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A Comparative Study of the Environmental Laws of India and the Uk with Special Reference to Their Enforcement

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A Comparative Study of the Environmental Laws of India and the Uk with Special Reference to Their Enforcement A COMPARATIVE STUDY OF THE ENVIRONMENTAL LAWS OF INDIA AND THE UK WITH SPECIAL REFERENCE TO THEIR ENFORCEMENT By GOVIND NARAYAN SINHA A dissertation submitted to The University of Birmingham for the degree of MASTER OF LAWS School of Law The University of Birmingham August 2003 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. 7 ABSTRACT This dissertation is a comparative study of environmental law and policy in India and the UK. The study uses research methodology based on comparative law method, concepts of lesson drawing and policy transfer from political science, and socio-legal approaches. This study concludes that India should take measures to improve enforcement of various environmental laws, including adopting a revised policy on pollution prevention, developing an integrated approach to pollution abatement, developing a policy on prosecution and enforcement, restructuring various environmental laws to meet treaty obligations, introducing incentive based instruments for pollution abatement and adopting a cooperative approach to enforcement of the environmental laws. India may positively draw lessons from the UK in these areas. The UK may draw inspiration from the novel environmental jurisprudence developed by the Indian Supreme Court. This study also favours establishment of an environmental court in each jurisdiction. This dissertation is dedicated to: Mr Mukut Mithi, Former Chief Minister, Arunachal Pradesh, India, and People of Arunachal Pradesh. ACKNOWLEDGEMENTS My experience as an officer of the Indian Forest Service, and my study of comparative environmental law, has convinced me that there was much that India and the UK could learn from each other in respect of environmental laws and their enforcement. The dissertation on hand is the outcome of this conviction. Many people have encouraged me to undertake this work or pointed me in new directions or helped me in all sorts of practical ways. I want at the outset to thank them all for their support but for which this project would not have been possible. * In particular, I would like to thank Mr Arvind Dave, His Excellency the Governor of Arunachal Pradesh, India for his support and encouragement. The Government of Arunachal Pradesh was kind enough to provide me financial support for undertaking this course while the School of Law, University of Birmingham granted me a Postgraduate Research Scholarship - and I am very grateful to both of them. I would also like to express my thanks to the International Development Research Centre (IDRC), Canada for supporting my field research in India and the UK by providing me a research grant. Over the twelve months in which the research and the writing have been done, one person has been inspirational: Mr Andrew Le Sueur, Barber Professor of Jurisprudence in the School of Law, my research supervisor. No one could have been more devoted in guiding my project in the right direction, and across 'the shadow between conception and creation'. Thank you, Professor Le Sueur. My respected seniors and unofficial mentors, namely, Mr J.K.Mehta, former PCCF of Arunachal Pradesh; Mr P.M.Sangal, former PCCF of Mizoram; Dr P.N.Ray, former Director IGNFA; Professor S.M.Verma; Late Mr S.B.Roy; Mr S.K Agnihotri, former Chief Secretary of Arunachal Pradesh; Mr P.M.Nair, former Chief Secretary of Arunachal Pradesh and presently Secretary to the President of India; Mr Lalit Sharma, presently Chief Secretary of Arunachal Pradesh; Mr S.R.Mehta, PCCF; Mr A.K Guha, Commissioner; Mr S.K. Raha, Additional PCCF; Mr S.N.Kalita, CCF; Mr K.Namchoom, CCF; Mr K.D.Singh, Special Secretary to the Chief Minister, Arunachal Pradesh, Mr D.V.Negi, Mr Promode Kant and Mr R.K. Goel have not only been my well-wishers but have - over the period I worked with them - influenced my thinking in administrative matters directly or subtly. I take this opportunity to thank all of them. A number of my friends and colleagues in India as well as in Birmingham have encouraged me in ever so many ways in this endeavour, and I wish to express my appreciation of their help and advice. Mention may be made of Dr P.V.N. Nambiar, Dr Jaya Nambiar, Dr R.P. Chaturvedi, Dr Jyotsna Chaturvedi, Dr Umesh Chandra Srivastava, Dr Subodh Mahanti, Dr R.M.Dubey, Dr C.P. Aggarwal, Mr Yogesh, Mr Tomi Ete, Ms Jarjum Ete, Mr B.Banerjee, Mr D.N.Singh, Mr R.K.Bhattacharjee, Mr D.R.Sen, Mr