followed by new studies which bring light to the new menaces and intimidations to the “global commons” which  deserve heedfulness – from airborne mercury .No doubt that few of the environmental issues are confined to the limited geographic scope that can be tackled  at the national front . However, the different governments around the globe are realizing their inability at deciphering the environmental hazards with the international connotations on their own. Action must be taken up collectively for addressing the externalities that ought to be at such proportion upon which the impairment emerges. Along these lines, an operative universal environmental regime turns into an economic and necessity of the ecology.

The ICJ while adjudicating the conflict between Hungary and Slovakia in the famous  Gabeikovo-Nagymaros Project case, had implored the ‘concept of sustainable development’ for suggesting a way ahead. In the monumental  case of Pulp Mills on the River Uruguay , the ICJ had cited to the 1997 judgment in Gabčíkovo-Nagymaros Project and to its Advisory Opinion upon the Legality of the Threat or Use of Nuclear Weapons to reiterate the international obligation .

At present, there is Sustainable Development Goals as well as the 2030 Agenda for Sustainable Development but its representation in the field of global law is still not assertive. Sustainable development has accomplished a prominence that is correspondent to an international norm. It sets forth  objectives for the nations in achieving and regulating their policy, strategy, management and conduct while serving a pivotal and illustrative function while interpreting treaties and also in situations when there arises a dispute between the economical, social environmental considerations and  the legal norms that are related such as the Shrimp Turtle case.

In Gabcikovo-Nagymaros Project (Hungary/Slovakia), it was adhered by the Court   that the joint regime should be restored. For achieving the utmost of the objectives of the Treaty, there was a fundamental exigency for the common utilization of shared water resources thereby not authorizing the defendant for proceeding without the consent of the plaintiff.By signing the “Kyoto Protocol”, all the signatory country recognized to follow the norms in depreciating and weeding out industrial pollution.

The 1992 Rio Declaration puts emphasize upon a requirement that is a contributory and accessible international economic system paving the path to a growth in economy and sustainable development for addressing the issues of environment in a standardized and superior manner.

In the modernistic years, there have been numerous debates and discussions upon the character played by international law in the arena of sustainable development. After  a colossal study and exchange for a decade , the 2002 New Delhi Declaration on the Principles of International Law Related to Sustainable Development was released by the  International Law Association Committee on the Legal Aspects of Sustainable Development released, that determined seven principles which are mentioned below:

• The duty of the States in ensuring that natural resources are used in a sustainable manner and according with international law.
• Eradicating poverty and principle of equity.
• The principle of commonness however with differentiated responsibilities between the States and compatible actors.
• The principle of participation of the public and having access to information and justice.

REVIEW OF LITERATURE:

The link between destruction of the environment and consumption of the resource in an unequal manner, followed by unending poverty and the world’s order of the economy were a topic of discussions and debates for many politicians, scientists, economists and others. The praiseworthy work by Mark Sagoff (1988), has been instrumental in connecting the two areas altogether where he has rightly argued that as citizens instead of consumers, individuals are mainly anxious about the values that cannot be apparently minimized choices or evaluated in terms of money.

The distinction made by Sagoff  in between people being consumers and people being  citizens had been intended for blunting the usage of cost-benefit analysis as being  the ultimate arbiter with regards to discussions regarding the value of nature. The critiques  do not want to terminate and severe the ties of economics from environmental thinking but rather  they refuse reductive and vigorously anthropocentric, tendencies in to convincing that all such problems pertaining to the environment and society are prominent and economically necessary.

VARIOUS CONFERENCES ON ENVIROMENT AND ROLE OF PUBLIC INTERNATIONAL LAW:

STOCKHOLM DECLARATION (1972) AND RIO DECLARATION (1992):

The Sweden Government in the year 1968 had  suggested an international conference to be based upon human environment by the United Nations, which would shift the attention on various issues regarding the environmental degradation and other related problems that was later known as the Stockholm Conference that held in Stockholm from 5 – 16 June 1972.

A second international meeting was held right after two decades of the famous Stockholm Conference that was popularly known as UN Conference on Environment and Development (‘UNCED’), for assessing the developments during those years while fixating upon the relation between protecting the environment and developing the economy. Nine issues pertaining to the environment were addressed by the UNGA which revolved around atmosphere protection, marine environment and biological diversity, managing of wastes, protecting human health and improving the quality of life, etc.

Ten years later, the World Summit on Sustainable Development (‘WSSD’)  took place in Johannesburg, South Africa , for ‘reinvigorating the global commitment to sustainable development’  while identifying new threats and chances and supporting the concept of sustainable development being in conformity with the principle of common but differentiated responsibilities.

A declaration of principles, resolutions and action plans that consisted of 109 recommendations was produced by the participating states in the Stockholm Conference. There were two treaties, the Convention on Biological Diversity and the Framework Convention on Climate Change that were opened for signature at UNCED.

The Stockholm Declaration stresses on the notion that the natural element and the man-made are pre-requisites to the well-being and enjoyment of basic human rights. Further, its preamble identifies that the growth in world population tends to pose as   a huge problem in the preservation of the environment, while depicting a belief that the advancement in science and society   shall improve the quality of the environment every passing day.

PRACTICAL AND LEGAL SIGNIFICANCE OF THE CONFERENCE:

The enunciation of the global values and policies that it had represented became a condition for chartering legal norms in the international arena. The idea of conservation imbibed in its Principles, turned out to be the base for distinctive measures at the national and global front in the consecutive decades. Further, it also did highlight upon the significance of cooperation and planning by considering the engrossments and needs of the countries that are being developed and of the next generation.

The Conference had accelerated multifarious international activities for protecting the environment. Measures were initiated by the Governments for countering   pollution pertaining to marine oil and concluding cutting-edge instruments for wild life conservation.

THE RIO DECLARATION, 1992:

In the year 1983, the Brundtland Commission was created by the UNGA for examining the condemning issues related to environment and development for formulating proposals which were realistic for tackling such issues, to come up with advanced schemes regarding international co-operation and etc.

The Report drove the path to a second global conference on environment which was held in 1992 in Rio de Janeiro, the UNCED, which pinpointed nine burning issues which were of hefty concern such as protecting the atmosphere, land, freshwater resources, marine environment, conserving the biological diversity, remodeling the living and working environments, protecting the health of human beings, etc.

PRINCIPLES OF RIO:

The cardinal conception of the Rio Declaration has to be the notion of sustainable development, as illustrated by the Report that harmonizes development and protection of the environment. A new  attention is diverted to Principle 2 Rio Declaration, that strikes a parity between sovereignty and the duty of averting trans-boundary environmental harm, but further casting the word ‘developmental’ in providing that the nations  possess the right to exploit the resources as per their policies on environment and development.

As per Principle 4 Rio Declaration, environmental protection should incorporate an intrinsic part of the process of development for attaining sustainable development. Similarly, Principle 3 focuses at doing away with poverty while Principle 6, calls for exclusive priority to be given for the requirements of the countries which are at developing stage. Principle 9, aims to strengthen the endogenous sufficient-building for sustainable development through improved scientific understanding.

It is immensely noteworthy to keep a check on the  massive number of Acts that the UN had adopted in the few years  especially when the World unanimously agreed upon at achieving the Millennium Development Goals (MDGs) , the Addis Ababa Action Agenda, the Sustainable Development Goals (SDGs) and the Paris Agreement on Climate Change . The Convention on Climate Change, the G20 consists of a mixed bag of globe’s biggest emerging economies such as Argentina, China, India, United States, etc.

THE SUSTAINABLE DEVELOPMENT GOALS:

Sustainable development is that process which provides the needs to the current generation without having the future generation to compromise with the needs. The Sustainable Development Goals consist of close-knitted and unified package of world’s aspirations that the world commits to attain by the year 2030; the SDGs primarily address the utmost pressing world issues that pose a challenge. The goals comprise of eradicating   all forms of poverty , putting an end to hunger, attaining food security while improving the nutrition level and promotion of sustainable agriculture .The Goals also aim at ensuring healthy and well being of human beings for all ages, ensuring quality education, achieving equality in terms of gender and promoting sustainable development, taking steps at combating climate changing issues and its aftereffects, bolstering the implementation and revitalizing global partnership for sustainable development .

The MDGs had concentrated on multitudinous dimensions of poverty, that included   low incomes, incurable hunger, gender discrimination, lack of education, health care services, denial of clean water and sanitation facilities, etc. Undoubtedly, it was a massive success such as reducing the probability of the child dying before their fifth birthday by fifty percent yet there were still many nations who hardly made the demanded progress, especially upon the issue of environmental sustainability .Further, there has been a consensus about the MDGs scope a must be augmented for reflecting the threats faced by the world at present scenario. The SDG Agenda shall respond to such challenges, and are hence more developed and enlarged than its predecessor. Most notably, it embraces the notion of sustainable development as the chief principle for promoting cooperation at the global level.

The MDGs that conclude at the foot of 2015 mostly focus upon the population that is vulnerable and identifying extreme conditions of poverty, hunger issues, diseases, gender equality, etc. There have been so many nations which had made tremendous progress at attaining the MDGs. In addition, given the UN Millennium Development Goals Report 2015, the world’s maternal mortality ratio has faced a drop by 45%, there has been an improvement in the quality of drinking water, there has been an elimination of the ozone-depleting substances have along with a prediction that the layer of ozone shall be recovered by the mid-century.

THE RELATIONSHIP BETWEEN HUMAN RIGHTS LAW AND ENVIRONMENTAL PROTECTION:

The contemporary environmental movement that started in the belated 1960s identified the close connection of human rights with environmental protection which was eventually codified in the major agreements of international human rights. Most of the nations have adopted a healthy environment as their constitutional right. This right has further been comprehended in various regional human rights instruments such as in Africa, America and elsewhere. In addition, tribunals of the regional human have successfully recognized the human rights which is inclusive of right pertaining to life, health and property and issues of the environment resulting in an expanded and inclusive body comprising of environmental human rights jurisprudence that has taken birth despite the mere absence of a globally identified human right conducive of a healthy environment.

The SDGs are doubtless to say hold mammoth significance to sustainable development while fundamentally to the ongoing development of the linkage between human rights and the environment. The goals presumably deserve praises and accolades. However, most of the goals and targets are very generic at providing guidance in a manner which is practical and in promoting and protecting the human rights and the environment hence a more concrete shape must be made available for them.

ROLE OF PUBLIC INTERNATIONAL LAW IN ENVIRONMENT FROM THE INDIAN PERSPECTIVE:

The term “Environment” is inclusive of a hygienic atmosphere as well as maintains a balance in the ecology. Hence, there is not only a sense of duty to be performed from the part of the State but also a sense of duty should be imbibed in the citizens for protecting and maintain an environment that is clean. There have been bountiful numbers of cases and judgments regarding pollution and degradation of the environment which have found its relevance in the various historical judicial decisions in India.

Article 21 of the Constitution of India conceptualizes the right to life and liberty as one of the essential fundamental rights that is inclusive of protecting and preserving the environment and further sustaining a balance in the ecology which is devoid of any form of pollution, sanitation that pose a threat in the enjoyment of life. Damaging the environment leading to pollution of ecology, air and water are contemplated as massive violation of Right to Life and Liberty making a clean environment an indispensible facet of right to healthy life.

Emission of carbon dioxide into the air tends to alter the pattern of temperature by diffusing heat into the space, commonly known as the “Green House Effect.”Upon realizing and identifying such threat, a movement known as the Chipku Movement was put in motion where the neighboring villages were robbed by the flood caused in the river of Alaknanda due to erosion caused by manmade disaster as result of tree felling. The villagers hugged the trees whenever the authorities came to cut off the trees, this movement spread like wild fire followed by the organizing of various eco-development camps.

WILDLIFE:

The prominent reason for the declination of wildlife around the globe is mainly due to commerce and trade. The doctrine of public trust and the Supreme Court of USA’s observations made in the monumental case of Monolake (National Audubon Society v Supreme Court of Alpine  depicts the concern of the judiciary when it comes to the protection of significant lands, fresh water, wet lands belonging to all the categories. The notion of Sustainable Development has been appreciated and accepted as a concept for eliminating poverty and improving the quality and standard of human life. Some of the essential features are listed below:

• The Precautionary Principle: This principle is with regard to the municipal law which denotes the environmental measures and steps initiated by the State Government and other statutory bodies for anticipating, preventing and attacking all such reasons responsible for degrading the environment. The burden of proof lies on the actor/developer or the industrialists to prove that the actions taken up by his is benign to the environment. This principle has been embraced as part belonging to the land’s law  while Articles such as 21,47,48-A,51-A(g) of the Indian Constitution provided steer clear mandate to the government for protecting and improving the environment and safeguarding the country’s wildlife and forest.
  
