lawyers in India

Environment: Ethics, Laws and its Conservation

Written by: Shubhya Pandey - Student Semester III, Hidayatulla National Law University, Raipur (C.G.) CGPA SEM 1: 5.26 RANK: 15th
Environment Law in India
Legal Service
  • Nature was created by one single creator .In this universe every single organism had its own identity, none other organism was in the situation to take place of another organism. Man has been interested in nature since time immemorial, but today he thinks himself to be the master of nature. On the other hand, nature tries to comprise with man and absorbs human onslaught in the form of waste material discharge, deforestation, intensive agriculture, desertification, urbanization etc. In the name of progress, forests are demanded, lakes poisoned with pesticide and air fouled with noxious gases.

    Our earliest ancestors lived in a rich and competitive world closely tied to environment. They knew the sources of water and use of plants and animals for food and indicial purposes. But the hunters and gatherers exploited the environment to fulfill their requirements, by cutting down trees resulting into great changes in grass and shrubs with the use of fire. However, they could not cause excessive damage to environment due to their low population, nomadic way of life and primitive technology. The domestication of plants and animals gave impetus to agricultural technology. Human population started increasing beyond the limits previously fixed by natural food supply.

    The development in machinery, fertilizers, pesticides and high yielding varieties caused unprecedented increase in agricultural productivity. Overgrazing, widespread destruction of forests and intensive agricultural practices demanded the land and converted productive regions to barren areas. It is thus, quite amazing to recall the change from hunter gathered economy to that of agriculture and industry that marked by the changed natural habitat. The shifting role of man in the environment placed heavy demand on air, water and natural resources.

    As man was trying to gain control over environment, the link between him and nature got weakened. It therefore became necessary to regulate human behavior and social transactions with new laws, designed to suit the changing conditions and values. In order to manage and face the myriad challenges of ever changing environment, the environmental laws emerged. But these laws are of no if not implemented or accepted by the society properly. Though government of India introduced plethora of legislations in the field of environmental law which directly or indirectly deals in environmental issues. Though there is bulk of legislations but this didn't had any impact on the condition of environment rather it deteriorated day by day. Therefore one would always think though there is plethora of legislations but why there is improvement in the condition of environment? As these laws had some inherent defects in it and lacked proper implementation.

    Environmental Ethics and Old Traditions:

    Our age old traditions teach us to live in peace and harmony with nature and to conserve it, as we all are creatures of one creator , and we don't have any right to harm, any of the living being in any manner as they are also one of the creations made by the almighty, this is taught to us since the very beginning of our civilization but as the civilization progressed we forgot everything and started thinking that we are the master of nature and everything in this world is made for us and we can utilize it, at any cost , as and when require, this is against our ethics and moral values.

    Since Vedic times the main motto of social life was to live in harmony with nature .Sages, saints and great teachers of India lived in forests, mediated and expressed themselves in the form of Vedas, Upanishads, Smritis and Dharma .Thus we can imply that all the divine thoughts and literature which served as ideal for living life and taught guidelines how to live life came up when these saints and great thinkers were in touch with the nature. This literature of Olden times preached in one form or the other a worshipful attitude towards plants, trees, mother earth, sky (akash),air (vayu), water(jal) and animals and to keep benevolent attitude towards them. It was regarded a sacred of every person to protect them. The Hindu religion enshrines a respect for nature, environmental harmony and conservation. It instructed man to show reverence of divinity in nature. Therefore trees, animals, hills, mountains, rivers are worshiped as symbol of reverence to these representative sample of nature. A perusal of Hindu religious scriptures reveal that the principles.

    1. to respect nature and protect it,
    2. Non violence is the dharma of highest order (Ahinsa parmo dharma) one should be non violent towards animals, trees and other organisms.
    3. Hinsa was considered as sin therefore not eating of meet in Hinduism is considered both as conduct and a duty.

    Purity of thought and expression, and cleanliness of the environment around us should be observed .All lives, human and non-human including trees are of equal value and all have same right to existence. It shows that the principle of sanctity of life is clearly ingrained in Hindu religion. As Hindu religion is the oldest religion and is of divine origin and we don't know from where it originated but we can derive inference that it would have developed slowly and slowly in due course of time as man progressed. Man since the time immemorial knew the importance of nature, the things which helped him in progressing and he knew if we want to progress further we would require these things, so he related them to God and then slowly it became a practice.

