ISSN : 2455 0965 “The environment is where we all meet; Lex Terra where all have a mutual interest; it is the one News Updates on Environmental Law thing all of us share.” I S S U E 1 6 16 APRIL 2016
—Lady Bird Johnson INSIDE THE ISSUE
About CELAR Page 2 “Lex Terra is an initiative by the MESSAGE FROM LEX TERRA Page 2 members of Centre ART OF LIVING’S WORLD CULTURAL Page 3-9 for Environmental ART OF LIVING’S WORLD CULTURAL Law, Advocay and FESTIVAL 2016: AN ECOLOGICAL Research(CELAR) of DISASTER National Law -Pallavi Tiwari & Rahul Khare University. Through Lex Terra, we are ECO-TOURISM AND ITS LEGAL Page 10-15 making an effort to IMPLICATIONS put forward the - Ayushi Dwivedi v a r i o u s f a c e t s related to Page 16– 24 Environment from IMPACT OF WATER POLLUTION: RIGHT Page 16– 24 different sources TO HEALTH PERSPECTIVE which is published - Dr. Sharif Uddin every fortnight ENVIRONMENT LAWS AND THEIR Page 25–28 among the society so IMPLEMENTATION IN INDIA that a community of - Akanksha Arya environmentally conscious people EVER KNEW THAT YOU HAD A Page 29-31 emerge out of the ‘FREEDOM TO ROAM’? legal and non-legal Message fromManjeri the Centre Subin Sunder Head Raj fraternity. ENVIRONMENTAL ISSUES IN INDIA AND Page 32-36 Each edition of Lex VARIOUS LAWS REGARDING THEM Terra highlights - Shreya Chaurasia some noteworthy eco-news, both at RISING CONCERNS: AN INTRODUCTION Page 37-41 global as well as TO ‘SOUTH-SOUTH’ CONFLICT & national arena. THE SEA LEVEL RISE This newsletter is Edited by: Sweden- DoleySumangal , Akanchha Rajkonwar Srivastava & Lidia extensively Kharmih prepared by the members and Designed by: Sucheta Ray researchers of CELAR, the members of NLUA. Disclaimer: The views expressed by the author/s in the newsletter are their personal and does not necessarily reflect the views of the National Law University, Assam Photo courtesy: Pushpanjali Medhi
L E X T E R R A P A G E 2 I S S U E 1 6
periodically, newsletters and About CELAR scientifically sound legislative journals. proposals. The primary mission of Centre for The objectives of the CELAR are as Organise training programmes Environmental Law, Advocacy amd follows: Research (CELAR) of National Law for strengthening the legal To inspire and educate University, Assam is to engage in capacity building on students by providing hand-on advocacy and research on public environmental laws doe civil advocacy experience and interest environmental issues. For servants, law enforcement direct exposure to the issues. the purpose, it will organize authorities, non-governmental workshops and seminars to educate Strengthen access to justice by organizations and media and develop skills, convene undertaking high quality personnel. conferences to promote exchange of multi– disciplinary research on Publish periodically journals and ideas, conduct training programmes contemporary legal issues newsletters on environmental for capacity building in environmental pertaining to environment. law. law issues, undertake research on Advocate for reforms in — Professor (Dr.) Yugal Kishore, legal concerns and publish environmental law through Centre Head, CELAR
Message from Team Lex Terra
Dear Readers, Based on our publication's impact factor as well It is with much joy and anticipation that we as some requests and suggestions by present to you the sixteenth issue of academicians from other law schools, we now CELAR’s fortnightly newsletter, Lex Terra. share our publication with all law schools, ad- ministrators along with a pool of We congratulate the team for its eminent environmental activists, researchers and continuous and praiseworthy collective efforts. lawyers in India and overseas. We are also ac- cepting short articles for publication . The team of Lex Terra wishes to thank all of So if you are willing to be part of this ven- those who supported this initiative. We would ture, kindly contribute. like to express out gratitude to our respected Our issues goes online every 1st and 16th of Vice– Chancellor, Prof. (Dr.) Vijender Kumar each month. for his continuous support and timely inputs. Please keep pouring down your support and We would like to thank Prof. (Dr.) Yugal concern for mother nature. Kishore, the Centre Head of CELAR for his help and encouragement. We would like to Thank you! thank Mr. Chiradeep Basak, Centre Co- ordinator of CELAR, who has been a source of inspiration from the outset, along-side his Happy Reading! unrelenting contribution to all phases of the job, from planning, to setting clear goals and appraising the outcome. Lastly, we would also like to extend our gratitude to our faculty advisors, Ms. Shannu Narayan and Mr. Nayan Jyoti Pathak for their ideas and relentless support.
L E X T E R R A P A G E 3 I S S U E 1 6 ART OF LIVING’S WORLD CULTURAL FESTIVAL 2016: AN ECOLOGICAL DISASTER
Pallavi Tiwari, 2nd Year Rahul Khare, 3rd Year Dr. Ram Manohar Lohiya National Law University, Lucknow
venue. The main question to be answered is that A gigantic fiesta came up on the Yamuna floodplains where is the “art” in living like this? in Delhi, over a few days, which was unheeded by Where is the ‘Art’ in living like this? the Union Government. Impermanent bridges de- Many of the farmers have been told to shift and veloped by the army for the big festival and bull- their crops have been destroyed by mowing them dozer running over the crops attracted the atten- down with bulldozers. The farmers even say that tion of National Green Tribunal which brought the the land will take months to be available for culti- Art of Living Foundation’s World Cultural Festival, vation. The organisers have also forced the army which began on 11th March, under controversy. to build five bridges to ingress the festival site in- The festival, which according to the organisers will stead they needed just two. The event has at- welcome 35 lakh visitors, is reckoned to create a tracted sharp condemnation from environmental great impact on the fragile Yamuna ecosystem. This activists and organisations because of the depre- damage was ignored by the Delhi Development Au- ciation it might cause to the Yamuna Floodplains. thority, and the Delhi Pollution Control Committee Several tents, bridges are being built and debris was unaware about the construction detritus and and waste is accumulated. Vegetation is de- waste which would be the leftovers of the congre- stroyed and entire floodplain is made unavailable gation. The Water Resources Ministry which is for cultivation. The four-member committee of obliged to protect the Yamuna had no say whereas the NGT led by Shashi Shekhar has found these the environment and forest department told NGT problems with the event. This is expected to that the big event, which was actually an ecological pose long term damage to river Yamuna by disaster, was not at all harmful to the environment blocking it. The floodplains would be destroyed and needed no attention. All the agencies and the to a great extent and the natural life in that eco- Art of Living were rightly accused by NGT but later system will perish or move out. it was permitted by the tribunal on the condition According to Sri Sri Ravi Shankar “everything is that the organisers would pay an initial fine of Rs. 5 fine, but not the fine” and he is ready to go to the crore and they should rectify the harm caused with jail. The question which arises here is why Art of by the construction of a biodiversity park at the Living’s birth anniversary is considered to be a
L E X T E R R A P A G E 4 I S S U E 1 6 national event. Is this the purpose of Art of Liv- This amount would be paid by the Foundation ing as it claims for a “Holistic Vision” wherein prior to the commencement of the event and they aim to transform societies for good? The would be adjusted towards the final compensation irony here is that the society instead of being determined to be paid by the Foundation for res- transformed for good is harmed and the source toration work. Source of water, collection and dis- of livelihood for the farmers on the Yamuna posal of the Municipal Solid Waste and sewerage Floodplains is being devastated. generated during the event and no further envi- It is the consistent view of the Experts and is ronmental degradation or adverse impact on pub- sufficiently evident from the documents placed lic health source of water and source of power on record that the flood plains have been dras- and its utilization thereof are the issues that would tically tampered with while destroying the natu- be treated as directions issued under Section 33A ral flow of the river, reeds, grasses, natural of the Water Act and Section 6 of the Environ- vegetation on the river bed. It has further dis- mental (Protection) Act, 1986 and would be bind- turbed the aquatic life of the river and de- ing upon the Foundation and all public authorities stroyed water bodies and wet lands on the involved in the case. flood plains, which were in existence, as noticed Cultural activity could be recreational but the en- in the case of Manoj Misra vs. Union of India and tire construction of ramps, roads, accumulation of Ors.,. They had also constructed ramps, roads, debris, alteration of the natural topography and compaction of earth, pontoon bridges and other removal of natural vegetation from the flood semi-permanent or temporary structures etc. plains, cannot be said to be recreational. even without the permission of the concerned “The Yamuna floodplain is a highly sensitive eco- authorities including Ministry of Water Re- logical zone. To organise its culture festival, the sources. AOL Foundation has illegally cleared the entire For the damage caused to the environment, stretch of wetland and marshy area. It’s total dev- ecology, biodiversity and aquatic life of the river, astation and we fail to understand how the person the Foundation should be held liable for its res- (Sri Sri Ravi Shankar), an apostle of non-violence toration in all respects. In that regard and in ex- and spiritualism can allow it”, said the petitioner, ercise of our powers under Sections 15 and 17 Manoj Kumar Misra who is also the convener of of the NGT Act, 2010 which talk about the Re- Yamuna Jiye Abhiyan, an NGO working for the lief, compensation and restitution and Liability restoration of river Yamuna. to pay compensation, respectively with an Envi- NGT takes a stand and Fait Acompli ronmental Compensation, initially of Rs. 5 The biggest mistake of Yamuna Jiye Abhiyan, who crores. raised a petition against these practices, was that
L E X T E R R A I S S U E 1 6 P A G E 5 they were very late and since the extravaganza and ask the organisers to restore the place to its pre- was about to start, the NGT said that already a vious condition. Such an argument has entitled sev- substantial amount of damage has already been eral events to take place in the past which could have caused and it is very severe and simply stopping an adverse effect on environment. For several years, the festival may not be fruitful. Few questions many industries have used this argument of NGT in need to answered are: their favour to seek approval and environmental It is appalling that Art of Living claims about clearances even though they are at the peak of viola- its “accountability” and “sustainability tion of law. It endangers to cause irrevocable damage model” for its projects and here both of to the ecologically weak and sensitive Yamuna Flood- them are being periled. plain. The river which holds a symbolic position in Why has the media woken up so late? the Hindu mythology has been so brazenly disre- Why is the Environment Minister not being garded by the organisers and they have brutally questioned? played with its health. There has already been a fine Neglecting the aforementioned negative impact of Rs. 120 crore on the organisers and they have on the ecosystem, the NGT on Wednesday gave hardly abided by the rules. approval to the three-day World Cultural Festi- As quoted from the judgment: val and a fine of Rs. 5 crore was imposed on “For the reason of delay and laches on the part AOL and the formation of a biodiversity park in of the applicant in approaching the Tribunal and that area was recommended. Justice Swatantar for the reason of fait accompli capable of resto- Kumar has said that AOL has the time to pay ration and restitution, we are unable to grant and if not complied by the punishment, law the prayer of prohibitory order and a manda- would take its action. The High Court bench tory direction for removal of construction and comprising of Justice Badar Durrez Ahmed and restoration of the area in question to the appli- Justice Sanjeev Sachdeva commented that the cant at this stage.” fine imposed on Art of Living was insignificant. It was observed in the paragraph 158 of the judge- The bench had remarked on Wednesday, that ment of S.P. Muthuraman v. Union of India, “The Pre- such constructions on the Yamuna Floodplains cautionary Principle may lose its material relevancy are an “ecological disaster”. where the projects have been completed and even The National Green Tribunal after giving the irreversible damage to the environment and ecology permission to continue with the event also gave has been caused. The situation may be different when the title of ‘fait accompli’ i.e. something that can- invoking this principle in cases of partially completed not be prevented from occurring at a later stage. projects; it would become necessary to take remedial According to NGT, the event had reached such steps for protection of environment without any fur- a position from where it could not be taken ther delay. At this stage, it may be possible to take aback. The only remedy was to impose a fine steps while any further delay would render it abso-