  B) The Polluter Pay Principle: The Apex Court has rightly interpreted that the absolute liability for harming the environment extends not only in compensating the victims but also includes the restoration of the degradation done to the environment.

VARIOUS LEGISLATIONS MADE IN INDIA FOR PROTECTING THE ENVIRONMENT  WITH RELEVANT CASE LAWS: Section 268-290 of IPC, concerns with public nuisance revolving around  air pollution, smoke in excess, filth and various activities related to pollution.

• Section 133-143 of CrPc and Section 91 of CPC anticipates that an individual can approach a Magistrate and District Judge respectively by a complaint or petition filed against public nuisance.
  • Further, special damage is claimed for nuisance maker or someone who violates the environment under the Law of Torts .The Water (Prevention and Control of Pollution) Act, 1974.
  • The Environment Protection Act, 1986.
  • Wildlife Protection Act, 1972.
  • The Air (Prevention and Control of Pollution) Act, 1981.
  • The Prevention of Cruelty of Animals Act, 1960.
  • The National Environment Tribunal Act, 1995.

    CASE LAWS:

The Bhopal Gas Leak Disaster (Processing of claims) Act, 1985, gave utmost authority to the Central Government in representing the tragedy victims in compensating the claims against the Company which led to the initiative taken by MC Mehta in using the prominent tool of Public Interest Litigation giving the Apex Court a chance in enunciating fundamental doctrines upon the law of torts, corporate law, etc.

The Apex Court made an interpretation of Article 21 wherein it violated into the territory of environment protection by upholding that environment protection and a man’s right to reside in an eco-friendly atmosphere is a basic fundamental right which is to be assured under Art 21. “Green Benches” are constituted for doing away with the requirement s of litigation connected to the environment.

In Vellore Citizen’s Welfare Forum v UOI, the Apex Court upheld it is not a necessity for the part of the Apex Court in those matters while the Madras High Court lies in a better position at monitoring such maters related to the pollution of the environment due to tanneries in that State while the Chief Justice of the Madras High Court was given a direction for constituting special bench mainly known as “Green Bench” to handle cases in connection to the environment.

In M.C. Mehta v UOI, a case established upon the Pollution Pay Principle, wherein the tanneries in Kolkata discharged toxic effluents that were not treated into the Ganges. The Apex Court gave directions to close such tanneries and relocate along with compensation to be paid to reverse such damage done and handing over the case to the Green Bench for monitoring the issue.

RECOMMENDATIONS:

• To improve the capacity of Taxation and Compliance.

• To strengthen the Sub-National Governments.

• To enhance the Efficiency in Expenditures.

• By building Strong Partnerships with the Private Sector.

• By the smooth flow of Technology Facilitation Mechanism (TFM) for SDGs.

• By monitoring the Data, as well as holding accountability.

• A proper and standard legal framework to be maintained collection of data.

• To properly monitor the framework for SDGs.

CONCLUSION:

Hence, the paramount role played by Public International Law in the arena of environment is huge and beyond praise. Various nations have adopted various measures and steps and goals that had already been aimed at the gigantic conferences and development goal programs. The various nations have incorporated the right to environment as one of their basic rights which is to be guaranteed by the Constitution.  This has only been possible due to the massive influence of public international law at the national level as well as international level. In turn, the concept of sustainable development has gained immense impetus and every State Government as well as human beings are trying to inculcate and implement the notion in order to enjoy the needs of the current generation without having to compromise with the needs of the generation in next.

The post The Towering Role Of Public International Law In Promoting and Recognizing Sustainable Development appeared first on Legal Desire Media and Insights.

Environmentalism is not a fixed concept, but is always evolving influenced by its context. This also applies to Indian environmentalism, which has developed and changed throughout the years. There is a rapid evolution in the Indian legislations after independence as the need and concern regarding environment arose. From ancient environmental rules including Buddhism and Jainism to medieval and then from British era to afterwards including the post 1972 (Stockholm’s) and the coming of modern legislations on environmental laws in India, a great sense of concern has been shown by the legislature and even the Indian judiciary shown a great concern regarding the environment with its landmark judgements.

Policy and Laws in Ancient India (500 BC-1638 AD)

Environmental awareness can be said to have existed even in the prevedic Indian valley Civilization which flourished in northern India about 5,000 years ago. This is evident from the archaeological evidence gathered from Harappa and Mohenjo-Daro which were the prominent cities of the civilization. Their awareness about hygiene and sanitation as evident from their constructions of ventilated houses, orderly streets, numerous wells, bath rooms, public baths and covered underground drains. Protection and cleaning up of environment was the essence of Vedic (1500–500 BC) culture. Charak Samhita (medical Science book of 900 BC – 600 BC) give many instructions for the use of water for maintaining its purity. Under the Arthashastra (an ancient book  on statecraft, economic policy and military strategy), various punishments were prescribed for cutting trees, damaging forests, and for killing animals and environmental ethics of nature conservation were not only applicable to common man but the rulers and kings were also bound by them.

Policy and Laws in Medieval India (1638-1800 AD)

To Mughal rulers, forest meant no more than woodlands where they could hunt.  The history of medieval India is dominated by Muslim Rulers where no note worthy development of environmental jurisprudence took place except during the rule of Mughal Emperor Akbar. During Akbar’s rule except rulers others are prohibited from hunting or shikar. But no major initiatives took place during medieval period to prevent environmental protection and conservation of natural resources as the rulers were only interested in war, religion propagation and empire building. Barring “royal trees” which enjoyed patronage from being cut except upon a fee, there was no restriction on cutting of other trees, hunting animals, etc. Forests during this period shrank steadily in size.

Laws in British India (1800-1947 AD)

• Shore Nuisance (Bombay and Kolaba) Act, 1853 imposed restrictions on the fouling of seawater.

• Merchant Shipping Act of 1858 dealt with prevention of sea pollution by oil.

• The Fisheries Act, 1897 

• The Bengal Smoke Nuisance Act of 1905 

• Bombay Smoke Nuisance Act of 1912

• Wild Birds and Animals Protection Act, 1912  

Laws after Independence (1947)

• The India Constitution adopted in 1950 did not deal with the subject of environment or prevention and control of pollution as such.

 • It was the Stockholm Declaration of 1972 which turned the attention of the Indian Government to the boarder perspective of environmental protection.

• Comprehensive (special) environmental laws were enacted by the Central Government in India.

• National Council for Environmental Policy and Planning was set up in 1972 which was later evolved into Ministry of Environment and Forests (MoEF) in 1985.

• The Wildlife (Protection) Act, 1972, aimed at rational and modern wild life management.

• The Water (Prevention and Control of Pollution) Act, 1974, provides for the establishment of pollution control boards at Centre and States to act as watchdogs for prevention and control of pollution. 

• The Forest (Conservation) Act, 1980 aimed to check deforestation, diversion of forest land for non-forestry purposes, and to promote social forestry. 

• The Air (Prevention and Control of Pollution) Act,1981, aimed at checking air pollution via pollution control boards.

•The Environment (Protection) Act, 1986 is a legislation which provides for single focus in the country for protection of environment and aims at plugging the loopholes in existing legislation.

• The Public Liability Insurance Act, 1991, provides for mandatory insurance for the purpose of providing immediate relief to person affected by accidents occurring while handling any hazardous substance. 

• The Biological Diversity Act, 2002, is a major legislation intervention effected in the name of the communities supposed to be involved in the protection of biodiversity around them.

The National Environment Policy of 2006 

Objective

• Conservation of Critical Environmental Resources

• Intra-generational Equity: Livelihood Security for the Poor

• Inter-generational Equity

• Integration of Environmental Concerns in Economic and Social Development

• Efficiency in Environmental Resource Use

• Enhancement of Resources for Environmental Conservation

Principles

• Human Beings are at the Centre of Sustainable Development Concerns

• Environmental Protection is an Integral part of the Development Process

• The Precautionary Approach

• Economic Efficiency

• Environmental Standard Setting

 • Preventive Action

 • Environmental Offsetting

Hon’ble Supreme Court through its various judgements also held that the mandate of right to life includes right to clean environment, drinking-water and pollution-free atmosphere. These judgments includes the famous Taj Mahal Case, Dehradun Valley Case, Smoking in Public Places Case, Pollution in Delhi Case, Sri Ram Food and Fertilizer Case, Public Health  Case, Public Park Case and several landmark judgments on Sustainable development. In a nutshell the policies regarding environment has changed very rapidly through legislations as well as the judicial interpretations but still there is need of further growth and development in this regard.

The post Evolution of Environmental Law and Policies in India appeared first on Legal Desire Media and Insights.

Each year more than 2 million people are succumbed to death due to infections that ascribed to contamination. Everywhere throughout the world, the negative impact of environmental degradation have made people suffer miserably and no one is safe from these effects. The impact varies in shape and intensity and can be found in shape of ecological debasement, water shortage, depleted fisheries, common calamities because of deforestation and perilous administration. Indigenous people groups directly experience the ill effects of the degradation of the ecosystem systems because these people mostly depend upon these systems for earning their bread and butter. Environmental change is intensifying a large number of these negative impacts of environmental degradation on human wellbeing and prosperity. This has turned into escalation in the extreme events. These facts show the link between environment and human rights. Human rights issues have directly been associated with the legislation done on environment throughout the world at the International level. A report for the Office of the High Commissioner on Human Rights stresses the key point that “while the universal human rights treaties do not refer to a specific right to a safe and healthy environment, the United Nations human rights treaty bodies all recognize the intrinsic link between the environment and the realization of a range of human rights, such as the right to life, to health, to food, to water, and to housing.”[1]

Types of Human Rights and the International Environmental Laws

Substantive Rights

International law divides human rights with respect to environment into substantive and procedural rights. The substantive human rights consist of political and civil rights such as the rights to life, religion, property, health, water, food, and culture. An extensive amount of legislation has been done in order to protect substantive human rights related to the environment. The purpose of environmental laws enacted by international organizations is to protect the collective rights of human beings and their future generations. So there is a strong relationship between environmental laws and substantive human rights.

The link between the environmental laws and basic human rights issues has been explained and recognized in multilateral environmental treaties. The phenomenon of environmental degradation has also been recognized as a factor impacting the substantive human rights and environmental rights. Whenever there is any human rights violation caused by environmental factors, Human rights tribunals have come up to safeguard and recognize rights of life, property, health, and a healthy environment. At regional level the “right to a healthy environment” has been recognized by courts and tribunals, such as in the cases decided by the African Commission on Human and Peoples Rights based on Article 24 of the African Charter, which states that all peoples have the right to a general satisfactory environment.[2]

Procedural Rights

Procedural rights consist of rights to have access to information, right to participate in decision-making, and right to access to justice. These rights can be found in both the environmental as well as human rights instruments as they provide safeguards to the human as well as environmental rights and also protect the natural environment. Principle 10 of the Rio Declaration is quite relevant as it focuses on the procedural rights in environmental context. According to this principle “Environmental issues are best handled with participation of all concerned citizens at the relevant level.” It lays down that individuals should have appropriate access to information, the ability to participate in decision-making processes, and effective access to judicial and administrative proceedings, including redress and remedy.

Despite of its regional status, the Aarhus Convention[3] is one of the most relevant international treaties that talks about protection of procedural human rights. Its preamble declares the right of everyone to live in an environment adequate to his or her health and well-being. Its Article 1 ensures that rights of access to information, public participation and access to justice are protected.

Arhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters has been adopted by the UNECE. Its preamble not only recalls Principle 1 of the Stockholm Declaration and recognises that ‘adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including the right to life itself’ but also asserts that ‘every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations’. Kofi Annan has remarked that although regional in scope, the significance of the Aarhus Convention is global. It is the most ambitious venture in the area of “environmental democracy” so far undertaken under the auspices of the United Nations.

Procedural rights have also been recognized in regional and global human rights instruments such as the Inter-American Court of Human Rights, which recognized the right of access to information in an environmental context in connection with the right to freedom of expression provided in Article 13 of the American Convention of Human Rights.[4] Similarly, the European Court of Justice has ruled that lengthy administrative proceedings to pursue an environmental right are in violation of the Article 6 right to fair hearing.[5] The World Bank Inspection Panel has ruled that the environmental impact assessment is a special form of procedural protection, unique to environmental law, which has been linked to the rights to information and public participation. An identical mechanism has been provided for in the UN Convention on the Law of the Sea and the Convention on Biological Diversity, as well as human rights agreements such as the ILO Convention 169 concerning Indigenous and Tribal Peoples. The UNECE Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) also addressed the procedural requirements of environmental impact assessments. According to the African Commission on Human and Peoples Rights failure to conduct an environmental impact assessment can contribute to a violation of the right to property.[6] Similarly, the European Court of Human Rights ruled that failure to conduct an environmental impact assessment contributed to a violation of the right to respect for privacy and home life.[7]

Relationship between Human rights and International Environmental laws

The relationship between human rights and environmental protection laws is threefold:

1. The environment is necessary a precondition for the enjoyment of human rights so the states must ensure the level of environmental protection necessary to allow the full exercise of protected rights;
2. Procedural rights, especially access to information, participation in decision-making, and access to justice in environmental matters, are considered essential to good environmental decision-making; and

• The right to a safe, healthy and ecologically-balanced environment is a human right in itself.

