“We are the first generation to feel the effect of climate change and also the last generation who can do something about it.”[i] In these few words by Barack Obama, we find both a wake up call and a resounding call to arms. In India, climate change has grown to be a significant problem in recent years. It is clear that climate change poses risks. India is one of the nations that suffers significantly from the effects of global warming, which is one of the main causes of climate change. It will also have an effect on India’s social and economic development. In India, several laws and regulations have been implemented to tackle climate change, and even the court contributes to the preservation of the environment. The notion of climate change, its impact on India, climate-related policies and legislation, and the judicial reaction to climate change are all examined in this article.
WHAT IS CLIMATE CHANGE?
Climate change refers to long term alterations in the average of both global and regional weather patterns, including temperature, precipitation, and wind patterns. Sometimes, climate is mistaken for weather while the former is measured for a very long period of time whereas, latter can change from day to day or year to year. Such shifts in climate pattern can be natural due to large volcanic eruption or change in sun’s activities or it can be through some anthropogenic factors like burning fossil fuels and coal.[ii]
HISTORICAL PERSPECTIVE
Environmental protection and keeping the ecological balance intact is not only a task that must be done by state, but also by every individual, association and enterprise. It is a social and fundamental duty enshrined in Article 51 A (g) of the Constitution of India[iii]. Environment awareness has existed even in pre-vedic indus valley civilization that flourished in northern part of India, around 5000 years ago. India was the first country to amend its constitution, allowing the state to protect the environment safeguarding health, forest and wildlife. The Shore Nuisance (Bombay and Kolaba) Act of 1853 was the first law concerning water pollution in India, it gave authority to the collector of land revenue in Bombay to restrict any nuisance below the high water mark in Bombay harbours.[iv]
India has a long history of making environmental laws, with the codification of acts like the Indian penal code of 1860, the fisheries act of 1897, the Indian motor vehicle act of 1988, the Bengal smoke nuisance Act of 1905, the factories act of 1897, the mines and minerals act, the forest(conservation) act of 1980 etc. are some important legislations that had been enacted during the colonial era.[v]
EVOLUTION OF LEGAL FRAMEWORK FOR ENVIRONMENTAL PROTECTION
I. PRE INDEPENDENCE:
The ancient Indian religious texts regard sun, air, fire, water, earth and forest as god and Goddesses and preached a worshipful attitude towards them. During the colonial era Indian penal code of 1860 was enacted, which contains a chapter (Chapter XIV) dealing with offences concerning public health, safety, convenience, decency and morals. Section 277 of this Act states that whoever, voluntarily corrupts or fouls the water of any public spring or reservoir, so render it less fit for ordinary purpose, shall be punished with imprisonment or fine, or with both[vi]. Section 278 states that whoever voluntarily pollute the atmosphere so as to make it noxious to the health of persons, shall be punished with fine which may extend to Rs.500. though, they are not so rigid in nature an accused can be set free before the trial on bail if court deems fit.[vii]
During the colonial rule, Municipal and public health Acts are on the pattern of UK’s Local Authorities Act, local authorities have the power to take necessary action against the erring industries. This act prohibits the discharge of any pollutants from the factory into the municipal drains and also discharge of untreated sewage into the water bodies. Although, these laws were only applicable to large industrial cities or municipal towns.[viii]
II. AFTER INDEPENDENCE:
Indian Constitution has a federal structure. Part XI of the constitution divides the legislative and administrative authority between the centre and states. Further, Subject area for legislation are divided into three lists, viz, Union List, State List and Concurrent List[ix]. The subject area related to environment protection are:
A. Union List
14 Entering agreements with foreign countries and implementation of agreements, treaties and conventions with foreign countries
