Human Right and Environment Protection

The 1990s may be termed as The Green Decade , since environmental protection is the big issue of the decade and ranks high among peoples priorities for the 1990s.Global warming ,the destruction of ozone layer, acid rain, deforestation, overpopulation, and toxic waste are all global issues which require an appropriate global response. The issue of environmental protection is big in terms of the range of problems and issues-air pollution, water pollution, noise pollution, waste disposal, radioactivity, pesticides, deforestation, conservation of wild life, etc. MEANING OF ENVIORNMENT The word environment relates to surroundings. It includes virtually anything. Indeed Einstein once remarked : The environment is everything that is not me. We can also define environment as anything which may be treated as covering the physical surroundings that are common to all of us, including air, space, waters, land, plants and wild life. The current trends and projections of the key environmental variables demonstrate that the rate of change of the variables value has increased sharply. Some of those key variables are :1)Population Growth;2) Energy Consumption;3) Climate Change;4) Ozone Depletion;5) Forest Degradation;6) Water Supplies;7) Fish Stock; and8) Biodiversity. CONCEPT OF ENVIORNMENTAL PROTECTION The environment has been defined as that outer physical and biological system in which man and other organisms live as a whole. It includes of many interacting components. These components are: its rocks, minerals, soils and waters, its lands and their present and potential vegetation, its animal life and potential for livestock husbandry, and its climates. There is a close relationship between man and the environment. History is a witness to the fact that the man has been endlessly struggling continuously to manage his environment so as to improve his well being. This capacity of the man increased considerably following the industrial, scientific, and technological revolutions. The spread of diseases such as the insect, rodent, water, and food borne infections which at one time could not be attributed to the main causes of death morbidity has been practically controlled. All this has been done without affecting the natural environment surrounding the man. But as the time passed, new problems started coming to the forefront and resulted in dis-balancing the nature. It was at this time that this background helped the signing of the Stockholm Declaration of 1972 which for the first time drew the attention of the world community for preservation and protection of human environment.

Today, we are concerned with a different kind of threat that lurks on our environment. This threat is the direct result of massive industrialization, mechanization, motorization and chemicalisation of agriculture. These processes have resulted in poisoning the air, the rivers and the soil itself. This not only endangers human beings and animal life but also seriously affects vegetation on earth. Today cities are not only plagued with smoke ,gases, smog, radiation, but equally the rivers and lakes in the world are so alarmingly polluted that these have rendered the quality of water unfit for human consumption and have also affected aquatic life. The excessive use of artificial fertilizers ,poisonous sprays, insecticides ,etc. have not only contaminated and spoilt the quality of soil but have robbed vegetables, fruits, and grains of life sustaining minerals and vitamins. Indiscriminately cutting forests ,denudating lands , destroying vegetation is resulting in changed weather conditions ,causing droughts, floods, and extinction of rare species of plants, animals and birds. Ruthless extracting of minerals and indiscriminately processing ores is along with their depletion, causing air and water pollution. Even the Ozone layer is being damaged that is a vital protective cover of Earth. JUDICIAL REMEDIES FOR ENVIRONMENT POLLUTION The remedies available in India for environmental pollution comprise of statutory as well as common law remedies. The term common law is derived from the latin word lex communis. The common law is force in India under Article 372 of the Constitution of India. The common law remedies available for environmental pollution are, nuisance, trespass, negligence and strict liability. The statutory remedies includes: Citizens suit, e.g., an action brought under section 19 of the Environmental (Protection) Act, 1986, an action under section 133, Criminal Procedure Code, 1973 for public nuisance covered with the framework of section 268, Indian Penal Code,1860:and an action brought by filling a writ petition under Article 32 in the Supreme Court of India or under Article 226 in the High Court. THE CONSTITUTIONAL ASPECTS OF ENVIRONMENTAL LAW Environmental protection has found a special mention in the Indian Constitution. The Constitution being the fundamental law of the land has a binding force on citizens, non-citizens as well as the state. The fundamental rights and the Directive Principles of state policy underline our national commitment to protect and improve the environment. The interpretation given to

