International Treaties And Law Of Environment In India | Law Optional Notes for UPSC PDF Download

Introduction

• The purpose of International Environmental Law is a subject of debate, as it can serve various objectives, including ethical guidance, deterrence, or socialization. If it is considered an ethical statement, it may primarily serve as an inspirational framework. If it aims at deterrence, the question arises why there aren't more international forums for resolving disputes and enforcing agreements. If it functions as a socialization tool, it raises the question of its effectiveness.
• To address environmental challenges faced by India and other countries, it's crucial to take action at multiple levels, including global, regional, national, local, and community levels. Having international agreements and instruments on environmental issues is not enough; their completion, implementation, and enforcement play a significant role in determining their impact and effectiveness.
• In recent decades, there has been growing awareness of the need to protect the environment both nationally and internationally. India's Constitution contains several articles that outline environmental responsibilities for preserving the country's natural resources, such as Articles 48-A and 51-A(g). Additionally, the Constitution provides procedures (Articles 252 and 253) for enacting national legislation to address the needs of the State. In alignment with the Stockholm Declaration of 1972 and under Article 253, the Central Government of India adopted the Water [Prevention and Control of Pollution] Act, 1974, and the Water [Prevention and Control of Pollution] Cess Act, 1977.
• This paper aims to briefly outline various Indian legislations and international treaties related to the environment, particularly those relevant to protecting and improving the environment in India. It also critically examines and evaluates the enforcement, scope, and limitations of these legislations in a systematic manner.

Scale of Law of Environment

• The scale of environmental law in India reflects a combination of judicial interpretations, constitutional provisions, and adherence to international principles and theories. After gaining independence, India saw a surge in environmental legislation, with significant involvement from the judiciary in the 1990s. The 42nd Amendment to the Indian Constitution in 1976 introduced environmental protection principles into the Constitution through Articles 48-A and 51-A(g). These principles were a response to India's international commitments, such as those made at the Stockholm Conference.
• Several key legislations in India pertain to environmental protection, including the Forest (Conservation) Act of 1980, Wildlife (Protection) Act of 1972, Environment (Protection) Act of 1986, Air (Prevention and Control of Pollution) Act of 1981, National Environment Tribunal Act of 1995, National Green Tribunal Act of 2010, Biological Diversity Act of 2002, Hazardous Wastes (Management and Handling) Amendment Rules of 2003, and the Water (Prevention and Control of Pollution) Act of 1974, which aims to prevent, control, and abate water pollution.
• The Indian Supreme Court has played a crucial role in interpreting the Constitution to include the right to a clean and healthy environment within the scope of Article 21. Public Interest Litigation (PIL) and Social Action Litigation (SAL) have relaxed the concept of locus standi and enabled more professional and efficient handling of environmental matters, emphasizing community rights over individual rights.
• Internationally, environmental law encompasses substantive, procedural, and institutional rules and regulations with the primary objective of protecting the natural environment. Key principles include the Precautionary Principle and the Polluter Pays Principle.
• India has been active in international environmental forums and has ratified international conventions related to environmental protection. The country established the National Council for Environmental Policy and Planning in 1972, which later became the Ministry of Environment and Forests (MEF) in 1998. The Indian Constitution mandates the state to protect and improve the environment and imposes a duty on citizens to protect the natural environment, including forests, lakes, rivers, and wildlife.
• After the Rio Conference in 1992, India formulated the Environmental Action Programme (EAP) in 1993 to integrate environmental considerations into development programs. Agenda 21, a product of the Rio Conference, was also implemented in India. India has actively worked to integrate economic, social, and environmental objectives into decision-making processes for sustainable development.
• The Precautionary Principle, recognized in international law, addresses situations of scientific ambiguity and uncertainty. It has been acknowledged by the Indian Supreme Court and applied in environmental cases.
• The Polluter Pays Principle holds those responsible for pollution accountable for its costs. It is incorporated in Principle 16 of the Rio Declaration and has been recognized by the Indian Supreme Court, which assesses environmental damages based on preventive measures rather than claims from either party.

In conclusion, India's environmental law framework is built on constitutional provisions, international principles, and a series of legislations that collectively aim to protect and preserve the natural environment while addressing developmental needs and poverty reduction. The judiciary, through PIL and SAL, has played a significant role in ensuring the enforcement of these laws and principles. India continues to actively engage in international efforts for environmental protection and sustainable development.