L E X T E R R A I S S U E 1 6 P A G E 6 lutely impracticable. Precautionary Principle is requisite permission of the concerned authorities a proactive method of dealing with the likely including Ministry of Water Resources. The tribunal environmental damage. The purpose always also constituted a committee of the representatives should be to avert major environmental prob- of Delhi Pollution Control Committee (DPCC), lem before the most serious consequences Ministry of Environment and Forests (MoEF) and and side effects would become obvious. It is a Central Pollution Control Board (CPCB) and said it tool for making better health and environ- shall immediately inspect the site which shall issue mental decisions. It aims to prevent at the directions with regard to the source of water, col- outset rather than manage it after the fact. In lection and disposal of the municipal solid waste and some cases, this principle may have to be ap- sewerage generated during the event and also issue plied with greater rigors particularly when the directions to ensure that there is no further envi- faults or acts of omission, commission are at- ronmental degradation. tributable to the Project Proponent.” This ENVIRONMENTAL PROTECTION ACT, precautionary principle has been given in un- 1986 AND ROLE OF DPCC der Section 20 of the National Green Tribunal The same issue arose in S.P. Muthuraman v. Union Act, 2010 and section 4A of the Environment of India and Ors where they had not only started Protection Act, 1986. construction but, in fact, had practically completed As far as damage that has already been caused the project without even applying for any permis- to the environment and ecology by the illegal sion required by them in law and in any case before and unauthorized action of the Project Propo- obtaining the Environmental Clearance under the nents, the parties are required to pay com- provisions of the Environment Protection Act, 1986 pensation for its restoration and restitution in (for short ‘Act of 1986’), Environment (Protection) terms of Section 15 of Act of 2010. Rules, 1986 (for short ‘Rules of 1986’) and Environ- As observed in Manoj Misra vs. Union of India mental Clearance Regulations of 2006 (for short and Ors., pertaining to clean drainage system ‘Notification of 2006’). in rejuvenated Yamuna River Delhi known as Delhi Pollution Control Committee (DPCC) has “Mailyse Nirmal Yamuna” Revitalisation Plan also failed to comply with its statutory obligation as 2017. they have contended that it was not obligatory The tribunal said that as per documents upon them to grant or refuse the permission to the placed on record, it is evident that the flood Foundation for this kind of construction and the plains have been drastically tampered with and manner in which they should dispose of the waste ramps, roads, compaction of earth, pontoon and the source of water supply for such a large bridges and other semi-permanent or tempo- gathering. But it was expected of the Board to guide rary structures were constructed without the the Foundation by appropriate law and issue direc-
L E X T E R R A I S S U E 1 6 P A G E 7 tions under Section 25 r/w Section 33A of the Constitution are very wide and distinct. The Tribu- Water (Prevention and Control of Pollution) Act nal has limited powers but there is no legislative or 1974. Because of its failure to act diligently NGT other impediment in exercise of power for issuance has imposed a fine of Rs. 1 Lakh on DPCC. of appropriate directions by the Tribunal in the in- The ambit and scope of the directions that can be terest of justice. Most of the environmental legisla- issued under the Environment Protection Act tions couched the authorities with power to formu- 1986 can be of very wide magnitude including late program and planning as well as to issue direc- power to direct closure, prohibition or regulation tions for protecting the environment and preventing of any industry, operation or process and stop- its degradation. These directions would be case cen- page or regulation of supply of electricity or water tric and not general in nature. Reference can be or any other services of such projects. The princi- made to judgment of the Supreme Court in the case ple of sustainable development by necessary impli- of M.C. Mehta and Another vs Union of India and oth- cation requires due compliance to the doctrine of ers, Vineet Narain and Ors. vs Union of India (UOI) and balancing and precautionary principle. In the Envi- Anr., and University of Kerala vs Council, Principals', Col- ronmental Protection Act 1986 precautionary leges, Kerala and Ors.,. principle has been mentioned under section 4A In light of the above, even if the structures of the wherein it says, “where there are threats of seri- Project Proponents are to be protected and no ous or irreversible damage, lack of full scientific harsh directions are passed in that half, still the Tri- certainty should not be used as a reason for post- bunal would be required to pass appropriate direc- poning measures to prevent environmental degra- tions to prevent further damage to the environment dation.” on the one hand and control the already caused The ambit and scope of the directions that can be degradation and destruction of the environment and issued under the Act of 1986 can be of very wide ecology by these projects on the other hand. magnitude including power to direct closure, pro- Furthermore, they cannot escape the liability of hav- hibition or regulation of any industry, operation or ing flouted the law by raising substantial construc- process and stoppage or regulation of supply of tion without obtaining prior Environmental Clear- electricity or water or any other services of such ance as well as by flouting the directions issued by projects. The principle of sustainable development the authorities from time to time. The penalties can by necessary implication requires due compliance be imposed for such disobedience or non- to the doctrine of balancing and precautionary compliance. What requires immediate attention is principle. In appropriate cases, the Courts and Tri- the direction that the Tribunal should pass for miti- bunals have to issue directions in light of the facts gating as well as preventing further harm. and circumstances of the case. The powers of the .CONCLUSION higher judiciary under Article 226 and 32 of the A mega cultural event organised by Sri Sri Ravi
L E X T E R R A I S S U E 1 6 P A G E 8
Shankar's Art of Living Foundation on the banks of festival at some other location instead he held it at the river Yamuna appeared to be on shaky ground Yamuna to attract more attention to the river and was brought under the scrutiny of the green floodplains and the pollution there. The Art of Liv- court. Over 1,000 acres on the river banks have ing, in a statement said that a Delhi-based recycling been converted into a makeshift village for Art of start up named Pom Pom has joined as their recy- Living's three-day World Cultural Festival that will cling partner. But the question to be answered here feature yoga and meditation sessions, peace is what about the farmers who have been displaced prayers and cultural performances. Environmental- and Sri Sri Ravishankar should definitely according ists argue that the festival will do serious damage to his “Art of Living” concept look into the matter to the delicate ecosystem of the river Yamuna and as the “Art of Living in a Healthy Environment” of cause irreversible damage to the flood plains. the farmers and the aquatic life in floodplains has Hearing a petition against the festival, the green been snatched. tribunal asked the Environment Ministry: "If some- REFERENCES: body has to alter the flood plains, don't you think Manoj Misra vs. Union of India and Ors., OA it requires your clearance? To protect the river is No.6 of 2012. your prime responsibility, what steps did you take S.P. Muthuraman v. Union of India, (2015) ALL to prevent damage?" The tribunal also had tough (I) NGT Reporter (2) (Delhi) 170. questions for planning body Delhi Development Manoj Misra vs. Union of India and Ors., OA Authority, which argued that "heavens won't fall" if No.6 of 2012. the event is allowed, since "we are at the thresh- S.P. Muthuraman v. Union of India, (2015) ALL old of the ceremony." Sri Sri Ravi Shankar has (I) NGT Reporter (2) (Delhi) 170. claimed that there has been no damage to any M.C. Mehta and another vs. Union of India and tree and he himself has demanded for a Biodiver- others, JT 1987 (1)SC 1. sity Park. There are also questions about the num- Vineet Narain and Ors. vs. Union of India (UOI) ber of people attending the event. Prime Minister and Anr., JT 1997 (10)SC 247. Narendra Modi opened the festival on Friday and University of Kerala vs. Council, Principals', Col- so far, his office has not said anything different. leges, Kerala and Ors., JT 2009 (14)SC 283. President Pranab Mukherjee had said that he http://www.firstpost.com/india/world- would not be present in the festival. culture-festival-didnt-damage-yamuna- Dr Rakesh Kumar, environmental scientist, and floodplain-environmentalist-gives-art-of- head of NEERI, issued the statement that the Ya- living-clean-chit-2682804.html muna Floodplain has not been damaged. But in a http://www.ndtv.com/cheat-sheet/will-sri- recent news the spiritual leader himself admitted sri-ravi-shankars-mega-fest-open-on-banks that it would have cost him less if he had held the -of-yamuna-verdict-today-1284895
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http://www.firstpost.com/india/world- 0 culture-festival-didnt-damage-yamuna- http://www.indiaenvironmentportal.org.in/ floodplain-environmentalist-gives-art-of- content/398986/judgement-of-the-national- living-clean-chit-2682804.html green-tribunal-regarding-environment- http://zeenews.india.com/entertainment/and clearance-granted-to-ntpc-setting-up-of- -more/art-of-living-s-world-culture-festival- 2x800-mw-coal-based-lara-super-thermal- 2016-all-you-need-to-know-about-the-mega power-project-district-raigarh-chhattisgarh- -event_1864586.html 22082014/ http://www.oneindia.com/feature/sri-sri-s- http://www.indiaenvironmentportal.org.in/ art-living-controversy-all-you-need-know- category/37616/thesaurus/union-of-india-ors/ about-function-ngt-2034424.html http://www.indiaenvironmentportal.org.in/ http://www.firstpost.com/politics/president- files/illegal%20constructions%20NGT% pranab-turns-down-invitation-to-attend-sri- 20Tamil%20Nadu.pdf sri-ravi-shankars-controversial-art-of-living- http://www.indiaenvironmentportal.org.in/ event-2661318.html category/46401/thesaurus/sp-muthuraman/ http://www.eastbayexpress.com/oakland/ http://indianexpress.com/article/india/india- unmasking-the-art-of-living/Content? news-india/ngt-sri-sri-ravi-shankar-world- oid=3221659 culture-festival/ http://www.deccanherald.com/ http://www.greentribunal.gov.in/ content/533517/ngt-clears-aol-event- Writereaddata/Downloads/65-2016(PB-I) yamuna.html OA3-3-2016.pdf http://www.thehoot.org/media-watch/media http:// -practice/yamuna-and-aol-selective- articles.economictimes.indiatimes.com/2016- environmentalism-9228 02-11/news/70540177_1_ngt-scanner-dnd- http://www.hyderabadcityonline.in/full-text- flyway-yamuna-jiye-abhiyaan of-ngt-judgment-on-sri-sri-ravi-shankars- http://www.deccanherald.com/ world-culture-festival/# content/533517/ngt-clears-aol-event- http://www.conservationindia.org/ yamuna.html resources/ngt http://www.huffingtonpost.in/2016/03/18/sri- http://www.delhi.gov.in/wps/wcm/ sri-ravi-shankar-yamuna-clean- con- up_n_9494842.html nect/09a86c004743c16bb369f3825d7a2a20/ Final+NGT_DPGS_PPT_2015_ok.pdf? MOD=AJPERES&lmod=1999826395&CAC HEID=09a86c004743c16bb369f3825d7a2a2
L E X T E R R A I S S U E 1 6 P A G E 10 ECO-TOURISM AND ITS LEGAL IMPLICATIONS
Ayushi Dwivedi, B.A. LL.B. (Hons.) Hidayatullah National Law University
Introduction damaging the environment in any way.
