[Guest Post] Protection of Environment & Law by Amisha Gupta



INTRODUCTION

Environment is the system in which human and organisms live as a whole and for maintaining this specific law is there called environmental law. The collection of rules, guidance, discussions and agreements can be termed as environmental law. As of all the laws it has general purpose to indirectly protect the interest of people as whole and not only to protect but also guide them why they need to protect their natural resources which are limited in nature due to overuse. This law also bids the action of people like closing of industry which causes over pollution and causes harm to public. Actions of one which are against another’s right of having healthy environment are dealt under environmental law.[1]

DIFFERENT AREAS

Environmental law mainly observed as nuisance which is covered under “tort law”. It means to annoy or to infringe someone’s right related to land or causing some injury to that person.[2] Public nuisance includes nuisance to large section of people together like carrying trade which release offensive smell[3], or intolerable noises which annoy people[4], keeping dangerous substance at large quantities[5]and so on.

Environmental laws covers many areas like water quality, land, hunting and fishing, air quality, waste management, chemical safety etc. conserving environment is duty of every person irrespective of any country. Management of environment is worldwide issue and for this there are international as well as national laws of environment.

INTERNATIONAL LAW International laws are made by the international agreements constituting between many countries, agreeing to carry some common rules and procedures for serving their earth together. Current issues which are going by such as depletion of ozone layer, global warming, marine plastic pollution from ships, international trade in endangered species, deforestation, nuclear air pollution , to solve these kind of issues international law is came into existence which is derived from customary or international treaties and sometimes from the judgment of international court[6]. International law focuses on sustainable development[7], it manages usage of present resources in such manner so that it doesn’t destroy future capacity of resources.

DECLARATION BY INTERNATIONAL LAW

There are two major declarations on this:

First major attempt is the declaration of the United Nation conference on the human environment which considers the global human impact on the environment. It enhanced the environmental policy goals rather than any normative position.

Second declaration was produced in 1992, called as Rio declaration on environment and development or Rio earth summit which intended to introduce sustainable development. Issues like rising global temperature which affects the climate, fluctuation in demand of gas, metal, coal, problem with world bank, trade or minerals are generally dealt under international environmental law and they are not  always entertained in international court, sometimes it solved through arbitration or different courts which have authority to deal with specific case.

NATIONAL PROBLEM

National environmental law deals with problem within country which works on internal agreement of country and other rules. National law includes regulatory framework which is formed by the policies of companies or industries which contribute at large to the environment. National level law is divided at state level where the law varies from state to state as per the working of industries in that area or other factors which contribute to environment. Formation of law is not simple task. Before declaring the bill every aspect of that is crosschecked and proper debate is done on that issue as environmental law has always been the point of controversy. For example before restricting any type of pesticide in agriculture[8] proper debate has been done from the point of industries and from the science perspective. Environmental law mainly covers pollution as the public health is main affected by that. pollution can be classified into; air pollution which is due to the releasing of toxic chemicals into air[9] by motor vehicles, industries etc. air pollution covers the part of ozone layer which is related to greenhouse effect which is due to only excess of air pollution, next is water pollution which is by the contamination of chemicals or dirt by the water which cannot be used for any purpose.

Waste management is very important to deal with the huge waste of growing population as the waste cannot be avoided completely. Wastage affects our precious resources which critics not only the situation of our environment but also human health. Next part which is covered under environmental law is sustainability of resources which can be defined as the ability to sustain our resources that is the resources should be used at their fullest. National parks have been established after 19th century in many countries for prevention of ecology[10]. Minerals such as coals, metals, mines etc. are now prevented by imposing licensing for them as they are rare resources which are decreasing at alarming rate, hence they need to be controlled. For controlling, proper legal provisions have been issued. As the environment is very vast the provisions are covered under different acts while having its own specific act too. The living document of India i.e. the constitution of India has three clauses for protection of environment. First clause under chapter of fundamental duties, article 51-A(g) which imposes duty on every citizen of India to protect or develop the natural environment[11]. second clause which is for building welfare through article 47 which constitutes duty on state to ensure public health by raising level of nutrients or by improving standard of living and by improving situation of environment as public health is related to that.

 Article 48 and 48-A deals with animal husbandry and forest, wildlife. Third and the last clause of constitution is article 21[12] which about giving right to every person to live life and giving personal liberty, in which right to get healthy environment for living is included [13]. In PA Jacob case,[14] where the dispute was related to loud noise which was creating noise pollution and the defense was taken under article 19(1)(a) but the court here held that as per the article 19(2) reasonable restriction they were not allowed to use that loud speakers which were creating noise pollution. Noise pollution is punishable u/s 268 Indian penal code. This case is too sensitive as it needs punishment and for proper functioning it is referred under many acts.

