DEVELOPMENT OF ENVIRONMENTAL LAWS IN INDIA
21 min read • May 17, 2024
INTRODUCTION:
India's approach to environmental protection and conservation has deep-rooted foundations in its ancient philosophical traditions and cultural practices. From the hymns of the Vedas extolling the virtues of living in harmony with nature, to the sustainable forestry and water management systems followed by local communities, India's civilizational ethos has been intertwined with environmental consciousness.
This philosophical and practical legacy formed the basis for the evolution of a comprehensive legal framework for environmental protection in modern India. The colonial era saw the introduction of certain environmental regulations, albeit with a focus on resource exploitation for imperial interests. However, it was in the post-independence period that India's environmental jurisprudence truly took shape.
The Constitution incorporated provisions for environmental safeguards, paving the way for landmark legislations like the Wildlife Protection Act, Water and Air Pollution Acts. The proactive role of the judiciary, through expansive interpretations and application of principles like sustainable development and polluter pays, further strengthened the environmental legal regime.
India's participation in international environmental agreements like the Stockholm Declaration, Montreal Protocol, and Rio Declaration also influenced its domestic policies and led to the enactment of overarching legislation like the Environment Protection Act.
Recent decades have witnessed the establishment of dedicated institutions like the National Green Tribunal, introduction of specific laws on issues like waste management, afforestation funds, and climate commitments under the Paris Agreement. This multi-pronged approach reflects India's continually evolving efforts to address environmental challenges through a robust legal framework rooted in ancient wisdom and modern exigencies.
THE EARLY BEGINNINGS OF ENVIRONMENTAL LAW IN INDIA ROOTED IN ANCIENT INDIAN SCRIPTURES AND SUSTAINABLE PRACTICES:
Ancient Indian scriptures like the Vedas, Upanishads, and Smritis emphasized the importance of environmental protection and sustainable living practices. These texts laid the philosophical and cultural foundations for environmental conservation in India.
1
. The Vedas:
The Atharvaveda, one of the four Vedas, contains hymns dedicated to the worship of nature's elements like air, water, and earth.
The Rigveda, another Veda, speaks about the sanctity of nature and the interdependence of all life forms.
2
. The Upanishads:
The Upanishads, philosophical texts dating back to around 800-200 BCE, propagated the concept of living in harmony with nature and emphasized the unity of all existence.
The Ishavasya Upanishad, for instance, stresses the importance of preserving the environment and using natural resources sustainably.
3
. The Smritis:
The Smritis, ancient Hindu codes of conduct, laid down rules for environmental preservation, such as prohibiting the cutting of green trees and polluting water sources.
The Manusmriti, one of the most influential Smritis, prescribed sustainable practices like limiting the number of animals to be hunted and protecting certain species.
4
. Sustainable Practices:
Sacred groves were patches of ancient forests that were protected and preserved by local communities for their ecological and cultural significance.
Traditional water harvesting systems like step-wells, tankas, and baolis were used to conserve and manage water resources efficiently.
Sustainable forestry practices, such as selective felling and regeneration cycles, were followed in many parts of India to maintain the balance of forest ecosystems.
