Author: Pamula Tanuja, Sri Padmavati Mahila Visvavidyalayam
To the point
The 21st century has witnessed more significant environmental damage, primarily due to climate change, deforestation, soil erosion, water and air pollution, and the ozone layer depletion and industrial waste and Furthermore, microplastics and electronic waste are becoming new threats. The legal system is still struggling to safeguard the environment and enact new regulations or provisions. Environmental law refers to the legal guidelines and regulations created to safeguard the environment and natural resources, promote sustainable development, and control human actions that affect the environment. There are now many complex and fast-evolving problems that the industry is grappling with. Existing legal frameworks are being stretched to their limits by hazardous waste, environmental displacement, climate change, biodiversity loss, and other related issues. Additionally, environmental governance is being complicated by technological advancements, business practices, and global economic pressures. This article primarily addresses the emerging issues in environmental law, the necessity for protections and safeguards, and adaptable legal frameworks.
Legal jagron
In the present day, environmental law faces pressing challenges that are both technologically advanced and cross-border in nature. Protecting nature is becoming Increasingly difficult due to problems like climate change, industrial pollution, and deceptive corporate assertions about being environmentally friendly. Laws must guarantee that polluters assume complete accountability for the harm they create and that governments take proactive action, even if all the risks are not yet fully understood, in order to address these issues. Doctrines like , public trust doctrine, and the precautionary principle are being recontextualized to tackle new dangers like climate migration, carbon colonialism, and ecocide. The broadened environmental justiciability has led to a rise in climate litigation that calls for expanded concepts of locus standi, strict and absolute liability, and the extra-territorial implementation of environmental standards. The fundamental right to a clean and healthy environment is being protected by legal systems, which are now prioritizing equity for both present and future generations. Courts and legislators must adopt a more nature-centric mindset due to new threats like increasing electronic waste, experimental techniques for altering the weather, and the extinction of plant and animal species. Given that certain nations are more accountable for environmental damage than others, international agreements and treaties promote equitable cooperation among nations. Judges are also beginning to consider nature as having its own rights and are applying concepts like fairness, sustainability, and balance when rendering rulings that impact both humans and the environment.
Abstract
Environmental law is undergoing changes due to new global issues caused by climate change, rapid industrialization, and new technologies. The complexity of environmental harm is surpassing the capabilities of traditional legal systems, leading to the emergence of innovative legal concepts like the polluter pays principle and the precautionary principle. This article examines how legislatures, courts, and international organizations are addressing challenges such as biodiversity loss, corporate environmental responsibility, e-waste disposal, and transboundary pollution. It investigates how multilateral treaties, judicial activism, and environmental constitutionalism are changing the definition of environmental rights and duties.
Proof
In India, environmental legislation has developed through a combination of judicial doctrines, statutory laws, and constitutional mandates. These three dimensions are the main part of legal evidence that allows regulators and judges to address new environmental issues like climate change, e-waste, industrial risks, biodiversity loss, and environmental degradation.
The Constitution of India
Constitutional Provision:
After the Stockholm Declaration of 1972, India took several significant legal and institutional steps to protect the environment and integrate ecological concerns into national policy.
42nd Amendment
This amendment contributed significantly to environmental legislation by including important articles 48A and 51A(g) in the Directive Principles of State Policy and the Fundamental Duties, respectively.
48A of the article:
This article is included in the Directive Principles of state policy The States must try to protect the environment, according to this paper. It also emphasizes how crucial it Is to conserve the country’s forests and wildlife. The State is required by Article 48A to take a number of measures to restraint environmental pollution.
51A(g) of the article:
Article 51A(g) states that every Indian citizen is responsible for protecting and enhancing the natural environment, which includes rivers, lakes, forests, and wildlife. This article also highlights the importance of being kind to all creatures. As a result, we must defend the environment from pollution and improve its quality.
Article 21:
Although the Constitution was originally intended to protect life and personal liberty, modern judicial interpretation now encompasses the right to clean air and access water as fundamental rights.
Article 19(1)(g) :
Citizens are prohibited from participating in any business or professional activities that jeopardize the public, as stated in Article 19(1)(g).