Tourism is one of the world’s largest industries. This research paper addresses the needs identified The World Travel and Tourism Council and implied by such problems and provides a set of (WTTC) estimates that tourism generates methodologies, solutions and recommendations in- around 12% of the world total GNP. With tended to solve eco-tourism problems. studies predicting continued growth, tourism is becoming an increasingly important factor in the Concept of Eco-Tourism planning and management at UNESCO World Defining eco-tourism has proven to be a challenge, Heritage sites. since this concept attempts to describe an activity, set forth a philosophy, and refer to a model of While tourism can contribute to protection and economic development. Eco-tourism is one of the restoration efforts, the right balance between most frequently cited categories of the “new” economic gain and undesired impacts can be tourism. In 1989, the Audubon Society called it a elusive. Managers know that a tourist attraction “travel ethic”. A Canadian definition, based on a must be periodically renewed to remain public/private sector consensus, calls it “an competitive. In the case of World Heritage sites, enlightening nature travel experience that contrib- they are also aware that they are under an utes to conservation of the ecosystem, while international obligation to maintain or restore respecting the integrity of host communities”. the site’s original value. This responsibility poses The objectives of ecotourism are to provide a nature difficult questions regarding the degree of change -based, environmental education experience for that should be permitted to accommodate visitors and to manage this in a sustainable fashion. tourism growth. Another problem is ensuring As forests become logged, as streams become that a portion of the tourism revenue remains in polluted, and as other signs of human activity become the community as a means of fostering local ubiquitous, the requirements of a true ecotourism protection, conservation and restoration efforts. experience are increasingly difficult to fulfil. To To meet these and other challenges, proper and compensate for the “invasion” of human effective legal framework is necessary so that disturbance, ecotourism has promoted the eco-tourism can add to the economic and educational aspects of the experience. Examples aesthetic value of a nation without hampering or include opportunities to work with scientists to col-
L E X T E R R A I S S U E 1 6 P A G E 11 implementation and adequacy of these laws. Global lect field data in a remote wilderness (e.g., Earth- Environmental crisis has questioned the modernity, watch) or travel with a naturalist to learn the its values and scientific development of mankind. secrets of a tropical rain forest (e.g., Smithsonian The very existence and survival of man and other Institution travel trips). Environmental education forms of life have become a matter of deep serves to provide information about the natural concern. Today, it is a debate which is not history and culture of a site; it also promotes a restricted to a defined territory and has emerged as conservation ethic that may infuse tourists with a global concern. Environmental laws are the stronger pro-environmental attitudes. standards that governments establish to manage
natural resources and environmental quality. The Legal Implications broad categories of “natural resources” and Tourism and the environment are two independent “environmental quality” include such areas as air terms, but they can be easily associated with each and water pollution, forests and wildlife, hazardous other. The Tourism industry has attained a very waste, agricultural practices, wetlands, and land-use important place in the economy, especially due to planning. its rapid and spectacular growth over the last few In the Constitution of India it is clearly stated that it decades, but ironically, with the rapid development is the duty of the state to ‘protect and improve the of tourism all over the world, a lot of concerns environment and to safeguard the forests and wild- have also come into the notice of the world. PATA life of the country’. As per the judgement in the Shri and WTO in a full time conference at Bali in 1993 Sachidanand Pandey v. State of West Bengal case, the discussed the relationship between tourism and Courts may work under it as it imposes a duty on environment. India is one of the nations which have every citizen ‘to protect and improve the natural enacted such legislation and have set up a separate environment including forests, lakes, rivers, and Ministry of Environment and Forest to monitor the wildlife’. References to the environment have also land use from the environmental perspective. The been made in the Directive Principles of State whole mechanism from district to central level has Policy as well as the Fundamental Rights. The helped in the enforcement of these laws. Moreover, Department of Environment was established in legislation can be one of the efficient control India in 1980 to ensure a healthy environment for mechanisms to maintain harmonious relationship the country; this later became the Ministry of between tourism and environment. Similarly Environment and Forests in 1985. Ministry of Tourism is responsible for the inbound tourism in India. International law and regulation plays a very Thus there is an urgent need to determine a important role in environment. Like many other relation between environment and tourism with branches of international law, international environ- the ambit of national and international laws, and mental law is interdisciplinary, intersecting and further there will be a discussion on the
L E X T E R R A I S S U E 1 6 P A G E 12 tial to regulate eco-tourism, there is an ur- overlapping with numerous other areas of research, gent need to verify the claim that eco-tourism including economics, political science, ecology, s u p p o r t s human rights and navigation/admiralty. conservation in the context of implementa- The protection of natural resources and their legiti- tion of this Act. mate uses cannot be regarded separately. It is obvi- 3. Environment (Protection) Act, 1986: ous that the natural resources available for tourism Under this Act, there are two very important are limited and shrinking. Thus a conservational and Notifications that are closely linked to the protection policy is the need of the hour, and development of ecotourism – the Coastal Courts have to reconcile between the imperatives Regulation Zone Notification, 1991, and of preservation of the environment and the Environmental Impact Notification, 2006. development of the economy, as per Banwasi Seva a. Coastal Regulation Zone Ashram v. State of Uttar Pradesh. Notification, 1991: This is an important
Constitutional and Legislative Measures piece of leg islation guiding anthropogenic The laws pertaining to eco-tourism are currently activities along the coast. However, twenty the environment and forest laws; there are no laws amendments have been made to the Notifi on tourism at the national or state levels. cation over the years which have diluted 1. Wild Life (Protection) Act, 1972: The and rendered many of the protective Act permits tourism in protected areas along clauses meaningless. with scientific research and wildlife photogra- b. Environmental Impact Assessment phy. However, the character and volume of Notification, 2006: The Notification has tourism in protected areas has changed con- totally omitted Environmental Impact As siderably since this law was framed. Hence, sessments for tourism projects as against its there is an urgent need to amend the Act or predecessor, the Notification of 1991 that at least bring out guidelines that regulate required Environmental Impact Assessments tourism and tourist activity in and around the of tourism projects. protected areas. 2. 2. Forest (Conservation) Act, 1980: The The Public Liability Insurance Act, 1991, the law prohibits conversion of forest land for National Environment Tribunal Act, 1995 and the ‘non-forest’ activities (any activity that does National Environment Appellate Authority Act, not support protection and conservation 1997 are some other examples. In M. C Mehta v. of forests). However, ecotourism is being Union of India, which enlightened the concept of propagated on the notion that it supports CNG can be considered as the landmark to regu- conservation and hence is being allowed in late the transport system which the most important forest areas. Although this Act has the poten- mode of transmission, that to in the capital of the
L E X T E R R A I S S U E 1 6 P A G E 13 proliferation of voluntary codes of conduct country. The decision also created a role model for generated by non-governmental organizations the tourist destination to regulate the transport (NGOs), tour operators, public land managers, and sector and use environmental friendly and cleaner local community groups. A 1990 survey found 60 means of transport. sets of guidelines developed by these various Taj Mahal Case groups, each stressing a different priority. NGOs In Taj Mahal case , the Supreme Court issued and tour operators tended to focus on habitat directions that coal and coke based industries in Taj protection and human impact; public land managers Trapezium (TTZ) which were damaging the Taj on endangered species and protected areas; and should either change over to natural gas or to be local groups on culturally responsible tourism. relocated outside TTZ. Again the Supreme Court In 1995, the United Nations Environment directed to protect the plants planted around the Programme (UNEP) listed 32 major environmental Taj by the Forest Department and it has issued sev- codes, from sources as diverse as the International eral directions in order to protect the Taj Mahal Chamber of Commerce, the World Travel & from deterioration on account of environmental Tourism Council, the New Zealand and Australia pollution. governments, and the English Tourist Board.
Kamal Nath Case These codes present two main implementation problems: measurement and funding. Their In the State of Himachal Pradesh, Span motel, effectiveness remains impossible to assess, since owned by the family members of Shri Kamal Nath, none includes a quantitative framework for baseline Minister for Environment and Forests, Govt. of measurement, target setting, final measurement, or India diverted the Course of river Beas to beautify monitoring. the motel and also encroached upon some forest land. The apex court ordered the management of Findings and Solutions the Span motel to hand over forest land to the In the case of India, it is evidently clear that there is Govt. of Himachal Pradesh and remove all sorts of no dearth of legislations on environment protection encroachments. The Court delivered a landmark in India. But the enforcement of these legislations judgment and established principle of exemplary has been far from satisfactory. Hence there is a damages for the first time in India. The Supreme need for effective, accountable and efficient Court of India recognised Polluter Pays Principle enforcement of the constitutional mandate and the and Public Trust Doctrine. other environmental legislations. The Ministry of Environment and Forest’s new Market-Based Guidelines Notification in 2006, has removed tourism Given the ambiguous and fragmented nature of projects from the mandatory list requiring the international agreements, the last decade has seen a conduct of EIA and clearance from the Central
L E X T E R R A I S S U E 1 6 P A G E 14 The roles and responsibilities of tourism develop- Government. This is a retrograde step, as the nega- ers and operators are fundamental to the achieve- tive impacts environmental, social, economic and ment of success of ecotourism and must be regu- political of tourism projects on local communities lated in a proper manner. has been established conclusively.
A regulated mechanism for development and ex- Conclusion pansion of tourist spots must be prepared. For in- Government has started taking many strong posi- stance, if we take in the case study of Goa, there is tive steps in conservation of the environment. Spe- a particularly relaxed atmosphere of the people and cialist environmental courts have also established in natural surroundings, that made it a paradise for some jurisdictions to ensure that judges have the backpackers during the 1960s, who were “more or expertise and resources necessary to consider en- less able to adapt to the local way of life, eating lo- vironmental cases. For example, the Supreme cal food and living in simple accommodation”. Court of India has established specialized High Formulation of policies that are geared to preserv- Court benches known as “Green Benches” to deal ing and conserving the natural environment rather specifically with environmental management issues. than opening them up for relentless exploitation by Often, these courts are combined with specialist development activities including tourism is essential. administrative bodies, such as an environmental tri- Protected Areas (PAs) like national parks, wildlife bunal. The administrative body can hear the matter sanctuaries and biosphere reserves are seeing in- at first instance and, for some offences, apply ad- creasing intensive tourism development under the ministrative sanctions. The specialist environment guise of “eco-tourism”. While the Wild Life courts and tribunals may reduce the number of (Protection) Act 1972 does allow tourists into Pro- cases brought before the Supreme Courts and High tected Areas, it clearly disallows commercial estab- Courts, facilitate more consistent and expeditious lishments, despite this, a rash of tourism establish- environmental decision making and be less expen- ments are found cheek by jowl in the immediate sive. Sanctions may range from administrative pen- periphery of every Protected Area of repute like alties (e.g. change of licence conditions, suspension Corbett, Ranthombore, Bandhavgarh, Kanha, Rajiv of licence, denial of funding, fines, closures), to civil Gandhi – Nagarahole, Bandipura, Mudumalai, and penalties (e.g. injunctions, suspension of trading, Periyar. This must be prevented by proper imple- negative advertising, compensation, cleanup, fines), mentation of laws. to criminal penalties (e.g. closures, fines, probations The Government is responsible to establish and or jail sentences). Fines can be structured to accu- enforce standards, building codes and other regula- mulate on a daily basis and might be defined within tions and to specify environmental, physical and so- a range set out as a number of penal units. Criteria cial carrying capacities to limit development useful to determine the number of penal units to be through proper legislations. posed in a fine may include: the economic benefit
