ENVIRONMENTAL LAW
NO |
PARTICULARS |
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UNIT - 1 |
1 |
The idea of Environment Ancient and medieval writings Traditions |
2 |
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3 |
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4 |
Conflicting dimensions |
5 |
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6 |
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7 |
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UNIT - II |
8 |
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9 |
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10 |
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11 |
Conservation Strategy |
12 |
Water policy conservation of natural resources and its management constitution and environment |
13 |
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14 |
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15 |
Role of judiciary on environmental issues |
16 |
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17 |
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18 |
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UNIT - III |
19 |
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20 |
From Stockholm to recent conventions (special emphasis on major conventions and protocols) |
21 |
Control on Marines pollution common law aspects of Environmental protection |
22 |
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23 |
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UNIT - IV |
24 |
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25 |
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26 |
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27 |
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28 |
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29 |
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30 |
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31 |
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32 |
Disposal of waste ; |
33 |
Laws on waste ; |
34 |
Disposal and its control |
35 |
Trans - boundary pollution hazards |
36 |
Regulation Biological Diversity and legal order ; Bio diversity and legal regulation |
37 |
Experimentation on animals; legal and ethical issues |
38 |
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39 |
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40 |
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41 |
Prevention of cruelty against animals |
42 |
Problem in legal regulation of Medicinal Plants |
43 |
The plant varieties Act Wetland conservation |
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UNIT - V |
44 |
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45 |
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46 |
|
47 |
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48 |
Environment impact Assessment |
49 |
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50 |
|
51 |
Environment information |
52 |
|
53 |
UNIT -I
THE IDEA OF ENVIRONMENT
ANCIENT AND MEDIEFAL WRITINGS, TRADITIONS, NATURAL AND BIOLOGICAL SCIENCES - PERSPECTIVES: MODERN CNCEPT, CONFLICTING, RECENT ISSUES - ENVIRONMENT AND SUSTAINABLE DEVELOPMENT NATIONAL AND INTERNATIONAL PERSPECITVES - POPULATION AND DEVELOPMENT.
1.1 INTRODUCTION
In the quest for rapid industrial development over the years, the environmental quality has come to be subordinated to developmental goods. We are now leading towards to the Supreme Court's few recent pronouncements in the direction to improve irreversible environmental damage, due to widespread land degradation, water pollution, air pollution mushrooming growth of slums and population explosion.
The environment which surrounds us and which consists of plants and animals, non-living objects as water, air, light, soil, temperature etc. is being damaged and disturbed, it is in peril. Our genetic composition our whole existence, as also the existence and survival of many animals and plants is threatened.
Meaning of Environment :
The dictionary meaning of the word 'environment' is a surrounding; external conditions influencing development or growth of people, animals or plants; living or working conditions etc.,
"Environment" includes water, air land and the inter-relationship which exists among and between water, air, land, and human beings, other living creatures, plants, micro-organisms and property.
Environment consists of three basic components, viz.,
· abiotic or physical component,
· biotic components,
· energyeomponent.
"Environment" refers to the sum total of conditions which surround man at a given point in space and time. In the beginning the environment of early man consisted of only physical aspects of the planet earth (land, air and water) and biotic compresses but with the march of time and advancement of society man extended his environment through his social, economic and political functions.
Environmental pollution means the presence in the environment of any environmental pollution. Environmental pollutant means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment.
Environmental pollution is a term that refers to all the ways by which people pollute their surroundings. People pollute the air with gases and smoke, poison the water with chemicals and other substances, and damage the soil with too many fertilizers and pesticides. It is one of the most serious problems the humanity is facing today.
Environmental pollution means lowering of environmental quality at local scale caused exclusively by human activities whereas environmental degradation means lowering of environmental quality at local regional and global levels by both, the process and human activities.
It is commonly agreed that pollution is, without doubt, the outcome of urban industrial revolution and rapacious and speedy exploitation of natural resources, increased rate of exchange of matter and energy and every exploitation of natural resources, increased rate of exchange of matter and energy and every increasing industrial waters, urban effluents and consumer goods.
Anthropogenic source of pollution is varied and is the main culprit of environmental pollution. Anthropogenic source of pollution include:
Ø industrial source.
Ø Urban source.
Ø agricultural source.
Ø pollution source etc.
Most of the pollutants came from industrial and urban sectors. The industrial source contributes a host of pollutants such as gaseous pollutant (nitrogen oxide, sulper dioxide, carbon monoxide, hydrocarbon as methane and numerous toxic gases), solid pollutants, dissolved and suspended soils, waste water having numerous chemical ingredients, heat, etc.
Urban sources of pollution contribute sewage water, solid waste gaseous exhaust, liquid effluents, pollutants coming out of chimneys of factories located within the urban centres etc.
Agricultural source of pollution includes the pollutants related to chemical fertilizers, pesticides and insecticides.
Human population is the most important source of pollution because all forms of anthropogenic pollution are the creation of human activities.
The ever increasing population in the developing countries is posing as much as problem of population in the developing countries through industrial growth and urban expansion. Poverty and underdevelopment are yet other sources of pollution.
India has very rich tradition of concern for and protection of environment. The environment includes all parts of nature necessary for health and happiness of man. Nature reserves immense potential to maintain ecological balance. Not only the beauty but the very existence of life depends on nature.
The famous hymn in the world's oldest scripture, the Rig Veda portrays the beauty of the morning and worships its glory. Our ancestors were worshipping the five elements of nature (Fire, Air, Earth, Sky and Water) as panchabutas, because worship was a form of the greatest admiration for them in nature.
Factors of Environmental Problems:
The "Environmental crisis" is caused due to environment and ecological changes as a result of developmental process of the economic and technological man' of the present century.
The most striking reason of the environmental degradation and hence global environmental crisis is the fact of deteriorating relationship between man and environment because of rapid rate of exploitation of natural resources, technological development and industrial expansion.
The rate of environmental change and resultant environment degradation caused by human activities have been so fast and widespread.
Following may be labeled as the major sources of environmental degradation:
a) Deforestation:
Forests are invaluable property of a nation because they provide raw material to modern industries, timber for building purpose, habitats for numerous types of animals and micro-organisms. Good fertile and nutrient-rich soils through the network of their roots and by protecting the soils from direct impact of falling raindrops.
They encourage and increase infiltration of rainwater and thus allow maximum recharge of groundwater resources, minimize surface run-off and hence reduce the frequency, intensity and dimension of flood.
The major causes of deforestation at global and regional levels are conversion of forest land into agricultural land, shifting cultivation, transformation of forests into pastures, overgrazing, forest fires, lumbering multipurpose river projects etc.,
b) Technological Development:
The nature of productive technology in recent years is closely related to the environmental crisis. The irony of the situation is that the more the economic and industrial development in the world, the more dangerous to the environment.
c) Agricultural Development:
Agricultural development means expansion of agricultural land increase in agricultural productivity and net agricultural production. It is due to development of modern scientific techniques, advanced technologies, increased production and use of chemical fertilizers, expansion in irrigational facilities, development of high-yielding varieties of seeds, etc.
d) Population Growth:
Growth of human population at alarming rate is the most significant of the lowering of environmental quality and ecological balance. For ex; industrial expansion, urban growth, agricultural development, increase in means of transport and communication, etc. Are results of population growth because the people must generate better facilities for their existence and better life?
The problem of population having very personal nature has long been a very emotional issue. However, there is a direct relationship between increase in population numbers and environmental impact.
e) Industrial development:
Rapid Industrial Development has given economic prosperity to human society. It has also given new dimension to socio-economic structure and has provided material comfort to the people of industrially developed countries but it has also created manifold environmental problems.
Exploitation of natural resources in order to meet the industrial demand of raw materials has resulted into:
v the reduction of forest covers due to reckless falling of trees,
v excavation of land for mining purposes,
v reduction in arable land due to industrial expansion,
v lowering of groundwater level due t excessive withdrawal of groundwater,
v collapsing or ground surface due to withdrawal of mineral oil and groundwater;
f) Urbanization :
Exodus of population from rural areas to urban centre and origin and expansion of new urban centers due to industrial expansion and development are responsible for rapid rate of exploitation of natural resources and several types of environment degradation and pollution in the developed and developing countries.
The level of urbanization in the developed countries of the world has already reached its peak. The accumulation wealth and availability of more economic and job opportunity in the urban centers have resulted into the concentration of population in the congested metropolitan areas and thus the formation and growth of big slum areas.
The development of modern technologies has definitely created most of the present day environmental problems. Environmental crisis is thus the inevitable result of a counter ecological pattern of productive process concerning in synthetic and non-biodegradable materials.
Modern techniques have enabled the man to construct huge dams and reservoirs for the purpose of irrigation and generation of hydroelectricity which is immensely required by the industrial sector to augment the producing process and by the domestic sector to increase the comfort of human beings.
Leakage of toxic gases from chemical plants not only pollutes the air but also causes deaths of human beings, plants and animals and causes impairment of human bodies for several years even for few generations.
The Bhopal Gas Tragedy of December, 3-4-1984 is the fittest example of lethal effects of the failures of modern technology. Numerous toxic industrial wastes also cause serious environmental problems.
h) Coal burnt Thermal Power Plants:
Power Plants either in public or private sector mainly use coal for generation of electricity. About 62% of the coal produced in our country is utilized for generation of electricity which accounts of 65% of power generation. This process results in the accumulation of various by-products such as bottom ash, boiler slab and fly ash.
i) Poverty:
It is true that poor cause damage to environment. Due to poverty the people exploit excessively the natural resources of the country for meeting their basic needs (food, fuel, shelter, employment fodder for their cattle).
Poverty and need are indeed the greatest pollutes as told by late Mrs. Indira Gandhi in her address to the Stockholm Conference. Hence, necessary steps should be taken to bring the poor people above the poverty line.
In the primitive ages of human civilization the man was in the state of nature. The man was roaming up and down in the forests, without speech without any industry and without home. In other words the man was depending on the nature in its absolute terms.
The growth of culture and civilization has to be made from perspective of the fullness of reality; there is nature at large and the man enlarging his self at the expense of nature.
Thus, pollution is innate urge in the cosmic cause. Releasing its energy for creation is pollution of the first cause. It is cosmic inheritance of the creature, and the fall of Adam in the Genesis in the Holy Bible, is testimony of the creative urge for self pollution which explains the creation with regard to the first cause and procreation with regard to any creature, through pollution with reference to ecology is entirely different, since it is a pollution neither of the creator has of the creature but pollution of nature, the very creative stuff of material cause, of the universe and all that which is human artifice.
Environmental Ethics and Ancient India:
India has a long tradition of protection and worshipping the nature. The land, trees and even animals are placed on a high pedestal since Vedic times.
According to ancient Indian mythology the God prevails the whole universe. This point of view has helped Indian to maintain a constant link with nature. The concept of divine world is based on the principle that God creates divine forces to run the universe.
The concept of Panchavati is the conclusive proof of the importance which has been given to the Forest in Ancient India. The word Panchavati is found in the vocabulary of all Indian languages which confirms that the tradition to protect forest pervading the whole country sine primitive ages.
Religion and Environment Protection:
Religion is commonly pertains to the spiritual domain while the science and technology are viewed as systems pertaining to the material domain.
Issue of material development and progress has, therefore, been left to the change of scientific experts while religious belief has been left to guide the inner spiritual development of the individuals.
All major religions view that man is only one among many creatures to enjoy nature's beauties and bounties. Nature is given to him in trust so as to make wise and responsible use of it.
No religious justifies the destructive attitude of modern man which has developed towards his environment.
Hindu Mythology on Environment Protection:
Hindu religion is one of the oldest religions of the world. Every since Vedic times, the main motto of social life was to have in harmony with the nature.
Sages, saints and the great philosophers of India lived in forests and on mountains where they meditated and expressed in the form, of Vedas, Upnishads and Smrities. It was perched of that in one form or other a worshipful attitudes towards the earth, sky, air, water, trees plants and animals and to keep a benevolent attitudes towards these.
The Hindu religion and law enshrined respect for nature and environmental harmony and conservation. It insured man to show reverence for the presence of divinity in nature.
Accordingly, feeling of trees, polluting air, water and desert land was regarded as sin as these were to be respected and regarded as God and Goddesses. Maintaining these purpose pure was the duty to every one. Our ancestors considered it as their pious duty to save trees and in order to do so they accorded every tree have religious sanctity.
Trees and plants had been regarded as indispensable in the life of human being and considered as the abode of various Gods and Goddesses. Some of the trees associated with the Gods and Goddesses may be either to support this point of view.
Name of Tree/Plants Name of Gods/Goddesses
Lotus Laxmi (Goddess of wealth)
Vat (Banyan) Brahma (Creator of Universe)
Ashoka Buddha, Indra
Kadamb Krishna
Palasa Brahms, Gandharva
Neem Sitala, Manasa
Mango Laxmi, Goverdhan
Papal Vishnu, Krishna
Buddhism and Environmental Protection:
Buddhism cameinto existence as religion by the end of vedic period. The fundamental tenets of the Buddhism are truth, non-violence, respect and love for living organism including trees and plants. Buddhism also emphasized very much over the rational use of natural resources by the man.
The teaching of Buddha enjoins a reverent and non-violent attitude not only to all sentient beings but has also emphasized on trees. Every follower of Buddha ought to plant a tree every few years and look after it until it is safely established.
The Buddhist follower emperor Great Ashoka promoted the planting and preservation of flora and funa. He prescribed various punishments for hunting the creatures, like ants, squirrels, rats, birds, and for cutting of trees also.
Jainism and Environmental Protection:
Jain religion maintaining harmony between men and nature, man and man but lays down even greater stress on minimum destruction of living and non-living resources for man's satisfaction of material needs.
Ahimsa is the foundation of the Jain religion. Jainism prohibits the eating of any kinds of meat. In Jainism Ahimsa has been given the greatest importance and has been called the highest virtue.
Sikhism and Environmental Protection:
Sikhism emerged as a school of religious though in the recent in India. It has demonstrated through performance of its followers, the most laudable virtues of protecting and enriching the natural environment, making the most efficient use of natural resources, for man's sustained benefits in terms of food, nutrition, health and good living and developing the true spirit of partnership and sharing in community life.
According to Guru Nanak Dev, the immanent spirit of the God is continuously present in nature and nature is in direct and constant dependence upon His will. He is beyond the creation in the sense that while nature and human beings depend on Him.
Islamic Mythology and Environmental protection:
In the Islamic perspective, the environmental and ecological activities are seen as a subject matter of a wider human effort to usher in a just and peaceful society. Peace with nature based on divine ethical principles which are immutable.
According to the Islamic thought, these principles are required to be understood and followed by men in general so that there may not be any imbalance between men and nature.
The Holy Quran also refers the rules and regulations for their proper and meaningful use and directions, not to disturb the balance between the different elements and forces of nature.
Hence, the primitive people of India always treated the plants and trees as a part of their families. We should not deviate from the part of our forefathers regarding the environment protection.
STOCKHOLM CONFERENCE, 1972
The U.N Conference of the Human Environment held at Stockholm from June 5 to June 16, 1972 may rightly be reckoned as the first major attempt to solve the global problems of conservation and regulation of human environment by international agreement on a Universal level. It mobilized and concentrated the attention of the international co-operation for environmental conservation.
The main contribution of the Stockholm Conference of 1972 on the Human Environment Comprises of:
a) The Declaration on the Human Environment;
b) The Action plan for the Human Environment;
c) The Resolution on Institutional Financial Arrangements;
d) Resolution on Designation of a World Environment Day;
e) Resolution on Nuclear Weapons Tests;
f) Resolution on the convening of Second Conference;
g) Decision of refer to Governments recommendation for action at the national level.
India was also a signatory to the resolutions passed at this Conference.
