Early Environmental Law in India PDF

HISTORY OF ENVIRONMENTAL PROTECTION IN INDIA The history of the evolution of law to handle pollution and other environmental problems in India can be studied under four periods; 1. In ancient India; 2. In Medieval India; 3. During the British period; and 4. The post Independence period. E...

HISTORY OF ENVIRONMENTAL PROTECTION IN INDIA The history of the evolution of law to handle pollution and other environmental problems in India can be studied under four periods; 1. In ancient India; 2. In Medieval India; 3. During the British period; and 4. The post Independence period. ENVIRONMENTAL PROTECTION IN ANCIENT INDIA Forests, Wild life, and more particularly trees were held in high esteem and held a place of special reverence in Hindu theology. The Vedas, Puranas, Upanishads and other scriptures of the Hindu religion gave a detailed description of trees, plants and wild life and their importance to the people. The Rig Veda highlighted the potentialities of nature in controlling the climate, increasing fertility and improvement of human life emphasizing for intimate kinship with nature. Atharva Veda considered trees as abode of various gods and goddesses. Yajur Veda emphasized that the relationship with nature and animals should not be that of dominion and subjugation but of mutual respect and kindness. During the Vedic period, cutting of live trees was prohibited and punishment was prescribed for such acts. For example (Yajnavalkya Smriti, has declared cutting of trees and forests as a punishable offence and has also prescribed a penalty of 20 to 80 pana. The Hindu society was thus conscious of adverse environmental effects caused by deforestation and extinction of animal species. In Srimad Bhagavatam, it has been rightly pointed out that a man who with exclusive devotion offers respect to sky, water, earth, heavenly bodies, living beings, trees, rivers and seas and all created beings and considers them as a part of the body of the Lord attains the state of supreme peace and God’s grace. In Yajnavalkya Smriti and Charak Samhita gave many instructions for the use of water for maintaining its purity. In addition to forests and other components of nature, animals stood to human beings in a relationship of mutual respect and kindness. Ancient Hindu Scriptures strictly prohibited the killing of birds and animals. In Yajur Veda, it is said that no person should kill animals, but being helpful to all and by serving them, should obtain happiness. In Yajnavalkya Smriti it is said that “the wicked persons who kills animals has to live in Ghor Narak (hell-fire) for the days equal to the number of hair on the body of that animal. In Vishnu Samhita, it is observed that “he who for his own pleasure, kills harmless beasts, should be regarded as dead in life; such a man shall know no happiness, here or hereafter. He who desists from inflicting pain on any animal either of death or confinement is really the well wisher of all the creatures such a man enjoys extreme felicity”. From the above, one can understand that environmental protection has been an important facet of Hindu way of life. It appears that the civilizations of Mohenjodaro, Harappa, and Dravidian civilization lived in consonance with its eco - system and their small population and their needs maintained the harmony with the environment. The Mauryan period was perhaps the most glorious chapter of the Indian History from environmental protection point of view. It was in this period that we find detailed and perceptive legal provisions found in Kautalya’s Arthashastra written between 321 B.C and 300 B.C. The necessity of forest administration was realized in this period and the process of administration was actually put into action with the appointment of superintendent of forest and the classification of forest on a functional basis. The State assumed the functions of maintenance of forest, regulation of forest produce and protection of wild life during Mauryan reign. Under the Arthashastra various punishments were prescribed for cutting trees, damaging forest, and for killing animals, fish, deers, etc. For cutting the tender sprouts of trees in city parks that bore flowers or fruits or yielded shade, the fine was 6 panas, for cutting small branches 12 panas and for cutting stout branches 24 panas. For destroying trunk the fine prescribed was the first amercement and for uprooting the tree the most amercement. Similarly, for cutting of plants which bore flowers or fruits or provided shade forests of hermits and trees or pilgrimage or of cremation grounds the fine imposed was half of the above fine. Whereas destruction of trees at the boundaries or that were worshiped sanctuaries, entailed a penalty double the above fines. or in he superintendent of forest was authorised to cause forest produce to be brought in by “guards in produce-forests’; to establish factories for forest produce and fix adequate fines and compensation for damage to any productive forests. Spies in the guise of traders were entrusted with a duty to ascertain the quantity and price of the royal merchandise obtained from forests. With regard to protection of wild life, there were prohibition on killing of animals and birds. The officer in charge (superintendent of