ENVIRONMENTAL POLICY AND ADMINISTRATION IN INDIA : GOVERNMENTAL RESPONSE

THESIS

SUBMITTED FOR THE AWARD OF THE DEGREE OF

Doctor of Philosophy

IN

PUBLIC ADMINISTRATION

By

ZAINAB RAZA

UNDER THE SUPERVISION OF

PROF. ARIF HAMEED

DEPARTMENT OF POLITICAL SCIENCE ALIGARH MUSLIM UNIVERSITY ALIGARH-202002, INDIA 2011

Certificate

This is to certify that Ms. Zainab Raza has completed her thesis entitled “Environmental Policy and Administration in India: Governmental Response” under my supervision and is, in my opinion, suitable for submission for the award of the Degree of Doctor of Philosophy in Public

Administration of Aligarh Muslim University.

(Prof. Arif Hameed) Supervisor

Abstract

Since the concern for environment has become a major field in today‟s world, therefore, environmental policies, whether taken up by the government or public, have become a major subject of discussion; therefore, the topic of this thesis, “Environmental Policy and Administration in India: Governmental Response” is an endeavour to assess the role of different organs of the government of India in the field of environment, coupled with the sector-wise assessment of the environmental policy, the response of the public to the environment and administration of the environmental policies.

People in general, and policy makers in particular, have realised lately that environment degradation cannot be swept under the carpet any longer because the need of the time, and in great urgency, is to realise the importance and necessity of protecting the environment with all seriousness that it deserves. The implication of this realisation can be easily judged by watching around us where we come across everyday with articles, advertisements, activities, conferences, demonstrations raising the issue of environment and the urgency of doing everything possible for its protection. The terms „global warming‟ and „climate change‟ have come into common parlance, even among children. The World Wildlife Fund (WWF) has estimated that since the 1980s humanity has already exceeded the planet‟s capacity to sustain its consumption of renewable resources and may not be able to protract indefinitely. It is aptly said by a writer that: „Perhaps the most significant development of the last half-century has been the new recognition that human societies cannot take nature for granted.‟

Environment of the earth in which we survive is not static. Changes are constantly taking place in the environment since its existence. The changes are also in the negative aspects in the form of volcanic eruptions, earthquakes, landing of meteorites on earth‟s surface etc. But, these activities are not seriously deteriorating the environment as it is a natural cycle. However, the intervention of the human activities in the nature and its processes had a great impact on the environment of the earth. The activities of humans i.e. unsustainable use of resources and introduction of pollution to the environment led to such deep impacts that it became difficult for the nature to endure and regenerate itself. The after effects became visible in the form of global warming, climate change, floods, drought, ice-melting, rising sea-level, and so on. The degradation of the environment was influencing the basic needs of humans: water, food, shelter, health and security. It was, therefore, felt that actions have to be taken for the protection of environment. All this led to the need for governments to formulate environmental policies due to the simple reason that the survival and well-being of humans cannot be ensured without a healthy environment.

The growth of civilisations and then the onset of industrial revolution and consequently, the emergence of globalisation, liberalisation and modernisation of markets have caused serious damage to the environment of this planet. The rapid depletion of resources, increasing pollution levels and introduction of global environmental problems like global warming, biodiversity extinction, disposal of nuclear waste etc., are all consequences of the activities of man. Furthermore, ailments like, respiratory diseases, cancer, jaundice, typhoid, infant deaths, asthma, cough, eye irritation and a general deterioration in health standards all have been associated with environmental degradation, mainly due to pollution. It was when man became the victim of his own environment, he realised that for survival, there is a need for cooperative action at the global level to protect the environment.

The concern for environment had its beginnings in India at a very early stage. Though the earliest environmental policies can be traced to the period of Kautilya, but in the modern times the decade of early 1970s can be considered as the period of emerging and definite environmental policies in India. This was the period when establishment of legal frameworks and creation of government bodies for environmental protection took place. In 1972, the then Prime Minister of India, Indira Gandhi, established a National Committee on Environmental Planning and Coordination (NCEPC) in the Department of Science and Technology. Originally, the Constitution of India contained no provisions for the protection of environment but with the passing of the forty- second amendment of the Constitution, provisions were provided for the protection of environment and its improvements in the form of Fundamental Duties and Directive Principles of State Policy. During this period, a number of environment related legislations were enacted such as; Wild Life Protection Act 1972, Water Act 1974, Water Cess Act 1977, Forest (Conservation) Act 1980, Air Act 1981, etc. The Water Act 1974 led to the establishment of Central and State pollution control boards. Though the purpose of most of these Acts is not directly related to environmental protection, but they do have provisions for controlling environmental degradation indirectly. In 1980, the President of India in his address to the first joint session of the 7th Parliament expressed the need for environmental concerns. Accordingly, a high-powered committee was constituted under the chairmanship of N. D. Tiwari in February 1980 to recommend legislative measures and the administrative machinery that would be required for environmental protection. The Committee in its report recommended the establishment of Department of Environment. Furthermore, in the Sixth Five Year Plan, a separate chapter under the heading of „environment‟ was committed to the discussion of problems of environment degradation. Finally, the Ministry of Environment and Forests came into its present state only in 1985.

Although, environment degradation, and the major reasons of that; increasing pollution levels, the efforts of government and non-government agencies to arrest the deteriorating environment in which we have to survive; the standards of success in such attempts; and the limitations that confront the policy makers in the face of striking a balance between growth, progress and advancements, on the one hand, and the desirability and the necessity of protecting the environment for the very survival of mankind on earth, on the other, are topics that cannot be found answers to, easily. Keeping in view the broad nature of the topic, the main focus of the work has been limited to find out the frame work of the policies regarding environmental protection and the role of the governmental and non-governmental agencies in the implementation of those policies. Accordingly, the following have been identified as the main aims and objectives of this thesis:

1. Assessment of the factors and perspectives of environmental policies. 2. Assessment, internationally as well as nationally, the role of state and non-state actors in the environment protection. 3. Assessment of the status of environment in India. 4. Evaluation of the sector-wise framework of environmental policies including laws, regulations, acts and rules in India. 5. Assessment of the role of constitution of India in the protection of environment. 6. Assessment of the role and working of Indian judiciary in the protection of environment. 7. Assessment of the role and working of main environmental administrative organisations i.e. Ministry of Environment and Forests along with its related organisations in the protection of environment. 8. Making policy recommendations for environmental protection.

The methodology of the research was primarily historical, descriptive and analytical. The collection of material was based on primary and secondary sources of data. Sincere efforts were made to utilise the accessible and available material on this topic. This thesis involved immense library research and consultation and has relied heavily on the government documents by assessing the annual reports, newsletters and official websites of the ministries and other related organisations. Besides, leading dailies, journals, magazines, books, statistical handbooks, reports and press releases of non-governmental organisations have also been consulted to make the study more informative and comprehensive. Furthermore, various Acts and their amendments and prominent concerned judgements of the Supreme Court and the High Courts, provisions in the five year plans and the constitution, are also analysed. To provide latest information regarding the topic, chiefly official websites were accessed. Massive growth of population, especially in the last century and in the first decade of the present century, has turned out to be one of the gravest fears for India as it has direct consequence on many sectors, environment being the most pronounced and the most evident one. Industrialisation and urbanisation have come about as the natural offshoots of the massive population growth because we have to find means to feed so many hungry and malnourished people and to provide employment to a very large number of members of the society in India. This has had an obvious negative impact resulting into environmental degradation and colossal increase in pollution levels. The study has exposed the basic fact that fast growth of population has led to an excessive exploitation of natural resources. The ever increasing burden on limited resources has also resulted in shortages which has further complicated matters. The huge gap between more affluent sections of society and the large majority belonging to poor or very poor sections have added pressures on the economic and natural resources of the country.

The need of the hour today is to control population growth in the country immediately. More drastic measures should be taken to educate the people of the country and policy makers in the government about the undesirable effects of large populations through specially designed IEC (Information, Education and Communication) programmes. Green cover must be increased and presently existing forests must be preserved by tree plantation drives on a massive scale, right from the local level.

Air pollution is another very important area that can be ignored at our own peril. It has been observed throughout the country and in different sectors of governmental administration and governance that not enough, serious and sincere efforts have been made to control air pollution in the country. Moreover, our water pollution levels are so high that they are amongst the worst in the world. All this is due, primarily, to lack of clear and definite policy measures and their strict implementation on the part of the government. Wastewater treatment plants should be established in accordance with the need of time and its usage should be encouraged. In the absence of substantial penalties and lack of surety of punishment due to lengthy and cumbersome justice system, industries are going scot-free, although they are at the top of the table of polluters in the country. Poor standards of living force many to depend on firewood that also has become a prime source of pollution. So, the need of the hour is to make anti-pollution laws more stringent and punishment must be assured. Since slums are one of the major sources of water pollution, right measures should be taken to provide better drainage and water supply facilities in them.

It has also come to light from the study that there is hardly any emphasis on educating the people and creating awareness among them to imbibe a feeling and concern for the mother earth. Many advanced countries of the world have been providing compulsory education on environment related issues, while in India, nobody seems to be even contemplating to launch a nation-wide programme for environmental education.

It has also been found that the policies formulated for the protection of environment had faced shortcomings of their own. A number of limitations associated with environmental policies, have been either in their formulation or in their implementation, or both. For instance, one of the basic weakness of environment conservation policies is that the primary motive behind them is monetary, i.e., the need for conservation of something because its depletion would cause losses in fiscal terms. This type of contracted outlook leads to the loss of that plant or animal species that may not be commercially profitable though their depletion or extinction may be significantly disastrous for the health and well-being of the environment in which we live.

Analysis, both in qualitative and quantitative terms, of the effectiveness of policies and their implementation, is an area that must be given top priority The problem regarding environmental policy regimes or institutions is to find ways as to how environmental governance at the international level is being resorted to and whether or not, that policy can be merged into the policies being framed and enforced in different countries so that there is some universality in efforts globally. We find that there is no specific global environmental organisation or institution with universal authority and control. A World Environment Organisation (WEO) has been proposed by analysts and policy-makers to remedy existing problems of international environmental governance. Conversely, debates are going on various issues including on the view point that the creation of an independent environmental organisation will not be able to solve the problem of environmental degradation. There is near universal agreement that the main drawback of the global environmental governance is the lack of responsibility and accountability. There is no international agency or organisation to which these regimes can be made answerable.

The more significant environmental policies in India, since their evolution from the ancient period to the present era, have been discussed comprehensively. For this purpose the work has been broadly divided into seven chapters, besides an introduction and conclusion and suggestions given at the beginning and at the end of the thesis, respectively.

The first chapter “Environment Policy: Concept and Perspectives” deals in general with the various factors and related themes of the environmental policies. It discusses the conceptual framework of environmental policies, the evolution of the environmental policies at the global level, the sources for the formation of the environmental policies around the globe, instruments involved in environmental policies and the six general principles upon which the environmental policies have been evolved namely; Sustainability Principle, Polluters Pay Principle (PPP), Precautionary Principle, Equity Principle, Human Rights Principle, and Participation Principle. It further discusses the relationship between sustainable development and environmental policies; and the global politics on environmental issues.

The second chapter “International Environmental Regime” deals with various international state and non-state actors involved in the protection of environment. The United Nations, the most prominent actor in environmental regime along with its related organisations and bodies, is discussed to find out as to how various bodies of United Nations are involved in environmental protection. Besides the UN, other international organisations of regional, cross- continental and global nature involved in environmental protection are also dealt with in this chapter. Of these organisations, some have, as their sole aim, the environmental protection while others have included environmental protection in their working. The role of major non-state actors i.e. non- governmental organisations (NGOs) and trans-national corporations (TNCs) in environmental protection is discussed later in the chapter.

The third chapter “Environmental Issues in India” as the name suggests deals with the environmental issues and concerns in India. The first sub-chapter deals with the historical perspective of the environmental policies in India and is divided into two phases. The first phase is the pre-independence period discussed through, ancient, medieval and the British periods. The second phase is the post-independence period discussed in reference to the five year plans. The second sub-chapter deals with the issue by analysing as to how the people at different levels and fields have been responding to the environmental issues by means of movements, media, NGOs and companies. The chapter also discusses the popular environmental movements: Chipko Movement and Narmada Bachao Andolan, etc.

The fourth chapter “Principal Areas of Environmental Policy” discusses the principal areas of environmental policies like water, air, noise pollution, soil, forests and wildlife, energy conservation etc. The chapter deals with the conditions of the environment in the concerned areas and then the policies developed to curb environmental degradation at the national level in the concerned areas. Various acts, rules and regulations taken by the government under different areas are being discussed.

The fifth chapter “Environment Issues and the Constitutional Response” deals with the constitutional and legislative measures taken by the government in combating environmental deterioration. The chapter deals with the issue as to how the environmental issues are ingrained in the fundamental rights, fundamental duties and in the directive principles of state policy. It also discusses the legislative environmental structure and the parliamentary response for environmental protection.

The sixth chapter “Environmental Policy and the Administrative Response” deals with the administrative response of the government for the protection of the environment, i.e. how the administration is carried out for the implementation of environmental policies? Since the nodal administrative organisation for environmental protection in India is the Ministry of Environment and Forests, so the working of the Ministry is discussed in some details. It discusses as to how the Ministry works with its autonomous organisations, subordinate offices, boards and other bodies through the important instruments like Environmental Information System and Environmental Impact Assessment (EIA). Further, the important initiatives taken by the Ministry like, the Policy Statement on Abatement of Pollution 1992, National Conservation Strategy and Policy Statement on Environment and Development 1992 and National Environment Policy 2006 are discussed. The response of other ministries to the environmental policies is also dealt with.

The seventh chapter “Environment Issues and the Judicial Response” discusses the response of judiciary in the protection of environment. Various cases have been discussed and the related judgements have been studied. It discusses the instruments through which the judiciary has been working in protecting the environment. It further deals with the environmental initiatives taken by the judiciary, the divergent role played by the judiciary, the various aspects of environmental justice and the arbitrariness of judiciary in providing environmental justice.

The last is the concluding chapter in which the study has been summarised and suggestions are given for improving the environmental policies and administration in India. However, it can be said that environmental policies have been successful to a extent in India. All the sectors, ministries, departments and, at all levels of the government, measures for the protection of the environment are being taken directly, or indirectly. Improvements are being made in each of the fields and in the understanding of their ecological consequences. It has been well considered now that the environment is not a sector but is the most important dimension of every sector.

This part of the thesis also contains a list of suggestions based on the analytical study of the policies with respect to environmental protection. Some of the more important suggestions include the need for;  an urgent requirement to study the scope of the policies and laws and their drawbacks in order to remove their weaknesses.  participatory formulation of the policies should be attempted as inclusiveness of the people at all levels is a prerequisite of a successful policy, especially in the field of environment. There is an urgent need to study with sincere intent the scope of the policies and laws, their drawbacks, limitations, clarity and consistency in order to remove their weaknesses.  people‟s efforts should be duly recognised by instituting awards for the members of the public at all levels so that they are motivated towards the protection.  shortage of trained professional staff who could reach across the country to carry out environment- related work should be removed. There is a need for installing a proper recruitment and personnel system for the technical and expert people in the environmental sectors so that the administration of the environmental policies can be carried out in an efficient and effective manner.  environmental awareness and consciousness about environment should be incorporated in the curriculum of schools and colleges in order to arrest the growing degradation of environment and save the world from certain catastrophe.  there is a need of more stringent inspection, regulation and most importantly, funding, by the central government for state and local administrations to ensure genuine implementation of policies.  special courts for specialised areas of environment should be established in addition to „green courts‟, in areas that encounter major environmental problems.  more ways should be evolved to channelise funds collected as fines from guilty individuals, organisations and governments to those areas that are facing acute environment related problems.  monitoring agencies should be established in order to identify major industries that pollute the environment in order to punish them.  there should be a systematic organisation to deal with the waste, waste collectors and recycling processes.

 environment friendly raw materials should be used in products and technological applications should be made use of in product design in order to minimise the waste that is produced by electronic gadgetry producers.

Besides the above, there are a number of other suggestions that have been made to make the people, and the policy makers, realise how together we can make a difference in the field of environment because its degradation hits everyone alike.

In the end, a bibliography and appendices are presented for the convenience of readers and any future researchers in order to acquaint them with the more important policy structures in the environmental field. The first appendix consists of the umbrella environment act of India i.e. The Environment (Protection) Act, 1986 and second appendix is of the United Nations Conference on Human Environment, 1972 which is the first major global step for environment protection.

The study for the environmental policies has been limited to the period after the independence of India in 1947. This is because of the fact that hardly any organised, systematic and detailed material is available for the researchers to really work on them because of the simple reason that the concern for protection of environment is a recent phenomenon in the real sense of the term and no notable policies were in existence during the period when the British ruled India. Therefore, at that time, environmental protection was not a crucial issue at all so, no significant measures were taken except for a few attempts by the British in the forest sector that too was for their vested interests. The study of the overview of policies i.e. measures, acts, rules, adopted by the government, are discussed but the effectiveness and implementation of the policies have not been dealt with in equal details. Policy is an ongoing process, frequently new measures and steps are taken, and thus, the effects of policies are prolonged. Hence, the study of the effectiveness and enforcement of the policies at all the levels is somewhat difficult to measure and also it is so extensive that it requires a separate work altogether. Moreover, the measures taken at the village level i.e. at the level of panchayats, could not be evaluated for reaching definite conclusions because of obvious reasons of the lack of any significant and organised attempts. Sector wise, the policies on environment have been assessed, but some minor and overlapping sectors are not studied separately. Further, the indoor environmental issues and economic instruments of environmental policies are given only a cursory treatment. The main environmental administrative organisation i.e. Ministry of Environment and Forests is discussed, but other environment related ministries and departments, such as the Department of Ocean Development (DOD) and the like, are not discussed as comprehensively.

Acknowledgement

First of all I bow before God who bestowed upon me the courage, perseverance and patience to bring this work to its completion.

I wish to express my gratitude to all those people who helped and supported me during the writing of this thesis.

Words are inadequate to express my gratitude to Prof. Arif Hameed, my supervisor and guide, who inspired me and guided me at every stage of my research work. I owe a debt for his guidance, intellectual stimulation, inspiration, sympathetic attitude and support during my tenure under him for this endeavour.

I also extend my profound thanks to my institution, and the chairman and all the teachers of the Department of Political Science whose valuable guidance and good wishes helped me immensely in pursuit of my work.

I also owe my gratitude to the Maulana Azad Library, A.M.U.; Ministry of Environment and Forests, New Delhi; Jawaharlal Nehru University, New Delhi; Centre for Science and Environment (CSE), Indian Institute of Public Administration (IIPA), New Delhi and World Wild Life Fund for Nature (WWF), New Delhi for their support and generous help.

Also, I would like to express my gratitude to all the authors, writers and scholars whose work I have consulted and whose views I have quoted in this thesis.

I must mention with profound gratitude the support of all my colleagues and friends especially; Sabira Khan, Shakira Khan and Nargis Salim for their all round support throughout the course of this thesis.

My thanks are also due to the non-teaching staff of our department, namely; Mr. Fakhruzzaman, Mr. M. Sulaiman Khan and Mr. Qamaruddin for their kind help.

Last, but not the least, my deepest gratitude is to my parents, Mr. Zaki Raza and Mrs. Zeba Rizvi, my grandparents, my sisters; Ms. Zahabia Raza and Ms. Fatima Raza and my brother, Mr. Mohammad Husain Raza for their unfailing moral support and encouragement during the entire period. They have been the pillars of strength and great motivation in pursuit of my academic achievements. In the end, I would again like to express my sincere gratitude and reverence to my parents who kept on encouraging me for pursuing higher studies leading to the completion of my Ph.D. thesis.

Zainab Raza

Contents

Title Page No.

INTRODUCTION i-xi

CHAPTER I 1-39 ENVIRONMENTAL POLICY: CONCEPT AND PERSPECTIVES 1. Environmental Policy: Conceptual Framework 2. Evolution of Environmental Policy 3. Principles of Environmental Policy Environmental Protection Principles i. Sustainability Principle ii. Polluters Pay Principle (PPP) iii. Precautionary Principle Social and Environmental Protection Principles i. Equity Principle ii. Human Rights Principle iii. Participation Principle 4. Instruments of Environmental Policy 5. Sources of Environmental Policy i. At International Level ii. At National Level 6. Sustainable Development and the Environment 7. Global Environmental Politics i. North-South Divide ii. Environmental Injustice iii. Environment, Security and Conflict iv. Accountability, Political Regime and Environmental Policy v. Electoral Politics and Green Political Parties vi. Globalisation and Environment

CHAPTER II 40-86 INTERNATIONAL ENVIRONMENTAL REGIME 1. United Nations 2. Inter-Governmental Organisations Outside United Nations 3. Non-State Actors i. NGOs ii. Business Sector

CHAPTER III 87-124 ENVIRONMENTAL ISSUES IN INDIA 1. India’s Environmental Policy: A Historical Perspective (a) Pre-Independence Period (i) Ancient Period (ii) Medieval Period (iii) British Period (b) Post Independence Period: Period of Five Year Plans 2. People’s Response to Environment (a) Environmental Movements: (i) Chipko Movement: (ii) Narmada Bachao Andolan (NBA) (b) Media (c) NGOs (d) Private Companies

CHAPTER IV 125-187 PRINCIPAL AREAS OF ENVIRONMENT POLICY 1. Water 2. Air 3. Noise 4. Soil 5. Forests and Wildlife 6. Biodiversity 7. Urban Problems 8. Nuclear and Radiation Pollution 9. Energy 10. Miscellaneous

CHAPTER V 188-220 ENVIRONMENT ISSUES AND THE CONSTITUTIONAL RESPONSE 1. Environmental Legislative Structure 2. Fundamental Rights 3. Directive Principles of State Policy 4. Fundamental Duties 5. Parliament and the Environment

CHAPTER VI 221-257 ENVIRONMENT ISSUES AND THE ADMINISTRATIVE RESPONSE 1. Ministry of Environment and Forests: The Administrative Organisation 2. Offices under the Ministry of Environment and Forests i. Autonomous Organisations ii. Subordinate Offices under the Ministry of Environment and Forests iii. Boards iv. Authorities under Ministry of Environment and Forests v. Centre of Excellence 3. Environment Information System 4. Environment Impact Assessment 5. Other Initiatives for Environment Management i. Policy Statement on Abatement of Pollution 1992 ii. National Conservation Strategy and Policy Statement on Environment and Development 1992 iii. National Environment Policy 2006 iv. International Initiatives 6. Other Ministries of Government of India CHAPTER VII 258-294 ENVIRONMENT ISSUES AND THE JUDICIAL RESPONSE 1. Instruments of Judiciary for Environment Protection 2. Environmental Initiatives by Judiciary 3. Divergent Role of Judiciary 4. Aspects of Environment Justice 5. Arbitrariness of judiciary 6. Implementation of Court Orders

CONCLUSION AND SUGGESTIONS 295-306

BIBLIOGRAPHY 307-331

APPENDICES 332-358

INTRODUCTION

Earth is known to be the only planet in this universe on which life exists. It is the only planet which has been gifted with life supporting elements-water, food, land, air, energy and minerals. But, unfortunately, this planet has been losing its reservoir of life sustaining elements because of the actions of human beings. The environment has become the victim of man. Man, which is the best creation of God, is constantly degrading the environment of this planet. Man has been exploiting foolishly rather than utilising wisely the resources of the earth. However, the natural cycle of earth has been changing constantly, both naturally and induced by man. Since its existence, the changes which were taking place naturally in the environment were not disturbing the natural balance of environment of the earth. However, the intervention of the human activities in the nature and its processes had a great impact on the environment of our planet. The activities of humans, i.e. unsustainable use of resources and introduction of pollution to the environment, led to such deep impacts that it became difficult for the nature to endure and regenerate itself. The imbalance of the environment started influencing the basic needs of humans-water, food, shelter, health and security. For Jonathan Raban has rightly said about the condition of environment: “In an underdeveloped country don‟t drink water; in a developed country don‟t breathe air.” The man‟s quest for development is the major factor responsible for environmental degradation. It was aptly said by Mahatma Gandhi: "There is a sufficiency in the world for man's need but not for man's greed” The desire for more and more has led to this circumstance. The growth of civilisations and then the development of industrial revolution and consequently globalisation, liberalisation and modernisation of markets have caused serious damage to the environment of this planet. The rapid depletion of resources, increasing pollution levels and introduction of global environmental problems like global warming, biodiversity extinction, disposal of nuclear waste etc., are all the consequences of activities of man. Furthermore, respiratory diseases, cancer, jaundice, typhoid, infant deaths, asthma, cough, eye irritation and general malaise, all have been associated with environment degradation and pollution. It was when man became the victim of his own environment, he realised that for survival, there is a need for cooperative action at the global level to protect the environment. For Robert Redford has rightly said: “I think the environment should be put in the category of our national security. Defence of our resources is just as important as defence from abroad. Otherwise what is there to defend?” Thus, it was realised that environment is fundamental to the survival and development of man and earth as a whole. Consequently, at the global level, the first step in this direction was taken in 1972 at Stockholm when 113 world governments assembled to participate in the United Nations Conference on Human Environment.

1

Ensuing this, a number of other international and national responses were there in the form of conferences, meetings, declarations, conventions and summits according to different environmental problems. Many governments at the national level, for example, Spain, Finland, and Greece began to take measures to protect the environment by incorporating environmental obligations in their constitutions. The concern for environment has its beginnings in India at a very early stage. Though the earliest environmental policies can be dated to the period of Kautilya, but in the modern period the decade of early 1970s can be considered as the period of emerging environmental policies in India. This was the period when establishment of legal frameworks and creation of government bodies for environmental protection took place. In 1972, the then Prime Minister Indira Gandhi, established a National Committee on Environmental Planning and Coordination (NCEPC) in the Department of Science and Technology. Originally, the Constitution of India contained no provisions for the protection of environment but with the passing of the forty-second amendment of the Constitution, provisions were provided for the protection of environment and its improvements in the form of Fundamental Duties and Directive Principles of State Policy. During this period, a number of environment related legislations were enacted such as; Wild Life Protection Act 1972; Water Act 1974; Water Cess Act 1977; Forest (Conservation) Act 1980; Air Act 1981, etc. The Water Act 1974 led to the establishment of Central and State pollution control boards. Though the purpose of most of these Acts is not directly related to environmental protection, but they do have provisions for controlling environmental degradation indirectly. In 1980, the President of India in his address to the first joint session of the 7th Parliament expressed the need for environmental concerns. Accordingly, a high-powered committee was constituted under the chairmanship of N. D. Tiwari in February 1980 to recommend legislative measures and administrative machinery for environmental protection. The Committee in its report recommended the establishment of Department of Environment. Furthermore, in the Sixth Five Year Plan, separate chapter under the heading of „environment‟ was committed to the discussion of problems of environment degradation. Finally, the Ministry of Environment and Forests came into its present state only in 1985. Since then, the Government of India has constantly been conscious of the growing environmental degradation. New policies and laws are being introduced and enacted; and old policies are being revised. More than 200 central and state laws can be interpreted to have been enacted for the protection of environment, in one way or the other. Even a voluntary environment labelling scheme viz. Ecomark has been launched for informing the consumers about the economic-friendliness of the products. The Environment (Protection) Act came into existence in 1986 to provide an umbrella legislation for the protection of environment all over the country. The Environmental Information System was implemented as a comprehensive network in environmental information collection, collation, storage, retrieval and dissemination to varying users including policy planners, decision makers, scientists and environmentalists. Environment Impact Assessment (EIA) as an important management tool is employed to determine the impact of any project or major activity such as, industrial development or dam construction, on the environment. Recently, the government has initiated a proposal to establish a National Environment Protection Authority (NEPA) to strengthen regulatory framework and

2 to improve the environmental governance in the country. Since the Acts alone cannot carry the burden of environmental protection, therefore various environmental policies have been introduced from time to time such as; Policy Statement on Abatement of Pollution 1992, National Conservation Strategy and Policy Statement on Environment and Development 1992 and National Environment Policy 2006. Besides, these schemes and programmes are being implemented at different levels of the government in order to properly manage the environmental issues of the country. Thus, the Ministry facilitates a „mix of instruments‟ in the form of legislations and regulations, fiscal incentives, voluntary agreements, educational programmes and information campaigns. Furthermore, judiciary has played a major role in providing justice and maintaining and upgrading the environmental policies of the country. The concept of Public Interest Litigation (PIL) has made the task of people, for redressal of their grievances related with environmental degradation, easier. However, environment cannot be seen as a stand-alone concern. It cuts across all sectors of development. The implementation and enforcement of environmental policies are leading to affect other aspects, one being the economy of the country and of the world as a whole. The conflict between economic development versus environment has captured the attention of people in a big way. There are ample instances which could be cited as examples for the economic impact of environmental policy on the people and nations as a whole. There are number of problems with the environment policies which are contentious with the economic growth. For instance, the adoption of more environment policies in a country raises concerns regarding international competitiveness as environment regulations tend to impact the productivity. As compared to developed countries, developing countries are more vulnerable to the adverse effects of environmental measures on market access and competitiveness. The environmental policies also force firms to make decisions that are in social interests, but not in their private interests. This process of “internalizing an externality” increases the firms‟ costs. Further, the resources used to reduce pollution cannot be used to produce economic outputs. These have a negative impact on GDP, especially if environment goals are achieved through direct controls. For instance, it has been found that there has been a decline in the FDI inflow in India because of persistent procedural delays, land acquisition issues and availability of quality infrastructure during the green policy procedures. Even the Prime Minister, recently in his statement, warned against stringent green regulations, claiming that this could lead to the return of „Licence Raj‟.1 Jorgenson and Wilcoxen study has also estimated that the environmental regulations had reduced GDP by 2.59%. Studies have identified many environmental requirements that need to be addressed to increase India‟s export performance. Regulations on dyestuffs affect textile and leather sectors. For example, 20 types of azodyes are banned, mostly based on studies of rodents showing carcinogenic implications. Standards involving the use of certain chemicals based on the „precautionary principle‟ affect textiles in particular. The presence of formaldehyde, glyoxal and PCP residues in cotton T-shirts led to

1 Licence Raj, or the Permit Raj, refers to the elaborate licenses, regulations and accompanying red tape that were required to set up and run businesses in India between 1947 and 1990.

3 denial of market access to exporters. The effect is more significant on SMEs, as the costs of compliance could be prohibitive. For example, SMEs found it prohibitive to shift from PCP to Busan-30, the latter costing seven times the former. They also found it unviable to install effluent treatment plants in the tannery sector and, therefore, the government had to provide assistance to compensate them. Not only this, tea exports have also been affected due to developed countries‟ concerns about pesticide content. Although, Indian exporters adhered to the maximum pesticide residue levels recommended by US Environmental Protection Agency (EPA), stricter limits (e.g. 0.01 mg of tetrafidon and 2 mg of ethion per kg of tea) imposed in some European countries became insurmountable, there being, apart from other problems, a cost of $234 per analysis. Environmental measures may also affect imports as in the case of Philippines. The Basel Convention is affecting the used-lead acid battery recycling industry that used to import used batteries to recover lead metal. With the ban on the import of used- lead acid batteries by the Basel Convention, the largest company is now forced to obtain its feedstock from the local market, thereby competing with smaller and "informal" recyclers. The operations of these smaller recyclers tend to lack environmental measures. Therefore, a package of economic and regulatory instruments is proposed to encourage high capacity utilization of licensed smelters for recycling. Simpson (1993) argues that it is important to consider what happens to variable and fixed costs with stricter environmental laws. New regulations may require new equipment which increases fixed costs even though this equipment may lead to production efficiencies which lower variable costs. As has happened in the CNG conversion of the transport system of Delhi, the massive cost involved in the mass conversion was thoroughly ignored and the supply and demand of natural gas in the country was overlooked. In addition to mandatory environmental requirements, voluntary measures affecting market access of Indian products have also been studied. The most extensively studied voluntary measure is eco-labelling. Costs of compliance with eco-labelling criteria in the textile and leather sectors have been found to be prohibitive, compounded by difficulties in accessing technologies, developing testing facilities and verifying compliance. For example, the cost of compliance with eco-labelling schemes by Indian footwear exporters may be 33 per cent of the export price. Emerging voluntary arrangements may also need to be analysed for their market access impact. Background of the Study In pursuance of growing environmental concerns, one confronts with some important questions like: What is the current status of the environment at the global as well as at the national level? What are the major factors effecting the environmental policies? What are the major policies of environment and their major areas? What policies have been adopted till now by governments? How does the government works in dealing with the formulating and implementation of the environmental policies? How green are the organs of the government i.e. constitution, judiciary and administration? How is the government responding to the international environmental policies and laws? How is the government dealing with

4 the trans-boundary environmental issues? Besides government, which other actors are contributing to the environmental policies? How are the people responding to the environmental policies? With this background one is concerned about the various aspects of environmental policy. Aims and Objectives Since the concern for environment has become a major field in today‟s world, therefore, environmental policies, whether taken up by the government or public, have become a major subject of discussion. Therefore, this thesis discusses in detail about the environmental policies in India since their evolution from the ancient period to the present era. Accordingly, following are the main aims and objectives of the thesis: 1. To assess the factors and perspectives of environmental policies.

2. To assess, internationally as well as nationally, the role of state and non- state actors in the environment protection.

3. To assess the status of environment in India.

4. To evaluate the sector-wise framework of environmental policies including laws, regulations, acts and rules in India.

5. To assess the role of constitution of India in the protection of environment.

6. To assess the role and working of Indian judiciary in the protection of environment.

7. To assess the role and working of main environmental administrative organisations i.e. Ministry of Environment and Forests along with its related organisations in the protection of environment.

8. To make policy recommendations for environmental protection.

Methodology of Research The methodology of the research was primarily historical, descriptive and analytical. The collection of material was based on primary and secondary sources of data. Sincere efforts were made to utilise the accessible and available material on this topic. This thesis involved immense library research and consultation and has relied heavily on the government documents by assessing the annual reports, newsletters and official websites of the ministries and other related organisations. Besides, leading dailies, journals, magazines, books, statistical handbooks, reports and press releases of non-governmental organisations have also been consulted to make the study more informative and comprehensive. Furthermore, various Acts and their

5 amendments and prominent concerned judgements of the Supreme Court and the High Courts, provisions in the five year plans and the constitution, are also analysed. To provide latest information regarding the topic, chiefly official websites were accessed. For instance, the second chapter deals with the inter-governmental organisations involved in environmental policies, therefore, the official websites of each organisation have been accessed to afford latest information. During the course of study, the libraries of Jawaharlal Nehru University (JNU), Indian Institute of Public Administration (IIPA), Centre for Science and Environment (CSE), Ministry of Environment and Forests (MoEF) were consulted. Undoubtedly, the Maulana Azad Library and the Seminar Library of the Political Science department of Aligarh Muslim University have been of immense help during the collection of material for this thesis. Limitations of the Study The study for the environmental policies has been limited to the period after the independence of India in 1947. This is because of the fact that there is no proper and detailed material available for the policies adopted of the period before independence. Also, at that time the environmental protection was not a crucial issue so no significant measures were taken except for a few attempts by the British in the forest sector that also for their vested interests. The study of the overview of policies i.e. measures, acts, rules adopted by the government are discussed but the effectiveness and implementation of the policies have not been dealt with in equal details. The policy is an ongoing process, frequently new measures and steps are being taken, and thus, the effects of policies are prolonged, therefore, the study of the effectiveness and enforcement of the policies at all the levels is somewhat difficult to measure and so extensive that it requires a separate thesis altogether. Also, the measures taken at the village level i.e. Panchayats, could not be evaluated for obvious reasons. Sector wise, the policies of environment have been assessed, but some minor and overlapping sectors are not studied separately. Further, the indoor environmental issues and economic instruments of environmental policies are given only a cursory treatment. The main environmental administrative organisation i.e. Ministry of Environment and Forests, is discussed, but other environment related ministries and departments, such as the Department of Ocean Development (DOD) and the like, are not discussed as comprehensively. Outline of the Thesis With this background, the topic of researcher‟s thesis “Environmental Policy and Administration in India: Governmental Response” is an endeavour to assess the role of different organs of the government of India in the field of environment, coupled with the sector-wise assessment of the environmental policy, the response of the public to the environment and administration of the environmental policies. For this purpose, the thesis has been broadly divided into seven chapters, besides an introduction and conclusion and suggestions given at the beginning and at the end of the thesis, respectively. The first chapter deals in general with the various factors and related themes of the environmental policies. It discusses the conceptual framework of environmental policies, the evolution of the environmental policies at the global level, the sources

6 for the formation of the environmental policies around the globe, instruments involved in environmental policies and the general principles upon which the environmental policies have been evolved. It further discusses the relationship between sustainable development and environmental policies; and global politics on environmental issues. The second chapter “International Environmental Regime” deals with various international state and non-state actors involved in the protection of environment. The United Nations, the most prominent actor in environmental regime along with its related organisations, is discussed to find out as how the various bodies of United Nations are involved in environmental protection. Besides United Nations, other international organisations involved in environmental protection are also dealt with in this chapter. Of these organisations, some have, as their sole aim, the environmental protection while others have included environmental protection in their working. The role of major non-state actors i.e. non-governmental organisations (NGOs) and trans-national corporations (TNCs) in environmental protection is discussed later in the chapter. The third chapter starts dealing with the environmental issues in India. The first sub- chapter deals with the historical perspective of the environmental policies in India and is divided into two phases. The first phase is the pre-independence period discussed through the periods of ancient, medieval and British. The second phase is the post-independence period discussed in reference to the five year plans. The second sub-chapter deals the issue by analysing as to how the people at different levels and fields have been responding to the environmental issues by means of movements, media, NGOs and companies. The chapter also discusses the popular environmental movements: Chipko Movement and Narmada Bachao Andolan, etc. The fourth chapter discusses the principal areas of environmental policies like water, air, noise pollution, soil, forests and wildlife, energy conservation etc. The chapter deals with the conditions of the environment in the concerned areas and then the policies developed to curb environmental degradation at the national level in the concerned areas. The fifth chapter deals with the constitutional and legislative measures taken by the government in combating environmental deterioration. The chapter deals with the issue as to how the environmental issues are ingrained in the fundamental rights, fundamental duties and in the directive principles of state policy. It also discusses the legislative environmental structure and the parliamentary response for environmental protection. The sixth chapter deals with the administrative response of the government in the protection of the environmental degradation. How the administration is carried out for the implementation of environmental policies? Since the nodal administrative organisation for environmental protection in India is the Ministry of Environment and Forests, so the working of the Ministry is discussed in some detail. It discusses how the Ministry works with its autonomous organisations, subordinate offices, boards and other bodies through the important instruments like Environmental Information System and Environmental Impact Assessment (EIA). Further, the important initiatives taken by the Ministry like, the Policy Statement on Abatement of Pollution 1992, National Conservation Strategy and Policy Statement on

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Environment and Development 1992 and National Environment Policy 2006 are discussed. The response of other ministries to the environmental policies is also dealt with. The seventh chapter discusses the response of judiciary in the protection of environment. Various cases have been discussed and the related judgements have been studied. It discusses the instruments through which the judiciary has been working in protecting the environment. It further deals with the environmental initiatives taken by the judiciary, the divergent role of the judiciary, the various aspects of environmental justice and sometimes the arbitrariness of judiciary in providing environmental justice. The last chapter is the concluding chapter in which the study has been summarised and suggestions are given for improving the environmental policies and administration in India.

ENVIRONMENTAL POLICY: CONCEPT AND PERSPECTIVES

1. ENVIRONMENTAL POLICY: CONCEPTUAL FRAMEWORK

The term „environment‟ has been defined in different ways by various thinkers because of its wide scope as well as its nature. Even the major treaties, guidelines, declarations regarding environment have not attempted to conclusively define this term. The word “environment” is derived from an ancient French word environner, meaning to encircle. By broadly applying to surroundings, environment can include the aggregate of natural, social and cultural conditions that influence the life of an individual or community. Thus, environmental problems can be deemed to include such problems as traffic congestions, dams, food, crime, noise etc. Geographically speaking, environment can refer to a limited area or encompass the entire planet, including the atmosphere and stratosphere.1 This can be narrowed down to describe specific areas; the aquatic environment, for example, consists of rivers, the terrestrial environment, that of land surface. The built environment has been applied to areas,

8 such as cities created by human activity. All components of the environment are intimately linked and in combination constitute the earth and atmospheric system. Thus, they vary in scale from microscopic to global and may be subdivided according to their attributes.2

Different people have given different definitions of environment. Einstein once remarked, “the environment is everything that is not me.”3 Oxford Dictionary defines environment as the natural conditions, e.g. land, water and air, in which we live. The Declaration of the United Nations Stockholm Conference on the Human Environment merely refers obliquely to man‟s environment „which gives him physical sustenance and affords him the opportunity for intellectual, spiritual, moral and social growth‟, thus, including „both aspects of man‟s environment, the natural and the man-made, are essential for his well-being and enjoyment of basic rights‟.4 According to Article 2 (1), Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, „environment‟ includes (1) natural resources both biotic and abiotic, such as air, water, soil, fauna and flora and the interactions between the same factors (2) property which forms part of the cultural heritage (3) the characteristic aspects of landscape. Section 1 of the British Environmental Protection Act, 1990, defines that “the environment consists of all or any of the following media, namely; the air, water and land, and the medium of air includes the air within building and the air within other natural or man-made structures above of or below ground.”5 In this context, the United Nations Environment Programme (UNEP) speaks of the total habitat of man. In other words, the definition given by UNEP is comprehensive. The definition can be divided into three subsystems within the environment-the natural environment-the man-made techno-structures-the social environment.6 Thus, the environment can be explained as the natural as well as man-made surroundings which influence the various aspects of life of the human beings. The surroundings may vary from natural phenomenon like rivers, lakes, soil, and the built-up environment like traffic jams and pollution.

When we move from the obvious differences among writers, regarding definitions of environment, it would be pertinent to explain the term „policy‟ and its attributes. Policy is one of the central processes of organisations. Policy is a deliberate plan of action to guide decisions and achieve rational outcome(s). Policies give meaning to

9 the objectives. The objectives of any organisation are couched in general terms. The policies give concrete form to these goals. The term can be applied to any government, private sector organisations, groups, or individuals. Dimock defines policies as “the consciously acknowledged rules of conduct that guide administrative decisions.”7 Policy differs from rules, laws, customs or decisions. Rules are similar to policies as they prescribe the do‟s and don‟ts, but unlike policies, are rigid and specific. A custom is a habitual course of action. A decision is usually taken within the framework of policy that is, policy may involve a series of decisions.8 While law can compel or prohibit behaviors (e.g. a law requiring the payment of taxes on income) policy merely guides actions towards those that are most likely to achieve a desired outcome.9 According to William Jenkins in „Policy Analysis: A Political and Organisational Perspective‟ (1978), a policy is „a set of interrelated decisions taken by a political actor or group of actors concerning the selection of goals and the means of achieving them within a specified situation where those decisions should, in principle, be within the power of those actors to achieve.‟10

Therefore, the term „environmental policy‟ means the actions taken or proposed, to prevent or mitigate the harmful effects done by human beings on the environment or ecology and its components.11 Any plan of action or decision taken for the protection of the environment, may be it is for reducing the harmful effects already done, or to be done, by humans to the inbuilt as well as built-up environment. These environmental policies can be applied not only by governments but also by individuals, private organisations, not-for-profit organisations, international organisations or intergovernmental organisations. The range of environmental policies is wide. It, eventually, includes protection of endangered flora and fauna; protection of the atmosphere against ozone depletion, acidification and climate change; protection of the oceans against oil spills and dumping of hazardous materials; conservation of fisheries; protection of soil; protection against trade in dangerous chemicals, pesticides, and hazardous wastes; protection against transboundary pollution; measures to combat desertification; and protection of Antarctica.12

Environment of the earth in which we survive is not static. Changes are constantly taking place in the environment since its existence. The changes are also in the

10 negative aspects in the form of volcanic eruptions, earthquakes, landing of meteorites on earth‟s surface etc. But, these activities are not seriously deteriorating the environment as it is a natural cycle. However, the intervention of the human activities in the nature and its processes had a great impact on the environment of the earth. The activities of humans i.e. unsustainable use of resources and introduction of pollution to the environment led to such deep impacts that it became difficult for the nature to endure and regenerate itself. The after effects became visible in the form of global warming, climate change, floods, drought, ice-melting, rising sea- level, and so on. The degradation of the environment was influencing the basic needs of humans: water, food, shelter, health and security. It was therefore, felt that actions have to be taken for the protection of environment. All this led to the need for environmental policies due to the simple reason that the survival and well-being of humans cannot be ensured without a healthy environment.

2. EVOLUTION OF ENVIRONMENTAL POLICY

The development of environmental policies has been taking place slowly and gradually. As mentioned earlier too, the existence of environmental problems and changes in environment have been taking place since the existence of environment, so is the existence of environmental policies to face the challenges posed. There is no verifiable data about the beginning of environmental policies, but the earliest signs of environmental concerns date back to the period of Herodotus. It was Herodotus who recorded a number of remarkable changes in the environment caused by human activities such as construction of bridges and canals. Plato also observed environmental degradation and deforestation of the mountains of Attica in the Critias and advised concerning them in his ideal state in the Republic and the Laws.13

The first stern environmental policies were taken by Roman Emperor Julius Caesar when traffic congestion was emerging as a major problem. He solved it by banning the wheeled vehicle during daytime from the centre of Rome. Later, Claudius extended the law to all the major towns of Italy, Marcus Aurilis made it pertain to every town in the empire and Hadrian made it more stern it by confining the number of vehicles allowed to enter even in the night.14

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Coming to the thirteenth century, in 1273, it is said that the first legislation for environment protection was passed by Edward I of England (1272-1307) with the purpose to reduce air pollution by restricting smoke emissions.15 In 1306, a London manufacturer was tried and executed for disobeying a law forbidding the burning of coal in the city.16 In 1307, Edward I issued a royal proclamation prohibiting the use 17 of sea coal in kilns. At the same time, in France, environmental policies in the form of ordinances were promulgated by Philippe le Hardi, in 1280, when forests started disappearing because of tree cutting for wood use. More policies followed in 1302, under Philippe le Bel and in 1312 under Philippe V organised a water and forest supervisory staff that had administrative and judicial power and royal prerogatives over the forests. Forests were also divided largely among the king, the clergy, and the nobility and peasants could use forests in exchange for their labour.18

During the period of Richard II (1367-1400 reined from 1377) of England, policies were taken for the protection of Thames river polluted by industrial effluents. Still, the air pollution was so dominant in England that in 1578, Elizabeth I refused to enter the city because of pollution.19 In the 17th century, John Evelyn, a naturalist and diarist, campaigned for a response to air pollution in London, complaining that London resembles „the suburbs of hell.‟ The Common Law also provided protection against such disturbances when a complaint against a London baker in 1691 from one of his neighbours resulted in an order for the baker to build a chimney „so high as to convey the smoke clear of the tops of the houses.‟20

However, the earlier environmental policies were more concerned regarding the pollution of water and air as compared to other areas like protection of forests. Pollution of the environment was a greater problem at that time than degradation of environment. Later, the environmental problem such as deforestation started getting attention. Since industrial revolution was first started in England therefore, environmental problems also started emerging there first. To deal with them, legislations and execution of environmental policies were taking place and pollution laws were enacted to prevent further damage. The Parliament of England was the first to discuss the issue of pollution in early 1800s. And the world‟s first broad- ranging pollution control law, Alkali Act in 1863, and consequently, the creation of first environment department also took place in England.21 Thus, England became

12 the hub of environmental policies largely before the introduction of industrial revolution. But with the industrial revolution, the environmental problems were uncontrollable. In the 19th century, the „smog‟ resulted in 500 deaths in December 1873 and caused another more than 2000 deaths, in February 1880. 22

All the policies of environment were taking place at the national and regional level but with the emergence of transboundary environmental problems such as, long range air pollution, expansive oil spills, nuclear testing, migratory animals, acid rain and ozone depletion, it became evident that the single country independently would not be able to solve the environmental issues unless it was willing to cooperate with other nations. Moreover, the political transformation in the form of dissolution of the colonial empires of Britain, France, the Netherlands, Belgium and Portugal leading to the increased number of nations, and the two World Wars, also added to the necessity of international policies.23 Consequently, the first international institutions established were the International Meteorological Organisation in 1872, International Joint Commission in 1909 between USA and Canada, to resolve transboundary environmental issues.

With the meeting of 1972 United Nations Conference on the Human Environment in Stockholm, the issue instantly assumed global proportions. This Conference was a turning point in the history of environmental concerns as most of the nations got involved in it. With it, the nations started involving in the policies regarding the environment at the national as well as international levels. The Conference adopted a Declaration of Principles to direct the development of international policies and an ambitious action programme containing various concrete proposals for strengthening the role of United Nations in the ecological field. Ensuing this, a number of other international responses also emerged in the form of conferences, meetings, declarations, conventions and summits according to different environmental problems. Some environmental problems were shared by a number of nations such as soil degradation and forest depletion, some problems are concentrated in some nations and some issues are cross-border.24

The differences in environmental problems may occur with the difference in scope and nature. Some of the major international conferences, conventions include:

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1. The World Conference in Rome, 1974

2. The United Nations Conference in Mar del Plata, 1977.

3. The United Nations Conference on Desertification in Nairobi, 1977.

4. The Rio Summit, 1992 and Agenda 21.

5. The World Summit on Sustainable Development in Johannesburg, 2002.

6. The United Nations Climate Change Conference in Copenhagen, 2009.

3. PRINCIPLES OF ENVIRONMENTAL POLICY There are six principles of the policies for environmental protection. These principles form the basis for the making of environmental policies at the international, national and local levels. These principles can be categorised under 2 headings: environmental protection principle and secondly, the social principle for environmental policy.25 The environmental protection principle includes principles solely dealing with the protection of environment, while the second category deals with the social aspects of human and environment principles.

Environmental Protection Principles

(i) Sustainability Principle

The term „sustainability‟ began to get popular in the late 1970s and early 1980s. The „sustainability‟ concept is one of the oldest concepts of environmental policies in comparison to other principles. In other words, the origin of the environmental policies started with the principle of sustainability. With so much industrialisation, population explosion and urbanisation and finally the publication of „The Limits to Growth‟ in 1968 by the Club of Rome, led to the realisation that there is a limit to the carrying capacity of Earth. Supporting this idea, other studies were also published such as the magazine, The Ecologist and books like A Blueprint for Survival and Towards a Steady Economy.26 It was deeply realised that the earth has finite resources but it too has certain limitations to the extent it could sustain the pressures of the people. Its biosphere has particular amount and rate of regeneration

14 and carrying capacity, and resistance to deterioration. That there is a limit to the carrying capacity of the earth is beyond contest. The matters reached such levels that the common people too began to concern for the sustainability of earth. A number of environmental movements started in different parts of the world. Consequently, the government took steps in the direction to improve its sustainability. These steps were taken so that there is no excessive exploitation of resources and for sustainable use of the resources, large scale research projects were initiated to find alternatives for consumable resources and to find ways for judicious use of the existing resources.

On the other hand, there were also a number of writers, economists and other people who severely criticised the whole idea of limits to earth‟s carrying capacity and its depleting resource pool. They argued that humans are capable of finding alternative resources before the present ones disappear. Following this, studies were published such as The Doomsday Syndrome and The Ultimate Resource counter attacking the idea of „limitation‟.27 However, still, the debate is on whether the earth is sustainable or not? Whether there is a need for applying sustainability principle at the cost of economic growth?

(ii) Polluters Pay Principle (PPP)

This is another principle that is advanced for the protection of environment. This principle applies to individuals or organisations that are individually or collectively responsible for the pollution and deterioration of the environment. It demands that the concerned person or organisation is liable to pay either for the prevention of pollution or pay for the damage it causes to ecology or its components.

Earlier, the Polluters Pay Principle (PPP) was applied only to the costs of pollution, prevention and control, as required by government regulations. With time, its area expanded covering the cost of cleaning-up including cleaning up after an accidental spill or disaster. In 2002, the EU proposed to extend the PPP to cover the disposal of e-waste on the shoulders of manufacturers. The PPP was first included in the European agreements in 1973.28 Now it is an accepted principle in many nations. In Canada, it is included in the Constitution. It is also incorporated into the Rio Declaration, Agenda 21, the 2002 World Summit on Sustainable Development Plan

15 of Implementation, 1992 Helsinki Convention on the Transboundary Effects of Industrial Accidents and many more.29 However, there are also some countries that do not support the PPP, like the US etc.

The PPP was ensued by the concept of environmental liability. The countries adopted the liability laws to deal with the environmental damage caused by people or groups of people. However, there are certain limitations to the application of liability laws such as specific identification of the polluter, the extent of damage and many such others.

(iii) Precautionary Principle

The precautionary principles include actions taken to avoid or diminish the harm done by the human activities, which may be morally unacceptable and/or scientifically plausible but uncertain. To define the „precautionary principle‟, the Wingspread Conference on the Precautionary Principle was held in 1998 in Wisconsin. Eventually, the precautionary principle was summarised as:

When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically.30

The precautionary principle achieved popularity when it was included in the Declaration on Environment and Development decided at the 1992 United Nations Conference on Environment and Development in Rio de Janeiro.31 In fact, it is included in all the major environmental international treaties such as the 1992 United Nations Framework Convention on Climate Change, 2001 Stockholm Convention on Persistent Organic Pollutants (POPs). It has also been included into national laws in several nations such as France, Germany and Sweden. However, there are variations in the levels of the precautionary principle in different countries. For instance, in the case of US and UK, when the ozone layer was put forward as an unverified scientific theory in the 1980s, the UK decided not to regulate until the theory had been certified but the US government took a precautionary action of

16 restricting chlorofluorocarbons (CFCs) which was considered the cause of ozone depletion.32

The precautionary principle has faced a number of criticisms in regard to its concept, nature, scope and implementation. Firstly, the critics argue that the definition is not comprehensive. In a British legal case, R v Secretary of State for Trade and Industry ex parte Duddridge, J. Smith observed:

There is, at present, no comprehensive and authoritative definition of the precautionary principle. It is an expression which has in recent years been used in a number of international declarations, conventions and treaties... In none of these documents is the principle comprehensively defined, although often the document describes what the principle is intended to mean in the context of the subject matter concerned. 33

Secondly, there is no established threshold of certainty to indicate that the proposed product or activity is harmful to use this principle.34 Further, the critics argue that precautionary principle block a great number of desirable technological innovations.35

Social and Environmental Protection Principles

(i) Equity Principle

Equity implies the requirement for fairness, impartiality and being just in the distribution of gains and losses and the entitlement of every person to an adequate quality and standard of living. In other words, there should be a minimum standard of income and environmental quality below which no human falls. There should be limits to the burden of the individuals and the basic needs of every individual should be met irrespective of his abilities. Equity is applied not only across communities and nations but also across generations.

Within one generation, equity includes equity of different resources among people at local, national and international levels. The differences tend to occur in reference to income of individual, vulnerability, occupation, race and economy of the nation. The people with low income tend to suffer more in comparison to high-income people. Since rich people can afford to pay and expend more, so they have the option to live

17 in healthy and good environment. This aspect is not limited to developing nations but also covers areas in developed nations like UK. The equity principle also applies to people with different age, gender, intake of food and health quality. Since children, old people and unhealthy people are more vulnerable than others, therefore, they should be given preference in terms of environment. For example, below average people, especially children, are more vulnerable to pollution and contamination. Similarly, occupation of the people also tends to influence the risk factor. People involved in mining, chemical industry or nuclear plants are more exposed to dangers as compared to other members of the society. Further, people of developing nations are more exposed to dangers and risks as compared to people living in developed countries. This is common knowledge as to how African countries have become a dumping ground for electronic waste from the developed world.

All these cases indicate that there is inequity, people who actually bear the burden of environmental degradation are not really responsible for it nor can be blamed for depletion of its resources. This is the simplest and basic explanation of the equity principle. To further clarify the point, the principle means that people who do not gain anything from environmental degradation should also not be made to suffer due to it.

Relatively, inter-generational equity refers to the need for a fair distribution of gains and losses between generations. This aspect is the base of sustainable development. The definition of sustainable development as defined by Brundtland Commission is solely based on inter-generational equity. Subsequently, it is incorporated in major international environmental policies like 1992 Rio Declaration on Environment and Development, 1993 Vienna Declaration and Programme of Action and many more. However, there have been two schools of thought in context of inter-generational equity. First is the weak sustainability thought and the other is strong sustainability notion.

Advocates of weak sustainability argue that the loss of income from depleted resources could be compensated for by other investments which generate same income and that there is no need to take pains for the future generations. On the other hand, advocates of strong sustainability argue that the environment should not

18 be degraded, in spite of the fact that the future generation can compensate by other resources and technologies.36

(ii) Human Rights Principle

Human rights are the rights enjoyed by every human being all his life irrespective of his place, income, occupation, religion, race, color, age or gender. These are basic to man‟s dignity and survival and cannot be taken away in any case. The human rights i.e. right to life, health and well-being also apply in the field of environment. Humans have every right to live in a healthy, clean and good environment. Every human being has every right to the access to required resources, live in healthy environment, use clean water and air, and to live in accident-free conditions. Violating any of these rights will be breaching the human rights. However, the environmental rights are not limited to this only. The right to live in privacy with the family, in a noise –free environment is also a human right.

Broadly speaking, the environmental rights also include rights for the indigenous people whose income depends on hunting, fishing, mining etc, in spite of the fact that it might come into conflict with the environmental protection. These indigenous people have the right to practice their occupation for the survival and well-being of themselves and their families.37 Since 1992 more than 90 countries including Argentina, France have incorporated the environmental rights.38 However, the first charter to incorporate environmental requirements was the African Charter on Human and Peoples‟ Rights which says that:

All peoples shall have the right to a general satisfactory environment favourable to their development. (Article 24)

However, some argue against the existence of these human rights approach in environment protection. They argue that there is no established definition of what comprises a „healthy environment‟ or a „satisfactory environment‟. Further, it is argued that this approach is anthropocentric. That is, the environment is protected to accomplish the needs of the human and not for other species that also enjoy equal rights.

(iii) Participation Principle

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This principle is a part of human rights principle. Human rights principle also provides the right of the people to get involved in the policies related to environment which affects them. The participation of people, in the context of environment can be best done by gaining information about the ongoing activities and policies related to environment. The right to information is recognised in most international human rights agreements. In terms of environment, Rio Declaration was the first to discuss this right of public participation. 10th principle of the Rio Declaration of 1992 states that:

"Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided." 39

Apart from this Declaration, the other international agreements that include public participation rights are 1992 Biological Diversity Convention, 1997 United Nations Framework Convention on Climate Change and its Kyoto Protocol.

The right to information includes the right to receive prior notice of environmental risks, right to environmental impact assessments, right to legal remedies including standing to initiate public interest litigation and the right to effective remedies where environmental damage is caused.40 It also includes the right to get information about the environmental compatibility of products, manufacturing processes, industrial installations and their effect on environment. Thus, the right to information is, perhaps, the best form of public participation. Every member of the community may be a worker or consumer, has the right to know about his surroundings. Again, the limitation of this principle is that there is no defined boundary about the limitations of „the right to know‟ of the public. There is no specific limit for the people beyond which information may not be provided to them.

4. INSTRUMENTS FOR ENVIRONMENTAL POLICY

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Based on these principles, certain instruments of environmental policy have been developed which are used as tools by the governments to implement their environmental policies. There are varieties of instruments which are used individually or collectively by the governments according to the conditions concerned. Different instruments of environmental policy are used in different sectors of environment. The compliance of the environmental policies depends upon these instruments. Since these instruments usually work through economic aspects, these are also called economic or market-based instruments. The Nordic countries, Netherlands and France, were the first to use economic instruments in the form of charges and levies on water and air pollution as early as the mid-1970s. 41 The critical role of economic instruments was first recognised by the United Nations Conference on Environment and Development in Rio de Janeiro, June 1992. Principle 16 of the Rio Declaration states:

“National authorities should endeavour to promote the internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution with due regard to public interest and without distorting international trade and investment (UN 1992).”

While legislation is aimed at directly changing the behaviour of polluters by outlawing or limiting certain practices, these instruments, in theory, aim either to make environmentally damaging behaviour cost more or to make environmentally sound behaviour more profitable.42 Thus, they are often in contrast to the “command and control” policy approaches.

Earlier, the link of economics in environmental protection was not acceptable as it is the economic activities that are responsible for environmental degradation. However, it was realised that the economic instruments could play an important role in the protection of the environment. Indeed, economic instruments cannot be used only to reduce the apparent environmental development conflict but, if properly designed and implemented, can actually make economic development a vehicle of environmental protection and vice versa.43

Economic activity of generating goods and services incurs costs not only to the private parties involved in production and consumption but also to the common

21 people known as “social costs”. Social costs include costs of pollution, depletion of natural resources or degradation of environment. As the costs are borne by the society as a whole and not included in prices paid by consumers and producers, the use of economic instruments, therefore, rectifies “external costs” in private decision- making, by incorporating them in the prices of goods and services.44

Further, an economic instrument to environmental protection also maintains static as well as dynamic efficiency. An economic instrument can attain a given level of environmental protection for lowest overall cost by creating a framework that agrees for differential response by companies depending on their ability to make reductions, unlike, command and control regulation which is less efficient because it ignores the fact that some plants can make reductions more cheaply than others. It creates a permanent incentive for environmental improvement which accelerates the development of new and cheaper pollution reducing technologies. For instance, placing a price on effluents creates a permanent incentive for environmental improvement. Lastly, the use of many economic instruments allows government to raise money. For example, a charge or fees raises funds that can either be used to finance environmental clean-ups, or to replace existing taxes.45

These economic instruments are increasingly applied in different countries and in different international environmental treaties. For instance, UNEP has established a working group on economic instruments, of experts from developing and developed countries to find ways to guide this work. It has conducted numerous country studies on economic instruments.46 About 100 economic instruments were in place in 14 OECD countries by 1987, rising to 150 by 1993.47 These instruments have brought an improvement in the condition of the environment with the least cost to society as a whole and provide lasting incentives for the development of latest technologies. Thus, the use of economic instruments for environmental protection has defined a new and successful trend in the implementation, compliance and effectiveness of environmental policies.

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5. SOURCES OF ENVIRONMENTAL POLICY

The presence of environmental policies at the national as well as international level worldwide today is still under process. The development of these policies have not been random, rather there has been a plethora of events, meetings, conferences, treaties, agreements, customs, legislations, regulations, etc that eventually led to the shaping of present environmental policies. Therefore, there have been a number of sources which have led to the development of current international and national environmental policies. Some international policies have emerged from the national environmental policies while some national environmental policies emerged from international environmental policies. Thus, the sources of environmental policies at both the levels are often off-shoots of each other.

Sources of Environmental Policies at International Level

The sources of international environmental policies can be further divided into:

i. Agreements.

ii. Customs.

iii. Judicial Decisions.

iv. Writings of Eminent Publicists.

(i) Agreements

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Agreements between nations or between nation/nations and international organisations are the most common source of environmental policies. Agreements may be multilateral, bilateral or regional depending upon the parties involved. Agreements, mainly multi-lateral agreements popularly known as MEAs, are the most common form and source of international environmental policies. A number of MEAs have come into existence since 1972. There are more than 500 global, regional and bilateral environmental treaties that together demonstrate the international commitment to environmental protection.48 The agreements may be in the form of treaties, protocols, conventions, covenants, pacts, declarations depending upon its nature and scope.

„Treaty‟ can be explained as an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments (e.g. Exchange of Notes/Exchange of Letters) and whatever its particular designation [Article 2(1)(a) of Vienna Convention on the Law of Treaties]. A protocol also has the same legal force, although it is a sub-agreement to a treaty, generally used to flesh out or amend the treaty.49 Generally, it is a subsequent and separate legally binding agreement that adds to or modifies an existing convention only for the states that become parties to it.50 Conventions are those forms of agreements that contain obligations to provide a decision-making and organisational framework for the adoption of subsequent complementary agreements.51

Some agreements are executed in a simple form, by exchange of notes or letters, and become binding on signatories without a need for reference to parliaments; some may be concluded at the administrative level in the form of Memoranda of Understanding (MOU).52

(ii) Customs

These are the norms and rules that the nations follow as a matter of tradition. The customs are derived from general, uniform, and consistent state practices, together with a belief that the practice is obligatory.53 These customs are of the nature of general practice, accepted as law by nations and are not time dependent. The Stockholm Declaration on the Human Environment and the Rio Declaration on

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Environment and Development, for example, contain several provisions which some international and national courts have declared to be part of customary international law.54

(iii) Judicial Decisions

Judicial decisions are also important sources of environmental policy at the international level. The judicial decisions and opinions given by international tribunals like the International Court of Justice (ICJ) play an important role. However, the decisions of the ICJ are of subsidiary nature because they are binding only between the parties and only as to the case under consideration.55 Some of the famous tribunals dealing with environmental issues besides ICJ are the International Tribunal for the Law of the Sea (ITLOS), the European Court of Justice, the European and Inter-American Courts of Human Rights, GATT Dispute Settlement Panels, the European and Inter-American Courts of Human Rights etc.56

(iv) Writings of Publicists

The writings and teachings of most highly qualified publicists are also regarded as a „subsidiary‟ means for the determination of rules of law but it is feasible that they solely cannot create law, they are only material and evident sources.57 These writings and teachings provide support for the other sources of international law and may provide clarification in cases of doubt.58 Examples of such sources are reports of international codification bodies such as reports and articles by the International Law Commission, which is charged with furthering of the codification and progressive development of the law, the Harvard Research Drafts and the reports and resolutions of the Institute of International Law, and the International Law Association and some reports of United Nations and its specialised agencies.59

(v) Resolutions of International Organisations

Resolutions of international organisations are also important sources of environmental policy. They play an important role in the elucidation of customary law, the development of customary law and in settling matters relating to the Constitution of the organisations. They include resolutions of the Security Council

26 and General Assembly of the United Nations, and may include resolutions of regional organisations.60

Sources of Environmental Policies at National Level

At the national level, the environmental policies emerge from federal, state or local level. The main sources of environmental policies in a nation may come from the following:

 Constitution.

 Statutes.

 Regulations.

 Customs.

 Licenses, permits and authorisations.

 Judiciary.

 Treaties.

The constitutions are a significant source of environmental policies for the nations. Many constitutions contain provisions for environmental protection through the constitutional rights of the people and duties of the government agencies. More than 100 constitutions refer to a right to a clean and healthy environment, impose a duty on the state to prevent environmental harm, or mention the protection of the environment or natural resources.61 Different governments in the world, protect the environment of their country on the basis of their various constitutional as well as statutory powers to promote the general welfare, regulate commerce and manage public lands, air and water. Development of regulations and permitting systems by administrative authorities is another important source of environmental law. Reporting, monitoring and civil and/or criminal actions to enforce environmental law are critical components of environmental law systems.62 The decisions and orders of the national tribunals besides administrative agencies are also the obvious sources of environmental policies in different nations. Further, the acceptance of international environmental policies and laws through the treaties are also the sources of environmental policies at the national level.

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6. SUSTAINABLE DEVELOPMENT AND THE ENVIRONMENT

Nowadays, the development and progress of humans is being measured in terms of sustainability. In every dimension of development, it is sustainability that has become the major objective.

According to Justice Kuldip Singh:

“The traditional concept that development and ecology are opposed to each other is no longer acceptable. „Sustainable Development‟ is the answer”63

In environmental terms, sustainable development is one of the key principles of the environmental policies. The term sustainable development became popular and rampant with the meeting of the World Commission of Environment and Development in 1987. The meeting defined sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”64 However, till now plethora of definitions has been given by different writers, scholars, experts and institutions with different dimensions and aspects.65 But the most general definition used is that of Brundtland Commission. Different people, societies or institutions have different concept about the sustainable development and the object that is to be achieved by it. For instance, for rich countries, sustainable development may mean steady reductions in wasteful levels of consumption of energy and other natural resources through important improvements in efficiency, and through changes in life style, while in poorer countries, sustainable development would mean the commitment of resources toward continued improvement in living standards.66 The sources of conflict in the concept vary from interests of present generations and those of future, between human well-being and the protection of nature; between poor and rich; and between local and global. 67

As a human being on this planet, we are related to society, the environment and the economy, all of which are interconnected. Relatively, the term sustainable development also has three dimensions: economic, social and environmental. The term sustainable development was used first in the discipline of economics in the

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1970s, later its dimensions were explored and it also became a part of environment as well as social fields. It is mainly the economic development that influences environmental and social development. Moreover, these three aspects of sustainable development do not move in the same direction and are often contradictory. For instance, the externalisation of costs in order to maintain rates of private profit can contradict the ecological imperative to value and conserve natural resources. The global expansion of markets and the integration of national economies through structural adjustment programs and free-trade agreements can undermine the community development imperatives of local self-reliance and meeting basic human needs. Thus, the meaning of sustainability is different in economic, environment and social terms.68

Sustainable development in environmental context, thus, means planning the development of mankind in such a way that there is minimal and right utilisation of natural resources with maximum progress and leaving considerable amount of resources to regenerate for the future generation. In this context, Drummond and Marsden indicate that, in environmental terms, sustainability is more narrowly related to resilience of ecosystems: that is their ability to withstand varying types of stress.69

As mentioned earlier, the concept of sustainable development became popular with the report of Our Common Future, but it was first introduced formally in 1980 by the International Union for the Conservation of Nature through its report World Conservation Strategy: Living Resources Conservation for Sustainable Development. In this IUCN report, the concept of sustainability stressed the necessity of integrating natural conservation and economic development, preserving biodiversity and taking care of the ecosystem for the present and future generations.