The Declaration on the Human Environment:
Contained in Sec.1 of the Report of the United Nations Conference on the Human Environment the Declaration on the Human Environment is one of the most significant achievements of the U.N. Conference on the Human Environment, 1972.
The declaration is divided in two parts:
1. proclaims seven truths about man in relation to his environment;
2. enunciates 26 principles;
The first part contains general observations such as that man is both creature and molder of his environment which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. The protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world.
Part II of the Declaration contains;
Principle 1 which is of general nature states that man has the fundamental rights to freedom. Equality and adequate conditions of life, environment of a quality that permits a life of dignity and well-being, and bears a solemn responsibility to protect and improve the environment for present and future generations.
Principle 2 states that the natural resources of the earth including the air, water, land, flora and fauna and especially representative samples of natural ecosystems must be safeguard for the present and future generations through careful planning or management as appropriate.
Principle 3 states that the capacity of the earth to produce vital renewable resources must be maintained and wherever practicable restored or improved.
Principle 6 states that the discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious or irreversible damage is not inflicted upon ecosystems. The just struggle of the people of all countries against pollution should be supported.
Principle 7 states that all possible steps to prevent pollution of the seas by substance which are liable to create hazards to human health, to harm living resources and marine life to damage amenities or to interfere with other legitimate uses of the sea.
Principle 8 Economic and social development is essential for ensuring a favorable living and working environment for man and for creating conditions on earth that are necessary for the improvement of the quality life.
Principle 20 Scientific research and development in the context of environmental problems, both national and multinational must be promoted in all countries, especially the developing countries.
Principle 21 and 22 are particularly important for they proclaim certain principles international law respecting environmental preservation.
Principle 26 states that man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. States must strive to reach prompt agreement in the relevant international organs, on the elimination and complete destruction of such weapons.
1.6 EARTH SUMMIT OR RIO DECLARATION 1992
The Earth Summit or United Nations Conference on Environment and Development was held at Rio de janeiro, Capital of Brazil, from June 3 to June 12, 1992. It was the largest International conference in the history of International relations and International Law.
It was attended by 178 nations. More than 20,000 participants attended the conference. The primary session was attended by 130 heads of State and Government.
The Earth Summit is the culmination of series of U.N. conferences beginning with the Stockholm Conference on Human Environment in 1972.
Industrialized countries degrade the environment by instable consumption of resources and intense production of wastes, while high fertility and rapid population growth in many developing countries put damaging pressure on the plant combined, such human demands are undermining the world's natural resources base, land, water, and air upon which all development depends. These issues are, therefore, not only environmental but also economic.
Some of the main issues confronting the Earth Summit or UNCED were financers; technology transfer, institutional frame work, climate change, forests biological diversity and sustainable development.
Six issues on which North and South expressed divergent view were Greenhouse gas emission. Forests pollution, Technology transfer, Finance and Degradation. Besides the man issue of funding environmental programmes outline in Agenda 21, other major achievements of the UNCED include a convention on Biodiversity, a convention on climate change, a convention on forestry, and Earth Charter or Rio-Declaration.
Rio-Declaration contains 27 principles or points concerning almost all countries of the global community and enlisting general rights and obligations on environmental protection.
The more important of the principles of Rio-Declaration are as follows;
Principle 1 Human beings are at the centre of concerns for sustainable development. They are entitled to healthy and productive life in harmony with nature.
Principle 2 states that, in accordance with the chapter of the U N and the principles of International Law, the sovereign right to exploit their own resources pursuant to their own environmental policies and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.
Principle 3 the right to development must be fulfilled as to equitably meet development and environmental needs of present and further generations.
Principle 4 in order to achieve sustainable developments, environmental protection, shall constitute an integral part of the development process and cannot be considered in isolation from it.
Principle 7 states shall co-operate in a spirit of global partnership to conserve protect and restore the health and integrity of the earth's ecosystems.
Principle 10 environmental issues are best handled with the participation of all concerned citizens at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision making processes.
Principle 11 states shall enact effective environmental legislations, environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply.
Principle 13 states shall develop national law regarding liability and compensation for the victims or pollution and other environmental damages. States shall also co-operative in an expeditious and more determined manner to develop further International Law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to area beyond their jurisdiction.
Principle 17 environmental impact assessment, as a national instrument shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.
Principle 19 states shall provide prior and timely notification and relevant information to potentially affected states on activities that may have a significant adverse trans-boundary environmental effect.
Thus, the road from Rio is pointing in the direction hope, it is for the nations both the developed and the developing to bring it to fruition so as to ensure the world, safe for the present and further generations.
The concept of sustainable development has taken a concrete stage because natural resource base is continually under a state of stress and degradation. The concept of sustainability lies in maintaining harmony between meeting basic human needs along with emphasis on protection and conservation of natural resources.
The World Commission on Environment and Development 1987 considered sustainable development as the ability to meet the needs of the present generation without compromising the ability of future generations of meet their needs.
Hence, the earth, ecology and environment are the three central concerns of sustainable development. Now-a-days challenges before us are not only how to exploit our natural resources but also how to conserve and sustain our environment.
Human beings are increasingly anxious about the life - support systems and about the quality of their environment.
The side effects of resources used are now far more widely acknowledged than a generation ago. The state of environment and the use of environmental resources have become political issues at local national and international levels.
As a result of unprincipled use of natural resources, the component of environment is getting impaired raising threats to survival of human being. Industrial countries are responsible for much of the global environmental problems such as potential changes in temperature, precipitation sea level and incidence of ultraviolet radiation.
The house gases e.g., CO2 (62%) Ch4 (14%) have considerably increased during recent years and it is likely to go up further. These green house gases are increasing 1.5ppm per year on global basis.
UNIT - II
ENVIRONMENTAL POLICY AND LAW: ENVIRONMENTAL POLICY; PRE AND POST INDEPENDENCE PERIOD; FROM STCOKHOLM TO JOHANNESBURG DECLARATION (RIO) AND ROLE OF GOVERNMENT - FIVE YEAR PLANS - FOREST POLICY - CONSERVATION STRATEGY - WATER POLICY; RIGHT TO ENVIRONMENT - CONSTITUTIONAL PROVISIONS ON ENVIRONMENT AND ITS PROTECTION - ROLE OF JUDICIARY ON ENVIRONMENTAL ISSUES - EVOLVING OF NEW PRINCIPLES - POLLUTER PAYS PRINCIPLE - PRECAUTIONARY PRINCIPLE - PUBLIC TRUST DOCTRINE.
This chapter explores environmental policy in India and its impact on regulation. The opening readings are from ancient Indian law. The most detailed and perceptive of these are the provisions found in Kautilya'sArthashastra written between 321 and 300 BC. Kautilya was the prime minister of the Magadha Empire during the reign of Chandragupta Maurya.
The final set of readings track the Indian Government's environmental policy since the 1970's and stress the shift in the government's attitude from 'environment versus development' to 'environment and development'.
In the summer of 1972, Stockholm staged the first UN Conference held specifically to consider global environmental conditions. Heads of state and high government officials from 113 countries participated in the deliberations which culminated in the adoption of a Declaration and an Action Plan. Prime Minister Indira Gandhi was amongst the leaders of the Third World War was who addressed the conference.
Gandhi : Address of Prime Minister Indira Gandhi at the United Nations conference on the Human Environment. Stockholm, 14 June 1972:
On the one hand the rich look askance at our continuing poverty - on the other, they warn us against their own methods. We do not wish to impoverish the environment any further and yet we cannot for a moment forget the grim poverty of large number of people.
The environmental problems of developing countries are not the side effects of excessive industrialization but reflect the inadequacy of development. The rich countries may look upon development as the cause of environmental destruction, but to us it is one of the primary means of improving the environment for living of providing food, water, sanitation and shelter, of making the desert green and the mountains habitable.
In February 1992 the Union Government published its policy for the abatement of pollution. This statement declares the objective of the government to integrate environmental considerations into decision making at all levels.
To achieve this goal, the statement adopts fundamental guiding principles, namely:-
a) prevention of pollution at source;
b) the adoption of the best available technology;
c) the polluter pays principles;
d) public participation in decision making;
2.2 GUHA; THE UNQUIET WOODS ECOLOGICAL CHANGE AND PEASANT RESISTANCE IN THE HIMALAYA, 191 (1991)
Reflecting on the century of social protest culminating in the ChipkoAndolan, what is especially striking from the perspective of the sociology of present protest is the persistence of conflicts over forest rights in India.
The forest conflicts in Europe were representative of a particular historical epoch, when the rise of capitalism undermined the basis of subsistence agriculture. Bitter as these struggles were, the greatly diminished in scope and intensity with the maturing of the Industrial revolution and the absorption of surplus workers in the cities or through emigration to the colonies.
From an ecological perspective, therefore peasant movements like Chipko are not merely a defence of the little community and its values, but also an affirmation of a way of life more harmoniously adjusted with natural processes. At one level they are defensive, seeking to escape the tentacle of the commercial economy and the centralizing state.
2.3 ENVIRONMENTAL LAW AFTER INDEPENDENCE
At the commencement of Indian Constitution, Constituent Assembly did not pay any specific attention towards the protection of environment. In the entire debate one finds hardly any specific reference of balancing ecosystem with the development process.
There were provisions which may be said to have relation with environment. The fundamental right to carry on any trade or business or to hold property of the right to property may seem to be an antithesis to maintain the natural environment. But the State had the power to balance them in the public interest.
The issue of environment and development did not receive any significant recognition in the planning process until 1968. The year 1972, marks a watershed in the history to environmental management in India.
Prior to 1972, environmental concerns such sewage disposal, sanitation and public health were dealt with by different ministries of the Government of India and each pursued these objective without any proper co-ordination system established at the federal or the inter-governmental level.
In pursuance of 24th U.N. General Assembly on Human Environment in 1972, India set up a Committee on Human Environment under the Chairmanship of Pitambar Pant, member of the Planning Commission to prepare the reports on the state of the Environment.
These reports indicated the need for establishing greater co-ordination and integration in environmental policies and programmes, so in February, 1972 a National Committee on Environmental Planning was established in the Department of Science and Technology. The NCEPC was an apex advisory body in all matters relation to environmental protection and improvement.
The fourth Five Year Plan made the following observations:
"Planning for harmonious development .. Is possible only on the basis of comprehensive appraisal of environmental issues .. It is necessary therefore to introduce the environmental aspects into our Planning and Development".
The Draft Fifth Plan (1974-79) stressed that there should be close association of the NCEPC with all major industrial decisions so the environmental goals are fully taken into account.
In the Sixth Five Year Plan (1980-85), an entire chapter on "Environment and Development" has been included that emphasizes sound environmental and ecological principles in land use. Agriculture, forestry, wildlife, water, air, marine development.
Until the Fifth General Election of 1977, none of the political parties in India considered environmental problems worthy of inclusion in their election platforms, since then, a number of environmental controversies, namely, Sillen valley, Mathura Refinery and acid rain on TajMahal have raised public concern. Gradually environmental problems are acquitting status.
When Congress - I came to power after January1980 General Election immediately set up a committee chaired by N.D.Tiwari to recommend legislative measures and administrative machinery to ensure environmental protection. It recommended the creation of a Department of Environment at the Centre that could explicitly recognize pivotal role of environmental conservation in sustainable nation development.
On the basis of the recommendation of Tiwari Committee the NCEPC has been replaced by a National Committee on Environmental Planning similar to its predecessor.
When India gained independence, forests were placed on the State List f the Constitution. Forest departments of individual states continued to regulate forests in accord with the Indian Forest Act of 1927, as implemented by state regulations.
The Indian Forest Act gives the states jurisdiction over both public and private forests and facilitates the extraction of timber for profit. Public forests, those in which state governments have a proprietary interest, are divided into three categories; reserve forests, Village forests and protected forests.
In extending of forest lands which are not the property of the government, the Indian Forest Act represents strong governmental intrusion into private rights. State governments may regulate timber cutting, cultivation, grazing and burning or clearing of vegetation on private forest land. The act also authorized state governments to acquire private land for public purposes under the Land Acquisition Act, 1894.
The debate over how to balance the various demands of the nation on the forests intensified in the 1970s. The 44thAmendment Act of 1976 transferred forests from the State List to the Concurrent List of the Constitution.
The transfer empowered the Central Government to act directly in managing India's forests. The ministry of environment and forests now has administrative jurisdiction over national forest policy, Government has taken three major actions with regard to forests; the Forest (Conservation) Act, 1980, an amendment in 1988 of this Act, and the adoption of a revised National Forest Policy in 1988.
Till 1986, the implementation of environment laws was the exclusive responsibility of specially constituted State agencies which presented violators in ordinary criminal courts. Now enforcement techniques have been strengthened.
The Indian Constitution is amongst the few in the world that contains specific provisions on environment protection. The directive principles of State policy and fundamental duties chapters explicitly enunciate the national commitment to protect and improve the environment.
Environmental protection and improvement were explicitly incorporated into the Constitution by the Constitution (42nd Amendment) Act of 1976. The 42nd Amendment Act clearly spelt out in the amendment to the preamble of the concept of socialism.
Article 47 provides for the improvement of public health as one of the primary duties of the State.
Fundamental duty of the State: Art.48A
In pursuance of United Nations Conference on Human Environment convened at Stockholm in 1972, the nations of the world decided to take appropriate steps to protect and improve human environment.
The sequel to this, in India 42nd Amendment to the Indian Constitution inserted part VI-A of the Constitution which enumerates certain fundamental duties under Art.48-A and 51-A (g).
Art.48-A says "the state shall Endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country". Art.48-A also provides for the safeguards of forest and wildlife.
Safeguarding of forest is important factor which affects environment because the forests maintain balance between the oxygen and carbon dioxide in the atmosphere which constitutes an important safeguard against air pollution.
Art.48-A(g) provides for protection and improvement of environment and it specifically put stress on water pollution by including matters, viz., forests, lakes, rivers, etc.
Legislative power under Constitution:
The 42nd Amendment to the Indian Constitution also certain changes in the 7th Schedule to the Constitution. Originally a forest was a subject included in list II Entry 19.
Protection of wild animals and birds has also been transferred from the II, Entry 20 to List II, entry 17-B. 42nd Amendment Act for the first time inserted Entry 20-A in List III which deals with population control and family planning because enormous increase in population is main cause for environmental problems.
Art.252, says that if it appears to the legislature of two or more states to be desirable that Parliament may pass law on the subject and if the State Legislature pass resolution to the effect then Parliament may pass law on the subject.
Art.253, under the Indian Constitution Parliament was conferred with the power to make any law for implementing any treaty, agreement or convention with any other country or countries or even any decision made at any International conference.
Other Legislative Measures:
Ancient Laws:
There are certain evidences to prove that the society in ancient times paid more attention to the protection of environment than what we think. It was the dharma of each individual in the society to protect the nature. The people worshipped the objects of nature. The trees, water, land and animals gained important position in the ancient times.
Environmental Law during British Raj:
The year 1860 is the landmark period in the history of the legal control of environmental pollution during British Raj an attempt was made for the first time to control environmental pollution, in particular water and atmosphere through criminal sanction.
Indian penal Code (IPC), 1860:
The problem of water pollution has been dealt with in the chapter on "Public Health and Safety". As regards water pollution, it provides that, "whoever voluntarily corrupt or fouls the water of any public spring.
Sec. 277 of IPC is confined to voluntary act and acts without any knowledge or accidentally would not be covered under the present law. Moreover, it has limited operation to the water of public spring or reservoir.
Sec. 269 of IPC also could be invoked against a water polluter. The section provides "whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to like, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
Sec. 290 of IPC provides punishment for public nuisance (which includes pollution cases also) in cases not otherwise provided for.
Indian Easements Act, 1882:
Sec. 15 of the Easement Act, 1882 deals with acquisition by prescription. Explanation IV to Sec. 15 provides that in case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptively the servient heritage".