Article 21 of the Constitution has added new dimension to the quality of life and the effect of environment relating thereto. Distribution of Legislative Powers: The constitution under Article 246 provides for division of powers between the Union and the States. Part XIII of the Constitution contains provisions governing the legislative and administrative relations between the Union and the States. The parliament and the legislatures of any state have exclusive power to make laws with respect to the matters contained in List I (Union List) and List II (State List) in the VIIth Schedule of the Constitution respectively.In addition to this, the Union and the State also enjoy concurrent powers to make laws on any subject enumerated in List III (Concurrent List) of the Schedule. The Constitution Forty- Second Amendment: It was for the first time, that the Constitution (Forty Second Amendment)Act,1976 incorporated Article 48-A into the Constitution. The provision reads as follows: The State shall endeavor to protect and improve the environment and to safeguard the forest and wildlife of the country.The Amendment also inserted Part VI-A in the constitution enum- erating fundamental duties of the citizens under Article 51-A (g) which reads as :It shall be duty of every citizen of India to protect and improve the natural environment including forests, lakes,, and wildlife and to have compassion for living creature. It also inserted entry 17-A in List III just after entry 17 which provided for forest.Similarly, the subject of protection of wild animals and birds was also transferred from List II , entry 20 and incorporated in List III entry 17-B. The Directive Principles of State Policy: Part IV of the Indian Constitution lays down certain fundamental principles of State Policy. In this connection it is worthwhile to point out that in several environmental cases the courts have been guided by the language of Article 48A.In Sachida Nand Pandey v. State of West Bengal, the Supreme Court , relying upon the Constitutional directives concerning protection of environment observed whenever a problem of ecology is brought before the court , the court is bound to bear in mind Article 48-A and Article 51-A(g).When the court is called upon to give effect to the Directive Principles and the Fundamental Duties , the court is not to shrug its shoulder and say that priorities are a matter of policy and so it is a matter of the policy making authority. Article 253 and Environmental Legislation: Article 253 of the Constitution gives power to Parliament to make laws implementing international obligation of the country as well as any decision taken at an international conference, association or other body. The provision reads, Notwithstanding anything in the foregoing provision of this chapter, parliament has power to

make any law for the whole or any part of the territory of India for implementing any treaty , agreement or convention with any other country or any decision made at any international conference ,association or other body.The authority vested in Parliament under the provisions contained in Article 253 has been exercised by it in enacting the Air (Prevention and Control) Act, 1981, and the Environment (Protection) Act, 1986. Fundamental Rights vis--vis Environment: Part III of the Constitution of India incorporates fundamental rights which have been made judicially enforceable. An attempt here is being made to examine this perspective in the context of environmental protection. (a) The Right to a wholesome Environment: It has been laid down by the Supreme Court in Maneka Gandhis case that if a law is enacted by a legislature which touches upon the life and liberty of a person and curtails it, then it is mandatory requirement that the procedure established by it for curtailing the liberty of a person must be reasonable, fair and just.Environmental pollution which spoils the atmosphere and thereby effects the life and health of the person has been regarded as amounting toviolation of Article 21 of the Constitution. In T. Damodar Raos case which related to stop the Life Insurance Corporation and the Income Tax Department from building residential house in a recreational zone, the Andhra Pradesh High Court held ,it would be reasonable to hold that the enjoyment of life and its attainment and fulfillment guaranteed by Article 21 of the Constitution embraces the protection and preservation of natures gifts without which life cannot be enjoyed.The slow poisoning by the polluted atmosphere caused by environmental pollution and spoliation should be regarded as amounting to violation of Article 21 of the Constitution. The court held that the attempt of the respondents to build houses in this area is contrary to law and also contrary to Article 21 of the Constitution. (b) The Right to Livelihood: The right to livelihood is implicit in the constitutional guarantee of right to life enshrined in Article 21 of the Constitution. The provision has served as an effective check governmental action which tend to affect the environment and disrupt the normal life style of the poor people. In Olga Tellis v. Bombay Municipal Corporation the court held:Deprive a person of his right to livelihood and you shall have deprived him of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21. (c) The Right to Equality :- Article 14 of the Constitution states that the state shall not deny to any person equality before the law or the equal protection of laws within the territory of India, guarantees the right to equality. This article is the principle instrument to strike at the