    Therefore different names given to different factors constituting environment:
    Lord Surya- Sun ,
    Vayu Devta -Lord of Winds,
    Agni devta - Lord of fire,
    Prithvi mata-Mother Earth,
    Vanya Devi-Goddess of Forests, etc

    Therefore cutting of trees was considered as sin as elements of nature were to be respected and regarded as gods and goddesses.

    Rig Veda , Manusmriti , Charak Samhitaha emphasize on purity of water and healing and medicinal values of water. Because of those injunctions of system of maryada developed in Indian Society to keep clean and wholesome.

    In Current scenario people have forgotten their age old traditions of living in harmony with nature and conserving natural environment and natural resources. In the mad rush for industrialization and industrial development we are forgetting the importance of environment. Earlier man coexisted with nature like other creatures but slowly he started thinking that whole universe is meant for man and he is the master of whole universe. Previously he cared for the environment in which he lives in because he had place in his heart for everything and he was sensitive towards other organism but as civilization progressed the sensitive attitude of man towards nature started deteriorating and he had totally forgotten the importance of nature and he though is well aware of the fact that Industrialization brings with it problems of environmental pollution but doesn't at all wants to understand this simple fact.

    Environmental Ethics and Constitution of India:

    India has age old tradition of tolerance, non-violence, equity and compassion for animate objects. In olden times they were part of daily life and synthesized with religion .Religious teachings social and political norms and economic policies treated as a part of nature not as molder or superior .All the living beings are creatures of one superior power –GOD.

    The above philosophy of peaceful coexistence with nature got mentioned in the Constitution in one way or the other in following articles:
    1. Articl48-A: State shall endeavor to protect and improve environment and to safeguard forest and wildlife of the country.
    2. Article51-a (g): It is the duty of every citizen of India to protect and improve natural environment including forest, lake, rivers and wildlife and to have compassion for living creatures.

    Environmental issues and Law in Action:

    In India we have a number of legislations for conservation of environmental. But the laws are just for ornamental purposes, there is no proper implementation of these laws, we have the Water Act, the Air Act, the Noise Pollution Act, the Forest Preservation Act and the Environment Act... and list goes on and on. India employs a range of regulatory instruments to preserve and protect its natural resources. As a system of doing so laws works badly if it works at all .The legislature was quick enough to enact laws regulating most aspects of industrial and developmental activities, but was very cautious to sanction enforcement budgets or require effective implementation across the country, government agencies wield vast power to discipline violators. The judiciary, a spectator to environmental despoliation for more than two decades has assumed proactive role in 1990s of
    1. Public Educator: Court directed to broadcasts and telecast ecology programs on electronic media and includes environmental studies in school and college curriculum
    2. Policy Maker: Court gave directions prohibiting non traditional aquaculture along the coast
    Court's directions for introduction of unleaded petrol vehicles
    3. Administrator: Judicial Supervision over implementation of nation's forest laws.

    In the ganga pollution case to riparian industries, tanneries and distilleries regarding abatement of pollution Although there is pool of legislations ,but lacks enforcement and assertive Judicial over sight have combined to create a unique implementation dichotomy one limb is represented by hamstrung formal regulatory machinery comprised of the Pollution Control Boards , Forest Beaurocracies and State agencies and other consisting of non formal and ad hoc citizens and court driven implementation mechanism.

    80s and 90s saw totally new legislations which spawned new enforcement agencies and strengthened the old ones. Some special bodies were made to perform specialized task like, Environment Impact Assessment (EIA) Regulation of 1994 was made. Responding to the suggestions of Supreme Court , Union Government has established National Coastal Management Authority and corresponding state agencies. Further, the past agencies have seen a growth in the budget and staff of central and state pollution Control Boards, charged with implementing the Water and Air Acts.

