India

• Author: Krishna Vijay Singh and Shephali Mehra Birdi
• Pages: 759-777

CHAPTER 38

India

KRISHNA VIJAY SINGH AND SHEPHALI MEHRA BIRDI

I. Introduction

A. Constitution of India and Environment Protection

The Indian Constitution recognizes the significant role of environment and

natural resources in the well-being of the nation and the need for preserving

and protecting the same along with all of its vital components. The constitu-

tion entrusts the state as well as Indian citizens with a duty to protect and

improve the natural environment. Article 51A(g) casts a duty on every citi-

zen to “protect and improve the natural environment including forests, lakes,

rivers and wild life, and to have compassion for living creatures.”1 Similarly,

the Directive Principles of the State Policy (Directive Principles) under Arti-

cle 48A provides that the “State shall endeavor to protect and improve the

environment and to safeguard the forests and wildlife of the country.”2

The constitution also guarantees to all persons a fundamental right to

life. Article 21 states that “no person shall be deprived of his life or personal

liberty except according to the procedure established by law.”3 In a number

of cases, the Indian Supreme Court and various high courts have expanded

the scope of the right to life to include the right to a clean and pollution-free

environment. In Subhash Kumar v. State of Bihar,4 the court observed that the

“right to live is a fundamental right under Article 21 of the Constitution and

it includes the right of enjoyment of pollution-free water and air for full

enjoyment of life.”5 In another important case, Damodhar Rao v. S.O.M.C.

Hyderabad,6 the Andhra Pradesh High Court observed:

[I]t would be reasonable to hold that the enjoyment of life and its attain-

ment and fulfillment guaranteed by Article 21 of the Constitution

embraces the protection and preservation of nature’s gifts without which

life cannot be enjoyed. There can be no reason why practice of violent

extinguishment of life alone should be regarded as violative of Article

21 of the Constitution. The slow poisoning by the polluted atmosphere

caused by environmental pollution and spoilation should also be

regarded as amounting to violation of Article 21 of the Constitution.7

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In the context of India, it is important to understand the legislative com-

petence of the central government, or “Union,”8 and the various states on

environment and its various components. The Union has been exclusively

empowered to legislate on subjects such as fishing and fisheries beyond ter-

ritorial waters, regulation and development of interstate rivers and river val-

leys, and regulation of mines and mineral development. Conversely, the

states have been vested with the power to legislate on land use, inland fish-

eries, and water (water supply, irrigation and canals, drainage and embank-

ment, water storage). On certain vital subjects, such as forests, wildlife,

animals, and birds, both the Union as well as the states have been empow-

ered to legislate.

In addition, certain important environmental legislation has been enacted

at the Union level based on Article 253 of the Constitution,9 which empow-

ers the Parliament to make laws implementing India’s international obliga-

tions, as well as any decision made at an international conference, association,

or other body. Such legislative competence is also supported by entry 13 of

the “Union List,”10 which covers “participation in international conferences,

associations and other bodies and implementing of decisions made thereat.”11

Using its powers under Article 253, read with entry 13, the Parliament has

enacted several significant statutes for giving effect to its international law

and treaty obligations, such as the Environment Protection Act, 1986 (enacted

pursuant to the United Nations Conference on the Human Environment in

1972, also known as Stockholm Conference) and the Biological Diversity Act,

2002 (enacted to fulfill India’s obligations under the U.N. Convention on

Biological Diversity (1992)).

Thus, the constitutional provisions on environment are backed by a com-

prehensive and an extremely varied legal framework comprising a plethora

of laws, rules, and notifications. Laws regulating exploitation of natural

resources and ecosystems, such as forests, forest resources, and wild animals

and birds, have been in existence since the preindependence era.12 Postinde-

pendence (i.e., post-1947), these laws have evolved to address changing gov-

ernment policies, international regime, and environmental, social, and

economic parameters. The other set of laws, including those regulating

harmful pollutants, chemicals, wastes, dangerous goods, climate change, and

energy efficiency have come into existence mainly to cater to the demands of

modern industry at the national as well as the global level. India also has an

array of marine laws, which, inter alia, regulate safety and conservation of

ports, pollution from ships, shipbreaking industry, and oil spills.

On the enforcement aspect, it is important to understand that in India,

several government ministries and departments are responsible for imple-

mentation of different laws having a bearing on environment. At the national

level, there is the Ministry of Environment & Forests13 (MoEF), which is

responsible for planning, promoting, coordinating, and overseeing the imple-

mentation of India’s environmental and forestry laws, policies, and program.

However, certain environmental issues entail involvement of other govern-

ment ministries as well. For example, while the rules regulating hazardous

760 INTERNATIONAL ENVIRONMENTAL LAW