In spite of several definitions given by different thinkers, policy experts and institutions, the concept of sustainable development is still vague and ambiguous. There is no defined boundary which can carry within it the concept of sustainable development. Rigby and Caceres identified more than 386 definitions of sustainability.70 There are diversified concepts of sustainable development. Some term the concept of sustainable development in relation to present and future

29 generations, some consider it with the rich and the poor, some consider it with the developed and developing nations. Sunita Narain has rightly said in her article that:

“Sustainable development is a fashionable word. Simply because it means different things to different people – intergenerational equity to even sustained development. We have to understand that sustainable development is about the process of decision-making. Every society makes mistakes. The issue is to find ways in which the worst affected by a decision are able to take action to make changes. Sustainable development is, therefore, not about technology but about a political framework which will devolve power and give people – the victims of environmental degradation – rights over natural resources.”71

Basically, this concept is a linkage between environment and development. It implies a fusion of two imperatives: the right to develop and the need to sustain the environment.72 Further, it indicates a balance between sustainability and equitability: Sustainability brings environmental concepts into the development process, and equitability introduces developmental matters into national and international environmental protection efforts.73

Daniel Magraw and Lisa Hawke identify four core elements of the concept of sustainable development:

 Inter-generational equity.

 Intra-generational equity.

 The need to protect the environment.

 The need to integrate economic, social and environment policies.74

Also, the concept of sustainable development can be viewed from three main perspectives: Human-centric perspective, Eco-centric perspective and Dualistic perspective. Under human-centric perspective, also known as the anthropocentric paradigm, the idea of sustainable development is considered as a means to satisfy the continuing needs and satisfaction of the people of all generations irrespective of the consideration of the environmental degradation and resource depletion. The economic-centric perspective is an opposite of human–centric perspective. It

30 considers humans as a part of ecology and all the elements of the ecology have the equal right to life and all should live in harmony. The dualistic perspective gives equal weightage to ecology as well as human. There is a balanced relationship between humans and ecology.

Since the World Commission on Earth and Development in 1987, sustainable development was so much discussed that it led to the establishment of United Nations Commission for Sustainable Development (CSD) in 1993. The purposes of the commission were to monitor and review progress on the implementation of Agenda 21 at local, national and international level; to develop policy recommendations; and to promote dialogue and build partnerships for sustainable development among governments, the international community, and major groups.75 A conference took place in Rio de Janeiro in 1992, known as the United Nations Conference on Environmental and Development, the „Earth summit‟, it was one of the largest international conferences ever held with over 170 governments represented, 2500 NGOs and 8000 accredited journalists. The central aim was to identify the principles of an agenda for action towards sustainable development in the future.76 Again, in 2002, 104 heads of state met in Johannesburg for the World Summit on Sustainable Development (WSSD) with new ideas to address sustainable development at the global level.77

However, to critics, the term sustainable development means nothing more than “business as usual”.78 They argue that the term is self-contradictory. They argue that since the development itself is based on overtaking the nature and its resources then how it could be a sustainable development. Moreover, the limited use of resources is more a loss for the people of the earth than the benefit of the earth. These critics are skeptical that the changing environment of the earth is man-made rather than natural. Further, it demands restrain from activities which many people regard as the producers of wealth, and for the sake largely not of people of industrialized nations or others today, but of generations whom we will never know.

Although it is not exactly defined what sustainable development is, but still it is considered as a promising and desirable direction, leading to a highly reduced environmental burden, a major reduction in the use of resources and a fairer distribution of wealth. It is expected that sustainable development should lead to a

31 better balance between ecological, economic and social aspects than one that exists today.79

7. GLOBAL ENVIRONMENTAL POLITICS The discipline of environment is not limited to the subjects of natural sciences only, but has entered the boundaries of social sciences including politics. The environmental issue has also been grasped by politics. Thus, the environmental issues have now also become political issues, consequently leading to the origin of the concept of environmental politics. The issues of the environment, in general and environmental policies, in specific, at all the levels are constantly shaped according to the different political dimensions and trends.

Generally, politics is related to the activities and functioning of the government and its related bodies. Broadly, it is not related only to the government; in fact, it involves the authority or power influencing members of the society, which may be in the form of NGOs, TNCs or any others. In turn, persistently, new characteristics and dimensions and trends are being added to the environmental politics. In general, at the global level the environmental politics includes the following prominent issues:

(i) North-South Divide

The North-South difference is a very prominent feature in the global environmental politics. The North-South divide is the difference between the most industrialised countries of the world and relatively less developed and developing countries of the world. Earlier, the term was used only in the economic context, but now it has crept in the political as well as environmental fields. The difference between the two is not only in their economic conditions or interests but also in their goals, priorities and the means of attaining them. In this context, the most urgent priority for the southern nations is economic growth and for the north is sustainable development i.e. the ability of continuing the use of resources while ensuring a healthy environment. The conservation of environment is far less a priority in the South.80 Further, the North is unwilling to accept its responsibility of over-consuming and similarly, the South that of overpopulation. Instead they tend to blame each other and this has been a major reason for failures of major environmental conferences.81

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(ii) Environmental Injustice

This is another crucial feature found in context of the environmental politics. It is also referred as environmental discrimination or environmental racism. The term environmental injustice includes inequality in the-

(a) distribution of environmental commodities and benefits such as clean water, air, land etc.

(b) distribution of environmental ills and hazards such as exposure to work place hazards, residing near landfills.

(c) Participation in the legislative, enforcement and functioning of the environmental policy through the political processes.

Thus, the environmental injustice is not limited to a particular society but can be found at all the levels i.e. local, regional, national and international level. In the US itself, it is found by the United Church of Christ‟s Commission for Racial Justice in 1987 that race was the most prominent factor in the siting of commercially hazardous waste landfills.82 In fact, the concept of environmental injustice first became prominent in the early 1980s in the US, consequently, provoking the launch of environmental justice movement. In 1979, an African American community in Houston, Texas, filed a suit to prevent the siting of a solid waste landfill in Bean v. Southwestern Waste Management. In 1982, the predominantly African American community in Warren County, North Carolina, protested the siting of a polychlorinated biphenyl (PCB) landfill. This incident brought together the environmental and civil rights communities and sparked national attention. 83

The environment has various aspects of its injustice. The first aspect includes developed and the developing nations. For instance, the developed nations dump or shift their toxic wastes in the lands of the developing and underdeveloped nations. Germany is the largest exporter of hazardous waste84 and India is one of the largest favourite grounds for waste disposal. The second aspect includes the white people and the black people. This discrimination is rampant in the developed nations, one being the US. A survey found that three out of the five largest commercial hazardous waste landfills in the United States are located in mostly black or Hispanic

33 community areas, accounting for 40% of the nation‟s estimated commercial landfills.85

As a result of these discriminations, principles of environmental justice were adopted at the First National People of Color Environmental Leadership Summit in 1991 in Washington DC which served as a defining document for the environmental justice. Followed this was the second National People of Color Environmental Leadership Summit which was again held in Washington D.C. in 2002 to review the accomplishments of the movement from the previous 11 years of work.86 Another significant attempt in USA is the Interagency Working Group on Environmental Justice (IWG), which was established under Executive Order 12898 on environmental justice. Through its Integrated Environmental Justice Action Agenda, the IWG seeks to nurture and promote collaborative models for achieving environmental justice.87

(iii) Environment, Security and Conflict

“The whole notion of security as traditionally understood – in terms of political and military threats to national sovereignty – must be expanded to include the growing impact of environmental stress – locally, nationally, regionally, and globally.”

World Commission on Environment and Development

“True security cannot be achieved by mounting buildup of weapons (defence in a narrow sense), but only by providing basic conditions for solving non-military problems which threaten them. Our survival depends not only on military balance, but on global cooperation to ensure a sustainable environment."

Brundtland Commission Report, 1987

Thus, the security concerns are now the part of environment issues, with first officially discussed by the World Commission on Environment and Development. However, the first to discuss the issue of environment and security was in the „Tragedy of Commons‟, written by Garrett Hardin in 1968.88

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Security has traditionally been defined as individual or collective safety achieved through the protection of territorial integrity, political sovereignty and national interests.89 However, this has evolved with time. Presently, environmental factors have an influence on conflicts and levels of stability. The problems of environmental security can be categorised into four, namely; the way environmental change can be a factor in violent conflicts, the way environmental change can be a risk to natural security, the way war and preparation for war can damage the environment, and the way environmental change can be a risk to human security.90 Therefore, the term „environmental security‟ has different meanings and applications for different people.

The existence of environmental conflict has been present since the survival of man on earth. The dominance of lands, rivers and other resources by man, groups or empires, the colonisation by nations and the world wars, all have been the outcomes of environmental issues. The control of resources by the authority at the local, national or international level has always led to the conflicts, disputes and wars. Therefore, the environmental conflict is the result of environmental insecurity. The term environmental conflict includes two aspects: Conflicts because of environment issues, particularly degradation because of conflict. Daniel Schwartz and Ashbindu Singh in the report of UNEP (1999) have noticeably explained the environment- conflict relationship by dividing the environmental conflicts into (1) direct vs. indirect conflict; (2) international vs. intra-national conflict.91

As a perception, the environmental wars and conflicts occur not only because of scarcity of resources but also abundance of it. The new-Malthusian view is challenged by others who consider abundance of resources as more of a curse than a blessing.92 They consider that abundance of and control for resources has led to local conflicts such as in Democratic Republic of Congo, Angola etc and various conflicts in Asia and Latin America are fuelled by the profits from trade in illegal commodities, such as drugs, or hardwood timber, and other forms of contraband.93 Further, the nations with abundant resources finance wars at the international level.

The other cause of environmental conflict includes migration because of disasters such as floods, droughts etc. One of the examples is in India itself, when the people of Bangladesh migrated to India because of deforestation and subsequently flooding.

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As an outcome of the political, economic and religious differences, there were riots between 1979 and 1985 among locals and migrants resulting in the death of more than 4000 people.94 Post 1970, it was maintained that population explosion is a recent aspect responsible for environmental conflicts. The need for more resources for increasing population is forcing nations to cross borders. Air pollution, deforestation, soil erosion are all the results of population growth. Moreover, the renewable resources rather than non renewable resources are now a significant means for conflict. Now the conflict is not for non –renewable resources like oil but for renewable resource. Water is the most prominent cause for conflict. Some argue that water will be the cause for the Third World War, if ever it takes place. Another case has been of Kenya. The use of unsustainable ecological practices such as overfishing, over cultivation, use of toxic chemicals, pollution, all led to decline in fishing stock, water pollution, desertification and deforestation. As a result, there has been economic decline and resulting migrations, leading to violent clashes and tensions. Before the end of 1993, it was estimated that some 1,500 persons had been killed, about 1 percent of the population has been displaced, and the area affected covered about 25 percent of Kenya.95 It is mostly considered that the environmental conflicts exist in developing nations only. The „Turbot War‟ between Canada and Spain is another good example of environmental conflict, in specific, scarcity- induced conflict to show that the developed nations are also involved in these conflicts.96

The other aspect of environment and conflict is that the environment is obviously and severely affected by the conflicts, including wars. The case of Hiroshima and Nagasaki is a devastating case of environmental disaster of war. Another example is of 1991 Gulf War during which it is estimated that the burning of oil fields produced one hundred times the carbon dioxide emissions emitted by an entire year of global economic trading. 97

As a result of these issues, in 2002, Organisation for Security and Co-operation in Europe (OSCE), the United Nations Environment Programme (UNEP) and the United Nations Development Programme (UNDP) launched joint Environment and Security (ENVSEC) initiative.98 The purpose of concerned organisations and governments is to make environmental issue a security and cooperation issue rather

36 than an insecurity or conflict issue. To integrate environmental policies in the security measures have become a priority.

(iv) Accountability, Political Regime and Environmental Policy

The particular approach which the political system follows has a strong impact in the environmental field including policies. Different types of political regimes follow different means to attain their different ends, consequently leading to different policies. The same is the case with the environmental policies. The nations differ in the legislative, executive, enforcement and effectiveness of environmental policies due to different political regimes whether democratic or autocratic, presidential or parliamentary, but sometimes differences also occur within the same regime. Therefore, in general, the character of the political regime has an impact on the scope and effectiveness of environmental politics.99

The variations in the accountability of the rulers to the ruled people lead to the variation in the legislative and enforcement of environmental policies. In turn, the differences in the accountability are due to the electoral process. If the government comes to power on the sole basis of election of the people, the government will rightly consider the policies. And if the government comes to power through dictatorship, then it is less likely that it would consider the welfare of the people. Broadly, there are mainly three basic categories of government i.e. authoritarian, democratic and hybrid regimes having different environmental policies.

Since democratic type of political regime is characterised by periodic elections and civil liberties, subsequently making governments more accountable to the citizens and leading to better legislation and execution of the policies. Thus, in the democratic government the grievances, problems and welfare of the people are considered including environmental protection. However, within the democratic governments, there are variations in the policies. These variations are due to differences in other policies, for instance access to information, independence of media and judiciary. For example, in India, its laws and policies are executed more appropriately as compared to Pakistan where there has been a constant political turmoil leading to the lack in execution of legal policies.

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The autocratic type of governments are characterised by non-elected rulers and curtailment of civil rights. Since the citizens do not have much freedom and are suppressed, therefore, they are less likely to enjoy environment protection and conservation. The case of Nigeria is a popular example of military dictatorships and environment degradation.100

Hybrid regimes can be formed by the disintegration of one-party or military dictatorships. They can be formed by liberal democratic regimes that are hijacked by an individual or groups and thereafter experience a deterioration of democratic freedoms towards authoritarianism. For example, Thailand, in this country, there is a formal and institutionalised Environmental Impact Assessment (EIA) system with compulsory public hearings, but the regime has, in some cases, prevented opponents having access to the hearings through the use of police roadblocks and wire barricades.101

However, this cannot be assumed that the more a nation is democratic, the more its citizens are to have environmental policies and protection, or vice versa. But in general, the democratic as relatively to autocratic government, considers the environmental issues in its policies more actively.

(v) Electoral Politics and Green Political Parties

The environment was considered as an issue for the political parties in order to gain success in the electoral system. Political parties frequently make environmental issues during election campaigns to attract votes of the people. Bill Clinton, contesting for president, chose Al Gore as his vice-presidential running mate who was known to make environment as a major electoral issue. Bill Clinton subsequently, achieved success in the elections and also adopted better environmental policies often reversing policies of his of predecessor George Bush Sr.

Moreover, some political parties developed solely as green political parties, marking a new trend in the global environmental politics. The development of political parties with the basic goal of environmental protection was a new feature in the domain of politics. This birth of green political parties took place in Australia and New Zealand simultaneously in the year 1972 without knowing each other‟s existence. The United Tasmania Group of Australia was the first political party

38 among the two, with the basic principle of environmental issues.102 The first green party in Europe was PEOPLE of UK formed in March 1973.103 Since then, there has been development of this kind of parties in all parts of the world. However, the first successful green party was in Germany which achieved electoral success in 1983.104 The first Planetary Meeting of Greens was held in May 1992 with 250 green parties from 28 countries.105 A „Global Greens‟, an international network of political parties and political movements was founded in 2001 to strengthen in this field.106

(vi) Globalisation and Environment

Globalisation, liberalisation and privatisation of markets have apparently influenced the environment of the earth. The liberalisation of trade, free trade agreements, shipping, aircraft pollution, transnational corporations (TNCs) all are a matter of concern in the environmental field. The agreements of trade, specifically, free trade among the government has great environmental aspect. One of the most widespread criticisms of free trade agreements in this context is that they set off a race of economic development for the participating nations while ignoring the environment protection.107 However, this aspect has seen a reversal in the form of Mercosur Free Trade Agreement. The Mercosur Agreement has been an exception in respect to the environmental degradation and free trade.

As a common perception, free trade makes easier for industries to locate in different countries. Since countries have different environmental regulations, companies establish their industries in countries with laxer regulatory standards. As a result, more pollution is emitted. However, the Mercosur Agreement which was signed among Argentina, Brazil, Paraguay and Uruguay in 1991 included environmental preservation as an important principle of regional free trade.108 In practice, the conservation of the environment in these countries begins with the beginning of the free trade.109 Thus, this proved to be a turning point in the environmental politics of developing countries since the nations have started considering environment as a main issue with the trade agreements.

The shipping activity on the high seas is also a matter of concern in the area of environmental protection. Shipping in the ocean, which is both a globalised industry as well as a means of world trade, is a great factor of global marine pollution. Further, the

39 inability to choose a level of international regulation for marine and curb the trend of open registries of the ships by the nations have introduced considerable difficulties for those trying for marine environment. The cases of oil spills in the seas have had disastrous impacts on the local and regional ecosystems.110

Thus, the environmental politics is not just about „goodies‟ versus „baddies‟. The global environmental politics includes various aspects and dimensions of environment.111 Further, these aspects are not limited to the themes discussed here. The debates in this field are dynamic, almost all the issues of environment involves politics in one way or the other, therefore, limiting the global environmental politics to these themes alone cannot be justified as there can be more dimensions and perceptions to politics of environment, globally, regionally and at local levels.

REFERENCES

1 Dinah Shelton and Alexandre Kiss, Judicial Handbook on Environmental Law, UNEP, Nairobi, 2005, p. 4. 2 David D. Kemp, The Environment Dictionary, Routledge, London, 1998, p. 127. 3 Gurdip Singh, Environmental Law: International and National Perspective, Lawman Publishers, New Delhi, 1995, p. 2. 4 Patricia W. Birne and Alan E. Boyle, International Law and the Environment, Oxford University Press, New York, 1992, p. 2. 5 Alexander Kiss, Introduction to International Environmental Laws, United Nations Institute and Research, Switzerland, 1998, p. 1. 6 Ignacy Sachs, „Environment and Styles of Development‟, Economic and Political Weekly, Volume 9, Number 21, 1974, pp. 828-837. 7 Raj Kumar Pruthi, Administrative Management and Planning, Discovery Publishing House, New Delhi, 2005, p. 29.

40

8 Ibid. 9 Enrique Ruiz, Discriminate or Diversify, PositivePsyche.Biz, Lothian MD, 2009, p. 167. 10 http://www.websters-online-dictionary.org/definitions/policy?cx=partner-pub- 0939450753529744:v0qd01-tdlq&cof=FORID:9&ie=UTF- 8&q=policy&sa=Search#922 accessed on 28 December 2010 at 8:32 pm. 11 John McCormick, Environmental Policy in the European Union: The European Series, Palgrave Macmillan, New York, 2001, p. 21. 12 Norman J. Vig and Regina S. Axelrod (eds.), The Global Environment: Institutions, Law and Policy, Earthscan Publication Limited, London, 2006, p. 17. 13 J. Donald Hughes, What is Environmental History? Polity Press, Cambridge, 2006, pp. 18-21. 14 Michael Allanby, Basics of Environmental Science (Second Edition), Routledge, London and New York, 2000, p. 13. 15 W. Martin, „Legislative Air Pollution Strategies in Various Countries‟ Clean Air, Volume 9, pp. 28-32. 16 Michael Allanby op.cit., p. 13. 17 William H. Te Brake, „Air Pollution and Fuel Crises in Preindustrial London, 1250-1650‟, Technology and Culture, Volume 16, Number 3, 1975, pp. 337- 359. 18 Stephanie Pincetl, “Some Origins of French Environmentalism: An Exploration”, Forest & Conservation History, Volume 37, Number 2, 1993, pp. 80-89. 19 Michael Allanby, op.cit., p. 14. 20 John McCormick, Acid Earth: The Politics of Air Pollution, Earthscan Publications, London, 2006, p. 4. 21 Ibid, p. 5. 22 Ibid. 23 Norman J. Vig and Regina S. Axelrod (eds.), op.cit., p. 27. 24 Ibid, p. 29.

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25 Sharon Beder, Environmental Principles and Policies: An Interdisciplinary Introduction, Earthscan, London, 2006, p. 1. 26 Ibid, p. 14. 27 Ibid pp. 14-15. 28 Ibid p. 34. 29 Ibid. 30 Marian Keeler and Bill Burke, Fundamentals of Integrated Design for Sustainable Building, John Wiley and Sons Publishers, New Jersey, 2009, p. 61. 31 Sharon Beder, op.cit., p. 64. 32 Ibid p. 66. 33 R v Secretary of State for Trade and Industry ex parte Duddridge, Journal of Environmental Law, Volume 7, Number 2, 1994, pp. 224–238. 34 Henk van den Belt, Debating the Precautionary Principle: “Guilty until Proven Innocent” or “Innocent until Proven Guilty?” Plant Physiology, Volume 132, Number 2, 2003, pp. 1122–1126. 35 Kerry H. Whiteside, Precautionary Politics: Principle and Practice in Confronting Environmental Risk, MIT Press, Cambridge, 2006, p. 40. 36 Sharon Beder, op.cit, pp. 85-89. 37 Ibid pp. 100-101. 38 Ibid pp. 102-103. 39 Rio Declaration on Environment and Development, United Nations Environment Programme (UNEP), 1992. 40 A. Dias, Human Rights, Environment and Development: With Special Emphasis on Corporate Accountability, United Nations Development Programme, 2000. 41 Andrew Jordan, Rüdiger K. W. Wurzel and Anthony Zito, „The Rise Of „New‟ Policy Instruments In Comparative Perspective, Has Governance Eclipsed Government?‟ in Jane Roberts (ed.) Environmental Policy, Volume 3, Routledge, London and New York, 2007, p. 19. 42 Sharon Beder, op.cit., p. 157.

42

43 Economic Policy Instruments for Environmental Management and Sustainable Development, Consultant Report prepared by Theodore Panayotou for UNEP Environment and Economics Unit, Environmental Economics Series Paper No. 16, UNEP, Nairobi, 1995. 44 UNEP Briefs on Economics, Trade and Sustainable Development- Information and Policy Tools, UNEP, July 2002. 45 Duncan Austin, Economic Instruments for Pollution Control and Prevention – A Brief Overview, World Resources Institute, September, 1999. 46 UNEP Briefs on Economics, Trade and Sustainable Development- Information and Policy Tools, op.cit. 47 Evaluating Economic Instruments for Environmental Policy, OECD, Paris, 1997. 48 UNEP 2004 Annual Report, United Nations Environment Programme (UNEP), February 2005, p. 32. 49 Stuart Bell and Donald McGillivray, Environmental Law, Oxford University Press, New York, 2008, p. 140. 50 Multilateral Environmental Agreement: Negotiator‟s Handbook (Second Edition) University of Joensuu- UNEP Course Series 5, Joensuu, 2007 51 Ibid. 52 Patricia W. Birne and Alan E. Boyle, op.cit., p. 12. 53 Martin Dixon, Textbook on International Law (Sixth Edition) Oxford University Press, New York, 2007, p. 52. 54 Dinah Shelton and Alexandre Kiss, op.cit., p. 16. 55 Stuart Bell and Donald McGillivray, op.cit., p. 143. 56 Dinah Shelton and Alexandre Kiss, op.cit., p. 17. 57 Martin Dixon , op.cit., p. 46. 58 Ibid, p. 52. 59 Patricia W. Birne and Alan E. Boyle, op.cit., pp. 25-26. 60 Martin Dixon, op.cit., p. 52. 61 Environmental Law: A Handbook for Afghan Judges, UNEP, Kabul, 2009, p. 8. 62 Ibid , p. 7.

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63 Alice Palmer and Cairo A. R. Robb (eds.) International Environmental Law Reports, Volume 4, Cambridge University Press, Cambridge, 2004, p. 275. 64 Our Common Future, World Commission on Environment and Development, Oxford University Press, Oxford, 1987. 65 Jennifer A. Elliott, An Introduction to Sustainable Development (Third Edition) Oxon, 2006, p. 9. 66 B. N. Kirpal, Developments in India Relating to Environmental Justice, available at http://www.unep.org/ accessed on 29 December 2010 at 6:29 pm. 67 Jennifer A. Elliott, op.cit., p. 11. 68 The Local Agenda 21 Planning Guide: An Introduction to Sustainable Development Planning, International Development Research Centre (Canada) and International Council for Local Environmental Initiatives, Canada, 1996, p. 2. 69 http://www.fwr.org/sustdev.pdf accessed on 28 December 2010 at 8:13 pm. 70 D. Rigby and D. Caceres, „Organic Farming and the Sustainability of Agricultural Systems‟, Agricultural Systems, Volume 68, Number 1, 2001, pp. 21-40. 71 Sunita Narain, „Need to Change Directions‟, Seminar, Volume 545, 2005, pp. 64-68. 72 Gedeon M. Mudacumura, Desta Mebratu and M. Shamsul Haque (eds.), Sustainable Development Policy and Administration, CRC Taylor & Francis, Boca Raton, 2006, p. 125. 73 International Covenant on Environment and Development (Draft), Commission on Environment Law of IUCN, Gland, Switzerland, 1995. 74 Malgosia Fitzmaurice, Contemporary Issues in International Environment Law, Edward Elgar Publishing Limited, Cheltenham, UK, 2009, p. 69. 75 Pamela S. Chasek, „The UN Commission on Sustainable Development: The First Five Years‟, in Pamela S. Chasek (ed.), The Global Environment in the twenty-first Century: Prospects for International Cooperation, United Nations University, New York, 2000, pp. 378–398. 76 Jennifer A. Elliot, op.cit., p. 8. 77 Ibid, p. 9.

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78 O. P. Dwivedi, Patrick Kyba, Peter J. Stoett and Rebecca Tiessen, Sustainable Development and Canada: National & International perspectives, Broadview Press Limited, Peterborough, 2001, p. 260. 79 Jaco Quist, Backcasting for a Sustainable Future: the Impact after 10 Years, Eburon Academic Publishers, The Netherlands, 2007, p. 9. 80 Nikos Alexandratos, World Agriculture: Towards 2010: An FAO Study, Food and Agriculture Organisation and John Wiley and Sons Publishers, Chichester, 1995, pp. 189-190. 81 Lamont C. Hempel, Environmental Governance: the Global Challenge, Island Press, Washington, 1996, p. 37. 82 Andrew Harding (ed.) Access to Environmental Justice: A Comparative Study, Martinus Nijhoff Publishers, The Netherlands, 2007, p. 321. 83 Charles Lee, „Environmental Justice: Building a Unified Vision of Health and the Environment‟, Environmental Health Perspectives, Volume 110, Supplement 2, 2002, pp. 141-144. 84 Richard C. Porter, The Economics of Waste, Resources for the Future, Washington, 2002, p. 112-113. 85 Jean V. Hardisty and Ellen Leopald, „Cancer and Poverty: Double Jeopardy for Women‟, in M. Brinton Lykes, Ali Banuazizi, Ramsay Liem, Michael Morris (eds.), Myths about the Powerless: Contesting Social Inequalities, Temple University Press, Philadelphia, 1996, p. 224. 86 Stephen M. Wheeler, Planning for Sustainability: Creating Livable, Equitable, and Ecological Communities, Routledge, Oxon, 2004, p. 63. 87 Charles Lee, op.cit. 88 Jon Barnett, „Environmental Security‟, in Alan Collins, Contemporary Security Studies, Oxford University Press, Oxford, 2007, p. 184. 89 http://www.nato.int/docu/environment/html_en/environment_01.html accessed on 4 January 2011 at 1:14 pm. 90 Jon Barnett, op.cit., p. 183. 91 Daniel Schwartz and Ashbindu Singh, Environmental Conditions, Resources, and Conflicts: An Introductory Overview and Data Collection, UNEP, Nairobi, 1999.

45

92 Indra de Soysa, „Filthy Rich, not Dirt Poor! How Nature Nurtures Civil Violence‟, in Peter Dauvergne (ed.), Handbook of Global Environment Politics, Edward Elgar Publishing Limited, Cheltenham, 2005, p. 149. 93 Ibid, p. 159. 94 Daniel Schwartz and Ashbindu Singh, op.cit. 95 Ibid. 96 Richard A. Matthew, „Man, the State and Nature: Rethinking Environmental Security‟, in Peter Dauvergne (ed.), op.cit., p. 130. 97 Lothar Brock, „Peace through Parks: The Environment on the Peace Research Agenda‟, Journal of Peace Research, Volume 28, Number 4, 1991, pp. 407-423. 98 http://www.nato.int/docu/environment/html_en/environment_01.html accessed on 4 January 2011 at 1:14 pm. 99 Timothy Doyle and Doug McEachern, Environment and Politics (Third Edition) Routledge, London and New York, 2008, p. 29. 100 Ibid, p. 29. 101 Ibid, pp. 29-30. 102 http://www.globalgreens.org/literature/dann/chapterfive.html accessed on 17 February 2010 at 11:42 pm. 103 http://www.globalgreens.org/history/chronology/1973 accessed on 18 February 2010 at 12:01 am. 104 Timothy Doyle and Doug McEachern, op. cit., p. 167. 105 http://www.globalgreens.org/history/chronology/1992 accessed on 18 February at 12:12 am. 106 http://www.globalgreens.org/ accessed on 18 February 2010 at 12:20 am. 107 Kathryn Hochstetler, „Race to the Middle: Environmental Politics in the Mercosur Free Trade Agreement‟, in Peter Dauvergne (ed.), op.cit., p. 348. 108 Ibid, p. 350. 109 Ibid, p. 353. 110 Elizabeth R. DeSombre, „Globalization and Environmental Protection on the High Seas‟, in Peter Dauvergne (ed.), op.cit., p. 64-77. 111 Timothy Doyle and Doug McEachern, op.cit., p. 4.

46

INTERNATIONAL ENVIRONMENTAL REGIME

1. UNITED NATIONS

Inter-governmental organisations have played a key role in the creation, development and operation of international environmental regimes.1 United Nations (UN) is the dominant organisation involved in the policy process of the environment issues at the international level. In fact, the institutionalisation for global environmental concern began with the United Nations. The environmental affairs began in the United Nations when the United Nations General Assembly passed a resolution on the December 15, 1972 emphasising the need for active co-operation among the States in the field of environment. The Resolution has also designated 5 June as the World Environment Day and urged governments and organisations in the United Nations to undertake on that date every year world-wide activities reaffirming their concern for the preservation and enhancement of the environment. On the same day, another resolution was passed which provided for institutional and financial arrangements for international environmental co-operation.2 Article 30 of the Charter of Economic Rights and Duties of States, 1974 states:

“The protection, preservation and enhancement of the environment for the present and future generations is the responsibility of all States. All States shall endeavour to establish their own environment and development policies in conformity with such responsibility. The environmental policies of all States should enhance and not adversely affect the present and future development potential of developing countries. All States have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. All States should co-operate in evolving international norms and regulations in the field of the environment”3

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With the passage of time, a number of environmental conferences was held and treaties were signed which eventually caused different bodies of the UN to get involved in the environmental policy in diverse ways. On the other hand, institutions supported the ad hoc conferences to encourage environmental protection. Following are the important bodies of the United Nations involved in environmental protection.

General Assembly of the United Nations

The General Assembly has played the foremost and an important role in the creation and development of the environmental policy. It was perhaps, the first body to get involved in the formation of environmental policy at the international level. It facilitates the creation of international treaty law by negotiating sessions, adapting declarations of principles at regular or special sessions of the General Assembly or at the world conferences it sponsors. It is also involved in delegating tasks and responsibilities of environment matters to other institutions and has been a creator of important environmental international organisations such as UNEP, GEP, and Commission of Sustainable Development.4

Economic and Social Council of the United Nations (ECOSOC)

The role of ECOSOC in environmental matters is expanding since the World Commission on Environment and Development in 1987. It has the power under Article 62 of the Charter to initiate studies on these matters and to make recommendations to the General Assembly to member states or to specialised agencies. It also performs functions delegated to ECOSOC by the General Assembly in respect to environmental issues.5

United Nations Environment Programme (UNEP)

This is the main body of United Nations dealing with the environmental issues. It was established by the General Assembly of the United Nations following the United Nations Conference on the Human Environment in Stockholm in 1972. The UNEP headquarters is in Nairobi, Kenya, with Maurice Strong as its first executive director. Its mission ―is to provide leadership and encourage partnership in caring for the environment by inspiring, informing, and enabling nations and peoples to improve their quality of life without compromising that of future generations.‖ Its

41 functions include periodic assessment of the global environment, developing international environment agreements, support for more effective national and international responses to environmental threats, integrating economic development and environment protection, encouraging partnerships and transfer of knowledge within different sectors, coordinating bodies of United Nations in environment matters.6 UNEP has five priority areas: environmental assessment and early warning, development of policy instruments, enhanced coordination with environmental conventions, technology transfer, and support to Africa.7 Since its establishment, environment law has been one of the priorities of UNEP. The UNEP has assisted a number of important environment agreements such as Montreal Protocol on Substances that Deplete the Ozone Layer 1987, Bonn Convention on Migratory Species 1979, Vienna Convention for the Protection of the Ozone Layer 1985, Convention on Biological Diversity 1992, Global Programme of Action (GPA) 1995, Stockholm Convention on Persistent Organic Pollutants (POPs) 2001 and World Summit on Sustainable Development 2002. The data and information collected by UNEP helps the government for planning for sustainable development.8 UNEP‘s programme of work to promote and facilitate sound environmental management for sustainable development is implemented by eight divisions: Early Warning and Assessment, Policy Development and Law, Environmental Policy Implementation, Technology, Industry and Economics, Regional Cooperation, Environmental Conventions, Communications and Public Information, Global Environment Facility (GEF) Coordination. 9

International Atomic Energy Agency (IAEA)

IAEA is an independent inter-governmental organisation, established in 1957 under the aegis of United Nations and has 144 member states.10 It promotes the peaceful use of nuclear energy and maintenance of high levels of safety in the application of nuclear energy for the protection of humans and the environment.11 It is engaged in the security-related matters of the nuclear energy in terms of environment.

United Nations Industrial Development Organisation (UNIDO)

Established by the General Assembly in 1966, it became a specialised agency of United Nations in 1985. It helps to improve the living conditions of people and

42 promote global prosperity by offering tailor-made solutions for the sustainable industrial development in developing countries and countries in transition.12 In terms of environmental policy issues, it helps developing countries to reverse the loss of environmental resources and address emerging environmental problems. UNIDO is an implementing agency of the Montreal Protocol Multilateral Fund. It has assisted approximately 1,250 industrial firms employing some 145,000 workers through its technical cooperation activities. UNIDO also works to assist countries implement the UNFCCC through energy-related activities aimed at increasing productivity and competitiveness through improving industrial energy efficiency.13

World Health Organisation (WHO)

Established in 1948, the main aim of this organisation is the attainment of the highest possible level of health by all people of the world.14 Since the health of the environment affects the health of the people, therefore WHO has interest in controlling the environmental factors that adversely effect the health of people, such as chemicals, drugs and variety of pollutants. It has assisted and cooperated with the International Council for the Exploration of the Sea (ICES) in preparing reports on levels of marine pollution. Through its WHO Sustainable and Healthy Environments Cluster (SDE), it addresses environmental issues.15

World Trade Organisation (WTO)

The World Trade Organisation was established in 1995 replacing the General Agreement on Tariffs and Trade (GATT) as the organisation dealing with rules governing trade between nations. In the context of environmental issues, WTO members have been engaged in enhancing the relation of trade and environment, as part of the Doha Round of negotiations launched in 2001. Relevant issues under negotiation include fisheries subsidies; the relationship between WTO and Multilateral Environmental Agreements (MEAs); and the liberalisation of trade in environmental goods and services. The Doha Development Agenda also contains a general mandate to monitor the sustainable development aspects of the negotiations in all areas covered in WTO.16

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World Tourism Organisation (UNWTO)

Established in 1925, it became a specialised agency of the United Nations on 23 December 2003 by General Assembly resolution 58/232 with the aim of development and promotion of tourism. Sustainable Tourism Development Section of the World Tourism Organisation ensures the sustainable development and management of tourism so that its activities can be enjoyed for generations to come. It, thus, provides incentives for protecting the environment and heritage of tourist destinations. The WTO also launched an initiative to creatively develop sustainable tourism as a force for poverty elimination at the World Summit for Sustainable Development in Johannesburg. 17

World Bank Group

World Bank was established in 1946 with the aim of providing funds to the war- devastated western countries. But gradually, its role expanded and is now involved in providing loans to developing countries in particular, for their economic development. In the context of environmental policy, the World Bank‘s Corporate Social Responsibility Practice advises developing country governments on the public policy roles and instruments that they can most usefully deploy to encourage corporate social responsibility. Through Carbon Finance Unit of Global Environmental Public Goods, which is an implementing agency of the Global Environment Facility (GEF) and The Montreal Protocol on Substances that Deplete the Ozone Layer, the Bank provides support to the efforts of mitigating climate change and contributes to the establishment of global carbon finance market. As one of the largest financiers of biodiversity projects, the World Bank is committed to helping those who are dependent on natural resources.18

But at the same time, the World Bank has faced heavy criticism for financing such projects which have led to catastrophic environmental consequences. It has funded numerous projects for oil wells, refineries, coal mines, power stations, and road building, which have led the economies of many countries to depend upon fossil fuels.19 To address this problem, the president of World Bank, Mr. Barber Conable, in 1987, created an Environment Department, which makes policy recommendations. In addition, Environment Divisions were established for each of

44 the Bank‘s regional operational offices to assess the environmental impacts of all loan applications. Despite the efforts of World Bank to improve its image in the environmental field, the role of World Bank in environmental issues remains unanswered. This can be said as it continues to provide large amount of fund to fossil-fuel projects as compared to sustainable development projects.20

Global Environment Facility (GEF)

It was established in 1991 to provide funds to the developing countries for the protection of global environment. The GEF has 165 members, which meets every three years in the Assembly. GEF‘s funds are targeted at four major environmental priorities: protection of the stratospheric layer, limiting emissions of greenhouse gases, preservation of biological diversity, and protection of international waters. The GEF is not a project financier but a co-financier providing ―new and additional‖ funds to solve environmental issues. The GEF works through three implementing agencies: UNDP, UNEP, and the World Bank and seven executing agencies (African Development Bank, Asian Development Bank, European Bank for Reconstruction and Development, Inter-American Development Bank, International Fund for Agricultural Development, United Nations Food and Agriculture Organisation, and the United Nations Industrial Development Organisation). The GEF serves as the financing mechanism for the Climate and for the Biodiversity Convention and is a supplementary partner for the Montreal Protocol on Substances that Deplete the Ozone Layer.21 During the fourth replenishment, in 2006, 32 nations pledged $ 3. 13 billion to fund projects between 2006 and 2010. GEF funds are the primary means by which the goals of the conventions on biological diversity, climate change and persistent organic pollutants are achieved.22

International Civil Aviation Organisation (ICAO)

The International Civil Aviation Organisation was created in 1944 to promote the safe and orderly development of international civil aviation throughout the world. It sets standards and regulations necessary for aviation safety, security, efficiency and regularity, as well as for aviation environmental protection.23 The Committee on Aviation Environmental Protection (CAEP) of ICAO has developed environmental standards for the certification of aircraft as well as guidance material on airport

45 planning and management, operational procedures and market-based measures to reduce aviation‘s impact on environment. An Environmental Unit was formed within the ICAO Secretariat, in January 2004, to consolidate environmental activities and enhance support to CAEP. The Secretariat also coordinates environmental activities with other UN bodies such as UNEP, UNFCCC and WMO. For instance, regarding engine emissions, ICAO report periodically to the UNFCCC process on its activities to limit or reduce emissions from aviation and cooperates with the Inter-governmental Panel on Climate Change on improving methodologies for calculating aviation emissions.24

United Nations Population Fund (UNFPA)

UNFPA‘s work includes policy dialogue, planning and research relating to population, poverty, environment and sustainable development. UNFPA also provides support for institutional capacity building to improve data collection, analysis, research and dissemination, and promotes population and sustainable development information, education and advocacy. UNFPA‘s work in the area of environment and sustainable development is guided by the 1994 International Conference on Population and Development (ICPD) Programme of Action (chapter 3), UNCED Agenda 21 (chapter 5) and the 2002 WSSD Plan of Implementation.25

United Nations Institute for Training and Research (UNITAR)

The United Nations Institute for Training and Research (UNITAR) was established in 1965, as an autonomous body within the United Nations with the purpose of enhancing the effectiveness of the organisation through appropriate training and research. Six environmental and sustainable development-related areas are involved in UNITAR‗s Environmental Programmes: Chemicals and Waste Management, Environmental Governance and Democracy, Climate Change, Decentralized Cooperation, Environmental Law and Information Society.26

United Nations Children's Fund (UNICEF)

UNICEF was established in 1946 to conduct humanitarian and development programmes of long-range benefit to children of developing countries. Pertaining to environment, the UNICEF‘s major programme areas is water supply and sanitation,

46 emphasising installation of simple, low-cost water supply and excreta disposal systems. Such projects are undertaken in over 90 countries. Another UNICEF programme are is Education for Development, which fosters the development of values of global solidarity, peace, tolerance, social justice, and environmental awareness in young people.27

International Maritime Organisation (IMO)

It is the specialised agency of the United Nations consisting of 168 member states 28 with the responsibility for safety and security at sea and the prevention of marine pollution from ships. Its headquarters is located in London. Since its establishment in 1958, it has adopted over 40 conventions and protocols in marine issues such as safety and security measures, pollution prevention, liability and compensation issues. Thus the task of the IMO is of ensuring that existing International Marine Conventions are kept up-to-date while new conventions are developed whenever necessary.29 In 1989, IMO‘s International Maritime Law Institute (Valletta, Malta) was established to train lawyers in international maritime law.30

Food and Agriculture Organisation (FAO)

It is the largest autonomous body of the UN system with a specialised character aiming at raising the level of nutrition and food security of the people. It also ensures that the natural resource base, in particular, food resources, remains productive for the future. The FAO has a Department of Sustainable Development which promotes sustainability concepts in its areas. In context of environmental issues, FAO most important role is in promoting fishery management. FAO exercises an important indirect influence on the development of fisheries law, although FAO as such has no mandate to do so.31

World Meteorological Organisation (WMO)

WMO is another relevant specialised agency within the United Nations system, established in 1951, with the membership of 188 nations at present.32 The function of the WMO is to collect data related to the atmosphere as well as water resources helps to keep policy makers informed of the state of the environment and to take precautionary steps for the environment.33 It has supported the implementation of

47 relevant conventions such as UNFCCC, UNCCD and the Vienna Convention on the Protection of Ozone Layer and its protocol and amendments.34 IPCC is also co- sponsored by WMO and the former also considers the data of the latter for its working.35

United Nations Educational, Scientific and Cultural Organisation (UNESCO)

UNESCO was founded in 1945 with its headquarters at Paris and has at present, 188 full and five associate members.36 Its programmes aim at promoting a culture of peace and human and sustainable development.37 Sustainable development requires active and knowledgeable citizens and UNESCO indirectly influences in environmental policy by providing education to the people. Since the Earth Summit, UNESCO has reoriented its programmes and priorities further to address and promote sustainable development. There are number of UNESCO programmes involved in environment matters such as International Hydrological Programme (IHP), Inter-governmental Oceanographic Commission, Natural Disaster Reduction Programme, World Heritage Convention, and International Geological Correlation Programmes.38

Inter-governmental Panel on Climate Change (IPCC)

It is a leading inter-governmental body, involved in the assessment of climate change, formed by WMO and UNEP in 1988. The Panel is a worldwide network of 2500 leading scientists and experts reviewing scientific research on the issue.39 Its basic environment mandate is to prepare assessment report of climate change in order to evaluate the negative consequences brought by human activities. Till now, it has given four assessment reports, latest being in 2007. It has also produced special reports on various topics of climate change. It has played a decisive role leading to the creation of the United Nations Framework Convention on Climate Change (UNFCCC), the key international treaty to reduce global warming and cope with the consequences of climate change. It was also awarded Nobel Prize in 2007 for its contribution in the protection of the world‘s future climate.40

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Commission on Sustainable Development (CSD)

It is a subsidiary body of ECOSOC established in order to implement UN Conference on Environment and Development (UNCED) agreements, particularly Agenda 21 and the other Earth Summit agreements, as well as the outcome of the 2002 World Summit on Sustainable Development. It promotes an active and continuous dialogue with governments, civil society and other international organisations, aimed at building partnerships to address key issues relating to sustainable development.41 It has stimulated the creation of sustainable development commissions in around 117 countries and also World Business Council for Sustainable Development, a coalition of 120 corporations from 35 nations. 42

United Nations Development Programme (UNDP)

It is the United Nations global development body with the main aim of eradicating poverty. UNDP operates through 132 country offices and works in 170 countries and territories.43 The role of UNDP increased in the environment area following the United Nations Conference on Environment and Development in 1992. Energy and Environment, one of five main UNDP Practice areas, has focused on studies and advocacy work in this context. UNDP with GEF and UNEP has been involved in projects generating significant global environmental benefits. The major thematic areas of UNDP in environment field are climate change, biodiversity and energy. UNDP plans and strategies have emphasised environment and energy as high priorities for the organisation throughout the last decade. The 2008-11 Strategic Plan and its predecessor MYFFs (for 2000-03 and 2004-07) all highlighted environment and energy, while UNDP‘s senior management and headquarters staff have been energetic in representing UNDP in a variety of important international environmental fora, although leadership within country level programmes is less evident.44

International Court of Justice:

This is the judicial organ of the United Nations, founded in 1945 with its location in The Hague in Netherlands. In 1993, the ICJ set up a special 7-member Chamber for Environmental Matters to deal with environmental cases under its jurisdiction. The Chamber‘s first cases dealt with phosphate lands in Nauru and a proposed dam in

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Hungary and Slovakia.45

Furthermore, following are some of the significant environmental treaties which influenced the United Nations bodies to involve in the matters of environmental policy.

Convention on Long-Range Transboundary Air Pollution (1979)

The Convention on Long-range Transboundary Air Pollution (Acid Rain Convention) 1979 and its protocols, negotiated under the auspices of the United Nations Economic Commission for Europe (ECE), provide for the control and reduction of air pollution in Europe and North America.46

United Nations Convention to Combat Desertification (UNCCD)

The United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, particularly in Africa was put on track at UNCED in 1992, and entered into force in 1996. The objective is to combat land degradation in arid regions and to mitigate the effects of drought.47

Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol

Administered by UNEP, both Vienna Convention for the Protection of the Ozone Layer (1985) and the Montreal Protocol (1987) bans the production and sale of chlorofluorocarbons to reduce damage to the ozone layer, and developing countries are required to stop their production by 2010. Schedules were also put in place to phase out other ozone-depleting substances.48

Convention of Biological Diversity

The Convention of Biological Diversity was adopted at UNCED in Rio de Janeiro in 1992 with the objective of conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, to which 190 states are party.49 On 29 January 2000, the Conference of the Parties to the Convention on Biological Diversity adopted a supplementary agreement to the Convention known as the Cartagena Protocol on Bio Safety. The initiated works of the Convention were addressed to biodiversity on

50 marine and coastal, agriculture, forest, island, inlands water, dry and sub-humid lands and mountains. Gradually, it covered more areas such as access to genetic resources and benefit sharing; alien species; traditional knowledge, innovations and practices; biological diversity and tourism; climate change and biological diversity and so on.50

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal

The Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal (1989) and its amendment necessitate states parties to reduce shipping and dumping of dangerous wastes across borders, to minimise the waste amount and toxicity and to ensure their environmentally sound management as close as possible to the source of generation. In 1999, states parties adopted a protocol on liability and compensation resulting from cross-border movement of wastes. It is administered by UNEP and 170 states are members.

Convention on International Trade in Endangered Species (CITES)

Administered by UNEP, it came into force in 1973 with the aim to regulate international trade in endangered species or products through quotas or outright bans, to ensure their survival. All import, export, re-exports and introduction from the sea of species covered by the Convention has to be authorized through a licensing system.51 The 172 states parties meet periodically to update the list of which plant and animal species or products are endangered.52

United Nations Framework Convention on Climate Change (UNFCCC)

The United Nations Framework Convention on Climate Change was adopted in May 1992 and entered into force in March 1994. The Convention has been ratified by 181 states. The principal objective of this Convention is to reduce greenhouse gas concentrations in the atmosphere in order to prevent its dangerous consequences such as ice melting, rising sea level, depleting ozone layer etc. The United Nations Framework Convention on Climate Change‘s Kyoto Protocol (1997) is an international treaty signed by 84 states and ratified by 29,53 which specifies that

51 signatories must implement emission reduction strategies.54

United Nations Conference on Trade and Development (UNCTAD)

It was established in 1964 as a permanent inter-governmental body within the United Nations to deal and promote international trade and related issues. Thus, it tries to balance the trade and environment through sustainable development process. It has undertaken extensive responsibilities for the implementation of the United Nations Sustainable Development programme in the developing world, with special emphasis on achieving fulfillment of the UN‘s Millennium Development Goals established in 2000.55

United Nations Law of the Sea

It is the international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III) which took place from 1973 through 1982. The Law of the Sea Convention defines the rights and responsibilities of nations in their use of the world's oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources.56

2. INTER-GOVERNMENTAL ORGANISATIONS OUTSIDE UNITED NATIONS

The environmental inter-governmental institutions outside the United Nations are mainly regional in nature, unlike few like International Whaling Commission. While some institutions came into existence with the sole aim of environmental policy, others including the banks involved the environmental policy in their activities and targets. The institutions created with the sole aim of environmental protection are Acid Deposition Monitoring Network in East Asia (EANET), North-East Asian Subregional Programme of Environmental Cooperation (NEASPEC), Commission for Environmental Cooperation (CEC) etc. and institutions which include environmental policy as the means to fulfill their activities are European Union (EU), African Development Bank, Organisation for Economic Co-operation and Development (OECD), Organisation for Security and Co-operation in Europe (OSCE), League of Arab States and so on. Earlier these did not deal with the environmental issues, but with time they realised that

52 environmental protection is an important aspect to be considered in the achievement of their goals. In all, following are the major inter-governmental organisations having environmental policy as their main focus.

International Whaling Commission

It is perhaps the only environmental organisation of global nature outside the United Nations, unlike others which are regional in nature. It was signed on 2 December 1946 in Washington under the International Convention for the Regulation of Whaling with the purpose of conservation of whale stock. It has 88 member states with headquarters in Cambridge, England. Recently, the International Whaling Commission adopted a major climate change resolution at its 61st annual meeting in June 2009, as climate change is also a threat to the whales.57

Acid Deposition Monitoring Network in East Asia (EANET)

EANET was established in 1998 as a regional cooperative initiative to promote efforts for protection of the atmosphere and human health in the East Asian region, modelled after the Convention on Long-Range Transboundary Air Pollution (CLRTAP) which was a success in Europe.58 Its 13 participating countries are Cambodia China, Indonesia Japan, Lao P.D.R., Malaysia, Mongolia Myanmar, Philippines, Republic of Korea, Russia, Thailand and Vietnam.59 Its main objectives are:

1. To create a common understanding of the situation of the acid deposition problems in East Asia.

2. To provide useful part for decision making at local, national and regional levels aimed at preventing or reducing adverse impacts on the environment caused by acid deposition.

3. To cooperate on the issues related to acid deposition among the participating countries.60

The major activities for EANET are: (a) acid deposition monitoring; (b) compilation, evaluation, storage and provision of data. (c) promotion of quality assurance and quality control (QA/QC) activities. (d) implementation of technical

53 support and capacity building activities. (e) promotion of research and studies related to acid deposition problems. (f) promotion of public awareness activities.61 The basic policy of the strategy on EANET Development (2006-2010) is to develop EANET through strengthen of the basis of EANET, promotion of scientific surveys and researches, establishment of an ‗Epistemic Community‖, promotion of public awareness and establishment of a sound financial basis.62

TEMM

The Tripartite Environment Meeting among China, Japan and Korea (TEMM) which came into existence in 1999 is another environmental cooperation measure in the North Asian sub-region. With the common task to combat environmental problems of the Northeast Asian sub-region at the domestic, regional and global level, the environment ministers of China, Japan and Korea meet annually. At TEMM, the three ministers discuss on the current environmental conditions and the concerns of each country as well as those common to the region. The participating nations China, Japan and Korea have agreed to give priority to the following areas of cooperation for TEMM: raising awareness that the three countries belong to the same environmental community, motivating information exchange, fostering cooperation in environmental research and in the field of environmental industry and technology, pursuing appropriate measures to prevent air pollution and protect the marine environment, and strengthen cooperation in order to address global environmental issues such as biodiversity loss and climate change. The three countries believe that cooperation under TEMM is playing an important role in enhancing environmental cooperation in Northeast Asia, and they determined to undertake further activities.63

North-East Asian Subregional Programme of Environmental Cooperation (NEASPEC)

It was launched in 1993 following the Earth Summit in 1992. Its member states are Russia, China, Mongolia, Japan, North and South Korea. The Framework for the North-East Asian Subregional Programme of Environmental Cooperation was developed and adopted through the consultation process in a series of Senior Officials Meetings— the principal vehicle for evolution and carrying forward this

54 programme. NASPEC currently seek to amend the traditional dichotomy between environmental quality and economic growth; and instead, to provide ecological efficiency and environmental sustainability opportunities for economic development in this sub-region. 64

Pacific Regional Environment Programme (SPREP)

Pacific Regional Environment Programme (SPREP) is also an environmental regional organisation developed from a small programme attached to the South Pacific Commission (SPC) in the 1980s into the Pacific region‘s major inter- governmental organisation, with the purpose of protection and management of environment and natural resources. Based in Apia, Samoa, with over 70 staff, has 21 Pacific Island member countries and four countries with direct interests in the region. The vision of SPREP is that people of the Pacific Islands are better able to plan, protect, manage and use their environment for sustainable development. Thus, its focus is to sustain the integrity of the ecosystems of the Pacific islands region to support life and livelihoods today and tomorrow.65

Commission for Environmental Cooperation (CEC)

It came into existence through the North American Agreement on Environmental Cooperation (NAAEC) in 1994. The three member states Canada, Mexico and the United States collaborated in order to tackle regional environmental concerns, help thwart potential trade and environmental conflicts and enhance the effective enforcement of environmental law.66 In 2004, the CEC Council adopted the CEC 2005- 2010 Strategic Plan, which embraces specific five-year goals and several multi-year cooperative initiatives to accomplish its task.67 The CEC created the North American Fund for Environmental Cooperation (NAFEC) as a means to fund community-based projects in the three countries. From its existence in 1995 until 2003 awarded 196 grants for a total of C$9.36 million.68

European Bank for Reconstruction and Development (EBRD)

It is an international financial institution that supports projects in 29 countries from Central Europe to Central Asia.69 The European Bank for Reconstruction and Development (EBRD) adopted its first Environmental Policy in 1991 at the initial

55 meeting of its Board of Directors.70 This commits the Bank to finance projects that are environmentally sound and sustainable. It also pursues projects that are specifically designed to improve environment and social conditions. The EBRD was the first international financial institution to establish a specialised energy efficiency team in 1994, and has accumulated valuable expertise in innovative energy efficiency and climate change mitigation financing.71 Moreover, there is Annual Sustainability Report which focuses on the Bank‘s impact on people and the environment in its countries of operations and also describes how the Bank operates internally.72 Further, EBRD Board of Directors approved a new Environmental and Social Policy and Performance Requirements on 12 May 2008 ―to promote in the full range of its activities, environmentally sound and sustainable development.‖73 It details the environmental and social standards applicable to each project and describes the mechanisms used to appraise, monitor and report on a project‘s environmental and social performance.

Inter-American Development Bank (IDB)

Established in 1959, it is the main source of multilateral financing for the social and economic development in the region of Latin America and the Caribbean.74 It was the first Multilateral Development Bank to adopt an Environment Policy in 1979, ensuring the environmental quality of its operations and supporting environmental projects in the region. The 1994 Eighth Capital Replenishment declared the Environment, together with poverty reduction and social equity, as priority areas for Bank support and included a number of specific environmental mandates that have guided Bank work up to the present.75 However, the policies were one of the weakest among those of all the multilateral development banks.76 The IDB created an environment committee in 1983 and an Environmental Protection Division in 1990. It significantly increased its environmental lending since 1990, when it spent just under one-half billion dollars on environmental projects. In 1993, it spent $1.2 billion, for a total of $3.7 billion in the last four years. The Bank's particular specialties are the "brown issues": working with individual nations on pollution control, waste management, the preparation to clean up the environment, the building up of environment and natural resource ministries, and assist for legal and institutional regulatory frameworks.77 In 2006, the IDB released its new

56 environmental policy, ―Environment and Safeguards Compliance Policy‖. Its main objective are to increase long-term development benefits to its members countries by integrating environmental sustainability outcomes in all bank operations and activities, to ensure that all bank operations and activities are environmentally sustainable as defined in this Policy, and (iii) to foster corporate environmental responsibility within the Bank.78 Besides this, other major environmental policies by the IDB are Basic Environmental Sanitation Policy, Coal-fired Power Plants guidelines, Fisheries Development Policy, Forestry Development Policy, Natural Disaster Prevention Sector Facility and Natural Disaster Risk Management Policy.79

Asian Development Bank (ADB)

The Asian Development Bank (ADB) is also a multilateral development finance institution for the Asia Pacific region, established in 1966 with its headquarters in Manila. The Office of the Environment, set up in 1987, facilitates the integration of environmental planning at all levels of Bank operations.80 The ADB's Board of Directors approved the Environment Policy on 8 November 2002 to address five main challenges: (i) encourage environment and natural resource management interventions to reduce poverty directly, (ii) supporting developing member countries (DMCs) to mainstream environmental considerations in economic growth, (iii) helping maintain global and regional life support system, (iv) building partnerships with others and (v) integrating environmental considerations across all ADB functions.81 The Environment Policy is grounded in ADB's Poverty Reduction Strategy that recognizes that environmental sustainability is a prerequisite for pro- poor economic growth and efforts to reduce poverty. ADB‘s Long-Term Strategic Framework 2008–2020 (Strategy 2020) also refocuses its operations into five core specializations in which one is environment.82 Latest, in February 2010, the ADB announced that it will bring out a comprehensive study on the economics of climate change in Northeast Asia, to provide the region‘s policymakers with the latest information.83

African Development Bank

The Bank was established in 1963 with the aim of regional development with around 50 African and 25 non-African member states. The Bank works in the environmental

57 matters through the Socio-Environmental Policy division. It gives guidance on policies and operational procedures, coordinating technical tasks, reviewing projects, developing guidance tools and organizing training activities.84 The Bank adopted proactive stances in environmental management in the 1980s and in 1990, it adopted its full framework in the field of Environmental Policy. The major environmental measures taken by this bank include Environmental Review Procedures for Private Sector Operations (2001), Bank Group‘s Involuntary Resettlement Policy (2003), Integrated Environmental and Social Impact Assessment (IESIA) Guidelines (2003), Bank Group's Policy on Population and Strategies for Implementation (2002) etc. In January 2004, the African Development Bank‘s Board approved the new Bank Group Policy on the Environment, which incorporates and redefines the former policy on environmentally sustainable development in Africa.85 The key issues include: reversing land degradation and desertification; protecting the coastal zone and global public goods; enhancing disaster management capabilities; promoting sustainable industry; increasing awareness, institutional and capacity building; environmental governance; urban development and population growth; and civil society organisations.86 The Bank holds workshops on a regular basis to increase environmental awareness of officials from member countries and African NGOs. Recent workshops have focused on transportation, water resource development, and agriculture. Agreements with UNEP and IUCN-The World Conservation Union, signed in 1990, provide for cooperation in environmental training and in improvement of project quality in terms of environmental management.87

League of Arab States

It is the association of independent countries whose people speak mainly Arabic, established with the purpose to draw closer the relations between member States and co- ordinate collaboration between them, to safeguard their independence and sovereignty, and to consider in a general way the affairs and interests of the Arab countries.88 Its Council of Arab Ministries of Environment is concerned with environmental conditions within and related to member states of the Arab League. The significant issues of discussion are water rights, agricultural chemicals, and long-term environmental sustainability.89 The Council of Arab Ministries of Environment established the Arab

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Environment Facility (AEF) in 2006 as a framework with the basic purpose of attracting financial resources for environmental programmes and projects which improve sustainable ecological development throughout the Arab Region while fostering private sector investments in the environment.90

Organisation for Economic Co-operation and Development (OECD)

Formed in 1961, the Organisation for Economic Co-operation and Development is a Paris-based international economic organisation of 30 countries.91 In the context of environmental policy, OECD established an Environment Committee in 1970 in which member states discuss problems and make recommendations for national policy. The national environmental policies of member-states and their economic implications are analyzed by the OECD and it also provides guiding principles.92 The OECD Environmental Outlook to 2030 highlights the key environmental challenge areas- climate change, biodiversity loss, water scarcity and health impacts of pollution- where urgent actions are needed. The OECD has intensified efforts to support governments, covering key areas including environment, as part of its Strategic Response to the Financial and Economic Crisis, launched in 2008.93 Further, every six years the Organisation for Economic Cooperation and Development (OECD) publishes a report on The State of the Environment of its member countries.94

Organisation for Security and Co-operation in Europe (OSCE)

The OSCE is the world's largest inter-governmental security organisation with 56 participating States. The close connection between environmental issues and security, have led the OSCE to involve its member states in the environmental field. One of its significant environmental activities is the Environment and Security Initiative (ENVSEC). This ENVSEC was established in 2003 with the partnership of six international organisations. The partnership approach of ENVSEC brings explicit benefits of improved co-ordination and comprehensive approach on regional activities as well as enhanced synergies and coherence with other donor initiatives at the country and sub-regional levels.95 The Economic and Environmental Forum is the main and the highest level annual meeting within the economic and environmental dimension of the OSCE. It focuses every year on a theme proposed by the chairman and agreed upon by the 56 participating States. Its theme in 2009 was: "Promoting good governance at border crossings, improving the security of

59 land transportation and facilitating international transport by road and rail in the OSCE region."96 Since 2002, the OSCE has been supporting the creation of Aarhus Centres and Public Environmental Information Centres (PEICs). 97 European Council (EU)

EU is the most comprehensive environmental regime, thus playing an important role as an actor in the international environmental governance. It has approved over two hundred pieces of environment regulations, covering such issues as air, water, soil and waste disposal.98 Initially, the Treaty of Rome of 1957 contained no provisions for the environmental protection.99 However, in 1972, the European Union launched its first environmental policy, inspired by the Stockholm Conference on the Human Environment.100 Since then, it has been persistently taking major steps to help meet its environmental commitments. It has created the biggest multinational environmental trading scheme in the world, the EU Emissions Trading Scheme (ETS) in 2005 and all EU states have ratified the Kyoto protocol.101 Earlier, in 1987, the Single European Act was a milestone in the environmental field, when it created a legal obligation to integrate environmental considerations into other policies, which was reinforced in Articles 130 (r)–(t) of the Maastricht Treaty, and, subsequently, by the Treaty of Amsterdam. The 1997 Treaty of Amsterdam imposed a legal obligation upon the Union to promote sustainable development.102 In 2007, it introduced the REACH (Registration, Evaluation and Authorisation of Chemicals) scheme to protect the people from the hazardous effects of chemicals used by the industries.103 In 2008, it added 90000 sq. kms and more than 4000 sites to the area of Natura 2000. Moreover, on 1 February the Commission adopted a communication ‗Towards a shared environmental information system (SEIS)‘, to maintain and improve the quality and availability of the information required by environmental policy.104 In 2009, the commission proposed a package of measures to promote eco- friendly products, including greater use of energy efficiency labels like those found on wash machines.105 The European Environment Agency is the main environmental body of EU dealing especially with information provision of the environment of the Europe. The principal areas of work of the Agency include air quality, water quality, land use and natural resources, waste management, noise emissions, chemical substances and protection of coastal areas and the marine environment. The Agency

60 is open to countries that are not members of the European Union, and currently has 31 members (the 25 EU Member States, the 3 candidate countries for accession, plus Liechtenstein, Iceland and Norway).106 The EU defines the priorities and objectives of European environment policy for a specific period through the Environment Action Programmes. The Sixth Environment Action Programme entitled "Environment 2010: Our Future, Our Choice" covers the period from 22 July 2002 to 21 July 2012. Its main priorities are to find solutions for the continuing failings in the implementation and enforcement of environmental policy. It focuses on four priority areas for action: climate change; biodiversity; environment and health; and sustainable management of resources and wastes.107 The EU has more than two hundred pieces of environmental legislation in force. By 2020, the EU aims to cut greenhouse gases by at least 20 %, to save 20 % of energy consumption through increased energy efficiency, and to meet 20 % of energy needs from renewable sources.108 However, it is realized that the enlargement of the European Union has led to the development of variety of problems regarding making and enforcement of policies.

3. NON-STATE ACTORS

Besides the inter-governmental organisations, the non-state actors have also been playing an important role in the environmental regime. The major non-actors around the globe include non-governmental organisation (NGOs) and trans-national corporations (TNCs).

(i) Non-Governmental Organisations (NGOs)

NGOs, which is considered as the third sector of the society after government and business sector, also plays an important role in the field of environment issues. Having the characteristics of being independent, voluntary and non-profit, the NGOs play their role to the fullest and with the growing number of NGOs; its role has become inevitable in all fields. Moreover, with the growing number of environmental problems globally and its transboundary nature, the NGOs have also adopted global characteristics; they have started performing their role at the international level. The first NGOs with the focus on environment were The Society for the Protection of Birds (Created in Britain in 1889) and the Sierra Club (founded

61 in the USA in 1892).109 Other significant NGOs in the field of environment are Greenpeace, IUNC, WWF and Friends of the Earth.

The term ‗environmental NGOs‘ can be explained rightly in the words of Sheila Jasanoff as

“an enormous range of environmental actors from tiny, grass root coalitions of conservationists or pollution victims to mature, well funded, technically expert multinational organisations possessing many of the characteristics of state bureaucracies, but without their political accountability.”110

The development of NGO in any sphere is the sign that the states are not able to perform their role rightly in that sphere. The involvements of environmental NGOs also signify the defects in the role of the nations in the environmental issues. Gorg and Hirsch have rightly pointed out that, the international system is not representative of communities and their interests when governments and single individuals are the only participants.111 Thus, this has led to the need of the involvement of NGOs in the environmental policies.

Generally, the participation of NGOs in international forum is discussed in context of United Nations. The formal participation of the NGOs at the international forum initiated with the aid of the United Nations Charter of 1945. The NGOs were given the observer status and later with the ―consultative‖ status. However the NGOs do not enjoy their status in all the meetings, conferences and negotiations of the United Nations. For example, at Kyoto, NGOs were kept out of the meetings. However, at the UNCCD, they had easy access to its goals. Further, the Rio Declaration and the Agenda 21 have strengthened the role of NGOs in the international environment regime. The Rio Declaration, in its Principle 10, very broadly stated that ―Environmental issues are best handled with the participation of all concerned citizens, at the relevant level.‖ Moreover, Agenda 21 assigned a full chapter to NGOs and the strengthening of their role as ―partners for sustainable development‖.112 In India alone, there are 900 NGOs working for environmental issues.113

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Functions of NGOs

NGOs carry out a variety of activities and performance within the framework of international as well as national and regional environmental laws and policies. With this background, every NGO performs different functions. Some are involved in policy-making, some in spreading awareness and some in information collection. Some are related to wildlife, some to forests and trees and some to pollution. Some work with the collaboration of governments and firms and others independent of them. For instance, in IUCN, both private organisations and governments can become its members.114 Some work for global problems such as climate change and some work for problems at regional and national level. In other words, some are of transnational nature and others regional and national. Likely, the roles of NGOs also differ in different institutions and regions. Thus, all the environmental NGOs do not carry the same functions. Every NGO‘s sphere of work is different from another. The following are the different roles performed by NGOs. a) As Service Providers:

NGOs have always been distinguished for their unpaid services to the public, governments and international organisations. Also in reference to environment, they offer many services. They play a key role in the accumulation, dissemination and analysis of information to the policy makers and the public. World Resources Institute, the World Watch Institute, the World Conservation Monitoring Centre, Tata Energy Research Institute, IUCN‘s Environmental Law Centre are all involved in this field of work. They also, in order to enhance information base, organize related side-events, seminars, workshops and conferences alongside and also independent of inter-governmental meetings. Often, the conferences are based on the wealth of research and policy documents produced by NGOs rather than what is discussed in the conference.115 Different NGOs provide information in different themes of environment. Greenpeace International, for example, has become one of the major sources of information and knowledge on the illegal trade in hazardous wastes.116

Besides, they manage and administer for the international organisations, secretariats and other bodies. The good example of this is the 1971 "Ramsar Convention on

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Wetlands of International Importance Especially as Waterfowl Habitat" which provides for the International Union for the Conservation of Nature (IUCN) to serve as the treaty secretariat.117 Further, they negotiate and provide report on behalf of the governments. They also enhance transparency and cooperation between environmental groups and business and industry sector and the public. b) As Activists:

The NGOs also influence the environmental policy and laws as activists through advocacy and lobbying. They exercise a plethora of formal and informal activities to influence the government policies. Informally, they pressurize government and international conferences and even firms violating environment through marches, rallies, demonstrations and campaigns. They also meet face to face with delegates in the corridors of conference buildings and contact them through mobiles and internet to influence their decisions. Formally, they are invited by institutions to access the meetings and provide their views and advice to the concerned discussions.118 Environmental Justice is one of the significant spheres in which the NGOs indulge in advocacy for the people. Moreover, the Aarhus Convention envisages a process by which NGOs could get judicial remedy against other parties for environmental damage or crimes.119 World Wide Fund for Nature (WWF), Greenpeace, and Friends of the Earth are prominent activist groups.120 c) As Educators:

One of the most important activities carried out by NGOs, unlike governments, is the spreading of environmental awareness and education to the public. This activity is very important to be carried out at the grassroot level. Even the Tbilisi declaration (UNESCO 1978), which set out significant ideas on environmental education, stressed that environmental education should be all-pervading and lifelong121 as it helps in shaping the opinion of individuals and groups.