COLONIAL PERIOD:
The British arrived in India around 1600 through the East India Company, initially for trade, but soon began a fierce onslaught on exploiting India's rich natural resources, leading to massive deforestation to meet the increasing demands for timber for shipbuilding, construction projects like roads and railways, the export trade, iron-smelting, agriculture expansion, and revenue generation. This destructive overexploitation prompted the British to gradually introduce some of the earliest environmental regulations and policies in India. Initial attempts like appointing a Conservator of Forests in 1806 failed. However, more systematic forest management began with the appointment of Dietrich Brandis as the first Inspector General of Forests in 1864. This was followed by the Indian Forest Act of 1865, which allowed the state to acquire forests for railway supplies, and the more comprehensive 1878 Forest Act that expanded state control over forests. The British government declared its first formal Forest Policy in 1884 with objectives of preserving climate and physical conditions, promoting people's well-being, and fulfilling their needs. The Indian Forest Act of 1927 was then enacted, being very comprehensive and containing all the major provisions of the earlier acts and amendments, including those related to duty on timber. Crucially, the 1927 Act also embodied a land-use policy allowing the British to acquire all forestland, village forests and other common property resources. It made poisoning of water in forest areas punishable under Section 26(i) and empowered state governments to make rules against such poisoning under Section 32(f). Other notable British-era acts included the Shore Nuisance (Bombay and Kolaba) Act of 1853 regulating coastal pollution, the Oriental Gas Company Act of 1857 imposing fines for water fouling, provisions in the Indian Penal Code of 1860 against voluntarily fouling public water sources, the North Indian Canal and Drainage Act of 1873 regulating irrigation canals and drainage, the Indian Easements Act of 1882 protecting riparian owners against unreasonable pollution, the Indian Fisheries Act of 1897 prohibiting killing fish by poisoning or explosives in water, and the Indian Ports Act of 1908 regulating oil discharges in port waters.
British colonial laws like the Indian Penal Code (1860) and the Indian Forest Act (1865) addressed environmental issues to some extent. The Indian Penal Code criminalized certain activities that caused environmental harm, such as fouling the water of public springs or reservoirs (Section 277) and negligent conduct related to poisonous substances (Section 284).[10] The Indian Forest Act of 1865 was one of the earliest legislations that aimed to regulate the management and conservation of forests in British India.[11]
However, these laws were primarily aimed at resource exploitation for colonial interests. The colonial forestry policies were geared towards extracting maximum revenue from forests, often disregarding the traditional rights and practices of local communities.[12] The colonial administration viewed forests and natural resources primarily as sources of revenue and raw materials for industries, rather than ecosystems to be preserved.[13]
During the colonial period, environmental laws were primarily focused on resource extraction and revenue generation, with little regard for sustainability or the traditional ecological knowledge and practices of local communities. However, these laws also laid the foundation for subsequent environmental legislation in independent India.
POST-INDEPENDENCE DEVELOPMENTS:
The Constitution of India (1950) incorporated provisions for environmental protection under the Directive Principles of State Policy and Fundamental Duties.
Article 48A, added in 1976, and instructed the protection and improvement of the environment and safeguarding of forests and wildlife.[14] Article 51A (g), introduced in 1976, made it a fundamental duty of every citizen to protect and improve the natural environment.[15]
The Wildlife Protection Act, was enacted in 1972. This act provided for the protection of wild animals, birds, and plants, and established a network of national parks and sanctuaries.[16] It was a significant step towards conserving India's rich biodiversity and natural habitats.
The Water (Prevention and Control of Pollution) Act (1974) and the Air (Prevention and Control of Pollution) Act (1981) were landmark legislations. These acts aimed to prevent and control water and air pollution by establishing central and state-level pollution control boards.[17] They introduced principles like the "polluter pays" and authorized boards to enforce compliance through penalties and legal action.
In the post-independence period, India's environmental laws gained significant momentum, with the Constitution providing a framework for environmental protection and specific legislations addressing issues like wildlife conservation, water pollution, and air pollution. These laws established institutional mechanisms and introduced principles like the "polluter pays" to safeguard the environment.
JUDICIAL ACTIVISM:
The Supreme Court of India played an important role in increasing the scope of environmental jurisprudence through landmark judgments.