Sec. 21 deals with the right of the Government to regulate the collection, retention and distribution of water of rivers and streams flowing in natural channels and of natural lakes and ponds.
Sec. 28 (d) of the Easement Act, 1882 on one hand allowed a prescriptive right to pollution of the water but it was not an absolute right. Sec. 28(d) deals with prescriptive right to pollute air or water. It provides the extent of the prescriptive right to pollute air or water is the extent of the pollution at the commencement of the period of uses on completion of which the right rose.
1. Environmental measures - by the State Government and the statute should attack the causes of environmental degradation.
2. Where there are threats of severe and, irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
3. The 'Onus of Proof is on the actor or the developed industrialist to show that his action does not affect environment.
The 'Precautionary Principle' has been accepted as part of the law of the land. Art.21,47,48-A and 51-A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wild life to the environment in 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.
The Supreme Court in M.C.Metha V/s Union of India, observed:
We have no hesitation in holding that in order to protect the two lakes (Budhkal and Sujarjkund) from environmental degradation, it is necessary to limit the construction activity in the close vicinity of the lakes.
In Andhra Pradesh Pollution Control Board V/s M V Nayudu, the apex court noted that it is better to err on the side of caution and prevent environmental harm, than to run the risk of irreversible harm. The court observed:
The principle of precaution involves the anticipation of environmental harm and taking measure to avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainty.
Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake; precautionary duties must not be triggered by suspicion of concrete danger but also by concern or risk potential.
2.7 'POLLUTER PAYS' PRINCIPLE
The 'Polluter Pays' principle means that absolute liability of harm to the environment extends not only to compensate the victims of pollution but also at the cost of restoring the environmental degradation.
Remediation of the damaged environment is a part of the process of 'sustainable development' and as such polluter is liable to pay the cost to the individual suffers as well as the cost of reversing the damaged ecology.
In M.C Metha V/s Kamal Nath, the compensation was stipulated by way of restitution of environment and ecology when the apex court that the flow of the river was diverted for eco-tourism.
The polluter is responsible for compensating and repairing the damage caused by his omission. This is the quintessence of the polluter pays principle. Absolute liability of hazardous and inherently dangerous industry is the high-water mark of the development of polluter pays principle.
Despite its deterrent impact on potential polluters, the doctrine is limited in the sense that it can be applied only at the remedial stage, i.e., after pollution has taken place.
Recognition of the Public Trust Doctrine for the protection of natural resources is another judicial innovation. It is in M C Mehta V/s Kamal Nath, that the apex court approved this doctrine for the first time.
The government sanction to the deviation of the natural flow of a river for the sake of increasing the facilities of a motel was held to be violating the trust conferred on the state to protect natural resources.
In M I Builders Pvt. Ltd. V/s RadheyShyamSahu, the Supreme Court applied the doctrine when it found that the Luknowmahapalikaentered into a contract with the petitioners for constructing an underground shopping complex beneath a park.
Although the major part of the work was over, the court held that the contract was without tender, and also against public trust doctrine, as the mahapalika has deprived themselves of their obligatory duties as trustee to maintain parks. The underground market changed the garden of historical importance into a terraced garden.
In HinchLalTiwari V/s Kamala Devi, the problem arose whether the open spaces, which originally were ponds but by efflux of time were later filled up, could be used for housing colonies. The S C held that the material resources of the community like forests, tanks, ponds, hillock and mountain need to be protected for a proper and healthy environment.
The government and other authorities had noticed that pond was falling in disuse and therefore, should have bestowed their attention to develop the same. Such an effort would, on one hand, have prevent ecological disaster and on the other provided better environment for the benefit of the public at large.
2.8 TORTIOUS AND CRIMINAL REMEDIES
TORTIOUS LIABILITY:
The remedies under the law of tort to abate environmental pollution is the oldest legal remedy. Majority of the pollution cases in tort fall under the following three categories:
a) Nuisance
b) Negligence
c) Strict liability
a)Nuisance:
Literal meaning of nuisance is anything that annoys, hurts or offends, but for an interference to be an actionable nuisance, the conduct of the defendant must be unreasonable. A nuisance would include noise, air pollution, smells and water pollution.
Nuisance is of two kinds:
a) Public nuisance or common nuisance
b) Private nuisance
A public nuisance, which affects the public at large and is an annoyance to all citizens and is therefore treated as public wrongs, and private nuisance which is done to hurt or annoyance of the lands tenements or medicaments of another.
A common or public nuisance is not excused on the ground that it causes some convenience or advantage.
Public nuisance is recognition of the following maxims of Civil Law.
Sic utraituoalienum non laedas(enjoy your own property in such a manner as not to injure the right of another)
Sic utraituoutreampublicaim non leadas. (Enjoy your own property in such a manner as not to injure the rights of the public)
A public nuisance is indictable however long it has existed.
In case of R V/s Cross. In this case it is immaterial how long the practice may have prevailed, for no length of time will legitimate a nuisance.
A shell fishery across a river had been established for a vast number of years, but Buller J held that it continued unlawful and gave judgment that should be abated. It is said however, that length of time may occur with other circumstances in preventing an obstruction from having the character of a nuisance.
If a public nuisance is proved, it is useless to set up counter balancing benefits, not in deciding whether a thing is or is not public nuisances can the good it does be weighted against the public annoyance which it causes.
Who are the public?
In this context, what does the Sec.268 of IPC mean by the term "public"? As defined elsewhere, the word 'public' is said to include any class of the public or any community.
1. Criminal prosecution for the offence causing of public nuisance;
2. A criminal proceeding before a magistrate for restraining a public nuisance;
3. A civil action by the Advocate General or by two or more members of the public with permission of the court, for a declaration of any injunction or both.
An action for private nuisance may seek injunctive relief as well as damages
b) Negligence
A common law action for negligence may be brought to bring to prevent environmental pollution. In an action for negligence, the plaintiff shows the following enumerated points:
1) The defendant was under a duty to take reasonable case to avoid damages complained of;
2) There was a breach of this duty;
3) The breach of duty caused the damage;
The degree of care required in a particular case depends on the surrounding circumstances and varies according to the risk involved and magnitude of the respective injury.
c)Strict liability
The rule of strict liability is an outcome of the decision given by the Court in case ofRylands V/s Fletcher. When the brings or accumulates on his land something likely to cause harm if it escapes and damage arises as natural consequences of its escape.
These exceptions are as follows:
1. The act of God (natural disaster and like earthquake flood etc)
2. The act of third party;
3. The plaintiff's own fault;
4. The plaintiff's own consent;
5. The natural use of land by the defendant (i.e., strict liability applies to a non natural user of land);
6. Statutory authority.
CRIMINAL LIABILITY:
Besides the tortuous remedy, for the environment protection criminal remedies are also present in IPC and Cr.P.C in India.
UNIT - III
INTERNATIONAL LAW AND ENVIRONMENTAL PROTECTION: INTERNATIONALCONVENTIONS IN THE DEVELOPMENT OF ENVIRNMENTAL LAW AND ITS POLICY - FROM STOCKHOLM TO RECENT CONVENTIONS (SPECIAL EMPHASIS ON MAJOR CONVENTIONS AND PROTOLS) - CONTROL ON MARINE PLLUTION; COMMON LAW ASPECTS OF ENVIRNMENTAL PROTECTION; REMEDIES UNDER THER LAWS - RIPARIAN RIGHTS AND PRIOR - APPROPRIATION.
3.1 INTRODUCTION
In International Law, a distinction is often made between hard and soft law. Hard international law generally refers to agreements r principles that are directly enforceable by a national or international body.
Although these agreements sometimes oblige countries to adopt implementing legislation, they are not usually enforceable on their own in a court.
Even in the event that the domestic legislation provides for such suits, since the judges who decide the case are residents of the country against which it is brought. Potential conflicts of interest arise.
In International forums, such as the International Court of Justice, countries must consent being sued. Thus, it is often impossible to sue a country.
India's international obligations:
India has obligations under numerous international treaties and agreements that relate to environmental issues. As a contracting party, India must have ratified a treaty, that is, by adopting it as national law before it came into force, or acceding to it after it has come into force.
The nature and degree of compliance and implementation depend on a number of factors, among them;
1) The capabilities and staff of an international institution charged with coordinating national
compliance efforts;
2) The willingness of other state parties to enforce or comply with the treaty;
3) The political agenda of the government and popular support;
4) Trade and diplomatic pressures brought to bear by other countries;
5) Judicial or NGO involvement though court cases and publicity;
Established norms of International environmental Law :
The leading norms in the field of international environmental law are addressed below:
1) Foremost among these norms is Principle 21 of the 1972 Stockholm Declaration on the Human Environment. Principle 21 maintains the 'States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
2) Another widely shared norm is the duty of a state to notify and consult with other states when it undertakes an operation that is likely to harm neighboring countries environment, such as construction of power plant, which may impair air or water quality in down wide states.
3) Over and above the duty to notify and consult, a relatively new norm has emerged whereby states are expected to monitor and assess specific environmental conditions domestically, and disclose these conditions in a report to an international agency or international executive body created by an international agreement.
4) Another emerging norm is the guarantee in the domestic constitution laws of executive pronouncements of several states, including India, Malaysia, Thailand, Indonesia, Singapore and the Philippines, that all citizens have a right to a decent and healthful environment.
5) Most industrialized countries subscribe to the Polluter Pays Principle.
6) Another new norm of international environmental law is the Precautionary principle.
7) Environmental impact assessment is another widely accepted norm of international environmental law.
8) Another recent norm is to invite the input of non-governmental organizations especially those representing community based grassroots environmental activist.
9) In October 1982, the United Nations General Assembly adopted the World Charter for Nature and Principles of Sustainable Development.
10) Intergenerational equity is among the newest norms of international environmental law.
11) At the 12982 U N Conference on the Law of Sea, developing countries, led by India, articulated the norm that certain resources, such as the deep seabed, are part of the common heritage of mankind and must be shared by all nations.
12) The 1992 Rio de Jaeiro Earth Summit articulated the norm of common but different responsibilities.
The U.N. Conference of the human Environment held at Stockholm from June 5 to June 16, 1972 may rightly be reckoned as the first major attempt to solve the global problems of conservation and regulation of human environment by international agreement on a Universal level. It mobilized and concentrated the attention of the international co-operation for environmental conservation.
The main contribution of the Stockholm Conference of 1972 on the Human Environment Comprises of:
a) The Declaration on the Human Environment;
b) The Action plan for the Human Environment;
c) The Resolution on Institutional Financial Arrangements;
d) Resolution on Designation of a World Environment Day;
e) Resolution on Nuclear Weapons Tests;
f) Resolution on the convening of a Second Conference;
g) Decision to refer to Governments recommendation for action at the national level.
India was also a signatory to the resolutions passed at this Conference.
The Declaration on the Human Environment:
Contained in Sec. 1 of the Report of the United Nations Conference on the Human Environment the Declaration on the Human Environment is one of the most significant achievements of the U.N. Conference on the Human Environment, 1972.
The declaration is divided in two parts:
1. proclaims seven truths about man in relation to his environment;
2. enunciates 26 principles;
The first part contains general observations such as that man is both creature and molder of his environment which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. The protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world.
Part II of the Declaration contains;
Principle 1 which is of general nature states that man has the fundamental right to freedom. Equality and adequate conditions of life, environment of a quality that permits a life of dignity and well-being, and bears a solemn responsibility to protect and improve the environment for present and future generations.
Principle 2 states that the natural resources of the earth including the air, water, land, flora and fauna and especially representative samples of natural ecosystems must be safeguarded for the present and future generations through careful planning or management as appropriate.
Principle 3 states that the capacity of the earth to produce vital renewable resources must be maintained and wherever practicable restored or improved.
Principle 6 states that the discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious of irreversible damage is not inflicted upon ecosystems. The just struggle of the people of all countries against pollution should be supported.
Principle 7 states shall take all possible steps to prevent pollution of the seas by substance which are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.
Principle 8 Economic and Social development is essential for ensuring a favorable living and working environment for man and for creating conditions on earth that are necessary for the improvement of the quality life.
Principle 20 Scientific research and development in the context of environmental problems, both national and multinational must be promoted in all countries, especially the developing countries.
Principle 21 and 22 are particularly important for they proclaim certain principles international Law respecting environmental preservation.
Principle 26 states that man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. States must strive to reach prompt agreement in the relevant international organs, on the elimination and complete destruction of such weapons.
3.3 EARTH SUMMIT OR RIO DECLARATION 1992
The Earth Summit or United Nations Conference on Environment and Development was held at Ril de Janeiro,Capital of Brazil, from June 3 to June 12, 1992. It was the largest International conference in the history of International relations and international law.
It was attended by 178 nations. More than 20,000 participants attended the conference. The plenary session was attended by 130 heads of State and Government.
The Earth Summit is the culmination of U N conferences beginning with the Stockholm Conference of Human Environment in 1972.
Industrialized countries degrade the environment by insatiable consumption of resources and intense production of wastes, while high fertility and rapid population growth in many developing countries put damaging pressure on the planet combined, such humandemands are undermining the world's natural resources base, land, water and air upon which all development depends. These issues are, therefore, not only environmental but also economic.
Some of the main issues confronting the Earth Summit or UNCED were finances; technology transfer, institutional frame work, climate change, forests biological diversity and sustainable development.
Six issues on which North and South expressed divergent views were Greenhouse gas emission, Forests population, Technology transfer, Finance and Degradation. Besides the main issue of funding environmental programmes outline in Agenda 21, other major achievements of the UNCED include a convention on Biodiversity, a convention on climate change, a convention on forestry, and Earth Charter or Rio-Declaration.
Rio-declaration contains 27 principles or points concerning almost all countries of the global community and enlisting general eights and obligations on environmental protection.
The more important of the principles of Rio-Declaration are as follows;
Principle 1 Human beings are at the centre of concerns for sustainable development. They are entitled to healthy and productive life in harmony with nature.
Principle 2 states have, in accordance with the charter of the U N and the principles of International Law, the sovereign right to exploit their own resources pursuant to their own environmental policies and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.
Principle 3 the right to development must be fulfilled as to equitably meet development and environmental needs of present and future generations.
Principle 4 in order to achieve sustainable developments, environmental protection, shall constitute an integral part of the development process and cannot be considered in isolation from it.
Principle 7 states shall co-operate in a spirit of global partnership to conserve protect and restore the health and integrity of the earth's ecosystems.
Principle 10 environmental issues are best handled with the participation of all concerned citizens at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision making processes.
Principle 11 states shall enact effective environmental legislation, environmental standards, management objectives and priorities should reflect the environmental and development context to which they apply.
Principle 13 states shall develop national law regarding liability and compensation for the victims or pollution and other environmental damages. States shall also co-operate in an expeditious and more determined manner to develop further International law regarding liability and compensation for adverse affects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.
Principle 17 environmental impact assessment, as a national Instrument shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.
Principle 19 states shall provide prior and timely notification and relevant information to potentially affected states on activities that may have a significant adverse trans-boundary environmental effect.
Thus, the road from Rio is pointing in the direction hope, it is for the nations both the developed and the developing to bring it to fruition so as to ensure the world, safe for the present and future generations.
India's ocean resources are primarily threatened by terrestrial sources f pollution, seemingly regulated under the Water Act of 1974 and the Environment (Protection) Act of 1986.
Several Indian coastal cities such as Bombay directly discharge untreated city sewage into the sea. Industrial wastes and pesticides runoff contaminate the ocean through rivers and creeks. Studies conducted since the 1970s confirm the presence of high levels of heavy metals such as mercury in the coastal waters around Bombay and Gujarat. The legal issues relating to these sources of pollution have been discussed earlier in the book.
The legislative frame work for controlling marine pollution is provided by the Territorial Waters, Continental Shelf. Exclusive Economic Zone and other Maritime Zones Act of 1976.