Article 47:
This article imposes a duty on the State to improve citizens’ living standards through healthcare, good nutrition, sanitation, and environmental safeguards for safe living.
Article 253:
-According to this article, Parliament has the power to pass laws for the country to implement any treaties or accords made with other countries. Along with this measure, Parliament approved a number of other laws to protect and defend the environment, including the Water (Prevention and Control of Pollution) Act of 1974, the Air Act of 1981, and the Environmental Protection Act of 1984.
Statutory legislation
-Indian Forest Act of 1927.
There are 86 sections to the Indian Forest Act of 1927. The sections, which discuss different facets of forest management and conservation, are divided into thirteen chapters. The Act describes the methods for reserving forests, overseeing protected forests, and controlling the movement of forest products. Additionally, it discusses the penalties for infractions and the authority of forest officials.
-The Wildlife Protection Act of 1972:
There are 66 sections in the Wild Life (Protection) Act, 1972. Seven chapters and six schedules are added to these sections. Wildlife protection is addressed in the Act on various levels, including the establishment of authorities, safeguarding specific plants, establishing national parks and sanctuaries, managing the trade in wild animals, and investigating crimes.
The protection of wild animals, birds, and plants, as well as related issues, is provided for by this legislation. It regulates the trade in wildlife goods, establishes protected regions such as national parks and sanctuaries, and regulates hunting.
-The Water Act, 1974;
There are 64 sections in this legislation. This legislation was passed to establish Boards to oversee the prevention and control of water pollution and other related issues. The Act was amended twice, first in 1978 and then in 1988.
This legislation seeks to maintain or restore water’s wholesomeness, as well as prevent and manage water pollution. It creates the institutional framework for pollution control boards at the central and state levels, grants them the authority to establish standards for water quality and effluent discharge, and regulates polluting sectors.
-The Air Act, 1981;
There are seven chapters in the 54-section Air Act of 1981.
Similarly to the Water Act, this law aims to regulate and prevent air pollution. It gives pollution control boards the authority to monitor emissions from cars and industries, as well as to enforce air pollutant standards.
-The Environment (Protection) Act of 1986
The environmental protection law or EPA, which became lawful after 1986, is dedicated to protecting and improving the environment.
This legislation consists of four chapters and twenty-six sections.
The United Nations Conference on the Human Environment, which took place in Stockholm in June 1972 (Stockholm Conference), where India took part in discussions about how to improve the human environment, is where the EPA was enacted.
-The Biological Diversity Act 2002
It is divided into 12 chapters and has 65 sections.
The legislation aims to protect biodiversity, guarantee its sustainable use, and equitably share the advantages of utilizing biological resources and related information.
Judicial Principles:
The Indian judiciary has created doctrinal mechanisms to address legal voids when laws cannot keep up with rapidly evolving environmental concerns.
Three main principles-
Precautionary Principle
The precautionary principle is crucial in assessing the sustainability of the development process. The precautionary principle supports the sustainable development, which holds that development and actions should be halted and prevented if they result in significant and irreversible environmental harm.
The precautionary principle’s fundamental components are:
– The state government’s and statutory authorities’ environmental actions must be anticipated, prevented, and directed against the causes of environmental deterioration.
– The “onus of proof” lies with the developer or industrialist to demonstrate that their actions are environmentally sustainable.
– The concern or risk potential also needs to be considered in addition to the suspension or concentrate damages when deciding whether to implement precautionary measures.
Principle of Polluter Pays
The phrase “polluter pays principle” has gained popularity lately. The core of this idea is that “if you create a mess, it is your responsibility to clean it up.”
The Rio Declaration, which was ratified in 1992, also recognizes the polluted principle. According to this principle 16 of the declaration’s national authorities should not discourage the use of economic instruments or the internationalization of environmental costs, provided that the polluted are considered to be the principal bearers of the costs of pollution, that public interest is taken into account, and that international trade and investment are not harmed.
The principle states that those who cause pollution should cover the expenses associated with it before a pollution control system is put into place.
It’s Important to note that the polluted principle in environmental law favors a remedial approach that aligns with repairing environmental harm rather than assigning blame. When a polluting party is held accountable for harm caused to the entire environment.