In the Oleum Gas Leak Case, the Supreme Court held that it is the right to a wholesome environment as part of the fundamental right to life under Article 21 of the Constitution.[18] The Bhopal Gas Tragedy Case laid down the principle of absolute liability for hazardous industries, where the industry is liable to compensate for any harm caused, regardless of any negligence.[19]
The concept of "Sustainable Development" was introduced and the "Polluter Pays" principle was established in the Vellore Citizens' Welfare Forum v. Union of India case (1996), the Supreme Court defined sustainable development as a balancing act between development and environmental protection.[20] The court also established the "Polluter Pays" principle, which requires the polluter to bear the cost of remedying the pollution caused by them.[21]
The Supreme Court's judgements played a vital role in interpreting and expanding the scope of existing environmental laws and principles. Through its judgments, the court has consistently upheld the precautionary principle, the principle of intergenerational equity, and the public trust doctrine in environmental cases.[22]
INTERNATIONAL COMMITMENTS:
India became a signatory to several international environmental agreements like the Stockholm Declaration (1972), the Montreal Protocol (1992), and the Rio Declaration (1992).
The Stockholm Declaration laid down principles for environmental protection and sustainable development, which influenced India's domestic policies.[23] The Montreal Protocol aimed to phase out substances that deplete the ozone layer, leading to the Ozone Depleting Substances (Regulation and Control) Rules in India.[24] The Rio Declaration emphasized principles like the precautionary approach, polluter pays, and public participation in environmental decision-making.[25]
The Environment Protection Act (1986) was a broad legislation intended at implementing these international commitments. This act delivered a framework for directing activities related to environmental protection and enforcement.[26] It empowered the central government to take measures to protect and improve the environment, including setting standards for emissions and discharges.[27]There are various rules and regulations, like the Environmental Impact Assessment Notification (1994), which were notified under this act.
India has also been an active participant in global climate change negotiations and initiatives. India signed the United Nations Framework Convention on Climate Change (UNFCCC) in 1993 and the Kyoto Protocol in 2002.[28] India's Intended Nationally Determined Contribution (INDC) under the Paris Agreement (2015) outlines its goals for reducing greenhouse gas emissions and increasing renewable energy capacity.[29]
India's participation in various international environmental agreements and conferences has significantly influenced its domestic environmental policies and legislation.
RECENT DEVELOPMENTS:
The National Green Tribunal was established in 2010 to adjudicate environmental disputes. The National Green Tribunal (NGT) was established under the National Green Tribunal Act, 2010. The National Green Tribunal Act, 2010 was enacted by the Parliament of India to provide for the establishment of the National Green Tribunal.
The NGT was set up as a keen judicial body to adjudicate the cases related to environmental protection, conservation of forests and natural resources, and enforcement of legal rights relating to the environment.
This Act empowers the NGT to issue directions and orders for the operational enforcement of environmental laws and provide relief and compensation for environmental damage.
Section 3 of this Act establishes the NGT as a multi-member body consisting of a Chairperson, judicial and expert members.
Section 14 outlines the Tribunal's broad jurisdiction over civil cases of substantial questions relating to the environment, including enforcement of legal rights and granting compensation/relief for environmental damage.
The NGT has the power to regulate its own procedure (Section 19) and is guided by principles of natural justice in its proceedings.
Appeals against NGT orders lie in the Supreme Court (Section 22).
This tribunal was set up to adjudicate cases related to environmental protection, conservation of forests and natural resources, and enforcement of legal rights relating to the environment.[30] It has the power to issue directions and impose penalties, providing a dedicated forum for resolving environmental conflicts.[31]
Other Laws like the Compensatory Afforestation Fund Act (2016), the Solid Waste Management Rules (2016), and the Plastic Waste Management Rules (2016) were also introduced. The Compensatory Afforestation Fund Act established a national fund for compensatory afforestation and conservation efforts.[32] The Solid Waste Management Rules aim to ensure proper collection, transportation, and disposal of solid waste, including provisions for waste segregation and treatment.[33] The Plastic Waste Management Rules regulate the manufacture, import, storage, transportation, and disposal of plastic waste, promoting sustainable alternatives.[34]
India has committed to climate change mitigation efforts and renewable energy marked under the Paris Agreement (2015). India's Nationally Determined Contribution (NDC) includes goals like reducing the emissions intensity of its GDP by 33-35% by 2030 from 2005 levels.[35] The government has launched initiatives like the National Clean Air Programme[36] and the National Action Plan on Climate Change[37] to address air pollution and climate change.
