“Any law without remedy is a castle in the air”. Discuss the remedies of environment protection under the following laws:

• Common Law

• Constitution

• Criminal Procedure Code

• Civil Procedure Code

Introduction

World environment today faces a grave crisis. Grossly polluted environment tends to pose threat to human existence. Without collective efforts undertaken by the states worldwide, this crisis would be difficult to overcome. Appropriate laws both at national and at international levels are necessary to protect the environment. It is encouraging that environmental consciousness is increasing and the states at large are adopting laws and signing treaties to prevent environment from falling into a catastrophe. Scientific research and study of the sixties and seventies have revealed that world environment is fast losing its natural qualities and its balance is being seriously impaired. This trend must stop to keep our planet habitable. The environment has been adversely affected through pollution of the atmosphere and to maritime, coastal and inland waters, through degradation of rural lands, though destruction of ecological balance of natural areas, through the effect of biocides upon animal and plant life, and through the uncontrolled depletion and ravaging of the world’s natural resources, partly by reason of the explosive growth of the human populations and partly as a result of the demands of industrial technology. The problems involved in the environmental crisis, and the various causes and factors which brought it about were analyzed in detail more than thirty year ago by the Secretary General of the United Nations in his Report on the Problems of the Human Environment, dated 26 May 1969, prepared in relation to the summoning of the Stockholm Conference of June 1972 on the Human Environment, pursuant to a Resolution of the United Nations General Assembly of 3 December 1968. It was the timely initiative of the United Nations that focused the world attention on the problem of environment. Since then, the United Nations has organized two world conferences (1972 & 1992) which have made solemn declarations, proclaimed policies and principles, given guidelines, worked out action plans–all for the protection and preservation of environment. Development of environmental law, both national and international, has already brought forth certain self-evident postulates as following:(1) Right to life implies right to a healthy life which is possible only in a sound physical environment meaning fresh air and clean water accompanied by nature’s bounties–flora and fauna.(2) Right to sound environment is increasingly being recognized as a human right, absence of which could seriously impair normal human habitation.(3) Development must be conditioned by environmental needs i.e. development activity and technology for development are to be environment-friendly, which is the essence of the concept of sustainable development.(4) Development needs of the developing countries cannot always be made subservient to high international standards of environmental protection, meaning that the special needs of the development countries have to be accommodated within broader framework of international environmental law.(5) Transfer of environment-friendly technology from the developed to the developing countries is a fundamental prerequisite for rational economic development and protection of environment.(6) Right to development implies right to sustainable development which is a great contemporary idea embodying both development and environmental justice. Stockholm Conference (1972) on the Human Environment adopted the Declaration on the Human Environment. The Declaration has emphatically mentioned the right to every person to sound environment and also his obligation to protect and preserve the environment. The Declaration has laid down the basic principles and guidelines for the protection and preservation of the world environment. Amongst various principles enunciated in the Declaration were three concrete principles of international law. They are, (i) states have a sovereign right to exploit their own resources pursuant to their own environment policies; (ii) states are responsible for ensuring 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; (iii) states are under a duty to cooperate to develop further the international law as to liability and compensation for the victims of pollution and other environmental damages caused by such activities to areas beyond national jurisdiction. United Nations Conference on Environment and Development popularly known as Earth Summit (Rio de Janeiro, June 3-14, 1992) made a new beginning for the progressive development of environment law. Issues which formed the top agenda of the Conference were:(a) Protection of atmosphere (climatic change, depletion of ozone layer, air pollution)(b) Preservation of land resources (desertification, soil erosion deforestation and drought)(c) Preservation of pure water(d) Protection of marine and coastal areas and rational use and development of marine bio-resources(e) Protection and preservation of bio-diversity Like the Stockholm Conference, Rio Conference also adopted a Declaration. This time the Declaration was titled Declaration on Environment and Development, emphasizing the close mutual relationship of these two issues. Besides stating the principles already enunciated in the Stockholm Declaration on Human Environment, Rio Declaration brought into focus the concept of sustainable development and the idea that any development planning must take into consideration the development and environmental needs of the future generations as well. Since environmental consciousness is a more recent phenomenon, it is not surprising that the Constitution of the People’s Republic of Bangladesh enacted in 1972 did not even refer to environment’. However, there are provisions in the Constitution on such matters as improvement of public health and morality (Article 18) which are referable to environment. There are also constitutional mandates for promoting social and economic development (Article 16) without which no environmental goals could be realized. Article 32 of our Constitution lies down: “No person shall be deprived of life or personal liberty saves in accordance with law.” Therefore, right to live is a fundamental right under Article 32 of the Constitution, and it includes the right to enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 102 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life. A scrutiny of the statutory laws now prevalent in Bangladesh would reveal that about 185 laws deal with or have relevance of environmental issues, of these the Environment Conservation Act of 1995 and Rules under the Act which have been in force since 1997, deals specifically with environmental management. The term “Environmental” as has been defined in the Act includes “water, air, land and physical properties and the inter-relationship, which exists among and between them and human beings, other living beings, plants and micro-organism. Again, the Penal Code of 1860 would hold a person guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. To a large extent, many incidents of nuisance can be environmental wrongs in which cases a criminal proceeding can be preferred before a Magistrate for removing the same under Sections 133-144 of the Code of Criminal Procedure. In its commitment to make the regulatory regime functional, the present government under the dynamic leadership of Prime Minister Sheikh Hasina has on principle approved the establishment of Environmental Courts in the divisional headquarters for speedy adjudication of pollution-related cases. The proposed bill on the courts suggests that the Additional District Judge would be appointed as the judge of such courts and the said courts would be deemed as courts of criminal jurisdiction. The proceeding therein would follow the Code of Criminal Procedure; 1898.Environmental law plays a critical role in promoting environmental protection through (1) the sustainable use of natural resources (2) pollution prevention and (3) the integration of environment and development. It provides an important framework for regulating social behavior and transforming sustainable development policies into enforceable norms. Environmental law assists governments in adhering to international regimes and building national capacities to address major global, regional and national environmental issues and problems in the context of sustainable development.