The Territorial Waters extend 12 nautical miles from the defined base line; the Continental Shelf is the natural prolongation of India's land territory to the outer edge f the continental margin or 200 nautical miles, where the continental margin does not extend up to that distance. The Exclusive Economic Zone extends beyond the Territorial Water, over a distance of 200 nautical miles.
Apart from these general provisions, there are no specific regulations framed under the Territorial Waters Act to regulate the dumping of substances in the sea or other causes of marine pollution. The Indian Coast Guard patrols the maritime Zones and is responsible for taking such measures as are necessary to preserve and protect that maritime environment and to prevent and control marine pollution.
Specific provisions under the Merchant Shipping Act of 1958 govern the civil and criminal liability regimes in respect of oil spills. Part X-B of the MSA deals with the civil liability of the owner of an Indian or foreign vessel that damages the environment in the Territorial Water or the EEZ.
Besides the tortuous remedy, for the environment protection criminal remedies are also present in Indian Penal Code and Criminal Procedure Code, in India.
The definition of "Public Nuisance" is given under Sec.268 of I P C which is as follows;
A person is guilty of a public nuisance who nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance t the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to person who may have occasion to use any public right.
As per the Sec.269 of I P C negligent act likely to spread infection of disease dangerous to life whoever unlawfully or negligently does any act will be liable for that.
According to Sec.277 says that "whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less for the purpose for which it is ordinarily used, should be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees or with both".
There are three essential ingredients to constitute the act of any person nuisance:
a) The act must be voluntary.
b) It must relate to public spring or reservoir.
c) It must fail the water to extent f contaminating it.
Sec. 278 says - making atmosphere noxious to health whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to the health to persons in general dwelling or carrying on business in the neighborhood or passing along a public way, shall be punished with fine which may extend to Rs. 500/-.
For the protection and preservation of trees there is also a provision under IPC under Sec. 480.
The right to cut down trees standing upon the tenants land has given rise to several prosecutions for mischief in which it has been held that if the cutting is protected by plausible claim, it cannot be punished as mischief, whether that motive in cutting the trees was mala fide or dishonest.
The remedies provided under Sec. 133 to 144 of Criminal Procedure Code 1973 could also be utilized against nuisance. Sec. 133 of Cr.P.C provides an independent, speedily and summary remedy against public nuisance within a fixed period of time.
The order may be made absolute after giving the opposing party sufficient opportunity to be heard. The magistrate may act on information received from a police report or any other source including a complaint make by a citizen.
Although the magistrate's power to issue a conditional order under Sec. 133 appears discretionary, the Apex Courts has interpreted the language to be mandatory.
Failure to comply with a final order within the specified time attracts penalty provided by Sec. 188 of IPC for disobedience of an order of a public servant. A magistrate is also empowered to prohibit repetition or continuance or continuance of a public nuisance.
To ensure the implementations of its directions, the Apex Court relied on numerous methods like judicial oversight, dead lines, the threat of prosecution under Sec. 188 of the IPC, and the threat to use its power to punish for contempt.
A riparian owner is one who has title to land adjacent to a natural stream. The Indian legal system has recognized the right of riparian owners to unpolluted waters at least since the adoption of the Indian Easements Act of 1882.
Under Sec. 7 of that act every riparian owner has the right to the continued flow of the waters of a natural stream in its natural conditions without obstruction or unreasonable pollution.
The legal system also recognizes a common law riparian right to unpolluted water. This common law right is rarely invoked in contemporary litigation concerning water pollution. The S C however, revived this doctrine in M.C.Mehta V/s Union of India by stating:
In common law the Municipal Corporation can be restrained by an injunction in an action brought by a riparian owner who has suffered on account of the pollution of the water in a river caused by the Corporation by discharging into the river insufficiently treated sewage from discharging such sewage into the river.
UNIT- IV
4.1 INTRODUCTION
Water is an important factor in the life of organisms. It is a universal solvent in which practically all the minerals, present in soil, may be dissolved. It supports life system and its shortage has been the main concern of human beings. It covers about 1/3rd of earth's surface.
Water is an essential element of human living but it is useful only when it is unpolluted. The higher the standard of living, the greater and danger of pollution. To make it fit for use, removal of pollutants if essential. The more we advance the more wastes we produce. In the age of industrialization as we live today industrial wastes are the most important pollutants of water.
Polluted water means water which contains foreign substances in it, which alters physical, chemical or biological properties of water. Water is formed by mixing two molecules of Hydrogen with one molecule of Oxygen in the presence of heat energy.
Water Pollution: Scope of the Problem:
All over the world there is a problem of fresh water. Water pollution is becoming acute in a number of regions of India. Most of the rivers are polluted by the direct discharge of industrial effluents and sewage into them.
Pollution levels are high in the River Ganges in certain area, and it is unfit as a drinking water supply source.
All fresh water lakes are becoming severely polluted. Most of the fresh water lakes (Dal Lake, Nainital Lake, and KollenruLake) and polluted. The problem of degradation is here very complex as it is caused by increasing population density, the dumping of industrial and agricultural wastes and sewage, reduced inflow of water into the lakes because of water withdrawal for agriculture, siltation, and cultivation close to the streams which causes fertilizer run off.
Groundwater contamination is becoming severe in many areas, but there are very few data on its extent. Protected water supplies are available only for 30% of total urban population, and others depend for their drinking water upon wells. Household tanning and dyeing units do not have water treatment systems.
Objects of the Law:
The act was enacted to provide for the prevention and control of water pollution and maintaining or restoring wholesomeness of water for the establishment of Boards, with a view of carrying out these purposes, for the prevention and control of water pollution, for conferring on an assigning to such Boards powers and functions relating thereto and for matters connected therewith.
The object of the act as already observed is to prevent and control water pollution and maintain or restore wholesomeness of water.
Encyclopedia of Environment pollution and Control has enumerated the following sources of contamination of water pollution:
a) Domestic water pollution;
b) Industrial water pollution;
c) Agricultural water pollution;
d) Solid waste pollution;
e) Thermal pollution;
f) Shipping water pollution;
g) Radioactive water pollution.
a) Domestic Water Pollution:
It includes waste water from homes and commercial establishments. These materials have been largely organic and get oxidized by bacterial decomposition to nitrate, phosphate, carbon dioxide, and water. As this type of decomposition needs the use of dissolved oxygen, it places an oxygen demand on the system.
Effect:
The discharge of untreated and partially treated sewage into the rivers and other water can produce;
a) Depletion in oxygen content caused by biological oxidation of organic matter.
b) Stimulation of algal growth and shift in algal diversity towards blue green large leading towards the production of obnoxious blooms.
c) The public sewage containing various micro-organisms, bacteria, yeast and other moulds, algae, eggs of helminthes, virues etc., are dangerous with respect to epidemic diseases of man and animals.
b) Industrial Water Pollution:
The industrial waste water contains raw materials, processed chemicals, final products, processed intermediates, processed by-products and impurities of the industry.
The industrial pollutants may be classified as:
(i) Organic substances that deplete oxygen content and increase biological oxygen demand;
(ii) Inorganic substances like carbonate, chloride, nitrogen that render the water unfit for use and encourages growth of micro plants;
(iii) Acids and alkalis which affects the growth of fish and other aquatic like;
(iv) Oil and other floating substances;
(v) Oil and other floating substances of water bodies;
(vi) Colour producing materials like dyes which are aesthetically objectionable.
c) Agricultural Water Pollution:
Agricultural water pollution includes sediments, fertilizers, and farm animal wastes. Pesticides and fertilizers are the main pollutants which reach water bodies through run off and leaching. The large amount of fertilizers used. When washed off the lands through irrigation, rainfall and drainage, into rivers and streams can seriously disturbed the aquatic ecosystem.
d) Solid Waste Pollution:
Solid waste varies in composition with the socio-economic status of generating community.
The following materials could be classified as solid waste:
i.Garbage, which includes all decomposable wastes from households, as well as from food-
canning, freezing and meat-processing operations that are not disposed of in waste water;
ii.Rubbish includes all non-decomposable wastes;
iii.Sewage sludge is generated from the setting process in primary, secondary and tertiary
treatment methods, as well as the solids from cesspools;
iv.Miscellaneous materials include wastes, such as chemicals, paints, and explosives as well as
mining wastes such as slag heaps and mine tailings.
e) Thermal Pollution:
Thermal Pollutiontakes place because many electric generating companies use water in the process of cooling their generators. This heated water is then released into the system from which it was drawn, causing a warning trend of surface waters.
f) Shipping Water Pollution:
It includes both human sewage and other wastes, the most important or which has been oil. There are about 15 million watercrafts on navigable waters and their combined waste discharges are equivalent to city with a population of 20,00,000. Oil pollution, an oxygen demanding waste, is of concern not only from sensational major spills from ships and offshore drilling rigs but also from small spills and charming operations.
g) Radioactive Waste Pollution :
The radioactive substances are the most toxic substances whose injurious effect is tremendously high. The major sources of radioactive wastes have been nuclear explosives accidents at nuclear power plants, fuel reprocessing plants and research laboratories and hospitals that release there wastes into the atmosphere or into waste water.
Effect of Water Pollution:
The effects of water pollution are numerous. The major sources of water pollution are; domestic, industrial, agricultural radioactive and solid wastes, thermal pollution and oil spills. Pollution affects the streams, wells, rivers, and water-ways by way of depletion of oxygen level, excess plant nutrients, biological dye function and sedimentary and erosional processes.
For the purpose discussion we can divide the various effects under the following convenient headings:
1. Effect on Water Stream and Ways;
2. Effect on Man, Health and Safety;
3. Damage on Aquatic and Wildlife;
4. Damage to Property;
5. Damage to Recreational Areas.
a) Constitution of Central Boards:
The Central Government within six months of the commencement of this Act is the States of Assam, Bihar, Gujarat, Haryana, H.P, J & K, Karnataka, Kerala, M.P, Rajasthan, Tripura, W.B and in the Union territories may, be notification in the Official Gazette, appoint, constitute a Central Board to be called the Central Pollution Control Board to exercise the powers conferred on and perform the functions assigned to the Board under the Act.
The Central Board shall consist of the following members, namely:
1. A full - time Chairman, being a person having special knowledge or practical experience in respect of matters relating to environmental protection or person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the Central Government;
2. Such number of officials not exceeding five to be nominated by Central Government to represent that Government;
3. Such number of officials not exceeding five to be nominated by the Central Government from amongst the members of the State Board, of whom not exceeding two shall be from amongst the members of the local authorities functioning within the State;
4. Such number of non-officials not exceeding three to be nominated by the Central Government to represent in the interest of agriculture, fishery or industry or trade or any other interest which, in the opinion of the Central Government;
5. Two persons to represent the companies or corporations owned, controlled or managed by the Central Government, to be nominated by that Government;
6. A full time member - secretary possessing qualifications and experience of scientific, engineering or management aspects of pollution control, to be appointed by the Central Government.
The Central Board shall be a body corporate with a perpetual succession and common seal with a right to own property and right to sue or to be sued.
b) Constitution of State Boards:
The State Government shall with effect from such date as it may deem fit, by notification in the Official Gazette, appoint, constitute a State Pollution Control Board under such name as may be specified in the notification to exercise the powers conferred on and perform the functions assigned to the Board under the Act.
The composition of a State Board shall be of the following, namely:
1) A full - time or part - time Chairman, being a person having a special knowledge or practical experience in respect of matters relating to environmental protection or a person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the State Government;
2) Such number of Officials not exceeding 5, to be nominated by the State Government to represent that Government;
3) Such number of persons not exceeding 5, to be nominated by the State Government from amongst the members of the local authorities functioning within the State;
4) Such number of non-officials not exceeding 3, to be nominated by the State Government to represent the interests of agriculture, fishery or industry or trade or any other interests which, in the opinion of the State Government ought to be represented;
5) Two person to represent the companies or corporations owned, controlled or managed by the State Government to be nominated by theGovernment;
6) A full time member - Secretary possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the State Government.
Terms and Conditions of Service of Members:
A member of a Board, other than a member - secretary shall hold office for a term of 3 years from the date of his nomination. But he shall continue to hold his office even after the expiration of his term until his successor enters upon his office.
A member of a Board other than a member - secretary may at any time resign his office by writing under his hand addressed;
a) in the case of the Chairman, to the Central Government or the State Government as the case may be;
b) in any other case to the Chairman of the Board, and thereafter the seat of that member or the Chairman shall become vacant;
A causal vacancy in a Board shall be filed by a fresh nomination and the person nominated to fill the vacancy shall hold office only for the remainder of the term for which the member in whose place he was nominated.
The other terms and conditions of service of a member of a Board other than the Chairman and member - secretary shall be such as may be prescribed.
Disqualification:
This Act also provides for the disqualification for a person to be a member of the Board. No person shall be member of a Board, who -
a) is or at any time has been adjudged insolvent or has suspended payment of his debt or has compounded with his creditors;
b) is of unsound mind or stands so declared by a competent court;
c) is or has been convicted of an offence which, in the opinion of the Central Government or as the case may be, of the State Government involves moral turpitude;
d) is or at any time has been convicted of an offence under this Act,
e) has directly or indirectly by himself or by any partner any share or interest in any firm or company carrying on the business of manufacture, sale or hire of machinery, plant, equipment, apparatus or fitting for the treatment of sewage or trade effluents;
f) is a director or a secretary, manager or other salaried officer or employee of any company or firm having any contract with the Board;
g) has so abused in the opinion of the Central Government or as the case may be of the State Government his position as a member, as to render his continuance on the Board detrimental to the interest of the general public;
Vacation of Seats by Member:
If a member of a Board becomes subject to any of the disqualifications specified in Sec. 6 his seat shall become vacant.
Sec. 7 of the Water Pollution Act 1974, as well as Sec. 9 of the Air Pollution Act, 1981 relate to the vacation of seats by members of the Board.
Meetings of Board:
A Board shall meet at least once in every three months and shall observe such rules of procedure in regard to the transaction of business at its meetings as may be prescribed. But if in the opinion of the chairman, any business of an urgent nature is to be transacted, he many convene a meeting of the Board at such time as he things fit for the aforesaid purpose.
Sec. 8 of the Water pollution Act. 1974 as well as Sec. 10 of the Air Pollution Act, 1981, relate to the meeting of Board.
The Chairman is empowered to convene the meeting of the Board at any time.
c) Joint boards:
Constitution of Joint Boards:
Two or more Government or contiguous State, or Central Government in respect of one or more Union territories and one or more Government of States contiguous to such Union territory or union territories may enter into an agreement to constitute a Joint Board for such period and subject to the condition of renewal for such further period as may be specified in the agreement.
An agreement to constitute Joint Board may:
a) Provide for the apportionment of the expenditures in connection with the Joint Board between the participating States or between the Central Government and participating State or State;
b) Determine which of the participating States or Central Government or participating state or states shall exercise and perform the several powers and functions of the State Government under the Act;
c) Provide for consultation between participating State or between the Central Government and participating state or states either generally or with reference to particular matters arising under this Act.
d) Make such incidental and ancillary provisions, not inconsistent with this Act, as may be deemed necessary or expedient for giving effect to the agreement;
Composition of joint Board:
The provisions relating to the constitution of Joint Board if it is constituted in pursuance of agreement between State Government of contiguous State, which is as follows:
a) A full time Chairman being a person having special knowledge or practical experience in respect of matters relating to environmental protection or a person having knowledge and experience in administering institutions dealing with environmental matters. He shall be nominated by the Central Government;
b) Two officials from each of the participating State to be nominated by the concerned participating State Government to represent that Government;
c) One person to be nominated by each of the participating State Governments from amongst the members of the local authorities functioning within the State concerned;
d) One non - official to be nominate by each of the participating State Governments to represent the interests of agriculture, fishery or industry or trade in the State concerned or any other interest which in the opinion of the participating State Government is to be represented;
e) Two persons to be nominated by the Central Government to represent the companies or corporations, owned, controlled or managed by the participating State Government;
f) A full - time member - secretary possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control to be appointed by the Central Government.