slaughter house) was authorised to impose a fine upto 1000 panas on those who were found guilty of killing deers, birds and fish declared to be under state protection. Care was taken that animals from reserved parks or protected areas if found grazing in a field, were to be driven out without being hurt or killed, after intimating the forest officer. For causing injury to them, fine was imposed. Wild life in sanctuaries enjoyed complete protection from being killed except when they turned harmful. Arthashastra also prescribed punishment for causing pollution and uncivic sanitation. It provided that the officer in charge should punish those who threw waste on the roads by 1/8th pana, for causing muddy water 1/4th pana and if both acts were committed, the punishment should be double. If faecal matter is thrown or caused to be piled up near temple, well or pond, sacred place or state building. Then the punishment was to increase gradually by one pana in each case. For urinating in such places the punishment prescribed was half of the above punishments. The environment conservation, as it existed during Mauryan period continued more or less unaltered in subsequent reigns until the end of Gupta empire in 673 A.D. Prohibitions for forest destruction and animal killings were announced by other Hindu Kings. For example, the King Ashoka, in Pillar edict had expressed his viewpoint about the welfare of creatures in his state. He prescribed various pecuniary punishments for killing animals, which included even ants, squirrels, parrots, red headed ducks, pigeons, lizards and rats as well. To sum up, ancient India had a philosophy of environmental management principally enshrined in old injunctions as they were contained in many scriptures and smrities. Abuse and exploitations of nature for immediate gains was considered unjust, irreligious and against environmental ethics under the Hindu culture. The environmental ethics of nature conservation were not only applicable to common man but also the rulers and they also bound kings. Despite the injunctions in the scriptures and preaching of saints, resource conservation was not taken very seriously as the natural resources under a common belief were considered to be inexhaustible and too formidable for man and his tools to need any protection them- selves. ENVIRONMENTAL PROTECTION IN MEDIEVAL INDIA From the point of view of environment conservation, a significant contribution of Moghul emperors has been the establishment of magnificent gardens, fruit orchards and green parks, round about their palaces, central and provincial head- quarters, public places, on the banks of the rivers and in the valley and dales which they used as holiday resorts or places of retreat or temporary headquarters during the summer season. Among the officials empowered for administration of justice by the Sultans and the emperors of India, Muhtasibs (censor) were vested with the duty of prevention of pollution. His main duty y among others was to remove obstructions from the streets and to stop the commission of nuisance in public places. The instructions given to a newly appointed Muhtasib by the emperor Aurangazeb throws a flood of light on the functions of this officer: “In the bazaars and lanes observe if anyone, contrary to the regulations and customs, has screened off (abru) a part of the street, or closed the path or thrown dirt and sweepings on the road, or if anyone has seized the portion of the bazaar area reserved for public traffic and opened his shops there; you should in such cases urge them to remove the violation of regulations.” There is one opinion” that “the Moghul emperors, though were great lovers of nature and took delight in spending their spare time in the lap of natural environment, made no attempts on forest conservation”. Another writer has observed that “To Moghul rulers, forests meant no more than wooded lands where they could hunt. To their governors the forests were properties, which yielded some revenue. A few species of trees were specified in their reign as royal trees’ and enjoyed patronage from being cut except upon a fee. There was, however, no restriction on cutting of other trees. In the absence of any protective management, forests during this period shrunk steadily in size on account of felling made for cultivation both shifting and settled.” As regards the position of forest economy during the Mughal Empire the rural communities by and large, enjoyed untrammelled use of forest and wastes in their vicinity. The waste and forestlands were treated as open access resources. Un- trammelled use of forest and other natural resources, however, did not mean that they could be used or misused by one and all without any restraints. Rather they were quiet effectively managed with the help of a complex range of rules and regulations woven around the socio cultural features as well as the economic activities of local communities.” ENVIRONMENTAL PROTECTION DURING THE BRITISH RULE IN INDIA The early days of British rule in India were days of plunder of natural resources. There was a total indifference to the needs of forest conservancy. They caused a “fierce onslaught” on India’s forests. The onslaught on forest was primarily due to the increasing demands for military purposes, for