The Stockholm Declaration and the Rio Declaration demonstrate an important link between human rights and the environment. The Commission on Human Rights by Resolution 2005/60 requested the High Commissioner and invited UNEP, UNDP and other relevant bodies and organizations “to continue to coordinate their efforts in activities relating to human rights and the environment in poverty eradication, post-conflict environmental assessment and rehabilitation, disaster prevention, post-disaster assessment and rehabilitation, to take into consideration in their work relevant findings and recommendations of others and to avoid duplication”.

The Human Rights Council in its resolution 7/23 of March 2008 and resolution 10/4 of March 2009 were adopted primarily for reiterating the stance on human rights and climate change. Awareness has been created with these resolutions regarding environmental affects on the human rights.

Efforts of the United Nations to address Human rights issues through International Environmental Laws

United Nations through its various organs has taken steps to address issues related to human rights which are directly emanating from the environmental hazards and the environmental legislation. UN Human Rights Committee has adopted General Comments 14 and 15, which interpret Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) to include access to sufficient, safe, and affordable water for domestic uses and sanitation; the prevention and reduction of exposure to harmful substances including radiation and chemicals, or other detrimental environmental conditions that directly or indirectly impact upon human health. Moreover, Article 10 of UN Watercourses Convention puts ‘vital human needs’ in priority while distributing and allocating scarce water resources.[8]

In its Resolution 10/4 (2009) on the climate change, the UNHR stated “Noting that climate change-related impacts have a range of implications, both direct and indirect, for the effective enjoyment of human rights including, inter alia, the right to life, the right to adequate food, the right to the highest attainable standard of health, the right to adequate housing, the right to self-determination and human rights obligations related to access to safe drinking water and sanitation, and recalling that in no case may a people be deprived of its own means of subsistence”.[9]

International Environmental Laws and Human rights issues

Transboundary Pollution and Global Warming

Generally, the main obligation that the International human rights treaties put on member states is that these states protect certain freedoms and fundamental rights of everyone living within their territory or is subject to their jurisdiction. However, in certain conditions states must also respect human rights in other countries when activities within their own territories or jurisdiction affect the enjoyment of human rights extraterritorially. For example in case of Transboundary pollution or global climate change, the concerned states must also realise that the impact of their activities is making a strong impact on the people living outside their territories. States have a duty in general international law to exercise due diligence over activities within their own territory that may cause significant harm to other states or areas beyond national jurisdiction, including the global environment. Under International Law, failure by a state to regulate or control environmental nuisances or to protect the environment may interfere with individual rights.

In cases such as Guerra, Lopez Ostra, Öneryildiz, Taskin, Fadeyeva, Budayaeva and Tatar it has been demonstrated how the right to private life, or the right to life, can be used to compel governments to regulate environmental risks, enforce environmental laws, or disclose information.[10]

Right to have quality Environment and  conflicting International cases

There are conflicting views in different international case laws on whether right to have quality environment falls under the category of human rights.

Kyrtatos v. Greece

Even till today human rights treaties do not give full guarantee of giving a right to have a decent environment. The ECtHR observed in Kyrtatos, that “neither Article 8 nor any of the other articles of the Convention are specifically designed to provide general protection of the environment as such.”[11] This case involved the illegal draining of a wetland in which the European Court observed that no violation of applicants’ right to private life or enjoyment of property was committed because of destruction of the area in question and they were not entitled to live in any particular environment, or to have the surrounding environment indefinitely preserved.

Metropolitan Nature Reserve v. Panama

The Inter American Commission on Human Rights also gave a similar decision and ejected a claim on behalf of all the citizens of Panama to protect a nature reserve from development.[12] Rodrigo Noriega filed a petition on behalf of the citizens of Panama in which he alleged that the right to property of all Panamanians has been violated. He alleged that those who were mainly affected included groups such as the Residents of Panama, Friends of the Metropolitan Nature Reserve, the Audubon Society of Panama, United Civic Associations, and the Association for the Research and Protection of Panamanian Species. The Commission, however, rejected the petition for being inadmissible on the grounds that there was no specifically identifiable victim or defined individual. The Commission therefore ruled that it did not have the requisite competence to adjudicate the present matter.

Brun v. France

In another case relating to the objections against growing genetically modified crops, the UN Human Rights Committee held that ‘no person may, in theoretical terms and by actio popularis, object to a law or practice which he holds to be at variance with the Covenant.[13]

The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria

Ogoniland decision is a unique decision in the history of environmental law and human rights instruments. For the very first time ever, it applied the right of peoples to dispose freely of their own natural resources. In 1996, the Social and Economic Rights Action Centre (SERAC) brought a case against Nigeria to the African Commission on Human and Peoples’ Rights alleging that the military government had, through its business relationship with Shell Petroleum Development Corporation (SPDC), exploited oil reserves in Ogoniland with no regard for the health or environment of the Ogoni People. This exploitation had resulted in extensive pollution of the local habitat, seriously affecting the food production of the area. The Commission found, in a 2001 decision on the merits, that Nigeria had violated many of the rights enshrined in the African Charter on Human and Peoples’ Rights (Arts. 2, 4, 14, 16, 18(1), 21 and 24) and appealed to the state of Nigeria to cease its attacks on the Ogoni people, undertake effective investigations into the human rights violations detailed in the case, assure reparations for the victims, and put safeguards in place safeguards to prevent future violations.

State Responsibility: A moral duty of states

Every state has a responsibility to protect environment under the International Law, however, this responsibility is moral and not all states fulfil it. Two major areas in which state responsibility comes into play are environmental pollution and natural resource extraction. The European Court of Human Rights has ruled a number of cases involving pollution, including life and health risks from industrial and dangerous activities. In the same way, the African Commission on Human Rights has remained upfront in addressing pollution resulting from oil exploitation.

Under International law, As soon as it come into the knowledge of a state that there is some environmental risk involved in a particular activity, it becomes duty bound to adopt positive measures of protection through effective regulation, in order to prevent infringements of individual rights. Not only this but states must anticipate potential risks associated with industrial activities and this can be done by conducting environmental impact assessment (EIA). States must make sure that the constitutional and fundamental rights of their citizens related to environment are effectively enforced through courts.

There should be regulations and mechanisms enforced to deal with licensing, setting up, operation, security, scientific monitoring and supervision of the industrial activities in a state’s territory. These regulations should be backed by deterrence and sanctions. In short, the State must recognize the legal personality of indigenous and tribal peoples and their title to lands and territories traditionally owned or used by them. In these lands and territories, the government owes a duty to consult regarding development and investment projects and in certain instances to obtain prior informed consent (PIC). In other words, while the government retains the ability to impose restrictions on the right to property, in order to ensure the survival of the group, the State must comply with certain safeguards, including prior and independent environmental impact assessments, consultations, PIC and benefit-sharing arrangements. Concessions or permits granted for the exploitation of natural resources in breach of these duties should be linked with the international responsibility of the State.

International Environmental Treaties and Human rights

At the international scene, there is always a continuous tension between those who support national sovereignty over natural resources and those who compel states to take measures to protect the global environment. Principle 21 of the 1972 Stockholm Declaration (United Nations, 1972) provides that States have the sovereign right to exploit their own resources but also have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of their national jurisdiction. Some international environmental instruments also recognize certain elements environment to be the common heritage of humankind. UNCLOS and the World Heritage Convention adopted this concept as “common heritage of mankind” and “world heritage of mankind as a whole”, which is related to “common interest of mankind” as declared in the Outer Space Treaty and the “common concern of humankind” as stipulated in the United Nations Framework Convention on Climate Change. All these international treaties further the purpose of protection of environment.

Antarctic Treaty System

As a measure to protect the echo system of Antarctica, the Antarctic Treaty was adopted in 1959 and entered into force in 1961. This treaty prohibits every member state from claiming territorial sovereignty over any part of Antarctica. It also makes state bund to cooperate and share their scientific plans and research.

Since the adoption of this treaty the International community has agreed upon various related agreements also known as the “Antarctic treaty system”. This system consists of the 1972 Convention for the Conservation of Antarctic Seals, the 1980 Convention on the Conservation of Antarctic Marine Living Resources; the 1988 Convention on the Regulation of Antarctic Mineral Resource Activities; and the 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol).

International Convention on Civil Liability for Oil Pollution Damage

Adopted by the International Maritime Organization in 1969, and entered into force in 1975, the international Convention on Civil Liability for Oil Pollution Damage stipulates that if an incident occurs with a ship carrying oil, which causes pollution, the owner of that ship shall be liable to pay compensation to those affected by the oil. This liability is set as absolute liability under which the owner shall be liable even if he does not have any fault in causing pollution damage.

This Convention was further amended by the Protocol of 1992 thereby widening its scope to include damage in a Party’s Exclusive Economic Zone or equivalent area, as well as in a Party’s territorial seas (Article 3(a)). However, according to Article XI of the Convention, the Convention and the Protocol do not allow for compensation if the ship responsible for the spill was owned or operated by a State and used only for non-commercial purposes.

Ramsar Convention on Wetlands of International Importance

The Ramsar Convention was adopted in February 1971, and entered into force in December 1975. Major purpose of this convention is to protect the world’s wetlands, through the identification and designation of wetlands of international importance, and the creation of parks and reserves around important wetlands, both designated and undesignated. According to its Preamble, the Convention recognizes “the interdependence of man and his environment”. The Preamble also acknowledges wetlands as “a resource of great economic, cultural, scientific, and recreational value, the loss of which would be irreparable.”

Convention for the Protection of World Cultural and Natural Heritage

The World Heritage Convention was adopted by the General Conference of UNESCO in November of 1972. The Preamble of the Convention recognizes that “deterioration or disappearance of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world.” in addition, it states that “parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole.”

According to Article 2 of the Convention “natural heritage” can be defined as “natural features consisting of physical and biological information or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiological formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty.” There are two main mechanism for protecting the natural heritage under the Convention are namely the World Heritage List and the List of World Heritage in Danger.

Convention on International trade in Endangered Species of Wild Fauna and Flora

The Convention on international Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international treaty designed to ensure that international trade in wild animals and plants is carried out in a sustainable way so as not to threaten their survival. CITES currently protects approximately 33,000 species.

United Nations Convention on the Law of the Sea

The United Nations Convention on the Law of the Sea (UNCLOS) was entered into force on November 16, 1994. Its Article 192 provides “States have the obligation to protect and preserve the marine environment”. It further explains in its Article 194 “states shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as to not cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention”. Further, Article 207 stipulates that states should adopt laws to “prevent, reduce and control pollution of the marine environment from land-based sources”. These clear substantive obligations to protect the environment are backed by procedural mechanisms.

Part XI of the Convention declares the seabed and its resources to be “the common heritage of mankind”. The Convention further provides that “no state shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources” and that “all rights in the resources of the Area are vested in mankind as a whole”.

Vienna Convention for the Protection of the Ozone Layer

The Vienna Convention for the Protection of the Ozone Layer (the Ozone Convention) was adopted in 1985 and entered into force in 1988. Main goal of the Convention is “to protect human health and the environment against adverse effects resulting from modifications of the ozone layer”. Article 2 provides that Parties shall take measures “to protect human health and the environment” from the effects of anthropogenic ozone degradation.

Montreal Protocol on Substances that Deplete the Ozone Layer

The Protocol on Substances that Deplete the Ozone Layer to the Vienna Convention for the Protection of the Ozone Layer (Montreal Protocol) requires states to phase out the production of numerous substances believed to be responsible for ozone depletion to protect the ozone layer. The Protocol further recognizes the connection between environmental conservation and human health. The Preamble recognizes “that world-wide emissions of certain substances can significantly deplete and otherwise modify the ozone layer in a manner that is likely to result in adverse effects on human health and the environment.”

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal

The Basel Convention was adopted in 1989 and entered into force in 1992. It was enacted for regulating the movement of hazardous wastes from one state to another. Its Preamble talks about reducing the risks involved in transboundary movement of hazardous wastes and also pledges to reduce the production of such wastes. Under this Convention a system of rights and obligations was created. Under Article 4(1)(a) parties have a right to prohibit the import of hazardous wastes and an obligation to inform other Parties when they choose to exercise this right.