Special provisions relating to giving of directions:
Where any Joint Board is constituted them notwithstanding anything contained in this Act:
1) The Government of the State for which the Joint Board is constituted shall be competent to give any direction under this act only in cases where such direction relates to a matter within the exclusive territorial jurisdiction of the State;
2) The Central Government alone shall be competent to give any direction under this Act where such direction relates to a matter within the territorial jurisdiction of two or more states or pertaining to a Union territory.
a) Functions of Central Board: Section 16:
It is generally provided that the Central Board shall have the main function of promoting cleanliness of streams and wells in different areas of the States.
Without prejudice to this function the Central Board may perform all or any or the following functions, namely:
a) advise the Central Government on any matter concerning the prevention and control of them water pollution:
b) co-ordinate the activities of the State Boards and resolve disputes among the;
c) provide technical assistance and guidance to the State Boards, carry out and sponsor investigations and research relating to problems of water pollution and prevention, control or abetment of water pollution;
d) plan and organize the training of person engaged or to be engaged in prgrammes for the prevention, control or abatement of water pollution on such terms and conditions as the Central Board may specify;
e) organize through mass media a comprehensive prgramme regarding the prevention and control of water pollution;
f) collect, compile and publish technical and statistical data relating to water pollution and the measures devised for its effective prevention and control and prepare manuals, codes or guides relating to treatment and disposal of sewage and the trade effluents and disseminate information connected therewith;
g) lay down modify or annul, in consultation with the State Government concerned, the standards for a stream or well;
h) plan and cause to be executed a nation - wide programme for the prevention, control or abatement of water pollution;
i) perform such other functions as may be prescribed;
The Central Board also performs the functions of a State Bard for the Union territories. In conflict between a State Board and the Central Board, the Central Board prevails. Union Government Department of Environment, Forest and Wildlife.
b) Functions of Central Board: Section 17:
Subject to the provisions of this Act, the functions of a State Board shall be:
(i) to plan a comprehensive programme for the prevention, control or abatement or pollution of streams and wells in the State and to secure the execution thereof;
(ii) to advise the StateGovernment on any matter concerning their prevention control or abetment or water pollution;
(iii) to collect and disseminate information relating to water pollution and the prevention, control or abetment thereto;
(iv) to encourage conduct and participate in investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution;
(v) to collaborate with the Central Board in organizing the training or person engaged or to be engaged in programmes relating to prevention, control or abatement of water pollution and to organize mass education programme relating thereto;
(vi) to inspect sewage or trade effluents, works and plants for the treatment of sewage and trade effluents and to review plans, specifications or other data relating to plants set up for the treatment of water works for the purification thereof and the system for the disposal of sewage of trade effluents or in connection with the great of any consent as required by this Act;
(vii) to evolve methods of utilization of sewage and suitable trade effluents in agriculture;
(viii) to lay down standards of treatment of sewage and trade effluents to be discharged into any particular stream taking into account the minimum fair whether dilution available in that stream and the tolerance limits of pollution permissible in the water of the stream, after the discharge or such effluents;
(ix) to advise the State Government with respect to the location of any industry the carrying on of which is likely to pollute a stream or well;
(x) to perform such functions as may be prescribed or as may from time to time, be entrusted to it by the Central Board or the central Government;
Moreover, a State Board may take certain emergency measures if it determines that an accident other unforeseen event has polluted a stream or well. These measures include removing the pollutant, mitigating the damages, and issuing orders to the pollution prohibiting effluent discharges.
4.4 PENALTIES OF PROCEDURE
Failure to comply with the directions given under Sec. 20(2) information about abstraction of water or discharge of effluents or Sec. 20(3) information regarding constitution, installation or operation of any establishment of or any disposal system, within the time specified in the direction would on conviction, be punishable with imprisonment for three months or with fine uptoRs. 10,000/- or with both. Where the failure continues, a fine of Rs. 5,000/- for each such day of continuance is also leviable.
Penalties for certain Acts:
Whoever does the following acts shall be punishable with imprisonment for a term which may extend to three months or fine uptoRs. 10,000/- or with both:-
a) destroys, pulls down, removes, injures or defaces any pillar, post, or stake fixed in the ground or any notice or other matter put up, inscribed, or placed by or under the authority of the Board;
b) obstructs any person acting under the orders or directions of the Board from exercising his powers and performing his functions under the Act;
c) damages any works or property belonging to the Board;
d) fails to furnish to any officer or other employee of the Board any information;
e) fails to intimate the occurrence of any accident or other unforeseen act or event to the Bard or other authorities or agencies;
f) makes false statement knowingly or willfully in giving any information which he is required to give or for obtaining the consent from the Bard under the Act;
4.5 CENTRAL WATER LABORATORY
The Central Government may, by notification in the Official Gazette -
a) establish a Central Water Laboratory;
b) specify any laboratory or institute as a Central Water Laboratory, to carry out the functions entrusted to the Central Water Laboratory under this Act.
The Central Government may, after consultation with the Central Board, make rules prescribing:
(i) the functions of the Central Water Laboratory;
(ii) the procedure for the submission to the said laboratory of samples of water or of sewage of water or trade effluent from analysis or tests, the form of the laboratory's report thereon and the fees payable in respect of such report;
(iii) such other matters as may be necessary or expedient to enable that laboratory to carry out its functioning;
4.6 STATE WATER LABORATORY
Like Central Government the State Government may by notification in the official Gazette:
a) establish a State Water Laboratory;
b) specify any laboratory or institute as a State Water Laboratory, to carry out the functions entrusted to the State Water Laboratory under this Act.
The StateGovernment may, after consultation with the State Board, make rules prescribing:
(i) the functions of the State Water Laboratory;
(ii) the procedure for the submission to the said laboratory of samples of water or of sewage of water or trade effluent from analysis or tests, the form of the laboratory's report thereon and the fees payable in respect of such report;
(iii) such other matters as may be necessary or expedient to enable that laboratory to carry out its functioning;
Sec. 52 of the Water Pollution Act, 1974 deals with State Water Laboratory; whereas Sec. 28 of the Air Pollution Act, 1981, relates to State Air Laboratory.
INTRODUCTION
Air pollutions at present are considered as one of most potent threat to the existence of all human being in the world. Air is never pure because some gases such as sulpher dioxide, hydrogen sulphide, carbon monoxide, emissions from volcanoes and swarms, windblown dusts, pollen from plants etc. are continuously added to the air by the natural process.
There are some manmade sources also like industries, urban centre, automobiles, aircraft, agriculture, and power plants etc. which are equally important.
In India the rate of air pollution is increasing so alarmingly that the level of air pollution in most metropolises is nearly approaching the level of air pollution of highly polluted cities in the developed and industrialized countries.
Until the enactment of the Air (Prevention and Control of Pollution) Act, 1981 there was no concerted effort to legally control air pollution. No doubt, some of the states have had some enactments or the other to control the nuisance arising out of smoke and other emissions from factories but unfortunately the provisions of these enactments were not effectively enforced.
The passing of the water (Prevention and Control of Pollution) Act,1974 was the first step in this direction subsequently in the year 1981 the Union Government decided to bring in another legislation to prevent air pollution exclusively.
Thus came into being the Air (Prevention and Control of Pollution) Act, 1981. It is also necessary at this stage to note that India was one of the participants at the United Nations Conference on Human Environment held in Stockholm, in June, 1972. That conference decided to take appropriate steps for, the preservation of the natural resources of the earth which, among other things, included the perseveration of the quality of air and control of air pollution.
Sources of air pollution may broadly be classified in the following categories:
1) Industrial plant and power station brining coal or crude oil like Naptha.
2) Steam locomotives used in vain ways, steamer and motor vehicles.
3) Large incineratiors in certain municipalities.
4) Sewers and domestic drains emanating foul gases.
5) Motor transport and internal combustion engues burning petrol, diesel, kerosene, natha or other fuels.
6) Danesticfurnaces using coal, kerosene and cow dung cakes and firewood.
7) Lighting in houses by burning vegetable oils, paraffin, kerosene, coal and gases.
8) Miscellaneous, commercial and community activities such as solvent losses, pesticides and agricultural clericals.
Effect of Air Pollution:
Air pollution adversely affects man and his environment in many ways. It soils his home and interferes with the growth of plants and shrubs. Most important effect of air pollution is that it endangers his health.
The following effects of air pollution:
1. On Human Health:
The most important effect of air pollution is its threat to human health. Acute episodes of pollution in London, New York and other cities have been marked by dramatic enuresis in death and illness rates, especially among the elderly and those who pre-existing respiratory or cardiac conditions.
Sulphur oxides, produced mainly be burning coal and oil, can cause temporary and permanent injury to the respiratory system. When particular matter is inhaled with the sulphur oxides, health damage increases significantly.
2. On Vegetation and Materials:
Air pollution inflicts widespread and costly damage on plant life and building materials. Some experiences of the past warned of the effects of air pollution on plant life. Air pollutants also damage a wide variety of materials.
Sulphur oxides will destroy even the most durable products. Steel corrodes two to four times faster in urban industrial areas than it does in rural areas where much less sulphur bearing coal it is burnt.
3. On Climate:
Air pollution alters climate and may produce global changes in temperature.
4.8 THE CENTRAL AND STATE BOARDS FOR PREVENTION AND CONTROL OF AIR POLLUTION
a) Constitution of Central Boards:
The Central Government within six months of the commencement of this Act in the States of Assam, Bihar, Gujarat, Haryana, H.P, J and K, Karnataka, Kerala, M.P, Rajasthan, Tripura, W.B and in the Union Territories may, be notification in the Official Gazette, appoint, constitute a Central Board to be called the Central Pollution Control Board to exercise the powers conferred on and perform the functions assigned to the Board under the Act.
The Central Board shall consist of the following members, namely:
1. A full - time Chairman, being a person having special knowledge or practical experience in respect of matters relating to environmental protection or person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the Central Government;
2. Such number of officials not exceeding five to be nominated by Central Government to represent that Government;
3. Such number of officials not exceeding five to be nominated by Central Government from amongst the members of the State Board, of whom not exceeding two shall be from amongst the members of the local authorities functioning within the State;
4. Such number of non - officials not exceeding three to be nominated by Central Government to represent in the interest of agriculture, fishery or industry or trade or any other interest which, in the opinion of the Central Government;
5. Two persons to represent the companies or corporations owned, controlled or managed by the Central Government, to be nominated by that Government:
6. A full time member - secretary possessing qualifications and experience of scientific, engineering or management aspects of pollution control, to be appointed by the Central Government.
The Central Board shall be a body corporate with a perpetual succession and common seal with a right to own property and right to sue or to be sued.
b) Constitution of State Boards:
The State Government shall with effect from such date as it may deem fir, by notification in the Official Gazette, appoint, constitute a State Pollution Control Board under such name as may be specified in the notification to exercise the powers conferred on and perform the functions assigned to that Board under the Act.
The composition of a State Board shall be of the following namely:
1. A full - time Chairman, being a person having special knowledge or practical experience in respect of matters relating to environmental protection or person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the State Government;
2. Such number of officials not exceeding five to be nominated by State Government to represent that Government;
3. Such number of officials not exceeding five to be nominated by State Government from amongst the members of the State Board, of whom not exceeding two shall be from amongst the members of the local authorities functioning within the State;
4. Such number of non - officials not exceeding three to be nominated by State Government to represent in the interest of agriculture, fishery or industry or trade or any other interest which, in the opinion of the State Government;
5. Two persons to represent the companies or corporations owned, controlled or managed by the State Government, to be nominated by that Government:
6. A full time member - secretary possessing qualifications and experience of scientific, engineering or management aspects of pollution control, to be appointed by the State Government.
Terms and Conditions of Service of Members:
A member of a Board, other than a member - secretary shall hold office for a term of 3 years from the date of his nomination. But he shall continue to hold his office even after the expiration of his term until his successor enters upon his office.
A member of a board other than the member - secretary may at any time resign his office by writing under his hand addressed;
a) in the case of the Chairman, to the Central Government of the State Government as the case may be;
b) in any other case of the Chairman of the Board, and thereafter the seat of that member or the Chairman shall become vacant;
A causal vacancy in a Board shall be filed by a fresh nomination and the person nominated to fill the vacancy shall hold office only for the remainder of the term for which the member in whose place he was nominated
The other terms and conditions of service of a member of a Board other than the Chairman and member - Secretary shall be such as may be prescribed.
Disqualification:
This Act also provides for the disqualification for a person to be a member of the Board. No person shall be member of a Board, who -
a) is or at any time has been adjudged insolvent or has suspended payment of his debt or has compounded with his creditors;
b) is of unsound mind or stands so declared by a competent court;
c) is or has been convicted of an offence which, in the opinion of the Central Government or as the case may be, of the State Government involves moral turpitude;
d) is or at any time has been convicted of an offence under this Act,
e) has directly or indirectly by himself or by any partner any share or interest in any firm or company carrying on the business of manufacture, sale or hire of machinery, plant, equipment, apparatus or fitting for the treatment of sewage or trade effluents;
f) is a director or a secretary, manager or other salaried officer or employee of any company or firm having any contract with the Board;
g) has so abused in the opinion of the Central Government or as the case may be of the State Government his position as a member, as to render his continuance on the Board detrimental to the interest of the general public;
Vacation of Seats by Member:
If a member of a Board becomes subject to any of the disqualifications specified in Sec. 6 his seat shall become vacant.
Sec. 7 of the Water Pollution Act 1974, as well as Sec. 9 of the Air Pollution Act, 1981 relate to the vacation of seats by members of the Board.
Meetings of Board:
A Board shall meet at least once in every three months and shall observe such rules of procedure in regard to the transaction of business at its meetings as may be prescribed. But if in the opinion of the chairman, any business of an urgent nature is to be transacted, he many convene a meeting of the Board at such time as he things fit for the aforesaid purpose.
Sec. 8 of the Water pollution Act. 1974 as well as Sec. 10 of the Air Pollution Act, 1981, relate to the meeting of Board.
The Chairman is empowered to convene the meeting of the Board at any time.
4.9 POWERS AND FUNCTIONS OF BOARDS
a) Functions of Central Board: Section 16:
It is generally provided that the Central Board shall have the main function of promoting cleanliness of streams and wells in different areas of the States.
Without prejudice to this function the Central Board may perform all or any or the following functions, namely:
a) advise the Central Government on any matter concerning the prevention and control of them air pollution:
b) co-ordinate the activities of the State Boards and resolve disputes among the;
c) provide technical assistance and guidance to the State Boards, carry out and sponsor investigations and research relating to problems of air pollution and prevention, control or abetment of air pollution;
d) plan and organize the training of person engaged or to be engaged in prgrammes for the prevention, control or abatement of air pollution on such terms and conditions as the Central Board may specify;
e) organize through mass media a comprehensive prgramme regarding the prevention and control of air pollution;
f) collect, compile and publish technical and statistical data relating to airpollution and the measures devised for its effective prevention and control and prepare manuals, codes or guides relating to treatment and disposal of sewage and the trade effluents and disseminate information connected therewith;
g) lay down modify or annul, in consultation with the State Government concerned, the standards for a stream or well;
h) plan and cause to be executed a nation - wide programme for the prevention, control or abatement of air pollution;
i) perform such other functions as may be prescribed;
The Central Board also performs the functions of a State Bard for the Union territories. In conflict between a State Board and the Central Board, the Central Board prevails. Union Government Department of Environment, Forest and Wildlife.