arbitrariness of an action should it involve a negation of the right to equality. The right to equality as enshrined in Article 14 of the Constitution may be infringed by government decisions which may have impact on the environment, particularly in cases, where permissions are arbitrarily granted, for instance, for construction that are in contradistinction of development regulation or for mining consequences. Thus, we find that Article 14 can be used as a potent weapon against governmental decisions threatening the environment. (d) Freedom of trade and environment :- Article 19 (1)(g) gives to all citizens a right to practice any profession or to carry on any occupation, trade and business. The question which needs to be answered here is : Whether a person, agency or industry has a right to carry on a business or trade in a manner which is causing an injury to the public and posing health hazard to the society at large? This question came for consideration in the case of Abhilash Textiles v. Rajkot Municipal Corporation.The court held that the petitioners cannot be permitted to the profits at the cost of the public health as they had no right to carry on their business without complying with the requirement of the law. (e) Constitutional Remedies: Art.32 and 226 of the Constitution of India confer power to the Supreme Court and High Court respectively to issue writs in the nature of habeas corpus, mandamus, certiorari and prohibition are generally resorted to in environmental matters. When a fundamental right including a right to a wholesome environment has been violated, relief through Articles 32 and 226 is fully appropriate. Where no fundamental right is involved, High Court will decline to exercise its jurisdiction if an equally effective remedy is available and has not been used. Section 28 of the Water Act & Section 31 of the Air Act provide the alternative remedy of administrative appeals to polluters who are dissatisfied with the pollution control board decisions. Thus, a polluters with the pollution control board decision may be resisted on the ground that an alternative remedy is available. Moreover, Environmental disputes that involve complicated questions of fact to be resolved after recording evidence, a suit is appropriate remedy, rather than a writ petition. For example, if pollution injures health, a suit for damages is appropriate because evidence to establish causation would have to be adduced and also because damages are not normally awarded under Articles 32 and 226. ENVIRONMENTAL PROTECTION: THE JUDICIAL APPROACH Environment protection during the last few years has become not only a matter of national concern but of global importance. Decline in environment quality has been evidenced by increasing pollution, loss of vegetal cover and bio-diversity, excessive concentration of harmful

chemicals in the ambient atmosphere of food chains, growing risks of environmental accidents and threat to life support systems. DELHI GAS LEAK CASE: In M.C. Mehta v. Union of India,popularly known as the Delhi Gas Leak or Oleum Gas Leak Case, the Supreme Court of India was confronted with multidimensional and complexissues relating to environmental pollution such as concerning the true scope and ambit of Article 21 and 32 of the Constitution ; the principles and norms for determining the liability of large enterprises engaged in manufacture and sale of hazardous products ,the basis on which damages in case of such liability should be quantified ; whether such large enterprises should be allowed to continue to function in thickly populated areas; and if so permitted what measures should be adopted to reduce the risks to minimum to the workers and community living in the neighborhood. The facts of the case is that the petition was filed by a public spirited lawyer M.C. Mehta who sought to close and relocate Shri Ram Caustic Chlorine and Sulphuric acid plants located in 76 acre industrial complex, in a thickly populated west section of Delhi. In two consequent Oleum gas leaks from the plant one advocate was killed. In view of this the inspector of Factories and Assistant Commissioner (Factories) issued separate orders prohibiting Shriram from operating their plants. But being aggrieved by the order the later filed a writ petition challenging the prohibitory order issued under the Factories Act of 1948 and sought interim permission to reopen the caustic chlorine plant. After controversies between the parties with regard to the recommendations of various committees, the court through its order on December 18, 1985 constituted another committee called Nilay Chaudhary Committee to enquire into the implementation of the earlier recommendations and to report to the court and suggest measures to be adopted against the hazards or possibility of leaks, and pollution control devices to reduce the risk to minimum. The judgment of the apex court in this case is historic one in the field of environmental justice. The Supreme Court laid down two important principles of law: First, the power of the Supreme Court to grant remedial relief for a proved infringement of a fundamental right (in case if Article 21) includes the power to award compensation. Thus, the court not only widened the scope of Article 21 by including in it protection of environment but also included a liability in tort for those harmed others by pollution. Second, the judgment opened a new frontier in the Indian jurisprudence by introducing a new no fault liability standard (absolute liability) for industries engaged in hazardous activities which has brought