Moreover, Article 4(2)(a)-(b) directs the Parties to take appropriate measures to ensure that hazardous and other waste production be reduced to a minimum and that States parties ensure adequate disposal facilities are available. Article 4(3) of makes illegal trade in hazardous and other wastes a crime.

Later in the year 1999 a Protocol on Liability and Compensation was adopted by the Basel Conference of the Parties. This Protocol was meant to create a mechanism to award compensation in the event when some damage is caused by the transboundary movement of wastes.

United Nations Framework Convention on Climate Change, 1992

The UN Framework Convention on Climate Change (UNFCCC) was  adopted  in  May  1992. According to Article 2 of the UNFCCC, the goal of the UNFCCC is to achieve stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. The UNFCCC contains provisions relating to the concept of common concern of humankind, the principle of common but differentiated responsibilities, the relationship between climate change and human welfare, the relationship between state sovereignty and environmental obligations,  and  the  existence  of  obligations  to  future  generations.

The scheme of interests and obligations laid out in the UNFCCC confronts issues of sovereignty. The Preamble reaffirms “the principle of sovereignty of States in international cooperation to address climate change.” The Preamble also provides that “States have . . . the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” This statement is a clear reference to Principle 21 of the Stockholm Declaration. However, the Preamble to the UNFCCC begins with  an acknowledgment that “change in the Earth’s climate and its adverse effects are a common concern of humankind.” This goes beyond Principle 21, in imposing an obligation not only on other States, but on humankind as a whole.

The UNFCCC also recognizes the relationship between climate degradation and human welfare. The Preamble states a concern that the warming caused by anthropogenic emissions “may adversely affect natural ecosystems and humankind.” Article 2 states that stabilization of greenhouse gas concentrations in the atmosphere should be achieved within a time frame sufficient “to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.” in addition to the effect of climate change on economic development, the Convention recognizes that “economic development is essential for adopting measures to address climate change” (Article 3(4)).

Finally, the UNFCCC contains procedural obligations to individuals as well as to other parties. Article 4(1)(i) requires Parties to promote and cooperate in education, training and public awareness of climate change, and encourage participation in the process, including participation by NGOs.

Kyoto Protocol to the United Nations Framework Convention on Climate Change

The Kyoto Protocol was adopted in Kyoto in December 1997 and opened for signature in March 1998. it entered into force in February 2005. The Kyoto Protocol commits thirty-seven industrialized countries and the European Community to reduce greenhouse gas emissions by an average of five percent compared to 1990 levels over the five-year period 2008-2012.

Article 10 of the Protocol places a heavier burden on developed nations under the principle of “common but differentiated responsibilities”. It thus specifically recognizes the national and regional development priorities of developing nations and makes reference to the objective of sustainable development.

United Nations Convention on Biological Diversity

The Convention on Biological Diversity (CBD) was opened for signature at the Rio de Janeiro Earth Summit in June 1992 and entered into force in December 1993. The three main goals of the Convention include the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.

The Preamble of the CBD affirms that “the conservation of biological diversity is a common concern of humankind.” Article 3 restates the principle that States have “the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” Several other parts of the Convention echo this interaction between sovereign rights and international responsibility. The Preamble reaffirms that States have “sovereign rights over their own biological resources”, and goes on to reaffirm “also that States are responsible for conserving their biological diversity and for using their biological resources in a sustainable manner.” Notably, this responsibility goes beyond a responsibility to prevent harm to the environment of other States or of areas beyond the limits of national jurisdiction. Article 4 specifically states that the Convention applies in areas within the limits of each Contracting Party’s national jurisdiction. Article 8 establishes obligations for in-situ conservation, including obligations to establish a system of protected areas and to regulate important biological resources.

As per Article 10(c), there are also special protections for indigenous groups. States have a responsibility to “protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements”.

United Nations Convention to combat Desertification in those countries experiencing drought and/or desertification, particularly in Africa

The UN Convention to Combat Desertification (UNCCD) was adopted in Paris in June 1994. The goal of this convention is to combat desertification and mitigate the effects of drought through long-term action supported by international cooperation and partnerships. The Preamble begins by affirming “that human beings in affected or threatened areas are at the centre of concerns to combat desertification and mitigate the effects of drought.” it goes on to acknowledge that arid, semi-arid, and dry sub-human areas “are the habitat and source of livelihood for a large segment of [Earth’s] population” and that “desertification and drought affect sustainable development through their interrelationships with important social problems such as poverty, poor health and nutrition, lack of food security, and those arising from migration, displacement of persons and demographic dynamics.”

The Preamble further stipulates that “states have . . . the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

It appeals that local people must participate and implement the programs related to combat desertification. For this purpose information should be exchanged among local communities.

IAEA Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management

This Convention is the foremost legal instrument that directly addresses the safety of spent fuel and radioactive waste management on a global scale. The primary aim of this instrument is to maintain a high level of safety in this industry worldwide. Its Preamble underscores the importance of creating awareness among masses regarding the safety and fuel management or radioactive waste management facility.

Stockholm Convention on Persistent Organic Pollutants

The main objective of the Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention) is to shield human wellbeing and the earth from persistent natural toxins by confining and finally dispensing with their generation, use, exchange, discharge and storage.

The Convention requires every Party, to the degree it is fit, to advance and encourage providing the general population with all accessible data on tenacious natural toxins and guarantee that the general population has admittance to open data and that the data is updated. Under Article 9(5), secret data ought to be secured, yet data on wellbeing and security of people and the environment may not be kept private.

Article 25 “prohibits discrimination against indigenous peoples,” and “promotes their full and effective participation in all matters that concern them and their right to remain distinct and to pursue their own visions of economic and social development.” Article 26 also provides that indigenous peoples “have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” Under Article 29, the Declaration provides that “indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources”, and that “States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.”

Article 25 “forbids victimization of indigenous people,” and “advances their full and successful investment in all matters that worry them and their entitlement to stay particular and to seek after their own particular dreams of financial and social improvement.” Article 26 likewise provides that indigenous people groups “have the privilege to the terrains, domains and assets which they have generally possessed, involved or generally utilized or obtained.”

Author: DR.HEMANT GARG & DR. BASANT GARG

[1] Report of the OHCHR on the relationship between climate change and human rights (2009)

[2] Social and Economic Rights Action Center and Center for Economic and Social Rights v. Nigeria (African Commission on Human and Peoples’ Rights 2002)

[3] UNECE Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters 1998

[4] Claude-Reyes v. Chile No. 151 (Inter-Am. Ct. Sep. 19, 2006)

[5] Dées v. Hungary No. 2345/06 (Eur. Ct. H.R. App. Nov. 9, 2010)

[6] Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya No, 276/2003 (African Commission on Human and Peoples’ Rights 2003)

[7] Giacomelli v. Italy No. 59909/00 (Eur. Ct. H.R. 2006)

[8] GAOR, Report of the 6th Committee Working Group (1997)

[9]UNHRC, Resolution, available at http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_10_4.pdf

[10] Lopez Ostra v. Spain 20, at 277 (EHRR, 1994); Guerra v. Italy 26 at 357 (EHRR, 1998)

[11] Kyrtatos v. Greece  No. 242 (ECHR, 2003)

[12] Metropolitan Nature Reserve v. Panama No. 11.533, Report No. 88/03, Inter-A. C.H.R., OEAA/Ser.L/V/II.118 Doc. 70 rev. 2 at 524 (2003)

[13] Andre Brun v France, Communication No. 1453/2006, U.N. Doc CCPR/C/88/D/1453/2006 (2006)

The post Article: International Environmental Laws and Human Rights Issues appeared first on Legal Desire Media and Insights.

The apparent reasons cited for bringing in a new Bill now and not just a set of Amendments to the existing law but actually they are centered around a need to:

1. Regulate all pesticides, not just those insecticides that appear in the Schedule of the 1968 Act;
2. Lay down a condition that every pesticide should have its expected performance disclosed and usage instructions included in its application for registration;
3. Lay down a further condition that no pesticide can be registered without its tolerance limits laid down under another statute on food safety;
4. Increase penalties for different kinds of offenses;
5. Include a clause on segregation and disposal of pesticides;
6. Expand the constitution of the Central Insecticides/Pesticides Board to include new departments and farmer representatives

It requires the new bill as it cannot accommodate the old act with the help of comprehensive amendments to the existing laws. The new bill not only strengthens the state government in many ways but also empowers the state government in terms of registration and licensing of trade, to regulate marketing and advertising. The current bill falls short in terms of protecting the interests of citizens, inclusive of farmers, consumers, and their environment. It is not prescribed that the Bill should come from the Ministry of Health & Family Welfare and not the Ministry of Agriculture, which appears to be promoting the use of pesticides. In order to recast the Pesticides Management Bill 2017 the need to make few changes before it tries to protect the citizen from ill effects of synthetic pesticides.

With this new bill, there will be a focus on two things that are, Primarily the center will try making it mandatory for all agricultural-input packaging to essentially have the barcode on every given product detailing about the information relating to it. These barcodes will sync with the GST and the e-billing process. Seconly, states should make retailers register/log of all agriculture input sales syncing it with state government servers, allowing for traceability for better and regular enforcement. One must not forget the devastating effects of Bhopal Gas Leak tragedy at a pesticide manufacturing unit or the cancer trains of Punjab, But the existing Act doesn’t even allow the state or center to act in its own interests and stop pesticide sales within its own boundaries for more than 60 days. Dreadful as it is in a federal structure, the limited use and interpretation of the law which started the cancer train is still destroying lives.

The post New Pesticides Management Bill- is it a upcoming necessity for government? appeared first on Legal Desire Media and Insights.

According to Section 2(a) of the Indian Environment (Protection) Act 1986, the term “Environment” includes water, air and land and human beings, other living creatures, plants, micro-organism and property. However, under Section 1(2) of the Environment Protection Act 1990 of the United Kingdom, the term “environment” consists of all or any of the following medium, namely, air, water and land and the medium of air made structures above or below ground. According to the Encyclopaedia Britannica, the term “Environment” means the entire range of external influence acting on an organism, both the physical and biological and other organism, i.e., forces of nature surrounding of an individual. Besides, man-made environment is created by us i.e., industrial revolution, communication networks like telephones, internet etc., agricultural & plantation for the protection of environment, power generations, sustainable development is a tool of protect the pollution free environment.

The degradation in environmental quality has been evidenced by enormous pollution, loss of vegetal cover and biological diversity, excess accumulation of harmful chemicals in the atmosphere and in food chains, growing risks of environmental accidents and threats to life support system. The expression “the people of the whole world resolve to protect and enhance the environmental quality” is found in the decisions taken at the United Nations Conference on the Human Environment which took place at Stockholm in June 1972. The Government of India was participated in the Conference and strongly voiced the environmental concerns. While several measures have been undertaken for environmental protection, but the need for a general legislation has become increasingly evident. Although, there are existing laws dealing directly or indirectly with several environmental matters, it is necessary to have a general legislation for environmental protection. Existing laws generally focus on specific types of pollution or on specific categories of hazardous substances. Some major areas of environmental hazards are not covered. There also exist uncovered gaps in areas of major environmental hazards. There are not adequate linkages in handling matters of industrial and environmental safety. Control of mechanism to the guard against slow insidious to develop of the hazardous substances, especially new chemicals are weak in an environment. Because of a multiplicity of regulatory agencies, there is need for an authority which can assume the lead role for studying, planning and implementing long term requirements of environmental safety and to give direction to and to co-ordinate a system of speedy and adequate response to emergency situations threatening the environment.

The deforestation, cutting of tree without permission from the competent authority, rapid growth of industrialization, there is no check & balance of hazard standards equipment in industrial units, expulsion of population, inadequate knowledge among the people about environment and pollution are the main causes of environmental issues and challenges. Besides, the government agencies/functionary is not activated to control these problems and prospects in such a manner as requires the problems of our nation. There is a need of an hour to motivate these agencies to do something in inspirit of the legislation with the strong “Political Will of the State”. NGOs can perform to aware about issues and solutions amongst to the common people.

The rapid growth of industry and direct foreign investment is the result of our liberal economy policy on the monumental scale pose new challenges and new threats for a complex plural society. These challenges have often been noticed in the past, it is merely the scale, which might be different in future. If there has been indeed, a regrettable aspect to the Independent Nation’s history, it has been the inability of the Executive wing to deal with these problems effectively and set a precedent, which may be followed. The trains that such rapid Industrial advancement place on a Nation’s environs are unfathomable, the destruction that it has the capacity of causing, almost frightening and under these circumstances the means and measures which ordinary citizens have in dealing with them, seemingly hopeless.

But it is each society’s own unique way of dealing with the challenges before it. Reformed Government has not yet been India’s response. The sheer destruction of our ecology has been met with firmly by only one pillar of the vast State. It is indeed almost ironic that the task of saving India’s natural resources.

