Dr. Prashant Desai
Environmental awareness needs to be cultivated in any society to be an ideal society. The dictionary meaning of the word ‘environmental‘ is surrounding objects, region or circumstances, and the phrase ‘environmental awareness‘ will mean that one should be aware of his surroundings so that this surrounding is not disturbed. This relation of the environment with human life has in recent years developed into an independent branch of scientific inquiry, which goes by the name environmental science. The human-environment interaction goes back to the remotest possible times in the history of humanity. Sometimes, it is seen as a manifestation of a struggle between the two. There have also been times when this relationship took the form of respectable coexistence. The key theme of which is that the natural balance between human life and the surroundings should not be lost. This is the basic requirement for any life to flourish, especially for human life.
The earth’s expanding human population and industrial growth have been known to cause serious environmental disasters. Due to the population pressure, India pushes ahead with aggressive industrial development. Consequently, thousands of industrial clusters nationwide produce enormous amounts of untreated toxic waste that often end up in rivers, lakes, forests, and landfills. Even though India has sufficient environmental laws, weak enforcement and the lack of funds and manpower are most often the stumbling blocks for the pollution control boards.
In the Constitution of India, it is clearly stated that it is the duty of the state to ‘protect and improve the environment and to safeguard the forests and wildlife of the country.’ It imposes a duty on every citizen to protect and improve the natural environment, including forests, lakes, rivers, and wildlife. Reference to the environment has also been made in the Directive Principles of State Policy as well as the Fundamental Rights.
The constitutional provisions are backed by a number of laws – acts, rules, and notifications. The Environment Protection Act, 1986 came into force soon after the Bhopal Gas Tragedy. Therefore a large number of laws came into existence as the problem began arising. The Bhopal disaster underlines the problem governments confront in formulating a response to disaster situations when poverty levels are high, and health infrastructures and government resources are severely limited. This brings into focus the need for private multinational (or public) industries to take some responsibility towards the environments and populations they are located in.
The state’s responsibility with regard to environmental protection has been laid down under Article 48-A and citizen’s duty under Article 51-A (g) of our constitution. The state’s responsibility with regard to raising the level of nutrition and the standard of living in order to improve public health has been laid down under Article 47 of the constitution. The 42nd amendment to the constitution makes it the responsibility of the state government to protect and improve the environment and safeguard the forests and wildlife of the country. The latter, under fundamental duties, makes it the fundamental duty of every citizen to protect and improve the natural environment, including forests, lakes, rivers, and wildlife, and to have compassion for living creatures.
As far as legislative power was concerned, the amendment also moved the subjects of “forests” and “protection of wild animals and birds” from the state list to the concurrent list. The Stockholm conference is honored by references in the Air Act and the Environment Act – a result of effective applications of Article 253 of the Constitution, which gives the parliament (India’s central legislature) the power to make laws implementing India’s international obligations, as well as any decision made at an international conference, association or other body. In addition to the constitutional mandate, India has a number of national policies governing environmental management, including the National Policy on Pollution Abatement (NPPA, 1992) and the National Conservation Strategy and Policy Statement on Environment and Development (NCS/PSED, 1992). While these national policies are not judicially enforceable, they serve as guiding principles for the central and state governments to follow.
In India, environmental statutes though impressive in range and coverage, are more often observed in the breach than practice. Environmental law enforcement, being a highly specialized area of implementation entrusted to different agencies under different laws, presents a none-too-happy-a-picture. Lack or inadequacy of skill; less than satisfactory infrastructural facilities; poor and unimaginative understanding of the law; jurisdictional conflicts and lack of coordination among different agencies of implementation appear to contribute to poor and ineffective implementation of the laws. The ability of some of the more resourceful industries to either camouflaging their violations and non-compliance and in exerting undue pressure on the enforcement agencies also has contributed to the inefficiency of the enforcement apparatus. The deterrent theory of punishment employed under the strict and absolute liability principle has achieved some degree of success. Nevertheless, the search for better alternative principles of liability hardly needs elaboration. Hence it is time to harmonize the developmental activities with the environment because development is also a very important aspect of life. For which the environmental regime has to be accounted for and strengthened with a more expert mechanism to deal with the longer spectrum of problems hitherto unattended by the law. Primarily meant as a guiding principle for the administrative process to prevent adverse effects on the environment, the precautionary approach warrants formulation of expert environmental agencies at the initial decision making as well as at the appellate and reviewing levels. Such a step will undoubtedly be a leap forwards towards sustainable development and augmentation of a strong environmental regime.
In view of the involvement of complex scientific and specialized issues relating to the environment, there are separate ‘Environment Courts‘ manned only by the persons having judicial or legal experience and assisted by persons having scientific qualifications and experience in the field of environment. Establishing a system of administrative fines and streamline the system of a criminal fine, overcoming legal limitations on using self-monitoring information as evidence in court or other proceedings, establishing and disseminating comprehensive standard compliance monitoring and enforcement policies and procedures, and develop and deliver related training programs, increase the emphasis on compliance monitoring and enforcement and prioritize inspection efforts based on environmental risk, establishing a public information disclosure program and creating performance management systems and nationwide performance indicators also will help to overcome the current difficulties faced in compliance management of environmental regulations.
Dr. Prashant Desai is an Associate Professor, School of Law, Ramaiah University of Applied Sciences, Bengaluru
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