Environment Justice and legislation in India

Prithviraj Raorane,

DES's Shree Navalmal Firodia Law College

Introduction-

The problem of poor air quality index or the contamination of Ganga, Yamuna is not new in India. What we have seen is no state can guarantee pure air quality index or pure drinking water for the common masses of people. Most of the work done in the field of environment is by Judiciary and legislation. It was only early 1980s that we saw a relevant rise of environment legislations in India after the man-made Bhopal gas disaster. This disaster resulted in activism and mobilization around environmental issues concerning industrial policies and related legislation. Environment Protection Act, 1986 was adopted by the parliament to implement the decisions of the United Nations Conference on the Human Environments. Several Environmentalcatastrophes has taken place in recent times, the participation of government and courts in the environmental field has been the highlight of recent times because of the complexity of the issue. The issue is complex because as India is heading towards the third largest economy and a new global power it needs to balance its interest in protecting the environment and biodiversity too.

Constitution and its provisions-

The directive principles of state policy and preamble does mention environment but when the constitution was drafted there was not a single provision that directly gave protection to the environment and biodiversity. It was only in 1976 where fundamental duties were added in constitution to protect the environment through 42nd amendment. The fundamental rights are indirectly associated with the right to clean air and water under article 14, 19, 21, 32. The supreme court has interpreted these articles for government to ensure fairness while undertaking development activities. The court has also many times struck down the use of sound amplifiers that are used for religious purposes, which time to time also highlighted the fundamental contradiction between article 19 and article 25. The supreme court also said that the article 21 not only covers life and liberty but also covers the protection and preservation of environment. India still faces the same environmental problems, the fact that there are legislations still in place and multiple Judgments already being made on environmental issues there is not much of an improvement. The air quality index of Delhi NCR has hit 999 in 2016, 2017, 2018, 2019, 2019, 2020, 2023 too, which explains the picture of environmental protection in India. The main argument against the protection of environment is nothing but development. Under the excuse of development there has been staggering destruction of forests over the last few years. No doubt there are legislations and pollution control guidelines in place to ensure sustainable development, still that has not worked out to protect the environment. The sustainable development is the biggest lie being sold to the citizens. Planting new trees in a whole another area for destruction of the old ones cannot compensate for the loss of biodiversity that the existing trees have created. Additionally, the more the tree has become old, the more carbon footprints it can consume. In the name of sustainable development many times the poor is thrown out of the economy. Mangalore for instance, the plan was focused on coastal redevelopment for tourism, no mention of the fact that the coastal region is also used by the street vendors and fishermen, they need to be incorporated in livelihood too. There are several PIL’s already pending in the court, the problem with them is that the court may order the companies to take proper environment measures to protect biodiversity, but while executing the measures, they are supervised by none other than the government officials, this is where we lose transparency and accountability. Another challenge which majority of citizens are still unaware of is climate change. India still doesn’t have any constitutional remedy for climate change. India has lost 1.5 trillion dollars in 2022, and it loses 6% of its GDP every year because of climate change alone, such is the condition of today’s India where climate cost is more than development’s profit, and these numbers only represents the damage control cost, it doesn’t even measure the green accounting costs. It was only through a recent SC judgment where Justice Chandrachud stated that the right to be free from adverse effect of climate change is also a fundamental right under article 14 and 21 of Indian constitution.

New forest conservation rules and criticisms-

The most devastating and highly criticized new forest conservation rules in 2022 are one of the key concerns of today’s India. The rules were amended in such a way that the government would not require consent of forest advisory committee to divert the land to industrial use. Secondly, the rehabilitation of concerned people would be done after the land has been transferred. Thirdly, the companies could now not require to plant trees for carbon credit, but they could purchase equal amount of plantations from another private parties. Fourth and the most shocking one, there is no mention of what would happen to tribal and dwelling communities. Even the consent from gram panchayat for development is also not required according to these new rules. Several predictions were already being made in 2015 and earlier years about the environment crisis that would occur in the future, the Bengaluru water shortage was already estimated in 2014, still we failed to take necessary action. The so-called Silicon Valley of India doesn’t have water to drink. Same thing happened in Chennai in 2019, the water crisis was already projected due to unplanned development, illegal water tapping which went to industries and complexes. The underground water of 21 major Indian cities is already projected to run out in coming years. Despite so many predictions and legislations made, not enough has been done yet to counterbalance the situation.

