ENVIRONMENTAL LAWAND POLICY

ARUNA VENKATAssociate Professor of Law

NALSAR University of LawHyderabad

New Delhi-1100012011

ENVIRONMENTAL LAW AND POLICYAruna Venkat

© 2011 by PHI Learning Private Limited, New Delhi. All rights reserved. No part of this bookmay be reproduced in any form, by mimeograph or any other means, without permission inwriting from the publisher.

ISBN-978-81-203-4436-5

The export rights of this book are vested solely with the publisher.

Published by Asoke K. Ghosh, PHI Learning Private Limited, M-97, Connaught Circus,New Delhi-110001 and Printed by Baba Barkha Nath Printers, Bahadurgarh, Haryana-124507.

iii

Contents

Preface vii

List of Cases ix

Abbreviations xv

INTRODUCTION 1–11

The Concept of Environment 3Developmental Impact on Environment 5The Concept of Sustainable Development 5International Efforts for the Protection and Preservation of

Environment 7Indian Efforts to Combat Environmental Pollution 8

Constitutional and Legislative Measures 8Judicial Initiatives 9

1. ENVIRONMENTAL PROTECTION: InternationalLegislative and Administrative Efforts 12–50

The Stockholm Conference, 1972 13

The Stockholm Declaration 13Resolution on Institutional and Financial Arrangements 17Resolution on Action Plan 17

Post-Stockholm Developments up to Rio Conference 18

Administrative Measures for the Implementation of StockholmRecommendations 18

Subsequent Developments 19Administrative Measures 22

United Nations Conference on Environment and Development(UNCED), 1992 (Rio Summit) 23

Rio Declaration 23Agenda 21 25

iv Contents

Forest Principles 27United Nations Framework Convention on Climate Change

(UNFCCC), 1992 27The Biodiversity Convention, 1992 27Post-Rio Summit Developments up to Johannesburg Summit 28The Cairo Conference on Population and Development, 1994 28SAARC Conference, 1995, 1997 and 2002 29The United Nations Conference on Human Settlements, 1996 30Earth Summit + 5 Programme for the Further Implementation

of Agenda 31The United Nations Millennium Declaration, 2000 33The Kyoto Protocol, 1997 34Follow-up Administrative Measures 35The Delhi Sustainable Development Summit (DSDS), 2002 35The International Law Association (ILA) New Delhi Conference,

2002 37

Global Judges Symposium to Strengthen World’s EnvironmentRelated Laws 39

The World Summit on Sustainable Development 41The Copenhagen Conference and Copenhagen Accord 44

Post-Copenhagen Developments 48

The Indian Responses to Copenhagen Accord 49Summation 49

2. ENVIRONMENTAL PROTECTION: ConstitutionalPerspectives 51–78

Constitutional Commitment to Environmental Concerns 52The Right to Hygienic Environment: Constitutional Conspectus 55The Right to Hygienic Environment: A Derivative Right of

the Right to Life 57Judicial Transformation of Unenforceable Positive Obligations into

Enforceable Affirmative Duties 62The Right to Clean Environment: Its Relation to Other Fundamental

Rights 63

The Right to Clean Environment: Its Impact on the Rights to Trade,Occupation or Business 64

The Right to Clean Environment and the Right toPractice Religion 67

The Right to Hygienic Environment and the Right toLivelihood 68

Enforcement of the Right to Healthy Environment: Need forExpansive View of the Concept of State 71

Does the Concept of State Subsume Purely Private Companies? 73Does the Concept of State Comprehend Judiciary? 74

Contents v

3. ENVIRONMENTAL PROTECTION: Legislative Strategies 79–142General Legislative Powers: Constitutional Division 79

Legislative Powers: Constitutional Scheme 79Environmental Legislative Powers: Constitutional Scheme 81

Environmental Legislative Strategies 83Pre-Constitution Environmental Legislative Strategies 83Post-Constitution Environmental Legislative Strategies 88Penalties 102An Appraisal 137Need for the Constitution of a Review Committee 137Conclusions and Suggestions 138

4. ENVIRONMENTAL PROTECTION ANDADMINISTRATIVE STRATEGIES 143–178Administrative Powers: Constitutional Scheme 144Administrative Efforts in Environmental Management 145