Public Trust Doctrine
The doctrine of the public trust was created by the Roman law. India’s Public Trust Doctrine is a crucial environmental legal concept that asserted government holds certain natural resources, including air, water and forest, in trust for the public good. This implies that the government must take on the role of trustee, safeguarding these assets and guaranteeing that they are accessible to both current and future generations. The principle restricts the government’s ability to utilize these assets for commercial gain and imposes a responsibility to protect them for the benefit of the public.
Case laws
M.C. Mehta v. Union of India AIR 1987 SC 965
Case Facts:
-On December 4, 1985, there was a significant oleum gas leak at one of Shriram’s fertilizer facilities. The leakage had a direct physical effect on both the outside visitors and the workers. A lawyer who practiced at the Tis Hazari Court passed away after inhaling oleum gas.. A small quantity of oleum gas passed through a pipe junction two days later, on December 6, and both the petitioner and the Delhi Bar Association acknowledged the reality. M. C. Mehta, a well-known attorney, petitioned the Supreme Court for “public interest litigation” in accordance with Article 32 of the Constitution.
P.N. Bhagwati represented the Supreme Court. In this case, the concept of “absolute liability” was established, and the defendant was required to recompense the families of the deceased. The Shri Ram Foods management was ordered by the court to provide Rs. 20 lakhs as security for the victims’ damages. Such businesses had to be surrounded by a green belt that was between one and five kilometers wide.
To assist the judge in making decisions in environmental matters, the Central Government was instructed by the court to create an Environmental Court with a judge and two experts in ecological sciences research . The National Environment Tribunal Act of 1995 was passed by the Indian government in response to the proposal to address environmental pollution.
Vellore Citizens Welfare Forum v. Union of India & Ors. AIR 1996 SC 2715
-In this case, 900 tanneries in five districts of Tamil Nadu were discharging large amounts of untreated effluent into open land, agricultural fields, and roadside waterways, contaminating 170 different chemicals. As a result, the water in the region was unsuitable for drinking and irrigation, and around 35,000 hectares of land became partially or completely unfit for farming.
Justice Kuldeep Singh, popularly known as a green judge, rendered the ruling. The Court acknowledged that these tanneries in India are the country’s primary source of foreign exchange and that they provide work to tens of thousands of people. However, it also poses a health risk to everyone and harms the environment. The court held that all the tanneries to pay a fine of Rs. 10,000 at the Collector’s office after ruling in favor of the petitioners.
M.C. Mehta v. Kamal Nath & Others(1997) 1 SCC 388
-This case, commonly referred to as the Span Motel case, involved the court’s ruling that those who harm the environment must pay to mitigate the harm caused by their actions. The court determined that the motel should compensate the area’s environment and ecology by covering the cost of restoration after it was demonstrated that model administration had altered the river’s course to protect the motel from future environment and ecology.
Conclusion
Due to climate change, pollution, and technological advancements, environmental law is currently dealing with complex and changing issues. Legal systems must change through enhanced enforcement, revised legislation, and nature-centric methods to safeguard the environment and future generations. Key to developing a fair and sustainable environmental future are concepts like public trust and polluter pays, as well as judicial activism.
FAQS
What are the main environmental issues facing the 21st century?
The primary environmental issues are:
Change in the climate, Deforestation, Erosion of soil ,Pollution of air and water ,Hazardous and industrial waste ,Electronic waste (e-waste) ,Microplastics ,Loss of biodiversity.
In India, what are the important constitutional provisions pertaining to environmental protection?
Key constitutional articles in India for environmental protection include:
Article 21,Article 48A ,Article 51A(g),Article 253, Article 47, Article 19(1)(g)
What are the three main judicial principles applied in environmental law?
Precautionary Principle: The precautionary principle supports the sustainable development, which holds that development and actions should be halted and prevented if they result in significant and irreversible environmental harm.
Polluter Pays Principle: if you create a mess, it is your responsibility to clean it up.
The Public Trust Doctrine – As a trustee of natural resources, the State has a duty to safeguard them for the public.