British navy, for local construction (such as roads and railways), supply of teak and sandalwood for export trade and extension of agriculture in order to augment revenue.” The British Government started exercising control over forests in the year 1806 when a commission was appointed to enquire into the availability of teak in Malabar and Travancore by way of appointment of Conservator of Forests. This move failed to conserve forests as the appointed conservator plundered the forest wealth instead of conserving, therefore it was abolished in the year 1823. The second half of the 19th century marked the beginning of an organised forest management in India with some administrative steps taken to conserve forest: the formulation of forest policy and the legislations to implement the policy decisions. The systematic management of forest resources began with the appointment of first Inspector General of Forest in 1864. Dietrich Brandis was the first Inspector General of Forest. The immediate task of forest department under the supervision of Inspector General was that of exploration of resources, demarcation of reserves, protection of forest from fire and assessment of the growing stock in valuable reserve by sample enumeration and prescription of yields which could be sustained. The objective of management of forests thus changed from obtaining of timber for various purposes to protecting and improving forests and treating them as a biological growing entity. The first step of the British Government to assess state monopoly right over the forest was the enactment the Forest Act, 1865. The Act was revised in 1878 and extended to most of the territories under the British rule. It also expanded the powers of the State by providing for reserved forest, which were closed to the people and by empowering the forest administration to impose penalties for any transgression of the provision of the Act. The British Government declared its first Forest Policy by a resolution on the 19th October 1884. The policy statement had the following objectives: 1. Promoting the general well being of the people in the country; 2. Preserving climatic and physical conditions in the country; and 3. Fulfilling the need of the people. The policy also suggested a rough functional classification of forest into the following four categories: 1. Forests, the preservation of which was essential on climatic or physical grounds; 2. Forests which offered a supply of valuable timber for commercial purposes; 3. Minor forests which produced only the inferior sorts of timber; and 4. Pastures which were forests only in name. To implement the Forest Policy of 1884, the Forest Act of 1927 was enacted. This Act was very comprehensive and contained all the major provisions of the earlier Act and the Amendments made thereto including those relating to the duty on timber. The Act of 1927 also embodied land use policy whereby the British could acquire all forestland, village forest and other Common Property resources. This Act is still in force, together with several amendments made by the State Governments. In 1935, the Government of India enacted the Forest Acts. In 1935 the British Parliament, through the Government of India Act 1935 created provincial legislatures and the subject of the forest was included in the provincial legislative list. Thereafter, several provinces made their own laws to regulate forests. Most of these laws were within the framework laid down in the 1927 Act. Apart from the management of forest resources the British Government also concentrated on certain other areas like water pollution, air pollution, wild life and land use by enacting numerous legislations, The Shore Nuisance (Bombay and Kolaba) Act of 1853, Oriental Gas Company Acf. 1857, the Indian Penal Code, 1860, the Indian Easement Act of 1862, the Indian Fisheries Act, 1897 were some of the important legislations made by the British Government. These legislations contained provisions for the regulation of water provision and also prescribed punishments for the violation of these legislations. The British Government for controlling Air Pollution enacted the Bengal Smoke Nuisance Act of 1905, and the Bombay Smoke Nuisance Act of 1912. Likewise, for protection of wildlife the British Government made certain legislations. In 1873, the then Madras Government enacted the first wild life statute for the protection of wild elephants. The Elephants Preservation Act of 1879, the Wild Birds and Animals Protection Act, 1912 and the Forest Act 1927 were other legislations which aimed at conservation of bio-diversity. From the above it is clear that legislative measures were taken by the British Government for prevention of pollution and for conservation of natural resources. Though the critics point out that the British enacted these legislations not with the object of protecting the environment but with the aim of earning revenue for themselves, it should be regarded as the first step towards conservation of natural resources. Though made with ulterior motives these legislations have contributed significantly to the growth of environmental jurisprudence in India. ENVIRONMENTAL PROTECTION DURING THE POST INDEPENDENCE ERA The post independence era witnessed a lot of changes in the policies and attitudes