Major NGOs in Environmental Policies:

Some of the NGOs that have been playing a major role in the protection and preservation of the environment and are popular worldwide are as follows:

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(a) Greenpeace International

It is the most popular NGO created in 1971 by a small team of activists with the main aim to campaign for environment protection. It is based in Amsterdam, the Netherlands, with 2.8 million supporters worldwide, and national as well as regional offices in 41 countries. Its main purposes include, catalyzing an energy revolution, defending our oceans, protecting the world‘s ancient forests, creating a toxic free future and campaigning for sustainable agriculture.122

(b) Friends of the Earth

It is the world's largest grassroots environmental network, uniting 76 national member groups and some 5,000 local activist groups on every continent. With over 2 million members and supporters around the world, it campaign on today's most urgent environmental and social issues by challenging the current model of economic and corporate globalization, and promote solutions that will help to create environmentally sustainable and socially just societies.123 Its main programme areas include climate and energy, food sovereignty, economic justice-resisting neoliberalism, forests and biodiversity, water, resisting mining oil and gas.124

(c) World Wide Fund for Nature

It is also one of the world‘s largest and most independent conservation organisations. It was created in April 1961 with its headquarters in Switzerland. It works locally through a network of over 90 offices in over 40 countries around the globe. On-the-ground conservation projects managed by these offices are active in more than 100 countries. WWF has over 5 million supporters and its international campaigning tool, has over 100,000 activists from more than 170 countries. Its chief mission is to stop the degradation of the planet‘s natural environment and to build a future in which humans live in harmony with nature, by conserving the world‘s biological diversity, ensuring that the use of renewable natural resources is sustainable and promoting the reduction of pollution and wasteful consumption.125

However, there have been certain problems which the environmental NGOs have been facing since their creation at different levels. And these problems have been responsible for the failure in achieving their objectives. The two major problems are that:

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 The global community of NGOs is primarily divided between the industrial countries of North and developing states of the South because of differences in economy, technologies, culture, communication level and national problems. Both hold accountable to each other for the environmental degradation and both hold different views on the means of environmental preservation.126 This grouping has been, sometimes, responsible for the failure of important international environmental conferences and negotiations.

 Even the role of NGOs towards their goals for the public welfare sometimes leads to conflict with the state and culture. In the 1970s and 1980s, Greenpeace and International Fund for Animal Welfare launched a campaign to ban seal culling in Canada where it has been an important source of income for the indigenous people. Sometimes, the interference of NGOs in the field of environmental action reveals the incapacities and failures of the state and threatens the political and economic interests of the state which the state opposes.127

But still, the importance of NGOs in the environment governance cannot be ignored. UNCED Secretary-General Maurice Strong has argued that NGOs could ―enrich and enhance the deliberations of the conference and its preparatory process‖.128 The importance of NGOs in the international environmental policy could be understood by the fact that its figure is more than 2600, as described by World Directory of Environmental Organisations in its 1996 edition. Furthermore, this figure is for larger NGOs including umbrella bodies for minor regional and grassroots organisations.129 Moreover, an opinion poll in Germany found that larger percentage of respondents trusted the NGO Greenpeace as compared to smaller percentage which trusts the Germany Federal Government.130 Daniel Berlin has rightly noted that‖ the growing participation of NGOs expands the agendas of international institutions and bestows representation on peoples and issues that - in the absence of NGOs - would lack representation due to structural flaws in the international system‖.131 Thus, the growing role of NGOs has definitely enlarged the programme of international institutions and representation of the people, making the role of NGOs inevitable.

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(ii) Business Sector

In this era of globalisation, liberalisation and privatisation of the economy, business sector (i.e. industries, companies and TNCs) plays an important role in almost all the fields, including environment. In fact, it is the industries and companies that affect the environment of the earth, the most. This can be proved by the fact that the top 300 firms account for one-quarter of the world's productive assets. The top 500 of them are estimated to account for 33% of all manufacturing exports, 75 % of all commodity trade and 80% of all trade in technology and services.132 The role of business sector is also significant in the environmental issues as it is the businesses along with government which have capacity and the authority to use the unlimited and abundant resources of the nation. The activities, services and products they provide have a great impact on the environment, both harmful and beneficial. However, the negative impact of the business sector on the environment is more pronounced. Stratospheric ozone depletion, global climate changes, acid rain, and desertification are all examples of global environmental problems which have arose mainly due to industrialization. Since these problems are global in nature, therefore there is a need of transnational participation of the business sector including TNCs to deal with it. Peter Hansen, Executive Director of the Centre on Transnational Corporations (CTC), noted that critical global problems, such as environmental deterioration and indebtedness, could not be tackled effectively without recognising and understanding the role of TNCs.133 The impact of businesses on the environment include its output (pollution, waste) as well as its input (misuse and overuse of resources) course of action. The business sector can be classified as high, medium and low impact sectors according to their impact on the environment. High impact category includes agriculture, air transport, mining, power generation etc, medium impact includes ports, vehicle hire, public transport and low impact includes media, fast food chains, telecoms and so on. 134

The intense impact of the business, industrialisation and corporations began with the introduction of the industrial revolution which began in England in the 18th century and spread first to Europe and then to US. By the beginning of the 20th century, businesses located in industrialised countries had learned to extract tremendous amount of wealth from the earth‘s resources without knowing of its consequences.

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By the end of the century, the impact of industrial revolution had reached every corner of the world along with other related problems such as; population explosion and urbanisation.

Historically, these business actors were not interested in the protection and conservation of the environment, as it was considered that going on this path will be contrary to their basic goal of profit. At the same time, it was realised that the protection of the environment is very much an important policy to be followed for the realisation of its basic goals. The idea that following the green path will lead to a good image which will be beneficial in the long run started getting prominence. Subsequently, companies and industries began to work towards the direction of following a good environmental policy. However, they were not formally included in the international agreements and meetings but with time their participation was recognised and today they play an important role in the field of environmental policy at the global as well as national levels.

The need of the business sector in the environmental policy making at the global as well as domestic levels was gradually realised. The concept of social responsibility, including environmental responsibility, began to gain momentum. The perception that business organisations are a part and parcel of the society became popular. It was recognised that they are the most powerful and dominant sub-systems of the society and to survive in the society they have to operate according to the societal framework. Moreover, it was realised organisations could thrive only if the society in which they live was healthy. Besides all this, the fact that they use the scarce and valuable resources of the country for their profits is a reality. All this led to a perception that business has a social obligation to keep the health and environment of the public in good condition. A recent survey by Price Water House Coopers of 140 chief executives of US-based multinational companies found that 85% of them believe that sustainable development will be even more important to their business model in five years than it is today. 135

Moreover, the lack of direct involvement of TNCs in the negotiations of the Montreal Protocol in 1987 caused many problems and also highlighted the disadvantages of non-participation of TNCs in international environmental negotiation processes. These disadvantages included the slower response of

68 industries to environmental negotiations, lack of TNC‘s compliance and enforcement to international treaty processes as well as non-binding of TNCs to international environmental processes. 136

Greenwash

The social concern of the corporate players has led to the emergence of the concept ―greenwash‖. It means that the actions taken and money spent by the companies to advertise that they follow environmentally sound practices are false claims as the truth is otherwise.137 In other words, the companies want to create green image for their obvious benefit of profits rather than public good. This is portrayed by changing the name or label of a product, to project a fake image about the policies they actually follow which is against the laws of nature. Jerry Mander, a former Madison advertising executive, called this new form of advertising ―eco- pornography‖. Mander estimated that oil, chemical, and automobile corporations, along with industrial associations and utilities, were spending nearly $1 billion a year on "eco-pornography".138 A Mitsubishi Corporation‘s joint venture which cleared and cut vast swaths of one hundred year old Aspen forests in Canada, producing between six and eight million pairs of disposable chopsticks a day, exported them to Japan, where they were sold as "chopsticks that protect nature." 139

Another form of ‗greenwash‘ can be found in context to the UN Global Compact. This asks business to adhere to 9 principles derived from crucial United Nations agreements. The aim is to bring corporate behaviour in line with universal values including environmental issues. But, these Global Compact associates have themselves become the violators of United Nation‘s values. They have been the violators of universal values but the use of United Nations name and image has allowed companies, for instance, Daimler Chrysler, to ‗bluewash‘ their record without committing to inquiry or transparency procedures. 140

Different Functions of Corporations and Industries in Environmental Policy

The corporate and industry actors, individually and collectively, perform different roles in the field of international environmental policy. The role and performance of

69 corporate actors at the international as well as domestic levels depend upon the following factors:

 Political factors,

 Customer and other stakeholders factors,

 Social factors,

 Economic factors,

 Institutional factors, and

 Historical records of businesses.

Political conditions and actors greatly influence the role of business sector in the environmental policy forum. The most influential factor for the adoption of the environmental practices by firms and industries are various governmental bodies. The making and implementation of the laws in the nations lead to mandatory actions by the corporate sector for the protection of environment. The political regimes also vary the role of corporate actors in the context of environmental policy. For instance, The TNCs prefer to work with an authoritarian rather than a domestic regime. This is because the authoritarian regimes tend to suppress civil protests including environmentalists, paving the way for the business actors. The former will definitely favor businesses, projects and industries if they are beneficial to them.141 For example, in case of democratic countries, the actions vary from country to country. For example, in the U.S, since the government of George W. Bush itself did not ratify the Kyoto Protocol, the industrial sector also did not take any action in this direction.

Several studies have found that firms that have adopted green path are motivated by customer concerns. A survey of the largest Canadian firms showed that customer pressure was the most cited source of influence, next only to governmental pressure, to adopt environmental practices just after government pressure. According to a recent research, 15 per cent of consumers routinely pay more for green products, and another 15 per cent seek green products if they do not cost more.142 Khanna and Anton found that US companies that sell final goods adopt more comprehensive

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Environmental Management Strategies than companies that sell intermediate goods.143

Apart from the customers, other stakeholders of the company such as employees, shareholders, investors and suppliers also influence the environmental policy of the industry as was in the case of ExxonMobil when its investors questioned its stance on climate change after the damage of the company‘s reputation.

The society in which the business endeavors for its survival is also the obvious influential factor for the corporate sector. The most prominent group in the society by which firms and industries are affected is the non-governmental organisations. The majority of 200 corporate general counsels surveyed in 1993 indicated that ‗pressure from community activists had affected their companies‘ conduct – sometimes forcing a reduction in pollution‘. There are many examples where companies have amended their environmental practices in response to environmental group pressures. For instance, after Mitsubishi Corporation was subjected to a protracted consumer boycott led by Rainforest Action Network, Mitsubishi announced it would no longer use old forest-growth products. 144

These environmental and human rights groups also started an award ceremony; for instance, Public Eye Awards, for worst multinational company in the world, to remind them of their responsibilities.145

Different corporate houses, firms and industries react diversely with different economic conditions in the context of environmental policy. For instance, industry players have been in favor of banning the production and trade of ozone depleting substances and persistent organic pollutants because patents on those substances have expired, and these industries can gain economically from the sale of substitute chemicals. In contrast, they are against the recycling and bio-safety measures because the chances of gaining from substitutes are slim. 146

Institutions such as the United Nations encourage the business institutions to support the environmental cause. e.g., the International Finance Corporation (IFC) enhances the role of private sector in addressing environmental issues by providing funds through its three facilities, namely; Environmental Opportunity Facility, Sustainable Markets Facility and Corporate Citizenship Facility.147 To ensure environmental

71 sustainability, it is one of the eight Millennium Development Goals. Since 1991, the World Bank has required environmental assessments of proposed projects as a precondition for aid to developing countries. More than 30 provisions of Agenda 21 and the action plan for sustainable development adopted by the international community referred to the role and responsibilities of TNCs. 148

Sometimes, corporate actors are inclined to follow the green path forthrightly because of their past accidents as in the case of Bhopal Union Carbide Disaster.

Forms of Performance of Business Actors

The corporate actors perform different functions in the field of environmental policy, such as lobbying and self-regulation like the voluntary codes of conduct.

Corporate Lobbying

The lobbying in the domestic governments before the time of international environmental negotiations has usually been a vital step of industrial and corporate actors. Over time, these advocacy groups of business have begun to lobby rigorously to influence the global environmental negotiations. Initially the participation of corporate actors in the global environmental negotiation fora were limited as they were involved with them only as observers, and were not engaged in the voting process, however, they were able to frequently intervene in the meetings. These industrial and corporate players were keenly involved in the global environmental meetings as they wanted the outcome of these negotiations to be in their favour. Corporations such as Monsanto, Dupont and Syngenta, for example, attended many of the negotiation sessions which led to the Cartagena Protocol.149

Voluntary Initiatives

At both Rio and Johannesburg, corporate and industry players emphasised on voluntary environmental initiatives on the part of the business as opposed to specific external obligations imposed on these institutions. In other words, in order to avoid legally-binding agreements, the industrial players adopt self regulating initiatives. As a result, firms and industries began to participate in the private activities such as, voluntary codes of conduct. Subsequently, it included International Organisations for Standardization, ISO14000 Environmental Management Standards, the ICC‘s Business Charter for Sustainable Development, Responsible Care and the

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Environmentally Responsible Economies (CERES) Principles.150 By 2001, some 49000 firms in 118 countries had gained certification to the ISO 14001 standard.151 The number of certification initiatives on forestry and forestry products have more than doubled since 1996, and over 40 new schemes are under development in more than 30 countries.152

However, these voluntary initiatives in the form of certification and verification schemes have been a piecemeal in the environmental policy. The Sustainable Forestry Initiative (SFI), developed jointly by American, Canadian and English forest and paper associations among others, is jeered by critics as ―a classical example of the fox guarding the henhouse‖.153

Finance and Expertise

These industry associations also perform their role through finance and technical expertise for the implementation of environmental policy and developing regulatory solutions for it. It has been found that in cases of ozone-depleting substances and persisting organic pollutants, industries favour strict rules calling for a ban on the production and trade of these substances; and this is because patents on those substances have expired, and these industries can gain economically from the sale of substitute chemicals.154

Cases of Major TNCs and Environmental Policy

The most influential industries are the oil and automobile industries in the impact of the environment. In fact, just five private global oil corporations-- Exxon Mobil, BP Amoco, Shell, Chevron and Texaco produce oil that contributes some ten percent of the world's carbon emissions.155 There have been a few companies whose names have been most talked about in the environmental issues which may be listed below: a) ExxonMobil Oil Company (US)

ExxonMobil is the largest oil company which came into being in 1998 as a result of a merger between the oil companies Mobil and Exxon, based in US. It operates in 200 countries with 88000 employees and its net profit in 2003 was around US$21 billion with a turnover of US$237 billion. Thus, is the largest player of the world in the energy business.156

However, this company has brought a bad name to its account for being a prominent player in the global climate change. Apart from being a major contributor to global

73 warming, as considered by NGOs; it has refused to take any action to reduce its emissions, challenged the scientific consensus on climate change and is considered one of the main architects of President Bush‘s energy policy and responsible for the decision to reject the Kyoto Protocol in 2001. ExxonMobil placed an advertisement in a leading newspaper stating, ‗the unrealistic and economically damaging Kyoto process needs to be re-thought‘.157

Subsequently, international NGOs, Greenpeace, Friends of the Earth and People & Planet organized the StopEsso campaign against this company in May 2001.158 Activists all around the world claimed that ExxonMobil should stop its interference in international environmental efforts to combat climate change, support reductions in greenhouse emissions and encourage renewable energy technologies. Following this, the consumers, shareholders and even employees of the company came together in protest of the company. As a result, the company took certain actions in favour of the environmental problems. For instance, it assures that it has put a number of measures in place to promote conservation and energy efficiency, and to advance the use of alternative energy sources and even publishes a Corporate Citizenship Report since 2002.159 However, still the ExxonMobil does not support the Kyoto Protocol. b) Shell Company (UK)

Shell, a British Oil Company has also been most talked about because of its role in Nigeria and the Brent Spar case. It was granted license for oil exploration in 1938 when Nigeria was a British colony. Since then, it has managed to dominate the Nigerian oil assets.160

In Brent Spar case, it was criticised for dumping the oil platform off the Scottish coast in the Atlantic Ocean as against the norm of its dismantling. Despite the company getting the approval of the British government for dumping, instead of dismantling and removing, the platform from sea but the environmental organisation Greenpeace still started a large scale campaign against this action. The media also highlighted the protest leading to widespread public discontent. Subsequently, under pressure from various quarters, the Shell Company had to dismantle the oil platform. It will not be out of place to say, however, that after thirteen years Royal Dutch Shell settled the Wiwa v Shell case in a New York court for $ 15.5 million.161

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The role of business has undergone a great change in the society. The business today performs functions which were earlier considered the sole responsibility of the government. The business is, today, expected to perform beyond legal requirements. There are a number of organisations which guide the corporations and industries to move on the green path. These include Ethical Trading Initiative (ETI), Global Reporting Initiative (GRI), New Economics Foundation, Principles for Responsible Investment (PRI), and the most recognised being the International Organisation for Standardization (ISO).162

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REFERENCES

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71 http://www.ebrd.com/pages/sector/energyefficiency/climate.shtml accessed on 18 January 2011 at 3:06 pmj. 72 EBRD Sustainability Report 2007, European Bank for Reconstruction and Development (EBRD), London. 73 Environmental and Social Policy, European Bank for Reconstruction and Development (EBRD), London, May 2008. 74 http://www.iadb.org/en/about-us/about-the-inter-american-development- bank,5995.html accessed on 18 January 2011 at 3:51 pm. 75 Environment and Safeguards Compliance Policy, Inter-American Development Bank, Washington, D.C, 2006, p. 2. 76 Environmental Policy at the IDB, available at http://www.bicusa.org/ en/Issue.19. aspx accessed on 18 January 2011 at 4:01 pm. 77 Donna Lee Van Cott, ‗Regional Environmental Law in the Americas: Assessing the Contractual Environment‘, in The University of Miami Inter- American Law Review, Volume 26, Number 3, 1995, pp. 489-533. 78 Environment and Safeguards Compliance Policy, op.cit. p. 1. 79 http://www.iadb.org/en/topics/environment/environment,1663.html accessed on 18 January 2011 at 4:12 pm. 80 Thaddeus C. Trzyna, Elizabeth Margold, and Julia K. Osborn, World directory of Environmental Organisations, (Fifth Edition), International Center for the Environment and Public Policy, California, 1996, p. 58. 81 http://www.adb.org/Environment/policy.asp accessed on 18 January 2011 at 4:36 pm. 82 http://www.adb.org/Documents/Manuals/Operations/OMF01-25Sep06.pdf accessed on 18 January 2011 at 4:36 pm. 83 ‗ADB to Fund Climate Change Study in Northeast Asia‘, The Hindu, New Delhi, 2 February 2010, p. 9. 84 Thaddeus C. Trzyna, Elizabeth Margold, and Julia K. Osborn, op.cit., p. 57. 85 http://www.afdb.org/en/topics-sectors/sectors/environment/# accessed on 18 January 2011 at 4:46 pm.

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86 African Development Bank Group‟s Policy on the Environment, African Development Bank, February 2004, available at http://www.afdb.org /fileadmin/uploads/afdb/Documents/Policy-Documents/10000027-EN- BANK-GROUP-POLICY-ON-THE-ENVIRONMENT.PDF accessed on 18 January 2011 at 4:54 pm. 87 Thaddeus C. Trzyna, Elizabeth Margold, and Julia K. Osborn, op.cit. 88 http://en.wikipedia.org/wiki/Arab_League accessed on 18 January 2011 at 5:24 pm. 89 http://en.wikipedia.org/wiki/Model_Arab_League accessed on 25 January 2010 at 10:30 am. 90 http://www.cbd.int/financial/doc/meetings/rwbf-01/rwbf-01-09-en.pdf accessed on 18 January 2011 at 5: 21 pm. 91 OECD Annual Report 2009, Organisation for Economic Co-operation and Development (OECD). 92 Patricia W. Birne and Alan E. Boyle, op.cit.., pp. 71-72. 93 OECD Annual Report 2009, op.cit. 94 Alison Clayson, ‗The State of the Environment: A Report Card for OECD Countries‘, Ambio, Volume 20, Number 3-4, 1991, pp. 163-164. 95 Activity Report June 2008 – May 2009, Office of the Co-ordinator of OSCE Economic and Environmental Activities Organisation for Security and Co- operation in Europe (OSCE), available at http://www.osce.org/eea/37329 accessed on 18 January 2011 at 8: 25 pm. 96 http://www.osce.org/eea/43229 accessed on 18 January 2011 at 8:00 pm. 97 http://www.osce.org/eea/43654 accessed on 18 January 2011 at 8:03 pm. 98 Margaret P. Karns and Karen A. Mingst, International Organisations, The Politics and Processes of Global Governance, Viva books Private Limited, New Delhi, 2005, p. 486. 99 Mark A. Pollack, ‗Creeping Competence: The Expanding Agenda of the European Community‘, in Journal of Public Policy, Volume 14, Number 2, 1994, pp. 95-145. 100 Pamela M. Barnes and Ian Barnes, Environmental Policy in the European Union, Edward Elgar Publishing Limited, Cheltenham, 1999, p. 27.

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101 Charles H. Eccleston, Federic March, Global Environment Policy: Concepts, Principles, and Practice, CRC Press, Boca Raton, 2011, p. 104. 102 Susan Baker, ‗Between the Devil and the Deep Blue Sea: International Obligations, Eastern Enlargement and the Promotion of Sustainable Development in the European Union‘, Journal of Environmental Policy & Planning, Volume 2, Number 2, 2000, pp. 149–166. 103 http://news.bbc.co.uk/2/hi/europe/7959853.stm accessed on 7 February 2010 at 7:58 pm. 104 General Report on the Activities of the European Union 2008, European Commission, available at http://europa.eu/generalreport/en/rg2008en.pdf accessed on 18 January 2011 at 7:49 pm. 105 http://europa.eu/pol/env/index_en.htm accessed on 25 January 2010 at 11.51 am. 106 http://ec.europa.eu/world/agreements/prepareCreateTreatiesWorkspace/ treaties GeneralData.do?step=0&redirect=true&treatyId=177 accessed on 18 January 2011 at 7:51 pm. 107 http://europa.eu/legislation_summaries/environment/general_provisions/ l28027_en.htm accessed on 7 February 2010 at 4:12 pm. 108 http://ec.europa.eu/snapshot2008/energy/index_en.htm 8.05 pm accessed on 7 February 2010 at 5:01 pm. 109 Norman J. Vig and Regina S. Axelrod (eds.) The Global Environment: Institutions, Law, and Policy, Earthscan, London, 1999, p. 57. 110 Sheila Jasanoff, ‗NGOs and the Environment: From Knowledge to Action‘, Third World Quarterly, Volume 18, Number 3, 1997, pp 579- 594. 111 C. Gorg and J. Hirsch, "Is International Democracy Possible?" Review of International Political Economy, Volume 5, Number 4, 1998, pp. 585-615. 112 Participation of Non-Governmental Organisations in International Environmental Governance: Legal Basis and Practical Experience, Ecologic Institute, Berlin, 2002, available at http://ecologic.eu/download/ projekte/ 1850-1899/1890/report_ngos_en.pdf accessed on 19 January 2011 at 3:48 pm.

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113 Sukant Kumar Chaudhury, Culture, Ecology, and Sustainable Development, Mittal Publishers, New Delhi, 2006, p. 42. 114 Bas Arts, Non-state Actors in Global Environmental Governance: New Arrangements beyond the State, available at http://www.unpop.nl/inhoud/artikelen/non-state%20actors%20in%20GG.pdf accessed on 13 October 2010 at 3:56 pm. 115 http://sep.stakeholderforum.org/fileadmin/files/SEP/The_role_of_NGOs_ and_Civil_Society_in_Global_Environmental_Governance_-_Gemmill.pdf accessed on 21 July 2010 at 9:06 pm. 116 Participation of Non-Governmental Organisations in International Environmental Governance: Legal Basis and Practical Experience, op.cit. 117 Helmut Breitmeier and Volker Rittberger, Environmental NGOs in an Emerging Global Civil Society, available at http://www.uni- tuebingen.de/uni/spi/taps/tap32.htm accessed on 19 January 2011 at 4:05 pm. 118 Participation of Non-Governmental Organisations in International Environmental Governance: Legal Basis and Practical Experience, op. cit. 119 O. P. Goel, Strategic Management and Policy Issues of NGOs, Isha Books, Delhi, 2004, p. 139. 120 Andresen, Steinar and Lars H. Gulbrandsen, The Role of Green NGOs in Promoting Climate Compliance, available at http://fni.no/doc&pdf/ rapp0403.pdf accessed on 6 March 2011 at 8:11 pm. 121 D. W. Jeffrey, ‗The Roles Of Environmental Non-governmental Organisations in the Twenty-first Century‘, Biology And Environment, Royal Irish Academy, 2002, Volume 101B, Number 1-2, pp. 151-156. 122 http://www.greenpeace.org/international/ accessed on 21 March 2010 at 5.14 pm. 123 http://www.foei.org/en/who-we-are accessed on 19 January 2011 at 4: 39 pm. 124 http://www.foei.org/en/what-we-do accessed on 19 January 2011 at 4:40 pm. 125 http://wwf.panda.org/wwf_quick_facts.cfm accessed on 19 January 2011 at 4: 49 pm. 126 Helmut Breitmeier and Volker Rittberger, op.cit. 127 Sheila Jasanoff, op.cit.

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128 Lawrence E. Susskind, Environmental Diplomacy: Negotiating More Effective Global Agreements, Oxford University Press, Oxford, 1994, p. 47. 129 Norman J. Vig and Regina S. Axelrod, op.cit., p. 59. 130 Kal Raustiala, ‗States, NGOs, and International Environmental Institutions‘, International Studies Quarterly, Volume 41, Number 4, 1997, pp. 719-740. 131 Daniel Berlin, ―Why Some Greens are More Powerful than Others: On Destabilization, Power Shifts and the Democratic Potential of NGOs‖, International Review of Sociology, Volume 19, Issue 2, July 2009 , pp. 331 – 349. 132 Thomas N. Gladwin, ‗Economic Globalization and Ecological Sustainability: Searching for Truth and Reconcilation‘, in Nigel J. Roome (ed.), Sustainability Strategies for Industry: the Future of Corporate Practice, Island Press, Washington, DC, 1998, p. 33. ‗TNC Commission Focuses on Environment and Development‘, UN Chronicle, available at http://findarticles.com/p/articles/mi_m1309/is_n3_v28/ai_11547621/ accessed on 20 January 2011 at 4:09 pm. 134 The State of Responsible Business: Global Corporate Response to Environmental, Social and Governance (ESG) Challenges, EIRIS Institute, September 2007. 135 C. R. Sarkar, Social Responsibilities of Business Enterprise, New Century Publications, New Delhi, 2005, p. 29. 136 http://www1.law.nyu.edu/journals/envtllaw/issues/vol3/1/3nyuelj1.html accessed on18 July 2009 at 12:28 pm. 137 http://www.corpwatch.org/article.php?id=243 accessed on 21 November 2009 at 1:34 pm. 138 Ibid. 139 Ibid. 140 Greenwash + 10: The United Nation‟s Global Compact, Corporate Accountability and the Johannesburg Earth Summit, Corpwatch, January 2002, available at http://www.corpwatch.org/article.php?id=1348 accessed on 19 January 2011 at 7: 44 pm.

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141 Timothy Doyle and Doug McEachern, Environment and Politics (Third Edition) Routledge, London and New York, 2008, pp. 192-194. 142 ‗Corporations can Profit from Being Green‘, available at http://timesofindia.indiatimes.com/articleshow/msid-3241049,prtpage-1.cms accessed on 15 June 2009 at 8:01pm. 143 S. Sharma and M. Starik (eds.), Stakeholders, the Environment and Society, Edward Elgar Publishing Limited, Cheltenham, p. 235. 144 Ibid, p. 236. 145 Geoffrey Allen Pigman, The World Economic Forum: a Multi-stakeholder Approach to Global Governance, Routledge, Oxon, 2007, p. 128. 146 Jennifer Clapp, ‗Transnational Corporations and Global Environmental Governance‘, in Peter Dauverge (ed.) Handbook of Global Environmental Politics, Edward Elgar Publishing Limited, Cheltenham, 2005, p. 290. 147 M. G. G. Pillai, ‗Multinationals and Environment‘, Economic and Political Weekly, Volume 31, Number 6, p. 325. 148 Michael W. Hansen, ‗Managing the Environment across Borders: A Survey of Environmental Management in Transnational Corporations in Asia‘, in Transnational Corporations, Volume 12, Number 1, 2003, pp. 27-52. 149 Jennifer Clapp, op.cit., p. 285. 150 Ibid, p. 288. 151 Ibid, p. 289. 152 Mikoto Usui, „Sustainable Development Diplomacy in the Private Business Sector: An Integrative Perspective on Game Change Strategies at Multiple Levels‘, International Negotiation, Volume 8, Number 2, 2003. 153 http://www.unu.edu/inter-linkages/docs/IEG/Usui.pdf accessed on 24 February 2010 at 12:08 am. 154 Jennifer Clapp, op.cit., p. 290. 155 Julian Agyeman, Robert D. Bullard and Bob Evans (eds.) Just Sustainabilities: Development in an Unequal World, Earthscan Publications Limited, London, 2003, p. 139.

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156 Rob van Tulder with Alex van der Zwart, International Business-Society Management: Linking Corporate Responsibility and Globalization, Routledge, London and New York, 2006, p. 319. 157 Ibid, p. 322. 158 Ibid, p. 318. 159 Ibid, pp. 327-330. 160 Frynas, Jedrzej George, Beck, Matthias P. and Mellahi, Kamel, ‗Maintaining Corporate Dominance after Decolonization: the ‗first mover advantage‘ of Shell-BP in Nigeria‘, in Review of African Political Economy, Volume 27, Number 85, 2000, pp. 407- 425. 161 http://www.huffingtonpost.com/stephen-kretzmann/shells-settlement- doesnt_b_213352.html accessed on 24 February 2010 at 10:14 pm. 162 The State of Responsible Business: Global Corporate Response to Environmental, Social and Governance (ESG) Challenges, op.cit.

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ENVIRONMENTAL ISSUES IN INDIA

1. INDIA’S ENVIRONMENTAL POLICY:

A HISTORICAL PERSPECTIVE

The development and growth of environmental policy in India can be discussed by classifying it into two phases: pre-independence and post-independence period. The pre-independence period can be further divided into: ancient period, medieval period and British period. The post-independence period environmental policy can be discussed in terms of five year plans till today.

(a) Pre-Independence Period

(i) Ancient Period

The concern regarding the protection of environment by the people in India is not a recent phenomenon. Since the ancient period, people of India have been involved in the legislation, execution and operation of the environmental policies. The countries of the modern age are now involved in the policies for the protection of environment, but in India, it has been an old phenomenon. In India, the concern for environment was expressed in ancient period encompassing all the five traditional elements of natural environment namely, land (ksiti), water (ap), radiation or energy (tejas), air (marut) and cosmic space (vyoman) and their relation with human activities. There were many ancient treaties which contain chapters dealing with sauca (purity and cleanliness) and sadacara (normal ethical behaviour).1 Thus, our ancestors have been praising and worshipping nature including trees and animals for many centuries. Writing of the sages, especially Vedas and Upanishads, emphasised that man and nature should live in harmony and peace; and plants and animals should be subject to limitless kindness and benevolence as they make no demands for their sustenance and instead they generously extend their product for the

87 sustenance of humankind.2 It was religion that became the source of policy for environmental protection. The fear of the unknown spirits to punish the culprit of nature led people to follow the religion, and subsequently the protection of environment. The religion of Buddhism and Jainism deplored suffering of not only man and animals, but went to the extent to protect insects.3

Kautilya‟s Arthashastra written between 321 and 300 B.C. is divided into 14 books out of which 2 books provide great provisions for environment.4 The well planned administration and drainage system, pronounced by Kautilya, testify that the ancient rulers were keen on maintaining clean and healthy environment.5 The Arthashastra also recommended death penalty for the killing of elephant as elephants were important elements of armies.6 Kautilya discussed the management of water resources through construction of tanks and wells.7 The Arthashastra further discussed the use of water for the development of water works, irrigation, and transport, specifying that all water belonged to the king and that users have to pay a water tax to withdraw water for irrigation systems installed by the king. The Arthashashtra states that in irrigating one‟s own field, no harm is to be caused to others. It prohibited the release of water from dams without a legitimate reason, the obstruction of the legitimate use of water by others, the obstruction or diversion of the watercourse, and the building of water works on the land belonging to someone else. Where damage was caused to another party as a result of overflowing waters, compensation was owed to the other party. Furthermore, the Arthashastra provides a list of damage types and the corresponding compensation or penalty due.8 The punishment used to vary according to the gravity of the offence committed. The Manusmriti observes that:

The violence against trees, etc., would attract appropriate punishment in different degrees, depending upon the usefulness or importance of different parts of the plant”9

Apart from Kautilya, there were many other social reformers and thinkers like Gautama, Vasistha, Apastamba, Paraskara, Visnu etc. who compiled various codes of conduct of environment significance. Therefore, the people in ancient period knew the significance of healthy environment and its relationship with the man. For example, the Rig Veda verse says that

88 “Let the feeling of glorious well-being be upon us. May the whole human race by happy. Let the plant kingdom flourish upwards in great profusion. May prosperity be with the bipeds and with the quadruped animals as well” 10

Likewise, there was concern for wildlife in that period in the teachings of Buddha:

“Let all creatures those who are fearful or benign, short or long, large or medium sized, small, microscopic or fat, or visible and invisible, or those living far and near, which have been born or unborn, be happy.”11

Similarly, the concern for land was found in the hymn of Atharva-Veda- samhiti:

“O earth, whatever I dig out from you, must that have to be filled up again and restored as fast as possible. O pure one, I indeed have no intention to hit you at your heart of hearts.”12

In addition, there were provisions for draining out excess water from the delta to Bay of Bengal to protect inhabitants from floods during the reign of Cola King Karikala.13 Saka Rudradaman (c. AD 150) repaired and strengthened the Sudarsana dam, originally built by Chandragupta Maurya, whose water breached the walls and reduced the entire area to a desert.14

The most popular ancient king regarding the conservation of environment was the Mauryan king Ashoka who considered the preservation of living organisms including trees, animals, and plants as part of the duties of the king. He restricted the killing and hunting of a number of animals for game and food; and advocated planting and preservation of plants and trees. The edicts of Ashoka, from the third century, in Dhauli, notes as following in translation:

“The king with charming appearance, the beloved of the gods, in his conquered territories and in the neighbouring countries, thus enjoins that: medical attendance should be made available to both man and animal; the medicinal herbs, the fruit trees, the roots and tubers, are to be transplanted in those places where they are not presently available, after being collected from those places where they usually grow; wells should be dug and shadowy trees should be planted by the roadside for enjoyment both by man and animal.” 15

89 The Fifth Pillar Edict of Ashoka also tells about his concern for animals, birds and forests:

“……I forbade the killing of the following species of animals, namely: parrots, mynahs, red-headed ducks…….and all quadrupeds which are of no utility and are not eaten.……Chaff which contains living things must not be set on fire. Forests must not be burned in order to kill living things or without good reason….”16

(ii) Medieval Period

During the medieval period, where Mughals played a dominant role, the concern and policy for environmental protection was very limited. However still, there were rulers involved in the protection of environment, particularly water conservation and utilisation. King Lalitaditya Muktapida (724-61 AD), during his reign arranged the distribution of water of the Vitasta at Cakradhara which were causing floods by using a series of water wheels.17 Also during the period of King Avantivarman, remarkable steps were taken to reduce floods and utilize water for irrigation.18

The Mughals were involved more in aesthetic beauty. Their activities include the developing of gardens and orchards.

However, from 800 AD a gradual pattern of state forest control had emerged. In 1740s, the rulers were involved in plantations but for own sake of ship building and revenue rather than for nature. The Maratha rulers acquired control over large tracts of coastal forests for this reason. This trend of monopolistic control was also followed in Cochin and Travancore. And between 1770 and 1840, the Amirs of Sind carried out the most extensive programmes for afforestation and forest protection.19 During the fifteenth century, there was an establishment of Hindu sect, Bishnois, devoted to India-friendliness and wildlife protection, and bond between man and nature. The Guru of the Bishnois laid down 29 commandments to be practiced by his followers. In 1730, it is believed that 360 Bishnois died hugging while trying to save the Khejdi trees from cutting at the order of Jodhpur king. On learning of the incident, the king apologised for the mistake committed by his officials and issued a royal decree prohibiting the cutting of trees and killing of wildlife in Bishnoi villages. The present Bishnois in India are also active in protecting the wildlife.20

90 (iii) British Period

The colonial period not only in India but around the world is considered to be an ecological watershed. The environment of the whole world was altered by the western imperialism, as their expansion degraded the nature, first through trade and later by colonialism.21 However, colonialism on the other side, led to the trend of formation of more explicit conservation policies. The Government of India Act, 1935, empowered the provinces to take decisions on water supply, irrigation, canals, drainage and embankments, water storage and hydro-power. The disputes between provinces and/or princely states were subjected to the jurisdiction of the Governor General who could appoint a commission to investigate the sufficiently important conflicts.22

During the British period in India, there were large amounts of deforestation due to the need for ship-building, iron smelting and farming. Also, the revenue orientation of colonial land policy and building of railway network around 1853 added to the cause of deforestation in India.23 In fact, railway requirements were „the first and by far the most formidable‟ of the forces for thinning the Indian forests.24 After 1800, the problems related to sanitary and roads developed as result of rapid urbanisation in the larger towns and especially, the administrative capital of Calcutta which further led to the steps in environmental field.25 Also the forests were hurdles to the movement of armies; it could easily become a base of resistance or guerillas and was also an obstacle in agricultural expansion.26

As a result of the ecological degradation by colonialism, there was a rise of distinctive groups of professional naturalists and scientists who disregarded this trend. In India, the medical surgeons of the East India Company were a popular group who raised voice for environment in early 19th century. They were quick to involve in activities regarding conservation or plantations. For instance, they were involved to establish conservancies or teak plantations in Malabar, Bengal or Burma between 1805 and 1822. In early 1820s, some of these surgeons lobbied against the deforestation taking place during that time and favoured plantation programmes. They quoted the arguments of Humboldt; linking deforestation, increasing aridity and temperature. Consequently, because of the increasing pressure on the government, on 17 December 1846, the Government of India authorised the

91 employment of an establishment for the management of the forests under the Bombay Presidency. And the Bombay Presidency on 2 March 1847, appointed Gibson as Conservator of Forests, in addition to his duties as Superintendent of the Dapoorie Botanic Garden.27 In 1855 Lord Dalhousie, the Governor-General issued the “Charter of the Indian Forests,” outlining forest conservancy for the whole of India.28

In the mid-nineteenth century, there was an appointment of a person named Dietrich Brandis as Inspector-General of Forests of India, whose contribution in the forestry of India is significant. He toured and established forest management in India, arranged for the continental training and established Dehra Dun school for prospective Indian foresters.29 His guidelines for working plans and silvi-cultural operations were devised and implemented for the whole country. His successors established regimes for protecting forests from natural and human destruction.30 In the same period, in 1862, the Governor-General called out for the creation of a department for the sustainable availability of large requirements of wood for different railway companies.31 Consequently, in 1864, the Imperial Forest Department was created with the help of experts from Germany and in 1865, the Indian Forest Act was passed.32 But, on the complaint of the foresters that the Act did not give them and the state adequate amount of control over forest lands, it was modified in 1878.33 With this Act, hunters were now required to hold permits to hunt in government forests.34 Also, there was passing of the first British bird protection legislation and the publication of G. P. Marsh‟s „Man and Nature‟ and the publication of Dr. Hugh Cleghorn‟s „Forests and Gardens of South India‟.35

Based on these Acts, local rules were made. The forests were classified into three divisions: reserved, protected and village/communal.36 All the policies that were followed in India were borrowed from Germany and France. They were considered to be experts in this field.

Therefore, it can be said that during the British period, the environmental policies were taken only in the sector of forests. But these policies were seemingly not for the concern of ecology in India but for the sake of increase in exports, revenue and other profitable ventures.

92 However, in all, the policies relevant to protection of environment in the British period, besides the Criminal Code Procedure of 1893 and Indian Penal Code of 1860 are:

1. The Shore Nuisance (Bombay and Kolaba) Act, 1853.

2. The Orient Gas Company Act, 1857.

3. The Serais Act, 1857.

4. The Northern India Canal and Drainage Act, 1873.

5. The Obstruction in Fairways Act, 1881.

6. The Indian Fisheries Act, 1897.

7. The Indian Ports Act, 1901.

8. The Bengal Smoke Nuisance Act, 1905.

9. The Explosives Act, 1908.

10. The Bombay Smoke Nuisance Act, 1912.

11. The Inland Stream Vessel Act, 1917.

12. The Mysore Destructive Insects & Pests Act, 1917.

13. The Poison Act, 1919.

14. The Andhra Pradesh Agricultural, Pest & Diseases Act, 1919.

15. The Indian Boilers Act, 1923.

16. The Workmen‟s Compensation Act, 1923.

17. The Indian Forest Act, 1927.

18. The Motor Vehicles Act, 1939

19. The Bihar Wastelands (Reclamation, Cultivation & Improvement) Act, 1946.

20. Forest Act of Madras 1873.

21. Elephant Preservation Act, 1879.

93 22. The Madras River Conservancy Act, 1884.

23. Hailey National Park Act, 1936 (Now Called Corbett National Park).

24. The Petroleum Act, 1934.

25. The Easement Act, 1882. 37

(b) Post Independence Period: Period of Five Year Plans

After the independence of India, the five year plans were formulated by the Planning Commission of India in pursuance of declared objectives of the government to promote a rapid rise in the standard of living of the people by efficient exploitation of the resources of the country, increasing production and offering opportunities to all for employment in the service of the community.38 The Planning Commission is, thus, charged with the responsibility of making assessment of all resources of the country, augmenting deficient resources, formulating plans for the most effective and balanced utilisation of resources, determining priorities, factors which are retarding economic development and nature of the machinery, make recommendations and appraisals from time to time.39 Planning Commission plays an integrative role in the development of a holistic approach to the policy formulation in critical areas of human and economic development. The emphasis of the Commission is on maximising the output by using our limited resources optimally.40

The first Five-year Plan was launched in 1951 and two subsequent five-year plans were formulated till 1965, when there was a break because of the Indo-Pakistan Conflict. Two successive years of drought, devaluation of currency, a general rise in prices and erosion of resources disrupted the planning process and after three Annual Plans between 1966 and 1969, the fourth Five-year plan was started in 1969. 41 The Eighth Plan could not take off in 1990 due to the fast changing political situation at the Centre and the years 1990-91 and 1991-92 were treated as Annual Plans. The Eighth Plan was finally launched in 1992 after the initiation of structural adjustment policies.42

94 In the initial five year plans, the programmes were for the sanitation, public health, nutrition, water supply and housing. Less priority was given to the natural environment of the country. It was only in the Fourth Five Year Plan that direct attention was paid and the following observation was made:

The physical environment is a, dynamic, complex and inter-connected system in which any action in one part affects others. There is also the inter-dependence of living things and their relationships with land, air, and water. Planning for harmonious development recognises this unity of nature and man. Such planning is possible only on the basis of a comprehensive appraisal of environmental issues, particularly, economic and ecological. There are instances in which timely specialised advice on environmental aspects could have helped in project design and in averting subsequent adverse effects on the environment, leading to loss of invested resources. It is necessary, therefore. to introduce the environmental aspect into our planning and development.43

As a result, the National Council of Environmental Planning and Co-ordination (NCEPC) was established at the Department of Science and Technology in 1972. The National Agriculture Commission was created in 1973 and it was referred several crucial issues pertaining to forests in India. The recommendations of the Commission included issues like the set up of Export Promotion Council, to identify forest areas for development, a selective mechanism in logging should be adopted, a review of the fertilizer requirements should be undertaken, amendments of the tax law should be considered, and so on.44

The Fifth Five Year Plan stressed that the NCEPC should be involved in all major industrial decisions, so that environmental goals would be taken into account. The Plan also emphasised that the pursuit of developmental goals would be less likely to cause a reduction in the quality of life if a link and balance between development planning and environmental management was maintained. In this reference, the Minimum Needs Programme which was concerning the rural and elementary education, rural health and sanitation, nutrition, drinking water, provision of housing and so on, received comparatively a high priority, and was expected to minimise environmental pollution and degradation in rural areas and reduce poverty levels.45

95 In the Sixth Five Year Plan (1980-85), a full chapter under the name „environment‟ was devoted to the discussion of problems of environment degradation. This plan stated that “Environmental conservation is, in fact, the very basis of all development.”46 In this Plan, an amount of Rs. 40 crores was provided for the environment. Out of which, an amount of 15 crores was provided for Environment Planning & Coordination (R & D programmes, field action/demonstration, environmental information system, monitoring network and support to State Environmental Committees) etc., 10 crores for Eco-Development programmes (Biosphere reserves, eco-development force, eco-development camps) etc., 5 crores for Ecology & Environment Education/Training Programmes (training schemes, centres of excellence, environment management institutions) etc., 5 crore for Botanical Survey of India and the like, and the rest 5 crores for Zoological Survey of India and the like.47

Under this plan, the environment problems were divided into two categories:

i. Those arising from conditions of poverty and under-development.

ii. Those arising as negative effects of the very process of development.

The first category dealt with the effects on the health and integrity of our natural resources (land, soil, water, forests, wildlife, etc.) because of poverty and the inadequate availability, for a large section of our population, of the means to fulfill basic human needs (food, fuel, shelter, employment, etc.). The second category dealt with the unintended side effects of efforts to achieve rapid economic growth and development. In this latter category would fall the distortions imposed on national resources from poorly planned development projects and programmes, as well as from lack of attention to long term concerns by commercial and vested interests.48

The topics discussed in context of environment in the Sixth Five Year Plan were:

i. Natural resources including land and water, soil, forest marine ecosystem and other natural living resources;

ii. Environment pollution including water pollution, air pollution, land pollution, noise and human settlements including, rural and urban; iii. Environmental impact from development projects; and

iv. Administrative and legislative arrangements for environmental protection.49

96 In recognition of the administrative and legislative arrangements for environmental protection, the Government of India constituted a High Power Committee under the Chairmanship of the Deputy Chairman of the Planning Commission. The Committee expressed the need for creating a Department of the Environment (DOE) at the Centre to provide explicit recognition to the pivotal role that environmental conservation must play for sustainable national development. The functions of the Department of the Environment were identified as:

(a) 'Nodal' agency for environmental protection and eco-development in the country.

(b) Carrying out of environmental appraisal of development projects through other ministries/agencies as well as directly.

(c) Administrative responsibility for

 Pollution monitoring and regulation.

 Conservation of critical eco-systems designated as Biosphere Reserves.

 Conservation of Marine Eco-systems.50

The Plan further discussed about the programmes to be initiated for environmental protection. The Plan stated that it “will adopt an integrated approach to find and implement methods of redressing existing environmental problems and build up the capability for preventing or mitigating those that could arise in the future.”51 It acknowledged about the Environmental Research and Development Programme, the process of Environmental Impact Assessment (EIA), to make an Inventory of Ecological Resources, monitoring of environmental quality, setting up of an Environmental Information System, programmes to increase public awareness about environmental issues, proposed to set up a number of centres and institutions for studies and training in environmental science, technology and management and in particular, the Centre for Himalayan Studies and a Centre for Western Ghats Studies. Further, it identified about a number of field action programmes to be sponsored by the Department of Environment. The other programmes identified by the Department were the setting up of Eco-development Force, Eco-Development Camp and constitution of Rural Environmental Cells.52

97 It provided guidance to administrators and other resource-managers in formulating and implementing development programmes and lays down an institutional arrangement for environmental administration at the Central and state levels.53

The Seventh Five Year Plan (1985-1900) discussed about the environment issues under the chapter “Environment and Ecology‟. The basic approach to the Seventh Plan was to emphasise sustainable development in harmony with the environment.54 Further, it stated that:

“It is now being increasingly recognised that environmental factors and ecological imperatives must be built in to the total planning process if the long-term goal of making development sustainable is to be achieved.”

The Seventh Five Year Plan attempted to remove some of the weaknesses in the existing environmental planning system. The direct goals relating to the subject of environment as a whole discussed in the Plan were:

 Institutionalising the process of integrating environmental management and development.

 Inducing organisations at the Central, State and local levels to incorporate environmental safeguards in their plans and programmes.

 Securing greater public participation in environmental management.

 Establishing a strong S&T base for environmental research and development, demonstration and extension activities.

 Strengthening mechanisms for ensuring corrective action with regard to environmental degradation that has already taken place.55

Further, the salient programmes undertaken included the following thrust areas: pollution monitoring and control, environmental impact assessment, natural living resources conservation, eco-development, environmental research promotion, environmental education, training and awareness, environmental information, coordination and liaison with state governments and union territories, environmental policy and law, international cooperation and strengthening of the organisational structures.56 For the Seventh Five Year Plan, the outlay was of Rs. 427.91 crores,

98 out of which 350 crores were for Centre, 75.71 crores for State and 2.20 crores for Union Territories.57

Therefore, during this period significant achievements took place in the areas of environment and ecology such as Ganga Action Plan, forestry and wildlife, wastelands development and island development subsectors. Important initiatives were taken place on programmes on waste recycling, prevention of coastal pollution and schemes concerning pollution. During this period, fourteen river basins of the country were monitored for water pollution. Two hundred water quality monitoring stations, 85 air quality monitoring stations and 173 coastal monitoring stations were established, standards were notified for 26 priority industries, more than 50% of the major and medium industries installed pollution treatment plants,58 fifteen mangrove areas were identified, seven biosphere reserves were set up for preserving the genetic diversity in representative ecosystems and a multi-departmental National Natural Resources Management System (NNRMS) was set up.59 Moreover, 319 research and development projects were sanctioned in the Seventh Plan. 294 economic-development camps were conducted and The Gobind Ballabh Pant Paryavaran Evam Vikas Sansthan to study Himalayan environment and development60 and The Indira Gandhi National Forest Academy (IGNFA) was established at Dehra Dun for the training of Forest Service probationers.61

The Eighth Five Year Plan (1992-97) came in 1992, instead of 1990 because of political instability. It acknowledged that the degradation of environment is continuing. It recognised that the areas need to be classified not only on the basis of their ecological characteristics, including fragility, but also in terms of the types and severity of threats they face, the source and cause of these threats and the level of protection they warrant. Further, it recognised three types of threats to natural environment: pollution, over-use and destruction. Therefore, the following major tasks were recommended to meet the challenge of environment degradation:

i. To protect the natural environment;

ii. To regenerate and restore degraded ecosystems and increase their productivity and to generate employment through these activities; iii. To decentralise control over nature and natural resources;

99 iv. To develop and share an understanding of nature and natural processes;

v. To formulate a national policy for environment and an appropriate institutional and legal framework in support of the policy;

vi. To ensure co-ordinated and integrated governmental action aimed at conserving nature and sustainable use of natural resources;

vii. To make individuals and institutions more accountable to the people for their actions impinging on environment and ecosystem; and viii. To monitor the state of environment.62

The major achievements during this period by the Central Pollution Control Board (Central Pollution Control Board (CPCB) were the development and expansion of laboratory facilities, management and operation of the national air and water quality network, controlling pollution at sources, river basin studies, assessment and implementation of national standards, hazardous waste management, including preparation of an inventory of hazardous waste generating industries in different States, preparation of Zoning Atlas for siting industries in various districts of the country, development of criteria for eco-labeling of consumer products, remedial measures for vehicular pollution especially for vehicles in use in metro cities, noise pollution survey, training of personnel engaged in preventing and controlling pollution and organising nation-wide awareness programmes for prevention and control of pollution.63 The submission of an environmental statement by the polluting units to the concerned State Pollution Control Boards was made mandatory.64 Further, World Bank assisted Industrial Pollution Prevention Project in two phases.65 Moreover, the government policies, besides regulatory mechanisms, incorporated market-based economic instruments in economic and environmental planning. In this period, over 190 research projects in multi-disciplinary aspects were initiated,66 more than 5,000 such Eco-clubs have been set up in various schools of the country, Environmental Information Systems (ENVIS) was set up by the Ministry of Environment and Forests and 22 ENVIS centres were set up by the end of Eighth Plan.67 Further, five Centres of Excellence in the field of environmental education, ecological research, mining, environment and ornithology were set up and 37 priority areas were identified for undertaking research projects on the

100 recommendations of the Standing Committee on Bio-resources and Environment.68 India became a party to the United Nations Framework Convention on Climate Change (UNFCCC), Convention on Biological-diversity (CBD), Basel Convention on the Control of Trans-boundary Movement of Hazardous Wastes and their Disposal and Montreal Protocol on Controlling the Substances that Deplete the Ozone Layer.69 During the Eighth Five Year Plan, considerable success was achieved in the first phase of Ganga Action Plan and the second phase of the Ganga Action Plan was launched.70 In addition, the National River Conservation Plan (NRCP) was approved in July 1995.71 Under forest protection and regeneration, the scheme „Association of Scheduled Tribes and Rural Poor in Regeneration of Degraded Forests‟ was taken up on pilot basis with 37 projects in nine States. The National Afforestation and Eco-Development Board was created and under the Board, a number of schemes were carried out.72 Under point 16 of the 20-Point Programme for afforestation, 501.07 million seedlings were distributed and 4.56 million hectares of area was afforested.73 For wasteland development, significant progress was achieved in the Integrated Wastelands Development Projects Scheme (IWDP), Technology Development, Training & Extension Scheme, Investment Promotional Scheme, Wastelands Development Task Force and in the awareness activities.74

For the Eighth Five Year Plan, in context of financial matters, for the Central Sector an outlay of Rs. 525 crores was provided for Forestry and Wildlife sub-sector. The corresponding outlay in the State and UT sector was Rs. 3556.87 crores. For Ecology and Environment sub-sector in the Central Plan, an outlay of Rs. 675.00 crores was provided. In respect of States and UTs the outlay under this sub-sector has been kept at Rs. 153.11 crores.75 Thus, the total outlay for the Ministry of Environment and Forests was Rs. 1200 crore but the actual expenditure was Rs. 1631.90 crore.76

The Ninth Five Year Plan (1997-2002) acknowledged that the Indian Government‟s policy towards environment is guided by the principles of Agenda 21. The role of major groups including the NGOs, farmers, mass media and other communities was being strengthened by directly involving them in the process of identification, formulation and implementation of environmental programmes. Further, is stated

101 that the major environment problems in India are air and water pollution, degradation of common property resources, threat to biological diversity, solid waste disposal and sanitation. It also stated that India is an insignificant contributor to the GHG emission.77

The Ninth Five Year Plan stated that:

One of the objectives of the Ninth Five Year Plan is to ensure environmental sustainability of the development process through social mobilisation and participation of people at all levels. The Ninth Plan is also based on the belief that the principal task of planning in a federal structure is to evolve a shared vision and commitment to the national objectives and development strategy. The Ninth Plan also lays greater stress on reorienting the policies than on direct intervention so as to signal and induce the various economic agents to function in a manner consistent with the national objectives.78

The Ninth Plan, thus, envisaged a multi-pronged strategy; based on the belief that macro-economic stability is fundamental not only for economic growth but also for sound environmental management. The Plan gave the following important elements for the strategy:

i. Empowering the people through information generation, dissemination and access.

ii. Involving the industry in both the private and the public sector.

iii. Integrating environment with decision making through valuation of environmental impacts; evolving market based economic instruments as an alternative to the command and control form of environmental regulation; appropriate pricing of natural resources based on their long-term marginal cost of supply; appropriate fiscal reforms and natural resource accounting.

iv. Evolving the rights for common property resources.

v. Inter-sectoral coordination and cooperation.

vi. Ensuring scientific and technological inputs.

102 vii. Participation of people (particularly women) in the management and sharing of usufruct through Joint Forest Management. viii. Involvement of NGOs for awareness building and as an interface between forest department and the people would be encouraged during the Ninth Plan.

ix. Integrated development of villages in and around forests.79

Further, the issue-specific programmes discussed in the Ninth Five Year Plan were people's involvement and role of information, strengthening of the Surveillance and Monitoring System, State of Environment Report, integrating environmental concerns with decision making, Natural Resource Accounting.80 The area-specific programmes were National River Conservation Programme (NRCP), National Lake Conservation Programme, Taj Trapezium, Himalayan Region and Islands.81 The sector specific programmes were strengthening the Central Pollution Control Board, industrial pollution control and prevention projects, the Common Effluent Treatment Plants (CETP), Environmental Statistics and Mapping, Environmental Impact Assessment and Development and Promotion of Clean Technologies, conservation and survey, biosphere reserves, mangroves, bio-diversity conservation, assistance to botanical gardens, research and eco-generation, policy and law, the National Environment Tribunal Act, 1995 and international cooperation. The Ninth Five Year Plan also envisaged forestry & wildlife and afforestation and wastelands development.82

In the Tenth Five Year Plan (2002-07), the opening line of the chapter on environment and forest is:

“Sustainability is not an option but imperative.”83

Thus, by this time, it was realised that sustainability cannot be avoided and has become crucial for a developing country like India. The forests and wildlife were the prominent issues discussed in this Plan. Under this plan, besides ongoing schemes, the new schemes were introduced. The scope of the Common Effluent Treatment Plants scheme was enhanced.84 New schemes were undertaken for eco-restoration, watershed management, water and energy sectors, bio-diversity, climate change, ozone layer protection, land degradation etc. with the financial and technical help

103 from India-Canada Environment Facility (ICEF), Global Environment Facility (GEF), Indo-German Technical Cooperation etc. which are having schemes since Ninth Plan.85 Schemes under the Clean Development Mechanism (CDM) were taken including The State of Environment Scheme.86 In reference to Zoological Survey of India, it was proposed to explore survey of state fauna (district wise), studies to be conducted on selected eco-systems of the Indian region, survey of conservation areas including tiger reserves, taxonomic studies of faunal components, status survey of endangered species, chromosome mapping and DNA fingerprinting.87 Further, it was proposed to cover thirty identified mangrove and four coral reef areas for intensive conservation and management. Besides these plans, it was intended to clear all polluted rivers by 2007, in particular, the Ganga and its tributaries. Further, a decentralised approach was emphasised for sewage interception, diversion and treatment would be adopted, demonstration models were to be developed for total treatment and disposal of sewage in small colonies or housing societies, root zone treatment/constructing wetland technologies would be promoted, universities and colleges would also be involved in monitoring the water quality in rivers and lakes and so on.88 In addition, the Plan devoted a separate chapter to disaster management and made a number of important recommendations to mainstream disaster risk reduction into the process of development. Some of the significant initiatives during the Tenth Five Year Plan include the enactment of Disaster Management Act, 2005, setting up of National Disaster Management Authority (NDMA), National Disaster Response Force and National Institute of Disaster Management. Further, a web- enabled centralised inventory of resources has been developed to minimise response time in emergencies. State governments are in the process of setting up State and District Disaster Management Authorities and so on.89

In context of forest and wildlife, a number of proposals were discussed. In the Tenth Five Year Plan, the strategy was to bring 25 per cent area under forest/tree cover by the end of the tenth plan period and 33 per cent by the end of the eleventh plan period.90 It was acknowledged that watershed approach should be adopted for the maintenance and development of forests; the future management strategy should take into account the needs of the forest based community to meet their requirements; a special programme should be drawn up for development of villages

104 dependent on forest and to provide alternative source of income; agro-forestry should be encouraged by promoting technology, extension and training, credit support, marketing infrastructure, etc; greening programmes under the „food for work‟ scheme should be extensively implemented to ensure productive employment and food security; to sustain the livelihood of a large number of people, the fragile eco-systems such as coastal areas, hills and mountains, wet lands, deserts, shifting cultivation areas need to be protected, promotion of bio-diesel was also encouraged to enhance the livelihood opportunities and income generation of rural masses. It has also been proposed to merge all afforestation programmes of National Afforestation and Eco-development Board (NAEB) into a single scheme called „National Afforestation Programme‟.91 Moreover, suggestions were made for forest-based industries, forest plantations, forestry training, forestry research, education, training and Joint Forest Management (JFM).92 Suggestions were also proposed for Indian Council of Forestry Research and Education (ICFRE); Indian Plywood Industries Research and Institute (IPIRI); Indian Institute of Forest Management (IIFM); and Forest Survey of India.93

In reference to wildlife, initiatives were taken for strengthening and enhancing the protected area network, for effective management of protected areas, conservation of wild and endangered species and their habitat, restoration of degraded habitats outside protected areas, control of poaching and illegal trade in wild animals and plant species. Further, suggestions were made for Project Tiger, Project Elephant, Wildlife Institute of India (WII) and Central Zoo Authority.94

This Plan was a period of extensive review of environmental processes and law. The first National Environment Policy was put into place in May 2006. In addition, the re-engineering of the environmental clearance process and Environmental Impact Assessment (EIA) Notification and review of the Coastal Regulation Zone Notification were undertaken to improve the quality of environmental governance.95 An outlay of Rs 5945 crore was fixed for Ministry of Environment & Forests in the Tenth Plan96 and the actual expenditure was Rs. 5119.14 crore.97

In the Eleventh Five Year Plan (2007–2012), the environment issues are discussed under the chapter of „Environment and Climate Change‟, thus the environment problem of climate change is given emphasis. In this Plan, a number of initiatives

105 are proposed to integrate environmental concerns into planning and developmental activities across all the sectors.98 It is proposed to include the subject of environment in the Concurrent List, so that the government at all the levels could deal with this problem. The State Pollution Control Boards should be restructured into statutory environment protection authorities with the mandate of developing regulations, standards and upgraded facilities for enforcing compliance. At the district level, it is proposed that the scheme of Paryavaran Vahinis, or committees of concerned citizens, should be revived so that they can serve as environmental watchdogs and undertake selective first hand monitoring of the environmental situation in the districts.99 Moreover, it is targeted to increase the forest cover by 5% of the total geographical area. Pertaining to air pollution, it is proposed that all Central programmes on outdoor pollution should be reorganized under a National Air Quality Plan, which will cover City based Clean Air Action Plans (CAAPs) and Pollution Control and Prevention in Industrial Areas programmes.100 The entire Air Quality Monitoring network should be expanded from the current 308 stations to 1000 stations.101 The monitorable target in air quality should be to achieve WHO standards of air quality in all major cities by 2011–12.102 Under the National River Conservation Plan (NRCP), it is recommended to strengthen the enforcement of the scheme of Common Effluent Treatment Plants (CETPs); the water quality of the rivers should be improved to bathing standards and to expand the sewage treatment capacity in the country. Moreover, for drinking water, the quality standards should be made mandatory.103 Besides these, the subject of disaster management was also given prominence in the Eleventh Five Year Plan.104 In this Plan, the forest sector is dealt separately under the heading of agriculture.105 The total projected GBS in the Eleventh Plan for the Ministry of Environment and Forests is Rs 8842 crore (at 2006–07 price) and Rs 10000 crore (at current price).106

2. PEOPLE’S RESPONSE TO ENVIRONMENT

The role of public in environment policy is no less than the government or any other organisation. In fact, the basis for any effective policy on the environment is the level of awareness about environmental concerns and the mobilising of public opinion. India saw the emergence of mass environmental awareness and opinion in 1970s. However, the people‟s response to save the environment from degradation

106 can be found even in the ancient period, although the agenda in that period differed from the present period. They were not concern about the environment pollution, but were involved in dealing with the management and conservation of resources. The religious teachings, cultural ethos and traditions were the source of guidance for the people in environmental protection. As noted by environmental activist Vandana Shiva, the nature and forests have always been treated as teachers; and the message of the forest has been the message of inter-connectedness and diversity, renewability and sustainability, integrity and pluralism.107

(a) Environmental Movements:

The contemporary environment movements in India i.e. the movements in the post independence period, were led by dalits, tribes, forest and hill-dwellers, peasants, fishermen, and women. These people of lower strata of the society trickled up the concept of „environmentalism‟ to the middle class people and informed urban citizens and finally taking the form of NGOs and voluntary organisations. The most popular environmental movements in India are the Chipko Movement and Narmada Bachao Andolan.108

(i) Chipko Movement:

It is the most powerful ecological movement in the post-independence period of India. The word „Chipko‟ means „hugging‟ the trees, and was popularized through the folk songs of Chipko activist Ghanshyam Sailani. It was inspired from the Gandhian satyagraha. The Chipko Movement is a series of events in which people protested against the indiscriminate logging and felling of trees that spelt the destruction of their environment.

The first battle for the protection of environment took place on 24 April 1973 in Chamoli district when the villagers of Mandal, led by Chandi Prasad Bhatt and the Dasholi Gram Swarajya Mandal (DGSM), prevented the Allahabad- based sports goods company „Symonds‟ from felling ash trees. In December of the same year, the villagers again stopped Symond‟s agent from felling trees in the Phata-Rampur forest, about 60 km from Gopeshwar.109 In March 1974, under the leadership of Goura Devi, twenty-seven women saved a number of trees from a contractor's axe in

107 Reni. Following this, the government was forced to abolish the private contract system of felling of trees and in 1975, the Uttar Pradesh Forest Corporation was set up to perform this function. This was the first major achievement of the movement and marks the end of a phase in itself. And, in the next five years, the protection of forest spread to the various parts of the Garhwal Himalayas and other important conservation issues were raised. In June 1977, Sarala Behn organised a meeting of all the activists in the hill areas of Uttar Pradesh, further strengthening the movement and consolidated the resistance to commercial fellings as well as excessive tapping of resin from the Chir pine trees.110

There are number of successful stories of Chipko Movement found in Adwani, Amarsar and Badiyargar and many other places. In September 1977, as a consequence, an auction of Adwani forests took place in Narendranagar and Bahuguna, another notable activist of the Movement, tried to stop the auction by undertaking a fast but could not stop the exercise. In the first week of December 1977, as a consequence, the Adwani forests were scheduled to be felled. As a result, under the leadersip of Bachhni Devi, large groups of women came forward to save the forests. Chipko activist, Dhoom Singh Negi, supported the struggle of these women by undertaking a fast in the forest itself. Women tied sacred threads to the trees as a symbol of a vow of protection. Between 13 and 20 December a large number of women from fifteen villages guarded the forests, fearing a backlash, the axemen left. However they returned back on 1 February 1978 with two truckloads of armed police. The plan was to encircle the forests with the help of the police in order to keep the people away during the felling operation. But, by the time the contractors arrived with the police, each tree was being guarded by three volunteers who embraced the trees and consequently the police left the place.111

In March 1978 a new auction was planned in Narendranagar. A large popular demonstration was organised against it and the police arrested twenty-three Chipko volunteers, including women. In December 1978, the public sector Uttar Pradesh Forest Development Corporation planned a massive felling programme in the Badiyargarh region. The local people instantly informed Bahuguna who started a fast unto death at the felling site, on 9 January 1979. On the eleventh day of his fast, Bahuguna was arrested in the middle of the night but this act further strengthened

108 the commitment of the people. Folk poet Ghanashyam Raturi and priest Khima Shastri led the movement as thousands of men and women from the neighbouring villages joined them in the Badiyargarh forests. The people remained in the forests and guarded the trees for eleven days, when the contractors finally withdrew and Bahuguna was released from jail on 31 January 1979.112

The Chipko Movement has been successful in forcing a fifteen year ban on commercial green felling in the hills of Uttar Pradesh, in stopping clear felling in the Western Ghats and the Vindhyas, and in generating pressure for a national forest policy which is more sensitive to people's needs and to the ecological development of the country.