L E X T E R R A I S S U E 1 6 P A G E 15
Sarungbam Lucy, Eco Tourism and the Law in derived from the crime, the extent of the damage, India, The People’s Chronicle the cost of repairing the damage, the violator’s his- Formento Resorts and Hotels Limited v. tory of prior violations, economic impact of the Minguel Martins, (2009) 3 SCC 356 penalty on the violator, the violator’s good-faith AIR 1987 SC 1109 efforts to comply, and the violator’s culpability or Rural Litigation and Entitlement Kendra v. State wilfulness. of Uttar Pradesh, AIR 1987 SC 359
AIR 1987 SC 374 REFERENCES: AIR 1997 SC 734 Crossley, John and Lee Bong Koo; “Eco- M. C. Mehta v. Union of India (2007) 1 SCC tourists and Mass Markets: A Difference in 110; Vellore Citizens Welfare Forum v. Union of ’Benefits Sought’” in Tourism: The Economy’s India (1996) 7 JT (SC) 375; Indian Council for Silver Lining, Twenty-fifth Annual Conference, Enviro Legal Action v. Union of India (1996) 2 JT pp. 22-29; Colorado, USA: Travel and Tour- (SC) 196 ism Research Association, October 1994 M. C. Mehta v. Kamal Nath, 1997 1 SCC 388 Ceballos-Lascurain, H. Tourism, eco-tourism Environmental Codes of Conduct for Tour- and protected areas: The state of nature- ism, UNEP (United Nations Environment Pro- based tourism around the world and guide- gramme), Technical Report No.29, 1995, p. ii lines for its development. IUCN, Gland, Swit-
zerland, and Cambridge, UK, 1966
L E X T E R R A P A G E 16 I S S U E 1 6 IMPACT OF WATER POLLUTION: RIGHT TO HEALTH PERSPECTIVE
Dr. Sharif Uddin , Principal, Shillong Law College, Dhankheti, Shillong Meghalaya
INTRODUCTION. Almost 85% of the rain water go directly into the sea and never reaches the land. The small remainder “Water is life in itself and is essential for earthly life; fills up the lakes. For every 50,000 grams of ocean flowing through us all the time.” water only one gram of fresh water is available to Water played an important role not only in the mankind, again making water a scarce and a precious origin of the civilizations, but also for the devel- commodity. opment of political and state organizations. A body of water gives life to myriads of living Occupying an important position in the variety of organisms. The community of living organism and life processes, water is one of the most water occupying an integral role functions as a important natural resource. But use of polluted dynamic integrated system technically, called water is detrimental to human, animals and ecosystem. Any change in water component of an industrial uses; and is the one of the major cause ecosystem adversely affects the whole ecosystem of various water-borne diseases. Water being a resulting many organism’s death or extinction. major resource, eminent for an individual for Fishes die in the rivers and estuaries due to various proper living finds its place in Part III of the Indian metallic pollutants like mercury, lead, zinc, cadmium Constitution, and Right to pollution free water is and copper have been the concern of the the day. a constitutional right which is covered under Our water course is not safe today. Only 50% of Article 21 of the constitution. our population living in class I cities enjoy sewage facility. Only half of the collected sewage receives Fresh water is available only to a small portion some treatment and the rest is discharged into the on earth. 3/4th part of the earth is covered by sea water courses. Increase in the discharge of waste which hold 97.61% of total water available on the water from industrial, agricultural, thermal plants, planet. 2.08% is bound in the ice cap. The mining activities, hospitals etc. posed a serious remaining 0.31 constitutes the fresh water of the threat to water course. Water quality of major earth. Out of this about 40% is lodged in the rivers is getting rapidly degraded due to massive deeper strata of the earth. Hence the world is discharge of diverse effluents. Degrading quality of left with only 0.124 % of the total earth’s water water urges the nations all over the world to adopt which is present n rivers, streams, lakes and tube an effective control of water pollution which is wells. important for sustainable development and human
L E X T E R R A P A G E 17 I S S U E 1 6 welfare. tries, need for accelerated economic development, On the economic front also the loss due to wa- the pressure of pollution growth, urbanization lack ter pollution runs very high. One estimates show of proper planning and above all lack of political will that 73 million workdays are lost every year due have combined together to make the enforcement to water related diseases. The loss of production of water pollution control laws a difficult task. amounts to Rs. 600 Crores a year. The cost of This study is designed to provide a coherent assess- water pollution is not only direct but also indi- ment of the causes, effects, legislative safeguards and rect such as loss of productive man hours, medi- judicial concern about water pollution. This study is cal cost, reduced crop production, damage to intended to improve the existing law and the extent flora and fauna and deteriorating quality of life. of its compliance in a local level. It will help in gen- According to United Nations Population Projec- erating awareness relating to the problem of water tion, India will be among 44 countries of the pollution among the masses. world which are likely to face severe water II. EFFECT OF WATER POLLUTION. shortage problem by the year 2025. As per esti- Water is a gift of nature to mankind. It is prime mate, the country’s fresh water requirement by need for the survival of all organisms, industrial de- that year will be almost as per with its exploit- velopment and agricultural purposes. Water is use- able water resources. After that, additional sup- ful only when it is not polluted. The higher the stan- ply will be necessary. dard of living, greater is the danger of pollution. The To curb the menacing problem of water pollu- more we advance the more wastes we produce. In tion, Indian parliament has passed the Water Act the age of industrialization, as we live today, indus- 1974 with the sole object of controlling water trial wastes are the most important pollutants of pollution as well as to maintain the wholesome- water. ness of water. Moreover, the Environment Act The use of water can be classified in two broad 1986 not only aims to protect, but also to im- categories namely (a) consumptive and (b) non- prove the environment. In December 1977, the consumptive. The first category comprises such as Water Cess Act was passed to provide for the domestic water supply, irrigation, industrial require- levy and collection of a cess on water consumed ments and power generation with fossil and nuclear by the industries and local Authorities with a fuels. The second category encompasses hydro- view to augment the resources of the Central power generation, navigation pisciculture, recrea- and State Board for the prevention and control tion, wild life preservation and river conservation. of water pollution constituted under the Water 1. Effect of water pollution on Human Act 1974. Health : - Polluted or contaminated water is found Though India has special legislations on water to be injurious to public health, domestic, commer- pollution, but the competing demands of indus- cial, industrial, agricultural or other uses and also to
L E X T E R R A P A G E 18 I S S U E 1 6 the health of animal and aquatic life. Use of pol- Cadmium:- Cadmium is toxic to all human system luted water is the cause of all the water-borne and has been implicated in hypertension and in res- diseases. Certain bacterial protozoan and helmin- piratory and kidney disorder. It also appears to have thes diseases are transmitted by drinking water genetic effects on experimental animals including or by contact with potable or bathing water. malformation in upper jaws of new ones of rats Such diseases are typhoid fever, Amoebic dysen- whose mother has been exposed to cadmium in tery, Ascariasis (roundworm infection) Trichuria- their food during pregnancy. Cadmium, mercury and sis, (whipworm infection) schistosomiasis, leads are known to concentrate in food chains and Dracontiasis. The effect of metals on human be- the exposure can come from air-borne as well as ing especially lead, mercury, cadmium, pesticides, water-borne sources. The use and inputs of these nitrates nitrites and carcinogenic substances are materials in to the environment should be carefully quite serious. controlled and curtailed. Diarrhea is a major cause of child mortality. Due Pesticides:-pesticides are known to be present in to poor environmental conditions and water pol- the body of fat human being. In some cases pre- lution diarrhea/dysentery is a major health prob- treated water is known to contain various pesti- lem. A relationship exists between water supply cides. Since the chlorinated hydrocarbon have been conditions, water quality, and storage of water in wide spread use for the past 25 years, possible with the concurrence of diarrhea/dysentery. long term sub-lethal effects, principally carcinogenic Metals:- The symptoms of lead poisoning in- and mutagenic in nature, have yet to become evi- clude loss of appetite, weakness and miscarriage dent. It is known that pesticides such as DDT and as well as lesions of neuromuscular system, circu- diedrin are capable of producing malignant and be- latory system, the brain and the gastrointestinal nign tumor in various organs in animals that were tract. Since lead is absorbed from air, water and used for experiments. food, it is obvious that many city dwellers are Nitrates and Nitrites:- Increased nitrate levels in exposed to gasoline. It is expected that lead poi- water supplies can be fatal to infants. At these lev- soning will show a corresponding increase in the els the disease “methemoglobinemia” is introduced future. by intestinal bacteria that have the ability to convert Mercury:- Individual vary in both their sensitivity nitrate to nitrite. The nitrate is then absorbed into and exposure to methyl mercury. For example blood stream, where it binds with hemoglobin. This population whose diet consists mainly of fish will binding action effectively prevents the hemoglobin have a high exposure to mercury. Symptoms of from accepting the oxygen that is necessary for res- mercury poisoning include deafness, loss of co- piration. ordination, insanity, and death. In addition, evi- 2. Effect of water pollution on Aqua-systems:- dence indicates that methyl mercury may cause A body of water harbors a fascinating world of myr- genetic damage. iad of living organisms, along with water, which is
L E X T E R R A P A G E 19 I S S U E 1 6 their medium, functions as a dynamic integrated (c) Black Tide:- Pollution of aquatic and marine by system technically called aquatic ecosystem. An oil can occur almost anywhere at any time. A dra- aquatic ecosystem may be of any size as large as matic incident was that of the tanker Torkey Canyon an ocean or as small as a fish pond. An aquatic when she stuck a reef off the southern tip of British ecosystem is a highly integrated series of interac- Isles in March 1967. The oil spills of 18000 tons of tions between the non-living resources and the crude oil and its effects were realized for the first living organisms. The major effluents causing time. The nature conservancy in London reported aquatic pollution are the traded wastes from fac- that 7000 oil ogled birds have been captured and tories involve in production of paper-pulp, tex- treated but a few hundred only survived. In addition tile, sugar, distillery, tannery shellac, hydrogen- to the catastrophe to marine life and fisheries, the ated vegetable oil and soap, petrochemicals, rub- direct monetary cost of cleanup was about 8 million ber, paints varnishes, plastics, heavy chemical, oils dollars, according to British government. The blow- and surfactants. Beside these, there are massive out of a well in Senta Barfara channel in January 1979 discharge from thermal power stations, fertilizer resulted in a leakage estimated at 500 barrels per day, plants and coal washeries. which amounted to approximately 235000 gallons Fish Kill:- Pollution of natural water may be dis- over a ten-day period. Damage to sea life including astrous to fish or other organism naturally inhab- marine birds was extensive and the incident had a iting the stream. With mild pollution fish may ac- shocking impact on the aesthetic qualities of the quire a flavor that render their flesh unfit or fish nearby coastal area. use, where as the more severe contamination 3. Effect of Water Pollution on Economy:- The the fish are sickened or killed. When pollution cost of water pollution imposes a terrible and increas- develops slowly fish may deliberately leave the ingly intolerable burden to human society. The cost of polluted areas, but if the pollution occurs by a water pollution is measured in three ways: sudden discharge, fish are killed outright. Polluted (1) The loss of resources through unnecessary waste- waters are also a hazard to land animal that drink ful exploitation. form the steam. (2) The cost of water pollution, abatement and con- (b)Red-Tide:-Red-Tide or Red-sea is a descrip- trol. The clean-up of sewage ad solid waste is now the tive effect of the red brown colour of dense most expensive phenomena. population of marine protozoa which can occur (3) The cost in human health, 73 million workdays are under exceptionally favourable conditions of wa- lost every year due to water related diseases. The ter temperature, salinity and / or nutrient salts. loss in production amounts to Rs 600 crores a year. Large number of ducks is sometimes killed by a Annual economic loss is about 4.5% of Gross Domes- type of botulism that develops in nursery areas at tic Products. Moreover, the strategies framed for sus- certain times of the year. For example during tainable industrial development suggested by World 1970 140,000 died of botulism in California.