LAWS PROTECTING ENVIRONMENT IN INDIA 

There are specific provisions which focus only on protection of environment:

1) The Environment Protection Act, 1986- This act is introduced after Bhopal tragedy case[15], in which operating industries were releasing toxicants at alarming rate. Parliament passes this act for implementing decisions of unilateral Nations conference on the human environment. This act defines power of central government, guidelines for preventing and ways for controlling and abating of environmental pollution. Chapter 3rd and 4th works for the environment and other chapter defines the procedure for appointing of environment protectors. Duties are given to people to protect their environment and state has given the duty to check on them, if anywhere violation of rules is seen then they have a right to action against that offence. For example as per section7 of this act[16], it imposes duty on industry to release toxicants only as per the standards set by state. For implementing this act mere regulations are not enough but proper providing of information to industrialists is important because as per chapter 3 of environment protection act, in which main focus to prevent environment is through industry as they have the major portion because their actions are somewhere related to environment like releasing of chemicals which results into water pollution, noise pollution, air pollution etc. the problem for implementing rules is because of lack of knowledge and to absorb this negative point guidance must provide to workers, this can be done by conducting regular seminars and workshops. To encourage people state should provide incentives or awards for best industry which is pollution free or any other kind of awards. This kind of programe or initiative can boost up the industries confidence to shift their technology which is pollution free. There must be proper check up of all industries to check if they are pollution free or not and if they are out of the standards set by state then penalty must impose on them. If we compare this solution by another act then as per the new traffic rules[17], from the day the penalty has increased the offence rate is decreasing because nobody wants to pay a lot of money as penalty.

As per section 12 of environmental act central government has duty to have laboratories. Government must be active in controlling laboratory work because if government doesn’t take active part then the workers will also become weak. Rules which are made are more than enough to ensure healthy environment  but we don’t have healthy environment because working of rules and regulations doesn’t performed well which is somewhere fault of the person who is in authority to keep check on the actions. law must be more strict which must bound the people to perform their duty honestly by not violating any of their fundamental rights which is ensured under article 32 and 21 of Indian constitution[18].

2)  The Air (prevention and control of pollution) Act, 1981- pollution influences environment and pollution can be of any type like water pollution, noise pollution or land pollution. Pollution destroys whole picture of environment and to regulate this properly, specific act is made which only focused on pollution. This act contains rules, regulations, notifications, orders, statutory, ordinance and statues. Recently, in Delhi where there was no particular case suited but before that directions were given by Supreme Court directly to the union of India and government to clear all the smog towers and give them authority to do this work.[19]

Central pollution control kept daily on improvement of the smog and when this report is analyzed by the government that they announced rule of odd/ even car system in Delhi. Still by this action, it took too long to get rid off from the problem because somewhere it’s the mistake done by government. They only implemented action in Delhi and all the rules were taken only for the Delhi district. The reason for this smog was over pollution by industries, vehicles or by burning crackers as it was the festival season and the main reason was burning of agriculture left outs by farmers. Cultivation is mainly done in Haryana which is near to Delhi but the actions were taken in Delhi, not in Haryana.

The level of smog was almost equal in Haryana and Delhi but government failed to take precautions in other affected state except Delhi. Delhi is a metropolitan state and it needs more attention but that doesn’t mean government can avoid all other states which are suffering from this. This dangerous smog affects a lot of people and caused them breathing problem because the smog was there for almost 20-25days as the government was not too attentive in curing it. If government worked equally for all the states which are affected or we had some strict rules then many people can be saved from such health issues. If more implementation of rules were there then this problem can be avoided. Every person knows that burning crackers leads to pollution but still after presence of too much smog many people burnt crackers which increased the level of smog. Here government missed their duty to restrict people to burn crackers[20]. Every law must be that much strict that put compulsion on people to follow that for protection fundamental right of other people.[21]

3) Forest Conservation Act 1980- under this act the main focus is to prevent forests. This act guide the people, how they can prevent the forests and who have the authority to keep check on the people. Usually there is competition between industries and forests, as the land is limited and it has to be divided for industry and forest so according to time some forest need to convert into forest thus forest has to be demolished. Forest can be demolished but only after the prior permission of authorized person by giving reasonable justification. By this people are guided in which standards cutting of trees will take place an how they will balance the level of forest as there shouldn’t be too much deforestation as it will cause increase in level of carbon dioxide and many other problems.