    Despite these initiatives, the quality of urban and rural environment continues to decline .The root cause is the slack performance of enforcement of agencies .Several factors inhibit agency functioning not least among them being lack of budgetary support .BPCB continuously starved of funds for several years ,the government withheld funding and restricting expenditure a third of total requirement .Political Interference and lack of will (The board was dissolved after it served a prosecution notice on CM's Son-in law )to tackle well-established industrial and commercial interests , also contribute to poor administration . Other than this it is observed that effective functioning of these agencies is curtailed by institutional graft. (Punjab pollution control Board was superseded in 1996 after state government received complaints regarding maladministration and harassment. An enquiry revealed that the enquiry was highly suspect. ) This has brought large number of cases regarding this in SC as well as HCs of state.

    SC in Indian Council for Enviro-Legal Action v. Union of India said:

    If the mere enactment of laws relating to protection of environment was to ensure a clean and pollution free environment, then India would perhaps, be the least polluted country in the world .But this is not so .There are stated to be more than 200 Centre and State Statutes which have at least some concern with Environment Protection, Either directly or indirectly. The plethora of such enactments has unfortunately not resulted in preventing environment degradation, which on contrary, has increased over the years.

    As it is rightly mentioned above that is if legislations would make any difference then we would have been the most pollution liberated country, there are hundreds and hundreds of legislations without proper implementation and without any change in attitude of people towards the environment and natural resources. On one side people in villages had to walk for kms and kms for one bouquet of water and on the other hand we in cities waste tanks and tanks of water in our rain dance parties, we are hardly concerned about saving water. Though we study lot many things and give long speeches on conservation of our natural resources, but when it comes to practice no body is concerned about it as we are not realizing that we are under serious threat of depletion of our natural resources. As per one Article that appeared in The Hindu last year The Great Himalayas Meltdown.

    As the world warms inexorably, glaciers in the Himalayas are melting away, putting at risk freshwater supplies for millions of people in Asia. The 33,000sq km of glaciers amidst some of world's highest mountains form the largest concentration of glaciers outside the polar icecaps .These glaciers ,which release an estimated 8.6million cubic meters of water annually, have nourished seven great rivers of Asia- Ganga ,Indus ,Brahmaputra, Salween ,Mekang ,Yangtze and Huang ho .Ancient civilizations Sprang up and thrived along the shores of these rivers .But now the pace of global warming is threatening the very existence of Himalayan glaciers.

    Since mid-1970s,the average air temperature measured at 49 stations of Himalayan region rose by one degree Celsius ,with high elevation sites warming the noted report compiled in2005 by WWF, the global conservancy organization. This twice as fast as the 0.6 degrees Celsius average warming for mid latitudinal northern hemisphere over the same period and illustrates high sensitivity of mountain regions to climate change added the report. The Himalayan Glaciers could disappear in the coming decades and the once perennial rivers turn into seasonal ones, noted Intergovernmental Panel on Climate Change (IPCC) in the final draft in its report on the impact adaptation and vulnerability of global warming. In due course of century water stored in the glaciers and snow cover are projected to decline, reducing water availability in regions supplied by melt water from various mountain ranges ,where more than one-sixth of the world population currently lives according to a summary of the report that the IPCC released on April 6,2005.Water from melting glaciers would also contribute to rising sea levels, which IPCC warns would devastate many coastal areas and affect millions of people around the world by 2080.

    This is serious threat for all those who are nourished by all these rivers .These Rivers form the life line of the whole area and if they disappear this would have devastating results on the lives of the people. There are inadequate linkages in handling matters of industrial and environmental safety. Indeed, our fundamental duties, obligated by the Indian Constitution under Article 51. A enjoin upon every citizen, a fortiori upon every instrumentality like the Executive, Legislature and Judiciary the responsibility. The State is under obligation to protect and improve the natural environment including forest, lakes, rivers and wild life, and to have compassion for living creatures.