about radical changes in the liability and compensation laws in India. The new standard makes hazardous industries absolutely liable from the harm resulting from its activities. GANGA POLLUTION CASE: In M.C. Mehta v. Union of India, the petitioner prays for the issue of mandamus to the respondents restraining them from letting out the trade effluents into the river Ganga till they take necessary steps for treating the trade effluents in order to arrest the pollution of water in the said river. It is the complaint of the petitioner that the large industries on the bank of the river are disposing the trade effluents of the factories and also the sewage of the towns and cities and that neither the people nor the government are giving adequate attention to stop the pollution of the river. On receiving the petition the court directed the issue of notice under O 1, r 8 of CPC asking the industries not to allow the trade effluents and the sewage into the river Ganga without appropriately treating them before discharging them into the river. The court held that the tanneries at Jajmau, Kanpur cannot be allowed to continue to carry out the industrial activity unless they take step to establish primary treatment plants. For every breach of a right there should be a remedy. It further laid down that the tanneries which have not set up primary treatment plants must stop running their tanneries. The ban against letting out trade effluents either directly or indirectly would continue till a pre-treatment process was made by setting up primary treatment plants as approved by the state pollution control board. Those who had already put up such tanneries were allowed to continue subject to the condition that they kept the plants in sound working order. . THE BHOPAL CASE: In Union Carbide Corporation v. Union Of India facts are as such that the early morning hours of December 3, 1984, a poisonous grey cloud (forty tons of toxic gases) from Union Carbide India Limited (UCILs) pesticide plant at Bhopal spread throughout the city. Water carrying catalytic material had entered Methyl Isocyanate (MIC) storage tank No. 610. The killer gas spread through the city, sending residents scurrying through the dark streets. No alarm ever sounded a warning and no evacuation plan was prepared. When victims arrived at hospitals breathless and blind, doctors did not know how to treat them, as UCIL had not provided emergency information. It was only when the sun rose the next morning that the magnitude of the devastation was clear. Dead bodies of humans and animals blocked the streets, leaves turned black, the smell of burning chilli peppers lingered in the air. Estimates suggested that as many as 10,000 may have died immediately and 30,000 to 50,000 were too ill to ever return to their jobs.After 26 years, the court verdict for the Disaster finally came. Some 25 years after the gas

leak, 390 tons of toxic chemicals abandoned at the UCIL plant continue to leak and pollute the groundwater in the region and affect thousands of Bhopal residents who depend on it. On June 7, 2010, seven ex-employees including the former chairman of UCIL were convicted in Bhopal of causing death by negligence and sentenced to two years imprisonment each. An eighth former employee was also convicted but had died before judgment was passed. The sentences will run concurrently. The quantum of fine that chief judicial magistrate Mohan P Tiwari of the trial court in Bhopal has imposed is paltry. The court could have awarded exemplary fine on the accused and the delinquent company. Behind it stood the government, which had diluted the charges, so that convictions came only under sections 304-A (causing death by negligence), 336, 337 and 338 (gross negligence), and 35 (common intention) of the India Penal Code.Warren Anderson, who was then the CEO of Union Carbide, was arrested, but was released on bail. Likewise, the Government of India passed the Bhopal Gas Leak Disaster Act that gave the government rights to represent all victims in or outside India, and used this to strike a bad deal with UCC, according to which it agreed to pay US$470 million (the insurance sum, plus interest) in a full and final settlement of its civil and criminal liability. This meant a total of Rs. 12,000 approximately per person. The US Court has ruled that there can be no extradition of Anderson since according to US law, that his company was guilty is immaterial. His personal criminality has to be proved. Now owned by Dow Corporation, Union Carbide denies responsibility for the tragedy. They are willing to take the profits of Union Carbide India, but not take responsibility for its crimes. And the judiciary has shown that while it is willing to sentence to death an individual who kills for profit or for terrorism, when it is a matter of big corporate bodies it will soft pedal. CONLCUSION It can be well submitted that judiciary is not the only effective form to resolve environmental problems it is well known that pollution is a problem which can be effectively solved only through public awareness, hence there is an urgent need that citizens as well as the state must sit up and take notice of environmental degradation and take appropriate steps to improve it. Environmental laws 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 Department of Environment was

established in India in 1980 to ensure a healthy environment for the country. This later became the Ministry of Environment and Forests in 1985. The constitutional provisions are backed by a number of laws acts, rules, and notifications. The EPA (Environment Protection Act), 1986 came into force soon after the Bhopal Gas Tragedy and is considered an umbrella legislation as it fills many gaps in the existing laws. Thereafter a large number of laws came into existence as the problems began arising, for example, Handling and Management of Hazardous Waste Rules in 1989. Following is a list of the environmental legislations that have come into effect: General 1986 - The Environment (Protection) Act authorizes the central government to protect and improve environmental quality, control and reduce pollution from all sources, and prohibit or restrict the setting and /or operation of any industrial facility on environmental grounds. 1986 - The Environment (Protection) Rules lay down procedures for setting standards of emission or discharge of environmental pollutants. 1989 - The objective of Hazardous Waste (Management and Handling) Rules is to control the generation, collection, treatment, import, storage, and handling of hazardous waste. 1989 - The Manufacture, Storage, and Import of Hazardous Rules define the terms used in this context, and sets up an authority to inspect, once a year, the industrial activity connected with hazardous chemicals and isolated storage facilities. 1989 - The Manufacture, Use, Import, Export, and Storage of hazardous Micro-organisms/ Genetically Engineered Organisms or Cells Rules were introduced with a view to protect the environment, nature, and health, in connection with the application of gene technology and microorganisms. 1991 - The Public Liability Insurance Act and Rules and Amendment, 1992 was drawn up to provide for public liability insurance for the purpose of providing immediate relief to the persons affected by accident while handling any hazardous substance. 1995 - The National Environmental Tribunal Act has been created to award compensation for damages to persons, property, and the environment arising from any activity involving hazardous substances. 1997 - The National Environment Appellate Authority Act has been created to hear appeals with respect to restrictions of areas in which classes of industries etc. are carried out or prescribed subject to certain safeguards under the EPA.

