Over the last three decades, the concept of “right to environment” has witnessed a paradigm shift. This trend is attributable to a series of global initiatives, the notable one being the United Nations Conference on Human Environment in the year 1972. Popularly referred to as the Stockholm Conference, it played a crucial role in attracting the much-needed attention towards environmental degradation occurring worldwide.
Having evolved rapidly, environment law is a relatively new and challenging field. The term “Environmental law” refers to the entire gamut of statutes, treaties, conventions, regulations and policies addressing the myriad environmental concerns. It encompasses legislations concerned with protecting the ecology as well as preventing the degradation of natural resources. One of the major environmental laws was enacted in the wake of the Stockholm Conference in 1974, viz, Water (Prevention and Control of Pollution) Act (Water Act). The Water Act was aimed at preventing and controlling water pollution and for maintaining and restoring the wholesomeness of water. It was India’s first attempt to address an environmental issue from a legal perspective. Subsequently, in the year 1980, the Forest (Conservation) Act was passed for the conservation of forests and to curb deforestation. Thereafter, the Air (Prevention and Control of Pollution) Act of 1981 (Air Act) was enacted by invoking the Central Government’s power under article 253 of the Constitution. However, it was only in the aftermath of the Bhopal gas tragedy in 1984-the world’s worst industrial disaster, that the Government enacted the Environment (Protection) Act, 1986 (EPA). With the enactment of the EPA, the need for a single authority which could assume the lead role for environmental protection was addressed. In addition to these eco-specific legislations, in order to fulfil the country’s international obligation under the Convention on Bio-Diversity, a comprehensive legislation dealing with bio-diversity, known as the Biological Diversity Act, was enacted in the year 2002. Several other rules have also been framed from time to time for addressing the environmental concerns.
Interestingly, in the recent past, environmental law has become a devise for promoting “sustainable development”. Policy concepts such as the polluter pays principle, precautionary principle, public participation, environmental justice, et al have influenced several environmental law reforms, past and present. One of the critical policy changes have been re-examination of India’s National Forest Policy in 1988 with a view to maintaining 33 percent of country’s geographical area under forest and tree cover. With vast portions of forest land being used for non-forest use, it became imperative to conserve the remainder of the forests as also to maintain the symbiotic relation between the forests and tribal and rural folks. This was achieved by creating a network of sanctuaries, national parks, and other protected areas.
Constitutional provisions have long been interpreted in a manner so as to find solutions to environmental issues. In fact, the “source” of environmental law jurisprudence in India is said to be article 21 of the Constitution. The judiciary has extended the scope of “right to life” enshrined in article 21 to include “right to a clean and healthy environment”. Additionally, judiciary has also used ‘fundamental duties’ as provided under the Constitution to remind citizens of their obligation to protect the nature. The Supreme Court has very often invoked Part IV A of the Constitution (Fundamental Duties), specifically article 51A (g) which deals with the “fundamental duty with respect to the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures of the country”. In the same vein, the Directive Principles of State Policy contained in Part IV of the Constitution in article 48-A lays down that “State shall endeavour to protect and improve the environment and to safeguard forests and wild life of the country”. There are a plethora of cases where article 51-A(g) has been considered along with article 48-A as implicit in article 21 of the Constitution. In this connection, the decision of Rajasthan High Court in Vijay Singh Puniya vs. State of Rajasthan is noteworthy, wherein it was observed “any person who disturbs the ecological balance or degrades, pollutes and tinkers with the gift of the nature such as air, water, river, sea, and other elements of nature, he not only violates the fundamental right guaranteed under Article 21 of the Constitution but also breaches the fundamental duty to protect the environment under Article 51A (g)”.