L E X T E R R A P A G E 20 I S S U E 1 6
Commission on Environment and Development Act, 1908, The Forest Act, 1927, The Indian Fisheries stated that the regulations and standard should Act 1987, also contain provisions to deal with pollu- prevent air and water pollution and provide for tion. safety of the workers. III. LEGISLATIVE RESPONSES. Indian Easement Act 1982 protected riparian owners A look at the history of environmental legislation against unreasonable pollution by upstream users. The shows the scope and extent of legislative con- Indian Fisheries Act 1987 penalizes the killing of fish cern to environmental issues. Water pollution by poisoning water and by using explosives. Section was one of the first environmental problems to 21 of Indian Port Act 1908 contains provision regulat- receive governmental attention. The Shore Nui- ing discharge of oil into port water. Section 32 of the sance (Bombay and Kolaba Act.) 1853, one of the Forest Act 1927 and Section 122 of The Fisheries Act earliest laws concerning water pollution, author- 1948 also contains provision regarding pollution. Vari- izes the Collector of land revenue in Bombay to ous State Municipality Acts such as Municipalities Act order the removal of any nuisance below the 1916, Calcutta Municipal Act, 1951, The Delhi Munici- high water mark in Bombay Harbour. pal Corporation Act 1957 etc. also provides bye-laws Orissa was the first State to have a water pollu- and provisions relating to pollution. Thus apart from tion law at the state level. Orissa passed “The forest laws, these laws regulated two other aspects of River Pollution Prevention Act” 1953, followed Indian environment: water pollution and wild life. by other States, like, The Maharastra Prevention These laws however, had a narrow purpose and lim- of Water Pollution Act, 1969 etc. But many of ited territorial reach. these states were limited in scope and were inef- The post independent India witnessed planned devel- fective because of both lack enforcement and opment and massive industrialization which was de- lack of jurisdiction over pollution carried down- void of eco-friendly considerations. National pro- stream from other states. However, The River grammes in sanitation, public health, nutrition, water Boards Act, 1956 had provided for establishment supply and housing were given high priority. But the of River Boards and conferred on them the func- issue of environment and development did not re- tion inter alia, to advise the government in re- ceive any significant recognition in the planning proc- gard to prevention of pollution of water of inter- ess. Of late, the country realized the perilous state of state rivers. The Indian Penal Code was the first environment and the planners started taking note of general legislation that prohibits fouling of water, equity growth and sustainability. The fourth five year mischief and public nuisance and penalizes for the plan made the following observation: same. In addition the code penalized negligent ‘Planning for harmonious development ….is acts with poisonous substances that endangered possible only on the basis of comprehensive life or cause injury. Several other national laws appraisal of environmental issues…it is neces- like The Indian Easement Act, 1882, Indian Port sary, therefore, to introduce the environ-
L E X T E R R A P A G E 21 I S S U E 1 6
mental aspects in to our planning and de- and union territories as, the Water (Prevention and velopment’ control of pollution) Act, 1974, to attach seriousness By 1960s, protection and improvement of envi- and urgency to the problem of water pollution. The ronment became a formal issue. An expert com- concern of the Government has been summarized in mittee in 1962 was set up by the Government of the statements of object and reason of the Act. India in order to draft a Bill for prevention and But unfortunately the Act cannot achieve its goal as control of water pollution. The recommenda- no court shall take cognizance of any offence under tions made by the committee were considered this Act on a complaint made by a Board or any Offi- and approved by the Central Council of Local cer authorized in this behalf. The power to prosecute Self Government. A Draft Bill was prepared in under this Act belongs exclusively to the Govern- 1965 and was circulated to the State Govern- ment. Citizens had no direct statutory remedy against ment with a request to pass resolution under a polluter who discharged an effluent beyond the per- Article 225 (1) of the Constitution, authorizing missible limit. To get rid of this defect the parliament the Parliament to enact this law. The Bill was enacted the “Environment (Protection) Act 1986. Un- then introduced in the Rajya Sabha in 1969 which der Section 19 of this Act, a citizen may prosecute an was referred to the joint select committee which offender by a complaint to Magistrates. Prior to com- in turn submitted its report in 1972. plaining, however, he or she must give the Govern- The ferment created by United Nations confer- ment 60 days notice of his or her intention to make a ence on Human Environment 1972 at Stockholm complain. This notice is intended to alert the Govern- led to the massive codification and enactment of ment of the offence so that appropriate remedial ac- environmental pollution control laws. tion may be taken. India participated in that conference and the then Prime Minister Mrs. Indira Gandhi took In spite of this lofty objective, the working of the Act considerable interest in environmental protec- depicts and disappointing picture. The indifferent, le- tion. She created a department of environment thargic and callous attitude of the Boards in taking under her own stewardship. In 1976 through a cognizance of pollution and the negligence and oblivi- constitutional Amendment Acts, 48 (A) and 51 A ous nature of civic bodies have been the root cause of (g) were added which gave directives to states to not achieving the desirable goals. The observation of protect environment through legislation and cast the Supreme Court in Ganga Pollution (Municipality) social responsibility on the citizen to protect and case is germane: improved environment. This was India’s first at- ‘Although Parliament and the state tempt to deal comprehensively with an environ- legislature have enacted many laws mental issue of vital importance. imposing duties on the Central, State Accordingly the Parliament passed the Bill sub- Boards and the municipalities for pre- mitted in 1972 with the concurrence of 12 states vention and control of pollution of
L E X T E R R A P A G E 22 I S S U E 1 6
water, many of these provision lution but nothing substantial has been have just remain on paper with- achieved… No law or authority can out any adequate action being succeed in removing the pollution taken pursuant there to. On ac- unless the people cooperate.” count of failure of authorities to V. CONCLUSION : obey the statutory duties for sev- Water is prime natural resource and vital for the sur- eral years the water in Ganga… vival of human race. Pollution of water has deleteri- has become so much polluted ous effect human health. The protection, develop- that it can no longer be used by ment and efficient management of water resources the people for drinking or bath- are the need of the hour. All the nations of the world, ing.’ irrespective of the degree of development are subject IV. JUDICIAL RESPONSES. to the problem of water pollution. Industrially devel- Many NGOs and Public spirited persons brought oped countries are runners in this race. Though the to the notice of the courts the menace of water. problem has received global attention, yet the con- The Environment departments or the Central cern of the different nations in domestic level is insig- Board on or State Boards are functioning simply nificant. Massive codification of laws does not yield as environment pollution licensing authorities or the desired result. The competing demands of indus- notice issuing authorities. No one can hope that tries, the need of accelerated economic development, the Central Government or its officers or au- population growth, poverty, illiteracy, lack of public thorities would ever prosecute any head of the awareness, and above all lack of political will have department of the Government under Section 17 combined together to make the enforcement of envi- of the Environment Act, 1986. Thus the burden ronmental laws a very difficult task. to protect, inspect, and make complaints against India is very rich in water resources having a network the pollution of the atmosphere comes to the of rivers and vast alluvial basins to hold ground water. public spirited persons who have provided teeth There are 14 big rivers in India with a large number of to get the enforcement of the Environment Act, medium and minor rivers. 70% of available water in 1986 or the Water Act, 1974. Thus the role of India is polluted. The population is projected to go up PIL in the area of water pollution is very signifi- to 1530 million by 2025. Hence, the demand for wa- cant. It is the contribution of PIL that cases like ter will also increase proportionately. Ganga water pollution case and Kanpur Municipality Urbanization and industrialisation has given rise to a case were brought to the notice of the court. In number of environmental problems, such as water this respect the Supreme Court observed: supply, waste water generation and its collection, “The Government as well as par- treatment and disposal. In most of the cases waste liament both have taken a number water is let out untreated and in turn contaminates of steps to control the water pol-
L E X T E R R A P A G E 23 I S S U E 1 6 the ground water or is discharged into the natu- capable of removing various pesticides from effluents ral drainage system causing pollution in down- are available. stream areas. Although the Act lays down that the Chairman of the It is said that poverty is the greatest polluter. Board should be a full time officer, in several States There is a close relationship between income, the post is filled by a senior officer either part time or house hold environment and health. The house ex-officio. It seems necessary to have a full-time hold environment i.e. garbage and solid waste, Chairman of senior status who is able to liaison with drainage of waste water, indoor air and noise ministries, secretaries and industries at the top level pollution from various pests, food contamination, management. vehicular pollution, influence greatly the life and The lack of funds has prevented some Boards from living conditions of the people. recruiting adequate technical staff. Staffs deputed from The relationship between income and household other departments to the Boards perceive that the environment is a determining factor of health time spent with the Boards is not useful for the ad- problems like diarrheas/dysentery, respiratory vancement of their careers. diseases, malaria, jaundice, cold cough etc. Higher The power of State Government to restrict the appli- the income level lower will be the health disease cation of the Act to certain areas is to be done away. and environmental problems and vice versa. Alternatively, so long as this provision exists the state Heavy population pressure greater will be the Government should also consult environmental action environment related problem. group in addition to the Board. The use of criminal sanctions for environmental The Environment Protection Rules 1986 contains violations has proved ineffective. Environmental elaborate provision relating to EIA. No similar provi- laws contemplate deterrent value in the imposi- sion exists under the water Act. It is submitted that a tion of punishment on violations. Imperfection in mandatory EIA model is to be evolved. definitions of environmental fences and the com- Necessary legislations should be devised to ensure plexities involved in the prosecution of such of- the accountability of polluters as against the victims. fenders have forced the pollution Control Boards Such economic loss will compel the industries to ad- to go for provocative action rather than prosecu- here to law. Public Liability Insurance Act 1991 should tion. But ineffective enforcement has reduced the be amended to provide immediate relief to the per- threat of punishment. Increase in the dose of sons affected by water pollution. punishment will not bring the desired effect. The Environmental action groups and public spirited VI. SUGGESTIONS: citizens are to be inducted in the Boards. The industrial effluents containing pesticides The water should be rounded a view of all incidental should be treated before its release into the riv- issues of ecology and environment such as land forest, ers. The treatment involves coagulation, sedi- soil, water, bio-diversity, flora and fauna. An inte- mentation and filtration. Several other methods
L E X T E R R A P A G E 24 I S S U E 1 6 grated approach to natural resource law is sine- work And Strategy For Reforms” in F.A. Khan qua-non. Surface water and ground water policy (Ed.) “Water Resource Management: Thrust And should be uniformly framed. Challenges” In the wake of downsizing of water table and The Hindustan Times, Sptember 27, 1999 at P- shrinkage of water resources, there is an urgent 20. need to draft a new water policy. There should G.K. Kathpalia “Water Budgeting and Planning” be a water laboratory in each district so that in C.K. Varsh. (Ed.) “Water Pollution and Man- villagers can ascertain the extent of water agement: Thrust and Challenges” (1997)p-192. pollution. Md. Zafar Mahfooz Nomani “Water Pollution” Working of Jal Nigam and Municipal Corporation A socio-legal study” (unpublished dissertation) to be improved. They do nothing about the Faculty of Law, AMU, Aligarh (1595) existing water pollution but to provide regular Z M Nomani, “Health, Environment And Indus- water supply to the public. A district level water trial Relation” 20: (2) The Academi Law Review pollution complaint cell is highly warranted. (1996). A permanent inter-Government council, The Hindustan Times, Sept. 27,1999 at p-20 suggested by Sarkaria Commision should be The Hindustan Times, March. 22,1999 at p-24 established to deal with matters other than Supra note 8. socio-economic planning and development. Khurshid Ali, “Management of Ecological Prob- lems” in F. A. Khan “Water Pollution Manage-
REFERENCES: ment: Thrust and Challenges”. Supra note 10 at 55. B.R. Chauhan Settlement of International Md. Sharif Uddin, “Water Pollution and Law” p- an inter-state water disputes in In- 37. dia” (1992) Md. Zakaria Siddiqi, “Environmental Laws and Nilay Choudhury, “Water Resource Man- Limits of criminal Sanctions: 21 (4) Indian Bar agement: Qualitative Aspect” In C. K. Vars. Review 1994 p-23 (Ed.) “Water Pollution And Manage- Z. M. Nomani, “Water Pollution Control and ment” (1991 P- 209). Public Participation: Legal Dimension” 23 (1) Sharif Uddin, “Water Pollution and Law” IBR 1996 p-119. Saloni Publishing House, New Delhi. 2004 M.C. Mehta v. Union of India AIR 1988 SC 1115. P-2.
Subhash Kumar vs. State of Bihar AIR 1991SC 420. Md. Zafar Mehfooz Nomani, “Water Pollu- tion and Management: Existing Legal Frame-
L E X T E R R A I S S U E 1 6 P A G E 25 ENVIRONMENT LAWS AND THEIR IMPLEMENTATION IN INDIA
Akanksha Arya
Abstract Environmental Laws, Weak Implementation of In this era of globalization and industrialisation every Laws, Multi National Companies, public participa- country wants to become a developed country. This tion. race for economic development has increased to such an extent that the environment is being ignored. Introduction Although the world has adopted a sustainable growth The concept of Sustainable development empha- concept to save the environment, it is proving to be a sizes on sustainable economic growth with sus- big failure because no country wants to risk its tainability in environment. In other words, sus- economic development, even at the cost of its tainable development is an increase in economic environment. Most Asian countries are developing growth without ignoring the environment, so that countries, and it is mainly these countries which are the future generations’ needs can also be met. To caught in a tussle between environment and economic achieve sustainable development many countries development. Almost every country has environmental have passed many environmental laws. However, laws and has signed international treaties, but just the as time passes, the environment is continuously enactment of laws does not ensure a clean degrading, even though the number of environ- environment; proper implementation is needed here, mental laws is increasing, as they are proving to but it is that which is lacking. When it comes to be ineffective. Most Asian countries are develop- implementation, the problem is found at both the local ing countries so they are under pressure to alle- and national levels. This paper tries to find the viate poverty, and they struggling to grapple with obstacles which are hindering the proper the problem of trade-off between development implementation of laws, and tries to put forward a and environment.1 It is a well accepted concept model to show how these obstacles can be overcome. that the making of law is easy but implementation The role of Multi National Companies (here after of the same is not, because of which all countries referred to as MNCs) in the process of law making and are facing problems like pollution, deforestation, implementation- which is generally ignored- is also dis- global warming, etc. cussed, and a focus on the role of environmental laws The objective of this paper is to find the obsta- in helping to secure a relationship between humans cles in the implementation of international laws and nature, if they were to be properly implemented, and treaties at national level, and the implementa- as well as the role of public participation in the tion of national laws at both the national and lo- implementation of laws is also addressed in this paper. cal level. How to overcome these obstacles and Keywords: Sustainable development,
L E X T E R R A I S S U E 1 6 P A G E 26 the role of individuals (public participation) and their responsibilities, should be addressed. The lack government institutions in overcoming these prob- of coordination and clear demarcation between the lems is discussed. This work tries to give a model centre and the local government can be managed for the effective implementation of laws. This paper through centralized management and decentralized focuses on the Asian countries’ perspective, and implementation. especially emphasizes on developing countries. This However, the problem is not only at one section; paper is limited to the legal perspective only. another reason is that most of the environmental Method: This work is done using secondary laws are driven by Industrialist who are backed by source of information. It primarily studied journal, political parties, compromised by political interests books, to get cognizance of the various problem, as well as by corruption and mismanagement.3 In and find out the main obstacles. many countries, Industrialists provide funds to po- litical parties and in return get special favours from Obstacles in the Implementation of the Laws the government, such as, lenient laws. To over- and Solution to Overcome these Obstacles come this problem, public participation should in- There is a huge gap between environmental goals, crease; they should allow access to information and policies and laws, and their implementation. Many greater accountability should be ensured. There obstacles come in the way of implementation. should also be a regulated checking done on the Some of the obstacles found are given below: implementation of laws. There is a lack of coordination between Interna- tional organizations and different countries, their MNCs & Environmental Law central government, their state governments and With the increase in industrialization, the primary their local governments, and between macro- polluters has shifted from individuals to corpora- policies and the realities at the grass root level, nor tions.4 is there any perfect demarcation of power between Generally the MNC’s potential in achieving the en- the different agencies of the government, and this vironmental goals is ignored by many countries, de- creates confusion and conflict, and as they do not spite the fact that it could be more effective than a take responsibility by saying that it is the work of treaty, policy or any law. It is mostly the developing another agency, it also leads to forestalling or de- countries which are affected by MNCs, because it is laying of implementation of laws.2 these MNCs that play a key role in their develop- Moreover, most laws and policies passed by the ment, and are therefore important for their econ- government are short sighted. To overcome this omy. Even if these MNCs are not following envi- obstacle, the government before implementing laws ronmental policies, the states are reluctant to force and policies at the macro level need to understand them to do as such as they are a major source of the reality at the grass root level. Loopholes in laws economic growth. Consequently, the Industrial and policies, which allow people to evade from policies are not given much consideration. Since,
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MNCs are not confined to a single state, and they have business running throughout the global com- Cooperation Among Countries And Environ- munity, no state has complete jurisdiction to regu- mental Law late these MNCs. Global level environmental problems can be solved To overcome this obstacle a country’s law/policies by mutual cooperation and coordination between should adopt a holistic approach, which includes developed and developing countries, but conflict MNCs also. By making it mandatory for MNC’s to always seem to arise between developed and devel- adopt an environmental friendly approach, and by oping countries when it comes to the adoption and motivating them to follow the polluters pay princi- implementation of environmental laws. On one ple effectively, it will create a beneficial global effect hand, developing countries are of the perspective on the environment. States should adopt a holistic that the developed countries have already exploited approach that not only regulates the behaviour of nature too much and that it is now the developing MNCs, but also engages them in order to achieve a countries chance, while on the other hand, the de- long-term sustainable development and environ- veloped countries argue for equal and fair treat- mental protection. ment for the adoption and implementation to be Judiciary and Environmental Laws done in both type of countries equally. Environmental laws are not given much importance; For effective implementation of laws, huge financial they are ignored at all level. Therefore, even within and technical resources are required and most the Judiciary, there is a lack of competent environ- Asian countries are developing countries so they mental lawyers and judges and competent law/policy face financial and technical problem and constraint makers. To emphasize these laws, environmental of resources to implement laws effectively. Devel- provisions should be made in the Constitution itself, oping and developed countries are already having because the constitution is the supreme document conflicts, so in this situation the developing coun- for every country. Then the governments and tries do not get much assistance from developed courts will also emphasize more on the implementa- countries. Environmental problem at the global tion of environmental laws. These provisions can be level can be solved by co-operation between coun- incorporated in the form of fundamental rights and tries. Help from developed countries to developing duties, etc. A strong cadre of environmental special- countries may prove effective towards sustainable ist is needed to formulate national laws and policies development. Countries should support each other and their enforcement. To ensure this we should to achieve sustainable development at the global have competent lawyers, judges and special environ- level; they can make regional forums to solve the mental tribunals and courts. An effective Judiciary is environmental problems, the conflicts among them very important indeed, because even if environ- and their trans-boundary problems. mental law is passed, the interpretation is in the Ju- diciary’s hand.
