INTRODUCTION

Laws for the prevention and control of pollution have been part of centralised environmental law in India since the 1970s. Parliamentary documents state that before the enactment of these laws, pollution control was mostly carried out through the provisions of the Indian Penal Code, the Criminal Procedure Code, the Factories Act, 1948, and the Merchant Shipping Act, 1958. The enactment of the first law specifically dealing with pollution is attributed directly to India's commitment to the Stockholm Conference on Human Environment in June 1972. Reports of high-level committees record, ‘it was considered appropriate by Government to have uniform laws all over the country for broad environmental problems endangering the health and safety of the people as well as of the country's flora and fauna’.

The legal framework for pollution control relies on a conditional consent-based system to regulate polluting projects and processes. Through this system, pollution laws regulate emissions, effluents and toxicity of industrial processes and projects within limits set by the law. The permissible pollution standards are either specific to types of industries such as coal power, manufacturing and construction or types of raw materials being used in industrial processes including asbestos, iron ore and mercury. These standards apply across locations and on projects based on their size and production capacity. For instance, pollution norms apply to the construction of mini dam projects as well as large nuclear facilities. Specific norms also apply to the entire life cycle of an industrial process from pre-construction to end of operations.

Pollution control boards (PCBs) at central, state and regional levels implement pollution laws. These boards set parameters for the permissible levels of pollutants in the air, water or land. Individuals and organisations are expected to invest in pollution control equipment and infrastructure to keep discharges and emissions within the permissible levels. The pollution levels of projects or processes are to be regularly monitored by devices installed for collecting data on quality and quantity of emissions and discharges. In recent years, monitoring data is made available to the PCB regulators through continuous online real-time emission monitoring systems.

INTRODUCTION

The Seventh Schedule of India's Constitution distributes powers between the central and state governments to enact and implement laws on subjects according to their listing in the Union, State or Concurrent (shared) Lists. Environment as a subject has not been assigned to any of these lists; as a result, the division of roles on environmental matters is a dynamic, shifting space between the centre and state governments. As the chapters in this volume show, specific natural resources such as land, water and forests are assigned to one of the three lists and are regulated by corresponding institutions. But this distribution of power to govern natural resources is contested. The distribution of roles also makes it necessary for cooperation between the centre and states in the management and regulation of these resources.

Even though the powers to enact laws to manage specific resources are distributed between the centre and states, in effect, the drafting, implementation and enforcement of environment laws require substantial coordination between them. For instance, Entry 14 in the Union List is ‘Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries’. Using this entry, the central government has enacted several laws such as Environment Protection Act (EPA), 1986, and the Biological Diversity (BD) Act, 2002, as commitments under specific treaties and conventions. While the EPA, 1986, is a centrally administered law, the centre has delegated regulatory powers to several state-level institutions. These institutions are set up by the central government in consultation with state governments, and their functioning depends on the administrative and financial support from the state governments.

In this chapter, we discuss the main institutions involved in environmental governance in India at the central and state levels. Indian environment laws have also evolved through complex interactions between the parliament, the executive and the judiciary, and these interactions are reflected in the institutions set up to perform legal, policymaking and regulatory functions. This separate chapter on environmental bodies outlines the vast institutional landscape of India's environmental laws.

Indian environmental laws are meant to help governments protect, conserve, extract and acquire natural resources in the processes of development. How are Indian environmental laws designed to perform these roles and how do they actually perform them? This volume lays out the legal frameworks of over two dozen Indian parliament-made environmental laws and nearly 20 executive-made environmental laws. Tracing developmental trajectories of laws requires the understanding that there are no single origins or sources and no predetermined linear pathways but only complex and intersecting contexts within which their development takes place. The preambular texts of laws, elaborate court papers and policy documents that carry varying definitions, meanings and interpretations present the possibilities and scope of these laws. When legal texts are opened up and reassembled, as we have tried to do in this volume, it is possible to see the overlaps, contradictions, duplication, fragmentation and confusions that are part of Indian environmental law.

