This article was written by Priya Bhardwaj, a student of New Law College, Pune.
Environment protection – conceptual framework:-
From the dawn of 21st Century the environment issues and problems has emerged as a major concern for the well-being of the people. In India, the notion of environmental protection can be seen spring from the period of Vedas. The conception of ecological protection and preservation is not modern. It has been intrinsic to many ancient civilizations. Ancient Indian texts accentuate that it is the DHARMA of each individual in the society to protect nature and the term ‘nature’ includes land, water, trees and animals which are of great significance to us. Protection of the environment throws up a body of problems for the developing nation like India. Administrative and legislative arrangement of grooving the environmental values with developmental values are a must and are to be changed in the trial of prevalent socio-economic conditions in the country. In determining the scope of the powers and functions of administrative agencies and in striking a balance between the environment and development, the courts have a crucial role to play.
Meaning of environment–
Environment is our surrounding, which gives a person a fresh atmosphere to grow faster. It’s a need of a common man to live in a healthy atmosphere .It includes circumstances, objects and condition by which all are surrounded.
According to “Merriam Webster” The conditions that surround someone or something: the conditions and influences that affect the growth, health, progressed, of someone or something.
The Environment (Protection) Act, 1986.
Section 2(a) environment “includes water, air and land and the inter- relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property.”
Aim and objectives–
The environment which we live in is comprised of different factors which also include human being. But we humans are always up in front in degrading this precious gift of nature. Although, there are various groups and NGO’s working in favour of it and for its protection. We with the same motive in this research paper wants to draw the attention of government and its core pillar; judiciary to introduce and implement the laws regarding protection of our environment.
Most of the sections of this research paper have been collected from secondary data. Hence AIRs, PIL cases and books were referred to evaluate this paper. However some of the primary data were also been obtained to finalize the same.
Need for the protection of the environment–
Today we are living in a world of competition, a lot of technologies and introduction of industries in the market as a rivalry with each other. This results in the degradation of our environment by which we are surrounded .As we can see, various industries dispose their waste in the rivers and pollute them very badly which harms the aquatic animals and indirectly the human beings also .In India”ganga” was considered to be the most purest river but nowadays it is the most polluted one .also In Japan, after that nuclear Hiroshima Nagasaki attack people have faced a huge environmental loss. Also there is a vast duration of nature’s land and deforestation for building up the infra for self needs. We the humans of this competitive world ignores the well-founded of the nature just for our rational needs. So there should be some laws which protect our environment and conserve it sustainably for our next generation. Some rules should be made by concerned authorities to prevent these actions taken by industries.
Available Judicial remedies for environment pollution–
The remedies available in India for environmental protection comprise of tortuous as well as statutory law remedies. The tortuous remedies available are trespass, nuisance, strict liability and negligence. The statutory remedies incorporates: Citizen’s suit, e.g.
Section 19 of the Environmental (Protection) Act, 1986,
Area 133, Criminal Procedure Code, 1973 and
activity brought under the Section 268 of IPC for open irritation, under Indian Penal Code,1860.
Apart from this, the writ petitions can be drawn from Article 32 in the Supreme Court of India and also under Article 226 in the High Court.
The Indian judiciary has developed the following tortuous remedies:
In the recent case of Shriram Gas Leak which involves the emission of Oleum gas that resulted in substantial environmental harm to the citizens of Delhi, the court held that the quantum of damages awarded must be proportionate to the capacity and magnitude of the polluter to pay. However, the Apex Court has deviated from this test in the Bhopal Gas Tragedy.
The purpose of injunction is to prevent the continuous wrong. The grant of perpetual injunction is governed under Sec.37 – 42 of Specific Relief Act, 1963.
Nuisance means the act which creates hindrance to the enjoyment of the person or group of person in form of smell,air,noise, etc.
According to Marx Stephen, nuisance is anything which is done to hurt, destroy or annoyance of lands, tenements of another and not amounting to trespass.
Nuisance can be divided into two categories:
Private Nuisance – Private Nuisance is substantial and unreasonable interference with the use and enjoyment of one’s own land.
Public Nuisance – Public Nuisance is unreasonable interference with the general rights of the public.
It means intentional and negligently directly interference with personal and proprietary rights without any lawful excuses.
The two most important essentials for trespass are:
1) There must be intentional negligent interference with the personal or proprietary rights.
2) The interference with personal rights must be directly rather than to be consequential.
It connotes failure to exercise the reasonable care that a reasonably person would exercise in like or same circumstances.
The rule articulated in Rylands v. Fletcher by H.Blackburn J. is that the person who for his own purpose brings on his land collects and keeps there anything which likely to be a mischief, if it escapes, must keep it as its risk, and if he does not do so at prima facie even though, he will be answerable for all the damages which is the natural consequence of its escape. The doctrine of strict liability is considerable accountable in environmental pollution especially cases dealing with the harm caused by the emission of hazardous substances.
Failure of administrative body in respect of Environmental laws–
With the major advantages of our flexible and rigid system there are also various drawbacks and flaws of the same. Our esteemed legislature and judiciary are well versed in making various laws favouring the environment but it also failed in same major areas such as in implementing process. This democracy gives the various rights to the individuals of the country but also restricts them at distinct area. The slow implementing process is the major drawback of our country this not only leads to failure of function but also disgrace the pillars of our government.
Nevertheless our judiciary performed a great job by giving largish judgment in the landmark case of MC Mehta v. Union of India and unfold the remarkable doctrine of ABSOLUTE LIABILITY which propounded a major principal in favour of public by exceeding their right to life and also indirectly to the protection of environment. After this landmark judgment various amendments were introduced to the constitution and other Acts such as Factories laws, pollution control Act, water management Act, forest protection Act and many others.
There are many others rights which our Indian judiciary and legislature evolved as per the needs. This rights are mentioned under as follows :-
Pollution control Act, 1981
Biological Diversity Act, 2002
Environment Act, 1986
Forest Conservation Act, 1980
Indian Forest Act, 1927
National Green Tribunal Act, 2010
Protection of Plant Varieties and Farmers’ Rights Act 2001
Public Liability Insurance Act, 1991
The Scheduled Tribes and Traditional Forest Dwellers Act, 2006
Water Prevention Act, 1974
Wildlife Protection Act 1972
Noise Pollution Law
waste Handling and management act, 1989
The Indian judiciary plays a remarkable role in uplifting the goal of preservation through its various landmark decisions and the Acts and laws which provides a platform so as that one cannot exploit the nature and its gift for his or her greedy needs. Also there is vast participation of individual that can be seen through various movement such as chipko movement and various others. Others measures such as educational camps, and other movements such as swachta abhiyaan should be introduced more further.Environment is the gift of nature and we have to respect it. Its the duty of every individual to conserve the beauty of environment
“Live Green Love Green Be Green, We are The Mankind Without the
Earth We Are Nothing ”
Mehta M.C. Vs. ,Union of India (1998) SCC 206; M.C. Mehta Vs. Union of India, 6 SCC 12 – orders were phasing out of old vehicles, permitting those vehicles which conformed to Euro II norms . (1999).
AIR 1990 sc 123
AIR 1999 Sc 199
AIR 1987 Sc 1024
M. Lodha, ENVIRONMENTAL RUIN: THE CRISES OF SURVIVAL, P.364 .New Delhi: Indus Publishing.
HUMAN RIGHTS APPROACH TOWARDS POLLUTION FREE ENVIRONMENT, available at www.indiastat.com/Article/14/indira/fulltext.pdf – United States.