Environmental Law and its jurisprudence
In historical context, texts show us that it was the dharma of each individual in society to protect Nature, so much so that people worshipped the objects of Nature. Trees, water, land, and animals have considerable importance in our ancient texts. Manusmriti prescribed different punishments for causing injury to plants.
The dharma of protecting the environment was to sustain and ensure the progress and welfare of all. The effort was not just to punish but to balance the ecosystem as well.
The definition of environment and environmental law in India has always been rather broad, it doesn’t only include the concept of sustainable development but also air and wate4 pollution and even preservation of our ancient monuments which are going into severe stress due to urbanization and consequent environmental pollution.
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A Modest Beginning
Environmental law jurisprudence in India began in the mid-seventies when parliament enacted a new law on water prevention and control of pollution act 1974. Our constitution in its Directive Principles of State Policy and Article 48-A incorporates protection and Article 51-A (g) in the fundamental duties of every citizen of India provides for the improvement of the environment.
Parliament also enacted the Air Prevention and Control of Pollution Act, 1981 and Environment Protection Act, 1986. With these three new enactments, a modest beginning towards environmental law jurisprudence was made by parliament. Unfortunately creating soft laws remains of no use at a time when strong legislation was critical for environmental conservation.
Internationally accepted principles
In the mid-nineties, the Supreme Court recognized some Internationally accepted and important principles in matters pertaining to the environment. This period also saw the Supreme Court rely more and more on Article 21 of the Constitution and gave expansive meaning to the word “Environment”. The Supreme Court of India recognizes “Environment” in a ‘quality of life’ by stating that, better the environment is the right of every citizen.
In Indian Council for Enviro-legal Action, the Supreme Court accepted the polluter pays principle. ‘polluter pays‘ principle is the commonly accepted practice that those who produce pollution should bear the costs of managing it to prevent damage to human health or the environment.
The polluter principle came to be applied in the Taj Trapezium case, in which it was noted that there were as many as 510 industries responsible for air pollution in and near the Taj Mahal.
To protect Taj from being damaged one acceptance of the polluter pays principle was applied, that is, the industries were asked to relocate. As a proactive measure to attract the causes of environmental degradation, the Supreme Court directed 292 industries to run on natural gas.
Since Taj is World Heritage Site, the Supreme Court went to the extent of saying that it would itself monitor some issues such as air pollution, proper management of the Mathura refinery, construction of a hospital, and a bypass to divert all traffic away from Agra. Etc and a governmental Agra Mission Management Board were constituted in 1997 followed by the Taj Trapezium Zone Pollution prevention and control authority set up in 1999 to monitor progress implementation of various schemes for protection of the Taj.
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In M.C Mehta vs Union of India, the Supreme Court considered the issue of industrial activity being carried on in residential/ non-conforming areas in Delhi. Since many of the manufacturing industries were shifted outside Delhi. Although Supreme Court in its judgment noted that the entire planning activity has gone haywire, persons who abide by laws are the actual sufferers, and polluting industries continue in the city at the cost of health and in utter violation of Article 21 of the Constitution.
The Supreme Court observed that no serious activity had taken place over a period of over a decade since the litigation commenced.
Judicial activism in environmental law matters has been documented and analyzed threadbare. Nonetheless, it seems appropriate to undertake a comprehensive evaluation from time to time, of such activism in the development of environmental law and jurisprudence in India.
(Member, The Legal State)