of the Governments with respect to environmental protection. The Constitution of India, which came into force on 26th January 1950, had few provisions regarding environmental management. Article 39(b) provides that “the State shall direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good”. Article 47 provides that the State shall regard the rising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. Article 48 directs that “the State shall endeavour to organize agriculture and animal husbandry on modern and scientific lines and take steps for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other milch and draught cattle. Article 49 directs that “it shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared to be of national importance, from spoilation, disfigurement, destruction, removal, disposal or export as the case may be”. From the above articles, one can understand that the Constitution of India was not environmentally blind as suggested by some eminent jurists”. Though the word environment was not expressly used in the Constitution, the object of the above articles is to conserve the natural resources and to protect the natural environment. In 1950, the country adopted a National Festival of planting trees (Van Mahotsava) with the object of creating mass awareness about the value of forests in human well-being. In 1952, the National Forest Policy was formulated for the purpose of proper management of forests of the country and to maximise the benefits of forests, both direct and indirect. The Pitambar Pant Committee on Human Environment was set up to prepare a report on the state of environment for presentation at the United Nations Conference on Human Environment held at Stockholm in 1972. The reports of this Committee formed the basis upon which India’s policy concern on environment was presented at the Stockholm Conference. The year 1972 is a landmark in the history of Environmental Management in India. It was the year in which the United Nations Conference on Human Environment was held at Stockholm. The views expressed at the Stockholm Confer- ence formed a core part of the basic environmental philosophy of India that found expression in various governmental policy pronouncements in subsequent years. In 1972, based on the recommendation of the Pitambar Pant Committee, a National Committee on Environmental Planning and Coordination (NCEPC) was set up in the Department of Science and Technology. This National Committee was set up to plan and coordinate environmental programmes and policies and advise various ministries in all matters relating to Environmental protection and improvement. In 1972, the Wild Life (Protection) Act was enacted for the purpose of protection of ‘wild animals, birds and plants’. This Act was made to prevent hunting and also to control trade in wild life products. In 1973, a centrally sponsored scheme “Project Tiger” was launched to ensure the maintenance of the population of tigers in India. During the sixth and seventh Five Year Plans, Government of India launched a number of centrally sponsored schemes to supplement the State Governments’ programmes for Wild Life Conservation. Under the ‘Project Tiger Scheme’ the number of Tiger Reserves rose from 9 at the beginning of the project in 1973 to 21 covering over 28,017 sq.kms. Forest area of the country by the end of Eighties. The preparation of a Tiger Action Plan and formulation of a Global Tiger Forum (GTF) have been initiated recently. India has been elected as the chairperson for the first meeting of the GTF. In 1974, the Water (Prevention and Control of Pollution) Act was passed for the purpose of prevention and control of water pollution and for maintaining and restoring the wholesomeness of water. The Act also provides for the creation of Pollution Control Boards. In 1975, the Water (Prevention and Control of Pollution) Rules, was made in exercise of the powers conferred by Section 63 of the Water Act, 1974. In 1976, the Constitution of India was amended by the Constitution (42nd Amendment) Act. This 42nd Amendment Act is significant from the point of Environmental Protection because two new articles were added in Part IV and Part IV-A of the Constitution of India. The newly added Article 48A directs the State that ‘the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. In the newly added part, Part IV-A, a list of fundamental duties of citizens of India was prescribed. Article 51- A consists of ten duties of which Clause (g) directs that it shall be a fundamental duty of the citizen of India ‘to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures’. In 1977, the Water (Prevention and Control of Pollution) Cess Act, was made for the levy and collection of a cess on water consumed by persons carrying on certain industries and by local authorities with a view to augment the resources of the Central and the State Pollution Control Boards. In 1978, the Central Government, in exercise of the powers conferred by Section 17 of the Water (Prevention and Control of Pollution) Cess Act, 1977, made the Water (Prevention and Control of Pollution) Cess Rules. In 1980, the Government of India constituted a high power Committee under the Chairmanship of the Deputy Chairman of the Planning Commission Mr. N. D. Tiwari. This