“Any Public Spirited person can start social action in a court of law to protect environment degradation”. Discuss
INTRODUCTION
Environmental protection is a practice of protecting the natural environment on individual, organizational or governmental levels, for the benefit of the natural environment and humans. Due to the pressures of population and technology, the biophysical environment is being degraded, sometimes it is done permanently. This has been recognized, and governments have begun placing restraints on activities that cause environmental degradation. Since the 1960’s, activity of environmental movements has created awareness of the various environmental issues. There is no agreement on the extent of the environmental impact of human activity, and protection measures are occasionally criticized.
Academic institutions now offer courses, such as environmental studies, environmental management and environmental engineering, that teach the history and methods of environment protection. Protection of the environment is needed due to various human activities. Waste production, air pollution, and loss of biodiversity (resulting from the introduction of invasive species and species extinction) are some of the issues related to environmental protection.
Environmental protection is influenced by three interwoven factors: environmental legislation, ethics and education. Each of these factors plays its part in influencing national-level environmental decisions and personal-level environmental values and behaviours. For environmental protection to become a reality, it is important for societies to develop each of these areas that, together, will inform & drive environmental decisions.
ENVIRONMENT PROTECTION IN INDIA
I. Environmental Laws
In keeping with international standards, the Indian government enacted legislation for environment protection, water pollution, air pollution and wildlife conservation.
However, these laws were very poorly implemented, and this poor implementation mattered only if the laws were enforced in the first place. With rising environmental degradation, the increasingly activist Indian judiciary began to take greater note of these standards and tightened the enforcement of these laws.
The touchstone for Indian environmental legislation was the Stockholm Declaration in
1972. India agreed with 113 other nations on principles and an action plan to protect the environment and came under an obligation to implement these domestically. This led to the amendment of the Indian Constitution, which incorporated Articles 48A and Article
51A (g)[1]. On the basis of these constitutional provisions, the Indian Parliament enacted the Water Act, 1974, Air Act, 1981, and the Environmental Protection Act, 1986.
The Water Act, 1974 was the first of much legislation passed in India following the Stockholm Declaration. This was the first environment related legislation passed in India, with the objective of ensuring that domestic and industrial pollutants are not discharged into rivers and lakes without adequate treatment. The government set up Pollution
Control Boards and standards for factories discharging pollutants into bodies of water under this legislation. The most important feature of the Act was that it permitted the relevant authority to order the closure of non compliant industries. The Air Act, 1981 was also drafted on very similar grounds to prevent and control air pollution.
The other event that led to a series of legislation to protect the environment was the Bhopal Gas Tragedy[2]. The Environmental Protection Act, 1986 gave the government extensive power to monitor and regulate industries. The Act empowered the Indian government to make rules and regulations, formulate standards, prescribe procedures for managing hazardous substances, regulate industries and establish safeguards for preventing accidents. It also empowered the government to set up parallel regulatory agencies for roles such as to protect specific parts of the environment and also to delegate its powers to such an agency. The legislation and its Rules clearly incorporated the Polluter Pays Principle and imposed civil liability for non-compliance. The Act also provided for criminal punishment for non-compliance with environmental standards. Another reaction to the Bhopal Gas Tragedy was the Control and Regulation of Hazardous and Solid Wastes under Environment Protection Act, 1986 to specifically empower the government to protect the environment from hazardous substances. The Act and its Rules incorporated the Polluter Pays Principle and no-fault liability for accidents involving hazardous substances. It specifically provided for the liability of the occupier, transporters and operator of a facility handling hazardous waste and enforced the Polluter Pays Principle.
The Public Insurance Liability Act was perhaps conclusive evidence for the Polluter Pays Principle being applied in Indian environment law. This was the first time the government acknowledged absolute liability for accidents due to hazardous substances. The Act specified how much compensation was to be paid for every degree of injury or death of civilians and / or workmen[3]. The Act mandated owners of facilities employing hazardous substances to take out insurance policies for accidents. The Central government also created an Environment Relief Fund under which owners could make payments equal to their insurance policy and use the fund to pay compensation in case of accidents.
One of the reasons for the failure of these environmental laws is governance structures in
India. Environmental regulation and governance are both state and federal subjects; therefore, the governance agencies are also state / federal in nature. The apex authority is the Central Ministry of Environment and Forests. The main role fulfilled by the Ministry is representation of India in international treaties and the implementation of those treaties in Indian laws and regulation.
The Central Pollution Control Board (CPCB) and State Pollution Control Boards
(SPCBs) were initially set up under the provisions of the Water Act, 1974, and now also carry out the functions under the Air Act, 1981. The CPCB and the SPCBs will also perform all additional functions under this the Environmental Protection Act and are the prime environmental authorities in India. But they are also supported by the relevant authorities for the supervision of coastal zone regulations; the National Coastal Zone Management Authority and State Coastal Zone Management Authorities. At times, specialised authorities are set up by the Supreme Court of India, such as the Central Empowered Committee which supervises all forest-related matters and timber-related industries.
II. Public Interest Litigation and the Environment
In the face of over-legislation and under-enforcement, cities and rivers in India, in particular, underwent unprecedented degradation. The Indian judiciary took special interest in the matter on counts of social justice as thousands of poor Indians were drinking contaminated water or dying of respiratory diseases. Most of the victims of such environmental degradation had no possible means of individually suing the polluters.