 Deforestation is increasing at alarming rate because of unawareness amongst people, there is a need to maintain awareness among public to grow more trees. Many programmes have been started by government like green India, pedh bachao or giving small plant as a reward for doing something but still there is lackness somewhere which needs to get refilled. In Bolivia recently incident took place[22] where due to presence of excess temperature all tress got burnt which resulted in fire in planet’s lungs i.e. Amazon forest which provides most of the oxygen to earth, was in danger. The reason behind this tragic incident was due to maximum temperature which can be prevented by government by making early preparation for preserving this incident as the weather is predictable and it was known by the government that it occurred fire. It was believed by many people that firing was occurred intentionally because local residents needs land for grazing their cattle or building industry as there is a battle between agriculture and industry on land. Law needs to that much strong and efficient that it should provide land in maximum limits to every purpose so that no area left without resource. This incident affected climate a lot, people faced breathing problem because of presence of excess of carbon dioxide in air.

4) Wildlife Protection Act 1972- this act focuses on preserving animals and plants. This act introduces place which is separated from humans like sanctuary, national parks, biodiversity, bio sphere. This preserves endangered species from illegal hunting, poaching and trading.[23] Article 48 of Indian constitution imposes duty on state to protect endangered species and get ensure about their well being. For this, government instituted national parks and sanctuaries. As the illegal hunting and trading of animals for their skin or body is increasing, there is an increasing demand for their security. As all other acts this act is also not perfect. It has some drawbacks like imposing mild penalty, getting personal ownership certificate for personal gain. Excessive centralization also leads problem as proper checking or work become difficult. As the problem increases there is more need for controlling that which needs immediate action sometime and this need more workers and managers which increases overall cost and hence results in maximization of expenditure which indirectly affects other functions of government which is for public welfare. Here the penalty taken is very less than expenditure occurred to control them and this creates imbalance between functioning and puts more financial burden on government.

Government usually makes rules on their interpretation and resists public idea which controls many efficient schemes. Somewhere it shows the need for increasing the amount of penalty as per the amount of their actions so that actions and penalty would maintain balance between them and government will get less burden to arrange ore funds and get rid of tension of generating more funds and they can give their saved time in protection environment rather than just wasting all of it. To conclude, environmental law is made for protection of our resources and rare species like wildlife and also for preserving things which is necessary for every human health like Water, forests etc. environmental take action as a whole and work for people which has given authority under Indian constitution.[24]

CONCLUSION

As the environment is in danger due to actions of latest technology used in our environment like working in industries, usage of vehicles all time on road, using resources carelessly, giving less attention towards nature because of everyday workload ,the need for increasing strictness law is maximizing to get desired result. As the laws are getting strict there is more burden on governments as they are the ultimate hands of top most authorities to get their idea executed. It is high time to create awareness among public towards this programs by suing different method and different techniques to reach every individual because general public get interacted with environment in their daily routine. Person in authority must accomplish their work honestly without getting any personal gain from public welfare and this is the main focus for implementing actions ad many officers now a days are working only for their personal profits. Modern environmental law needs new method which should attract every person and it’s the duty of the government to get it done right. It’s wrong to impose all duties on government only because there is a duty of every person who is living on this planet to conserve its mother earth and give her respect by taking care of her and protection fundamental right of other people by giving them right to live in healthy environment[25].

As the technology changes, there is a need to get change law also, to get balance between actions and punishments .so according to the offences , there must be proper amendments for giving flexibility to law to get shape according to type of case by treating it more effectively so as to make ensure that it shouldn’t  repeated in future.

The author of this article, Ms. Amisha Gupta is a law student at UPES, Dehradun. She can be reached at [email protected] 


[1]

[2] Solatu v. de held (1851)2 sim NS 133

[3] Malton board of health v. Malton manure co.(1879)

[4] Lambton v. Mellish(1894)

[5] Lister’s case (1851)

[6] Trail smelter arbitration case 1938

[7] Vellore Citizens Welfare Forum v. Union of India(1996)

[8]  Dr. Ashok v. Union of India & ors (1997)

[9] M.C. Mehta v. Union of India

[10] K.M, Chinnappa v. Union of India and ors (2002)

[11] Rural Litigation v. state of U.P

[12] Maneka Gandhi v Union of India(1978)

[13] Entitlement Kendra v. State, AIR 1988 SC 2187

[14] PA Jacob v. the Superintendent of Police Kottayam, AIR 1993 ker 1

[15] Union Carbide Corporation v. union of India etc on 4 may , 1989

[16] Environment Department and Anr v. the State of Maharashtra and anr on 2 may,2019

[17] Motor Vehicles Act (Amendment)2019

[18] The Ganga water pollution case: M.C. Mehta v. Union of India, 1988

[19] Delhi smog case November 2019

[20] Article25 of Indian constitution, Arjun Gopal v. Union of India on 23rd October, 2018

[21] Article 21 of Indian constitution

[22] Amazon rainforest fire case: 2019

[23] Wildlife v. Ashok Kumar & ors on 11th april, 2018

[24]  Article47, article48, article51, article21 , constitution of India 1950.

[25] Article 21 of Indian constitution

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