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Non - Binding Nature Of International Trea- effectively. The main problems countries are facing ties are, political pressure, development pressure, lack International organizations make many laws but of will, conflict with other countries and an incom- nothing comes in effect properly because these in- petent Judiciary. To overcome these obstacles, it is ternational laws are not binding in nature; there is very crucial to achieve environmentally sustainable always scope for countries to decide on their dis- development. These obstacles can be overcome by cretion whether or not to adopt and implement a ensuring high accountability, competent and effec- law. Many treaties have been signed, and many tive Judiciary, public participation, cooperation be- summits have taken place, like the Rio Summit, the tween countries and engaging the MNCs towards Kyoto protocol, the Durban meet, the Copenhagen global sustainable development. A holistic approach summit, the United Nations Framework Conven- is needed for implementing environmental laws, to tion on Climate Change, etc., but none have proven ensure sustainable development which involves all to be very effective. To ensure that the treaties are section of the society. followed by the countries, they should be made binding in nature and international laws should REFERENCE make countries more committed towards achieving V. S. Vyas v. Ratna Reddy, Assessment of Envi- sustainable environment. ronmental Policies and Policy Implementation Public Participation And Environmental in India, Economic and Political Weekly Laws (1998) 48-54 Many people are not aware of environmental laws, Gregory L. Rose, Gaps in the Implementation and even if they are, they are not willing to partici- of Environmental Law at the National, Re- pate. People think that nothing will change with gional and Global Level, First Preparatory their participation and initiative, however, this men- Meeting of the World Congress on Justice, tality is what is needed to be changed, because Governance and Law for Environmental Sus- change always starts from the individual. People tainability, UNEP (2011) need to get environmental education, and they Alan Khee-Jin Tan, Environmental Laws and need to know their environmental rights and laws Institutions in Southeast Asia: A Review of so that they can participate and bring about the re- Recent Developments, Singapore Year Book quired change. of International Law 8 (2004) 177-192 Conclusion Michael Ewing-Chow and Darryl Soh; Pain, It does not matter how many laws a country forms Gain, or Shame: The Evolution of Environ- until and unless they are effectively implemented. It mental Law and the Role of Multinational is not enough to just sign treaties and formulate Corporations, Indiana Journal of Global Legal environmental laws to promote sustainable growth. Studies, Vol. 16, 1 (Winter 2009)195-222 Certain steps are needed to implement those laws
L E X T E R R A P A G E 29 I S S U E 1 6 EVER KNEW THAT YOU HAD A ‘FREEDOM TO ROAM’?
Manjeri Subin Sunder Raj Asst. Professor of Law, NLSIU
“We need the tonic of wildness…At the same time that we are earnest to explore and learn all things, we require that all things be mysterious and unexplorable, that land and sea be indefinitely wild, unsur- veyed and unfathomed by us because unfathomable. We can never have enough of nature.” Walden by Henry David Thoreau
It may be safe to assume that almost everyone, if visage a complete dilution and provides for much not all, loves to travel and yearns to experience a needed safeguards as well so as to ensure that par- personal connection with Mother Nature. How- ity prevails. ever, due to restrictions imposed by the laws of the A number of countries, around the world, provide land this might not be possible in its entirety, for such a right. To delve into the rationale and the wherein certain checks and balances are brought ways in which such a right has been incorporated, is about, which in one way or the other may curtail at this juncture, apt. the actual enjoyment of this right. On a careful study as regards the inherent connec- However, it is heartening to note that there are tion that man feels with nature and the special rela- jurisdictions, around the world, which provide for tionship that exists between the two, it is noted some sort of a succour and help satiate the wan- that a few European countries stand out. The free- derlust in many a people. This work tries to delve dom to roam was once a common norm in Europe into that aspect of law which actually provides for and has been preserved in its unadulterated form in such a right. Yes, you read it right! Certain jurisdic- the Nordic countries. No one for sure knows as to tions do recognise this ‘Freedom to Roam’, if it may when it transformed itself into a recognised right. be put so in such a majestic term. Quite a lot of explanations are provided for by his- The Freedom to Roam- Explained torians to explain as to why this right has been pre- To keep it simple, it merely means that the general served for ages. Having not followed the archaic public has a right to access certain land, whether it feudalistic approach or the concept of serfdom has is public or privately owned, for recreation and ex- been greatly attached to this right being preserved. ercise. This, it must be understood, brings about The fact that quite a large amount of land was cov- some sort of a dilution in the usual understanding ered with forests too helped this practise get a of the rights and concepts that are attached to strong hold. property and ownership. It however does not en- Norway
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In Norway, one has the right of access to, and can den ensures that such a right is capable of being pass through, uncultivated land in the countryside. exercised, by appointing County Administrative Known as allemannsrett, this was codified in 1957 Boards, which overlook the same. when the Outdoor Recreation Act came into force. Coming up with a clear divide as to the area where Finland the right to roam can be exercised - utmark and The Right to Roam and related rights are known as where it cannot be – innmark, Norwegian law tries jokamiehenoikeus. People are given the right to walk, to ensure that the former is thoroughly defined so ski or cycle freely in the countryside provided that that all those which does not come under it ambit no harm is being caused to the natral environment falls into the latter. or the land owner. They are also given a right to Sweden set up a temporary camp as well as stay, provided it Allemansrätten, meaning everyman's right, is some- is done at a reasonable distance from private thing that has been a part of Swedish culture and homes. One cannot cut trees or collect wood, if it also been included in the Swedish Constitution in is done on a private property, without the owner’s 1994. The law lays down that every person has ac- permisison. The government can restrict this right cess to nature in accordance with allemansrätten. only in the case of strict nature reserves. This unique right, The Right of Public Access, hav- Austria ing wide connotations, actually allows one to roam The right, called Wegefreiheit, is guaranteed by the freely; even if it is private land, though subject to Federal Law, since 1975. While you have walking, certain safeguards and responsibilities. However, running, hiking, and resting rights which are auto- they in no way take away such a right that has been matically allowed to the public in most forest areas, in vogue for a long time. One is expected to take specific rights like horse riding, bike riding, and care of nature and also the wildlife, if any, and also camping are not. The latter set can be exercised expected to be considerate towards the land own- only after an explicit permission from the owner. ers and other people who too would have come to Estonia enjoy nature. One phrase “Don't disturb – Don't Here too, one has a right to access natural and cul- destroy”, can actually sum up as to what this right tural landscapes on foot, by bicycle, skis, boat or on is all about. horseback. Private property, however, can be ac- By exercising this right a person can have access, cessed only between sunrise and sunrise. If it is walk, cycle, ride, ski or camp on any land and to put fenced, then an explicit permission is needed from up a ‘No Trespassing’ board is often treated with the owner. However, the law mandates that the disdain. There are exceptions though wherein pri- owners are not to block access to public lands or vate gardens, the immediate vicinity of a dwelling bodies of water. The law provides for a right to house, cultivated land, nature reserve restrictions gather berries and flowers but prohibits damage and protected area restrictions, are off limits. Swe- and pollution causing activities.