Our motivations to put together this volume are threefold:

First, environmental laws have mostly been seen and studied as the territory of the judiciary. Most of the existing publications on environmental law provide readers with statutes and court cases. This gives the understanding that environmental laws are developed in courts. This is true to some extent if we look at the decades of the 1980s and the 1990s when higher courts were busy with environmental public interest litigations (PILs). This book can be seen as a complementary volume to those existing publications as it also focusses on the powerful role of the executive in the development of environmental laws. Since the 1990s, the central government, especially the newly formed Environment Ministry has had an unparalleled influence on the generation of legal frameworks to regulate the environmental impacts of all economic sectors. This volume seeks to put in perspective this influence so that those with an interest in the state of India's development can pay closer attention to the actions of India's large environmental bureaucracy.

A chapter dedicated to environmental institutions in this book underscores the enormous spread of regulatory institutions that are involved in the everyday operations of environmental law and their importance in today's environmental governance.

INTRODUCTION

Forest governance in India is a complex interplay of several old and new laws at the state and central levels. The laws regulating forests can be traced back to the precolonial and colonial periods in India when forests were demarcated and managed as hunting grounds, private estates and timber plantations. Colonial laws granted powers to the British government to legally reserve forests and create new forests. After independence, the administration of these regions passed on to the Indian Forest Service. Forest departments attached to state governments adopted the powers and functions to ‘secure’ forests. Due to these legacies of top-down regulatory control of forests, the questions of historical ownership and uses of forests by common people, especially adivasis, have remained highly contested in forest governance.

Forests were introduced into the concurrent list of the Indian constitution through the 42nd amendment in 1976. This allowed both the central and state governments to enact laws on forests. In 1980, the central government passed a law to give itself the powers to grant ‘prior permission’ for the diversion and dereservation of forest land in India. These legal changes to forest governance have been understood as the central government's establishment of political control over the country's forest resources. This centralisation has also been justified as a means of protecting forests from exploitation at the state level.

While central and state governments claim ownership and control of forest lands and forest produce, tribal and forest-dwelling communities have mounted challenges to these claims. Communities who live in forest regions and are dependent on forests for their socio-economic and cultural purposes have resisted being alienated from forest governance. Since 2006, the regulatory jurisdiction on forests is not limited to the central and state governments alone but includes local self-governments such as gram panchayats, autonomous district councils and gram sabhas (village assemblies).

The setting of forest boundaries, transfer of forest land ownership or use and compensating forest loss are matters that have attracted intense legal scrutiny. While the Indian Parliament and the executive have shaped forest legislations in India, the judiciary has exerted a strong influence on forest policies and the administration of forests. Since 1995, the Supreme Court has retained a continuing mandamus on forest-related laws and decisions, especially through the Godavarman case which is discussed in detail in Section III of this chapter.

INTRODUCTION

The legal mandate for environmental protection is outlined through specific articles of the Constitution of India and the division of responsibilities between the centre and state governments as listed in its Seventh Schedule. Article 48A of the Constitution holds both the national and state governments accountable to ‘protect and improve the environment and to safeguard the forests and wildlife of the country’. The protection of the environment is also the fundamental duty of every citizen of the country as enshrined in Article 51A (g) of the constitution. Article 21 of the constitution, which is the right to life and personal liberty, has also been interpreted to include the right to clean and healthy environment through several court judgments. This is discussed in detail in Chapters 1 and 7.

The protection of the environment is the stated overarching objective of the central environment ministry. As discussed in Chapter 2, the environment ministry was carved out of the Department of Agriculture in 1984 primarily to realise the objective of environmental protection. The specific legal framework to achieve this objective is provided by the Environment Protection Act (EPA), 1986. Using the jurisdiction provided in this law, the environment ministry has introduced many regulations for its purpose. These regulations are the largest group of rules, notifications and guidelines that have dominated India's enviro-legal landscape. They have also led to the creation of an elaborate and multilayered institutional framework that is under the control of the central government.

The Indian parliament has exercised oversight in the enactment of rules and notifications only in specific instances where its intervention has been sought. But more generally, there has been little monitoring or oversight. Courts and tribunals have created a wide jurisprudence on a range of themes that are regulated by the EPA such as impact assessments, coastal areas regulation and environmental damages. The enactment of the National Green Tribunal (NGT) Act, 2010, institutionalised the role of this quasi-judicial body to respond to grievances and also influence environmental policymaking.

