Posted on: June 25, 2020 Posted by: Smitha Khandige Comments: 0
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Introduction:

This was the first year in a decade that we did not face groundwater shortage in the summer, here at home. This is also the first year since the 1970s that Delhi saw the air quality ranked by National Air Quality Index (NAQI) at 45, at ‘good’ as opposed to the rank of 365+ (hazardous), just this Diwali. This is also the first year since 1970s that the Yamuna can be seen flowing with clean and clear water, a stark contrast to the picture of an overflowing drain that it brings to mind. We also saw animals of the wild roaming the streets as they would in the forests this year. This year happened to be a year of many firsts.

Things which were unimaginable previously, like staying home on lockdown for weeks just because of a deadly virus outbreak. But as a silver lining to this very dismal cloud, the lockdown has shown us a rare glimpse of what our (expected) low carbon future would look like.

However, this sudden change in the environment also proves that human intervention was the sole reason for the state for environment pollution. It indicates the scale of the challenge ahead to hold on to these temporary improvements in the environment. When the world will emerge after the lockdown, stringent efforts needed to be made to preserve these improvements and carry forward the momentum nature have now set for humanity.

There is no paucity of statutes protecting the environment in India and the most important is the Environment (Protection) Act, 1986. This was enacted as a response to pressure from both the international sphere and the national sphere. The Stockholm conference held in 1972 which saw India as a signatory ‘considered the need for a common outlook and for common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment’. As a result of this, amendments to our constitution were made. Article 48A and Article 51A were inserted. Several legislations like the Water Prevention and Control of Pollution Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 were enacted.

It received a major push because of the Bhopal Gas Tragedy that happened in 1984 which leads to the loss of thousands of lives overnight. It sparked outrage among the common people as well as environmental activists. The Environment (Protection) Act was enacted soon after, in 1986, under article 253 to provide for a general law on all areas of environment protection which were left open by the existing laws as well as to provide for deterrent punishment to those who endanger the human environment, safety and health. The Act is special because it has the sole aim of ensuring the protection of the environment, the prevention and reduction of environmental pollution and provides the authority to take strict action against perpetrators. Significantly, the act gave broad definitions to the terms environment, pollution and hazardous substances making its scope very broad. It gave the central government vast powers concerning laying standards for the quality of the environment. It became umbrella legislation, whereby a proper framework was given to the functions of the Central government and coordination of the activities of the central and state government was ensured.

However, even as the enactment of such legislation was to be lauded, it must not be forgotten that this is only an enabling act and not an operating activity. It gives the Central government powers to oversee the protection of the environment and does not mandate the government to protect the environment. Moreover, this act has other lacunae that need to be addressed and amended.

Section 24 (2) of the Act states “Where any act or omission constitutes an offence punishable under this Act and also under any other Act then the offender found guilty of such offence shall be liable to be punished under the other Act and not under this Act.” This makes all the various measures to impose punishment redundant as the offenders shall be liable under the provisions of another act which might prescribe lesser punishment.

Another fallacy with the act is that it is human-centric, i.e. primarily focusing on the protection of humans and benefit them and not explicitly meant for the protection of the environment in which humans live. The possible reason behind this is the fact that almost all environmental laws consider the superiority of humans over nature and the ecosystem.  On the other hand, the ecosystem is a complex system which is closely integrated and self-regulating.  It works best when left alone by human interventions whereas our laws are particularly concerned with enhancing the economic welfare of human beings.

The act also gives the central government powers to come up with a plan to lay down standards of environmental welfare. But a better, more efficient method would be to decentralize the duties imposed on the central government and create regional bodies to make rules regarding the welfare of the environment. The local authorities and the municipal bodies could be made responsible for the maintenance of good environmental standards.

Also, the powers granted to the central government, the Ministry of Environment, Forest and Climate Change (MoEF) ensure that that there is sometimes excessive political interference in the governance of the ministry which leads to slack performance and poor implementation of these environmental laws. There is no independent regulatory body for environmental governance. This lack of independence to the central and the state boards who still have to depend on the state and the central government for the appointment leads to a lack of competent people. The appointment is at the wish of the government. An independent regulatory body needs to be established. The MoEF in 2009 had proposed for a “National Environmental Protection Authority’ in its discussion paper which would act as a body for ‘monitoring, regulation and enforcement’ of environmental governance.

There is also a lack of public awareness regarding this. People are apathetic to the situation and we still see people reluctant to do their bit, by switching to green vehicles or even just stop littering. And as long as people remain apathetic, there is lack of political will too. Without the backing of public opinion, laws are of little avail. There is a strong need of environmental education for the people. This can be achieved with the help of various environmental NGOs or mandatory courses in schools.

In the Vellore Citizen Welfare Forum v. Union of India and others, (public interest litigation led by the VCF alleging that the tanneries and other industries were discharging untreated effluent into the agriculture fields, waterways and open lands and finally it reaches river Palar which was the main source of water supply which led to non-availability of potable water in that region) the ‘polluter pay’ principle was established whereby the supreme court observed that the absolute liability for harming the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of “Sustainable development” and as such polluter is liable to pay to the individual sufferer as well as the cost of reversing the damaged ecology.
However, the payment of damages based on the polluter pays principle has not entirely been successful. Most apathetic polluters would just pay the damages imposed without concerning about the environment. This has stopped holding any deterrent value. It has instead come to be seen as ‘license to pay and pollute’. A solution to this could be that instead of expecting the polluter to prevent the emission or discharge of environmental pollutants, the government or its agency could to set up its treatment plants that would mandatorily be connected to every industry, operation etc.  Another solution could be to shut down the industry temporarily till the set standards are complied with.

An alternative, the better mechanism would be to prevent pollution by offering incentives to environment-friendly industries. A reward mechanism could be instituted for business, organizations etc. to detect violations and take action to address the issue. Financial subsidies, cost-sharing etc. could also be promoted.

There is also a need for strong measures to mitigate the damages already done by the polluter. A system must be mandated by which active environmental welfare is also done and is not just restricted to punish the offender.

Certain provisions of the Environmental Laws Amendment Bill, 2015 which tries to impose a fine of 50-100 million rupees’ civil liability for causing substantial damage to the environment could also be added.

Conclusion:

The Constitution of India under Article 21, guarantees the right to life and personal liberty to individuals which has been interpreted by the Supreme Court to cover “right to live in a pollution-free atmosphere” also. If this is to be achieved, we need a new generation of environmental laws that are grounded in a proper understanding of the environment not just superficial acts.

Smitha Khandige
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Second year BALLB student at ILS Law College, Pune

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