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Czech Republic within, he might not be in the best position to be Taking a cue from the roots of Austrian-Hungarian guaranteed such a right, let alone enjoy such a right. Law, the Czech Republic too has provided for a This is a right and an obligation; and the fact is that right to access. The Nature and Countryside Pres- it needs to be handled responsibly. Quite a lot of ervation Act, provides for a legal right to roam people have voiced concern, and are in all probabil- through countryside, "veřejná přístupnost krajiny". It ity right too, as to how this right of public access however does provide for exceptions to this right need be regulated lest it be misused and spell doom and lays down a list which is off limits, for eg. - set- for nature. tled and building grounds, courtyards, gardens etc. Apart from the laws that are there which specify Switzerland the extent and limitations of this right and clearly The right is guaranteed by the Swiss Civil Code lay down in black and white as to duties that are which mandates that pasture lands as well as forest expected to be followed by the people who exer- lands are accessible for all. However, it also lays cise the right, it is high time that the people them- down a rider that this right exists as long as there is selves be aware of the harmful effects that they no excessive usage. Some of the Cantons in Swit- might indulge themselves in and to the maximum zerland however do have detailed laws about the extent possible lessen it. same; however the basic things do remain the An ever growing concern and an ever ready open same. mind to ensure that this right be put to use in its Critical Analysis purest and safest form, it is felt, would go a long While such a right would be welcomed, by both way. hands, by nature enthusiasts, the fact remains that it REFERENCES does pose quite a lot of questions as well. While http://www.algensberg.com/en/the- the concept of borders and boundaries did not fall ecopark/the-right-of-public-access- in place in earlier times, it surely did have some 8005185 sort of an impact with the passage of time and cre- http://www.nordstjernan.com/news/ ated concrete boundaries, limiting man’s right to nordic/2540/ move and enjoy. The right to enjoy nature and the http://modernnotion.com/thanks-to- right to public access does in some way translate allemansratten-swedes-have-the-freedom- and transport one back to those days when such to-roam/ divisions were not present. The Outdoor Recreation Act, 1957 To provide for such a wide right, is by itself, a big (Norway) challenge. The bottom line however is that man is Czech National Council Act No. 114/92 concerned only about his rights and the other side on the Protection of Nature and the of the same coin, duties, tend to fade in compari- Landscape. son. Unless man, by himself, feels the urge from Swiss Civil Code, 1907
L E X T E R R A P A G E 32 I S S U E 1 6 ENVIRONMENTAL ISSUES IN INDIA AND VARIOUS LAWS REGARDING THEM
Shreya Chaurasia 4th Year, B.A. L.L.B. (Hons.) Indore Institute Of Law
INTRODUCTION MAJOR ENVIRONMENTAL ISSUES IN IN- “Environment” means the sum total of all the living DIA AND LAWS REGARDING THEM and non-living things that surround an organism. Major environmental issues in India are depletion With the earth’s ever expanding human population and degradation of resources (Air, Water, Land, and industrial as well as economic growth, many Soil, Forest etc.), mass deforestation, loss of biodi- environmental issues have arisen like global warm- versity, decrease in level of groundwater tables, ing, climate change, air pollution, destruction of scarcity of pure water, improper treatment of toxic flora and fauna, degradation of forest land etc. waste from industries etc. India at present is facing India has 18% of the world’s total population as environmental degradation at an alarming rate. well as covers 2.4% of the earth’s surface. India’s GROWTH IN POPULATION: population by the end of 2011 reached 1.21 billion. India is the second most populated country in the India at present faces many environmental issues world after China. Due to this population pressure, and challenges which poses a threat to the environ- the industries boomed causing massive production ment as well as development which are becoming leading to emission of toxic wastes and improper serious day by day. Man is by nature selfish and disposal of chemicals that often end up in lakes, riv- wants to fulfil his desires and means at all costs. ers, forests etc. Tremendous pressure is put on the Human activities give birth to majority of environ- natural resources and agricultural land to support mental issues as it aims at earning profit without the overpopulation causing low yielding capacity of concern about its impact on the environment. 65% the land. With the increase of population, the de- of India’s land is degraded in some way or the mands are high. Industries in order to fulfil the de- other. Also its 7516 km of coastline also have come mands exploit resources to a larger extent. Due to under attack. Raw sewage is pumped endlessly into rapid industrialisation more and more natural re- the ocean with industrial waste having toxic chemi- sources are being extracted and used which are cals degrading coral reefs and effecting marine life. non-renewable in nature. Population growth is also This state of the environment is also due to uncon- a major cause of air, water, land as well as noise trolled human activities. pollution. It is also causing loss of biodiversity as well as habitat destruction. WATER POLLUTION:
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Water scarcity coupled with supply of impure wa- such Boards before discharging any toxic waste, ter is a major environmental issue in India. sewage into water bodies. Also there is lack of fresh water resources. The Water (Prevention and Control of Pollution) Excessive extraction of groundwater by the Act 1977 aims to provide for levy and collection of big industries has caused the groundwater ta- cess on water consumed by industries and local ble to drop. Agriculture suffers due to scarcity authorities. of water. The waste emitted from industries In Ganga Water Pollution case, the owners of some are untreated and is a major cause for pollu- tanneries near Kanpur were discharging their efflu- tion of rivers, lakes as the waste is dumped ents from their factories into the Ganga river with- directly in the water. Millions of people in In- out setting up of primary treatment plants. The dia are dependent on these rivers and lakes consent of the Boards shall also be required for for their livelihood as this water is used for continuing an existing discharge of sewage or trade drinking, bathing and for irrigation. These effluent into water bodies or land. toxic wastes include harmful pesticides as well AIR POLLUTION: as fertilizers which affects the marine life to a India has one of the worst qualities of air in the large extent. The Government has established world. The rate of air pollution in India is highest in various sewage treatment plants but they fail the world with many people dying as a result of dis- to operate in a systematic way. Only 209 cities eases born out of air pollution. The major contribu- in India have proper sewage treatment facili- tors to the air pollution are the transport system, ties. industries burning of fuel wood and biomass which The standard and quality of drinking water is set by releases harmful gases in the air contributing to- the Indian Council of Medical Research. A compre- wards global warming and ozone layer depletion. hensive legislation by the name Water (Prevention 75% of household in India still use wood as fuel. and Control of Pollution) Act 1974 deals with envi- Road dusts due to vehicles contribute up to 33% of ronmental issues related to water. It provides for air pollution in India. According to Roger Mustress, the prevention and control of water pollution and an American scientist, air pollution causes mental restoring the wholesomeness of water. It also pro- tension which leads to increase in crimes in the so- hibits the discharge of harmful pollutants into water ciety. bodies beyond a certain standard as prescribed and The Air (Prevention and Control of Pollution) Act also lays down penalties for non-compliance. Un- 1981 was passed to regulate air pollution. It pro- der this Act, the Central Pollution Control Board vides for ambient air quality standards, means for (CPCB) and State Pollution Control Board (SPCP) the prevention, control and abatement of air pollu- were established which lays down standards for tion, regulates the substances that give rise to air control and prevention of water pollution. The new pollution. It provides that no person shall without industries are required to obtain prior approval of the previous consent of the State Board establish
L E X T E R R A P A G E 34 I S S U E 1 6 or operate any industrial plant in an air-pollution LAND POLLUTION AS WELL AS DEFORESTA- control area. The main function of the Boards un- TION: der the Air Act is to improve the quality of air. It is 60% of cultivated land suffers from salinity, soil ero- expressly provided that persons carrying on indus- sion and water logging. Forest area covers 18.34% try shall not allow emission of air pollutant in ex- of India’s geographic area. This forest cover is de- cess of standards laid down by the Board. clining because of harvesting of fuel wood, defores- To empower the Central and State Pollution tation due to urbanisation, expansion of agricultural Boards to meet grave emergencies, the Air land, expansion of river projects. Forest areas in (Prevention and Control of Pollution) Amendment India have been shrinking and nearly 5.3 million Act 1987 was enacted. The Boards were author- hectares of forest have been destroyed since inde- ized to take immediate measures to tackle emer- pendence. Vast area of land which was once green gencies and recover the expenses incurred from stands today as waste land. Scarcity of land is also the offenders. rising due to overpopulation. In the Taj Mahal case, the Supreme Court issued The Forest (Conservation) Act 1980 was enacted directions that coke and coal based industries and to conserve and protect forests and was passed factories in Taj Trapezium (TTZ) which were dam- with a view to check the deforestation of forests. aging Taj should either relocate themselves outside This Act restricts the state’s power to use forest- or change over to natural gas. The sulphur dioxide land for non-forest purposes. Prior approval of the emitted by the Mathura Refinery and other indus- Central Government is necessary for such purpose. tries when combined with oxygen with the aid of The conservation of forests not only includes pres- moisture formed sulphuric acid called “acid rain” ervation and protection of existing forests but also which had a corroding effect on the gleaming white re-forestation. marble of the Taj. The Supreme Court also di- SOLID WASTE POLLUTION: rected the Divisional Forest Officer, Agra that Garbage and trash can be found across every street plants planted around Taj by the Forest Depart- in almost every city of India. Huge piles of trash and ment shall be properly given water and see that the waste are assembled roadside. Rivers, canals act as plants do not wither away. dumping areas. Medical wastes from hospitals are Also in Almitra H. Patel v. Union of India, the Su- also not dumped properly. Dumping areas are preme Court observed that the air in Delhi is so overflowing with wastes and due to poor manage- much polluted that it is difficult to breathe and di- ment they have become a major breeding site for rected the authorities responsible for pollution mosquitoes, cockroaches, flies which give birth to control and environment protection to provide many harmful diseases. clean and healthy environment to the residents of It is the duty of the Municipality of each town to Delhi. collect garbage including medical wastes and dump it properly or recycle it. But these Municipalities fail
L E X T E R R A P A G E 35 I S S U E 1 6 to discharge their duties properly due to lack of the farmers mostly due to unexpected rains which efficient management and monitoring system. Ma- will ultimately affect the Indian economy. jority of waste remain uncollected by these Munici- As a developing country, India has various reasons palities. It highlights the failure of the Government. to be concerned about the impact of climate Municipality Solid Waste Rules (MSW Rules) pre- change on its economy. A large part of its popula- vents unplanned open dumping of waste outside tion depends on sensitive sectors for livelihoods city limits. The rules provide that the Municipalities which makes it highly vulnerable to climate change. should not mix “wet” food wastes with “dry” The issue of climate change can’t be taken up with- wastes like glass, paper, plastic etc. Medical wastes out linking it to poverty, health, etc. should not be mixed with municipality wastes. Citi- After the Stockholm Conference on Environment zens should keep their city cleans and should dump and Development in 1972, there was a significant the waste in the garbage bin provided, deliver change in the concept of environmental protection waste during house to house collection of wastes in India. India has enacted several legislations to or deliver it into municipality trucks stopping at the protect and conserve the environment. Various na- streets. Dry waste should not be mixed with wet tional laws aiming at global warming have been en- waste. acted like the Water (Prevention and Control of The Solid Waste Policy in India was framed in Sep- Pollution) Act 1974 and the Air (Prevention and tember 2000. It specifies the duties and responsi- Control of Pollution) Act 1981 as well as creation bilities for hygienic waste management in cities of on institutions such as Central and State Pollution India. It acts as a guide to comply with MSW Rules. Control Boards for implementing the provisions of GLOBAL WARMING: CHANGE IN WEATHER the Acts which aim at reducing pollution thereby India is also not immune from the impact of global combating global warming. One of the most impor- warming and climate change. India is among the tant legislation in this regard is the Environment countries that will suffer serious consequences as a Protection Act 1986 which empowers the Central result of global warming. Since the beginning of In- Government to take necessary measures to pro- dustrial revolution, the rate of global warming is tect and improve the quality of the environment by increasing the earth’s average temperature. In- setting standards for emission and discharges crease in temperature and climatic changes are re- (including global warming). sulting in more and more recession of Himalayan In Essar Oil Ltd. v. Halar Utkarsh Samiti and Ors., the glaciers. The Gangotri glacier is declining at a rate judiciary has made a reference to the impact of of 30 metres a year. Also they are expected to global warming on the sea level and has stressed cause rise in sea-level, which is a serious threat to the need of protecting the areas that are ecologi- India considering it has a 7,517 kilometres long cally sensitive and important such as national parks/ coastline. The impact of seasonal changes will affect marine parks, sanctuaries, corals/coral reef, areas close to breeding and spawning grounds of fish and
