Indian Constitution is one of the few constitutions in the world which contains provisions relating to environment. Although, there is no provision in the original constitution which directly referred to environment as at the time of framing of the constitution, globally environmental consciousness was not developed, no direct reference to environmental protection, and forest was mainly approached as a source of revenue. With the 42nd Amendment 1976, Article 48A, Article 51 A (g) and Entries 17A and 17 B shifted from state list to concurrent list. Article 48A.—The State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country. Article 51A (g) states that to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
The Indian Forest has seen law since the Colonial rule; The Indian Forests Act of 1865 extended the British Colonial claims over forests in India. The 1865 act was a precursor to the Forest Act of 1878, which truncated the centuries-old traditional use by communities of their forests and secured the colonial governments control over the forestry. The act of 1865 empowered the British government to declare any land covered with trees as a government forest and make rules to manage it and later the British introduced the Forest Act in 1927. It was An Act to consolidate the law relating to forests, the transit of forest-produce and the duty leviable on timber and other forest-produce. It also defines the procedure to be followed for declaring an area to be a Reserved Forest, a Protected Forest or a Village Forest. It defined forest offence, the acts prohibited inside a Reserved Forest, and penalties leviable on violation of the provisions of the Act.
There were certain events which triggered the world to adopt environmental policies so as to safeguard nature from declining those were Stockholm Conference, 1972; Bhopal gas tragedy; Rio Conference, 1992. Post Stockholm legislations were just like any other legislation The Water (Prevention and Control of Pollution) Act, 1974 and The Air (Prevention and Control of Pollution) Act, 1981. Post Bhopal legislations adopted a change in approach The Environment (Protection) Act, 1986 and Amendments to Water Act and Air Act.
Judiciary Assumed a pro active role for example, Public educator,M.C. Mehta v. Union of India, AIR 1992 SC 382; Policy Maker,Jagannath v. Union of India, AIR 1997 SC 811;Super Administrator,T N Godavarman v. Union of India, AIR 1997 SC 1228 and Delhi Vehicular Pollution Case.
There have been concept related to environmental laws that have evolved through Judicial decisions, and those are Polluter Pays Principle, Precautionary Principle, Public Trust Doctrine and Sustainable Development.
Polluter Pays principle says that Absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation and The costs of pollution should be born by the person responsible for causing it. The polluter is liable to pay to victims and the cost of reversing the ecological damage. These are inferred from Indian Council for Enviro – Legal Action vs. Union of India, AIR 1996 SC 1446 and Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715.
Precautionary principle states that, according to Rio Declaration, Principle 15 states that In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Indian cases from where the principle can be inferred Vellore Citizen’s Welfare Forum v. Union of India, AIR 1996 SC 2715,AP Pollution Control Board v. Prof. M.V. Nayadu (1999) 2 SCC 718 and Narmada Bachao Andolan v. Union of India, AIR 1999 SC 3345.
The different statutes / legislations enacted in India exclusively for environment protection are:
- The Water (Prevention and Control of Pollution) Act, 1974
- The Water (Prevention and Control of Pollution) Rules, 1975
- The Water (Prevention and Control of Pollution) Cess Act, 1977
- The Water (Prevention and Control of Pollution) Cess Rules, 1978
- The Air (Prevention and Control of Pollution) Act, 1981
- The Air (Prevention and Control of Pollution) Rules, 1982
- The Environment (Protection) Act, 1986
- The Environment (Protection) Rules, 1986
- Hazardous Wastes (Management and Handling) Rules, 1989
- Manufacture, Storage and Import of Hazardous Chemical Rules, 1989
- The Forest (Conservation) Act, 1980
- The Forest (Conservation) Rules, 1981
- The Wildlife Protection Act, 1972
- The Wildlife (Transactions and Taxidermy) Rules, 1973
- The Wildlife (Stock Declaration) Central Rules, 1973
- The Wildlife (Protection) Licensing (Additional Matters for Consideration) Rules, 1983
- The Wildlife (Protection) Rules, 1995
- The Wildlife (Specified Plants – Conditions for Possession by Licensee) Rules, 1995
- The Public Liability Insurance Act, 1991
- The Public Liability Insurance Rules, 1991
- The National Environment Tribunal Act, 1995
- The National Environment Appellate Authority Act, 1997