Thus, this Movement gained popularity not only in India but around the globe. The Swedish Parliament had presented an award to Chipko activists on 9 December 1987 and the citation read:

The Chipko Movement in India, whose members „hug trees‟ to prevent their felling, and have revived traditional agro-forestry, is honoured for its dedication to conservation, restoration and ecologically responsible use of India‟s natural resources.113

(ii) Narmada Bachao Andolan (NBA):

Narmada Bachao Andolan is another popular and organised environmental movement in India against the development of Narmada Valley Development project to prevent its dangerous impacts on the environment and the people. The project was formulated in 1980s including 2 mega-dams, the Narmada Sagar Project (NSP) and the Sardar Sarovar Project (SSP), 30 large dams, 135 medium dams and over 3000 small reservoirs and dams. The movement is a coalition of project- affected people, urban activists and supporters protesting the construction of dams and the displacement of the people.114 The Movement is a coalition of project- affected people, urban activists and supporters protesting the construction of dams and the NBA was formed in 1985 with Medha Patkar and a few other social activists when they organised the disgruntled villagers of the Narmada valley into a movement against the Sardar Sarovar Project. It too, like the Chipko movement, started on the lines of Gandhian Satyagraha. Medha Patkar said, “Our weapon is our

109 movement and struggle, and not arms”. The first major event of the NBA was on August 18, 1988, when the people of the valley staged a protest rally in six different places. The NBA continuously highlighted the economic fallacy of having big dams and its social costs. This ultimately led international financial agencies, the most important being the World Bank and USAID, to withdraw funding for the project. Recently, the people of that region marked the 25th anniversary of the movement.115

(b) Media:

Besides, affecting policy decisions, mass media also plays an important role in environmental protection by communicating environmental awareness among people and fostering an environmentally conscious citizenry.116 In the 1970s itself, several universities conducted workshops for journalists on environment conservation and related issues. These developments enabled journalists to reach out to the people with competent, and often expert, inputs from environmentalists. Today, almost all newspapers publish articles on environment-related issues on a fairly regular basis, although there is much scope for qualitative improvement.117 Moreover, some issues of environment are very popular in the media. For instance, in 2006, it was found that highest number of environment issues discussed in print media was of climate change, NGOs and wildlife trade.118 A number of magazines and journals are also published that deal exclusively with the environmental issues. Some of the famous environmental journals in India are Down to Earth, Indian Journal for Environment Protection, Indian Journal of Ecology, Indian Journal of Environment and Toxicology , Journal of Education for Sustainable Development (JESD), Indian Journal of Environmental Law, Indian Journal of Environment and Eco-planning, Indian Journal of Environmental Sciences and so on.

Even the former Chief Justice of India Y.K. Sabharwal in a speech in 2006, acknowledged the role of media in environmental awareness. He observed:

“It is the poor and illiterate. It is this class which is exploited most – whether in case of illegal felling of trees or of killing of animals – vested interests mislead them – misguide them. This class has to be educated about the need to protect environment for their self-preservation as well. It can be

110 done by the media of television, radio and print media. They can increase environmental awareness or even help remedying environmental problems. The communication media can play a positive role in the protection and preservation of environment. They can play an active role in alerting people about environmental damages, corporate failure to meet its legal obligations and truthful analysis of new legislations. The basic responsibilities of the communication media may include: (i) reporting and publishing the truth (ii) conducting thorough probes into issues relating to violations (iii) highlighting the failure of government officials (iv) not succumb to the pressure tactics adopted by governmental officials/ anti- social elements and (v) forcing others to avoid making political mileage from issues relating to the violations.”119

Further, he said that radio and television, particularly Doordarshan, are most important sources of information as they have the maximum of rural audience.

(c) NGOs:

Again, former Chief Justice of India Y.K. Sabharwal in his speech also acclaimed the role of NGOS in environmental awareness. He said the NGOs play their role by advocacy, discussing and debating, bringing awareness, undertaking research and publication in environmental issues. Further, he recognised the following contributions of NGOs:120

 conducting education and citizen awareness programmes in the field of environment;

 fact-finding and analysis;

 filing public interest litigations;

 innovation and experimenting in areas which are difficult for government agencies to make changes in;

 providing expertise and policy analysis;

 providing factual and reliable information with a network of professional expert staff;

111  remaining independent while passing relevant information to the public and governmental bodies;

 solidarity and support to environmental defenders;

 working in collaboration with the government for capacity building and promotion of community participation in environmental awareness and protection; and

 working out at the grassroots level and reaching far-flung areas with or without the government invitation.

Thus, the role of NGOs is no less in the environmental protection, influencing environmental policies and generating awareness among people. There are countless environmental groups in India, some dealing with specific environmental issues while others are general in nature. Groups dealing with particular issues include Akash Ganga, Animal Rights Fund, India Tiger Welfare Society, We for Yamuna, and a few others. Groups for environment in general include Centre for Science and Environment, The Energy and Resources Institute, Environment Support Group, Green Coalition, Greenpeace India, Green Corporate Network and so on. A brief description about Centre for Science and Environment may not be out of place as it is considered to be one of the pioneering agencies working for the protection of environment.

Centre for Science and Environment (CSE):

It is one of the most popular environmental non-government, public interest research and advocacy organisation in India based in New Delhi. Anil Kumar Agarwal was the founder-director of this organisation. At present, Sunita Narain is the director of the Society for Environmental Communications. The Centre has been recognised by many awards for its contribution and the awards include the Jawaharlal Nehru prize for 'popularisation of science' in 2008-09, Stockholm Water Prize in 2005 and UNEP Global 500 Forum Award in 1988. The Centre‟s efforts to accomplish its aim around five broad programmes: (1) Communication for Awareness, (2) Research and Advocacy, (3) Education and Training, (4) Knowledge Portal and (5) Pollution Monitoring.121 The Centre has made a number of major contributions which gained

112 not only national but international uproar. In 1996, CSE started a project to present a market-oriented framework by which environmental impacts of industrialisation could be monitored and influenced. CSE's Green Rating Project (GRP) is a civil society initiative to develop an alternative form of governance to control industrial pollution in India.122 In 2003, the CSE astonished the country by giving details about the high levels of toxic pesticides and insecticides in soft drinks and bottled water, which are high enough to cause cancer, damage the nervous and reproductive systems, cause birth defects and severe disruption of the immune system. These startling facts forced the government to constitute a Joint Parliamentary Committee (JPC), only the fourth in post independent India and the first on health and safety of Indians. Again, in 2006, CSE undertook a nationwide study of nearly a dozen soft drink brands and found that little had changed in the intervening period. The study found pesticide residues in all samples. After this, JPC had asked for setting standards for carbonated beverages.123

In April 2004, the Centre, in an article published in Down to Earth stated, "Lies, damned lies and endosulfan", gave detailed information about the manipulation of data and misinformation that was used by the expert group, known as the O P Dubey Committee, to base its conclusion, that "there is no link between the use of endosulfan in PCK (Plantation Corporation of Kerala) plantations and health problems reported from Padre." Consequently, investigations were conducted and it was found that the conclusions were doctored.124

Recently, CSE Pollution Monitoring Laboratory exposed the high levels of antibiotics from the banned chloramphenicol to broad spectrum ciprofloxacin and erythromycin – in almost all brands of honey including leading brands, sold in Delhi. The other significant findings and issues of CSE include the toxic toys, lead in paints, pesticides residue in bloods of Punjab farmers, trans-fat in oils and so on.125

(d) Private Companies:

The deep response of the public towards environment protection has led even the companies to include environment issues in their strategies. They have realised that campaigning for environment issues will enhance their esteem in the public. Further, the companies have recognised that the increasing complexities of environment have

113 great impacts on the sustainability of their businesses. Therefore, it is found that number of companies in India has considered environmental protection as their social responsibility and are thus, campaigning and advertising for it. Further, to motivate the companies, the Energy and Resources Institute (TERI) instituted the TERI Corporate Awards for Environmental Excellence in 2001.126 There are a number of companies that are involved in this area which may be cited as examples:

In 2009, Nokia launched the „take-back‟ programme in four cities to support e-waste recycling. It was a success as the company was able to collect three tonnes of electronic waste consisting of 68,000 old devices including 10,000 mobile handsets, 10,000 batteries, 32,000 chargers, 1,000 headsets, body covers and accessories in about 45 days. Moreover, the company said that it was able to save 100,000 tonnes of packaging material over two years when it decided to cut back on the size of packaging for a few of its models. The company has tied up with NGOs to plant one tree for every handset that is handed in for recycling.127 Nokia has taken up the conservation of Nilgiri Tahr.128

Aircel has started the campaign „Save our Tigers‟, in partnership with World Wildlife Fund, calling for immediate action to protect the national animal. The campaign went on air on January 30, 2009, has a dedicated site (www.saveourtigers.com) where the service provider's brand ambassadors actor Suriya, cricketer Mahender Singh Dhoni and footballer Baichung Bhutia insist that we roar with them for the cause. Similarly, another cellular company „Idea‟ is endorsing to go green and is urging people not to waste paper, with Abhishek Bachchan as their brand Ambassador.129

The electronic company „Panasonic‟ also came up with the environmental initiative in 2009 in India. Further, for spreading environmental awareness, the company has launched „eco ideas‟ campaign all over India. In 2010, it revealed its plans to become the top green innovator in the electronics industry by its centennial anniversary in 2018, by making its products more energy-efficient and by minimising the environmental impact of its operations. The company aims to reduce its carbon dioxide emissions by 120 tonnes compared to the base level in 2006. It also plans to increase the sales of energy systems business to three trillion yen out of the total targeted sales of 10 trillion yen by 2018.130 As part of the programme in

114 India, the company has tied up with the Bangalore-based E-Parisaraa Private Ltd for recycling its products while Panasonic exclusive outlets have been used as collecting points for old televisions. 131

There are other companies also, involved in environment protection, in particular, wildlife. For instance, Tata Chemicals is lending its voice for saving whale sharks and Gir lions. HSBC is involved in turtle conservation. It provides Rs 4 lakh per year for Operation Kachhapa to spread awareness about the conservation of the sea turtle, a project by the Wildlife Protection Society of India (WPSI) and Wildlife Society of Orissa.132

Greenathon:

NDTV with the support of Toyoto started a campaign to save the environment in which they telecasted 24-hour nonstop programming -THE GREENATHON, urging Indian citizens to take a pledge towards a greener tomorrow. Taking forward its 'Open Up Tomorrow, Today' campaign to save our planet. The Greenathon started across the NDTV network on the 7 February 2009. It was inaugurated by Dr. R.K. Pachauri, Nobel-prize winner, Chairman of the Intergovernmental Panel on Climate Change and Director-General of TERI, and Dr. Prannoy Roy, Chairman of NDTV. Popular Indian actress Priyanka Chopra is the brand ambassador of this campaign. The campaign roped in a number of Bollywood celebrities like Shahrukh Khan, Preity Zinta, Aamir Khan, Aishwarya Rai, Madhuri Dixit and many more. The NDTV-Toyota Greenathon in its first year helped raise funds to solar power over 55 villages in India through TERI's Lighting a Billion Lives initiative.133

People from all fields are encouraged to involve in programmes and activities for the protection of the environment. A number of colleges and schools are organising environment programmes, rallies, competitions and activities to enhance awareness and a sense of responsibility among students towards environment. In 2006, the Bharathidasan University in Tiruchi, stepped in to offer MBA in Environmental Management and, in 2008, the University Grants Commission recognised the course under „Innovative Programme' with a grant of Rs.50 lakh.134 Recently, before Diwali, an anti-crackers rally was organised by Kendriya Vidyalaya students in the capital city of Delhi to sensitise residents of adjoining areas about the ill-effects of

115 pollution caused by bursting of crackers.135 The educational institutions have also adopted green technologies in their campuses to promote environmental protection among students. Top educational institutions like Jadavpur University, St Xavier‟s College, Scottish Church College in Kolkata have installed solar power facilities.136 The Indian army, too, got involved in environmental protection. In the 1980s, a comprehensive environmental programme was formulated by the Army which envisages a three-pronged strategy:

1. To educate all ranks to conserve environment.

2. To authorise infrastructure and limited funds available to the Army for eco- generation work on ground.

3. To create environmental cells at all levels of command to provide institutional back-up.137

To further enhance the awareness of public regarding environment, the government also organises rallies and festivals. One of the major environmental film festivals being held in India is the CMS Vatavaran Film Festival initiated in 2002. It is India‟s premier festival on environment and wildlife issues in the country organised by the CMS Environment team. The festival has two different versions (1) competitive festival and (2) travelling festival. The competitive festival is held in every odd year in New Delhi. In the competitive festival more than a 100 green films are screened over a period of five days. Eminent personalities from diverse fields constitute the award jury and the awards are conferred on to the filmmakers in a gala award ceremony. The cash component of the award ranges from Rs. 25,000 to Rs. 1.5 lakh. Five editions of competitive festivals have been organised till date. The sixth competitive festival will be held in November 2011 in New Delhi. In the travelling festival, seminars, symposiums, technical workshops, painting competitions, exhibitions, games, talks and eco-trips are held.138

116

REFERENCES

1 S. P. Das Gupta, „Environmental Science in Ancient India‟, Geographical Review of India, Volume 60, Number 2, 1998, pp. 101- 113. 2 Mahesh Mathur, Legal Control of Environmental Pollution: Jurisprudence and Laws Applicable to Environmental Violation and Prevention, Deep and Deep Publications, New Delhi, 1996, p. 135. 3 Ibid, p. 137. 4 Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India: Cases, Materials and Statutes (Second Edition), Oxford University Press, New Delhi, 2001, p. 23. 5 Madhav Gadgil and Ramachandra Guha, The Use and Abuse of Nature: Incorporating This Fissured Land: An Ecological History of India and Ecology and Equity, Oxford University Press, New Delhi, 2000, p. 137. 6 Madhav Gadgil, „Towards an Ecological History of India‟, Economic and Political Weekly, Volume 20, Number 45/47, 1985, pp. 1909- 1911+1913+1915+1917-1918. 7 Ranabir Chakravarti, „The Creation and Expansion of Settlements and Management of Hydraulic Resources in Ancient India‟, in Richard H. Grove, Vinita Damodaran and Satpul Sangwan (eds.) Nature and the Orient: The Environmental History of South and Southeast Asia, Oxford University Press, New Delhi, 1998, p. 93. 8 Phillippe Cullet and Joyeeta Gupta, „India: Evolution of Water Law and Policy‟, available at http://www.ielrc.org/content/a0901.pdf accessed on 22 November 2010 at 7:21 pm. 9 S. P. Das Gupta, op. cit. 10 Ibid. 11 Ibid. 12 Ibid. 13 Ranabir Chakravarti, op.cit., pp. 95-96.

117

14 Ibid, p. 96. 15 Madhav Gadgil and Ramachandra Guha, op. cit., pp. 88-89. 16 Romila Thapar, Asoka and the Decline of the Mauryas (Second Edition)

Oxford University Press, New Delhi, 1973, p. 264. 17 Ranabir Chakravarti, op.cit., p. 98. 18 Ibid, p. 99. 19 Richard Grove, „Conserving Eden: The (European) East India Companies and Their Environmental Policies on St. Helena, Mauritius and in Western India, 1660 to 1854‟, Comparative Studies in Society and History, Volume 35, Number 2, 1993, pp. 318-351. 20 Aparna Sawhney, New Face of Environmental Management in India, Ashgate Publishing Limited, Hampshire, 2004, p. 125. 21 Madhav Gadgil and Ramachandra Guha, op. cit., p. 116. 22 Phillippe Cullet and Joyeeta Gupta, op. cit. 23 Ibid, pp. 118-120. 24 H. Cleghorn, Forests and Gardens of South India, W. H. Allen, London, p. 60. 25 Mark Harrison, Climates and Constitutions: Health, Race, Environment and British Imperialism in India 1600-1850, Oxford University Press, New Delhi, 1999, p. 21. 26 Jacques Pouchepadass, „Colonialism and Environment in India: Comparative Perspective‟, Economic and Political Weekly, Volume 30, Number 33, 1995, pp. 2059-2067. 27 Richard Grove, op.cit. 28 S. Shyamsunder and S. Parameswarappa, „Forestry in India: The Forester's View‟, Ambio, Volume 16, Number 6, 1987, pp. 332-337. 29 Ravi Rajan, „Imperial Environmentalism or Environmental Imperialism? European Forestry, Colonial Foresters and the Agendas of Forest Management in British India 1800-1900‟, in Richard H. Grove, Vinita Damodaran and Satpul Sangwan(eds.) Nature and the Orient, op. cit., pp. 343-344. 30 Ibid, p. 347

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31 Madhav Gadgil and Ramachandra Guha, op. cit., p. 121. 32 Ibid, pp. 122-123. 33 Ravi Rajan, op. cit., p. 352. 34 Joseph Sramek, “Face Him Like a Briton”: Tiger Hunting, Imperialism, and British Masculinity in Colonial India, 1800–1875‟, Victorian Studies, Volume 48, Number 4, 2006, pp. 661-680. 35 Richard H. Grove, Ecology, Climate and Empire: The Indian Legacy in Global Environmental History, 1400-1940, Oxford University Press, New Delhi, 1998, p. 19. 36 Ravi Rajan, op. cit., p. 352. 37 http://indiacode.nic.in/ accessed on 22 November 2010 at 6:32 pm. 38 First Five Year Plan, Planning Commission, Government of India, New Delhi, p. 1. 39 Ibid. 40 http://planningcommission.nic.in/aboutus/history/func.htm accessed on 17 January 2011 at 3:08 pm. 41 http://www.planningcommission.gov.in/aboutus/index.html accessed on 17 January 2011 at 3:09 pm. 42 H.P. Chattopadhyay and Indu Baghel, Indian Administration (Volume I) Global Vision Publishing House, New Delhi, 2009, p. 211. 43 O. P. Dwivedi, India‟s Environmental Policies, Programmes and Stewardship, Macmillan Press, London, 1997, p. 64. 44 Ravindra N. Saxena and Sangita Saxena, The Handbook of Environment and Forest Legislations, Guidelines and Procedures in India (with special reference to mining) Green Publishing House, New Delhi, 2003, pp.139-141. 45 O.P. Dwivedi, op. cit., p. 64. 46 Sixth Five Year Plan, Planning Commission, Government of India, New Delhi, p. 343. 47 Ibid, p. 351. 48 Ibid, p. 343. 49 Ibid, pp. 343-348. 50 Ibid, pp. 348-349.

119

51 Ibid, p. 349. 52 Ibid, pp. 349-350. 53 O.P. Dwivedi, op. cit., pp. 64-65. 54 Seventh Year Plan (Volume II), Planning Commission, Government of India, New Delhi, p. 385. 55 Ibid, p. 388. 56 Ibid, pp. 388-393. 57 Ibid, p. 394. 58 Eighth Five Year Plan (Volume II), Planning Commission, Government of India, New Delhi, p. 95. 59 Ibid, p. 96. 60 Ibid. 61 Ibid, p. 97. 62 Ibid, p. 92. 63 Ninth Five Year Plan (Volume II) Planning Commission, Government of India, New Delhi, p. 936. 64 Ibid. 65 Ibid, pp. 937-938. 66 Ibid, p. 940. 67 Ibid, p. 941. 68 Ibid. 69 Ibid, p. 942. 70 Ibid, pp. 942-944. 71 Ibid, p. 944. 72 Ibid, pp. 946-947 73 Ibid, p. 947. 74 Ibid, pp. 949-951. 75 Eighth Five Year Plan, op.cit., p. 100. 76 Ninth Five Year Plan, op.cit., p. 935. 77 Ibid, p. 930. 78 Ibid, p. 951. 79 Ibid, p. 952.

120

80 Ibid, pp. 955-957. 81 Ibid, pp. 957-960. 82 Ibid, pp. 961-966. 83 Tenth Five Year Plan, Volume 2, Planning Commission, Government of India, New Delhi, p. 1055. 84 Ibid, p. 1073. 85 Ibid, p. 1074. 86 Ibid. 87 Ibid, p. 1075. 88 Ibid. 89 Eleventh Five Year Plan (Volume II) Planning Commission, Government of India, New Delhi, p. 207. 90 Tenth Five Year Plan, op.cit., p. 1059. 91 Ibid, p. 1061. 92 Ibid, pp. 1062-1063. 93 Ibid, pp. 1064-1065. 94 Ibid, pp. 1066-1067. 95 Eleventh Five Year Plan, op.cit., p. 191. 96 Tenth Five Year Plan, op.cit., p. 1076. 97 Eleventh Five Year Plan, op.cit., p. 217. 98 Ibid, p. 191. 99 Ibid, p. 192. 100 Ibid, p. 195. 101 Ibid. 102 Ibid, p. 196. 103 Ibid, p. 197. 104 Ibid, pp. 207-214. 105 Ibid, Volume 3, pp. 65-76. 106 Ibid, Appendix. 107 Uma S. Nabhi, „Environmental Movements in India: An Assessment of their Impact on State and Non-state Actors‟, India Quarterly, Volume 62, Number 1, 2006, pp. 123-145.

121

108 Ibid. 109 Ibid. 110 http://unu.edu/unupress/unupbooks/80a03e/80A03E08.htm accessed on 21 January 2011 at 9:56 pm. 111 Ibid. 112 Ibid. 113 Uma S. Nabhi, op.cit. 114 Shepard Krech, John Robert McNeill, Carolyn Merchant, Encyclopedia of World Environmental History: F-N, Volume 2, Routledge, London, 2004, pp. 869-870. 115 Ajoy Ashirwad Mahaprashasta, „Call of the River‟, Frontline, Volume 27, Number 23, 2010, pp. 29-32. 116 World Wide Fund for Nature-India ENVIS Centre (NGOs, Parliament & Media), Volume 6, Number 19, October- December 2006, p. 3. 117 S. Viswanathan, „Growing Awareness about Environment‟, The Hindu, 28 June 2010, available at http://www.hindu.com/2010/06/28/stories/2010062851060900.htm accessed on 20 January 2011. 118 World Wide Fund for Nature-India ENVIS CENTRE (NGOs, Parliament & Media), Volume 5, Number 17, p. 9. 119 http://www.supremecourtofindia.nic.in/speeches/speeches_2006/E-APJA.pdf accessed on 2 November 2010 at 10: 47 pm. 120 Ibid. 121 http://www.cseindia.org/node/214 accessed on 3 November 2010 at 6:47 pm 122 Fighting for a Better, Cleaner World, India Together, April 2005, available at http://www.indiatogether.org/2005/apr/env-csenarain.htm accessed on 3 November 2010 at 6:45 pm 123 http://www.cseindia.org/node/527 accessed on 3 November 2010 at 8:48 pm. 124 Press Release, „Disclosed: Lies about Endosulfan‟, 5 April 2004, available at http://www.cseindia.org/userfiles/endosulfan-pressrelease.pdf accessed on 3 November 2010 at 7:11 pm.

122

125 Press Release, CSE Lab Study: Busting the Myth about „Pure and Natural‟ Honey, 15 September 2010, New Delhi, available at http://www.cseindia.org/node/1728, accessed on 3 November 2010 at 8:38 pm. 126 http://www.teriin.org/awards/ accessed on 3 November 2010 at 8:34 pm. 127 „Hand in Old Phone, Nokia will Plant a Tree‟, The Hindu, available at http://www.thehindubusinessline.com/2009/06/06/stories/200906065094110 0.htm accessed on 3 November 2010 at 10:40 pm. 128 Unit Prasanna Mukherji & Krishnendu Mukherjee, „Beyond the Tigers: Corporates Turn Green Crusaders‟, The Times of India, 21 October 2010, New Delhi (NCR), p. 23. 129 Sangeetha Devi Dundoo, „Stripey wins Hearts‟, The Hindu, 14 February 2010, available at http://www.thehindu.com/life-and-style/society/article105969.ece accessed on 3 November 2010 at 10:53 pm. 130 „Panasonic to Invest Rs 1,000 cr in New Plant‟, Business Line, 12 October 2010, available at http://www.thehindubusinessline.com/2010/10/12/stories/201010125285030 0.htm accessed on 3 November 2010 at 11:03 pm. 131 „Panasonic to Extend Recycling Programme‟, 25 September 2010, The Hindu, New Delhi, available at http://www.thehindu.com/business/companies/article795483.ece accessed on 3 November 2010 at 11:08 pm. 132 Unit Prasanna Mukherji & Krishnendu Mukherjee, op.cit. 133 http://green.ndtv.com/Greenathon-campaign.aspx accessed on 21 January 2011 at 11:15 pm. 134 R. Krishnamoorthy, „The Need of the Hour is Environment Management‟, 21 June 2010, The Hindu, available at http://www.hindu.com /edu /2010/06/21/stories/2010062150070400.htm accessed on 21 January 2011 at 11:14 pm. 135 „School Children Pitch in for an Eco-friendly Diwali‟, The Hindu, New Delhi, 3 November 2010, p. 4. 136 „Colleges in Kolkata Run on Solar Power‟, The Pioneer, 20 September 2010, New Delhi, p. 6.

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137 Seveshree Mohapatra, „Conservation of the Environmental and Indian Army‟, Kurukshetra, Volume 45, Number 4 & 5, 1997. 138 http://cmsvatavaran.org/indexinner.php?cat=home%20&%20id=30 accessed on 5 November 2010 at 5:12 pm.

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PRINCIPAL AREAS OF ENVIRONMENTAL POLICY

There are various dimensions and areas of the deteriorating environment and equally numerous are the dimensions and areas of environmental policies. The main areas of environmental policy discussed in reference to India are enumerated below:

1. WATER

Water is one of the basic essentials of life. We, and all other living beings, use water directly or indirectly for survival on this planet. It produces food and fibre to meet the basic needs for human survival and well-being as well as helps to maintain the balance in the eco-system. It is a renewable but limited natural resource. Globally, water covers about 70% of the earth‘s surface and fresh water accounts for only 2.7% of the earth‘s surface.1 But nearly the entire volume of this is locked in the masses of ice-caps, glaciers and clouds. Thus, in spite of large amount of water on the earth‘s surface, living organisms are left with only a limited amount of water. Moreover, much of what is left is often not potable and is unclean. The World Health Organisation (WHO) estimates that almost half of the world‘s population is suffering from debilitating water-borne or water-related diseases, which account for an estimated five million deaths each year.2 In India too, the figure is not satisfactory. Barely 10-12% of the population get clean drinking water, 80% uses polluted water and the rest are left with no source. About 3 million people in India get affected with water- borne diseases.3

The policies regarding water are not limited to its prevention from being polluted but it also includes its proper management, conservation, utilisation and distribution to all the people at all levels. The right to access water, maintenance of water quality and disposal of water waste are also a part of water related policies. However, more

125 notable policies in India have been made with focus on ways to prevent water from getting polluted.

Water pollution has been defined as, ―the change in the composition of water in such a way, that it becomes not only safe but also wholesome for human consumption‖.4 Section 2 (e) of the Water Pollution Act, 1974 defines water pollution as ―contamination of water or such alteration of the physical, chemical or biological changes in water or such discharge of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may be the case, or is likely to create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses or to the life and health of animals or plants or of aquatic organisms.‖5

The pollution of water has been so devastating that it has become a cause of diseases among 42% humans and animals.6 The effects of water pollution are not only devastating for people but also for animals, fish, birds and crops. Contaminated water destroys aquatic life and reduces its reproductive ability. Also, the heat released by industries upsets the natural balance of water ecosystem and destroys aquatic life. Moreover, farmers complain that the yields have gone down, earlier the land which used to give 6-7 tonnes of jowar, now produces only 1.8 to 2 tonnes.7 Apart from this, it cuts down the availability of the water resources of the country. The World Bank has warned that India is on the brink of a severe water crisis.8

Man has been polluting water since ages but the rapid growth of industrialisation, urbanisation and population has exceeded the boundaries of the replenishing process of nature. The main sources of water pollution are the sewage and industrial wastes discharged into rivers. Moreover, there are inadequate facilities to treat the waste water. According to scientists at the National Environment Engineering and Research Institute (NEERI), about 70% of the available water in India is polluted.9 And only about 10% of the waste water generated is treated; the rest is being discharged as it is into water bodies.10 Out of India's 3,119 towns and cities, just 209 have partial treatment facilities, and only 8 have full wastewater treatment facilities.11 Water pollution can affect both surface and groundwater; however surface water is more likely to be polluted, but the pollution of groundwater is not any less severe. The problem of groundwater pollution by heavy metals is such a

126 serious issue that it can be easily understood by the fact that the town of Ranipet, because of groundwater pollution, is in the list of ‗Top 10 Worst Polluted Places of the world‘.12

All these problems related to water led the government of India to take steps, from time to time for preventing water pollution. Subsequently, a number of laws, Acts, and regulations have been undertaken by the government for the protection of water resources. The primary responsibility for issues of water belongs to individual states. Since the Constitution provides for the continuation of all laws in force at the time of its adoption, the scheme introduced in the Government of India Act, 1935, where water is a state subject, is still followed. Acts such as the 1931 Irrigation Act has been maintained in Madhya Pradesh.13 But now the Ministry of Water Resources (MOWR) is the principal agency responsible for water management in India. It oversees the implementation of water policies such as resource development, exploitation, interstate conflicts, water distribution and so on.

The two main Acts regarding water pollution passed by the Government of India are:

 The Water (Prevention and Control of Pollution) Act, 1974.

 The Water (Prevention and Control of Pollution) Cess Act, 1977.

The Water (Prevention and Control of Pollution) Act of 1974 was the first and principal policy concerning the prevention and control of water pollution in India established under Article 252 of the Constitution of India. This Act was enacted ―to provide for the prevention and control of water pollution and maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid, of Boards for the prevention and control of water pollution, for conferring on and assigning to such Boards, powers and functions relating thereto and for matters connected therewith.‖ Further, the Act constituted and defined the functions and powers of the Central Pollution Control Board and State Boards; accounts, funds and audit; and penalties and procedures related to it. It has defined some significant terms such as pollution, stream, trade effluents, sewer, occupier, outlet and so on. The Act is supported and followed by the Water (Prevention & Control of Pollution) Rules, 1975 and the Water (Prevention &

127 Control of Pollution (Procedure for transaction of Business) Rules, 1975. Later, it was amended in 1978 and 1988.

The Water (Prevention and Control of Pollution) Cess Act of 1977 was adopted to provide funds for the central and state pollution control boards. The Act empowers the Central government to impose a cess on water consumed by industries listed in Schedule I of the Act. Industries and local authorities that are specified are subject to the cess if they use water purposes listed in Schedule II of the Act. Some of the industries which are applicable to the water cess are cement mills, sugar mills, thermal power plants, distilleries, fertilisers, oil refineries and many more. This Act was amended with the Water (Prevention and Control of Pollution) Cess (Amendment) Act, 2003.

However, the issues of water are related not only to the prevention and pollution of water, there are number of other related issues as well such as, distribution, utilisation and sustainable management of water for which different policies have been formulated by the Government of India. There have been cases of conflict and communal violence regarding dams, distribution and access of water, water quality and displacements. Therefore, policies are made in these areas also. The other Acts relating to water are:

 Inter-State Water Disputes (ISWD) Act, 1956.

 River Boards Act, 1956.

 Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976.

 Merchant Shipping (Amendment) Act, 1979.

 Brahmaputra Board Act, 1980.

 Inland Waterways Authority of India Act, 1985.

 National Waterway (Kollam-Kottapuram Stretch of West Coast Canal and Champakara and Udyogmandal Canals) Act, 1992.

 The Indian Maritime University Act, 2008.

128  The National Waterway (Talcher-Dhamra Stretch of Rivers, Geonkhali- Charbatia Stretch of East Coast Canal, Charbatia-Dhamra Stretch of Matairiver and Mahanadi Delta Rivers) Act, 2008.

 The National Waterway (Kakinada-Puducherry Stretch of Canals and the Kaluvelly Tank, Bhadrachalam-Rajahmundry Stretch of River Godavari and Wazirabad-Vijayawada Stretch of River Krishna) Act, 2008.

 The Betwa River Board (Amendment) Act, 1993.

 The Inland Waterways Authority of India (Amendment) Act, 2000.

The most important policy regarding water resources is the National Water Policy, 1987. It developed as a result of the growing demands of the increasing population, uneven distribution of precipitation, economic and development activities, unsustainable use and the importance of maintaining ecology. However, since the water policy, a number of new issues and challenges emerged regarding water resources. Therefore, it was revised in 2002. But it has been severely criticized by the environmental groups on the ground of not involving the local community in the management of water resources.

A number of international issues regarding water allocation and distribution have been surfaced with neighbouring nations. With Bangladesh, the Joint Rivers Commission was established in 1972 to solve water disputes.14 However, these treaties have not fully resolved the problems. The major water policies at international level are:15

 The Indus Waters Treaty - India and Pakistan (1960).

 The Indo Nepal Treaty on the Integrated Development of Mahakali River (1996).

 The Ganges Water Sharing Treaty with Bangladesh: Sharing of Lean Season Flow of Ganga at Farakka Barrage in India (1996).

Subsequently, these Acts have led to a number of measures by the government at the national and local levels in the sector of water. The government formed various water management systems and authorities in India. These include Central Water

129 Commission, Central Ground Water Board, National Water Development Agency, National Projects Construction Corporation Limited etc. for efficient water resource management. Though, 40% of the wastewater generated by Indian most polluting industries comes from small size industries, but these small scale industries cannot afford to install standard effluent treatment plants (ETP). So the government promoted common effluent treatment plants (CETPs) scheme, allowing small industries to gather in order to jointly treat their effluents. The first CETP in India was constructed in 1985 in Jeedimetlha near Hyderabad, Andhra Pradesh. In 1999, 82 CETPs had been set up around the country.16. Further, the National River Conservation Directorate was formed with the charge of coordinating several river conservation plans. It covered rivers like Ganga, Yamuna, and Gomati etc. The Accelerated Rural Water Supply Programme (ARWSP) was introduced in 1972-73, renamed as the Rajiv Gandhi National Drinking Water Mission (RGNDWM) in 1991, was another mission introduced by the government to accelerate the pace of coverage of drinking water. The government also set up several water quality monitoring stations. There are 1,019 stations in 27 States and 6 Union Territories covering 200 rivers, 60 lakes, 5 tanks, 3 ponds, 3 creeks, 13 canals, 17 drains and 321 wells.17 Presently, the inland water quality monitoring network is operated under three-tier programme i.e. Global Environment Monitoring System (GEMS) and Monitoring of Indian Aquatic Resources (MINARS) and Yamuna Action Plan.18 In the context of ground water, the central government established the Central Ground Water Authority to regulate and control development and management of groundwater resources. States have been slow to respond to water problems but recently a number of Acts were adopted.19 The pollution of coastal water has also attracted the attention of Central Pollution Control Board (CPCB). Under the programme, Coastal Ocean Monitoring and Prediction System (COMPS), the Department of Ocean Development is monitoring the coastal waters of the country, which identified some areas of concern which required continued intensive monitoring.20

Furthermore, for effectiveness of policies, the government has fostered the involvement of local people in the irrigation and drinking water. Water User Associations Schemes (WUAs) have been introduced in different forms in different parts of the country. The Association offers and receives benefits. In addition to the setting up of WUAs, the Union government has proposed a scheme known as Swajaldhara, which proposes to foster new types of intervention to ensure better

130 drinking water availability in villages. The guidelines on Swajaldhara are the direct outcome of a World Bank-sponsored pilot project called Swajal and adopt the same philosophy.21

This existing legal framework concerning water is complemented by the aspect of human rights too. While the Constitution does not specifically recognize a fundamental right to water, court decisions deem such a right to be implied in Article 21 (right to life). In Subhash Kumar v. State of Bihar, 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‘. In the Sardar Sarovar case, the Supreme Court went even further and directly derived the right to water from Article 21. It stated that ‗[w]ater is the basic need for the survival of human beings and is part of the right to life and human rights as enshrined in Article 21 of the Constitution of

India. However, its implementation through policies and Acts is not as advanced.22

The Supreme Court in a judgment on public interest litigation on the right to safe drinking water, directed the central government to draw up and implement by 2015, a programme to interlink major rivers. Subsequently, Prime Minister Vajpayee announced the government‘s decision to act on the Supreme Court directive and appointed a special task force to ensure implementation of the project by 2015.23

Ganga Action Plan

One of the worst cases of water pollution in India is that of Ganga river. The river has become so polluted, mainly because of sewage, that its survival seems difficult. According to environmentalists, about 90 per cent of pollution of the river is caused by sewage generation while only about 5 to 6 per cent can be blamed on bathing and other activities.24 Kanpur alone dumped 274.3 million litres of new sewage into Ganga river every day. Drinking water supplied in eleven cities of UP was not fit for human or even animal consumption and specifically 98% residents of Varanasi were suffering from stomach ailments. Apart from one million litres of untreated water going into the river each day, 42000 bodies were cremated in Varanasi each year further deteriorating its quality. Another 3000 unclaimed bodies and 9000 dead cattle were being thrown into the Ganga every day from Varanasi alone.25 According to a survey by a local group, the Eco-Friends Society, over 100 human and animal

131 bodies can be found floating, in various stages of decay, over a 10-km stretch near Kanpur at any given time.26

Consequently, the Government of India announced the new plan of cleaning the Ganga in April 1985. The CGA (Central Ganga Authority) in February 1985, renamed as the NRCA (National River Conservation Authority) in September 1995, under the chairmanship of the Prime Minister was constituted to oversee the related policies and programmes.27 With the closure of the plan in 2000 and after an expenditure of roughly 50 crore rupees, the plan has been a failure. The pollution levels in the Ganga are as high as ever. Veer Bhadra Mishra, president of the Sankat Mochan Foundation, Varanasi said:

“20 years after we started our campaign, I still feel that we have not been able to achieve anything. Our aim is still what it was -- to clean the Ganga,”28

It has been well said by U. N. Mahed I. S. E. (Retd.) in his book ‗Water Pollution and Disposal of Waste-Water on Land‘ that "the crucial question is not whether developing countries can afford such measures for the control of water pollution but it is whether they can afford to neglect them.‖ There is an urgent need to take precautions for water pollution in order to attain development. Apart from this, the river water dispute has also become a matter of concern.

2. AIR

Air is the most basic essentials of life without which, for even a few minutes, a man cannot survive. A man breathes around 22,000 times a day, inhaling 16 kg of air.29 Despite air being so essential for survival, man has not stopped himself from deteriorating it. Air pollution is more serious than water pollution as it tends to spread more easily over wide areas unlike water pollution which generally remains localised. Man has been polluting the air since ages, but due to industrialisation and urbanisation and the consequent rise of problems such as, acid rain, smog, ozone depletion and global warming, has led to the realisation of the grave situation. Air is a mixture of many gases and moisture but the inclusion of the injurious and unfavorable elements known as ‗pollutants‘ have started the problem. The common pollutants of air are carbon monoxide, carbon dioxide, lead, sulphur oxides, nitrogen

132 oxides, dust, and many others. Some pollutants are directly injurious as they pollute the air we breathe while others obstruct or disturb the incoming and outgoing radiation or vapors causing global warming. Automobiles and industries are considered as the main polluters of air, while nuclear materials released in the air are found to be the most hazardous. Air pollution has deadly effects on humans, animals, plants and natural resources. They give rise to diseases such as lung cancer, bronchitis, emphysema and asthma. Three million premature deaths in the world take place each year due to outdoor and indoor air pollution, the highest number are assessed to occur in India.30 In the four metropolitan cities of India, Suspended Particle per Metre (SPM) is 360 mg/m3 compared to the WHO standard of 150.31

Therefore, in response to these problems, many Acts and regulations have been formulated with provisions for prevention and control of air pollution. While Air (Prevention and Control of Pollution) Act, 1981 deals exclusively with this issue, the other Acts contain some provisions for the prevention of air pollution in them. In all, the significant policies regarding air pollution formulated by the Government of India are as follows:-

 Air (Prevention and Control of Pollution) Act, 1981

 The Indian Boilers‘ Act, 1923

 The Factories Act, 1948

 Motor Vehicles Act

 Local Municipal Acts

 Ozone Depleting Substances (Regulation and Control) Rules, 2000

Air (Prevention and Control of Pollution) Act, 1981:

This is the main law enacted for the prevention and control of air pollution in India. This Act came into existence under Article 253 of the Constitution of India i.e. to make laws implementing decisions taken at international conferences and in specific, United Nations Conference on the Human Environment in 1972.32 Since the British period, steps were taken by the government to control air pollution but these policies were not exclusively for the prevention of air pollution. The Acts that

133 were made with respect to factories, industries and municipalities failed to deal with them. Therefore, the need for a comprehensive policy regarding air pollution was felt and hence, enactment of Air (Prevention and Control of Pollution) Act in 1981. This Act was a major step in the direction of preservation of air quality and control of air pollution. This Act was subsequently amended in 1987.

Thus, the Air (Prevention and Control of Pollution) Act provides for the prevention, control and abatement of air pollution, for the establishment, with a view to carrying out the aforesaid purposes, of Boards, for conferring on and assigning to such Boards powers and functions relating thereto, and for matters connected therewith. The first chapter deals with the relevant definitions such as air pollutant, air pollution, approved appliances, automobiles, chimney, emission, industrial plants and so on. It defines ‗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; and defines ‗air pollution‘ as the presence in the atmosphere of any air pollutant. Further, it adopts the Central Water Board and State Water Boards for its own purposes. Chapter 3 of the Act deals with the functions of the Boards such as advising, planning, coordinating activities, providing assistance, establishing standards for air quality and laboratories, inspect air pollution areas and many more related to air quality and pollution. Moreover, it directs against specified industries such as textile, power plants, coal industries etc. for pollution of air. Following this, The Air (Prevention and Control of Pollution) Rules, 1982 and The Air (Prevention and Control of Pollution) (Union Territories) Rules, 1983 were made.

It is through this Act, the Central Pollution Control Board notifies different standards such as the National Ambient Air Quality Standards in 1994,33 Ambient Air Quality Standard for Ammonia (NH3) in 1998 34 etc.

The Indian Boilers Act, 1923:

This policy came into existence before independence, with the aim to regulate the use of steam boilers and subsequently control explosion of boilers and control air pollution. It lays down standards of construction, maximum pressure, registration of

134 steam boilers and their regular inspection.35 It stipulates about the area of application, registration, production, transfer and renewal of certificates, provisional orders, powers of entry, reports of accidents, appeals to appellate authority and penalties, recovery of fees and other related issues, regarding boilers. It also provides policies for the appointments of different categories of inspectors who inspect the boilers. This Act has constantly been amended, the latest being in 2007 as The Indian Boilers (Amendment) Act, 2007. This Act provides for inspections also during manufacture and erection of boilers, to bring uniform standards as to avoid inter-state disputes and provide adequate trained manpower and laboratory facilities for inspection of boilers during their manufacture and use.36

The Factories Act, 1948:

Since the factories are a major source of air pollution, there are some provisions in this Act regarding the prevention and control of pollution. It contains provisions for the approval, licensing, and registration of factories; dangerous dusts and fumes; artificial humidifiers; control of explosives and inflammable dusts, etc. Chapter 3 of the Act deals with ‗health‘.37 Section 11 to 15 deals with the cleanliness; disposal of wastes and effluents; ventilation and temperature; dust and fumes; and artificial humidifications. Further, Chapter 11 of the Act deals with the penalties and procedures including offences, liability, limitations of prosecutions and jurisdictions of courts regarding pollution.

Local Municipal Acts:

Some provisions regarding air pollution are also provided in the legislations enacted at the local level. Some of the significant local bodies that have enacted such legislations are:

1. Delhi Municipal Corporation, 1957

2. Gujarat Municipalities Act, 1963

3. Punjab Municipal Act, 1911

Delhi Municipal Corporation Act, 1957, in this area, deals with the regulation of smoke in factories, workshop and trade premises. Section 206 and 221 of the Gujarat Municipalities Act empowers the municipality to deal with air pollution by giving notices to industries causing excessive smoke and indulging in trade activities that

135 pollute air. The Punjab Municipal Act, 1911 and Haryana Municipal Act, 1973 regulates trades which are hazardous to air. 38

Since air pollution is mainly the result of industrialisation and urbanisation, the problems also tend to exist in all the major urban centers of the world including in India. Vehicular emissions and industrial and thermal power outlets are the major contributors to air pollution in India, therefore, most measures for air pollution have been taken by the Government of India in this area. Apart from this, the unplanned development, high influx of population to urban areas and increase in consumption pattern has further contributed to the problem. The response of Government of India in reducing air pollution can be discussed under the following headings:

National Air Quality Monitoring Programme (NAMP):

To control air pollution, the government, more specifically, the Central Pollution Control Board (CPCB) established National Ambient Air Quality Monitoring Programme (NAMP) in 1982.39 Since then, the number has increased to 342 stations spread over 127 cities/towns distributed over 26 states and 4 Union Territories. The main purpose of the NAMP is to determine the status and trends in the ambient air quality. The monitoring is being carried out with the help of Central Pollution Control Board; State Pollution Control Boards; Pollution Control Committees; and the National Environmental Engineering Research Institute 40 At the state level, many state boards have setup for their own Ambient Air Quality Monitoring (AAQM) programme. The monitoring is carried out round the clock (4-hourly sampling for gaseous pollutants and 8-hourly sampling for particulate matter) with a frequency of twice a week, to have 104 observations in a year.41 A total of 33 Continuous Ambient Air Quality Monitoring Stations (CAAQMS) have been installed in Delhi (5), Bangalore (5), Chennai (5), Sholapur (1), Hyderabad (1), Kolkata (2), Mumbai (2), Chanderpur (1), Durgapur (1), Haldia (1), Howrah (1), Ahmedabad (1), Pune (1), Ghaziabad (1), Lucknow (1), Cuddalore (1), Ranipet (1), Tuticorin (1), Vadodara (1).42

136 Action Plan for 16 Cities:

On the orders of the Supreme Court, sixteen cities have been identified for preparation of Action Plans for improvement of the ambient air quality.43 Out of these, Action Plans for seven cities, namely, Ahmadabad, Kanpur, Sholapur, Lucknow, Bengaluru, Chennai and Hyderabad are being analyzed by the Environment Pollution (Prevention & Control) Authority (EPCA). Action Plans for Kolkata and Mumbai are being analysed by the respective High Courts/State Pollution Control Boards. The Action Plans for the remaining seven cities, namely, Agra, Jharia, Varanasi, Faridabad, Patna, Jodhpur and Pune are being reviewed by the Ministry of Environment & Forests.44

Source Apportionment Study:

Due to the complexity of air polluting sources, apportionment of contribution to ambient air pollution from these sources is important for planning cost effective pollution control strategies. In view of this, a study on ―Air Quality Assessment, Emission Inventory/Source Apportionment Studies for Indian Cities‖ has been undertaken by the government. The objective of the frame work for Source Apportionment Studies (SAS) include preparation of emission inventory, emission profile monitoring of ambient air quality, assessment of data and its authentication and source apportionment of RSPM (PM10) using factor analysis and reception modelling. Source apportionment studies have been initiated in six cities viz. Delhi, Bengaluru, Pune, Kanpur, Mumbai and Chennai involving institutions such as; National Environmental Engineering Research Institute (NEERI) in Nagpur, the Energy and Resources Institute (TERI) in New Delhi, Indian Institute of Technology (IIT) in Chennai, Automotive Research Association of India (ARAI) in Pune and Indian Institute of Technology (IIT) in Kanpur. Further, for guidance, a National level Steering Committee under the chairmanship of Secretary (MoEF) has been constituted.45

137 Industry:

The CPCB has laid down the maximum permissible limits for different pollutants for many categories of industries that contribute to air pollution as notified by MoEF under the Environment (Protection) Act 1986. Submission of an environmental statement by polluting units to the concerned State Pollution Control Boards has been made mandatory under the Environment (Protection) Act, 1986. Further, a district-wise Zoning Atlas Project has been taken by the CPCB in order to delineate the areas that are suitable for industrial activities. Various pollution prevention technologies and less waste or no waste technologies are being developed and recommended to the industries by the government to reduce pollution.46 24 critically polluted areas have been identified. In all Action Plan has been formulated for restoration of environmental quality in these areas. The Ministry of Environment and Forests has made it mandatory for thermal power plants located beyond 1000 kms from the coal pithead or in urban, ecologically sensitive or critically-polluted areas, to use beneficiated/ blended coal containing ash not more than 34%, with effect from June 2002.47

Transport:

The Government of India has also taken measures in transport sector to reduce air pollution as this is a major source of pollution. A Delhi based NGO, Centre for Science and Environment has depicted that the emissions of carbon dioxide on Indian roads is expected to reach a value of 1,212 million tonnes during 2035 from a value of 208 million tonnes during 2005.48 The Ministry of Petroleum and Natural Gas has been involved in policies regarding pollution from automobiles. The mass emission standards for new vehicles were first notified in the year 1991 in India under the Environment Protection Act of 1986, the Motor Vehicles Rules, and the Air Act. It was introduced in 1996. Diesel and gasoline fuel quality with respect to environment related parameters was notifies for the first time in April 1996. On 1st April 1999, the specifications for 2T oil became effective. Sale of loose 2T oil was banned from December 1998 in Delhi and Kolkata. CNG vehicles were introduced in Delhi and Mumbai. Presently, there are 80,000 vehicles in Delhi and 23,000 in Mumbai. Idling emission norms have been notified for in-use vehicles. Pollution Under Control (PUC) certificates are issued for adherence to idling norms every 3-6 months.

138 The Ministry of Petroleum and Natural Gas enunciated an Auto Fuel Policy (2002) which aims to comprehensively and holistically address the issues of vehicular emissions, vehicular technologies and auto fuel quality in a cost-effective manner while ensuring the security of fuel supply. As per the Policy, Bharat Stage-II norms for new vehicles have been introduced throughout the country from April 1, 2005.49 However, in the case of the NCR, the norms were brought forward on 1 June 1999 and 1 April 2000 for Euro I and Euro II, respectively.50 EURO-III equivalent emission norms for all new vehicles, except 2-3 wheelers, have been introduced in all major cities from April 1, 2005. To meet Bharat Stage-II, EURO-III and EURO- IV emission norms, matching quality of petrol and diesel is being made available.51

Other measures include bans on commercial vehicles of more than 15 years old, a ban on the registration of new auto-rickshaws with front engines, replacement of all pre-1990 autos and taxis with new vehicles using clean fuels; and the removal of 8 year old buses from the roads unless they use CNG or some other clean fuel. It is also planned that all buses in Delhi are to switch over to CNG instead of diesel by 31 March 2001.52

At the international level, the pollution of the air has led to the development of problems globally such as climate change, global warming and ozone layer depletion. India has accepted Kyoto Protocol in August 2002 with the objective to fulfill requirements of Clean Development Mechanisms (CDMs) i.e. to reduce emissions of Greenhouse Gases by an average of 5.2% below 1990 levels during 2008-2012. Under this initiative a National Clean Development Mechanism has been created in 2003 by the Cabinet.53 The Government of India is also involved in implementing a range of policies to mitigate as well as adapt to climate change. The National Action Plan on Climate Change (NAPCC) was released by Prime Minister Manmohan Singh on 30th June 2008 to outline a strategy to adapt to climate change and enhance the ecological sustainability of India‘s development.54 Recently, National Workshop of the Indian Network for Climate Change Assessment (INCCA) was held on 11 May 2010 attended by over 82 scientists and chaired by the Minister for Environment & Forests, Jairam Ramesh.55 A Report of India's GHG Emissions was released, providing the fact that GHG emissions fell by 30% during 1994-2007, making India to become the first developing country to publish such updated numbers.56

139 Judiciary Intervenes:

The Supreme Court has been playing a significant role in the prevention of air pollution. The passing of the order by the Supreme Court for converting all public transport vehicles of Delhi to compressed natural gas in July 1998 was an important measure to control air pollution in Delhi. It set 31 March 2001 as the deadline for converting the entire fleet with single-mode CNG kits. Further, the SC gave directives that more than 2000 pre-1990 modules of taxis and auto-rickshaws had to be phased out by 31 March 2000 and an equal number of post-1991 models had to be phased out by 31 March 2001.57

As a result of these measures taken by the government, some cities have witnessed decline in air pollution levels. According to a World Bank study, Delhi, Mumbai, Kolkata, Ahmadabad and Hyderabad have seen about 13,000 less premature deaths from air pollution related diseases.58

3. NOISE

Ours is a noisy age, everything is done with pomp and show, making a lot of noise. From traveling, to social functions and celebrations, every activity is done sans silence. When we travel, our mode of transportation makes noise, when we attend any gathering such as marriages, parties; programmes such as akandpaths, and celebrate in discos, all kinds of loud noises are made. Paradoxically, man cannot live without sound for it is a source of communication. But when these sounds becomes unwanted and disturb the normal routine functioning of man, then it is termed as noise. In other words, noise is sound but without agreeable quality, or as an unwanted or undesired sound 59 or a wrong sound at wrong place at the wrong time.60 Even a pure musical tone can be perceived as a noise when it is loud or of high pitch.61 In all, the major sources of noise pollution are industries, construction work, road traffic, trains, loudspeakers, festivals and aircrafts. However, noises cannot be measured in terms of annoyance or disturbance. For instance, a particular loud music may be considered melodious by an appreciative listener, but at the same time, it may irritate the other listener.62 Thus, when the sound becomes irritating or annoying or unbearable, then it is termed as noise pollution. Unlike other forms of pollution which can be measured through the amount of material introduced in the

140 environment, there is no such criterion to measure the harmful levels of noise. The only loose criterion is decibels. WHO has fixed 45 decibels as the safe noise level for a city, though the four metropolitan cities of India usually registered an average of more than 90 decibels, while Mumbai is rated as the third noisiest city in the world.63

Noise impairs the health of people psychologically, physiologically and behaviorally. It affects the hearing capacity, efficiency, concentration, sleep and nervous system of the person. But in our country the problem of noise pollution is not taken seriously. Public Interest Litigations (PILs) can and have been filed by citizens and lawyers concerned with noise pollution but it is still not much popular among citizens.

Noise was included as a pollutant in the Air (Prevention and Control of Pollution) Act, 1981 when it was amended in 1987.The laws relating to the noise pollution are Factories Act, 1948, The Bihar Control of the Use and Play of Loudspeakers Act, 1955, Motor Vehicle Act, 1988. However, these Acts indirectly deal with the noise pollution. The main Act of noise pollution was passed in India only in 2000.

Motor Vehicles Act, 1988

This Act contains some provisions for containing and controlling noise created by automobiles like horns and silencers. It provides that the horn should be in good working condition and should be sounded only when necessary. The muffler also should be in good working condition and in constant operation in order to prevent excessive or unusual noise. Moreover, no person should make unnecessary or loud noises from engines, exhaust systems, braking systems or from the contact of the tires with the roadway.64

Factories Act, 1948:

It indirectly contains a provision for the control of noise pollution which says that every factory shall be kept clean and free from effluents arising from any drain, privy or other nuisance. The term ‗other nuisance‘ can be referred to the noise pollution and menace arising from factories.65

141 Noise Pollution (Regulation and Control) Rules, 2000

Until 2000, there was no principal policy for noise pollution. However, the need was felt and this Rule came into existence under the Environment (Protection) Act, 1986. This rule defines important terms such as area/zone, authority, court, educational institution, hospital etc. Further, it stipulates regarding the ambient air quality standards in respect of noise for different areas/zones, restrictions on the use of loudspeakers and public address systems, responsibility of the authority and complaints in reference to noise pollution, and consequences of any violation in silence areas.66 The states and UTs all over the country have been asked to categorize all areas falling under their jurisdiction into industrial, commercial and residential and silence zones to enable implementation of noise standards during day and night.67 This rule has been amended in 2002, 2006 and recently, in 2010.

Noise Pollution (Regulation and Control) (Amendment) Rules, 2010

This is the latest amendment rule regarding noise pollution in India published in the Gazette of India on 11 January 2010. The significant elements of this amendment rules include the following guidelines. The stress has been laid to make night calm and quiet. The night has been defined (10.00 pm to 6.00 am) and restrictions have been imposed on the use of horns, sound emitting construction equipments and bursting of fire crackers during night time and in silence zones. Public place has been defined and the occupants of a public place would restrict the volume of public address systems etc. so that noise emitting from its activity would not exceed the noise limits to more than 10 db (A), as applicable. Similarly, the occupants of a private place would restrict the volume of music systems, etc so that noise emitting from its activity would not exceed the noise limit of 5 db (A). A duty have been cast upon the concerned State governments to specify in advance, the number and particular days on which two hours exemption would be operative. State would be the unit of such an exemption.

Apart from these Acts, the Indian Penal Code also has provisions to control the noise pollution. Section 268 of the Indian Penal Code recognizes noise as public

142 nuisance. Under Section 133 of the Criminal Procedure Code, the magisterial court has been empowered to issue orders to remove or abate nuisance caused by noise pollution.68 Section 290 of the Code deals with the punishment for those cases of nuisance which have not been specifically covered under the specific provisions of the Code, therefore noise pollution can be covered under this Code. However, the maximum punishment under this Section is only two hundred rupees which is too mild by any standard.69 Also under law of torts, a civil suit can be filed under certain conditions, claiming damages for the nuisance including noise pollution.70

One of the earliest rulings of the court in reference to noise pollution dates back to 1952 when Bombay High Court asked authorities to regulate the use of loudspeakers during nights when the Ganesh and Navratri festivals were being celebrated.71 The High Court of Himachal Pradesh made observations that it is the duty of the police to take action on their own initiative in such cases (noise pollution) without waiting for the citizen to come forward to lodge a formal complaint.72 The courts have also taken note of an instance where the noise generated by setting up of a flour mill resulted in interfering with the physical comfort of certain people living in the area. The court considered setting up of the mill as a nuisance and issued prohibitory orders restraining the owner of the flour mill from running it in the locality which was already considered to be too noisy (Radhey Syam v Geer Prasad, AIR 1978 Allahabad, 86).73

Latest, one of the major orders of the Supreme Court under noise pollution is when a writ petition was filed in September 2000, asking for restrictions on firecrackers. Subsequently, the Supreme Court issued orders in favour of the petitioner and ruled out that, citizens can light firecrackers only from 6pm to 10pm and no firecrackers can be lit between 10 pm till 6 in the morning. Any firecracker that emanates a sound of over 125 decibels, four metres from the spot it is lighted, has been banned from production. Garlands of firecrackers that comprise 50, 100 or more numbers should not cross the decibel levels of 115, 110 and 105 respectively.74

The Government of India Notification on the subject mentioned inter-alia, a) Industrial activity b) Construction activity c) Generator sets d) Loudspeakers e) Public address systems f) Music systems g) Vehicular horns, and h) Other mechanical devices, as the sources of noise, having deleterious effects on

143 human health and the psychological well being of the people.75 Further, the notification by the Ministry of Environment and Forests on 30 December 2002 described certain noise limits for vehicles at the manufacturing stage from the year 2003 and was applicable from 2005.

The Central Pollution Control Board has been advised for revisiting the national ambient noise standards and prepare a blue print to have national ambient noise monitoring network in place. A beginning to monitor ambient noise would be made during 2010-11 in accordance with National Environment Policy of 2006.76

Even after the noise pollution regulation was notified, there was no systematic mechanism to monitor noise. Now the government will be providing infrastructure for the noise regulations. An ambient noise monitoring network, anchored in the CPCB and involving the state boards, will be established. Over the next two years, 160 ambient noise monitoring stations will be set up in 25 cities, entailing a cost of Rs 10 crore. By September, 10 stations each will be set up in seven cities — Delhi, Mumbai, Kolkata, Chennai, Hyderabad, Bengaluru and Lucknow.77 It will be extended to another 18 by 2011 at a cost of Rs. 120 crores.78

4. SOIL

Soil is another basic necessity for human life as it is the primary means of food production for the people. Over 90% of the world‘s food comes from soil and less than 10% comes from both inland water and the ocean.79 It is also important to sustain as it takes a long time to form i.e. 1 cm of top soil may take 50 years to form.80 In spite of being essential for the survival of whole mankind, its quality is constantly declining. The production of crops is becoming more demanding and pricey as the fertility, water holding capacity and depth of the soil is declining. Wastelands, desertification and floods are becoming more perceptible. It is estimated that large land amounting to 146.82 million hectares in India is suffering from serious degradation, area subject to water and wind erosion.81 The land degradation are caused by loss of top soil, loss of organic matter, depletion of nutrients through repeated harvest, use of fertilizers and insecticides, water-logging and salinisation, acidification, compaction, mining, pollution of groundwater and both decline and rise of groundwater tables.82

144 All these problems have gained the attention of the government and are, therefore, taking measures to improve and maintain the quality of the soil so as to feed the burgeoning population and develop the economy of the country. The Government of India however, has been involved in land upgradation before the independence of the country. Way back in 1883, Land Improvement Loans Act was made to provide loans by the government for agricultural improvements.83 Another law was the Destructive Insects and Pests Act of 1914 which dealt with the insect, fungus or other pests, which was or may be destructive to crops.84 The other policies in this area include:

 The Bihar Wastelands (Reclamation Cultivation and Improvement) Act, 1946.

 The Andhra Pradesh Land Improvement Schemes Act, 1949.

 The Acquisition of Land for Food Control and Prevention of Erosion Act, 1955.

 Manipur Land Revenue and Land Reforms Act, 1960.

 Tripura Land Revenue and Land Reforms Act, 1960.

Although, there is no principal policy in India till now that deals exclusively with the protection of soil, however, excluding the laws, the Government of India has been involved in the conservation of soil primarily through the Department of Land Resources under the Ministry of Rural Development, created in July 1992 to tackle the problem of degradation of lands, restoration of ecology and to meet the growing demands of fire wood and fodder. The Department earlier started as National Wasteland Development Board in 1985 under the Ministry of Forests and Environment. The Board was reconstituted in August 1992 and was made responsible mainly for the development of wastelands in non forest areas in totality by involving local people at every stage of development; and was finally renamed as 85 Department of Land Resources in 1999.

Moreover, the National Bureau of Soil Survey and Land Use Planning, the Central Soil and Water Conservation Research and Training Institute and the Indian Council of Agricultural Research, have jointly initiated the preparation of maps of soil erosion affected areas in different states using the components of Universal Soil Loss Equation. Moreover, the All-India Soil and Land Use Survey, Ministry of

145 Agriculture, is engaged in generating spatial and non-spatial information on the soils of India and preparing thematic maps like land capability classification, hydrological soil grouping, irrigability classification, hydrological soil grouping, irrigability classification, etc. The government has also created National Land Use and Conservation Board (NLUCB) with the objective to serve as a policy planning, coordinating and monitoring agency at the national level for issues concerning the health and scientific management of land resources of the country. The Programme for reclamation of Alkali soil (RAS) was launched in the Seventh Five Year Plan for reclamation of soils, which were suffering from alkanity. Since its origin, till its end in 2004-05, an area of 6.59 lakh hectare has been reclaimed under this programme. Then there is a Programme on Soil Conservation for Enhancing the Productivity of Degraded Lands in the Catchments of River Valley Project and Flood Prone River. Since the beginning of this programme till the end of the IX Plan, an area of 62.58 lakh hectare has been treated. This programme is being implemented in 53 catchments having a total catchment area of 110.11 Mha covering 27 states.86

In addition, there are other programmes also for the conservation of land. There is Integrated Wastelands Development Programme under implementation since 1989- 90 to strengthen the natural resources base and to promote the overall economic development of the resource-poor and disadvantaged sections of people inhabiting the programme areas.87 There is Drought Prone Areas Programme (DPAP) with the purpose to minimise the adverse effects of drought on production of crops and livestock and productivity of land, water and human resources ultimately leading to drought proofing of the affected areas. Currently, DPAP was in operation in 972 blocks of 185 districts in 16 States. Another is Desert Development Programme to minimise the adverse effect of drought and control desertification through rejuvenation of natural resource base of the identified desert areas. It covers an area of about 45.7 Mha in 235 blocks of 40 districts in 7 states.88

The states also individually make policies according to the prevailing activities in their region. For instance, in Punjab it was found that the kiln-owners were digging out soil for manufacture of bricks after taking land on lease. However, legally they are permitted to extract soil only from barren lands. Subsequently, the Punjab government became the first state to introduce ―Cleaner Production Technology‖ in

146 over 2000 brick-kilns out of a total of 2500 kilns in the state. At the same time this policy facilitates the brick-kiln to save up to Rs 3 lakh worth of coal every day apart from being the reduction in pollution level as per the specifications of the Central Pollution Control Board (CPCB).89 Also, the Government of Punjab constituted a task in September 2006 for formulation of a policy to mitigate the problem generated due to severity of burning of agricultural waste in the open fields after harvesting, and its consequent effects on soil, ambient air and health of living organisms.90

5. FORESTS AND WILDLIFE:

(A) Forests

Forests cover about one quarter of the world‘s land area outside Greenland and Antarctica. They are home to ninety percent of the species on the earth and serve the important functions of producing oxygen for the planet and of acting as ―sinks‖ for greenhouse gases. They are the essence of the ecological balance of the earth. But in recent years, the demand for trees has led to the deforestation at a very fast speed. Large industrial needs in the form of raw materials, types of agriculture produce such as; slash and burn cultivation, grazing of cattle, development of cities, industries and buildings, mining; all have led to deforestation. The production of paper has also been a major source of deforestation.91 In India, about half of the city dwellers depend on firewood brought in from the forests for cooking fuel. The rural communities depend on forests for fuel, fodder, and building material.92 Thus, with so much dependence of man on forests, the importance of forest is discernible. According to the State of Forest Report, published by the Forest Survey of India (FSI) in 1997, India has a recorded forest area of 76.5 million hectare or 23.3% of the total geographic area of the country. But the actual forest cover is 63.34 million ha (19.27% of the country's area) of which 26.13 million hectares are degraded.93 Currently, the forest cover of the country as per 2007 assessment is 690,899 km3 which is 21.02 percent of the geographical area.94

Most of the policies governing forests in India were formulated before independence in 1947. Perhaps, it was the only area of environment, the British were really concerned with. However, this concern was to fulfill their selfish interest of

147 amassing wealth. The first forest policy was enunciated in 1894 with the purpose of public benefit. It further suggested the preservation of climatic and physical conditions.95

After independence of India, the Constitution placed the forests under the state list of the Seventh Schedule.96 Subsequently, the Forty-Second Amendment Act, 1976 transferred forests from the State List to the Concurrent List of the Constitution i.e. the central government became empowered to control and mange forests of the nation. Today, the Ministry of Environment and Forests is the main body to deal with the issue of India‘s green cover. Despite the concern for forests after independence, it still continued to degrade at a very fast rate. For economic development of the nation, forests were replaced with agricultural lands, industries, hydro-electric projects, settlement of displaced persons, foreign refugees etc., this was effecting the habitat of the wildlife. Altogether, some 45% of the forest land has been lost since independence.97 In total, the principal policies in the sector of forests framed by the Government of India are:

Forest Act, 1865:

This was the first Act drafted in the history of India regarding environmental protection by the Government of India under British rule. This Act came out as a result of excessive cutting of trees, especially with the introduction of railways. This law was revised in 1878 and was modified again in 1927.