With the passage of time, the judiciary in India has adopted an innovative approach by developing several procedural remedies accompanying the “environmental right”. As is evident from a catena of cases, the Supreme Court of India is credited with issuing appropriate orders, directions and writs against those causing environmental pollution. As early as in 1980, the decision pronounced in Municipal Council, Ratlam vs Vardhicand is considered a landmark since it provoked the consciousness of the judiciary towards an issue which was hitherto neglected. The Court, through Justice Krishna Iyer, for the first time reaffirmed the right of residents of a locality to live free from the odour and stench caused by open drains and absence of scavenging services. Moving on, the Supreme Court, in Rural Litigation and Entitlement Kendra vs. State of Uttar Pradesh ordered the closure of limestone quarries causing large scale pollution and adversely affecting the health of the people living in the area. Similarly, in the M.C. Mehta vs. Union of India (Ganges Pollution Case), the Supreme Court passed several judgments and a number of orders against polluting industries in the Ganga basin. In this case, apart from industries, several towns and cities were directed to put sewage treatment plants; hundreds of tanneries were shifted out from cities and re-located; several industries were closed down subject to a condition that they set up effluent-treatment plants, with the result that millions were saved from pollution in Ganga basin covering eight states. In another interesting judgment, Virender Gaur vs. State of Haryana, while holding that the Government has no power to sanction lease of the land vested in a municipality for being used as open space for public use, the Supreme Court opined that the word ‘environment’ is of broad spectrum which covers hygienic atmosphere and ecological balance, and that it is not only the duty of the State, but also duty of every citizen to maintain hygienic environment. In an important decision aimed at preserving the fragile coastal areas, viz., S. Jagannath vs. Union of India, the Supreme Court held that setting up of shrimp culture farms within the prohibited areas and in ecologically fragile coastal areas has an adverse effect on the environment, coastal ecology and economics and thus, they cannot be permitted to operate.
Although the environmental jurisprudence in India has been developed by the Supreme Court, the credit for initiating the public interest litigation (PIL) cases which have played a seminal role thereof goes to the country’s environmental lawyers, activists, and NGOs. The role of PIL has been phenomenal, successfully establishing the following enduring principles for generations to come:
As Lester R. Brown has rightly said, “Economists see a world economy that has grown by leaps and bounds over the last halfcentury, but ecologists see growth based on the burning of vast quantities of cheap fossil fuels, which is destabilising the climate.” It is a well acknowledged fact that the climate is changing and the earth is warming up. Despite there being an agreement all over the world that something needs to be done about global warming and climate change, the first major stumbling block was to reach a broad agreement on a framework. This led to the setting up of Inter-governmental Panel on Climate Change (IPCC) in 1988 by the UNEP and the World Meterological Organization to “assess the scientific knowledge on global warming”. In 1990, the UPCC concluded that there was broad international consensus that climate change was human-induced.
Despite the fact that the “carbon footprint” of the developed countries is more than that of the developing nations, unfortunately, for several years, the “developed world” and many large corporations lobbied against climate change treaties due to the fear of the threat to their economies and profits respectively. Infact, vast resources were initially directed towards discrediting this phenomenon. With more “climate change” science emerging, businesses need to accept their responsibility and the governments need to frame regulations to tackle this issue. In this connection it must be noted that some influential companies and organizations which resist the idea of making substantial changes will continue to undermine the measures addressing climate change. How are we to overcome this challenge thereby paving the way for concrete solutions to one of the greatest threats facing our planet, is the moot question.
Most law colleges/institutes in India offer environment law as part of their curriculum in the LLB and LLM courses. Some institutes also offer shorter specialisation courses or Diploma courses in environmental law. Traditionally, the opportunities in this field have been primarily restricted to government organisations and NGOs. Now-a-days, industrial establishments do require environmental lawyers to help them deal with legal and statutory clearances related to the environment. However, it is argued that not enough importance is given to the fact that environmental law requires “specialized knowledge and experience”, which lawyers dealing in other areas cannot do justice to. For instance, an environmental lawyer must be capable of challenging destructive activities in national parks and sanctuaries, as well as ill-advised dam projects and activities of multinational mining companies, with equal ease. In addition to litigation, environmental lawyers can also be called upon to impart “environmental law training” to enforcement agencies, NGOs, and communities. Are the lawyers trained enough to face these challenges facing the practice of environmental law?