Subhash Chandra, Mr M.S.Negi, Mr D.Gogoi, Mr T.Riba, Mr T.Johri, Ms Jianhua Ling, Ms Nuria Pastor, Mr P.D.Tshering, Mr M.Subbarayan, Mr Niraj Kumar, Mr K. Ashok Vardhan Shetty, Mr D.D.Goswami, Mr Arvind Kumar Srivastava, Mr A.S.Khati, Mr D.V.S.Khati, Mr Amit Rai, Mr R.K.D.Singh, Mr Shikhar Ranjan, Mr O.K.Deb, Mr Amitabh Kundu, Mr Togram Jamoh, Mr Lalit Malik, Mr S.S.Kandpal, Mr S.K. Aggarwal and Mr Deepak Baruah. I am thankful to Mr R.S. Khera, Senior Magistrate, Walsall Metropolitan Borough Council, and his family for their affection, help and advice. Thanks are also due to Mr Philip Burns, Mr Ronan Palmer of the Environment Agency, Ms Jaswinder Dhillon of the University of Wolverhampton for helping me in data collection and Ms Ann Mary Ashby, Consulting Librarian for computing assistance. Most important of all, I wish to thank my wife, Suranjita, and our children Mugdha, Avijit and Abhijay for their understanding, love and support, and finally Moti whom I have been missing. The time I spent in the UK actually belonged to them. Throughout my life, my mother, Sushila Devi, my late father, K.K.Sinha, my late sister Poonam Sinha, my brothers G.N.Sinha, O.P.Sinha, P.N.Sinha, my sister Ms Chandrama Srivastava, my brother-in-law Mr Ramesh Chandra Srivastava, my nephews Mr Mukul Srivastava, Mr Atul Srivastava, Mr Nikhil Srivastava, and my niece Ms Jaya Srivastava have been a fountainhead of love and inspiration, and I am at a loss for words to thank them. CONTENTS TABLES Table of Indian Legislation ii Table of UK Legislation iv Table of English Cases vii Table of EC Cases ix Table of ECHR Cases x Table of Indian Cases xi Table of Other Cases xiii 1. Table of contents 2. Chapter 1: Introduction 1 3. Chapter 2: Appraisal of the Environmental Policies 20 4. Chapter 3: Comparing the Environmental legislation 62 of India and the UK 5. Chapter 4: Approach to the Enforcement of the 125 Environmental Laws 6. Chapter 5: Judiciary and the Environment 160 7. Chapter 6: Conclusions 204 8. Appendix I 265 9. Appendix II 266 10. Bibliography 267 TABLE OF INDIAN LEGISLATION Air (Prevention and Control of Pollution) Act 1981 Air (Prevention and Control of Pollution) Rules 1982 Atomic Energy Act 1962 Batteries (Management and Handling) Rules 2000 (Draft) Bengal Smoke Nuisance Act 1905 Biodiversity Bill 2000 Bio-Medical Waste (Management and Handling) Rules 1998 Chemical Accidents (Emergency Planning, Preparedness and Response) Rules 1996 Coastal Regulation Zone Notification 1991 Code of Civil Procedure (Amendment) Act 1999 Code of Civil Procedure 1908 Code of Criminal Procedure 1973 Constitution of India Eco-Sensitive Zone-Pachmarhi Notification 1998 Environment (Protection) (Second Amendment) Rules 1999 Environment (Protection) Act 1986 Environment (Protection) Rules 1986 Environment (Siting for Industrial Projects) Rules 1999 (Draft) Factories Act 1948 Forest (Conservation) Act 1980 Forest (Conservation) Rules 1981 Hazardous Wastes (Management and Handling) Rules 1989 Indian Easement Act 1882 Indian Evidence Act 1872 Indian Fisheries Act 1897 Indian Forest Act 1878 Indian Forest Act 1927 Indian Legislation Indian Penal Code 1860 Insecticides Act 1968 Manufacture, Storage and Import of Hazardous Chemicals (Amendment) Rules 2000 (Draft) Manufacture, Storage and Import of Hazardous Chemicals Rules 1989 Mines and Minerals (Regulation and Development) Act 1957 Municipal Solid Waste (Management and Handling) Rules 2000 Municipal Waste (Management and Handling) Rules 2000 National Environment Appellate Authority Act 1997 National Environment Tribunal Act 1995 Noise Pollution (Regulation and Control) Rules 2000 Ozone Depleting Substances (Regulation) Rules 2000 Prevention and Control of Pollution (Uniform Consent Procedure) Rules 1999 (Draft) Public Liability Insurance Act 1991 Public Liability Insurance Rules 1991 11 Re-cycled Plastics Manufacture and Usage Rules 1999 River Boards Act 1956 Shore Nuisance (Bombay and Kolaba) Act 1853 2-T (Regulation of Supply and Distribution) Order 1998 Water (Prevention and Control of Pollution) (Procedure for Transaction of Business) Rules 1975 Water (Prevention and Control of Pollution) Act 1974 Water (Prevention and Control of Pollution) Cess Act 1977 Water (Prevention and Control of Pollution) Cess Rules 1978 Water (Prevention and Control of Pollution) Rules 1975 111 TABLE OF UNITED KINGDOM LEGISLATION ACTS Alkali Act 1863 Alkali Act 1874 Alkali Act 1906 Ancient Monument and Archaeological Areas Act 1979 Civil Procedure Act 1997 Clean Air Act 1956 Clean Air Act 1993 Common Law Procedure Act 1854 Control of Pollution Act 1974 (CoPA) Control of Pollution (Amendment) Act
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