    James Leopole, the Director General of WWF released a report known as known as WWF's 2006 Living Planet Report, which claimed that by 2050, in order to fulfill human needs and greed, two earths will be required .Its worth noticing that between 1970 and 2003 the populations of many species has declined to one third. On the other hand human population has increased multi fold itself from 1960 to 2003. Looks like Malthusian Law on population is fully operational!
    As it is rightly said "The earth has enough for every man's need but not for every man's greed.-Gandhi ji

    The natural resources of our country are in danger of exhaustion if we permit the old wasteful methods of exploiting them longer to continue. The time has come to inquire seriously what will happen when our forests are gone, when the coal, the iron, the oil, and the gas are exhausted when the soil shall have been still further impoverished and washed into and obstructing navigation. It is time for us now as a nation to exercise the same reasonable foresight in dealing without great natural resources that would be shown by any prudent man in conserving and wisely using the property which contains the assurance of well being for himself and his children. The nation leads the world in wealth and power, but also leads in the degradation of human habitat. We have the most automobiles. We are producing the most energy and have foulest air. Our factories pour out more products and our rivers carry the heaviest loads of pollution.

    The 21st century has well become a global cemetery plus a junkyard of industrial waste and no potable water, oxygen in air, trees for shelter and toxicity everywhere. India killed 9,000 tones of frogs in 1981 to earn Rs.12 crores in foreign exchange. A senior judge of the Kerala High Court dismissed a writ petition regarding environment because he was surprised that the petitioner belonged to an Organization called "Friends" of the trees and the bench was concerned with humans, not woods . The penal code (Section 277 punishes those who corrupt or foul the water of any public spring or the reservoir. Section 269 which prescribes punishments for negligent act which is likely to spread infection of disease which are dangerous to life. Hardly, any case-law on pollution has occurred under the Indian Penal Code which goes to show its infirmity in dealing with the problems of pollution.

    Reason behind this is since environmental legislations are penal legislations all the procedure of prosecuting an offender under a criminal law, but in the environmental offences also just like any other criminal offence, the accuse is presumed to be innocent until charges against him are proved beyond doubt. The burden of proof is on prosecution .When even higher judiciary faces difficulty in handling complex environmental cases with its entire available command one should understand the pitiable condition in which the victim is put in. How could an ordinary citizen of this country be able to prosecute and to prove the case beyond doubt taking into account the complex nature of environmental cases .

    Flaws in the implementation of Environmental Laws and Suggestions:

    1. Environment Offences not taken Care off: Environmental Offences are not taken seriously and rather taken in let go manner .People while committing environmental crimes don't even know that they are committing crime .There is need of spreading proper awareness regarding environmental laws .Some people who though are aware of these laws these laws, don't take it seriously because state doesn't takes serious action against regarding environmental offences. There should be strict implementation of these laws so that those offences should not be committed again.

    2. Burden of Proof: It is provided in the Environmental Laws that persons polluting the environment would be liable for penal action. Like other criminal offences the accused in environmental cases is presumed to be innocent until charges against him is not proved beyond doubt, the onus of proving the case is always on the prosecution. How can an ordinary citizen be able to prosecute and prove case beyond doubt, taking into account the complex nature of environmental laws? Even higher judiciary has expressed its difficulty in dealing with complex Enviro-techno Science issues. In Andhra Pradesh Pollution Control Board v. M.V. Naydu SC said: the judicial system is increasingly unable to manage and adjudicate Science and Technology issues.

    The Supreme Court of India relying upon a report of International Law Commission has observed that:

    the precautionary principle suggest that where there is an identifiable risk of serious and irreversible harm, including ,for example ,extinction of species , wide spread toxic pollution ,major threats to ecological processes ,it may be appropriate to place the burden of proof on the or entity posing the activity that is potentially harmful to the environment. The court further said that the precautionary principle has been accepted as part of the law of the land.

    Hence in the light of above opinion of the Supreme Court, The Environment Legislations viz., the Water Act, the Air Act and the Environment Protection Act has to be amended with regard to burden of proof in such a manner that onus of proof is on the person breaking the law or committing Environmental Offence .This will encourage citizens to approach courts against the polluters of the environment.

    3. Delay in Decision making: Our Judicial System suffers great demerit of delay in decision making process. It years and years to solve cases because of this. This should be taken into account while handling environmental cases ,that damage caused to environment is irreplaceable and a resource once lost once lost cannot be taken back .Keeping this thing in mind environmental cases should be solved in a speedy manner.