56 Regulation and development of rivers and river valley.
57 Fishing and fisheries beyond territorial waters
B. State List
14 Agriculture
17 Water, water supplies, irrigation and canals, drainage and embankment, and water power
18 Land
21 Fisheries
C. Concurrent List
17A – Forests
17B – Protection to wild animals and birds
20 Economic and social planning
29 Prevention of the extension from one State to another of infecting or contagious diseases or pests affecting, men, animals or plants
32 Shipping and navigation on inland waterways as regards mechanically propelled vessels
36 Factories
LEGISLATIONS PASSED BY PARLIAMENT TO COMBAT CLIMATE CHANGE
The Factories Act, 1948
The Prevention of Food Adulteration Act, 1954
The River Boards Act, 1956
The Mines and Minerals (Regulation and Development) Act, 1957
The Atomic Energy Act, 1962
The Insecticides Act, 1968
The Wild Life (Protection) Act, 1972
The Water (Prevention and Control of Pollution) Act, 1974
Forest (Conservation) Act, 1980
The Air (Prevention and Control of Pollution) Act, 1981
The Environment (Protection) Act 1986
The Public Liability Insurance Act, 1991
The National Environment Tribunal Act 1995
THE NATIONAL ACTION PLAN ON CLIMATE CHANGE (NAPCC)
Introduced in the year 2008, National Action Plan on Climate Change (NAPCC) strives to raise awareness of the risk posed by climate change as well as the methods to counter it among members of the public, various government agencies, scientists, industry, and communities. The NAPCC comprises of eight national missions, together they offer multifaceted, long-term, integrated strategies for attaining important climate change objectives[x]. Which are:
- National Solar Mission
- National Mission for Enhanced Energy Efficiency
- National Mission on Sustainable Habitat
- National Water Mission
- National Mission for Sustaining the Himalayan Ecosystem
- National Mission for A Green India
- National Mission for Sustainable Agriculture
- National Mission on Strategic Knowledge for Climate Change
ENVIRONMENT AND INDIAN CONSTITUTION
The Indian Constitution is one of the few in the world that contains specific provisions regarding environment. The chapters on Fundamental Duties and Directive Principles of State Policy expressly state the nation’s commitment to preserving and enhancing the environment Article 21 states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”[xi] In Subhash Kumar v. State of Bihar[xii] and Virendra Gaur v. State of Haryana[xiii], SC recognized the right to Healthy environment that are implied by Article 21. Now, all High Courts have recognized an environmental dimension to Article 21 by following the Supreme court’s lead.
42nd amendment to the constitution of India in the year 1976 added introduced Section 48A and 51A(g) under the directive principle of State policy and the Fundamental Duties respectively. Supreme Court in Sachidanand Pandey v. State of West Bengal[xiv] stated that whenever there is a case related to environmental problem is brought to the court, it is bound to adhere the said articles.
Article 48A states that “the State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country.”[xv]
Article 51A(g) imposes a duty to every citizen of India, to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures.[xvi]
In Damodar Rao v. S.O. Municipal Corporation[xvii] supreme court held that pollution and spoilation which is slowly poisoning and polluting the environment should be regarded as violation of fundamental rights under Article 21 of the Indian Constitution.
JUDICIAL EFFORTS TO COMBAT CLIMATE CHANGE
It is impossible to discuss the development of environment jurisprudence in India without discussing the contribution of public spirited lawyer, who brought four different cases before the Supreme Court in accordance with Article 32 of the constitution and assisted India in making significant advancements in the field of environmental conservation[xviii]. The cases were:
TAJ TRAPEZIUM CASE:
Taj Mahalis one among the 7 wonders of the world, one of the best examples of Mughal architecture to have ever existed in India. The marble, however, had become yellow and was decaying as a result of the chemical pollution from the adjacent factories, leaving it in a pitiful situation. A petition was submitted for the same, before the Supreme Court.[xix]
The apex court observed that apart from chemicals, Socio- economic factors too influence the degradation of taj mahal. Court, by applying the principle of sustainable development, realised the necessity to draw a line between economic development and environment protection. Furthermore, the Apex court recognized two more principles known as the Polluter Pays Principle and the Precautionary Principle.[xx]
THE GANGA POLLUTION CASE[xxi]:
Ganga pollution case also known as the Kanpur Leather Tanneries case is one of the 1st River pollution case in India to emerge in environmental public interest legal proceeding. In addition to paper and textiles, tanneries are one of the three essential sectors, and Kanpur has been a major hub for this industry for more than a century. The majority of those tanneries are located outside of Kanpur on the southern banks of the Ganga and are quite polluting. Kanpur is one of the largest contributors to the significant pollution load entering in the Holy river Ganga. The Court directed the tanneries to establish primary treatment plants. Apart from that, court directed the government to mandate all educational institution to teach, lessons relating to protection and improvement of natural environment, atleast 1 hour a week[xxii].