Indian Forest Act, 1927:

This Act placed the forests, public as well as private, in the State list of the Constitution. The public forests were divided into; reserve, village and protected forests. Under the reserve forests, an individual or community rights were taken for the forests. To approach these forests and its products, the permission of the government had to be taken. Access to these forests became a privilege. Village forests were those reserve forests that were assigned to particular villages, i.e. people of a particular village had the right to use the resources of the forest as well as to provide protection. These were those parts of the forests that were banned for

148 everyone except the government. The government could utilise any part of the forest products according to needs.98

National Forest Policy, 1952:

This was the first forest policy after the independence of the country. It laid down that ‗it would be the duty of the forester to awaken the interest of the people in the development, extension and establishment of tree lands wherever possible, and to make them tree-minded.‘

Forest Conservation Act, 1980:

This Act followed the 42nd Amendment of the Constitution which brought forests under the Concurrent List and introduced the Article 48-A which ensures; ‗protection and improvement of environment and safeguarding of forests and wild life‘. This Act strictly restricts and regulates the de-reservation of forests or use of forest land for non-forest purposes without the prior approval of central government. Clearing of trees within the forest even for reafforestation cannot be done without the approval of the central government. This Act was amended in 1988.99

National Forest Policy, 1988:

This policy aims at maintaining a minimum of 33% of the country‘s geographical area under forest and tree cover. The policy focused on the maintenance of environmental stability through preservation and restoration of ecological balance, conservation of the natural heritage of the country by preserving the remaining natural forests and protecting the vast genetic resources for the benefit of posterity; meeting the basic needs of the people and maintaining the intrinsic relationship between forests and the tribal and other poor people living in and around the forests by protecting their customary rights and concessions on the forests.100

In 1985, the subject of Forestry and Wildlife was shifted from Ministry of Agriculture to a new Ministry of Environment and Forests (MoEF) to ensure a more focused attention to emerging forestry issues. In 1990, the MoEF issued detailed guidelines for people's involvement in forest conservation and management through an appropriate village level organisation.101 The forest policy of 1988 set the stage

149 for participatory forest management in India. Joint Forest Management (JFM) programme was recognised in 1990. In 2002, the MoEF issued a circular to strengthen the JFM programme.102 The JFM is one of the successful forest policies of India. In 2002, there were 14.26 million hectares of forest lands in the country being managed and protected by around 64,000 Committees.103 Besides, there are also a large number of Self-Initiated Forest Protection Groups managing forests in India on the principle of participatory forest management.104 Recently, the Ministry has been announced that ''forest satellite'' will be launched as part of its efforts to monitor the country‘s green cover.105

The Forest Survey of India has been involved in the assessment of the forest cover in India on a two-year cycle and is publishing the findings in the India State of Forest Report. So far 11 cycles of forest cover assessments have been completed since 1987.106 Moreover, a National Forestry Action Programme (NFAP) in 1999 has been formulated as a comprehensive strategic long-term plan for the next 20 years. The objective is to bring one-third of the area of the country under tree/forest cover and to arrest deforestation.107 In addition, the Centrally Sponsored Intensification of Forest Management Scheme aims at strengthening forest protection machinery of the State/Union Territories governments and providing support for area-specific forest management interventions.108 The allocation for the year 2009-10 for the scheme was Rs.76 crores.109

The Ministry of Environment and Forests has notified Forest (Conservation) Rules, 2003 to supersede the rules made in 1981. The special features of the new rules are simplified format for application for forestry clearance, further simplified format for cases of renewal, fixation of time limit of 90 days at the level of State government and 60 days at the level of central government for taking a decision and empowerment of regional officers to process the cases of forest land upto 40 hectares from the earlier limit of 20 hectares. 110 The MoEF has created a Sustainable Forest Management (SFM) Cell in the Ministry in 2006 111 to enhance forest sustainability.

Forestry research is also being carried out by the Indian Council of Forestry Research and Education (ICFRE) of the Ministry of Environment and Forests and State Forest Departments.112 For the development and management of forest

150 plantations on the islands of India, the government created a public sector undertaking in 1977 known as; Andaman and Nicobar Islands Forest and Plantation Development Corporation Limited (ANIFPDCL).113

The judiciary‘s role in the protection and conservation of forests has been very significant. It had to deal with such cases which often involved a conflict between a dire need to preserve the forests and the needs for development activities, need for mining and the preservation of forests, claims of adivasis and retaining the reserved forests free from their encroachments and so on.114

The Supreme Court of India in a landmark judgement has banned all non-forest activities in the forest areas and directed that Forest Conservation Act, 1980 be applied to all forest areas irrespective of ownership or classification. The Supreme Court has also issued a ban on transportation of timber and cutting of trees from the North-East to the rest of the country.115 In another case, the Supreme Court of India restrained the state governments and its functionaries from cutting any tree/trees till further orders, even if it is found to be a diseased tree.

In October 2002, the Supreme Court upheld the plan by the Centre to constitute a Compensatory Afforestation Management and Planning Agency (CAMPA) for managing funds provided to compensatory afforestation programmes. Agencies diverting forest lands for other uses were required to pay the Net Present Value (NPV) of the diverted lands to the respective State governments, which in turn would transfer the funds to the CAMPA. Further, Supreme Court has also appointed an expert committee on 26 September 2005 on this issue.116 Until May 2006, there was no conclusion on the matter and the CAMPA had not been set up. Therefore, on 5 May 2006, the Supreme Court directed that an ad hoc CAMPA be constituted, and all the money collected by States and Union Territories on behalf of the CAMPA should be transferred to this ad hoc body. The 2008 Bill in Parliament observed that following this order, over Rs.5000 crores have since been placed under the ad hoc CAMPA, and deposited in nationalised banks.117

At the international level, a workshop on ‗Development of National Level Criteria and Indicators for the Sustainable Management of Dry Forests in Asia‘ was held at the Indian Institute of Forest Management (IIFM) in Bhopal in 1999 of FAO and

151 UNEP in collaboration with the ITTO, the United States Department of Agriculture Forest Service. Now referred to as the ‗Dry Forest in Asia Process‘, ten Asian countries jointly developed a regionally applicable set of national-level criteria and indicators relevant for dry forests in the region. The Asia regional initiative was endorsed by the ‗National Task Force on Sustainable Forest Management‘, appointed by the MoEF. Sustainable Forest Management (SFM) Cell has been created by the MoEF in 2006 and discussions are also in an advanced stage to create SFM Cells in each State. 118

(B) Wildlife and Animal Welfare

Wildlife has been defined as the sum total of the animals and plants, excluding domesticated or captive animals and cultivated plants grown for human purposes. The most serious threat to this wildlife is their habitat destruction. Expanding agriculture, industry and urbanisation as also unavoidable defence needs are the causes of this situation.119 The plants are also a useful part of environment. There is a famous saying of our ancient physicians that a ‗useless plant is yet to be found.‘ Besides, it is realised that with the extinction of one plant species, 10-30 others such as insects other plants and micro-organisms which in a balanced economic-system are dependent on it in one way or the other, also become endangered and may be lost.120

The protection of the animals like forests also gained attention in the British period itself before the independence, the first being the Elephants‘ Preservation Act of 1879 in the reserved and protected forests.121 The Indian Forest Act of 1927 also included provisions for hunting restrictions in reserved or protected forests and authorized the establishment of sanctuaries. However, earlier, the main concern was for the wildlife, but now the protection of other animals in the cities, roads, homes and zoos has also gained currency.

Wildlife (Protection) Act, 1972

This was the most comprehensive Act involving the protection of wildlife in India with the objective of effectively protecting the wild life of this country and to control poaching, smuggling and illegal trade in wildlife and its derivatives. It provides for the establishment of wildlife advisory boards and appointment of

152 wildlife wardens and other staff to implement the Act. This was enacted by Parliament under article 252, after 11 State Legislatures passed the required resolutions. By 1991, amendment to the Wildlife Act, Parliament extended to the whole of the country except Jammu and Kashmir. Under this Act, the state may declare any area of adequate ‗ecological, faunal, floral, geomorphological, natural or zoological significance‘ a sanctuary or a national park. In both sanctuaries and national parks, public entry is prohibited and the destruction of any wildlife of habitat is prohibited.122 The Act was amended in January 2003. The punishment and penalty for offences under the Act have been made more stringent.

Other laws related to wildlife are:

 Recognition of Zoo Rules, 2009.

 The Declaration of Wild Life Stock Rules, 2003.

 The Wildlife (Specified Plant Stock Declaration) Central Rules, 1995.

 The Wildlife (Specified Plants - Conditions for Possession by Licensee) Rules, 1995.

 The Wildlife (Protection) Rules, 1995.

 Recognition of Zoo Rules, 1992.

 The Wildlife (Protection) Licensing (Additional Matters for Consideration) Rules, 1983.

 The Wildlife (Stock Declaration) Central Rules, 1973.

 The Wildlife (Transaction and Taxidermy) Rules, 1973.

 The National Board for Wild Life Rules, 2003.

Besides these laws, the Government of India has established various institutions, boards, plans and projects to assist the Ministry in the conservation of wildlife. The Indian Board for Wildlife (IBWL) is the apex advisory body headed by the Prime Minister for the conservation of wildlife. The Wildlife Institute of India was established in 1982 under the Ministry of Agriculture and subsequently brought under the Ministry of Environment and Forests to impart training, carry out research

153 and advise on matters of conservation and management of wildlife. National Wildlife Action Plan (NWAP) has been adopted by the Government of India for conservation of wildlife. It was first constituted in 1983 and revised Wildlife Action Plan (2002-2016) has been adopted.123 To strengthen the Wildlife Division in the Ministry of Environment and Forests, Central Sector Scheme was launched in 1986. Further, it supports the research activities envisaged in the National Wild Life Action Plan (2002-2016). With the 2006 amendment to Wildlife (Protection) Act of 1972, a Wildlife Crime Bureau has been established to combat wildlife crimes.124

Central Zoo Authority was established in 1992 under the provisions of Wildlife (Protection) Act, 1972 to check the mushrooming of ill planned and ill conceived Zoos, monitor and evaluate the existing Zoos and to suggest ways and means for improvement of Zoos.125 About 90 mini zoos were closed down in 2002. The Authority has also been assigned the responsibility for the creation of rescue centres, for rehabilitation of circus animals, and ban on performance of wild animals in circuses. National Zoological Park was established in New Delhi in 1955 to foster understanding, knowledge and appreciation for wildlife through education, research and caring of animals in simulated conditions. About 89 National Parks and 500 Wildlife Sanctuaries covering an area of 1.5664 lakhs km2 has been developed for the wildlife. Apart from this, workshops, conferences and laboratory have been taken up for their protection.126 During the year 2009-10, 5 large, 5 small and 30 mini zoos and rescue centres have been evaluated as zoos. The Central Zoo Authority has assigned responsibility of preparing and maintaining the study- books for 14 endangered species to Wildlife Institute of India. 127

Moreover, the Government of India has implemented projects for the protection of specific animals, the popular being the Project Tiger and Project Elephant. Project Tiger is being implemented since 1973 to ensure a viable population of tigers in India for scientific, economic, aesthetic, cultural and ecological values and to preserve areas of biological importance as natural heritage for the benefit, education and enjoyment of the people. In 2006, the project had 29 tiger reserves covering an area of 38,620 km2.128 Latest technologies are being developed for better conservation. In April 2010, the government launched a hi-tech monitoring system to ensure transparency in tiger protection in the country. 129

154 The Project Elephant was launched in 1992 covering 12 States to assist them to have free ranging populations of wild elephants to ensure long term survival of identified viable populations of elephants in their natural habitats. An amount of 7.66 crore was released for the project in the year 2002 alone. Moreover 14 elephant reserves were set up in 2002 itself.130 In October 2010, the government declared the elephant as National Heritage Animal of India to ensure their survival and security.131 There are also other conservation projects for individual endangered species started by government like Hangul, Lion, Crocodile and Brown-antlered Deer.132 Recently, Ministry of Environment and Forests notified the Ganges River Dolphin as the National Aquatic Animal in May 2010 which has been recognized ‗highly endangered‘ in Schedule I of the Wildlife Protection Act, 1972.133

Since the broader aspects of wildlife includes all types of animals, therefore, if we discuss it in its broader perspective, then the other policies relating to animals are:

 The Prevention of Cruelty to Animals Act, 1960.

 The Prevention of Cruelty to Draught and Pack Animals Rules, 1965 (amended 1968).

 The Prevention of Cruelty (Capture of Animals) Rules, 1972.

 Performing Animals Rules, 1973 and Performing Animals (Registration) Rules, 1972.

 The Transport of Animals Rules, 1978 (amended in 2001).

 The Prevention of Cruelty to Animals (Registration of Cattle Premises) Rules, 1978.

 Experiments on Animals (Control and Supervision) (Amendment) Rules, 1998.

 Transport of Animals Rules, 1978 & 2001.

 Prevention of Cruelty (Slaughter Houses) Rules, 2001.

 The Prevention of Cruelty to Animals (Transport of Animals on Foot) Rules, 2001.

155  Prevention of Cruelty to Animals (Establishment and Regulation of Society for Prevention of Cruelty to Animals) Rules, 2001.

 The Performing Animals (Registration) Rules, 2001, as amended in 2001.

 Animal Birth Control (Dogs) Rules, 2001 and 2009.

 Breeding of and Experiments on Animals (Control and Supervision) Rules, 1998 as amended in February, 2001, 2005, 2006.

In order to prevent the infliction of unnecessary pain or suffering of animals, the Animal Welfare Division was made part of Ministry of Environment and Forests in July 2002. It provides schemes for construction of shelter houses, dispensaries, for ambulances and vehicles in connection with treatment and transportation of sick, injured and rescued animals, and also for immunization and sterilization of stray dogs. In the annual report of 2002-03, it was mentioned that 225 animals were seized from circuses and transported to Rescue Centers. 307 Societies for Prevention of Cruelty to Animals have been constituted. The National Institute of Animal Welfare has been developed to provide teaching courses in the field of animals. Apart from these, Animal Welfare Board of India which is a statutory body under Section 4 of the Prevention of Cruelty to Animals Act 1960 advises the government on animal welfare issues, and creates awareness for animal welfare. The Board gives assistance to eligible Animal Welfare Organisations for shelter houses, model gaushalas etc. Committee for Purpose of Control & Supervision of Experiments on Animals (CPCSEA) is another statutory body under Section 15 of Prevention of Cruelty to Animals Act, 1960 which registers and monitors the animal breeders and institutions conducting experiments on animals. So far 731 units have been registered with this Committee. The Committee also conducts workshops for the protection of animals.134 Recently, the Ministry came out with the Draft Animal Welfare Act, 2011, for comments, and when it is passed, it will replace the existing Prevention of Cruelty to Animals Act, 1960, and shall provide for clearer definitions of animal abuse and enhanced penalties.135

The schemes carried out for the protection of animals include Scheme for Provision of Ambulance Services to Animals in distress, Scheme for Animal Birth Control and Immunization of Stray Dogs, Scheme for Relief to Animals during Natural

156 Calamities and Unforeseen Circumstances and Scheme for Provision of Shelter Houses for Animals.

At the international level, India has been one of the two countries of the world, apart from Denmark which ratified all major international conventions governing wildlife, including the Convention on International Trade in Endangered Species of Wildlife Fauna and Flora, (CITES), Ramsar Convention on Wetland of International Importance, Convention on the Conservation of Migratory Species of Wild Animals (1979) and International Convention for the Regulation of Whaling (1979).136

However, sometimes the animals themselves become a nuisance as in the case of monkeys in Himachal Pradesh. In Shimla alone, there are 1600 monkeys threatening the people as well as tourists. To counter this menace, the centre has submitted a comprehensive action plan to the Supreme Court of India for their rehabilitation elsewhere. 137

6. BIODIVERSITY

Biodiversity simply means the variety of life-forms that exist on planet earth ranging from the smallest and practically invisible microbes to the largest of mammals and sea-creatures.138 However, it also includes the biological and geographical region in which they live. The Biological Act of 2002 in India defines biological diversity as ―the variability among living organisms from all sources and the ecological complexes of which they are part and includes diversity within species or between species and of eco-systems‖.139 Thus, the term biological diversity has more than one facet. It refers to the sum of genetic, taxonomic and ecosystem diversity. Genetic diversity embraces the variation in genetic material, such as genes and chromosomes. Taxonomic diversity includes the variation among and within species. Ecosystem diversity concerns with the variation in bio-geographic regions, landscapes and habitats such as biosphere reserves, wetlands, coastal areas, mangroves and coral reefs. 140 All the facets are interconnected and the best way to save species is to save their habitat.141

India is one of the world‘s 12 mega-diversity centres. Some 45 000 plant species and over 89,000 species of animals have been documented. The faunal diversity

157 comprises inter alia 2,500 fishes, 150 amphibians, 450 reptiles, 1,200 birds, 850 mammals and 68,000 insects.142 Pertaining to ecosystem diversity, India has four ‗Hot spots‘ out of the 18 identified in the world.143 However, it also has two of the world's most threatened ‗hot spots', the Eastern Himalayan region and the Western Ghats. At least 10 per cent of India's recorded wild flora and possibly more of its wild fauna are on the list of threatened species; many are on the brink of obliteration. Of the wild fauna, 80 species of mammals, 47 of birds, 15 of reptiles, three of amphibians and a large number of moths, butterflies and beetles are endangered. Out of 19 species of primates, 12 are endangered. The cheetah and the pink-headed duck are among species that have become extinct.144

With this bio-diversity and its endangerment in India, and subsequently after being signatory party to the Convention on Biological Diversity (CBD) in 1992 and Cartagena Protocol in 2000, the Government of India realised the necessity of measures for conservation and enacted the Biological Diversity Act in 2002. The Biological Rules were notified thereafter in 2004, giving effect to the provisions of the Convention on Biological Diversity.145 The Act is implemented through a three- tiered institutional structure i.e. National Biodiversity Authority (NBA), State Biodiversity Boards (SBBs) and Biodiversity Management Committees (BMCs). NBA has been set up in 2003. Twenty states have established SBBs, and BMCs are in the process of being set up in some states.146 The Government of India has taken initiatives to achieve the objectives of Convention of Biological Diversity, through creation of an institutional structure, through traditional Knowledge Digital Library (TKDL), an important initiative by India to fight against bio-piracy globally and through the People Biodiversity Register (PBR) to document the oral knowledge on biodiversity.147 Further, the government has started recognising and rewarding contributions of rural and tribal families in the field of genetic resources conservation through Genome Saviour Award.148 Recently, the Ministry of Environment and Forests sponsored along with others, the 30th Annual Symposium on Sea Turtle Biology and Conservation with a strong call by participants for increased scientific monitoring and protection of marine turtle habitats from developmental threats.149

158 The Botanical Survey of India under the Ministry of Environment and Forests was reorganised in 1954 to include various new areas pertaining to biodiversity conservation like inventorying of endemic, rare and threatened plant species; evolving conservation strategies; studies on fragile ecosystems and protected areas like wildlife sanctuaries, national parks and biosphere reserves; multiplication and maintenance of endemic and threatened plant species, wild ornamentals, etc., in botanic gardens and orchidaria and so on.150 The scheme on Assistance to Botanic Gardens, Botanic sections in popular gardens and Centers of Ex-Situ Conservation was initiated in 1992 to augment facilities for ex-situ conservation of rare, endangered, threatened and endemic plants.151

Coastal Regulation Zone Notification (CRZ) 1991 was notified in the year 1991 under the Environment (Protection) Act of 1986 with the purpose of protection of Indian coasts from degradation. The CRZ Notification also places restrictions on industries, operations and processes in the CRZ areas. The CRZ notification issued is the only law that explicitly outlaws, coral mining in India.152 Further for regulating coastal activities, the coastal stretches within 500 metres of High Tide Line on the land ward side are classified into four different categories- CRZ I, II, III and IV. Recognising that the seas have generally been treated as ‗commons‘ available to everyone, even within a country‘s boundaries, Marine Protected Areas (MPAs) have been developed of specific boundaries with ‗permitted and non- permitted uses within [them].‘ There are 36 MPAs in India of which twenty are entirely coastal areas (intertidal, mangroves, coral reefs, estuaries, beaches), and thirteen have major marine ecosystem components. There are a total five coral reef MPAs in India.153 The Ministry has highly regarded conservation and management of mangroves and coral reefs in the country. As per the State of Forest Report 2005 published by Forest Survey of India, the mangrove cover which was 4448 km2 in 2003 has reduced to 4445 km2 in 2005. The National Environmental Policy of 2006 adopted more comprehensive approach to Integrated Coastal Zone Management for mangroves. Measures are taken by the Government to rehabilitate degraded mangrove areas and enhance mangrove cover by re-plantation in the open mud flats etc. Financial assistance is given to coastal State Governments/Union Territories for implementation of Management Action Plan on Mangroves.154 The National

159 Committee has also been duly reconstituted by the Ministry on September 19, 2007. The project entitled ―Mangroves for Future (MFF): a strategy for promoting investment in Coastal Ecosystem Conservation‖ is being coordinated by World Conservation Union (IUCN) covering, initially, six tsunami affected countries including India.155 Two tier system at national and state level are in operation for effective coordination to implement the Scheme on Mangroves & Coral Reefs.156 To provide a cross-sectoral approach for coral reef conservation and management, the Indian Coral Reef Monitoring Network and the Indian Coral Reef Initiative were established in 1990s. Government of India has also set-up a National Committee to protect and manage the coral reefs sites and has included the corals in the Schedule-I list of the Wild Life Protection Act, 1972 to provide them legal protection.157 Even the Indian judiciary has to show sensitivity and awareness towards the nature of corals and the threat they face. A recent case of Madras High Court, which allowed the local fishermen to collect dead corals ‗washed ashore‘, shows how the courts need to wake up to the impact of degradation of corals. 158

Wetlands are also an important part of biodiversity. They are the transitional zones between permanently aquatic and dry terrestrial ecosystems. They help recharge aquifers, support local food production, function as habitat for indigenous and migratory birds, and are effective in flood and erosion control, apart from being a major source of national and international ecotourism. Wetlands constitute 18.4% of the country‘s area. However, due to human as well as non-human activities, they are under threat.

Subsequently, the Government of India has given high priority in the National Environment Policy of 2006. Since 1985-86, India‘s National Wetlands Conservation Programme is supporting conservation activities and, is currently providing financial support to 115 wetlands. At the international level, India has been a member of the Standing Committee of the Ramsar Convention and part of the Supervisory Council of Wetland International. The central government has identified a number of wetlands for conservation and management under its conservation programme and provides financial and technical assistance to the state governments or union territory administration for various conservation activities through approval of the Management Action Plans. Further, a multi-disciplinary

160 expert group has been set up in the Ministry to formulate a structure for regulatory framework for the conservation of wetlands.159

Another sphere of biodiversity is Biosphere Reserves which are areas of terrestrial and coastal ecosystems internationally recognised within the framework of UNESCO's Man and Biosphere (MAB) programme.160 India has been divided into ten Bio-geographic Zones and these zones together consist of twenty five Bio- geographic provinces. The aim is to designate one representative site as Biosphere Reserve in each Bio-geographic province for long term conservation.161 16 sites have been designated as Biosphere Reserve (BR) in different parts of the country. Apart from 16 sites already designated, a number of potential sites have been identified. The Ministry provides financial assistance to the respective State/UT governments for conservation and management of the designated biosphere reserves. The Indian National Man and Biosphere (MAB) Committee constituted by the Ministry of Environment and Forests is an apex body to oversee the programme, provide policy guidelines and review the programme.162 Also, realising the importance of lakes, Ministry of Environment and Forests has launched National Lake Conservation Plan (NLCP) to restore the water quality and ecology of the lakes in different parts of the country.163

7. URBAN PROBLEMS

The growth of urban areas not only in India but around the globe has been taking place at a very fast pace. In 1800, only 2% of the world population was urbanised and by 2030 and it is estimated that 61% of the world population will be living in urban areas.164 In India, out of total population, 285 million Indians live in cities i.e. 26.39% of the population (as on 1 March 2001). In comparison to last census of 1991, the growth in urban population had been 31.2% in India.165 Projections indicate that the urban population would have grown to 331 million people by 2007 and to 368 million by 2012.166 However, urbanisation has led to a number of problems in its areas. Some urban problems are general in nature, like habitat loss, deforestation, soil erosion etc while some problems are specific to urban areas like traffic congestion, mushrooming of slums, building regulation, and lack of clean air,

161 zoning and town planning. The urban problems are many but pertaining to environment, they are discussed as follows:

Housing:

The lack of acute housing problems in cities has given rise to the slums, jhuggies and illegal colonies. With growing population in the cities, these inadequate spaces are also increasing in number. These are consequently leading to other problems like sanitation, drainage system and disposal of solid wastes. In Delhi, about 49% of the total population lives in slum areas, unauthorised colonies and JJ clusters. There are also 20,000 jhuggies and according to a rough estimate, about five persons stay in each jhuggi besides a sizable population is living in unplanned areas. Only 5% of the Delhi population lives in authorised colonies.167 And about 12.04 million (7.87 %) urban households do not have access to latrines and defecate in the open.168 The main ministries dealing with urban problems are Ministry of Housing and Urban Poverty Alleviation and Ministry of Urban Development.

As a result, various policies and laws are being implemented by the government to solve this problem. The National Urban Housing and Habitat Policy was formulated in 2007 to focus on urban issues like urban planning, affordable housing, increase flow of funds, special provision for women, SC/ST/OB/Minorities/Disabled, employment generation, public-private partnerships etc.169 The first Act for sanitation was the Slum Areas (Improvement and Clearance) Act of 1956. Then, the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 was passed to solve the problem of sanitation. The government has targeted to make India slum-free in the coming five years with the launch of the Rajiv Awas Yojana (RAY) during the 11th Five Year Plan, including upgradation of 1000 slums and construction of 10 lakh houses.170 Moreover, to get the exact number of slums, government has embarked on a plan of remote mapping. The Ministry has also asked states to develop a Slum Information System and the Centre has provided them funds for the purpose. As many as 1,327 projects of affordable housing and basic amenities to the urban poor with an outlay of more than Rs 34,791 crore have been approved.171 To solve the problem of sanitation, Ministry of Urban Development has launched National Urban Sanitation Policy in 2008 with the overall goal to transform Urban India into community-driven, totally sanitized, healthy and liveable cities and towns.172

162 Transport:

The cities face problem of congestion on the roads and streets because of ever increasing number of vehicles. The air pollution has reached unprecedented heights because of increasing number of vehicles every day. Road accidents have also increased due to this. Urban transport is expected to grow by 2.6 times by the year 2016 in the large and medium-sized cities of India, thus culminating into increased and compound vehicular pollution.173

National Urban Transport Policy of India was adopted by government in 2006 which advocated public transport and recommended to promote road transport, which are energy efficient, conserves environment and meets social demand. It noted that it is needed to promote public transport to reduce negative externalities, like air pollution and congestion. Metropolitan cities like Delhi and Kolkata have introduce metro rail system to control traffic congestion and pollution. The Government of Maharashtra also prepared a master plan for the Mumbai Metro suggesting implementation in 3 phases over nine corridors. To provide better public transport and ease congestion, proposals for Bus Rapid Transit System (BRTS) has been improved in Ahmedabad, Bhopal, Indore, Jaipur, Pune, Rajkot, Vijayawada and Vishakhapatnam under JNNURM with a total estimated cost of Rs. 2,740 crores.174

Land policy:

Due to increasing commercial value of lands, the open spaces are thinning, leading to lack of clean and fresh air for the people to breathe. As a result, the Government of India is involved in zone planning and building regulations. As a result, National Commission on Urbanisation of India (NCU, 1988) recognized the need for adequate supply of land, efficiency and equity in allocation of land and promotion of flexibility in land use in cities. The Eleventh Five Year Plan judges that urban planning tools like master planning, zoning and regulations are not enough for the requirements of land supply for rapid urbanisation. It calls for a flexible land policy which will make conversion from one use to another, cost efficient and promote equity. National Commission on Urbanisation (NCU) of India (1988) recommended low-rise high density (LRHD) built-form for Indian cities. It explains that such form is less expensive to maintain and has the advantages of security of neighbourhood

163 protection. The problem has also been addressed somewhat by Jawaharlal Nehru Urban Renewal Mission in India.175 To encourage urban municipal bodies in their work, the CRISIL Awards are being launched in partnership with the Ministry of Urban Development 176

These problems are specific to urban areas only. But there is a plethora of other problems faced by cities common to the rest of the country such as waste management, air and water pollution, available of safe drinking water and so on. Jawaharlal Nehru National Urban Renewal Mission (JNNURM) was launched in December 2005 to counter urban pressures like water supply, sewerage and solid waste management, construction and improvement of drains and storm water drains, parking lots and spaces, development of heritage areas and so on.177 To manage solid wastes, the Ministry of Environment and Forests notified the ‗Municipal Solid Waste (Management and Handling) Rules, 2000, making it mandatory for urban local bodies to improve the systems of waste management.178 In addition, a Centrally Sponsored Accelerated Urban Water Supply Scheme was included in the VIII Five Year Plan to provide safe and adequate water supply facilities.179

Moreover, innovative, low-cost, and environmentally sustainable technologies have been initiated to solve the urban problems. Three major initiatives in this regard are the techniques of low-cost sanitation, low-cost housing and rainwater harvesting. Under the low-cost sanitation scheme, during the decade of 1990 since its beginning, 90,000 low-cost sanitation units have been constructed. Under the low-cost housing, the Government of India stimulates production of low-cost building materials by exempting the Building Centres‘ production of materials and components from excise duty.180

Delhi

Since Delhi is the capital of the country and one of the largest metropolitan cities of India, with being the most urbanised, various policies and laws have been passed from time to time in various sectors for the city itself. According to Census of India (2001), Delhi‘s population has reached the figure of 13,782,976 making it the most urbanised and populated city of India.181 The Master Plans by Delhi Development Authority from time to time are engaged in the planning and development of the city

164 of Delhi. In context of land policy, Delhi Land Holdings (Ceiling) Act, 1960 was passed.

For abatement of pollution in Delhi, till now, 2800 crore had been spent on cleaning the Yamuna river. 18 effluent plants were to be set up but have not been completed.182 21 major wastewater drains of NCT-Delhi are being monitored regularly by Central Pollution Control Board on a monthly basis. Sound Detection and Ranging System is in continuous operation at Central Pollution Control Board which measures the mixing height at Delhi. The Central Pollution Control Board regularly monitors Respirable Suspended Particulate Matter (RSPM) in ambient air of Delhi.183 The National Productivity Council in New Delhi coordinates the activities pertaining to Waste Minimisation Circles (WMCs) of small and medium industries.184 To ease and decongest the traffic problem, the Supreme Court of India on 11 February 2005 approved the construction of an expressway around Delhi.185

8. NUCLEAR AND RADIATION POLLUTION

The nuclear and radiation pollution has been the result of the use (or misuse) of hazardous substances and the formation of its wastes. Hazardous waste and substances mainly of toxic nature, in turn, are the result of industrialisation, urbanisation and modernisation. The growth of industries and technology has led to increased used of substances that are detrimental to health of man and society as a whole. Today, there is limitless list of substances that are polluting the environment like use of chemicals in the industries, agriculture, nuclear and petroleum fuels by- products, heavy metals such as lead, mercury, production of radioactive, municipal and solid waste, etc., all these types of substances and wastes have led to the nuclear and radiation pollution around the globe as well as in India.

Section 2(e) of the Environment (Protection) Act of 1986 defines ―hazardous substance‖ as ‗any substance or preparation which, by reason of its chemical or physico-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plants, micro-organisms, property or the environment.‘

‗Waste‘ is typically taken to mean anything that can be discarded. Almost every human activity produces some kind of waste. Waste can be categorized as households waste, municipal waste, waste produced by industrial and manufacturing

165 sites produce solid and hazardous waste, animal waste, radioactive waste, and medical waste.186 Mumbai generates 5000 tonnes, New Delhi 4600 tonnes, Kolkata 3500 tonnes, Chennai 3500 tonnes, Bangalore 1800 tonnes and Hyderabad 2800 tonnes of solid waste daily.187 The latest problem regarding waste includes the disposal of e-waste including obsolete computers, servers, printers, mobile phones, TVs, refrigerators and washing machines, DVDs, CDs, floppies, chips and processors and plastic waste. The excessive amount of these wastes has led to the shortage of land for disposal. According to a survey done by International Resource Group, India on its own generates about 146,000 tonnes of e-waste every year. The problem is also that India has become one of the favored grounds for many countries for dumping their highly toxic e-waste,188 making land pollution more serious in India. Therefore, the Government of India in concerned for the regulation of hazardous substances and waste including its management, mishandling, distribution, ban on the sale and import, proper disposal and clean up of the sites of the concerned substances and wastes.

Hazardous (Management and Handling) Rules 1989:

This is the first comprehensive policy to deal with the hazardous and toxic waste in India framed under the provisions of the Environment (Protection) Act of 1986. The Rules applied to specified categories of wastes and excluded wastes as specified in Schedule such as radio-active wastes as covered under the provisions of the Atomic Energy Act, 1962, wastes arising from ships under Merchant Shipping Act, 1958, bio-medical wastes covered under the Bio-Medical Wastes (Management & Handling) Rules, 1998, wastes covered under the Municipal Solid Wastes (Management & Handling) Rules, 2000, and many others.

Routinely, it defines some of the major relevant terms of the Act such as applicant, auction, authorisation, export, import, exporter, disposal and many more. Further it stipulates the responsibility of the occupier for handling of wastes, grant of authorization for handling hazardous wastes, power to suspend or cancel an authorization, packaging, labelling and transport of hazardous wastes, inventory of disposal sites, records and returns, accident reporting and follow-up, import of

166 hazardous wastes and the concerned appeals. Further, the schedule divides the waste into different categories. This law was amended in 2008 as the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008.

In addition, other policies concerning the hazardous substances and wastes are included in the following Acts:

 Motor Vehicles Rules, 1989.

 Insecticides Act, 1968.

 The Explosive Substances Act, 1908.

 The Inflammable Substances Act, 1952.

 The Atomic Energy Act, 1962.

 The Factories (Amendment) Act, 1987.

 Bio-Medical Waste (Management and Handling) Rules, 1998.

Apart from these, Common Bio-Medical waste Treatment Facilities (CBWTFs) have been created in various cities for treatment of bio-medical waste generated in various hospitals and nursing homes. Presently, there are 177 CBWTFs operational in India.189 But in spite of these policies, there has been an uncontrolled importing of hazardous material. This is due to the lack of any agency to check the toxity of the imported material. India has a liberal import policy for metal scrap being a cheap raw material for steel industry. However, alarmed over the import of hazardous material, the Centre, on 9 October 2004, made the import of waste and scrap more stringent. A notification issued by the Director General of Foreign Trade said that the import of metallic waste and scrap would be allowed only after a major inspection at major ports and the Inland Container Depot at Tughlaqabad.190 The Government of India in its decision on 15 October 2004 made pre-shipment inspection certificate for import of scrap mandatory. Ministry of Commerce and Industry at its meeting held on 15 October 2004 reviewed the import policy for scrap and metallic waste.191 Recently, the Minister for Environment and Forest announced that the Government will come out with a set of rules to manage electronic waste (e-

167 waste). He said the new rules will have public-private partnership (PPP) and focus on recycling of useful material and destroying toxic waste.192

The latest incident of radiation occurred in Delhi‘s Mayapuri Bazaar on 8 April which killed 1 person points out the threat posed by carelessly handling radiological sources.193

Bhopal Gas Leak Case of 1984

The Bhopal disaster which took place around midnight on 3 December 1984 is the worst case of industrial accident not only in India but around the globe. Forty tonnes of highly toxic methyl isocyanate (MIC) which was manufactured and stored in Union Carbide‘s chemical plant, leaked into the atmosphere and killed over 3500 people and affecting 2,00,000 people.194 Barely 100 yards from his office, thousands of people lay dead and dying. Tens of thousands more were crippled for life. Even today, tens of thousands of survivors are suffering from chronic illnesses; the persistent presence of poisons in the soil and water, there is alarming rise in cancers and congenital problems among children born to exposed people.195

To ensure that claims arising out of the disaster were dealt with speedily, and in alarm over the onslaught of American personal injury lawyers that flocked to Bhopal immediately after the gas leak; Parliament enacted the Bhopal Leak Disaster (Processing of Claims) Act in March, 1985. The Bhopal Act conferred the exclusive right on the Indian Government to represent all claimants both within and outside India. In April 1985, the Indian Government sued Union Carbide in the United States. With time, the Supreme Court rejected the rule of strict liability and its place applied its new doctrine of ―absolute liability‖. In January 1991, Parliament enacted the Public Liability Insurance Act (PLIA), giving statutory recognition to no-fault liability. On July 19, 2004, the Supreme Court directed the Welfare Commissioner of Bhopal to disburse the unspent amount of Rs. 1503 crore in the Settlement Fund on a pro-rata basis to all the (5, 70,000-odd) victims who had been awarded compensation for death and injury. 196 The Madhya Pradesh government, which has a dedicated Ministry for Bhopal Gas Tragedy Relief and Rehabilitation, claims that over a million people have already been compensated. Under a five-year action plan that began in 1990 and was extended in 1995, six 650-bed government hospitals

168 were set up. These cater to 36 of the 56 municipal wards in Bhopal. In addition, the government also opened 18 ancillary clinics. According to documents available with the Bhopal Gas Tragedy and Rehabilitation Department, the medical expenditure incurred to date is Rs.512.09 crore, and 64 per cent of the city‘s population at the time of the tragedy in 1984 has been given compensation.197

However, the response of government in this case has been a failure. A period of 25 years has passed and still the people of Bhopal are waiting for their justice Warren Anderson, former Union Carbide chairman and the prime accused in the industrial disaster case, who lives in New York, has still not been punished. Dow Chemicals refuses to take up the responsibility of cleaning up the site.198 Union Carbide Corporation (UCC) continues to flee from the ongoing criminal case in India which relates to the leakage of deadly MIC from its pesticide factory in Bhopal. The web site maintained by UCC on Bhopal still claims that the

―...incident was caused by a disgruntled employee who introduced a large volume of water by connecting a water hose directly to the tank.‖199

9. ENERGY

Conservation of energy is also a very important issue to be considered for the protection of environment. The conservation is significant particularly in India because the energy consumption is increasing at a very fast pace with the burgeoning population and economic growth. Around 57 percent of the rural households and 12 percent of the urban households i.e., 84 million households in the country (over 44.2% of households) did not have electricity which is one of the most convenient forms of energy in 2000.200 In context of environment, the conservation of energy is indispensable as its consumption is degrading the quality of the environment and is intensifying insecurity for the future generation. Thus, the purpose for energy policy pertaining to environment is that;

1. there is sustainable production and development of energy resources

2. the energy supply corresponds to the demands

3. to encourage use of renewable and everlasting energy resources

169 4. there is use of cleaner technologies for resources to check pollution and maintain the quality of environment.

With these purposes, the Government of India is also involved in policies pertaining to energy resources. The major policies regarding energy resources are

 Oil Fields (Regulation and Development) Act, 1948.

 Mines Act, 1952.

 Mines and Minerals (Development and Regulation) Act, 1957.

 Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962.

 Coking Coal Mines (Emergency Provisions) Act, 1971.

 Coking Coal Mines (Nationalisation) Act, 1972.

 Indian Copper Corporation (Acquisition of Undertaking) Act, 1972.

 Coal Mines (Taking Over of Management) Act, 1973.

 Coal Mines (Nationalisation) Act, 1973.

 Coal Mines (Conservation and Development) Act, 1974.

 Oil Industry (Development) Act, 1974.

 Cess and Other Taxes on Minerals (Validation) Act, 1992.

 Oil and Natural Gas Commission (Transfer of Undertaking and Repeal) Act, 1993.

 Energy Conservation Act 2001.

 Offshore Areas Mineral (Development and Regulation) Act, 2002.

 Electricity Act, 2003.

 Petroleum and Natural Gas Regulatory Board, Act, 2006.

 Indian Nuclear Cooperation Promotion Act, 2006.

170  United States-India Peaceful Atomic Energy Cooperation Act, 2006.

 Integrated Energy Policy Report 2006.

Energy Conservation Act 2001:

This policy of Government of India is the general and the principal policy regarding the efficient use of energy and its conservation in India. This Act established the Bureau of Energy Efficiency with the primary objective to reduce energy intensity in the Indian economy through adoption of result oriented approach. Besides this, it empowers Government of India to establish and specify energy consumption norms and standards, prohibit manufacture, sale, purchase and import of notified non- conforming equipment and appliances, prescribe energy conservation building codes for efficient use of energy and its conservation in new commercial buildings and so on.

The concept of a National Energy Policy found impetus in India after the first oil crisis of 1973-74, the Planning Commission had set up a Fuel Policy Committee in 1971. Jawaharlal Nehru recognized the importance of energy and set up a Power and Energy Committee, way back in 1962. This committee submitted its report entitled ‗Energy Survey of India‘ in 1965, which was the first Report of all energy resources in the country.201 On 24 December 2004 Manmohan Singh launched the National Campaign on Energy Conservation, under which various measures, activities are being undertaken during 2005 by Bureau of Energy Efficiency, industries, Schools, State governments and Designated Agencies, Public Sector units of Ministry of Power, etc. The National Energy Conservation Award scheme has motivated industries to conserve energy. In EC Award 2005, 311 participating industrial units saved Rs. 9891 million per year against an investment of Rs. 13161 millions, on account of implementation of various energy conservation projects.202

To ensure sustainable development and energy security, the Ministry of Non- conventional Energy Sources support the implementation of a large broad-spectrum programme covering the entire range of new and renewable energies. Concessions are available to the non-conventional energy sector under the Income Tax Rules. The Electricity Act of 2003 enables provision to promote co-generation and generation of electricity from renewable sources of energy and also favours power systems based on optimal utilization of resources such as coal, natural gas, nuclear, hydro, and renewable sources of energy. In 2005, the Government of India adopted

171 the Bio-diesel Purchase Policy to prescribe that oil marketing companies in the public sector purchase bio-diesel of prescribed Bureau of Indian Standards (BIS) specification from registered authorized suppliers at a uniform price, to be reviewed every six months.203 The Government of India is also implementing National Biomass Gasifier Programme.204 National Solar Mission was launched by Government of India to promote country‘s development and address climate change.205

An Energy Conservation Building Code (ECBC) was launched in May 2007 to address the design of new, large commercial buildings to optimize the building‘s energy efficiency. Nearly one hundred buildings are already following the Code, and compliance with it has also been incorporated into the Environmental Impact Assessment requirements for large buildings. In March 2007, the conduct of energy audits was made mandatory for large energy-consuming units in nine industrial sectors.206

10. MISCELLANEOUS

There are certain areas of environment policy that cannot be included in any group. Therefore, they are discussed separately and are the following:

Dams

Dams have become the indicators of economic development. Their construction is considered the path towards economic and social progress including, increase in the irrigation potential to foster food security, to generate power, and, in many cases, to provide drinking water. But at the same time, it has become controversial for human displacement and environmental degradation including submersion of soils, forest, death of fishes, disturbance of aquatic ecosystems etc. In India too, dams have been controversial since the first major post-independence irrigation project of the Bhakra dam. The other controversial dams are Tehri and Narmada. The opponents called the Sardar Sarovar dam as ―India‘s greatest planned human and environmental disaster‖.207 It has been rightly said by Kamta Prasad that ―There are a lot of still unaccounted, unexplored and unidentified benefits and costs of the big dams which need to be analysed to make the debate on the big dams more objective and based on concrete facts.‖ 208

172 Subsequently, the Government of India took measures to check the negative consequences of dam. Guidelines for Environmental Impact Assessment of River Valley Projects were first established in 1985. Consequently, more comprehensive Notification on Environmental Impact Assessment of Development Projects came in 1994 and then in 2006. For human displacement, a Draft National Policy on Resettlement and Rehabilitation for Project Affected Families of 2004 was proposed, followed by the more progressive Draft National Development, Displacement and Rehabilitation Policy of 2005. This was superseded by the National Rehabilitation and Resettlement Policy of 2007.209

However, dams are again being proposed as an alternative to carbon-based sources of energy in order to mitigate climate change.210

Fisheries

India‘s fisheries act dates back to 1897. This Act makes fishing by poisoning of water and use of explosives a penal offence. Another Act relating to fishing was the Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981.

India is the third largest producer of fish and second largest producer of fresh water fish in the world.211 Though, like other common resources, it also suffered overexploitation. The first national policy for managing marine fisheries was announced by the Government of India in 2004.212 The 2004 Policy provides for reviewing the existing legal framework for regulating the fishing operations. It envisages the introduction of additional legal instruments in such areas as operation of Indian flag vessels in the EEZ, introduction of new fishing units, ensuring conservation of marine resources, especially in limited access fisheries, and fishery harbor management.213 National Fisheries Development Board has been set up in September 2006 with its headquarters at Hyderabad to realize the untapped potential of fisheries sector, fish culture, processing & marketing of fish, application of modern tools of research & development for optimizing production and productivity in fisheries.214 Under macro-management approach, a centrally sponsored scheme on Development of Inland Fisheries and Aquaculture is being implemented through the State governments /UT administrations. This scheme covers all inland fishery resources available in the country.215 Moreover, Central Institute of Fisheries

173 Nautical & Engineering Training (CIFNET) was established in 1963 at Cochin for organizing suitable fisheries training system at the national level.216 Integrated Fisheries Project (IFP) was set up in Kochi to envisage processing, popularisation and test marketing of unconventional varieties of fish.

Since fisheries is a State subject, different States have their own State policies governing fishing resources.217 At the state level, the government of Kerala has been taking pioneering measures for fisheries. There are two apex organisations in Kerala at the state-level, Kerala State Cooperative Federation for Fisheries Development Ltd., and the South Indian Federation of Fisheries Societies-that are engaged in organising and assisting fishermen‘s co-operatives in the states.218

Rock Deface

Apart from these there are other sectors in which the government is involved in environmental protection. The rock deface and commercial vandalism is also a popular environmental degradation in India. For commercialization, the rocks are painted by the multinational corporations. In this sector, the judiciary has played an important role. For instance, the Supreme Court in 2002 imposed a fine of Rs. 2, 00,000 on Pepsi and Coca-Cola and Rs. 1, 00,000 each on other organisations for repairing the damage caused by them by painting rocks with their advertisements in the Kullu region of Himachal Pradesh. In the same year, the Supreme Court imposed another 1 crore rupees on eight companies for painting on eco-fragile rocks along the Manali-Rohtang road.219

Food Security

For the security of food, policy was created with the aim of self-sufficiency of food to all the people at affordable prices. With this purpose, Food Corporation Act, 1964 was passed. The National Food Security Mission has been launched to increase production and productivity of wheat, rice and pulses on a sustainable basis so as to ensure food security of the country.220

The contamination of food and drinks has nowadays become a major cause of concern. Various food stuffs, vegetables, fruits and drinks as well as drugs are contaminated by chemicals, pesticides and other substances making it harmful, rather deadly, for humans.

174

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1 Dinah Shelton and Alexandre Kiss, Judicial Handbook on Environmental Law, Division of Policy Development and Law, United Nations Environment Programme (UNEP), Nairobi, Kenya, p. 65. 2 Ibid. 3 Jivendra, Water Pollution Management, APH Publishing Corporation, New

Delhi, 1995, p. 2. 4 Mahesh Mathur, Legal Control of Environmental Pollution, Deep and Deep

Publications, New Delhi, 1996, p. 64. 5 Water (Prevention and Control of Pollution) Act, 1974. 6 Ajay N. Jha, ‗Water pollution: Who is to blame?‘ Hindustan Times, August

9, 1990, p. 12. 7 The State of India‟s Environment 1984-85: The Second Citizens‟ Report,

Centre for Science and Environment, p. 36. 8 J. Briscoe, India's Water Economy: Bracing for a Turbulent Future, Report

No. 34750-IN, World Bank, Washington D. C., 2005, pp. viii-ix. 9 Paras Diwan and Parag Diwan (eds.) Environmental Management Law and

Administration, Vanity Books International, New Delhi, 1998, p. 157. 10 Raymond W. Y. Kao, Stewardship-based Economics, World Scientific

Publishing Company, Singapore, 2007, p. 48. 11 Our Planet, Our Health: Report of the WHO Commission on Health and

Environment, World Health Organisation, Geneva, 1992. 12 The World‟s Worst Polluted Places: The Top Ten, Project of The Blacksmith Institute, The Blacksmith Institutions, New York, October 2006. 13 Philippe Cullet and Joyeeta Gupta, ‗India: Evolution of Water Law and Policy‘, in Joseph W. Dellapenna & Joyeeta Gupta (eds.) The Evolution of the Law and Politics of Water, Springer Academic Publishers, Dordrecht, 2009, pp. 159-175. 14 Ibid.

175

15 State of the Environment Report India-2009, Ministry of Environment and Forests, Government of India, New Delhi, p. 49. 16 Augustin Maria, The Costs of Water Pollution in India, Revised Version, Paper Presented at the Conference on Market Development of Water &

Waste Technologies through Environmental Economics, 30-31 October 2003, Delhi, CERNA, Paris, 2003, p. 6. 17 State of the Environment Report 2009, op.cit., p. 47. 18 Annual Report 2008-09, Central Pollution Control Board, Government of India, p. 13. 19 Philippe Cullet and Joyeeta Gupta, India: Evolution of Water Law and Policy, op. cit. 20 Md. Zafar Mahfooz Nomani, Natural Resources Law and Policy, Uppal Publishing House, New Delhi, 2004, p. 83. 21 Philippe Cullet, Water Law In India: Overview of Existing Framework And Proposed Reforms, IELRC Working Paper 2007–01, International Environmental Law Research Centre, Geneva, 2007, available at http://www.ielrc.org/content/w0701.pdf Accessed on 23 June 2010 at 5:34 pm. 22 Ibid. 23 A. Vaidyanathan, India‟s Water Resources: Contemporary Issues on Irrigation, Oxford University Press, New Delhi, 2006, p. 31. 24 ‗Ganga Action Plan Bears no Fruit‘, The Hindu, New Delhi, August 28, 2004, p. 4. 25 Ajay N. Jha, op.cit. 26 Dinesh C. Sharma, ‗Human Corpses Pollute India's Holy Rivers‘, Frontiers in Ecology and the Environment, Volume 2, Number 5, 2004, p. 229. 27 http://www.cag.gov.in/reports/scientific/2000_book2/gangaactionplan.htm accessed on 2 April 2010 at 8.30 pm. 28 Ganga Action Plan Bears no Fruit‘, op. cit. 29 Chandra Pal, Environmental Pollution and Development: Environmental Law, Policy and Role of Judiciary, Mittal Publications, New Delhi, 1999, p. 134.

176

30 State of the Environment Report India-2009, op.cit., p. 20. 31 S. N. Chary and Vinod Vyasulu (eds.), Environmental Management: An Indian Perspective, Macmillian India Limited, New Delhi, 2000, p. 59. 32 Armin Rosencraz and Shyam Divan, Environmental Law and Policy in India: Cases, Material and Statutes (Second Edition), Oxford University Press, New Delhi, 2001, p. 244. 33 National Ambient Air Quality Standards(Notification), Central Pollution Control Board, New Delhi 34 Ambient Air Quality Standard for Ammonia (Notification), Central Pollution Control Board, New Delhi. 35 Paras Diwan and Parag Diwan (eds.) op. cit., p. 198. 36 ―Nod for amendment to Boilers Act‖, Business line-the Hindu, 20 April, 2007, available at http://www.thehindubusinessline.com/2007/04/20/stories/2007042003951000.htm accessed on 9 October 2010 at 3:23 pm. 37 Chandra Pal, op.cit., p. 142. 38 Ibid, pp. 145-146. 39 Air Quality Trends and Action Plan for Control of Air Pollution from Seventeen Cities, National Ambient Air Quality Monitoring Series: NAAQMS/29/2006-07, Central Pollution Control Board (CPCB), Delhi, September 2006. 40 Annual Report 2009-10, Ministry of Environment and Forests, Government of India, New Delhi, p. 138. 41 National Ambient Air Quality Status 2008, National Ambient Air Quality Monitoring Series: NAAQMS// 2009- 10, Central Pollution Control Board, Government of India, p. 8. 42 ‗Control of Air Pollution‘, The India Post, 5 November 2008, available at http://www.theindiapost.com/2008/11/05/control-of-air-pollution/ accessed on 28 September 2010 at 12:25 am. 43 Air Quality Trends and Action Plan for Control of Air Pollution from Seventeen Cities, op.cit. p. 1. 44 ‗Control of Air Pollution‘, The India Post, 5 November 2008, op.cit. 45 Annual Report 2009-10, op.cit., pp. 111-112.

177

46 India: State of the Environment 2001, Ministry of Environment and Forests,

Government of India, pp. 106-107. 47 State of the Environment Report India-2009, op.cit., p. 38. 48 Status of the Vehicular Pollution Control Programme in India, Central

Pollution Control Board, Government of India, March 2010, p. 10. 49 State of the Environment Report India-2009, op.cit., pp. 36-39. 50 India: State of the Environment 2001, op.cit., pp. 106-107. 51 State of the Environment Report India-2009, op.cit., p. 36. 52 India: State of the Environment 2001, op.cit, p. 108 53 Dileep Kumar, ‗Climate Change and Disaster Management‘, Yojana, June

2009, pp. 45-49. 54 Sanjay Tomar, ‗Climate Change-The Challenges before India‘, The Chartered Accountant, Volume 58, Number 1, 2009, pp. 61-62. 55 http://moef.nic.in/index.php accessed on 12 May 2010 at 3:39 pm. 56 India: Greenhouse Gas Emissions 2007, Indian Network for Climate Change Assessment (INCCA), Ministry of Environment and Forests, Government of India, May 2010. 57 Sandhya Wakdikar, ‗Compressed Natural Gas: A Problem or a Solution?‘ Current Science, Volume 82, Number 1, January 2002, pp. 25-29. 58 State of the Environment Report India-2009, op.cit., p. 20. 59 Paras Diwan and Parag Diwan (eds.), op.cit, p. 216. 60 G. C. Sahoo, ‗Noise Pollution-An Overview‘, Indian Journal of Otolaryngology and Head & Neck Surgery, Volume 49, Number 2, 1997, pp. 91-93. 61 Paras Diwan and Parag Diwan (eds.), op.cit. 62 Ibid, p. 217. 63 Sairam Bhat, ‗Noise and the Law‘, India Together, November 2003, available at http://www.indiatogether.org/2003/nov/law-noise.htm accessed on 12 December 2010 at 2:56 pm. 64 Motor Vehicle Act, 1988. 65 Factories Act, 1948. 66 Noise Pollution (Regulation and Control) Rules, 2000.

178

67 Vishwa Jit Singh, Environment and Law, S.S. Publishers, Delhi, 2006, p.

152. 68 M.R. Garg and Param Jeet Singh, ‗Legislative and Legal Aspects of Noise Pollution‘, in R. K. Sapru, Environmental Management in India, Volume II,

Ashish Publishing House, New Delhi, 1987, p. 102. 69 Gurdip Singh, Environmental Law: International and National Perspectives,

Lawman (India) Private Limited, 1995, p. 200. 70 S. P. Singal, Noise Pollution and Control Strategy, Narosa Publishing

House, New Delhi, 2005, p. 174. 71 State of Bombay v Narasu Appa Mali, AIR 1952 Bombay 82. 72 Vishwa Jit Singh, op.cit., p. 149. 73 Ibid, p. 147. 74 Ibid. 75 Notification, No. SO 123(E), Government of India, dated 14th February,

2000. 76 Annual Report 2009-10,op.cit., p. 115. 77‗ Government Sets Tone on Noise Mapping‘, Economic Times, New Delhi, 15

January 2010, p. 2. 78 ‗Stricter Noise Pollution Norms‘, The Times of India, 16 January 2010, New

Delhi, p. 8. 79 Ali Mohammad, Abdul Munir, Shamsul Haque Siddiqui and Rocket Ibrahim (eds.) Environment, Agriculture and Poverty, Volume 1, Concept Publishing Company, New Delhi, 2006, p. 105. 80 S.V.S. Rana, Essentials of Ecology and Environmental Science (Third Edition), Prentice-Hall of India Private Limited, New Delhi, 2007, p. 219. 81 State of the Environment Report India-2009, op.cit., p. 10. 82 Ali Mohammad, Abdul Munir, Shamsul, Siddiqui and Rocket Ibrahim (eds.), op.cit., p. 107. 83 Land Improvement Loans Act, 1883, (Act No. 19 of 1883), Governor- General of India in Council, available at http://indiacode.nic.in/fullact1.asp?tfnm=188319 accessed on 28 September 2010 at 11:47 pm.

179

84 The Destructive Insects and Pests Act, 1914, Act No. 2 of 1914 1, available at http://www.indiankanoon.org/doc/1468942/ accessed on 28 September 2010 at 11:56 pm.

85 http://dolr.nic.in/fschemes.htm accessed on 18 October 2010 at 9:36 pm. 86 State of the Environment Report India-2009, op.cit., pp. 15-17.

87 Ibid, p. 15.

88 Ibid, p. 16. 89 Vishwa Jit Singh, op.cit., p. 218.

90 State of the Environment Report India-2009, op.cit., p. 17. 91 Ibid. 92 Armin Rosencraz, Shyam Divan and Martha L. Noble, Environmental Law & Policy in India, Cases, Material and Statutes, Tripathi Private Limited, Bombay, 1991, p. 216. 93 Ravindra N. Saxena and Sangita Saxena, The Handbook of Environment and Forest Legislations, Guidelines and Procedure in India (with special

reference to mining), Green Publishing House, New Delhi, 2003, p. 51. 94 India State of Forest Survey 2009, Forest Survey of India, Ministry of Environment and Forests, Dehradun. 95 Jiwitesh Kumar Singh and Debendra Kumar Das (eds.), Environmental Economics and Development, Deep and Deep Publications, New Delhi, 2004, p. 296.

96 Ibid, p. 294. 97 Ibid.

98 Gurdip Singh, op.cit., p. 184-185. 99 http://moef.nic.in/modules/rules-and-regulations/forest-conservation/ accessed on 12 October 2010 at 2:55 pm. 100 V.K. Prabhakar, Encyclopaedia of Environmental Pollution and Awareness in the 21st Century, Anmol Publications, New Delhi, 2000, p. 45. 101 A.K. Mukerji, Forest Policy Reforms in India-Evolution of the Joint Forest Management Approach, FAO, Issue No. 0729-C1, 2003, available at http://www.fao.org/DOCREP/ARTICLE/WFC/XII/0729-C1.HTM accessed

on 16 May 2010 at 8:33 pm.

180

102 Ibid. 103 Annual Report 2002-2003, Ministry of Environment and Forests,

Government of India, Delhi. 104 Katar Singh and Anil Shishodia, Environmental Economics: Theory and Applications, Sage Publications India Pvt Ltd, New Delhi, 2007, p. 278. 105 http://www.moneycontrol.com/news/business/india-to-have-satellite-to-

monitor-green-cover_532156.html 106 Annual Report 2009-10, op.cit., pp. 17-18. 107 Annual Report 2000-01, Ministry of Environment and Forests, available at http://moef.gov.in/report/report.html accessed on 12 October 2010 at 3:20

pm. 108 Annual Report 2009-10, op.cit., p. 65. 109 Ibid, p. 66. 110 Annual Report 2002-03, Ministry of Environment and Forests, op. cit. 111 Tajbar S. Rawat, B. L. Menaria, D. Dugaya and P. C. Kotwal, ‗Sustainable Forest Management in India‘, Current Science, Volume 94, Number 8, 2008,

pp. 996-1002. 112 http://envfor.nic.in/nfap/forest-legislation.html accessed on 3 October 2010

at 4:34 pm. 113 Annual Report 2009-10, op.cit., p. 28. 114 Sri M.V. Shankar Bhat, Workshop on‖ An Appraisal of Forests and Wildlife Laws‖, Paper presented at Shri Di Dharmasthala Manjunatheshwara Law College, Mangalore, under the auspices of National Law School of India University held on 14th June 2003. 115 Vishwa Jit Singh, op.cit., p. 166. 116 Himanshu Upadhyaya, ‗How Much for that Forest?‘ India Together, 6 March 2007, available at http://www.indiatogether.org/2007/mar/env- forestnpv.htm accessed on 4 June 2010 at 3:24 pm. 117 Kanchi Kohli, ‗Institutionalising Compensation for Lost Forests‘, India Together, 17 August 2008, available at http://www.indiatogether.org/2008/aug/env- campa.htm accessed on 4 June 2010 at 7:45 pm. 118 Tajbar S. Rawat, B. L. Menaria, D. Dugaya and P. C. Kotwal, op.cit.

181

119 T. N. Khushboo, Environmental Concerns and Strategies (Second Edition), Ashish Publishing House, New Delhi, p. 507. 120 Ibid, pp. 508-509. 121 Armin Rosencraz and Shyam Divan, Environmental Law and Policy in India: Cases, Material and Statutes (Second Edition), op.cit., p. 232. 122 Ibid, p. 329. 123 Annual Report 2002-03, op.cit. 124 Annual Report 2009-10, op.cit., p. 76-77. 125 Ibid, p. 80. 126 Annual Report 2002-03, op.cit. 127 Annual Report 2009-10, op.cit., pp. 80-81. 128 State of the Environment Report India-2009, op. cit., p. 64. 129 ‗Hi-tech System in Place for Monitoring Tigers‘, The Times of India, 14 April 2010, available at http://timesofindia.indiatimes.com/home/environment/flora-fauna/Hi-tech- system-in-place-for-monitoring-tigers-/articleshow/5804437.cms accessed on 12 October 2010 at 2:30 pm. 130 Annual Report 2002-03, op.cit. 131 Ignatius Pereira, ‗National Heritage Status for Elephant Hailed‘, The Hindu, 22 October 2010, available at http://www.thehindu.com/sci-tech/energy-and- environment/article842972.ece accessed on 5 November 2010 at 9:17 pm. 132 T.N. Khushboo, op.cit., p. 510. 133 ‗Dolphin Declared National Aquatic Animal‘, Ministry of Environment and Forests, Government of India, 18 May 2010, available at http://moef.nic.in/index.php accessed on 24 May 2010 at 4:34 pm. 134 Annual Report 2002-03, op.cit. 135 http://moef.nic.in/ accessed on 18 February 2011 at 9:12 pm. 136 Rajesh Gopal, Fundamentals of Wildlife Management, Justice Home, Allahabad, 1992, p. 573. 137 Vishwajit Singh, op.cit., p. 332.

182

138 Gautam Gupta, ‗Environment, Ecology and Economy‘, in Rabindra N. Bhattacharya (ed.), Environmental Economics: An Indian Perspective, Oxford University Press, New Delhi, 2001, p. 42.

139 Biological Act of 2002, No. 18 of 2003, 5 February 2003, Government of India. 140 B.K. Singh, Biodiversity: Conservation and Management, Mangal Deep Publications, Jaipur, 2004, p. 4. 141 Ibid, p. 144. 142 S. Balaji, ‗Biodiversity Challenges Ahead‘, The Times of India, Delhi, 27 May 2010, p. 10. 143 S.V.S. Rana, op. cit., p. 200. 144 S. Balaji, ‗Biodiversity Challenges Ahead‘, op.cit. 145 Annual Report 2007-2008, Ministry of Environment and Forests, op.cit., p. 42. 146 Annual Report 2008-2009, Ministry of Environment and Forests, op.cit., p. 46. 147 Press Release, The Energy and Resources Institute, available at http://www.teriin.org/index.php?option=com_pressrelease&task=details&sid =194 accessed on 26 May 2010 at 12:29 am. 148 M.S. Swaminathan, ‗Biodiversity, Development, Livelihoods‘, The Times of India, Delhi, p. 10. 149 India hosts World Sea Turtle Symposium, Participants Call for Better Habitat Protection, Goa, May 1st, 2010, available at http://moef.nic.in/downloads/public-information/sea-turtle-symposium- PN.pdf accessed on 18 October 2010 at 11:14 pm. 150 Annual Report 2008- 2009,op.cit., p. 10. 151 Annual Report 2009-2010, op.cit., p. 49. 152 Rajesh Sehgal, ‗Legal Regime Towards Protecting Coral Reefs: An International Perspective and Indian Scenario‘, Law, Environment and Development Journal, International Environmental Law Research Centre (IELRC), Switzerland, Volume 2/2, pp. 185-195. 153 Ibid.

183

154 Annual Report 2008- 2009, op.cit., p. 36. 155 Ibid, p. 37. 156 Ibid, p. 41. 157 Rajesh Sehgal, op.cit. 158 Ibid. 159 Draft Regulatory Framework for Wetlands Conservation for Comments, Ministry of Environment and Forests, Government of India, 24 May 2010. 160 Annual Report 2009- 2010, op.cit., p. 35. 161 Ibid, p. 35. 162 Ibid, p. 36. 163 State of the Environment Report India-2009, pp. 66-67. 164 Urban Environmental Governance for Sustainable Development in Asia and the Pacific: A Regional Overview, Economic and Social Commission for Asia and the Pacific, United Nations, Bangkok, 2005. 165 R. K. Kohli, Local Environmental Issues, Lecture for Students of Environment Education Course of Punjab University, 2005-06, Centre for Environment & Vocational Studies, Punjab University, Chandigarh. 166 National Urban Sanitation Policy, Ministry of Urban Development, Government of India, New Delhi, p. 1. . 167 ‗Half of City Lives in Slums and Illegal Colonies: MCD‘, The Times of India, available at http://timesofindia.indiatimes.com/city/delhi/Half-of-city-lives-in-slums-and- illegal-colonies-MCD-/articleshow/5866268.cms accessed on 12 October 2010 at 1:59 pm. 168 National Urban Sanitation Policy, op.cit., p. 1. 169 State of the Environment Report India-2009, p. 154. 170 Slum-free India in 5 yrs a Reality? The Times of India, July 2010, available athttp://timesofindia.indiatimes.com/india/slum-free-india-in-5-yrs-a- reality/articleshow/4738593.cms accessed on 12 October 2010 at 2:02 pm 171 ‗For Accurate Data, Government Plans to Map Slums‘, The Times of India, 15 February 2010, available at http://timesofindia.indiatimes.com/india/For-

184

accurate-data-govt-plans-to-map-slums/articleshow/5574451.cms accessed

on 12 October 2010 at 2:02 pm. 172 National Urban Sanitation Policy, op. cit. 173 Ashok Kumar, Sustainable Transport Environment in Indian Megacities, available at http://iussp2005.princeton.edu/download.aspx?submissionId=51017

accessed on 12 October 2010 at 1:44 pm. 174 State of the Environment Report India-2009, p. 155. 175 Basudha Chattopadhyay, Sustainable Urban Development in India: Some Issues, National Institute of Urban Affairs, available at http://niua.org/Publications/discussion_paper/basudha_paper.pdf accessed on

12 October 2010 at 1:31 pm. 176 State of the Environment Report India-2009, op.cit., p. 154. 177 Ibid, pp. 153-154. 178 Ibid, p. 154. 179 Ibid, p.156. 180 P. G. Dhar Chakrabarti, ‗Urban Crisis in India: New Initiatives for Sustainable Cities‘, Development in Practice, Volume 11, Number 2 and 3,

May 2001, pp. 260-272. 181 Basudha Chattopadhyay, op. cit. 182 Gaurav Vivek Bhatnagar, ‗Yamuna Cleaning to Take Seven-Eight Years‘, The Hindu, 24 June 2009, p. 4. 183 Annual Report 2009-10, op.cit., pp. 138-139. 184 Ibid, p. 129. 185 Vishwa Jit Singh, op.cit., p. 249. 186 Dinah Shelton and Alexandre Kiss, op.cit., p.127. 187 C. Manoharachary and P. Jayarama Reddy, Principles of Environmental

Studies, B.S. Publications, Hyderabad, 2004, p. 126. 188 Vibha Sharma, ‗India is Favoured Ground for Dumping Toxic e-waste‘, Tribune, 31 October 2007, available at http://www.tribuneindia.com/2007/20071031/nation.htm#1 accessed on 23

August 2010 at 5:12 pm.

185

189 Report to the People on Environment and Forests 2009-2010, Ministry of

Environment and Forests, Government of India, p. 13. 190 Vishwa Jit Singh, op.cit., p. 134. 191 Ibid, p. 135. 192 ‗Rules for e-waste on May 15, Elders told‘, The Pioneer, 20 April 2010,

New Delhi, p. 5. 193 R. Ramachandran, ‗Radiation shock‘, Frontline, Volume 27, Issue 10, May

2010, pp. 25-32. 194 Armin and Shyam, op.cit., p. 547. 195 Barbara Dinham with Satinath Sarangi, ‗The Bhopal Gas Tragedy 1984 to? The Evasion of Corporate Responsibility‘, Environment & Urbanization,

Volume 14, Number 1, 2002, pp. 89-99. 196 V. Venkatesan, ‗Bhopal Gas Disaster: Judicial Failure‘, Frontline, Volume

26, Issue 26, 2009-2010, pp. 32-35 197 Ajoy Ashirwad Mahaprashasta, ‗Bhopal Gas Disaster: Ongoing Tragedy‘,

Frontline, Volume 26, Issue 26, 2010, pp. 36-40. 198 Ibid. 199 Barbara Dinham with Satinath Sarangi, „The Bhopal Gas Tragedy 1984 to?

The Evasion of Corporate Responsibility‘, op.cit. 200 Draft Report of the Expert Committee on Integrated Energy Policy, Planning

Commission, Government of India, New Delhi, 2005, p. 3. 201 S.K. Chopra, Energy Policy for India: Towards Sustainable Energy Security in India in the Twenty First Century, Oxford and IBH Publishing Co. Pvt Ltd., New Delhi, 2004, p. 3. 202 Energy Conservation in India, Shri P M Sayeed, Hon‘ble Minister of Power‘s article on the occasion of Energy Conservation Day, on 14th December 2005. 203 State of the Environment Report India-2009, op.cit., p. 133. 204 ‗Biomass Gasifier-Based Distrbuted/Off- Grid Programme: For Rural Areas and Grid Power Programme‘, Akshay Urja, Ministry of New and Renewable

Energy, Volume 3, Number 3, December 2009, pp. 15-18.