1998 - The Biomedical waste (Management and Handling) Rules is a legal binding on the health care institutions to streamline the process of proper handling of hospital waste such as segregation, disposal, collection, and treatment. 1999 - The Environment (Siting for Industrial Projects) Rules, 1999 lay down detailed provisions relating to areas to be avoided for siting of industries, precautionary measures to be taken for site selecting as also the aspects of environmental protection which should have been incorporated during the implementation of the industrial development projects. 2000 - The Municipal Solid Wastes (Management and Handling) Rules, 2000 apply to every municipal authority responsible for the collection, segregation, storage, transportation, processing, and disposal of municipal solid wastes. 2000 - The Ozone Depleting Substances (Regulation and Control) Rules have been laid down for the regulation of production and consumption of ozone depleting substances. 2001 - The Batteries (Management and Handling) Rules, 2001 rules shall apply to every manufacturer, importer, re-conditioner, assembler, dealer, auctioneer, consumer, and bulk consumer involved in the manufacture, processing, sale, purchase, and use of batteries or components so as to regulate and ensure the environmentally safe disposal of used batteries. 2002 - The Noise Pollution (Regulation and Control) (Amendment) Rules lay down such terms and conditions as are necessary to reduce noise pollution, permit use of loud speakers or public address systems during night hours (between 10:00 p.m. to 12:00 midnight) on or during any cultural or religious festive occasion 2002 - The Biological Diversity Act is an act to provide for the conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits arising out of the use of biological resources and knowledge associated with it Forest and wildlife 1927 - The Indian Forest Act and Amendment, 1984, is one of the many surviving colonial statutes. It was enacted to consolidate the law related to forest, the transit of forest produce, and the duty leviable on timber and other forest produce. 1972 - The Wildlife Protection Act, Rules 1973 and Amendment 1991 provides for the protection of birds and animals and for all matters that are connected to it whether it be their habitat or the waterhole or the forests that sustain them. 1980 - The Forest (Conservation) Act and Rules, 1981, provides for the protection of and the conservation of the forests. Water

1882 - The Easement Act allows private rights to use a resource that is, groundwater, by viewing it as an attachment to the land. It also states that all surface water belongs to the state and is a state property. 1897 - The Indian Fisheries Act establishes two sets of penal offences whereby the government can sue any person who uses dynamite or other explosive substance in any way (whether coastal or inland) with intent to catch or destroy any fish or poisonous fish in order to kill. 1956 - The River Boards Act enables the states to enroll the central government in setting up an Advisory River Board to resolve issues in inter-state cooperation. 1970 - The Merchant Shipping Act aims to deal with waste arising from ships along the coastal areas within a specified radius. 1974 - The Water (Prevention and Control of Pollution) Act establishes an institutional structure for preventing and abating water pollution. It establishes standards for water quality and effluent. Polluting industries must seek permission to discharge waste into effluent bodies. The CPCB (Central Pollution Control Board) was constituted under this act. 1977 - The Water (Prevention and Control of Pollution) Cess Act provides for the levy and collection of cess or fees on water consuming industries and local authorities. 1978 - The Water (Prevention and Control of Pollution) Cess Rules contains the standard definitions and indicate the kind of and location of meters that every consumer of water is required to affix. 1991 - The Coastal Regulation Zone Notification puts regulations on various activities, including construction, are regulated. It gives some protection to the backwaters and estuaries. Air 1948 The Factories Act and Amendment in 1987 was the first to express concern for the working environment of the workers. The amendment of 1987 has sharpened its environmental focus and expanded its application to hazardous processes. 1981 - The Air (Prevention and Control of Pollution) Act provides for the control and abatement of air pollution. It entrusts the power of enforcing this act to the CPCB . 1982 - The Air (Prevention and Control of Pollution) Rules defines the procedures of the meetings of the Boards and the powers entrusted to them. 1982 - The Atomic Energy Act deals with the radioactive waste. 1987 - The Air (Prevention and Control of Pollution) Amendment Act empowers the central and state pollution control boards to meet with grave emergencies of air pollution.

1988 - The Motor Vehicles Act states that all hazardous waste is to be properly packaged, labelled, and transported.