OLEUM GAS LEAK CASE:
In December 1985, there was an escape of oleum gas from one of the factories i.e. Shriram Food and Fertiliser Industries plant, situated in Kirtinagar, Delhi. This incident resulted in severe harm to the people, residing nearby, as they were exposed to the gas. The event sparked questions about the factory’s safety and environmental policies as well as its possible effects on the neighbourhood.[xxiii]
Supreme Court of India established the “Absolute Liability Principle” in the MC Mehta v. Union of India case, which stated that the rule of absolute liability would be applied in the case of industries like Shriram that are engaged in inherently dangerous activities, i.e., any industry that causes harm to the environment or the people through any accident and engaged in hazardous activities would be held absolutely liable.[xxiv]
VEHICULAR POLLUTION CASE:
A writ petition filed by M.C. Mehta in which he urged the Apex court to look into the matter of vehicular pollution. He also presented some literature and gadgets to reduce vehicular pollution.[xxv]
The Apex court held that everyone who drives a car should be reasonably aware of the harm that their vehicle’s emissions do to the environment. Environmental contamination may be reduced effectively by increased awareness.
A committee was established to look into Delhi’s vehicular pollution issue and identify solutions, comprising of M.C. Mehta (the petitioner), the Chairman of the Central Pollution Control Board, and a representative of the Association of the Indian Automobile Manufacturers. It was also presided over by a former Supreme Court judge.[xxvi]
RURAL LITIGATIONS AND ENTITLEMENT KENDRA V. STATE OF UTTAR PRADESH[xxvii],
also known as the “Dehradun Valley Case” a petition was filed in the Apex Court, regarding the functioning of lime-stone quarries in Mussoorie Hill range. The argument was that the quarries endanger the ecosystem and have an impact on the perennial water springs .Additionally, it had a negative impact on the vegetation and caused landslides, which killed locals and ruined homes, herds of livestock, and agricultural grounds. The concept of sustainable development in India was born as a result of this verdict. the SC ordered the closure of mining operations in the Doon Valley, holding that closure would be difficult for the parties affected but was necessary to protect and safeguard the rights of the people to live in a healthy environment with little disruption of ecological balance. It also ordered that the affected areas be reclaimed and reforested.[xxviii]
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION VS. UNION OF INDIA
The Indian Council for Enviro-Legal Action, petitioner in this case, filed a lawsuit to stop multiple proposed chemical industrial projects in village, Bichhri, in the Udaipur District of rajasthan. The suit was filed to forbid and remediate the pollution brought on by large industrial operations that generated oleum, single super phosphate, and the extremely poisonous “H” acid, among other substances. Large-scale contamination was caused by these factories’ illegal operation and the poisonous waste’s untreated disposal.[xxix]
Since the industries had purposefully disobeyed the court’s orders, which had a major negative impact on the lives of a sizable number of citizens around the facilities, the judges imposed a penalty on the industries that had to be paid with compound interest. According to the court, if a harmful activity is carried out, the people carrying out the activity must pay compensation to those affected in order to make up for the harm that is caused, regardless of whether precautionary measures were taken in carrying out the activity. This decision was the well-known application of the “polluter pays” principle[xxx].