4.10 FUNCTIONS OF CENTRAL BOARD: SECTION 17
Subject to the provisions of this Act, the functions of a State Board shall be:
(i) to plan a comprehensive programme for the prevention, control or abatement or pollution of streams and wells in the State and to secure the execution thereof;
(ii) to advise the State Government on any matter concerning their prevention control or abetment or air pollution;
(iii) to collect and disseminate information relating to air pollution and the prevention, control or abetment thereto;
(iv) to encourage conduct and participate in investigations and research relating to problems of air pollution and prevention, control or abatement of air pollution;
(v) to collaborate with the Central Board in organizing the training or person engaged or to be engaged in programmes relating to prevention, control or abatement of air pollution and to organize mass education programme relating thereto;
(vi) to inspect sewage or trade effluents, works and plants for the treatment of sewage and trade effluents and to review plans, specifications or other data relating to plants set up for the treatment of water works for the purification thereof and the system for the disposal of sewage of trade effluents or in connection with the great of any consent as required by this Act;
(vii) to evolve methods of utilization of sewage and suitable trade effluents in agriculture;
(viii) to lay down standards of treatment of sewage and trade effluents to be discharged into any particular stream taking into account the minimum fair whether dilution available in that stream and the tolerance limits of pollution permissible in the air of the stream, after the discharge or such effluents;
(ix) to advise the State Government with respect to the location of any industry the carrying on of which is likely to pollute a stream or well;
(x) to perform such functions as may be prescribed or as may from time to time, be entrusted to it by the Central Board or the central Government;
Moreover, a State Board may take certain emergency measures if it determines that an accident other unforeseen event has polluted a stream or well. These measures include removing the pollutant, mitigating the damages, and issuing orders to the pollution prohibiting effluent discharges.
4.11 PENALTIES OF PROCEDURE
Failure to comply with the directions given under Sec. 20(2) information about abstraction of water or discharge of effluents or Sec. 20(3) information regarding constitution, installation or operation of any establishment of or any disposal system, within the time specified in the direction would on conviction, be punishable with imprisonment for three months or with fine uptoRs. 10,000/- or with both. Where the failure continues, a fine of Rs. 5,000/- for each such day of continuance is also leviable.
Penalties for certain Acts:
Whoever does the following acts shall be punishable with imprisonment for a term which may extend to three months or fine uptoRs. 10,000/- or with both:-
a) destroys, pulls down, removes, injures or defaces any pillar, post, or stake fixed in the ground or any notice or other matter put up, inscribed, or placed by or under the authority of the Board;
b) obstructs any person acting under the orders or directions of the Board from exercising his powers and performing his functions under the Act;
c) damages any works or property belonging to the Board;
d) fails to furnish to any officer or other employee of the Board any information;
e) fails to intimate the occurrence of any accident or other unforeseen act or event to the Bard or other authorities or agencies;
f) makes false statement knowingly or willfully in giving any information which he is required to give or for obtaining the consent from the Bard under the Act;
INTRODUCTION
The terms air pollution, water pollution and soil pollution refer to the presence of undesirable foreign matter which are harmful to plants, animals and human being and deteriorate the quality of air, water and soil.
Noise pollution has nothing to do with the purity or impurity and as a matter of fact it is the impairment of the quality of the environment by noise.
Ecologically peaking when unwanted sound is released into the atmosphere it is called as "Noise Pollution". It is one of the serious threats to the quality of our environment. This is a very grave and sobering problem but unfortunately there is no or very little awareness in this regard particularly in our country.
Recent studies make a shocking revelation that noise is a slow agent of death. Noise also impairs health, psychologically. It makes man more irritable.
Despite known and far reaching adverse effect of noise on human health, behavior and social order, effective laws to prevent noise pollution have not been enacted in India so far.
India has also become of an increasingly nosy world. Now, India is one of noisiest country with unregulated traffic in cities, coupled with aircraft, construction works, mechanized industries and occupations, home appliances, concerts, stereos, motor racing and rowdy toys.
Noise pollution control, in the area of environment is of recent origin in India. Earlier, it was dealt as a civil/criminal wrong. In law of torts, it is considered as privateand public nuisance and is public nuisance under Sec. 290 of the Indian Penal Code.
Meaning of Noise:
The work titled "The Law Lexicon" defines term Noise means Loud, confused, or senseless sound. A municipal ordinance imposing a penalty for making any noise will be construed to mean such unreasonable noise as is of a nature disturbing to the community.
The Encyclopedia American States on Noise:
Noise by definition is unwanted sound. Water is pleasant to some ears may be extremely unpleasant to others depending on a number of psychological factors, the sweetest music, if it disturbs a person who is trying to concentrate or to sleep, is noise to him, just as the loud of pneumatic riveting hammer is noise to hearing every one.
The Calcutta High Court in Burrabazar Fireworks Dealers Associations V/s Commissioner of police, Calcutta has defined noise in a broad manner when it held; Sound may be defined as any pressure variations that human ear can detect.
Sources of Noise pollution:
Sounds of noise pollution are classified on the basis of the areas of noise such as:
a) Rural sources of noise pollution;
b) Urban sources of noise pollution;
c) Industrial sources of noise pollution.
a. Rural sources:
Rural sources of noise pollution generate least noise pollution because of general absence of ingredients of industrial and urban areas. Diesel engines used for pumping sets and flour mills cause high level noise pollution.
b. Urban Sources:
Urban Sources of noise pollution induces noise produced from automobiles, aircraft, rockets, defence experiments, vegetable and fruit markets, cultural programmes, festivals, advertisements etc. Loudspeakers are the most significant noise pollutants as they are used at a large scale during all types of festivals like Independence Day, Republic Day, electioneering, speech etc.
c. Industrial Sources :
Industrial Sources of noise pollution include noise produced from factories and all other sources of noise pollution in urban areas such as noise created from automobiles, loudspeakers, defence establishment, markets and cultural gathering.
Effect of Noise on People's Lives:
The generation of unreasonable sound within the environment is considered a form of pollution because it lowers the quality of life. There are several specific ways in which excessive noise can effect people adversely.
a) On Hearing:
Continuous exposure to noise levels much above 100, has an adverse effect on hearing ability within a fairly short time. Many workers who are exposed to the noise of jet aircraft or very noisy workshops for even moderate periods soon develop detectable hearing defects. Today it has become the practice for workers in these situations to be equipped with eat protectors.
b) On Mental and Physical Health:
Most of the people complain that noise makes them mentally or physically ill and thus reduce their working efficiency. Experiments have confirmed these claims.
c) One Communication:
External sounds can interfere with conversation and use of the telephone, as well as the television programmes. It can thus affect the efficiency of offices, schools and other places where communication is of vital importance.
d) On Psychology:
Psychology effects, include the high level of noise, causes many behavioural changes among humans as well as animals, unwanted noise very often causes annoyance, irritation and fatigue which result into low performance, low efficiency and frequent errors.
The tradition of preserving sacred groves, the nurseries of wildlife species, playeda very small part in the maintenance of ecological diversity. In the past, the declared conservation policy was biased to animals, especially bit cats and large mammals, while protection and conservation of plants, forest trees, micro-organisms, mangroves and biological wealth were ignored.
In the late seventies, the court did not favour saving one of the largest evergreen tropical forests rich with diverse, and complex flora and fauna.
However, scientists, laid emphasis on the need for demarcation and protection of gene pool reserves and gene sanctuaries.
They stressed that for a long term conservation of bio-diversity and development of sustainable pattern of resource use, the involvement of the local people was essential.
Convention on Bio-diversity:
The idea of conservation of bio-diversity has been developed over wide-ranging efforts at the international level. The World Conservation Strategy gave a major policy guidance. However, it was the coming into force of the United Nations Convention on Bio-diversity with more concrete objectives and greater consensus, which brought about a breakthrough.
The Convention on Biological Diversity lays down three objectives -
(i) the conservation of biological diversity;
(ii) the sustainable use of its components;
(iii) the fair and equitable sharing of benefits arising out of the utilization of genetic resources;
Biological diversity was defined as the 'variability among living organisms from all sources including inter alia, terrestrial, marine and other aquatic eco-system and the ecological complexes of which they are part; this included diversity within species, between species and of eco-system.
Although the need for and modalities of a protocol on procedures in the field of transfer, handling and use of 'living modified organism' resulting from biotechnology were necessary, safety regulations were to be provided for handling such organisms with available information on potential adverse impact of such organisms.
Indian Legislation:
India is a party to the CBD and has enacted the Biological Diversity Act 2002 (BDA).
The following are the thrust areas of the BDA
· Assess to biological resources and information.
· Benefit sharing with conserves of biological resources/creators and holders of knowledge and
information relating to use of biological resources.
· Notification of areas important from the stand point of biological diversity as biological
heritage sites.
· Protection of threatened species.
· Involvement of local bodies in sustainable management of bio-diversity and the preparation of
bio-diversity registers.
· Establishment of bio-diversity authority, state bio-diversity boards and bio-diversity
committees at block/village level to implement the legislation.
INTRODUCTION
Biodiversity has a vast number of potential uses for human being. India has been rarely associated with its rich biological diversity yet at the end of the 20th Century; India is understood to be high on the list of countries with one of the highest threat rates to species. It is thus relevant at this point of time to look at the framework for legal protection of wildlife in India.
Loss of habitat has been identified as the most important factor responsible for the extinction of species. Their survival is inextricably linked to the overall health and stability of the ecosystem in which they life.
Wildlife Act and Forest Act: Policy and Perspective:
The Wildlife Act and the Forest Act together establish five main categories of protected areas; National parks, sanctuaries, reserved forests, protected forests and village forests. The categories clearly have not emerged out of a comprehensive national scheme for conservation, utilization and development of natural and biological resources.
The categories do not have well defined objectives and functions, let alone a clear demarcation between them.
One is at a loss to search for a rationale or necessity underlying the classification of habitats into these five categories.
a. Pospourri of protected areas:
At the outset the distinction between national parks and sanctuaries eludes any inquiry into the real differences in their biological features, socio-economic objectives and conservation functions as envisaged by the Wildlife Act.
The declared objectives of the Wildlife Act are the protection of wild animals and birds. The national parks and sanctuaries are to be constituted for the clearly mandated purpose of protecting propagating or developing wildlife or its environment.
b. Coherent National Parks system:
Traditionally, the basis of classification of different protected areas have been the seemingly divergent purpose that motivate the establishment of protected areas namely non-consumptive purposes such as wildlife conservation recreation and scientific study on the one hand and consumption purpose aimed at wise use of resources on the other.
An examination of the different models of national and international legal regimes for protected areas reveals an attempt at ordering the protect areas system in such manner.
a. Glimpses of international efforts:
The major international conventions and agreements dealing with the protection of wildlife habitats do not adopt any uniform names for the identification and classification of different habitats that need protection. The exclusive conservation oriented protected areas are variably call national parks, strict wilderness reserves and strict nature reserves.
Conservation areas have an additional sub-category composed of strict wilderness reserves and strict nature reserves referred to above, whose natural form is protected undisturbed from is protected undisturbed from any kind of human intervention, even for the purpose of conservation, representing another strategy for the preservation of natural wildlife habitat.
The conservation oriented protected areas invariably share the following essential features:
(i) the boundaries of the said areas cannot be altered nor can any portion thereof be alienated,
except by the competent legislative authority;
(ii) exploitation for commercial purpose and any kind of activity that is likely to affect the primary
objective of wildlife conservation is prohibited;
(iii) hunting, killing destruction, capturing or collecting any flora and fauna is strictly prohibited
except for scientific investigation or effective management of the wildlife;
(iv) the areas are open for compatible recreational and educational activities;
b. Categorization by International Union for Conservation of Nature and Natural Resources:
One of the very first performed by the Commission on National Parks and Protected Areas of the International Union for Conservation of Nature and Natural Resources was categorization of different protected areas pm the basis of their objectives.
The CNPPA report identified totally eight categories of protected areas:
(i) Scientific reserve,
(ii) National park,
(iii) Natural monument/ national landmark,
(iv) Nature conservation reserve/managed nature reserve/wildlife sanctuary,
(v) Protected landscape or seascape.
(vi) Resource reserve,
(vii) Anthropological reserve/natural biolic area,
(viii) Multiple use management areas.
c. Protected areas in India; System in Disarry:
The CNPPA reportis compelling in its rationale. The conclusion that follows after a review of the protected areas system in India is that it fails to embody a frame work that can best harmonies the conflicting claims over wildlife resources of the country.
It directly points to the absence of an underlying policy framework drawn up on the basis of:
(i) an assessment of existing stock of flora and fauna and natural resource,
(ii) an estimate of current and future economic and social needs of the people,
(iii) information on the existing land used,
(iv) plans for future development and their positive and negative effects on possible protected areas
programmes.
d. Restoration of ecosystem:
An important component of a unified national protected areas system is the regeneration of degraded lands outside the protected areas; prerequisite for regeneration is an effective set of land regulations meant to prevent further degradation of valuable ecosystems.
Factors responsible for such a dismal scenario are numerous, including agricultural and irrigation practices, construction of dams, industrial activities, mining operations, urban growth and others. A search for the root cause for degradation points to the absence of a proper land - use planning and management.
e. Administrative set-up matching precept and practice:
A unified national protected areas system has to be supported by an administrative ser-up whose mission coincides with the different objectives of the various protected areas.
The location of an administrative agency within the bureaucratic maze is a strong detriment of its ability to accomplish its goals. When an administrative agency is within an umbrella organization with various responsibilities its efficacy is limited by the overall structure and philosophy of the parent organization.
Appointment of Director and other officers: Sec. 3
The Central Government may, for the purposes of this Act, appoint:
1. A director of Wildlife Preservation;
2. Assistant Directors of Wild Life Preservation;
3. Such other officers and employees as may be necessary;
Appointment of Chief Wildlife Warden and other officers: Sec. 4
The State Government may for the purpose of this Act, appoint:
1. A Chief Wildlife Warden;
2. Wildlife Wardens;
3. Such other officers and employees as may be necessary;
Constitution of Wild Life Advisory Board: Sec.6
The State Government or in the case of a Union territory, the Administrator, shall as soon as may be after the commencement of this Act, constitute a Wild Life Advisory Board consisting of the following members, namely:
a) The Minister in charge of Forests in the State or Union territory, or if there is no such Minister, the Chief of Secretary to the State Government or as the case may be, the Chief Secretary to the Government of the Union territory, who shall be the Chairman.
b) Two members of the State Legislature or two members of the Legislature of the Union territory.
c) Secretary to the State Government or the Government of the Union Territory, in charge of forests;
d) Chief Conservator of Forests;
e) An officer to be nominated by the Director;
f) Such other officers and non-officials, not exceeding 15, who, in the opinion of the State Government are interested in the protection of wildlife.
Procedure to be followed by the Board: Sec. 7
1. The Board shall meet at least twice a year at such place as the State Government may direct.
2. The Board shall regulate its own procedure.
3. No act or proceeding of the Board shall be invalid merely by reason of the existence of any vacancy
therein or any defect in the constitution thereof or any irregularity in the procedure of the Board not
affecting the merits of the case.
Duties of Wild Life Advisory Board: Sec. 8
It shall be the duty of the Wild Life Advisory Board to advise the State Government:
a) in the selection of areas to be declared as sanctuaries, National Parks, game reserves and closed areas and
the administration thereof;
b) in formulation of the policy in granting licenses and permits under this Act;
c) in any matter relating to the amendment of any schedule;
d) in any other matter connected with the protection of wildlife, which may be referred to it by the State
Government;
4.15 HUNTING OF WILD ANIMALS
Hunting of wild animals: Sec. 9
No person shall hunt any wild animal specified in Schedule I
No person shall hunt any wild animal specified in Schedule II, Schedule III and Schedule IV except under, and in accordance with, the conditions specified in a licence granted under Sec.9 (5).