The Herculean task undertaken by the Supreme Court has been made possible by the now settled principle of dilution of the old rule of locus standi. Invention has occurred by now in a plethora of cases, most of them discussed on innumerable occasions by Jurists and the Intelligentsia and PIL can be filed for the protection of environment.

No doubt, industrialization is the backbone of our economy and agrarian sector is not capable to fulfil the requirement of an employment opportunities but we cannot be compromised with environment, development should be made in such a manner to use the natural resources in a minimize waste with maximum satisfaction of the wants of the people as the theory of “Social Engineering” propounded by Dean R. Pound. Therefore, sustainable development is the best solution of our problem as discussed above.

The pollution of water is a phenomenon that is characterized by the deterioration of the quality of water as a result of different human activities. It is estimated that man can survive 20 days without food, but starts struggling for life in the absence of water just after one day. Water is the need for the maintenance of life of plants and animal; for navigation and hydro-electric power. That is why most of our cities, towns, and villages sprang up near places where plentiful water is available in the form of lakes, rivers and sea. History reminders us that many civilizations perished or migrated to better locations due to scarcity of water. Water pollution is a global problem, affecting both the industrialized and the developing nations. The water pollution problem is in rich and poor nations, these can be sorted out with collective measures and efforts of the nations. Human activities related with water pollution can be attributed to mining, agriculture, stockbreeding, fisheries, forestry, urban development, construction works, industries, etc., in our country unsanitary water and malnutrition can account for most of the illness and death. Like air pollutants, water pollutants, come from numerous natural and anthropogenic sources. Likewise, water pollutants produced in one nation may flow into others, creating complex international control problems that may take decades to solve. Therefore, management and conservation of water resources have become important issues for the protection of environment.

Environmental protection has now become a matter of grave concern for human existence. It is the duty of State and each & every people of the world to maintain the ecological system of the environment and pollution free society of the world. Industrialization, over exploitation of resources, the scientific and technological progress of man have invested the man with immense power over nature and these have been the principal causes for the impairment of the quality of the environment.

Environmental degradation is a social problem and considering its impact on the society has risen to deal with the situation as it demands in the present day-to-day. It is not merely confined to the Apex Court, but also the High Courts in India including Orrisa High Court which have shown dynamism in evolving the right to environment in India. While dealing with an environmental issue on Bhitarakanika Sanctuary, Hon’ble A. Pasayat and P.C. Naik , JJ felt in the case of Centre for Environmental Law V. State of Orrisa that there is constitutional imperative on the State Government and the local bodies like Municipalities not only to ensure and safeguard proper environment but also an imperative duty to take adequate measure to promote, protect and improve the environment.
(1) Constitutional Protection of the Environment

The Indian Constitution is amongst the few in the world that contains specific provisions on environmental protection. The Directive Principles of State Policy and the Fundamental Duties chapters explicitly enunciate the national commitment to protect and improve the environment. Judicial interpretation has strengthened this constitutional mandate. Recently, the courts have recognised the right to a wholesome environment as being implicit in the fundamental right to life.

Environmental protection and improvement were explicitly incorporated into the Constitution by the Constitution (Forty – Second Amendment) Act of 1976. The Constitution (Forty – Second Amendment) Act, 1976 introduced Article 48-A in Part IV which provides that “the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country”, the provision though not enforceable in a court, directs the State to enact legislation and frame policies towards attaining these goals.

The Constitution (Forty-Second Amendment) Act, 1976 also introduced Article 51A in Part IV A of the Constitution Article 51 A (g) provides that “it shall be the duly of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures”. Thus the State now is under a moral duty to take measures to prevent ecological imbalances resulting from modern industrialization. The Constitution has also cast a duty on the citizen to take steps for maintaining ecological balance. Although the language of Article 48 A and Article 51 A (g) differs to each other, the differences appear to relate to form rather than to substance. Together, the provisions highlight the national consensus on the importance of environmental protection and improvement. The incorporation of protection of environment as an obligation of the state and as a mandate to the citizens of India as part of the fundamental duties is notable indication to the importance of the protection of environment.

“Whenever a problem of ecology is brought before the Court, the Court is bound to bear in mind Article 48A of the Constitution and Article 51A (g) of the Constitution. When the Court is called upon to give effect to the Directive Principle and the Fundamental Duty, the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter for the policy -making authority. The least that the Court may do is to examine whether appropriate considerations are borne in mind and irrelevancies excluded. In appropriate cases, the court may go further, but how much further will depend on the circumstances of the case. The Court may always give necessary directions.

(2) Scope of the Environment (Protection) Act, 1986
In the wake of the Bhopal tragedy, the Government of India enacted the Environment (Protection) Act of 1986, under Article 253 of the Constitution. The purpose of the Act is to implement the decisions of the United Nations Conference on the Human Environment of 1972, in so far as they relate to the protection and improvement of the human environment and the prevention of hazards to human beings, other living creatures, plants and property. The Act is an ”umbrella” legislation designed to provide a framework for Central Government co-ordination of the activities of various central and state authorities established under previous laws, such as the Water Act and Air Act.
This Act is the first Act dealing with the Human environment as a composite whole and it is a comprehensive legislation on this point and also dealing with air, water, and noise pollution as also regulating the treatment of hazards materials. Besides, Act is contained the 26 Sections and divided into four chapters. The legislature has made the first time attempts to lay down the said law on this point and goes beyond the scope of the water and Air Pollution Acts passed in 1974 and 1981 respectively. But Act also suffers from shortcomings. The drawbacks of the Act relate to its narrow area of operation weak citizens suit provision, tax provisions relating to fixing of liability of corporate officials and lack of provisions providing for an individual’s right to sue a defaulter for damages.
The potential scope of the Act is broad, with ‘environment’ defined to include water, air, and land and the inter-relationships which exist among water, air and land, and human beings and other living creatures, plants, micro-organisms and property. “Environmental pollution” is the presence of any environmental pollutant, defined as any solid, liquid or gaseous substance present in such concentration as may be, or may tend to be injurious to the environment. Hazardous substances’ include any substance or preparation which may cause harm to human beings, other living creatures, plants, micro-organisms, property or the environment.

The Act provides for severe penalties. Any person who fails to comply with or contravenes any of the provisions of the Act. or the rules, orders, or directions issued under the Act shall be punished, for each failure or contravention, with a prison term of up to five years or a fine of up to Rs. l lakh, or both. The Act imposes an additional fine of up to Rs. 5,000 for every day of continuing violation. If a failure or contravention occurs for more than one year after the date of conviction, on offender may be punished with a prison term which may extend to seven years.

The Parliament has enacted various legislations for the protection of environment, pollution and maintains the ecological system of our nature, such as even in pre-independent era environment pollution was regulated by general laws viz: I.P.C. 1860, Cr.P.C. 1898 and Police Act 1861 having relevant provisions dealing with control of water, air, noise pollution and nuisances. Whereas, water pollution was controlled mainly by the North canal and Drainage Act 1873, and the Obstruction of Fair Way Act 1881, Air Pollution Control Provisions were contained in the Oriental Gas Company Act 1957, Explosives Act 1884, Indian Boilers Act 1923, The Petroleum Act 1934, Poison Act 1919, The Environment (Protection) Act 1986, Air (Prevention and Control of Pollution) Act 1981, The Water Cess Act 1977, The water (Prevention and Control of Pollution) Act 1974, The Bhopal Gas Leak Disaster (Processing of Claims) Acts 1985, The Public Liability Insurance Act 1991, The Wild Life (Protection) Act 1972, The Forest (Conservation) Act 1980, The Indian Forest Act 1927 The National Green Tribunal Act 2010 but the implementation of these laws couldn’t achieved the require result, it may be a failure of our function & functionary. But it can get the require result with the aid of “Strong Political Will of the State” and NGOs can play the vital role for awareness of environment and pollution free atmosphere among the common peoples.

(3) The Environment Protection: Cr. P. C & I. P. C.
The question whether the SDM was justified in passing order for closure of factory on the ground of causing pollution. Andhra Pradesh High Court in the case of Nagarjuna Paper Mills Ltd. V. S.D.M & R.D. Officer, has held that the Water Act 1974 has not taken away the power of Sub-Divisional Magistrate under Section 133 of Cr. P.C to close a factory causing pollution when appreciation certificate is not produce. The remedy under Section 133 of Cr. P.C is a quick and injunctive relief to the aggrieved party but the case may come within the purview of public nuisance under Section 133 of Cr. P.C and not for private nuisance which can be adjudicated before the Civil Court.
It is clear that Section 133 of the Code of Criminal Procedure, 1973 deals with the public nuisance. On the other hand the Air (Prevention and Control of Pollution) Act, 1981 was enacted by the Parliament under Article 252 (1) of the Constitution, however, after securing enabling resolutions from 12 States. The said Act, 1981 represents an Human Environment held at Stockholm in 1972. The executive functions of the Air Act are performed by the State Pollution Control Boards, as delegation of executive functions is permitted by Article 258 (2) of the Constitution. By virtue of Article 258 (3) of the Constitution, the Central Government is under Constitutional obligation to compensate the States for the cost of carrying out the delegated functions.

The issue was raised before the Rajasthan High Court whether the provisions of the Air Act, 1981 operate to impliedly repeal the provisions of Section 133 of Cr. P.C in the case of Lakshmi Cement V. State, wherein the State Pollution Control Board having rejected the consent application directed the company to stop its operations. This direction was issued prior to the introduction of Section 31-A of the Air (Prevention and Control of Pollution) Act, 1981 which was brought into effect from 1st April 1988 and the Board endorsed a copy of the latter to the District Collector requesting to take administrative action against the company/factory. The District Collector forwarded the latter to the Magistrate who passed an order under Section 133 of Cr. P.C requiring the company/factory to abate the public nuisance. By the time High Court has decided the company’s petition challenging the Magistrate’s order, the petition was regarded infructuous on account of subsequent events. The State Pollution Control Board has issued a provisional consent to the company immediately after the Magistrate’s order and company installed air pollution control equipment which brought down the emissions within the prescribed limits. The Rajasthan High Court while allowing the petition to “secure the ends of justice” and since the menace of the public nuisance had long abated, the High Court rejected the company’s plea that Section 133 of the Code stood impliedly repealed by passage of the Air (Prevention and Control of Pollution) Act, 1981.

I.P.C. and Protection of Environment

The provisions under Sections 268 to 294-A of the Indian Penal Code dealing with an environment problems however, certain sections of the I.P.C, are concern with the matters of public nuisance, negligent/malignant act likely to spread infection of disease dangerous to life, adulteration of drugs/foods, fouling of water of public spring or reservoir, making atmosphere noxious to health and punishment for public nuisance are embodied in the chapter XIV of the Indian Penal Code.

The public nuisance is also called common nuisance. It is annoyance which affects the public and is an actual annoyance to all the subjects. To amount a public nuisance there must be an act or an illegal omission. It is not mandatory that the act should be illegal. However, as soon as an act becomes a nuisance, it becomes illegal not because it is ‘per se’ illegal, but because it has an injurious effect upon and is not tolerable to the public.

The Section 269 of I.P.C contains the provisions about the punishment of the Offence related to spread infectious diseases by any person in the society. The infectious diseases are cholera, plague and small-pox etc. However, such person must have knowledge that his action was likely to spread infectious diseases. Where a man was suffering from cholera and was aware of its infectious nature, travelled by train without informing the railway authorities of his condition, it was held that he was responsible for spreading infectious of cholera.

The Section 270 of I.P.C is the aggravated form of the offence punishable under the last Section. The word “malignantly denotes a deliberate intention to cause intention of any disease on the part of accused.

The Section 272 of I.P.C says that a person who mixes harmful ingredient in food or drink shall be punished under this section. Mere adulteration with harmless ingredients for the purpose of getting more profit is not punishable under this Section e.g. mixing water with milk or ghee with vegetable oil. Similarly Section 278 of I.P.C provides punishment for making atmosphere noxious to heath and affects the health of the public at large.

(4) The Environmental Laws: A Judicial Approach
The Supreme Court has held that every attempt should be made to preserve the fragile ecology of the forest areas and to protect the tiger reserve and the right of tribal in the State of M.P. Hence, it is a landmark decision of Apex Court to protection of deforestation of our Jungles.
In the case of Supreme Court has recognised the importance of pollution free environment and gave it the status of a human right.