The usual remedy, one especially followed in the USA, is class action torts – where the claims for various individuals can be bundled and this result in reduced cost of litigation for each individual in the bundle. Indian law also recognizes a class suit or a representative suit, wherein one or more members of a class having the same interest, may sue or defend on behalf of themselves and all the other members of the class.
However, this has been used in very few cases and with little success. However, given the limitations of the legal system in India, its bias against the poor and its chronic delays, the
Indian judiciary decided to take a different route to enable victims to seek remedy from polluters.
The SC opened the floodgates for such environmental cases by allowing them to be filed as writ petitions ever since it recognized the right to a clean environment as part of the Fundamental Right to Life under Article 21. If the complaint is of a legal wrong, then the High Court of the state can be approached under Article 226 of the Constitution. The right to approach the High Court or the SC, if any of a person’s “fundamental rights” are violated, is included in the fundamental rights chapter of the Constitution under Article 32.
The SC has used this jurisdiction as enforcer of fundamental rights along with its plenary powers to intervene in cases which, in its opinion, qualify as Public Interest Litigations.
For the above purpose, the SC diluted the locus standi requirements for petitioning the
Courts which meant that the victim was no longer required to petition himself, but any public-spirited person to approach the court on behalf of disadvantaged classes or a member of a disadvantaged class (who was unable to approach the court himself by reason of his disadvantage).
The court also relaxed the rules of procedure for filing a petition, creating a new ‘epistolary jurisdiction’ in which the court recognized even a letter or post-card sent to it containing a complaint, as constituting a Public Interest Litigation petition. In the last decade, the SC has moved from recognising socio-economic rights of the disadvantaged groups to solving governance issues (which are long pending because to government inaction). The SC has assumed a ‘creeping jurisdiction’, in which it passes series of interim administrative orders on the failure of the state to take the administrative decisions which, in the courts opinion, it should have taken in the first place.
When & How to File a PIL (Public Interest Litigation)
1. Making an informed decision to file a case.
2. Consulting all affected interest groups who are possible allies.
3. One will have to be careful in filing a case because –
· Litigation can be expensive.
· Litigation can be time consuming.
· Litigation can take away decision making capability/strength from communities.
· An adverse decision can affect the strength of the movement.
· Litigation involvement can divert the attention of the community away from the real issues.
4. If you have taken the decision:
· Collect all the relevant information.
· Be meticulous in gathering detail for use in the case. If you plan to use photographs, retain the negatives and take an affidavit from the photographer. Retain bills.
· Write to the relevant authorities and be clear about your demands.
· Maintain records in an organized fashion.
· Consult a lawyer on the choice of forum.
· Engage a competent lawyer. If you are handling the matter yourself make sure you get good legal advice on the drafting.
· A PIL can be filed only by a registered organization. If you are unregistered, please file the PIL in the name of an office bearer/member in his/her personal capacity.
· You may have to issue a legal notice to the concerned parties/authorities before filing a PIL. Filing a suit against the government would require issuing a notice to the concerned officer department at least two months prior to filing.
CONCLUSION
The Indian judiciary has both acknowledged and implemented the Polluter Pays Principle in many decisions on environmental pollution. On the other hand, it has also made the state pay for damages and asked it to recover the same from the polluter. Indian environmental policy and judicial decision making differs significantly from the rest of the common law legal system. The above discussion will enable us to analyse the efficiency of a system requiring the state to pay damages to the victim and allowing it to recover the same from the polluter.
References
Article 48A is a Directive Principle guiding the state for the “protection and improvement of
environment and safeguarding of forests and wild life”.
Article 51A(g) is a Fundamental Duty for the citizens of India to “protection and improve the natural environment”.
Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985.
Craig PP and Deshpande SL, “Rights, Autonomy and Process: Public Interest Litigation
in India” Oxford Journal of Legal Studies, Vol. 9, No. 3, Autumn, 1989, pages 356-373,
downloaded from Jstor at http://www.jstor.org/stable/764422 on July 29 2008.
Jain MP, “Indian Constitutional Law” 2005 Edition, Wadhwa & Company Nagpur, New Delhi India.
Jaswal Paramjit S, “Environment Law”, 2008 Edition, Allahbad Law Agency, Faridabad
India.
Kumari Areti Krishna, “Evolution of Environmental Legislation in India”, January 2007,
downloaded from SSRN at http://ssrn.com/abstract=956228 on July 30 2008.
Public Liability and Insurance Act, 1991.
Solomon, U., A detailed look at the three disciplines, environmental ethics, law and education to determine which plays the most critical role in environmental enhancement and protection. Environment, Development and Sustainability, 2010. 12(6): p. 1069-1080.
The Environmental Protection Act, 1986.
The Hazardous Wastes (Management and Handling) Rules, 1989.
SP Gupta v Union of India 1981 Supp SCC 87
[1] Article 51A(g) is a Fundamental Duty for the citizens of India to “protect and improve the natural
Environment”.
[2] For details on the Bhopal Gas Tragedy see Infra Section G.
[3] Section 3 read with the Schedule of the Public Liability Insurance Act, 1991.