Author: Anshu Bansal, Research Associate
“India though has a long way to go to attain environmental quality akin to those enjoyed in developed economies, has made one of the fastest progress in the world in addressing its ecological issues and improving its environmental quality between 1995 through 20101.”
In the wake of World Environmental Day on June 5, once again Indian environmental policy was praised by many in the light of above progress report. While the present policy is unique in the sense as discussed in the later part of this essay, there are some setbacks which hinder the expected pace of improvement. The primary aim of India’s environmental policy is akin with other country that is to prevent the degradation of the environment. It is not limited to air, water and soil pollution rather it covers all forms of pollution including Soil Contamination, Solid Waste Pollution, Light Pollution, Littering, Thermal Pollution and Radioactive Contamination etc. This is expressly written in black and white letter and is evident from Environmental Protection Act (hereinafter referred as EP Act), 1986.
The EP Act defines ‘Pollution’ under Section 2(k) as ‘the presence in the environment of any environmental pollutant’ and under Section 2(b) ‘Pollutant’ is defined as ‘any solid, liquid or gaseous substances present in such concentration as may tend to be injurious to the environment’. Hence, in simple terms, Pollution is the contamination of the environment which has an adverse impact upon life in all forms. This widened the area of operation of EP Act. Under EP Act environmental enforcement powers is delegated to the States to make it more powerful2.
In addition to this, our constitution is also unique in the sense that it contains specific provisions for the protection of environment. It is expressly mentioned that the state and the citizens are legally obliged to protect the environment. Some of these provisions are:
- Article 48A which deals with Protection and improvement of environment and safeguarding of forests and wild life.
- Article 51A (g) states that It shall be the duty of every citizens of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
National Environment Policy and its insinuation
National environment policy (2006) is one of the chief drafts concerning environmental policy of India. It encourages imposing of more stringent local level water and air quality standards for receptors3. The objective of the National environment policy includes:
- 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.
Unfortunately, it is contested that the objectives of inter- and intra-generational equity and livelihood security for the poor and conservation of critical environmental resources cannot co-exist with principles that are highly homocentric and seek “economic efficiency”4. Some even conceive that the National Environment Policy (NEP) 2006 has strangely made itself more meaningful to the industrial sector, attempting to protect it instead of the environment5.
There are some merits in these arguments and time will show how much we are able to reap the fruit of current environmental policies.
Environmental policy and judiciary
In India, the issues and policies related to environment had undergone a swift change over a period of time. The primary agency for bringing such change is judiciary unlike other countries where Legislature and executives are at the helms of affairs in order to plan, implement and take in hand environmental issues. The apex court has laid down new principles to protect the environment, re-interpreted environmental laws, created new institutions and structures, and conferred additional powers on the existing ones through a series of directions and judgments6.
As a result of increase in public sentiment towards environment, several PIL turned into a historical judgement. Proponents claim that the SC has, through intense judicial activism, become a symbol of hope for the people of India7. While judicial activism was appreciated by some, there are other group which suggest that access of judicial activism resulted in a weapon for limiting development. Even after a stay related to an infrastructure project is vacated, or a court order gives a green light to certain project, new issues become grounds for court notices and new public interest litigation8.
Recent episodes suggests changing trend
Recently, the environmental policy in India has undergone a drastic change as a result of increasing arm of the UN and allied bodies and emergence of new laws. The controversy on BT Brinjal also added fuel to the fire.
Snap shots of events depicting current environmental policy9:
- The Green Action for National Dandi Heritage Initiative [GANDHI] Memorial Project was inaugurated in July, 2010 to commemorate the 80th year of Dandi March. This Rs 25 crore project is aimed at promoting Mahatma Gandhi’s vision for sustainable development in Dandi and its surrounding villages.
- The office of the Society of Integrated Coastal Management [SICOM] was inaugurated in September. This will be the nodal agency for the Integrated Coastal Zone Management Project [ICZM] being implemented by the GOI.
