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Legislative Framework for Environmental Protection – A Paper Tiger

Pollution

It is clear that concerns about the preservation of the environment, global warming, and climate change have taken center stage, both in India and elsewhere. Countries have begun to acknowledge the fact that protecting the environment is vital to ensure the habitability of Earth and survival of the human race, and have begun taking steps to ensure environmental protection.

Environmental policy is vast and complex. Though Courts have been instrumental in protecting nature, policymaking is often complex and information-heavy, requiring specialists and intensive research. Hence, legislatures are best positioned to address this multifaceted issue. In this piece, we will be studying the regulatory framework for the protection of the environment in India.

Legal Architecture

There are several important laws that provide the legal architecture for environmental protection.

Water (Prevention and Control of Pollution) Act

This was the first Indian environment law. It is concerned with ensuring that water bodies like lakes and rivers are not polluted. Chapter I of the Act includes definitions and this Act defines pollution as ‘contamination of water or such alteration of the physical, chemical or biological properties of water or any effluent discharge that is likely to have harmful effects on water.

Chapter II and III require the constitution of Central and State Pollution Control Boards, as well as Joint Boards. Chapter IV lays down the primary responsibilities of these Boards: Creation of awareness, advising their respective governments, and enforce regulations. The State Pollution Control Board has the power to collect information and samples of effluents, grant or deny consent to any industry, association, or system, and enter and inspect any premises for any violations.

The Water Act was amended in 1988. Before the amendment, courts could only recognize actions brought by the Board. The Amendment Act now modified Section 49 and allowed citizens to bring actions under the Water Act. Further, the State Board must also make disclosures to citizens unless they violate “public interest”.

Air (Prevention and Control of Pollution) Act

The Air Act has the object of prevention and control of air pollution. ‘Air pollution is the presence of any pollutant in the atmosphere. Importantly, the Central and State Boards instituted under the Water Act have also conferred the power to regulate air pollution by the Air Act. Under Chapter III, the Board has the goal of improving the ‘quality of air’ and controlling air pollution. Section 19 allows the State Government to declare any area as an ‘air pollution control area’. The use of fuel is prohibited in such an area. Further, Section 20 enables the State Government to give instructions to ensure standards of vehicular emission.

Under Section 21, all industrial plants require the consent of the State Board. The Board can further mandate certain conditions that have to be fulfilled. Lastly, in the same manner, as the Water Act, State Board officials have the power of entry and inspection, and sample collection under the Air Act as well.

Under the Act, the Board also has the power to issue directions, which the Government is bound to follow. These can be closure and prohibition of the industry, operation, or process, and also stoppage of electricity, water, and other services. 

Environment (Protection) Act

The Environment Protection Act can be considered the seminal legislation on environmental protection in India. The immediate catalyst for the Act was the Bhopal Gas tragedy that occurred in 1984, which remains one of the darkest days in Indian history. This Act was intended to be a comprehensive Act that would cover all aspects of environmental protection since earlier Acts dealt with different aspects of environmental protection in isolation. The Act has an overriding effect, and under Section 3, the Central Government can take any measures it deems necessary for improving the environment and reducing pollution. Section 5 allows the government to give directions, a power similar to the one State Governments enjoy under the Air Act. Further, Section 6 empowers the Central Government to make rules to protect the environment.

A bare reading of the provisions demonstrates that the power conferred to the Central Government under this Act mirrors that of the State Governments under the Water and Air Acts. The EPA consolidates all the above provisions and grants the government the power to take any action in the interests of environmental protection.

Wildlife (Protection) Act

The Wildlife Protection Act was enacted with the intent of ensuring that wildlife can be properly protected, and to that end creates various authorities like the National Board for Wild Life, Wild Life Wardens, and the Central Zoo Authority, among others. The Act also allows the creation of Sanctuaries and National Parks and is a key tool in protecting wildlife. Its objective was to control poaching and smuggling. It was amended in 2003 to enhance the penalties associated with offenses.

Forest (Conservation) Act

The Forest Act was passed to prevent further deforestation and conserve the nation’s forests. It establishes an Advisory Committee that can notify de-reservation of forests, give permission to use forest land for non-forest purposes, lease forest land, or order for clearance of any area for afforestation. This ensures the regulation of forest lands in an effective manner.

Public Liability Insurance Act

Section 7A of the Public Liability Insurance Act provides the government the authority to create an “Environmental Relief Fund”, the funds of which can be used to provide relief to all parties who deserve relief under the scheme of Section 7. The Fund was established in 2008, and the central reason for the creation of such a Fund was the clamor for speedy compensation by the victims of the Bhopal Gas Tragedy. 

Biological Diversity Act

The Biological Diversity Act was created with the intent of preserving the country’s biodiversity. The salient feature of the Act is the creation of the National Biodiversity Authority. The Authority can grant approvals for those who intend to acquire biological knowledge or resources. There are also State Biodiversity Authorities with the power to restrict certain activities that hamper conservation. This ensures regulation that protects biodiversity resources.

National Green Tribunal Act

The National Green Tribunal Act creates the National Green Tribunal, which has the authority to decide all civil cases with a “substantial question relating to the environment”. These include cases under the Air Act, Water Act, EPA, Biological Diversity Act, etc. 

The National Green Tribunal was formed in 2010 after it received presidential assent in the same year. Pursuant to this, the National Environment Tribunal Act, 1995 and the National Environment Appellate Authority Act, 1997 were repealed.

Analysis

Environmental Protection
Source – Social Media

India has a catena of environmental laws, all with the object of protecting the rich environmental diversity this country has been blessed with. However, it must be asked: Are the laws good, and are they working?

Good laws share certain characteristics. They are clear and unambiguous, their provisions are comprehensive and address all facets of the issue, and their objective is important and compelling. Further, these laws should also be easy to implement and must take into consideration the apprehensions of all stakeholders. India’s environment protection laws meet these standards with flying colors. It sets up dedicated authorities, grants them sufficient and proportionate authority in order to exercise effective regulatory power. While there are a few issues with the laws, these do not seem to be the main issue.

Why, then, has India’s condition in the field of environment not improved? The pitiable situation of India in this regard proves yet again that a law is only as good as a state’s and society’s commitment to upholding them. The will to protect the environment has been lackadaisical, to say the least. The environment has always taken a backseat. To date, most State Pollution Control Boards do not operate properly and are haunted by operational issues. Environmental concerns take a backseat in light of developmental projects. The alarming changes in the Draft EIA notification that effectively made a wash of environmental standards demonstrates the government’s disinterest in environmental protection rather clearly. The Chennai-Salem Expressway and the Char Dham Highway are two road construction projects that will result in massive ecological damage, but the government is determined to go ahead with the projects anyway. 

Further, railways are a massive source of air pollution. It is ridiculous to expect the state to prosecute erring companies if the government itself shows no concern for nature. The Environment Fund that was set after endless protests by the victims of the Bhopal Gas Tragedy has hundreds of crores lying around unused. Finally, the ‘polluter pays’ principle has a very limited effect in reducing violation of environmental laws, because there is no clear formula on calculating damages, the result being that there are erratic fines and not enough deterrence is created.

Conclusion

India has an impressive array of laws in order to protect the environment. The first of these was the Water Act, followed by the Air Act and then others. The Environmental Protection Act is the landmark law for environmental protection. 

However, despite this detailed legislative framework, implementation of the laws has been lackluster, resulting in continuous deterioration and pollution of the environment. One hopes that the situation will improve soon and that the law will not remain a paper tiger in the future.

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