So far, there has only been one National Environment Policy (NEP), 2006, that laid down the contours of how environmental protection is to be prioritised in the country. The policy attempts to achieve environmental protection while continuing to advance economic ambition.

INTRODUCTION

Indian environmental laws have seen tremendous changes since the 2000s. The predominant goal of successive governments in India has been to enhance economic growth, to provision for the needs of India's large population and to manage the global and local expectations of sustainable development. In order to achieve these goals, the central government has undertaken consistent and systematic processes to review and overhaul several environmental laws in the country and to streamline them with these governmental objectives. Amendments to environmental laws have also been brought on by court directions and parliamentary committee reviews. The erstwhile Planning Commission and the present-day NITI (National Institution for Transforming India) Aayog have also played a decisive role in recommending policy and legal changes. Citizen engagement with environment laws has also increased during this period due to the creation of specialised legal forums and information availability. They have litigated on violations of law and demanded accountability from regulatory institutions. The nature, scope and role of environmental regulation have undergone major shifts as courts, civil society and social movements are focused on the effects of environmental laws on the ecology, economy and society.

By the early 2000s, environmental scrutiny of most infrastructures, energy and real estate projects was a legal prerequisite. One set of pressures for amendments and revisions to environmental laws has come through an ‘investment reforms’ agenda. The primary mandate of these reforms was to reconcile environmental law frameworks with economic priorities such as expanding opportunities for international investments and growth of domestic businesses. The environmental law reform proposals in this phase were driven by the narratives that environment regulation caused delays, bottlenecks and hurdles for much needed investments. These reforms were executed through setting up of high-level committees by ministries such as coal, commerce, power and finance. These special committees also carried out consultations across ministries at the state and central levels and with economic actors such as corporations and industrial and investor associations.

Another set of changes came through courts and governments interested in finding solutions for the implementation challenges faced by environmental laws and regulations. Courts, the central government and various state governments suggested legal and policy changes to institute long-term monitoring committees, financial offset mechanisms, and grievance redressal and appellate mechanisms.

This chapter focusses on the fundamental aspects of Indian environmental law. One of the most significant features of Indian environment law is that the right to life enshrined by the Indian Constitution is interpreted as inclusive of the right to a healthy environment. This interpretation evolved in the 1980s and has been used by the Supreme Court and the high courts to adjudicate complicated environmental matters. Another significant feature of Indian en¬vironmental law relates to the provisions of universal legal codes, that is, the Indian Penal Code (IPC), Criminal Procedure Code (CrPC) and Civil Pro¬cedure Code (CPC), on ‘nuisance’. Indian courts have developed a vast body of case law using provisions of nuisance to address pollution, municipal solid waste generation, or obstruction of water and to seek environmental damages. The third aspect relates to international environmental conventions. Indian en¬vironmental laws have been framed to comply with India's commitments to the conventions discussed in this chapter or to advance the objectives of these conventions. Courts and governments have relied on declarations and agree-ments arising out of these conventions to inform and justify their decisions. The fourth aspect is the group of legal concepts and principles that are applied to Indian environmental laws and policies. Indian courts have drawn upon and interpreted the scope of these concepts and principles.

This chapter elaborates these aspects in three sections:

• I. Constitutional Right to Life and the Environment

• II. Nuisance in the Indian Penal Code, Civil Procedure Code and Code of Criminal Procedure

• III. International Conventions, Principles and Concepts of Environmental Law

CONSTITUTIONAL RIGHT TO LIFE AND THE ENVIRONMENT

The Constitution of India guarantees certain fundamental freedoms and rights to all citizens of India. There are a number of constitutional provisions that are central to environmental laws in India. These have been discussed in different chapters in this book. This section discusses in detail Article 21 listed in Part III of the constitution, which is one of the most widely interpreted provisions in Indian environmental law. Article 21 on the right to life states, ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’

INTRODUCTION

Wildlife and biodiversity conservation can be understood as the proactive protection of species and habitats, both wild and cultivated. The central focus of the Wild Life Protection Act (WLPA) introduced in India in 1972 was to provide protection to wildlife and wildlife habitats. This law largely focuses on reducing human use and developmental pressures on areas important for wildlife species. But this law did not aim to conserve biodiversity, a much wider concept than wildlife. India enacted a law to protect biodiversity only in 2002. This was also the year when legal frameworks for wildlife conservation carved out space for greater local community participation. These two changes reflect, to some extent, the evolution of international and domestic discourses on wildlife and biodiversity conservation.