An application under Sec.9 (3) may be made for all any of the following kinds of licences namely:
(i) Special game hunting licence;
(ii) Big game hunting licence;
(iii) Small game hunting licence;
(iv) Wild animal trapping licence;
A licence granted under this Section shall:
(i) be in such form as may be prescribed;
(ii) be valid for such period as many be specified therein;
(iii) be subject to such terms, conditions and restrictions as may be prescribed;
(iv) not be transferable;
Maintenance of records of wild animals killed or captured: Sec. 10
1. The holder of every licence shall maintain a record, containing such particulars as may be prescribed, of the wild animals, other than vermin, killed or captured by him during the currency of the licence.
2. When any animal specified in Schedule IIandSchedule II is killed, wounded or captured by the holder in a licence, he shall not later than fifteen days from the date of such killing, wounding or capture, or before leaving the area specified in the licence, whichever is earlier, intimate in writing the Chief Wild Life Warden or the authorized officer, the prescribed particulars of such animals killed, wounded or captured by him.
Grant of permit for special purposes: Sec. 12
Notwithstanding anything contained elsewhere in this Act, it shall be lawful for the Chief Wild Life Warden to grant, with the previous permission of the State Government a permit, by an order in writing stating the reasons therefore, to any person, on payment of such fee as may be prescribed, which shall entitle the holder of such permit to hunt subject to such conditions as may be specified therein any wild animal specified in such permit for the purpose of:
a) Education;
b) Scientific research;
c) Collection of specimens for zoological gardens, museums and similar institutions;
Suspension or Cancellation of Licence: Sec. 13
The Chief Wild Life Warden or the authorized officer may, subject to any general or special orders of the State Government for good and sufficient reason; to be recorded in writing, suspend or cancel any licence granted under this Chapter.
Provided that no such suspension or cancellation shall be made except after giving the holder of the licence a reasonable opportunity of being heard.
Hunting of young and female of wild animals: Sec. 15
No person shall unless specially authorized by a licence, hunt the young of any wild animal, other than vermin, or any female or such animal or any deer with antlers in velvet.
Restrictions on hunting: Sec. 17
No person shall:
a) hunt any wild animal from or by means of a wheeled or a mechanically propelled vehicle on water or
land, or by aircraft;
b) use an aircraft, motor vehicle or launch for the purpose of driving or stampeding any wild animal;
c) hunt any wild animal with chemicals, explosives, nets, pitfalls, poisons, poisoned-weapons, snares or
traps, except in so far as they relate to the capture of wild animals under a Wild animal Trapping
Licence;
d) hunt any special game or big game other than with a rifle, unless specially authorized by the licence
or hunt with a shot gun using singly-slug bullets;
e) for the purpose of hunting set fire to any vegetation;
f) use any artificial light for the purpose of hunting, except when specially authorized to do so under a
licence in the case of carnivore over a kill;
g) hunt any wild animal on a salt-lick or water hole or other drinking place or on path or approach to
the same, except sand grouse and water-birds;
h) hunt with the help of dogs, any wild animal except water-bird, chakor, partridge or quail;
i) hunt any wild animal on any land not owned by Government without the consent of the owner of his
agent or the lawful occupier of such land;
j) notwithstanding that he holds a licence for the purpose, hunt any wild animals during the closed time
referred to in Sec. 16.
4.17 SANCTUARIES, NATIONAL PARKS, GAME RESERVES AND CLOSED AREAS
SANCTUARIES:
Declaration of Sanctuary: Sec.18
The State Government may, by notification, declare any area to be a sanctuary if it considers that such area is of adequate ecological, faunal, floral, geomorphologic, natural or zoological significance, for the purposes of protecting, propagating or developing wild life or its environment.
The notification referred to in Sec. 18 (1) shall specify, as nearly as possible, the situation and limits of such area.
Collector to determine rights: Sec. 19
Whenever any areas is declared to be a sanctuary, the collector shall inquire into and determine the existence, nature and extent of the rights of any person in or over the land comprised within the limits f the sanctuary.
Bar of accrual of rights: Sec.20
After the issue of a notification under Sec.18, no right shall be acquired in, on or over the land comprised within the limits of the area specified in such notification, except by succession, testamentary or intestate.
Proclamation by Collector: Sec. 21
When a notification has been issued under Sec. 18, the collector shall publish in the regional language in every town and village in or in the neighborhood of the area comprised therein, a proclamation:
a) specifying, as nearly as possible, the situation and the limits of the sanctuary;
b) requiring any person, claiming any right mentioned in Sec. 19, to prefer before the Collector, within two months from the date of such proclamation, a written claim in the prescribed form, specifying the nature and extent of such right with necessary details and the amount and particulars of compensation, if any, claimed in respect thereof;
Powers of Collector: Sec. 23
For the purpose of such inquiry, the collector may exercise the following powers, namely:
a) the power to enter in or upon any land and to survey, demarcate and make a map of the same or to authorized any other officer to do so;
b) the same powers as are vested in a civil court for the trial of suits;
Restriction on entry in sanctuary: Sec. 27
No person other than:
a) a public servant on duty;
b) a person who has been permitted by the Chief Wild Life Warden or the authorized officer to reside within the limits of the sanctuary;
c) a person who has any right over immovable property within the limits of the sanctuary;
d) a person passing through the sanctuary along a public highway;
Grant to permit: Sec. 28
The Chief Wild Life Warden may, on application, grant to any person a permit to enter or reside in a sanctuary for all or any of the following purposes, namely:
a) Investigation or study of wild life and purposes ancillary or incidental thereto;
b) Photography;
c) Scientific research;
d) Tourism;
e) Transaction of lawful business with any person residing in the sanctuary.
Control of sanctuaries: Sec. 33
The Chief Wild Life Warden shall be the authority who shall control, manage and maintain all sanctuaries and for that purpose, within the limits of any sanctuary;
a) May construct such road, bridges, buildings, fences or barrier gates, and carry out such other works as he may consider necessary for the purposes of such sanctuary;
b) Shall take such steps as will ensure the security of wild animals in the sanctuary and the preservation of the sanctuary and wild animals therein;
c) May take such measures in the interest of wild life, as he may consider necessary for the improvement of any habitat;
d) May regulate, control or prohibit in keeping with the interests of wild life, the grazing or movement of cattle;
e) May regulate, control or prohibit any fishing;
4.18 NATIONAL PARKS
Declaration of National Parks: Sec. 35
Wherever it appears to the State Government that an area, whether within a sanctuary or not, is by reason of its ecological, faunal floral, geomorphological or zoological association or importance, needed to be constructed as a National Park for the purpose of protecting, propagating or developing wild life therein or its environment, it may, by notification declare its intention to constitute such area as a National Park.
When the following events have occurred, namely;
a) the period for preferring claims has elapsed, and all claims, if any made in relation to any land in an area intended to be declared as a National Park, have been disposed of by the State Government;
b) all rights in respect of lands proposed to be included in the National Park have become vested in the State Government;
c) the State Government shall publish a notification specifying the limits of the area which shall be comprised within the National Park and declare that the said area shall be a National Park on and from such date as may be specified in the notification.
d) No alteration of the boundaries of a National Park shall be made except on a resolution passed by the Legislature of the State.
e) No person shall destroy, exploit or remove any wild life from a National Park or destroy or damage the habitat of any wild animal or deprive any wild animal of its habitat within such National Park excepted under an in accordance with a permit granted by the Chief Wild Life Warden.
f) No grazing of any cattle shall be permitted in a National Park and no cattle shall be allowed to enter therein except where such cattle is used as a vehicle by a person authorized to enter such National Park.
GAME RESERVE:
Declaration of game reserve: Sec. 36
The State Government may, by notification, declare any area to be a game reserve. No hunting of any wild animal shall be permitted in such reserve except under and in accordance with a licence issued under this section by the Chief Wild Life Warder or the authorized officer.
CLOSED AREA:
Declaration of closed area: Sec. 37
The State Government may, notification, declare any area closed to hunting for such period as may be specified in the notification. No hunting of any wild animal shall be permitted in a closed area during the period specified in the notification referred in Sec. 37 (1).
Alarmed at India's rapid deforestation and the resulting environmental degradation, the Central Government enacted the Forest (Conservation) Act in 1980.
As amended in 1988, the Act requires the approval of the Central Government before a sate 'dereserves' reserved forest, uses forest land for non-forest purposes, assigns forest land to a private person or corporation, or clears forest land for the purpose of reforestation.
As advisory committee constituted under the Act advises the Centre on these approvals.
Constitution of Advisory Committee - Sec.3
The Central Government may constitute a Committee consisting of such number or persons as it may deem fit to advice that Government with regard to:
a) the grant of approval under Sec. 2;
b) any other matter connected with the conservation of forests which may be referred to it by the Central Government;
Power to make rules - Sec. 4
The Central Government may, be notification in the office gazette, make rules for carrying the provisions of this act.
Every rule made under this act shall be laid, as soon as may be after it is made before each house of parliament, while it is in session for a total period of 30 days which may be comprised in one session or in two or more successive sessions.
UNIT -V
5.1 INTRODUCTION
Man has realized that he can no longer rely on providence to maintain the dedicated interconnected communities of animals and plants. Environment is meant the totality of all extrinsic physical and biotic factors affecting the life and behavior of all living things. So, it is important that the environment of which land, water, air, human beings, plants and animals are the components be preserved and protected from degradation to enable maintenance of the ecological balance.
In 1986, the Government enacted the Environment protection Act to provide for the protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants and property.
Object of the Act:
Although there are existing laws dealing directly or indirectly, with several environmental matters, it is necessary to have a general legislation for environmental protection. Existing laws generally focus on specific types of pollution or on specific categories of hazardous substances.
Some major areas of environmental hazards are not covered. There are inadequate linkages in handling matters of industrial and environmental safety, control mechanisms to guard against slow insidious build up of hazardous substances; especially new chemicals in the environment are weak.
Scope and Scheme of the Act:
The act into force on 19-11-1986 and extends to the whole of India. The Act fixes responsibility on person carrying on industrial operations or handling hazardous substances to comply with certain safeguards for prevention, control and abatement of environmental pollution and also enjoins upon them to furnish certain information to the authorities in certain cases.
The potential scope of the Act is broad, with environment defined to include water, air and land and inter-relationships with exist among water, air and land and human beings and other living creatures, plants, micro-organisms and property.
Environmental pollution is the presence of any environmental pollutant, defined as any solid, liquid, or gaseous substance present in such concentration as may be or may tend to be, injurious to the environment. The Central Government may also notify rules, orders, guidelines etc, under the Act.
Definitions:
Sec. 2 (a) ENVIRONMENT means water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property.
Sec. 2 (b) ENVIRONMENT POLLUTANT means any solid, liquid or gaseous substances present in such concentration as may be, or tend to be injurious to environment;
Sec. 2 (c) ENVIRONMENT POLLUTION means the presence in the environment of any environmental pollutant.
5.2 GENERAL POWERS OF THE CENTRAL GOVERNMENT
The Central Government has been granted general powers under Sec. 3 of the Act to take all such measures for protecting and improving the quality of the environment and for preventing controlling and abating environmental pollution, which may include measures with respect to all or any of the following matters:
1) Coordinating the actions of various State Governments, officers and authorities under this Act, or rules made there under of under any other law concerning environmental pollution;
2) Planning and executing of a nation-wide programme for the prevention, control and abatement of environmental pollution;
3) Laying down standards for the quality of environment;
4) Laying down standards for emission or discharge of environmental pollutants;
5) Restricting the carrying on of industries, operations of processes in certain area or permitting them to be carried out subject to certain safeguards;
6) Laying down procedures and safeguards for the handling of hazardous substance;
7) Examining manufacturing processes, materials and substances as are likely to cause environmental pollution;
8) Establishing or recognizing environmental laboratories;
9) Collecting and disseminating information relating to environmental pollution;
10) Preparing manuals codes, guides, etc., to prevent control and abate environmental pollution.
Appointment of officers and their powers and functions:
Sec. 4
The Central Government may also appoint officers and entrust them with certain powers and functions under the Act. The authorities and officers so constituted or appointed shall be subject to the general supervision, direction and control of the Central Government.
Power to give directions:
Sec. 5 empowers the Central Government, in exercise of its powers and performance to give directions to any person, officer or authority.
Power to make rules:
Sec. 6 empowers the Central Government to make rules to carry out the purpose of the legislation in relation to matters falling within purview of Sec. 3
These rules may provide for all or any of the following matters;
1) The standards of quality or air, water or soil for various areas and purposes;
2) The maximum allowable limits of concentration of various environmental pollutants for different areas;
3) The procedures and safeguards for the handling of hazardous substances;
4) The prohibition and restrictions on the handling of hazardous substances in different areas;
5) The prohibition and restrictions on the location of industries and the carrying on of processes and operations in different areas;
6) The procedures and safeguards for the prevention of accidents which may cause environmental pollution and for providing for remedial measures for such accident.
5.3 PREVENTION, CONTROL AND ABATEMENT OF ENVIRONMENTAL POLLUTION
Chapter III of the Act lays out the substantive provisions relating to prevention, control and abatement of environmental pollution.
The provisions are:
1) No person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or emitted, any environmental pollutant in excess of such standards as may be prescribed.
2) No person shall handle or cause to be handled any hazardous substance except in accordance with such procedures and after complying with such safeguards as may be prescribed.
Sec.8 enjoins upon person to comply with the procedures lay down and safeguards prescribed under the rules in the handling of hazardous substances.
Furnishing of information to authorities and agencies:
Sec.9 enjoins upon certain person to furnish information to authorities and agencies in cases where the discharge of environmental pollutant in excess of the prescribed standards occurs or is apprehended to occur due to any accident or other unforeseen act or ever.
Person responsible for discharge of pollutants in excess of prescribed standards must prevent or mitigate the pollution and must report the discharge to governmental authorities.
Power to enter, inspect, take samples etc.
The powers of entry and inspection are provided by Sec. 10 of the Act according to which, any person empowered by the Central Government in this behalf shall have the right to enter at all reasonable times, any place for the purpose of;
a) Performing any of the functions entrusted to him;
b) Determining whether and if so in what manner, any such functions are to be performed;
c) Determining whether any of the provisions of the act of rules made there under or any notice, order,
directions etc.,
d) Examining or testing any equipment industrial plant, record, register, document etc. or for
conducting a search of any building in which an offence under this act has been committed or is
apprehended to be committed.
Sec. 10 (2) provides that every person carrying on any industry, operation or process or handling and hazardous substances shall be bound to render all assistance to the person empowered by the Central Government for carrying out his functions under the act and failure to do so without any reasonable cause or excuse, could render him guilty of an offence under this act.
Sec. 10 (3) provides that any person willfully delaying or obstructing any person empowered under Sec. 10(1) in the performance of his functions, shall also be guilty of an offence under this act.
Power to take sample and procedure to be followed in connection therewith:
The Central Government or any officer empowered by it in this behalf, shall have power under Sec.11 of the act to take, for the purpose of analysis, sample of air, water, soil or other substances from any factory, premises or other place in such manner as may be prescribed.
Such collection of samples is subject fulfillment of certain requirement by the person taking the sample, viz.,
a) A notice of the intention to have the sample so analyzed is to be served on the occupier or his agent or the person in charge of place;
b) The sample is to be collected in the presence of the occupier or his agent or the person in charge;
c) The container in which the sample has been placed is to be marked and sealed and signed both by the person taking the sample and the occupier or his agent or the person on charge.
Environmental laboratories:
The act provides that the Central Governmentmay by notification in the Official Gazette, establish one or more environmental laboratories or recognize one or more laboratories institutes as environmental laboratories to carry out certain functions under the Act.
As per the provisions of Sec. 14, any document purporting to be a report signed by a Government Analyst may be used as evidence of facts stated therein in any proceeding under this Act.