Common Law

Common Law Protections: Common law protections allow a land-owner whose land is being polluted to sue the polluter. A landowner may sue under a theory of trespass (a physical invasion of the property) or nuisance (an interference with the landowner’s enjoyment of his property). Each of these theories will include an element of reasonableness – there will be no recovery if the neighbor is making a reasonable use of the land. Reasonableness will depend on the facts of the specific case. Additionally, an action may be brought under public nuisance where the suit is brought by a public entity if it is the public that is harmed (rather than a uniquely harmed individual).

The three types of common law actions most commonly encountered in the environmental field are: (1) nuisance, (2) trespass and (3) negligence. Which action fits where? Plaintiffs will use negligence to seek damages for personal injury from environmental pollution. For invasions of property interest, plaintiffs rely on trespass and nuisance actions to address environmental harm. In every common law action, the plaintiff must bring the case within the statute of limitations and establish the causation between the harm and the defendant’s conduct.

Constitution

Bangladesh Environment Protection Act, 1995

Published in Bangladesh Gazette Extraordinary

Dated 16th February, 1995

Act No.1 of 1995

An Act made to protect the environment, to improve the quality of the environment and to control and abate the pollution of the environment

Whereas it is expedient to provide for the protection of the environment the improvement of the environmental standard and the control and abatement of the pollution of the environment.

Bangladesh Environment Conservation Act (BECA) is set of laws enacted by the government of Bangladesh in 1995.

The Act gives operational definitions of terms that historically did not exist, including ecosystem, pollution, waste and hazardous substance.^[1] Seven areas in Bangladesh are defined as Ecologically Critical Areas under this law beyond the scope of the Forest Act of 1927 enacted by the British Raj. Other major preservation laws enacted by the government of Bangladesh include the Bangladesh Wild Life (Preservation) Order of 1973, the Marine Fisheries Ordinance of 1983 and the Brick Burning (Control) Act of 1989. Other major preservation laws enacted before the independence of Bangladesh include the Public Parks Act of 1904, the Agricultural and Sanitary Improvement Act of 1920, the Protection and Conservation of Fish Act of 1950.

In September 2009, the four rivers around the capital city Dhaka – Buriganga River, Shitalakshya River, Turag River and Balu River – have been declared by the Department of Environment as ECAs.

The Act followed the establishment of the Ministry of Environment and Forest in 1989 and the National Environment Management Action Plan (NEMAP) in 1992, as well as the Forest Policy in 1994 and the Forestry Master Plan (1993–2012) in 1993. Despite the Act and its supporting laws and policies the environmental degradation of Bangladesh continues principally under the population pressure.

Environmental pollution and Remedies

In the context of Bangladesh, the remedies for environment pollution is of the following kind-

1. Civil remedies

2. Criminal remedies

3. Other remedies

1. Civil Remedies –The civil remedies for environmental pollution is available in the nature of compensation or damages to the victim and cost to recover the disturbed ecological balance or the environment.

2. Criminal remedies –These remedies are available by way of penal action/punishments.

3. Other remedies – The other remedies for environmental pollution are available as under:-

(i)Remedies under Constitutional Law;

(ii)Remedies under Law of Torts;

(iii)Riparian remedies;

(iv)Remedies under the Indian Penal Code, 1860 and Code of Criminal Procedure,

1973;

(v)Remedies under Insurance Laws;

(vi)Remedies under Labor laws;

(vii)Remedies under Wild Life (Protection) Act, 1972

(viii)Remedies under Forests (Conservation) Act, 1980

Reference