Slowly but steadily environmental law has begun to be perceived as an integral and critical tool of environmental management, and rightly so. With damage to environment proving to be a major threat worldwide, scope of environmental law in promoting “development without destruction” is immense. Having said that, while wide ranging environmental laws have been put in place, their implementation has, more often than not, proved to be dismal. The need of the hour is to effectively regulate the interaction of humanity with the natural environment. We have already witnessed an intense legislative action, what is now needed is an equally intense executive action in this direction. Above all, a concentrated effort from the Bar as well as the Bench will certainly go a long way in helping the practice of environmental law in India achieve its “rightful place sunder the sun”.
Ritwick Dutta Environmental Lawyer and Founder ‘Legal Initiative for Forest and Environment (LIFE)’
Environmental law practice is still at its infancy in India. In the US for example, there are over 500 lawyers who practice almost exclusively on environmental law. Even in countries like Bangladesh and Nepal you have an organized environmental law practice. In India we essentially have general lawyers who sometime take up environmental cases. No importance is given to the fact that environmental law needs specialized knowledge and experience and cannot be left to generalist lawyers. I can count only a handful of lawyers who practice environmental law in the country. However, I wish to clarify that by “environmental law practice”, I mean those who want to protect the environment and not those who take up environment cases only on behalf of the violators.
The challenges are many. Firstly, environmental lawyers generally face very powerful and influential opponents. The environmental criminals in the form of corporate or the Government have all the resources to defend themselves, whereas a true environmental lawyer only has his conviction to the cause and his/ her desire to protect the environment as weapon. The judiciary is also not fully equipped to understand the gravity of the environmental crisis that is facing the country. The environmental lawyers are viewed at times as people trying to stop development of the country and this greatly demoralizes those few lawyers who are fighting to save the environment. The general idea of the Bar also is negative as it views environmental lawyers as those who have the luxury to take up ‘elite causes’ which a poor nation aiming at 9 % growth can ill afford.
The issue is not just about global warming but about ‘freaky’ weather conditions characterized by low and high rainfall and extreme temperatures. Relatively, it is now a known fact that India’s “carbon footprint” is lower than the other developing countries. But there are serious problems within the country. Our rate of deforestation (about 2.5 % per year) is amongst the highest in the world and deforestation itself causes climate change.We need to seriously protect out native forest.
Unfortunately, our judicial decisions over the last one decade have favoured compensatory afforestation, little realising that the natural forest cannot be compensated. Besides we are now on a mad rush for power plants using coal which is bound to contribute to climate change. Here also we find that both the Bar and the Bench are yet to take cognizance of climate change issues and how the courts can play a pro-active role in tacking the climate crisis.
Moulika Arabhi Director, Centre for Environmental Law,WWF-India
A career in environmental law is the most promising one in today’s era. Over the last decade, Environmental law has attained great importance in India owing to judicial activism. The premier law schools of the country seem to have an inclination towards corporate laws, but there is equal potential in environmental laws, especially for the younger lot.
Practice of environmental law is highly regarded in the Supreme Court and few other High Courts. There is some room for improvement when it comes to few states where the environmental awareness is not much. However, the awareness is growing and in the future, it will only get better. Hence, if one wishes to be an environmental lawyer, he has to think holistically from different angles. Apart from environmental litigation, there is also enough scope of legal research in this field.
It might not be very lucrative in terms of finances but if you look at environmental law as a stand-alone field, it has its own benefits and is definitely promising in terms of work satisfaction it can bring. The field of environmental law is constantly evolving and hence it offers enough challenges to legal professionals
Centre for Environmental Law was established in 1993 with a view to making it a nodal agency and to contribute towards the environmental policy decision making. Our flagship programme viz., Diploma in environmental law, was initially open to LL.B. students only. Eventually, it was felt that environmental law is a subject of interest to other professionals as well and hence it was thrown open to all graduates. In 2008, it was tailor-made for the working professionals and we launched it as an online course for duration of six months. In July 2010, we partnered with IGNOU and jointly launched a PG Diploma in Environmental Law and have got an overwhelming response.
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