Boundaries of Law of Environment in India

The modern body of environmental law in India faces several limitations. It is narrow in scope, focused on specific sectors, and often reacts to environmental problems rather than proactively addressing them. For example, the Environment Protection Act of 1986, meant to address various environmental aspects, primarily deals with pollution-related issues. This lack of foresight, failure to develop suitable policies, and a predominantly reactive approach have led to the active involvement of the courts in environmental matters.
While environmental concerns have always existed in India, the internalization of pro-environmental behavior is missing in Indian environmental laws. Many environmental laws lack the support of comprehensive policy documents. Laws such as the Wildlife Protection Act of 1972, Forest Conservation Act of 1980, Water Prevention and Control of Pollution Act of 1974, Water Prevention and Control of Pollution Cess Act of 1977, and Air Prevention and Control of Pollution Act of 1981 stand alone without clear policy frameworks. These laws often employ a "command and control" approach, focusing on setting pollution standards and regulations rather than proactive environmental management.
Several boundaries hinder the effective enforcement of environmental laws in India:

• Weak Enforcement: Enforcement is often weak, and environmental management turns into crisis management. Firms tend to respond weakly to non-existent or merely formal inspections. For instance, in the case of M.C. Mehta v. Union of India, mines operating near Badkal Lake and Surajkund were ordered to close due to pollution, highlighting the failure of enforcement.
• Lack of Flexibility: The formulation of legislation and standards is overly ambitious, often requiring strict adherence to absolute standards without considering technology or performance-based approaches. This discourages firms from investing in pollution abatement technologies, even if they comply with the law.
• Weak Monitoring System: A lack of technically skilled personnel leads to inadequate monitoring. Scientific assessment of pollution levels becomes challenging. Some State Pollution Control Boards lack the necessary expertise among their members, making effective monitoring difficult.
• Lack of Funds: Insufficient funding is a significant constraint, impacting monitoring efforts. Pollution Control Boards often lack the necessary infrastructure, laboratories, and equipment due to budget constraints.
• Ineffective Punitive Measures: There is a lack of effective punitive actions for non-compliance. Penalties imposed on non-compliant firms are minimal and not commensurate with the extent of pollution or emissions. Delays in court cases further exacerbate the problem, with justice being denied due to prolonged legal proceedings.

In summary, India's environmental laws face challenges related to enforcement, flexibility, monitoring, funding, and punitive actions, which hinder their effective implementation and environmental protection efforts.

Environment and Courts

• The Indian Supreme Court has recognized the need for specialized Environmental Courts to address environmental issues effectively. In the case of A.P. Pollution Control Board v. M.V. Nayudu, the Court emphasized the importance of establishing Environmental Courts staffed with environmental scientists and qualified individuals to provide expert advice during judicial proceedings.
• In the case of M.C. Mehta v. Union of India, the Supreme Court suggested the creation of regional Environment Courts comprising a professional Judge and two experts due to the scientific nature of environmental cases. The goal was to ensure speedy resolution of environmental issues.
• In the Kanpur Tanneries or Ganga Pollution case, the Supreme Court held municipal bodies and pollution control boards responsible for the alarming pollution in the Ganga River due to sewage and waste discharge from Kanpur. It emphasized the accountability of the Kanpur Municipal Corporation for the river's pollution.
• In Attakoya Thangal v. Union of India, a case concerning groundwater resources and saline water intrusion, the Supreme Court emphasized the right to clean and fresh water as a fundamental aspect of the right to life.
• The city of Cuttack faced severe water pollution issues due to the absence of sewage treatment plants. The Supreme Court directed the state government to take immediate steps to address the pollution crisis.
• In Almitra H. Patel v. Union of India, the Supreme Court highlighted the severe pollution problems in Delhi, including air, water, and garbage pollution, and instructed authorities to take immediate measures to control pollution and protect the environment.
• The concept of "sustainable development," which involves meeting current needs without compromising future generations' abilities to meet their needs, was discussed in the case of Vellore Citizens Welfare Forum v. Union of India. The court emphasized the "precautionary principle," requiring the government to anticipate and prevent environmental degradation, and the "polluter pays principle," stating that those causing pollution should bear the financial cost of preventing or treating pollution damage.

In summary, the Indian Supreme Court has played a crucial role in addressing environmental issues through Public Interest Litigation (PIL) and expanding its jurisdiction to protect and improve the country's environment.

Conclusion

• India faces a significant challenge in fulfilling its international commitments while simultaneously addressing poverty and pursuing sustainable development. In 1972, then-Prime Minister Indira Gandhi emphasized at the first UN-sponsored environmental conference that poverty is a severe form of pollution and a pressing global issue. India has consistently reminded industrialized nations that as long as poverty remains a major obstacle to its development, its efforts to protect the environment and conserve resources may not yield the desired results. For India, as for other countries in the Global South, poverty reduction and environmental protection are interconnected objectives.
• Over the past decade, India has ratified numerous international environmental conventions and treaties and has taken initiatives to implement them domestically. While India has been active in international forums related to environmental protection and has signed most multilateral environmental agreements, there is still much work to be done at the domestic level to fully implement these agreements.
• The central challenge for India lies in finding a balance between conserving its environment, meeting the basic needs of its growing population in a resource-constrained environment, and ensuring energy security while leaving a sustainable legacy for future generations. As directed by the Supreme Court, environmental studies should become a compulsory subject at the school and college levels, following a graded system to raise awareness effectively.
• Ultimately, the protection of the environment and the preservation of ecological balance are not only the responsibility of the government but also a collective obligation that every individual, organization, and corporation must undertake. It is a social duty and a fundamental responsibility enshrined in Article 51-A(g) of the Indian Constitution.