This community-based approach to wildlife conservation soon came under pressure after the enactment of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. After the passing of this law, exclusionary forms of wildlife conservation regained support within the government system and among some organisations working on wildlife conservation. One illustration of this is in the push to create inviolate areas like critical tiger habitats (CTHs) under the WLPA.

Both wildlife and biodiversity conservation laws are land centric in their approach. Marine conservationists have argued that this approach is unfit for the conservation of marine ecosystems that require distinct management strategies. The reliance on WLPA to provide a ‘one size fits all’ model for conservation of different habitats has failed to bring attention to the conservation needs of marine ecosystems. The creation of Marine Protected Areas (MPAs) has not gained from the lessons of managing terrestrial protected areas (PAs).

In this chapter, we discuss two significant laws related to wildlife and biodiversity conservation in India: the WLPA, 1972, and the Biological Diversity Act (BDA), 2002. Both these laws were enacted at very different points in India's modern environmental history and are designed to respond to different problems. The BDA comes with the stated purpose of conservation but is not limited to wildlife. It seeks to cover all areas that are important for biological diversity. The BDA defines biodiversity as ‘the variability among living organisms from all sources and the ecological complexes of which they are part, and includes diversity within species or between species and of ecosystems’.

INTRODUCTION

Climate change has emerged as the most pressing environmental concern of global, national and local significance. The main cause of climate change is greenhouse gases (GHGs) that include carbon dioxide, methane, nitrous oxide and fluorinated gases emitted from a variety of industrial processes. Carbon emissions from various industrial sectors form the largest percentage of GHGs. High levels of GHGs in the atmosphere create a gaseous blanket around the earth, packing in the earth's radiation and preventing the escape of heat. It also disrupts the earth's water and weather cycles that connect the oceans and land. Most parts of the world have witnessed unpredictable and intense weather events affecting food productivity, human health and wild biodiversity. This wide spectrum of effects is increasingly being linked to climate change. According to a 2019 assessment by Morgan Stanley, the global economic cost of climate disasters over three years was USD 650 billion. The high carbon-emitting economic activities also involve changes in local land use that cause deforestation, land degradation and environmental pollution.

The international discussions on global warming and climate change date back to the mid-1970s. However, it was only in 1988 that the Intergovernmental Panel on Climate Change (IPCC) was established under the aegis of the United Nations (UN) with the objective of collating scientific evidence related to climate change. The IPCC's first assessments in 1990 and 1992 presented conclusive evidence on rising temperature and attributed it to rising GHG emissions. Since then, the 1992 United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol (1997) have recognised ‘that developed countries are principally responsible for the current high levels of GHG emissions in the atmosphere as a result of more than 150 years of industrial activity’.

The UNFCCC is one of the three framework conventions of the Rio Earth Summit, the other two being the Convention on Biological Diversity and the UN Convention to Combat Desertification. These are elaborated in Chapter 1. The UNFCCC is the overarching international framework binding all its signatories, including India, to commit to a reduction in GHG emissions based on the principle of ‘common but differentiated responsibilities (CBDR)’. This principle was central to the discussions at the Earth Summit held in Rio de Janeiro in 1992.

Environmental laws are largely understood as a body of legal codes, statutes, case law, regulations and principles that are used to mediate the relationship between humans and nature. In India, environmental laws govern the protection, management and distribution of natural resources between what are framed as competing realms, such as between the economic and the sociocultural, between ecological needs and livelihood requirements, between the human and non-human and between present and future uses. Indian environmental laws are framed with competition and conflict at their core. Most times, the protective, managerial and distributive aspects of environmental laws are treated as technical matters to be decided based on costs and benefits. The laws fail, for most part, to note that nature is the material basis for the survival and well-being of all.

This volume unpacks environmental laws in India and outlines their development. It tries to understand the development of environmental laws in India by locating them within broader local, national and international sociopolitical and economic influences. More specifically, it seeks to establish the relationships between the last five decades of environmental law-making and practice in India and the institutional ideologies of developmentalism that have held sway during this period. This volume shows that the shifts in the political economy of the Indian state are reflected or even supported by the development of Indian environmental laws.