In the case of Supreme Court held on the facts that discharge of smoke from the chimneys of the plant, was not causing pollution. The petitioner samithi alleged that the Junjunwala Oil Mills and Refinery Plant located in the green belt area was causing environmental pollution due to the emissions of smoke and dust from the chimneys of the mill and effluents discharged from the Plants. The petitioner prayed for necessary direction. The Apex Court having considered the facts and circumstances, the nature of allegations and the long history of enmity and animosity between parties, expressed the opinion that there was no conduct on the part of the respondent to attribute pollution of air or ecological imbalance calling for interference by the Court. The petition was held devoid of any merit. Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India. Anything which endangers or impairs, by conduct of anybody either in violation or in derogation of laws, that quality of life and living is entitled to be taken recourse of Article 32 of the Constitution.

The Supreme Court has enunciated the doctrine of “Public Trust”, based on the legal theory of the ancient Roman Empire. The idea of this theory was that certain common properties such as rivers, seashores, forests and the air, were held by the Government in trusteeship for the free and unimpeded use of the general public. The resources like air, sea, waters and the forests have such a great importance to the people as a whole, that it would be totally unjustified to make them a subject of private ownership. The concept “environment” bears a very close relationship to this doctrine. The doctrine enjoins upon the resources for the enjoyment of the general public, rather to permit their use for private ownership or commercial purposes. It was thus held that the State Government committed breach of public, by leasing the ecologically fragile land to the Motel management.

Right under Article 19 (1) (g) of the Constitution is not an absolute right but it is subject to suspension/restriction/prohibition. Thus, it is clear that a licence to carry on activities of traders doing business of gunny bag can be cancelled on account of creating nuisance. Hence, the right of the petitioner to carry on business in old and used gunny bags cannot be said to be absolute.

The chemical or other hazardous industries which are essential for economic development may have to be set up. But measures should be taken to reduce the risk to the community by taking all necessary steps for locating such industries in a manner that would pose the least risk or danger to the community and for maximizing safety requirements in such industries. The Supreme Court directed the High Court to set up Green Bench.

The Supreme Court has directed the Union of India and University Grant Commission to take appropriate steps immediately to give effect to the guidelines laid down by the Court, i.e., requiring the Universities to prescribe the course on environment. They would consider the feasibility of making this a compulsory subject at level in college education. So far as every State Govt. and every Education Board connected with education up-to the matriculation stage or even intermediate College to immediately take steps to enforce compulsory on environment in a graded way.
The Supreme Court has held that the material resources of the community like pounds, forests and mountains etc., are bounty of nature. They are responsible for maintaining ecological balance all over. Therefore, they need to be protected for proper and healthy environment which enables people to enjoy quality of life which is the essence of the guaranteed right under Article 21 of the constitution. Thus, the Govt. and its agencies are under constitutional obligation itself provides concept and object for protection and improvement of environment then an Act to provide for the protection and improvement of environment and for matters connected therewith, cannot be said to be unconstitutional in any way.

The “precautionary principle” requires the State to anticipate and attack the causes of environmental degradation.

Conclusion
To wind up our discussion made so far, it would be well in point to recapitulate the following essential things around which this work has been spinning.
In the present day globalization era, the theory “Social Engineering” Propounded by Roscoe Pound says: The policy of Law makers, town planner, developers of industrial sectors in such a manner, it should be satisfying the maximum wants, or desires, or claims of the human beings with minimum waste, means a balance between the competing interests in the society”. In fact industrialization plays vital role in our economy & commerce and also generate employment opportunities to our youth generations but keep in mind an environmental factor also. So, sustainable development is the need of an hour and it would helpful to maintenance of environmental factor and ecological balance should be maintained. Natural resource may be utilized as small as and policy makers must plans industrialization & urbanization policy in such a manner to protect & improve the environment & pollution free atmosphere in order to preserve the fertile lands and industrial township can be set up in non-fertile lands. So, Green belt to be developed for the progress of oxygen from trees and policy-makers may plan their in such a manner to provide an opportunity to the farmers to develop the groves & orchards due to creation oxygen to our lungs and control of pollution.

Author: Faisal Ali Khan

Disclaimer:  This Article Has been Published in Legal Desire International Journal on Law, ISSN 2347-3525 on Page no 13 and Issue no. 8th

The post Environmental Law and its Implementation in India; A Judicial Role with Special Reference to CrP.C. appeared first on Legal Desire Media and Insights.

The Healthy Environment is the comprehensive term encompassing all such natural and biotic factors that make possible to entertain Right to life in true spirit. The environment furnishes all essentials for life and so there has been a close link between the environment and human beings. Without a natural and congenial environment, human existence is not possible on earth. Since time immemorial, the man had made conscious and determined efforts to make use of the natural resources and to modify his surroundings so that the adverse impact caused by extremes of temperature rainfall and predators may be reduced. In the quest of making life more comfortable the man has always exploited the nature. Agriculture, industrialization and infrastructural developments are the causes of exploitation of natural resources. Human activities create a variety of wastes and bye-products which accumulate over a period of time and may become toxic to the naturally growing plants, animal and the mankind. Indiscriminate use of fertilizers and pesticides has added to the problem. The rapid and unplanned industrialization has given birth to factories emitting noxious gas fumes and toxic effluents, making life more difficult on earth. These things are constantly causing damage to environment. It is also the duty of the state to protect the environment as embodied under article 48-A, 39 (e) and 47 of the Indian Constitution. So in order to deal with these ever-growing problems, many acts have also been enacted by the parliament but it is a court which always keeps a check on proper implementation of these enactments and judiciary had played an important role in interpreting the laws to protect the environment.

It has been recognized to be inseparable part of Right to Life under Article 21 and well established if we take into account some other provisions of the constitutions.

At the turn of the present century, when world started to encounter the ill-effects of industrialization, “Right to live in Healthy Environment” gained importance.

The Indian Judiciary, the custodian of constitution, has been giving beacon light for such valuable Right while interpretation the constitution in positive manner. Judicial Chronology is full of landmark decisions, which embarked upon that Right to life far exceeds mere breathing and walking and developed Environment Jurisprudence. Judiciary plays the vital role in the protection of environment. One of the main developments in the Indian Judiciary is the Public Interest Litigation (PIL). It is the new jurisprudence and is called “Jurisprudence of Masses”. It is started in the year 1970. Writ petitions in the form of PILs have been accepted by the High Court’s under Article 20, Article 47, Article 32 is right to constitutional remedies and Article 226 (Power of High Courts to issue certain writs) of the Indian Constitution. The PILs got constitutional sanction in the 42nd Constitution Amendment Act 1974, which introduced Article 39-A in the Indian Constitution to provide equal justice and free legal aid. The PIL encouraged the affected individuals (affected by any project), public minded individuals, voluntary organizations, NGOs; Judges on their own, to start without paying any court fees. Due to PILs, many landmark judgments are published. Many authorities are observing the works of the Govt., whether court orders of PILs are carrying out or not. PIL of court indicates a person, authorities or Govt., to work morally. he Supreme Court and the High Courts have been entertaining environmental petitions under Articles 32 and 226 of the Indian Consti­tution as constituting violation of Article 21. While entertaining environ­mental litigations by environmental NGOs and enlightened public figures like M.C. Mehta, these courts have passed landmark judgments, thereby forcing public bodies to take action on burning environmental issues.

Judicial activism in the field of environmental protection has been applauded by people like M.C. Mehta, Satyaranjan Sathe, Justice Kuldeep Singh and Justice Ashok Desai. However, it is important to note that judicial activism has serious limitations, and executive laxity and unconcern towards environment cannot be made good just by judicial activism. Judicial activism cannot make good laxity in the enforcement of environ­mental laws. There can be no substitute for a check on the executive by a vigilant public and a people’s movement to save the environment.

Provisions of Indian Constitution relevant to Environment:

Article 47” Duty of the State to raise the level of nutrition and the standard of living and to improve public health The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

Article 48 A “Protection and improvement of environment and safeguarding of forests and wild life The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

Article 51A (g) “to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

Article 253 “Legislation for giving effect to international agreements Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body

Article 246 “ Subject matter of laws made by Parliament and by the Legislatures of States:(1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List) (2) Notwithstanding anything in clause ( 3 ), Parliament, and, subject to clause ( 1 ), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List) (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List

Article 32 “Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

Article 226” Power of High Courts to issue certain writs (1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo-warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose (2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories

Important Interpretation of Constitution vis-à-vis Health & Environment by Judiciary:

1. The Supreme Court of India recognized Water and air is inalienable part of “life” under Article 21 of the Constitution in the case of Subhash Kumar Vs State of Bihar. This was almost first step in the direction of constitutional interpretation for the protection of healthy environment for life.
2. Supreme Court of India in case of Rural Litigation and Entitlement Kendra, Dehradun Vs State of UP that protection and safeguarding the rights of the people to live in healthy environment has to be done even it has some economical cost.
3. While explaining the importance of environment and health aspect of life in case of Vellore Citizens’ case, Judges have formulated the concept of Sustainable Development for the first time in Environmental Jurisprudence in India.
4. The Supreme Court of India, while incorporating certain features into fundamental right of Right to life and Liberty through wide interpretation, had developed some important principles, which were necessary to ensure atmosphere for Right to live in healthy environment.
5. Polluter Pays Principal– it supports a remedial methodology which is concerned with repairing natural harm. It’s a rule in international environmental law where the polluting party pays for the harm or damage done to the natural environment. It was made part of constitutional ruling in case of Vellore Citizen’s Welfare Forum v. Union of India.
6. Precautionary Principle-Environmental measures must anticipate, prevent and attack the causes of environmental degradation Lack of scientific certainty should not be used as a reason for postponing measures.
7. Public Trust Doctrine– The Public Trust Doctrine primarily rests on the principle that certain resources like air, water, sea and the forests have such a great importance to people as a whole that it would be wholly unjustified to make them a subject of private ownership. It was established in case of M.C. Mehta Vs Kamalnath & Others
8. Doctrine of Sustainable Development– Supreme Court observed that sustainable development has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco- system in Vellore Citizens’ case and RLEK, Dehradun case.
9. Fundamental right of Water– In Narmada Bachao Andolan v. Union of India and Ors., the Supreme Court of India upheld that “Water is the basic need for the survival of human beings and is part of the right to life and human rights as enshrined in Article 21 of the Constitution of India.
10. Compensation to Victim of Environmental degradation- The power of the Supreme Court to grant remedial relief for a proved infringement of a fundamental right (in case if Article21) includes the power to award compensation. In Delhi gas Leak case “no fault” liability standard (absolute liability) was introduced for industries engaged in hazardous activities which have brought about radical changes in the liability and compensation laws in India.
11. In Charan Lal Sahu case, Supreme Court had said that the right to life guaranteed by Article 21 of the Constitution includes the right to a wholesome environment. The Court resorted to the Constitutional mandates under Articles 48A and 51A(g) to support this reasoning and went to the extent of stating that environmental pollution would be a violation of the fundamental right to life and personal liberty as enshrined in Article 21 of the Constitution
12. where an enterprise is occupied with an inherently dangerous or a hazardous activity and harm results to anybody by virtue of a mishap in the operation of such dangerous or naturally unsafe movement coming about, for instance, in getaway of poisonous gas, the enterprise is strictly and completely obligated to repay every one of the individuals who are influenced by the accident and such risk is not subject to any exemptions. Accordingly, Supreme Court created another trend of Absolute Liability without any exemption.(Bhopal Gas Tragedy case Judgment)
13. Environmental damage will be considered as Public Nuisance and duty is cast upon public authorities to help mitigate the effect of nuisance through Public Interest Litigation as strong medium. (Ratlam Municipal Council v. Vardhichand)
14. As a part of Environment education, Supreme Court in M.C. Mehta case   directed the Union Government was obliged to issue directions to all the State governments and the union territories to enforce through authorities as a condition for license on all cinema halls, to obligatory display free of expense no less than two slides/messages on environment amid each show.

.

Indian Judiciary’s role in development of Environmental Jurisprudence –

Professor Upendra Baxi, who has often supported the judicial activism in India, has also said that the “Supreme Court of India” has often become “Supreme Court for Indians”. Many observers of the Indian Supreme Court including Professor Sathe and Baxi have rightly opined that the Indian Supreme Court is one of the strongest courts of the world. Power and judicial activism of the Indian courts have resulted into a strong and ever expanding regime of fundamental rights. Stockholm Conference on Human Environment, 1972, has generated a strong global international awareness and in India it facilitated the enactment of the 42nd Constitutional Amendment, 1976. This amendment has introduced certain environmental duties both on the part of the citizens [Article 51A (g)] and on the state (Article 48-A).