Committee popularly known as the ‘Tiwari Committee’ submitted its Report in September 1980. In its report, the Committee suggested a number of administrative and legal measures for environmental protection. Based on its recommendations, the Government of India set up a Department of Environment with effect from November 1, 1980. In April 1981, the National Committee on Environmental Planning was constituted for the purpose of preparing an annual State of Environment’ Report. The eighties witnessed the creation of many eco-specific organisations like – 1. National Eco Development Board; 2. Botanical Survey of India; 3. Zoological Survey of India; 4. National Museum of Natural History; 5. National Ambient Air Quality Monitoring Agency; 6. National Remote Sensing Agency; 7. Centre for Earth and Science Studies; 8. Environmental Information System (ENVIS):- 9. Eco Development Task Force of Ex-Servicemen; 10. Indian National Man and Bio-sphere Committee; 11. Environmental Research Committee; 12. Integrated Action-oriented Eco Development Research Programme; 13. Centre of Excellence for Environmental Education; 14. National Environmental Advisory Committee; 15. National Wasteland Development Board; 16. National Afforestation and Eco Development Board; 17. Global Environmental Monitoring System (GEMS); 18. Monitoring of Indian National Aquatic Resources (MINARS); In the year 1980, the Forest (Conservation) Act was made for the conservation of forests and to check further deforestation. This Act imposes restriction on the der-eservation of forests or the use of forestland for non-forest purposes. In 1981, the Forest (Conservation) Rules, was made by the Central Government in exercise of the powers conferred by Sub-Section 1 of Section 4 of the Forest (Conservation) Act, 1980. In 1981, the Air (Prevention and Control of Pollution) Act was enacted to pro- vide for the prevention, control and abatement of air pollution and for the establishment of Central and State Pollution Control Boards. This Act was amended in 1987 to include noise pollution. In 1982, the Air (Prevention and Control of Pollution) Rules, was made by the Central Government in exercise of the powers conferred by Section 53 of Air (Prevention and Control of Pollution) Act, 1981. In 1983, the Central Government, in exercise of the powers conferred by Section 54 of Air (Prevention and Control of Pollution) Act, 1981, made the Air (Prevention and Control of Pollution) (Union Territories) Rules. In 1983, the Wild Life (Protection) licensing (additional matters for consideration) Rules, was made by the Central Government in exercise of powers conferred under the Wild Life Protection Act, 1972. In January 1985, the Department of Environment became part of a new Ministry of Environment and Forests. This Ministry consists of two departments, viz.. the Department of Environment and the Department of Forests & Wildlife. The latter was constituted as a new Department by transferring to it works relating to forestry from the erstwhile Department of Agriculture & Cooperation, as well as work relating to wildlife from the erstwhile Department of Environment. The Ministry’s main activities include conservation and survey of flora, fauna, forests and wildlife; prevention and control of pollution; afforestation and regeneration of degraded areas; protection of the environment and research related to these topics. In 1986, a comprehensive legislation ‘Environment (Protection) Act was made to empower the Central Government to take all necessary measures to protect and improve the environment and to prevent hazards to human beings, other living creatures, plants and property. In the same year, the Environment (Protection) Rules was made by the Central Government in exercise of powers conferred by Sections 6 and 25 of the Environment (Protection) Act, 1986. The Central Government in exercise of powers conferred by the Environment (Protection) Act, 1986, has published a number of notifications periodically to deal with various aspects of environmental issues viz.. 1. Eco labeling Notification 2. Environmental Impact Assessment Notifications;  3. Public Hearing Notifications; 4. Coastal Regulation Zone Notifications; 5. Prevention of Dumping and Disposal of Fly-ash; 6. Prohibition against open burning of waste oil; 7. 2T Oil (Regulation of Supply of Distribution) Order, etc. In 1987, the Government of India formulated the “National Water Policy” with the object of developing, conserving, utilising and managing the water resource. The need for a national water policy is thus abundantly clear: water is a scarce and precious national resource to be planned, developed and conserved as such, and on an integrated and environmentally sound basis, keeping in view the needs of the States concerned. In 1988, the ‘National Forest Policy’ was formulated with the principle aim of ensuring environmental stability and maintenance of ecological balance. In 1989, the Hazardous Wastes (Management and Handling) Rules, Manufacture, storage and import of hazardous chemicals Rules were made by the Central Government in exercise of the powers conferred on it by the Environment (Protection) Act. In 1991, the Public Liability Insurance Act was enacted for the purpose of providing immediate relief to the