L E X T E R R A P A G E 36 I S S U E 1 6 other marine life, areas of outstanding natural plemented. Public awareness is a crucial condition beauty, areas which are likely to be inundated due for the protection of environment. Awareness of to rise in sea level consequent upon global warming environmental laws in society plays a vital role in and such other areas as may be declared by the control of pollution in community and industrial Central Government or other concerned State/ levels. The awareness of the environmental issues Union Territory level from time to time. and laws is minimal in the community. It is educa- Apart from the various laws and provisions made tion which can make the society aware about the by the government to check the levels of air, water, environmental problems. Voluntary interaction is land pollution there is still need of effective execu- necessary for successful implementation and tion of these laws to deal with global warming. smooth running of laws. What we need is social CONCLUSION awareness from below, not laws from the above. India is a dense country which faces unique chal- As directed by the Supreme Court of India, Envi- lenges that needs unique responses. In the Consti- ronmental Studies shall be made a compulsory sub- tution of India it is clearly stated that it is the duty ject at school and college levels in graded system so of the State to ‘protect and improve the environ- that there should be general growth of awareness ment and to safeguard the forests and wildlife of regarding environment. There is also an urgent the country’ (provided in the Directive Principles of need to make separate environmental courts, with State Policy and Fundamental Rights). Also it im- professional judges to deal with environmental poses duty on every citizen to protect and improve cases, so that the judiciary can perform its part the natural environment including forests, lakes, more efficiently. rivers and wildlife enshrined in Article 51 A (g). We want to keep our homes clean but do not hesi- The Government of India has established an exten- tate to throw garbage outside. So, it is not only the sive legal framework with over 200 laws relating to laws alone which can save the environment from environmental protection and rules including major destruction and degradation, it is our duty to col- principles from International Treaties to which In- lectively participate and save our environment. dia is a party. Still lack of funds, inadequacy of skills, With communal participation only these problems poor understanding of the law, lack of coordina- can be tackled. tion, weak enforcement of laws are barriers for ef- REFERENCES: fective implementation of these laws by the pollu- M.C. Mehta v. Union of India, AIR 1988 SC tion control boards. Also, it is very important to 1037 keep the laws and regulations flexible so that they M.C. Mehta v. Union of India, AIR 1997 SC 734 may be modified based on the lessons to be learned AIR 2000 SC 1256 from the natural sciences. AIR 2004 SC 1834 It is not enough to enact the legislations. There is no means for any law unless it is effective and im-
L E X T E R R A P A G E 37 I S S U E 1 6 RISING CONCERNS: AN INTRODUCTION TO ‘SOUTH-SOUTH’ CONFLICT & THE SEA LEVEL RISE
Sumangal Rajkonwar, LLM Jindal Global Law School, Sonipat, Haryana
An Introduction to the South-South Conflict India is going to be severely affected. The river Disparity in philosophies and ideologies between considered as the lifeline of the state, will have the two divided world, The North and The South unquantifiable implications, if the concerned have always given rise to varied conflicts. But of authorities do not take any immediate action. lately, amidst these entire world is witnessing a Moreover these dams also raise concern in India rising conflicts amongst the Southern nations as over China's ability to release water in times of well. Countries like India and Sri Lanka have conflict which could pose serious risk of developed arguments in various geo-political flooding. The Chinese government in response to it matters having huge environmental has rejected the plea by saying that these dams concerns. Similarly India, China and Bangladesh too are ‘Run-of-the-river’ dams, and that harmful to the have had various matters relating to the India and Bangladesh. But the experts tend to say environment. This shift in the parties to the conflict that, even if the dams are built in the most has been observed by the world recently, giving in environmentally least affecting manner, it is still “a rise to the new concept of ‘South-South conflict’. matter of utmost concern” to lower riparian Issues primarily relating to the environment countries and the results are already visible. remains at the forefront. One such major concern A Divided World: Environmental Colonial- is the construction of dams in one of the world’s ism largest river, ‘Brahmaputra’ or ‘Yarlung Tsangpo’, as Aforesaid countries have been highly criticised by known in China. China in order to reap the the Western world for heating up the earth, which benefits of hydroelectric power generation from as per their claim have destabilized the entire the river has built dams for the same. This has ecosystem. It has been shown through various re- caused ripples of tensions in the plains of the North ports that countries like India and China have -eastern part of India, primarily Assam and also in played a pivotal role in exceeding up the global Bangladesh. These constructions raise huge minimal standards for emission, resulting in the concerns as it is likely to create an acute shortage release of gases harmful for the destruction of the of water supply in these two nations. The state of atmosphere. But this very naïve perception has Assam being one of the largest producers of rice in been thoroughly from a very
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Pro-Western ideological mindset, and has political reasons for the rise in the global temperature and motivated and mathematical jugglery rationale this rise is the resulting in increasing sea levels associated with them. Sadly they have been accompanied with the melting of ice caps. The successful in penetrating into the reports published other reason is put forward by the developing in almost all the nations, thus creating a ripple of nations or the Southern countries, who blame the thoughts specifically targeting these developing Western or the Northern countries to be economies. This has been regarded as responsible for the rise in the global warming. “Environmental Colonialism”. Global warming has Amidst all these, the least developing or small been an offshoot of the activities that man has economies end up becoming the worst sufferers. continuously been committing since the beginning “[T]he manner in which the global warming debate is of the Mankind itself. However, the impact factor being carried out is only sharpening and deepening highly differs and the rise in this so called “Industrial the North-south divides. Given this new found interest in phenomena” can solely be proclaimed as the reason the so-called Our Common Future and future for the current battle that the world is fighting with generations, it is time for the Third World to ask the this environmental menace. The reports published West, “Whose future generations are we seeking to by the developed nations in an attempt to protect, the Western World’s or the Third World’s.” understand and study the growth of this issue have Vanutu, a small Pacific island nation recently was hit been highly critical on the developing countries by a devastating storm, and is still recovering from approach to tackle the problem. But the reports the occurrence. Majority of the island nations are from the latter nations completely shows the other the direct victims of the aftermath of this hazard. side of the picture as the implications leading to this Regional conglomerates like the Small Island issue has been the equal or at times the sole reason Developing States (SIDS), recently acted on behalf of the Western world itself. of these nations making an urgent appeal to the UN Global warming is the reason for the various Security Council for helping them to combat natural calamities like drying up of rain over large climate change. These nations lack the skills and areas, rise in the global temperature, melting of ice man power resulting in the plea for financial and caps leading to countries loss of coastlines to many technical assistance to help them avoid getting coastline and island countries for instance washed away with every rising tide and torrential Maldives. One such repercussion is the rise in the storm. The direct consequence of the sea level rise mean sea level due to which all the island nations is the flooding along with the germination of including the low lying areas of various countries innumerable issues like contamination of water and are at a state of disappearing completely. Reports destruction of natural resources. Reports from the give contradicting conclusions, for instance on one UN stated that, Vanutu is at the greatest risk of side it states that the emerging nations are the sole experiencing natural disasters due to climate
L E X T E R R A P A G E 39 I S S U E 1 6 change including cyclones, or extreme drought and next 20 years. flood. Aggressive steps to cut emissions would reduce the States like Maldives have created a ‘Sovereign amount of sea level rise by somewhere between 6 Wealth Fund’ in order to invest in new lands and 20 inches in the year 2100 compared to the outside its mainland territory. The government has current trajectory. Irrespective of all the efforts, been highly vigilant about the impacts that may the sea level will rise and sadly it will continue. occur, and hence is thinking about investing in other countries like Sri Lanka and India due to its “We cannot stop it, but only slow the pace.” cultural similarities. There are serious legal and It is a lot easier to stabilize global temperature by constitutional issues associated that needs to be cutting carbon emissions, then it is to stabilize sea considered before relocating an entire population. level rise. The CO2 which is already loaded into The last tsunami in 2004 created waves barely a the atmosphere will likely to have effects. metre high and the results were disastrous which On the ocean for centuries to come. The only led to the displacement of more than 12,000 option available to us is that we can only slow people. The government’s effort in order to cope down the rate of sea level rise, which will allow us up with the situation has been not very successful to buy some more time for adaption of different for most opting for long term solution. The measures, provided it is followed with aggressive economy has suffered tremendously, especially the mitigation. tourism sector which is the de-facto lifeline for the economy of a country. Implications of unchecked emissions are highly With the rise in global temperature every year, the dangerous. It will warm up the planet by around 4’c low lying areas around the world are facing huge over pre industrial levels by 2100, which will indeed problems. Some primary affected area includes the cause the sea level to rise by2-5 feet. Only by the low lying areas of Bangladesh where a total of 20 means of pro activeness, we can hope to cut emis- million people were displaced due to floods. The sions and keep it below 2’c. economy of Bangladesh has not been able to address the situation, as it too gets caught amongst “It’s possible, but not total victory” the innumerable other national problems. The situation is such that with every foot of sea level Irrespective of all the efforts the sea levels will still rise, the areas prone to severe flooding increases continue to rise leading to cities like Shanghai, by 69%. Already statistically, the sea level rise is Mumbai, Karachi fall prey in it. deemed to be around 110 mm, and it is highly alarming. If predictions published by majority of the world reports are to be believed, the rise in the sea level is expected to be 80mm (3.2 inches) in the
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Conclusion more active participations of the Third world leaders along with the continuous lobbying by the Lack of ‘Third World research’ has actually been non- governmental bodies have definitely been able the root cause of this divide. The Southern to pull in a chord or two amidst the real world countries have never been able to bring in an effect leaders. Perhaps with a more precise international at the world stage and as a result, the conflict definitive framework to deter these issues would further deteriorated. This underestimated ideology finally allow us work together for a more of not being proactive at happenings like this tends sustainable world, which is a challenge on its own, to further create a huge lacuna in the process of considering the notion of the ever escaping time creating an uprising in the from the hands of the human race. Southern nation’s environmental think tanks. It is high time that the Third world nations take a REFERENCES: definitive step along with a bold action in Inamini Wijedasa, India Ignores Sri Lanka’s Vulnerability Concerns To Nu- commencing their own independent research on clear ‘Accidents’, The Sunday Times,http:// this issue. The mere dependence on the West to www.sundaytimes.lk/150322/news/india- ignores-sri-lankas-vulnerability-concerns-to- provide information and data on the current nuclear-accidents-141103.html happenings will not act at all in favour of the Sudha Ramachandran, Water Wars: China, India and the Great Dam Rush, The Diplo- growing concerns that are rising with every passing mat, http://thediploma day. t.com/2015/04/water-wars-china-india-and- the-great-dam-rush/ Considering the fact that the information released by the Western institutions are themselves Press Trustof India,China's 9700crore Damon Brahmaputrain Tibetis Now Working,Ndtv,h questionable at times, thus creating a more widely ttp://www.ndtv.com/in dia-news/biggest-dam- dispersed array of opinions on these environmental on-brahmaputra-river-operationalised-by- china-1231555 menaces. Further lack of ‘Far-Sightedness’ along ibid with the growing innumerable related and more Sudha Ramachandran,Water Wars:China,India AndThe Great Dam Rush, TheDiplomat,http:/ severe issues domestically within nations have /thediplomat.com/2015/04/water-wars-china- resulted in the lack of leadership amongst the india-and-the-great-dam-rush/ Third World. It is high time the world leaders Anil Agarwal And Sunita Narain, Global ensure that their interest in these issues continue Warming In An Unequal World, A Case Of to create an impact all over the world. The Environmental Colonialism, pg. 3, Oct. 2003 (Last Visited Mar.18 2016) ecological costs that the West will end up paying is unquantifiable, and the rise of this very conscious- Kenedy Warne,Will Pacific Island Nations Dis ness has resulted in their negotiation in real terms appearas Seas Rise? with the Southern world. With the world coming Maybe Not, Nationalgeographic,http://news.n ationalgeographic.com/2015/02/150213-tvalu- together at various international forums and the
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sopoaga-kench-kiribati-maldives-cyclone- Randeep Ramesh, Paradise Almost Lost: Mal- marshall-islands/ dives Seek To Buy A New Homeland, The Guardian, http://www.theguardian.com/ Tom Bawden,Climate Change, Independent,ht environment/2008/nov/10/maldives-climate- tp://www.independent.co.uk/environment/ change climate-change/another-sign-of-the-growing- north-south-divide-but-this-time-its-climate- Warming climate to hit bangladesh hard with change-8810078.html sea level rise, more floods and cyclones, world bank report says, the world Anil Agarwal And Sunita Narain, Global bank, http://www.worldbank.org/en/news/ Warming In An Unequal World, A Case Of press- release/2013/06/19/warming-climate-to Environmental Colonialism, pg. 2, oct. 2003 -hit-bangladesh-hard-with-sea-level-rise-more (last visited mar.18 2016 -floods-and-cyclones-world-bank-report-says
Pam Flattens Vanuatu:Rescue Teams Report Venice menace: famed city is sinking & tilting, Devasta- the live science, http://www.livescienc e.co tion;Official Death Tolllowered, http:// m/19195-venice-sinking-slowly.html www.weather.com/ storms/hurricane/news/ cyclone-vanuatu-impacts Scientists predict huge sea level rise even if we limit climate change, the guardian,http:// A Globalpleaforthesurvivalof Small Island Dev www.theguardian.com/environment/2015/ eloping States, Lemauricien, http:// jul/10/scientists-predict-huge-sea-level-rise- www.lemauricien.com/article/global-plea- even-if-we-limit-climate-change survival-small-island-developing-states Scientists predict huge sea level rise even if Isues Facing Small Island Developing States ‘Gl we limit climate change, the guardian,http:// obal Challenges’demanding CollectiveRespons www.theguardian.com/environment/2015/ ibility, Secretary- jul/10/scientists-predict-huge-sea-level-rise- General Tells Security Council, The United even-if-we-limit-climate-change Nations, http://www.un.org/press/en/2015/ sc11991.doc.htm Despite rising sea levels, karachi continues to destroy its coastal belt, france 24,http:// A global plea for the survival of small island- www.france24.com/en/focus/20141211- developingstates,Lemauriciehttp:// pakistan-karachi-coast-indus-delta-mangrove- www.lemauricien.com/article/global-plea- destruction-rising-sea-levels survival-small-island-developing-states Anil agarwal and sunita narain, global warming Randeep Ramesh , Paradise Almost Lost : in an unequal world, a case of environmental- Maldives Seek To Buy A New Homeland , Colonialism, oct. 2003 (last visited mar.18 The guardian , http:// www.theguardian.com/ 2016) environment/2008/nov/10/maldives-climate- change
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