- Refusal to give clearance to Vedanta as it ignored the protection that Scheduled Tribes enjoy under Schedule V of the Constitution, Forest [Conservation] Act, the Scheduled Tribes and Other Traditional Forest Dwellers [Recognition of Forest Rights] Act and EP Act. This was truly a momentous decision in the history of India’s environment litigation.
- Release of the National Action Plan on Climate Change [NAPCC] on 30th June, 2008. The Plan proposes to start 8 missions promoting deployment, innovation and basic research in renewable energy technologies. In alignment, the Union Budget 2010-11 announced the setting up of National Clean Energy Fund [NCEF] for funding R&D in clean technologies
Two environment tribunals and their shortcomings
The National Green Tribunal Act, 2010 was enacted to provide for a forum for efficient and expeditious disposal of cases arising from any calamity occurring while handling any dangerous substance. The Act seeks to replace the National Environment Tribunal Act, 199510and the National Environment Appellate Authority Act, 1997 which have been in operation for sometime in the country.
National Environment Tribunal Act, 1995 was enacted to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of the Tribunal for effective and expeditious disposal of cases arising from such accidents, with a view to giving relief and compensation for damages to person, property and the environment and for matters connected therewith or incidental thereto11. The tribunal has not been constituted since last ten years. Another important shortcoming is that the tribunal can only award compensation. If it is given all the powers of civil courts, then why can’t grant injunctions, declarations etc? In addition to this, the scheme does not also grant setting up tribunal in each state.
National Environmental Appellate Authority Act, 1997 was intended to provide for the establishment of a National Environmental Appellate Authority to hear appeals with respect to restriction of areas in which any industries, operation or process shall be carried out or shall not be carried out subject to safeguards under the EP Act, 1986. After the term of first Chairman was over, no chairman is appointed till now.
Thus, we see that National Environment Tribunal never came into existence and National Environmental Appellate Authority Act came into existence but after the term of first Chairman got over, none came in. Thus, these two Tribunals are non- functional regrettably. It is with regard to this only that a new environment court was proposed who could exercise all the powers of civil court, appellate power as well as original jurisdiction of civil court.
India does not have lack of environmental policy but proper implementation is not there. In the current scenario it becomes essential that the Indian authorities should strive to achieve a society where ideals and reality, legislation and implementation, correlate. When the authorities manage to fulfil their role, it enables corporations to better contribute to the society in a positive way12.
In the wake of recent damages, concerned authorities have started giving more attention towards environment but what we need is to find out newer ways to deal with old problems. Without active involvement of common people it is indeed difficult for the authorities to devise and implement proper environment policy. Hence, individual’s initiatives are of paramount importance. What we need is to adjustment not deep-seated change.
- Data collection and environment assessment studies of World Bank experts as reported at World Environment Day 2013: Act to reduce disaster risk, Zee news, (May 31, 2013) available at http://zeenews.india.com/exclusive/world-environment-day-2013-act-to-reduce-disaster risk_6385.html?pagenumber=2 [↩]
- Tishyarakshit Chatterjee, Reorienting Environment Policy in India Towards a Local Area-Based Development and Management Paradigm, The Journal of Transdisciplinary Environmental Studies (2009). [↩]
- Id. [↩]
- Divya Badami and Kanchi Kohli, National Environment Policy 2006: Economics over environment, Info Change News & Features (August 2006). [↩]
- Id. [↩]
- Geetanjoy Sahu, Implications of supreme courts innovations for environmental jurisprudence, Law, Environment and Development Journal 1–19 (2008). [↩]
- Judicial Activism in India – Chief Justice P.N. Bhagwati. [↩]
- Power Problems Threaten Growth in India, The Wall Street Journal (2 January 2012). [↩]
- Indira Mukherjee, Environment and India. [↩]
- The Environment Tribunal under this Act has not been established [↩]
- Pooja Shastry & Rashmi Bela, Law, Judiciary and Environmental Governance Need of Separate Environment Courts In India. [↩]
- Anne-Line Sandaker, Implementing Environmental Policies in India, A Case Study of Scandinavian TNCs, Master’s Thesis in Asian and African Studies – South Asia (May 2009). [↩]