A study on the Environmental law

THIS ARTICLE WAS WRITTEN BY ISHAA AJAY, A STUDENT AT SASTRA UNIVERSITY.

INTRODUCTION

The Environment is defined as the outer physical system where all the biological organisms breathe and live as a whole. The environment in which we live is comprised of different factors which also include a human being. The term refers to all the aspects of the natural atmosphere such as air, water, land, flora, and fauna as well as the human environment including indigenous and non-indigenous cultures and includes all the objects, circumstances and conditions which surround us.

Environment (Protection) Act 1986 defines Environment as which includes “water, air and land and the interrelationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism, and property”[1]. The term environment has been derived from the term ‘environ’, which means ‘to surround’ Thus, etymologically environment means ‘surrounding conditions, circumstances affecting people’s life[2].

CONTAMINATION OF INDIAN RIVERS

Owing to the industrial activities, economic as well as population pressures there is an increase in the pollution and use of water which limits the availability of water and poses a dire problem for the future. The prime act dealing with the water quality standards and water pollution is the Water (Prevention and Control Of Pollution) Act, 1974, which mainly focuses on preventing water contamination. .

In a preceding case, the Supreme Court observed that ‘Water is the basic need for the survival of the human beings and is part of the right of life and human rights as enshrined in Article 21 of the Constitution of India’[3]. Whereas in Subhash Kumar v. State of Bihar[4] the Supreme Court recognised that the right to life ‘includes the right of enjoyment of pollution free water and air for full enjoyment of life’.

It has been found that an increase in the level of water pollution points to the deficiency in the control, implementation of legal provisions and institutional arrangements in managing these programs.

Also in India, there is no law requiring that developmental ventures to ensure that the ecological flow is maintained. Neither is there any legal or institutional mechanism to analysis the cause of degradation of the ecological flow. The ecological flow of a river is vital for its survival and must be maintained to preserve the biodiversity.

CONTAMINATION OF AIR

Though one can find unhealthy air in any country, the worst pollution these days is accumulating in developing countries with growing populations. An evident example of the choking air in India is the iconic white marble walls of the Taj Mahal turning green[5]. The World Health Organisations statistics report shows that ninety-eight percent of cities with more than 100,000 inhabitants in low and middle-income countries do not meet its air quality guidelines. India’s Air (Prevention and Control of Pollution) Act, 1981 defines air pollution as “the presence in the atmosphere of any air pollutant” and an air pollutant as “any solid, liquid or gaseous substance including noise present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment[6].” In Vardhaman Kaushik vs. Union of India & Ors.[7]the National Green Tribunal stated that there are seven major contributors to air pollution in all States more particularly NCT, Delhi. These are:

1. Construction activity and carriage of construction Material;
2. Burning of Municipal Solid Waste and other waste;
3. Burning of agriculture residue;
4. Vehicular Pollution;
5. Dust on the roads;
6. Industrial and powerhouse emission including fly ash;
7. Emissions from Hot-Mix Plants and Stone Crushers.

The Tribunal thus sought to penal sanctions for environmental harm such as enforcing a ban on 10-year-old diesel vehicles, imposing fines on burning municipal solid waste in the open and not covering construction materials during transportation and construction.

ENVIRONMENTAL CRIMES

Environmental crimes can be broadly defined as illegal acts that directly cause destruction to the environment. It includes illegal trading in wildlife, smuggling of ozone-depleting substances (ODS), illegal trade in hazardous waste, unregulated and illicit fishing and the allied trade in stolen timber. Environmental crime produces tens of billions of dollars in profits for criminal enterprises every year.

It is time for the international community to wake-up to the hazard of environmental crime and shows the necessary actions to tackle the criminal mobs preying our planet for a quick profit. Failure to address this crime will result in organised criminal groups increasing their wealth and continuing to decontaminate.

JUDICIAL REMEDIES

There are two kinds of remedies available for environmental protection in India they are

1. Statutory law
2. Torturous remedies.

A writ petition can also be filed under Article 32 in Supreme Court and Article 226 in the High Court.

 Tortious liability :

• Damage

 The polluter pay principle was used in the judgment of the M.C Mehta oleum gas case[8]. The principle is derived from Ancient Greek philosophy where the one who spoils the water intentionally will have to compensate the damages as well as pay to clean the stream. In the case of Oleum gas, the court gave judgement that the polluters’ liability depends on their ability to pay, thus by applying this principle the defender is made both to clean up the pollution caused as well to punish the polluter.

• Nuisance

Nuisance is related to unlawful interference with one’s enjoyment of land or any right arising from it. Two kinds of nuisance are: Public Nuisance and Private Nuisance. As the name suggests public nuisance deals with the rights pertaining to the public. Whereas private nuisance is the interference with the right which is exercised exclusively by an individual. Remedies available for public nuisance are; Section 91 of Criminal Procedure Code, 1973 which prescribes that a suit may be filed to obtain a suitable relief or injunction for any cause of action affecting or likely to affect public nuisance. Also, in the Criminal Procedure Code, a magistrate is empowered to restrain any person from carrying out an act that may give effect to public nuisance[9]

Strict Liability

The concept of strict liability started from the case of Rylands v. Fletcher[10]where it states that if a person brings into his land and collects and keeps something which is likely to do mischief if it escapes, the person keeps it at his own peril and if he does not account for the same he is answerable for the damages caused.

CONCLUSION

Although there are enough legislation for curbing the menace of environmental deprivation no legislation has been able to completely eradicate the cause. There should be a collective effort where the Government and the people come together for the protection of the environment. Article 21of the Indian Constitution gives the right to have a clean and decent environment whereas Article 48A places a duty on the State to protect the environment and Article 51A(g) puts a duty on the citizen for the safeguard. A healthy and safe nation is not far if these provisions are implemented in their true spirit.

[1]Section 2(a) of Environment Protection Act 1986.

[2] Collins, P.H. (1990) 62 Dictionary of Ecology and the Environment,

[3]Narmada Bachao Andolan v Union of India, Writ Petition (Civil) No. 319 of 1994.

[4] A.I.R. 1991 S.C.

[5]The Battle To Save The Taj Mahal From Turning Green, NDTV, May 22, 2018

[6] Air (Prevention and Control of Pollution) Act, 1981, No. 14, Acts of Parliament, 1992, Section 2(a),(b).

[7] O.A. No. 21 of 2014.

[8] A.I.R. 1988 S.C. 1037.

[9] Section 133 ofCriminal Procedure Code, 1973.

[10]1868 LR 3 HL 330.