Offences and penalties:
The act provides for severe penalties - any person who fails to comply with or contravenes any of the provisions under the Act or the rules, orders, or directions issued under the Act shall be punished, for each failure or contravention, with a person term of upto 5 years or a fine of upto one lakh, or both. The Act imposes an additional fine of upto 5000 for every day of continuing violation.
If a failure or contravention occurs for more than once after the date of conviction, an offender may be punished with a prison term which may extend to seven years.
Offences by companies:
Where any offence under this Act has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to the company for the conduct of the business of the company, and the company itself, shall be deemed to be guilty of the offence and shall be liable to be proceeded against.
When an offence under this act has been committed by a company, it is proved that the offence was committed with the consent or connivance of any director, manager secretary or other offence of the company, such director, manager secretary or other officer shall be deemed to be guilty of the offence and shall be liable to be proceeded against accordingly.
The Environment (protection) Rules 1986, came force on 19 November 1986. The Environment (protection) Rules seek to carry out the provisions of Environment protection Act (EPA), and to meet various specific problems in relation to the protection and improvement of the environment.
The EP Rules specify the standards for emission or discharge or environmental pollutions from industries, operations, or process. However, the Central Pollution Control Board or State Pollution Control Boards can stipulate more specific standards for any specific industry, operation or process.
The issuance of directions denotes a coercive power. The EP Rules provide those Safeguards include an opportunity of being heard. However, when the Central Government is of the pinion that in view of the likelihood of a grave injury to the environment, it is not expedient to provide an opportunity to file objections against a proposed direction, it may, for reasons recorded in writing, issue direction without giving such an opportunity.
A notice with full details of the proposed prohibition or restriction could be published, and objectives field within sixty days in writing. The time limit within which the Central Government should consider this objection was fixed originally as 120 days.
The EP Rules specify the authorities to whom this information has to be given the officer in charge of emergency or disaster relief operation in a district, the central Pollution Control Board or a State Pollution Control Bard, or its authorized regional officer, or any authorities or agencies specified in the schedule to the EP Rules.
Although a separate and independent concept environment audit finds its way into the EP Rules. This was added by the amendment notification in the year 1992. With a plethora of industrial ventures at the take - off stage of development, environmental auditing recognizes self -regulation among the industry with a view to tailoring environmental safeguard into industrial activities.
The EP Rules made the submission of an environment audit report compulsory. Though originally stipulated to be filed on or before 15 May of every year, the audit report, subsequently worded as audit statement, is to be filed on or before September every year to the State Pollution Control Board.
Every person carries on an industry, operation or process requiring consent under the Water Act or Air Act or authorization under the Hazardous wastes (Management and Handling) Rules 1989, has to submit this report for the financial year, ending 31 March, to the State Pollution control Board.
The benefits of environment audit can never be denied. Some of the remarkable benefits of audit include greater industry compliance with environmental laws, disclosure of data on waste generation, adoption of clean technology for pollution prevention, waste minimization, recycling and utilization, arrangements for off-site disposal, and revealing of data on consumption of water and raw materials.
It is a management tool, which ensures cost-effective compliance with the polices of the industrial undertaking, reduces occurrence of industrial accidents and strengthen expertise at the operational level.
Delegated legislation can be in various forms. It not only includes rules, regulations, notifications, orders and bylaws, but also programmes and schemes, which the executive formulates on the strength of the power delegated by the legislature. The EPA empowers the Central Government to take all such measures for the protection and improvement of the quality of environment. These measures include 'planning and execution of nationwideprogramme for the prevention and control of pollution' and 'laying down standards for quality of environment in its various aspects'.
The Ministry of Environment and Forests decided to institute a scheme on leveling environment friendly products. Household and other consumer products can be accredited and labeled as satisfying environmental criteria, in addition to quality requirements laid down by the Bureau of Indian Standards for the product. The label is known as ECOMARK. The logo has subsequently been notified.
The scheme was meant to provide incentive to the manufactures, to assist consumers to become environmentally responsible, and to improve the quality of environment leading to sustainable management of resources.
The scheme is to operate through three committees - a steering committee to determine the product categories, a technical committee to identify the specify product on individual criteria, and Bureau of Indian Standards to assess and certify the product. After hearing objections, the Central Government will fix and notify the criteria for the prduct.
In certain categories such as toilet soaps and detergents, paints, paper and laundry soaps, the Ministry of Environment and Forests has already finalized and notified the criteria. In general they include possibility for resources, and reduction of adverse environmental impact.
The manufactures will apply to the Bureau of Indian Standards for testing and certification of products. The scheme has to gain momentum. Having fixed the criteria, initiative has to manufactures.
The Bio-Medical Waste (Management and Handling) Rules 1988, apply to all persons and institutions that generate, collect, receive, store, transport, treat, dispose, or handle bio-medical waste in any form.
The Pollution Control Board is the prescribed authority to grant authorization for the generation, collection, reception, storage, transportation, treatment, disposal and any other form of handling of bio-medical waste.
It shall be the duty of every occupier of an institution generating bio-medical waste to take all steps to ensure that such waste is handled without any adverse effect to human health and the environment.
The institution includes a hospital, nursing home, clinic, dispensary, veterinary institution, animal house, pathological laboratory, and blood bank by whatever name called Bio-medical Waste Management Rules.
Every occupier, where required, shall set up requisite Bio-medical Waste treatment facilities like incinerator, autoclave, and microwave system for the treatment of waste. In the alternative, he should ensure requisite treatment of waste at a common waste treatment facility, or any other waste treatment facility.
Bio-medical Waste shall not be mixed with other wastes, but segregated into containers/bags at the point of generation prior to its storage. Transportation, treatment and disposal. The containers shall be labeledwith sufficient information of its contents. Untreated Bio-medical Waste shall transport only in such vehicle as may be authorized for the purpose by the competent authority.
The municipal body of the area shall continue to pick up and transport segregated non-bio-medical waste generated in hospitals and nursing homes, as well as duty treated bio-medical wastes for disposal at municipal dumpsite.
The local bodies shall be responsible for providing suitable common disposal/incineration sites for the bio-medical wastes generated in the area under their jurisdiction, and in areas outside the jurisdiction of any municipal body.
5.8 THE 'OZONE' RULES
The rules relating to control of ozone depletion provide for prohibition on new investments with ozone depleting substances, regulation of sale, purchase, use of ozone depleting substances and control of production and consumption of ozone depleting substances.
There is regulation of import, export and sale of products made with or containing ozone-depleting substances. These regulations are also on reclamation and destruction of ozone depleting substances and on manufacture, import and export of compressors.
Costal nations have a particular interest in safeguarding their coastlines. With peculiar ecological characteristics, the coastal zone is a meeting point for land, sea and inland waters.
Costal zones have rendered significant contributions in the development of civilizations, in the past, human contract grew across seas. At times, it also turned into a barrel ground for power and foreign domination.
Ecologically significant, the coastal zone in India is 'characterized by diversity of habitats, the extensive beaches of silvery sand, spits and suns, rugged cliffs or slippery domes of rocks, salt marshes, estuaries, lagoons, mangrove swamps, coral reefs, sea grass beds, and marshy wetlands which are locus of lotus and lilies.
Developmental measures in the zone have, no doubt created problems. Mushrooming of housing colonies, selection of the coast for industrial sites and conversion of lands for non-cast uses, hit at the backbone of the self-sustaining traditional economy of coastal villages.
The development of harbors and urban centers in the coastal belt led to degradation of the natural habitat and eco-system. Pollution from municipal wastes, deadly chemicals and effluents increase. Mechanization of fishing industry resulted in monopolization by vested interests and threw traditional fishermen out of their lifeline.
Coastal Zone Plans:
The coastal Zone plans notification imposes on the coastal states and union territories the responsibilities of preparing coastal zone management plans within one year of the CRZ Notification. The states and the union territories are required to identify and classify coastal zone in their respective territories in accordance with the CRZ Notification.
5.10 THE INDIAN FOREST ACT, 1927
An Act to consolidate the law relating to forests, the transit of forest - produce and the duty leviable on timber and other forest - produce.
Whereas it is expedient to consolidate the law relating to forests, the transit of forest - produce and the duty leviable on timber and other forest produce.
Sec.2 (4) says that FOREST PRODUCT means its includes:
a) The timber, charcoal caoutchouc, catechu, wood-oil, resin, natural varnish, barklac, mahua flowers, ahua seeds, kuth and myrabolams;
b) Trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees;
c) Plants not being trees (including grass, creepers, reeds and moss), and all parts or produce of such plants;
d) Wild animals and skins, tusks, hours, bones, silk cocoons, honey and wax, and all other parts or produce of animals;
e) Peat, surface soil, rock, and minerals (including limestone, laterite, mineral oils), and all products of mines or quarries.
5.11 KINDS OF FOREST
There are three kinds of forest, namely:
1. Reserved Forests.
2. Village Forests.
3. Protected Forests.
5.12 RESETVED FORESTS
Power to reserve forests: Sec.3
The State Government may constitute any forest-land or waste-land which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest - produce of which the Government is entitled, a reserved forest in the manner hereinafter provided.
Notification of State Government: Sec.4
Whenever it has been decided to constitute any land a reserved forest, the State Government shall issue a notification in the Official Gazette:
a) declaring that it has been decided to constitute such land a reserved forest;
b) specifying, as nearly as possible, the situation and limits of such land;
c) appointing an officer to inquire into and determine the existence, nature and extent of any rights
alleged to exist in favour of any person in or over any land comprised within such limits or in or
over any forest - product;
Proclamation by Forest Settlement Officer: Sec. 6
When a notification has been issued under Sec. 4, the Forest Settlement Officer shall publish in the local vernacular in ever down and village in the neighbourhood of the land comprised therein a proclamation:
a) specifying, as nearly as possible, the situation and limits, will ensure on the forest;
b) explaining the consequences which, as hereinafter provided, will ensure on the reservation of
such forest;
c) fixing a period of not less than three months from the date of such proclamation;
Power of Forest Settlement Officer: Sec.8
For the purpose of such enquiry the Forest Settlement Officer may exercise the following powers, that is to say:
a) power to enter, by himself, of any officer authorized by him for the purpose upon any land, and
to survey, democrate and make a map of the same;
b) the powers of a civil court in the trial of suits;
Act prohibited in such forests: Sec. 26
Any person who, in a reserved forest:
a) kindles, keeps, or carries any fire except at such seasons as the Forest Officer may notify in this
behalf;
b) trespass or pastures cattle, or permits cattle to trespass;
c) causes any damage by negligence in felling any tree or cutting or dragging any timber;
d) fells, girdles, lops. or burns any tree or strips off the dark or leaves from, or otherwise damages,
the same;
e) quarries stone, burns lime or charcoal, or collects, subject to any manufacturing process,
remove nay forest produce;
f) cleats or breaks up any land for cultivation or any other purpose;
5.13 VILLAGE FORESTS
The State Government may assign to any village - community the rights of Government to or over any land which has been constituted reserved forests, and may cancel such assignment. All forests so assigned shall be called village - forests.
The State Government may make rules for regulating the management of village - forests, prescribing the conditions under which the community to which any such assignment is made may be provided with timber or other forest-produce or pasture, and their duties for the protection and improvement of such forest.
5.14 PROTECTED FORESTS
Protected forests: Sec. 29
The forest - land and waste - land comprised in any such notification shall be called a 'protected forests'.
No such notification shall be made unless the nature and extent of the rights of Government and of private persons in or over the forest land and waste land comprised therein have been inquired into and recorded at a survey or settlement, or in such other manner as the State Government think sufficient.
Power to make rules for protected forests: Sec. 32
The State Government may make rules to regulate the following matters, namely:
a) the cutting, sawing, conversion and removal of trees and timber, and the collection, manufacture and removal of forest - produce, from the protected forests:
b) the granting of licences to the inhabitants of towns and villages in the vicinity of protected forests to take trees, timber of other forest - produce for their own use, and the production and return of such licences by such persons;
c) the granting of licences to person felling or removing trees or timber or other forest produce from such forests for the purposes of trade, and the production and return of such licences by such persons;
d) the payments, if any to made by the persons mentioned in clause (b) and (c) for permission to cut such trees, or to collect and remove such timber or other forest - produce;
e) the other payments, if any, to be made by them in respect of such trees, timber and produce, and the places where such payment shall be made;
f) the examination of forest - produce passing out of such forests;
g) the clearing and breaking up of land for cultivation or other purposes in such forests;
h) the cutting of grass and pasturing of cattle in such forests;
Sec. 33 Penalties for acts in contravention of notification under Sec. 30 or of rules under Sec. 32:
Any person who commits any of the following offences, namely:
a) fell, girdles, lops, taps or burns any tree reserved under Sec. 30 or strips off the bark or leaves fro, or otherwise damages, any such tree;
b) contrary to any prohibition under Sec. 30 quarries and stone, or burns any lime or charcoal or collects, subjects to any manufacturing process, or removes any forest produce;
c) contrary to any prohibition under Sec. 30, breaks up or clears or cultivations or any other purpose any land in any protected forest;
d) sets fire to such forest, or kindles a fire without taking all reasonable precautions to prevent its spreading to any tree reserved under Sec. 30, whether standing fallen or foiled or to any closed portion of such forest;
e) fells any tree or drags any timber so as to damage any tree reserved as aforesaid;
5.15 OF THE CONTROL OVER FORESTS AND LANDS NOT BEING THE PROPERTY OF GOVERNMENT
Protection of forest for special purpose: Sec. 35
The State Government may, be notification in the Official Gazette, regulate of prohibit in any forest or waste-land;
a) the breaking up or clearing of land for cultivation;
b) the pasturing of cattle;
c) the firing or clearing of the vegetation;
When such regulation or prohibition appears necessary for any of the following purposes:
(i) for protection against storms, winds, rolling stones, floods and avalanches;
(ii) for the preservation of the soil on the ridges and slopes and in the valleys of hilly tracert, the
prevention of landslips or of the formation of ravines, and torrents or the protection of land
against erosion, or the deposit thereon of sand, stones or gravel;
(iii) for maintenance of a water - supply in springs, rivers and tanks;
(iv) for the protection of roads, bridges, railways and other lines of communication;
(v) for the preservation of the public health;
Public participation in environmental decision - making augments environmental protection measures, and reflects the aspirations of the present, as well as future generations.
Once people become conscious, mass movements gain momentum and their role in the governance of the country is accepted; traditional discretionary models of environmental decisions turn out to be out of date.
The awareness has to be profitably utilized. Law cannot be allowed to lag behind changing social situations, and the legal system has to incorporate people's participation in the decision - making process.
Modes of Public Participation:
The modes of the public participation are varied. Often members of the general public act as pressure groups on government in the formulation of policies.
This is justified on various grounds:
1) Public opinion modulates governmental process or even creates law.
2) External vigilance of the people focuses attention on potential harm to the environment, and
paves the way for essential counter measures.
3) Public interest groups take up environmental litigation at different levels ad thus, enlighten
development proponents, decision - makers and judicial and quasi - judicial institutions.
4) Environmental groups become spokespersons of environmental causes in impact inquiries held
prior to making decisions.
5) They can contribute substantially towards evolving sound environmental decisions, by being
members of advisory panels and agencies constituted for the purpose of protecting the
environment.
6) The modern welfare-cum-technological state is governed through delegated legislation, and
people can participate and influence formulation of rules and regulations laying down
substantive criteria for arriving at environmental decisions.
It has already been seen that public hearing under impact processes in India is now in evolutionary state. In view of the existing practice in other countries and of the basic right to information, it is necessary that members of the public in a locality where a development project is to commence get an opportunity to participate in the impact assessment process.
In the U.K under the Environmental Protection Act 1990, the interests of national security and of commercial confidentiality are grounds for not making certain entries in the public register.
In India, the 'public interest' privilege contained in the EIA Notification is so wide that the Ministry of Environment and Forests may be inclined to use it as a tool to block any information.
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