This book explores that the development and practice of environmental law in India can be understood as a domain of power through which actions of individuals and societies are controlled towards certain ends which are contingent, multiple and fluid. This field of power is dominated by four major actors who have exerted tremendous influence on Indian society through the exercise of environmental laws. These are the governments, courts, international environmental institutions and expert-based domestic regulatory institutions. The control exerted by these institutionalised actors is possible to trace as it is done through the use of statutes and governmental notifications, case law, legal principles and well-documented decisions—all of which are part of Indian environmental law. The chapters in this volume map the development and use of these legal instruments to regulate different kinds of environmental use.

INTRODUCTION

India's laws for land acquisition are based on the principle that governments have the power to acquire private property for public use. These powers arise from the Doctrine of Eminent Domain, which allows governments to take such action in exchange of due compensation to the property owner. Legal researchers have argued that the payment of a compensation ‘changes the nature of this take-over from appropriation to acquisition’.

The legal history of land acquisition can be traced back to the eighteenth century when the British colonial administration enacted laws to ‘facilitate the acquisition of land and other immovable properties for roads, canals, and other public purposes by paying the amount to be determined by the arbitrators’. This includes the Land Acquisition (LA) Act, 1894. These laws outline a procedure for acquisition, limits of consent and mechanisms to compute compensation. The legal requirement to ensure rehabilitation of affected families has been part of the legal framework for land acquisition only from 2013.

Today, the acquisition of land is a complex issue that is governed by a multiplicity of laws enacted by both state and central governments. Land is an item in the State List of the Seventh Schedule of the Constitution. However, ‘acquisition and requisitioning of property’ lies in the Concurrent List, giving powers to both central and state governments to enact laws. For matters on the Concurrent List, no state government can override an existing central government law, except with Presidential assent.

The legal framework in operation today is the outcome of this distribution of powers. The most discussed law for land acquisition is the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (RFCTLARR) Act, 2013. However, key provisions of this law have been replaced or exempted in state level laws enacted by some state governments. These provisions have also been read down in some state rules notified under the central law. These changes were preceded by efforts of a newly elected government to amend the 2013 law through a series of ordinances. The implications of this have been discussed further in this chapter. The 2013 law also has limited applicability for land acquired under thirteen other national laws related to coal, railways, highways, atomic energy and other sector specific acquisition.

INTRODUCTION

According to the Indian Constitution, state governments have exclusive powers to legislate on ‘water supplies, irrigation and canals, drainage and embankments, water storage and water power’. Fisheries regulation is also the responsibility of the state. However, these powers interface with the central government's rights to enact and implement laws on the following aspects related to water. These are regulating and development of interstate rivers and river valleys in public interest, declaring rivers as national waterways for the purpose of shipping and navigation, using tidal waters for shipping, and fishing beyond territorial waters.

Individuals have the right to collect and use water on their property. This includes ‘all water under the land within his own limits, and all water on its surface that does not pass in a defined channel’. These rights are defined under the Indian Easements Act, 1882. Such easement rights are exercised when an individual seeks to draw groundwater or water from a stream on his or her own property for any purpose, including drinking and irrigation. This right is not absolute, but one regulated by the state or central government. Legal and regulatory frameworks on water need to take into account individual easement rights over water resources.

This complicated distribution of rights and powers to govern water resources have led to a web of institutions that cut across the central and state jurisdictions. While the Ministry of Water Resources and Ganga Rejuvenation (water resources ministry) is the central ministry for water governance, state governments have their own departments and authorities that govern the supply, storage and use of surface water. For the regulation of groundwater, 13 state governments and union territories (UTs) have adopted the central government's model groundwater bill. This allows them to set up their own groundwater authorities, while a central authority regulates the groundwater resources in the remaining states.State governments also have their own irrigation laws that regulate, use and supply water available in rivers, dam reservoirs and underground sources. These irrigation laws were not designed to address environmental aspects of water extraction.

Water experts have declared that the institutional frameworks for the management of water in India are outdated. The report of the Mihir Shah Committee of 2016 states that these frameworks were made at a time when the objective of governments was to provide irrigation in the interest of food security.