    4. One Single Code to deal with all Environmental Problems: Environmental law is relatively new and emerging branch of Jurisprudence in India. But in 90's India witnessed a rapid development in Environmental Jurisprudence. Though it is estimated that there are more than 200 legislations in India dealing directly or indirectly with environmental problems but the situation remains then and there, and rather worsening day by day. The reason may be many but one among them is ignorance of law in particular .The abundance of environmental legislation also contributes to the ignorance .Getting access to information is challenging one. The Ministry of forest and environment has made a large number of rule and notification for the protection of environment .These rules and notification are amended time and again. It makes very difficult for the persons concerned with governing, protecting and implementing these laws in keeping track of the changes that are taking place in the laws.

    If there is one single code dealing with all the aspect of the problems of the environment: pollution as well as conservation, which substitutes all these legislation, rules and notifications, it would be very good beginning for Environmental Protection in this country. But it should be taken in to care of, that proper funds may be available for proper functioning of the new policy at right time so that it may not fail this time.

    5.One Separate Forum dealing with Environmental Laws: Though judiciary had tried to play a role of trailblazer in transfiguring the dormant and quiescent environmental administration into effective and efficient one .But as mentioned above the judiciary faces many difficulties in solving cases enviro-legal issues, so in order to solve all the issues related environment there should be a separate forum which may encompass in it all the issues related to environment .Courts should be easily accessible, well equipped with scientific knowledge ,well aware of the environmental jurisprudence and efficient enough to punish the polluters in away that in future not even an attempt to pollute or degrade the environment be made.

    Everybody should have right to wholesome environment .How this right can be transformed to veracity without a proper accessible forum It is therefore very humbly suggested that Environmental Courts be established in every district consisting of judicial members assisted by statutory panel of environment experts attached to these courts and proper funds be available for proper functioning of these courts.

    6.Incentives for controlling pollution: Economists all over the world suggest that instead of 'command and control' approach ,the government should adopt 'carrot and stick' to ensure better compliance of environmental law by industries The polluters do not earn any profit from polluting, but controlling of pollution would cost them much and they will not get any incentive for controlling pollution so why should they spend on controlling pollution when others are earning high profit by violating these laws .Therefore government instead of relying whole on the command and control regime, it should create lot of economic incentives . There are many new ideas emerging for prevention of pollution . The government should with open mind try to learn alternative approaches. It should invite suggestions from people and try to implement the suggestions of good quality which can improve the prevailing condition and also spread awareness in order to sensitize people towards the environment.

    Thus we can say that though we have rich tradition and culture of living in peace and harmony with nature but with industrialization we have become indifferent towards nature. Previously there were no laws for conservation of environment in our country other than some indirect laws, as the people of our country loved and respected their fellow organisms. But in the changed scenario as development and pollution went hand in hand ,man started using the natural resources so lavishly ,therefore it became very necessary to preserve these resources otherwise there would be no resources left for the future generations to come. Keeping this in mind laws were made for the conservation of environment, which were not so active till mid 80s but later as our government became more vigilant towards this issue, so it started incorporating new laws, rules and regulations and to save the environment .At present there are more than 200 legislations which are directly or indirectly related to environment. But with the increase in legislations the environment kept on degrading.

    There were large number of legislation but they were not implemented properly as they had some inherent defect in it which were hindering in proper implementation of these laws and dismal performance of enforcement agencies further extended this problem. Still there were some issues which were untouched in previous legislations. In order preserve our environment, judiciary and legislature should find these defects in order to implement these laws properly and rather than so many legislations, they should sit and make one common code which should encompass in it all the issues dealing with environment.

    And also there should be one single forum which should deal with all the problems dealing with the environment and these courts should be easily accessible, well equipped with scientific knowledge ,well aware of environmental Jurisprudence and efficient enough to punish polluters in a way that in future not even an attempt, contaminate or degrade the environment be made. It therefore very humbly suggested that there should be one common code developed and environmental courts should be established in every constituency consisting of judicial members assisted by statutory panel of environmental experts attached to these courts. This forum should also welcome new ideas suggestions which could help government in saving our natural resources.

    The author can be reached at: [email protected] / Print This Article

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