Under the constitutional scheme the legal status of Article 51(A)-(g) and 48-A is enabling in nature and not legally binding per se, however, such provisions have often been interpreted by the Indian courts as legally binding. Moreover, these provisions have been used by the courts to justify and develop a legally binding fundamental right to environment as part of right to life under Article 21.[1] Hereinafter, an effort has been made to demonstrate that how both the ‘soft’ and ‘hard’ international environmental laws have been used by the Indian courts to develop a strong environmental jurisprudence in domestic law. The deemed Second Period of Judicial Adoption (1985-1995) was of  growing Influence of International Environmental Law globally as well as on national level. During this period international environmental law was used to interpret the character of state obligations with respect to the right to life (Article-21), which has been interpreted to include the right to a healthy and decent environment. Before 1996 there were very few references to international environmental treaties though by 1990 India was party to more than 70 multilateral treaties of environment significance .In Asbestos Industries Case[2] the Supreme Court extensively quoted many international laws namely ILO Asbestos Convention, 1986, Universal Declaration of Human Rights, 1948, and International Convention of Economic, Social and Cultural Rights, 1966. In this case the court dealt the issues relating to occupational health hazards of the workers working in asbestos industries. The court held that right to the health of such workers is a fundamental right under article 21[3] and issued detailed directions to the authorities.[4] In Calcutta Wetland Case[5] the Calcutta High Court stated that India being party to the Ramsar Convention on Wetland, 1971, is bound to promote conservation of wetlands.

Important disposal off Environmental cases by Indian Judiciary-

• Sanitation in Ratlam: In a landmark judgment in 1980, the Supreme Court explicitly recognized the impact of a deteriorating urban environment on the poor. It linked basic public health facilities to human rights and compelled the municipality to provide proper sanitation and drainage
• Doon valley quarrying: In 1987, the Rural Litigation and Entitlement Kendra, on the behalf of residents of the Doon valley, filed a case in the Supreme Court against limestone quarrying. This case was the first requiring the Supreme Court to balance environmental and ecological integrity against industrial demands on forest resources. The courts directed the authorities to stop quarrying in the Mussoorie hills
• Gas leak in Shriram factory: In the historic case of the oleum gas leak from the Shriram Food and Fertilizer factory in Delhi, in 1986, the Supreme Court ordered the management to pay compensation to the victims of the gas leak. The “absolute liability” of a hazardous chemical manufacturer to give compensation to all those affected by an accident was introduced in this case and it was the first time compensation was paid to victims.
• Construction in Silent Valley: In 1980, the Kerala High Court threw out a writ filed by the Society for the Protection of the Silent Valley seeking a ban on construction of a hydro-electric project in the valley. However, despite an unfavorable judgment, active lobbying and grassroots action by environmentalists stopped the project.
• In 1985, activist-advocate M C Mehta filed a writ petition in the Supreme Court to highlight the pollution of the Ganga by industries and municipalities located on its banks. In a historic judgment in 1987, the court ordered the closure of a number of polluting tanneries near Kanpur. Justice E S Venkataramiah, in his judgment, observed: “Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence.”
• Mining in Sariska: A writ petition was filed in the Supreme Court in 1991 by the Tarun Bharat Sangh to stop mining in the Sariska wildlife sanctuary. The court banned mining in the sanctuary
• Against vehicular pollution in India the Supreme Court delivered a landmark judgment in 1992. A retired Judge of the Supreme Court was appointed along with three members to recommend measures for the nationwide control of vehicular pollution. Orders for providing Lead free petrol in the country and for the use of natural gas and other mode of fuels for use in the vehicles in India have been passed and carried out. Lead-free petrol had been introduced in the four metropolitan cities from April 1995; all new cars registered from April 1995 onwards have been fitted with catalytic convertors; COG outlets have been set up to provide CNG as a clean fuel in Delhi and other cities in India apart from Euro 2 norms. As a result of this case, Delhi has become the first city in the world to have complete public transportation running on CNG.
• In the State of Himachal Pradesh, Span motel, owned by the family members of Shri Kamal Nath, Minister for Environment and Forests, Govt. of India diverted the Course of river Beas to beautify the motel and also encroached upon some forest land. The apex court ordered the management of the Span motel to hand over forest land to the Govt. of Himachal Pradesh and remove all sorts of encroachments.
  The Court delivered a land mark judgment and established principle of exemplary damages for the first time in India. The Court said that polluter must pay to reverse the damage caused by his act and imposed a fine of Rs Ten Lakhs (Rs 10,00,000) on the Span motel as exemplary damages. The Supreme Court of India recognized Polluter Pays Principle and Public Trust Doctrine.
• Despite Coastal Zone Regulation Notification of February 1991, none of the coastal states had formulated coastal zone management plan, with the result that haphazard construction and industrial activity was being permitted anywhere in the coast leading to large scale damage to coastal ecology and loss of livelihood to lakhs of fishermen and other indigenous communities dependent on marine resources. A writ petition was filed on behalf of Indian Council for Enviro- Legal Action (ICELA) and the Supreme Court delivered a landmark Judgement banning industrial/ construction activity within 500 mtrs of the High Tide Line and set a time limit for the coastal states to formulate coastal management plans.
• Many more such cases could be added from the history of Indian Judiciary who is most vocal in support of Environment and healthy life than other pillars of Indian Democracy. They have capitalized the provisions mentioned in the constitution itself while taking advantage of cardinal principles of International treaties and conventions.

Reasons for Judicial Activism in protection of Environment:

The year 1972 holds significance for the Environment Jurisprudence as it has changed the course of action altogether. The Stockholm conference is milestone from where this country and other developing countries had to look environment from different perspective.  United Nations Conference on the Human Environment, having met at Stockholm from 5 to 16 June 1972, having considered the need for a common outlook and for common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment. They have set some illuminated and cardinal principles to be observed while interacting with nature for man-made development. At the end of the summit, following principles were adopted-

1. Human rights must be asserted, apartheid and colonialismcondemned
   2. Natural resources must be safeguarded
   3. The Earth’s capacity to produce renewable resources must be maintained
   4. Wildlife must be safeguarded
   5. Non-renewable resources must be shared and not exhausted
   6. Pollution must not exceed the environment’s capacity to clean itself
   7. Damaging oceanic pollution must be prevented
   8. Development is needed to improve the environment
   9. Developing countries therefore need assistance
   10. Developing countries need reasonable prices for exports to carry out environmental management
   11. Environment policy must not hamper development
   12. Developing countries need money to develop environmental safeguards
   13. Integrated development planning is needed
   14. Rational planning should resolve conflicts between environment and development
   15. Human settlements must be planned to eliminate environmental problems
   16. Governments should plan their own appropriate population policies
   17. National institutions must plan development of states’ natural resources
   18. Science and technology must be used to improve the environment
   19. Environmental education is essential
   20. Environmental research must be promoted, particularly in developing countries
   21. States may exploit their resources as they wish but must not endanger others
   22. Compensation is due to states thus endangered
   23. Each nation must establish its own standards
   24. There must be cooperation on international issues
   25. International organizations should help to improve the environment
   26. Weapons of mass destruction must be eliminated.

The Government of India was though signatory at later stage but strong votary of protection as agreed upon. Post 1972 , The National Governments had pursued the development path in much vigor and command but less interested in protection of environment and ecology. Somewhere around 1982, concept of Public Interest Litigation was gaining importance due to recognition given by Honorable Judge like P.N. Bhagvatiji. Government had made no comprehensive plan, lay out of industrialization and on the other hand , vested groups had eye on green lands and cheap natural resources without taking any ethical and social responsibility against those communities who protected and maintained such valuable ecological balance. Supreme Court of India came to the rescue for the plights of those people who either had to migrate to some other places due to minning or industry or were facing the ill effects of any activity. Before the Pro-active role of Indian Judiciary, Government had no mechanism to deal with such situations. No comprehensive law existed prior to 198. Environment Protection Act came into existence in 1986 after 14 years of Stockholm Conference. Though Water Act, 1974 and Air Act, 1981 were there but they were in sufficient to deal with.

Indian Judiciary, especially, Supreme Court of India had consolidated the environment Jurisprudence on case to case basis and developed some outstanding principles to be followed by lower courts while dealing environment cases. They have tried to fill the vacuum created by legislature and paralyzed by administrative machinery. Indian Judiciary have got the necessary impetus from Civil Society’s activism in environment protection, some stalwarts like M.C. Mehta, International Conventions like Earth Summit, Kyoto Summit, which maintained the focus of such issues among the business of the Governments.

The interpretation by the Indian Judiciary in favor of marginalized people while counting protection of environment as investment by the community live by the side of nature and entrepreneur has to share economic fruits with those communities as ecological balance contributed the industrial output also. Such strong ethical and legal backing provided by Indian Judiciary has modeled the whole Environment movement in India and now they are leading the world. Indian Environment jurisprudence shaped by and large by the Indian Judiciary within the Indian Constitution is major achievement after Stockholm conference. Many more things yet to be done and many strictures, comments and orders have yet to be followed by different governments in this country.

The failure of the state agencies to effectively enforce the environmental laws apart from non-compliance with statutory norms by the polluters resulted into further degradation of the environment which has affected the health of the people and forced the environmentalists and the residents of polluted areas as well as the non-governmental organizations to approach the judiciary, particularly the higher judiciary, for the suitable remedies. Of course the initiative for the protection of environment came from the legislature but the failure of the executive to implement the environmental laws in India created the ground for the intervention of the judiciary.

The judiciary made several attempt to resolve the conflict between the development and environment. The environmental jurisprudence in India developed through the instrument of Public Interest Litigation (PIL). Under the PIL, the judiciary liberalized the concept of locus standi and thereby empowered the people to approach the judiciary when the public interest is harmed by either the action of the state, organization or individual. Unique feature of the Indian environmental jurisprudence is the important role played by the PIL. The activism of the higher judiciary regarding the cases related with violation of environment and human rights has acquired the name of judicial activism. The Supreme Court has not only played a leading role in the implementation of environmental laws but also interpreted the right to life under Article 21 to include a right to healthy and pollution free environment, as a fundamental right.

 Conclusion:

Government of India as well as State Government have now started to chart out the plans sector wise, lay out was drafted, guidelines being issued, compliance report is being submitted to Higher courts regarding steps taken by them to ensure the standard of environment protection.

After Independence, if anything that was single handedly covered and regulated by Judiciary is, Environment protection. Judges have taken it very seriously and observations were not made but compliance was closely watched till it is done in letter and spirit.

Environmental law has seen considerable development in the last two decades in India. Most of the principles under which environmental law works in India come within this period. The development of the laws in this area has seen a considerable share of initiative by the Indian judiciary, particularly the higher judiciary, consisting of the Supreme Court of India and the High courts of states. PIL has proved to be an effective tool in the area of environmental protection. The Indian judiciary adopted the technique of public interest litigation for the cause of environmental protection in many cases. The basic ideology behind adopting PIL is that access to justice ought not to be denied to the needy for the lack of knowledge or an finances. In PIL, a public spirited individual or an organization can maintain petition on behalf of poor and ignorant individuals. Due to PIL, the court indicated contractors of indiscriminate mining operations which had disturbed and destroyed ecological balance and ordered for their closure in the interest of protection of natural environment and conservation of natural resources for public health. The Supreme court recognized several unarticulated liberties which were implied in Article 21 of the constitution like the right to free legal assistance and the prisoners to be treated with dignity were recognized as part of fundamental right. Supreme Court also interpreted the right and personal liberty to include the right to wholesome environment. The most important achievement of the Indian constitution is the constitutionalism of the environmental problems by the apex court. Before the year of 1980, there were legislation about control of environmental pollution but little had been done to really make pollution control. But in the present time the Supreme Court of India expand the meaning of environmental Right. The Supreme Court is making interpretations which led to the creation of new rights. Eventually under Article 21, this court has created new rights including the right to health and pollution free environment.

References

1. ROLE OF THE JUDICIARY IN ENVIRONMENTAL PROTECTION Dubey Amit* and Tiwari B.K. Department of Law, Barkatullah University, Bhopal (INDIA)
2. The Role played by Indian Judiciary in Environment Protection by  Supriya Guru
3. The Role of Indian Judiciary in protection of Environment in India by Atisha Sisodiya, Christ University
4. Contents on Indianenvironmentalportal.org.in
5. Principles of International Environmental Law and Judicial Response in India by Dr.S.K. Gupta
6. Constitutional Provisions related to Environment Conservation by Binod Prasad Sharma
7. UN report on United Nations Conference on the Human Environment 1972 Stockholm.
8. Environmental jurisprudence in India: A look at the initiatives of the Supreme Court of India and their success at meeting the needs of enviro-social justice by Debadyuti Banerjee
9. Judicial Activism and Environmental Jurisprudence in India: written by Shri Rohan Bagai
10. Judicial Activism for Environment Protection in India Mahajan Niyati Graduate School of Social Sciences, Waseda University, Tokyo, JAPAN
11. IMPLICATIONS OF INDIAN SUPREME COURT’S INNOVATIONS FOR ENVIRONMENTAL JURISPRUDENCE by Geetanjoy Sahu for LEAD Magazine.
12. https://en.wikipedia.org/wiki/United_Nations_Conference_on_the_Human_Environment

 By: Mr. Arvind Kumar Singh,

       He is Senior Auditor in CAG office at Mumbai

The post Role of Judiciary in Environmental Protection appeared first on Legal Desire Media and Insights.