Environmental Policy Initiatives 145

Institutional Arrangements for Managing Climate Change Agenda 168

The Creation and Functioning of Administrative Agencies 169Environmental Protection through Subordinate Legislation 172Protection of Environment: Authorities Created by Central

Government 173Conclusions and Suggestions 175

5. ENVIRONMENTAL PROTECTION, PRESERVATIONAND ROLE OF JUDICIARY: Constitutional Format 179–194Judicial Process, Judicial Power and the Doctrine of Separation

of Powers: Constitutional Setting 180The Traditional Concept of Judicial Process 180The New Paradigm of Judicial Process 181The Judicially-led Environmental Protection: Constitutional

Framework 182The Judicially-led Environmental Protection: Reasons for Judicial

Activism 183The Judicially-administered Environmental Protection Through Writ

Jurisdiction 185Article 32 of the Indian Constitution: A Tool of Judicial

Activism 187Environmental Protection and Public Interest Litigation (PIL) 188

Conclusions and Suggestions 193

6. NEED FOR PREVENTION AND CONTROL OF WATERPOLLUTION: Judicial Responses and Strategies 195–271Water Resource: Its Vital Importance 195Water Pollution: Bane of India’s Water Management 196

vi Contents

The Prevention and Control of Water Pollution: Kinds ofJudicial Remedies 197Civil Remedies 197Criminal Law Remedies 254

Control of Groundwater Pollution 263Control of Water Pollution and Problem of Water Cess:

Judicial Approach 265Conclusions and Suggestions 267

7. PREVENTION AND CONTROL OF AIR POLLUTIONTHROUGH JUDICIAL INTERVENTION ANDENFORCEMENT 272–360Prevention and Control of Air Pollution: Gravity of Problem 272

Brief Legislative Framework 275Prevention and Control of Air Pollution: Kinds of Judicial

Remedies 277Civil Law Remedies 277Criminal Law Remedies 353

Conclusions and Suggestions 356

8 PROTECTION OF FORESTS AND ECOLOGY:Judicial Concern and Perception 361–424Forests are Lifeblood of the Nation 361Legislative Framework 363Protection and Conservation of Forests and Ecology: Judicial

Strategies 364Civil Law Remedies 364Forest Conservation in the Region of Jammu and Kashmir 375Forest Conservation in the North-Eastern Region 375

Preservation of Ecological Integrity: Judicial Concern and Strategies 387Protection of Parks from Ecological Degradation 397Protection of Ecology and Large Irrigation Projects 402The Protection of Forests and Sustainable Development:

The Customary Livelihood Claims of Tribals andOther Forest Dwellers in Forest Wealth 405

Protection of Forests and the Customary Rights of Tribals andOther Forest Dwellers in Forest Wealth 406

Protection and Conservation of Forest: Judicially EnforcedStatutory Prescriptions 411

Protection and Preservation of Forest and Ecology: PenalSanctions through the System of Command and Control 416

Conclusions and Suggestions 422

9 CONCLUSIONS AND SUGGESTIONS 425–452Bibliography 453–460

Index 461–464

vii

Preface

The recent earthquake triggering the killer ‘tsunami’ in Japan with all itsdisastrous consequences to the environment should shake the internationalcommunity out of its complacency with regard to its concern and commitment tothe protection of global environmental order.

The International community should reorient its strategies to prevent globalwarming and the consequential climate change with all its dangerous conse-quences. It is absolutely necessary for the international community to find waysand means to impress upon its members the need for reducing the greenhouse gasemissions which are the main cause for global warming. This is possible onlywhen the member countries take their international obligations and commitmentsundertaken at various international conferences on climate change more seriously.

Indian efforts to protect and preserve environment in the country have beenprompted by its international obligations undertaken at various internationalconferences on development and environment. India not only amended itsConstitution, the fundamental and Supreme Law of the country to reflect itscommitment to its international obligations with regard to global environment butalso enacted plethora of laws to protect the environment.

It may be appreciated that the Indian Constitution castes a fundamentalduty on the state as well as every Indian citizen to preserve and protectenvironment in the country. While it is disappointing to note that the failure onthe part of the executive to implement and enforce the country’s environmentallaws effectively has been the bane of Indian environmental jurisprudence, it isheartening, at the same time that the Indian higher judiciary has played a pivotalrole in the protection of the Indian environment. The Apex Court of the countryhas used the paradigm of PIL innovatively to compel the executive to implementand enforce the various environmental laws. In its crusade against environmentaldegradation, the Court has used the international environmental principles such assustainable development, polluter pays principle, precautionary principle, publictrust principle and intergenerational equity, etc., as effective judicial tools toprotect and preserve environment and to prevent environmental degradation.