CONCLUSION
In conclusion, this article has shed light on India’s nuanced and intricate system of climate change legislation. India, one of the largest and fastest-developing countries in the world, is at a pivotal point in its response to the problems of climate change as our planet faces an ever-pressing environmental catastrophe.
We have learned via a thorough analysis of the legal system that India’s response to climate change is a patchwork of dispersed and frequently reactionary actions. A comprehensive and integrated legislative approach is still being developed, despite the country’s substantial progress in recognising the gravity of the problem and aligning its policies with international climate targets.
Climate change impacts every aspect of civilization and is not only a threat from the future. As a result, it needs a proactive and thorough legal framework that goes beyond fragmented initiatives. This transition need strong legal enactments that demonstrate the country’s dedication to reducing climate change, coping with its effects, and adopting sustainable practises.
[i] Remarks by President Obama at the First Session of COP21, available at https://obamawhitehouse.archives.gov/the-press-office/2015/11/30/remarks-president-obama-first-session-cop21 (Last visited on September 18, 2023).
[ii] What is climate change, available at https://www.un.org/en/climatechange/what-is-climate-change (last visited on September 18, 2023).
[iii]The Constitution of India, art. 51A (g).
[iv] Legislation history, available at https://www.lse.ac.uk/granthaminstitute/explainers/what-is-climate-change-legislation/ (last visited on September 18, 2023).
[v] Legislations, available at https://envis.haryana.gov.in/important-climate-change-laws-in-india/ (last visited on September 19, 2023)
[vi] The Indian Penal Code, sec. 277.
[vii] The Indian Penal Code, sec. 278.
[viii]Evolution, available at https://www.ecology.edu/environmental (last visited on September 19, 2023).
[ix] The Constitution of India, art. 246.
[x] National action plan on climate change, available at https://www.drishtiias.com/to-the-points/Paper2/national-action-plan-on-climate-change (last visited on September 19, 2023).
[xi] The Constitution of India, art. 21.
[xii]Subhash Kumar v. State of Bihar, A.I.R 1991 SC 420,
[xiii] Virendra Gaur v. State of Haryana, (1995) 2 SCC 577.
[xiv] Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109.
[xv] The Constitution of India, art. 48A.
[xvi] The Constitution of India, art. 51A (g).
[xvii] Damodar Rao v. S.O. Municipal Corporation, AIR 1987 AP 171.
[xviii]Trapezium case, available at https://primelegal.in/2023/01/22/taj-trapezium-case/(last visited on September 19, 2023).
[xix] M.C. Mehta v. U.O.I., 1987 SCR (1) 819
[xx] Taj mahal case, available at https://lawcorner.in/taj-trapezium-case-m-c-mehta-v-union-of-india-1986/(last visited on September 19, 2023).
[xxi] M.C. Mehta v. U.O.I., AIR 1988 SC 1037
[xxii] Ganga pollution case, available at https://lawyersgyan.com/blog/case-summary-on-m-c-mehta-v-union-of-india-ganga-pollution-case/(last visited on September 19, 2023).
[xxiii] AIR 1987 SC 965
[xxiv] Oleum gas leak case, available at https://blog.finology.in/Legal-news/oleum-gas-leak-case(last visited on September 19, 2023).
[xxv] 1991 SCC (2) 353
[xxvi]Vehicular pollution case, available at https://www.ourlegalworld.com/m-c-mehta-vs-union-of-india-1991-vehicular-pollution-case/(last visited on September 19, 2023).
[xxvii] 1985 SCR (3) 169
[xxviii]Doon valley litigation, available at https://thelawexpress.com/rural-litigation-and-entitlement-kendra-vs-state-of-up-case-summary(last visited on September 19, 2023).
[xxix] 1996 AIR 1446
[xxx]Available at https://legalvidhiya.com/indian-council-for-enviro-legal-action-and-ors-v-union-of-india-and-ors/(last visited on September 19, 2023).
Author: Aman Hasan
Juris Centre 