In recent years, India has taken several steps to strengthen its environmental legal framework, including the establishment of the National Green Tribunal, introduction of new laws and rules addressing specific environmental issues, and commitments to climate change mitigation and renewable energy targets under international agreements like the Paris Agreement. These developments aim to address emerging environmental challenges and promote sustainable development practices in the country.
CONCLUSION:
The journey of environmental law in India showcases the country's deep-rooted philosophical traditions and cultural practices intertwined with modern legal and institutional mechanisms. From the reverence towards nature enshrined in ancient scriptures like the Vedas and Upanishads, to the sustainable practices adopted by local communities, India's civilizational values have provided a robust foundation for environmental conservation.
In the post-independence era, India has made significant progress in developing a comprehensive environmental legal regime. The Constitution enshrined provisions for environmental protection, paving the way for landmark legislations addressing critical issues such as wildlife conservation, water and air pollution control. The judiciary's proactive role, through expansive interpretations and application of principles like sustainable development and polluter pays, has further strengthened the environmental jurisprudence.
India's participation in international environmental agreements like the Stockholm Declaration, Montreal Protocol, and Rio Declaration has influenced its domestic policies, leading to the enactment of overarching legislation like the Environment Protection Act. The establishment of the National Green Tribunal has provided a specialized forum for adjudicating environmental disputes.
Recent decades have witnessed the introduction of specific laws and regulations addressing emerging challenges such as waste management, afforestation, and plastic pollution. India's commitments under the Paris Agreement and initiatives like the National Clean Air Programme reflect the nation's efforts to align with global environmental goals and contribute to the fight against climate change.
While challenges persist, India's environmental legal framework has evolved significantly, drawing from its ancient wisdom and adapting to modern exigencies. This multifaceted approach, rooted in the nation's rich cultural heritage and informed by contemporary realities, continues to shape India's path towards environmental sustainability and ecological conservation.
SOME IMPORTANT MATERIALS TO STUDY
Books:
"Environmental Law in India" by P. Leelakrishnan
"Environmental Law and Policy in India" by Shyam Divan and Armin Rosencranz
"Environmental Justice in India" by Armin Rosencranz and Michael Anderson
"This Fissured Land: An Ecological History of India" by Madhav Gadgil and Ramachandra Guha
Case Laws:
Oleum Gas Leak Case (1986): Established the right to a wholesome environment as part of the fundamental right to life.
Bhopal Gas Tragedy Case (1987): Laid down the principle of absolute liability for hazardous industries.
Vellore Citizens' Welfare Forum v. Union of India (1996): Introduced the concepts of sustainable development and the "Polluter Pays" principle.
M.C. Mehta v. Union of India (1987): Established the principle of absolute liability for hazardous activities.
Principles of International Declarations:
Stockholm Declaration (1972):
- Principle 1: Human right to adequate environment
- Principle 21: Fight against pollution
- Principle 22: Compensation for environmental damage
Rio Declaration (1992):
- Principle 3: Right to development and environmental protection
- Principle 15: Precautionary approach
- Principle 16: Polluter pays principle
Legislations:
The Constitution of India (Article 48A, Article 51A(g))
The Wildlife Protection Act, 1972
The Water (Prevention and Control of Pollution) Act, 1974
The Air (Prevention and Control of Pollution) Act, 1981
The Environment Protection Act, 1986
The National Green Tribunal Act, 2010
The Compensatory Afforestation Fund Act, 2016
The Solid Waste Management Rules, 2016
The Plastic Waste Management Rules, 2016
Sections of Various Acts:
The Water (Prevention and Control of Pollution) Act, 1974: Sections 24-25 (Prohibition and penalties)
The Air (Prevention and Control of Pollution) Act, 1981: Sections 21-22 (Penalties and procedure)
The Environment Protection Act, 1986: Sections 3-7 (General powers of the Central Government)
The National Green Tribunal Act, 2010: Sections 14-15 (Jurisdiction and powers of the Tribunal)
[1] Srinivasan, K. (2019). Environmental Ethics in the Vedas. Sahitya Akademi.