My study presents a detailed account of various Indian environmental lawsand policy documents in a systematic way at the national level against the

backdrop of the relevant international legislative and administrative efforts for theprotection of global environment. The main focus has been on judicial innovationwhich has become necessary in the context of apathy on the part of the executivein the enforcement of environmental laws in the country.

It needs to be mentioned that I am aware of the fact that there are a largenumber of studies that have been published in this area. Nevertheless, I feel thatmore studies should be undertaken and published in this area which is vital to thesurvival of humanity. I also feel that this study will be a valuable and significantaddition to the already existing literature in this field.

While I have done my best to ensure that the materials are current and thatI have not omitted any major developments, I hope that readers of my study willpass on their comments and suggestions to me.

I take this opportunity to express my grateful thanks to my family—mymother Mrs. Eswari and my father Prof. Errabbi for their unconditional andvaluable support for the preparation of this manuscript. I would like to thank myhusband Mr. Venkatasubramanian and my little daughter Ananya for theirsupport and suggestions.

I would also like to express my thanks to my teacher Prof. NamitaAggarwal for her valuable help and suggestions. My thanks are due to my formerand present Vice Chancellors of NALSAR University of Law, Hyderabad,Prof. Ranbir Singh and Prof. Veer Singh for their encouragement and support.I also thank all my friends for their valuable suggestions.

Last but not least, my heartfelt thanks are also due to my publisherPHI Learning for giving me an opportunity to publish this work.

ARUNA VENKAT

viii Preface

ix

List of Cases

A. Chougula and Co. Ltd. v. Goa Foundation, 383A.G. of India v. Lachma Devi, 77A.K. Gopalan v. State of Madras, 56A.K. Thangadurai v. DFO, Madhura, 409A.P. Pollution Board v. Prof. M.V. Nayudu, 9, 53, 59, 213, 241A.R. Antulay v. R.S. Nayak, 77Abdul Hamid v. Gwalior Rayon Silk Mfg. (Wrg.) Co. Ltd., 354Abhilash Textiles v. Rajkot Municipal Corporation, 341ABSK Sangh (Rly.) v. Union of India, 62, 288ADM Jabalpur v. Shivakant Shukla, 56, 204AFD&C Ltd. v. Orissa State (Prevention and Control of Pollution Board), 352Ajay Hasia v. Khalid Mujib, 72Ajay Singh Rawat v. Union of India, 340Akhil Bharat Gosera Sangh v. State of AP, 245Allkaya Thangal v. Union of India, 264Almitra H. Patel v. Union of India, 99, 274, 336, 337Ambica Quarry Works v. State of Gujarat, 367, 369AMSNPAP Maharaj v. State of Gujarat, 67, 68Andhra Pradesh State Control Board for Prevention and Control of Water Pollution v.

Andhra Pradesh Rayons Ltd., 265Animal and Environment Legal Defence Fund v. Union of India, 407AP Gas Power Corporation Ltd. v. Appellate Committee, Water (PNC) Cess Act, 266Apparel Export Promotion Council v. A.K. Chopra, 204APPCB v. M.V. Nayudu, 59, 199Arun Kumar v. Nagar Mahapalika, Allahabad, 400Assistant Forest Conservator v. Sharad Ramachandra Kele, 421Associated Picture Houses v. Wednesbury Corporation, 216

Baleshwar Singh v. State of UP, 413Bandhua Mukti Morcha v. Union of India, 62, 69, 187, 189, 190, 292Bangalore Medical Trust v. B.S. Manddappa, 399Banvasi Mukti Ashram v. State of UP, 190Banwasi Seva Ashram v. State of UP, 406, 407Bhim Singh v. State of J&K, 129Bihar State Mineral Development Corporation v. State of Bihar, 371Birangana Religious Society v. State, 323

Environmental Law And Policy

Publisher : PHI Learning ISBN : 9788120344365 Author : VENKAT, ARUNA

Type the URL : http://www.kopykitab.com/product/7541

Get this eBook

30%OFF