186

205 Sujatha Byravan, Solar Mission: More Light Needed, India Together, 18 May 2010, available at http://www.indiatogether.org/2010/may/byr- solar.htm accessed on 23 August 2010. 206 State of the Environment Report India-2009, op.cit., p. 132. 207 John R. Wood, ‗India's Narmada River Dams: Sardar Sarovar under Siege‘, Asian Survey, Volume 33, Number 10, 1993, pp. 968-984. 208 Kamta Prasad (ed.), Water Resources and Sustainable Development: Challenges of 21st Century, Shipra Publications, 2003, p. 67. 209 Philippe Cullet and Joyeeta Gupta, ‗India: Evolution of Water Law and Policy‘ in Joseph W. Dellapenna & Joyeeta Gupta (eds.) The Evolution of the Law and Politics of Water, Springer Academic Publishers, Dordrecht, 2009, p. 168. 210 Ibid. 211 Annual Report 2007-08, Department of Animal Husbandry, Dairying and Fisheries, Ministry of Agriculture, Government of India, p. 10. 212 Katar Singh and Anil Shishodia, op. cit., p. 295. 213 Ibid, p. 296. 214 Annual Report 2007-08, Department of Animal Husbandry, Dairying and Fisheries, Ministry of Agriculture, Government of India, pp. 2-3. 215 Ibid, p. 61. 216 Ibid, p.73. 217 Rajesh Sehgal, op.cit. 218 Katar Singh and Anil Shishodia, op.cit., p. 293. 219 Vishwa Jit Singh, op.cit, pp. 310-311. 220 State of the Environment Report India-2009, op.cit., p. 98.

187

ENVIRONMENT ISSUES AND THE CONSTITUTIONAL RESPONSE

The Constitution of India came into force on 26th January, 1950. It is the supreme law of India laying down the framework for defining the fundamental principles, determining the structure, procedures, powers and duties of the government, elucidating the fundamental rights, directive principles and fundamental duties of the citizens of India. It declares the Union of India to be a sovereign, socialist, secular, democratic republic, assuring its citizens of justice, equality, and liberty and to promote among them all fraternity.1

The Constitution of India is one of the few constitutions in the world which contain specific provisions for the protection of the environment. The Preamble of the Constitution of India itself, talks about the environment. In the Preamble, it reads, “We the people of India” have solemnly resolved to constitute India into, inter alia a “socialist state”. The problem of environment‟s pollution is a social problem rather than an individual problem. Therefore, the State is under the obligation to pay more attention to social problems and march towards the avowed aim of a just social order.2 The inclusion of the environmental issues in the chapters of fundamental rights, the fundamental duties and directive principles of state policy of the Constitution, all illustrated the fact that our nation is committed to the protection of environment. The involvement of judiciary in the area, further strengthened its national commitment. Originally, the Constitution did not provide provisions for environmental protection except for a few articles like 47 and 48 in the Directive Principles of State Policy. These two Articles direct the State to raise the level of nutrition and the standard of living; and to improve public health and; organisation of agriculture and animal husbandry.3

Gradually, it was realised that environment is fundamental to the survival and development of man and the nation as a whole. If the environment of a nation is 188 degraded and polluted, so will be of the nation. Further, the Stockholm Conference on Human and Environment in 1972, the first of its kind at the international level, realised the need of environmental protection commitment. It clarifies that man has the fundamental right to freedom, equality and adequate conditions of life in an environment of quality that permits a life of dignity and well-being.4 As a result, in 1976, when the forty-second amendment of the Constitution was passed, it provided specific provisions for the protection of the environment and its improvements, in the form of Fundamental Duty and Directive Principles of State Policy. Further, the enactment of Environment (Protection) Act in 1986 was a major and comprehensive step towards the protection of environment.

1. ENVIRONMENTAL LEGISLATIVE STRUCTURE

The Constitution provides for the separation of powers between the Union and the States. It enumerates the powers of the Union and State governments in three lists, namely; Union List, State List and Concurrent List. Part XI (Articles 245-263) of the Constitution governs the legislative and administrative relations between the Union and the States. Article 246 of the Constitution makes division of the legislative areas between the Union and the States with reference to the three lists in the Seventh Schedule of the Constitution. Under Article 246, the Union government has the exclusive power to make laws for the whole or any part of India with respect to matters enumerated in the Union List, containing 97 subjects. Further, the Article provides that the legislature of the State has the exclusive power to make laws for such State or any part thereof with respect to matters enumerated in the State List which comprises 66 subjects. Moreover, the Article provides that the Parliament and the State legislature have the power to make laws with respect to any of the matters enumerated in the Concurrent List.5 Article 249 provides that the Parliament has the power to make laws with respect to matters enumerated in State Lists under certain conditions for the national interest.6 The important environmental legislations passed by the Parliament under Article 249 of the Constitution are The Water (Prevention and Control of Pollution) Act, 1974; The Air (Prevention and Control of Pollution) Act, 1974; The Air (Prevention and Control of Pollution) Act, 1981; and the Environment (Protection) Act, 1986. In total, there are about 200 central and state legislations on environmental protection.7 189

In context of environmental issues, the Union list contains subjects like: 8

 Atomic energy and mineral resources necessary for its production.

 United Nations.

 Participation in international conferences, associations and other bodies and implementing of decisions made thereat.

 Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.

 Foreign jurisdiction.

 Piracies and crimes committed on the high seas or in the air; offences against the law of nations committed on land or the high seas or in the air.

 Shipping and navigation on inland waterways, declared by Parliament by law to be national waterways, as regards mechanically propelled vessels; the rule of the road on such waterways, Property of the Union and the revenue therefrom, but as regards property situated in a State.

 Airways; aircraft and air navigation; provision of aerodromes; regulation and organisation of air traffic and of aerodromes; provision for aeronautical education and training and regulation of such education and training provided by States and other agencies.

 Trade and commerce with foreign countries; import and export across customs frontiers; definition of customs frontiers.

 Establishment of standards of weights and measures.

 Establishment of standards of quality for goods to be exported out of India or transported from one State to another.

 Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest.

190

 Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.

 Regulation of labour and safety in mines and oilfields.

 Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.

 Fishing and fisheries beyond territorial waters.

 Union agencies and institutions for-

a. professional, vocational or technical training, including the training of police officers; or

b. (b) the promotion of special studies or research; or

c. (c) scientific or technical assistance in the investigation or detection of crime.

 The Survey of India, the Geological, Botanical, Zoological and Anthropological Surveys of India; Meteorological organisations.

 Offences against laws with respect to any of the matters in this list.

 Inquiries, surveys and statistics for the purpose of any of the matters in this list, respect to any of the matters in this list; admiralty jurisdiction.

Relatively, the following subjects related to environmental issues are contained in the State list:9

 Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining, settlement authorities and other local authorities for the purpose of local self- government or village administration.

 Public health and sanitation; hospitals and dispensaries.

191

 Libraries, museums and other similar institutions controlled or financed by the State; ancient and historical monuments and records other than those [declared by or under law made by Parliament] to be of national importance.

 Communications, that is to say, roads, bridges, ferries, and other means of communication not specified in List I; municipal tramways; ropeways; inland waterways and traffic thereon subject to the provisions of List I and List III with regard to such waterways; vehicles other than mechanically propelled vehicles.

 Agriculture, including agricultural education and research, protection against pests and prevention of plant diseases.

 Preservation, protection and improvement of stock and prevention of animal diseases; veterinary training and practice.

 Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 56 of List I.

 Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.

 Fisheries.

 Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union.

 Industries subject to the provisions of [entries 7 and 52] of List I.

 Gas and gas-works.

 Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-operative societies.

192

 Taxes on lands and buildings.

 Offences against laws with respect to any of the matters in this List.

Under the Concurrent list, the Parliament and the legislatures of States have overlapping and shared jurisdictions. It contains the following subjects in reference to environmental issues:10

 Evidence and oaths; recognition of laws, public acts and records, and judicial proceedings.

 Prevention of cruelty to animals.

 Forests and protection of wild animals and birds.

 Economic and social planning.

 Trade and commerce in, and the production, supply and distribution of-

a. the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products;

b. foodstuffs, including edible oilseeds and oils;

c. cattle fodder, including oilcakes and other concentrates;

d. raw cotton, whether ginned or unginned, and cotton seed; and

e. raw jute.

 Factories.

 Boilers.

 Archaeological sites and remains other than those [declared by or under law made by Parliament] to be of national importance.

 Inquiries and statistics for the purposes of any of the matters specified in List II or List III.

 Custody, management and disposal of property (including agricultural land) declared by law to be evacuee property. 193

These divisions of environmental issues among different lists are according to the effectiveness of policies. Some environmental problems like forest and wildlife can be dealt by the central government while others, such as, sanitation and waste disposal can be dealt more effectively at the local level and are, thus, under the State jurisdiction. The subjects in these lists were not included from the beginning. It was through a number of amendments that various subjects were added gradually.

International Obligations:

Article 253 of the Constitution of India states that:

“Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.”11

It is under this Article of the Constitution that it becomes necessary for the government of India to take environmental measures in reference to international treaties, agreements and conventions or bodies. Accordingly, the Water (Prevention and Control of Pollution) Act, 1974; the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 were enacted under this Article of the Constitution. These Acts were, thus, enacted to implement the decisions reached at the United Nations Conference on Human Environment held at Stockholm in 1972. For instance, the preamble to the Environment (Protection) Act of 1986 provides:

Whereas the decisions were taken at the United Nations Conference on the Human Environment held at Stockholm in June, 1972, in which India participated, to take appropriate steps for the protection and improvement of human environment;

And whereas it is considered necessary further to implement the decisions aforesaid in so far as they relate to the protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants and property;

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The Supreme Court in the case of Vellore Citizen’s Welfare vs. Union of India held that it is almost an accepted proposition of law that the rules of customary international law which are not contrary to the municipal law shall deemed to have been incorporated in the domestic law and shall be followed by the courts of India.12 Apart from this, there are numerous treaties and agreements of environmental nature that India has to obligate. Under different treaties, obligations vary, depending on the treaty itself. The factors that affect the obligations of the nation to a treaty are:13

i. The capabilities and staff of an international institution charged with coordinating national compliance efforts, if there is one;

ii. The willingness of other state parties to enforce or comply with the treaty;

iii. The political agenda of the government and popular support;

iv. Trade and diplomatic pressures brought to bear by other countries; and

v. Sometimes, judiciary or NGO involvement through court cases and publicity.

India, like other nations, obligated herself either as a Contracting Party (CP) by ratifying treaties or as a Signatory (S) by officially signing the treaties and agreeing to carry out provisions of various treaties. In total, India has obligated herself to the following treaties in terms of environment:14

i. The Antarctica Treaty (Washington, 1959)

ii. Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (Ramsar, 1971)

iii. Convention Concerning the Protection of the World Cultural and Natural Heritage (Paris, 1972)

iv. Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington, 1973)

v. Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL) (London, 1978)

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vi. Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 1979)

vii. Convention on the Conservation of Antarctica Marine Living Resources (Canberra, 1980) viii. United Nations Convention on the Law of the Sea.(Montego Bay, 1982)

ix. Convention for the Protection of the Ozone Layer (Vienna, 1985)

x. Protocol on Substances that Deplete the Ozone Layer (Montreal, 1987)

xi. Amendments to the Protocol on Substances That Deplete the Ozone Layer (London, 1990)

xii. Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel, 1989) xiii. United Nations Framework Convention on Climate Change (Rio de Janeiro, 1992) xiv. Convention on Biological Diversity (Rio de Janeiro, 1992)

xv. Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (Paris, 1994) xvi. International Tropical Timber Agreement (Geneva, 1994) xvii. Protocol on Environmental Protection to the Antarctica Treaty (Madrid, 1991)

Further, Article 262 of the Constitution deals with adjudication of disputes relating to matters of inter-state rivers, or river valleys and reads as under:

(i) Parliament may by law provide for adjudication on any dispute or complaint with respect to the use, distribution or control of the waters of, or in any inter-state river or river valley.

(ii) Notwithstanding anything in this Constitution, parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in Clause (1).15

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The Union government has enacted Inter-State Water Dispute Act, 1956 and River Boards Act, 1956 under Article 262 and Entry 56 of List I of the Constitution.16

2. FUNDAMENTAL RIGHTS

The environmental dimension of human rights was recognised at the international level in 1968 when the United Nations General Assembly passed a resolution identifying the relationship between the quality of the human environment and the enjoyment of basic rights. This was followed by the landmark Stockholm Conference in 1972. 17

The Principle 1 of the Stockholm Declaration states “the fundamental right (for man) to freedom, equality, and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being…” The United Nations General Assembly, in its Resolution 45/94, categorically recognised that all individuals are entitled to healthy environment. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights recognize “an inherent right to life” of every human being through “the improvement of all aspects of environmental and industrial hygiene.” The Economic, Social and Cultural Rights also recognise the importance of a healthy environment, decent living conditions and health. In 1981 The African Charter of Human and People's Rights was adopted, of which Article 24 recognises that “all peoples shall have the right to a general satisfactory environment favorable to their development.” Further in Europe, the Organisation of Economic and Cooperation and Development (OECD), the United Nations Economic Commission for Europe and the Organisation of American States, all directly and indirectly acknowledged the human right to a clean environment.18 In 1990, the United Nations General Assembly declared that “all individuals are entitled to live in an environment adequate for their health and well-being.” The United Nations Commission on Human Rights also adopted a resolution in 1990, entitled „Human Rights and Environment‟, which again reaffirmed the relationship between preservation of environment and the promotion of human rights.19

Besides these international organisations, few countries have also adopted the environment rights in their constitutions. For instance, Section 20 of the Constitution

197 of Finland prescribes that while protection of the nature is the responsibility of everyone, the public authorities shall endeavour to guarantee for everyone the right to a healthy environment. Article 45 of the Constitution of Spain also sets out a right to an adequate environment. According to Article 9 and 66 of the Constitution of Portugal, effective environmental protection is a fundamental task of the State, but also a fundamental right. The Constitution of Greece also states that environmental protection is a right of everyone.20

By associating the environment issues with the human rights at the international level, the Indian judiciary also interpreted the Articles of the Constitution in this sphere. In India, the fundamental rights of the citizens are discussed in the Part III of the Constitution from Articles 12 to 35.21 The following Articles of the Constitution, directly or indirectly, deal with environmental protection.

Article 14 says that "State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

Thus, the Article guarantees that the laws of the government of India will provide every person with equality including fairness, justice and reasonableness. In context of environment, the laws of the country should provide every person with equally healthy environment. The government has no right to take away the rights of a person to live in a polluted-free environment. The concept of intergenerational equity can also be covered in this Article,22 which states that every human of every generation has the right to benefit from the nature and its components.

Article 15(2) (b) says that “No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them be subjected to any disability, liability, restriction or condition with regard to: the use of wells, bathing ghats, roads and places of public resort, maintained wholly or partly out of State funds or dedicated to the use of general public.”

This Article guarantees that every person, irrespective of his religion, race, caste, sex, place of birth, etc has the right to use the natural resources of the nation as well as the resources of human environment or „inbuilt environment.‟ Everyone in the country has the right to use the resources and produce, from the environment according to the need. No person can be restrained from using the adequate resources of the nation.

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Article 19 (1) (a) and 19 (1) (c) says “All citizens shall have the right to freedom of speech and expression and to form associations or unions.”

Under this Article every citizen has the right to express and discuss about the state of the environment and its degradation and to form associations and organisations for the protection of the environment. It is under this Article, that in India, number of NGOs have been formed for the environmental protection such as; Centre for Science and Environment (CSE), Bombay Natural History Society, Friends of the Doon, Indian Association for Environmental Management (IAEM), Dasholi Gram Swarajya Mandal, Green Future Foundation, Narmada Bachao Andolan, Nilgiri Wildlife and Environment Association, The Energy and Resources Institute (TERI), Kalpavriksh, and so on. Apart from these, some environmental international organisations also work in India at the local level, independently or in collaboration with some other organisations like WWF, Greenpeace etc. Also a number of fortnightly, monthly, quarterly and annual newsletters, journals and magazines like; Down to Earth, Journal of Education for Sustainable Development (JESD), International Journal of Ecology and Environmental Sciences etc. are published to inform citizens about the condition of the environment.

The other aspect of the right under this Article in reference to environment is that no one has the right to express or form associations or unions of any matter in such a way that peace and tranquility of the neighbourhood is disturbed. A number of rulings have been provided by the judiciary from time to time to give guidelines about the extent of this right. This right has also caused pollution, in particular, noise pollution. In Birangana Religious Society vs. Orissa case (1996 100 Cal WN 617) the Court upheld the power of the Sub-Divisional Magistrate to direct a religious organisation against the use of microphones, which might hinder the rights of citizens to lead a life of peace and tranquility. Likewise, the Kerala High Court asked a Christian denomination not to use loudspeakers on the ground that it would disrupt the law and order and it might be inconvenient for the other groups of citizens (P A Jacob v. S. V. Kottayam, AIR 1993 Ker 1). Rejecting the petitioner‟s claim of freedom of speech and expression, the Court held that recognition of the right of speech and expression is a recognition accorded to the human faculty. A right belongs to human personality and not to a mechanical device.23

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In a series of judgments, the Supreme Court of India has held that the disclosure of information about government and the right to know about government flows from the guarantee of free speech and expression in Article 19 (1) (a) of the Constitution of India. In 1982, „S.P. Gupta v. President of India‟ the Court observed that:

“This is the new democratic culture of an open society towards which every democracy is moving and our country should be no exception. The concept of an open government is the direct emanation from the right to know which seems to be implicit in the free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of government must be the rule, and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the court must be to attenuate the area of secrecy as much as possible consistent with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest.” 24

Similarly, in a case that involved rejection of the demands of an environmental action group to access municipal records to examine the legality of certain actions of the Pune Cantonment Board, the Bombay High Court held that the right to know was implicit in the right of free speech and expression. As such, disclosures of information as to the functioning of the government should be the norm and secrecy an exception justified only where the strictest requirement of public interest so demanded, 25 it opined.

However, with the passing of the Right to Information Act, 2005, right to information has been given the status of a fundamental right under Article 19 (1) of the Constitution. Every citizen has the right to know how the government works; what role it plays; what are its powers and functions; how actions are taken, and on what grounds; and so on. Every person or group including environmental groups can get facts about the environmental details like decision-making and implementation of policies regarding development projects, the pollution of any area, crisis of resources, environmental costs of dams and factories, financial cost of environmental projects and plans, proposed amendments of ministries, government response to environmental policies and many more. This right has become a prominent means to collect information about environmental issues. Many cases are 200 coming up regarding environment. It was found that pertaining to environment, maximum queries i.e. 125,418 were about the Urban Development Department in 2009.26 Moreover, the government even suggested United Nations Framework Convention on Climate Change which is charged with the credibility and accountability to the Intergovernmental Panel for Climate Change (IPCC) to introduce „Right to Information‟ to its system.27

Article 19 (1) g and 19 (6) says that “All citizens shall have the right to practise any profession, or to carry on any occupation, trade or business.” This article provides the freedom of occupation and profession but if the industry or any other activity is degrading or polluting the environment including water, air, soil and others, it can be restrained reasonably in the public interest under 19(6). In the Godham Construction Co. vs. Amulya Krishna Ghose case (AIR 968 Cal 91) the court held that a person causing noise can be restrained by injunction, even though that person was causing noise in the course of conducting his business.28

Article 21 says “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The Supreme Court of India has widened the scope of Article 21 by stipulating that clean environment is essential for human survival and thus is a fundamental right. From time to time, in the number of cases, the Supreme Court has held that the right to enjoyment of a pollution free environment can be conferred as right to life under Article 21. In the Subhash Kumar v. State of Bihar case, the Supreme Court observed that:

“Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of the Constitution.”

Article 32(1) says “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.”

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Article 32(2) says “The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.”

Ultimately these Constitutional remedies give authority to the Supreme Court to directly intervene for the protection of the environment. The Maneka Gandhi‟s case (AIR 1978 Supreme Court 597) revolutionized the scope of the Article 21 of the Constitution i.e. right to life with the involvement of the scope of environmental protection.

Thus, the Supreme Court of India gets the acclaim for the foundation of environmental rights and to enforce them as fundamental rights. There is no direct articulation of the Right to Environment anywhere in the Constitution or, for that matter, in any of the laws concerning environmental management in India. But this has been seized by activist lawyers, motivating the courts to find and construct environmental rights from the available legal material.29 Article 226 of the Constitution provides High Court with the power to issue certain writs. It states that:

“Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.”

3. DIRECTIVE PRINCIPLES OF STATE POLICY

The duties of the state governments in the context of environment protection have also been discussed at the international level. Article 30 of the Charter of Economic Rights and Duties of States of 1974 states:

“The protection, preservation and enhancement of the environment for the present and future generations is the responsibility of all States. All States shall endeavour to establish their own environment and development 202

policies in conformity with such responsibility. The environmental policies of all States should enhance and not adversely affect the present and future development potential of developing countries. All States have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. All States should co-operate in evolving international norms and regulations in the field of the environment.”30

Apart from this, a number of environmental treaties, protocols and agreements made at the international level by different nations, calls upon the government of the nations to take measures for environment protection. Therefore, the Government of India included this duty in the Part IV of the Constitution i.e. from Article 39 to Article 43 which deals with the Directive Principle of State Policy. These are the guidelines to be considered while framing the laws and policies by the Government of India including state and local governments. These are not enforceable by the courts but are necessary to establish a just society. They have been declared to be fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws. The following Articles under the Directive Principles of State Policy can be considered to be relevant for the protection of the environment.

Article 38 states “State shall strive to promote the welfare of the people.”

Since protection of the environment from degradation is for the welfare of the people, therefore this Article promotes the protection of the environment.

Article 39 (b) says “The State shall, in particular, 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.”

Under this Article, there is provision for the equal control and distribution of the natural resources. No one has the right for example, to own a common well of a village. Everyone has the authority to use the water of the well.

Article 39 (c) says “The State shall, in particular, direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;”

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Under this Article the state should take care that the economic system should not cause harm to the common people. This includes the examples of mining, industries and factories causing pollution and degrading the environment and health of the people. Also, in context of environment, it can be said that the state should not be involved in economic activities that lead to unsustainable exploitation of resources.

Article 47 says “The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating drinks and of drugs which are injurious to health.”

This Article states that the government should provide provisions for the nutrition, good health and adequate standard of living of the people. For good health, it is necessary that the environment should also be in good condition. Even the Supreme Court in Municipal Council, Ratlam vs. Vardhichand stressed that the State will realize that Article 47 makes it a paramount principle of governance that are steps taken for the improvement of public health as amongst its primary duties.31

Article 48 says “The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.”

This Article provides protection and preservation of the animals. It also provides for the increase in the production of agriculture and animal husbandry in order to feed the population.

Article 48 A says “The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.”

This is the principal Article under the Directive Principles of State Policy for the protection of the environment in specific forests and wildlife. This Article was added with the Forty-Second Amendment of the Constitution in 1976 (w. e. f. 3-1-1977)

Article 49 says “It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, [declared by or under law made by

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Parliament] to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.”

This Article states that the government should protect even the inbuilt environment of the man including monuments. It is under this Article of the Constitution the government has been taking steps to protect the Taj Mahal.

Article 51(a) says “The State shall endeavour to promote international peace and security.”

Article 51(c) says “The State shall endeavour to foster respect for international law and treaty obligations in the dealings of organized peoples with one another.”

Under these two Articles the state has to obligate the international treaties, peace and security regarding the environment. The Bangladesh security conflict case can be dealt under this provision.

These directive principles of state policy lack judicial sanction, but the real purpose behind these sanctions is political in nature and not legal. As they intended to establish a welfare state, no democratically elected government can ignore them in view of erosion of public support. Dr. Ambedkar had rightly observed in the Constitutent Assembly, “If any government ignores them, they will certainly have to answer for them before the electorate at the election time.” Also, noted Constitutional expert, D.D. Basu, while recognising the political sanctions behind these principles, says, “It would also be a patent weapon at the hands of the opposition to discredit the government on the ground that any of its executive actions or legislative Acts is opposed to the Directive Principles.”32 However, in India, political parties have not still paid much attention to the field of environmental protection. They have only talked about environment protection but did nothing practically. During the sixth general election, the Congress (I) party expressed deep concern at the depletion of the wildlife and forests. It stated “Projects which bring economic benefits must be so planned as to preserve and enhance our national wealth, our flora and fauna.” The Lok Dal stated that it “will pursue a vigorous policy of protecting the environment.” Similar statements were also expressed by Janata Party and the Indian National Congress (U).33 But the successive governments promoted only increased production at the cost of

205 environmental protection. The Congress Party sponsored most of the environmental policies, but it also catered to the interest of big business at the expense of environmental protection. Also, the United Front has tended to target only big business rather than small businesses. The BJP has explicitly favoured business interests over environmental concerns.34

During the elections in 2004, the Election Commission appealed to political parties to avoid using plastics during the election campaign. It also banned the use of live birds and animals by political parties who have been allotted these symbols and also wanted to control any kind of noise pollution in the name of campaigning. The Commission further reminded of a standing order to prevent defacing of any property by pasting posters, writing slogans and drawing symbols.35 However, in spite of these reminders, the political parties took no measures to prevent environmental degradation.36 Nevertheless, recently one of India's leading environmental crusaders named Subhash Dutta has planned to launch India‟s first „Green Party‟ on the lines of political formations in Germany, Australia, the US and the UK that have environment protection, sustainable growth and inclusive development at their core. 37

4. FUNDAMENTAL DUTIES

Our rights need to confirm our duties. All religions of the world stress upon the individual‟s responsible behaviour towards the environment; therefore everyone on this planet should pay an obligation to sustain our natural resources. For instance, Hindu religion shows concern in a number of ways for nature. Islam also guides the Muslims and says “humanity has been given the guardianship over God‟s heaven and earth, but no outright ownership”.38 Recently, in 2009, on Annual World Day of Peace, the Pope of the Roman Catholic Church also talked about the moral duty of the people to protect environment, particularly the rich countries. He said, "Our present crises -- be they economic, food-related, environmental or social -- are ultimately also moral crises, and all of them are interrelated." He called on all people to "move beyond a purely consumerist mentality" so that they could "rethink the path which we are traveling together" and adapt "a lifestyle marked by sobriety and solidarity" between the haves and the have nots. Further, he also said that the

206 international community and governments had a moral duty to "send the right signals" to effectively combat misuse of the environment.39

Professor Dwivedi tells that “the role of a code is to provide incentives so that individuals may act in a way which is conducive, not only to their self-preservation, but also to the well-being of the environment which sustains them. Such inner incentives become necessary when the external inducements, in the form of government directives, laws, or regulations are either unenforceable or not altogether workable. Another function of the code is to act as adaptive instrument that encourages our obligation towards nature, which is seen as provider and sustainer of our life system.”40

The United Nations Conference on Human Environment 1972 also recognised the duties of the people for environmental protection, apart from the fundamental rights. However, these declarations recognised a sense of environmental ethics rather than environmental duties. The Principle I of the Declaration says

“…he bears a solemn responsibility to protect and improve the environment for present and future generations.”41

Further, the Principle 4 says

“Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat…”42

The first draft of the report on the World Conservation Strategy for the 1990s also discussed this issue widely:

a) People should respect nature, like all creatures we are an integral part of nature as well as users and consumers of nature

b) Every life form is unique and warrants respect regardless of its worth to people

c) All persons should ensure the means of survival of all other life forms; and should not knowingly cause the extinction of other species;

d) People should treat all creatures humanely, and protect them from cruelty and avoidable suffering.43

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All these led the Government of India to adopt the protection of environment as the fundamental duty of a citizen of India. The fundamental duties of the citizens of India form the Part IV A of the Constitution and were included by the Constitution (Forty-second Amendment) Act, 1976. These duties are the moral obligations to be followed by the citizens of India in order to uphold the unity of the nation. Article 51A (G) of the fundamental duties is relevant to the protection of the environment. It states “to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.” Apart from this, Part (i) of the Article also states to protect public property, thus including the man- built environment. It stipulates “to safeguard public property and to abjure violence.” Furthermore, in the L.K. Koolwal vs. State of Rajasthan case, the court observed:

“Right and duty co-exists. There cannot be any right without any duty and there cannot be any duty without any right…We can call Article 51A ordinarily as the duty of the citizens, but in fact it is the right of the citizens as it creates the right in favour of the citizen to move to the Court to see that the State performs its duties faithfully and the obligatory and primary duties are performed in accordance with the law of land.” 44

Apart from these, Part IXA of the Constitution which deals with the area of Municipalities has provisions for the environment. Article 243 ZD (3)(a) states that, “Every District Planning Committee shall, in preparing the draft development plan have regard to matters of common interest between the Panchayats and the Municipalities including spatial planning, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation.”45 Article 243W (a) (ii) of the Constitution provides provisions for the Municipalities “the performance of functions and the implementation of schemes as may be entrusted to them[by the legislature of a State] including those in relation to the matters listed in the Twelfth Schedule.”46 The matters relevant to protection of environment in the Twelfth Schedule are: 47

 Urban planning including town planning

 Regulation of land-use and construction of buildings

 Water supply for domestic, industrial and commercial purposes

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 Public health, sanitation conservancy and solid waste management

 Urban forestry, protection of the environment and promotion of ecological aspects

 Cattle pounds; prevention of cruelty to animals

 Regulation of slaughter houses and tanneries

The Eleventh Schedule of the Constitution also provides provisions for the protection of the environment through Article 243G (b) which says “Subject to the provisions of this Constitution, the legislature of a State may, by law, endow Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule”. In context of environment, these may include:48

 Agriculture, including agricultural extension.

 Land improvement, implementation of land reforms, land consolidation and soil conservation.

 Minor irrigation, water management and watershed development.

 Animal husbandry, dairying and poultry.

 Fisheries.

 Social forestry and farm forestry.

 Drinking water.

 Non-conventional energy sources.

 Health and sanitation, including hospitals, primary health centres and dispensaries.

 Maintenance of community assets.

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Though India is one of the first countries in the world to make provisions for the protection of environment in the Constitution, it faces certain drawbacks. For instance, it has failed to recognise some other forms of pollution like vibrations, electromagnetic waves, radiation, light pollution, ozone layer depletion, rise in temperature and offensive odors. This negligence may affect the environment severely.49 Further, the indigenous people do not know of their rights so the possibility of their claiming for the rights is very limited.

5. PARLIAMENT AND THE ENVIRONMENT

The Parliament of India which is the supreme bicameral legislative body of the country consists of the office of President of India and two chambers, the House of People, known as the Lok Sabha and the Council of States, known as the Rajya Sabha. Part V of the Indian Constitution vests all legislative powers in the Parliament i.e. the President of the Republic of India and both the Chambers. The Members of Parliament belong to different political parties in addition to representing the rich geographical and cultural diversity of the country.50 The House and the Council are equal partners in the legislative process i.e. legislation cannot be enacted without the consent of both chambers, but in certain cases the Constitution grants the House of People some unique powers. Thus, the legislation of every sector in India including environment, is passed and enacted by the Parliament of India. The parliamentary system of India implement that the Executive not only emanates from Parliament but is also accountable to Parliament for all its acts of omission and commission.51 The role of Parliament has not been limited to only enacting legislations but has widened to ensure executive accountability, control over the budget, constituent functions, representational role, educational role, informational functions, training and recruitment of leadership, besides other miscellaneous functions.52

In 1984, ENVIS Centre 07 of the Ministry of Environment and Forests, was established in WWF-India to handle environment-related information on the Parliament, besides NGOs and the media. This is now a regular programme of monitoring parliamentary proceedings to collect and disseminate information relevant to environment issues. A substantial amount of environment-related information is exchanged in both the Houses of Parliament in response to queries and call attention notices raised by the members.53 In 1980, there were 387

210 environment related questions raised in Parliament, the number skipped to 633 the following year and reached the peak in 1986 with 1552 environmental questions asked in Parliament.54

Further, to be more comprehensible about environment related issues, the questions or statements are divided into 24 categories. The subjects are agriculture, alternative technologies, bio-safety, climate change and meteorology, disaster management, energy studies, environment and forest trade issues, environmental conservation, environmental education, NGOs and media, environment impact assessment, forest conservation, freshwater and marine conservation, health and sanitation, medicinal plants, water management, wildlife management etc. For instance, during 2004, in the Lok Sabha eight questions were asked in the field of agriculture and all were unstarred. In climate change, eight question out of which one was starred, five questions in mining and all were unstarred, two questions of sustainable development and were unstarred, sixteen questions of waste management of which all were unstarred, four questions of water management and all were unstarred, ten questions of biosafety and two were starred.55

Moreover, the response of Ministries varies in the matters of environment raised in the Parliament. For instance, in the Lok Sabha in 2005, the maximum number of questions were addressed to the Ministry of Environment and Forests, followed by Ministry of Water Resources, Ministry of Agriculture and Ministry of Non- Conventional Energy Resources.56 Correspondingly, in the Rajya Sabha, the maximum number of questions were addressed to Ministry of Environment and Forests, followed by Ministry of Water Resources, Ministry of Non-Conventional Energy Sources and Ministry if Home Affairs.57 These parliamentary questions have proved to be an effective tool for focusing attention of ministries, exposing lacunae and forcing action.58

Apart from these questions, a flurry of activities, events and information are discussed in the Parliament. During the period from March to December 2009, the main environment issues discussed in the Parliament were forest conservation, climate change and fresh and marine water conservation. During this period, the Parliamentary Committee urged the government to grow crops other than growing methane emissions and avoid negative impacts of paddy cultivation on the environment and climate. Delhi Cabinet decided to make it obligatory for land 211 allotment agencies to seek its “No Objection Certificate” before putting to use the Delhi ridge, forest or deemed forest land for non-forestry purposes and allowing construction projects or activity in or around them. Chief Minister Sheila Dikshit vowed to make Delhi a “zero plastic zone” and announced penal action against the violators. She also announced to develop 10 more forest in various part of Delhi. Rajasthan signed tripartite pact on saving tigers and so on.59 In the winter Lok Sabha session of 2009, 177 questions were addressed to Ministry of Environment and Forests pertaining to different subjects of environment. In the winter session of Rajya Sabha in 2009, 229 questions were addressed pertaining to environment.60

During January to March 2010, the major environment issues highlighted include food security, introduction of GM crops, solar energy, water conservation techniques, climate change, tiger conservation etc. Plans of creating “Solar Valleys” across the country were considered to deal with increasing pollution and exhausting fossil fuels. Ministers of about 10 states had opposed the plans of introducing GM crops in India. One of the major controversies during this period was IPCC report on melting Himalayan glaciers, which was proved wrong by the report issued by Ministry of Environment and Forests on climate change. Issues relating environment clearance delay afforestation, river conservation, tiger conservation planning i.e. launching of tiger information website, various programmes, newsletter launching etc. were also discussed.61

Besides these activities carried out in the Parliament in matters of environment, the department related standing parliamentary committee also carries out the work in the Parliament to promote intelligent participation of the members of Parliament in the working of different departments of the government.62 Its functions are to consider the Demands for Grants of the Ministry and make reports to the Houses, to examine such Bills as are referred to the Committee by the Chairman, Rajya Sabha or the Speaker, Lok Sabha, as the case may be, and make reports thereon; to consider Annual Reports of Ministry and make reports thereon; and to consider policy documents presented to the Houses, if referred to the Committee by the Chairman, Rajya Sabha or the Speaker, Lok Sabha, as the case may be, and make reports thereon.63

212

The latest report of the Parliamentary Standing Committee on Environment & Forests was presented to Rajya Sabha on 17 February 2009. In this report, serious concern over the ineffective implementation of Ganga Action Plan and Yamuna Action Plan was expressed. This report of the Committee dealt with the action taken by the Ministry of Environment and Forests on the recommendations contained in the 188th Report of the Department-related Parliamentary Standing Committee on Science and Technology, Environment and Forests on the Demands for Grants (2008-2009) of the Ministry of Environment and Forests which was presented to the Rajya Sabha on 29th April, 2008. There were twenty-one recommendations in the Report of the Committee.64

Furthermore, the President of India is also concerned about the issues of environment. The President time to time in his/her speech, has talked about environment protection and policies related to it. Recently, the President of India gave a speech at the inauguration of the Delhi International Renewable Energy Conference in October 2010. In that speech, she talked about the energy conservation, security and sustainable development.65 In fact, the official website of the President of India called upon suggestions and concerns for the environmental policy.66 The Vice-President of India also talked about environment issues in his speeches. In a speech he said, “Security today is viewed as human security. It goes beyond state security in the traditional sense and encompasses environmental protection, resource security, sustainable development, basic amenities, good governance, social justice, and human rights.”67

Moreover, the President's estate (Rashtrapati Bhawan) became the first urban habitat in the country to be ISO 14001:2004 Certified (standards set by the International Organisation for Standards (ISO) for Environmental Management Systems) under the Project „Roshini‟, inaugurated by the President of India in 2008. A host of energy saving measures has been initiated in the estate under the project. This includes, ban on usage of Plastic bags and replacement by more eco-friendly products, plantation of 11000 trees, a nature trail spread over 75 acres has been developed,68 electronic synchronisation of street and security lights with sunrise and sunset, use of energy efficient pumps, lights and equipment besides use of renewable

213 energy sources like solar energy, bio-gas plant, and piped natural gas, among others. As per the statistics of the Rashtrapati Bhavan, during January-June 2009, 78.95 lakh units of electricity were consumed in the President‟s estate. But, due to the energy efficient measures, the corresponding electricity consumption from Jan-June 2010 has come down to 64.03 lakh units, which is a reduction of 14.92 lakh units, saving more than Rs. 90 lakh.69

214

REFERENCES

1 Preamble, The Constitution of India (As modified up to the 1st December, 2007), Ministry of Law and Justice, Government of India, p. 1.

2 Ravindra N. Saxena and Sangita Saxena, The Handbook of Environment and Forest Legislations, Guidelines and Procedures in India (with special reference to mining) Green Publishing House, New Delhi, 2003, p. 146.

3 Article 47 and Article 49, Directive Principles of State Policy, The Constitution of India, op.cit., p. 23.

4 Gurdip Singh, Environmental Law: International and National Perspective, Lawman Publishers, New Delhi, 1995, p. 48.

5 The Constitution of India, op.cit., p. 152.

6 Ibid, p. 153.

7 Abhigyan Bhowmick, Shit Environment, available at http://legalservicesindia.com/article/print.php?art_id=170 accessed on 6 November 2010 at 6:34 pm.

8 Union List, Seventh Schedule, The Constitution of India, op.cit., pp. 315- 321.

9 State List, Seventh Schedule, The Constitution of India, op.cit., pp. 321-326.

10 Concurrent List, Seventh Schedule, The Constitution of India, op.cit., pp. 326-329.

11 The Constitution of India, op.cit., p. 155.

12 P.S. Jaswal and Nishtha Jaswal, Environmental Law: Environment Protection, Sustainable Development and the Law (Second Edition) Allahabad Law Agency, Faridabad, 2003, pp. 35-36.

215

13 Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India: Cases, Materials and Statutes (Second Edition), Oxford University Press, New Delhi, 2001, p. 581.

14 Ibid, pp. 582-583.

15 The Constitution of India, op.cit., p. 159.

16 Kamta Prasad (ed.), Water Resources and Sustainable Development: Challenges of 21st Century, Shipra Publications, 2003, p. 261.

17 Mohd. Yousuf Bhatt, Environment and Human Rights, Reference Press, Delhi, 2004, p. 27.

18 Sailaja Gullapalli, „Environmental Rights, Values and Duties‟, World Focus, Volume 30, Number 9, 2009, pp. 390-392.

19 Mohd. Yousuf Bhatt, op. cit., p. 28.

20 Jonas Ebbesson, „Comparative Introduction‟, in Jonas Ebbesson (ed.) Access to Justice in Environmental Matters in the EU , Kluwer Law International Publishers, The Hague, 2002, p. 23.

21 Fundamental Rights, The Constitution of India, op.cit., pp. 6-20.

22 Armin Rosencraz, Shyam Divan and Martha L. Noble, Environmental Law and Policy in India: Cases, Materials and Statutes, N. M. Tripathi Private Limited, Bombay, 1991, p. 60.

23 Sairam Bhat, „Noise and the Law‟, India Together, 2003, available at http://www.indiatogether.org/2003/nov/law-noise.htm accessed on 25 October 2010 at 5:37 pm.

24 Abhishek Singhvi, „ Ensuring Transparency‟, Seminar: Our Corrupted Core, Volume 502, June 2001, pp. 49-55.

25 M. K. Ramesh, „Environmental Justice: Courts and Beyond‟, Indian Journal of Environmental Law, Volume 3, Number 1, 2002, available at

216

http://www.nlsenlaw.org/environmental-protection/articles/environmental- justice-courts-beyond/ accessed on 8 November 2010 at 6:05 pm.

26 Maharashtra receives more RTI queries than Britain, Mexico: Study, 18 April 2010, available at :

http://timesofindia.indiatimes.com/city/mumbai/Maharashtra-receives-more- RTI-queries-than-Britain-Mexico-Study/articleshow/5827998.cms accessed on 6 November 2010 at 5:00 pm.

27 Priscilla Jebaraj, „India Suggests RTI for Climate Change Bodies‟, The Hindu, Delhi, 26 March 2010, p. 5.

28 Sairam Bhat, op. cit.

29 M. K. Ramesh, op. cit.

30 Charter of Economic Rights and Duties of States A/RES/29/3281, General Assembly, United Nations, 12 December 1974.

31 Municipal Council, Ratlam vs. Vardhichand and Others AIR 1980 SC 1622.

32 Arunoday Bajpai, „Directives Principles of State Policy‟, Pratiyogita Darpan, Year 3, Issue 32, 2009, pp. 1406-1409.

33 Dilbir Kaur,‟ Some Aspects of Environment Management‟ in R.K. Sapru, Environment Management in India, Volume II, Ashish Publishing House, New Delhi, p. 225.

34 Atul Kohli and Amrita Basu, „India‟, in Mark Kesselman, Joel Krieger, William A. Joseph (eds.) Introduction to Comparative Politics: Political Challenges and Changing Agendas, Wadsworth, Boston, 2009, p. 303.

35 Vishwajit Singh, op. cit., p. 330.

36 Ibid, p. 331.

37 Subhro Niyogi, „Environment Crusader to Launch Country's First Green Party‟, The Times of India, 27 August 2009, available at

217

http://timesofindia.indiatimes.com/india/Environment-crusader-to-launch- countrys-first-Green-Party/articleshow/4938344.cms accessed on 26 October 2010 at 9:09 pm.

38 O. P. Dwivedi, „ An Ethical Approach to Environmental Protection : A Code of Conduct and Guiding Principles‟, Canadian Public Administration, Volume 35, Number 3, pp. 363-380.

39 Philip Pullella, „Rich Nations Must Assume Environmental Duties: Pope‟, Dec 15, 2009, Reuters, available at http://uk.reuters.com/article/id UKTRE5BE1UR20091215 accessed on 26 October 2010 at 5:59 pm.

40 O.P. Dwivedi, op. cit.

41 Philippe Sands and Paolo Galizzi, Documents in International Environmental Law, Cambridge University Press, Cambridge, 2004, p. 6.

42 Ibid, p. 7.

43 Sailaja Gullapalli, op.cit.

44 L.K. Koolwal vs. State Of Rajasthan and others AIR 1988 Raj 2.

45 The Constitution of India, op.cit., p. 147.

46 Ibid, pp. 143-144.

47 Ibid, p. 356.

48 Ibid, pp. 354-355.

49 http://www.indiaenvironmentportal.org.in/node/154703 accessed on 23 October 2010 at 1:21 pm.

50 http://www.wwfenvis.nic.in/parliament_environment.aspx accessed on 29 October 2010 at 3:21 pm.

51 Inaugural Address by Hon‟ble Speaker of Lok Sabha at the Appreciation Course in Parliamentary Processes and Procedures for Probationers of the Indian Administrative Service, 2009 batch and the Royal Bhutan Civil

218

Service at BPST, PLB, 12 April 2010, available at http://speakerloksabha.nic.in/speech/SpeechDetails.asp?SpeechId=350 accessed on 29 October 2010 at 9:28 pm.

52 P. M. Sayeed, „Parliament – A Multi-Functional Institution‟, in G.C. Malhotra, Fifty Years of Indian Parliament, Lok Sabha Secretariat, New Delhi, 1992, p. 25.

53 Environment in the Indian Parliament: An Analysis – 2004 (Lok Sabha), WWF India‟s ENVIS Centre for Environmental Information System of the Ministry of Environment and Forests, Indira Gandhi Conservation Monitoring Centre, January 2005, p. iii.

54 Ronald J. Herring and Erach Bharucha, „India: Embedded Capacities‟, in Edith Brown Weiss and Harold Karan Jacobson (eds.) Engaging Countries: Strengthening Compliance with International Environmental Accords, MIT Press, USA, 1998, p. 398.

55 Environment in the Indian Parliament: An Analysis – 2004 (Lok Sabha), op. cit.

56 ENVIS Newletter, WWF for Nature-India ENVIS Centre (NGOs, Parliament & Media), Volume 5, Number 17, 2006, p. 7.

57 Ibid, p. 6.

58 Ronald J. Herring and Erach Bharucha, op. cit.

59 ENVIS Newsletter, WWF- India ENVIS Centre (NGOs and Parliament) Volume 1, Number 4, 2009, p. 1.

60 Ibid, p. 26.

61 ENVIS Newsletter, WWF- India ENVIS Centre (NGOs and Parliament), Volume 11, Number 1, January –March 2010, p. 8.

62 Brij Kumar Sharma, Introduction to the Constitution of India (Fourth Edition) Prentice-Hall of India Private Limited, New Delhi, 2007, p. 187.

63 Ibid, p. 190.

219

64 Department-related Parliamentary Standing Committee on Science and Technology, Environment and Forests: 201st Report, Rajya Sabha Secretariat, New Delhi, February 2009, p. iii.

65 Speech by Her Excellency The President of India, Shrimati Pratibha Devi Singh Patil at the Inauguration of the Delhi International Renewable Energy Conference (DIREC), New Delhi, 26 October 2010, available at http://presidentofindia.nic.in/sp261010.html Accessed on 30 October 2010 at 5:54 pm.

66 http://presidentofindia.nic.in/env_policy.html accessed on 30 October 2010 at 5:44 pm.

67 Address of the Hon‟ble Vice President of India, Shri M. Hamid Ansari at the Golden Jubilee Celebration of the National Defence College at 6, Tees January Marg, New Delhi, 27 April 2010, available at http://vicepresidentofindia.nic.in/printable.asp?id=279 accessed on 30 October 2010 at 8:43 pm.

68 http://presidentofindia.nic.in/pr250710.html accessed on 30 October 2010 at 8:15 pm.

69 President‟s Estate gets „Green‟ ISO Certification, The Hindu, 25 July 2010, New Delhi, available at http://www.thehindu.com/news/cities/Delhi/article533302.ece accessed on 30 October 2010 at 7:52 pm.

220

ENVIRONMENT ISSUES AND THE ADMINISTRATIVE RESPONSE

The development and growth of environmental policy in India has not been sudden, it has been a piecemeal process. Over a long period of time for more than a century, the Government of India has been working in this direction. It is only gradually that the government became more concerned about environment and with time it realised the drawbacks in its policies and, therefore, made changes in its activities. Earlier too, before independence, the British were also involved but it was for their selfish motive of profit, primarily. After independence, the Government of India realised that to support such a huge population and also to have rapid economic development, it is necessary that the environment is protected and preserved. Therefore, a more comprehensive approach was adopted and a few important measures for the protection of environment were taken. The first step in the field of environment management took place in 1972 when 24th United Nations General Assembly decided to convene a conference on the Human and Environment and requested a report from each member country on the state of environment. Consequently, a Committee on Human Environment was set up under the Chairmanship of Pitambur Pant, a member of the Planning Commission, to prepare these reports. These reports indicated the need for establishing greater co-ordination and integration in environment policies and programmes. In February 1972, a National Committee on Environmental Planning and Co-ordination was established in the Department of Science and Technology. However, the formation of this Committee did not contribute much for the attainment of its objective. In April 1981, it was reconstituted as National Committee on Environment Planning. It did a lot of significant work like; environment appraisal of development projects, human settlements‟ planning, formulation of environmental guidelines and creating environmental awareness at various levels. For more comprehensive tools for the administrative and legislative

221 aspects, the Government of India constituted a High Power Committee under the Chairmanship of the Deputy Chairman of the Planning Commission, N.D. Tiwari. The Tiwari Committee submitted its report to the Prime Minister in September 1980.1 It recommended the creation of department of Environment and it came into being within the Ministry of Science and Technology under the charge of Prime Minister. Finally, the Ministry of Environment and Forests came into its present state only in 1985.

1. MINISTRY OF ENVIRONMENT AND FORESTS: THE ADMINISTRATIVE ORGANISATION

The Ministry of Environment and Forests is the key agency in the administrative structure of the Government of India dealing with the implementation of policies and programmes for the protection of environment including conservation and protection from pollution of the natural resources. It does all the governmental work related to the protection of the environment. All the measures that are taken by the government are done through this agency.

The broad objectives of the Ministry are: 2

 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;

 Ensuring the welfare of animals

The organisational structure of Ministry includes various divisions, associated and autonomous offices, agencies, public sector undertakings (PSUs) and autonomous grant-in-aid institutions. All these institutions/agencies have strengthened and supported in carrying out the activities for the protection of environment in India.

The administration of the environment policies is carried out by about 900 staff members of the Ministry of Environment and Forests. Posts of Group „A‟ have 169,

222 Group „B‟ 264 and Group „C‟ 441 employees. There are a number of divisions through which the Ministry functions.

The General Administration Division of the Ministry is entrusted with the duty of procurement of stationery, stores and equipment for functioning of the Ministry and providing essential services to the personnel of the Ministry including transport, communications, general upkeep etc. It has also decided to adopt sustainable energy efficient environment friendly green building technology for the construction of its new office building that is coming up shortly.

The Indian Forest Service (IFS) Cadre Management Division is enjoined upon to handle the business of the Ministry as the Cadre Controlling Authority for the Indian Forest Service.

The Vigilance Division is responsible for all vigilance/disciplinary matters relating to the Indian Forest Service officers, both in the Ministry including its attached and subordinate offices, autonomous organisations, and the IFS officers posted in the State governments. It also undertakes examination and processing of disciplinary cases, appeals, reviews and memorials of Indian Forest Service officers of all States/Union Territories, investigation of complaints, obtaining and maintenance of annual immovable property returns etc. It also handles the cases filed in various branches of the Central Administrative Tribunal and courts in India are also handled in Vigilance Division. Moreover, it handles the prosecution cases launched against IFS officers by various States/Union Territories and also other officers/staff of the Ministry. In the year 2009-10, 31 disciplinary proceeding cases, 17 appeal cases and 7 prosecution cases were processed in this Division of the Ministry. The Vigilance Division functions under the direct control of Joint Secretary and Central Vigilance Officer, and under the overall supervision of Secretary of the Ministry.

The Parliament Division in the Ministry of Environment and Forests is responsible for co-ordination of all parliament matters related to the Ministry. During 2009-10, a total number of 751 Parliamentary Questions pertaining to different aspects of environment were answered by the Ministry.3

Another unit is the Internal Work Study Unit which coordinates the activities relating to internal work studies of the Ministry. For instance, during 2009-10, about 1500

223 files were sent for review from Departmental Record Room (DRR) and about 3290 files were received in DRR for retention. 4

The Plan Coordination Division is responsible for the coordination of all Plan schemes and programmes of the Ministry in close association with the Planning Commission. This involves preparation, monitoring and review of Five Year Plans, Annual Plans and the Annual Action Plans of the Ministry. It also looks after the monitoring of progress reports and reports under the 20-Point Programme of the Government of India. The Division regularly reviews the progress of plan schemes and takes necessary corrective actions to ensure proper and meaningful deployment of resources with a view to build up the capacities of the State Governments in forestry and environment sectors, for the programmatic aspects and variegated centrally sponsored and central sector schemes. During the X Five Year Plan (2002- 2007), the total expenditure was Rs. 5115 crore as against an approved outlay of Rs. 5945 crores. For the XI Five Year Plan (2007-2012), the Ministry of Environment and Forests has been provided with an outlay of Rs. 10000 crores. For the Annual Plan of 2010-11, an outlay of Rs. 2200.00 crores has been allotted.5

Apart from these, there is a RTI Cell in the Ministry which carries out the activities relating to the implementation of RTI Act of 2005. Protocol unit is another unit of this administrative organisation. This unit provides comprehensive arrangements for Ministers of Environment and Forests, Secretary, Special Secretary and Director General of Forests and Special Secretary. There is also a Grievance Cell which attends to the complaints of public regarding forestry and environmental matters. It ensures timely redressal of public grievances by taking up the matter with the concerned authorities like District Magistrates, Municipal Corporations, Pollution Control Boards, State governments and others.

224

Source: Annual Report 2009-10, Ministry of Environment and Forests, Government of India, pp. 300-301.

225

Source: Annual Report 2009-10, Ministry of Environment and Forests, Government of India, p.302.

226

Source: Annual Report 2009-10, Ministry of Environment and Forests, Government of India, p.302

227 Apart from these, there are many other divisions of the Ministry of Environment and Forests. There is Survey and Utilisation Division situated in Delhi for monitoring physical and financial targets of the forestry schemes of all the Union Territories, administering the functioning of all Forest Development Corporations including supply of raw materials to industries and collection and compilation of forestry statistics based on reports received from the various State forest departments. It also works for formulation of guidelines for international/domestic trade in forest produce and regulation of export & import of forest produce as per the Export and Import (EXIM) policy, all Non-Timber Forest produce (NTFP), matters including the National Medicinal Plant Boards and Policies related to MFPs including Medicinal Plants, handling of court cases (PIL-202/1995 & 171/1996) in concerned matters, review of production and disposal of timber in the country, etc.6

International Cooperation and Sustainable Development Division (IC&SD) of the Ministry is the nodal point within the Ministry to coordinate all international environment cooperation and sustainable development issues. It is the nodal division for United Nations Environment Programme (UNEP), Nairobi, South Asia Cooperative Environment Programme (SACEP), Colombo. The Division also handles bilateral issues and matters pertaining to multilateral bodies such as the Commission on Sustainable Development, Environment Support Programme of UNDP under Country Cooperation Framework -1, Global Environment Facility (GEF) and the regional bodies like Economic & Social Commission for Asia & Pacific (ESCAP), South Asian Association for Regional Cooperation (SAARC), European Union (EU) and the India Canada Environment Facility. IC&SD Division plays a coordinating role in the matters relating to the conventions in the field of environment. A compendium on various environment related conventions is proposed to be brought out by the Division. The IC & SD Division has also prepared reports for World Summit on Sustainable Development. In the area of sustainable development following new initiatives have been taken up by the Division: i. Preparation of State of Environment (SoE) Report; ii. Formulation of Sustainable Development Indicators (SDI).7

228 As part of the international cooperation, India has been dealing with the climate change, ozone depletion and Clean Development Mechanism of the Kyoto Protocol. In June 2008, India launched its National Action Plan on Climate Change. Eight National Missions form the core of national Action Plan on Climate Change. The „Green India‟ Project launched by the Ministry with a view to cover six million hectares of degraded forestland through afforestation measures is an important contribution to the objectives of this Plan. Furthermore, the national Clean Development Mechanism Authority functions in the Ministry to evaluate and recommend CDM projects for host approval.8 Recently, in the year 2009 it participated in the meeting held in Sircacusa, Rome and most importantly in Copenhagen.9

The Ministry has set up an ozone cell as a national unit to work relating to ozone layer protection and implementation of the Montreal Protocol to the Ministry of Environment & Forests (MOEF).10

The Externally-Aided Projects Division deals with the approvals and monitoring of forestry-related projects which are aided by external agencies. These projects are being implemented in the States with assistance from external donors like the Japan International Cooperation Agency (JICA), World Bank (WB), etc. At present, as many as nine projects are being aided by JICA and 1 by the World Bank.11

The Hazardous Substances Management Division (HSMD) is the nodal point within the Ministry for management of chemical emergencies and hazardous substances. The main objective of the Division is to promote safe management and use of hazardous substances including hazardous chemicals and hazardous wastes in order to avoid damage to health of people and other living organisms and environment. The activities of the division are carried out under three main thrust areas, viz., Chemical Safety, Hazardous Wastes Management and Solid Waste Management. The Division is also the nodal point for the following three International Conventions:

i. The Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal

ii. The Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals & Pesticides in International Trade iii. The Stockholm Convention on Persistent Organic Pollutants (POPs)12

229 For better execution of work, the Ministry established a separate construction unit within the Ministry in March, 1987. It was named as Civil Construction Unit (CCU). It undertakes construction works for all the attached and subordinate offices and autonomous bodies. There are 3 divisions looking after the construction works throughout the country. Two divisions are located in Delhi and the third division is in Bengaluru. CCU executes the civil construction works of the Ministry where CCU does not have its own unit. CCU provides necessary inputs for planning including budget and coordinates works being executed by CPWD. Lately, it was involved in the construction of museum and auditorium blocks for Rajiv Gandhi Regional Museum of Natural History at Sawai Madhopur with the sanctioned cost of Rs. 4100 lakhs.13

Moreover, there is Control of Pollution Division, Forest Policy Division, Clean Technology Division and Conservation and Survey Division carrying out their respective responsibilities.

2. OFFICES/ORGANISATIONS UNDER THE MINISTRY OF ENVIRONMENT AND FOREST

Besides divisions of the Ministry, there are other boards and autonomous organisations working under the Ministry of Environment and Forests.

(i) Autonomous Organisation

The autonomous organisations working under the Ministry of Environment and Forests in different parts of India are as follows:

(a) Gobind Ballabh Pant Institute of Himalayan Environment & Development

This institute was established as a focal agency in 1988-89 in Almora to advance scientific knowledge, to evolve integrated management strategies, demonstrate their efficacy for conservation of natural resources, and to ensure environmentally sound development in the entire Indian Himalayan Region (IHR). It also attempts to maintain a balance of intricate linkages between socio-cultural, ecological, economic and physical systems that could lead to sustainability in the IHR.14

230 (b) Indian Council of Forestry Research and Education

It is an apex body in the national forestry research system established in Dehradun. Its mission is the holistic development of forestry research through need based planning, promoting, conducting and coordinating research, education and extension covering all aspects of forestry. It deals with the solution based forestry research in tune with the emerging issues in the sector, including global concerns such as climate change, conservation of biological diversity, combating desertification and sustainable management and development of resources.15

(c) Indian Institute of Forest Management (IIFM)16

IIFM has its headquarters in Bhopal with the objective to:

 Provide training in management and related subjects for persons from the Indian Forest Service, Forest Departments, Forest Development Corporation and Forest related industries to inculcate an appreciation in those selected for training, that conservation is of overriding importance in the management of living natural resources and that the primary role of forests is of vital importance for the ecological and environmental purpose they serve.

 Select and prepare outstanding and talented young persons for careers leading to management responsibility in forestry and the forest-related systems.

 Meet the needs of Indian forestry and forest-related industry and commerce in respect of upto-date information on forestry management through research, consultation and publication.

 Assist, institute and carry out research in matters concerning the use of management and allied techniques and methods conducive to the development of forestry in the country.

 Institute awards, scholarships, fellowships, prizes and medals in accordance with rules and bye-laws.

 Create patronships, affiliations & other classes of professional or honorary membership or office, as the society may consider necessary.

231 (d) Indian Plywood Industries Research and Training Institute

This was first established as Indian Plywood Manufacturers‟ Research Association in 1962 as a cooperative research laboratory under the umbrella of Council of Scientific and Industrial Research (CSIR) for undertaking applied research on „Plywood‟, an important wood based material. It was re-designated as present IPMRA in 1970, then was brought administrative control under government of India in 1978 and was finally transferred to the Ministry of Environment and Forests in 1990.17 Its activities include: 18

 Research on all aspects of production of sawn timber, manufacturing plywood and other allied engineered and reconstituted wood and lignocellulosic products.

 Training in connection with forest products utilisation for plywood industry and trade and allied industries.

 Inspection, testing and certification of all forest products.

(e) Wildlife Institute of India (WII)

It was set up at Dehradun in 1982 with a mandate to train government and non- government personnel, carry out research, and advise on matters of conservation and management of wildlife resources. It was accorded autonomy in April 1986. Its mission is to nurture the development of wildlife science and promote its application in conservation; in consonants with our cultural and socio-economic milieu.19 It is an institute of the Ministry with a 49 member Wildlife Institute of India Society as the apex body. The Society is chaired by the Union Minister for Environment and Forests.20

(ii) Subordinate Offices under the Ministry of Environment and Forests

(a) Forest Survey of India

This chief organisation was established at Dehradun in June 1981 under the Ministry of Environment and Forests with the task for assessment and monitoring of the forest

232 resources of the country regularly. In addition, it is also engaged in providing the services of training, research and extension. Earlier, it started as “Preinvestment Survey of Forest Resources" (PISFR), a project initiated in 1965 by Government of India with the sponsorship of FAO and UNDP.21

(b) Botanical Survey of India

The Botanical Survey of India is the apex research organisation under the Ministry of Environment and Forests for carrying out taxonomic and floristic studies on wild plant resources of the country. It was established in 1787 on the recommendations of Colonel Robert Kyd under the name of Company Bagan. In 1897 its name was changed to „Royal Botanic Garden‟. After independence it was finally reorganized in 1954 to its present name with headquarters in Calcutta. The following are the objectives of the Botanical Survey of India:22

 To carry out intensive floristic surveys and collect accurate and detailed information on the occurrence, distribution, ecology and economic utility of plants in the country.

 To collect, classify and circulate materials which may be of use to educational and research institutions and;

 To act as guardian of authentic collections in well planned herbaria and to keep record of the plant resources in the form of local, district, state and national flora.

To cope with the enormous work, new circles are being established around the country, latest being established at Hyderabad in 2005.23

(c) Zoological Survey of India

It is the only taxonomic organisation, established on 1st July, 1916 in the country which is involved in the study of all kinds of animals from Protozoa to Mammalia, occurring in all possible habitats from deepest depths of oceans to the peaks of Himalayas. It was established to promote survey, exploration and research of the various aspects of the exceptionally rich animal life in India. The headquarters is in Kolkata and 16 regional centres are located in different parts of the country.24

233 Recently, efforts have been made towards an integrated approach to zoological investigations, so as to have more purpose oriented research comprising biological, cytotaxonomic, and ecological aspects. However, taxonomy continues to occupy a prominent role.25

(d) Indira Gandhi National Forest Academy

It was constituted in 1987 in Dehradun by renaming the erstwhile Indian Forest College, which was originally established in 1938 for training senior forest officers. The primary mandate of the Academy is to impart knowledge and skills to the professional foresters including new as well as different levels of seniors and help them to develop competence for managing the country‟s forest and wildlife resources on a sustainable basis.26

(e) Directorate of Forest Education

The post of Director, Forest Education was created in the year 1953 to assist the President, Forest Research Institute and College. With it rested the responsibility for professional and technical training/education in the country.27 Subsequently, in 1991, the Directorate of Forest Education was brought under the Ministry of Environment and Forests. Presently, it controls over three Central Academies for State Forest Service in the country at Burnihat (Assam), Coimbatore (Tamil Nadu) and Dehradun (Uttarakhand) and one Rangers College namely; Eastern Forest Rangers College at Kurseong (West Bengal) besides four Rangers Colleges run by the State governments.28

(f) National Institute of Animal Welfare

This institute was established in Faridabad with the mandate of promoting animal welfare in India. This institute was created with the purpose of fostering knowledge and training of personnel working with the animals in the state veterinary departments, municipal corporations, forensic labs, forestry labs, forestry departments, laboratories dealing with the animal experimentation, sanctuaries, animal houses/shelters, pharmaceuticals, diagnostic labs, nominees of Animal Welfare Board of India, CPCSEA members, SPCA members, institutional animal ethics committee , NGOs registered with Animal Welfare Board of India, students

234 graduated in veterinary and animal sciences, fisheries, wildlife sciences, biological sciences etc.29

(g) National Zoological Park

The National Zoological Park is located in New Delhi. The main objective is to create awareness among visitors regarding nature conservation.30

(h) National Museum of Natural History

It was established in 1972 in New Delhi during the reign of Mrs. Indira Gandhi as the prime minister when it was realised there is a need of a museum of Natural History to depict its flora, fauna and mineral wealth to provide an out of school facility for education of children and to promote environmental awareness among the masses. It was thrown open for public on 5 June 1978. It is involved in the exhibition of galleries, discovery and activity rooms, summer programmes, teacher orientation programmes, programmes for persons with disabilities, conducted tours and film shows and publications.31

(iii) Boards

The boards under the Ministry of Environment and Forest are:

(a) Animal Welfare Board of India

The Animal Welfare Board of India is a statutory advisory body on animal welfare laws established in 1962 under Section 4 of the Prevention of Cruelty to Animals Act, 1960.32 It ensures the implementation of animal welfare law, to provide grants to animal welfare organisations, to impart education in this field, to cooperate and coordinate work of organisations and to advise the Government of India on animal welfare issues.33

(b) Central Pollution Control Board

The Central Pollution Control Board (CPCB) performs functions as laid down under the Water (Prevention and Control of Pollution) Act of 1974 and the Air (Prevention and Control of Pollution) Act of 1981. It is responsible for planning and executing comprehensive nationwide programmes for the prevention and control of water and

235 air pollution, for advising the central government on matters concerning prevention and control of water and air pollution and for coordinating activities of State Pollution Control Boards/ Pollution Control Committees besides providing technical assistance and guidance to them. The CPCB has established a network of water and air quality monitoring stations. The principal functions of the CPCB are as follows: 34

 Recommend to the central government on any matter concerning prevention and control of water and air pollution and improvement of the quality of air.

 Plan a nation-wide programme for the prevention, control or abatement of water and air pollution.

 Co-ordinate and resolve disputes among the activities of the State Boards.

 Provide technical support and assistance to the State Boards, carry out and sponsor investigations and research relating to problems of water and air pollution, and for their prevention, control or abatement.

 Plan and manage training of persons engaged in programme on the prevention, control or abatement of water and air pollution.

 Organise, through mass media, a comprehensive mass awareness programme on the prevention, control or abatement of water and air pollution.

 Collect, compile and publish technical and statistical data relating to water and air pollution and the measures devised for their affective prevention, control or abatement.

 Arrange manuals, codes and guidelines relating to treatment and disposal of sewage and trade affluents as well as for stack gas cleaning devices, stacks and ducts.

 Disseminate information in respect of matters relating to water and air pollution and their prevention and control.

 Lay down, modify or annul, in consultation with the State governments concerned, the standards for streams or wells, and lay down standards for the quality of air; and

236  Perform such other functions as may be prescribed by the Government of India.

These functions are performed at the national level by the CPCB. In respect of Union Territories, the CPCB has delegated its powers and functions under the Water (Prevention and Control of Pollution) Act, 1974, the Water (Prevention and Control of Pollution) CASs Act, 1977 and the Air (Prevention and Control of Pollution) Act, 1981 to respective local administration, as per the policy decision of the Government of India.35

(c) National Afforestation and Eco-development Board

The National Afforestation and Eco-Development Board (NAEB) was set up in August 1992. It is responsible for promoting afforestation, tree planting, ecological restoration and eco-development activities in the country. It gives special attention to the degraded forest areas and lands adjoining the forest areas, national parks, sanctuaries and other protected areas as well as the ecologically fragile areas like the Western Himalayas, Aravallis, Western Ghats, etc. It operates the following major schemes:

 National Afforestation Programme (NAP) Scheme

 NAEB Scheme: the major components of the Scheme are:-

i. Grants-in-aid for Greening India Scheme.

ii. Monitoring and evaluation.

iii. Communication.

iv. Support to Regional Centres (RCs).

 Eco-Development Forces (ECF). 36

(iv) Authorities under Ministry of Environment and Forests

The Authorities under the Ministry are:

(a) Central Zoo Authority:

The Central Zoo Authority was constituted under the Wildlife (Protection) Act of 1972. The main objectives of the authority are to complement the national effort in

237 conservation of wild life, standards and measures for housing, upkeep, health care and overall management of animals in zoos has been laid down under the Recognition of Zoo Rules, 1992. Every zoo in the country is required to obtain recognition from this Authority for its operation. The Authority evaluates the zoos with respect to the parameters, prescribed under the rules, and grants recognition accordingly. Zoos which lack the prescribed standards and norms and have no potential to come up may be refused recognition and asked to close down. Since its inception in 1992, the Authority has evaluated 347 zoos, out of which 164 have been recognised and 183 were refused recognition. Out of 183 zoos which were refused recognition, 92 have been closed down and their animals relocated suitably. Cases of the remaining 91 derecognised zoos are currently under evaluation.