[2] Dwivedi, O. P. (1990). Saving Nature: Perspectives from the Upanishads. In K. L. Seshagiri Rao (Ed.), Environmental Ethics: Vedic Tradition (pp. 45-60). Bharatiya Vidya Bhavan.
[3] Ibid.
[4] Ibid.
[5] Rangarajan, L. N. (1992). The Arthashastra (Edited, Rearranged, Translated). Penguin Books India.
[6] Ibid.
[7] Malhotra, K. C., Gokhale, Y., Chatterjee, S., & Srivastava, S. (2001). Cultural and Ecological Dimensions of Sacred Groves in India. Indian National Science Academy
[8] Agarwal, A., & Narain, S. (1997). Dying Wisdom: Rise, Fall and Potential of India's Traditional Water Harvesting Systems. Centre for Science and Environment.
[9] Gadgil, M., & Guha, R. (1992). This Fissured Land: An Ecological History of India. Oxford University Press.
[10] Jain, M. P. (2018). Indian Constitutional Law (8th ed.). LexisNexis.
[11] Rangarajan, M. (1996). Fencing the Forest: Conservation and Ecological Change in India's Central Provinces 1860-1914. Oxford University Press.
[12] Guha, R. (1983). Forestry in British and Post-British India: A Historical Analysis. Economic and Political Weekly, 18(44), 1882-1896.
[13] See Supra 9
[14] Divan, S., & Rosencranz, A. (2001). Environmental Law and Policy in India (2nd ed.). Oxford University Press.
[15] Ibid.
[16] Leelakrishnan, P. (2008). Environmental Law in India (3rd ed.). LexisNexis Butterworths.
[17] Sharma, P. D. (2005). Ecology and Environment (7th ed.). Rastogi Publications
[18] See Supra 14.
[19] Ibid.
[20] See Supra 16.
[21] Ibid.
[22] See Supra 14.
[23] Krueger, J. (2007). From Single Species to Ecosystem Protection: The Evolution of Environmental Policy in India. In A. Breton et al. (Eds.), Environmental Governance and Decentralisation. Edward Elgar Publishing.
[24] Sahu, G. (2008). Implementation of Montreal Protocol in India. In S. Jayakumar (Ed.), Climate Change and Air Pollution. Springer.
[25] Ibid.
[26] See Supra 14.
[27] Ibid.
[28] Dubash, N. K. (2012). Handbook of Climate Change and India: Development, Politics and Governance. Routledge.
[29] Ibid.
[30] Dutta, A. (2021). The National Green Tribunal of India: An Ecological Perspective. In A. Dutta & M. Ghaleigh (Eds.), Environmental Justice in India. Oxford University Press
[31] Ibid.
[32] Kohli, K., & Menon, M. (2016). The Compensatory Afforestation Fund Act, 2016. Economic & Political Weekly, 51(26-27), 22-25.
[33] MoEF&CC. (2016a). Solid Waste Management Rules. Ministry of Environment, Forest and Climate Change, Government of India.
[34] MoEF&CC. (2016b). Plastic Waste Management Rules. Ministry of Environment, Forest and Climate Change, Government of India.
[35] UNFCCC. (2022). India's Nationally Determined Contribution. United Nations Framework Convention on Climate Change.
[36] MoEF&CC. (2018). National Clean Air Programme. Ministry of Environment, Forest and Climate Change, Government of India.
[37] NAPCC. (2008). National Action Plan on Climate Change. Prime Minister's Council on Climate Change, Government of India.
Written By Riya Chatterjee
BALLB 2027 | Calcutta University, Kolkata