Global laws and implementation-

Globally speaking, when it comes to adhering to international environmental laws, every country starts pointing fingers at each other. Every once in a while, industrial revolution and their emissions in Europe are mentioned, developed countries pass their burden to developing countries, and developing countries blame the previous environmental degradation onto the developed countries. Same goes with India, it rejects the climate index ratings and pass on the burden to China, Europe and America. The citizens need to understand that these ratings and international laws are made for their country’s own environmental protection and preservation. The Paris agreements are said to have potential work at global level to keep the threat of climate change by keeping a global temperature rise this century well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5 degrees Celsius. Despite the setbacks and failures some of these global agreements and laws have helped the Indian parliament to shape the corporate laws to suit the global standards. Though there are many instances of environmental catastrophe and crisis, India’s efforts towards clean air and clean water cannot be ignored. Several renewable energy projects have already been started to reduce the carbon intensity of the economy by 45 percent by 2030. The recent modifications in green credit rules to increase the green cover and to preserve mangrove ecosystems is noteworthy. The Atal Bhujan Yojana to save the ground water level of seven states of India is also appreciated by international institutions. The finance commission in 2020 has also set 1.7 billion dollars aside to fight air pollution over the next five years. India is currently also a signatory to UNRRA convention under which highlighted global shared responsibility of shared responsibilities in relation to the international trade of hazardous chemicals.

Government and private property-

One of the major reasons why we still lack in protecting our environment is because of lack of literacy, concern and awareness about our rights as citizens. Citizens tend to think that the property which is not private is public property and government has all the rights over it, which is not the case. There is also something called as common property that is collectively owned by citizens and government can’t use its muscle power over it. The government can’t say that they own ganga or Yamuna, these are common property needed for citizens. Each time when government undertakes a property for development purposes, they take the protection of doctrine of eminent domain which means that the government has the power to undertake any private property without an individual’s consent. But the citizens need to be aware that this law only applies to private properties and not common properties. Additionally, the government needs to prove that the property would serve the larger number of people than it used to do earlier. Even if the government has a development project to build dam it has to through many procedures. Firstly, it should be made sure that the people’s right to life and livelihood is not affected. Secondly, after rehabilitation the people should be given the same amount of life that they had previously and its fertility should also be same. Thirdly, the rehabilitated people should be given reservation status.

Conclusion-

 In order to protect the forests and riverbanks from getting cut/polluted, special status should be given to these areas like it was done in RAMSAR convention, that protected the major wetlands in India. The new rules of forest conservation act should also be revised in a way that it becomes more inclusive for common people to take part in decision making, because the citizens today are more affected by the environmental degradation than ease of doing business. The misconception that non-private property is solely controlled by the government impedes efforts to protect the environment. Raising awareness about common property rights and promoting inclusive decision-making are essential. True sustainable development should prioritize environmental preservation and community welfare over industrial expansion, otherwise we as citizens will fail to comply with our responsibility of preserving the environment for the next generations to come. 

References-

1)Worldbank, catalysing clean air in India-https://www.worldbank.org/en/country/india/publication/catalyzing-clean-air-in-india#:~:text=In%202020%2C%20based%20on%20the,by%2015%20percent%20every%20year,publication: 1st December 2023, (last visited 13th July)

2)Drishti Ias, Green credit program-https://www.drishtiias.com/daily-updates/daily-news-analysis/green-credit-program-2#:~:text=Covered%20Activities%3A%20The%20Green%20Credit,manage%20and%20conserve%20water%20resources.(last visited 14th July)

3)UNICEF,Clean drinking water, Ensuring survival and improved outcomes for every child with safe and secure drinking water for all -https://www.unicef.org/india/what-we-do/clean-drinking-water.(last visited 13th July)

4)Byjus exam prep,Rotterdam Convention-https://byjus.com/free-ias-prep/environment-conventions-protocols/. (last visited 14th July)