Introduction

                                                 “The basic insight of ecology is that all living things exist in interrelated systems; nothing exists in isolation. The world system is weblike; to pluck one strand is to cause all to vibrate; whatever happens to one part has ramifications for all the rest. Our actions are not individual but social; they reverberate throughout the whole ecosystem”[1].

Over the years there is a brawl between technological advancement of a country at the cost of environment. After the independence of India, the main concern of the economists was to strengthen the economy of the country and primarily to ensure safe drinking water and food for all.  The initial decades were devoted to the development of agrarian societies only but later on it was felt that it is not possible to stand among strong economies of the world without devising the means for self-development. Import of technologies from developed countries was costing too much for a developing country and so, the thought shifted to the industrial and technological development of India. At that time for the sake of self-help and industrialization resources of the country were exploited without any thought of the future but globally the whisper about the concept of “sustainable development” was started and same drew the attention of India. Sustainable development simply means the thoughtful use of resources, considering the future generations without compromising the need of today. It was in 1970s that for the first time the United Nations Conference on the Human Environment held in Stockholm brought the industrialized and developing nations together to delineate the ‘rights’ of the human family to a healthy and productive environment. Thereafter, in 1992, 1997, 2002 and 2009 conferences were organized worldwide to streamline and analyze the concept of sustainable development and environment protection.  Earlier only Article 21 was considered as protector of environment as judicial precedents proved that this right directly flows from right to life. However, it was in 1976 only when 42^nd amendment was introduced in the Indian Constitution and protection of environment was made as a Directive principle for state policy under Article 48A[2] and a fundamental duty under Article 51A(g)[3]. Today protection of environment is fundamental duty of every citizen as well as Directive principle for the State. It cannot be denied that exploitation of resources is necessary for the development of the country but planned, systematized and only necessary exploitation is our main concern today. Since independence many legislative framework came into existence and shape like The Water (Prevention and Control of Pollution) Act, 1974, The Wild Life (Protection) Act, 1972, Forest (Conservation) Act, 1980, The Air (Prevention and Control of Pollution) Act, 1981, The Environment (Protection) Act 1986 and many more. All such enactments provide for protection of a particular resource of the country but they all lacks in execution of the guidelines mentioned there. So, there was a constant demand of strong execution machinery, in fact machinery which can adjudicate as well as execute such adjudication. Although under most of the above-mentioned Acts there is a mention of Central pollution control board and State pollution control board but they were mere industry set up clearance gateways and not an adjudicatory authorities in true sense. They are basically established to check local conditions suitable for an industry and works with the appropriate government. There are many precedents where Supreme Court emphasized on the need of special courts for the environment issues. Environment is one such issue sensitized where matter cannot be adjudicated without the help of experts. In case of M. C. Mehta v. Union of India[4], the court observed that “Environment Court” must be established for expeditious disposal of environmental cases. Same point was reiterated in case of A.P. Pollution Control Board v. M.V. Nayudu[5] and Indian Council for environment legal action v. Unioin of India[6].  Responding to the Hon’ble Supreme Court, Indian parliament has passed two Acts namely National Environment Tribunal Act, 1995 and National Environment Appellate Authority Act, 1997[7]. However, these two Acts proved as dead letter and a non-starter. These two tribunals were not efficient to handle sensitive matters of environment and economic development.   Closure of these tribunals created a judicial vacuum as there was no forum for new cases, and the pending cases were left in limbo.  At that time if a case pertaining to the subject of environment came up before the court then the court hesitated in imposing penalty on the polluter because of lack of knowledge on the subject and so no question can be raised about the imposition of the penalty pre-hand on basis of precautionary principle. Thus, in case of  Charanlal Sahu v. Union of India[8] the court opined that “under the existing civil law damages are determined by the civil Courts, after a long drawn litigation, which destroys the very purpose of awarding damages so in order to meet the situation, to avoid delay and to ensure immediate relief to the victims, the law should provide for constitution of tribunal regulated by special procedure for determining compensation to victims of industrial disaster or accident, appeal against which may lie to this Court on the limited ground of questions of law only after depositing the amount determined by the tribunal.” By that time it was well understood that environment courts would require not only professional judges but also experts on the concerned subject. So, the law commission has conducted a study of foreign environment courts especially of a Australia and New Zealand and prepared a report recommending that special courts on environment must be sufficient to lessen the burden on Supreme court and High Court. They must have the power of civil court, and also have original and appellate jurisdiction. Along with this special courts must take the jurisdiction under the existing legislations so, that there cannot be overlapping of jurisdiction in any case. After a long deliberation in both houses finally an Act came into shape which was named as “National Green Tribunal Act, 2010” w.e.f 18.10.2010. This tribunal is quasi-judicial body and blend of powers of civi
l and criminal courts in many respects. Today, the principal bench is sitting in Delhi and other four benches are in Bhopal, Chennai, Kolkatta and Pune. Now, since the NGT is entrusted with the task of adjudication under the eight Acts mentioned in the I schedule which covers The Water (Prevention and Control of Pollution) Act, 1947; The Water (Prevention and Control of Pollution) Cess Act, 1947; The Forest ( Conservation ) Act, 1980; The Air ( Prevention and Control of Pollution) Act, 1981; The Environment (Protection) Act, 1991; The Public Liability Insurance Act, 1991; The Biological Diversity Act, 2002. Further, Section 14 provides that it has jurisdiction over all civil cases pertaining to environment matters. In one of the interview[9] Justice Swatanter Kumar has stated that NGT must have suo moto powers in certain respect however same is not expressly provided under the Act but it is essential for its smooth functioning. In the past few years it has been noticed that the tribunal has exercised its suo moto powers. It is imperative to note that NGT has command over all resources of the country because in any of the environment matters it has undisputed jurisdiction.

NGT as custodian of natural resources:-

Natural resources are the assets of entire nation and NGT are the custodian of all natural resources. Government has taken many steps to protect flora and fauna of the country by protecting their natural habitat. And also it is the duty of every national under Article 51A (g) to protect the environment and to have compassion for living creature. In spite of this provision every time it is found that industries blatantly violated the rules and regulations. NGT has taken very stringent actions against the violator of laws. In case of Shobha Phadanvis v. State of Maharashtra Another[10], the question raised was about the conservation, preservation and protection of forests and the ecology where the forests were destroyed immensely and without prior permission of the authorities.  Tribunal has directed the forest authorities to continue the order of precautionary principle and to prepare a Disaster Management Plan (DMP) for protection of Forests. Tribunal observed that forests are a vital component to sustain the life support system on the earth. In case of Court on its own motion v. State of Himachal Pradesh Ors[11] , here the tribunal on its own motion took the cognizance of depleted forest area in state of Himachal Pradesh on account of increased and unregulated tourist and vehicular activities. Court was also engrossed towards solid waste management in the state. Court ensured that to ensure hygiene, cleanliness and natural beauty of the glacier, it is essential that no commercial activity of any kind is permitted at Rohtang Pass Glacier. It was further observed that high tourist activity, vehicular pollution and deforestation attributable to acts of emission require to be compensated, restored and maintained in a manner that there is minimum damage and degradation of the environment. Many directions were issued to the concerned authorities.

In case of M/S Assam Stone Crusher v. Rohit Choudhury & Ors[12], industries were illegally established in “No Development Zone”, in and around Kaziranga National Park. So, directions were sought for closure of such industries. Here the tribunal directed the central pollution control board to examine the conditions and to take final call on closure of industries. However, certain industries were directed to be closed which are in immediate vicinity of No Development Zone. In certain cases tribunal has decided matters by taking into considerations of employment of labors working there, financial condition of industry and need of local people. This view was taken because of the concept of sustainable development. For instance in case M/S Leela Textile. Exports v. State of Rajasthan and ors.[13], where the State of Rajasthan had handed over a piece of land to the Rajasthan State Industrial Development and Investment Corporation Limited (for short the “RIICO”) for the purpose of setting up an industrial area. Many industries were set up there without obtaining the permission of the state pollution control board and were discharging their effluents into the CETP without authorization. Tribunal aptly observed that “Keeping in view the principle of sustainable development, the peculiar facts and circumstances of the case and the time for which these industries have been in operation, we do not propose to direct their closure forthwith but would issue appropriate directions to enable them to operate while ensuring that there is no pollution.” In many cases tribunal has also applied the “a reasonable person’s test“, where life, public health and ecology have priority over unemployment and loss of revenue. Development and protection of environment are not enemies. Right to a clean and decent environment has been held to be a fundamental right, coupled with an obligation on the part of the State and the citizens. NGT has not hesitated in imposing huge penalty on big industry houses for example the tribunal has slapped a penalty of Rs. 25 crore on Adani-Hazira Port Pvt. Ltd (AHPPL) and its associate Hajira Infrastructure Pvt. Ltd for carrying out work at their Hazira-based port near Surat without acquiring environment clearance.  Thus, toady it cannot be denied that NGT is a custodian of resources and development of the country.

Role of NGT in daily life:-

NGT has not only decided matters of major industries but also of daily concerns which are of much importance for a common man for instance in case of Dileep B. Nevatia v. Union Of India & Ors[14] the main question arose of violation of the Noise Pollution (Regulation & Control) Rules, 2000 made under the provisions of the Environment (Protection) Act, 1986 by vehicles using multi- tone horns and sirens. It was also noticed in this case that no standard is also specified with regard to use of horns and sirens in the ambulances and Police vehicles. In the said order the Ministry of Road Transport & Highways was directed to notify the standards for sirens and multi-tone horns used by different vehicles either under Government duty or otherwise. In Pathankot Welfare Association v. State of Punjab[15] where NGT dealt with model action plan for solid waste by pronouncing it as general law. In case of Jeet Singh Kanwar v. Union of India[16], where petitioners challenged the grant of clearance certificate to an industry to establish coal fired power plant. Here the essential guidelines of EIA were flouted and had not been made available. Tribunal emphasized on precautionary principle and on that basis it was opined that clearance certificate should not be granted by MoEF and thus that order have to be quashed. In Vardhaman Kaushik v. Union of India[17], the Court took cognizance of the growing pollution levels in Delhi. It directed a Committee to prepare an action plan and in the interim, directed that vehicles more than 15 years old not be allowed to ply or be parked on the roads. There was much hue and cry on the decision of NGT and it was appealed before the Hon’ble Supreme Court where in November 2015 Chief Justice H L Dattu (as he then was) opined that we are trying to do something good for people. Let us assist them and not discourage them.  NGT was established with the aim of access of environmental justice to each and every person residing even in the remotest part of the country[18].

NGT creates a new regime of environment litigation:-

MC Mehta, a great environmentalist pioneered in the area of environment concerns in India but the creation of NGT also herald a new area for any person interested in protection of environment. On the question of need of representation by an advocate, NGT held that any person can approach the Tribunal to agitate a grievance relating to the protection and improvement of the natural environment as long as it isn’t a frivolous petition. Thus in case of Samata v. Union of India[19] , court has relaxed the concept of locus standi where wide range of person can be included in term “aggrieved person”.  This decision is crucial as it opens up the arena for environmental litigation to a much wider group of stakeholders. Any person who has reason to believe that a decision will have an adverse impact on the natural environment can approach the Tribunal. Further, it also important to mention that NGT surpasses the jurisdiction of High Court and appeal lies to Supreme Court. Thus, perhaps it is the only court of such nature which gives opportunity to any aggrieved person to seek equity and protect environment without much of hurdles. Today NGT is handling every matter in expeditious and expertise manner and focusing on ex debito justitiae i.e. in interest of justice only be it the matter of protection of sundarbans, management of e-waste or imposition of penalty on Sarpanch for felling trees. After examining the six years of working of NGT it can be said that is a quasi-judicial body which is constantly working and endeavoring towards safe environment.  In a short journey, NGT has proved that it is blend of epistemic qualities of an expert and professional knowledge of a judge which are essential for dealing in cases on environment. NGT has to deal with more serious issues in near future as world are setting new parameters to protect the environment and Paris agreement on climate change is one such example.

Author: Vini Kewaliya,Guest Faculty, Law at S.S. Jain Subodh Law College, Jaipur.

Disclaimer: This article has been published in “International Journal of Socio-Legal Analysis and Rural Development (ISSN: 2455 4049), page no. 18. No part of this publication may be reproduced or transmitted in any form by means, electronic, mechanical, recording or otherwise, without prior permission from Legal Desire. All Rights Reserved.

The post National Green Tribunal: a new mandate towards protection of Environment appeared first on Legal Desire Media and Insights.