The Central Zoo Authority also regulates the exchange of animals of endangered category listed under Schedule-I and II of the Wildlife (Protection) Act among zoos. Exchange of animals between Indian and foreign zoos is also approved by the Authority before the requisite clearances under EXIM Policy and the CITES permits are issued by the competent authority. The Authority also coordinates and implements programmes on capacity building of zoo personnel, planned breeding programmes and ex-situ research including biotechnological intervention for conservation of species for complementing in-situ conservation efforts in the country. Some of the major initiatives undertaken by the Authority since its establishment is the foundation of Laboratory for Conservation of Endangered Species at Hyderabad for carrying out research in biotechnology, planned breeding of Red Panda and its restocking into the wild, upgradation of diagnostic facilities for disease diagnosis at selected veterinary institutions and their networking with zoos on regional basis for better health care of animals.37

(b) National Biodiversity Authority:

To pursue the implementation of the Biological Diversity Act of 2002, National Biodiversity Authority was established by the Government of India in October 2003 at Chennai in Tamil Nadu. Under the Section 8 of the Act, the main functions of the Authority were to advise the Government of India, regulate activities and issue guidelines on matters relating to conservation of biodiversity, sustainable use of its components and equitable sharing of benefits arising out of utilisation of biological

238 resources. It also takes necessary measures to oppose the grant of intellectual property rights in any country outside India on any biological resource obtained from India or knowledge associated with such biological resource derived from India. It advises the State governments in the selection of areas of biodiversity importance to be notified as heritage sites and suggest measures for their management. It, along with the State Biodiversity Boards, provides guidance and technical support to Biodiversity Management Committees (BMC) for preparing People's Biodiversity Registers (PBR).38

(c) National Ganga River Authority:

The National Ganga River Authority was constituted by the Government of India on 20th February 2009 under Section 3(3) of the Environment (Protection) Act, 1986 to revamp the cleaning process of the Ganga river. It is an empowered planning, financing, monitoring and coordinating authority for the Ganga river. The objective of the Authority is to have the river basin as the unit of planning and to have a comprehensive response covering water quality and flow, sustainable access, environment management, prevention and control of pollution and food and energy security, in the form of a national mission.39

(d) National Tiger Conservation Authority:

It is constituted for strengthening tiger conservation by, inter alia, ensuring normative standards in tiger reserve management, preparation of reserve specific tiger conservation plan, laying down annual/audit report before the Parliament, constituting State level Steering Committees under the Chairmanship of Chief Minister and establishment of Tiger Conservation Foundation.40

Besides all these there is one public sector undertaking known as Andaman and Nicobar Islands Forest and Plantation Development Corporation Limited in Port Blair.

(v) Centre of Excellence

The Ministry of Environment and Forests launched the scheme „Centre of Excellence‟ in 1983 to promote institutions which would enhance people‟s awareness

239 about environment. The main purpose to establish these centres is to enhance education, research and training in the field of environment. Ten centres in different areas have been set up till now to accomplish this purpose.41

i. Centre for Environment Education (CEE), Ahmedabad.

ii. C.P.R. Environmental Education Centre (CPREEC), Chennai.

iii. Centre for Ecological Sciences, Bengaluru.

iv. Centre for Mining Environment, Dhanbad.

v. Salim Ali Centre for Ornithology and Natural History (SACON), Coimbatore.

vi. Centre for Environmental Management of Degraded Ecosystems (CEMDE), Delhi.

vii. Tropical Botanic Garden and Research Institute (TBGRI), Thiruvananthapuram.

viii. Madras School of Economics (MSE), Chennai.

ix. Foundation for Revitalisation of Local Health Traditions (FRLHT), Bengaluru.

x. Centre for Animals and Environment, Bengaluru.

The policy-making and implementation of the environment policies is a dynamic process. With time and place, the conservation and protection policies have to be changed in order to cope with the changing degrading environment. Therefore, there are a series of offices and organisations through which the Ministry of Environment and Forests carries out its responsibilities and functions for the protection of environment.

3. ENVIRONMENT INFORMATION SYSTEM

Realising the need for environment information, the ministry set up an Environmental Information System in 1983 acronymed as ENVIS. It was implemented as a comprehensive network in environmental information collection, collation, storage,

240 retrieval and dissemination to varying users including policy planners, decision makers, scientists and environmentalists, researchers, academicians and other stakeholders. ENVIS is conceived as a comprehensive distributed environmental information network system with the subject-specific centres to carry out the mandates and to provide the relevant and timely information to all concerned. To cover the wide range of disciplines of subjects of the ENVIS, all the states and union territories of the country are included in it.

Presently, ENVIS network consists of 76 network partners out of which 46 are on subject-specific and 30 are on state related issues. These network partners are called ENVIS Centres and are located in the notable organisations/ institutions/ Universities/ State/ UT Government Departments throughout the country. The broad objectives of ENVIS are: 42

(i) Long-term objectives:

a) to build up a repository and dissemination centre in environmental science and

engineering;

b) to gear up the modern technologies of acquisition, processing, storage,

retrieval and dissemination of information of environmental nature; and

c) to support and promote research, development and innovation in

environmental information technology.

(ii) Short-term objectives

a) to provide national environmental information service relevant to present needs and capable of development to meet the future needs of the users,

originators, processors and disseminators of information;

b) to build up storage, retrieval and dissemination capabilities with the ultimate

objectives of disseminating information speedily to the users;

c) to promote, national and international cooperation and liaison for exchange of

environment related information;

241 d) to promote, support and assist education and personnel training programmes designed to enhance environmental information processing and utilisation

capabilities;

e) to promote exchange of information amongst developing countries.

Thus, the ENVIS network continues its work by information-related activities, database development, publication of requisite information packages through newsletters, abstracting service etc and also the query-response services.43 The ENVIS works with the help of Statistical Cell, Information and Facilitation Centre and the NGO Cell. Some of the important activities of the ENVIS network include publication of Annual Reports, „State of the Environment‟ and quarterly newsletter ENVIRONEWS, the ENVIS Focal Point is responsible for updating and maintenance of the website of the Ministry.

The Ministry of Environment and Forests is also the National Focal Point (NFP) of INFOTERRA (an International Referral System for Sources of Information) network of United Nations Environment Programme (UNEP).44

4. ENVIRONMENT IMPACT ASSESSMENT (EIA)

Environment Impact Assessment is one of the important management tools employed in recent times to determine the impact of various human activities on the environment. It is a task to be carried out before any project or major activity such as industrial development or dam construction to ensure that it will not by any means damage the environment on a short term or long term basis. It is a tool for ensuring the optimal use of natural resources for sustainable development. Its objectives are to identify, examine, assess and evaluate the likely and probable impacts of a proposed project on the environment and, thereby, to work out remedial action plans to minimize adverse impact on the environment. It is a decision making tool that evaluates various alternatives for a project and seeks to identify the one that represents the best blend of economic and environmental costs and benefits. Moreover, it considers not only the environment but also aesthetic, economic, social and cultural aspects. There are number of cases when the projects were made environmental friendly on the apprehension of being rejected after EIA. For example, over a thousand large saplings were planted in two days in the Noida Park because of

242 EIA, after they have cut down 6000 trees few days back for a statue complex.45 The role of the EIA was formally recognized in the Rio Declaration on the Environment and Development of 1992. Principle 17 of the Rio Declaration states-

“Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.”43

In India, this technique was applied formally only after 1994 and was re-engineered in 2006. However, before 1994, the Tiwari Committee recommended the environment impact study of proposed projects, but limited emphasis was given on this issue. It was during 1994 that the Environment Impact Assessment Notification came into force under clause (a) of sub-rule 3 of rule 5 of the Environment (Protection) Rules, 1986. Moreover, public hearing has been made mandatory for environment clearance by the Amendment to the Environment Impact Assessment Notification of April 10, 1997.46

The following stages are followed under the EIA process:47

i. Screening: This is the first stage of EIA determining whether the proposed project requires an EIA and if it does, then the level of assessment required.

ii. Scoping: This stage defines the key issues and impacts that should be further investigated and also defines the boundary and time limit of the study.

iii. Impact analysis: This stage identifies and predicts the likely environmental and social impact of the proposed project and evaluates their significance.

iv. Mitigation: This step in EIA recommends the actions to reduce and avoid the potential adverse environmental consequences of development activities.

v. Reporting: This stage presents the result of EIA in the form of a report to the decision-making body and other interested parties.

vi. Review of EIA: It examines the adequacy and effectiveness of the EIA report and provides the information necessary for decision-making.

243 vii. Decision-making: It decides whether the project is rejected, approved or needs further change. viii. Post monitoring: This stage comes into play once the project is commissioned. It checks to ensure that the impacts of the project do not exceed the legal standards and implementation of the mitigation measures are in the manner as described in the EIA report.

In the re-engineered Environment Impact Assessment Notification 2006, projects were categorised into category „A‟ and category „B‟ depending on their threshold capacity and likely pollution potential and were appraised for prior environmental clearance at the central and the state levels respectively. The environmental clearance was accorded to five hundred forty eight projects and Term of Reference to six hundred twenty four projects up to December 2009. Further, for appraisal of category „B‟ projects and activities, State Level Environment Impact Assessment Authorities (SEIAAs) and State Expert Appraisal Committees (SEACs) have been constituted. So far, the Ministry of Environment and Forests has constituted 23 State/UT level Environment Impact Assessment Authorities for appraisal of all „B‟ category projects and activities.48 These 23 State/UT level Environment Impact Assessment Authorities accorded environmental clearance to seven hundred fifty nine projects in the year 2009.49

Further, the Ministry of Environment and Forests is in the process of preparation of 37 Environment Impact Assessment manuals on sector specific developmental projects, which are listed in the Schedule to the Environment Impact Assessment Notification 2006.

Recently, all the consultants/Public Sector Undertakings (PSUs) working in the area of Environment Impact Assessment are required to get themselves registered under the scheme of Accredition and Registration of the National Accredition Board of Education and Training (NABET) and the Quality Council of India (QCI) by 30th June 2010.50

244 5. OTHER INITIATIVES FOR ENVIRONMENT MANAGEMENT

Apart from these, the ministry has been taking measures and schemes from time to time for the better functioning of the ministry in order to manage properly the environmental issues of the country. The Acts alone does not carry the burden of making of environmental policy. There are other plans, strategies and policies to complement the Acts. For instance, for proper protection of the forests of the country, the Ministry came out with separate National Forest policy in 1988. Recently, the Ministry has initiated a proposal to establish a National Environment Protection Authority (NEPA) to strengthen regulatory framework and to improve the environmental governance in the country. A concept note on NEPA was uploaded in the Ministry‟s website and large number of suggestions have been received from various sections of society. A meeting was held which included the representatives of the various agencies of the government. A study has been awarded to IIT, Delhi to work out the scope and architecture of the NEPA in detail.51

Relatively, there is Research in Environment Division of the Ministry since 1985 with the objective to generate information required to develop strategies, technologies and methodologies for better environmental management. Further, it aims at attempting solutions to the practical problems of resource management, conservation of natural resources and eco-regeneration of degraded areas and to strengthen infrastructure to facilitate research and scientific manpower development. The ministry supports research through its established research programmes. These include Environment Research Programme (ERP), Ecosystem Research Scheme (ERS), and Eastern and Western Ghats Research Programme (E&WGRP). In the year 2007-08, new thematic group was constituted on Economic & Social Issues. The ministry also encourages research through awards of National Fellowships to the outstanding scientists in the field of environment.52 The following awards are conferred on individuals or organisations by the Ministry of Environment and Forests:

a. Indira Gandhi Paryavaran Puraskar (IGPP).

b. Indira Priyadarshini Vriksha Mitra (IPVM) Awards.

245 c. Pitamber Pant National Environment Fellowship.

d. B.P. Pal National Environment Fellowship for Biodiversity.

e. E.K. Janaki Annual National Award on Taxonomy.

f. National Awards for Prevention of Pollution and Rajiv Gandhi Environment Award for Clean Technology.

g. Amrita Devi Bishnoi Wildlife Protection Award.

h. Rajiv Gandhi Wildlife Conservation Award.

i. Medina Puraskar.53

The major policies apart from the Acts pertaining to protection of environment adopted by the Ministry of Environment and Forests for better environment management are:

(i) Policy Statement on Abatement of Pollution 1992

This environmental policy was made to shift emphasis from defining objectives for each problem area of environment towards actual implementation, and to focus on the long term, because pollution particularly affects the poor. This policy defined that to achieve the objectives, maximum use will be made of a mix of instruments in the form of legislation and regulation, fiscal incentives, voluntary agreements, educational programmes and information campaigns. The emphasis will be on increased use of regulations and an increase in the development and application of financial incentives. The emphasis is also on the integration of environmental and economic aspects in development planning, preventive aspects of pollution abatement and increased modern technological inputs to arrest industrial pollution and to rely on public cooperation.

(ii) National Conservation Strategy and Policy Statement on Environment and Development 1992

This was another policy made in 1992 to guide the Ministry of Environment and Forests in the implementation of laws for environment protection. The main purpose of this policy is to reinforce traditional ethos and build up a conservation society in

246 harmony with nature and to use the best scientific knowledge for efficient use of resources. It has discussed guidelines for the protection of environment such as Environment Impact Assessment of all development projects at planning stage, compulsory „Prior Environmental Clearance‟ of projects above certain size in certain ecologically sensitive areas, incorporation of environmental safeguards in all major sectors, enhance R&D and adoption of environmentally compatible technologies for conservation, education and mass awareness programme, development of institutions and effective participation of people.

(iii) National Environment Policy 2006

This National Environment Policy 200654 seeks to extend the coverage and fill in gaps that still exist in the earlier policies ( i.e. the National Conservation Strategy and Policy Statement on Environment and Development, 1992; National Forest Policy, 1988; Policy Statement on Abatement of Pollution, 1992) in the light of present knowledge and accumulated experience. It builds on but does not displace the earlier policies. It is intended to mainstream environment concerns in all development activities. It briefly describes the key environment challenges currently and prospectively facing the country, the objectives of environment policy, normative principles underlying policy action, strategic themes for intervention, broad indications of the legislative and institutional development needed to accomplish the strategic themes, and mechanisms for implementation and review. It seeks to stimulate partnerships of different stakeholders, i.e. public agencies, local communities, academic and scientific institutions, the investment community, and international development partners, in harnessing their respective resources and strengths for environment management.

The dominant theme of this policy is that „while conservation of environmental resources is necessary to secure livelihoods and well-being of all, the most secure basis for conservation is to ensure that people dependent on particular resources obtain better livelihoods from the fact of conservation, than from degradation of the resource.‟

The principal objectives of this policy in respect of current environment challenges are as follows:

247 (i) Conservation of Critical Environmental Resources:

To protect and conserve critical ecological systems and resources, and invaluable natural and man-made heritage, which are essential for life support, livelihoods, economic growth, and a broad conception of human well-being.

(ii) Intra-generational Equity: Livelihood Security for the Poor:

To ensure equitable access to environmental resources and quality for all sections of society, and in particular, to ensure that poor communities, which are most dependent on environmental resources for their livelihoods, are assured secure access to these resources.

(iii) Inter-generational Equity:

To ensure judicious use of environmental resources to meet the needs and aspirations of the present and future generations.

(iv) Integration of Environmental Concerns in Economic and Social Development:

To integrate environmental concerns into policies, plans, programmes, and projects for economic and social development.

(v) Efficiency in Environmental Resource Use:

To ensure efficient use of environmental resources in the sense of reduction in their use per unit of economic output, to minimize adverse environmental impacts.

(vi) Environmental Governance:

To apply the principles of good governance (transparency, rationality, accountability, reduction in time and costs, participation, and regulatory independence) to the management and regulation of use of environmental resources.

(vii) Enhancement of Resources for Environmental Conservation:

To ensure higher resource flows, comprising finance, technology, management skills, traditional knowledge, and social capital, for environmental conservation through mutually beneficial multi-stakeholder partnerships between local communities, public agencies, the academic and research community, investors, and multilateral and bilateral development partners.

248 To fulfill these objectives, there are stated principles which guide the activities of different actors in relation to this policy. They are enumerated as following:

(i) Human beings are at the Centre of Sustainable Development Concerns:

They are entitled to a healthy and productive life in harmony with nature.

(ii) The Right of Development:

This right must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.

(iii) Environmental Protection is an integral part of the Development Process:

In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.

(iv) The Precautionary Approach:

Where there are credible threats of serious or irreversible damage to key environment resources, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environment degradation.

(v) Economic Efficiency:

This principle requires that the services of environment resources be given economic value, and such value to count equally with the economic values of other goods and services, in analysis of alternative courses of action. The further implications of this principle are Polluters pay and Cost Minimization.

(vi) Entitles with “Incomparable” Values:

Incomparable values are those intrinsic values which include the environment‟s resources that cannot be compared and cannot be less (and has to be more including the non-use loss) than the opportunity cost of losing the commercial gains from these preserved assets.

249 (vii) Equity:

The cardinal principle of equity or justice requires that human beings cannot be treated differently based on irrelevant differences between them. Equity, in the context of this policy refers to both equity in entitlements to, and participation of, the relevant publics, in processes of decision-making over use of environment resources.

(viii) Legal Liability:

The principle of legal liability may be viewed as an embodiment in legal doctrine of the “polluter pays” approach, itself deriving from the principle of economic efficiency.

(ix) Public trust doctrine:

This doctrine implies that state is not the owner but trustee of natural resources that are meant for public‟s reasonable use and enjoyment.

(x) Decentralisation:

Decentralisation involves ceding or transfer of powers from a central to lower authorities to empower public authorities having jurisdiction over salient environmental issues.

(xi) Integration:

Integration refers to inclusion of environment considerations in sectoral policymaking, research and among various government agencies.

(xii) Environmental Standard Setting:

Environment standards must reflect the economic and social development situation in which they apply.

(xiii) Preventive Action:

It is preferable to prevent environmental damage from occurring in the first place, rather than attempting to restore degraded environmental resources after the act.

250

(xiv) Environmental Offsetting:

There is general obligation to protect the environment. If for exceptional reasons of overriding public interest environment protection cannot be provided in particular cases, cost-effective offsetting measures must be undertaken by the proponents of the activity, to restore as nearly as feasible, the lost environmental services to the same people.

The other policies of environment aspects by the Government of India include:

 National Agriculture Policy, 2000.

 National Population Policy, 2000.

 National Water Policy, 2002.

 National Health Policy, 2002.

 Integrated Energy Policy, 2006.

 Draft National Policy on Safety, Health and Environment at Workplace, 2008.

The Strategies and Action Plans on environmental aspects by the government include:

 Environmental Action Plan, 1993

 Wildlife Conservation Strategy, 2002

 National Action Plan on Climate Change, 2008.

 National Bio-safety Guidelines.

 National Biodiversity Action Plan, 2008.

(iv) International Initiatives:

The Ministry of Environment and Forests is also involved in the transboundary environmental initiatives in order to protect the transboundary ecosystems. The one that has been the proposed is the Indo-Bangladesh Sunderbans Eco-System Forum to be launched by September 2010. The Ministry of Environment and Forests has

251 earmarked a Rs 450 crore special grant, to be spent over the next five years, for augmenting the crucial embankment system in the estuarine region. This is separate from the Centre's Rs 5,032 crore project that is also aimed at improving the embankments that surround many inhabited islands in the Sunderbans.55

To conserve the region of Greater Mt. Kailash, a transboundary initiative has been taken up involving India, China and Nepal, facilitated by ICIMOD with support from UNEP. This project is titled „Mount Kailash Sacred Landscape Conservation Initiative: Developing a Transboundary Framework for Conservation and Sustainable Development in the Greater Mt. Kailash Region of Nepal, India & China‟. It aims to promote long-term ecological, climatic, and biodiversity datasets within the Mt. Kailash Sacred Landscape (KSL) which would contribute to alleviating knowledge gaps that have emerged as a serious impediment to improved understanding, modeling, and prediction of climate change impacts (locally, regionally, and globally).56

6. OTHER MINISTRIES OF GOVERNMENT OF INDIA

However, Ministry of Environment and Forests of the Government of India alone is not involved in the legislation and implementation of environment policies, other Ministries of the Government of India are also involved. For instance, before the creation of Ministry of Environment and Forests, the Ministry of Law, Justice and Company Affairs dealt with the Water Pollution Act of 1974.

The Tourism Ministry of the Government of India promotes the tourism in a responsible and sustainable manner. Recently, the Ministry of Tourism held a meeting to plan National Workshop of Sustainable Tourism Criteria to discuss the modalities for the Sustainable Tourism Criteria for India with various stakeholders of the tourism industry. The Global Sustainable Tourism Criteria are a set of 37 voluntary standards representing the minimum that any tourism business should aspire to reach in order to protect and sustain the world‟s natural and cultural resources while ensuring tourism meets its potential as a tool for poverty alleviation. Also, with the growing trend towards travel to economic-tourism destinations like National Parks and Sanctuaries, the Ministry organised a series of meetings with the Ministry of Environment and Forests and others under the initiative “Tigers – Our

252 National Beauties” to raise concern about growing dangers to wildlife due to unplanned growth of infrastructure. 57

The Ministry along with Ministry of New and Renewable Energy (MNRE) and Bureau of Energy Efficiency (BEE) has jointly developed a low carbon campaign for Commonwealth Games 2010. 'Go Green - It Works' is a campaign that inspires the common man to adopt green behavior in his/her everyday life and lifestyle.58

Another is the Ministry of New and Renewable Energy (MNRE) which is the nodal Ministry of Government of India at the National level for all matters relating to new and renewable energy such as solar, wind, biomass, small hydro, hydrogen, bio-fuels, geothermal etc. The endeavour of the Ministry is to promote renewable energy technologies and increase the contribution of renewable energy in the total energy mix today and in the years to come as well as to sub-serve the above objectives. The Ministry has a wide range of programmes on research and development, demonstration and promotion of renewable energy for rural, urban, commercial and industrial applications as well as for grid-interactive power generation.59 Recently, it organised the India-Iceland Workshop on Renewable Energy with focus on development and utilisation of Geothermal Energy and Small Hydro Power in January 2010.60

The Ministry of Petroleum and Natural Gas has also initiated various steps through the Petroleum Conservation Research Association (PCRA) to promote energy conservation in the transport, industrial, agricultural and domestic sectors.61

The other Ministries involved in environment protection are Ministry of Agriculture, Ministry of Atomic Energy, Ministry of Chemicals and Fertilizers, Ministry of Commerce and industry, Ministry of Coal, Ministry of Earth Sciences, Ministry of Finance, Ministry of Heavy Industries and Public Enterprises, Ministry of Law and Justice, Ministry of Mines, Ministry of New and Renewable Energy, Ministry of Petroleum and Natural Gas, Ministry of Power, Ministry of Shipping, Ministry of Tourism, Ministry of Urban Development and Ministry of Water Resources. Thus, not only Ministry of Environment and Forests but other Ministries are involved in the conservation and protection of environment and sustainable development.

253

REFERENCES

1 Harbans Pathak, „Environment Management in India: A Survey‟, in R. K. Sapru, Environment Management in India, Volume I, Ashish Publication House, New Delhi, pp. 256-558. 2 Annual Report 2009-10, Ministry of Environment and Forests, Government of India, New Delhi, p. vi. 3 Ibid, p. 290. 4 Ibid. 5 Ibid, pp. 298-299. 6 http://sudiv.gov.in/ accessed on 23 September 2010 at 7:59 pm. 7 Annual Report 2009-10, op.cit., p. 256. 8 Ibid, pp. 268-269. 9 Ibid, pp. 271-272. 10 Dileep Kumar, „Climate Change and Disaster Management‟, Yojana, June 2009, pp. 45-49. 11 Annual Report 2009-10,op.cit., p. 263. 12 http://moef.nic.in/divisions/hsmd/hsmd.html accessed on 23 September 2010 at 8:57 pm. 13 Annual Report 2009-10, op.cit., pp. 295-296. 14 http://gbpihed.gov.in/institute.htm, accessed on 16 September 2010 at 11:25 pm. 15 http://www.icfre.org/index.php?linkid=left8311&link=0 accessed on 16 September 2010. 16 http://www.iifm.ac.in/about/aboutiifm.html accessed on 17 September 2010 at 10:27 pm 17 http://www.ipirti.gov.in/history.html accessed on 17 September 2010 at 11:09 pm. 18 http://www.ipirti.gov.in/mandate.html accessed on 17 September 2010 at 11:21 pm.

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19 http://www.wii.gov.in/ accessed on 17 September 2010 at 11:32 pm. 20 Annual Report 2009-10, op.cit., p. 81. 21 http://www.fsi.org.in/ accessed on 17 September 2010 at 11:47 pm. 22 http://164.100.52.111/briefhistory2.shtm accessed on 18 September 2010 at 12:11 am. 23 Ibid. 24 Annual Report 2009-10, op.cit, p. 9. 25 http://zsi.gov.in/category/brief_history.html accessed on 18 September 2010 at 3:15 pm. 26 http://www.ignfa.gov.in/ accessed on 18 September 2010 at 4:20 pm. 27 http://dfe.gov.in/The%20Background_81.html accessed on 18 September 2010 at 4:36 pm. 28 http://dfe.gov.in/Current%20Scenario_82.html accessed on 18 September 2010 at 4:35 pm. 29 http://envfor.nic.in/divisions/awd/niaw_trg.pdf accessed on 18 September 2010 at 7.48 pm. 30 http://envfor.nic.in/nzp/nzp.html accessed on 26 September 2010 at 2:50 pm. 31 http://nmnh.nic.in/aboutus.htm accessed on 18 September 2010 at 4:53 pm. 32 http://www.awbi.org/index.php?q=node/1 accessed on 18 September 2010 at 5:23 pm. 33 http://www.awbi.org/index.php?q=node/14 accessed on 18 September 2010 at 5:27 pm. 34 http://www.cpcb.nic.in/Functions.php accessed on 25 September 2010 at 10:20 pm. 35 Ibid. 36 Annual Report 2009-10, op.cit., p.162. 37 http://www.cza.nic.in/about.html accessed on 19 September 2010 at 2:20 pm. 38 http://www.nbaindia.org/about.htm accessed on 19 September 2010 at 2:34 pm. 39 India Today, 15 June 2009, available at http://www.indiaenvironmentportal.org.in/content/national-ganga-river-basin- authority accessed on 26 January 2011 at 10: 13 pm. 40 Annual Report 2009-10, op.cit., p. 82.

255

41 Ibid, p. 218. 42 Ibid, pp. 244-245. 43 Ibid, p. 245. 44 T. N. Khushboo, Environmental Concerns and Strategies, Ashish Publishing House, New Delhi (Second Edition), 1988, p. 132. 45 Rio Declaration on the Environment and Development (1992), United Nation Publication, Sales No.E.73.IIA.14 and corrigendum. 46 Environment Impact Assessment Process in India and the Drawbacks, Prepared by Environment Conservation Team (Aruna Murthy, Himansu Sekhar Patra), Vasundhra, Bhubaneswar, September 2005. 47 Suresh V. Nadagoudar, Environment Impact Assessment as a Tool for Sustainable Development, Paper for the International Conference on Issues in Public Policy and Sustainable Development, organised by School of Social Sciences, Economics Discipline, Indira Gandhi National Open University, New Delhi, held on 26-28 November 2008. 48 Annual Report 2009-10, op.cit., p. 102. 49 Ibid, p. 104 50 Ibid, p. 105. 51 Ibid, p. 252. 52 Ibid, p. 172. 53 Ibid, pp. 238-242. 54 National Environment Policy 2006, Ministry of Environment and Forests, Government of India, New Delhi. 55 Indo Bangladesh Workshop on Climate Change, Press Statement, Ministry of Environment and Forests, Government of India, Kolkata, 4 April 2010, available at http://moef.nic.in/downloads/public-information/indo_bang_cc.pdf accessed on 2 January 2011 at 6:55 pm. 56 Trans-boundary Initiative for Mt Kailash Landscape Conservation Launched, Ministry of Environment and Forests, Government of India, New Delhi, 9 April 2010, available at http://moef.nic.in/downloads/public-information/Trans-bound- Mt-Kailash.pdf. accessed on 23 April 2010 at 8:40 pm. 57 Annual Report 2009-10, Ministry of Tourism, Government of India, pp. 33-35.

256

58 Low Carbon Campaign for CWG 2010, Ministry of Environment and Forests, New Delhi, 21st September, 2010, available on http://moef.nic.in/index.php accessed on 24 September 2010 at 5:05 pm. 59 Annual Report 2009-10, Ministry of New and Renewable Energy, Government of India, New Delhi, p. 1. 60 http://mnre.gov.in/press-releases/press-release-15012010.pdf accessed on 29 October 2010 at 9:54 pm. 61 Annual Report 2008-09, Ministry of Petroleum and Natural Gas, Government of India, New Delhi, p. 14.

257

ENVIRONMENT ISSUES AND THE JUDICIAL RESPONSE

Judiciary is one of the balancing pillars of democracy. The role played by the judiciary in the protection of environment is no less than that of the legislature and executive. Perhaps, its role is more prominent in the implementation of the environmental policies in our country. In spite of the provisions for environmental protection in the enactments and Constitution of India, the degradation of the environment continues unabated. The plethora of enactments, policies, administrative infrastructure and expertise, all failed to conserve and protect the environment. As a result, the people, communities and organisations approached the judiciary, particularly the Supreme and the High Courts, for the protection of environment. The ability to invoke the original jurisdiction of the Supreme Court and the High Courts under Articles 32 and 226 of the Constitution, respectively, is a remarkable step forward in providing protection for the environment. The courts are not confined to the prerogative writs derived from English law, but are extended to directions or orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. In other words, when executive fails to perform its functions, then the judiciary steps in to perform them. Amusingly, the judiciary has also responded in a positive and active manner to deal with these issues. It exercises its role not only as an interpreter of the law but also has taken upon itself the role of constant monitoring and implementation. Moreover, the judicial activism has enhanced the role of the courts. The introduction of public interest litigation and relaxation of locus standi in the 1980s has further strengthened its role. It has been dealing with almost all the areas of environment degradation, from fragile coastal areas to shrimp farms.

Furthermore, Article 142 afforded the Supreme Court considerable power to mould its decisions so that complete justice could be done.1 To provide good justice, the

258 judiciary has relied upon the expert bodies like Central Pollution Control Board and the NEERI to study the situation and submit reports to the Court. For instance, the Court in Indian Council for Enviro-Legal Action vs. Union of India, appointed NEERI as an expert body to study the situation of ground water soil pollution. Similarly, the Court relied upon the opinions of experts to dismiss a public interest litigation challenging dairy imports from Iceland on the ground that they were radioactively contaminated by the leak from the Chernobyl nuclear plant.2 Further, the judiciary has widened the human rights by widening the scope of Article 21 i.e. right to life.

Moreover, it has been evolving legal principles with time for protection and conservation of environment. It has been rightly said in the book „Indian Judiciary and Politics‟

“…While the Supreme Court in particular has earned public applause for its innovative jurisprudence, it has exercised, some constitutional pundits would argue, extravagant jurisdiction, transgressing the executive and legislative domains, contrary to the original „checks and balances‟ design of the Constitution. This judicial transformation of the original scheme of the Constitution, it is further argued, has been facilitated because of the dysfunctionality and ineffectiveness of the other two branches of government both at the Centre and in the States, and on account of the widespread criminalization of politics. In the process of correcting this abnormality, the Court has, critics say, over-reached it adjudicating role to become the governing institution of the country….”3

In the UP Pollution Control Board vs. Bhupendra Kumar Modi & Anr, the Supreme Court has said that “the message must go to all persons concerned, whether small or big, that the courts will share the Parliamentary concern and Legislative intent of the Act to check the escalating pollution levels and restore the balance of our environment.” 4

The areas of environment which attracted the most (attention of judiciary) include; air, water, soil and noise pollution. The protection of air has attracted the largest case law i.e. 34 % followed by water (20%) animals (7%) and noise (6%). In terms of industries, the chemical industries topped the list in being dragged to the court room

259 followed by industries dealing in forest wood. The specific environment aspects include the industrial pollution, degradation of greenery including forest, protection of animals, sanctuaries, vehicular pollution, water cess, protection of historical monuments, municipal inaction and breach of its constitutional duty to protect and improve the environment, mismanagement in the pollution board, the fundamental rights including rights of tribal people, villagers, displaced people and so on. Besides these, the other new subjects dragged to court room include ecotourism, spici and aqua culture, punishment for contempt of court, politics in the administration of the pollution board, ban on training and exhibition of wildlife, trade in sullage water, ban on polythene bags, common trade, effluent treatment plant charges etc.5 Thus, it can said that the access to environment justice consists of three types of legal issues:

i. Claims to challenge denial of access rights,

ii. Claims to prevent or remedy environmentally harmful activities,

iii. Claims to enforce environmental laws.6

Furthermore, in terms of petitioners, it has been found that the largest litigants were the individuals contributing 99 litigations, followed by corporations and companies and then came NGOs who added 37 and 35 cases each. The Union of India, states and pollution boards contributed 2, 6 and 4 cases, respectively. The religious heads and institutions, MLAs have also filed petitions. In the categories of lawyers, the credit goes to M.C. Mehta, the advocate of Supreme Court to file the maximum number of PILs exceeding 20 in number.7 It has also been found that in environmental cases, the largest attacker or the defender has been the Union of India. Out of 108 cases, the Union of India was made a defendant in 66 cases followed by State Governments, independently or jointly. Out of this, UP has been a defender in 14 cases, followed by Delhi, Andhra Pradesh, Karnataka and Kerala.8

1. INSTRUMENTS OF JUDICIARY FOR ENVIRONMENT PROTECTION

The judiciary of India has been performing its role in the protection of environment through the following instruments:9

260 i. Tort law and Common law.

ii. Innovative interpretation of Article 21 and protection of human rights.

iii. Relaxation of the rule of locus standi and Public Interest Litigation.

iv. Development of environmental principles.

v. Doctrine of public trust.

(i) Law of Tort and Common Law:

The Indian law of torts is based on English Common Law. The term „tort‟ is the French equivalent of the English word „wrong‟. The common law was introduced in India during the British period. It is the body of traditional law of England which is based upon judicial decisions, embodied in the reports of decided cases, in contrast with legislative enactments. In context of environmental cases, the four categories of Common Law are relevant - nuisance, trespass, negligence and strict liability.10 To these traditional categories, the Supreme Court has added a new class based on the principle of „absolute‟ liability in the post-Bhopal period and was later adopted by the legislature.11 Common law based tort rules continue to operate under Article 372 of the Indian Constitution which ensures the continuance of existing laws.

In common law pertaining to environment, a person can charge for nuisance when an act endangers his life, health, property or comfort or when an act obstructs him in the enjoyment of the rights common to all people. Nuisance is of two types- public and private. Under trespass category, negligence as a tort is a bench of duty caused by the omission to do something which a reasonable man would do or doing something which a prudent and reasonable man would not do.12 Trespass signifies any transgression of offence against the law of nature, of society, or the country, whether relating to a man‟s person or to his property.13 Wrongs of strict liability impose a kind of liability which is somewhat peculiar in that person becomes liable without there being any fault on his part. Although, it is a separate tort but it can be considered as an extension of the law of nuisance. The most important case of this tort is that of Reyland v. Fletcher.14 It holds a person strictly liable when he brings or accumulates on his land something likely to cause harm if it escapes, and damage arises as a natural consequence of its escape.15 The case observed that if a person

261 brings or accumulates something on his land anything which, if it should escape, may cause damage to his neighbours, he does so at his own peril. If it escapes and cause damage, then he is responsible, however careful he may have been and whatever precaution he may have taken to prevent the damage. This is also known as „the wild beast theory‟.16

The J.C. Galstaun vs. Dunia Lal Seal case of the Calcutta High Court in 1905 is an important case of nuisance. In this case, the plaintiff complained that the defendant neighbouring factory is discharging the refuse-liquid of his manufactory into a Municipal drain that passes along the plaintiff‟s garden. He alleged that the liquid is foul-smelling and noxious to the health of the neighbourhood and specially himself, and, secondly, that it has damaged him in health, comfort, market value of his garden property. The defendant admitting of foul-smelling of his liquid waste but denied that it was noxious or that it had injuriously effected the plaintiff‟s property. He said that his factory has been licensed by the government and has been conducting the manufacturing in a lawful manner. Consequently, the Subordinate Judge decreed the suit, granted a perpetual injunction and awarded the plaintiff a thousand rupees as damage.17

The Mukesh Textile Mills (P) Ltd v. H. R. Subramanya Sastry case is another case under which damages were rendered under the negligence category of law of tort. In this case, the plaintiff complained that the neighbouring textile mill‟s earthen tank full of molasses collapsed because of being dug by the rodents and the molasses overflowed into the water channel and plaintiff‟s land damaging the paddy and sugarcane crop. The Mill defended it by stating the burrowing of rodents as an act of God. The court attributed to actionable negligence on the part of the appellant and damages were awarded to the other party.18

The absolute liability originated with the Shriram Gas Leak Case filed by the environmentalist and lawyer M. C. Mehta as public interest litigation. The petition sought to close and relocate Shriram‟s caustic chlorine and sulphuric acid plants which were located in a thickly populated area of Delhi. Shortly after Mehta filed this petition, oleam leaked from Shriram„s sulphuric acid plant causing wide spread panic in the surrounding community. In the last judgement before retirement, Chief Justice Bhagwati spoke in the court:

262 “…We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in the escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortuous principle of strict liability under the rule in Rylands v Fletcher.”19

To provide a general penal law for India, the Indian Penal Code was enacted in 1860. The first Law Commission of India headed by Lord Macaulay included fourteen chapters consisting of 28 sections (Section 268 to 294-A) dealing with public nuisance in the Code as long back as 1860. The sole object of including chapter fourteen in the Code was to safeguard acts which endanger, directly or indirectly, public health, safety and the like.20

Section 268 of the Indian Penal Code of 1860 defines the offence of a public nuisance:

A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. 21

However, the penalty for this offence is merely Rs. 200, which makes it pointless for a citizen to initiate a prosecution under section 268 by a complaint to a magistrate. Further, section 133 provides an independent, speedy and summary remedy against public nuisance by empowering a magistrate to pass a „conditional order‟ for the removal of a public nuisance within a fixed period of time.22 However, the magistrate cannot act beyond his limits and can be restricted by the court as found in the Gobind Singh vs. Shanti Sarup case. In this, the magistrate went ahead of the conditional order by completely prohibiting the baker from carrying on his trade. The Supreme Court concluded of only to raze the offending oven and chimney and carry on his trade.23

263 Section 290 of the Indian Penal Code provides that any person, who commits a public nuisance in any case not otherwise punishable by the code, shall be punished with fine which may extend to Rs. 200. However, the offence under this section is non-cognisable, bailable non-compoundable and is triable by any Magistrate.24

Section 269 provides that whoever unlawfully or negligently spread the infection of any disease shall be punishable with imprisonment for a term which may extend to 6 months, or with fine, or with both.25 Similarly, section 272 deals with the sale of noxious food, section 275 with the sale of adulterated drugs, section 284 with negligent handling of poisons, combustibles and explosives, section 285 deals with negligent conduct with regard to fire or combustible matter, section 286 deals with negligent conduct with regard to an explosive matter, section 336 deals with the act of endangering human life or personal safety of others, section 337 deals with the act of hurting human life or personal safety of others,26 section 432 deals with mischief to the public drainage by an act which cause an obstruction or inundation resulting in damage or injury.27 Likewise, section 277 of the Code lays down that whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less fit, the purpose for which it is ordinarily used, shall be liable to punishment.28

(ii) Innovative Interpretation of Article 21 and Protection of Human Rights:

Article 21 guarantees “right to life” and says that no person shall be deprived of his life and personal liberty, except according to procedure established by law. The right to life under Article 21 of the Indian Constitution has been interpreted in such a way by the judiciary in India that now it includes the right to healthy environment. This right to life has been given wide interpretation by the Supreme Court in context of environment. If anyone has violated healthy and clean environment, he is deprived of his right to life under the Indian Constitution. Thus, the judiciary has expanded the boundary of Article 21 by including socio-economic aspects of rights of the citizens of India. It has been one of the landmarks in judicial interpretations by the Indian judiciary. Mostly, the cases taken up by the Public Interest Litigation are based on Article 21 of the Constitution.

264 One of the early cases regarding the protection of rights in the context of environment was the T. Damodhar Rao and Others vs. The Special Officer, Municipal Corporation of Hyderabad and Others. The residents of Hyderabad filed a petition against the Municipal Corporation of Hyderabad and the Bhagyanagar Urban Development Authority, Hyderabad to develop an area as recreational park according to the development plan and should not allow it to be used by the Life Insurance Corporation or Income-tax Department as a residential area. Therefore, in the judgement it was stated that

“…it would be reasonable to hold that the enjoyment of life and its attainment and fulfilment guaranteed by Art. 21 of the Constitution embraces the protection and preservation of nature's gifts without which life cannot be enjoyed. There can be no reason why practice of violent extinguishment of life alone should be regarded as violative of Art. 21 of the Constitution. The slow poisoning by the polluted atmosphere caused by environmental pollution and spoilation should also be regarded as amounting to violation of Art. 21 of the Constitution.”29

In the L.K. Koolwal vs State Of Rajasthan and others, the writ was filed for the preservation of sanitation and environment in the city of Jaipur. The High Court held that a right in favour of citizen to move to the Court to see that the state performs its duties sincerely in accordance with the law of the land. Every citizen has the right to know how the state is functioning. Further, the Court observed:

“Maintenance of health, preservation of the sanitation and environment falls within the purview of Article 21 of the Constitution as it adversely affects the life of the citizen and it amounts to slow poisoning and reducing the life of the citizen because of the hazards created, if not checked.”30

The Supreme Court of India has also been emphasising on Article 21 in the protection of environment. In Chhetriya Pardushan Mukti Sangharsh Samiti v State Of U.P and Others, the court stated:

“Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India.”

265 Likewise, in the case of Subhash Kumar V. State of Bihar (AIR 1991 SC 424) the petitioner by way of public interest litigation, filed a petition for ensuring enjoyment of pollution free water and air. Justice K. N. Singh and Justice N. D. Ojha held:

"Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has a right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life”31

Similarly, in M.C. Mehta v Kamal Nath, [5] the Court decided that:

„[a]ny disturbance of the basic environment elements, namely air, water and soil which are necessary for life would be regarded as hazardous for life within the meaning of Article 21 of the Constitution.‟

In M.K. Sharma v. Bharat Electric Employees Union, the Court directed Bharat Electric Company to abide by the safety rules strictly to prevent suffering to the employees ensuing from harmful X-ray radiation. The Court did so under the ambit of Article 21, justifying the specific order on the reason that the radiation influences the life and liberty of the employees.32 Similarly, in M.C. Mehta vs. Union of India (3), the Supreme Court held that air pollution in Delhi caused by vehicular emissions violates right to life under Article 21 & directed all commercial vehicles operating in Delhi to switch to CNG fuel mode for safeguarding health of the people.

(iii) Relaxation of the Rule of Locus Standi and Public Interest Litigation:

Access to justice and narrow locus standi concept were the barriers in the advancement of social interest –oriented movement. The courts were inaccessible to the poor and ignorant sections of the society. Besides, the poor or disadvantaged people cannot file petitions on behalf of other individuals of community. But the Judges‟ transfer case led to the conceptualisation of the liberalized rule of locus standi. As an approach to solve the problem of access to justice, the Court shifted from “traditional individualism of locus standi to the community orientation of public interest litigation.33 With the advent of the Public Interest Litigation, anyone

266 can file legal petition for the interest of public. Anyone who finds anything going on against the law or human right anywhere in the country can knock the door of the court under Article 32 of the Constitution or in the high courts under Article 226 of the Constitution or before the Court of magistrate under Section 133 of the Code of Criminal Procedure, 1973. The Public Interest Litigation can also be filed by writing a letter to the court. Public interest litigation has, therefore, become a major revolutionary step to restore the melancholy of masses through judiciary in India which has been the country of inherited injustice.34 It has been found from the Indian Supreme Court Case Reports that out of 104 environmental cases from 1980-2000 in the Supreme Court of India, 54 were filed by individuals who were not directly the affected parties and 28 were filed by NGOs on behalf of the affected parties.35 In India, the roots of Public Interest Litigation can be traced back to 1976 with the Justice Krishna Iyer in the case of Mumbai Kangar Sabha vs. Abdul Bhai. This form of jurisprudence is usually more efficient in dealing with environmental cases, for the reason that these cases are concerned with the rights of the community rather than the individual.36 It has been seen that the cases pertaining to environment are not only filed against individuals or organisations, the people have substantially filed petitions against the central and state governments.

In the case of M. C. Mehta and Others vs. The Union of India and Others, a writ petition was brought by way of public interest litigation and raised some decisive questions regarding the true scope and ambit of Article 21 and 32 of the Constitution, the principles and norms for determining the liability of large enterprises engaged in manufacture and sale of hazardous products, the basis on which damages in case of such liability should be quantified and whether such large enterprises should be permitted to continue in thickly populated areas and if they are allowed so to run, what measures must be taken for the purpose of reducing to a minimum the hazard to the workmen and the community living in the neighbourhood. In this case, the court held that:

“… We would like to express our deep sense of appreciation for the bold litigation taken by the petitioner in bringing this public interest litigation before the court…We would, therefore, as a token of our appreciation of the

267 work done by the petitioner in bringing that a sum of Rs. 10000 be paid by Shriram to the petitioner by way of costs.”

In this case permission was granted to the apex court to Shriram Foods and Fertilizers to reopen its plant, subject to the conditions set out by the apex court. 37

Another case of public interest litigation is of Tej Razadan vs. The Union of India and others. In this case, a stay order was made by Justice S.C. Agarwal directing the Union and State Governments not to allow the Saudi Arabian Prince to continue hunting of the Great Indian Bustard, because the preservation of wildlife is a matter of great ecological importance. However, the case became infructuous because the Prince winded up his expedition.38

One of the popular names in public interest litigation pertaining to environment protection is of lawyer M. C. Mehta. He has brought a number of environment issues to the Courts of India. His landmark cases include Taj Mahal Case, Ganga Pollution Case, Vehicular Pollution Case, Delhi Sewage Treatment Plant Case, Environmental Awareness and Education Case, Delhi Ridge Case, Dust Pollution Case, Kamal Nath Case, Coastal Area Case, Antop Hill Case, Gamma Chamber Case, Ground Water Pollution Case and Ground Water Depletion Case.39

The Taj Mahal Case was filed by M. C. Mehta in the 1984 and the historic judgement was delivered by the Supreme Court in December 1996. The apex court gave various directions including banning the use of coal and coke and directing the industries to switch over to Compressed Natural Gas (CNG). In the Ganga Pollution case, three landmark judgments and a number of Orders against polluting industries numbering more than fifty thousand in the Ganga basin were passed from time to time. In the Vehicular Pollution Case, the Supreme Court delivered a landmark judgment in 1992 recommending measures for the nationwide control of vehicular pollution. In the Delhi Sewage Treatment Plant Case, a time bound programme was given by the Supreme Court to the Delhi Municipal Corporation for setting up of treatment plant in 16 different localities. In the Environmental Awareness and Education Case, the Court ordered that all over the country the cinema theaters will exhibit two slides free of cost on environment in each show failing which their licenses will be cancelled, a minimum 5 to 7 minutes will be given by the television

268 network in the country to televise programmes on environment apart from giving a regular weekly programme on environment. The court also ordered all state governments and educational boards concerned with education up to the high school level in the country. In the Delhi Ridge Case, the Court directed NCT of Delhi to declare it as 'Reserved Forest'. In the Dust Pollution Case, 212 stone crushers were shifted out of Delhi to a 'Crushing Zone' set up in Haryana in 1992. In the Kamal Nath Case, the Supreme Court imposed a fine of ten lakh rupees on the Span motel as exemplary damages for ecological degradation, recognizing the precautionary and public trust doctrine principle. In the Coastal Area Case, the Supreme Court delivered a landmark judgement banning industrial/construction activity within 500 metres of the High Tide Line. In the Antop Case, the Supreme Court prohibited the authorities from locating large-scale chemicals storage center for hazardous chemicals in the concerned area. In the Gamma Chamber Case, the students and teachers in Jawaharlal Nehru University (JNU), Delhi were saved from hazardous radiation. In the Ground Water Pollution Case, the Supreme Court directed the closure of the factories in the Bichhri district of Rajasthan and attached the property of the polluter and directed the Department of Environment and Forests, Government of India to recover the cost of eco-restoration from the industries held responsible for causing damage to the environment. In the Ground Water Depletion Case, Ground Water Board was made into an authority invested with legal powers under the Environment Protection Act 1986 to issue licenses and take action against polluters even to the extent of closing down of offending industries.40

However, with the implication of the concept of PIL for environmental jurisprudence, certain difficulties and problems have emerged in recent years. The people have sometimes misused the concept of public interest litigation and the judiciary has also observed this in many cases, like in the Raunaq International Ltd vs. I.V.R. Construction Ltd, in which the Court observed that:

“When a petition is filed as a public interest litigation… the court must satisfy itself that party which has brought the litigation is litigating bonafide for public good. The public interest litigation should not be merely a cloak for attaining private ends of a third party or of the party bringing the petition. The court can examine the previous record of public service rendered by the organisation bringing public interest litigation. Even when

269 a public interest litigation is entertained the court must be careful to weigh conflicting public interests before intervening. Intervention by the court may ultimately result in delay in the execution of the project.”

(iv) Development of Environmental Principles:

The judiciary of India has developed with time, certain environmental principles while dealing with the cases of environment protection. These principles being derived from international agreements and conferences, have now become the base of the judgement of environmental cases. These principles are precautionary principle, the “Polluter Pays” Principle, Sustainable Development and Inter- generational Equity, the Right to Livelihood and the Doctrine of Public Trust.

(a) Precautionary Principle:

The Supreme Court spoke first about the precautionary principle in the Vellore Citizens‟ Welfare Forum v. Union of India in which it was dealing with the pollution caused by 900 tanneries. The Court observed:

“The "Precautionary Principle" - in the context of the municipal law - means.(i) Environment measures - by the State Government and the statutory Authorities must anticipate, prevent' and attack the causes of environmental degradation. (ii) Where there are threats of serious and irreversible damage lack of scientific data certainly should not be used as the reason for postponing, measures to prevent environmental depredation.(iii) The "Onus of proof" is on the actor or the developer/industrial to show that his action is environmentally benign.”

Further, the units which were shut down were permitted to reopen only after they had set up effluent treatment plants to the satisfaction of the Central Pollution Control Board after obtaining its consent. The Court also directed that the matter be dealt with by the Madras High Court by a special Bench, to be known as „The Green Bench‟.

In the Narmada case, the Court further explained the concept and observed that:

“When there is a state of uncertainty due to the lack of data or material about the extent of damage or pollution likely to be caused, then, in order to

270 maintain the ecological balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution.”41

Likewise, the precautionary principle was directly applied by the Court in the M.C. Mehta v. Union of India, for protecting the Taj Mahal from air pollution. The Court observed that:

“The atmospheric pollution in TTZ has to be eliminated at any cost. Not even one percent chance can be taken when—human life apart - the preservation of a prestigious monument like the Taj is involved.”

Further, the Court in this case, ordered that industries, identified by the Pollution Control Board as potential polluters, had to change over to natural gas as an industrial fuel and those that were not in a position to obtain gas connections for any reason should stop functioning in TTZ and relocate themselves in alternative plots outside the demarcated area within a stipulated time.42

(b) The “Polluter Pays” Principle:

The polluters pay principle was applied by the court in the Indian Council for Enviro-Legal Action vs. Union of India and others, the court observed:

“…once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on.”43

Thus, in this case, the court ordered to pay the villagers the loss it has done to them through pollution of soil and other activities.44 Also in the Vellore Citizens‟ Welfare Forum v. Union of India, the court imposed pollution fine on the tanneries and to compensate under two headings namely, for reversing the ecology/environment and for payment of individual victims. It was estimated that nearly 35,000 hectares of agricultural land in this tanneries belt has become either partially or totally unfit for cultivation, and that the 170 types of chemicals used in the chrome tanning processes have severely polluted the local drinking water.45

271 However, not every time, there has been the implementation of the judgements of the Courts in India. In the case of S. Jagannath, which was concerning the destruction of coastal ecology by intensive and extensive shrimp farming, the Court has directed closure of shrimp farms and payment of compensation on „polluters pays principle‟ as well as cost of remedial measures to be sustained by industries. But after the judgement, firstly, the Court itself stayed its own directions in review and later, the Parliament brought legislation, over-ruling the directions given in the said judgement. Similarly, the precautionary principle has not been applied in the Tehri Dam where the petitioners as well as the Environmental Appraisal Committee of the government expressed concern about the safety of the dam. Likewise, in the Narmada Dam case, the Court refused to apply the precautionary principle on the big dam as if protection of natural resources and its ultimate cost for the present and future generation is not an integral part of development.46

(c) Sustainable Development and Inter-generational Equity:

The terms „inter-generational equity‟ and „sustainable development‟ were developed at the international level in 1972 and 1987, respectively. In India, the Supreme Court used the term „sustainable development‟ in Narmada Bachao Andolan v. Union of India and observed that:

“Sustainable development means what type or extent of development can take place, which can be sustained by nature/ecology with or without mitigation.”47

Likewise, in State of Himachal Pradesh v. Ganesh Wood Products case, the Supreme Court invalidated forest-based industry, recognising the principle of inter- generational equity as being central to the conservation of forest resources and sustainable development.48 Also, in the Vellore Citizens Welfare Forum vs. Union of India and Others, the court held that:

"We have no hesitation in holding that „sustainable development‟ as a balancing concept between ecology and development has been accepted as a part of customary international law…”49

The maintenance of the principle of sustainable development by the judiciary can be found in the M.C.Mehta vs. Union of India case. The Supreme Court issued

272 directions for stopping mechanical stone-crushing activities in and around Delhi, Faridabad and Ballabhgarh complexes and directions were issued for allotment of sites in the new “crushing zone” set up at village Pali in Haryana to the stone crushers.50

(d) The Right to Livelihood: In certain cases, the judiciary has to decide whether to prefer the preservation of environmental resources or the right of communities to extract value out of those resources. And the courts have widely referred the latter leading to the development of the principle of right to livelihood. In Fatesang Gimba Vasava v. State of Gujarat case, the legally recognized right of the tribal people to obtain bamboo and earn livelihood by selling the articles made out of them, was attempted to be rendered unenforceable by the forest department officials by barring their transport from out of the forest area. The alleged purpose of the action was to force the forest dwellers to sell raw bamboo to the local paper mill. The court ordered that the forest department should not interfere in the transit of the bamboo articles from the forests to non-forest areas. In another case, the Andhra Pradesh High Court struck down a government order that permitted felling of trees and transport of timber from the forest area that was in contravention of law. The court reasoned that the statutory provisions were intended to safeguard the interests of scheduled tribes and to preserve forests. The executive order that violated this law was valid.51

Likewise, in the Banwasi Sewa Ashram vs. State of India, the adivasis and other backward people were using forests as their habitat and as a means of livelihood. The part of the forest area was declared as “reserved forest” and in subsequent proceedings, it was decided that a super thermal plant of the National Thermal Power Corporation Limited (NTPC) would be located in that area. Since the area was used by the adivasis and other people as means of livelihood, therefore the Supreme Court directed to safeguard and protect the interests of the concerned people who were ousted from their forest land. The court allowed NTPC to occupy forest land only after they agreed to provide facilities to the ousted people. Further, it ordered rehabilitation measures for the evictees and provisional compensation for crops and land was directed to be paid to them. Similarly, in the Pradip D. Prabhu vs. State of Maharashtra case, the court ordered not to dispossess the adivasis till the

273 finalization of the cases of such adivasis. In the same way, the judiciary protected the rights of the tribes and backward people in the cases of Pradeep Kishen vs. Union of India and Animal and Environment Legal Defence Fund vs. Union of India.52

However, the Court has not always considered the rights of livelihood. For instance, in the closure of the Idgah slaughterhouse, the relocation of polluting industrial units and removal of encroachments on the Ridge area of Delhi, the rights of workers were disregarded.53 Similarly, in the Banwasi Seva Ashram v. State of UP case, the Court ordered the rehabilitation of people who had been displaced due to the implementation of a development project, attempting to balance environmental concerns with developmental issues.54

(e) The Doctrine of Public Trust:

The doctrine of public trust rests on the principle that certain resources of nature like water, sea, air and the forests have such a great importance to the people as a whole that it could be wholly unjustified to make then a subject of private ownership, these sources are gifts of nature, therefore, they could be made freely available to everyone irrespective of the status in society. This principle was observed by the Court in M.C. Mehta v. Kamal Nath case.55 The case was concerning the construction of a motel on the Beas river bank and its bed leading to environment degradation. The encroachment of the forest area and an attempt to change the course of the river was a concern of serious environment degradation. The Supreme Court interfered and quashed the prior approval granted by the central government for leasing out forest land and also the lease deed between the government of Himachal Pradesh and the company. The Court also directed the Government of Himachal Pradesh to take over the entire area and restore it to its natural-original state and observed that the river bank and the river basin were to be left open for public use. The court also applied the polluters pay principle and state was held responsible for the breach of public trust by leasing out land.56

The Court has also been involved for arriving at „Net Present Value‟ (NPV) to be paid by the State of the diversion of forest land to non-forest use to be paid to Compensatory Afforestation Fund Management and Planning Agency (CAMPA),

274 with the T. N. Godavarman Thirumulpad vs. Union of India case. Since the court made payment of NPV mandatory in 2002, project proponents have filed a number of applications in the Supreme Court and the Central Empowered Committee (CEC) asking for exemptions or reductions in the amount to be paid as NPV. For instance, at a hearing on 16 December 2005, the advocate for South Eastern Coalfields appealed before the court that the company is a Public Sector Undertaking (PSU) and a sum of Rs.600 crores is a very large amount to pay. He argued that the PSU could deposit the money, if the amount were lower. The court did not accede to this request. However, ordered that responses in the case might be filed by the respondents of the case. Likewise, On 9 March 2007, the court considered a case related to the construction of a reservoir and pipeline involving the Chambal Ghariyal Sanctuary. The project proponent emphasised that they were being asked to pay five per cent of the total cost of the project as the NPV for the diversion of the forest land. But, they argued that the construction involved only one kilometre of the forest land, and therefore the calculation should be done keeping that in mind, i.e. five per cent of the construction cost which is within the sanctuary area. The court granted this request, as an exceptional case. The Supreme Court has also established a committee under the Chairpersonship of environmental economist Dr. Kanchan Chopra of the Institute of Economic Growth to establish in a detailed manner how NPV can be calculated.57 Recently, in a lecture, Environment Minister Jairam Ramesh said under this approach of NPV “today we have almost Rs 11,000 crore available to State governments for reforestation and regeneration of natural forest cover.”58

2. ENVIRONMENTAL INITIATIVES BY JUDICIARY

The Supreme Court has been the focal agency in the justice of environment issues and with time it proposed and initiated approaches to make judiciary of the country more efficient. For instance, it held that local conditions in different parts of the country being better known to them, the high courts would be the appropriate forum to be moved for more effective implementation and monitoring of the anti-pollution laws. Therefore, in the Indian Council for Environ-legal Action v. Union of India, it held that:

275 “... for a more effective control and monitoring of such laws, the High Courts have to shoulder greater responsibilities in tackling such issues, which pertain to the geographical areas within their respective States. Even in cases which have ramifications all over India, where general directions are issued by this Court, more effective implementation of the same, can in a number of cases, be effected, if the High Courts concerned assume the responsibility of seeing to the enforcement of the laws and examine the complaints, mostly made by the local inhabitants, about the infringement of the laws and spreading of pollution leading to degradation of ecology.”59

In one of the cases, Supreme Court even directed the local government body to carry out its functions properly. In the Ratlam case, the residents of Ratlam filed a complaint under Section 133 of the Criminal Procedure Code contending that the Municipality had failed to prevent the discharge from the nearby alcohol plant of malodorous fluids into the public street and provide sanitary facilities on the roads. The Municipal Council approached the Supreme Court and one of the key questions raised was whether “by affirmative action a court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost.” The Supreme Court directed the Municipality to follow the statutory duties and stop the effluents from the alcohol plant from flowing into the Nala or street. And the court further observed that:

“Decency and dignity are non-negotiable facets of human rights and are a first charge on local self-governing bodies.” 60

Likewise, in the M.L. Sud vs. Union of India, it was alleged that the Delhi Development Authority (DDA) was denuding the forest by cutting trees and constructing and laying roads in the Master Plan as “Green” and was to be maintained as city forest. The Supreme Court therefore ordered the concerned authorities to maintain the city forest.61 Similarly, in the Dr. G. N. Khajuria vs. Delhi Development Authority, land reserved for park in residential colony was allotted by the Delhi Development Authority (DDA) to the respondent for the construction of a nursery school, completely violating the Delhi Development Authority Act of 1957. The Supreme Court held that the allotment is illegal, construction unauthorized, therefore the building should be demolished and the officers of the concerned authority be punished in accordance with the law.62

276 It has been found that the judiciary has helped out in cases relating to environment areas which lack any specific policy or law by the legislative and executive branches of the government. There are many areas of environment for which there are no particular or direct laws or policies, so in these cases the role of judiciary has been very valuable. For instance, a recent survey by the Centre for Science and Environment (CSE) showed that there is presence of a highly toxic chemical called phthalates in toys sold in the Indian market. Scientific evidence has shown that exposure to phthalates can cause a variety of health problems ranging from asthma to pre term birth. However, under the pressure of the vigilant judiciary, the authorities, since January 2009, have tried to meet the standards of the quality of the toys.63 Similar is the case in the field of food security. There are no specific policies to deal with food security and related issues; therefore in this field the judiciary has been playing an effective role. Recently, the Supreme Court ordered free distribution of food grains to the poor instead of allowing it to rot in godowns. The Bench said that the government must take urgent steps to prevent further rotting of food grains while maintaining that it must procure only that much quantity which it can preserve. The court passed the direction while dealing with a public interest litigation filed by civil rights group PUCL on rampant corruption in Public Distribution System (PDS) besides rotting of food grains in FCI godowns. Further, the court directed the Government to conduct a fresh survey of the BPL/ABPL/AAY beneficiaries on the basis of the figures available for 2010 and said the authorities cannot rely on a decade-old data to extend the benefits. 64 Similarly, in 2005 the Punjab and Haryana High court issued notice on a public interest litigation filed by the Kapurthala residents seeking removal of cell-phone towers from rooftops in residential areas and near schools.65 The Delhi high court in November 2004 directed the Municipal Corporation to fine slaps on those throwing waste and garbage at inappropriate places.66

Environment Tribunal:

To be more precise in the cases of environment issues, the National Environment Tribunal Act, 1995, was passed to provide for strict liability for damage arising out of accidents caused from the handling of hazardous substances. Likewise, National Environment Appellate Authority (NEAA) was established under the National

277 Environment Appellate Authority Act, 1997, to hear appeals with respect to restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall or shall not be carried out, subject to certain safeguards under the Environment (Protection) Act, 1986. However, these acts have been defunct with the passing of the new National Green Tribunal Act, 2010. The new act provides for the establishment of National Green Tribunal with- a special fast-track court for speedy disposal of environment-related civil cases. The new tribunal shall consist of members who are experts in the field of environmental and related sciences. The Ministry of Environment and Forests (MoEF) also tends to organize workshops in rural areas to educate people about issues of access and procedure related to the National Green Tribunal.67 New provisions have been provided in this act. A key change incorporated in the act is the creation of benches of the tribunal on a circuit basis, which would make them mobile and allow the green benches to hear cases at places beyond their original location but within their jurisdiction. The amendment came with many complaints such as that the benches would become difficult for people to approach from far flung places. An amendment has also been introduced with `any person aggrieved, including any representative body or organisation, would be allowed to file an application for the grant of relief or compensation and settlement of disputes. The polluter pays and precautionary principle will now be the basic framework against which the tribunals will adjudicate.68 This new Act however, started facing criticism even before its passing in the Parliament. Retired Justice N. Venkatachala of the Supreme Court, who headed the NEAA for three years, demands that the new Green Tribunal should be scrapped. He holds out that sections 14 to 17 which relate to the powers and jurisdiction of the new Act undermine its purpose. He holds that the act does not fix responsibility on who should pay damages in case of an accident and the limitation of complaints to five years since the inception of the problem. The new act also allows industries to appeal before the Tribunal if they fail to get environmental clearance.69 Another drawback of the act is that no civil court shall be allowed to entertain cases which the tribunal is competent to hear leading in the reduction of access to judicial remedies. Besides, the provision to impose penalty on the petitioner if a claim is found untenable will prevent less privileged people from bringing genuine issues to the tribunal.70

278 3. DIVERGENT ROLE OF JUDICIARY

It has been found in number of environment related cases that judiciary has been deviating from its role of protecting the environment. The judgments of courts in India have not been always pro-environment, as was in the case of Sachidanand Pandey v. State of West Bengal (Calcutta Taj Hotel case). In this case, the petitioner through the public interest litigation opposed the negotiating away of four acres of land belonging to Calcutta Zoo to the Taj Group of Hotels. They wanted to avoid the construction of the Hotel near the Zoo because they argued that multi-storied building in the vicinity of the zoo would disturb the animals and the ecological balance and would effect the bird migration which was a great attraction. But the Court permitted the construction of a hotel near the land belonging to the Calcutta Zoological Garden with certain preconditions, stating that tourism was important to the economic progress of the country, thereby underlining the constant controversy between development and the environment.71 Similarly, in the Goa Foundation, Goa vs. Diksha Holdings Pvt. Ltd. & others, the appellants have filed the case against the construction on the land that comes within CRZ-I which will lead to irreversible ecological damage of the coastal area. But the court held that while maintaining and preserving environment and ecology of Goa in coastal area, economic development of the state has also to be kept in mind and a balance has to be struck between the two.72

One of the main reasons of the Court for this divergence has also been the lack of experience in the scientific and technological data for proper judgement of environmental cases. Thus, the judiciary in India, sometimes does not interfere in the workings of the other organs of the government including environment issues on the ground that these cases raise technical issues and policy matters which are best left to expert authorities of the executive. In the A.P Pollution Board vs. M.N. Nayudu, the Supreme Court acknowledged:

“…considerable difficulty is experienced by this Court or the High Courts in adjudicating upon the correctness of the technological and scientific opinions presented to the Courts or in regard to the efficacy of the technology proposed to be adopted by the industry or in regard to the need for alternative technology or modifications as suggested by the Pollution

279 Control Board or other bodies. The present case illustrates such problems.”73

The Court then referred the issues to the National Environmental Appellate Authority, set up under a statute of 1997 and asked to submit a report to the court.

The Tehri Bandh Virodhi Sangharsh Samiti vs. State of UP and others is a useful illustration of this kind. The Tehri Hydro Power Project and the proposed Tehri Dam was defied on the ground that their safety aspects were not duly considered and, amongst other things, the site of the dam was prone to earthquakes. Notably, the Environmental Appraisal Committee of the MoEF had concluded that the project be abandoned. The conclusions of the said committee was questioned by the committee of secretaries later and thereupon another high level committee was constituted which approved the project. Under these circumstances, the court dismissed the petition while clarifying that "it was not possible to hold that the Union of India have not applied its mind" to all possible ramifications of the project. It was further pointed out that the case brought forth "an intricate question relating to science and engineering" and the court does not possess the requisite expertise to deal with it. Similarly, in another case of the Goa Foundation and another vs. The Konkan Railway Corporation and Others, where it was sought that the Konkan Railway Corporation should be compelled to obtain requisite environmental clearance for its proposed rail alignment, the high court reasoned that the corporation had set up a specialised committee and engaged a "renowned engineer' and when they had given the 'green signal', the court is not to interfere. 74

Likewise in the Society for Protection of Silent Valley vs. Union of India and Others, the court said:

"...we cannot substitute our judgment for that of the government, on the question as to whether a national asset is to be more conveniently utilised as a hydroelectric project...or retained in its pristine glory..."