persons affected by accidents occurring while handling any hazardous substances. The same year, the Central Government made the Public Liability Insurance Rules in exercise of the powers conferred by Section 23 of the Public Liability Insurance Act, 1991. In 1991-92, “The Project Elephant’ was launched aiming at ensuring long term survival of identified viable population of elephants and tackling the problematic elephant populations causing serious depredation. A steering committee on the Project Elephant was constituted in October 1992 which keeps a watch on the implementation of this Project. In February 1992, the Ministry of Environment and Forests released the ‘Policy Statement for Abatement of Pollution’ through which the Government declared its commitment for abatement of pollution for preventing deterioration of the environment. The chief objective of the policy statement “is to integrate environ- mental considerations into decision making at all levels”. In June 1992, the Ministry of Environment and Forests formulated and released the National Conservation Strategy and Policy Statement on Environment and Development. The preamble of the Policy Statement highlights the nexus be tween development and environment and it is provided that “the National Conservation Strategy and Policy Statement on Environment and Development are in response to the need for laying down the guidelines that will help to weave environmental considerations into the fabric of our national life and our development process. It is an expression of our commitment for reorienting policies and action in unison with the environmental perspective”. In 1995, the National Environment Tribunal Act was enacted to provide for strict liability for damages arising out of any accidents occurring while handling any hazardous substance and for the establishment of a National Environment Tribunal for effective and expeditious disposal of cases arising from such accidents, with a view to provide relief and compensation for damages to persons, property and the environment. In 1996, the Chemical Accidents (Emergency Planning, preparedness and response) Rules was made by the Central Government in exercise of the powers conferred by the Environment (Protection) Act, 1986. In 1997, the National Environment Appellate Authority Act was enacted to provide for the establishment of a National Environment Appellate Authority to hear appeals with respect to restriction of areas in which industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986. In the same year, the National Environment Appellate Authority (Appeal) Rules was made by the Central Government in exercise of the powers conferred by Section 22 of the National Environment Appellate Authority Act, 1997. In the year 1998, the Bio-medical wastes (Management and Handling) Rules was made by the Central Government in exercise of the powers conferred on it by the Environment (Protection) Act, 1986. In 1999, the Central Government, in exercise of the powers conferred by the Environment (Protection) Act, 1986 has made the ‘Recycled Plastics (Manufacture and Usage) Rules, 1999’ and ‘Environment (Siting for industrial projects) Rules, 1999’. In the year 2000, the Central Government by virtue of powers conferred on it by the Environment (Protection) Act, 1986, made the following rules; 1. The Noise Pollution (Regulation and Control) Rules, 2000; 2. Ozone Depleting Substances (Regulation and Control) Rules, 2000; and 3. The Municipal Solid Wastes (Management and Handling) Rules, 2000. 4. Batteries (Management and Handling) Rules, 2001 Apart from the above eco-specific legislations, realising that there is no comprehensive legislation dealing with bio-diversity in India, and to fulfil its international obligation under the Convention on Bio-Diversity (CBD), the Government of India has enacted the Biological Diversity Act 2002. This Act aims at: 1. Prohibiting transfer of Indian genetic material outside the country, without approval of the Indian Government; 2. Stipulating that patents or other intellectual property rights (IPR) over such material, or over related knowledge, can only be taken after seeking permission in advance: 3. Providing for the levying of appropriate fees and royalties on such transfers and IPRs; 4. Regulating access to such material by Indian nationals also, to stop over-exploitation; 5. Providing for the sharing of benefits of various kinds, including transfer of technology, monetary returns, joint R&D, venture capital funds. And joint IPR ownership; 6. Providing measures for habitat and species protection. EIAs of projects which could, harm bio-diversity, integration of bio-diversity into all sectoral plans, programmes and policies; 7. Giving local communities a say in the use of resources and knowledge within their jurisdiction and to charge fees from parties who want to use these resources and knowledge; 8. Providing for the protection of indigenous knowledge, through appropriate legislation or administrative steps such as registration at local, State and national levels; 9. Stipulating that risks associated with the use of genetically modified organisms, will be controlled through appropriate means; and 10. Providing for the designation of institutions as repositories of biological resources.