It further added, that:

"we do not think it necessary to cover the entire gamut of material - whether scientific, technical, technological or ecological -placed before us in great detail. It is not for us to consider these evaluations as against the

280 evaluation already done by the government...We are not to substitute our opinion and notions on these matters for those of the government" 75

However, the judiciary has not always been reluctant from performing its role in the protection of the environment, it has appointed a plethora of committees and commissions to carry out its functions. For instance, in the famous Doon Valley case, the Supreme Court appointed several committees consisting of experts to examine whether indiscriminate mining in the Doon Valley had any serious effect on the ecology. The court directed to close down the mining operations in these areas, while allowing mining in other cases reported by these committees as not dangerous. Further, the court constituted a monitoring committee, aptly called the "Supreme Court Monitoring Committee', which continues to oversee the quarrying and mining operations in the Valley even more than a decade after the final disposal of the case in 1988 (Supreme Court Monitoring Committee vs. Union of India). Besides, in most cases filed by the well known environmental lawyer M. C. Mehta on pollution prevention, the court have repeatedly appointed committees to determine disputed facts, to suggest remedial measures and to oversee implementation of its orders. Likewise, in another case filed by the Alwar-based Tarun Bharat Sangh against mining activities in a protected area, the court appointed a committee to find out the limits of the protected area, the fact as to whether mining was carried on within that area, the possible alternative sites for mining and finally to oversee compliance of notifications and the court's orders. Another illustration is the well known T. N. Godavarman case on protection of forest resources all over the country where the Supreme Court appointed high powered committee to oversee strict and faithful implementation of its orders.76 Supreme Court also invite objection against the reports of these committees which would file within a reasonable time. These objections were considered, and as and when necessary, activities such as mining and stone quarrying were prohibited.77

Subsequently, in July 2002, the Supreme Court took a decision to create a nationally empowered committee, called the Central Empowered Committee (CEC) and on 9 September 2002, the Supreme Court in a judgment, made the CEC a statutory authority under the Environment Protection Act of 1986. The powers of the committee included dealing with issues connected to forests, wildlife and the

281 environment and persons could seek relief directly from the committee on these issues. The committee also had the power to summon files, papers or even people and conduct formal hearings in order to fulfill its objectives. One of the popular cases of CEC is the so-called „Coke-Pepsi case‟ concerning commercial vandalism on the rocks of the Himalayas in Himachal Pradesh. In this case, the court involved the CEC into assessing the damage done to the environment. Subsequently, the companies were penalised and five crore rupees have been recovered as damages. Another case is of the forest encroachment of the Western Ghats in the Chikmagalur district of Karnataka by the rich, powerful, and famous people. Subsequently, the court endorsed the recommendations of the CEC and asked for the removal of all the encroachments according to the forest boundaries as mapped by the Survey of India. The court further asked the encroachers, if they could vacate the land before three months they do not have to compensate for the losses, but if they continue to remain in occupation then they will have to pay Rs 5 lakh per hectare per month to the state government. 78

However, there have been serious concerns over the functioning and composition of court appointed committees. For instance, the members of the Central Empowered Committee (CEC) set up by the Court consists of entirely wildlife conservationists who have traditionally prioritised wildlife over people, and officers of Ministry of Environment and Forests, with their strong inclination to enlarge the territory under forest department control. There is no representative of tribal people, the Ministry of Tribal Affairs or the Constitutional Authority of the Commissioner, Scheduled Castes and Scheduled Tribes.79 Further, the reports of expert committee given to the court raise problems of their evidentiary value. In the Taj Trapezium case, the court relying upon the report of National Environmental Engineering Research Institute (NEERI), ordered closure and relocation of several small-scale units, especially the foundries in the area. The report, unfortunately was not based on all facts and its methods, analysis and conclusions left a lot to be desired from a reputed scientific and research organisation.80

Another important innovation of the judiciary in resolving dispute has been the judge‟s personal interest to have first-hand information by visiting the site to understand clearly the nature and depth of the environmental problem. In the Ratlam

282 Municipal vs. Vardhichand case, Justice V.R. Krishna Iyer and in the Doon Valley case, Justice P. N. Bhagwati visited the concerned areas.81

4. ASPECTS OF ENVIRONMENTAL JUSTICE

U. Baxi and S.P. Sathe have argued that the different outcomes of judicial decisions could be attributed to the attitudinal differences among the justices to environmental litigation, which play an important role in the judicial decision-making process. Thus, another important aspect of judiciary in environment issues is the different interests of individual judges in environment matters. For instance, individual judges like P.N. Bhagwati, V.R. Krishna Iyer in the 1980s and Kuldeep Singh in the 1990s have taken special interest in understanding different dimensions of environmental problems. Justice P.N. Bhagwati and Krishna Iyer made spot visits to Moussorie and Ratlam respectively, to understand different aspects pertaining to environmental problems before giving decisions. Justice Krishna Iyer, through his well known book "Environmental Legal Defense", was the only judge who made specific contribution to environmental law literature by highlighting the problems faced by the judiciary in dealing with environmental problems and methods required to ensure effective evolution of laws and policies for the management of the environment. In the late 1990s, Justice A.S. Anand, B. N. Kripal, V.N. Khare also ensured the implementation of judicial directions. For example, in the Delhi Vehicular Pollution case, these three judges made it mandatory on the part of both the Government of India and the Delhi Government to convert all commercial vehicles into CNG within a specified date. Actions have been commenced not only by way of formal petition, but also by way of letters addressed to the court or a judge who has chosen to treat it as a petition. Justice P.N. Bhagwati received a letter from the NGO namely Rural Litigation and Entitlement Kendra, alleging unauthorised and illegal mining in the Dehradun area, which adversely affected the ecology of the region and caused environmental damage.82

Venketesan also attributes the different approach of judiciary on environmental litigation to the location of environmental problems i.e. urban-rural. According to him, if the environmental problem is located in urban areas then the outcome of judiciary is different from that of the rural environmental problems. According to

283 Upadhyay, in its approach to environmental problems, the judiciary has been following a particular trend in all environmental cases to address various issues involving human rights and social justice components, while it has failed to apply the same principle in resolving environmental problems resulting from infrastructure projects. The history of judicial intervention in the infrastructure projects reveals that the judiciary has not followed its precedents in these cases. Analysing judicial decision on different issues differently, Pathak argues that the Supreme Court approach to environmental litigation followed a dual strategy. He finds that in forest- related issues, where the state has claimed its environmental agenda, the court has protected the' rights of the forest dwellers, while in pollution-related issues, where the state has been reluctant. It has cast duties on it to be concerned about the environment.83

5. ARBITRARINESS OF JUDICIARY

The role of the judiciary in India sometimes has been arbitrary in the protection of environment. The judiciary has gone beyond its scope of jurisprudence in some of the environmental cases. The T.N. Godavarman Thirumalpad vs. Union of India and the vehicular pollution of Delhi cases are the glaring examples of this kind. In the Delhi vehicular pollution case, the Supreme Court directed to shift to the use of Compressed Natural Gas (CNG) of all commercial buses and later the privately-run autorickshaws. Besides this, the Supreme Court passed following measures to control vehicular pollution in Delhi:

 Lowering of sulphur content in diesel, first to 0.50% and then to 0.05%.

 Ensuring supply of only lead-free petrol.

 Requiring the fitting of catalytic converters in vehicles.

 Directing the supply of pre-mix 2T oil for lubrication of engines of two- wheelers and three-wheelers.

 Directing the phasing out of grossly polluting old vehicles.

 Directing the lowering of benzene content in petrol.

 Ensuring that new vehicles, petrol and diesel, meet Euro II standards.84

284 These measures caused protest from the private companies as well as from the central government and Delhi state government. The opponents argued that this step was intrusion in the functions of the pollution control authorities and following this action was risky as well as costly. But it has now been widely acknowledged that it is only because of this judicial intervention that air pollution in Delhi has been checked to a substantial extent.85

It is rightly said by Subhendu Rajan Raj that:

“In this case, the Supreme Court showed itself as a crusader, as it were, in the last seventeen years (decision given in 2002), and assumed the role of a legislature, a perspicacious and trenchant critic, and an administrator overseeing the progress of its directives being implemented…it turned itself into a registry while tracking day-to-day progress…”86

Likewise in the T.N. Godavarman Thirumalpad vs. Union of India, the Supreme Court extended the scope of the petition from a matter of ceasing illegal operations in Nilgiris forest land from deforestation by illegal timber operations into a reformation of the entire country‟s forest policy. The court held that the meaning of „forest‟ is to be as per dictionary definition irrespective of ownership and its orders are to supply to all lands entered in any government record as „forest‟ The Supreme Court has done a lot to protect and preserve the environment in India.87

The judiciary went to the extent of spreading environmental awareness and literacy and launching of environmental education not only at school level, but also at the college level in the M.C. Mehta v. Union of India case. Further, it directed All India Radio and Doordarshan, to focus their programmes on various aspects of the environment, and also directed every state government and education board to take steps for environmental education.88

6. IMPLEMENTATION OF COURT ORDERS

The orders of the courts are not self-executing and are left to the administration for implementation as to give effect. The Supreme Court, generally, in all environment litigations prescribed time limits within which the order is to be carried out, periodic submission of progress reports by the concerned authorities and sometimes roped in

285 the high courts to monitor actual implementation. But still, the implementation is not all the time carried out by the concerned agencies, there are a number of instances when the enforcing agencies have not implemented the decisions of the court under one excuse or another. In the Bandhua Mukti Morcha case, the petitioner brought to the notice of the court non-compliance with its 21 directions (passed on 16 December 1983) by the Haryana government. But the court merely preferred to issue a warning that “if any of these directions is not properly carried out by the Central Government or the State of Haryana, we shall take a serious view of the matter.”89 Similarly, the court orders in the Ganga river pollution case have not been implemented. The tanneries continue to operate in spite of the strict action ordered by the court against the polluted industries both in the case of the Kanpur and Calcutta tanneries. Likewise, in the Delhi industrial relocation case, the court ordered that the workers should get whatever compensation they deserve, according to the law and industries must be relocated from Delhi. However, the decision of the court has not been implemented by the government on the ground of non-availability of land to shift the industries and also workers‟ right to compensation appeal has not been given due attention in the subsequent hearings. Referring to this problem of non-implementation, Justice S. P. Bharucha said:

"This court must refrain from passing orders that cannot be enforced, whatever the fundamental right may be and however good the cause. It serves no purpose to issue some high profile mandamus or declaration that can remain only on paper. It is counter productive to have people say „The Supreme Court has not been able to do anything' or worse. It is of cardinal importance to the confidence that people have in the Court that its orders are implicitly and promptly obeyed and is, therefore, of cardinal importance that orders that are incapable of obedience and enforcement are not made." 90

Besides this, the judiciary in India has also consumed a lot of time in giving their judgements including on environment issues. In terms of environment cases, the Supreme Court took, on an average, of four years to dispose its environmental case. In 30% cases, the court delivered the judgement in the same year or within one year after filing of the petition. However, there were 13 % cases where the Supreme Court took ten to fifteen years. The high courts took lesser time as compared to the

286 Supreme Court and disposed its environmental cases within an average of two and half years. In nearly 4 % cases, the high courts took more than ten years and in 42% cases the time was either the same year or one year.91

Thus, the response of the judiciary in India has been varying in dealing with the environment issues; the judgements have been sometimes pro-environment and sometimes anti-environment, sometimes oppressive and sometimes submissive, sometimes stringent and sometimes lenient, sometimes accurate and sometimes inaccurate.

287 REFERENCES

1 Law, Judiciary and Environmental Governance: Need of Separate Environment Courts in India, Paper presented by Shastry Pooja and Rashmi Bela at the 5th Biennial Conference, The Indian Society for Ecological Economics (INSEE), January 21-23 2009, available at http://www.ecoinsee.org/fbconf/Sub%20Theme%20G/Pooja%20Shastri.pdf accessed on 20 October 2010 at 7:17 pm.

2 Ashok H. Desai and S. Muralidhar, „Public Interest Litigation: Potential and Problems‟, in B. N. Kirpal, Ashok V Desai; Subramanium Gopal, Rajeev Dhavan, Ramachandran Raju (eds.) Supreme but not Infallible-Essays in Honour of the Supreme Court, Oxford University Press, New Delhi, 2000, pp. 159-162.

3 B. D. Dua, M. P. Singh and Rekha Saxena (eds.), Indian Judiciary and Politics: The Changing Landscape, Manohar Publishers, New Delhi, 2007, p. 18.

4 U.P. Pollution Control Board vs. Bhupendra Kumar Modi (2009) 2 SCC 147.

5 C. M. Jariwala, Environment and Justice, S.B. Nangia A P H Publising Corporation, New Delhi, 2004 pp. 27-29.

6 George (Rock) Pring and Catherine (Kitty) Pring, Greening Justice: Creating and Improving Environmental Courts and Tribunals, The Access Initiative, available at http://moef.nic.in/downloads/public-information/ Greening%20Justice.pdf accessed on 23 October 2010 at 8:29 pm.

7 C. M. Jariwala, op. cit., p. 23.

8 Ibid, p. 26.

9 Noorjahan Bava, „Environmental Policy and Administration in India: Role of Government, Parliament and Supreme Court‟, Indian Journal of Public Administration, Volume 50, Number 1, 2004, pp. 72-91.

288

10 Mahesh Mathur, Legal Control of Environmental Pollution: Jurisprudence and Laws Applicable to Environmental Violation and Prevention, Deep and Deep Publications, New Delhi, 1996, p. 154.

11 Armin Rosencranz and Shyam Divan, Environmental Law and Policy in India: Cases, Materials and Statutes, Oxford University Press, New Delhi, 2001, p. 88.

12 Mahesh Mathur, op. cit., p.161.

13 Ibid, p. 181.

14 Ibid, p. 190.

15 Armin Rosencranz and Shyam Divan, op. cit., p, 105.

16 Mahesh Mathur, op. cit., p. 192.

17 Armin Rosencranz and Shyam Divan, op. cit., p. 93.

18 Ibid, pp. 101-102.

19 Ibid, p. 107.

20 Mahesh Mathur, p. 205.

21 Armin Rosencranz and Shyam Divan, op. cit., p. 112.

22 Ibid.

23 Ibid , p. 113.

24 Mahesh Mathur, op. cit., p. 210.

25 Ibid, p. 212.

26 Ibid, pp. 216-221.

27 Ibid, p. 226.

28 Ibid, pp. 206-207.

289

29 T. Damodhar Rao vs. The Special Officer, Municipal Corporation of Hyderabad 1987 AIR AP 171.

30 L.K. Koolwal vs. State of Rajasthan, AIR 1988 Raj. 2.

31 http://www.nlsenlaw.org/environmental-protection/articles/constitutional- provisions-for-environmental-protection/ accessed on 24 October 2010 at 5:45 pm.

32 Law, Judiciary and Environmental Governance: Need of Separate Environment Courts in India, op. cit.

33 Sampat Jain, Public Interest Litigation, Deep and Deep Publications, New Delhi, 2002, p. 14.

34 Report on National Judicature, Ministry of Law, Justice and Company Affairs, Government of India, 1977, p. 61.

35 Geetanjoy Sahu, „Implications of Supreme Court‟s Innovations for Environmental Jurisprudence‟, Law Environment and Development Journal, Volume 4, Number 1, pp. 1-23.

36 G.S. Tiwari, „Conservation of Biodiversity and Techniques of People's Activism‟, Journal of the Indian Law Institute, Volume 43, Number 2, 2001, pp. 191-220.

37 Mahesh Mathur, op. cit., pp. 366-367.

38 Ibid, p. 367.

39 M. C. Mehta Landmark Judgements, available at http://mcmef.org/ index.html accessed on 10 October 2010 at 2:54 pm.

40 Ibid.

41 P. Leelakrishnan, „Environmental Law‟, Annual Survey of Indian Law, Volume 36, 2000, pp. 252-257.

290

42 Karni Singh, Environment Justice: Experience vs Expectations, available at http://www.legalserviceindia.com/articles/ev_ex.htm accessed on 24 October 2010 at 7:34 pm.

43 Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446.

44 Ibid.

45 Vellore Citizens‟ Welfare Forum v. Union of India AIR 1996 SC 2715.

46 Geetanjoy Sahu, op. cit.

47 Narmada Bachao Andolan vs. Union of India, AIR 2000 SC 3751.

48 Shyam Divan, International Environment Law, available at http://www.nls.ac.in/CEERA/ceerafeb04/html/documents/internationalenvtla wshyamdiwan.htm Accessed on 24 October 2010 at 7:22 pm.

49 Vishwa jit Gupta, Environment and Law, S. S. Publishers, Delhi, 2006, p. 239.

50 P.S. Jaswal and Nishtha Jaswal, Environmental Law: Environment Protection, Sustainable Development and the Law (Second Edition) Allahabad Law Agency, Faridabad, 2003, p. 110.

51 M. K. Ramesh, „Environmental Justice: Courts & Beyond‟, Indian Journal of Environmental Law, Volume 3, Number 1, 2002, pp. 20-37.

52 P.S. Jaswal and Nishtha Jaswal, op. cit., pp. 148-150.

53 Ashok H. Desai and S. Muralidhar, op. cit.

54 Karni Singh, op. cit.

55 Sampat Jain, op. cit., pp. 88-89.

56 M.C. Mehta v. Kamal Nath Case (1997) 1 SCC 388.

291

57 „Diverting Forest Lands: Whittling away at NPV costs‟, India Together, available at http://www.indiatogether.org/2007/jul/env-nonpv.htm Accessed on 16 October 2010 at 9:42 pm.

58 Jairam Ramesh, The Two Cultures Revisited: Some Reflections on the Environment-Development Debate in India, delivered during the 11th ISRO- JNCASR Satish Dhawan Memorial Lecture, delivered at the Jawaharlal Nehru Centre for Advanced Scientific Research, Bangalore, available at http://moef.nic.in/downloads/public-information/Satish-Dhawan-Lecture.pdf Accessed on 16 October 2010 at 9:44 pm.

59 Karni Singh, op. cit.

60 Pooja Shastry and Rashmi Bela, op. cit.

61 P.S. Jaswal and Nishtha Jaswal, op. cit., p. 133.

62 Ibid, pp. 139-140.

63 http://www.cseindia.org/content/toxic-toys accessed on 22 October 2010 at 7:02 pm.

64 Dhananjay Mahapatra, „Distribution of Food Grains an Order, not a Suggestion, SC pulls up Pawar‟, The Times of India, 31 August 2010, available at http://timesofindia.indiatimes.com/india/Distribution-of-food- grains-an-order-not-a-suggestion-SC-pulls-up- Pawar/articleshow/6467212.cms.

65 Vishwa Jit Singh, p. 157.

66 Ibid, p. 163.

67 Press note- Launch of the National Green Tribunal, Ministry of Environment and Forests, 19 October 2010, available at http://moef.nic.in/ downloads/ public-information/ngt-launch-press-note.pdf accessed on 23 October 2010 at 7:38 pm.

292

68 „National Green Tribunal Bill passed in Lok Sabha‟, The Times of India , 3 May 2010, available at http://timesofindia.indiatimes.com/ Home/Environment/Pollution/National-Green-Tribunal-Bill-passed-in-Lok- Sabha/articleshow/5884146.cms accessed on 15 October 2010 at 7.32 pm.

69 Meena Menon, „How Green is my Tribunal‟, The Hindu, 7 July 2010, p. 11.

70 „Concern over National Green Tribunal Act‟, The Hindu, New Delhi, 20 October 2010, p. 3.

71 Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109.

72 Goa Foundation, Goa vs. Diksha Holdings Pvt. Ltd. & Others.

73 S. Muralidhar, „Public Interest Litigation‟, available at http://www.ielrc.org/content/a9905.pdf accessed on 4 October 2010 at 4:54 pm.

74 Videh Upadhyay, „Changing Judicial Power: Courts on Infrastructure Projects and Environment‟, Economic and Political Weekly, Volume 34, Number 43-44, 2000, pp. 3789-3792.

75 Ibid.

76 Ibid.

77 Pooja Shastry and Rashmi Bela, op. cit.

78 Valmik Thapar, Making a Difference, Seminar, 2003, available at http://www.india-seminar.com/2003/521/521%20valmik%20thapar.htm accessed on 20 October 2010 at 10:33 pm.

79 Geetanjoy Sahu,op. cit.

80 Raghuram, „The Trouble with the Trapezium‟, Down to Earth, 15 April 1996, p. 32.

81 Geetanjoy Sahu, op. cit.

293

82 Geetanjoy Sahu, Environmental Governance and Role of Judiciary in India, Thesis submitted to the University of Mysore, Mysore, through the Institute for Social and Economic Change, Bangalore, for the Award of the Degree of Doctor of Philosophy in Political Science, available at http://www.isec.ac.in/Environmental_%20governance_%20and_%20role_% 20of_%20judiciary_%20in_%20India.pdf accessed on 24 October 2010 at 8:12 pm.

83 Ibid.

84 Subhendu Rajan Raj, „Supreme Court Environmental Crusade: Enforcing CNG Alternative for World‟s Third Most Polluted City‟, in B. D. Dua, M. P. Singh and Rekha Saxena (eds.), Indian Judiciary and Politics: The Changing Landscape, Manohar Publishers, New Delhi, 2007, p. 231.

85 „Juicial Activism under the Indian Constitution‟ Addressed by K.G. Balakrishnan - Chief Justice of India, at Trinity College Dublin in Ireland on 14 October 2009, available at http://www.supremecourtofindia.nic.in/speeches/speeches_2009/Judicial_Ac tivism_TCD_Dublin_14-10-09.pdf accessed on 21 October 2010 at 4:43 pm.

86 Subhendu Rajan Raj, op. cit., p. 227.

87 Geetanjoy Sahu, op. cit.

88 S. Muralidhar, Public interest litigation, op.cit.

89 Bharat Desai, „Enforcement of the Right to Environment Protection through Public Interest Litigation in India‟, Indian Journal of International Law, Volume 33, 1993, pp. 27-40.

90 Geetanjoy Sahu, op. cit.

91 C. M. Jariwala, op. cit., p. 37.

294

CONCLUSION & SUGGESTIONS

At the global level, the increasing industrialisation, urbanisation, modernisation and population growth have significantly contributed to the environmental degradation. Since times immemorial, there has been a continuous environmental degradation caused not only by forces of nature but man too has contributed immensely in destroying it by recklessly exploiting the environment and its resources. The uncontrolled use of modern technology for day-to-day life such as washing machines, refrigerators, air conditioners, microwaves, cars, etc., not only by the rich and affluent but also by the people belonging to middle class, has severely affected the environment. The exhaustion of the natural resources, the extinction of many a species, the imbalance in the ecosystem, depletion of the ozone layer, all have become important issues to be tackled without delay in order to survive on this planet. Man has actually become a victim of his own wrong-doings. The dangerous proportions of this degradation have created alarming conditions, primarily by the actions of human beings, making earth increasingly unlivable.

However, people in general, and policy makers in particular, have now realised the importance and the necessity of protecting the environment in right earnest. The significance attached to the environmental issues today can be judged simply by the fact that we come across everyday with articles, advertisements, activities, conferences, demonstrations raising the issue of environment and the urgency of doing everything possible for its protection. The terms „global warming‟ and „climate change‟ have come into common parlance, even among children. The World Wildlife Fund (WWF) has estimated that since the 1980s humanity has already exceeded the planet‟s capacity to sustain its consumption of renewable resources and may not be able to protract indefinitely. It is aptly said by a writer that: „Perhaps the most significant development of the last half-century has been the new recognition that human societies cannot take nature for granted.‟

295 As a result, the issues of environmental policy and governance became prominent and indispensible around the world. It was rightly said by David Orr, „When we heal the earth, we heal ourselves.‟ Consequently, the legislations and execution of the environmental policies in every country have become a reputable and recognised phenomenon. It was 40 years back, in 1972, when the first step was taken in this direction, with the convening of the United Nations Conference on the Human Environment, also known as the Stockholm Conference. At the global level, it was for the first time that the governments and other non-state institutions collectively endeavoured to protect the environment. It is also called the “Magna Carta” of environment protection and development. World leaders, for the first time, realised that their actions for rapid development have endangered the environment and have put at risk not only the present generation but the very future of mankind. The United Nations General Assembly laid down as many as 26 principles in this Conference held in the capital city of Sweden.

Continued population growth, especially in the last century and in the first decade of the present century, has become one of the most serious concerns for the country as it has direct bearings on many sectors, environment being the most pronounced and evident one. To feed the massive populations and to provide employment to the large sections of society in India, industrialisation and urbanisation have come about as the natural offshoots.

The study has exposed that fast growth of population has led to the excessive exploitation of natural resources. The ever increasing burden on limited resources has also resulted in shortages which has further complicated matters. The huge gap between more affluent sections of society and the large majority belonging to poor or very poor sections have added pressures on the economic and natural resources of the country.

Forest cover has also shrunk due to large scale deforestation which is constantly affecting health of the people. Quality of air we breathe has deteriorated causing many types of respiratory diseases among the people of the country and has created severe health hazards.

296 Water pollution is also one of the most problematic of areas for the people and the government as well. Contamination of both, ground water and surface water, has generated various water borne diseases. It has been put beyond doubt that we are heading towards very dangerous and disastrous situation as various effects of environmental degradation on human beings are getting clearer by the day. It appears, that the catastrophic conditions that are easily being visualised today have forced peoples and leaders, administrators and governments to stand up and make a united effort to protect and conserve environment because if we do not get serious about this issue now, we won‟t be able to exist on earth for long. No wonder, even after 60 years of independence, India is still far away from achieving the humane standards of health for its population, a definite consequence of environment degradation.

An urgent need to control population growth in the country cannot be further overlooked. Sincere efforts should be made for educating the country‟s massive population and their leaders about the adverse effects of large populations through specially designed IEC (Information, Education and Communication) programmes. Green cover must be increased and presently existing forests must be preserved by afforestation drives and social forestry campaigns, starting from the local level.

Furthermore, measures to control air and water pollution should be intensified throughout the country. Wastewater treatment plants be established in accordance with the need of time and its usage should be encouraged. In the absence of substantial penalties and lack of surety of punishment due to lengthy and cumbersome justice system, industries are going scot-free, although they are at the top of the table of polluters in the country. Poor standards of living force many to depend on firewood that also has become a prime source of air pollution. So, the need of the hour is to make anti-pollution laws more stringent and punishment must be assured. Moreover, landfills have to be appropriately handled to minimise ground water contamination. Since slums are one of the major sources of water pollution, right measures should be taken to provide better drainage and water supply facilities in them. It has also come to light from the study that there is hardly any emphasis on educating the people and creating awareness among them to imbibe a feeling and concern for the mother earth. Many advanced countries of the world have been

297 providing compulsory education on environment related issues, while in India, nobody seems to be even contemplating to launch a nation-wide programme for environmental education. However, we cannot always hide behind the excuse that the government is not doing much in this regard as environment is as much its concern as it is of everyone.

Moreover, the policies formulated for the environmental protection have not always been laudable and sound. A number of shortcomings are associated with environmental policies, either in their formulation or in their implementation, or both. For instance, one of the basic weakness of environment conservation policies is that the primary motive behind them is economic, i.e., the need for conservation of something because its depletion would cause losses in monetary terms. This type of narrow outlook leads to the loss of that plant or animal species that may not be commercially profitable though their depletion or extinction may be significantly disastrous for the health and well-being of environment.

Another problem regarding environmental policy regimes or institutions is to find ways to analyse their effectiveness in qualitative and quantitative terms. One more drawback of environmental governance at the international level is that there is no specific global environmental organisation or institution with universal authority and control. A World Environment Organisation (WEO) has been proposed by analysts and policy-makers to remedy existing problems of international environmental governance. Conversely, debates are going on various issues including on the view point that the creation of an independent environmental organisation will not be able to solve the problem of environmental degradation. Some people say that there is near universal agreement that the main drawback of the global environmental governance is the lack of responsibility and accountability. There is no international agency or organisation to which these regimes can be made accountable.

India is a developing country and is in the race for becoming a developed one. In this race of development, it has also invited a number of problems due to environmental degradation which has accompanied development because of relentless pressure exerted on country‟s resources. India, with a population of about 1.21 billion, has become one of the most polluted nations of the world. Further, the problem of environmental squalor has put a heavy strain upon India‟s economy and 298 development programmes. It has been appropriately said by Janet Altman that India‟s greatest challenges for the future will be 1) how to prioritise? And, 2) how to choose to act on those priorities? How will the nation‟s top priorities – national security and human sustenance-are pursued in accordance with measures for environmental protection.

The environmental policies in India have grown steadily over the past several decades. Both national and international factors have been responsible for the development and formulation of „green guidelines‟ in India. As said by Gadgil and Guha, „however, in developing countries like India, the existence of strong local movements has been a significant force for environmental policies.

Generally, all the governments of nations in the world face one or the other kind of shortcomings in their governance. The government of India has also been facing problems of governance with respect of issues concerning environment. We often come across the facts about the failures of the government in protecting environment and its resources. There are many problems with the environmental governance and almost all are embedded in the areas of environment, local livelihoods and development. The basic problem is with the policy itself i.e. how to make choices between gradual development projects, concerns of natural-resource-dependent communities, and broader environmental impacts. Further, even if we concur that the environmental policies are adequate and worthy, then the problem is the lack of their proper implementation. Generally, in context of environment in India, it is considered that the problem is more with the administration rather than the policy making. In other words, believers in the worthiness of environment policies say that there is no ground to lay the blame on policies, the real problem is of their implementation because there is a complete lack of coordination and cooperation among the agencies that enforce them.

It was correctly pointed out by Upendra Baxi, a well known legal scholar in India, that the most striking and fundamental flaw within the institutional design of the law for the environment protection in India is its neo-colonial character. The policies, ideologies, legislative and administrative models are inherited from the imperial governments irrespective of the circumstances and unmindful of the problems in a developing country like India. Ideally speaking, the policies should have been 299 reframed in context of capabilities and constraints in the newly independent nations. Policies for improvement of the environment require continuous strengthening of institutional and legal frameworks of the nations irrespective of the region and the political party in power. Therefore, India too needs to update and upgrade its policies with the rapidly multiplying problems of environment. In many cases, the roles and responsibilities of the concerned agencies lack clarity, have been disintegrated, overlapping and are often found to be working at cross purposes.

Another drawback in the system is the lack of independence and autonomy among the regulatory arms of the policymaking agencies. Broadly speaking, to overcome this there is an urgent need for the government to take some drastic steps in order to provide sufficient funds in the field of environment, institutional framework must be overhauled, corruption must be weeded out, inefficiencies should not be tolerated and the lack of knowledge and lukewarmness from the administration must be strictly tackled and on top priority.

SUGGESTIONS

There is also a crying need for more decentralisation, accountability, participative governance, transparent procedures, sectoral coordination at all levels, from local to national, in the environment administration of India. Planning in the field of environment should be resource-based rather than need-based. Broadly categorised, following are some of the suggestions for the protection of environment.

1. There is an urgent need to study with sincere intent the scope of the policies and laws, their drawbacks, limitations, clarity and consistency in order to remove their weaknesses.

2. Participation of the public should be a top priority. It should be well- recognised that environmental protection is not solely an affair of the state. Participation of the people at all levels is a prerequisite of a successful policy, especially in the field of environment. People are needed to be informed regularly about the state of the environment in India as well as about the policies and laws that have been framed and enacted in order to highlight the importance of its protection. The media should regularly focus

300 on the status of the environment and the factors that contribute to its deterioration in the country.

3. Awards should be conferred on the members of the public at all levels so that they are motivated towards the protection of environment and their efforts should be given due recognition prominently.

4. As noted elsewhere in this work, one of the most significant drawbacks is the shortage of trained professional staff who could reach across the country to carry out environment related work. In some agencies, it has been found that there is a clear surplus of staff which subsequently adds to the overheads of the agencies. The Delhi Jal Board, for instance, has roughly 25,000 employees, far in excess of what it needs to discharge its functions as a public water supply utility agency. Therefore, there is a need for installing a proper recruitment and personnel system for the technical and expert people in the environmental sectors so that the administration of the environmental policies can be carried out in an efficient and effective manner.

5. Despite low literacy rate in the country, and the presence of a large population from which a big number of children either never goes to school and from amongst those who do, a huge number does not study beyond class X, still environmental awareness and consciousness about it should be incorporated in the curriculum of schools and colleges, as this ought to be realised that there is no other media which can better serve the purpose than instilling in the minds of the younger generation that it is they who can arrest the growing degradation of environment and save the world from certain catastrophe.

6. Often it is found that failure in policy implementation is on the part of lower governmental staff which consequently becomes one of the chief sources that lead to environmental degradation. Local agencies and their personnel not only lack power and authority, but an added reason of their failures is their helplessness in acquiring the latest technologies and financial help to prevent environmental degradation. Therefore, there is a need for more stringent inspection, regulation and most importantly, funding, by the central

301 government for state and local administrations to ensure genuine implementation of policies.

7. Although green courts have been established in India to provide justice in environmental matters. But special courts for specialised areas of environment should also be established in addition to „green courts‟, in areas that encounter major environmental problems. For example, special wildlife courts should be established in areas where there are number of pending wildlife, poaching and other related cases. Further, in poaching cases, pecuniary fines should be much more than the sale value of the plundered animals, so that the poachers get exemplary punishment and the menace is crushed ruthlessly.

8. Effective ways should be evolved to channelise funds collected as fines from guilty individuals, organisations and governments to those areas that are facing acute environment related problems.

9. If the government employees are found guilty of contributing to environmental damage by doing something that is forbidden under laws or indulge in dereliction of duty in any capacity associated with environment protection exercise then they should be dismissed from service and should be further barred from being employed again in any government job.

10. The violators of environment from the industrial fraternity should be punished sternly and their licenses be cancelled for ever in the second offence when they repeat a breach of law after having been warned at the time of their first offence with a lighter punishment. For this purpose, close and frequent monitoring agencies should be established.

11. Every tourist place in India should be either eco-friendly otherwise should be banned for tourist inflow because additional burden on the local environment deteriorates it more rapidly. Even if tourists are allowed then heavy charges should be levied on them so as to reduce their number to prospective places of tourist attraction.

12. People should be made aware of the harmful effects of the gadgets they are using and the quantum of their impact on the environment. Government 302 should make it obligatory on the manufacturers of the gadgets to display prominently on the gadgets or on their packaging, the harmful effects of using them in the long run. Further, government should encourage manufacturers to produce eco-friendly products by allowing subsidies and tax cuts on such products. In this manner, prices of green-products i.e. those associated with less environmental damage should be less as compared to non-green products.

13. Waste recycling and generation of energy from waste should be publicised extensively. Moreover, there should be a systematic organisation to deal with the waste, waste collectors and recycling processes. In the context of bio- medical waste, commitment is required from persons at all levels of the medical profession.

14. E-waste management is a new challenge for waste management in India and around the world. Safe and environment friendly raw materials should be used in products and technological applications should be made use of in product design in order to minimise the waste that they produce.

15. An efficient and effective public transportation system should be developed and encouraged. According to an estimate „50 per cent of the problems of vehicular emission are due to the use of out dated technology in manufacturing, 20 per cent due to poor maintenance and poor road conditions, and 30 per cent of the problems are caused by bad fuel quality‟ [CSE 1996]. Therefore, there is also a need to focus on the quantity of the transport system with emphasis on bettering the quality of vehicles by keeping abreast with latest technology and modernisation techniques. The introduction of metro rail system in a few more metropolitan cities will further help to reduce pollution in the country. Parking fees and road taxes should be charged at higher rates to discourage individual car usage.

16. The policies regarding people affected by environment related displacements are unsound, inhumane and also illogical in India. People who are heavily exposed to worst environmental degradations should be provided with special protection. The governments at the regional and local levels should

303 actively engage with environmentally disadvantaged groups and should address their needs and issues regularly in order to provide succour to them. Direct investment policies should be made and allowed for backward and effected areas. These people should be encouraged to participate in the environmental policy design and implementation process of the country as they are in a better position, backed by their experiences, to advice as to how best environment quality be improved.

17. One of the emerging problems regarding environmental governance is the political influence. Political elite in society tends to interfere in policy implementation and formulation too because of their vested interests in particular business enterprises. Strict measures should be taken to curb the spread of the political influence in the environmental governance.

18. One of the steps to improve the environment is to encourage research in this area. Large sponsorships should be granted to do research in environmental areas and help from corporate houses should be sought to create scholarships and awards in this area of study.

19. The role of technological innovations has to be encouraged for effective environmental policies. Internationally proven technologies should be imported and international expertise should be invited to solve domestic concerns.

20. Extensive planting of trees can be found on either side of the roads in large as well as medium-sized cities but the experience shows that small towns and cities are neglected in this area of environmental protection. Efforts should be made in this direction by the local governments.

21. Well designed silencers and mufflers should be installed in vehicles and generators to control noise pollution. Noise barriers should be created around hospitals, schools and other locations in silence zones.

22. People involved in illegal use of electricity should be sternly punished so as to control unnecessary consumption of energy and also to generate more finances for the electricity boards which could consequently be spent on

304 installing better pollution control devices and for more authentic preventive measures.

23. To further create accountability of other ministries and departments in environmental issues, the government should ask the ministries and departments to give their annual sustainability reports for environment auditors to suggest improvements for curbing polluting activities.

24. Special loans and subsidies should be granted to rural people to encourage them to adopt green methods.

25. Policies should be made and strictly enforced to minimise the use of plastics for different purposes.

26. More steps are needed to control deforestation as the current status of forests is very grave. Compared to the standard forest area for India that is 33%, the current forest cover is only 20.29% (FSI, 2005)

27. There is no policy for planning of grazing areas for animals, especially, milch cattle. Policies should be developed for providing alternative grazing areas, as reckless grazing is also a major source of environmental dilapidation.

28. Many flaws are also found in the EIA procedures. The considerations on which projects/activities are required to get environment clearance have usually been investment, size or capacity, which is a major drawback as no consideration is given to the type of industry and its location. Another important problem is the delay in the process of loan sanction because of the lack of timely availability of reliable and authentic environmental data. Moreover, the EIA does not take into consideration all the relevant issues of environment concerning people in its procedures. Therefore, there is a need to expand the scope of assessment areas so as to truly assess the impact on environment and further strengthening of the management of the EIA is required too.

29. An additional problem is lack of coordination among different agencies of the government. Often it has been found that there is a clash of interests and

305 goals among them. In other words, it means, clash between development and environment. Plainly speaking, there is a lack of control of Ministry of Environment and Forests over the environmental impact of the policies of other ministries and departments of the government. The control of the Ministry of Environment and Forests should be increased to other agencies in order to keep up the effectiveness of its environment policies. Apart from the private projects, there should also be an assessment of plans, policies and schemes of government agencies.

30. Further, there is a lack of understanding of the micro realities. In this context, there is a need to strengthen the institutional framework, especially in rural areas, because incorporating them in the macro policies would give sustenance to environmental policies.

31. Since NGOs play a major and active role in the protection of environment by performing many functions including monitoring of the government‟s performance, therefore, to compliment it, government should recognise the role of NGOs and encourage them in the conservation of the environment by defining their rights and duties; and by providing more funds for the improvement in the quality of environment.

However, we may still say that environmental policies have been successful to some extent in India. All the sectors, ministries, departments and, at all levels of the government, measures are being taken directly, or otherwise, indirectly. Improvements are being made in each of the fields and in the understanding of their ecological consequences. It has been well considered now that the environment is not a sector but is the most important dimension of every sector.

306

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Hindustan Times

Kurukshetra

Pratiyogita Darpan.

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The Times of India, New Delhi.

Yojana

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328 http://gbpihed.gov.in/institute.htm http://green.ndtv.com/ http://indiacode.nic.in/ http://legalservicesindia.com/ http://mcmef.org/index.html http://mnre.gov.in/press-releases/press-release-15012010.pdf http://moef.nic.in/ http://new.unep.org/un-env/Default.asp http://nmnh.nic.in/aboutus.htm http://presidentofindia.nic.in/ http://speakerloksabha.nic.in/speech/ http://sudiv.gov.in/ http://timesofindia.indiatimes.com/ http://uk.reuters.com/ http://unu.edu/ http://uspolitics.about.com/od/energy/i/kyoto_protocol_2.htm http://vicepresidentofindia.nic.in/ http://www.adb.org/ http://www.afdb.org/en/ http://www.awbi.org/ http://www.bbc.co.uk/news/world/europe/ http://www.cbd.int/financial/doc/meetings/rwbf-01/rwbf-01-09-en.pdf http://www.cec.org/ http://www.corpwatch.org/ http://www.cpcb.nic.in/Functions.php http://www.cseindia.org/ http://www.cza.nic.in/about.html http://www.eanet.cc/ http://www.ebrd.com/pages/homepage.shtml

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330 http://www.planningcommission.gov.in http://www.sprep.org/ http://www.supremecourtofindia.nic.in/speeches/ http://www.temm.org/ http://www.teriin.org/ http://www.thehindubusinessline.com/ http://www.theindiapost.com/ http://www.tribuneindia.com/ http://www.un.org/ http://www.unep.org/ http://www.wii.gov.in/ http://www.wmo.int/pages/index_en.html http://www.wwfenvis.nic.in/parliament_environment.aspx http://www1.law.nyu.edu/journals/envtllaw/issues/vol3/1/3nyuelj1.html http://zsi.gov.in/category/brief_history.html

331

APPENDIX I

The Environment (Protection) Act, 1986

No. 29 OF 1986

[23rd May, 1986.]

An Act to provide for the protection and improvement of environment and for matters connected there with:

WHEREAS the decisions were taken at the United Nations Conference on the Human Environment held at Stockholm in June, 1972, in which India participated, to take appropriate steps for the protection and improvement of human environment;

AND WHEREAS it is considered necessary further to implement the decisions aforesaid in so far as they relate to the protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants and property;

BE it enacted by Parliament in the Thirty-seventh Year of the Republic of India as follows:-

CHAPTER I

PRELIMINARY

1. SHORT TITLE, EXTEND AND COMMENCEMENT

(1) This Act may be called the Environment (Protection) Act, 1986.

(2) It extends to the whole of India.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act and for different areas.1

332 2. DEFINITIONS

In this Act, unless the context otherwise requires,--

(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;

(b) "environmental pollutant" means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment;

(c) "environmental pollution" means the presence in the environment of any environmental pollutant;

(d) "handling", in relation to any substance, means the manufacture, processing, treatment, package, storage, transportation, use, collection, destruction, conversion, offering for sale, transfer or the like of such substance;

(e) "hazardous substance" means any substance or preparation which, by reason of its chemical or physico-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plant, micro-organism, property or the environment;

(f) "occupier", in relation to any factory or premises, means a person who has, control over the affairs of the factory or the premises and includes in relation to any substance, the person in possession of the substance;

(g) "prescribed" means prescribed by rules made under this Act.

CHAPTER II

GENERAL POWERS OF THE CENTRAL GOVERNMENT

3. POWER OF CENTRAL GOVERNMENT TO TAKE MEASURES TO PROTECT AND IMPROVE ENVIRONMENT

(1) Subject to the provisions of this Act, the Central Government, shall have the power to take all such measures as it deems necessary or expedient for the

333 purpose of protecting and improving the quality of the environment and preventing controlling and abating environmental pollution.

(2) In particular, and without prejudice to the generality of the provisions of sub- section (1), such measures may include measures with respect to all or any of the following matters, namely:--

(i) co-ordination of actions by the State Governments, officers and other authorities-

(a) under this Act, or the rules made thereunder, or

(b) under any other law for the time being in force which is relatable to the objects of this Act;

(ii) planning and execution of a nation-wide programme for the prevention, control an abatement of environmental pollution;

(iii) laying down standards for the quality of environment in its various aspects;

(iv) laying down standards for emission or discharge of environmental pollutants from various sources whatsoever:

Provided that different standards for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources;

(v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards;

(vi) laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents;

(vii) laying down procedures and safeguards for the handling of hazardous substances;

334 (viii) examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution;

(ix) carrying out and sponsoring investigations and research relating to problems of environmental pollution;

(x) inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution;

(xi) establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act;

(xii) collection and dissemination of information in respect of matters relating to environmental pollution;

(xiii) preparation of manuals, codes or guides relating to the prevention, control and abatement of environmental pollution;

(xiv) such other matters as the Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act.

(3) The Central Government may, if it considers it necessary or expedient so to do for the purpose of this Act, by order, published in the Official Gazette, constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue directions under section 5) of the Central Government under this Act and for taking measures with respect to such of the matters referred to in sub-section (2) as may be mentioned in the order and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise and powers or perform the functions or take the measures so mentioned in the order as if such authority or authorities had

335 been empowered by this Act to exercise those powers or perform those functions or take such measures.

4. APPOINTMENT OF OFFICERS AND THEIR POWERS AND FUNCTIONS

(1) Without prejudice to the provisions of sub-section (3) of section 3, the Central Government may appoint officers with such designation as it thinks fit for the purposes of this Act and may entrust to them such of the powers and functions under this Act as it may deem fit.

(2) The officers appointed under sub-section (1) shall be subject to the general control and direction of the Central Government or, if so directed by that Government, also of the authority or authorities, if any, constituted under sub- section (3) of section 3 or of any other authority or officer.

5. POWER TO GIVE DIRECTIONS

Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.3

Explanation--For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct--

(a) the closure, prohibition or regulation of any industry, operation or process; or

(b) stoppage or regulation of the supply of electricity or water or any other service.

6. RULES TO REGULATE ENVIRONMENTAL POLLUTION

(1) The Central Government may, by notification in the Official Gazette, make rules in respect of all or any of the matters referred to in section 3.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:--

336 (a) the standards of quality of air, water or soil for various areas and purposes;4

(b) the maximum allowable limits of concentration of various environmental pollutants (including noise) for different areas;

(c) the procedures and safeguards for the handling of hazardous substances;5

(d) the prohibition and restrictions on the handling of hazardous substances in different areas;6

(e) the prohibition and restriction on the location of industries and the carrying on process and operations in different areas;7

(f) the procedures and safeguards for the prevention of accidents which may cause environmental pollution and for providing for remedial measures for such accidents.8

CHAPTER III

PREVENTION, CONTROL, AND ABATEMENT OF ENVIRONMENTAL POLLUTION

7. PERSONS CARRYING ON INDUSTRY OPERATION, ETC., NOT TO ALLOW EMISSION OR DISCHARGE OF ENVIRONMENTAL POLLUTANTS IN EXCESS OF THE STANDARDS

No person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or emitted any environmental pollutants in excess of such standards as may be prescribed.9

8. PERSONS HANDLING HAZARDOUS SUBSTANCES TO COMPLY WITH PROCEDURAL SAFEGUARDS

No person shall handle or cause to be handled any hazardous substance except in accordance with such procedure and after complying with such safeguards as may be prescribed.10

337 9. FURNISHING OF INFORMATION TO AUTHORITIES AND AGENCIES IN CERTAIN CASES

(1) Where the discharge of any environmental pollutant in excess of the prescribed standards occurs or is apprehended to occur due to any accident or other unforeseen act or event, the person responsible for such discharge and the person in charge of the place at which such discharge occurs or is apprehended to occur shall be bound to prevent or mitigate the environmental pollution caused as a result of such discharge and shall also forthwith--

(a) intimate the fact of such occurrence or apprehension of such occurrence; and

(b) be bound, if called upon, to render all assistance, to such authorities or agencies as may be prescribed.11

(2) On receipt of information with respect to the fact or apprehension on any occurrence of the nature referred to in sub-section (1), whether through intimation under that sub-section or otherwise, the authorities or agencies referred to in sub-section (1) shall, as early as practicable, cause such remedial measures to be taken as necessary to prevent or mitigate the environmental pollution.

(3) The expenses, if any, incurred by any authority or agency with respect to the remedial measures referred to in sub-section (2), together with interest (at such reasonable rate as the Government may, by order, fix) from the date when a demand for the expenses is made until it is paid, may be recovered by such authority or agency from the person concerned as arrears of land revenue or of public demand.

10. POWERS OF ENTRY AND INSPECTION

(1) Subject to the provisions of this section, any person empowered by the Central Government in this behalf12 shall have a right to enter, at all reasonable times with such assistance as he considers necessary, any place--

338 (a) for the purpose of performing any of the functions of the Central Government entrusted to him;

(b) for the purpose of determining whether and if so in what manner, any such functions are to be performed or whether any provisions of this Act or the rules made thereunder orany notice, order, direction or authorisation served, made, given or granted under this Act is being or has been complied with;

(c) for the purpose of examining and testing any equipment, industrial plant, record, register, document or any other material object or for conducting a search of any building in which he has reason to believe that an offence under this Act or the rules made thereunder has been or is being or is about to be committed and for seizing any such equipment, industrial plant, record, register, document or other material object if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder or that such seizure is necessary to prevent or mitigate environmental pollution.

(2) Every person carrying on any industry, operation or process of handling any hazardous substance shall be bound to render all assistance to the person empowered by the Central Government under sub-section (1) for carrying out the functions under that sub-section and if he fails to do so without any reasonable cause or excuse, he shall be guilty of an offence under this Act.

(3) If any person wilfully delays or obstructs any persons empowered by the Central Government under sub-section (1) in the performance of his functions, he shall be guilty of an offence under this Act.

(4) The provisions of the Code of Criminal Procedure, 1973, or, in relation to the State of Jammu and Kashmir, or an area in which that Code is not in force, the provisions of any corresponding law in force in that State or area shall, so far as may be, apply to any search or seizures under this section as they apply to any search or seizure made under the authority of a warrant issued under

339 section 94 of the said Code or as the case may be, under the corresponding provision of the said law.

11. POWER TO TAKE SAMPLE AND PROCEDURE TO BE FOLLOWED IN CONNECTION THEREWITH

(1) The Central Government or any officer empowered by it in this behalf,13 shall have power to take, for the purpose of analysis, samples of air, water, soil or other substance from any factory, premises or other place in such manner as may be prescribed.14

(2) The result of any analysis of a sample taken under sub-section (1) shall not be admissible in evidence in any legal proceeding unless the provisions of sub-sections (3) and (4) are complied with.

(3) Subject to the provisions of sub-section (4), the person taking the sample under sub-section (1) shall--

(a) serve on the occupier or his agent or person in charge of the place, a notice, then and there, in such form as may be prescribed, of his intention to have it so analysed;

(b) in the presence of the occupier of his agent or person, collect a sample for analysis;

(c) cause the sample to be placed in a container or containers which shall be marked and sealed and shall also be signed both by the person taking the sample and the occupier or his agent or person;

(d) send without delay, the container or the containers to the laboratory established or recognised by the Central Government under section 12.

(4) When a sample is taken for analysis under sub-section (1) and the person taking the sample serves on the occupier or his agent or person, a notice under clause (a) of sub-section (3), then,--

(a) in a case where the occupier, his agent or person wilfully absents himself, the person taking the sample shall collect the sample for

340 analysis to be placed in a container or containers which shall be marked and sealed and shall also be signed by the person taking the sample, and

(b) in a case where the occupier or his agent or person present at the time of taking the sample refuses to sign the marked and sealed container or containers of the sample as required under clause (c) of sub-section (3), the marked and sealed container or containers shall be signed by the person taking the samples, and the container or containers shall be sent without delay by the person taking the sample for analysis to the laboratory established or recognised under section 12 and such person shall inform the Government Analyst appointed or recognised under section 12 in writing, about the wilfull absence of the occupier or his agent or person, or, as the case may be, his refusal to sign the container or containers.

12. ENVIRONMENTAL LABORATORIES

(1) The Central Government15 may, by notification in the Official Gazette,--

(a) establish one or more environmental laboratories;

(b) recognise one or more laboratories or institutes as environmental laboratories to carry out the functions entrusted to an environmental laboratory under this Act.16

(2) The Central Government may, by notification in the Official Gazette, make rules specifying--

(a) the functions of the environmental laboratory;17

(b) the procedure for the submission to the said laboratory of samples of air, water, soil or other substance for analysis or tests, the form of the laboratory report thereon and the fees payable for such report;18

(c) such other matters as may be necessary or expedient to enable that laboratory to carry out its functions.

341 13. GOVERNMENT ANALYSTS

The Central Government may by notification in the Official Gazette, appoint or recognise such persons as it thinks fit and having the prescribed qualifications19 to be Government Analysts for the purpose of analysis of samples of air, water, soil or other substance sent for analysis to any environmental laboratory established or recognised under sub-section (1) of section 12.

14. REPORTS OF GOVERNMENT ANALYSTS

Any document purporting to be a report signed by a Government analyst may be used as evidence of the facts stated therein in any proceeding under this Act.

15. PENALTY FOR CONTRAVENTION OF THE PROVISIONS OF THE ACT AND THE RULES, ORDERS AND DIRECTIONS

(1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.

(2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years.

16. OFFENCES BY COMPANIES

(1) Where any offence under this Act has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

342 Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation--For the purpose of this section,--

(a) "company" means anybody corporate and includes a firm or other association of individuals;

(b) "director", in relation to a firm, means a partner in the firm.

17. OFFENCES BY GOVERNMENT DEPARTMENTS

(1) Where an offence under this Act has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Provided that nothing contained in this section shall render such Head of the Department liable to any punishment if he proves that the offence was committed without his knowledge or that he exercise all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a Department of Government and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any officer, other than the Head of the Department, such officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

343 CHAPTER IV

MISCELLANEOUS

18. PROTECTION OF ACTION TAKEN IN GOOD FAITH

No suit, prosecution or other legal proceeding shall lie against the Government or any officer or other employee of the Government or any authority constituted under this Act or any member, officer or other employee of such authority in respect of anything which is done or intended to be done in good faith in pursuance of this Act or the rules made or orders or directions issued thereunder.

19. COGNIZANCE OF OFFENCES

No court shall take cognizance of any offence under this Act except on a complaint made by--

(a) the Central Government or any authority or officer authorised in this behalf by that Government,20 or

(b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorised as aforesaid.

20. INFORMATION, REPORTS OR RETURNS

The Central Government may, in relation to its function under this Act, from time to time, require any person, officer, State Government or other authority to furnish to it or any prescribed authority or officer any reports, returns, statistics, accounts and other information and such person, officer, State Government or other authority shall be bound to do so.

21. MEMBERS, OFFICERS AND EMPLOYEES OF THE AUTHORITY CONSTITUTED UNDER SECTION 3 TO BE PUBLIC SERVANTS

All the members of the authority, constituted, if any, under section 3 and all officers and other employees of such authority when acting or purporting to act in pursuance of any provisions of this Act or the rules made or orders or directions issued

344 thereunder shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

22. BAR OF JURISDICTION

No civil court shall have jurisdiction to entertain any suit or proceeding in respect of anything done, action taken or order or direction issued by the Central Government or any other authority or officer in pursuance of any power conferred by or in relation to its or his functions under this Act.

23. POWERS TO DELEGATE

Without prejudice to the provisions of sub-section (3) of section 3, the Central Government may, by notification in the Official Gazette, delegate, subject to such conditions and limitations as may be specified in the notifications, such of its powers and functions under this Act [except the powers to constitute an authority under sub- section (3) of section 3 and to make rules under section 25] as it may deem necessary or expedient, to any officer, State Government or other authority.

24. FFECT OF OTHER LAWS

(1) Subject to the provisions of sub-section (2), the provisions of this Act and the rules or orders made therein shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act.

(2) 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.

25. POWER TO MAKE RULES

(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely--

(a) the standards in excess of which environmental pollutants shall not be discharged or emitted under section 7;21

345 (b) the procedure in accordance with and the safeguards in compliance with which hazardous substances shall be handled or caused to be handled under section 8;22

(c) the authorities or agencies to which intimation of the fact of occurrence or apprehension of occurrence of the discharge of any environmental pollutant in excess of the prescribed standards shall be given and to whom all assistance shall be bound to be rendered under sub-section (1) of section 9;23

(d) the manner in which samples of air, water, soil or other substance for the purpose of analysis shall be taken under sub-section (1) of section 11;24

(e) the form in which notice of intention to have a sample analysed shall be served under clause (a) of sub section (3) of section 11;25

(f) the functions of the environmental laboratories,26 the procedure for the submission to such laboratories of samples of air, water, soil and other substances for analysis or test;27 the form of laboratory report; the fees payable for such report and other matters to enable such laboratories to carry out their functions under sub-section (2) of section 12;

(g) the qualifications of Government Analyst appointed or recognised for the purpose of analysis of samples of air, water, soil or other substances under section 13;28

(h) the manner in which notice of the offence and of the intention to make a complaint to the Central Government shall be given under clause (b) of section 19;29

(i) the authority of officer to whom any reports, returns, statistics, accounts and other information shall be furnished under section 20;

(j) any other matter which is required to be, or may be, prescribed.

346 26. RULES MADE UNDER THIS ACT TO BE LAID BEFORE PARLIAMENT

Every rule made under this Act shall be laid, as soon as may be after it is made, before each Hose of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

1 It came into force in the whole of India on 19th November, 1986 vide Notification No. G.S.R. 1198(E) dated 12-11-86 published in the Gazette of India No. 525 dated 12-11-86.

2 The Central Government has delegated the powers vested m it under section 5 of the -Act to the State Governments of Andhra Pradesh, Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Karnatalca, Kerala, Madhya Predesh, Mizoram, Orissa, Rajasthan, Sikkim and Tamil Nadu subject to the condition that the Central Government may revoke such delegation of Powers in respect of all or any one or more of the State Governments or may itself invoke the provisions of section 5 of the Act, if in the opinion of the Central Government such a course of action is necessary in public interest, (Notification No, S.O. 152 (E) dated 10-2-88 published in Gazette No. 54 of the same date). These Powers have been delegated to the following State Governments also on the same terms: Meghalaya, Punjab and Uttar Pradesh vide Notification No. S.0.389 (E) dated 14-4-88 published in the Gazette No. 205 dated 144-88; Maharashtra vide Notification No. S.O. 488(E) dated 17- 5-88 published in the Gazette No. 255 dated 17-5-88; Goa and Jammu & Kashmir vide Notification No. S.O. 881 (E~ dated 22-9-88; published in the Gazette No. 749 dated 22.9.88. West Bengal Manipur vide Notificadon N.

347 S.O. 408 (E) dated 6-6-89; published in the Gazette No. 319 dated 6-6-89; Tripura vide Notification No. S.O. 479 (E) dated 25-7-91 published in thc Gazene No. 414 dated 25-7-91.

3 For issuing directions see r.4 of Itnviromnent (Protection) Rules, 1986.

4 See r. 3 of Environment (Protection) Rules, 1986 and Schedules thereto. i. Schedule I lists the standards for emission or discharge of environmental pollutants from the industries, processes or operations and their maximum allowable limits of concentration; ii. Schedule II lists general standards for discharge of effluents and their maximum limits of concentration allowable;

iii. Schedule III lists ambient air quality standards in respect of noise and its maximum allowable limits; and

iv. Schedule IV lists standards for emission of smoke, vapour etc. from motor vehicles and maximum allowable limits of their emission.

5 See r. 13 of Environment (Protection) Rules, 1986, and

i. Hazardous Wastes (Management and Handling) Rules, 1989; ii. Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989; and

iii. Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro organisms, Genetically-engineered organisms or Cells.

6 Rule 13 SUPRA.

7 See r. 5 of Environment (Protection) Rules, 1986.

8 See r. 12 of Environment (Protection) Rules and Schedule 11, and relevant provisions of Hazardous Wastes (Management and Handling) Rules, Manufacture, Storage and Import of Hazardous Chemicals Rules and Rules for the Manufacture, Use, Import Export and Storage of hazardous Micro- organisms, Genetically Engineered Organisms or Cells.

9 See r. 3 of Environment (Protection) Rules, 1486 and Schedule I.

348 10 See r. 13 of Environment (Protection) Rules, 1986 and

i. azardous Wastes (Management and Handling) Rules, 1989; ii. Manufacture, Storage and h7lporl of Hazardous Chemicals Rules, 1989; and

iii. Rules for the Manufacture, Use Import, Export and Storage of Hazardous Micro organisms, Genetically Engineered organisms or Cells.

11 For authorities or agencies see r. 12 of Environment (Protection) Rules, 1986 and Schedule

12 The Central Govt. has empowered 60 persons listed in the Table (p. 251) vide S.O. 83 (E) published in the Gazette of India No. 66 dated 16-2-87 and S.O. 63 (E) published in the Gazette of India No. 42 dated 18-1-88.

13 In excercise of powers conferred under sub-section (i) of section 11 the Central Government has empowered 60 officers listed in the Table (p. 254) vide S.O. 84. (E) published in the Gazette No. 66 dated 16-2-87 and S.O. 62(E) published in the Gazette No. 42 dated 18-l-88.

14 For procedure for taking samples see r. 6 of Environment (Protection) Rules, 1986, also.

15 The Central Government has delegated its powers under clause (b) of sub- section (i) of section 12 and section 13 of the Act to the Central Pollution Control Board vide Notification No. S.O. 145 (E) dated 21-2-91 published in the Gazette No. 128 dated 27-2-91.

16 The list of laboratories/institutes recognised as environmental laboratories: and the persons recognised as Govt. Analysts is given in the table (p. 223).

17 See r. 9 of Environment (Protection) Rules, 1986.

18 See r. 8 of Environment (Protection) Rules, 1986.

19 For qualifications of Govt. Analyst see r. 10 of Environment (Protection) Rules, 1986.

349 20 In exercise of powers conferred under clause (a) of section l9, the Central- Government has authorised the officers and authorities listed in the Table (p. 238) vide S.O. 394 (E) published in the Gazette No. 185 dated 164-87, S.O. 237(E) published in the Gazette No. 171 dated 29-3-89 and S.O. 656(E) dated 21-8-89 published in the Gazette No. 519 dated 21-8-89.

21 See footnote 2 on Page 213.

22 See footnote 3 on Page 213.

23 See footnote I on Page 214.

24 See r. 6 of Environment (Protection) Rules, 1986.

25 See r. 7 of Environment (Protection) Rules, 1986.

26 See r. 9 of Environment (Protection) Rules, 1986.

27 For the procedure for submission of samples to laboratories and the form of laboratory report see r. 8 of Environment (Protection) Rules, 1986.

28 See r. 10 of Environment (Protection) Rules, 1986.

29 See r. 11 of Environment (protection) Rules, 1986.

350

APPENDIX II

United Nations Conference on Human Environment, 1972

The United Nations Conference on the Human Environment, having met at Stockholm from 5 to 16 June 1972, having 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,

Proclaims that:

1. Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when, through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspects of man's environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights the right to life itself.

2. The protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world; it is the urgent desire of the peoples of the whole world and the duty of all Governments.

3. Man has constantly to sum up experience and go on discovering, inventing, creating and advancing. In our time, man's capability to transform his surroundings, if used wisely, can bring to all peoples the benefits of development and the opportunity to enhance the quality of life. Wrongly or heedlessly applied, the same power can do incalculable harm to human beings and the human environment. We see around us growing evidence of man-made harm in many regions of the earth: dangerous levels of pollution in water, air, earth and living beings; major and undesirable disturbances to

351 the ecological balance of the biosphere; destruction and depletion of irreplaceable resources; and gross deficiencies, harmful to the physical, mental and social health of man, in the man-made environment, particularly in the living and working environment.

4. In the developing countries most of the environmental problems are caused by under-development. Millions continue to live far below the minimum levels required for a decent human existence, deprived of adequate food and clothing, shelter and education, health and sanitation. Therefore, the developing countries must direct their efforts to development, bearing in mind their priorities and the need to safeguard and improve the environment. For the same purpose, the industrialized countries should make efforts to reduce the gap themselves and the developing countries. In the industrialized countries, environmental problems are generally related to industrialization and technological development.

5. The natural growth of population continuously presents problems for the preservation of the environment, and adequate policies and measures should be adopted, as appropriate, to face these problems. Of all things in the world, people are the most precious. It is the people that propel social progress, create social wealth, develop science and technology and, through their hard work, continuously transform the human environment. Along with social progress and the advance of production, science and technology, the capability of man to improve the environment increases with each passing day.

6. A point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. Through ignorance or indifference we can do massive and irreversible harm to the earthly environment on which our life and well being depend. Conversely, through fuller knowledge and wiser action, we can achieve for ourselves and our posterity a better life in an environment more in keeping with human needs and hopes. There are broad vistas for the enhancement of environmental quality and the creation of a good life. What is needed is an enthusiastic but calm state of mind and intense but orderly

352 work. For the purpose of attaining freedom in the world of nature, man must use knowledge to build, in collaboration with nature, a better environment. To defend and improve the human environment for present and future generations has become an imperative goal for mankind-a goal to be pursued together with, and in harmony with, the established and fundamental goals of peace and of worldwide economic and social development.

7. To achieve this environmental goal will demand the acceptance of responsibility by citizens and communities and by enterprises and institutions at every level, all sharing equitably in common efforts. Individuals in all walks of life as well as organizations in many fields, by their values and the sum of their actions, will shape the world environment of the future.

Local and national governments will bear the greatest burden for large-scale environmental policy and action within their jurisdictions. International cooperation is also needed in order to raise resources to support the developing countries in carrying out their responsibilities in this field. A growing class of environmental problems, because they are regional or global in extent or because they affect the common international realm, will require extensive cooperation among nations and action by international organizations in the common interest.

The Conference calls upon Governments and peoples to exert common efforts for the preservation and improvement of the human environment, for the benefit of all the people and for their posterity.

Principles

States the common conviction that:

Principle 1

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. In this respect, policies promoting or perpetuating apartheid,

353 racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.

Principle 2

The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.

Principle 3

The capacity of the earth to produce vital renewable resources must be maintained and, wherever practicable, restored or improved.

Principle 4

Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat, which are now gravely imperilled by a combination of adverse factors. Nature conservation, including wildlife, must therefore receive importance in planning for economic development.

Principle 5

The non-renewable resources of the earth must be employed in such a way as to guard against the danger of their future exhaustion and to ensure that benefits from such employment are shared by all mankind.

Principle 6

The discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious or irreversible damage is not inflicted upon ecosystems. The just struggle of the peoples of ill countries against pollution should be supported.

354 Principle 7

States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.

Principle 8

Economic and social development is essential for ensuring a favorable living and working environment for man and for creating conditions on earth that are necessary for the improvement of the quality of life.

Principle 9

Environmental deficiencies generated by the conditions of under-development and natural disasters pose grave problems and can best be remedied by accelerated development through the transfer of substantial quantities of financial and technological assistance as a supplement to the domestic effort of the developing countries and such timely assistance as may be required.

Principle 10

For the developing countries, stability of prices and adequate earnings for primary commodities and raw materials are essential to environmental management, since economic factors as well as ecological processes must be taken into account.

Principle 11

The environmental policies of all States should enhance and not adversely affect the present or future development potential of developing countries, nor should they hamper the attainment of better living conditions for all, and appropriate steps should be taken by States and international organizations with a view to reaching agreement on meeting the possible national and international economic consequences resulting from the application of environmental measures.

Principle 12

Resources should be made available to preserve and improve the environment, taking into account the circumstances and particular requirements of developing countries and any costs which may emanate- from their incorporating environmental

355 safeguards into their development planning and the need for making available to them, upon their request, additional international technical and financial assistance for this purpose.

Principle 13

In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve environment for the benefit of their population.

Principle 14

Rational planning constitutes an essential tool for reconciling any conflict between the needs of development and the need to protect and improve the environment.

Principle 15

Planning must be applied to human settlements and urbanization with a view to avoiding adverse effects on the environment and obtaining maximum social, economic and environmental benefits for all. In this respect projects which arc designed for colonialist and racist domination must be abandoned.

Principle 16

Demographic policies which are without prejudice to basic human rights and which are deemed appropriate by Governments concerned should be applied in those regions where the rate of population growth or excessive population concentrations are likely to have adverse effects on the environment of the human environment and impede development.

Principle 17

Appropriate national institutions must be entrusted with the task of planning, managing or controlling the 9 environmental resources of States with a view to enhancing environmental quality.

356 Principle 18

Science and technology, as part of their contribution to economic and social development, must be applied to the identification, avoidance and control of environmental risks and the solution of environmental problems and for the common good of mankind.

Principle 19

Education in environmental matters, for the younger generation as well as adults, giving due consideration to the underprivileged, is essential in order to broaden the basis for an enlightened opinion and responsible conduct by individuals, enterprises and communities in protecting and improving the environment in its full human dimension. It is also essential that mass media of communications avoid contributing to the deterioration of the environment, but, on the contrary, disseminates information of an educational nature on the need to project and improve the environment in order to enable mal to develop in every respect.

Principle 20

Scientific research and development in the context of environmental problems, both national and multinational, must be promoted in all countries, especially the developing countries. In this connection, the free flow of up-to-date scientific information and transfer of experience must be supported and assisted, to facilitate the solution of environmental problems; environmental technologies should be made available to developing countries on terms which would encourage their wide dissemination without constituting an economic burden on the developing countries.

Principle 21

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

357 Principle 22

States shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.

Principle 23

Without prejudice to such criteria as may be agreed upon by the international community, or to standards which will have to be determined nationally, it will be essential in all cases to consider the systems of values prevailing in each country, and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries.

Principle 24

International matters concerning the protection and improvement of the environment should be handled in a cooperative spirit by all countries, big and small, on an equal footing. Cooperation through multilateral or bilateral arrangements or other appropriate means is essential to effectively control, prevent, reduce and eliminate adverse environmental effects resulting from activities conducted in all spheres, in such a way that due account is taken of the sovereignty and interests of all States.

Principle 25

States shall ensure that international organizations play a coordinated, efficient and dynamic role for the protection and improvement of the environment.

Principle 26

Man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. States must strive to reach prompt agreement, in the relevant international organs, on the elimination and complete destruction of such weapons.

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